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 The original of this book is in 
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 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924022786929 
 
PRACTICE AND PLEADING 
 
 IN ACTIONS 
 
 OOUETS or EEOORD IIST THE STATE OF 
 I^TEW TOEK, 
 
 UNDER 
 
 THE CODE OF PROCEDURE, 
 
 AND OTHEE STATUTES, WHERE APPLICABLE. 
 
 AN APPENDIX OF FORMS 
 
 HENRY "^ITTAKER, 
 
 C!OUNBKLI.OB AT LiW. 
 
 THIRD EDITION, IN TWO TOLUMSS. 
 
 VOL. I. 
 
 NEW YORK: 
 FEINTED FOE THE AUTHOE. 
 
 BOID BT J. S. V00EHIE8, NETT yOEK, AND ALL THE PEINCIPAL LAW BOOKSELLBES 
 THEOUGHOUT THE STATE. 
 
 1863. 
 
A-^^^^^^^' 
 /i-^^=^ 
 
 ^ ^9^ A?*^ C.I 
 
 Entered according to act of Congress, in tlie year 1852, by 
 
 HENRY "WHITTAKER, Author and Proprietor, 
 
 In the Clerk's Office of the District Court of the United States, for the 
 
 Southern District of New York. 
 
 Entered according to act of Congress, in the year 1854, by 
 
 HENRY WHITTAKER, Author and Proprietor, 
 
 In the Clerk's Office of the District Court of the United States, for the 
 
 Southern District of New York. 
 
 Entered according to act of Congress, in the year 1863, by 
 
 HENRY "WHITTAKER, Author and Proprietor, 
 
 In the Clerk's Office of the District Court of the United States, for the 
 Southern District of New York. 
 
 0. a. ALVORD, STSRKOTYPKft ANT) PKTN'TRH., 
 

 PREFACE. 
 
 The indulgent appreciation of his former efforts, by the profession 
 and by the public, has induced the author to issue a third and revised 
 edition of his work on Practice and Pleading under the Code ; the 
 last, published in 1854, having, for many years, been exhausted. 
 
 On resuming his task, now more than four years since, he contem- 
 plated, at first, a mere incorporation into the work, as it then stood, of 
 the accumulation of subsequent matter. A careful reconsideration of 
 the subject soon induced him, however, to abandon this intention, to 
 enlarge, to some extent, the general scope of his undertaking, and to 
 subject the whole to a strict and careful revision. The result is, that 
 the work has been substantially rewritten, but little of the original text 
 being retained. Every conclusion formerly drawn has been carefully 
 reconsidered, in connection with recent authorities, and neither time 
 nor trouble has been spared in the endeavor to make the work, as now 
 reissued, accurate and reliable. 
 
 The subjects of Jurisdiction and of Pleading are, on the present oc- 
 casion, treated in greater detail. In the two last editions, those branches 
 of procedure, which, unprovided for by the Code, are still governed by 
 the Revised Statutes and by the former practice, were merely noticed, 
 and the treatises on that practice referred to, instead of their being 
 considered in detail. The author's reasons for that course are 
 fully explained in his introduction to the second edition. It was 
 then a matter of reasonable expectation, that the Legislature, in lieu 
 of shrinking from the complete fulfilment of the task prescribed 
 to it by the Constitution of 1846, would still take measures to embrace 
 within the simplification and abridgment directed by that instrument, 
 the whole and not a part only of the former system of practice and pro- 
 
 VOL. L— B 
 
\r PEEFACE. 
 
 cedure. The lapse of more than sixteen years, and the failure of more 
 than one attempt made for that purpose by the commissioners to whom 
 the task was delegated, have nullified that expectation, and rendered it, 
 in the author's opinion, inexpedient for him to pursue the same course 
 on the present occasion. He has, therefore, incorporated in the body 
 of the present edition, that residuum of the former practice, statutory 
 or otherwise, which still retains a vitality, concurrent with the pro- 
 cedure directly prescribed by the Code, and by the rules of which, a 
 portion of the measures necessary or available in the progress of a 
 contested suit, is still governed. 
 
 The author has, on the other hand, omitted from the present edition 
 his former brief notice of independent special proceedings, and also the 
 concluding chapter as to the retrospective effect of the Code. The 
 latter subject has become practically obsolete ; the former is, in fact, 
 foreign to the plan of the work. 
 
 That plan remains substantially the same as before. The progress 
 of a suit in the higher courts of the state is traced, from its origin and 
 preliminaries, down to its final determination ; practical directions 
 being given for its conduct and management, in each step which may 
 be necessary or advisable during that progress. 
 
 The provisions of the Code, of the Revised or General Statutes, and 
 of the Eules of the Courts, which bear upon each particular division 
 of the general subject, are, on the present occasion, cited in the body 
 of the work, instead of being subjoined at its close. An appendix of 
 forms is added, as heretofore, and each volume closes with an index of 
 the subjects considered in it. The first embraces all matters connected, 
 directly or indirectly, with the commencement and progress of a suit, 
 down to the preparation and service of the complaint, inclusive ; the 
 second, all subsequent stages of procedure, in that suit, down to its 
 close. 
 
 The chapters on Pleading, contained in books YI., YII., and YIII., 
 have been greatly enlarged, adding much to the bulk and complexity 
 of the work. The author trusts they may be found useful to the pro- 
 fession, as containing a synopsis of the recent cases bearing on that 
 important subject. 
 
 The citation of authorities is strictly confined to decisions of the 
 Courts of this State, and almost exclusively to such as have been ren- 
 
PEEfAOE. V 
 
 dered since tlie adoption of the Code. On subjects proyided for by 
 that measure, the bearing of antecedent authorities is rather illustrative 
 than direct ; on others, recent decisions will be a sufficient guide as to 
 the present practice, and will, as a general rule, indicate those of earlier 
 date, a reference to which naay be expedient. For similar reasons, the 
 author has refrained from any citation of foreign authorities, as tending 
 to increase unnecessarily the complexity of a subject, in itself sufficiently 
 complicated. The list given at the commencement will show that, as 
 it is, more than seven thousand cases are cited in the body of the 
 work. 
 
 The author has, throughout, scrupulously abstained from announcing 
 any positive proposition unsupported by positive authority, and, where 
 the decisions on any given point have been conflicting, he has stated 
 those on both sides as impartially as lay within his power, drawing his 
 own conclusions, where necessary. 
 
 HeNBT WHmAKEE. 
 
 11 Wall Street, New York, Jmxmry, 1863. 
 
 CITATIONS. 
 
 The following remarks as to the mode of citation adopted may be 
 convenient. 
 
 In quoting the Kevised Statutes, the references made are to the mar- 
 ginal, and not to the actual paging. Subsequent acts of the Legisla- 
 ture are cited, by reference to the year of their passage and to the page 
 of the laws of that year. 
 
 When a judicial dictum is quoted, or attention is wished to be drawn 
 to any particular passage in the report of a case, that case is cited thus : 
 "2 Seld., 348 (352)." The first figures denote the page at which the 
 report commences ; the second, that in which the expression occurs, to 
 which attention is especially directed. 
 
vi PREFACE, ' 
 
 The citations are brought down to the middle of September, 1862, 
 at which time the work first went to press, and include all reported 
 decisions prior to that period. 
 
 The authorities cited in the work are as follows : — 
 
 OOUET OF APPEALS. 
 
 Comstock's Keports, 4 vols. 
 
 Selden's Eeports, 6 vols. 
 
 Selden's Notes, cited as such, by date of decision. 
 
 Keman's Eeports, 4 vols. 
 
 E. P. Smith's Eeports, 9 vols. ; cited as K T., 16 to 23 inclusive. 
 
 SDTEEME OOTJET. 
 
 Barbour's Eeports, 35 vols. 
 
 SITPEEIOE COTJBT, N. Y. 
 
 Sandford's Eeports, 5 vols. 
 Duer's Eeports, 6 vols. 
 Bosworth's Eeports, 6 vols. 
 
 N. T. OOMMON PLEAS. 
 
 E. D. Smith's Eeports, 4 vols. 
 Hilton's Eeports, 2 vols. 
 
 GENEEAL PEACTICE EEPOETS. 
 
 Howard's Practice Eeports, 22 vols, and part of 23d — cited as 
 
 How. 
 Abbott's Practice Eeports, 12 vols, and part of 13th. 
 Code Eeporter, 3 vols. ; cited as C E. 
 Code Eeporter (New Series), 1 vol. ; cited as C. E. (N. S.) 
 Legal Observer, 12 vols. ; cited as L. O. 
 
TABLE OF CONTENTS. 
 
 YOL. I. 
 
 INrTRODUCTORY CHAPTER. 
 
 PAGE 
 
 § 1. Preliminary observations 1 
 
 § 2. Origin and modifications of tlie Code 2 
 
 § 3. Provisions of general application 5 
 
 § 4. Statutory and other provisions reserved by section ill 9 
 
 § 5. Rules of the courts 11 
 
 § 6. Former practice, how far eiistent 12 
 
 BOOK I. 
 
 COURTS OP JUSTICE AND THEIR OFFICERS. 
 
 Chaptee I. 
 
 OoTTETS or Justice ■within this Statk. 
 
 § 7. Statutory provisions 14 
 
 § 8. Federal Courts 15 
 
 Chapter IT. 
 
 Court of Appeals. 
 
 § 9. Statutory provisions 18 
 
 § 10. Jurisdiction and powers 21 
 
 Chaptee III. 
 
 SUPHEMI! CODBT. 
 
 § 11. General constitution and powers of judges 26 
 
 § 12. Provisions of the Code .34 
 
 § 13. General term 38 
 
 § 14. Circuit and special term 40 
 
 § 15. Judge at chambers 45 
 
 §16. Chamber business. Powers of county judge, or Supreme Court commissioners ... . 48 
 
 Chaptee IV. 
 
 CoTJNTT Courts. 
 
 § I'J. Jurisdiction and powers. Statutory provisions 54 
 
 § 18. Jurisdiction, generally considered 61 
 
Vm COKTENTS, 
 
 -* Chaptbe v. 
 
 CorBTS OP Cities. 
 
 PAGF 
 
 § 19. Jurisdiction and powers. Statutory provisions 65 
 
 (a.) Constitutional provisions 65 
 
 (6.) Provisions of Code, of general applicatioif. 66 
 
 (c.) Distinction between New York and other local tribunals 67 
 
 (d) Provisions of Code, of special application. New York Common Pleas 68 
 
 (a.) Special provisions, continued. Common Pleas and Superior Court 69 
 
 (/.) Provisions of other statutes applicable to Superior Court and Common Pleas 7 1 
 
 (g.) To Superior Court alone 73 
 
 (A.) To New York Common Pleas aloa*. 74 
 
 («'.) Superior Court of Buffalo 76 
 
 (j.) Mayors' and Recorders' Courts 81 
 
 (4.) Mayor's Court of Albany 82 
 
 \l.) " Hudson 82 
 
 (m.) " Troy 82 
 
 (n.) " Rochester 83 
 
 (o.) Recorder's Court of XJtica 83 
 
 (p) City Courts, organized since Constitution of 1846 .* 84 
 
 (q.) Recorder's Court of Oswego 84 
 
 (r.) City Court of Brooklyn 85 
 
 § 20. New York local tribunals, decisions as to jurisdiction 87 
 
 Chaptek VI. 
 
 Justices' Couets. 
 
 § 21. Jurisdiction of, in general. Statutory provisions 92 
 
 § 22. Jurisdiction in New York and other cities. Statutory provisions 101 
 
 § 23. Tarious points as to jurisdiction 106 
 
 § 24. Removal of cause, where title to real estate in question 109 
 
 chaptbb vn. 
 
 Of Officees of the Couet. 
 
 § 25. Preliminary observations 112 
 
 § 26. Clerk of the court 113 
 
 § 27. Oaths and acknowledgments. Commissioners of deeds 115 
 
 § 28. Sheriffs 120 
 
 § 29. Other ministerial ofBcers 126 
 
 § 30. Attorneys and counsel , 126 
 
 BOOK II. 
 
 ACTIONS GENERALLY CONSIDERED. 
 
 Chaptee I. 
 
 Of Paetxes to an Action. 
 
 § 31. Statutory provisions -conoeming. j34 
 
 § 32. Real party in interest. 
 
 (a.) Competency to sua 139 
 
 (6.) Owner of property 139 
 
CONTENTS. IX 
 
 PAGE 
 
 (c.) Tenants in common 141 
 
 (d) Partners ; 144 
 
 (e.) Joint and several contractors 146 
 
 (/.) Joint tort-feasors 147 
 
 ((/.) Principal and agent. . . ». 148 
 
 (ft.) Parents, husbands, and masters 149 
 
 (i.) Corporations 161 
 
 (y.) Directors and stockholders 1 54 
 
 (fe) States and governments 155 
 
 (J.) Assignee in contract 156 
 
 (m.) Assignee in tort 160 
 
 § 33. Representatives and Trustees ' 164 
 
 1. Executors or Administrators '. 164 
 
 2. Trustees of express trust 166 
 
 3. Persons authorized by statute. 
 
 (a.) Committees 169 
 
 (b.) Public ofBcers 169 
 
 (c.) Officers of the court 110 
 
 § 34. Husband and "Wife iTl 
 
 ((7.) Joinder as plaintiffs l'!2 
 
 (6.) Joinder as defendants 114 
 
 (c.) Sundry decisions 176 
 
 § 35. Infants '. 181 
 
 § 36. Joinder of plaintiffs 184 
 
 § 37. Suit by one of a class 187 
 
 § 38. Joinder of defendants 190 
 
 (a.) Necessary defendants 191 
 
 (6.) Proper defendants 194 
 
 Defendants in specific eases. 
 
 (c.) Foreclosure 198 
 
 (A) Partition 201 
 
 (e.) Ejectment 202 
 
 (/) Unknown defendants 204 
 
 (g.) Privileged defendants 205 
 
 § 39. Abatement. Bringing in defendants 206 
 
 (a.) (Bringing in, in regular course of action 206 
 
 (6.) " on application of third party i . . . . 207 
 
 § 40. Interpleader 208 
 
 Chapter II. 
 
 Limitation of Actions. 
 § 41. Statutory provisions. 
 
 (a.) Provisions of Code 212 
 
 Other statutory provisions. 
 
 (b.) Suits by or against representatives 219 
 
 (c.) Heirs or representatives 219 
 
 (d.) Dower 220 
 
 (e.) Ejectment 220 
 
 (/.) Usury 220 
 
 (17.) Service by publication 220 
 
 (ft.) Justices' judgments 220 
 
 (t.) Writs of error 220 
 
 (J.) Suits against stockholders 220 
 
X OONTEiraS. 
 
 S 42. Real estate. ^^^^ 
 
 (a.) Actions by the people 221 
 
 Actions hj private parties. 
 
 (S.) Adverse possession ^^^ 
 
 (c.) Special limitation 226 
 
 (d.) Disabilities 226 
 
 § 43. Personal actions 227 
 
 (a.) Twenty years 227 
 
 (6.) Six years 228 
 
 (c.) Three years 231 
 
 (d.) One year 232 
 
 (e.) Ten years 232 
 
 (/.) Disabilities, &c 234 
 
 (g.) Account current, effect of 234 
 
 (h.) Acknowledgment or part payment 235 
 
 § 44. General Provisions. 
 
 (a.) Commencement of action 238 
 
 Suspension of limitations. 
 
 (6.) By absence 239 
 
 (c.) Death of party 240 
 
 (A) Injunction or prohibition 241 
 
 (fi.) Concluding remarks 241 
 
 BOOK in. 
 
 OF THE COMMENCEMENT OP AN ACTION, AND THE PBELIMINAEIES THERETO 
 
 WHEN NECESSARY. 
 
 Chaptbe I. 
 
 Of the Pebliminaeies to the Commencement of an Action in Ceetain Cases. 
 
 § 45. Various preUminaries 242 
 
 (a.) Infants 242 
 
 (6.) Lunatics, &c 243 
 
 (c.) Receivers 244 
 
 (d.) Suit in forma pauperis 245 
 
 (e.) Actions by attorney-general 246 
 
 (/.) Actions on judgments 246 
 
 {g.) As to judgments of courts of record 247 
 
 {h.) On justices' judgments 249 
 
 (i.) Notice or demand in certain causes 249 
 
 Chapter II. 
 Of Peooeedings for Settlement of a Conteotbest, without Action beotjght. 
 General remarks. 
 
 g 46. Submission of controversy osn 
 
 § 47. Confession of judgment. Statutory provisions 252 
 
 § 48. Subject generally considered 253 
 
 (a.) Form of confession 267 
 
 (6.) Promissory notes 268 
 
 (c.) Goods sold 261 
 
 [d.) Balance of account 263 
 
CONTENTS. XI 
 
 PAGB 
 
 (e.) Moneys lent , 263 
 
 (/) Judgments and written inatnunenta 263 
 
 (g.) Xjontingent liaMity 264 
 
 (h.) Entry of judgment 264 
 
 (t.) Yacating of judgment by confession 265 
 
 Chapter III. 
 Op the Oommbnobment or an Aotion. 
 
 § 49. (a.) Statutory provisions of Code 267 
 
 (J.) Act of 1853, as to substituted service 273 
 
 (c.) Unknown defendants ' 273 
 
 (d.) Special indorsement 273 
 
 § 50. Summons, generally considered. 
 
 (a.) Nature of .• 273 
 
 (i.) Form of 276 
 
 (c.) Subscription 276 
 
 (d.) Direction to defendant 276 
 
 (e.) Requisition to answer complaint 277 
 
 (/) Place of service of answer 278 
 
 (g.) Time of service of answer 278 
 
 (h.) Notice of taking judgment, &o 278 
 
 (i.) As to subdivision 1 279 
 
 (j.) As to subdivision 2 281 
 
 (k.) Special indorsement 282 
 
 § 51. Summons, amendment of 282 
 
 § 52. Service of complaint with summons 284 
 
 § 53. Notice of no personal claim 285 
 
 § 54. Service of summons 285 
 
 § 55. Substituted service, against resident defendants 292 
 
 § 56. Service by publication, generally considered 293 
 
 (a.) Prerequisites to 294 
 
 (6.) Mode of application 295 
 
 (c.) Affidavit 296 
 
 (d.) Form of order 298 
 
 (e.) Proceedings under order 298 
 
 (/) Rights reserved to or exercisable by defendant 302 
 
 § 57. Service on several defendants, joint-debtors, &o 304 
 
 § 58. Proof of service 304 
 
 (a.) By sheriff's certificate or affidavit 304 
 
 (J.) Admission ' 306 
 
 § 59. Jurisdiction, acquisition of, and appearance. 
 
 (a.) Jurisdiction 307 
 
 (6.) Appearance 307 
 
 § 60. Notice of Us pendens 309 
 
 § 61. Mechanics' lien. 312 
 
 Chapter IV. 
 
 Or THE Appointment op GtrAKDiAN ad litem, akd his Ditties. 
 
 § 62. General remarks 312 
 
 § 63. Statutory and other provisions 313 
 
 § 64. General observations 317 
 
 (a.) Guardian in partition 321 
 
PAGE 
 . 323 
 
 XU CONTENTS. 
 
 BOOK IV. 
 
 FORMALITIES AND INTERLOCUTOBT PROCEEDINGS. 
 
 § 65. General observations 
 
 § 66. Notices, and service of papers. 
 
 (a.) Statutory and other provisions 
 
 General observations. 
 
 (6.) Service on party or attorney, and its proof. 
 
 (c.) Service on attorney ^ 
 
 (d.) " on party ^^^ 
 
 (e.) " by mail ^^^ 
 
 (/.) " on absent party ^^•'■ 
 
 § 61. Preparation and filing of paperg. 
 
 (o.) Preparation 332 
 
 (6.) Filing. Statutory and other provisions ^^^ 
 
 (c.) " General observations • ■ ■ • ^^^ 
 
 § 68. Consents and admissions 336 
 
 § 69. Undertakings S37 
 
 § 70. Affidavits 338 
 
 § 11. (a.) Computation of time 340 
 
 (6.) Publication 342 
 
 § 12. Interlocutory applications. 
 
 Statutory and other provisions 3^3 
 
 § 13. Motions. General classification 351 
 
 § 14. Ex parte applications 351 
 
 (a.) By whom, and where cognizable 351 
 
 (6.) General characteristics 352i 
 
 (c.) Extension of time 353 
 
 (d.) Stay of proceedings 354 
 
 § 15. Opposed motions, where cognizable. 
 
 (a.) First district 351 
 
 (6.) Other districts 358 
 
 § 16. Opposed motions 360 
 
 (a.) Notice of 361 
 
 (J.) Order to show cause 365 
 
 § 11. Other papers and proceedings before hearing 361 
 
 (a.) Depositions on motion 361 
 
 (6.) Petitions 369 
 
 (c.) Service of papers 310 
 
 (d.) Motion calendars 311 
 
 § 18. Opposed motions, continued. 
 
 (a.) Course on hearing, and incidental points 311 
 
 (6.) Default on a motion 312 
 
 (c.) Course on hearing, where both parties appear 314 
 
 (d.) Incidental points ; 311 
 
 (e.) Renewal of motion 319 
 
 § 19. Orders. 
 
 (a.) General remarks 380 
 
 (b.) Form of order 381 
 
 (c.) Entry of order • 383 
 
 (d.) Certified copy • 386 
 
 (e.) Service of 386 
 
CONTENTS. Xin 
 
 PAOE 
 
 (/.) Perfonnanoe of conditions 387 
 
 (g.) Enforcement of orders 381 
 
 (ft.) Review or vacating of orders 381 
 
 BOOK Y. 
 
 OF PROVISIONAL REMEDIES. 
 
 Chapter I. 
 
 / 
 
 Arbest and Bail. 
 
 § 80. Statutory and other provisions 390 
 
 § 81. General remarks 396 
 
 (a.) Privileged persons 396 
 
 (6.) Non-imprisonment act of 1831 397 
 
 (c.) Proceedings for contempts 399 
 
 (d.) Writ of ne exeat 400 
 
 § 82. "WTien defendant arrestaWe 400 
 
 (a.) Preliminary remarks 400 
 
 (6.) Subdivision 1. Where the action sounds in tort 402 
 
 (c.) " 2. Actions ex contractu. Agents, &o 403 
 
 (d) " 3. Replevin, &c 406 
 
 (e.) " 4. Fraud in contracting debt 407 
 
 (/) " 5. Fraudulent disposition of property 409 
 
 (j.) Arrest of female 410 
 
 (h.) Arrest for usurpation of office 411 
 
 § 83. Application for arrest. 
 
 (a.) Affidavit 411 
 
 (6.) Security 414 
 
 (c.) Order 415 
 
 § 84. Mode and incidents of arrest ■. . . 416 
 
 § 85. Defendant's course on arrest 417 
 
 (a.) Motion to vacate. 417 
 
 (6.) " " on plaintiff's papers 419 
 
 (c.) " " on affidavits 420 
 
 (d) Course on hearing 423 
 
 § 86. Bail by defendant 425 
 
 (a.) Deposit in heu of 425 
 
 (b.) BaU, nature of 425 
 
 (c.) " qualifications of 426 
 
 (d.) Undertaking, its incidents and form 427 
 
 § 81. Exception and justification 427 
 
 (a.) Exception , 427 
 
 (b.) Notice of justification 427 
 
 (c.) Justification 427 
 
 § 88. Surrender by bail 430 
 
 § 89. Exoneration of bail. 431 
 
 (a.) Exoneretur 432 
 
 § 90. Sheriff's liability 433 
 
 § 91. Remedies against bail 434 
 
 § 92. Discharge from arrest 434 
 
 Discharge, by operation of law or otherwise 436 
 
xiv contents. 
 
 Chapter II. 
 Eeplevin. 
 
 PAQI 
 
 § 93. statutory and other provisions ■iSS 
 
 § 94. General remarks. 
 
 Right to remedy 438 
 
 § 95. Provisional remedy, how obtained 440 
 
 (a.) Time of obtaining 440 
 
 (6.) Affidavit 440 
 
 (J. — 1.) Requisition to sheriff 442 
 
 (c.) tJndertaking 442 
 
 (d) Sheriff's course of proceedings 443 
 
 § 96. Defendant's course of action, and ulterior proceedings 444 
 
 (a.) Motion to set aside 444 
 
 (6.) Justification by plaintiff's sureties. '. 444 
 
 (c.) Counter security by defendant 446 
 
 (d.) Dehvery to plaintiff 446 
 
 (e.) Delivery to defendant 446 
 
 (/.) Sheriff's fees 44'7 
 
 (g.) Claim by third party ■ 447 
 
 Disposal of papers 447 
 
 On discontinuance, property to be restored 448 
 
 Chapter HI. 
 
 Injunction. 
 
 § 9'7. Statutory provisions 448 
 
 § 98. Preliminary remarks 450 
 
 (o.) From ■whom obtainable 450 
 
 (6.) In what cases. General classification 451 
 
 § 99. (a.) Preliminary Injunction 452 
 
 (6.) Plaintiff's title to relief 453 
 
 § 100. Subsidiary injunction 463 
 
 § 101. Eztraneous injunction 464 
 
 § 102. Application for 465 
 
 (a.) When entertainable 465 
 
 (J.) Affidavit 465 
 
 (c.) Security 467 
 
 (d.) Statutory security'. .■ 467 
 
 (e.) Ordinary security 467 
 
 (/.) Security on restraining corporation 470 
 
 {g.) Disposal of undertakings 470 
 
 (A.) Manner of application 471 
 
 (i.) Disposal of affidavits 472 
 
 § 103. Service of injunction 472 
 
 § 104. Tiolation of injunction 4174 
 
 § 105. Defendant's course to oppose or vacate 476 
 
 (a.) Opposition to original motion 476 
 
 (6.) Motion to vacate or modify 477 
 
 (c.) 1. Motion on plaintiffs papers 478 
 
 (d.) 2. Motion on complaint and answer, without affidavits 479 
 
 (e.) 3. Motion on affidavits 479 
 
 (/.) Generally as to motion 482 
 
 S 106. Dissolution of. Liability of sureties 483 
 
CONTENTS. XV 
 
 Chapteb IV. 
 
 Attachment. 
 
 PAGE 
 
 § lOT. Statutory provisions. 48a 
 
 § 108. General observations 494 
 
 § 109. "When and from whom obtainable 497 
 
 (a.) 1. Only obtainable in an action 491 
 
 (6.) 2. At what time obtainable > 498 
 
 (c.) 3. From whom obtainable. Question of jurisdiction 499 
 
 4. In what cases obtainable. 
 
 (d) Against foreign corporation 500 
 
 (e.) Against non-resident debtors 500 
 
 (/.) Against absconding or concealed defendants 501 
 
 {g.) Eemoval or fraudulent disposition of property 502 
 
 § 110. How obtained 603 
 
 (a.) Affidavit 503 
 
 (6.) Security , 506 
 
 (c.) Notice of lis pmdens 50G 
 
 (d.) Warrant of attachment 501 
 
 (e.) Application to judge, and proceedings thereon 508 
 
 § 111. Sheriff's proceedings on 509 
 
 (a.) Seizure and its incidents ' 512 
 
 (b.) Attachments on vessels 515 
 
 (c.) Service of notice under section 235 516 
 
 (A) Certificate 511 
 
 § 112. Discharge of attachment 511 
 
 (a.) Discharge upon motion 511 
 
 (6.) Motion for irregularity or original defect 518 
 
 (e.) Motion on affidavits 618 
 
 (d.) Discharge on giving security 521 
 
 (e.) Result of discharge 522 
 
 § 113. Questions as to rights of other creditors 522 
 
 § 114. Effect of judgment 52.-! 
 
 (a.) Eights of defendant 624 
 
 § 115. Sheriff's return apd fees 525 
 
 Chaptee v. 
 
 ApPOIlfTMBNT OF ReCBIVBE AND OtHBR REMEDIES. 
 
 § 116. Statutory and other provisions 526 
 
 § 111. Appointment and its incidents 529 
 
 (a.) Application, mode of 529 
 
 Proceedings on decision of motion 533 
 
 § 118. Duties and powers of receiver 536 
 
 (a.) Insolvent Corporations 539 
 
 § 119. Other provisional remedies 540 
 
Xvi CONTENTS. 
 
 BOOK VI. 
 
 Chaptee I. 
 
 Of the Pleadings, Gbnerallt OoNsniBEEr. 
 
 PAGE 
 Preliminary observation. 
 
 § 120. Statutory provisions ', ^'^^ 
 
 § 121. System established by Code ^53 
 
 (a.) Uniformity of general system 555 
 
 (6.) But without confusion of previous distinctions in essentials 557 
 
 (c.) Other parts of former system not abolished 559 
 
 {d) Former modes of pleading 561 
 
 § 122. Averments, generally considered 563 
 
 (a.) Pacts only to be stated 56-4 
 
 (6.) Constitutive facts , 564 
 
 (c.) Probative facts 567 
 
 [d.) Conclusions of law 669 
 
 (e.) Arguments and inferences 671 
 
 (/■) SufBciency 671 
 
 {g.) Principle of ^^secwndiim alle^ta" 675 
 
 § 123. Mode of Averment. 
 
 (a.) General considerations 578 
 
 (6.) Narrative 678 
 
 (c.) Statement of conclusions 578 
 
 (d.) Statements to be positive. 679 
 
 (e.) Hypothetical and alternative pleading 579 
 
 (/.) Inconsistency 580 
 
 (gr.) Certainty .' 531 
 
 (h.) Pacts according to legal effect 581 
 
 (i.) Looseness and superfluity 681 
 
 (j.) Anticipation 682 
 
 (h.) Adaptation to case, whether legal or equitable 582 
 
 (I.) Old forms, how far available 586 
 
 (m.) General observations as to averments 587 
 
 (n.) Averments under a statutory provision 587 
 
 (o.) Averments by or against incorporations ' 588 
 
 § 124. Averments by impUoation 591 
 
 (a.) By special provision 59I 
 
 (6.) By general operation 594. 
 
 (c.) Construction of pleadings 596 
 
 Chaptee II. 
 
 Gekeeal Tiew. Pobmal Requisites. 
 
 § 125. Preparation ,„» 
 
 (a.) Numbering folios, &o ' ,„„ 
 
 (6.) Numbering causes of action, &o 
 
 § 126. Subscription and verification ' ' ' 
 
 (a.) Subscription ' 
 
 _.,„. oyo 
 
 Venncation. 
 
 (6.) When and when not imperative p- 
 
 (c.) Mode of verification g^, 
 
 (d.) Mechanics' liens „P 
 
 (e.) Privilege to omit verification. g„ 
 
CONTENTS. XVU 
 
 Form of verification. PAGE 
 
 (/.) By party 603 
 
 (j.) By attorney or agent 604 
 
 (A.) Points as to form of 608 
 
 § 121. Course of adverse party 608 
 
 (a.) Return of defective pleading 608 
 
 (b.) Disregard of pleading 610 
 
 Chaptbe rn. \ 
 
 Amendment Ok Disregard of Errors in Substance. 
 General observations. 
 
 § 128. Amendments as of course 611 
 
 (a.) Eight to amend 611 
 
 (J.) Time of amendment 615 
 
 (c.) Restrictions on power 616 
 
 § 129. Amendments on special mption 617 
 
 (a.) Amendments in names of parties 618 
 
 (ft.) Correction of mistake 619 
 
 (c.) Insertion of material allegations 622 
 
 General considerations 623 
 
 § 130. Service of amended pleading 625 
 
 § 131. Amendments on or after the trial 626 
 
 (a.) Amendments at the trial 621 
 
 (b.) Amendments after trial 632 
 
 § 132. Tarianoes, when and when not disregarded 634 
 
 (a.) Disregard of variance 635 
 
 (5.) Yarianoe, when fatal 640 
 
 Chaptee IV. 
 
 Correction on Adverse Motion. 
 
 § 133. General observations 643 
 
 (a.) When motion admissible, and when not 644 
 
 § 134. Objections considered. 
 
 (a.) Irrelevancy or redundancy 646 
 
 (6.) Irrelevancy 647 
 
 (c) Redundancy 650 
 
 (d) As to both objections, generally considered 654 
 
 § 135. tJncertainty . . . : 656 
 
 § 136. Form and incidents of motion 659 
 
 BOOK VII. 
 
 OF THE COMPLAINT AND ITS INCIDENTS. 
 
 Chapter I. 
 
 Op Fihng the Ventjb. 
 General Observations. 
 
 137. Statutory provisions 662 
 
 138. General considerations • 664 
 
 (a.) Local actions as to real estate 665 
 
 (J.) Against pubho officers 666 
 
 (c.) Transitory actions 666 
 
XVlll CONTENTS. 
 
 Chaptee II. 
 
 Or THE Complaint. 
 
 § 139. Formal reqWaites. '^•*-™ 
 
 (a.) Name of court ^®^ 
 
 (J.) Designation of venue 
 
 (c.) Names of parties 
 
 (d.) Other questions. Variance 
 
 (e.) Otiier for^ties ^'^ 
 
 § 140. Joinder of causes of action ° 
 
 (a.) General bearing ° 
 
 Classification. 
 
 (5.) 1. Connected claims ^ 
 
 (c.) 2. Other subdivisions ^^^ 
 
 Restrictions on Joinder. 
 
 ((?.) 1. All must belong to one class 680 
 
 (e.) 2. AU parties must be affected by causes joined 6^1 
 
 (/.) 3. Separate places of trial 683 
 
 (g.) 4. Separate statements 683 
 
 § 141. Actions sounding in tort, generally considered 684 
 
 (o.) General considerations. 
 
 Jurisdiction > . . 684 
 
 (5.) Election 685 
 
 (c.) Relation of employer and employee 686 
 
 (d.) Attribution of negligence , 689 
 
 (e.) General remarks 693 
 
 § 142. Averments in tort. 
 
 "Wrongs to character or person, 
 
 (a.) Slander and libel 693 
 
 (6.) Slander, separately considered 694 
 
 (c.) Libel, separately considered 696 
 
 (d.) Seduction 699 
 
 (e.) Breach of promise of marriage TOO 
 
 (/.) Assault and Battery 701 
 
 (g.) False imprisonment 702 
 
 (h.) Malicious prosecution.. 704 
 
 (i.) Statutory action, for death by wrongful injury 705 
 
 (y.) Personal injuries 708 
 
 § 143. Averments in tort, continued. 
 
 {a.) Wrongs as to property. Injuries, wilful or negligent : 709 
 
 (6.) Breach of warranty 712 
 
 (c.) False representations 712 
 
 (d) Trespass de honis asportatit, or trover and conversion 7 14 
 
 § 144. Averments in tort, continued. 
 
 Breach of duty or contract. 
 
 (a.) Common carriers 721 
 
 (6.) Innkeepers '....' 727 
 
 PubUc and other officers. 
 
 (c.) Sheriffs 729 
 
 (d.) Constables 730 
 
 (e.) Assessors 731 
 
 (/.)' Sundry other responsibilities 731 
 
 (3.) Breach of contract 733 
 
 g 145. Replevin 738 
 
CONTENTS. XIX 
 
 / 
 
 PASB 
 
 § 146. Averments on express contract. Common law actions i 'i4 
 
 Bills, notes, and checks. 
 
 (a.) Averments under section 162 IH 
 
 (6.) Implications and presumptions ''48 
 
 (c.) Negotiable and non-negotiable paper 150 
 
 (d.) Decisions of general import "ISS 
 
 (e.) Bona fide holders ^ ''56 
 
 Liabilities of parties. Indorsement, guaranty, &c. ^ 
 
 (/) Indorser's liability '....'' ''66 
 
 (g.) Guarantor's liability. ''68 
 
 (h.) Discharge of liability ''10 
 
 (i.) Presentment and protest ''''2 
 
 (J.) Premium notes ''82 
 
 (k.) Averments, generally considered 186 
 
 (I.) Checks or drafts • 188 
 
 § 141. Express contract, continued. Common law actions 192 
 
 (a.) General observations 192 
 
 (J.) Bonds 198 
 
 (c.) Recognizances • 803 
 
 (d.) Undertakings 803 
 
 (e.) " on appeal 804 
 
 (/) " on arrest 806 
 
 (g.) " on replevin 806 
 
 (A.) " on injunction 801 
 
 (i.) " on attachment 807 
 
 Actions upon other specialties. 
 
 (j.) Awards 809 
 
 (k.) Special agreements 810 
 
 (I) Judgments 810 
 
 (m.) Policies of Insurance 810 
 
 («.) Eent 826 
 
 (o.) Guaranty 829 
 
 § 148. On implied promises 833 
 
 (a.) Assumpsit, or parol promise 833 
 
 (J.) Subscriptions 835 
 
 (c.) Shareholders and Trustees 839 
 
 (d.) Contribution and subrogation 842 
 
 § 149. Assumpsit, continued 844 
 
 (a.) General observations as to pleading 844 
 
 (b.) Balance of account. 846 
 
 (c.) Money lent or advanced 846 
 
 (d.) Money paid. 846 
 
 (e.) Money had and received 849 
 
 (/.) "Work and labor 852 
 
 (g.) 1. Work, labor, and materials 853 
 
 (A.) 2. "Work, labor, and services 866 
 
 (i.) Use and occupation 863 
 
 (j.) Freight 865 
 
 (k.) Goods sold and delivered 861 
 
 § 150. Actions in relation to real estate. 
 
 (a.) General remarks. Reference to statutory provisions 811 
 
 (i.) Ejectment 819 
 
 YOL. L— 
 
XX OONTENTS. 
 
 PAGE 
 
 (c.) Trespass on lands - 
 
 (d.) Slander of title 
 
 892 
 (e.) Determination of claims 
 
 (/.) Waste ^ * 
 
 (a.) Nuisance '. 
 
 899 
 § 151. Suits in equity, generally considered 
 
 §162. Suits in relation to contracts and iustnmieDts. 
 
 902 
 
 (a.) Notice of decisions 
 
 • 903 
 
 (6.) Specific performance or enforcement 
 
 (c.) Reformation and correction 
 
 (d.) Rescuiding or vacating 
 
 § 153. Enforcement of equitable liens 
 
 (a.) Creditors' biUs ^20 
 
 (J.) Other special Hens - ^^® 
 
 (c.) .Lien upon estate of feme covert. ^^^ 
 
 § 154. Foreclosure or redemption. 
 
 (a.) Foreclosure of mortgage ^'^ 
 
 (6.) Foreclosure of niechanios' lien ^3" 
 
 (c.) Redemption 9*1 
 
 § 155. Real estate. Equitable proceedings. 
 
 (a.) Greneral remarks 9*3 
 
 (6.) Partition. Statutory and other provisions 944 
 
 (c.) Partition, generally considered 946 
 
 (d.) Admeasurement of dower 949 
 
 § 166. Other suits in equity 950 
 
 (a.) Injunction 950 
 
 (6.) Interpleader 951 
 
 (e.) Suit for an accounting 952 
 
 (d) Divorce 954 
 
 (e.) " for nullity 954 
 
 (/) " for adultery 956 . 
 
 {g.) Separation 958 
 
 § 15';. Prayer for relief 959 
 
 § 158. (a.) Service and other formahties '. 962 
 
 (6.) Filing 963 
 
 (c.) Concluding observations 964 
 
INDEX TO CASES CITED. 
 
 (K. B, — The BErEBSNOES asjs to Sections.) 
 
 AVbe V. Clark, Itl. 
 Abbey v. Abbey, 315. 
 
 " V. Steamboat Robert L. Stevens, 8. 
 Abbott V. Aspinwall, 32, 148, 1 78. 
 
 " V. Hard Rubber Co., 99, 117, 148. 
 " V. Smith, 160, 163, 267. 
 Aberhall v. Roach, 327. 
 Abrahams v. Mitchell, 56, 166. 
 Academy of Music v. Hackett, 147, 176, 179, 
 
 180. 
 Accessory Transit Co. ii. Garrison, 78, 213, 
 
 235. 
 Accome v. American Mineral Co., 123, 124, 
 
 133, 140, 149, 172. 
 Acker v. Ledyard, 79. 
 
 " 222, 286. 
 Ackerman v. Ackerman, 30. 
 
 276, 279. 
 " V. Runyon, 35. 
 Ackley v. Dygert, 178. 
 " V. Tarbox, 34. 
 Ackroyd v. Ackroyd, 109, 110. 
 Adams v. Bissell, 32, 140, 
 " V. Bush, 245, 313. 
 " V. Davidson, 149, 153. 
 " V. Fort Plain Bank, 30, 32, 43, 219, 
 
 251. 
 " V. Green, 36, 152. 
 " V. Holley, 122, 123, 134, 135, 140, 
 
 149. 
 " V. Leland, 146, 228. 
 " V. Mayor of New York, 122, 147, 148, 
 
 149. 
 " V. Mills, 83, 85. 
 " V. Rivers, 24, 327. 
 " V. Sage, 15, 20, 74. 
 " V. Saratoga and 'Washington R. R. 
 
 Co., 150. 
 " V. SherrUl, 124, 146. 
 Admission of Graduates, Matter of, 30. 
 Adriance v. Mayor of New Tork, 37. 
 Adsit V. Wilson, 229, 232, 327. 
 Agawam Bank v. Strever, 146, 228. 
 Agate V. Richards, 178. 
 Agreda v. Faulberg, 23, 326, 327. 
 Ahoyke v. 'Wolcott, 202. 
 
 Aikin v. Albany, Vermont, and Canada R. R. 
 
 Co., 129, 130, 162. 
 Akely v. Akely, 332. 
 
 Akin V. Albany Northern R. R. Co., 39, 54, 
 129, 130, 273. 
 
 " V. Blanohard, 146. 
 Albany Northern R. R. Co. v. Cramer, 78. 
 Alburtis v. Dudley, 115, 338. 
 
 " V. MoCready, 327. 
 Alden v. Clark, 148, 278. 
 
 "' V. Sarson, 85, 285. 
 Alder v. Bloomingdale, 124, 146. 
 Aldrioh v. Ketchum, 23, 327. 
 
 " " 306, 307, 323, 324. 
 
 " V. Lapham, 154. 
 
 " V. Thiel, 265. 
 Alexander v. Green, 10. 
 Alfred v. Watkins, 32, 126, 181. 
 Alger V. Scoville, 140. 
 Allaben v. Wakeman, 128, 129, 131, 315. 
 Allaire v. Lee, 336, 337. 
 Allen V. Ackley, 167, 307. 
 
 " V. Allen, 38, 50, 56. 
 
 " " 51, 70, 78, 139, 161. 
 
 " V. Bates, 144. 
 
 " V. Compton, 128, 215, 223. 
 
 " V. Cook, 281. 
 
 " V. Cowan, 280. 
 
 " " 130, 280. 
 
 " V. Devlin, 236, 244. 
 
 " V. Fosgate, 32, 140, 146, 147, 181. 
 
 " V. Franklin Fire Ins. Co., 147, 207. 
 
 " V. Haskins, 177, 180. 
 
 " V. Hudson River Mutual Ins. Co., 147, 
 207. 
 
 " V. Johnson, 316. 
 
 " 1). McCrasBon, 85. 
 
 " V. Mayor of New York, 149. 
 
 " V. Patterson, 122, 123, 124, 135, 148, 
 149, 169. 
 
 " V. Scarff, 178 
 
 " V. Smillie, 48, 131. 
 
 " V. Smith, 32, 207. ' 
 
 " V. Stone, 23, 327. 
 
 " V. "Walter, 192. 
 
 " V. "Way, 234, 236, 244. 
 Alliaace Ins. Co. of Philadelphia v. Cleveland, 
 82. 
 
xxu 
 
 INDEX TO CASES CITED. 
 
 Alston V. Jones, 244. 
 Alt V. Weidenburg, 143. 
 Althause v. Ludlum, 154, 265. 
 
 " V. Radde, 6, 20, 35, 54, 58, 64, 165, 
 265. 
 
 " V. Rice, 160, 321. 
 Althof V. Wolf, 141, 142. 
 Alvord V. Beaoh, 267. 
 Ambler v. Ambler, 163. 
 
 " V. Owen, 144, 147. 
 Amburger v. Maroin, 149, 178. 
 American Exchange Bank v. Kin, 200. 
 
 " V. Smith, 26, 257. 
 
 " v. "Webb, 178. 
 Ames V. Lockwood, 284. 
 
 " V. New York Union Ins. Co., 147, 178. 
 Anderson v. Broad, 178. 
 
 " V. Busteed, 146, 207, 244. 
 
 " V. Hough, 217. 
 
 " V. Johnson, 204, 205, 339. 
 
 " V. Nicholas, 143. 
 
 " V. Rochester, Lockport, and Niagara 
 Falls R. R. Co., 99. 
 Andrews v. Astor Bank, 146. 
 
 " V. Bond, 121, 131, 176, 178. 
 
 " V. Chadbourne, 123, 124, 146, 178. 
 
 " V. Durant, 67, 254, 313. 
 
 " " 32, 143, 149, 153, 179. 
 
 " V. Murray, 144, 148. 
 
 " " 144, 148. 
 
 " V. Sohaffer, 157, 169. 
 
 " 1/. Shattuck, 143, 178. 
 
 " V. Storms, 126, 134, 181. 
 
 " V. Thorp, 23, 327. 
 
 " V. "Wallace, 13. 
 
 " V. Wallege, 13. 
 Andriot v. Lawrence, 3 k 
 Androvette J). Bowue, 76, 102. 
 Angel V. Solis, 207. 
 Angell V. Sillsbury, 118, 184. 
 Angus V. Dunscomb, 82. 
 Anibali). Hunter, 170, 177, 179, 186. 
 Anonymous, 34. 
 50. 
 50, 260. 
 
 " 54, 58. 
 
 56. 
 
 74, 240. 
 82. 
 
 82, 85. 
 82. 
 95. 126. 
 
 " 109. 
 
 " 123, 142, 179. 
 
 " 133. 
 
 " 156, 157. 
 
 " 172. 
 
 " 176. 
 
 " 179. 
 
 " 179. 
 
 " 180. 
 
 " 180. 
 
 " 197. 
 
 « 204, 229. 
 
 " 223, 225. 
 
 " 235, 236. 
 
 " 253, 257. 
 
 Anonymous, 255, 291. 
 
 " 267, 297. 
 
 " 278. 
 
 " 291. 
 
 " 290, 293, 301. 
 
 " 301. 
 
 " 308. 
 
 " 319. 
 
 " 336. 
 
 " 336. 
 
 " 337. 
 
 Anonymous v. Anonymous, 11, 13. 
 Anthony v. Smith, 221, 227, 242, 244. 
 Appleby v. Brown, 43, 245, 313, 315. 
 
 " V. Elkins, 146, 170, 172, 181, 217. 
 
 " V. Mayor of New York, 99. 
 Arborgast v. Arborgast, 208, 235. 
 Archer v. Boudenett, 176, 229. 
 
 " V. Cole, 333, 335. 
 Arctic Fire Ins. Co. v. Hicks, 71, 79, 288, 302. 
 Arkenburgh v. "Wood, 37, 99. 
 Armstrong v. Clark, 204. 
 
 " V. Craig, 327. 
 
 " V. Foote, 8. 
 
 " V. Hall, 140. 
 
 " V. McDonald, 208. 
 
 " V. Tufifts, 149. 
 ArndtD. "Williams, 99, 121, 180. 
 Arnold v. Dimon, 177. 
 
 " V. Downing, 43, 44. 
 
 " V. Reea, 18. 
 
 " 1,. Ringold, 34, 153, 165, 168. 
 
 " ■(/. Rock Riyer Talley Union R. R. Co., 
 146, 179. 
 
 " V. Suffolk Bank, 144, 149. 
 Arnoux v. Phelan, 338. 
 Arrangoiz v. Fraser, 133. 
 Arthur v. Brooks, 32, 122, 123, 170, 177, 186. 
 Arthurton v. Dalley, 82, 85, 178. 
 Artisans' Banki;. Treadwell, 117, 254, 280, 319. 
 Ash V. Cooke, 192. 
 Ashbahs v. Cousin, 163. 
 Ashley v. Marshall, 333, 334. 
 Askins v. Hearns, 16, 75, 83, 138, 180, 339. 
 Asseler v. Goulet, 280, 300. 
 Astor V. Lent, 147. 
 
 " V. L'Amoureux, 13, 313, 320. 
 Atlrins V. Stanton, ]47. 
 Atkinson v. ColUns, 148, 149. 
 Atlantic Fire and Marine Ins. Co. v. Boies, 146. 
 Atlantic Mutual Ins. Co. v. Bird, 149. 
 Attorney-General v. Mayor of New York, 232. 
 AtweU V. Le Boy, 50, 133, 135, 141, 161. 
 Atwood V. Norton, 32, 147. 
 Auburn and Cato Plank Road Co. v. Doug- 
 lass, 99. 
 
 Auburn City Bank v. Leonard, 99, 121, 169, 
 180. -111. 
 
 Auchinolosa v. Nott, 20, 137, 138, 152. 
 Audubon v. Excelsior Fire Ins. Co., 225. 
 Austen v. Burns, 146, 327. 
 
 " V. Chapman, 95, 96, 99, 117. 
 
 " V. Fuller, 207. 
 
 " V. Hinkley, 200. 
 
 " V. Lashar, 337. 
 
 " V. Searing, 32, 152. 
 
 " «. Tompkins, 43, 178. 
 
INDEX TO CASES CITED. 
 
 XXlll 
 
 Averill v. Loucka, 255. 
 
 " V. Patterson, 184, 18'?, 192. 
 
 " V. Taylor, 134. 
 154. 
 
 " V. "Wilson, 284. 
 Avery's Case, 43. 
 Avery v. Smith, 332. 
 Avogadro v. Bull, 32, 34, 140, 169, 327. 
 Aycinena, in re, 38. 
 Aylesworth v. Brown, 284. 
 Aymar v. Chase, 14, 188, 2eO. 
 
 " " 128, 181. 
 
 Ayraiilt v. Chamberlain, 30, 149. 
 
 131, 177, 221, 228. 
 
 " V. Sackett, 78, 235. 
 
 " V. McQueen, 146. 
 Ayres v. CoveU, 11, 13, 273, 311. 313. 
 
 " " 124, 142, 177, 179,186. 
 
 Azel V. Betz, 94, 145. 
 
 B. 
 
 Bahbott V. Thomas, 208. 
 Baboock v. Beman, 146, 179. 
 
 " v. Hill, 327. 
 Bache v. Lawrence, 109. 
 Back V. Crussel, 56, 166, 273. 
 Backus t). Fobes, 178. 
 
 " V. Stilwell, 155. 
 Bacon v. Oomstook, 131, 257, 260, 264. 
 
 " V. Cropsey, 28, 191, 278. 
 
 " V. Hickock, 146, 147. 
 
 " V. Holloway, 146. 
 
 " V. Reading, 273, 308, 316. 
 
 " V. Townsend, 142. 
 Badeau v. Mead, 42, 99. 
 Badger v. Benedict, 133, 140. 
 
 " V. "Wagstafif, 102. 
 Baggott V. Boulger, 32, 33, 147, 168, 171, 175, 
 
 178, 332. 
 Bagley v. Brown, 13, 30, 255, 272, 327, 328. 
 
 " V. Freeman, 32, 147. 
 
 " V. Peddie, 147. 
 
 " 0. Smith, 32, 222, 227. 
 
 " " 240, 307. 
 
 Bagner v. .Tones, 332. 
 Bailey v. Dean, 126, 150. 
 
 " V. Lane, 146, 178, 179, 181. 
 
 " V. Ryder, 122, 151, 152, 153. 
 
 " V. "Western Vermont R. R. Co., 144, 
 178. 
 Bain v. Globe Ins. Co., 84. 
 Baird v. "Walker, 43, 109, 149. 
 Baisted v. Dean, 30. 
 Baker «. Bailey, 142, 176. 
 
 " V. Bonestell, 178, 244. 
 
 " V. City of Utioa, 148. 
 
 " V. Curtis, 88. 
 
 " V. Curtiss, 158, 161. 
 Bakei- v. Dillraan, 147, 178. 
 
 " V. Higgins, 149, 178. 
 
 " V. Hoag, 180. 
 
 " V. Martin, 236. 
 
 " V. Morris, 146. 
 
 " V. Nussbaum, 182. 
 
 " V. Seeley, 131, 178. 
 
 " V. Simmons, 327. 
 
 Baker v. Swackhamer, 83, 86. 
 
 " V. "Williams, 142. 
 Balbiaai v. Grasheim, 204. 
 Balcom v. JuUen, 99. 
 
 " V. Woodruff, 129, 146. 
 Balding v. Anthony, 339. 
 Baldwin v. Brown, 42, 150, 178. 
 
 " -u. City of Brooklyn, 15, 75. 
 
 " V. City of Buffalo, 42, 99. 
 
 " V. MoArthur, 21. 
 
 " V. N". T. Life Ins. and Trust Co., 147. 
 
 " V. Palmer. 152. 
 Ball V. Larkin, 32, 143, 178. 
 
 " v. Mauder, 327. 
 
 " V. Miller, 153, 178. 
 
 " V. Syracuse and Utica R. R. Co., 240, 
 248. 
 Ballard v. Ballard, 87, 308. 
 
 " V. Fuller, 82, 85. 
 
 " V. "Webster, 146, 178. 
 Bandman v. Gamble, 327. 
 Bangs u. Duckinfield, 11, 146, 178. 
 
 " V. Gray, 118, 146. 
 
 " •.,. Mcintosh, 118, 122, 129, 146, 178. 
 
 " v. Palmer, 229, 244, 249, 313. 
 
 " ti. Mosher, 146. 
 
 " V. Seldeu, 14, 15, 16, 74, 75, 79, 200. 
 
 " V. Skidmore, 146. 
 Bank of Albion v. Smith, 146. 
 
 " Attica V. "Wolf, 273, 334. 
 
 " Auburn v. Waller, 207. 
 
 " Beloit?;. Beale, 140, 141, 178, 276, 285. 
 
 " British N. A. v. Suydam, 33, 38, 133, 
 140, 153. 
 
 " Charleston v. Emerio, 207, 2)4. 
 
 " Charleston v. Hurlbut, 213. 
 
 " Commerce v. Rutland and Washington 
 R. R. Co., 32, 54. 
 
 " Commerce v. Michel, 213. 
 
 " Genesee v. Patchin Bank, 121, 123, 
 146, 178. 
 
 " Genesee v. Spencer, 14, 15, 16, 74, 291, 
 292, 316. 
 
 " " " 278, 318, 319. 
 
 " Geneva v. Gulick, 146. 
 
 " Geneva v. Hotchkiss, 265, 307, 320. 
 
 " Geneva v. Reynolds, 88, 89, 315, 316. 
 
 " Havana v. Magee, 32, 132, 168, 169, 
 320. 
 
 " Havana u.Wickham. 32, 123, 139, 1 69. 
 
 " Kinderhook v. Jameson, 48. 
 
 " Lansingburgh v. McZie, 16, 79, 112, 
 207, 315. 
 
 " Louisville v. Ellery, 146, 313. 
 
 •■ LowviUe V. Edwards, 123, 124, 146, 
 169, 170, 172. 
 
 " Massillon v: Dwight, 253. 
 
 " North America v. Embury, 232. 
 
 " Poughkeepsie u. Hasbrouck, 178. 
 
 " Rome V. Tillage of Rome, 146, 173. 
 
 " State of Maine v. Buell, 126, 127, 257. 
 
 " Syracuse v. Hollister, 146. 
 
 " Toronto D. Hunter, 149, 180. 
 
 " Tergennes v. Cameron, 146. 
 
 " Waterville v. Beltser, 122, 123. 
 
 " WhitehaU v. Weed, 283, 286, 287. 
 
 " Wilmington v. Barms, 172, 181. 
 
XXIV 
 
 INDEX TO CASES CITED. 
 
 Banks v. Maher, 78, 192. 
 " -1). Potter, 300. 
 " 0. Taa Antwerp, 178. 
 Banta v. Maxwell, 267. 
 Bantea v. Brady, 234, 237. 
 Barber v. Arnoux, 327. 
 " V. Bennett, 76, 136. 
 " V. Case, 78, 197. 
 " V. Cromwell, 197. 
 " V. Crossett, 30, 332. 
 " V. Hubbard, 85, 134. 
 Barclay v. Clyde, 144. 
 
 Barculows i;. Protection Company of New Jer- 
 sey, 297. 
 Bard v. Poole, 38, 178. 
 Barger v. Durvin, 43. 
 Bargett v. Orient Mutual Ins. Co., 147. 
 Barhyte v. Hughes, 180. 
 Barker v. Barker, 181, 288. 
 
 " V. Bininger, 143, 178, 280, 286. 
 " V. Cassidy, 32, 43, 146, 149, 179. 
 " V. Coflin, 142. 
 " V. Crosby, 232, 241. 
 " V. Dillon, 85. 
 " V. Ga.tes, 284. 
 " V. Johnson, 291, 293, 300. 
 " V. Russell, 89, 134, 285. 
 " V. Wheeler, 85. 
 Barlow v. Cleveland, 178. 
 Barnard v. Wheeler, 200. 
 " V. Bruce, 263, 272. 
 " V. Monnot, 149. 
 Barnes v. Allen, 142, 179. 
 
 " V. Harris, 16, 18, 23, 54. 
 " V. McAllister, 99, 144. 
 " ». Perine, 129, 131, 148, 222. 
 " V. Roberts, 149, 240, 242, 245. 
 " V. Willett, 121, 133, 144, 179. 
 Barney v. GrifEn, 153. 
 Barnum v. Childs, 178. 
 
 " V. Seneca County Bank, 13, 313. 
 Barr v. Poole, 178. 
 Barrett v. Grade, 82, 85. 
 Barrick v. Austen, 132, 146, 222. 
 Barringer v. People, 319, 320. 
 Barron v. Sanford, 78, 85, 197. 
 
 " V. The People, 72. 
 Barry v. Bockover, 109. 
 
 " V. Ransom, 148, 152, 178. 
 " V. Whitney, 30. 
 Barsalou's Case, 178. 
 Barth v. Walther, 131, 149, 162, 236. 
 Bartholomew v. Fennemore, 35, 178. 
 Bartle v. Gilman, 332. 
 Bartlett v. Carnley, 111. 
 
 " V. Judd, 43, 180, 284, 313. 
 " " 43. 
 
 Bartley v. Richtmeyer, 142 
 Barto V. Himrod, 229, 247. 
 Barton v. Beer, 34, 146, 265. 
 " V. Draper, 34, 169, 150. 
 " V. GledhiU, 204, 208. 
 » V. Sackett, 176, 187, 191. 
 Bartow v. Cleveland, 335, 337. 
 Bass V, Bean, 34, 153. 
 Bate V. Fellows, 193. 
 
 " V. Graham, 131, 132, 313, 320. 
 
 Bates V. Cobb, 156, 178. , 
 
 " V. Jaiea, 28, 171, 222, 278, 283. 
 
 " V. New Orleans, Jackson and Great 
 Northern R. R. Co., 32, 64, 10», 
 
 " V. Rosekrans, 124, 178, 180. 
 " V. Stanton, 178, 179. 
 " V. Toorhies, 129, 178. 
 318, 319. 
 
 BattershaU v. Davis, 178. 
 
 .c " 76, 267, 339. 
 
 Battle V. Coit, 146. 
 
 " V. Rochester City Bank, loi. 
 Bauman ,;. New Tork Central R. ^■^°-<J^^- 
 Baxter v. Arnold, 60, 61, 69, 76, 159, 160. 
 " „. Gilbert, 280. 
 " V. Smack, 147. 
 Bayaud v. Fellows, 99, 117. 
 Beach !/. Barons, 32. 
 
 " V. Bay State Co., 33, 124, 141, 142. 
 " ,;. Burden, 231. 
 " -0. Bowery Fire Ins. Co., 147. 
 " u. Gallup, 146. 
 
 " V. Gregory, 192, 232, 241, 243, 304. 
 " II. Hungerford, 149, 178. 
 " V. McCann, 327. 
 
 " V. Raymond, 32, 149, 207, 236, 244. 
 " " 232, 237, 241. 
 
 " V. Smith, 148. 
 " V. Southworth, 83, 308, 316. 
 " V. Tooker, 43, 132, 246. 
 Beal V. Finch, 228. 
 Beale v. Hayes, 157, 169. 
 
 " V. Parrish, 146. 
 Beals V. Cameron, 187. 
 
 " V. Pinch, 207, 264. 
 " V. Peck, 146. 
 Bean v. Canning, 207, 222. 
 
 " V. Wells, 143. 
 Beard v. City of Brooklyn, 144. 
 Beardsley v. Diekerson, 163, 200. 
 " V. Ontario Bank, 280. 
 " V. Stover, 129, 131, 180. 
 Bearss v. Capley, 236, 319. 
 Beattie v. Larkin, 23. 
 
 " V. Qua, 263, 327. 
 Beatty v. Swarthout, 143, 176. 
 Beavers v. Lane, 145. 
 
 Beckc. Stephani, 40, 59, 128, 129, 156, 159, 193. 
 Becker v. Hagar, 103, 160. 
 " V. Lament, 68. 
 " V. People, 10, 304, 318. 
 " V. Tan Talkenburgh, 42. 
 Beokmann v. Bormann, 143. 
 Beckwith v. Griswold, 131, 150. 
 
 " V. Union Bank of New York, 180. 
 Bedell ». Commercial Mutual Ins. Co., 228, 
 241, 242, 313. 
 " V. McClellan, 99, 154. 
 " V. Powell, 14, 75, 79, 184. 
 
 131, 142, 184. 
 " V. Steokela, 133, 134, 312, 315. 
 " V. Sturta, 85. 
 Beebe v. Ayres, 142, 249. 
 
 " V. Dowd, 162, 178, 179. 
 I " V. Griffing, 319. 
 
INDEX TO CASES CITED. 
 
 XXV 
 
 Beebe v. Roberts, 149, 32T. 
 Beebee v. Griffing, 32, 155. 
 Beech v. Southworth, 308, 339. 
 Beecher v. Allen, 18. 
 " V. Conradt, 152. 
 " " 309, 320. 
 
 Beekman v. Cutter, 54. 
 " V. Kirk, 48, 153. 
 " V. Platner, 149, 
 Beekman Fire Ins. Co. v. First Meth. Episc. 
 
 Church, 261. 
 Beers v. Squire, 337. 
 Beirne v. Dord, 10, 221, 228. 
 
 " " 143, 149. 
 
 Beisegal v. New York Central R. R. Co., 141. 
 Belden v. Knowlton, 133, 178. 
 " " 332. 
 
 " V. New York and Harlem E. R. Co., 
 
 23, 138. 
 " V. Nicolay, 244, 327. 
 Belding v. Conkling, 333. 
 Belknap v. Hasbrouck, 278, 291, 293. 
 " V. Mclntyre, 180, 251. 
 " V. Seeley, 123, 132, 152, 222, 232, 313, 
 
 320. 
 " V. Waters, 48, 318. 
 BeE V. Birdsall, 267. 
 
 " V. Drew, 144, 207. 
 " v. Holford, 304, 306, 306. 
 " V. Leggett, 179. 
 " V. MoElwain, 10, 146. 
 " V. Mali, 32, 37, 38, 83, 85, 140, 143. 
 " V. Shibley, 118, 146, 229, 249. 
 " V. Yates, 43, 121, 122, 123, 146, 177, 
 178 1'79 
 Bellinger v. Craigue, 144, 176, 177, 178, 180. 
 " V. Ford, 23, 278, 327. 
 " " 192, 278. 
 
 " V. Gardner, 83. 
 " V. Martiadale, 76, 78, 244. 
 " V. New York Central R. R. Co., 160. 
 Bellony v. Alexander, 326. 
 Bellows V. Sackett, 24, 327. 
 Belmont v. Coleman, 146, 244. 
 " " 154, 265. 
 
 " " 178. 
 
 " V. Lane, 109. 
 " V. O'Brien, 42, 43, 
 " 0. Smith, 237. 
 Belshaw v. Colie, 324. 
 Beman v. Tugnot, 123. 
 Bement v. Wisner, 124, 133. 
 Bemis v. Bronson, 129, 137. 
 Bench v. Sheldon, 152. 
 Bender v. Sherwood, 40, 182. 
 Bendernagle v. Cocks, 147. 
 Benedict v. Gaffe, 146, 178. 
 
 " " 192, 240, 242. 332. 
 
 " V. Bake, 133, 134, 136. 
 
 " V. Field, 149, 178, 179. 
 
 " V. Harlow, 30. 
 
 " V. Howard, 143. 
 
 " V. New York and Harlem R. R. Co., 
 
 243. 
 " V. Seymour, 121, 133, 134, 140, 176, 
 
 177. 
 " " 266. 
 
 Benedict v. Stuart, 30. 
 " V. Tanner, 181. 
 
 " V. Warriner, 53, 68, 286, 287, 338. 
 Benham v. New York Central R. R. Co., 207. 
 Benjamin v. Saratoga Coimty Mutual Fire Ins. 
 
 Co., 147. 
 Bennett v. American Art Union Co., 99, 221, 
 222. 
 " V. Brown, 83. 
 " " 147. 
 
 " V. Ohapin, 118. 
 
 " V. City of Brooklyn, 312, 314, 315. 
 " V. Delliker, 160. 
 " V. Hall, 205. 
 " V. Hughes, 204, 206. 
 " V. Judson, 82, 123, 132, 143. 
 " V. he Roy, 20, 99, 180, 274, 288. 
 " V. Scutt, 229, 327: 
 " V. Smith, 32, 142. 
 " V. Van Syckel, 304, 313, 315, 320. 
 " V. 'Williamson. 142. 
 Benson v. Couohman, 124, 146. 
 " V. Cromwell, 18, 152. 
 " V. Fash, 102. 
 " V. Paine, 147, 178. 
 " V. Sayre, 60. 
 Bentley v. Columbia Ins. Co., 147. 
 
 " V. Columbus Ins. Co. of Philadelphia, 
 
 32. 
 " •</. Jones, 79, 251, 307. 
 " 122, 176, 189. 
 Benton v. Bugnall, 235, 336. 
 " V. Sheldon, 336, 338. 
 Berdell v. Johnson, 1 80. 
 Bergen v. Udall, 152. 
 Bergman v. Howell, 34, 127, 257, 273. 
 Berley v, Newton, 144. 
 
 " V. Rampacher, 34, 265. 
 Bernhard v. Brunner, 146. 
 Bernhardt v. Rensselaer and Saratoga R. R. 
 
 Co., 141, 228, 244. 
 Berrian v. Methodist Society in New York, 54,. 
 
 " V. Olmstead, 327. 
 Berrien v. "Wright, 44, 146, 178. 
 Berringer v. People, 320. 
 Berry, in re, 117, 280, 308. 
 " V. Brett, 180. 
 " V. Riley, 279. 
 " It. Wiesse, 34. 
 Besson v. Southard, 142, 228. 
 Betts V. Baohe, 123, 149. 
 
 " V. City of "WiUiamsburgh, 99. 
 " V. Garr, 278. 
 " V. Hoyt, 280. 
 Bidwell V. Astor Mutual Ins. Co., 43, 44, 140, 
 152, 157, 171, 178, 203, 207, 304, 320. 
 " v. Lament, 221, 222, 227, 228. 
 " V. North "Western Ins. Co., 32. 
 " V. "Weeks, 327. 
 Bieree v. Smith, 54, 69, 160, 273. 
 Bigelow V. Benton, 147. 
 " V. Fitch, 255, 284. 
 " V. Law, 149, 244. 
 " V. Mallory, 207, 213. 
 " V. Finch, 179, 284. 
 Bigler v. New York Central Ins. Co., 147. 
 Biglow V. Sanders, 327. 
 
XXVI 
 
 INDEX TO CASES CITEB. 
 
 Bilbrough v. Metropolitan Ins. Co., 147. 
 Biffings V. Baker, 34, 235, 236. 
 " 1/. Jane, 146. 
 " V. Vanderbeck, 147, 178, 244. 
 234, 236. 
 BUsborow v. Titus, 155. 
 Bingham v. Diabrow, 292, 293. 
 Binney v. Le Gal, 160, 164, 273. 
 BiroheU v. Strauss, 82. 
 Birokhead v. Brown, 178. 
 Birdseye v. Frost, 143, 327. 
 " V. Smith, 134, 140. 
 Birkbeok v. Stafford, 32, 115, 338. 
 Bisbey v. Shaw, 179. 
 Bishop V. Edmiston, 32, 36, 169. 
 " V. Hal^ey, 99, 117, 163. 
 " V. Houghton, 36, 37, 38, 121, 140. 
 " V. Main, 236. 
 " V. Morgan, 198, 215. 
 Bissell V. Bissell, 71. 
 " V. Hamhn, 207. 
 " " 241, 243. 
 
 " " 243, 244, 313. 
 
 " v. Michigan S. and N. Indiana R. R. 
 
 Co., 142, 144, 178. 
 " V. N. T. Central R. R. Co., 144. 
 150. 
 " V. Pearse, 180. 
 Bitting V. Vandenburgh, 14, 281, 292, 298. 
 Black V. Caffe, 146. 
 
 " V. Foster, 96, 222. 
 Black River and TJtica R. R. Co. v. Barnard, 
 
 148. 
 Blackie v. NielsOD, 162. 
 Blaekmar v. Van Inwager, 75, 79, 213. 
 Blacksmith v. Fellows, 32. 
 Blackstock v. N. T. and Brie R. R. Co., 141, 
 
 144. 
 Blflckwell V. Wiswall, 141. 
 Blair v. Olaxton, 177, 180. 
 Blaisdell v. Raymond, 126. 
 
 " " 134, 142. 
 
 " " 213. 
 
 Blake v. City of Brooklyn, 99. 
 
 " V. Eldred, 133, 134, 136, 176, 181, 186. 
 " V. Ferris, 141. 
 " V. James, 333. 
 
 " V. Locey, 15, 16, 18, 70, 76, 79, 292. 
 " V. Michigan S. and N. Indiana E. R. 
 Co., 195. 
 Blakeley v. Calder, 36, 155, 178, 265, 266. 
 Blakeman v. Mackay, 32, 143, 327. 
 Blanohard v. Strait, 50, 123, 126, 134, 135, 
 
 139, 339. 
 Blanco v. Foote, 32, 267. 
 Blankman v. Hilliker, 30. 
 Blatchford v. N. T. and New Haven R. R. 
 Co., 106. 
 
 " " 105. 
 
 Blason v. Bruno, 82, 83. 
 Blattmacher v. Saal, 142, 179. 
 Bleecker v. Carroll, 204, 205. 
 
 " V. Franklin, 149. 
 Bliss V. Cottle, 143. 
 Bliven v. Hudt-son River E. R. Co., 144. 
 
 " V. Bleakley, 178, 2.30, 286. 
 Block V. Haas, 207, 213. 
 
 Blodgett V. Conklin, 160 164, 273, 274. 
 
 " V. Morris, 207, 264. 
 Blood V. Humphrey, 34. 
 
 " V. Wilder, 69, 308. 
 Bloodgood V. Bruen, 43, 122. 
 
 " V. Ingoldsby, 149, 180. 
 Bloss V. Bloomer, 149. 
 Blossom V. Adams, 163. 
 
 " V, Champion, 145. 
 
 " v. Griffin, 144. 
 Blunt V. Whitney, 197. 
 Blydenburgh v. Borst, 181, 188. 
 
 " „. Cotheal, 306. 
 
 " „. Northrop, 38, 48, 154, 254, 255, 
 262, 267. 
 Blythe v. Tompkins, 142. 
 Board of Commissioners of Excise v. Purdy, 
 
 Board of Commissioners of Excise of Sarataga 
 
 Co. V. Doherty, 33. 
 Bodine v. Moore, 267, 284. 
 Bodle V. Chenango Co. Mutual Ins. Co., 32, 147. 
 Bogardus v. Livingston, 30, 78, 159, 160, 274. 
 30, 273, 327. 
 
 " V. Parker, 38, 140, 156, 174, 179, 180. 
 Bogardus v. Richtmeyer, 30, 66, 178, 331. 
 
 " 0. Rosendale Manufacturing Co., 320. 
 
 " " 32, 38. 
 
 Bogart V. O'Regan, 33. 
 Bogert V. Vermilyea, 43, 44, 122, 244. 
 
 " V. Coburn, 154. 
 Boington v. Lapham, 51, 76, 139. 
 Bokee v. Banks, 331, 336. 
 Bokee v. Hammersley, 99. 
 Boldt V. JSr. T. Central R. R. Co., 141. 
 Bollen V. Depeyster, 167, 315. 
 BoUes V. Walton, 146. 
 Bolton V. Brewster, 178. 
 Bonaffe, in re, 108. 
 
 Bonesteel v. Lynde, 201, 202, 204, 205, 235, 
 21 ft 
 
 " V. Mayor of K T., 149. 
 
 " V. Vauderbilt, 131, 132, 149. 
 Bonnell v. Henry, 48, 273. . 
 Bonner v. McPhail, 19, 129, 142, 197, 234, 236. 
 Eookhout, in re, 14, 77. 
 Booih V. Bunce, 280. 
 
 " V. Swezey, 178, 222. 
 Borrodaile v. Leek, 228. 
 Borrowe v. Millbank, 123, 147, 152, 168. 
 Borst V. Baldwin, 32, 178. 
 
 " " 32 
 
 " V. Corey, 43, 121. 
 
 " V. Spehnan, 236, 243, 319. 
 Bort V. Smith, 327. 
 Bortel V. Ostrander, 286, 293. 
 Bortle V. Miller, 237. 
 Bos V. Seaman, 32, 33. 
 Boscher v. Rouillier, 112. 
 Bossange v. Ross, 146. 
 
 " " 178. 
 
 Boston Locomotive Works v. Wright, 126. 
 Bostwiok V. Beizer, 117, 118, 300. 
 
 " V. Tioga R. R. Co., 337. 
 Boswell V. Hudson River R. R. Co., lil, 144 
 
 179. ' 
 
 " " 142. 
 
INDEX TO CASES CITED. 
 
 XXVll 
 
 Boiiohaud v. Dias, 320. • 
 
 Boucher v. Pia, 95, 163. 
 Boiighton V. Otis, Hi. 
 
 " V. Smith, 32, 99, 153, 118. 
 Boutel V. Owens, 48. 
 Bouton V. City of Brooklyn, 3"?, 99. 121. 
 BoutweU V. O'Keefe, 118, 180. 
 Bo-wdoiu V. Coleman, 32, 36, 131, 147, 171, 
 
 222, 264, 313. 
 Bowen v. Irish Presbyterian Congregation of 
 City of N. Y., 20, 152, 178, 193, 315, 319. 
 " V. N. Y. Central R. R. Co., 141. 
 " u. NeweU, 10, 20, 146. 
 Bowers v. Tallmadge, 38, 99, 169. 
 
 " " 320. 
 
 Bowery, in re, the, 5, 301. 
 Bowery Bank case, 118. 
 Bowie V. Brahe, 28, 286. 
 
 " " 42, 228. 
 
 Bowles V. Tan Hone, 198, 215. 
 Bowman v. Earle, 79, 131, 162, 307, 315. 
 " V. Eaton, 143. 
 " V. Sheldon, 30, 197. 
 " " 70, 76, 78, 134, 136, 166. 
 
 Boyce v. Bates, 163, 215, 289. 
 
 " V. Brown, 24, 122, 123, 168, 177. 
 " V. City of St. Louis, 178. 
 " V. Comstock, 197, 260. 
 Boyd V. Bigelow, 237, 313, 316, 332. 
 " V. Colt, 206, 207. 
 " o. Cumraings, 146. 
 " V. Foot, 180, 244. 
 " V. Wilkin, 332. 
 Boyden v. Johnson, 48. 
 Boyle V. Coleman, 244. 
 " V. Roche, 143. 
 Brabin v. Hyde, 178. 
 Bracket v. Wilkinson, 121, 123, 134, 187. 
 Brace v. Beatty, 337. 
 Bracy v. Kibbe, 142. 
 Braden v. Kaktiaiser, 334. 
 Bradford v. Greenwich Ins. Co., 147, 311, 336. 
 Bradley v. Angel, 180. 
 " V. Blair, 36, 140. 
 " V. Fay, 332. 
 
 " V. Van Zandt, 13, 306, 307, 308. 
 Bradner «.' Faulkner, 219. 
 Bradstreet-!f Bailey, 201, 202. 
 Brady v. Bissell. 83, 85. 
 
 " V. Durbrow, 23, 333, 337. 
 " V. Little Miami R. R. Co., 146. 
 " V. Mayor of N. Y., 147, 149. 
 " V. Sackrider, 149. 
 " V. Steamboat New Philadelphia, 149. 
 " V. Supervisors of Jf. Y., 32. 
 Bragg V. Bickford, 126. 
 Brahe v. Pythagoras Association, 20. 
 Brahms v. Joyce, 207. 
 Brainard v. Cooper, 38, 154. 
 
 " V. Jones, 32, 140, 147, 168, 169. 
 " " 147. 
 
 Braisted v. Johnson, 68, 74, 166, 257, 273. 
 Bramhall v. Ferris, 153. 
 Brandon v. McCann, 60. 
 Bray v. Andreas, 23, 327. 
 Brazill v. Isham, 122, 176, 177, 178. 
 Breasted v. Farmers' Loan and Trust Co., 147. 
 
 Breese v. Bange, 143, 280, 283, 284. 
 
 " V. Busby, 267. 
 Brehon v. Great Western R. R. Co.,41, 141, 228 
 Breidert v. Vincent, 170, 221, 222, 244, 327. 
 Brendell v. Buffalo and State Line R. R. Co., 
 
 141, 228. 
 Brennan v. Haff, 148. 
 Brett V. Buoknam, 201. 
 Brevoort v. Randolph, 154, 178. 
 
 " V. Warner, 201, 202, 204. 
 Brewer, in re, 30. 
 
 " V. Isish, 222, 237, 241, 313. 
 " V. Temple, 140, 142. 
 " V. Tucker, 110, 112. 
 Brewster v. Baker, 178. 
 " V. Brewster, 41. 
 " V. Hodges, 101, 105. 
 " V. Honingsburgher, 109. 
 " V. Michigan Central R. R. Co., 32, 54. 
 " V. Silence, 10, 32, 140, 146, 147. 
 " V. Striker, 150, 178. 
 " " 155. 
 
 Bridenbecker v. Lowell, 146. 
 
 " V. Mason, 30, 48, 164, 273. 
 Bridge v. Johnson, 10. 
 
 " V. Payson, 32, 38, 122, 175, 177, 180, 
 186, 188, 191, 221, 270. 
 Bridgeport City Bank v. Empire Stone Dress- 
 ing Co., 146, 178, 228. 
 Bridgeport Fire and Marine Ins. Co. v. Wil- 
 son, 334. 
 Bridges v. Hyatt, 207. 
 " " 207. 
 
 ■' V. Miller, 337. 
 Bridgewater Paint Manufacturing Co. v. Mess- 
 more, 85, 285. 
 Brien v. Casey, 58, 257. 
 Briggs V. Bergen, 181, 319. 
 " V. Briggs, 32, 180. 
 " V. Evans, 132, 149, 207, 327. 
 " V. Gaunt, 195. 
 " V. Maokellar, 218. 
 " V. Matsell, 218. 
 
 " V. New York Central R. R. Co., 144. 
 " V. Vanderbilt, 122, 144, 149. 
 " " 315. 
 
 " V. Wells, 244. 
 Brigham v. Bush, 281. 
 Bright V. Currie, 33, 134, 139, 172. 
 Brink V. Dolson, 149. 
 Brinkerhoff v. Alp, 147. 
 Brinsmade v. Hurst, 178. 
 Brinton v. Wood, 33, 99, 118. 
 Brisbane v. Peabody, 56. 
 Bristol V. Rensselaer and Saratoga R. R. Co , 
 
 122, 144. 
 Brittain -u. Peabody, 200. 
 Britton v. Hall, 179. 
 
 " V. Mayor of New York, 178. 
 Broadhead v. McConnell, 81. 
 Broadway Bank v. Danforth, 67, 76, 127. 
 Brookleman v. Brandt, 134, 142. 
 Brockway v. Burnap, 82, 94, 145, 235. 
 
 " V. Jewett, 75, 312, 331, 334, 336, 338. 
 " V. Stanton, 204, 213. 
 Broderick v. Boyle, 135, 154. 
 " V. PoiUon, 135, 154. 
 
XXVIU 
 
 INDEX TO OASES CITED. 
 
 Broderick v. Smith, 154. 
 Brodhead v. Broadhead, 166, 251. 
 Brokaw v, Bridgman, 213. 
 Bronner v. Frauenthal, 338. 
 Bronson v. Freeman, 163. 
 
 " V. Wiman, 22, 222, 229. 
 BrooklTii Central E. R. Co. v. Brooklyn City 
 E. E. Co., 99. 
 " " 99. 
 
 Brooklyn City and Newtown E. E. Co. v. Coney 
 
 Island and Brooklyn E. E. Co., 99. 
 Brookman v. Metoalf, 146, 180. 
 Brooks V. Buffalo and Niagara Falls E. E. Co., 
 141, 228. 
 " V. Christopher, 146, 179, 235, 236. 
 " V. Stone, 99, 153. 
 Broome v. Wellington, 68, 11. 
 Brophy v. Rodgers, 82. 
 Brouwer v. Appleby, 146, 118. 
 " V. Harbeck, 118. 
 " V. Hill, 146. 
 " V. Jones, 36, 156. 
 Brower v. Brig Water Witch, 32, 144. 
 " V. Mayor of New York, 31. 
 " V. Orser, 249, 313. 
 " V. Peabody, 144. 
 " V. Vandenburgh, 34. 
 Brown, in re, 28. 
 
 " v. Baboock, 129, 131. 
 
 " V. Birdsall, 32, 118. 
 
 " ,;. Bowen, 236, 334, 338. , 
 
 " V. Bradshaw, 191, 242. 
 
 " V. Briggs, 66, 166. 
 
 " V. Brown, 18, 24, 318, 329. 
 
 " " 21, 118. 
 
 " " 149, 236. 
 
 " V. Buckingham, 122, 180. 
 
 " V. Buffalo and State Line E. R. Co., 
 
 141, 142, 228. 
 " V. Cattaraugus County Mutual Ins. 
 
 Co., 141. 
 " V. Cayuga and Susquehanna E. E. 
 
 Co., 159, 222. 
 " V. Colie, 122, 123, 131, 116, 181, 235, 
 
 244, 313. 
 " V. Comstook, 30. 
 " V. Crooke, 146. 
 " V. Curtiss, 32, 146, 141. 
 " V. Gilmore, 111, 300. 
 " V. Harmon, 122, 123, 132, 142, 111, 
 
 229. 
 " V. Heacock, 241, 304, 313. 
 " V. Jennison, 181. 
 " -0. Jones, 141, 111, 321. 
 " D. McCune, 35, 131, 134, 118, 181, 
 
 222, 315. 
 " ■!/. Miller, 260. 
 " V. Mitchell, 121, 129, 161, 118. 
 " V. Montgomery, 119. 
 " V. Morgan, 149. 
 
 " ■•/. New York and Erie E. E. Co., 118. 
 " " " " 118. 
 
 " V. New York Central R. R. Co., 141, 
 
 228. 
 " V. Orvis, 119. 
 
 " V. Ritehardson, 124, 146, 201, 242, 244, 
 313. 
 
 Brown v. Eyokman 122, 123, 116. 
 
 " V. Safeguard Ins. Co. ot JNew xu 
 PennsylTania, 331. 
 
 " „. Saratoga R. R. Co., 309, 320. 
 
 " V. Smith, 138. ' 
 
 " «. Spear, 181, 188. „ -p p. -ton 
 
 " V. Southern Michigan E. E. Co., 13j. 
 
 " V. Stearns, 324. 
 
 " ,;. Tracy, 28. 
 
 " V. Ward, 146, 112. 
 
 " V. Wood, 61, 162. 
 
 " V. Woodworth, 150. 
 Browner. Bradley, 218. 
 
 '• V. Scofield, 24, 321. 
 Brownelli). Carnly, 28, 111, 280. 
 
 ^0=:. GTK'33,'34%6, 38, 169, 260, 
 
 265. 
 Bruce v. Delaware and Hudson Canal Co., 15, 
 
 19. 105. 
 
 99. 
 
 " V. Lord, 146. 
 " V. Pinckney, 251. 
 " V. Westcott,, 146. 
 " V. Westervelt, 94, 145, 228, 283. 
 Brunskill v. James, 132, 213, 264. 
 Brush V. Kohn, 241, 344, 246. 
 
 " V. Mullany, 14, 234, 260, 213. 
 " 0. MuUen, 32, 82. 
 Bryan v. Brennan, 191, 315. 
 
 " V. Butts,- 150. 
 Bryant v. Poughkeepsie Mutual Ins. Co., 141. 
 Buchanan v. Cheeseborough, 221, 229, 244, 
 249. 
 " V. O'Hara, 201. 
 " V. Morrell, 331. 
 Buck V. Burk, 146. 
 
 " V. Fox, 154, 284. 
 " V. Watorbury, 321. 
 Buokbee v. United States Insurance, Annuity, 
 
 and Trust Co., 141. 
 Buckhout V. Hunt, 332. 
 Buckingham v. Andrews, 208. 
 " V. Minor, 336. 
 " V. Oliver, 118. 
 Buckley v. Artcher, 145. 
 Bucklin v. Ford, 43, 44. 
 Buckman v. Carnley, 28, 66, 16, 84, 90, 144. 
 Bucknam v. Brett, 32, 36, 122, 140, 111, 192. 
 Budd V. Bingham, 123, 133, 140, 150, 161, 162, 
 
 111, 221. 
 Buddenberg v. Benner, 144. 
 Buddington v. Davis, 123, 142, 111, 119, 186. 
 Budge V. Northam, 200. 
 Buel V. Dewey, 184. 
 Buell V. Gay, 333, 336. 
 
 " V. Trustees of Lockport, 10, 118. 
 Buffalo and N. Y. City E. E. Co. v. Brainard, 222. 
 " " " V. Dudley, 148. 
 
 Buffalo, Corning and New York R. R. Co. v. 
 
 Pottle, 119. 
 Buffalo Savings Bank v. Newton, 319. 
 Buffalo Steam-Engine Works v. Sun Mutual 
 
 Ins. Co., 10, 141. 
 Bulen V. Burdell, 131. 
 Bulkeley v. Bulkeley, 54, 161, 213. 
 
 " V. Keteltas, 142, 222, 221, 228, 241. 
 
INDEX TO OASES CITED. 
 
 XXIX 
 
 Bulkeley v. Kelteltas, 255, 308, 336. 
 
 " V. Smith, 142, 228, 264, 335. 
 
 " " 228, 264. 
 
 " '' 334. 
 Bull V. Mellis, 82. 
 
 " " 78, 285. 
 
 " V. Miller, 43. 
 
 " 0. Sims, 146. 
 Bullard v. Tan Tassel, 30. 
 Bullwinkle v. Riker, 260. 
 Bump V. Van Orsdale, 207. 
 Bumstead v. Dividend Mutual Ins. Co, 147, 
 222. 
 
 " V. Read, 4. 
 Bunce v. Reid, 58, 71. 
 Bundy v. Birdsall, 32. 
 Bunker v. Latson, 327. 
 Biinn V. Fonda, 300. 
 Bunten v. Orient Mutual Ins. Co., 244. 
 Burbank v. Beach, 33, 146. 
 Burch V. Newbury, 307. 
 Burckhardt v. Sanford, 56, 273, 280, 284. 
 Burckle v. Eckhart, 32, 169. 
 
 " u. Luoe, 192,, 
 
 " " 320 322 
 
 Burdell v. Burdell, 210. 
 Burdiok v. Post, 178. 
 Burgart v. Stark, 19, 207, 222. 
 Burger v. Baker, 217, 223, 224, 225, 232, 273, 
 SIS, 
 
 " V. White, 34, 221, 280, 315. 
 Burgess v. Stitt, 50, 70, 109, 110. 
 Burget V. Bissell, 121, 123, 134. 
 Burgher v. Columbian lus. Co. of Philadelphia, 
 
 132, 147. 
 Burhaus v. Casey, 82, 182. 
 
 " V. Tibbits, 229, 246, 315, 333, 334. 
 
 " V. Tan Zandt, 42, 178, 236. 
 
 " " 236. 
 
 Burke v Nichols, 180. 
 Burkle v. Ells, 82, 285. 
 Burling v. Ogden, 207, 213. 
 Buriingame v. Bobbins, 153. 
 Burnap v. HaUoran, 129. , 
 Burnet v. Kelly, 333. 
 Burnett v Harkness, 311, 312, 320, 336. 
 
 " V. Phalou, 106. 
 
 " ■ 205, 210, 213, 222. 
 
 " " 245. 
 
 " V. 'Westfall, 164, 331, 333, 334, 336, 
 337, 338. 
 Burnham v. De Bevoise, 78, 171, 198, 215, 
 
 231. 
 Burns v. Nevins, 180. 
 
 " V. Provincial Ins. Co., 109, 147. 
 
 " V. Robbins, 76, 87, 95, 96. 
 Bumside v. Brown, 339. 
 
 " V. "Whitney, 11. 
 
 " " 147. 
 
 Burr V. Broadway Ins. Co., 147. 
 
 " V. Smith, 178, 179. 
 
 " V. Wilcox, 148. 
 
 " V. Wright, 170, 186. 
 Burrall v. Bo wen, 178, 181. 
 
 " V. De Groot, 146, 178, 179, 180, 187. 
 
 " V. Moore, 128, 181. 
 
 " n. Tanderbilt, 147, 256, 308. 
 
 Burritt V. Burrltt, 156. 
 
 " V. SiUiman, 207. 
 Burroughs v. Ruger, 60, 260, 267. 
 Burrowes t. Miller, 109. 
 
 " " 169. 
 
 Burt V. Dewey, 143. 
 
 " V. Farrer, 148. 
 
 " v. Powia, 13. 
 Burtnett v. Gwynne, 32, 207, 327. 
 Burton v. Baker, 146. 
 
 " V. Strachan, 149. 
 Burwell v. Jackson, 152, 179. 
 Bush V. Dennison, 323, 324. 
 
 " V. Pettibone, 92, 285. 
 
 " V. Pressor, 134, 179, 186. 
 
 " V. White, 298. 
 Bushnell v. BushneU, 81. 
 Bussing V. Thompson, 82. 
 Butchers' and Drovers' Bank of Providence v. 
 
 Jacobsou, 336. 
 Butler V. Galletti, 99. 
 
 " V. Hudson River R. R. Co., 144. 
 
 " V. Lee 213. 
 
 " V. Mason, 23, 123, 134, 178. 
 
 " V. Miller, 318. 
 
 " V. Morris, 32, 35, 184, 221, 264, 
 334. 
 
 " V. New York and Erie R. R. Co., 32, 
 207. 
 
 " V. Patterson, 207. 
 
 ''» V. Wentworth, 123, 179. 
 
 " V. Wood, 163, 169. 
 Butterfleld v. Macomber, 33, 181. 
 Buttershall v. Davis, 148. 
 Butterworth v. Pox, 180. 
 
 " V. Kennedy, 146. 
 
 " V. O'Brien, 149, 178. 
 
 " V. Peck, 146. 
 
 " V. Warth, 245. 
 Button w. Hudson River R. R Co., 131, 244, 
 
 289. 
 Butts V. Dickinson, 255, 291. 
 Buzard «. Gross, 81, 289. 
 Buzzard v. Knapp, 122, 142. 
 Byass v. Smith, 206. 
 
 " V. Sullivan, 221. 
 Byron v. The New York State Printing Tele- 
 graph Co., 141. 
 
 C. 
 
 Cabre v. Sturges, 32, 324, 325, 327. 
 Cady V. Allen, 132, 236, 313. 
 
 " " 236, 243, 319, 320. 
 
 " ,). Conger, 37. 
 
 " V. Edmonds, 85. 
 Cahoon v. Bank of ITtica, 140. 
 
 " " 157. 
 
 Cailleux v. Hall, 146, 148. 
 Caldwell's Case, 75, 76, 285. 
 Caldwell v. Bartlett, 143. 
 
 " V. Murphy, 222. 
 
 " V. Raymond, 142. 
 Calkins v. Brand, 332. 
 
 " V. Isbell, 42, 43, 123, 319, 335. 
 
 " V. Packer, 177, 178, 207, 254, 299. 
 Calligan v. Mix, 312, 324, 327. 
 
XXX 
 
 INDEX TO CASES CITED. 
 
 Camden Bank v. Rodgers, 32, 1Y2. 
 Cameron v. Freeman, J 97, 234. 
 
 " V. Young, 46, 278. 
 Camman v. Tompkins, 109, 110, 112. 
 Camp V. Pulver, 236. 
 " V. Stewart, 327. 
 " V. Tibbetts, 85. 
 Campbell, in re, 118. 
 " V. Butler, 20. 
 " V. Butts, 178. 
 " V. Bwalt, 142. 
 
 " V. Foster, 153, 291, 293, 298, 300. 
 " V. Genet, 180, 245, 300. 
 " V. Hall, 178. 
 
 " V. International Life Assurance So- 
 ciety of London, 71, 147, 178. 
 " V. Perkins, 50, 121, 178. 
 " V. Proprietors of Champlain and St. 
 
 Lawrence R. R., 11, 56, 108. 
 " -0. Shields, 99, 150, 179. 
 " V. Wright, 50, 51, 134. 
 Canal Bank v. Harris, 14, 75. 
 Canal and Walker streets, matter of, 315, 318, 
 
 320. 
 Candee v. Gundelsheimer, 255, 291. 
 " V. Lord, 319. 
 " V. Ogilvie, 336. 
 Canfieldj). Ford, 38, 155. 
 
 " V. Northern R. R. Co., 149. 
 Cannan v. Molnrow, 164. 
 Cannon v. Tan Wagner, 207. • 
 
 Cantwell v. Dubuque and Western R. R. Co., 
 
 20, 32, 56, 108. 
 Capet V. Parker, 99, 104. 
 Capewell v. Ormsby, 324. 
 Cardell v. McNiel, 146, 147, 178. 
 Cardwell v. Hicks, 146. 
 Garland v. Day, 222, 228. 
 Carley v. Wilkin s, 171. 
 Carlisle v. McCall, 178. 
 Carll V. Hart, 43. 
 Carman v. Plass, 32, 147. 
 
 " V. Pultz, 152, 178, 304. 
 Camrick v. Myers, 28, 283, 284. 
 Carolus v. Mayor of New York, 141. 
 Carpenter v. Carpeuter, 319. 
 " V. Dennis, 142. 
 " u. Doody, 147. 
 " u. Gwynn, 178. 
 " V. Haynes, 319. 
 
 " V. New York and New Haven R. R 
 Co., 99, 105. 
 
 " 112, 159, 160. 
 " V. Roe, 153. 
 " V. Sheldon, 207, 223, 246. 
 " v. Smith, 221, 228. 
 " V. Spooner, 20, 54. 
 " V. StQwell, 28, 178, 227, 284, 288. 
 " " 121, 149, 150. 
 
 '• V. Sweet, 207. 
 " V. Taylor, 144. 
 " V. Wells, 44. 
 " V. West, 121, 134, 136. 
 " V. Willett, 23, 28, 144, 179, 286. 
 " V. Wright, 106, 147. 
 Can- ». Lewis, 146. 
 Carrington v. Andrews, 21, 327. 
 
 Carrington v. Commercial Fire and Marine Ins. 
 
 Co. of Jersey City, 147. 
 Carroll v. Carroll, 43, 44, 168. 
 " V. Finlay, 111. 
 " V. Goslin, 58, 327. 
 " V. Shields, 146. 
 " V. White, 142. 
 Carshore v. Huyck, 43. 
 Carson v. Ingalls, 178. 
 CarsweU v. Neville, 39, 56, 113, 275. 
 Carter v. Dallimore, 327. 
 " V. Hammett, 147. 
 " V. Hope, 132. 
 " V. Koezeley, 122, 177. 
 Carver v. Lane, 149. 
 Carwithe v. GrifBng, 152. 
 Gary v. Cleveland and Toledo R. R. Co., 144. 
 
 " V. WilUams, 82, 1 17. 
 Caryl v. McElrath, 146. 
 " V. Russell, 178. 
 Case V. Price, 38, 253, 336, 338. 
 Casey v. Brabason, 146. 
 Cashman v. Bean, 140, 178. 
 Cashmere v. CroweU, 20. 
 
 " V. De Wolf, 20. 
 Casler v. Connecticut Mutual Life Ins. Co., 147. 
 Cass V. New York and New Haven R. R. Co., 
 
 32, 143, 144. 
 Cassard v. Hinman, 147, 149, 178. 
 " " 144, 178, 244. 
 
 " " 201, 202. 
 
 Castanos v. Ritter, 244. 
 Castellanos v. Beauville, 334. 
 
 " V. Jones, 163. 
 Castle V. Duryea, 141, 221, 222, 242. 
 
 " V. Noyes, 178. 
 Castles V. Woodhouse, 179. 
 Gastree v. GaveUe, 171, 177, 244, 327. 
 Caswell V. Bushnell, 176, 181. 
 Catlin V. BiUings, 254, 257, 315, 319, 3S3. 
 " V. Cole, 243, 320. 
 " V. Doughty, 45, 153, 291. 
 " V. Grote, 149, 178, 229. 
 " V. Gunter, 122, 129, 131, 132, 176, 178. 
 " V. Hansen, 122, 131, 132, 146, 207, 244. 
 " V. MoGroarty, 181. 
 Catou V. Southwell, 293, 298, 300. 
 CatskUl Bank v. Sanford, 278. 
 Cavanagh, Matter of, 155, 266. 
 Cayuga County Bank v. Warden, 131, 146. 
 
 " V. Warfield, 16, 74, 79, 85. 
 Cazeaux v. Mali, 32, 36, 37, 38, 143. 
 Cazneaux v. Bryant, 78, 260 
 Cemetery Board of Town of Hyde Park v. 
 Teller, 60, 51. 
 
 ^T« ^47°'' "■ ^"^"^'^^ ^'°''^ Dressing Co., 
 
 Central Bank of Brooklyn D.Lang 146 
 Central City Bank v. Dana, 178 
 Central Park case, 263. 
 Chadwick v. Booth, 146, 176 ' 
 
 ry, ff "" ^™*l^er, 66, 332, 339. 
 
 Ca! u\ 228."'"^"' ^°"°*y ^"*"^1 I"^- 
 Chaffie V. Cox, 180, 218 
 Chaime v. Wilson, 109.' 
 Chalmers v. Melville, 210 218. 
 
INDEX TO OASES CITED. 
 
 XXXI 
 
 Chamberlaiu v. Barnes, 152, 154. 
 " v. BeUer, 111, 147. 
 " V. Dempsey, 118. 
 
 " " 58, Tl, 118, 232, 267, 308, 313. 
 
 " V. Hamilton, 2U4. 
 " V. Caylor, 149. 
 " u. People, 208. 
 " V. O'Connor, 40. 
 " V. Townsend, 146, 118, 236. 
 Chambers v. Lewis, 51, 141, 180. 
 Champlain and St. Lawrence E. R. Co. v. "Val- 
 entine, 38, 42, 150. 
 Champney v. Coope, 178. 
 Chancel v. Barclay, 221, 244. 
 Chandler v. Northrop, 45. 
 Chapin v. Churchill, 21, 26, 47, 253, 327, 328. 
 " V. Potter, 149, 178, 228. 
 " v. Seeley, 82, 85. 
 Chapman v. Carolin, 131, 132. 
 " V. Poster, 192, 193, 198. 
 " V. PuUer, 280. 
 " V. Kent, 143. 
 
 " V. Lemmon, 34, 56, 261, 265, 336, 338. 
 " V. New Haven E. R. Co., 141. 
 " V. New York Central R. R. Co., 141. 
 " V. Palmer, 176, 181. 
 " V. "Webb, 128, 129. 
 " V. "West, 38, 60, 152, 169. 
 " ». "White, 146. 
 Cha^pel V. Potter, 99, 102, 105. 
 " V. Skinner, 82, 94, 145. 
 Chappell V. Bissell, 146. 
 " V. Chappell, 48. 
 " V. Dann, 30, 284. 
 " V. Spencer, 132, 146. 
 Charlick v. Plashing B. B. Co., 201, 202. 
 Chase v. County of Saratoga, 32, 178. 
 " V. Hamilton Mutual Ins. Co., 147. 
 " V. Hogan, 152. 
 " V. Peck, 164, 180. 
 Chatauque County Bank v. Risley, 38, 117, 118, 
 284, 300. 
 " V. "White, 117, 118, 153. 
 " " 244, 320. 
 
 Chatham Bank v. "Van Techten, 61, 127. 
 Cheeney v. Arnold, 178, 221, 244. 
 Cheesbrough v. Agate, 237, 241, 313. 
 Cheeseborough v. House, 34, 157, 194, 265. 
 
 » .;. Taylor, 144, 227. 
 Cheesebrough v. New York and Erie R. R. 
 
 Co., 123, 133, 134, 135, 149. 
 Cheesemanv. Sturges, 152. 
 Chegaray v. Mayor of New York, 118. 
 Chemical Bank v. Mayor of New York, 99. 
 Chemung Canal Bank v. Judson, 8, 10, 178. 
 
 " " " 66, 67, 308. 
 
 Cheney «. Pisk, 124, 133, 134, 161, 169. 
 
 " V. Garbutt, 85, 134, 285. 
 Chester v. Bank of Kingston, 148. 
 Chichester v. Livingston, 162, 204. 
 Child 1). Chappell, 150, 118. 
 Childs V. Barnum, 118. 
 " V. Geraghty, 301. 
 " V. Hart, 145. 
 Chilton V. Butler, 149. 
 
 Chittenden v. Empire Stone Dressing Co., 249, 
 " V. Missionary Society, Ac, 319. 
 
 Christie v. Bloomingdate, 244. 
 Christopher v. Austin, 149, 119, 318, 319 
 " II. Garr, 44. 
 
 " V. Mayor of New York, 37. 
 Chubbuek v. Morrison, 16, 14. 
 Church V. Brown, 10, 147, 178. 
 " V. Brben, 14, 236. 
 " V. Preeman, 194. 
 " V. Rhodes, 237, 274, 307. 
 Churchill v. Bennett, 99, 102, 105, 117, 176. 
 " V. Churchill, 122, 134, 149. 
 " T,. MaUison, 315. 
 " 1). Marsh, 327. 
 " V. Trapp, 169. 
 Citizens' Mutual Loan Association v. "Webster, 
 
 154, 178. 
 Cit^ Bank of Brooklyn v. Dearborn, 146, 244. 
 
 " V. McChesney, 146, 229. 
 City Bank of Columbus v. Bruce, 201. 
 City Bank of New Haven v. Perkins, 118. 
 City of Buflfalo v. Holloway, 122. 
 City of Oswego v. Oswego Canal Co., 150. 
 City Savings Bank v. BidweU, 118. 
 Claflin V. Butterly, 264. 
 " V. Prank, 82, 85. 
 " -0. Banger, 48. 
 Clapp V. Graves, 329. 
 " " 329. 
 
 " V. Hudson River R. R.'Co., 244. 
 " V. Rogers, 149. 
 Clappeibi'. Pitzpatrick, 126. 
 Clark, in re, 26. 
 
 " V. Andrews,. 231. 
 
 " V. Atkinson, 178, 207. 
 
 " V. Baird, 42, 143,- 118. 
 
 " V. Carnly, 280. 
 
 " V. Clark, 34. 
 
 " " 35, 64, 266. 
 
 " " . 156. 
 
 " V. CrandaU, 244. 
 
 " V. Date, 131, 132, 147, 149, 152, 232, 
 
 313. 
 " V. Dearborn, 146, 229, 249. 
 " V. Downing, 32, 178. 
 " V. Eighth Avenue E. R. Co., 141, 228. 
 " V. Parley, 122, 123, 135, 149. 
 " </. GaUagher, 146. 
 " V. Gilbert, 149. 
 " V. Harwood, 121, 122, 134. 
 " V. Hutchinson, 278. 
 " V. Judson, 15. 
 " V. Kirwan, 141. 
 " V. Law, 105. 
 " 0. Loomis, 146, 178. 
 " V. Lyon, 224, 225, 214. 
 " V. Masters, 149. 
 " V. Montgomery, 141. 
 " V. Phillips, 32. 
 " V. Richards, 30, 244. 
 " V. Rowhng, 82. 
 " V. Sisson, 146, 118. 
 " V. Story, 45, 180. 
 " V. Thorp, 147. 
 " v. Tan Deusen, 168, 110, 186. 
 " V. Van Trancken, 321. 
 Clarke v. City of Rochester, 11. 
 " V. Orandall, 141, 152. 
 
xxxu 
 
 INDEX TO OASES CITED. 
 
 Clarke v. Hughea, 42, 122, 179. 
 
 " 11. Meigs, 144. 
 
 " 0. Miller, 279, 584. 
 
 " V. Richardson, 147. 
 
 " V. Rochester and Syracuse R. R. Co., 
 144. 
 
 " D. Rochester, Lockport, and Niagara 
 Falls R. R. Co., 144, 152. 
 
 " u. Ward, 146, 242, 245, 315. 
 Clarks v. Staring, 338. 
 Clarkson v. Mitchell, 170. 
 Clason V. Corley, 20, 267, 272. 
 Clayton v. Tarrington, 242, 244. 
 Cleaveland v. Boerum, 32, 38, 39, 154, 265, 
 
 267. 
 Clement v. Adams, 207. 
 
 " V. Cash, 147. 
 Clements v. Gerow, 48. 
 
 " V. Tillage of West Troy, 42, 150. 
 Clondaniel v. Tuckerman, 144. 
 Clerk of Albany County, in re, 338. 
 Cleu V. McPherson, 149. 
 Cleveland v. Burrill, 151, 152. 
 
 " V. Porter, 54, 270, 274. 
 Clickman v. Clickraan, 70, 76, 304, 320. 
 Clinton v. Rowland, 149. 
 Clor j;. Mallory, 50, 128. 
 Close V. Van Husen, 55. 
 Clumpha v. Whiting, 78, 273, 304, 
 CluBsman V. Merkel, 30, 149, 225,. 235, 274. 
 Clute V. Varis, 150. 
 Clyde and Rose Plank Road Company v. Baker, 
 
 18, 24, 131, 244, 254, 312. 
 Coan v. Osgood, 122, 131, 132. 
 Coates, in re, 108, 178. 
 
 " V. Coates, 106. 
 Cobb V. Cornish, 13, 229, 244, 249, 313, 320. 
 
 " V. DowB, 140. 
 " 149. 
 
 " 0. Dunkin, 13, 50, 273. 
 
 " •</. Frazee, 168, 170, 186. 
 
 " V. Harmon, 147. 
 
 " V. Lackey, 68, 69, 95, 308. 
 
 " " 74, 75, 78. 
 
 " V. Thornton, 265, 278. 
 
 " V. Titus, 146, 178. 
 
 " V. West, 132. 
 Cobine v. St. John, 11, 23, 34, 121, 151, 153, 
 
 265. 
 Ooburn v. Baker, 146. 
 Cochran v. Sherman, 32, 146. 
 
 " V. Webb, 179, 180. 
 Cockle V. Underwood, 184, 204. 
 Cocks V. Radford, 129. 
 Codd v. Rathbone, 32, 178, 313, 320. 
 Coddmgton v. Carnley, 43, 44, 229. 
 
 " V. Coddington, 156. 
 
 " V. Davis, 146. 
 
 " V. Gilbert, 111, 280. 
 
 " V. Webb, 103, 288. 
 Coe V. Beckwith, 37, 118, 168, 169. 
 
 " v. Coe, 235, 313. 
 Coggill V. American Exchange Bank, 146. 
 Coggins V. BuUwinkle, 140, 147, 178. 
 Cohen v. Dupont, 179. 
 Coit V. Beard, 178, 232. 
 
 " V. Coit, 34, 64, 121, 123. 
 
 Coit V. Laimbeer, 76. 
 Colbum V. Woodworth, 149. 
 Colby V. Osgood, 32. 
 
 " J). Rowley, 267. 
 Cole V. Blunt, 147, 171, 206, 304, 313. 
 
 " V. Jessup, 20, 44, 123, 146. 
 
 " V. Reynolds, 32, 121, 263. 
 
 " V. Stevens, 281, 327. 
 
 " V. Trustees of Village of Medina, 144. 
 Colegrove v. Harlem and New Haven R. R. 
 
 Co., 32, 38, 141, 169, 171, 221, 222, 244. 
 Coleman v. Bean, 147, 178. 
 
 " V. Garrigues, 152. 
 
 " V. Wade, 146, 147, 178. 
 Colgrove v. Talhnadge, 38, 244. 
 Colie V. Brown, 243, 319, 320. 
 Coller V. Shepard, 143. 
 Collier v. Coates, 149, 178. 
 Collins V. Albany and Schenectady R. R. Co., 
 244. 
 
 " V. Brooks, 149. 
 
 " V. Campfield, 55, 273. 
 
 " V. Knapp, 207. 
 
 " V. Ryan, 55, 178, 273, 293. 
 
 " V. Standish, 253. 
 CoUomb v. Caldwell, 253, 334, 336. 
 Colt V. Wheeler, 163, 273. 
 Columbus Ins. Co. v. Force, 28, 58, 84, 85, 
 
 166, 315. 
 Colvin V. Baker, 284. 
 
 " V. Bragden, 160, 161. 
 
 " V. Currier, 34. 
 ColweU V. N. T. and Erie R. R. Co., 140. 
 Coman v. Reese, 82. 
 Combs V. Batsman, 32, 207. 
 Comfort V. Kiersted, 143, 149. 
 Commercial Bank v'. White, 265. 
 
 " " of Albany v. Dunham, 201, 
 
 204. 
 
 " " of Buffalo V. Warden, 146. 
 
 " ''of Pennsylvania v. Union 
 
 Bank of N. T., 213. 
 Commissioners of Excise v. HoUister, 225, 274. 
 
 " " of Albany Co. v. Clas- 
 
 sen, 50. 
 
 " " " 1). Keller, 34. 
 
 " " of Saratoga Co. •«. Do- 
 
 herty, 21, 33. 
 Commissioners of Gaines v. Albion Plank 
 
 Road Co., 318. 
 Commissioners of Highways v. Albany North- 
 ern R. R. Co., 99. 
 Commonwealth of Kentucky v. Bassford, 147. 
 Compton V. Green, 169, 180. 
 Comstook V. Bayard, 263, 264, 334. 
 
 " V. Doe, 207. 
 
 " V. Halleck, 188. 
 
 " " 333, 336. 
 
 " V. Olmstead, 234, 332 
 
 " V. White, 99. 
 „ " " 129, 152. 
 
 Conamt v. Van Schaick, 148. 
 Conde v. Shepard, 34, 38, 172. 
 Condit V. Baldwin, 32, 178. 
 Conger v. Hudson River R. R. Co., 144, 244, 
 " ** 332 
 
 " V. Rmg, 267. 
 
INDEX TO CASES CITED, 
 
 XXXIU 
 
 Conger v. Sands, 293, 300. 
 
 " V. "Weaver, 228. 
 Congreve v. Morgan, 141. 
 
 " " 229. 
 
 Conkey v. Bond, 152. 
 
 " V. Hart, 280. 
 Couklin V. Bishop, 38, 39. 
 
 " V. Dutoher, 16, 69, '79, 83, 109, 110, 
 112, 308, 315. 
 
 " V. Stamler, 204, 207. 
 
 " V. Vandervoort, 181. 
 
 " V. Wood, 126. 
 Conkling v. King, 118. 
 
 " V. Thompson, 35, 143, 229. 
 Conlan v. Latting, 179, 244. 
 Connecticut Bank v. Smith, 122, 123, 146, 110. 
 Connecticut River Banking Co. v. Voorhies, 
 
 337. 
 Connecticut Mutual Life Assurance Co. v. 
 Cleveland, Columbus, and Cincinnati E. 
 R. Co., 109. 
 Connolly v. Connolly, 241. 
 Connoss v. Mier, 134, 176, 179, 191. 
 Conover v. Devlin, in re, 74. 
 
 " V. "Wood, 103, 104, 288. 
 Conrad v. Trustees of Tillage of Ithaca, 141. 
 Conro V. Fort Henry Iron Co., 32, 36, 37, 38, 
 146, 153, 207. 
 
 " V. Gray, 117, 118. 
 Conroe v. National Protection Ins. Co., 138, 163. 
 Considerant v. Brisbane, 32, 146. 
 
 " " 33. 
 
 " " 146, 147, 152. 
 
 " " 336. 
 
 Conway v. Hitchins, 16, 255, 260, 291, 293, 
 
 315, 323. 
 Cook V. Adams, 145. 
 
 " V. Chase, 20, 169, 170. 
 
 " V. Dickerson, 67, 102. 
 
 " " 254, 273, 280, 308, 316. 
 
 " *' 315 337. 
 
 " V. Farren, 56, 261, 266, 272, 273. 
 
 " V. Genesee Mutual Ins. Co., 32, 38, 178. 
 
 " V. HiU, 142, 222. 
 
 " V. Kelsey, 50, 56. 
 
 " V. Litchfield, 20, 121, 146, 228, 244. 
 
 " V. NeUis, 18, 24, 318. 
 
 " V. Metropolitan Bank. 
 
 " V. N. Y. Moat. Dry Dock Co., 144, 195. 
 
 " " " 318, 319. 
 
 " " " 337. 
 
 " V. Newman, 281. 
 
 " V. Passage, 244. 
 
 " 41. Pomeroy, 50, 257, 316. 
 
 " " 251. 
 
 " V. Rawdon, 34, 35, 64, 163. 
 
 " V. Ritter, 149, 327. 
 
 " V. Roach, 83, 85. 
 
 " V. Staats, 27, 70. 
 
 " V. Swift, 327. 
 
 " V. Travis, 42, 
 " " 17S. 
 
 Cooke V. Nathan, 146, 147, 180. 
 Cooley v. Lawrei. ..-. 159, 160. 
 Coon,«. Brook, 2; 
 
 " V. Knapp, /8. 
 " " 192. 
 
 Coon V. Reed, 144. 
 
 " V. Syracuse and Utioa R. R. Co., 141, 
 222. 
 Cooney v. Tan Rensselaer, 285. 
 Coons V. Chambers, 228. 
 Cooper, matter of application of Henry "W., 30. 
 Cooper V. Ball, 99, 327. 
 
 " V. Clason, 153, 169. 
 
 " V. Dedrick, 146, 147. 
 
 " V. First Presbyterian Church of Sandy 
 Hill, 99. 
 
 " V. Jones, 128, 186. 
 
 " V. Kinney, 327. 
 Copew. Sibley, 213. 
 Corbett v. Eno, 181. 
 
 " V. "Ward, 324. 
 Oorbin v. St. George, 123, 125, 127, 129, 135, 
 
 339. 
 Corey v. Mann, 122, 144. 
 
 " V. "White, 146. 
 Corlies.u. Delaplaine, 133, 136. 
 Corn Exchange Bank v. Cumberland Coal Co., 
 
 148. 
 Cornell v. Bennett, 327. 
 
 " V. Masten, 131, 132, 178. 
 
 " V. Potter, 338. 
 
 " V. Smith, 23. 
 
 " v. Townsend, 180. 
 Corning v. Calvert, 149. 
 
 " V. Cooper, 68. 
 
 " . V. Corning, 131, 179, 244. 
 
 " V. Greene, 32. 
 
 " V. McCuUough, 43, 148. 
 
 " V. Mohawk Talley Ins. Co., 118. 
 
 " V. Powers, 13, 273, 311, 313. 
 
 " V. Slosson, 11, 318, 320. 
 
 " V. Smith, 38, 154, 184. 
 
 " V. Tooker, 293, 297, 298, 300. 
 
 " V. Troy Iron and Nail Factory, 99. 
 
 " " 42. 
 
 " 42, 121, 157, 178, 244, 313. 
 Cornwell v. Haight, 144, 152. 
 Corwin v. Corwin, 42, 176. 
 
 " V. Freeland, 81. 
 
 " " 85, 134, 254, 285. 
 
 " V. New York and Erie R. R. Co., 144 
 Corwithe v. GrifBng, 155. 
 Coster V. New York and Erie R. R. Co., 32, 36, 
 
 38, 121, 140, 144, 151. 
 Costigan v. Cuyler, 227. 
 Cotheal v. TaUmadge, 132, 176. 
 
 " " 147. 
 
 Cotter V. Bettner, 32, 141. 
 Cottrell V. Conklin, 122, 146, 149. 
 
 " V. Finlayson, 50. 
 Couch V. Delaplaine, 32. 
 Coudert v. Lias, 325. 
 Countryman v. Boyer, 299. 
 Courseni;. HamUn, 182, 189. 
 Courter v. McNamara, 83, 84, 102. 
 Courtney v. New York City Ins. Co., 147. 
 Courtois V. Harrison, 291, 293, 297. 
 Courtright V. Stewart, 149,. 178. 
 Cousland v. Davis, 82, 85, 143. 
 Cowing V. Geib, 207. 
 Cowles V. Cowles, 180, 264, 312, 315. 
 
 " V. Cromwell, 148. 
 
XXXIV 
 
 INDEX TO CASES CrTED. 
 
 Cowle3 V. Gridley, 146. 
 Cowperthwaite v. ShefBeld, 146, 222. 
 Cox V. Broderick, 265, 327. 
 " V. Clift, 162. 
 " V. Piatt, 37, 153. 
 " o. President of "Westchester Turnpike 
 
 Eoad, 141. 
 " V. Stafford, 281. 
 Coyle V. Smith, 146. 
 Craft V. Merrill, 273, 283, 284, 287. 
 Craig -w. Fanning, 245. 
 Grain v. Rowley, 78, 320. 
 Cram v. Bradford, 197, 260, 315. 
 
 " V. Dresser, 180. 
 Cramer v. Comstoek, 34, 267. 
 CrandaU v. Beach, 38, 50, 270. 
 
 " V. Bryan, 82, 83. 
 Crandell v. Cropsey, 255. 
 Crane v. Hardman, 147, 177, 180, 327. 
 " V. Holcomb, 333, 334. 
 " V. Koehler, 195. 
 " V. Sawyer, 50, 150. 
 Crary v. Goodman, 121, 179, 180. 
 " " 42. 
 
 " V. Marshall, 141, 207. 
 " V. Norwood, 301, 336. 
 " V. Smith, 144. 
 Craw V. Daly, 327. 
 Crawford v. Lockwood, 178, 281. 
 " V. Leper, 213. 
 " V. "Whitehead, 198. 
 " V. "WUson, 78, 192. 
 Creamer v. Jackson, 213. 
 Creightons). IngersoH, 30. 
 Crery v. Holly, 144, 149. 
 Crim V. Cronkhite, 333, 334. 
 Crippen v. Culver, 33, 45. 
 
 " 11. Hudson, 153. 
 Crittenden v. Adams, 66, 306, 307, 320. 
 " V. Empire Stone Dressing Co., 313. 
 " V. Hubbell, 85. 
 Crist V. Armour, 144. 
 Cristman v. Paul, 323. 
 Crocker v. Baker, 99, 102, 105. 
 
 " V. Claughly, 30. 
 Crockett v. Smith, 184. 
 Croden v. Drew, 50, 51, 257. 
 Crofts V. Rockefeller, 334. 
 Croghan v. Livingston, 64, 128, 155, 178, 265 
 
 272. 
 CroUus V. Roquahua, 32. 
 Cronk v. Canfield, 222, 242. 
 " V. "Whittaker, 154. 
 Cronkright v. Thomson, 154, 265. 
 Crook V. Jewett, 82. 
 Crooke v. Mali, 222, 313. 
 
 " V. O'Higgins, 32, 38, 168. 
 Cropsey v. McKinney, 34, 153. 
 " V. Murphy, 150, 327. 
 " V. Sweeny, 121, 148, 149. 
 Crosbie v. Leary, 176, 178, 180. 
 Crosby v. New York Mutual Ins. Co., 147. 
 '• " " 147. 
 
 " 1). Nichols, 32, 207. 
 " V. "Wood, 276. 
 Cross V. Phelps, 28, 95. 
 " V. Saokett, 32, 143. 
 
 Croswell v. Crane, 149, 178. ^ 
 
 CroWell V. Brown, 85, 285. 
 
 " w. Church, 1 22. 
 Crowley v. Panama E. R. Co , 141, 142. 
 Crueer v. Douglass, 315 
 ^1 " 319. 
 
 " V. Hudson River R. R. Co., 124. 
 Cruikshank v. Cruikshank, 332. 
 Cruyt V. PhUlips, 123, 147. 
 CndLipF V. "Whipple, 123, 135, 149. 
 Culver V. Burgher, 179. 
 
 " V. Tan Anden, 142. 
 Cumberland Coal Co. v. Sherman, 54. 
 
 <i " " 32, 99. 
 
 Cumberland Coal and Iron Co. v. Hoffman 
 Steam Coal Co., 32, 122. 
 " " 11, 123. 
 
 Cummings v. Morris, 32, 180, 313. 
 Cunningham v. Caasidy, 279, 284. 
 " V. Jones, 147, 149. 
 " V. McGregor, 332. 
 " V. Wilding, 30, 75. 
 Cure V. Crawford, 99. 
 Currie v. Baldwin, 128, 181. 
 
 " V. Cowles, 122, 134, 135, 152, 180, 244. 
 " V. Noyes, 278, 291. 
 Curtis V. Barnes, 180. 
 
 " V. Dutton, 263, 332, 338. 
 
 " V. Leavitt, 45, 118, 308. 
 
 " " 10, 18, 118, 149, 178. 
 
 " " 253, 308, 331. 
 
 " V. Rochester and Syracuse R. R. COt 
 
 141. 
 " V. StillweU, 308. 
 Cusack V. Tomlinson, 207. 
 Cushingham v. Phillips, 23, 131, 149, 180, 
 
 327. 
 Cushman v. Gori, 149. 
 
 " V. Johnson, 16, 292. 
 " V. Martine, 306, 308. 
 Cusson V. "Whalon, 24, 66, 128, 166, 190, 198, 
 
 215. 
 Cutler V. "Wright, 44, 168, 173, 178, 221, 231. 
 Cuyler v. Coats, 184, 253, 333, 334. 
 " V. McCartney, 207, 228. 
 " V. Sandford, 178. 
 
 Dagal V. Simmons, 178. 
 
 Daguerre v. Orser, 28, 90, 129, 131, 179. 
 
 Dain v. Wyckoff, 32, 142, 319. - 
 
 " V. "Wycoff, 32, 142. 
 Dale V. Fowler, 146. 
 
 " V. Radcliff, 85. 
 Dalton V. Daniels, 149. 
 Daly V. Mathews, 48. 
 Damb v. Hoffman, 147, 323. 
 Dambman v. Empire Mills, 117, 118, 196, 
 Dana v. Fiedler, 32, 144, 219. 
 315, 337. 
 
 " u. Howe, 14, 237. 
 
 " V. Mun^on, 146. 
 Danenhover v. March, 337. 
 Danforth v. Dart, 143, 149. 
 Daniels v. Hinkston, 23. 
 
 " V. Lyon, 263, 264, 334, 335. 
 
INDEX TO CASES CITED. 
 
 XXXV 
 
 Dauu V. Baker, 128, 190, 193. 
 Danrers v. Dorrity, 155. 
 Darby v. Callaghan, 34, 36, 150. 
 " V. Condit, 163. 
 " II. Pettee, 244. 
 Darlington v. McCunn, 1*78. 
 Darrow v. Mffler, 76, 105, 136, 181, 251. 
 Dart V. Amis, 159. 
 
 " V. Farmers' Bank of Bridgeport, 44, 
 
 160, ITS. 
 " -u. MoAdam, 14, 152, 154, l'?8, ITS, 
 272, 313. 
 Darvin v. Hatfield, 34, 35, 267. 
 Dasoomb v. Buffalo and State Line E. E. Co., 
 
 141, 228, 244. 
 Daucty v. Bennett, 121, 170, 284. 
 
 " V. Tyler, 131. 
 Davenport v. Gilbert, 146. 
 " " 146. 
 
 " V. Ludlow, 30, 299. 
 " V. Eussel, 51. 
 Dayidson v. Hutohins, 149, 327. 
 " u. Minor, 207. 
 " V. Eemington, 180, 187. 
 Davies v. Cram, 43. 
 
 " V. Mayor of New York, 32. 
 Davis V. Ainsworth, 109, 111. 
 " V. Allen, 178, 236, 319. 
 " V. Bates, 50, 51, 139. 
 " V. Carpenter, 33, 45. 
 " V. Cayuga and Susquehanna E. E. Co., 
 
 144, 222. 
 " V. Crabtree, 207. 
 " V. Cram, 43, 207. 
 " V. Culver, 152, 244. 
 " V. Duffie, 161, 331. ■■ 
 
 " V. Dunham, 201, 202. 
 " V. Garr, 33, 44. 
 " " 129: 
 
 " V. Glean, 337. 
 " V. Gorton, 43. 
 " V. Graves, 152, 153. 
 " V. Haokley, 105. 
 " V. Hoppock, 143, 176, 179. 
 " V. Hudson, 19, 322. 
 •' V. lllius, 178. 
 " V. Jones, 24, 54, 129. 
 " V. Kinney, 44. 
 " V. Kruger, 143, 147. 
 " V. Lounsbury, 324. 
 " V. McCready, 146, 236. 
 " " 179. 
 
 " V. MarshaU, 23, 83. 
 " V. Mayor of New York, 37, 38, 99, 
 
 103, 104, 131, 171, 288, 319. 
 " V. Morris, 48. 
 
 " V. New York and Erie E. E. Co., 323. 
 " V. Packard, 38. 
 " V. Peabody, 281. 
 " V. Potter, 126, 176, 181. 
 " V. Schermerhorn, 129. 
 " V. Smith, 131, 244. 
 '' V. Stone, 14, 312, 322, 326, 328. 
 " V. Sturtevant, 106, 147, 288. 
 " V. Talcott, 178, 180. 
 " V. Turner, 14, 291, 301. 
 Davison's case, 288. 
 
 Vol. I.— d 
 
 Davison v. Donadi, 143. 
 
 " V. Powell, 75, 132, 139. 
 " V. Seymour, 147. 
 " V. "Waring, 337. 
 Day V. New York Car Spring Co., 20, 116. 
 " V. New York Central E. E. Co., 152, 
 
 178. 
 " V. Eoth, 152, 178. 
 " V. Swaokhamer, 19, 322. 
 Dayharsh v. Enos, 18, 222, 227. 
 Dayton v. Connah, 122. 
 
 " V. Mclntyre, 71, 215. 
 " v. Eyerson, 244. 
 " V. Wilkes, 39. 
 De Agredav. Mantel, 13, 32, 192, 193, 255, 265, 
 
 273, 279. 
 De Angehs, in re, 20. 
 De Baum v. Mayor of New York, 37. 
 De Benedetti v. Manohin, 327. 
 De Graffs. American Linen Thread Co., 178. 
 De Greet V. Jay, 45, 118. 
 De La Figaniere v. Jackson, 307. 
 De La Hunt v. Higgins, 146. 
 De Lancey v. Ganong, 150, 178. 
 De Leyer v. Michaels, 180, 245. 
 De Pierres v. Thorn, 43, 152. 
 De Eidder v. Schermerhorn, 32, 140, 147. 
 De Santes v. Searle, 122, 146, 176, 181. 
 De Witt V. Brisbane, 154, 179. 
 
 " V. Walton, 146. 
 De Wolf V. State Mutual Fire and Marine Ins. 
 
 Co., 147. 
 De Zeng v. Fyfe, 146, 179. 
 Dean v. Chamberlin, 36. 
 
 " V. Empire State Mutual Ins. Co., 197, 
 
 315. 
 " V. Eoesler, 222, 237. 
 " V. Thornton, 207. 
 Debaix v. Lehind, 129, 142. 
 Dpck V. Johnson, 207. 
 
 Decker v. Gardiner, 263, 264, 315, 319, 334, 
 337. 
 " V. Jaquea, 327. 
 " V. Judson, 86, 95, 178, 254. 
 " *. Mathews, 124, 143, 146, 222, 227. 
 Dederick v. Hoysradt, 99, 180. 
 Degraw v. Boardman, 30. 
 De Groot v. Jay, 118. 
 Delafield v. Wright, 20. 
 Delamater v. Eussell, 82, 140, 285. 
 Delano v. Blake, 35. 
 Delavan v. Florence, 43. 
 Delaware v. Ensign, 48. 
 Delaware Bank v. Jarvis, 148. 
 Demarest v. Daig, 178, 236. 
 Demeyer v. Legg, 42, 178, 222. 
 Demelt v. Leonard, 66, 207, 241, 244. 
 
 " " 33, 78, 274. 
 
 Deming v. Chapman, 8, 98. 
 " V. Kemp, 180. 
 
 " o. New York Marble Co., 117, 300. 
 " V. Post, 78, 235, 236, 237. 
 Dempsey v, Paige, 23, 327. 
 
 " V. Tylee, 178. 
 Denithorne o. Denithome, 134. 
 Dennis v. Kennedy, 32, 36, 37, 140. 
 Dennison v. Oarnsflian, 178. 
 
XXXVl 
 
 IKDEX TO OASES CITED. 
 
 Denmson«.Dennison, 168, 110,175, 116, 315. 
 
 " V. Plumb, 43. 
 
 " V. Powell, 176. 
 Denniston v. Mudge, 132. 
 
 " V. New York and New Haven E. E. 
 Co., 159. 
 Dennistoun v. McAllister, 265, 327. 
 Denny v. Smith, 44. 
 Denton v. Nanny, 38, 154, 267. 
 Denvrey v. Fox, 280. 
 Depew V. Keyser, 131, 244. 
 
 " V. Leal, 85, 95, 96. 
 
 " " 162. 
 
 Depeyster v. Hasbrouck, 140, 154, 265. 
 
 " V. Sun Mutual Ins. Co., 147. 
 
 " V. Wheeler, 129, 131, 132. 
 Derby v. Hannin, 322, 323, 325. 
 Des Arts v. Leggett, 178, 219. 
 De Santes v. Searle, 122, 146. 
 Deshay v. Persse, 213. 
 Desmond v. Rice, 219, 327. 
 
 " V. Woolf, 76, 105, 136, 181. 
 Despard v. Walbridge, 42, 178, 180. 
 Deuchars v. Wheaton, 323. 
 Deuel V. Spence, 178. 
 Deyaismes v. Devaismes, 179. 
 Devendorf «;. Beardsley, 118, 122, 146, 177, 179. 
 
 " V. Dickinson, 332. 
 Deviu V. Devin, 34. 
 Devlin's Case, 288. 
 Devlin v. Bevins, 189. 
 
 " V. Brady, 146, 178. 
 
 " V. Woodgate, 149, 178. 
 Devraismes v. Merchants' Mutual Ins. Co., 146. 
 Dewey v. Field, 197. 
 
 " V. Hoag, 122, 179, 180. 
 
 " p. Stewart, 336. 
 
 " V. "Ward, 140, 153, 155. 
 De Witt V. Chandler, 32. 
 
 " 11. Brisbane, 179. 
 Dexter v. Broat, 178, 276. 
 
 " V. Clark, 178. 
 
 " V. Gardner, 337. 
 Dey V. Poughkeepsie Mutual Ins. Co., 147. 
 Deyo V. Brundage. 134, 142. 
 Dias V. Short, 142^ 229, 244. 
 Dibble v. Corbett, 144, 149. 
 
 ■' V. New York and Erie E. E. Co., 142, 
 178. 
 Dibblee v. Corbett, 122, 144. 
 
 " V. Maillard, 244. 
 Diblee v. Mason, 50, 51, 132, 260. 
 Dickens v. New York Central B. E. Co., 33, 
 
 142. 
 
 " " " " 134. 
 
 Dickerman v. Abrahams, 34, 153, 265. 
 Dickerson v. Beardsley, 128, 190, 257. 
 
 " V. Benham, 109, 112. ' 
 
 " V. Cook, 106, 241, 242, 249, 313. 
 
 " " 291. 
 
 " V. Kimball, 176. 
 
 " V. Tan Tine, 281. 
 Dickinson v. Kimball, 223. 
 
 " V. Smith, 179, 255, 280, 284. 
 Dickson v. McElwain, 315, 337. 
 Diddell v. Diddell, 180, 194, 197, 260. 
 Didier i: Warner, 70, 174, 260. 
 
 Diefendorf V. Elwood, 50, 132. 
 
 " V. Gage, 122, 132. 
 
 " V. House, 66, 192, 272. 
 Dillaye v. Blair, 316, 319. 
 
 " V. Hart, 260. 
 
 " V. Niles, 180. 
 
 " V. Parks, 34, 122, 176, 177. 
 Dillingham v. Ladue, 280. 
 Dillon D. Horn, 117, 153. 
 
 " V. New York and Erie E. R. Co., 144. 
 Dimon v. Bridges, 154, 186. 
 
 " V. Dunn, 147, 176. 
 Disbrow v. Folger, 14, 64, 75, 266. 
 
 " V. Ten Broeck, 143. 
 Diven v. Phelps, 180. 
 D'lvernois v. Leavitt, 48, 151. 
 
 221, 304, 313. 
 Diz V. Palmer, 50, 51, 59, 159, 217, 253, 257. 
 Dixon V. Frazee, 149, 178. 
 
 " u. La Farge, 154. 
 Dixwell V. Wordsworth, 126. 
 Dobson V. Pearce, 121, 178, 179, 180. 
 
 " V. Racey, 207. 
 Dodd V. Curry, 336. 
 Dodge V. Averill, 207. 
 
 " V. Lambert, 178. 
 
 " V. Porter, IH. 
 
 " V. Eose, 75, 213. 
 Dodworth v. Jones, 145, 178. 
 Doedt V. Wiswall, 32, 141, 142, 192. 
 Doke V. Peek, 78, 236, 253. 
 Dolan V. Petty, 182, 260. 
 Dole V. Fellows, 202. 
 
 " V. Manley, 59, 139, 159, 160, 161, 168. 
 DoUner v. Gibson. 123, 134, 149. 
 Dolph V. White, 251. 
 Dolsen v. Arnold, 132, 178, 228, 244. 
 Dominick v. Eacker, 221, 264. 
 
 " V. Michael, 35, 221, 228. 
 Donadi v. New York State Muiual Ins. Co., 
 
 54, 76, 273. 
 DonneU v. Cornell, 327. 
 
 " V. Walsh, 171, 210. 
 Donnelly v. Corbett, 110, 178. 
 Donohoe v. Henry, 82, 143, 180, 327. 
 
 " V. Hicks, 78, 241. 
 Donovan v. Hunt, 179. 
 
 " V. Wilson, 149, 178. 
 Dooley's Case, 16, 19. 
 Doolittle V. Eddy, 24, 327, 333. 
 
 " V. Supervisors of Broome County, 37, 
 
 Doran v. Dempsey, 278. 
 
 " V. Diusmore, 176. 
 Doremus v. Lewis, 187. 
 Dorlon v. Douglass, 191. 
 
 " V. Lewis, 66, 166, 215, 306, 308, 316. 
 
 " " 234, 236. 
 
 Dorman v. Kellam, 67, 133, 134, 139, 140. 
 Dorr V. Birge, 312, 313, 326. 
 
 " V. New Jersey Steam Navigation Co., 
 144, 149. 
 
 " V. Noxon, 1 17, 236, 293, 294, 298, 300. 
 V. Swartwout, 44. 
 Doty V. Brown, 14, 74, 166, 241. 
 " 178. 
 
 " " 320, 331, 336. 
 
INDEX TO CASES CITED. 
 
 XXXVll 
 
 Doty V. Michigan Central R. R. Co., 54. 
 Doubleday v. Heath, 18, 155. 
 
 " V. Newton, 236. 
 Dougherty v. Gallagher, 244, 32'f. 
 Doughty V. Busteed, 207. 
 
 " V. Devlin, 154, 168. 
 Douglass 4). Blackman, 327. 
 
 " V. Jones. 147. 
 Douoy V. Hoyt, 67, 158, 254. 
 Dovau V. Dinsmore, 123, 134, 176. 
 Dow V. Platner, 48. 
 Dowling V. Bush, 338. 
 Downing )J. Mann, 131, 148, 221, 249, 264. 
 Downs V. McGlynn, 144. 
 Dows V. Cobb, 32. 
 
 " V. Gongdon, 154, 267. 
 
 " V. Dennistoun, 180. 
 
 " V. Green, 94, 96, 128, 129, 140, 141, 
 
 143. 
 " V. Greene, 145. 
 " V. Hotchkiss, 134. 
 " V. Perrin, 145, 149. 
 " V. Rush, 145, 149, 178, 222, 228, 
 265. 
 Doyle V. Daniels, 207. 
 Drake v. Cockroft, 122, 176, 177, 180, 181, 
 " V. Hudson River R. E. Co., 13, 98. 
 " " " " 150. 
 
 " V. Wakefield, 82, 94, 145. 
 Draper v. Commercial Ins. Co., 147. 
 " V. Day, 194, 197. 
 " V. Henningsen, 204, 208, 210. 
 " " 208. 
 
 " V. Jones, 149. 
 " V. Romeyn, 146. 
 " V. Snow, 147. 
 " V. Trescott, 178. 
 Dresser v. Ainsworth, 244, 280. 
 
 " V. Brooks, 66, 308, 311, 320, 331, 336. 
 
 320. 
 " V. Dresser, 144, 178. 
 " V. French, 273. 
 " V. Jennings, 79, 253, 315, 337. 
 " V. Shufeld, 278. 
 " 1). Van Pelt, 14, 79, 291, 292. 
 " " 244, 327. 
 
 " V. Wiokes, 253, 333, 334. 
 Drevert v. Appsert, 126. 
 Drew V. Comstock, 340. 
 " V. Duncan, 152. 
 Drought 1). Curtiss, 193, 300. 
 Droz V. Lakey, 254. 
 Druoker v. Patterson, 311, 327, 329. 
 Drummond v. Husson, 147, 308. 
 
 251, 336, 339. 
 Drury v. Clark, 38, 154, 263. 
 Dry Dock Bank v. American Life Insurance 
 
 and Trust Co., 178. 
 Duane v. Northern R. R. Co., 318, 319. 
 Dubois Case, 153. 
 
 " V. KeUy, 280. 
 Dudley v. Goodrich, 87, 112, 163. 
 " V. Hubbard, 166. 
 " V. Mayhew, 8. 
 Duel V. Agan, 13, 15, 142. 
 " V. Rust, 322, 323. 
 •' •</. Spence, 132, 178. 
 
 DueU V. Cudlipp, 32, 143. 
 Duff «. Lyon, 222. 
 Duffy V. Brady, 154. 
 
 " V. Duncan, 187. 
 
 " V. McManus, 154. 
 
 " V. Morgan, 323. 
 
 " V. New York and Harlem R. R. Co., 
 141, 144, 178. 
 
 " V. Thompson, 144, 327. 
 Duguid -v. OgUvie, 146, 179, 235. 
 Duigan v. Hogan, 99. 
 Dunaher v. Myer, 82, 85. 
 Dunbar v. Duffy, 22, 333. 
 Duncan v. Ainslie, 182. 
 
 " V. Edgerton, 146. 
 
 " V. Gosche, 146. 
 
 •' i;. Lawrence, 176, 181. 
 
 " V. Stanton, 180. 
 Dunokel v. "Wiles, 178, 222. 
 Dunderdale v. Grymes, 34, 169. 
 
 " V. Sauvestre, 280. 
 Dunham v. Dodge, 43. 
 
 " V. Jarvis, 99, 117. 
 
 " V. Nicholson, 45, 153, 204. 
 
 " " 319. 
 
 " V. Pettee, 149, 152. 
 
 " V. Sherman, 213, 338. 
 
 " V. Waterman, 48. 
 
 " V. Watkins, 232, 318, 319. 
 Dunkle v. Kocker, 143, 327. 
 Dunlop V. Edwards, 304, 318. 
 
 " V. Gregory, 147. 
 
 " V. Richards, 149. 
 Dunn V. Bloomingdale, 50, 51. 
 Dunning v. Pratt, 244. 
 
 " V. Roberts, 147, 149, 178. 
 
 " V. Thomas, 131, 134. 
 Durand v. HoUins, 159. 
 Durant v. Gardner, 134, 140, 157. 
 Durbrow v. McDonald, 149. 
 Durgin i>. Ireland, 32, 147, 222, 244, 320. 
 Durham v. Manrow, 32, 146, 147. 
 
 " V. Willard, 11. 
 Durkee v. Mott, 236. 
 
 " V. Saratoga and Washington R. R. 
 ■ Co., 133, 140, 170. 
 Dusenbury v. Woodward, 164, 182. 
 Dutcher v. Slack, 129. 
 Dutten V. Dutten, 178. 
 D wight V. Enos, 265. 
 " V. Peart, 178. 
 " w.-Webster, 154, 179, 274. 
 DwineUe v. Howland, 213. 
 Dyckman v. McDonald, 337. 
 
 " V. Mayor of New York, 20. 
 Dyer v. Forest, 178. 
 Dyett V. Pendleton, 179. 
 Dykers v. Woodward, 56,, 166, 176, 275. 
 
 E. 
 
 E. B. V. 0. B., 39, 64, 156, 304. 
 
 Eagle V. Foz, 33, 146. 
 
 Eagle Works v. Churchill, 178. 
 
 Eafleson v. Clark, 39, 265, 335. 
 
 Eakin v. Brown, 1 44. 
 
 Earl V. Campbell,' 60, 152, 184. 
 
xxxnu 
 
 INDEX TO CASES CITED. 
 
 Karl V. Van Alstyne, 143. 
 Karle v. Barnard, 38, 60, 254. 
 Earll V. Chapman, 66, 323. 
 East River Bank v. Cutting, 38. 54, 192. 
 " V. Gedney, 146, 222. 
 " V. Hoyt, 178, 244. 
 " V. .Tudah, 32. 
 " V. Kidd, 30. 
 Eastern Plank Road Co. v. Taughan, 32, 148. 
 Eastman v. Caswell, 281. 
 Easton v. Chamberlain, 71, 215. 
 
 " V. Smith, 30, 149, 327, 328. 
 Eaton V. Aspinwall, 148, 178. 
 
 " V. North, 213. 
 Ebaugh V. German Reformed Church, 149. 
 Eccleston v. Ogden, 146, 178. 
 Bckerson v. Spoor, 26, 289, 336, 339. 
 
 " V. VoUmer, 34, 35, 54, 160. 
 Ecles V. Debeand, 160, 161. 
 Eddy V. Beach, 122, 142. 
 " V. Hewlett, 16, 75 
 " V. Jump, 146. 
 Edgell V. Hart, 228. 
 Edgerton v. Fitzgerald, 327. 
 " v. Ford, 85, 285, 315. 
 " i). New York and Harlem R. R. Co., 
 
 141, 142. 
 " V. Page, 179, 180. 
 " V. Ross, 96, 145. 
 " V. Smith, 134, 176. 
 " 1!. Thomas, 178, 320. 
 Edmonston v. MoLoud, 99. 
 
 153, 244, 293, 309, 
 313, 320. 
 Bdraonstone v. Hartshorne, 201, 210, 218. 
 Edson V. Dillaye, 315, 318. 
 Edwards v. Bishop, 150. 
 
 " V. Campbell, 122, 146, 179. 
 " V. Drew, 327. 
 " V. Lent, 176. 
 
 " «. Ninth Avenue R.R. Co., 331. 
 " V. Stewart. 178. 
 Egert i;. Wicker, 129, 131, 132. 
 Eggleston v. N. T. and Harlem R. R. Co., 178. 
 "v. Orange and Alexandria R. R. Co., 
 32, 108. 
 Bgleston v. Knickerbocker, 178. 
 Ehle V. Haller, 126, 127, 140, 168, 170, 315, 
 316. 
 " v. Mayer, 192, 232, 272. 
 Ehlen v, Rutgers Fire Insurance Co., 235, 237, 
 
 313. 
 Eickboff, in re, 8. 
 Eiseman v. Swan, 229, 249, 313. 
 Eldridge v. Bell, 169, 170, 171. 
 
 " V. Chapman, 212. 
 Elizabethport Manufacturing Co. v. Campbell, 
 
 128, 181. 
 EUert V. Kelly, 178, 327, 328. 
 EUice V. Van Rensselaer, 280. 
 EUicott V. Hosier, 38, 150, 155, 178, 179. 
 EUiott V. Gibbons, 180. 
 
 " V. Hart, 50, 51, 139, 161, 168. 
 Ellis V. Duncan, 99. 
 
 " v. Jones, 73, 217. 
 " V. McOormick, 179. 
 " V. Van Ness, 74, 166. 
 
 Ellis V. "Willard, 144. 
 Ellison V. Pecare, 267. 
 Ellsworth V. Campbell, 273. 
 
 " V. Gooding, 244, 336, 337. 
 " V. Putnam, 150. 
 Elmore v. Thomas, 34, 35, 121, 197, 234, 237. 
 Elson V. N. T. Equitable Fire Ins. Co., 253. 
 Elton V. Markham, 132, 176, 222, 343. 
 Elwell V. Chamberlain, 146, 152, 178, 228. 
 " V. Crocker, 146. 
 " V. Dodge, 146, 304, 313. 
 Elwood V. Diefendorf, 42, 43. 
 
 " V. Smith, 145. 
 Ely V. Carnley,. 207. 
 
 " V. City of Rochester, 99. 
 " V. Cook, 48, 122, 221, 228. 
 " V. Ehle, 145, 176, 177. 
 " V. Holton, 318, 320. 
 " V. MiUer, 207. 
 " V. O'Leary, 327. 
 " V. Scofield, 154. 
 " V. Spofford, 149. 
 Embury i;. Conner, 178. 
 Bmerick v. Kohler, 42. 
 Emerson v. Burney, 315, 316. 
 Bmery v. Emery, 164, 291. 
 
 " V. Pease, 121, 122, 123, 156. 
 " V. Redfleld, 48. 
 Emmet v. Bowers, 32, 234. 
 " V. Reed, 118, 146. 
 Emmons v. N. Y. and Erie R. R. Co., 336. 
 Empire City Bank, in re, 56, 118, 178, 180, 
 304, 309, 316. 
 " " 118, 232. 
 
 Bngle V. Bonneau, 28, 280, 293, 295, 301. 
 Englis V. Furniss, 32, 121. 
 
 " " 131. 
 
 Engs V. Overing, 160. 
 
 Enuis V. Harmony Fire Ins. Co., 32, 36, 147. 
 Eno V. Crooke, 148. 
 " " 265. 
 
 " V. Del Vecchio, 207. 
 " V. Wehrkamp, 145. 
 " V. Woodworth, 121, 123. 
 Enoch V. Ernst, 82, 85. 
 Bnos V. Thomas, 32, 140, 147. 
 " " 128, 197. 
 
 " 240, 307, 319. 
 Ensign v. Sherman, 121, 122, 123, 150. 
 Episcopal Church of St. Peter v. Varian, 102, 
 
 147. 
 Erbeu ■;;. Lorillard, 229. 
 " " 244. 
 
 Erickson v. Compton, 32, 33. 
 Brie and N. Y. City R. R. Co. v. Owen, 148. 
 Ernst V. Hudson R. R. Co., 141, 221, 228. 
 Erpstein v. Berg, 96, 99. 
 Erwln V. Downs, 34, 146. 
 " V. Smaller, 208. 
 " V. Voorhies, 16, 213, 228. 
 Esmond v. Van Benschoten, 76, 133, 136, 215. 
 Esselstyn v. Weeks, 43, 178, 187. 
 Esterly v. Cole, 236, 243, 319. 
 Estus V. Baldwin, 205, 305, 328, 332. 
 Etchberry v. Levielle, 142. 
 Bvans v. Burbank, 207. 
 
 " V. Harris, 121, 149. 
 
INDEX TO CASES CITED. 
 
 XXXIX 
 
 Evans v. MUlard, 244, 315, 318. 
 Everett v. Vendoyes, 146. 
 Eversohu v. Gehrman, 48, 164. 
 Bverson v. Gehrman, 333. 
 Everts v. Palmer, 207. 
 Evertson v. Givan, 231. 
 " V. Thomas, 56. 
 Exchange Bank v. Monteath, 146. 
 
 " 201, 202. 
 
 Executors of Keese v. FuUerton, 129. 
 
 E. 
 
 Eabbricottl v. Launitz, 133, 134, 180, 196. 
 
 Eagen v. Davison, 131, 144. 
 
 Eahy v. North, 149. 
 
 Fairbanks v. Bloomfield, 111, 280. 
 
 122, 123, 143. 
 
 " V. Corlies, 324, 327. 
 
 " V. Tregent, 207, 213. 
 Fairchild v. Beutley, 142. 
 
 " V. Durand, 271. 
 
 " I/. Ogdensburgh, Clayton, and Rome 
 R. R. Co., 146. 
 Fake v. Edgerton, 221, 225, 274. 
 
 " " 219, 285, 286. 
 
 Falconer v. Elias, 85. 
 
 " V. Ucoppel, 66, 166, 167. 
 Pales v. Hicks, 14, 128, 129, 176, 181. 
 
 " V. MoKeon, 149, 327. 
 FaJou V. Keese, 207. 
 Pancher v. Goodman, 149. 
 Fanning v. Lent, 327. 
 Farcy v. Lee, 135, 149. 
 Parley v. Flanagan, 207, 208. 
 Farmers' and Citizens' Bank of Long Island v. 
 
 Sherman, 134, 135, 178. 
 Farmers' and Mechanics' Bank v. Empire Stone 
 Dressing Co., 146, 236. 
 
 " V. Paddock, 207. 
 Farmers' and Mechanics' Bank of Kent Co. v. 
 
 Butchers' and Drovers' Bank, 146, 178. 
 Farmers' and Mechanics' Bank of Rochester v. 
 
 Smith, 181. 
 Farmers' Bank of Bridgeport v. Vail, 146. 
 Farmers' Bank of Saratoga Co. v. Merchant, 
 
 122, 284, 179. 
 Farmers' Loan and Trust Co. v. Carroll, 9, 318. 
 
 " V. Dickson, 38, 50, 58, 60, 126, 267, 
 272. 
 
 " V. Hendrickson, 280. 
 
 " V. Hunt, 75, 99, 180, 181, 194, 196. 
 
 " V. Kursch, 150, 332. 
 Farnham v. Farnliam, 181, 288. 
 
 " V. HUdreth, 50, 132, 171, 272, 284. 
 Farquharson v. Kimball, 286, 291, 293. 
 Farrand v. Herbeson, 127, 128, 176, 190, 223, 
 
 257, 273. 
 FarreU v. Calkins, 284, 304, 305, 327, 328. 
 Farrington v. Frankfort Bank, 143, 146, 152. 
 Farron v. Sherwood, 121, 124, 148, 149. 
 Fash V. Byrnes, 227, 244. 
 Fassett u. Tallmadge, 117. 
 Faure v. Martin, 152. 
 
 Pay V. Grimsteed, 122, 123, 131, 132, 177, 
 178, 228. 
 
 " V. HaUoran, 33, 147. 
 
 Fay V. Jones, 244. 
 Fearn v. Gelpoke, 78, 163. 
 Fein v. Gustin, 207. 
 
 " V. Timpson, 144. 
 Fellerman v. Dolan, 180. 
 Fellers u. Lee, 178. 
 Fellows V. Emperor, 242. 
 
 " V. Sheridan, 336. 
 
 " V. Tan Hyring, 152. 
 
 " V. "Wilson, 221, 222. 
 Female Association of N. Y. v. Beekman, 32, 33. 
 Perdey v. Stewart, 207. 
 Perm v. Timpson, 144, 327. 
 Ferdon v. Cunningham, 149. 
 Ferguson v. Ferguson, 122. 
 
 " " 244, 319. 
 
 " " 309. 
 
 " V. Hamilton, 146, 178, 237, 241. 
 Fern v. Tanderbilt, 134, 184. 
 Ferner v. Wilhams, 124, 146. 
 Pero V. Buffalo and State Line R. R. Co., 141, 
 228. 
 • " K. Eosoo, 179. 
 
 " V. Van Bvra, 164, 288. 
 Perreira v. Depew, 180. 
 Ferris v. Ferris, 154. 
 Ferriss v. MerriU, 66. 
 Ferry v. Bank of Central N. Y., 184, 316. ' 
 
 " " 118. 
 
 " V. Dayton, 207. 
 Ferussac v. Thorn, 225. 
 Pessendeu v. Woods, ll7, 280, 300. 
 Fetridge v. Merchant, 99. 
 
 " V. Wells, 99. 
 Pickett V. Brice, 149, 152. 
 Fiedler v. N. Y. Ins. Co., 147. 
 
 " V. Tucker, 143, 149. 
 Field V. Blair, 159. 
 
 " V. Chapman, 153. 
 
 " •</. Hawxhurst, 129, 154, 267, 272. 
 
 " V. Holbrook, 99, 151. 
 
 " " 122, 152. 
 
 " V. Hunt, 104, 153, 283, 293. 
 
 " " 153. 
 
 " V. Mayor of New York, 32, 122. 
 
 " V. Morse, 50, 51, 134, 273, 285. 
 
 " " 128, 129, 134. 
 
 " V. New York Central R. R. Co., 207. 
 
 " V. Park, 66. 
 
 " V. Paulding, 276, 278. 
 
 " V. Ripley, 117. 
 Pielden v. Lahens, 241. 
 Fieldings v. Mills, 149, 164. 
 Piers V. Betts, 283. 
 Figaniere v. Jackson, 323. 
 PUkin V. Ferris, 180. 
 Pinch V. Calvert, 213, 338. 
 
 " V. Carpenter, 45, 161. 
 
 " V. Cleveland, 207. 
 Finley v. Jones, 332. 
 Finn v. Gustin, 207. 
 Finnegan v. Lee, 105, 146. 
 Pinnerty v. Barker, 126, 142. 
 Fireman's Ins. Co. of Albany v. Bay, 34. 
 
 tt " " " 308. 
 
 First Baptist Church v. TJtica and Schenectady 
 R. R. Co., 123. 
 
xl 
 
 nSTDEX TO CASES CITED. 
 
 First Baptist Churoli in Brooklyn v. Brooklyn 
 Fire Ins. Co., 132. 
 
 " " in Schenectady v. Sche- 
 
 nectady and Troy R. R. Co., 150. 
 Fish V. Ferris, 35, 121, 141, U3, 179. 
 
 " " 64, 324, 326. 
 
 " V. Torrance, 337. 
 
 " V. Jaoobsohn, 146. 
 
 " V. Skut, 244, 32T. 
 
 " V. Wood, 32, 236, 311, 313. 
 
 " " 243. 
 
 Fisher v. Conant, 141, 143, 162. 
 
 " V. Curtis, 20, 109. 
 
 " V. Fredenhall, 149, 152. 
 
 " «;. Hall, 184, 193. 
 
 " 0. Hunter, 331, 336. 
 
 " v. Saffer, 280. 
 
 " V. Stitson, 35, 46, 64. 
 Fiske V. Anderson, 56, 261, 272, 273. 
 Fitch V. Bates, 207. 
 
 " V. Bigelow, 126, 127. 
 
 " V. Devlin, 23, 327. 
 
 " V. Hall, 68, 200, 273. 
 
 " I/. Livingston, 256, 315. 
 
 " " 320. 
 
 " V. New York and Erie R. R. Co., 319. 
 Fitzhugh V. "Wilcox, 33, 169. 
 
 " V. Wiman, 32, 144, 149, 244, 265, 313, 
 320. 
 Fitzpatrick v. Caplin, 178. 
 
 " V. Flagg, 99. 
 
 " " 106. 
 
 Flagg II. Hunger, 78, 197. 
 
 " " 33, 154, 265, 335. 
 
 Flammer v. Kline, 176, 181. 
 Fleeman v. McKean, 149, 180. 
 Fleet V. Borland, 35, 155, 174, 265. 
 Fleetwood v. City of New Tork, 149. 
 Fleming v. HoUenbeok, 213. 
 Fletcher v. Button, 152. 
 
 " V. Derrickson, 32, 33, 144, 149. 
 
 " V. Troy Savings Bank, 40. 
 Fleury v. Brown, 176, 181. 
 
 " V. Roger, 176, 181. 
 Flint V. Richardson, 337. 
 
 " V. Schomberg, 146, 178, 180. 
 Flood V. Reynolds, 176. 
 Florence v. Bates, 102, 105. 
 
 " V. Bulkley, 45, 163. 
 Floyd V. Blake, 109. 
 
 " V. Dearborn, 121, 134. 
 Flynn v. Hudson River R. R. Co., 50, 51, 54, 
 59, 159. 
 
 " V. MoKeon, 149, 152. 
 
 " V. Stoughton, 38. 
 Foley V. Alger, 324. 
 
 " V. Gough, 22, 23, 126. 
 Follett V. Jewitt, 134, 179. 
 
 " V. Weed, 15, 79, 201, 202. 
 Follower v. Laughlin, 50, 51. 
 Foot V. Harris, 55, 123, 273. 
 
 " V. Sprague, 99, 180. 
 Foote V. Morris, 34. 
 Forbes v. Locke, 336. 340. 
 
 " v. Logan, 153, 293. • 
 
 " V. Oaks, 316, 318. 
 
 " V. Shattuck, 32, 143. 
 
 Force v. Gower, 45, 56. 
 Ford V. Babcook, 20, 44, 123. 
 
 " V. David, 131, 173, 192, 222, 232, 263, 
 313, 315. 
 
 " " 251, 308, 316, 318, 319. 
 
 " V. Harrington, 30, 150, 1 52 
 
 " V. Johnson, 281. 
 
 " ,;. Mattice, 134, 136. 
 
 " V. Monroe, 253, 338. 
 
 " V. Sampson, 42, 122, 176, 177, 179. 
 
 " V. Whitridge, 274, 278. 
 Formau v. Forman, 323. 
 
 " V. Marsh, 178. 
 Forrest v. Forrest, 20, 156, 194, 228, 244, 265. 
 268. 
 
 " " 34, 129. 
 
 " " 81. 
 
 " " 81, 119. 
 
 " " 213, 268. 
 
 " " 237, 241. 
 
 " " 234, 235. 
 
 " V. Mayor of New Tork, 124, 149. 
 Forrester v. Wilson, 99. 
 Forsyth v. Edmiston, 125, 135, 140, 264. 
 
 " " 142. 
 
 Fort V. Bard, 167, 315, 319. 
 
 " V. Gooding, 207, 332, 337. 
 Fort Edward and Fort Miller Plank Road Co. 
 
 V. Payne, 148. 
 Fort Plain and Cooperstown R. R. Co., in re, 
 
 13, 315. 
 Forward v. Harris, 147, 23 
 Fosdiokj;. Groff, 76, 176, 181, 182. 
 Fosgate v. Herkimer Manufacturing and Hy- 
 draulic Co., 38, 150, 171. 
 
 " " " 42, 150. 
 
 Foshay v. Drost, 315. 
 Foster v. Agassiz, 213, 339. 
 
 " V. Bowen, 184, 336. 
 
 " V. Capewell, 327. 
 
 " V. Cleveland, 332. 
 
 " V. Coleman, 236. 
 
 " V. Hazen, 23, 168, 169, 179. 
 
 " V. Pettibone, 28, 95, 143. 
 
 '• V. PoiUon, 149, 154. 
 
 " V. Prince, 297, 298, 315. 
 
 " V. Skidmore, 38. 
 
 " V. Udell, 166. 
 Fourth Avenue, matter of, 253. 
 Fowler v. Abrams, 141, 143, 285. 
 
 " V. Brock, 85. 
 
 " V. Clearwater, 146, 147, 222. 
 
 " V. Colyer, 327. 
 
 " V. Dorlon, 144. 
 
 " V. Houston, 337. 
 
 " (1. Kennedy, 38, 169. 
 
 " V. MoUer, 178. 
 
 " V. Mott, 33. 
 
 " x-. N. T. Indemnity Ins. Co., 123, 124 
 147, 178. 
 Fox V. Decker, 221, 228, 327. 
 
 " V. Fox, 332, 337. 
 
 " V. Gould, 234, 337. 
 
 " V. Hunt, 132. 
 
 " V. Jackson, 21. 
 
 " V. Troy and Boston R. R. Co., 32, 144. 
 Foy V. Heath, 35. 
 
INDEX TO CASES CITKD. 
 
 xli 
 
 Francia v. Del Banco, 146, 118. 
 
 jFrancis v. Ross, 34. 
 
 Francisco «. Pitch, 235. 
 
 Franklin Building Association v. Mather, 261. 
 
 Fraser v. ChUd, 141, 327, 328. 
 
 " «. Greenhill, 39, 113. 
 
 " V.Phelps, 121, 201, 235 
 Frazee v. Western, 320. • 
 Frazer v. Phelps, 201, 235. 
 Frederick v. Decker, 291, 293. 
 Fredericks v. Mayer, 99. 
 Fredonia and Sinclairville Plank Road Co. v. 
 
 Wait, 24. 
 Freeman v. Atlantic Mutual Ins. Co., 194, 191 
 
 " a. Frank, 168, 186, 192. 
 
 " V. Lelaud, 82. 
 
 " V. Newton, 32, 39, 144, iTl, 201 
 
 " V. Orser, 34^ 280, 380. 
 
 " V. Spalding, 207. 
 Frees v. Ford, 18, 20, 122, 169, 334. 
 Freligh v. Brink, 48. 
 French v. New, 178. 
 
 " V. White, 32, 146, 222, 229. 
 
 " V. WiUett, 124, 144. 
 Prey v. Johnson, 131, 144, 152. 
 Prink v. Morrison, 27G, 278. 
 Frost V. Duncan, 140, 150. 
 
 " V. Hanford, 149, 179, 207, 222, 327. 
 
 " V. McCargar, 228. 
 
 " V. McCarger, 82, 85. 
 
 " V. Rider, UO, 111. 
 Fry 11. Bennett, 123, 128, 133, 142, 171, 176, 
 179, 186, 191, 210, 221, 
 222, 228, 229, 231, 244. 
 
 " " 131 194. 
 
 " " 242', 304, 306, 307, 313. 
 
 " " 244. 
 
 Fulkerson v. George, 179. 
 FuUer v. Allen, 99, 283. 
 
 " V. Emerio, 81. 
 
 " V. Fenner, 142. 
 
 " V. Lewis, 94, 122, 145. 
 
 " V. Read, 180, 196. 
 
 " V. Squire, 253. 
 
 " V. Sweet, 198. 
 
 " V. Webster Fire Ins. Co., 39, 118, 129. 
 
 " V. WilUamson, 244. 
 FuUerton v. Fitzgerald, 82, 285. 
 
 " V. Taylor, 131, 221, 264. 
 Furman v. Walter, 108, 110, 112. 
 Furniss v. Brown, 96, 99, 102, 104, 105, 129, 
 140. 
 
 G. 
 
 Gaffney v. Burton, 82, 85. 
 Gage V. Angell, 180, 
 
 " V. Brewster, 154. 
 
 " V. Dauehy, 280. 
 
 " V. Parker, 228, 244 
 Gale V. Gale, 152. 
 
 " V. Hoysradt, 242. 
 
 " V. Vernon, 79, 167, 274, 315. 
 
 " V. WeUs, 9, 318, 320, 336. 
 
 •' " 227, 228. 
 
 Galen v. Brown, 228, 280. 
 Gallagher v. Ashby, 148. 
 
 » V. Egan, 53, 58, 184, 335, 338. 
 
 Gallagher v. White, 146, 147. 
 
 Gallarati v. Orser, 28, 90, 144, 251, 265, 178. 
 
 Gallatin v. Oriental Bank, 99. 
 
 Galoupeau v. Ketchum, 327. 
 
 Galusha v. Hitchcock, 34. 
 
 Galway v. United States Steam Sugar Refining 
 
 Co., 99, 117. 
 Gamble v. Beattie, 2. 
 Gandal'i). Finn, 48. 
 Garcie v. Sheldon, 11, 15, 78, 197. 
 Gardiner v. Clark, 161, 175. 
 
 " V. Peterson, 205. 
 Gardner v. Board of Health, 32. 
 
 " V. Clark, 149, 175, 178, 228, 244. 
 
 " " 207, 227, 228, 244. 
 
 " V. Commissioners of Highways of 
 town of Warren, 14. 
 
 " ». Pinley, 143, 267, 207. 
 
 " V. Gordon, 207. 
 
 " V. Heart, 150. 
 
 " V. Kelly, 163. 
 
 •• V. McEwen, 147, 228, 319. 
 
 " u. Mayor, &c., of Troy, 149, 152. 
 
 " V. Ogden, 140, 15], 152. 
 
 " v. Oliver Lee's Bank, 121,146, 178. 
 
 " V. Eyerson, 222, 229, 245. 
 
 " V. Smith, 118. 
 
 " 11. The Board of Health, 32. 
 
 " V. Walker, 192, 334. 
 
 " 11. Wight, :^27. 
 Garfield v. Hatmaker, 150, 285. 
 Garner v. Hannah, 131, 150, 193. 
 
 " V. Manhattan BuUding Assoc, 150. 
 Garr v. Mairet, 30, 149. 
 
 " V. Martin, 32, 147, 149. 
 
 " V. Selden, 142, 179. 
 Garrigue v. Loescher, 32. 
 Garrison v. Howe, 32, 148, 179, 180, 236, 319, 
 320. 
 
 " V. Mayor of New Tork, 144 
 
 " V. Pearce, 228, 324, 327. 
 Garvey v. Camden and Amboy R. R. Co., 144, 
 207. 
 
 " V. Fowler, 122, 146, 181. 
 Gasherie D. Apple, 109, 112. 
 Gasper J). Adams, 122, 123, 132, 177, 178. 
 
 " " 131, 178, 272. 
 
 " V. Bennett, 45, 152, 153, 291. 
 Gassettu Crocker, 134, 168, 170, 171, 175, 176. 
 
 " " 176, 187. 
 
 Gates V. Brower, 34, 228. 
 
 " V. Davenport, 149. 
 
 " V. McKee, 147, 178. 
 
 " V. Madison County Mutual Ins. Co., 
 147. 
 
 " {). Ward, 23, 327. 
 Gaughe v. Laroche, 201, 204, 205, 210. 
 Gaughran v. One hundred and fifty-one tons 
 
 of coal, 149. 
 Gay V. Brown, 154. 
 
 " v. Paine, 124, 146. 
 Geery v. New Tork and Liverpool Steamship 
 
 Co., 140, 157. 
 Geffoken v. Sliugerland, 249, 313. 
 Gelhaar v. Ross, 222, 280. 
 Gellatty v. Lowery, 204, 244. 
 Geller w. Hoyt, 75, 79, 255. 
 
xlii 
 
 index: to cases cited. 
 
 Geller v. Seixas, 82, 85, 178. 
 
 Gelpeck v. Leather Cloth Co., 337. 
 
 Gelston v. Marshall, 201, 202. 
 
 General Mutual Ins. Co. v. Benson, 32, 38, 
 
 121, 171. 
 Genesee Mutual Ins. Co. v. Moynihen, 176. 
 Genet v. Duseubery, 34, 225, 273. 
 
 " u. Foster, 38, 117, 300. 
 
 " V. Sayre, 146. 
 
 " •,;. Tallmadge, 178. 
 Genin v. Chadsey, 316. 
 
 " V. Tompkins, 105, 318, 320. ■ 
 109, 110, 112. 
 Genter v. Morrison, 228. 
 George v. McAvoy, 70, 126, 128. 
 Georgia Lumber Co. v. Strong, 66. 
 Geraghty v. Malone, 326. 
 Gerard ti. Prouty, 149, 180. 
 Geraud ». Stagg, 264, 304, 305, 827, 328. 
 Gere v. Dibble, 36, 153. 
 
 " V. Supervisors of Cayuga, 48. 
 Gerry v. Post, 192, 265, 267, 273. 
 Getty V. Hudson Eiver R. R. Co., 37, 152. 
 
 " " " 128,131,140,157. 
 
 133, 140, 168, 170, 231. 
 Gibbons v. Berhard, 147. 
 Giberton v. Fleischel, 224, 260, 273. 
 
 " V. Ginocohio, 327. 
 Gibson v. Haggarty, 297. 
 
 " V. Murdock, 66, 166. 
 
 " V. PearsaU, 147, 210, 235. 
 Giesseu v. Giesseu, 146. 
 Gihon V. Fryatt, 30. 
 
 " V. Levy, 121, 122, 123. 
 
 " V. Stanton, 149. 
 Gilbert v. AveriU, 207. 
 
 " V. Beach, 141. 
 
 " " 141. 
 
 " 229, 242, 244, 249, 313, 320. 
 
 " V. Bulkley, 88. 
 
 " V. CoveU, 181, 186. 
 
 " V. Cram, 176, 177, 187 
 
 " V. Danforth, 146. 
 
 " V. Davies, 170. 
 
 " V. Luce, 28, 232. 
 
 " V. Rounds, 142, 176, 179, 180, 260. 
 
 " V. Tompkins, 109, 110, 112. 
 
 " V. Wiman, 147. 
 Gilch V. Bamaby, 163. 
 Gilchrist «. Stevenson, 187. 
 
 " " 232, 241, 254. 
 
 Gildersleeve v. Halsey, 253. 
 
 " V. Mahony, 191, 244. 
 
 " V. Martine, 207. 
 Giles V. Comstock, 179. 
 
 " V. Crosby, 147. 
 
 " V. Halbert, 147, 318, 319, 332. 
 
 " V. Lyon, 19, 121. 
 Gillespie v. Broas, 99. 
 
 " V. Durand, 149. 
 
 " V. Rosenkrants, 43. 
 
 " v. Torrance, 179, 180, 222. 
 Gillett V. Moody, 118. 
 
 " V. Phillips, 118, 146, 180. 
 GiUigan v. New.Tork and Harlem R. E. Co 
 
 141, 244. 
 (.Tilliland v. Campbell, 23, 234, 333. 
 
 Gilman v. Oliver, 338. 
 
 Gilmartin v. Smith, 253, 254. 
 
 GUmore v. Hempstead, 27, 66, 126, 127. 
 
 GUsey a. "Wild, 178. 
 
 Ginoochio v. Figari, 285. 
 
 " V. Orser, 28. 
 Giraud v. Beach, 36, 142, 169, 171. 
 
 " " 322. 
 
 Glann v. Tounglove, 34, 265. 
 Glasse v. Keulsen, 327. 
 Glassner v. Wheaton, 280, 283, 322, 327. 
 Glaubensklee v. Hamburgh and American 
 
 Steam Packet Co., -126. 
 Gleason v. Moen, 180. 
 
 " V. Thayer, 33, 38. 
 Glen V. Gibson, 160. 
 Glenoove Mutual Ins. Co. v. Harrold, 10, 32, 
 
 43, 146, 147. 
 Gleanyv. Hitchins, 122, 148, 149, 170, 172. 
 Glenton v. Clover, 81. 
 Glentworth v. Luther, 149. 
 Glinsmann v. Glinsmaun, 156. 
 Goalth V. "White, 144, 149, 152. 
 Goble V. Kinney, 207. 
 Gochu. Marsh, 76, 136. 
 Gock V. Keneda, 129. 
 Godfrey v. Townsend, 38, 179. 
 Godin V. Bank of Commonwealth, 146, 228. 
 Goedel v. Robinson, 181. 
 Goelet V. Cowdrey, 122, 123, 178. 
 
 " V. Gori, 34, 169. 
 Goelth V. "White, 144, 149, 152. 
 Goit V. National Protection Ins. Co., 32, 147. 
 Goldrich v. Ryan, 149. 
 Goldsmith v. Brown, 147. 
 
 " V. Marpe, 253. 
 
 " V. Obermeier, 149, 244, 327. 
 GoU V. Hinton, 109, 111. 
 Goodall V. Demarest, 293. 
 
 " V. McAdam, 34, 153, 169. 
 Gooding v. McAllister, 133, 134, 140, 161. 
 Goodrich v. Dunbar, 82. 
 
 " «. Tanderbilt, 138, 200. 
 Goodridge v. New, 236. 
 Goodspeed v. Robinson, 149. 
 Goodwin v. Kirker,. 149. 
 Goodyear v. Baird, 26, 223, 224, 253, 337, 338. 
 
 " V. Betts, 45, 117, 153. 
 
 " V. "Watson, 148. 
 Gordon v. Gaffey, 109. 
 
 " V. Sterling, 131, 132, 192, 273. 
 
 " V. Upham, 142, 228. 
 Gorham v. Ripley, 332. 
 Gormly v. Mcintosh, 18, 312, 334. 
 Gorum v. Carey, 32, 132, 143, 244. 
 Gossling V. Broach, 23, 327. 
 Gottler V. Babcock, 180. 
 Gottsberger v. Harned, 327. 
 
 " V. Radway, 179. 
 
 " V. Smith, 147. 
 Goulard v. Castillon, 14, 19, 235, 236, 242, 
 
 Gould V. Bryan, 20, 109. 
 
 " V. Carpenter, 251, 336. 
 
 " 11. Chapin, 144. 
 
 " " 234, 337. 
 
 " V. Glass, 24, 33, 42, 122, 124, 131, 171. 
 
INDEX TO OASES CITED. 
 
 xliii 
 
 Gould V. Homer, 133, I'lS. 
 
 " V. McOarty, 20, 201, 202. 
 " V. Moring, \i1. ' 
 " V. Robinson, 181. 
 " u. Rumsey, 131, 118, 229, 315. 
 '■ V. Segee, 146, ITT, 178. 
 " V. Sherman, 85, 142. ' 
 " V. Torrance, 19, 315, 316. 
 ■' v. Town of Venice, 146, 118. 
 " V. "WilUams, 121, 122, 134, 114. 
 Goulding v. Bain, 99, HI. 
 
 " V. Davison, 34, 141. 
 Goulet V. Asseler, 121, 143. 
 Goupil V. Simonson, 20, 54, 84, 85. 
 Gourdier v. Thorp, 180. 
 Gourney v, "Werseeland, 126. 
 Gouverneur v. Warner, 280. 
 Graoie v. Preeland, 13, 14, 316, 318, 319. 
 Grady v. Ward, 261. 
 Grafton v. Remsen, 152, 151. 
 Graham v. Camman, 133, 135, 149, 168, 169. 
 " •</. Colburn, 213, 294. 
 " -0. Dunigau, 153, 222. 
 '' V. Dunnigan, 149, 186. 
 " V. Golding, 191, 234. 
 " V. narrower, 122, 117, 228. 
 " V. McCouu, 10, 126, 121, 166. 
 " V. Machado, 124, 146. 
 " V. Milliman, 331. 
 " V. Stone, 119, 186. 
 " V. Wells, 81, 96. 
 Granger v. Schwartz, 20, 59, 109, 112, 159. 
 Grttnt V. Booth, 96. 
 
 " V. Chester, w, re, 30. 
 " V. Holden, 146. 
 • V. Hotchkiss, 146, 141. 
 " V. Johnson, 144. 
 " V. Lasher, 110. 
 
 " V. MoCaughin, 129, 161, 178, 231. 
 " V. Mors°, 236, 237, 320. 
 " V. Newton, 32, 144. 
 " V. Power, 181. 
 " V. Quick, 20, 99, 121. 
 Graves v. American Exchange Bank, 146. 
 " V. Berdan, 119. 
 " V. Blauchard, 234. 
 " V. Dudley, 145. 
 " V. Friend, 146. 
 Gray v. Brown, 51, 1 28. 
 " V. Davis, 149. 
 " V. Fox, 191, 815. 
 " V. Griswold, 286. 
 " V. Jones, 14. 
 
 " V. Kendall, 126, 134, 135, 153, 201. 
 " V. Lessington, 35, 152. 
 " «. NeUis, 133, 134, 142. 
 " V. Robjohn, 331. 
 " V. Schenck, 38. 
 " 311. 
 Greasou v. Keteltas, 194, 263. 
 Greaton v. Morgan, 109. 
 Green v. Ames, 43. 
 " V. Bates, 192. 
 " V. BUss, 227, 229. 
 " V. Brown, 234, 236. 
 " V. BuUard. 103, 293. 
 " V. 01o.rk, 10. 
 
 Green v. Clarke, 143, 118. 
 " V. Elmer, 118. 
 " V. Haines, 149. 
 " V. Hicks, 293. 
 
 " V. Hudson River R. R. Co, 32, 33, 142. 
 " " " 33, 142. 
 
 " " " 142, 222, 228. 
 
 " V. MoArthur, 146. 
 " V. Telfair, 221. 
 " " 228. 
 
 " V. Wood, 204, 315. 
 Greenbury v. Wilkins, 146, 172. 
 Greene v. Breok, 36, 37, 153. 
 Greenwood v. Brodhead, 153. 
 Gregg V. Reader, 181. 
 Gregory v. Campbell, 267. 
 
 " D. Levy, 89, 178, 186. 
 " V. Oaksmith, 169. 
 " V. Trainor, SHI. 
 " V. Weiner, 81. 
 " V. Wright, 181. 
 Gridleyw. Daggett, 318. 
 
 " V. Gridley, 122, 140, 148. 
 " V. McCumber, 134, 278, 285. 
 " V. Rowland, 169. 
 Griffen v. Ford, 32. 
 Griffin v. Chase, 284. 
 
 " V. Cohen, 128, 190, 223. 
 " V. Colver, 180. 
 " V. Cranston, 232, 241, 244. 
 " " 232, 313, 319. 
 
 " V. Dominguez, 38, 291. 
 " V. Griffin, 181. 
 " " 315. 
 
 " V. Griffith, 16, 19. 
 " V. Keith, 149. 
 " V. Marquhardt, 313, 315, 320. 
 " V. Mayor of New York, 141. 
 'i V. Rice, 146, 180. 
 " V. Slate, 106, 231. 
 " V. Sutherland, 281. 
 Griffith V. Beecher, 118. 
 
 " V. Merritt, 11, 318. 
 Griggs V. Howe, 118, 222. 
 Grim v. Dyar, 42. 
 Grimm v. Grimm, 104. 
 
 " V. Hamel, 218, 222. 
 Grinnan v. Piatt, 99, 154. 
 GrinneU v. Schmidt, 31, 33. 
 
 " V. Stewart, 142, 228. 
 Grisoonl v. Mayor of New York, 236, 241, 243, 
 
 319, 320. 
 Griswold, in re, 44. 
 
 " V. Atlantic Dock Co., 19, 118. 
 " V. Fowler, 38, 60. 
 " " 261. 
 
 " V. Griswold, 214. 
 " V. Laverty, 146, 181. 
 " V. Miller, 33, 45, 60. 
 " V. Sheldon, 18, 228. 
 ■ " V. Van Deusen, 323, 325. 
 Groesbeck v. Brown, 48. 
 Grogan v. Lindeman, 140. 
 
 " V. MoMahon, 180, 265. 
 " V. Mayor of New York, 154. 
 Groshon v. Lyons, 118. 
 
 " " 181, 181, 194. 
 
xliv 
 
 INDEX TO CASES CITED. 
 
 Grosvenor v. Atlantic Fire Ins. Co. of Brooklyn, 
 131, 147, 177, 207. 
 
 " " 10, 147. 
 
 " V. Hunt, 28, 288. 
 Grover v. Coon, 318. 
 Guiot V. Murphy, 182. 
 Guild V. Parsons, 193, 304. 
 Guilford v. CorneU, 106. 
 GuUek V. Gulick, 33, 38. 
 Gunter v. Catlin, 313. 
 Gurnee v. Hoxie, 224. 
 
 " V. Odell, 99, 102, 104, 105. 
 Gurney v. Kenny, 34, 143. 
 Guynet v. Mantel, 152. 
 
 Haase v. N. T. Central E. E., 14, 307. 
 
 Habioht v. Pemberton, 33, 37. 
 
 Hackett v. Eichards, 123, 126, 176, 191, 193, 
 
 221. 
 Hackley, matter of, 221, 288. 
 Hackley v. Ogman, 177, 179, 181. 
 Haflft). Blossom, 147. 
 Hager v. Danforth, 218, 244.' 
 
 " " 253, 336, 338. 
 
 Haggart v. Morgan, 109, 112, 178, 222. 
 Haggerty v. Granger, 152. 
 
 " V. Simpson, 152, 276. 
 Hagins v. De Hart, 131. 
 Hahn v. Hull, 146. 
 
 " V. Van Doran, 207, 244, 327, 328. 
 Haight V. Badgeley, 152, 177, 179. 
 
 " V. Child, 122, 152, 178, 179. 
 
 " V. Hayt, 32, 33, 143, 192. 
 
 " V. Holcomb, 30. 
 
 " v. Husted, 56, 273. 
 
 " V. Price, 42, 150. 
 
 " V. Sahler, 31. 
 Haines v. Davies, 223. 
 Haire v. Baker, 121, 170, 180. 
 Halt V. Benson, 33. 
 Halbech v. Mayor of N. T., 149. 
 Halden v. Crafts, 43, 44, 149. 
 Hale V. Boardman, 207. 
 Hall V. Ayer, 30, 285, 286. 
 
 " V. Ball, 126, 127. 
 
 " V. Bartlett, 30, 168. 
 
 " V. Barton, 213. 
 
 " V. Bergen, 147. 
 
 " V. Farmer, 32, 146, 147. 
 
 " V. Fisher, 140, 142. 
 
 " " 284. 
 
 " V. Gould, 131. 
 
 " V. Huntley, 128. 
 
 " V. Kellogg, 81, 2,95, 298. 
 
 " V. Lindo, 334, 336, 340. 
 
 " V. McKechnie, 327. 
 
 " V. McMahon, 82, 83, 285, 298. 
 
 " V. Morrison, 132, 236. 
 
 " V. Naylor, 82, 85, 145, 149. 
 
 " V. Nelson, 18, 38, 60, 179. 
 
 " V. Prentice, 337. 
 
 ." V. Eoblnson, 32, 143. 
 
 " V. Samson, 111, 280. 
 
 " " 280. 
 
 " I). Southmayd, 123, 149. 
 
 HaU V. Stryker, 153. 
 
 " V. Suydam, 142. 
 
 " V. Taylor, 38, 45, 54, 122, 169. 
 
 " V. Thomas, 284. 
 
 " V. "Wilson, 146, 178. 
 
 " V. Miller, 332. 
 Hallett V. Harrower, 139, 176. 
 
 " V. Eighters, 51, 56, 58, 261, 273. 
 Hallock V. Losee, 43. 
 
 Halloran v. N. T. and Erie E. E. Co., 327. 
 Halseyt). Carter, 180. 
 Halsted v. Halsted, 268. 
 Hamann v. Keinhart, 48. 
 Hamed's case, 255. 
 Hameli). Grimm, 152. 
 Hamil v. Willett, 244, 280. 
 Hamilton i;.' Accessory Transit Co., 99, 117. 
 
 " V. Gaynard, 149. 
 
 " 0. Hough, 123, 124. 
 
 " V. Lomax, 32, 85, 142. 
 
 " V. White, 42. 
 Hamilton and Deansville Plank Eoad Co. v. 
 
 Eioe, 148, 207. 
 Hamilton Building Association v. Reynolds, 
 
 154, 178. 
 Hammersley v. Hammersley, 38, 155. 
 Hammond v. Baker, 169, 196. 
 
 " V. Bush, 48, 27«. 
 
 " V. Hazard, 243. 
 
 " V. Hudson Elver Iron and Machine Co., 
 37, 38, 140, 153, 169. 
 
 " " " 148, 196, 291. 
 
 " V. Tillotson, 50, 150, 315. 
 
 " V. Zehner, 42. 
 Hance v. Eemming, 176, 181. 
 Hanck v. Hund, 146. 
 Hancock v. Hancock, 38, 154, 192, 252. 
 Handley v. Greene, 299. 
 
 " V. Mayor of N. T., 99. 
 Haner v. BUss, 197. 
 Hanford v. Higgins, 149, 207, 208. 
 
 " V. Eogers, 147. 
 Hannay v. PeU, 180, 263, 313. 
 Hanover Co. v. Sheldon, 82. 
 Hanson u. Tripler, 114, 291. 
 Hanvey v. City of Eochester, 141. 
 Haquis v. De Hart, 142. 
 Harbeck v. Craft, 122, 146, 176, 179. 
 
 " •£/. Tanderbilt, 32, 148, 276. 
 Harden v. Palmer, 43, 44, 241. 
 Hardenburgh v. Crary, '227. 
 
 " V. Lockwood, 144. 
 Harder v. Harder, 76, 78, 150, 260. 
 Hardrop v. Gallagher, 24. 
 Hardy v. Seelye, 328. 
 Hare v. Van Deusen, 153. 
 
 " V. "White, 129, 338. 
 Hargous v. Stone, 143, 149, 327. 
 Haring v. New York and Erie R. E. Co., 221. 
 
 228. 
 Harlay v. Eetter, 126, 174. 
 Harley v. Ritter, 34, 165. 
 Harlow t). Hamilton, 133, 134, 136, 181, 191. 
 Harman v. Remsen, 99. 
 Harmon v. New York and Erie E. E. Co., 144. 
 Harmony v. Bingham, 132, 144, 149. 
 Harnes v. Tripp, 126. 
 
INDEX TO CASES CITED. 
 
 xlr 
 
 Harpell v. C\irtis, 143, 221, 232, 32'?. 
 
 " V. Irwin, 204 
 Harper v. Albmy Mutual Insurance Co., 14f . 
 " V. Bangs, 211. 
 " V. Chamberlain, HO. 
 " V. City Ins. Co., 141. 
 " V. Leal, 118, 281, 327. _ 
 Harrington v. Higham, 264. 
 
 " V. Slade, 42, 43, 60, 129, 193, 315. 
 Harriott v. New Jersey B. R. Co., 20, 59, 159, 
 
 178, 331, 334. 
 Harris v. Bennett, 192, 207. 
 " " 308. 
 
 " V. Clark, 13, 14, 74, 75, 79, 240, 313, 
 
 316. 
 " " 319. 
 
 " V. Cone, 82, 85, 285. 
 " V. Ely, 210. 
 
 " V. Hammond, 178, 193, 251. 
 " 11, Mercantile Ins. Co. of Philadelphia, 
 
 147. 
 " V. Mulock, 154, 178. 
 " V. Northern Indiana R. R. Co., 144. 
 " V. Panama R. B. Co., 222, 229, 244. 
 " V. Roofe's executors, 149. 
 " V. Pratt, 32. 
 " V. Soofield, 253. 
 Harrison v. Marshall, 32, 143. 
 " V. Newton, 99. 
 " V. "Wood, 178, 198. 
 Han-ower ii. Heath, 131. 
 Harsen v. Bayaud, 133, 135, 140. 
 Hart V. Achilles, 146. 
 
 " V. Hudson, 132, 146, 147. 
 " V. Kremer, 50, 51. 
 " V. Lanman, 144, 147. 
 " V. Potter, 229. 
 
 " V. Rensselaer and Saratoga R. R. Co., 
 144, 222. 
 Harter v. Crill, 179. 
 Hartford Quarry Co. v. Pendleton, 163. 
 Harthousev. Rikers, 281. 
 Hartman v. Proudfit, 236, 244. 
 
 " V. Spencer, 200. 
 Hartmeg v. Secordi, 180. 
 Hartshome v. Brace, 146, 178. 
 
 " V. Union Mutual Ins. Co., 147. 
 Hartt V. Harvey, 99, 121. 
 
 " 144. 
 Hartung v. The People, 320. 
 HartweU v. Armstrong, '99. 
 
 " V. Kingsley, 105. 
 Harvier v. Guion, 178. 
 Hasbrouok v. Elrich, 74, 76, 221. 
 " V. McAdam, 163. 
 " V. Vandervoort, 208. 
 Hasoall v. Madison University, 102, 105. 
 Haslam v. Adams Express Co., 144. 
 Hassell v. Borden, 143. 
 Hastings v. Farmer, 54. 
 " V. Gleen, 24. 
 " V. MoKinley, 5, 192, 304, 320. 
 
 " 32, 169, 171, 192, 193, 
 
 207, 208, 222. 
 " " 240, 242, 243, 304, 306, 
 
 313. 
 " " 245. 
 
 Hastings?;. Thurston, 122, 135, 153. 
 Hatch V. Peet, 122, 124. 
 
 *' V. Weyburu, 293, 295, 315. 
 Hatfield v. Bloodgood, 192. 
 
 " V. Secor, 315. 
 Hathaway v. Helmer, 227. 
 Hathorn v. Hall, 82, 85. 
 Haughey v. Wilson, 323, 327. 
 Hauptman v. Catlin, 34, 149, 154, 204, 207, 
 235, 298. 
 " V. Halsey, 154. 
 Hauselt v. Taussig, 337. 
 Havemeyer v. Cunningham, 229, 244. 
 144, 149. 
 Haverly v. Becker, 255. 
 Haviland v. Whitef 331. 
 Hawes v. Hoyt, 167, 274. 
 Hawkins v. Appleby, 132. 
 
 " V. Avery, 169, 171, 178, 197, 234. 
 " V. Brown, 122. 
 
 " V. Mayor of New York, 19, 322, 323. 
 Hawley v. Morton, 147. 
 
 " V. Seymour, 198, 336. 
 Hay V. Cumberland, 147. 
 " V. Hall, 144, 149. 
 Hayden v. MoDermott, 30, 255, 274. 
 Hayes v. Carrington, 89. 
 " V. Heyer, 153. 
 " V. Reese, 156, 178. 
 " 1J. Symonds, 236. 
 Hayner v. Powler, 45, 118, 300. 
 
 " V. James, 16, 19, 292. 
 Haynes v. Mosher, 338. 
 Hays V. Berryman, 221, 260. 
 Haywood v. Judson, 155. 
 
 " V. Shaw, 154, 265. 
 Hazewell v. Penman, 192, 291, 297. 
 Hazleton v. "Wakeman, 319. 
 Hazzard «. McParland, 153. 
 Healey v. Gilman, 146. 
 
 " V. Kinsley, 244, 327. 
 " V. MoManus, 147, 180. 
 " V. Preston, 48. 
 Heame v. Keene, 149. 
 Heatou v. "Wright, 134, 179. 
 Heoker v. Be Groot, 1 68, 169. 
 " V. Mitchell, 178, 181. 
 " p. New York Balance Dock Co., 150. 
 Hedges v. Seeley, 146. 
 Heebner v. Townsend, 122, 147. 
 Hees V. Snell, 87, 308. 
 Hegan v. Eighth Avenue R. R. Co., 142. 
 Hegeman v. Eox, 109. 
 
 " V. Johnson, 32, 152, 178, 267. 
 " V. MoArthur, 179, 327. 
 " V. "Western R. R. Corporation, 141. 
 Heidenbach v. Schland, 109. 
 Heidenheimer v. Lyon, 324, 327. 
 
 " V. "Wilson, 180, 327. 
 Heim v. "Wolf, 149, 222, 229, 327. 
 Heine v. Anderson, 143, 177, 179. 
 Heineman v. "Waterbury, 254, 263, 315. 
 Heller v. Heller, 34, 54. 
 Hempstead v. Hempstead, 74, 75, 79, 126. • 
 " V. New York Central R. R. Co., 132, 
 144. 
 Henderson v. Cairns, 43. 
 
xlvi. 
 
 INDKX TO CASES CITED. 
 
 Henderson v. Easton, 34, 181. 
 
 " V. Marvin, 147. 
 Hendricks v. Bouclf, 336. 
 
 " V. Decker, 122, 143, 176, 178, 313, 
 Hendrickson v. Beers, 32, 149, 178. 
 Henley v. Kinsley, 221. 
 Hennel v. Grimm, 152. 
 Henry v. Betts, 148. 
 
 " V. Bow, 67, 253, 273. 
 
 " V. Henry, 207. 
 
 " V Lowell, 244. 
 
 " V. Marvin, 141, 143, 149. 
 
 " V. Salina Bank, 126. 
 Hentz V. Long Island R R. Co., 99, 102, 105, 
 
 150. 
 Hergman v. Dittlebach, 109, 111, 202, 280. 
 Heritage v. Hall, 229, 244. 
 Herkimer County Bank v. Purman, 148, 168, 
 
 169. 
 Herkimer County Mutual Ins. Co. v. Fuller, 134. 
 
 " " " " 146. 
 
 Hernandez v. Carnobeli, 8, 38, 82, 85, 142. 
 Hernstein v. Matthewson, 109, 110, 112. 
 Heron v. Davis, 149. 
 Heroy v. Kerr, 232, 241 
 
 " V. Tan Pelt, 149. 
 Herr v. Bamberg, 134, 177, 179. 
 Herrick v. Taylor, 86, 163. 
 Herriman v. Skillman, 263, 265. 
 Herring v. Hoppock, 28, 32, 147, 149, 280, 
 
 282, 283. 
 Hersenheim v. Hooper, 292, 293. 
 Hersfield v. Adams, 144. 
 Hess V. BuEfalo and Niagara .Falls K. E. Co., 
 
 133, 134, 140, 161, 169. 
 Heubach «. Eother, 43, 149. 
 Hewitt «. Howell, 50,51, 59, 159, 197, 260, 
 
 273. 
 Hewlett V. Brown, 204, 205, 338. 
 Heyde v. Heyde, 156, 260. 
 Heywood v. City of Buffalo, 99, 121, 151, 152. 
 Hibbard ij. Burwell, 308, 316. 
 
 " V. New York and Erie E. R. Co., 141, 
 142. 
 
 " V. Stewart, I'lS, 327. 
 Hickok V. Bliss, 44. 
 
 " V. Hickok, 43, 149. 
 
 " V. Trustees of Tillage of Plattsburgh, 
 141. 
 Hicks' Will, m re, 16. 
 
 Hicks, V. Brennan, 76, 184, 224, 253, 258, 
 260, 273, 338. 
 
 " V. Charlick, 202. 
 
 " V. Foster, 244. 
 
 " V. Gildersleeve, 265. 
 
 " 11. Hinde, 146, 179. 
 
 " V. Mae Grorty, 180. 
 
 " V. Payson, 163. 
 
 " V. Smith, 316. 
 
 " V. Waltermire, 244, 336, 337. 
 
 " V. Wirth, 207. 
 Higbie v. Westlake, 304. 
 Higby V. New York and Harlem R. R. Co., 
 
 178. 
 Higginsv. Allen, 102, 106. 
 
 " V. Bishop, 201, 202, 204, 235. 
 
 " V. Mayer, 146, 178, 186, 193. 
 
 Higgins V. Moore, 178. „ t^ „ 
 
 " V. New York and Harlem R. E. Co., 
 141. 
 
 " V. Eockwell, 32, 38, 54, 122, 140, 160, 
 168, 169, 171, 175, 176, 181, 198. 
 
 " V. Thomas, 134. 
 HUdreth v. BueU, 144. 
 Hill V. Beebe, 844. 
 
 " V. Board of Supervisors of Livingston 
 County, 33, 149. 
 
 " V. Bond, 110, 112. 
 
 " V. Burger, 178. 
 
 " V. Covell, 247, 319. 
 
 " u. Draper, 150. 
 
 " V. Hill, 151, 178. 
 
 " V. Lott, 81. 
 
 " V. McCarthy, 121, 134, 179, 194. 
 
 " V. McReynolds, 260. 
 
 " V. MuUer, 126. 
 
 " V. Northrop, 48, 164. 
 
 " u. Ressegieu, 152. 
 
 " V. Thaoter, 35, 45, 50, 64, 126, 139. 
 Hilliker v. Hathorne, 263, 288. 
 Hillman v. Hillman, 34, 133, 140, 169. 
 
 " V. Strauss, 149. 
 HiUs V. Lewis, 89, 285. 
 
 " V. Stillman, 144. 
 HUton V. Thurston, 54, 273. 
 Hinchman v. Butler, 138, 200. ■ 
 Hinds V. Canandaigua and Niagara Falls E. R. 
 Co., 291, 297. 
 
 " V. Meyers, 334, 335. 
 
 " V. Schenectady County Mutual Ins. 
 Co., 338. 
 
 •' V. Tweddle, 141, 170. 
 Hinman v. Bergen, 336. 
 
 " V. Judson, 121, 180. 
 Headless v. Brundage, 333. 
 Hoag V. "Wade, 180. 
 Hoagland v. Hudson, 33, 170. 
 
 " V. StodoUa, 111. 
 
 " V. Wight, 236. 
 Hoard v. Garner, 253, 320. 
 Hobart v. Frost, 169, 170, 293, 298. 
 Hobbs V. Francais, 99. 
 Hodges V. Hunt, 35, 187. 
 
 " V. Shuler, 146, 178. 
 
 " u. Tennessee Marine and Fire Ins. Co., 
 319. 
 Hodgkins v. Montgomery County Mutual Ins. 
 
 Co., 147. 
 Hodgman v. Western E. E. Corporation, 32. 
 Hoe V. Sanborn, 143, 149. 
 Hoffman v. Eowley, 30, 66. 
 
 " V. Stephens, 207. 
 Hoftailing v. Teal, 35, 45, 64. 
 Hogan V. Baker, 327. 
 
 " V. Brophy, 316. 
 Hoge V. Page, 115, 338. 
 Hogg V. Ellis, 117, 156. 
 Holbrook v. Bassett, 146. 
 
 " V. Henderson, 38. 
 
 " V. Homer, 82, 85, 89. 
 
 " V. Mix, 146, 179. 
 
 " V. Utica and Schenectady B. E. Co., 
 141 227. 
 
 " V. Tose,' 145,' 147, 149. 
 
INBEX TO CASES CITED. 
 
 xlvii 
 
 Holbrook v. 'Wason, 146, 222, 228. 
 Holdane v. Butterworth, 244. 
 
 " V. Trustees of Village of Cold Spring, 
 99. 
 
 " 150. 
 
 Holden v. Sackett, 267. 
 Holford V. Adams, 144. 
 Hollenbeck v. Glow, 134, 111. 
 
 " V. Tan Valkenburgh, 31, 20 1. 
 HoUey v. Gosling, 149. 
 
 " V. Townsend, 149. 
 HoUins V. Mallard, 105. 
 HoUister v. HoUister, 124, 153. 
 
 " 0. Livingston, 127, 128, 166. 
 
 " V. Spafford, 294. 
 HoUister Bank, Matter of, 315, 318. 
 HoUister Bank of Buffalo v. Tail, 19, 251, 313, 
 
 318, 319. 
 Holman v. Dord, 207. 
 Holmes, in re, 156. 
 
 " V. Davis, 150, 244. 
 
 " V. Holmes, 34. 
 
 " " 178. 
 
 " V. Honie, 192, 263, 264, 273. 
 
 " V. Pavenstedt, 149. 
 
 " V. Eankin, 219. 
 
 " V. Slocum, 198, 235. 
 
 " •</. St. John, 331, 333. 
 
 " V. Weed, 148, 244. 
 
 " V. Woodward, 241, 306. 
 Holsman v. De Gray, 147. 
 Holstein v. Rice, 124, 146, 172. 
 Holyoke Bank v. Haskins, 123. 
 Home Ins. Co. v. Green, 146. 
 Hone 11. Allen, 146. 
 
 " V. Folger, 146. 
 
 " V. Joslien, 327. 
 Hood V. Manhattan Fire Ins. Co., 147. 
 Hooker v. Franklin, 146. 
 
 " V. Matthews, 201. 
 Hooper v. Hudson River Fire Ins. Co., 147. 
 
 " 1). Taylor, 149. 
 Hope V. Acker, 99, 105, 106, 184. 
 
 " V. Bogart, 43. 
 Hopkins v. Adams, 145, 192. 
 
 " V. Everett, 176, 186. 
 
 " V. Grinnell, 149, 244. 
 
 " V. Snow, 111. 
 Hoppock V. Cottrell, 256, 308. 
 
 " V. Donaldson, 48. 
 Horn V. Doody, 260. 
 Hornby v. Cramer, 66, 178. 
 Horner v. Wood, 244. 
 " 124. 
 Homfa.ger v. Hornfager, 128, 129, 193, 339. 
 
 " " 168, 169, 175. 
 
 Horspool V. Davis, 35. 
 Horton v. Garrison, 146. 
 Hosford V. Merwin, 155. 
 Hosmer v. Loveland, 142. 
 
 " V. True, 144, 147. 
 Hotaling v. Marsh, 272, 337. 
 Hotchkiss V. Crocker, 75, 139. 
 
 " V. Gage, 149. 
 Houok V. Lasher, 138, 163, 200. 
 Hough V. Brown, 147, 152, 228. 
 " V. Kohlin, 291, 293, 295. 
 
 Houghtaling v. Randen, 146. 
 Houghton V. Adams, 147. 
 
 " V. Ault, 109, 112. 
 
 " V. Doi|ge, 146. 
 
 " ■(/. Latson, 129. 
 
 " V. Skinner, 129, 193. 
 
 " V. Townsend, 177, 180, 186. 
 House V. Cooper, 32, 122, 133, 140, 143, 161. 
 Hovey v. American Mutual Ins. Co., 132, 147. 
 
 " V. McCrea, 99, 100. 
 Howf. Frear, 78, 285. 
 Howard v. Astor Mutual Ins. Co., 147. 
 
 " V. Brown, 327. 
 
 " I,. Doolittle, 144. 
 
 " ■(/. Franklin Marine and Fire Ins. Co., 
 181. 
 
 " V. Hatch, 58, 71. 
 
 " V. Holbrook, 147. 
 
 " V. Howard, 32, 150, 161. 
 
 " " 42. 
 
 " V. Michigan Southern R. R. Co., 170, 
 174, 187. 
 
 " V. Raymond, 179. 
 
 " V. Rome and Turin Plank Road Co., 
 337. 
 
 " V. Sexton, 142, 179. 
 
 " V. Taylor, 192. 
 
 " V. Tiffany, 121, 122, 123, 134. 
 Howard Banking Co. v. Welchman, 146. 
 Howard Ins. Co. v. Halsey, 154. 
 Howe V. Muir, 234, 337. 
 
 " V. Peckham, 140. 
 
 " V. Searing, 102, 104, 288, 308. 
 Howell V. City of Buffalo, 144. 
 
 " V. Eraser, 123, 133, 168. 
 
 " V. Kinney, 235. 
 
 " V. Kroose, 32, 143, 145. 
 Howes V. Davis, 118. 
 Howlaud V. Edmonds, 43, 146. 
 
 " V. Fort Edward Paper Mill Co., 34. 
 
 " V. Myer, 146. 
 
 " 0. Willetts, 138, 207, 222, 227, 319. 
 Hoxie V. Cushman, 123, 131, 146, 168, 175. 
 Hoyt V. American Exchange Bank, 201, 202. 
 
 " V. Carter, 42. . 
 
 " " 98, 99, 102, 105, 316. 
 
 " V. Dillon, 42. 
 
 " V. Hall, 144. 
 
 " V. Loomis, 198. 
 
 " V. Martense, 154, 267. 
 
 " V. New York Life Ins. Co., 147. 
 
 " V. Sheldon, 193, 315. 
 
 " V. Thompson, 32, 33. 
 
 " V. Thompson's Exec'rs, 318, 319, 320. 
 
 " V. Van Alstyne, 28, 280, 281. 
 Hubbard v. Bonesteel, 228. 
 
 " V. Eames, 38. 
 
 " V. GuUd, 99, 117. 
 
 " " 118. 
 
 " V. National Protection Ins. Co., 126, 
 127, 138. 
 
 " V. Russell, l.'jO, 222. 
 Hubbell V. Dana, 45, 59, 118, 159. 
 
 " V. Livingston, 126. 
 Huber v. Lockwood, 331. 
 Hudson River R. R. Co. v. Lounsberry, 121, 
 141, 144, 207. 
 
xlviii 
 
 INDEX TO CASES CITED. 
 
 Hnolin v. Ridner, 71, 204, 213. 
 Huff?;. Bennett, 19, 74, 241. 
 
 " 142. 
 Hughes V. Alexander, 146, 178. 
 " v. Mulvey, 253. 
 " •■;. Wood, 126, 127. 
 Hulbert v. Fuller, 278, 279. 
 
 " V. Hope Ins. Co., 32, 54, 56. 
 " It. Newell, 34, 35, 64, 163. 
 " •,;. Young, 45, 64, 122, 169, 170. 
 Huloe V. Sherman, 14, 236. 
 " V. Thompson, 99. 
 " " 140. 
 
 Hull V. Camley, 111, 143, 280. 
 " V. Peters, 178, 336. 
 " V. Smith, 181. 
 " " 38. 
 
 " V. "Wheeler, 176, 178, 207, 213, 229, 
 
 244. 
 " V. "Wilson, 178. 
 Hulsover v. "Wiles, 289, 291, 293, 301. 
 Humphrey v. Brown, 285. 
 " V. Hathorn, 286. 
 " V. Persons, 23, 45, 178. 
 Humphreys v. Chamberlain, 168. 
 
 " " 274, 306, 307, 318. 
 
 Hungerford's Bant v. Dodge, 178. 
 
 " V. Pottsdam and "Watertown R. R. Co., 
 178. 
 Hunt V. Bennett, 142, 228, 244. 
 " " 315. 
 
 " V. Bloomer, 154. 
 
 " " 232, 241, 243, 313, 320. 
 
 " K. City ofCtica, 147. 
 " V. Butcher, 123, 124. 
 " V. Enoch, 293. 
 " V. Farmers' Loan and Trust Co., 99, 
 
 180. 
 " V. Hobolcen Land and Lnproyement 
 
 Co., 178, 327. 
 " V. Hudson River Ins. Co., 121, 123, 
 
 131, 147, 222, 315. 
 " V. Keech, 154, 267. 
 " V. Mails, 217, 225. 
 " V. Maybee, 146, 222. 
 " V. Meacham, 126. 
 " V. Middlebrook, 331, 337. 
 " V. Mootry, 96, 99. 
 " V. Moultrie, 178. 
 
 " V. New York and Brie R. R. Co., 144. 
 " V. "Westervelt, 149, 327, 328. 
 Hunter v. Allen, 218. 
 " V. Frisbee, 170. 
 " V. Hudson River Iron 8.nd Machine 
 
 Co., 32, 94, 123, 132, 141, 145. 
 " V. Hunter, 32. 
 " V. Lester, 54, 58, 217, 273. 
 " V. Osterhoudt, 222. 
 " V. Powell, 140. 
 Huntington v. Conkey, 221, 244. 
 Huntley v. Beecher, 146. 
 
 " V. Merrill, 147. 
 Hurd V. Beeman, 327. 
 " V. Cass, 34. 
 " v. Davis, 66. 
 " V. Hunt, 178. 
 " V. Leavenworth, 260, 273. 
 
 Hurd V. Miller, 149, 150. 
 Hurlbut V. Carter, 146. 
 
 " V. Post, 32, 178, 179, 180. 
 
 " V. Root, 146. 
 
 " V. Seeley, 109. 
 Hurley v. Tan "Wagner, 149. 
 Hutcheon v. Johnson, 149, 152. 
 Hutchinson v. Brand, 28, 279, 285. 
 
 " V. ChamberUn, 2^1. 
 
 " V. N. Y. Central Mills, 102. 
 Hutson V. Mayor of New York, 141, 144. 
 Hyatt t). Bates, 99, 178. 
 
 " V. Burr, 99. 
 
 " V. McMahon, 118, 122, 146. 
 
 " V. Pugsley, 265. 
 
 " V. Seeley, 318. 
 
 " V. "Wagenright, 56. 
 Hyde v. Conrad, 170, 178, 186. 
 
 " V. Cookson, 143.' 
 
 " V. Lynde, 118, 146. 
 
 " V. Patterson, 59, 96, 159. 
 Hyerv. Ayres, 82, 85. 
 Hyland v. Sherman, 149, 222, 324. 
 Hynds v. Griswold, »34. 
 
 " V. Schenectady County Mutual Ins. Co., 
 147. 
 Hyslop V. Randall, 32. 
 
 Hion Bank v. Carver, 143, 179. 
 
 Illius V. New York and New Haven R. E. Co., 
 
 8, 159, 315, 318. 
 Ingalls V. Morgan, 153. 
 
 IngersoU v. Bostwick, 237, 265, 273, 304, 319, 
 320. 
 
 " u. Gillies, 23, 327. 
 
 " V. IngersoU, 134. 
 Inglehart v. Johnson, 75. 
 Inglis V. Kennedy. 146. 
 
 Ingraham v. Baldwin, 34, 36, 42, 43, 150, 170, 
 171, 178, 222. 
 
 " V. Gilbert, 149, 236, 313. 
 Innes v. Lansing, 153. 
 International Bank v. Bradley, J9, 178. 
 International Life Association Co. v. Sweet- 
 land, 138, 163. 
 Ireland v. Litchfield, 45, 147, 278, 313, 315, 
 
 319. 
 Irroyi). Nathan, 327. 
 Irving V. Excelsior Fire Ins. Co., 147. 
 Irving Bank v. "Wetherald, 145, 146, 178. 
 Irwin V. Lawrence, 313, 327. 
 
 " V. Muir, 323, 325. 
 Isaac V. Telloman, 134. 
 Isaacs V. Beth Hamedrath Society, 304, 318. 
 
 " V. Gorham, 34, 82. 
 Isham !). "Wilhamson, 136, 166, 176, 187, 191. 
 Isles V. Tucker, 152. 
 Ives V. Goddard, 180. 
 
 " V. Humphreys, 123, 149, 244. 
 
 " V. MiUer, 180, 251, 835, 336, 339. 
 
 Jackett V. Judd, 242, 331, 336, 339. 
 JackUng v. Edmonds, 201, 202. 
 
INDEX TO OASES CITED. 
 
 xlix 
 
 Jacks V. Dan-in, 146, 219, 244, 327. 
 " " 146, 219. 
 
 " " 328. 
 
 Jaoksoni). Babcook, 152, 268. 
 
 " V. De Forest, 117, 118, 156, 197. 
 
 " V. Fassitt, 178, 240, 241, 242, 263, 
 
 306, 313. 
 " V. Figaniere, 337. 
 " V. McBurney, 336. 
 " V. Purchase, 329. 
 " V. Sanders, 129, 131. 
 " V. Sheldon, 78, 101, 117, 153, 274. 
 " V. Sloan, 154. 
 ." u. "Whedon, 45, 171, 178. 
 Jacques v. Short, 34. 
 Jacquin v. Buisson, 99, 117. 
 Jaoquii-son v. Tan Erben, 56, 273. 
 Jacobs V. Hooker, 66, 166. 
 " V. Kolff, 149. 
 
 " V. MarshaU, 127, 167, 181, 273, 315. 
 " V. Remsen, 122, 153, 177. 
 Jacot V. Boyle, 140, 172. 
 Jeigoe V. Alleyn, 207. 
 
 James v. Chalmers, 32, 146, 207, 315, 318, 319. 
 " V. Kirkpatrick, 50, 61. 
 " V. Lansing, 153. 
 " V. Oakley, 32, 99. 
 " V. Pattan, 10. 
 " V. Stuyvesant, 99. 
 Jamison v. Beecher, 110. 
 Jaques v. Areson, 105. 
 
 " V. Greenwood, 166, 174, 257, 273. 
 " V. Morris, 154, 169. 
 Jarvis v. Clark, 201, 204. 
 
 " V. Feloh, 192, 215, 224. 
 Jay's case, 45, 99, 118. 
 Jay V. Martine, 45, 192, 278. 
 Jaycocks v. Ayres, 179. 
 Jellinghaus v. New York Ins. Co., 147. 
 
 " " 306, 807. 
 
 Jencks v. Smith, 222. 
 Jenkins v. Continental Ins. Co., 154. 
 
 " V. Hooker, 149. 
 Jennings v. Alexander, 147, 149. 
 " V. Asten, 260. 
 " V. Fay, 184, 198, 336. 
 " V. Jennings, 20, 64, 83, 265. 
 Jeroliman v. Cohen, 128. 
 Jeroms v. Jeroms, 147. 
 Jessup V. Hulse, 153. 
 Jewell V. Sohouten, 66. 
 " V. Schroeppel, 149. 
 " V. Wright, 178. 
 Jewett V. Crane, 32, 39, 112, 147, 273, 274. 
 " y. Jewett, 24. 
 " V. Mffler, 118, 178, 267. 
 Jobbett V. Goundry, 178. 
 Johnson v. Anderson, 30. 
 
 " V. Carnley,145, 179, 265, 304, 319, 320. 
 " V. Cayuga and Susquehanna R. R. Co., 
 
 138. 
 " V. Conger, 152. 
 " V. Parrell, 265, 315, 333. 
 " 0. Gibson, 149. 
 " V. Hudson River R. R. Co., 141, 142, 
 
 228. 
 » V. JiUitt, 78, 253, 339. 
 
 Johnson v. Lynch, 217. 
 
 " V. McDonald, 70. 
 
 " 0. Mcintosh, 129, 207,-244. 
 
 " V. New York Central R. R. Co., 144. 
 
 " V. Paul, 50, 51, 139. 
 
 " V. Sagar, 164, 253, 333, 334. 
 
 " V. Soriven, 316. 
 
 •' V. Snyder, 38, 129, 134, 193. 
 ■• " V. Stevens, 152. 
 
 " V. Taber, 335. 
 
 " V. "Wetmore, 170. 
 
 " V. Whitlock, 232, 236, 237, 241, 243, 
 313, 320. 
 
 " V. Williams, 192, 193. 
 
 " V. Wilson, 207. 
 
 " V. Yeomans, 163, 304. 
 Johnson, President, &o. v. Kemp, 122, 123. 
 Johnston v. Bryan, 75, 161. 
 
 " V. Fellerman, 48. 
 
 " V. McAusland, 30, 48. 
 Jones V. Alston, 178. 
 
 " V. Atterbury, 102. 
 
 " V. Bradner, 111. 
 
 " V. Butler, 35, 157, 178. 
 
 " V. Guyler, 197. 
 
 " 0. Derby, 55, 273. 
 
 " 315, 318, 319. 
 
 " V. East Society Methodist Episcopal 
 Church of Rochester, 43, 207. 
 
 " V. Pelch, 32. 
 
 " V. Judd, 147, 149. 
 
 " V. Kip, 312, 313. 
 
 " V. Lawlin, 278, 291, 293, 295. 
 
 " V. McCarl, 280, 323. 
 
 " V. New York and Erie R. R. Co., 144. 
 
 " V. Osgood, 222. 
 
 " I/. Palmer, 134. 
 
 " V. Patterson, 32, 149. 
 
 " V. Phceniz Bank, 35, 122, 178. 
 
 " V. Porter, 293. 
 
 " V. Pridham, 327. 
 
 " V. Robinson, 118. 
 
 " u. Russell, 217. 
 
 " V. Underwood, 178. 
 
 " " 331. 
 
 " V. U. S. Slate Co., 58, 272, 273, 274, 
 339. 
 
 " V. Wilson, 207. 
 Jordan v. Garrison, 200, 217. 
 Jordan and Skaneateles Plank Road Co. v, Mor- 
 
 ley, 148. 
 Journeay v. Brookley, 32, 149, 327. 
 Joyce V. Holbrook, 298, 315. 
 
 " V. Mayor of New York, 274, 315. 
 Jube V. Brooklyn Fire Ins. Co., 147. 
 Judd V. Fulton, 71. 
 
 " o. Young, 39, 113. 
 Judson V. Gray, 146, 148, 235, 243, 320. 
 
 " " 235. 
 
 K. 
 
 Kahn's Case, 288. 
 
 Kain v. Masterton, 267. 
 
 Kaine, in re, 8. 
 
 Kalt V. Lignot, 333, 334. 
 
 Kamena v. Warner, 144, 147. 
 
INDEX TO CASES CITED. 
 
 Kamlahv. Salter, 181. 
 Kane v. Demarest, 274. 
 
 " V. Dulex, 178, 327. 
 Kanouse v. Martin, 8, 11, 224. 
 
 " " 318. 
 
 " " 331, 336. 
 
 Kapp V. Barthan, 128, 207, 236. 
 Karl V. Halliard, 141, 244. 
 Kasson v. Mills, 229, 327. 
 Kattenatroth v. Astor Bank, 20, 76, 116, 117. 
 Kaylor v. O'Connor, 38. 
 Kayser v. Siohel, 141, 147, 148, 149. 
 Keating v. Anthony, 333. 
 Keator v. Ulster and Delaware Plank Road 
 
 Co., 197. 
 Kedenburg v. Morgan, 82, 285. 
 Keegan v. Western R. R. Corporation, 141, 
 
 222, 237, 320. 
 Keeler v. Belts, 51, 84. 
 
 " V. Davis, 150. 
 
 " V. Dusenbury, 201, 204. 
 
 " V. Poughkeepsie and Salt Point Plank 
 Eoad Co., 197. 
 
 " V. Salisbury, 178. 
 
 " V. Tanderpoel, 213. 
 Keenan v. Dorflinger, 30. 
 Keene v. La Parge, 184, 192. 
 Keep V. Lord, 180. 
 Keese v. Wyman, 164, 336. 
 Kelley v. Upton, 152. 
 
 " 244, 249, 313. 
 Kellogg V. Church, 32. 
 
 " " 176. 
 
 " V. Kellogg, 150, 284. 
 
 " V. Klock, 35, 45, 64, 257, 339. 
 
 " V. Olmsted, 38, 270, 271. 
 
 " V. Paine, 162, 218. 
 
 " V. VoUentine, 150. 
 
 " V. Wilkie, 228. 
 Kelly V. Barnett, 181. 
 
 " V. Breusing, 111, 122. 
 
 " v. Brower, 327. 
 
 " V. McCormick, 147, 178, 292, 302. 
 
 •' V. Mayor of Sew York, 141. 
 
 " V. Searing, 260. 
 Kelsey v. Bradbury, 32, 146, 180. 
 
 " " ■ 178, 180. 
 
 " V. Covert, 50, 51, 160, 260. 
 
 " V. Durkee, 99. 
 
 " V. Griswold, 43. 
 
 " V. King, 99, 121. 
 
 " V. Western, 122, 132, 304, 805, 306, 
 320. 
 Kelty V. Jenkins, 146, 323. 
 Kemeys v. Richards, 236, 244. 
 Kemp V. Harding, 117, 293, 297, 300. 
 Kendall v. Hodgins, 48. 
 " V. Stone, 150. 
 
 " V. Treadwell, 154, 265. 
 
 " V. Washburn, 44, 51, 66, 129. 131, 
 261, 272, 273. 
 Kennedy v. Cotton, 123, 222, 313. 
 " V. MiUs, 278. 
 " V. New York and Harlem R. R. Co., 
 
 236, 244, 335. 
 " V. O'Brien, 305, 328. 
 " V. Shilton, 197. 
 
 Kennedys. Shilton, 315. 
 
 ■• I.. Weed, 293. 
 Kent«. Harcourt, 42, "8 222, 244 
 
 " V. Hudson River R. R. Co., 144, 178. 
 
 " V. Manchester, 162. 
 Kemochan v. New York Bowery Fire Ins 
 
 Co., 147, 178, 244. 
 Kerrigan v. Ray, 145, 254. 
 Ketoham v. Woodruff, 313. 
 Ketchum v. Bank of Commerce, 152. 
 
 " V. Bement, 146. 
 
 " V. Clark, 197, 235, 237. 
 
 " V. Zerega, 123, 131, 176, 181, 186, 
 187, 191, 231, 313. 
 Keteltas v. Maybee, 122, 176. 
 
 " <;. Myers, 146, 251, 313. 
 
 " d. Penfold, 33, 207. 
 Keyeg v. Devlin, 142, 179, 222, 313, 315. 
 
 " V. Moultrie, 178. 
 
 " " 272. 
 
 Keyser v. Harbeck, 143. 
 
 " V. Waterbury, 95, 114. 
 Kiddi;. Belden, 94, 145, 178. 
 
 " V. Dennison, 38, 150. 
 Kiddle v. Degroot, 24. 
 Kieman v. Eocheleau, 143, 227. 
 Kiersted v. People, 32. 
 Kilian v. Washington, 112. 
 Killmore v. Culver, 32. 
 Kilpatrick v. Carr, 324. 
 Kilts V. Seeber, 164, 180, 333, 334. 
 Kimberly v. Blackford, 163. 
 
 " V. Goodrich, 163. 
 
 " V. Patchin, 149. 
 
 " V. Stewart, 163. 
 King V. Dennis, 243, 319, 320. 
 
 " V. Dowdall, 71. 
 
 " V. Harris, 255, 267. 
 
 " V. Kirby, 32, 81, 82, 295. 
 
 " V. Cowry, 207. 
 
 " V. Merchants' Exchange Co., 167, 225, 
 274. 
 
 " " " " 315, 319. 
 
 " V. Morris, 267. 
 
 " V. Orser, 28, 32, 95, 144, 145, 179. 
 
 " V. Stafford, 251, 257, 313. 
 
 " V. Tuska, 293, 297. 
 
 " V. Utica Ins. Co., 134, 135, 176, 187. 
 
 " V. Vanderbilt, 171, 175, 200. 
 
 " V. West, 207. 
 Kingsland v. Bartlett, 315. 
 Kingsley v. Temon, 146, 178. 
 Kingston Bank v. Gay, 178, 180. 
 Kingston Mutual Ins. Co. v. Clark, 147. 
 Kinkaid v. Kipp, 126. 
 Kinsman v. BirdsaU, 146, 179. 
 
 " V. New York Mutual Ins. Co., 149, 
 244. 
 Kip V. Monroe, 179. 
 Kipp V. Munroe, 149. 
 
 Kirby v. Fitzpatriok, 40, 78, 236, 237, 247, 
 318. 
 
 " V. Hewitt, 149. 
 Kirk V. Young, 36, 37, 169. 
 Kirtland v. Warner, 146. 
 Kissam v. Hamilton, 150. 
 
 " V. Marshall, 110, 112. 
 
INDEX TO CASES CITED. 
 
 Kissam v. Roberta, 122, 131, 143, Itt, 179. 
 
 Kissock V. Grant, 261. 
 
 Klein v. Hentz, 32, 34, 142. 
 
 Klenok v. De Forest, 324. 
 
 Kloppenberg v. Neefua, 285. 
 
 Knapp V. Dagg, 141. 
 
 Knauth v. Bassett, 153, 118. 
 
 Kneedler v. Sternburgh, 17T, 180, 186. 
 
 Kneetle v. jSTewcomb, 281. 
 
 Knebue v. "Williams, 95. 
 
 Kneiss v. Seligman, 174, 186. 
 
 Knickerbacker v. Louoks, 127. 
 
 Knickerbocker v. Aldrioh, 207. 
 
 Knickerbocker Bank, in re, 14, 74, 79. 
 
 " 118. 
 Knight V. Lang, 146. 
 
 " V. Wilcox, 142, 228. 
 Knopfel V. Senfert, 146. 
 Kuowles V. Gee, 121, 122, 123, 134. 
 Knowlton u. Mickles, 38, 180. 
 Koening v. jSTott, 142, 169. 
 Koniugsbiirg v. Launitz, 32, 94, 145. 
 Kopper V. Howe, 45; 
 Korfft!. Green, 32, 33, 99. 
 Kortright v. Cady, 154, 178. 
 Krauth v. Tial, 82. 
 Kreig v. Wells, 141. 
 Krender v. Wooloott, 144. 
 Kress v. Ellis, 278, 285. 
 Krom V. Hogan, 102. 104, 105. 
 Kuhlmauj;. Orser, 28, 95, 111, 145, 178. 
 Kuadolf JJ. Thalheimer, 18, 169, 334. 
 Kurtz V. McGuire, 134, 180. 
 
 Labar v. Kopliii, 207, 229. 
 
 " V. Taber, 144. 
 Labuasiere v- New York and New Haven R. 
 
 R. Co., Ul. 
 Laobaise v. Libby, 192. 
 
 " V. Lord, 36, 37, 99, 117, 153, 196. 
 " V. Mark.=i, 32, 99, 101. 
 Lackey v. Vanderbilt, 134, 136, 166. 
 Laoour v. Mayor of New Tork, 143. 
 Ladue v. Van Veehten, 207. 
 Lii, Farge v. Exchange Fire Ins. Co., 207. 
 " V. Halsey, ISO. 
 " V. Herter, 178. 
 
 " V. La Farge Ins. Co., 201, 218, 315. 
 " V. Mansfield, 147, 180. 
 " V. Tan Wagenen, 74, 76, 267. 
 La Fayette Ins. Co. of Brooklyn v. Rogers, 
 
 123, 146, 147. 
 Laflin v. Griffiths, 267. 
 La Forge v. Chilson, 164. 
 Lageman v. Kloppenburg, 149. 
 Lahens v. Fielden, 27. 
 Lahey v. Kingon, 164, 273. 
 Lairaber v. Alien, 70, 126, 127. 
 
 " V. City of New York, 222. 
 Lake v. Gibson, 304, 318. 
 
 " V. Tysen, 146, 149, 178. 
 lake Ontario, Auburn, and New York R. R. 
 Co. V. Marvine, 242, 304, 306, 307, 
 319, 320. 
 " V. Mason, 148. 
 
 Vol. I.— e 
 
 Lakeman v. Grinnell, 144. 
 
 Laking v. N. York and Erie R. R. Co., 14, 234. 
 
 Lalliette v. Van Keuren, 24, 318, 320. 
 
 Lambersou v. Marvin, 267. 
 
 Lambert v. Converse, 48. 
 
 " V. Seely, 149, 178, 222. 
 " " 327. 
 
 " V. Snow, 85, 140, 141, 316. 
 Lamoreux v. Atlantic Mutual Ins. Co., 123, 134, 
 147, 157. 
 " V. Morris, 235. 
 La Motte v. Archer, 143, 328. 
 Lampmani). Milks, 150. 
 Lampmanh v. Cochran, 144. 
 147. 
 Lamport v. Abbott, 32, 99, 140, 157. 
 
 " V. Beeman, 152. 
 Lampson v. McQueen, 128, 190, 193. 
 Lancaster v. Boorman, 75, 85, 315. 
 Landan v. Leery, 122, 140, 146. 
 Landsberger v. Magnetic Telegraph Co., 144. 
 
 " " " " 333, 33.1. 
 
 Laudt V. Hilta, 28, 142. 
 Lane v. Beam, 51, 121, 129. 
 " V. Cole, 218. 
 " V. Columbus Ins. Co., 32. 
 " V. Doty, 43. 
 " V. Gilbert, 179, 181, 260. 
 " V. Gould, 42, 244. 
 " V. Losee, 182. 
 " V. Morse, 27, 70, 126, 127. 
 Lang V. Ropke, 46, 150, 244. 
 
 " V. Wilbraham, 150, 193, 265. 
 Langdou v. Wilkes, 74. • 
 Langley v. Hickman, 234, 235, 
 " V. Warner, 247, 319. 
 " " 308. 
 
 " " 320. 
 
 Langworthy v. New York and Harlem R. R. 
 
 Co., 144. 
 Lanman v. Lewiston R. R. Co., 304, 306, 315, 
 
 316, 318, 320. 
 Lanning v. Swarts, 332. 
 Lansing ». Carpenter, 10, 11, 26, 48, 255. 
 " V. Cole, 332. 
 " V. Coley, 126, 213. 
 " V. Russell, 222, 241. 
 " " 309, 318, 319. 
 
 " V. Stone, 143. 
 Lansingh v. Parker, 177. 
 Lapious V. Hart, 79, 82, 240. 
 Laraway v. Perkins, 122. 
 Larned v. Vandenburgh, 28. 
 Latham v. Bliss, 333, 336, 340. 
 
 " V. Westervelt, 81, 144, 179. 
 Lathrop v. Morris, 146, 179. 
 Latimer v. Wheeler, 145. 
 Latson, in re, 278. 
 
 " V. Wallace, 320. 
 Lattimer v. New York Metallic Spring Co., 172. 
 Lattin v. McCarty, 123, 133, 140. 
 Laub V. BuckmiUer, 152, 284. 
 Lauer v. Brown, 149. 
 Laughrau v. Orser, 23, 333, 334. 
 Launitz v. Bamum, 24, 333, 334. 
 Laverty v. Moore, 178, 267. 
 Law Graduates, Sec, matter ofj 30. 
 
Ill 
 
 INDEX TO CASES CITED. 
 
 Trawler v. Saratoga Mutual Fire Ins. Co., 66, 
 
 166. 
 Ijiwrence v. Ball, 43, 151, 152, 178. 
 
 " V. Davis, 251, .'536. 
 
 " V Farmers' Loan and Trust Co., 164. 
 .' " " 313, 319. 
 
 " V. Fowler, 121, 237, 304, 319. 
 
 " i>. Fox, 148. 
 
 " V. Kidder, 144. 
 
 " V. McCready, 146. 
 
 " V. Miller, 146. 
 
 " V. Nelson, 146, 180. 
 
 " V. Williams, 150. 
 
 •' V. "Woods, 178. 
 
 " u. "Wright, 122, 123, 160. 
 Lawton v. Sager, 267. 
 Layman v. "Whiting, 150. 
 Leach V Boynton, 176, 181. 
 
 " V. Kelsey, 207, 222. 
 Learned v. Tallmadge, 42. 
 
 " V. Vandenburgh, 60, 110, 111, 280. 
 Leavitt «;. Blatchford, 10, 18, 118, 146, 178. 
 
 " V. Curtis, 147. 
 
 " V. De Launcey, 178. 
 
 " V. Fisher, 38, 156, 169, 171, 174. 
 
 " V. Palmer, 154. 
 
 " V. Pell, 178.- 
 Leavy v. Roberts, 232, 241, 245, 307. 
 Leaycroft v. Fowler, 197. 
 Lecomte v. Jerome, 134. 
 Ledyard v. Jones, 28, 244. 
 Lee». Ainslie, 146, 172, 181, 261. 
 
 " V. Averill, 54. 
 
 " V. Brush, 198. 
 
 " V. DiU, 152. 
 
 " V. Elias, 134. 
 
 " V. Grinnell, 147. 
 
 " II. Heirberger, 297. 
 
 " V. Schmidt, 222, 323, 327. 
 
 " V. Selleck, 146. 
 
 " V. Stanley, 109. 
 
 " V. "Watkins, 274, 278. 
 Lee Bank v. Kitching, 146, 181. 
 Leeds v. Brown, 204. 
 
 " V. Dunn, 147. 
 
 " V. Mechanics' Ins. Co., 147. 
 Lees V. Bichardson, 149. 
 Lefever s.-Brigham, 207. 
 Lefevre v. Laraway, 64, 266, 266, 267. 
 
 " V. Latson, 126. 
 Lefferts v. Hollister, 178. 
 
 ■■ V. Snediker, 76, 181. 
 Leffingwell v. Chave, 83, 102, 103, 105, 108, 
 
 109, 112. 
 Legee v. Burbank, 207. 
 Leggett V. Bank of Sing Sing, 124. 
 Lehman v. City of Brooklyn, 142, 244. 
 Lehretter v. Koffman, 99. 
 Leigh V. "Westervelt, 99. 
 Leitch V. Hollister, 153. 
 Lemon v. Trull, 180, 187. 
 
 " V. "Wood, 332. 
 Lent V. Hodgman, 146. 
 " V. Jones, 327. 
 " *. McQuin, 117. 
 Lentilhonj). Mayor ofNewTork, 254, 306, 307 
 308. 
 
 Lentz V. Craig, 267. 
 Lenx V. Jansen, 146. 
 Leonori v. Bishop, 244. 
 Leopold V. Meyer, 64, 332. 
 
 " 0. Poppenheimer, 50, 83, 123, 142. 
 Leroy v. Bedell, 195. 
 
 " V. Halsey, 293. 
 
 " V. Marshall, 121. 
 
 " V. Shaw, 32, 122, 124, 140, 147, 152. 
 Leseuer v. Leseuer, 180. 
 Lester v. Jdwett, 144, 152. 
 Lettman v. Ritz, 129, 131, 142. 
 Levi V. Jake ways, 126, 127. 
 Levy V. Bend, 176, 180, 191. 
 
 " V. Cavanagh, 207, 300. 
 
 " V. Ely, 102, 117, 126, 146. 
 
 " V. Joyce, 267. 
 Lewando v. Dunham, 32, 36. 
 Lewin v. Stewart, 171, 178, 191. 
 Lewis V. Acker, 123, 140, 176, 180, 187. 
 
 " " 251. 
 
 " V. Chapman, 142, 228. 
 
 " V. Graham, 33, 154, 171. 
 
 " V. Kendall, 122, 123, 177, 179, 186. 
 
 " V. Jones, 254, 272. 273. 
 
 " V. McMillan, 146. 
 
 " V. Oliver, 99. 
 
 " V. Ryder, 179, 221, 244. 
 
 " V. Smith, 38, 154. 
 
 " v. Triokey, 149. 
 
 " V. Truesdell, 86. 
 
 " V. Varnum, 38, 194, 228. 
 
 " V. Woodruff, 276. 
 
 " V. Woodworth, 43. 
 Lexington and Big Sandy R. R. Co. v. Good- 
 man, 38, 140. 
 Libby v. Adams, 146. 
 Liddle v. Market Fire Ins. Co., 147. 
 
 " V. Thatcher, 98, 105, 169. 
 Liebman v. Solomon, 142, 179. 
 Lief V. Shausenburgh, 83. 
 Lienan v. Lincoln, 122, 149. 
 Lignot V. Redding, 180. 
 LiUiendahl v. Fellerman, 278, 291. 
 Linn v. Clow, 332. 
 Linden v. Graham, 148. 
 
 " " 150. 
 
 " V. Hepburn, 99, 121, 123, 140, 150, 
 157, 266. 
 Lindsays. Sherman, 15, 79, 291, 293, 295, 315. 
 Lindsley v. Almy, 307. 
 Lippincott v. Goodwin, 133, 134, 135, 140, 
 
 177. 
 Lippman v. Joelson, 1 64. 
 
 " V. Petersberger, 286. 
 
 " V. Petersburgher, 83. 
 Lisk V. Sherman, 149, 178, 207. 
 Litchfield v. Burwell, 54, 56, 58, 64, 197, 234. 
 
 " V. Pelton, 105. 
 Lithaner v. Turner, 85. 
 Little V. Keen, 207. 
 
 " V. Wilson, 149. 
 Littlefield v. Murin, 160, 161. 
 Littlejohn v. Greeley, 133, 134, 181, 186. 
 
 " " 142, 221, 228. 
 
 Liver v. Orser, 280. 
 Livermore v. Jenks, 8, 159. 
 
IISTDEX TO CASES CITED. 
 
 liii 
 
 Livesey v. Sanders, 285. 
 Livingston u. Bank of New York, 102, 117, 118. 
 " V. Cleaveland, 293. 
 " V. Finckle, 181. 
 " 1!. Harrison, 176, 177, 178. 
 " V. HoUenbeok, 99. 
 " V. Hudson River R. R. Co., 99. 
 " V. Meldrum, 263, 265. 
 " V. MiUer, 240, 
 " " 101. 
 
 " " 219. 
 
 " 243, 309, 320. 
 " " 336. 
 
 " V. Oaksmith, 124. 
 " V. Radcliff, &c., 222, 243, 319, 320. 
 " V. Roberts, 256. r 
 
 " V. Smith, 122, 124, 152, 176. 
 " V. Stoessel, 34, 145. 
 " V. Swift, 103, 288, 315. 
 " V. Tanner, 122, 150. 
 " V. VieiUe Moutagne Zinc Mining Co., 
 336. 
 Lookwood V. Mayor of New York, 141, 143. 
 " V. Mersereau, 144. 
 •' V. Thorns, 149, 178, 228, 236. 
 " V. Tan Slyke, 285. 
 " V. Younglove, 281. 
 Loesclier v. Nordmeyer, 323. 
 Loftus V. Clarke, 23, 32, 146. 
 Logan V. Brooks, 338. 
 
 " V. Thomas, 338. 
 Logue V. Gillick, 178, 324, 328. 
 
 " V. Link, 208. 
 Long II. Hall, 163. 
 
 Longworthy v. Knapp, 140, 170, 178. 
 Loomis V. Bowers, 22. 
 
 " V. Brown, 36, 106, 140, 147, 178. 
 " V. Dorsheimer, 146, 186. 
 " V. Loomis, 144. 
 " V. Tift, 171. 
 Looney v. Hughes, 147. 
 Loonie v. Hogan, 147, 148. 
 Loosey v. Orser, 28, 144, 176, 177, 179. 
 Loper V. Welch, 122, 149. 
 Lord V. Cheeseborough, 134, 146, 176, 181. 
 " V. Tandenburgh, 66, 273. 
 " V. Vreeland, 129, 134, 140, 231. 
 Lorillard v. LoriUard, 118. 
 
 " V. Silver, 152. 
 Loring v. United States Vulcanized Gutta 
 
 Peroha Co., 13. 
 Lott V. Swezey, 149, 305. 
 Lottimer v. Lord, 74, 117, 118, 316. 
 Lounsbury v. Purdy, 255. 
 
 132, 152, 284, 319, 320. 
 " V. Depew, 146, 178. 
 Loveland v. Hosmer, 179. 
 Lovell V. Clarke, 77, 201, 202. 
 " V. Martin, 85. 
 85. 
 " " 82. 
 
 " V. Orser, 179. 
 Lovett V. German Reformed Church, 11. 
 " 267. 
 
 " V. Robinson, 34, 280. 
 Low V. Archer, 122, 144. 
 " V. Austin, 149. 
 
 Low V. Payne, 304. 
 Lowher v. Childs, 38, 327. 
 
 " 0. Mayor of New York, 291, 297. 
 
 " " 15, 48, 274. 
 
 " " " 291, 297. 
 
 " V. Selden, 149, 152, 174, 179, 
 Lowell V. Lane, 173, 178, 180. 
 Lowenstein, in re, 285, 291. 
 Lowerre v. Vail, 184, 332, 338. 
 Lowery v. Steward, 146, 244. 
 Luby V. Hudson River R. R. Co., 244. 
 Lucas V. Johnson, 150. 
 
 " " 280, 289. 
 
 " V. New York Central R. R. Co., 32, 33, 
 140, 142. 
 
 " V. Trustees of Baptist Church of 
 Geneva, 54. 
 Luce V. Trempert, 160. 
 Luckey v. Prantzkee, 179, 222. 
 Ludden v. Hazen, 143, 149, 280. 
 Ludingtonv. Taft, 156, 171, 197, 234, 236. 
 Ludlow V. Carman, 149. 
 Luling V. Staunton, 50. 
 Lund V. Seamen's Bank for Savings, 40, 131, 
 
 186. 
 Lutz V. By, 236. 
 Luyster v. Gri£6n, 243. 
 Lyle V. Murray, 43. 
 
 " V. Smith, 30, 39, 60, 64, 155, 160, 198. 
 Lyman v. Cartwright, 111, 299. 
 
 " V. Newman, 180. 
 Lyme v. Ward, 318, 331, 339. 
 Lynch v. Cunningham, 154, 161, 336. 
 
 " ■</. Davis, 32, 33. 
 
 " V. Henderson, 201, 202. 
 
 " V. Livingston, 26, 27. 
 
 " V. McBeth, 323, 324, 327. 
 
 " V. Mosher, 200. 
 
 " V. Murray, 134, 177. 
 
 " V. TJbbetts, 145, 152. 
 
 " V. Todd,_126, 273. 
 Lynda v. CoueuKoven, 241, 254. 
 
 " u. O'Donnell. 192, 267. 
 
 " V. Verity, 167. 
 Lynsky v. Prendergast, 324, 327. 
 Lyon V Blossom, 132. 
 
 " V. Clark, 147. 
 
 " " 219. 
 
 " V. Manly, 45, 46, 255, 304. 
 
 " V. MarshaU, 227, 244. 
 
 " V. Valentine, 149. 
 Lysaght v. Phillips, 146. 
 
 M. 
 
 McAllister v. Albion Plank Road Co., 18. 
 
 " " 318, 320. 
 
 " V. Pond, 201, 202. 
 
 " V. Sexton, 244, 324, 327. 
 McArthur v. Lansburgh, 291, 293. 
 McAuley v. Meldrum, 244. 
 McBride v. Crawford, 324. 
 
 " V. Farmers' Branch Bank, 111, 280, 
 291, 297. 
 McBurney v. Cutler, 222. 
 McButt V. French, 322. 
 
 " 0. Hirsch, 45, 82, 83. 
 
liv 
 
 INDEX TO CASES CITED. 
 
 McButt V. Hoge, UG. 
 MoCabe v. Doe, ill. 
 MoCafferty v. Glazier, 99, 105. 
 " V. Kelly, 324. 
 " V. McOabe, .12, 99. 
 McCahillti. Kipp, .327. 
 McCann v. Bradley, 192, .832. 
 
 " V. Thompson, 96. 
 McCarron v. The People, 10, 11. 
 McCarthy v. Hancock, 198, 215. 
 " d; Peake, 11, 99, 117. 
 117. 
 McCai-tney v. Bostwick, 153. 
 McCarty v. Ely, 327. 
 McChain v. McKeon, 280, 286. 
 McOleary v. Edwards, 213. 
 
 " V. Kent, 141. 
 McCluaky v. CromweU, 147. 
 McCoUum V. McClare, 327. 
 McComber v. Granite Ins. Co., 132, 147. 
 ilcConihe v. New York and Brie R. R. Co., 
 
 147, 149, 244, 249. 
 MeConnell v. Adams, 64. 
 McGonoehie v. Sun Mutual Ins. Co., 147. 
 MeCormiok v. Hudson River R. R. Co., 144. 
 " V. Kehoe, 298, 300. 
 " V. Pickering, 178, 319. 
 McCosker ». Golding, 34. 
 McCotter v. Hooker, 144, 222. 
 
 " V. Mayor of New York, 152. 
 McCoy V. Lord, 149. 
 McCrackan v. Cholwell, 222, 229. 
 " V. Valentine's executors, 178. 
 " V. Ware, 99, 117. 
 McCrane v. Moulton, 51. 
 McCray v. MoCray, 179. 
 " " 208. 
 
 MeCready v. Rumsey, 32. 
 " V. "Woodliull, 236. 
 " V. "Wright, 149. 
 McCreery v. Willett, 28, 144, 179. 
 
 " 90, 144, • 
 McCuUough V. Brodie, 197. 
 
 " V. Colby, 128, 129, 153, 193. 
 " 153. 
 McCurdy v. Brown, 94, 122, 145, 265. 
 McDermott v. Board of Police, 99. 
 McDonald v. Garrison, 210. 
 213. 
 " 0. "Walsh, 50, 51- 
 " V. "Williams, 149. 
 McDonough v. Loughlin, 222. 
 
 " V. Phelps, 20, 108, 148. 
 MoDougall V. Fogg, 179. 
 McDowell V. Second Avenue R. R. Co., 30. 
 MoBachron «. Randies, 144, 152, 327. 
 McElwain v. Coming, 51, 315, 319. 
 McBwen's executor v. Public administrator, 
 
 56, 192. 
 McFarlan v. Clark, 196. 
 " V. "Watson, 320. 
 MoGatSgan v. Jenkins, 167, 225. 
 MoGarreU v. Murphy, 32. 
 McGaw V. Adams, 40, 178. 
 McGay v. Keilback, 148. 
 McGee v. Roen, 147. 
 MoGiffert v. McGiffert, 156. 
 
 McGinity v. Mayor of New York, 141. 
 McGinn v. "Worden, 32, 143, 207, 208. 
 McGhickey v. Bitter, 178. 
 McGovern v. Payn, 82, 85, 143. 
 McGowan v. Morrow, 134, 179, 335. 
 McGown V. Leavenworth, 39, 66, 127, 166, 192. 
 McGrane v. Mayor of New "York, 131. 
 McGrath v. Hudson River R. R. Co., 141, 211, 
 I 221, 228. 
 
 j McGraw v. "Walker, 43, 44. 
 I McGregor v. Brown, 150. 
 j " V. Comstock, 150. 
 
 " " 318, 319. 
 
 I McGregory v. "Willett, 90, 144. 
 McGuire v. Gallagher, 23, 45. 
 
 " V. Ulrich, 71. 
 MoHarg v. Donnelly, 332. 
 Mcintosh V. Mcintosh, 82, 140, 155, 180. 
 McKay v. Harrower, 111, 279. 
 McKee v. Tyson, 48. 
 
 McKenzie v. Farrell, 131, 147, 176, 178, 180, 
 187, 191, 222, 249, 264. 
 " V. Hackstaff, 20, 76, 78, 85, 184, 198, 
 
 339. 
 " V. Lamoureux, 37, 264. 
 " V. McKenzie, 30. 
 " V. Rhodes, 30. 
 McKie V. Judd, 32, 143. 
 McKillip V. McKillip, 32, 33, 45. 
 McKinnan v. Bliss, 42. 
 McKinney v. McKinney, 135, 136, 162. 
 MoKnight v. Chauncey, 106. 
 " V. Dunlop, 141. 
 
 " 178, 244. 
 " V. Hunt, 146, 176, 181. 
 McKoan v. Devries, 30. 
 McKyring v. Bull 122, 176, 177. 
 McLaughlin v. Barnard, 149, 327. 
 " V. McGovern, 147. 
 " V. Nichols, 122, 147. 
 Mclean v. Jagger, 208. 
 McLees v. Avery, 164, 337. 
 McMahon v. Allen, 197, 234, 313, 319. 
 " " 194, 197, 232. 
 
 " " 33. 
 
 " " 128, 129, 140, 193, 195, 
 
 232. 
 "- 32. 
 " " 308. 
 
 " " 118, 315. 
 
 " V. Harrison, 306, 307, 320. 
 " " 39. 
 
 315. 
 " V. Mutual Benefit Life Ins. Co., 263, 
 
 265, 315, 334. 
 " V. Mutual Benefit Ins. Co., 315, 319. 
 " V. New York and Erie R. R. Co., 222. 
 " V. Tenth "Ward School Officers, &c., 38. 
 McMaster v. Booth, 197. 
 " V. "Vernon, 178. 
 " " 331. 
 
 McMellan v. Saratoga and "Washington R. E. 
 
 Co., 141. 
 McMuUin v. Grannis. 43, 207. 
 McMuvray v. Giflford, 122, 123, 177, 217. 
 McNamera v. Bitely, 24. 
 
 " V. McNamara, 156, 179, 180, 265. 
 
LNBEX TO OASES OITED. 
 
 Iv 
 
 McNeff V. Short, 50, 213. 
 McNulty V. Prentice, 19, 263. 
 McQuade f. New York and Erie E. E.Oc, 
 336, 33':. 
 
 " V. "Warrin, 152, 
 McQueen v. Babcook; 128, 129. 
 McSmith v. Tan Duaen, 278. 
 McSpedon v. Mayor of New York, 149. 
 McTaggart i>. Henry, 149. 
 MoWilliams v. Long, 152, 180. 
 
 " V. Mason, 146, 147. 
 Maas V. Goodman, 32, 180. 
 Mabbett v. White, 222. 
 Mabey v. Adams, 143, 169. 
 Mace V. Trustees of Newburgh, 99. 
 Macedou and Bristol Plank Road Co. v. Sned- 
 iker, 148. 
 
 " V. Lapham, 148, 178. 
 Mackay v. Laidlaw, 56, 160, 165, 166. 
 Maokey v. New York Central R. R. Co., 141, 
 
 228, 229, 244. 
 Macondray v. Wardle, 208. 
 Macqueen v. Babcock, 315. 
 Magee v. Badger, 146, 152, 178, 222, 227. 
 Magie V. Baker, 222, 241, 243, 320. 
 Mahaney v. Penman, 20, 52, 59, 159, 169, 171, 
 
 175. 
 Maher v. Comstock, 66. 
 Mahoney v. Gunter, 23, 122, 147. 
 Main v. Cooper, 24, 327. 
 
 " i;. Davis, 32. 
 
 " V. Eagle, 149, 244, 327, 328. 
 
 " i;. Feathers, 32. 
 
 " V. Green, 32. 
 
 " V. King, 149. 
 
 " V. Pope, 14, 75, 78, 79, 337. 
 
 " V. Stephens, 34, 208. 
 Mains v. Haight, 147, 278. 
 Mairs v. Remsen, 138, 163. 
 Malan v. Simpson, 13, 336. 
 Malcolm v. Miller, 99, 100, 101. 
 Malcora v. Baker, 129, 131. 
 Malcomb v. Jennings, 338. 
 Mallory v. Benjamin, 218, 288. 
 
 " V. Burrett, 144. 
 
 " V. Clark, 48, 79, 280. 
 
 " V. Commercial Mutual Ins. Co., 147. 
 
 " V. Gillett, 147, 178. 
 147, 178. 
 
 " V. Lamphear, 222. 
 
 " i;. Lord, 144. 
 
 " V. Norton, 11, 99, 121, 143, 161, 162, 
 280, 299. 
 
 " V. "Wood, 232, 237, 242, 307. 
 Manchester v. Harrington, 33, 215. 
 
 " V. StoiTS, 168, 170. 
 Maudeville v. "Wiune, 158, 161, 166. 
 Maniort v. Roberts, 146. 
 Mauley v. Patterson, 83, 85, 96. 
 Mann v. Brooks, 48, 76, 272, 273. 
 
 " V. Fairehild, 43. 
 
 " V. Marsh, 34, 142, 169, 171. 
 
 " 4). Morewood, 122, 133. 
 
 " V. Pentz, 118. 
 
 " V. Provost, 150, 167, 260, 274. 
 
 " V. Tyler, 14, 15, 337. 
 
 " V. "Witbeck, 229, 232. 
 
 Manning v. Guion, 254. 
 
 " 11. Humphreys, 149. 
 
 " V. Johnson, 324. 
 
 " V. Monaghan, 143, 229, 280, 283, 300. 
 
 " " 117, 118, 280, 300. 
 
 " V. State of Nicaragua, 32, 59, 169. 
 
 " V. Tyler, 134, 135, 178, 181. 
 Manufacturers' Bank of Rochester v. Hitch- 
 cook, 181. 
 Marine Bank of City of New Yorlt v. Clements, 
 241. 
 
 " V. Tail, 178, 146. 
 Markoe v. Aldrich, 192, 210, 244. 
 Marks v. Bard, 131, 184, 186, 333, 334. 
 
 " V. Reynolds, 48. 
 
 " V. Wilson, 54, 99, 273. 
 Marquat v. Marquat, 13, 34, 121, 131, 132, 
 151, 157, 264, 313, 318, 320. 
 
 " V. Mulvey, 30, 273, 315. 
 Mnrquhart v. Lafarge, 143, 242, 304, 306, 313. 
 Marquise v. Brigham, 181, 251, 336. 
 Marsac, in re, 45, 64, 155. 
 Mai-seilles v. Bulger, 207, 
 Marsh v. Backus, 28, 32, 95, 111. 
 
 " V. Benson, 11, 151. 
 
 " V. Brett, 146. 
 
 " V. Hussey, 118, 2*79, 332. 
 
 " V. Hoppook, 34. 
 
 " V. Lowry, 138, 267. 
 
 " V. Potter, 208. 
 
 " V. Canty, 327. 
 Marshall v. Francis, 79, 315. 
 
 " V. Moseley, 32, 147. 
 
 " V. Peters, 99. 
 
 " V. Rockwood, 146. 
 
 " V. Smith, 237, 247. 
 Marston v. Johnson, 234, 274, 307. 
 
 " V. Tultee, 228, 229, 244. 
 Martin v. Gage, 43, 44, 178. 
 
 " V. Garrett, 244, 327. 
 
 " V. Kanouse, 159. 
 
 " " 30, 133, 181, 331. 
 
 " " 76, 124, 134, 251, 254, 
 
 304, :il6. 
 
 " " 134, 135. 
 
 " " 6, 10, 30. 
 
 " V. Leggett, 149. 
 
 " V. Lott, 273. 
 Martin v. Mattison, 140, 169. 
 
 " V. Mayor of New York, 99, 255, 274. 
 
 " V. McCormick, 149, 152. 
 
 " " 337. 
 
 " tf. Sheridan, 298. 
 
 " V. Tanderlip, 83, 85. 
 
 " V. Wilson, 320. 
 Martinet. Willis, 180. 
 Marvin v. Hymers, 178. 
 
 " V. Lewis, 74. 
 
 " V. Seymour, 316, 319. 
 Mason v. Bidleman, 217. 
 
 " V. Brooklyn City and Newtown R. K. 
 Co., 99. 
 
 " V. Brown, 126, 138, 163, 200. 
 
 " V. Campbell, 327. 
 
 " V. Jones, 10, 11, 13, 14. 
 
 " V. White, 284. 
 
 " V. Whitely, 128. 
 
Ivi 
 
 utoex to cases cited. 
 
 Hasten v. SooviU, 50, 134, 285. 
 Masters v. Barnard, 251. 
 
 '■ u. Madison County Mutual Ins. Co., 
 232 
 Masterson v. Botts, 32. 
 Mastfirton v. Howell, 197. 
 Mathows I'. Harsell, 143. 
 
 " V. Howard Ins. Co., 141. 
 
 " i>. Jones, 198, 235, 315, 316. 
 
 '• V. Poulteney, 232, 244. 
 Mathewsou v. Thompson, 334, 337. 
 Mathis V. Vail, 78. 
 
 Matteawan Co. v. Bently, 143, 145, 152. 
 Matthews v. Beach, 179, 186, 228. 
 " 169, 170, 186. 
 
 " V. Festel, 34, 207, 324, 327. 
 
 " V. Mayor of New York, 99, 241, 313. 
 Mattice v. Allen, 178, 221. 
 
 " lord, 147. 
 Mattison v. Jones, 304, 328. 
 
 '• II. Bancus, 280. 
 Maxwell r. Farnam, 94, 140, 143. 
 Maybee v. Sniffen, 178. 
 Mayhewi'. Duncan, 111, 115, 338. 
 
 " i: Eobinson, 32, 121, 129, 131, 168, 
 175. 
 
 " V. "Wilson, 111, 115, 338. 
 Maynard v. Tallcott, 139, 168. 
 Mayne v. Griswold, 43. 
 Mayor of Albany v. Cunliff, 191. 
 
 " &c., of Auburn v. Draper, 149. 
 Mayor of New York v. Brett, 32, 147. 
 
 " V. Campbell, 150. 
 
 ■■ V. Colgate, 43, 154. 
 '(' Co never, 99. 
 
 103, 104, 288. 
 " 99. 
 
 " V. Doody, 33, 124, 146, 147, 201. 
 
 " V. Flagg, 40, 156. 
 
 " V. Green, 323, 327. 
 
 " V. Hill, 149. 
 
 " V. Hillsburgh, 333, 334. 
 
 " V. Husson, 327. 
 
 " V. Hyatt, 327. 
 
 " V. Mabie, 180. 
 
 " V. Mason, 222, 227, 244, 327. 
 
 " V. Parker Teiu Steamship Co., 121, 
 180. 
 
 " V. Price, 207, 264. 
 " 227. 
 
 " V. Schermerhorn, 318. 
 
 " V. Second Ayenue R. E. Co., 178. 
 Mazetti v. New York and Harlem R. R. Co., 
 
 236, 313. 
 Mead v. Case, 178. 
 
 " V. Darragh, 327. 
 
 " V. Florence, 1 86. 
 
 " V. Keeler, 146, 178. 
 
 " V. Keyes, 242. 
 
 " V. Mali, 32. 
 
 '• V. Mead, 315. 
 
 " V. Mitchell, 33, 38, 155, 265. 
 
 " V. North Western Ins. Co., 147, 241. 
 Meads v. Gleason, 126. 
 Meakim v. Anderson, 222, 245. 
 Meakings v. Cromwell, 201. 
 Mechanics' Bank v. James, 201 . 
 
 Mechanics' Bank r. Livingston, 146. 
 
 " V The New York and New Haven K. 
 
 R. Co., r,2, 141, 178. 
 " V. Webb, 38. 
 Mechanics' Banking Association v. Kierstod, 
 336. 
 " I/. Now York and Saugerties White 
 
 Lead Co , 146. 
 " V. Place, 146. 
 " V. Spring Yalley Shot and Lead Co., 
 
 122, 123. 
 " " " 124, 146. 
 
 Mechanics' Bank of Brooklyn v. Townsend, 
 
 146, 178. 
 Mechanics' Building Assoc. ■;;. Stevens, 178. 
 Mechanics' and Farmers' Bank v. Rider, 257, 
 270. 
 " V. Wilbur, 207. 
 Mechanics' Fire Ins. Co., m re, 118. 
 
 " V. People, 178. 
 Mechanics' and Traders' Fire Ins. Co. v. Scott, 
 
 147. 
 Mechanics' Savings Institution v. Roberts, 263, 
 
 265. 
 Mecklin ». Berry, 85. 
 Medbury v. New York and Erie R. R. Co., 
 
 144. 
 Meech v. AUan, 153. 
 " V. Brown, 327. 
 " V. Stoner, 32. 
 Megaray v. Funtis, 207. 
 Megrath v. Tan Wyok, 128. 
 
 164, 315. 
 Meldora v. Meldora, 34, 156. 
 Mellen v. Hamilton Fire Ins. Co., 32, 33, 147. 
 Meller v. Moore, 131. 
 Mellon V. Smith, 327. 
 l/lelviUe v. American Benefit Building Associa^ 
 
 tion, 178. 
 Mendell v. French, 327. 
 Mentges v. New York and Harlem R. R. Co., 
 
 141, 327. 
 Mercantile Mutual Ins. Co. u. Calebs, 144. 
 " V. Chase, 144. 
 
 " V. State Mutual. Fire and Marine Ins. 
 Co. of Pennsylvania, 147. 
 Merchant v. New York Life Ins. Co., 129, 201. 
 Merchants' Bank v. Mills, 163, 225, 315. 
 Merchants' Bank of City of New York v. Mc- 
 
 CaU,.146. 
 Merchants' Bank of New Haven v. Bliss, 4.'., 
 144, 179, 186. 
 " V. Dwight, 82. 
 Merchants' Ins. Co. of N'ew York v. Hinman. 
 
 267. 
 " " " 35, 179, 263. 
 
 Merchants' Mutual Ins. Co. of Buffalo v Eaton, 
 
 32, 33, 121. 
 Mercier v. Pearlstone, 66, 130, 160, 273. 
 Merrick v. Gordon, 32, 180. 
 " V. Suydam, 82, 145. 
 Merrifield«. Cooley, 121, 207, 213, 264 270. 
 
 272. 
 Merrill v. George, 54, 218. 
 
 " V. GrinneU, 75, 139, 166, 200. 
 
 " 50, 129, 136, 139, 166, 200. 
 " V. Tylee, 178. ' 
 
INDEX TO OASES CITED. 
 
 Ivii 
 
 Merrimack Manufacturing Co. v. Gai-ner, 99, 
 
 105. 
 Merritt v. Baker, 48, 78. 
 
 " u. Carpenter, 82, 121, 142, 285. 
 
 " V. Earle, 144. 
 
 " V. Lincoln, 146. 
 
 " V. Millard, 149, 180, 186. 
 
 " V. Seaman, 33, 122, 139, 146, 180. 
 
 " 222. 
 " u. Slooum, 15, 76. 
 
 16, 187. 
 " V. Thompson, 164, 182, 315. 
 " " 89, 316. 
 
 " 99, 105, 121, 156, 182, 
 
 201, 204. 
 " V. Todd, 146. 
 " u. Wing, 278, 279. 
 Merserean v. Pearsall, 178. 
 245. 
 " V. Ryerss, 232, 234, 237, 332, 337. 
 Merwin v. Hamilton, 133, 148. 
 Meserole v. Archer, 143. 
 Me.sick v. Mesick, 207. 
 " J,. Smith, 197. 
 Messenger v. Pisk, 293. 
 llesserve v. Sutton, 319. 
 Metoalf «. Stryker, 28, 90, 144, 147, 179. 
 Methodist Churclies of New York v. Barker, 
 
 102, 106, 178. 
 Metropolitan Bank r. Lord, 123, 168, 176, 181. 
 Meyer c. City of Louisville, 13, 313. 
 " )■. Lent, 78, 197, 204. 
 '■ V. Peck, 149. 
 '■ w. Schultz, 177, 179. 
 " V. Tan CoUem, 133, 134, 169. 
 Meyers v. Gerritts, 126. 
 
 " V. Trimble, 164, 182. 
 Miekles v. DilJaye, 154. 
 
 " V. Townsend, 178. 
 Middletown Bank )'. Morris, 146. 
 Mier v. Cartledge, 181. 
 Milbank v. Dennistown, 132, 148. 
 " " 144, 228. 
 
 Milburn v. Belloni, 143. 
 Miles V. Clark, 86, 87. 
 Miihau V. Sharp, 37. 
 
 " 37, 99. 
 Millard v. Shaw, 153, 168, 169. 
 MiUemann v. Mayor of New York, 274, 336. 
 Miller v. Cook, 146, 147. 
 " V. Deere, 142. 
 " V. De Peyster, 40, 161. 
 " 0. Eagle Life and Health Ins. Co., 
 147, 228, 244. 
 " " " 265, 313, 316. 
 
 " V. Foley, 142. 
 " V. Garling, 131. 
 " V. Garlook, 42. 
 " V. Gunn, 192, 304, 320. 
 " V. Hughes, 181. 
 " V. Hull, 138. 
 " V. Lewis, 255, 284. 
 " (1. Losee, 187. 
 " V. Mather, 162, 201, 204. 
 " V. Moore, 131, 154. 
 " V. New York and Erie E. R. Co., 147. 
 " V. riatt, 42, 178. 
 
 Miner v. Porter, 245, 274, 313. 
 
 " V. Roessler, 149, 178. 
 
 " V. Eossman, 14, 291, 292. 
 
 " V. Soherder, 285. 
 
 " V. Schuyler, 318, 319. 
 
 " V. Steam Navigation Co., 144. 
 
 " V. Stettiner, 38, 50, 161. 
 
 " V. Watts, 335. 
 MiUigan v. Brophy, 1:^8, 163. 
 Milliken v. Byerly, 172. 
 
 " V. Cary, 102, 121, 122, 123. 
 MUlsw. Block, 151, 153. 
 
 " V. Carnley, 280. 
 
 " V. Corbett, 54, 109. 
 
 " V. Forbes, 147, 168, 308. 
 
 " V. Fox, 32, 149, 244. 
 
 " (1. MUls, 99. 
 
 " V. Pearson, 32. 
 
 " V. Shult, 325, 327. 
 
 " V. Thursby, 147. 
 
 " " 15, 79, 105. 
 
 " (No. 1), 197, 234. 
 
 " " (No. 2), 74, 76, 78, 136, 
 
 166, 240. 
 " (No. 3), 222. 
 " (No. 4), 280. 
 
 " " (No. 5), 280, 289. 
 
 " (No. 6), 308. 
 
 " " (No. 7), 278. 
 
 " (No. 8), 271, 308. 
 
 " " (No. 9), 243. 
 
 " " (No. 10), 222,271,278,279. 
 
 304, 313. 
 
 " " (No. 11), 236,237, 241,243. 
 
 " V. Tan Voorhis, 34, 38, 144, 152, 154, 
 244, 304, 320. 
 
 " V. Winslow, 23, 45, 327. 
 Mills, Application of, v. Estate of Tluiraby, 
 
 278. 
 MUn V. Eussell, 23, 327. 
 
 " V. Tose, 136, 181. 
 Milvehal v. Milward, 241. 
 Minister, &c., of Dutch Eeformed Church of 
 
 Canajoharie v. Wood, 313. 
 Minks V. Wolf; 333. 
 Minor v. Buckingham, 102, 105. 
 
 " V. Terry, 102, 121, 123. 
 
 " V. Webb, 99. 
 Miuturn v. Main, 33. 
 
 " " 336. 
 
 Minzeskeemer v. Heine, 32, 143. 
 Mitchell V. Bettman, 98, 101, 109. 
 
 " V. Cook, 178. 
 
 " V. Hall, 74, 240, 253, 337. 
 
 " V. Hyde, 146. 
 
 " V. Menkle, 324, 327. 
 
 " V. Montgomery, 213. 
 
 " •(/. Weed, 207. 
 
 " V. Westervelt, 26, 289, 336, 338, 339. 
 
 " V. Worden, 82. 
 Mitchell's Case, 30, 201, 204, 208, 218. 
 Mittenbeyer v. Atwood, 146. 
 Mix V. White, 327. 
 Mixer v. Kuhn, 200. 
 Moak V. Coats, 117, 300. 
 MoeUer v. Bailey, 198. 
 Moers v. Morro, 85, 31 6. 
 
Iviii 
 
 HTDEX TO CASES CITED. 
 
 MciVntt Ji. Ford. 198, 224, 244, 33T. 
 •■ V. Pratt, 134, 143. 
 - ,•. Sackett, 149, 180, 313, 320. 
 ■■ V. Van Doren, 179, 180. 
 Mogor c. Ilinmau, 152, 255. 
 Moil- V. Brown, 163. 
 Molenaor v. Kerner, 82, 285. 
 Molony v. Dows, 242. 
 
 " 10, 141. 
 " 122, 134, 142, 116. 
 " 126. 
 Mouaimm v. Story, 32. 
 Monorief t'. Monorief, 315, 316. 
 Monnot r. Ibert, 145. 
 Monroe v. Delavan, 32, 36, 140, 152, 118. 
 " (. Douglass, 219. 
 " V. Pilkington, 146. 
 " V. Potter, 43. 
 Moutalvau v. Clover, 169. 
 Monteoarbole v. Mundel, 188, 336. 
 Monteith o. Cash, 180, 321. 
 Montford v. Hughes, 38, 207, 264, 327. 
 Montgomery D. BUis, 68, 265, 272, 274. 
 Montgomery County Bank v. Albany City 
 Bank, 146, 171, 221, 264, 305, 320, 
 335. 
 " „. Marsh, 146, 207. 
 Moody r. Townsend, 48. 
 Moore v. Burrows, ) 52. 
 
 '• V. Calvert, 83, 85, 285. 
 " u. Cockroft, 146. 
 
 " 285, 336, 338. 
 
 " 0. Cross, 14G, 
 " V. Evana, 144. 
 " II. Gardner, 138, 163. 
 " c. Livingston, 178. 
 " / . Mayor of New York, 32. 
 " V. McKlbbin, 132, 143. 
 " r. Meacham, 228. 
 " V. Moore, 34, 149. 
 " 267. 
 " 315. 
 ' V. Pentz, 201, 202, 228. 
 " V. Remington, 149, 178. 
 " V. Smith, 1, 33, 140, 170. 
 " ( . Somerindyke, 323, 324, 327. 
 " u. Thayer, 56, 192. 
 " o. Ward, 146. 
 '■ V. "Westervelt, 331. 
 
 " 9, 318, 320. 
 
 " 95, 144, 178, 228, 280. 
 
 28. 
 " " 149, 332, 337. 
 
 " ■„. "Willett, 145, 280. 
 " " 33. 
 
 " V. Wood, 239, 244, 312, 314, 315. 
 Moore's Executors v. Thayer, 44. 
 Mora V. MoCredy, 201. 
 Moran v. Anderson, 167, 169, 172. 
 Morange v. Edwards, 147, 178, 286, 293. 
 " V. Morris, 240, 242, 313. 
 " " 242, 313. 
 
 " V. Mudge, 124, 147. 
 Morehouse v. Ballow, 32, 38, 140. 
 
 " V. Crilley, 122, 123. 
 Morey v. Farmers' Loan and Trust Co., 42, 
 43, 151, 152, 178. 
 
 Morford v. The Farmers' Bank of Saratoga 
 
 Co., 146. 
 Morgan v. Andrut, 34. 
 
 " V. Avery, 109, 112. 
 
 " V. Bruce, 242, 304. 
 
 " V. Bank of the State of New York, 146. 
 
 " V. Chamberlain, 147, 152. 
 
 " V. King, 228. 
 
 " V. Lelaud, 128, 257, 
 
 " V. Mason, 132, 149. 
 
 " V. Mechanics' Bank'g Association, 178. 
 
 " V. Quackenbush, 99. 
 
 " V. Reed, 32, 33, 244. 
 Moritz V. Peebles, 144, 156. 
 Morley v. Clark, 146. 
 MorreE v. Dennison, 312. 
 
 " V. Kimball, 56, 58. 
 
 " V. Morrell, 179. 
 
 " V. "Whitehead, 178. 
 Morrill v. Dennison, 178, 312. 
 Morris v. Brower, 242. 
 
 " V. Husson, 146, 222, 236, 237, 319. 
 
 " V. Knox, 195. 
 
 " V. Miles, 149. 
 
 " V. Phelps, 141. 
 
 " V. Rexford, 149, 178, 179. 
 
 " V. Slattery, 178, 225, 274. 
 
 •' v. Third Avenue R. R. Co., 143, 144, 
 327. ■ 
 
 " v. Whitcher, 147,lq2. 
 Morrison v. Currie, 32. 
 
 " V. Garner, 82. 
 
 " V. Ide, 26, 184, 336, 339. 
 
 " V. New York and New Haven R. R. 
 Co., 221, 228, 242. 
 Morrow v. Cougau, 176. 
 Morse v. Cloyes, 178, 207, 213. 
 
 ■• <;. Crofoot, 207. 
 
 " V. Evans, 241. 
 
 " V. Goold, 281. 
 
 " V. Keyes, 281. 
 
 " V Swits, 143. 
 Morss V. Morss, 206, 234. 
 Mortimer v. Brunner, 179. 
 Morton v. Clark, 323, 325. 
 
 " V. "Weil, 38, 140. 
 Moseley v. Albany Northern R. R. Co., 32, 150, 
 192. 
 
 " V. Moseley, 152, 178. 
 
 " " 192. 
 
 Moses V. "Walker, 140, 143, 157, 169. 
 Mosher v. Yost, 33. 
 Mosier v. Hilton, 18. 
 Moss, in re, 253. 
 Moss V. Averill, 10, 148, 178. 
 
 " V. Livingston, 146. 
 
 " V. Shannon, 147, 178. 
 Mosselman ^. Caen, 33, 171, 304, 319. 
 Mott V. Burnett, 76, 136, 176, 177, 179, 180, 181. 
 
 " V. Davis, 48. 
 
 Dunn, 101, 140, 153. 
 Lawrence, 109, 110. 
 Mayor of New York, 207. 
 
 " V. "United States Trust Co., 99, 178. 
 Mottram v. Mills, 32. 
 
 " " .149. 
 
 Moulton V. Townsend, 338. 
 
INDEX TO GASES CITEB. 
 
 lix 
 
 Mount V. Morton, 34, 155, It 8. 
 Mowbray v. Lawrence, 99, 283. 
 Moyer v. Hinman, 152, 284, 255. 
 Moza V. Suu Mutual Ins. Co., 251, 289, 336. 
 Mueklan v. Doty, 82, 83. 
 Muoklethwaite v. Weiser, 236. 
 Muir V. Leitch, 255, 280, 284. 
 Muldeiior v. MoDonough, 315. 
 Mulford V. Decker, 324. 
 Mullievn v. Hyde, 321. 
 Mulkins V. Clark, 51, 59. 
 Mullen V. Kearney, 122, 1^6. 
 MuUer v. Eno, 143, 149. 
 " w. Maxwell, 149. 
 Mulligan ■». Brophy, 68, 273, 214. 
 MulUu V. Kelly, 197. 
 MulvehaU v. MiUward, 142. 
 Mulvey v. Davison, 82, 86. 
 Munch V. New York Central R. R. Co., 141. 
 Hunger?;. Hess, 121, 141, 143. 
 
 " V. Tonawanda R. R. Co., 141. 
 Munn V. Barnum, 197, 256. 
 
 " 170, 181, 199. 
 
 " V. "Worrall, 152, 245, 274. 
 Munroe v. Merchant, 42, 150. 
 
 " V. Potter, 244. 
 Munson v. Hegeman, 207, 221, 222, 264, 313. 
 
 ■' V. Howell, 332. 
 
 " V. Riley, 32. 
 
 " I. Willard, 160, 161. 
 Murden v. Priment, 1 80. 
 Murdoch v. Bmpie, 267. 
 Murdock v. Chenango County Mutual Ins. Co., 
 147. 
 
 " V. Gifford, 280. 
 Murfey v. Brace, 82, 236. 
 Miirgoo V, Cogswell, 143. 
 Murling v. Grote, 327. 
 Murphy v. Darlington, 163. 
 
 " V. Kipp, 142, 162, 244. 
 
 " V. Long, 328. 
 
 " V. Merchant, 122, 146. 
 
 " V. Winchester, 149, 234. 
 Murray v. Barney, 178, 236. 
 
 " V. Degress. 23, 333. 
 
 " V. General Mutual Ins. Co., 192, 207. 
 
 " V. Haskins, 332. 
 
 ." V. Hendrickson, 139, 332. 
 
 " V. Judson, 48, 273. 
 
 " V. Smith, 222, 244. 
 Muscott V. Miller, 327. 
 
 " V. "Woodworth, 111, 280. 
 Mussey v. Atlas Ins. Co., 147. 
 Mussina v. Belden, 138, 151. 
 
 " V. Stillman, 181. 
 Mutual Benefit Life Ins. Co. v. Board of Super- 
 visors of New Tork, 99. 
 
 " V. Davis, 32, 146. 
 Mutual Ins. Co. of Buflfalo v. Eaton, 32. 
 Mutual Life Ins. Co. of New Tork v. Wager, 
 149, 178, 179. 
 
 " V. Ross, 50, 51, 126. 
 Myatt V. Saratoga County Mutual Ins. Co., 
 
 185, 186. 
 Myers v. Burns, 147, 180. 
 
 " V. Davis, 149, 180. 
 » " 180. 
 
 Myers v. James, 302. 
 
 " V. Machado, 32, 33, 122, 124. 
 
 " 0. McCarthy, 204. 
 
 " V. Overton, 54, 273. 
 
 " V. Rasbaok, 155. 
 Mygatt V. National Protection Ins. Co., 146, 
 147. 
 
 " V. Washburn, 43, 144. 
 Myres's Cases, 300. 
 
 N. 
 
 Nagle V. James, 286, 293. 
 
 Nantucket Pacific Bank v. Stebbins, 38, 146, 
 
 263. 
 Nash V. Fredericks, 32, 145. 
 
 " V. Hamilton, 30, 32. 
 
 " V. Wetmore, 245. 
 Nason d. Cookroft, 32, 149, 221, 245. 
 National Fire Ins. Co. v. Mackay, 179. 
 Naylor v. Hoffman, 38. 
 
 " 0. Sohenck, 180. 
 Neale v. Osborne, 104. 
 Neary v. Bostwick, 144. 
 Neass v. Mercer, 148, 149, 207. 
 Needles v. Howard, 32, 144, 229, 244. 
 Neefus v. Kloppenbiu'gh, 149, 172. 
 Neele v. BerryhiU, 26, 48. 254. 255, 262. 
 Neilson v. Commnrcial Mutual Ins. Co., 147. 
 
 " V. Mutual Ins. Co., 46, 336. 
 
 " V. Neilson, 284. 
 Nelliss V. McCarn, 327. 
 Nellis V. De Forest, 26, 251, 336, 339. 
 
 " " 148, 170. 
 
 Nelson v. Belmont, 147. 
 
 " V. Eaton, 32, 122, 169. 
 
 " V. Smith, 207. 
 
 " V. Stephenson, 149. 
 
 " V. Wellington, 146. 
 Nesmith v. Atlantic Ins. Co., 227. 
 
 " V. Clinton Fire Ins. Co., 227, 239, 241, 
 245. 
 Nestle V. Jones, 332. 
 Neusbaum v. Keim, 48, 153. 
 Neville V. Frost, 149. 
 
 " V. Neville, 34, 81, 82, 83, 85, 149. 
 Nevins v. Bay State Steamboat Co., 144. 
 Newark India Rubber Man\ifacturing Co. v. 
 
 Bishop, 146. 
 Newbery v. Garland, 34, 143. 
 Newbould v. Warrin, 38, 140, 169. 
 Newbury v. Newbury, 76, 99, 105. 
 Newcomb v. Kettellas, 152. 
 
 " " 165. 
 
 " V. Newcomb, 152. 
 
 " V. Reed, 14, 78. 
 NeweU v. Doran, 83, 85. 
 
 " V. Fowler, 147. 
 
 " V. Salmons, 122, 180, 207. 
 New Jersey Zinc Co. v. Blood, 138, 163, 200. 
 Newman v. Cook, 142, 281. 
 
 " V. Newman, 34. 
 
 " V. Otto, 134, 169, 176, 179, 186, 191. 
 Newsan «. Finch, 145, 146. 
 Newstadt v. Adams, 132, 144. 
 Newton v. Bronson, 32, 1^8, 151, 152, 232, 319. 
 
 " V. Harris, 319. 
 
Ix 
 
 INDEX TO CASES CITED. 
 
 Newton v. Harris, 222. 
 
 " ■' 308, 320. 
 
 " V. Sweet's Executors, 332, 333. 
 New York Academy of Music v. Hackett, 180. 
 New York Car Oil Co. v. Riclimond, 145, 178, 
 
 236. 
 " 143, 145, 178, 221, 
 
 236, 241, 280. 
 New York Central Ins. Go. v. Kelsej, 127, 
 215, 273. 
 " V. National Protection Ins. Co., 32, 
 121, 122, 147, 177. 
 " " " 308. 
 
 " " " 313, 320. 
 
 " V. Saiford, 147. 
 New York Central R. E. Co. v. Marvin, 315, 
 
 318, 320. 
 New York and Erie Bank v. Codd, 109, 110, 
 
 112. 
 New York and Brie R. R. Co. v. Cook, 207, 
 222. 
 " V. Gilchrist, 149, 178. 
 " V. Purdy, 23, 58. 
 New York Exchange Co. v. De "Wolf, 146. 
 " " " 146. 
 
 New York Fire Department v. Harrison, 194. 
 New York Fire Ins. Co. v. Burrell, 337. 
 New York Fire and Marine Ins. Co. v. Rob- 
 erts, 146, 147. 
 New York Floating Derrick Co. v. New Jer- 
 sey Oil Co., 20, 146. 
 Xew York and Harlem R. R. Co. v. Kyle, 178. 
 " V. Marsh, 149. 
 " V. Mayor of New York, 76. 
 Nesv Y'"ork and Havre Steam Navigation Co. 
 
 0. Young, 149. 
 New York Ice Co. v. North 'Western Ins. Co., 
 121, 147, 152, 194, 221, 232. 
 " " " 272. 
 
 " " " 134, 136. 
 
 " i;. North "Western Ins. Co. of Oswego, 
 121, 131, 140, 272, 315, 318, 319, 
 327. 
 " 1,. Parker, 144, 180. 
 New York Life Ins. and Trust Co. v. Beebe, 
 
 32, 141, 178. 
 New York Life Ins. and Trust Co. v. Burrell,178. 
 " V. Covert, 43, 178. 
 " V. Cutter, 74, 267. 
 " V. Rand, 74, 267. 
 " V. Staata, 178, 179. 
 " V. Supervisor of New Yorir, 99. 
 " V. Yanderbilt, 267. 337. 
 New York Marbled Iron "Works v. Smith, 32, 
 
 123, 126, 131, 146, 192, 315.' 
 New "York and New Haven R. R Co. v. Rix- 
 ley, 156. 
 " V. Schuyler, 10, 32, 38, 40, 140, 152, 
 
 169. 
 " " 99. 
 
 New York Shot and Lead Co. i. Gary, 99, 
 
 267, 284. 
 New York and Virginia State Stock Bank v. 
 
 Gibson, 146, 207. 
 Niagara District Bank v. Fairman, &o., Tool 
 
 Manufacturing Co., 146. 
 Niblo V. Harrison, 146, 172. 
 
 NichoUs v. Nicholls, 288 
 Nichols V. Atwood, 23, 43, 45. 
 
 " V. Boerum, 180. 
 
 " V. IhiBenbury, 180. 
 
 " V. Jones, 133, 176, 181. 
 
 " „. Michael, 38, 82, 94, 14o. 
 
 " V. Pinner, 82, 145. 
 
 " V. Romaine, 178, 194. 
 
 .. " 20, 138. 
 
 Nicholson v. Dunham, 79, 315, 316, 336. 
 
 " V. Leavitt, 178. 
 
 " " 10. 
 
 Nickley v. Thomas, 143, 327. 
 NicoU V. New York and Erie R. R. Co., 32. 
 
 " -0. Pinner, 96. 
 Nielson v. Commercial Mutual Ins. Co., 46. 
 Niles V. Culver, 149. 
 
 " D. Griswold, 315. 
 
 " V. Lindsey, 179, 221, 333. 
 
 " V. Randall, 38. 
 
 " V. Tanderzee, 54, 56, 112, 273. 
 Niver v. Rossman, 337. 
 Nixon V. Jenkins, 149. 
 
 " -0. Palmer, 146, 210. 
 Noble V. Cornell, 146. 
 
 " V. Cromwell, 265, 266. 
 
 " V. Prescott, 79, 82, 85, 315. 
 
 " V. Trotter, 66, 166. 
 Noel V. Murray, 146, 178. 
 Nolten V. "Western R. R. Corporation, 141, 144, 
 
 251. 
 Nones v. Hope Mutual Ins. Co., 54, 161, 169. 
 
 " V. Horner, 178. 
 
 " ' " 149. 
 Norbury v. Seeley, 263. 
 Norris v. Bleakley, 327, 328. 
 
 " V. Denton, 48. 
 
 " V. La Farge, 149. 
 Norsworthy v. Bergh, 35, 268. 
 North V. Sargeant, 336. 
 
 " " 184, 216, 244, 340. 
 
 " " 178, 244. 
 
 North American Fire Ins. Co. v. Graham, 153, 
 
 178. 
 North American Gutta Percha Co., in re, 118, 
 
 280, 300. 
 North River Ins. Co. v. Snediker, 267, 284. 
 Northern R. R. Co. v. Miller, 148. 
 
 " v. Paige, 142. 
 Northern Railway of France v. Carpentier, 82. 
 
 " " " 82, 85. 
 
 Northern Turnpike Road v. Smith, 150. 
 Northrop v. Anderson, 197, 265. 
 
 " V. Sumney, 179. 
 Northrup v. Burrows, 150. 
 
 " V. Van Dusen, 76, 78, 163, 200, 339. 
 Norton v. Coons, 148. 
 
 " V. "Wiswall, 32, 192. 
 141. 
 Norwalk Bank v. Adams' Express, 144. 
 Nounenbooker v. Hooper, 149. 
 Nourny v. Dubosty, 146. 
 Noxon V. Beutly, 336. 
 
 " 170, 186. 
 
 " V. Gregory, 30. 
 Noyes r. Burton, 20. 
 Nye r. Ayres, 180, 325, 327. 
 
INDEX TO CASES CITED. 
 
 Ixi 
 
 0. 
 
 Oakley v. Aspinwall, 240, 241, 243. 
 " " 10, 20, 210. 
 
 " " 82, 210. 
 
 " 232. 
 
 " " 270. 
 
 " V. Morton, 122, 152. 
 Oaksmith v. Sutherland, 184. 
 O'Brien v. Bowes, 194, 197, 232, 
 " V. Breitenbach, 134, 178. 
 " V. Gatlin, 66, 166. 
 " V. Hagan, 192. 
 O'CaUaghan v. Carroll, 312, 322, 328, 336. 
 O'Connor v. Bagley, 178. 
 Odell V. Greenly, 146, 178. 
 O'DonneU v. Kelsey, 155, 178. 
 " V. MoMunn, 102. 
 " V. Smith, 178, 
 Oechs V. Cook, 123, 191, 244. 
 Oettinger v. Levy, 148. 
 Ogden V. Andre, 146. 
 " V Astor, 43. 
 " V. Blydenburgh, 146. 
 " V. Bodle, 61, 169. 
 " V. Coddington, 32, 132, 180, 221, 222, 
 
 242, 313, 315. 
 " V. Des Arts, 147, 149. 
 " V. New York Mutual Ins. Co., 147. 
 " V. Prentice, 32, 33, 34, 180. 
 " V. Raymond, 122, 177, 178. 
 " V. RoUo, 144, 148. 
 " V. Rowe, 147. 
 " V. Sanderson, 279, 324. 
 Ogdensburgh Bank v. Paige, 169. 
 Ogdensburgh, Rome, and Clayton R. R. Co. v. 
 
 Frost, 148. 
 Oloottw. Robinson, 58, 71, 284. 
 
 " V. Tioga R. R. Co., 13, 44, 178. 
 Oldfield V. New York and Harlem R. R. Co., 
 
 33, 142, 222, 319. 
 Oliver Lee's Bank v. Walbridge, 178. 
 Olmstead v. Brown, 142. 
 " V. Loomis, 42. 
 " &9. 
 " V. Vredenburgh, 278, 279. 
 " V. "Webster, 178. 
 Oluey V. Olney, 126. 
 Olssen V. Smith, 99, 101. 
 Olwell V. McLaughlin, 164. 
 Olyphant v. Atwood, 178. 
 O'Maley v. Reese, 123, 149. 
 Onderdonkw. City of Brooklyn, 32, 149. 
 " V. Emmons, 147, 323. 
 " V. Mott, 11, 121,. 140, 150. 
 Oneida Bank v. Ontario Bank, 149, 178. 
 O'Neil V. Durke, 42, 85. 
 
 " V. Martin, 23, 147, 178, 293, 315, 316. 
 " V. New York State Agricultural So- 
 ciety, 237. 
 O'Niel V. Buffalo Fire Ins. Co., 147. 
 Onondaga Mutual Ins. Co. v. Miaard, 222, 319. 
 Oothout V. Rhinelander, 66. 
 Orchard v. Cross, 236. 
 O'Reilly u. Davies, 24, 333, 334. 
 Orguerre v. Luling, 148. 
 Ormsby v. Babcock, 336. 
 
 Ormsby v. Douglass, 177, 179. 
 
 " " 177, 179. 
 
 Orr V. Bigelow, 149. 
 Orr's Case, 291, 293. 
 Orser V. Grossman, 111, 327. 
 Osborn v. Lobdell, 76, 105. 
 Osborne v. Betts, 337. 
 
 " V. Marquand, 232. 
 Osgood V. Whittlesey, 172, 178. 
 O'Shea v. Kirker, 228, 264, 313. 
 Osterstook v. Lent, 327. 
 Ostrander v. Harper, 45, 304. 
 Ostrom V. Bixby, 178. 181. 
 
 " V. MoCanu, 267. 
 Oswego and Syracuse Plauk Road Co. v. Rust, 
 
 148. 
 Otis V. Ross, 134, 135, 176, 315. 
 
 " V. SiU, 94, 140, 145, 179. 
 
 " V. Spencer, 16, 308. 
 
 " " 232, 236, 241, 243, 320. 
 
 Otsego County Bank v. Warren, 146. 
 Outwater v. Mayor of New York, 274, 336, 339. 
 
 " v. Nelson, 228, 244. 
 Overill v. Durkee, 85. 
 Overing v. Russell, 42. 
 Overseers of Norwich v. Overseers of Phar- 
 
 salia, 147. 
 Owen V. Boerum, 178. 
 
 " V. Cawley, 34, 208. 
 
 " V. Dupignao, 291, 293, 295. 
 
 " V. Hudson River R. R. Co., 141. 
 
 " V. Mason, 30, 193. 
 
 " V. Smith, 117. 
 Owens V. Aokerson, 180. 
 
 P. 
 
 Pack V. Mayor of New York, 32, 141, 207. 
 
 Packard v. Lyon, 146. 
 
 Packer v. Rochester and Syracuse R, R. Co., 
 
 267. 
 Paddock, in re, 118. 
 
 " V. Springfield Fire and Marine Ins. Co., 
 251, 318, 319. 
 
 " V. Wing, 32. 
 Page V. Boyd, 122. 
 
 " V. New York Central R. R. Co., 142. 
 Pahquoique Bank v. Martin, 146. 
 Paine v. Bonney, 38, 154, 265. 
 
 " V. Smith, 170. 
 Palen i). Lent, 34, 140, 153. 
 
 " -d. Reynolds, 38, 150. 
 Palmer v. Adams, 77, 204. 
 
 " V. Lawrence, 10, 19. 
 
 " " 178. 
 
 " " 320. 
 
 " V. Miller, 35. 
 
 " V. Moeller, 327, 329. 
 
 " V. Murray, 193. 
 
 " V. North, 147. 
 
 " V. Pahner, 197, 234, 235. 
 
 " V. Smedley, 32, 122. 
 
 " " 179. 
 
 " " 194, 289, 336. 
 
 " V. Smith, 178. 
 Panton v. Zebley, 117. 
 Pardee v. Schenck, 176, 194, 215, 336. 
 
Ixii 
 
 TNTIKX TO CASES CITED. 
 
 Parfitt V. Warner, 308. 
 
 Parish v. Wheeler, 143, 149, 178. 
 
 Park I'. Carnley, 138, 163, 200. 
 
 " V. Church, 48, 273, 279. 
 Parker v. City of Williamsburgh, 66. 
 
 " h. Eaton, 23, 327. 
 
 " V. Jackson, 32, 38, 43, 140, 264. 
 
 " V. Parker, 194, 197. 
 " V. Schenok, 149. 
 
 " b. Totten, 32, 146. 
 Parkhill v. Hillman, 332. 
 Parmelee v. Wilks, 144. 
 Parshall v. TOlou, 134, 135, 153, 176. 
 Parsons v. Brown, 227. 
 
 " !. Disbrow, 222. 
 
 " V. Mayor of New York, 99. 
 
 " V. Monteath, 144. 
 
 " V. Nash, 180. 
 
 " V. Pierce, 207. 
 
 " V. Suydam, 132, 204, 207, 221, 236, 
 313. 
 
 " " 308. 
 
 " V. Travis, 308. 
 Partin v. Elliott, 204. 
 Partridge v. Badger, 124, 146, 244. 
 
 " V. Gilbert, 228, 229. 
 
 '• V. Gildermeister, 149. 
 
 '• V. Thayer, 324, 325, 327. 
 Passenger v. Thorburn, 149. 
 Patcliin V. Astor Mutual Ins. Co., 221, 244. 
 
 " V. Ritter, 178. 
 Patou V. Lent, 146. 
 
 " V. Westervelt, 48, 280, 286. 
 
 '• " 211. 
 
 " V. Wright, 153, 164. 
 Patridge v. Colby, 146. 
 Patten v. Accessory Transit Co., 99, 117. 
 
 " V. Gonnah, 298. 
 
 " V. Hazewell, 176, 273. 
 Patterson, in re, 74. 
 
 " V. Graves, 236, 273. 
 
 " V. Perry, 40. 
 
 " " 110, 111. 
 
 Pattison v. Bacon, 78, 273. 
 
 •' V. Johnson, 207. 
 
 " V. Richards, 180. 
 
 " V. Taylor, 123, 124, 178. 
 Paul V. Hadlejf, 149. 
 
 Paulding v. Hudson Manufacturing Co., 23. 
 Payu, in re, 76, 77, 78. 
 Payne v. Young, 20, 108. 
 Payton v. Wight, 144, 148, 152. 
 Peabody v. Bloomer, 180. 
 
 " V. Washington County Mutual Ins. 
 Co, 147, 168, 169. 
 Peacock v. New York Life Ins. Co., 147. 
 Pearce v. Golden, 38, 150. 
 
 " V. Perriss's executors, 150. 
 Pearsall v. Eraser, 132. 
 Pearson v. Fiske, 221, 222, 235, 236, 244 
 
 " " 222. 
 
 Peck V. Andrews, 327. 
 
 " V. Burr, 149. 
 
 " V. Elder, 36. 
 
 " V. Foot, 324. 
 
 " V. HUer, 179, 180. 
 " 245. 
 
 Peck V. Hiler, 150. 
 
 " 0. IngersoU, 149. 
 
 " V. MSlams, 38, 42, 43, 122, 129, 284. 
 " 0. New York and Liverpool U. H. 
 Mail Steam Ship Co., 241. 
 43. 
 " V. Richmond, 231, 222, 244, 324. 
 " V. Tiffany, 278, 279, 280, 283. 
 " V. Tillage of Batavia, 144 
 " V. Ward, 39, 129. 
 " V. Williams, 208. 
 " V. Yorks, 236. 
 Peckard v. Collins, 150, 204, 221. 
 Peckham v. Henderson, 42. 
 " V. Ketchum, 144. 
 " V. Leary, 147, 149, 180, 221. 
 " V. Smith, 32, 133, 140, 148, 178, 
 Peebles v. Rogers, 16, 66, 75. 
 Peelv. Elliott, 13, 33, 78, 79, 82, 83, 85, 110, 
 124, 304, 315, 316. 
 " " 83, 85, 110. 
 " " 79, 304, 315. 
 
 " 78. 
 Peet V. Cowenhoven, 79, 178, 279, 284, 315. 
 
 " V. Warth, 253, 333, 334, 338. 
 Peets V. Bratt, 124, 146. 
 Pegram v. Carson, 201, 202. 
 Pelham v. Bryant, 207. 
 Pell V. Ulmar, 154. 
 " " 179. 
 Pendell v. Coon, 213. 
 Pendlebury v. Meade, 154. 
 Pendleton v. Empire Stone Dressijng Co., 221, 
 228, 244. 
 ■' V. Weed, 78, 197, 319. 
 " '■ 178. 
 
 Penfield v. Thayer, 149. 
 
 " V. White, 102, 103, 339. 
 Pennell v. Hinman, 284. 
 
 " 17. Pentz, 147, 149. 
 Penniman v. New York Balance Dock Co., 99. 
 Penny v. Black, 207. 
 People V. Adams, 287. 
 
 " V. Albany and Vermont R. R. Co., 33. 
 
 99, 156. 
 '■ " 103, 104, 288. 
 
 " V. AUen, 126, 127. 
 " V. Ambreoht, 38, 150. 
 " V. Arnold, 42, 178. 
 " V. Attorney-General, 45. 
 " I/. Baker, 200. 
 " 241. 
 " V. Banker, 171, 178, 186. 
 " V. Becker, 284. 
 " 0. Bennett, 50, 121, 122, 123. 
 " V. Brooks, 156. 
 " V. Burtnett, 178. 
 " V. Carnley, 288. 
 " V. Carpenter, 208. 
 " V. Chamberlain, 208. 
 " V. Choi well, 197. 
 " V. Christie, 227. 
 " V. Church, 10, 318. 
 " V. Clarke, 337. 
 
 " 42, 186, 315, 319. 
 " V. Colborne, 253, 332. 
 '■ ". College of Physicians, 78. 
 
tNDEX TO CASES CrTED. 
 
 Ixiii 
 
 People V. Compton, 99, 103, 104, 288. 
 
 " V. ConoUy, 60. 
 
 " V. Cook, 138. 
 
 " 222, 228, 244. 
 
 " V. Cooper, 20. 
 
 " 0. County Judge of Rensselaer, 18. 
 
 " V. County Judge of Clinton, 324, 326. 
 
 " V. Cowles, 11. 
 
 " V. Cram, 180, 207, 221, 264. 
 
 " V. Culver, 178. 
 
 " V. Delveochio, 319. 
 
 " V. Deming, 33. 
 
 " V. Dikemau, 70. 
 
 " V. Draper, 99. 
 
 " V. Duell, 204. 
 
 " V. Eldridge, 306, 307, 323. 
 
 " V. Ewen, 331, 339. 
 
 " V. Flagg, 337. 
 
 " V. Flake, 331. 
 
 " V. Fleming, 284. 
 
 " V. Fulton, 32. 
 
 " V. Gale, 22. 
 
 " V. Gray, 58, 66, 71. 
 
 " V. Hartung, 227. 
 
 " V. Ilasoall, 27. 
 
 " " 147. 
 
 '' V. Haws, 313, 315. 
 " 319. 
 
 " " 11. 
 
 " V. Hayes, 138, 200. 
 
 " V. Heath, 331. 
 
 " V. Hicks, 11. 
 
 " V. Humphreys, 16. 
 
 " V. Hurlbut, 16, 18, 117, 292, 293, 297, 
 
 298, 300. 
 " V. Jayne, 147. 
 " V. Kane, 142. 
 " ■(/. Kearney, 288. 
 " V. Kelly, 82. 
 " " 221, 288. 
 
 " " 81, 292, 302. 
 
 " V. King, 288, 298, 300, 315. 
 " V. Law, 32, 38, 39, 99. 
 ■' V. Laws, 32, 33, 147, 179. 
 " V. Lemmon, 20. 
 " V. Livingston, 42, 178. 
 " V. Long Island E. R. Co., 200. 
 " V. Lott, 28, 255. 
 " u. Lowber, 69, 102, 151, 274. 
 " V. Marks, 215. 
 
 " V. Mayor of New Tork, 36, 117, 123. 
 " " 38, 150, 157, 169. 
 
 " " 33, 99, 102. 
 
 " " 30. 
 
 " " 32, 99. 
 
 " " 38. 
 
 " " 122, 123. 
 
 " " 150, 157. 
 
 " " 274. 
 
 •' V. McOumber, 134, 136, 178, 181. 
 " V. Merrill, 319. 
 " V. Metropolitan Bank, 99. 
 " V. Meyer, 170. 
 " V. Monroe, 288. 
 
 " V. New York Central E. R. Co., 71. 
 " V. New York Common Pleas, 99. 
 " 0. Norton, 32, 33, 147, 178, 222. 
 
 People V. Norton, 279, 297. 
 " V. Orser, 15, 288. 
 " V. Parker Vein Coal Co., 99. 
 " V. Pease, 18. 
 " V. Petry, 147, 255. 
 " -u. Porter, 11, 16, 20. 
 " V. Rathbuu, 284. 
 " u. Ravenswood, &c.. Turnpike and 
 
 Bridge Co., 123, 169. 
 " V. Rector, &c., of Trinity Church, 42, 
 150. 
 
 201, 202. 
 " V. Ryder, 32, 36, 124, 133, 135, 169. 
 " V. Sampson, 99. 
 " V. Schuyler, 95, 147, 148. 
 " V. Shay, 206. 
 
 " w. Sheriff of N. Y., 30, 218, 221, 288. 
 " V. Sheriff of "Westchester Co., 8. 
 " V. Snedeker, 26. 
 " " 265. 
 
 " V. Soper, 18. 
 " V. Stilwell, 319. 
 " V. Stryker, 178. 
 " V. Sturtevant, 331, 336. 
 " " 20, 99, 288. 
 
 " V. Supervisors of Chenango, 122. 
 " V. Supervisors of Delaware, 178. 
 " V. Supervisors of Monroe Co., 338. 
 " V. Supervisors of Munroe, 32. 
 " V. Tarbell, 306, 308. 
 " V. Tiemaun, 149. 
 " V. Tioga Common Pleas, 32. 
 " V. Townsend, 70. 
 " V. Tremain, 332. 
 " V. Van Dusen, 336. 
 " V. Van Rensselear, 42, 178, 186. 
 " V. Vermilyea, 213. 
 " V. Walker, 71. 
 " " 32, 33, 34. 
 
 " " 32, 36, 124, 129, 131. 
 
 " V. Webb, 200. 
 " V. Wilcox, 11, 15, 16. 
 " V. Willett, 82, 285. 
 " V. Willis, 19. 
 " V. Wilson, 227. 
 " V. Wood, 71. 
 " V. Woods, 129, 130, 173. 
 " V. Wright, 200. 
 People of State of Michigan v. Phenix Bank 
 
 of New York, 32, 178. 
 People ex rel. Bendon v. County Judge of 
 Rensselaer, 322. 
 " " Debenetti v. Gale, 322. 
 " " Fjganiere v. The Marine Court, 
 
 322. 
 " " Mactaggart v. Gale, 322. 
 " " Kevins v. Wilhs, 322. 
 " " WilUams v. Bigelow, 322. 
 Pepper v. Haight, 122, 222, 313. 
 Percy v. Seward, 75, 138, 142, 195. 
 Perdue v. Mayor of New York, 149. 
 Perego v. Purdy, 327. 
 Perkins v. Church, 32, 148. 
 
 " V. Farnham, 186, 312, 319. 
 " V. Mead, 76. 
 " V. Mitchell, 142, 1 68. 
 " V. Stebbins, 327. 
 
lxi\ 
 
 INDEX TO CASES CITED. 
 
 Perkins v. "Warren, 99, 101, 105. 
 Perlee v. Onderdonk, 146. 
 Perry v. Griffin, 338. 
 
 " V. Livingston, 334, 336, 338. 
 
 " u. Moore, 315. 
 
 " -u. Perry, 156. 
 
 " V. Tynen, 184. 
 Person v. Warren, 33, 45, 48. 
 Persse and Brooks Paper Works v. Willett, 
 
 T8, 163. 
 Pester, in re, 292, 302. 
 Peters v. Diossy, 178, 324. 
 
 " V. Kerr, 298. 
 Peterson v. Diokel, 336. 
 
 " V. Rawson, 149, 179. 
 Petition, &c., in re a, 20. 
 Pettee v. Orser, 179. 
 Pettengill v. Mather, 285. 
 Pettigrew «. Chave, 146, 181. 
 
 " u. Mayor of New York, 245. 
 
 " " 274. 
 
 Pettis V. Bloomer, 144, 147. 
 Pettit V. Ide, 244. 
 
 " V. King, 140. 
 Phalen v. Dinger, 32, 140, 149. 
 Phelan v. Douglass, 42, 43, 71. 
 Phelps V. Bostwick, 149. 
 
 " " 149. 
 
 " V. Brooks, 293. 
 
 " V. Cole, 45, 118, 332. 
 
 " V. Dodge, 232. 
 
 " V. Ferguson, 146, 172. 
 
 " V. Phelps, 146. 
 Pheuix V. Townshend, 163. 
 Philbin e. Patrick, 235, 338. 
 Philips V. Peters, 43. 
 Phillips V. Benedict, 82. 
 85. 
 
 " 0. Butt, 34, 160, 174, 181, 221. 
 
 " V. Drake, 192. 
 
 " V. Gorham, 121, 132, 150, 179. 
 
 " V. Gray. 149. 
 
 " •(/. Hagadorn, 34, 169. 
 
 " V. Prescott, 71, 127, 160, 174, 257, 273. 
 
 " V. Simmons, 184, 332. 
 
 " V. Wright, 149. 
 Phincle v. Vaughan, 131, 142, 222. 
 Phipps V. Van Cott, 251. 
 
 " " 333, 336. 
 
 Phoenix v. Commissioners of Emigration, 42, 
 
 99. 
 Picabia v. Everard, 78, 184, 272. 
 Pickard v. Collins, 150, 204. 
 Pickett V. King, 43. 
 Pier V. Finch, 122. 
 Pierce, in re, 331. 
 
 " V. Crane, 278, 279. 
 
 " V. Delamater, 10. 
 
 " V. Kingsmill, 280. 
 
 " V. Pierce, 149, 178, 228. 
 
 " V. Thomas, 149, 327. 
 Pierrepont v. Barnard, 179. 
 Pierrot v. MoUer, 24, 315, 333. 
 Pierson v. Boyd, 146. 
 
 " V. Mosher, 42. 
 Pignolet V. Daveau, 50, 184. 
 Pike V. Butler, 149. 
 
 Pike V. Finch, 142. 
 
 " V. Lent, 82, 86. 
 
 " V. Nash, 338. 
 
 " V. Van Wormer, 133, 140, 142. 
 Pilger «). Gow, 184, 340. 
 Pillbury v. Webb, 144. 
 Pillow V. Bushnell, 208. 
 Pinckney v. Hagadorn, 152. 
 
 " V. Keyler, 180. 
 
 " V. Wallace, 38, 140, 154, 169. 
 Pindar v. Black, 38, 50, 70, 83. 
 
 " V. Seaman, 202. 
 Pine V. Rikert, 143, 149, 244. 
 Pinneo v. Higgins, 146. 
 Piser V. Stearns, 149, 180. 
 Pitt V. Davison, 263, 288. 
 Pixley V. Clark, 150. 
 
 Place V. Butternuts Woollen and Cotton Manu- 
 facturing Co., n, 32, 207. 
 
 " V. Union Express Co., 144, 178. 
 Placide v. Burton, 144. 
 Piatt V. Lett, 82. 
 
 " V. Munroe, 245, 319. 
 
 " V. Stark, 146. 
 
 " V. Stout, 124. 
 
 " V. Towusend, 162, 166. 
 
 " V. Wilson, 332. 
 Plumb V. Cattaraugus County Mutual Ins. Co., 
 147, 178, 222. 
 
 " V. Whipples, 128, 176, 223, 274. 
 Plummer v. Plummer, 48. 
 PoUock V. Aldrich, 47. 
 
 " V. Ehle, 327. 
 
 " V. Hoag, 147. 
 
 " V. National Bank, 154, 157. 
 Pomeroy v. Ainsworth, 178. 
 
 " V. Hindmarsh, 101, 102. 
 
 " V. Hulin, 164, 215. 
 Pomroy «. Sperry, 33. 
 Pond V. Hudson River R. R. Co., 138. 
 Poook V. Miller, 35. 
 Poor V. Horton, 42. 
 Pope V. Diusmore, 241, 313. 
 Porter v Bleiler, 32, 35. 
 
 " V. Cass, 102. 
 
 " V. Jones, 9, 318, 320, 336. 
 
 " V. Lee, 260, 265. 
 
 " V. Lent, 14, 15, 260. 
 
 " V. Lobach, 149, 249. 
 
 " V. Lord, 20, 54. 
 
 " V. McCreedy, 123, 179. 
 
 " 0. New Tork Central R. R. Co., 141, 
 144. 
 
 " V. Pillsbury, 138. 
 
 " V. Potter, 207. 
 
 " V. WUliams, 45, 117, 118,153, 293, 300. 
 Post V. Coleman, 27, 48, 126. 
 
 " V. New York Central R. R. Co., 164, 
 219. 
 
 " V. Westervelt, 336. 
 Potsdam and Watertowu R. R. Co. v. Jacobs, 
 
 336. 
 Potter V. Bushnell, 207. 
 
 " V. Clark, 225. 
 
 " a. Davison, 224, 273. 
 
 " V. Kitchen, 109. 
 221. 
 
INDEX TO CASES CITED. 
 
 Ixv 
 
 Potter V. Low, 293, 298, 300, 302. 
 " V. Rowland, 60, 118, 273. 
 " V. Seymour, 141. 
 " V. Smith, 187, 191, 217, 223, 253. 
 " V. Tallman, 146, 178. 
 " V. Thompson, 132, 244. 
 " V. White, 150. 
 Poughkeepsie and Salt Point Plank Road Co. 
 
 V. Griffin, 148. 
 Powell V. Clark, 105. 
 
 " V. Pinch, 38, 221, 264. 
 " V. Noye, 149. 
 " V. Rust, 24, 333. 
 Power V, Alger, 99. 
 
 " V. Bassford, 143. 
 " V. Lester, 34, 154. 
 " V. Rinkerton, 178. 
 " V. Root, 149. 
 Powers V. Barr, 268, 337. 
 
 " V. Elmendorf, 201, 202. 
 " V. Wolcott, 337. 
 Pozzoni V. Henderson, 327, 
 PraU V. Hinchman, 146, 207, 228. 
 Pratt V. Allen, 333, 336. 
 
 " V. Conkey, 178, 337. 
 " V. Foote, 146, 232. 
 " V. Gulick, 146, 179. 
 " V. Hoag, 60. 
 
 " V. Hudson River R. R. Co., 132, 144. 
 " V. Huggins, 43, 154. 
 " in re, 30. 
 
 " V. Ramsdell, 178, 335, 337. 
 " V. Stiles, 154, 234. 
 " V. Wells, 81. 
 Prentice v. Dike, 143. 
 Prentiss v. Paniham, 178. 
 
 " V. Graves, 146, 179, 180. 
 " V. Sprague, 23, 327. 
 President, &c.. Bank of Commerce v. Rutland 
 and Washington R. R. Co., 32, 54, 108, 112. 
 President Chemung Canal Bank v. Judson, 
 
 127. 
 President of Bank of Ithaca u. Bean, 20, 207. 
 President of Connecticut Bank v. Smith, 231. 
 President of Farmers' and Mechanics' Bank v. 
 
 Rider, 207. 
 Price 1). Fort Edward Water Works Co., 
 200. 
 " V. Lyon Bank, 178. 
 " V. JloClave, 146. 
 " V. McGown, 152. 
 " V. Powell, 32, 144, 241, 243. 
 " v. Shipps, 280. 
 Prince v. Currie, 201. 
 
 " V. Down, 149, 207, 208. 
 Prindle v. Aldriek, 129. 
 
 " V. Carruthera, 32, 124, 133, 146, 176. 
 Pringle v. Chambers, 228. 
 
 " V. Phillips, 94, 143, 145, 149. 
 Prior V. Tupper, 99. 
 Protective Union v. Nixon, 260. 
 Proude v. Whiton, 332. 
 Provost V. Patchin, 149. 
 Pruyn v. Black, 264. 
 '■ V. Tyler, 327. 
 Pryor's Appeal, 313. 
 Pudney v. Griffiths, 286, 293. 
 
 Pugsley V. Aikin, 140. 
 
 " V. Kesselburgh, 24, 318, 320, 329. 
 
 " V. Murray, 149. 
 PuUing V. The People, 71. 
 Pullman v. Corning, 149. 
 Pulver V. Hiserodt, 221. 
 PumpeUy v. Village of Oswego, 315. 
 Purchase v. Mattison, 132, 146, 169, 171, 178, 
 
 222. 
 Purdy V. Carpenter, 142, 170, 179. 
 
 " V. Harrison, 307, 323, 324. 
 
 " V. Peters, 147. 
 
 " " 26, 265, 338. 
 
 " V. Philips, 147, 219. 
 
 " V. Upton, 48, 126. 
 
 " V. Vermilyea, 116, 146. 
 Purple V. The Hudson River R. R. Co., 32. 
 Purvis V. Coleman, 144, 228, 229, 241, 242, 
 
 249, 313. 
 Putnam v. Crombie, 244. 
 
 " V. De Forest, 133, 134, 180, 187. 
 
 " V. Putnam, 134. 
 
 " V. Van Buren, 32, 150, 192. 
 
 Q. 
 
 Quackenbush v. Bhle, 236. 
 Quarry Co. v. Bliss, 32, 144. 
 
 " " 144. 
 
 Querissle v. Hilliard, 338. 
 Quick V. Grant. 117, 178. 
 
 " V. Keeier, 11, 45, 15], 153, 204. 
 Quimby v. Sloan, 23, 154. 
 
 " V. Vanderbilt, 144. 
 Quin V. Chambers, 133, 134, 181, 185, 186. 
 
 " V. McOliff, 99, 154. 
 
 " V. Moore, 32, 33, 142, 144, 207. 
 
 " V. O'Gara, 142. 
 
 " V. Tilton, 59, 127, 160, 257, 273. 
 Quinn v. Case, 225, 274, 315. 
 
 " V. Mayor of New York, 154. 
 Quintard v. De Wolf, 149, 178. 
 
 " V. Seoor, 182. 
 
 R. 
 
 Radcliff V. Van Benthuysen, 66, 166. 
 
 " V. Wood, 281. 
 Raddeu. Ruckgaber, 134, 176, 177, 179. 
 
 " V. Whitney, 147, 280. 
 Radley v. Houtahng, 193. 
 Radway v. Graham, 304, 315, 316. 
 
 " V. Mather, 123, 172. 
 Rae V. Lawser, 48, 178. 
 
 " V. Washington Mutual Ina. Co., 172, 
 181, 189, 25L 
 Rafter ti. Sullivan, 154. 
 Ralph V. Stuart, 143, 149. 
 Ramsay v. Lewis, 148. 
 Randall «. Alburtis, 150. 
 
 " V. Raab, 42, 150. 
 
 " V. Smith, 146. 
 Randolph v. Poster, 337. 
 
 " V. Garvey, 154. 
 
 " V. Leary, 154, 265, 284. 
 Raney v. Weed, 213. 
 Ranken v. De Forest, 32, 149. 
 
Ixvi 
 
 INDEX TO CASES CITED. 
 
 Rankin v. EUlott, 99, 118, 148. 
 
 " 0. Pine, 241, 304, 307, 313. 
 Banney v. Gwynne, 327. 
 
 " V. Russell, 164. 
 
 " V. Smith, 146, 180. _, ; 
 
 " V. Stringer, 163. 
 Ransom v. Halcott, 28, 111. 
 
 " V. Miner, 280. 
 
 " V. New York and Erie E. R. Co., .141. 
 
 " V. Nichols, 34. 
 
 " D. Wheeler, 146. 
 Rasquin v. Knickerbocker Stage Co., 30. 
 Rateau v. Bernard, 102, 105. 
 Rathbone v. Clarke, 56, 273. 
 
 " -0. McConneU, 333, 334. 
 
 " ■' 176, 177. 
 
 " V. Morris, 308. 
 Rathbun v. Acker, 66. 
 
 " V. "Woodworth, 287. 
 Rawdon v. Corbin, 56. 
 Rawson v. Grow, 219, 324. 
 Bay V. Ayers, 150. 
 
 " V. Van Hook, 332. 
 Raymonds. Richardson, 177, 327. 
 
 " V. Traffam, 327. 
 Raynor v. Clark, 122, 129, 141, 171, 251, 313, 
 
 315. 
 Read v. Potter, 308. 
 
 " V. Spaulding, 144. 
 Ready v. Stewart, 32, 108, 111. 
 Reciprocity Bank, in re, 34, 118, 148. 
 Rector, &c., of Church of Holy Innocents v. 
 
 Keech, 99. " 
 Reddy v. Wilson, 76. 
 Redfleld v. Florence, 327. 
 
 " V. Utica and Syracuse R. R. Co., 38, 
 150. 
 Redmond v. Dana, 157, 161, 169. 
 
 " V. Wheeler, 278. 
 Reed v. Barber, 327. 
 
 " V. Butler, 126. 
 
 " " 79, 192. 
 
 " •</. Child, 155, 179, 336. 
 
 " v. Ennis, 112. 
 
 " V. Gerty, 178. 
 
 " v. Latson, 179, 180, 181. 
 
 " V. McNaughton, 43. 
 
 " V. Stryker, 38, 140, 153. 
 
 " " 140. 
 
 " V. The Evergreens, 37. 
 
 " -0. Warth, 324, 327. 
 Reese v. Reese, 78. 
 
 " V. Tan Patten, 184. 
 Reformed Protestant Dutch Church of N. T. v. 
 Parkhurst, 152. 
 
 " " ofWestfieldj). Brown, 32, 148. 
 Reiley i). Thomas, 186. 
 Reilly v. Cook, 32, 176, 181. 
 Reimar v. Nagel, 82, 145. 
 Relyea v. Beaver, 150, 157. 
 Remington v. King, 148, 180. 
 Renard v. Fiedler, 149, 152, 178. 
 
 " V. Hargous, 16, 20, 108, 112, 147. 
 
 " V. Sampson, 147, 149, 152. 
 
 ■' V. TuUer, 178. 
 Renaud v. Conselyea, 179. 
 
 " V. Peck, 149, 244. 
 
 Reniok V. Orser, 28, 43, 44, 144, 179, 285. 
 
 Reno V. Pinder, 23, 58. 
 
 BenouU v. Harris, 26, 197, 236, 237, 241, 254, 
 
 307. 
 
 Rensselaer and Washington Plank Road Co. 
 
 V. Barton, 148. 
 
 " " » V. Wetsel, 134. 
 
 11 " " " " 148. 
 
 Republic of Mexico v. Arrangois, 32, 33, 38, 
 
 82, 83, 85, 134, 161, 163, 196, 213. 
 Requav. Holmes, 10, 178, 179, 192, 265, 266. 
 178, 192, 222, 265. 
 " V. Requa, 207. 
 Reubens v. Joel, 99, 101, 121, 153, 194. 
 Reyford v. Widger, 178. 
 Reynolds v. Charaplain Transport'n Co., 227. 
 " V. Davis, 20. 
 " " 215. 
 
 " u. Dunkirk and State Line R. R. Co., 
 
 152. 
 " V. Freeman, 251, 316. 
 " V. Mayor of New York, 338. 
 " v. McElhone, 293, 302. 
 Rhoades v. Woolsey, 99. 
 Ricart v. Townsend, 32, 38, 140, 169. 
 Rice V. Floyd, 318. 
 " " 319. 
 " V. HoUenbeck, 32, 222. 
 " V. Mead, 327. 
 " v. Milks, 21. 
 " V. O'Connor, 180, 186. 
 " V. Wright, 337. 
 Rich -0. Beekman, 308. 
 
 " V. Husson, 207, 264. 
 " " 331. 
 
 " V. Loutrel, 118, 280. 
 " V. Sahnger, 178. 
 Richards v. Allen, 132, 178, 280, 283. 
 " " 235, 236. 
 
 " V. Cook,- 336. 
 
 " V. Edick, 133, 135, 152, 168, 169. 
 " V. New York Protestant Dutch Ch, 
 
 99, 156. 
 " «. Sandford, 222, 244. 
 " V. Tarnum, 284. 
 " V. Westcott, 132. 
 Richardson v. Ainsworth, 32, 178, 299. 
 
 " V. Brooklyn City and Newtown R. R. 
 
 Co., 30. 
 " V. City of Brooklyn, 144 
 " V. Craig, 83. 
 " V. Mead, 32. 
 " v. Wilkins, 204, 222. 
 " -0. Wilton, 176, 181. 
 Richmond v. Hamilton, 235, 338. 
 
 " V. RusseU, 339. 
 Riohtmeyer v. Haskins, 185, 186. 
 Rickards v. Swetzer, 217, 263, 260. 
 Ricketts v. Green, 123, 126. 
 Rider v. Deitz, 339. 
 V. Hulse, 34. 
 V. Pond, 231. 
 " 144. 
 " 221, 228. 
 V. Union India Rubber Co., 43, 149. 
 
 " 43, 149, 178, 242, 313, 315. 
 V. Whitlock, 50, 51, 124, 134, 139, 141. 
 
INDEX TO CASES CITED. 
 
 Ixvii 
 
 Ridgeway v. Barnard, 147. 
 
 " V. Bulkeley, 192. 
 Rielay v. Thomas, 181, 188. 
 Riggins V. "Williams, 163. 
 Rigney v. Coles, 152, 178. 
 
 ' " V. Tallraadge, 109, 112. 
 Ring V. MoCoun, 20, 138. 
 
 " u. Mott, 213. 
 Ripley v. iEtna Fire Ins. Co., 32, 147, 244. 
 
 " V. Astor Ins. Co., 147. 
 Ripple V. GUborn, 34, 36, 150, 168, 260, 265. 
 Rippow & Co. (>. Strong, 244. 
 Ritchie v. Garrison, 168. 
 Ritterband v. Marryatt, 280, 286, 291, 293. 
 Rivara v. Ghio, 143, 327. 
 Roach V. Coe, 152. 
 Eobb V. Jewell, 198, 242. 
 
 " V. McDonald, 163. 
 Robbins v. Alexander, 30. 
 
 " V. Codman, 149, 313. 
 
 " V. Dillaye, 178, 228. 
 
 " V. Richardson, 131, 132, 146, 315. 
 
 " V. Seithel, 82. 
 
 " V. Watson, 257, 273. 
 Robert v. Donnell, 66, 69, 147. 
 
 " V. Traders' Ins. Co., 147. 
 Robert! v. Carlton, 34, 45. 
 Roberts v. Albany and West Stockbridge E. 
 , R. Co., 117, 153. 
 
 " V. Carter, 30, 38, 85, 180. 
 
 " " 35. 
 
 " " 210, 236. 
 
 " V. Clark, 251, 336. 
 
 " ■„. Gee, 206. 
 
 " V. Law, 182. 
 
 " V. Mayor of New York, 99. 
 
 " V. Morrison, 146, 251, 336. 
 
 " V. Eandel, 82, 145. 
 
 " V. Sykes, 43, 154. 
 
 " 0. Thompson, 204. 
 
 " V. Willard, 95. 
 Robertson v. Bullions, 304, 306, 320. 
 
 " V. New York and Erie R. R. Co., 141. 
 
 " V. Vaughn, 178. 
 Robie V. Sedgwick, 42. 
 Robinsons. Flint, 140, 141, 143. 
 
 " V. Frost, 38, 176, 207, 221, 264. 
 
 " V. Howes, 180. 
 
 " V. Hudson River R. R. Co., 241, 304, 
 313. 
 
 " V. Judd, 133, 134, 140. 
 
 " V. McGregor, 265. 
 
 " V. Mcintosh, 32, 156, 168. 
 
 " u. JsTfew York and Erie R. R. Co., 143, 
 222. 
 
 " V. Stewart, 153, 176. 
 
 " V. Weeks, 32, 299. 
 
 " V. West, 23, 327. 
 
 " " 23 327 
 
 " V. Wiley, 178, 281. 
 
 " V. Williams, 154. 
 Robinson's Case, 281. 
 Robison v. Lyle, 244. 
 Rocco V. Hackett, 178. 
 Boohe V. Farran, 204. 
 
 " •(!. Ward, 56. 76. 
 Rochester v. Taylor, 179. 
 
 YOL. I. F 
 
 Rochester City Bank v. Elwood, 147. 
 
 " V. Rapelje, 251, 336. 
 
 ■' V. Suydam, 121, 123, 134. 
 Rochester and Genesee R. R. Co. v. Beckwith, 
 
 313. 
 Rockefeller v. Weiderwax, 336. 
 Rock Riyer Bank v. Hoffman, 38. 
 EookweU V. Hartford Fire Ins. Co., 147, 194. 
 
 " V. Saunders, 143, 145, 150, 178, 179, 
 265. 
 Rodgers v. Fletcher, 222. 
 
 " V. Rodgers, 140. 
 Rodi V. President, ic, of Rutgers Fire Ins. 
 
 Co., 122, 123, 147. 
 Rodman v. Henry, 298, 300. 
 Roe V. Rogers, 134, 177, 179. 
 
 " V. Swezey, 38, 42, 140. 
 Roeder v. Ormsby, 133, 142. 
 Rogers v. Ackerman, 327. 
 Rogers' Administrator, in re, 43. 
 Rogers v. Adrianoe, 32, 192. 
 
 " V. Barker, 150. 
 
 " V. Beard, 180, 236, 241. 
 
 " V. Chamberlain, 338. 
 
 " V. Degan, 337. 
 
 " V. Hern, 153. 
 
 " V. Marshall, 241, 
 
 " V. MoElhone, 16, 75, 76, 85, 315. 
 
 " V. McLean, 33, 35, 54, 64, 155, 160, 
 265, 266, 267, 316. 
 
 " V. Michigan Southern and Northern 
 Indiana R. R. Co., 99. 
 
 " V. Murray, 147, 244. 
 
 " V. Ostrom, 180. 
 
 " V. Rathbun, 127, 128, 223, 224. 
 
 " " 76, 136. 
 
 " v. Terona, 132. 149, 244. 
 
 " V. Wing, 244. ' 
 Romaine v. Kinsheimer, 13. 
 
 " V. McMillen, 78, 272. 
 Rood V. New York & Erie R. R. Co., 32. 
 Roonae v. Webb, 102. 
 Rooneyi;. Second Avenue R. R. Co., 30, 276, 
 
 304, 305, 306. 
 Roosa V. Snyder, 229, 240, 242. 
 
 " V. Saugerties and Woodstock Turnpike 
 Road Co., 76, 136, 186. 
 
 " " " " 234. 
 
 Roosevelt v. Brown, 336. 
 
 " 0. Carpenter, 147. 
 
 " V. Draper, 32, 33, 37, 99. 
 
 " " 32, 33, 37, 99. 
 
 " i;. Foster, 123, 134, J.42. 
 
 " •</. Harris, 134. 
 
 " V. Price, 124, 131, 139. 
 
 " V. Wheeler, 99, 267. 
 Eoacoeu Maison, 126, 180, 187. 
 Rose V. Truax, 122, 147, 149. 
 Eosenbaum v. Gunter, 141, 143, 152, 180. 
 
 " 147, 178. 
 Rosenfleld v. Howard, 109. 
 Rosenthal i;. Brush, 176, 179. 
 Ross V. Bedell, 146. 
 
 " V. Brooks, 134. 
 
 " V. Chussman, 48, 104, 288, 291, 293, 
 301, 302. 
 
 " V. Curtis, 149. 
 
Jxvui 
 
 INDEX TO CASKS CrrED. 
 
 Ross V. Dinsmore, 51, 128, 134. 
 
 " v. West, 149, 313. 
 Roth r. Meads, 338. 
 
 '■ V. Palmer, 140, 141, 149. 
 
 " V. Schloss, 131, 222, 315. 
 Houillier v. Wermieke, 34, 327. 
 Roulston V. Clark, 24, 141, 327. 
 
 " r. McClelland, 324. 
 Eourke v. Story, 178, 207. 
 Row V. Row, 155. 
 Rowan v. Kelsey, 150. 
 Eowell V. McCormick, 66, 307. 
 Rowland v. Miln, 144. 
 
 •' V. Phalen, 33, 124, 147, 
 Roy ;'. Harley, 30, 273. 
 
 " V. Thompson, 198, 215. 
 Riiberry v. Binns, 201, 202. 
 Ruckman v. Oov/ell, 8, 178. 
 
 " 11. Merchants' Louisville Insurance Co., 
 147. 
 
 " V. Pitcher, 32. 
 " 36. 
 " 147, 149. 
 Ruggles V. Fogg, 147, 164, 180, 333, 334. 
 Rumsey v. People, 10, 1 1. 
 Rundell v. Butler, 142. 
 Runk V. St. John, 32, 38, 118, 284. 
 RunneU v. Griffin, 260, 273, 333, 334. 
 Rupp V. Blanohard, 32. 
 
 " V. Lobach, 149. 
 Ruse V. Mutual Benefit Life Ins. Co., 147, 
 
 178. 
 Rusher v. Morris, 34, 184. 
 
 " V. Sherman, 178, 186. 
 Rushmore v. Hall, 207, 210, 227. 
 Russ V. Brooks, 179. 
 RusseU V. Allen, 94, 145, 265. 
 
 " V. Clapp, 176. 
 
 " V. Conn, 131, 132, 319. 
 
 " V. Cronkhite, 146. 221, 228. 
 
 " t). Gray, 28, 178.' » 
 
 " V. Harding, 178, 186. 
 
 " V. Hudson River R. R. Co., 141. 
 
 " 'im re, 30. 
 
 " V. Lasher, 38. 
 
 '• V. Livingston, 141, 144. 
 
 " V. Meacham, 182. 
 
 " V. Ruckman, 111, 179. 
 
 " V. Spear, 128. 
 Eutter V. TaUis, 117, 300. 
 Ryan v. Dox, 152. 
 
 " V. McCannell, 13, 14, 260. 
 
 " V. Rochester and Syracuse R. E, Co., 
 142. 
 Ryokman v. Coleman, 86, 102, 105, 178. 
 Eyder v. Union India Rubber Co., 164, 182. 
 Eyle V. Harrington, 79, 177, 242. 
 
 S. 
 
 Sachs V. Bertrand, 83, 85. 
 Saciau. Nestle, 278. 
 Saokett v. Ball, 337. 
 
 " V. Newton, 293, 295. 
 
 " V. Pahner, 178. 
 
 " i;. Spencer, 146, 179, 229, 249. 
 Saoketts Harbor Bank v. BurweU, 319, 320. 
 
 Sacketts Harbor Bank v. Codd,-178. 
 
 " V. Lewis County Bank, 178. 
 Safford v. Drew, 33, 122, 142. 
 Sage V. Cartwright, 284. 
 
 " V. ChoUar, 153. 
 
 " V Mosher, 36, 38, 121, 132, 140, 153, 
 193, 263. 
 " 74, 79, 193, 235. 
 Sagory v. New York and New Haven R. R. 
 
 Co., 129, 178. 
 Sale V. Darragh, 178. 
 
 " V. Lawson, 16, 278, 291, 292, 293. 
 Sales V. "Woodin, 74, 166, 240. 
 Salinger v. Lusk, 176, 186. 
 Sahnon v. Orser, 143, 244. 
 Salter J). Malcolm, 178, 235. 
 
 " V. Weiner, 86, 111. 
 Salters v. Genin, 122, 132, 178, 194, 232, 244, 
 
 313, 315. 
 Saltus V. Genin, 123, 129, 131, 132. 
 
 " V. Kip, 160, 179, 181, 260, 273. 
 Salutat V. Downs, 166. 
 Samuel v. Buger, 99. 
 Sanborn v. Elizabethport Manufacturing Co., 
 
 112. 
 Sanchez v. People, 227. 
 Sanders v. Leavy, 123, 150. 
 Sandford v. Mayor of New Tork, 149. 
 Sands v. Church, 178, 179, 222, 232, 254. 
 
 " V. Craft, 332. 
 
 " ■ V. Roberts, 300. 
 
 " V. Sands, 40, 337. 
 
 " V. St. John, 43, 123, 134, 176, 178, 
 191. 
 Sanford v. Carr, 293, 294, 297. 
 
 " V. Eighth Avenue R. E. Co., 141, 142, 
 318. 
 
 " V. Granger, 222, 313. 
 
 " V. Moshier, 298. 
 Sanger v. Tail, 222, 241. 
 Saratoga and "Washington E. E. Co. v. McCoy, 
 
 332. 
 
 " " " .337,339. 
 
 " " " 336. 
 
 Sartos V. Merceques, 28, 84, 90. 
 Satterlee v. Frazer, 30. 
 
 " V. Jones, 147. 
 Saul V. Kruger, 145, 280. 
 Saunders v. HaU, 293. 
 Savage V. Bevier, 146, 147. 
 
 " V. Corn Exchange Fire and Inland 
 Navigation Ins. Co., 147, 169, 
 171, 178. 
 
 " V. Darrow, 336. 
 
 " V. Medbury, 146. 
 
 " V. Perkins, 82, 94, 143, 145, 178. 
 
 " V. Putnam, 180. 
 
 " V. Eelyea, 74, 79, 166, 315, 316. 
 Sawyer v. Chambers, 39. 
 
 " V. HaskeU, 146, 147. 
 
 " V. Schoonmaker, 67, 76, 78, 127. 
 
 " V. Warner, 176. 
 Sayles v. Wooden, 123, 179, 188. 
 Sayre v. Cushing, 176. 
 
 " II. New York and Harlem R R. Co., 
 313. 
 Scanlau v. Cowley, 142. 
 
INDEX TO CASES CITED. 
 
 Ixix 
 
 Schadle v. Chase, 82, 85. 
 Schenck v. Campbell, 156. 
 
 " T/. Dart, 319, 320. 
 
 " V. Fancher, 184. 
 
 " V. McKie, 16, 66, tl, 14, 75, 166. 
 
 " V. Naylor, 122, 144. 
 
 " V. Wilson, 180. 
 
 Schenectady and Saratoga Plank Road Co. v. 
 
 Thatcher, 148, 178, 222, 244. 
 
 241, 254. 
 
 Schermerhorn v. American Life Ina. and Trust 
 
 Co., 118. 
 
 " V. Anderson, 308. 
 
 " V. Devhn, 75, 78, 234, 284. 
 
 " V. Golief, 324, 325. 
 
 " V. Gouge, 186. 
 
 " V. Mayor of New York, 307. 
 
 " V. Mohawk Bank, 319. 
 
 " V. Nibio, 152. 
 
 " !. Talman, 147, 152, 178. 
 
 " II. Van Alen, 176. 
 
 " " 234, 313. 
 
 " V. Van Voast, 26, 78, 253, 338. 
 Scherpf v. Szadeczky, 142, 208. 
 Sshieb v. Baldwin, 111, 280, 297. 
 Schiefifelin v. Hawkins, 180. 
 Schlemmer v. Myerstein, 112. 
 Schlussel V. "WiUett, 179. 
 Schmidt v. Kattenhom, 143, 149. 
 Schnaderbeck v. Werth, 122, 176, 179, 180. 
 Schneider v. Jacobi, 164, 180, 333, 334. 
 
 " V. Schultz, 177. 
 Schoolcraft v. Thompson, 48, 70. 
 Schoonmaker v. Protestant Reformed Dutch 
 
 Church of Kingston, 102, 105. 
 Schouton V. Kilmer, 281. 
 Schroeder v. Hudson River R. R. Co., 144. 
 
 " d. Kohlenback, 198, 215, 226. 
 Sohroeppel v. Corning, 43. 
 " 123. 
 Schubart v. Harteau, LSO, 187. 
 Schuchardt 1J. Eoth, 66, 166, 273. 
 Schudder v. ShieUs, 82. 
 Schufeldt V. Abemethy, 10, 20. 
 Sehulten v. Lord, 32. 
 Schussel V. "WiUett, 153. 
 Schwartz v. Bendel, 323, 325, 328. 
 
 " V. Poughkeepsie Mutual Ins. Co., 
 337. 
 Schwat V. Fumiss, 171, 186, 231. 
 Scofield V. Van Syckle, 164, 168, 169. 
 Scott V. Johnson, 28, 122, 146, 178. 
 
 " V. Nevihe, 300. 
 
 " V. Ocean Bank, 146. 
 
 " V. Onderdonk, 152. 
 
 " V. WiUiams, 85, 235. 
 Scovell V. New, 126, 176. 
 ScoviU V. GrifBth, 144. 
 
 " V. Howell, 133, 174, 181. 
 Scranton v. Baxter, 236, 335. 
 
 " V. Booth, 148, 149. 
 
 " V. Farmers' and Mechanics' Bank of 
 Rochester, 33, 124, 171. 
 
 " V. Levy, 327. 
 Scudder v. Barnes, 82. 
 
 " V. Voorhis, 33, 38. 
 Seaboard and Roanoke R. R. Co. v. Ward, 184. 
 
 Seacord v. Morgan, 147, 265, 320. 
 Seaman v. Hasbrouck, 178. 
 
 " V. Low, 132, 149, 152, 162. 
 
 " V. Luce, 95, 145, 265, 281. 
 
 " V. Ward, 178, 327. 
 
 " V. Wright, 40. 
 Searll v. McCrackan, 142. 
 Sears v. Burnhara, 255, 272. 
 
 " V. Conover, 32. 
 
 " V. Gearn, 109, 111. 
 
 " 11. Shafer, 43. 
 Seaver v. Genner, 90. 
 
 " II. Robinson, 20, 54, 218. 
 Sebring v. Lant, 99, 101. 
 Second Amer. Building Assoc, v. Piatt, 154. 
 Second Avenue R. R. Co. v. Coleman, 149. 
 Secor V. Harris, 142. 
 
 " II. Keller,' 32, 33. 
 
 " V. Roome, 134. 
 
 " V. Sturgis, 140, 147, 178. 
 Secord v. MiUer, 146. 
 Sedgwick ti. Staoton, 147, 149, 152. 
 See V. Partridge, 140, 194, 263. 
 Seebach v. McDonald, 99, 178. 
 Seeley v. Engell, 132, 133, 136, 146, 176, 221. 
 
 " V. Chittenden, 245. 
 
 " V. Garrison, 295, 297. 
 
 " V. Jobson, 235. 
 
 " V. Pritchard, 307. 
 Seizer v. Mali, 143. 
 Selden v. Christophei's, 79. 
 
 " V. Pringle, 32, 146, 219. 
 
 " V. Vermilya, 105, 318, 319. 
 
 " " 320. 
 
 Selkirk v. Waters, 207, 264. 
 Sellar v. Sage, 121, 134, 141, 285. 
 Selover v. Forbes, 76, 273, 274. 
 Semler ti. Commissioners of Emigration, 144. 
 Seneca Bank v. Garlinghouse, 128. 
 Seneca County Bank v. Lamb, 147. 
 Seneca Nation of Indians v. Knight, 318. 
 
 " V. Tyler, 32, 123. 
 Sere v. Coit, 32, 133. 
 Servoss v. Stannard, 102, 105. 
 Seventy-sixth Street, matter of, 253. 
 Seward v. Miller, 176, 181, 186. 
 Sexton V. Fleet, 34, 140, 147, 153. 
 
 " V. Montgomery County Mutual Ins. 
 Co., 147. 
 Seymour v. Bradfield, 207, 327. 
 Seymour v. Canandaigua and Niagara Falls 
 R. R. Co., 153, 154. 
 
 " 0. Elmer, 327. 
 
 " XI. Judd, 3 1 1. 
 
 " v. Mercer, 16, 83. 
 
 " V. Van Curen, 82, 85, 94, 141, 143. 
 
 " V. Wilson, 45, 118, 152, 153, 300. 
 Shaokelton v. Hart, 30. 147. 
 Shafer v. Humphrey, 51, 59, 139, 159. 
 Shaler and HaU Quarry Co. ». Brewster, 148. 
 Shanohan ti. New York and New Haven R. R., 
 
 141. 
 Shank v. Shoemaker, 30, 320. 
 Shanks v. Rae, 336. 
 Shannon v. Brower, 253, 336, 338. 
 
 " V. Kennedy, 327. 
 Sharon v. Mosher, 143. 
 
Ixx 
 
 INDEX TO OASES CITED. 
 
 Sharp V. Mayor of New York, 194, 191, 234, 
 273, 274, 215. 
 " V. Whipple, 147. 
 " " 229, 249. 
 
 " V. "Wright, 149, 179, 232, 313. 
 Shaughnessy «;. Rensselaer Ins. Co., 118, 146. 
 Shaver v. Brainerd, 38, 118, 153, 171. 
 Shaw V. Dwight, 99. 
 
 " V. Jayne, 121, 122, 123, 134, 142. 
 " V. Lawrence, 64, 69. 
 " V. Tobias, 123, 147. 
 Shear v. Hart, 76. 
 Shearman v. Justice, 235, 236, 273. 
 
 " V. New York Central Mills, 105, 106, 
 172, 176, 181. 
 Shears v. Shafer, 178. 
 Sheffield v. Rochester and Syracuse R. E. COt 
 
 141, 221. 
 Sheldon v. Albro, 14, 17, 312, 322, 326. 
 " V. Allerton, 102. 
 " " 337. 
 
 " V. Barnard, 307. 
 " V. Havens, 192. 
 " V. Hoy, 33, 122, 123, 124, 139, 143, 
 
 169. 
 " V. Hudson River R. R. Co., 141, 221, 
 
 228, 244. 
 '• V. Martin, 217. 
 " V. Paine, 28, 286. 
 " V. Payne, 28, 178. 
 " V. Stryker, 28, 48. 
 " •„. Tan Slyke, 150. 
 " V. "Weeks, 117. 
 " " 197, 204. 
 
 " V. "Wood, 14, 237. 
 
 " 197, 234. 
 " " 32, 171, 177, 180, 210, 211, 
 
 213, 221, 222, 236, 313. 
 Shelton v. "Westervelt, 280. 
 Shepard v. Walker, 11, 151, 161. 
 
 " V. Wood, 37, 99. 
 Shephard ■». Mayor of New York, 154. 
 Shepherd v. Burt, 163. 
 
 " V. Dean, 14, 292. 
 Sheppard v. Hamilton, 146, 178. 
 Sheridan v. Mann, 305, 328. 
 Sherman v. Barnard, 146, 179. 
 " V. Burnham, 34. 
 " V. BushneU, 176, 181. 
 " V. Coman, 32, 192. 
 " V. Daggett, 319. 
 " V. Elder, 32, 34, 140, 143, 280. 
 " V. Felt, 315, 318, 319. 
 " V. Fream, 32, 36, 143. 
 " " 264, 272. 
 
 " ,;. New York Central MiUs, 128, 172, 
 
 176, 181. 
 " V. Partridge, 3 9, 40, 156, 179. 
 " V. Rochester and Syracuse R. R. Co., 
 
 141. 
 " V. Wakeman, 227. 
 " V. Wells, 144. 
 " " 241, 307. 
 
 " V. Youngs, 312, 331, 336. 
 Sherry v. Freeking, 42, 244. 
 Sherwood v. Buffalo and New York City R. 
 R. Co, 30, 291, 297. 
 
 Sherwood v. Littlefield, 293. 
 
 " V. Saratoga and Washington R. R. 
 
 Co., 23, 138. 
 " V. Steele, 200. 
 Shields v. Pettie, 149. 
 Shindler v. Houston, 149. 
 Shoe and Leather Bank v. Brown, 123. 
 " V. Camp, 134. 
 " V. Thompson, 32. 
 Shoemaker ». Benedict, 43. 
 
 " i). McKee, 208. 
 Shore v. Shore, 34. 
 Short «;. May, 67, 158. 
 Shorter v. The People, 244, 319. 
 Shotwell V. Jefferson Ins. Co., 147. 
 Shuart v. Taylor, 234, 236. 
 Shufelt V. Power, 207, 213. 
 
 " " 336. 
 
 Shultz V. Depuy, 146. 
 
 " V. Whitney, 26, 235, 338. 
 Shumway v. Cooper, 34. 
 Sibell V. Remsen, 332. 
 Sibley v. Waffie, 30, 187, 267. 
 Sieckman v. Allen, 146. 
 Siefke v. Tappey, 82. 
 Sieff V. Shausenburgh, 83. 
 Sieman v. Austin, 99, 180. 
 Sigler i;. Smith, 178. 
 Silkman v. Bodger, 323, 327. 
 SiUunan v. Clark, 215. 
 
 " V. Eddy, 180, 187. 
 Silverman v. Foreman, 244, 327. 
 Simmons v. De Barre, 19, 244. 
 " V. Fay, 222, 244, 245. 
 " V. Johnson, 237. 
 Simons v. Monier, 141. 
 Simonsonw. Blake, 154, 157, 260, 273, 278. 
 Simpkins v. Page, 293. 
 Simpson v. Loft, 186, 187. 
 Sinclair v. Fitch, 140, 154, 177, 265. 
 
 " V. Talhnadge, 144, 152, 178, 313. 
 Sipperly v. Warner, 336. 
 
 " V. Troy and Boston R. R., 134. 
 Sisson V. Barrett, 229, 247, 319. 
 Sixpenny Savings' Bank v. Sloan, 172. 
 Skeel V. Thompson, 99. 
 Skinner v. Oettinger, 78, 109. 
 
 " V. Stuart, 38, 152, 153, 169, 170. 
 " V. Tinker, 144. 
 Skinnion v. Kelly, 178. 
 Slack V. Cotton, 181. . 
 
 " V. Heath, 96, 124, 147, 170, 175, 313. 
 Slade V. Warren, 336. 
 Slake V. Andre, 213. 
 Slater Bank v. Sturdy, 163. 
 Slawson v. Conkey, 141, 182. 
 
 " V. Engleheart, 178, 193. 
 Sleight V. Hancox, 186, 333, 336, 337. 
 " V. Leavenworth, 142, 285. 
 " V. Ogle, 142. 
 " V. Read, 34, 267. 
 Sloane v. Kane, 156. 
 Slocum V. Hooker, 32, 35, 189. 
 " V. Wheeler, 170, 181. 
 Slomau V. Buckley, 324. 
 " V. Schmidt, 135. 
 Slow V. Hamlin, 148. 
 
IKBEX TO CASES CITED. 
 
 Ixxi 
 
 Sluyter v. Smith, 51, 131, 253, 264, 212, 315, 
 
 336. 
 Small V. Herkimer Manufacturing and Hy- 
 draulic Co., 148. 
 
 " V. Ludlow, 337. 
 " 32. 
 " 178. 
 
 " V. Sloan, 32. 
 
 " V. "WTieaton, 70. 
 
 " " 178, 278. 
 
 Smalley v. Doughty, 131, 178. 
 Smart v. Comstock, 34. 
 Sraedes v. Wild, 99. 
 Smethurst, in re, 14, 288, 292, 302. 
 Smiles v. Hastings, 42. 
 Smith, in re, 18, 312. 
 
 " «. Allen, 143, 280, 323, 328. 
 
 " -v. Austin, 104. 
 
 " V. Betts, 144, 152. 
 
 " V. Brady, 147, 149, 154, 178. 
 
 " V. Briggs, 180. 
 
 " V. Brinokerhofif, 180. 
 
 " V, Brown, 149. 
 
 " " 223. 
 
 " " 134, 168, 169. 
 
 " u. Caswell, 243. 
 
 " V. Coe, 149, 154. 
 
 " V. Colvin, 34, 150, 284. 
 
 " V. Compton, 169. 
 
 " V. Corbiere, 82. 
 
 " V. Corey, 265. 
 
 " V. Crouse, 117, 147. 
 
 " V. Daavers, 99, 117, 
 
 " V. Dipeer, 20. 
 
 " u. Devlin, 320. 
 
 " V. Dodd, 79, 315. 
 
 " " 197, 227, 234, 315. 
 
 " " 315. 
 
 " V. Edmonds, 82. 
 
 " V. Empire Ins. Co., 147. 
 
 " V. Floyd, 24, 42, 131, 191, 222, 227. 
 
 " V. Gardner, 146, 178. 
 
 " V. Grant, 241, 243, 320. 
 
 " " 243, 320. 
 
 " V. Greenin, 133, 134, 186. 
 
 " V. HaU, 146. 
 
 " V. Halloek, 123, 133, 134, 135, 140. 
 
 " V. Hart, 315. 
 
 " V. Hermance, 267. 
 
 " V. HiU, 28, 222, 281, 327. 
 
 " ■(/. Hoose, 327. 
 
 " V. Howard, 38, 152, 263. 
 
 " V. Johnson, 292, 293, 294. 
 
 " V. Jones, 339. 
 
 " " 45, 180. 
 
 " V. Kearney, 34. 
 
 " V. Keeler, 333. 
 
 " V. Lansing, 117. 
 
 " V. Leland, 122, 132, 149. 
 
 " V. Levins, 124, 139. 
 
 " „. Loekwood, 37, 99, 122. 
 
 " V. Lowden, 30. 
 
 " V. Lynes, 336. 
 
 " " 149. 
 
 " " 308. 
 
 " V. McAllister, 42. 
 
 " V. McGowan, 279, 284. 
 
 Smith V. Maince, 61. 
 
 " V. Mayor of New York, 149. 
 
 " v. Mead, 181. 
 
 " v. Metropolitan Gas Light Co., 37, 45. 
 
 " V. Mitten, 24, 327. 
 
 " V. Moifatt, 99. 
 
 " «. New York and Harlem B, R. Co., 
 141, 142. 
 
 " V. New York and New Haven R. R. 
 Co., 32. 
 
 " V. New York Central .R. R. Go:, 141, 
 144. 
 
 " V. Nowal, 163. 
 
 " " 164, 182. 
 
 " V. Paton, 236. 
 
 " V. Paul, 45, 293, 
 
 " V. President, &c., of Essex County 
 Bank, 178. 
 
 " V. Reno, 99, 102, 104. 
 
 " V. Riggs, 24, 333, 334. 
 
 " V. Rosenthal, 126. 
 
 " V. Schanck, 146, 147, 236, 244, 335. 
 
 " V. Scribnei-, 34. 
 
 " V. Shufelt, 135, 176. 
 
 '• V. SiUiman, 34, 327. 
 
 " V. Smeltzer, 144, 
 178. 
 
 " V. Smith, 126, 208. 
 
 " " 288. 
 
 " V. Van Brunt, 324, 326. 
 
 " V. Waite, 134, 179. 
 
 " V. "Weeks, 149, 178. 
 
 " V. Wells, 117, 134, 135, 176, 181. 
 
 " V. Wllite, 10, 19, 318, 320, 329. 
 
 " V. Wilcox, 71, 147. 
 
 " V. Woodruff, 45, 118, 332. 
 
 " v. Wright, 144. 
 
 " " 144. 
 
 SneU V. Loucks, 241, 313. 
 
 " V. SneU, 131, 222, 246, 313. 
 Snook V. Pries, 149, 236. 
 
 " V. Howard, 32, 146. 
 Snyder v. Andrews, 142. 
 
 " V. Beyer, 24, 315, 333. 
 
 " a. Goodrich, 23, 327. 
 
 " ti. Snyder, 34. 
 
 " V. White, 78, 128, 166, 176. 
 
 " V. Young, 332. 
 Soffe V. Gallagher, 178, 
 Solomon v. Holt, 180. 
 
 " V. Waas, 82, 83, 85. 
 Sorley v. Brewer, 99, 196. 
 Soutli Baptist Society of Albany v. Clapp, 154. 
 Southart v. Dwight, 202. 
 Southern Life Ins. and Trust Co. v. Packer, 
 
 178. 
 Southwell V. Marryatt, 54, 273, 274. 
 Southworth v. Curtis, 126, 257. 
 Soverhill v. Dickson, 38, 45, 54. 
 
 " V. Rost, 242, 315. 
 Spalding v. Spalding, 85, 94, 95, 96, 129, 140, 
 
 143. 
 Sparrow v. Kingsman, 179. 
 Spauldingw. King.sland, 318, 319. 
 Spear v. Cutter, 99. 
 
 " V. Downing, 122, 124, 146, 169. 
 " V. Hyer, 30, 
 
IXXll 
 
 rNDEX TO CASES CITED. 
 
 Speckela v. Say, 152, 179. 
 Spellraan v. Weider, 146, 170, 181. 
 Spence v Beck, 324. 
 Spencer v. Babcock, 177, 180. 
 " V. Ballou, 146, 320. 
 " V. Cuyler, 286, 293. 
 " V. Eogers' Locomotive 'Works, 112, 
 
 114, 308. 
 " V. Saratoga and Washington R. R., 
 
 327. 
 " V. Tobej:, 150. 
 
 " V. Tooker, 128, 176, 178, 257, 273. 
 " V. Utioa and Schenectady R. R., 236. 
 " V. M'heeloclc, 32, 121, 140, 171, 221. 
 Sperling v. Levy, 286, 293. 
 Sperry v. Major, 23; 327. 
 
 " V. MiUer, 147, 244. 
 Spioer v. Hunter, 38, 1S9. 
 " V. Norton, 11, 147. 
 Spier V. Robinson, 140, 168, 192, 193. 
 Spies V. Accessory Transit Co., 34, 133, 168. 
 " V. Boyd, 228, 280. 
 " V. Gilmore, 146. 
 " V. Joel, 82. 
 Spitzer V. St. Mark's Ins. Co., 147. 
 Spooner v. Brooklyn City R. R., 141. 
 Spoore V. Fannan, 309, 320. 
 Spraker v. Cook, 284. 
 Spring V. Baker, 324, 327. 
 
 " V. Strauss, 99, 117. 
 Spring Valley Shot and Lead Co. v. Jackson, 
 
 333, 3.=i4. 
 Springstead v. Lawson, 140, 141. 
 Springsted v. Robinson, 126. 
 Sprong V. Snyder, 337. 
 Squire's Case, 81. 
 
 " ». Brown, 144. 
 " V. Ellsworth, 257. 
 '' V. Flynn, 285. 
 " V. Seward, 24, 
 ' V. Young, 291, 292, 293. 
 St. Amant v. De Beixoedon, 110, 112. 
 St. John V. American Mutual Fire and Marine 
 Ins. Co., 147. 
 " V. American Mutual Life Ins. Co., 32 
 
 147, 207, 244. 
 " -a. Bumpstead, 150, 228. 
 " V. Croel, 128, 129, 315. 
 " -o. Denison, 45, 118, 300, 332. . 
 " a. Griffith, 32, 152, 178. 
 " " 123, 134. 
 
 " V. Hart, 78, 184. 
 " V. Mayor of New York, 228, 244. 
 " V. Northrup, 131, 132, 150, 244, 315. 
 " V. Pierce, 31, 36, 121, 134, 140, 150. 
 " r. Roberts, 146. 
 " I: St. John's Church, 178. 
 " V. Thome, 182. 
 " j;. West, 192, 193, 315. 
 St. Mark's Fire Ins. Co. v. Harris, 179, 181. 
 St. Nicholas Ins. Co. v. Mercantile Mutual Ina 
 
 Co., 147. 
 St. Paul's Church in Syracuse v. Ford, 32. 
 Stacy D. Graham, 149, 210, 221, 222, 228 244 
 Stafford v. Onderdonk, 184, 334. ' 
 
 " V. "Williams, 207, 284. 
 Stahl V. Charles, 267. 
 
 Stake V. Andre, 77, 204. 
 Stalker v. Gaunt, 201, 202, 204, 218. 
 Stanley v. Anderson, 260. 
 " V. Koehler, 179. 
 " V. Webb, 142. 
 
 " 179, 222. 
 Stannardt". Mattice, 126, 264, 270. 
 Stanton v. Camp, 32. 
 
 " „. Delajvare Mutual Ina. Co., 201, 202. 
 " •</. Ellis, 178. 
 " V. Leland, 32, 144. 
 " -u. Schell, 28, 142. 
 " V. Weatherwax, 244. 
 Staples V. Fairchild, 108, 178, 207. 
 " V. Goodrich, 140, 149, 178. 
 " V. Gould, 147. 
 Staring v. Jones, 68, 307, 308. 
 Starks v. Bates, 138. 
 Starr v. Kent, 82. 
 
 State V. Mayor of New York, 20, 38, 99, 304. 
 State Bank at New Brunswick v. Mettler, 147. 
 Steam Navigation Co. v. Weed, 14, 74, 163, 240, 
 
 308, 339. 
 " " 178. 
 
 Steams v. Tappin, 132, 147. 
 Stebbins v. East Society of Methodist Episco- 
 pal Church at Rochester, 48. 
 " V. Hall, 38, 154, 265. 
 Stedman v. Pa^chin, 178. 
 Steele v. Palmer, 78, 85, 197. 
 " " 85, 285. 
 
 " V. Smith, 141. 
 " V. Sturges, 117, 280. 
 Steelyards v. Singer, 149. 
 Steinhart v. Boker, 1 46. 
 Steinman v. Clark, 179. 
 Stephens v. Browning, 279. 
 
 " V. Buffalo and New York City S. B., 
 
 152. 
 " V. McNiel, 146. 
 " V. Moore, 74, 161, 166. 
 " V. Reynolds, 222, 232. 
 " V. Strong, 235. 
 Stephenson v. Clark, 332. 
 
 " V. Hall, 32. 
 Stem V. Drinker, 124, 152, 178, 222, 323, 327. 
 Sternbergh v. Schoolcraft, 33, 45. 
 Sterne v. Bentley, 164, 264, 270. 
 Sternhaus v. Schmidt, 308, 323. 
 Sterns v. Marks, 146, 147. 
 Stettheimer v. Meyer, 146. 
 Stettiner v. Granite Ins. Co., 147, 242. 
 Stevens v. Armstrong, 141. 
 
 " K. Bank of Central New York, 255, 
 
 267. 
 " V. Buffalo and New York City R. R., 
 
 280. 
 " V. Commercial Mutual Ins. Co., 147, 
 
 242. 
 " V. Eno, 283. 
 " V. Hyde, 145, 152, 178. 
 " V. Somerindyke, 144. 
 Stevenson v. Buxton, 144, 152, 263. 
 " V. Fayerweather, 99. 
 " V. Maxwell, 179. 
 Steves V. Oswego and Syracuse R. R., 141. 
 Steward v. Lamoreaux, 331. 
 
INDES TO CASES CITED. 
 
 Ixxiii 
 
 Stewart v. Beebe, 122. 
 
 " D. Book, 180, 321 
 
 " V. Bouton, 134. 
 
 " V. Elwell, 197. 
 
 " V. Foster, 298, 300. 
 
 " V. Howard, 81, 83, 85. 
 
 " v. Kissam, 38, 140. 
 
 " V. Morton, 313. 
 
 " V. Ranney, 147. 
 
 " V. Saratoga and "WhitehaJl E. B,., 316. 
 
 " V. Slater, 232, 280. 
 
 " V. Smith, 178, 222, 319, 320. 
 
 " V. Smithson, 129. 
 
 " V. Travis, 123, 133, 134, 187 189. 
 
 " V. Wallis, 159. 
 Stief V. Hart, 280. 
 Stiles V. Comstook, 177, 179. 
 StiUwell V. Hurlbut, 33. 
 
 " V. Staples, 23, 333. 
 147. 
 Stilwell V. Otis, 178. 
 Stimpson v. Reynolds, 20, 95, 280. 
 Stimson v. Huggins, 253, 254. 
 Stockbridge Iron Co. v. Mellen, 123, 134, 144. 
 Stoddard w. Cleveland, 148. 
 
 " V. Hart, 152. 
 
 " V. Long Iron E. R. Co., 8, 222, 244. 
 
 " V. Onondaga Annual Conference, 122, 
 123, 186, 187, 191, 231. 
 
 " V. Rotton, 131. 
 Stokes V. Hagar, 136, 181. 
 StoU V. King, 82. 
 Stone V. Carlan, 104, 316. 
 
 " V. De Ruga, 134. 
 
 " -0. Du£fy. 263, 264, 333, 334. 
 
 " 0. Sprague, 152, 178, 180. 
 Storer v. Coe, 105. 
 
 Storey v. Brennan, 147, 149, 228, -244. 
 Storp V. Harbut, 327. 
 Storrs V. City of Utioa, 141. 
 Story V. Bishop, 327, 328. 
 
 " V. Duffy, 308, 316. 
 
 " V. New York and Harlem R. R. Co., 
 305. 
 Stoutenburgh v. Yandenburgh, 48, 109, 111, 
 
 279. 
 Stow V. Hamlin, 30. 
 Straiten v. New York and New Haven R. R. 
 
 Co., 144. 
 Strauss v. Parker, 67, 127, 133, 140. 
 
 •' V. Sohwarzwaelder, 82, 83, 285. 
 Strecker v. Wakeman, 280, 308. 
 Streety v. Wood, 142. 
 Stright V. Vose, 292. 
 Striker v. Mott, 24. 
 Strong V. Granniss, 85, 146, 207. 
 
 " V. Stevens, 178, 181. 
 
 " V. Strickland, 32, 154. 
 Stroud V. Butler, 244. 
 
 " -0. Frith, 222, 227. 
 Strout V. Curran, 127, 257, 273. 
 Struver v. Ocean Ins. Co., 68, 181, 306, 307. 
 
 " 168, 170, 175, 181. 
 
 Stryker v. Lynch, 130, 156, 169. 
 Stuart V. Binsse, 241. 
 " V. Hawley, 143. 
 " V. Kissam, 191. 
 
 StudweU V. Terrett, 146. 
 Sturgess v. Law, 20. 
 
 " V. "Weed, 16, 75, 213. 
 Sturgls V. Merry, 243, 247, 319, 320. 
 Sturtevant v. Brewer, 38, 39. 
 
 " " 38, 39. 
 
 " V. Fairman, 79. 
 
 " V. Sturtevant, 178. 
 Stuyvesant v. Pearsall, 37. 
 Sullivan v. Brewster, 154. 
 
 " V Decker, 38. 
 
 " V. McDonald, 323. 
 Sun Mutual Ins. Co. v. Dwight, 123, 311, 313. 
 Sunney v. Roach, 184. 
 Supervisors of Livingston County v. White, 
 
 147, 178. 
 Supervisors of Rensselaer County v. Weed, 
 
 146. 
 Sutherland v. Tyler, 251, 336. 
 Suydam «. Barber, 178. 
 
 " V. Ewing, 159. 
 
 " V. Holden, 11, 77, 276, 278 
 Suydam v. Munson, 324. 
 
 " V. Suydam, 204. 
 Swan V. Mathews, 163. 
 Swart V. Borst, 184. 
 Swarthout v. Curtis, 237, 318, 319. 
 Sweet !). Barney, 144. 
 
 " V. Bartlett, 30. 
 
 " V. Bradley, 32, 143. 
 
 " V. Ingerson, 123, 140. 
 
 " uTuttle, 38, 175, 178, 207, 
 
 " V. Spenee, 146, 178. 
 
 " V. Sweet, 126, 208. 
 Sweezey v. Thayer, 267. 
 Swezey v. Lott, 27, 95, 147, 180, 282. 
 Swift ». City of Williamsburgh, 143, 179. 
 
 " V. Dewitt, 50, 168, 170, 270, 333. 
 
 " V. Drake, 178. 
 
 " V. Flanagan, 278. 
 
 " V. Hosmer, 126, 127. 
 
 " V. Kingsley, 147, 177, 191, 221. 
 Switzeru. Valentine, 34, 143, 280. 
 Sylvester v. Ralston. 33, 149. 
 Symonds v. Peck, 207, 208, 284. 
 Syracuse City Bank v. Covflle, 111. 
 
 " V. Tallman, 154. 
 
 T. 
 
 Taaks v. Schmidt, 38, 106, 184. 
 Taft V. Sergeant, 35, 146, 178. 
 Taggard v. Gardner, 204, 205. 
 
 " V. Roosevelt, 178. 
 Talbot V. Talbot, 207, 319. 
 TaUmage v. Sill, 36, 37, 153. 
 
 " V. WaUis, 163. 
 Tallman v. Franklin, 152, 171. 
 
 " V. Green, 122, 123. 
 
 " V. Hawxhurst, 34, 149. 
 
 " V. Hinman, 50, 315. 
 
 " V. HolUster, 39, 113. 
 
 " V. Turck, 145. 
 Tahnage v. Pell, 118, 154. 
 Talman v. Rochester City Bank, 147. 
 Tanner v. Hallenbeck, 28, 43. 
 Tappan, in re, 213. 
 
Ixxiv 
 
 LNT>EX TO CASES CITED. 
 
 Tarrant v. Quackenbos, 99, 154. 
 
 Tate V. Jorden, 60. 
 
 TattershaU v. Hass, 178, 327. 
 
 Taylor v. Atlantic Mutual Ins. Co., 143, 147. 
 
 " V. Baldwin, 45, 161, 288. 
 
 " V. Beavers, 146, 149. 
 
 " V. Church, 142, 244. 
 
 " " 192. 
 
 " V. Corbiere, 71, 146, 172. 
 
 " V. Crane, 36, 38, 150. 
 
 " 1/. French, 146. 
 
 " V. Gardner, 333. 
 
 " V. Glenny, 34, 149, 153. 
 
 " V. Harlow, 242, 245. 
 
 " in re, 88. 
 
 " V. Mayor of New Tort, 144. 
 
 " 66, 127. 
 
 '• V. Missbaum, 178. 
 
 " V. Moirs, 204. 
 
 " V. Monnot, 144, 207. 
 
 " V. North, 82. 
 
 " V. Persse, 153, 291. 
 
 " V. Rennie, 331. 
 
 " V. Seeley, 322, 328, 336. 
 
 " V. Stevens, 99. 
 
 " V. Stringer, 146. 
 TeaU V. VanWyck, 147, 222, 304, 323. 
 Teaz V. Chrystie, 327. 
 
 " " 327, 328. 
 
 Temple v. Murray, 176, 181. 
 Ten Broeck v. l-Iudson River R. R. Co., 308, 
 316. 
 
 '■ V. Reynolds, 64, 161, 163. 
 
 " ('. Sloo, 300. 
 TenEyckn. Houghtaling, 121, 147, 219. 
 Terry v. Chandler, 150, 178. 
 
 " V. New York Central R. R. Co., 141. 
 
 " V. Roberts, 192. 
 
 " V. Rubel, 201, 204. 
 TerwiUiger v. Knapp, 149, 152. 
 
 " V. "Wands, 142. 
 
 " V. Wheeler, 32, 143. 
 Texior v. Gouin, 132, 176, 177, 244. 
 Thatcher v. Dusenbury, 99. 
 
 " V. Morris, 152, 218. 
 Thayer ». Mead, 192. 
 
 " V. Willett, 179. 
 The Ninety-nine Plaintiffs v. Tanderbilt, 161. 
 Tlierasson J'. MoSpeddon, 32, 176, 178. 
 
 " V. Peterson, 131, 186, 221. 
 Theriot v. Prince, 332. 
 Thomas v. Austin, 122. 
 
 " V. Brackney, 228. 
 
 " '). Clark, 339. 
 
 " V. Crofeet, 32, 150, 284. 
 
 " V. Desmond, 122. 
 
 " V. Dickinson, 228. 
 
 " " 148, 228. 
 
 " " 152. 
 
 " V. Harrop, 126, 186. 
 
 " D. Hubbell, 178. 
 
 " " 178. 
 
 " V. Kelsey, 284. 
 
 " V. Mills, 144. 
 
 '•■ V. Murray, 178, 228. 
 
 " ». Quintard, 178. 
 
 " V. Tanner, 232, 236, 254. 
 
 Thomas v. Thomas, 34, 156, 163, 332. 
 
 " V. Whallon, 146. 
 
 " V. "Winchester, 32, 141, 142, 144. 
 Thomason v. De Mott, 142. 
 Thompson v. Blanchard, 204, 207, 228. 
 74, 241. 
 " 147, 178, 221, 228. 
 
 " » 306, 308, 309, 320. 
 
 " V. Bullock, 318. 
 
 " V. Commissioners of Canal Fund, 99. 
 
 " V. Dickerson, 207, 221, 222, 228. 
 
 " V. Hopper, 323. 
 
 " V. Krider, 198, 215,235. 
 
 " V. Mayor of New York, 42. 
 
 " V. Menck, 244. 
 
 " V. Minford, 123, 128. 
 
 " V. Sherrard, 117, 265. 
 
 " V. Starkweather, 167, 315. 
 
 " V. Stryker, 332. 
 
 " V. Sutphen, 23, 45. 
 
 " V. Valarino, 38. 
 
 " V. Tan Veohten, 8, 117. 
 
 " " 48, 280, 286. 
 
 " " 280. 
 
 " V. "Wood, 147, 149, 178, 236. 
 Thomson v. Sixpenny Savings Bank of City of 
 
 New York, 143. 
 Thorn v. New York Central Mills, 123, 126, 
 
 176, 181. 
 Thorpe v. Bauleh, 163, 166. 
 Throop V. Hatch, 122, 218. 
 Thumb V. Walroth, 177, 186. 
 Thurber v. Townsend, 34, 312. 
 Thurmann. Anderson, 150, 179. 
 
 " V. Stevens, 122, 124, 147, 152. 
 
 " V. Tan Brunt, 146. 
 
 " V. "Wells, 32, 171, 228. 
 Thursby v. MiUs, 99. 
 
 " " (No. 2), 181. 
 
 Thurston v. King, 45, 58, 192, 278. 
 
 " V. Marsh, 164, 178, 335, 337. 
 Thwing V. Thwing, 192, 266. 
 Tibballs v. Selfridge, 126. 
 Tibbetts v. Blood, 32, 33, 123. 
 
 " V. Percy, 140, 179, 327. 
 Tibles V. O'Connor, 95. 
 Tiers v. Carnahan, 308, 316. 
 Tiffany v. "WilUams, 123. 
 TiUey v. Hudson River R. R. Co., 142. 
 
 " V. PhUlips, 318. 
 Tillman v. Powell, 334, 337. 
 Tillotsou V. Hudson River R. R. Co., 168. 
 Tillou V. Kingston Mutual Ins. Co., 147. 
 
 " V. Sparks, 332. 
 
 " V. .Tere, 293, 295. 
 Tillspaugh v. Dick, 336, 338, 339. 
 Tilton V. Hamilton Fire Ins. Co., 147. 
 
 " V. Nelson, 178. 
 TindaJl v. Jones, 332. 
 Tinkham v. Borst, 122, 123. 
 
 " " 151. 
 
 Tiuney v. Stebbius, 32, 121, 143, 155 
 Tippel V. Tippel, 34. 
 Tipton V. Feitner, 147. 
 Titus V. Orvis, 241, 243, 320, 329. 
 
 " V. Relyea, 50, 56, 273, 315. 
 56. 
 
INDEX TO CASES CITED. 
 
 Ixxv 
 
 Tobias v. Rogers, 148, 1'78. 
 
 Todd V. Crooke, 117, 300. 
 
 ToU V. Cromwell, YS, 163, 200, 339. 
 
 " V. Thomas, 196, 253, 304, 311, 338. 
 
 " 307. 
 " V. Whitney, 146. 
 Tombs V. Rochester and Syracuse R. R. Co., 
 
 178. 
 Tomlinson v. Battel, 8, 98. 
 " V. Borst, 204, 207. 
 " V. Tan Teohten, 56, 166. 
 Tompkins v. Acer, 181, 217, 251. 
 " V. Hyatt, 319. 
 " V. Seely, 152, 153. 
 •' V. Soulice, 319. 
 " V. "White, 140, 150. 
 Tompkins County Bank v. Trapp, 294, 297. 
 . Tonnelle v. Hall, 38. 
 Tooker v. Corner, 144. 
 Toole V. Cook, 178, 274. 
 Toomey v. Shields, 158. 
 Toplitz V. Raymond, 241. 
 Torry v. Hadley, 146, 178. 
 
 " 331. 
 Towle V. Parney, 8, 10. 
 Town V. Safeguard Ins. Co. of New York and 
 
 Pennsylvania, 293, 294, 297. 
 Town of Gallatin v. Loucks, 32. 
 Town of Guilford v. Cornell, 13, 98, 102, 106, 
 316. 
 " " 32. 
 
 Towner v. Church, 109. 
 " V. Towner, 34. " 
 Townsend v. Billinge, 146. 
 " V. Bogart, 82. 
 " V. Dyckman, 149. 
 " V. Empire Stone Dressing Co., 152. 
 " V. Goelet, 32, 152. 
 " V. Keenan, 326. 
 " V. Masterton, Smith, & Sinclair Stone 
 
 Dressing Co., 304, 318, 320. 
 " V. McDonald, 42. 
 " V. North Western Ins. Co., 147. 
 " V. Piatt, 128, 134, 176, 190. 
 " V. Tanner, 99. 
 " V. Townsend, 155. 
 " V. Wesson, 150, 254, 284. 
 Towsley v. McDonald, 56, 109, 255. 
 Tracy v. Hartman,''-327. 
 
 " V. Humphrey, 176, 181, 182, 260. 
 " " 253. 
 
 " V. Leland, 82. 
 
 " V. New York Steam Faucet Manufac- 
 turing Co., 215, 263, 273, 315. 
 " V. Reynolds, 160, 161, 198. 
 " V. Stone, 334. 
 
 " V. Suydam, 140, 197, 213, 235. 
 " V. Talhnadge, 11, 13, 237. 
 
 " 147, 178. 
 " V. Yates, 32. 
 Train v. Brown, 236. 
 Trapp V. New York and Brie K R. Co., 50, 
 
 257. 
 Trask v. Jones, 149. 
 
 " V. Martin, 146. 
 Traver v. Ep, 331. 
 
 " V. Silvemail, 254, 307. 
 
 Traver v. Traver, 150, 155. 
 
 Travis v. Barger, 129, 131, 142, 179, 244, 315. 
 
 " V. Bassett, 327. 
 
 " V. Tobias, 50, 54, 158. 
 
 " " 129, 131, 242. 
 
 Treadwell v. Bruder, 148, 177, 178. 
 
 " V. Passett, 126, 127. 
 
 " I/. Lawlor, 109. 
 
 " V. Stebbins, 178, 221. 
 Treadwell's Exec\itors v. Abrams, 146, 178,180. 
 Tremain v. Rider, 232, 237, 241. 
 Trenor v. Pachiri, 115, 338. 
 
 " " 109. 
 
 Trimble v. StUlwell, 235. 
 Tripp V. Childs, 153. 
 
 " V. Do Bow, 30, 66, 306. 
 
 " V. Rfley, 32, 143, 171. 
 Trotter v. Hughes, 154. 
 
 " V. Latson, 201, 204. 
 Trowbridge v. Didier, 132, 174. 
 Troy and Boston R. R. Co. v. Tibbitts, 128, 
 129, 131, 337. 
 
 " " " 148. 
 
 " V. Warren, 148. , 
 
 Troy City Bank v. Lauman, 146, 178. 
 
 " V. MeSpedon, 146, 178. 
 Troy and Rutland R. R. Co. v. Kerr, 148, 176, 
 
 191, 207. 
 Truax v. Clute, 71, 324. 
 Trull ■«. Granger, 121, 144, 148, 150. 
 Truscott V. Davis, 146, 178. 
 
 " V. Dole, 123, 126, 134. 
 
 " V. King, 48, 147, 152, 262, 273. 
 
 " " 331. 
 
 Trust V. Delaplaine, 324. 
 
 " V. Person, 333, 334, 335. 
 
 " V. Repoor, 30. 
 
 " V. Trust, 156, 260. 
 Trustees of First Baptist Church v. Brooklyn 
 
 Pire Ins. Co., 147, 178. 
 Trustees of First Baptist Society in Syracuse 
 
 V. Robinson, 148. 
 Trustees of Hamilton College v. Stewart, 148. 
 Trustees of Methodist Episcopal Church of 
 
 Pultney v. Stewart, 33. 
 Trustees of Pen Yam v. Forbes, 136, 215, 315, 
 316. 
 
 " V. Tuell, 336. 
 Trustees of Theological Seminary of Auburn 
 
 V. Kellogg, 33, 38. 
 Tucker v. Ruahton, 148, 149. 
 
 " y. Williams, 149, 154. 
 Tuckerman v. Brown, 146. 
 Tuffts V. Braisted, 45, 180. 
 Tuller V. Davis, 144. 
 Tulloss V. Rapelje, 207. 
 Tuomey v. Shields, 158, 160. 
 Turck V. Richmond, 327. 
 Turner t;. Comstock, 146. 
 
 " V. Haight, 149, 241, 243. 
 
 " V. Hillerline, 129, 131, 235. 
 
 " V. McCarthy, 228, 327. 
 
 " V. Thompson, 82, 83, 85. 
 Tuttle V. Gladding, 143. 
 
 " V. Smith, 50, 51, 59, 139, 159. 
 Tyler v. WiUis, 17, 117, 180, 237, 286, 293, 
 313. 
 
Ixxvi 
 
 INDEX TO CASES CITED. 
 
 Tyler v. WUlis, 156, ITS. 
 Tyron v. Jennings, 326. 
 Tyrone and Lock HaTen R. R. Co. v. Sohenok, 
 315. 
 
 TJ. 
 
 Ubsdell V. Root, 197, 315. 
 tririch V. MoOabe, 32. 
 
 Underhill v. Crawford, 146, 148, 192, 228, 
 244, 315. 
 " V. New Tork and Harlem R. E. Co., 
 
 132, 227, 244. 
 " V. Renior, 280. 
 
 " V. Saratoga and Washington R. R. Co., 
 140, 150. 
 Underwood v. New Tork and New Haven R. 
 
 R. Co., 99. 
 TInion Bank v. Coster's Executors, 146, 147, 
 178. 
 " V. Mott, 82, 83, 85, 274, 316. 
 " " 131, 132, 315, 336. 
 
 " " 274, 336. 
 
 " " 85, 134. 
 
 " - '• 89, 129, 131, 235, 274, 336. 
 " " 236, 315. 
 
 Union Bank of Sandusky v. Torrey, 213. 
 Union India Rubber Co. v. Babcock, 253, 265, 
 320. 
 " V. Tomlinson, 32, 131, 132. 
 Union Ins. Co. v. Iloge, 146. 
 Union Mutual Ins. Co. v. Osgood, 123, 168, 
 
 172. 
 United States. Trust Co. v. Harris, 179, 180, 
 
 229, 246. 
 Updike V. Campbell, 20, 147. 
 Utica City Bank v. Buell, 28, 58, 293. 
 
 " 28, 159, 293. 
 Utica Ins. Co. v. American Mutual Ins. Co., 
 
 147. 
 Utter w. Stewart, 149, 152. 
 
 V. 
 
 "Vail V. Foster, 178. 
 
 " V. Jersey Little Falls Manufacturing 
 Co., 149. 
 
 " V. Owen, 178. 
 Valentine v. WetheriU, 38. 
 Tallance v. Bausch, 34. 
 
 " V. King, 244. 
 Valloton V. Seignett, 99, 152. 
 Valton V. National Loan Fund Life Associa- 
 tion Society, 32, 147, 
 • 213, 222, 223. 
 
 " " " 78, 256, 308, 317. 
 
 Van Alen v. Feltz, 43. 
 
 " V. Schermerhom, 180, 184. 
 Tan Allen v. AUen, 143. 
 
 " V. Courier, 34. 
 
 " V. Humphrey, 152, 153. 
 Tan Alstranda. House, 78, 200. 
 Tan Alstyne v. Erwine, 83, 109, 110, 178, 207. 
 
 " V. Indianapolis, Pittsburgh, and Cleave- 
 land R. R. Co., 1 78, 236. 
 Tan ?enschoten r. Yaple, 122, 134, 179. 
 Tan Benthuysen v. Lyle, 66, 273. 
 
 ". V. Stevens, 50, 66, 139, 161. 
 
 Tan Bergen v. Ackles, 76, 332. 
 Tan Brunt v. Eoff, 146. , . „ , , ^ 
 
 Tan Buren v. Chenango County Mutual Ins, 
 Co., 118, 146. 
 
 " V. Cockburn, 34. 
 
 " " 38, 150. 
 
 " V. Loper, 281. 
 Tan Buskirk v. Roberts, 121, 161, 175, 181. 
 
 " V. Roy, 40. 
 
 " V. Warren, 178. 
 Tan Demark v. Tan Demark, 135, 148. 
 Tandenburgh v. Biggs, 44, 271. 
 
 " V. Tan Talkenburgh, 95, 132, 145. 
 Tanderbilt v. Accessory Transit Co., 129, 135. 
 
 " V. Bleeoker, 128, 222, 223. 
 
 " V. Garrison, 32, 151. 
 
 " V. Mathis, 142. 
 Tanderpoel v. Tarbox, 131, 132, 146. , 
 
 " V. Tan AUen, 280. 
 
 " V. Tan Talkenburgh, 38, 178. 
 Tanderpool v. Husson, 141, 228. 
 
 " V. Kearns, 149. 
 Tanderslice v. Newton, 122. 
 Tanderwerken v. New York and New Haven 
 
 R. R. Co., 122, 244. 
 Tanderwerker v. Tanderwerker, 129, 155. 
 Van Be Sande v. Hall, 122, 152, 177, 180. 
 Tan Deusen v. Toung, 32, 150, 171. 
 Tandeventer v. New Tork and New Haven 
 
 R. R. Co., 33, 141, 142, 244. 
 Ta^dewater v. Kelsey, 99, 105, 319. 
 Tan Duzeu v. Worrall, 207. 
 Tan Duzer v. Howe, 131, 146, 178, 315, 319. 
 Tan Dyke v. Jackson, 222. 
 Tan Gerhard v. Lighte, 89. 
 Tan Giesen v. Tan Giesen, 187, 194. 
 
 191. 
 Tan Hassell v. Borden, 32. 
 Tan Heusen v. Kirkpatrick, 323, 324. 
 
 " V. Radoliff, 32, 147. 
 Tan Horn v. Kermit, 144. 
 Tan Home v. Everson, 38, 150. 
 
 " V. Montgomery, 66, 126, 217, 257. 
 Tan Keuren v. Parmelee, 43. 
 Tan Kirk v. Wilds, 23, 222. 
 Tan Lien v. Byrnes, 32, 149. 
 Tan Marter w. Babcock, 149. 
 Tan Name v. Tan Name, 140, 155. 
 Tan Namee v. Peoble, 50, 133, 139, 140, 161. 
 Tan Ness v. Bush, 131, 178, 235, 236, 313. 
 Tan Nest v. Latson, 38. 
 Tan Neste v. Conover, 82, 86, 94, 145, 149. 
 
 " " 244, 265. 
 
 Tanorman v. Phelps, 265. 
 Tan Pelt v. Boyer, 30, 180. 
 
 54, 160, 166, 257. 
 
 " V. Tan Pelt, 331, 336. 
 Tan Rensselaer v. Ball, 150. 
 
 " V. Bonesteel, 147. 
 
 " V. Chadwick, 28, 58, 161, 315. 
 
 " V. Dunbar, 55. 
 
 " V. Emery, 45, 99, 117, 118, 300. 
 
 " V. Hays, 147. 
 
 " V. Jewett, 150, 219. 
 
 " V. Kidd, 332, 337. 
 
 " V. LaymaH,_140, 157, 204, 263, 264. 
 
 " -1). Secor, 222. 
 
INDEX TO CASES CITED. 
 
 Ixxvii 
 
 Van Rensselaer v. Smith, 150. 
 
 " V. Snyder, 150. 
 Van Sohaick v. Third Avenue R. R. Co., 141. 
 " V. "Winne, 15, 2B, 244, 336, 339. 
 " 122, 141, 152. 
 Van Sehoning v. Buchanan, 213, 333, 334. 
 Van Scoter v. Lefferts, 32. 
 Van Siclde v. Van Sickle, 46. 
 Van Sickler v. Graham, 332, 331. 
 Van Steenburgh v. Hoffman, 14, 236. 
 Van Tassell v. Van Tassell, 28, 43, 266, 288. 
 Van Tine v. Nims, in re, 126. 
 " 218. 
 Vantrot v. McOuUooh, 146. 
 Van Valen v. Lapham, 122, 180, 186, 221, 229. 
 " V. Russell, 32. 
 " V. Schermerhom, 118, 244. 
 Va% Valkenburgh v. Allendorph, 234. 
 " V. Astor Mutual Ins. Co., 141. 
 " V. Van Sohaick, 336. 
 Van Veohten v. Hall, 281. 
 
 " V. Pruyn, 146. 
 Van Vleok v. Burroughs, 23, 332. 
 Van Voorhis v. Hawes, 119, 244. 
 Van Wagenen v. La Farge, 99, 261. 
 Van Wagner v. Terrett, 146. 
 Van "Wart v. Price, 32, 169. 
 Van Wioklen v. Paulsen, 201. 
 Van Winkle v. Constantine, 10. 
 Van Wyck v. Alliger, 339. 
 
 " V. Aspinwall, 142, 119. 
 " V. Bradly, 291. 
 " V. Hardy, 51, 56, 265, 212, 213. 
 " u. Howard, 144. 
 " V. Kelly, 321. 
 " V. Mcintosh, 201. 
 " V. Reid, 66, 253. 
 Van Zandt v. Cobb, 191, 232. 
 " " 201, 202. 
 
 Varian v. Stevens, 20, 35, 54, 59, 64, 265. 
 Varona v. Socarrag, 201. 
 Vartie v. Underwood, 38, 261. 
 Vassar v. Camp, 152. 
 
 " ■;;. Livingston, 180, 181, 201. 
 Vatel V. Herner, 150. 
 Vaughn v. Ely, 284. 
 Vedder v. Fellows, 228. 
 Vence v. Speir, 338. 
 
 " V. Vence, 138. 
 Venovy v. Tauney, 18. 
 Vermeule v. Beck, 140. 
 Vermilyea v. Vermilyea, 99. 
 Vermont Central R. R. Co. v. Northern R. R. 
 
 Co., 138, 163. 
 Vernam v. Holbrook, 56, 14. 
 
 " V. Smith, 118, 119. 
 Viall V. Genesee Mutual Ins. Co., 141, 118. 
 Viburt V. Prost, 169, 110. 
 Vickery v. Dickson, 118. 
 Viele V. Gray, 142. 
 
 " V. Troy and Boston R. R. Co., 152,313. 
 " " " 232, 243, 319, 320. 
 
 Villa~e of Warren v. Phillips, 135, 141. 
 Vincent?). Oonklin, 128, 145, 149, 213, 
 
 " V. King, 99. 
 Vincent and forty-five others v. Vanderbilt, 
 161, 204. 
 
 Visoher v. Hudson River R. R. Co., 18. 
 
 " V. Visolier, 156. 
 Vogel V. Badcock, 32, 94, 140, 145. 
 Von Beck v. Shunian, 48. 
 Von Keller v. Muller, 48, 118. 
 Voorhees v. Seymour, 153, 293, 300. 
 Voorhies v. Anthon, 119. 
 
 " V. Scofleld, 50, 51, 59, 159. 
 
 " 0. Voorhies, 32, 35, 38, 122, 140, 153, 
 169, 118. 
 Voorhis v. Child's Executor, 38, 121, 140, 153, 
 
 169. 
 VossD. Kelden, 213, 221. 
 Vredenburgh v. Hendricks, 81, 83. 
 Vreeland v. Hughes, 81, 289. 
 Vrooman v. Jones, 192. 
 
 " V. Sheppard, 42. 
 
 " V. Dunlap, 122, 154. 
 Vulte V. Whitehead, 255, 291. 
 
 W. 
 
 Waddell v. Elmendorf, 43. 
 Wade V. Rusher, 38, 140, 156. 
 Wadsworth v. Sharpsteen, 146. 
 
 " V. Sherman, 38, 45. 
 
 " V. Thomas, 43. 
 Wagoner v. Reiley, 319. 
 Wager v. Ide, 118, 222. 
 Waggoner v. Brown, 126, 121, 213. 
 Wagner v. Bill, 34, 264. 
 Wait V. Green, 145, 149. 
 
 " V. Schoonmaker, 58. 
 
 " -0. Van Allen, 301, 318, 320, 323, 329. 
 Wake V. Hart, 261. 
 Wakeman v. Price, 319. 
 
 " V. Sherman, 43. 
 Waldheim v. Sichel, 142, 228. 
 Waldorp v. Bortle, 38, 150, 192. 
 Waldron v. Baker, 32. 
 
 " V. Romaine, 149. 
 
 " V. WiUard, 32. 
 Walker v. Bank of State of New York, 146. 
 
 " -0. Burnham, 332. 
 
 " V. Crain, 148. 
 
 " 71. Dunspaugh, 221. 
 
 " V. Hewitt, 116, 181. 
 
 " V. Holmes, 30. 
 
 " V. Hubbard, 50. 
 
 " In re, 13, 14. 
 
 " V. Johnson, 164, 215, 224. 
 
 " V. Pame, 152. 
 
 " " 154, 118. 
 
 " V. Russell, 334, 338. 
 
 " V. Swayzee, 23, 34, 264. 
 Walkley v. Griffith, 180, 201. 
 WaU V. Buffalo Water Works Co,, 124, 133, 
 135, 136, 169, 111, 116, 211. 
 
 " v. East River Mutual Ins. Co., 10, 141. 
 Wall Street Fire Ins. Co. v. Loud, 111. 
 Wallace v. Bond, 200. 
 
 " V. Eaton, 31, 38, 169. 
 
 " V. Mayor of New Tork, 141, 201, 244. 
 
 " V. Murphy, 82. 
 Waller v. Raskan, 133, 134, 140. 
 Wallis V. Lett, 58, 161. 
 Walrath v. Killer, 160, 161. 
 
Ixxviii 
 
 INDEX TO OASES CITED. 
 
 Walrath v. NeUis, 142. 
 
 " V. Redfleld, 178. 
 Walrod v. Ball, 222. 
 
 " V. Bennett, 116, 111, 181, 191. 
 Walsh V. Klershadt, 160, 273. 
 
 " V. Rutgers Fire Ins. Co., 38, 154, 265, 
 267, 273. 
 Walter v. Bennett, 121, 132, 141. 
 
 " V. Lockwood, 123, 150. 
 
 " V. Post, 143, 178, 244. 
 "Walterraire v. "Westover, 23, 43, 255. 
 Walther v. Wetmore, 143, 179, 180. 
 Walton V. Walton, 156, 157, 258, 260. 
 156, 157, 258, 260. 
 WaiiUie V. Turney, 28, 140. 
 Wanzer v. De Baum, 82, 178. 
 Warburg v. Wilcox, 144, 152, 178. 
 Wardt). Barber, 178. 
 
 " V. Begg, 109, 110. 
 
 " V. Dewey, 152. 
 
 " " 99 
 
 " " 135, 169, 170, 198, 215, 
 
 221, 224. 
 
 " V. Forrest, 222, 229. 
 
 " V. Ingraham, 23, 207. 
 
 " V. Kalbfleisch, 44, 128, 129, 304, 313. 
 
 " -K. KelseT, 99. 
 
 " V. Ruckman, 221, 225. 
 
 " V. Stringham, 50, 51, 139. 
 
 " 'v. Syme, 308. 
 
 " " 30, 315. 
 
 " V. Washington Fire Ins. Co., 221, 241. 
 
 " V. Westfall, 147. 
 
 " V. Whitney, 33, 83, 102, 210. 
 
 • V. Woodburn, 145, 207. 
 
 " V. Wordsworth, 30, 315. 
 Warden v. Buell, 207. 
 Wardwell v. Patrick, 44, 58, 149. 
 Warfleld v. Watkins, 147, 331. 
 Warhus v. Bowery Savings Bank, 149. 
 Waring v. Ayres, 308. 
 
 " V. Waring, 38, 39. 
 
 " " 54, 60, 64, 155, 192, 265. 
 
 Warner v. Chappell, 146. 
 
 " V. Ford, 333. 
 
 " V. Kenny, 50, 260. 
 
 " V. Nelligare, 123, 134, 150. 
 
 " V. Wigers, 194. 
 Warren v. Eddy, 192, 215, 224, 241, 273, 311, 
 320. 
 
 " V. Fenn, 153. 
 
 " V. Helmer, 207. 
 
 " V. Struller, 134. 
 
 " V. Tiffany, 56, 109, 273. 
 
 " V. Van Pelt, 149, 180, 327. 
 
 " V. Warren, 311, 320. 
 
 " V. Wendell, 79, 85, 273. 
 Warring v. Loomis, 283. 
 Warwick v. Mayor of New York, 37, 140, 157. 
 Washburn v. Franklin, 144, 147, 178. 
 
 " ■' 124, 152. 
 
 " " 144. 
 
 " V. Herrick, 66, 128, 166, 190, 223. 
 Washington Bank of Westerly v. Palmer, 20, 
 
 207. 
 Waterbury v. Graham, 178 
 
 " V. Sinclair, 146. 
 
 Waterbury v. Sinclair, 146. 
 
 " t/westervelt, 28, 32, 280. 
 
 •L " 336. 
 
 Waterbury Leather Manufact'g Co. v. Krause, 
 
 50, 51, 160, 184, 315. 
 Waterman v. Whitney, 320. 
 Waters v. Clark, 124, 135, 149, 161. 
 WaterviUe Manufacturing Co. v. Brown, 222. 
 
 " V. Bryan, 123. 
 Watkins v. CousaU, 149, 207, 232. 
 
 " v. Halstead, 34, 147. 
 
 " V. Stevens, 35, 43, 236. 
 
 " " 66. 
 
 Watrous v. Lathrop, 280, 298. 
 Watson V. Bailey, 131, 178, 207, 222, 315. 
 
 " V. Brigham, 155, 260. 
 
 " V. Cabot Bank, 20, 32, 54, 59. 
 
 " V. Campbell, 236. f 
 
 " V. Fitzsimmons, 288, 300, 302. 
 
 " V. Fuller, 99, 103. 
 
 " V. Gage, 204. 
 
 " V. Hazard, 140. 
 
 " V. Husson, 10, 133, 147, 186, 308, 320. - 
 
 " V. Scriven, 232, 237, 242. 
 Watson's Executors v. McLaren, 30. 
 Watt V. Rogers, 99, 126, 152, 179 
 Watts V. Gleaveland, 280. 
 Weare v. Slocum, 30, 50, 51, 66. 
 Webb V. Clark, 126, 127. 
 
 " V. Goldsmith, 178. 
 
 ■' V. Mott, 50, 51, 59, 159. 
 
 " -0. Norton, 320, 336. 
 
 " u. Ooerman, 300. 
 Webber v. Hobble, 291, 292, 300, 301. 
 
 " V. Moritz, 34, 69, 85. 
 Weber v. Defor, 99. 
 
 " V. Fowler, 60, 152. 
 
 " V. Sampson, 349. 
 Webster v. Hopkins, 324, 325, 327. 
 
 " V. Stephens, 308. 
 Weed V. Bibbins, 142, 179. 
 
 " V. Foster, 142. 
 
 " V. Panama R. R. Co., 141, 144. 
 
 " " 144. 
 
 " 0. Pendleton, 273. 
 Weeks v. Lowerre, 210, 244. 
 
 " V. Noxou, 54, 273. 
 
 " V. Pryor, 146, 180. 
 
 '■ V. Smith, 104, 288, 316. 
 
 " V. Southwick, 106, 337, 339. 
 Weigan v. Held, 184. 
 Weisser v. Denison, 146, 244. 
 Welch t). Cook, 78, 308. 
 
 " V. Hazelton, 122, 169, 177, 180, 186. 
 
 " in re, 242. 
 
 " V. Tittsworth, 284. 
 Weldon v. Harlem R. R. Co., 141, 244. 
 Welles V. Webster, 133, 134, 140, 172. 
 Wellington «. Classen, 64, 160, 184. 
 Wells V. Danforth, 276, 304, 308. 
 " 307, 320. 
 
 " V. Gates, 32, 38. 
 
 " u. Henshaw, 180. 
 
 " V. Jewett, 32, 37, 38, 140, 143. 
 
 " V. Jones, 85 92, 285, 315. 
 
 " V. New Yoir Central R. R. Co., 144. 
 
 " V. Smith, 32, 99, 196, 263. 
 
INDEX TO CASES CITED. 
 
 Ixxix 
 
 Wells V. Steam Navigation Co., 10. 
 
 141, 143,144. 
 "Wemple v. Stewart, 152, 180. 
 Wentworth i: Candee, 335. 
 Wesley v. Bennett, 289, 336. 
 
 " " 142, 168, 169, 172, 181. 
 
 Wesson v. Cbam-tierlain, 285. 
 
 " V. Judd, 176, 181, 201. 
 West V. Brewster, 50, 135, 162. 
 
 " V. Fraser, 117, 300. 
 Westbrook v. Douglass, 222, 244, 327. 
 Westcottj;. Keeler, B2, 149, 221. 
 " V. Piatt, 306, 307. 
 " 0. Thompson, 145. 
 " " 241, 243, 320. 
 
 Western v. Genesee Mutual Ins. Co., 147, 236, 
 
 319. 
 Western Bank v. City Bank of Columbus, 32, 
 108. 
 " v: Sherwood, 147, 179. 
 Western E. R. Corporation v. Kortright, 251. 
 Western Transportation Co. v. Sohell, 54. 
 Westervelt v. Alcock, 327. 
 " V. Frost, 28, 147, 282. 
 " V. Gregg, 34. 
 " V. Nelson, 332. 
 " V. Smith, 147, 178. 
 Westfall V. Hudson Elver Fire Ins. Co., 147. 
 
 " V. Jones, 147, 152. 
 Westgate v. Handlin, 71. 
 Westlake v. St. Lawrence Mutual Ins. Co., 222. 
 Weston V. Hatch, 207. 
 Wetherhead v. AUen, 15, 304. 
 Wetmore v. Earle, 82. 
 " V. Kissam, 35. 
 " V. Law, 99, 274. 
 " V. Eoberts, 154. 
 " V. Story, 37, 99, 156. 
 Wetter v. Schlieper, 117, 156. 
 " " 117, 235. 
 
 Wetterwulgh v. Enickerbocker Building Asso- 
 ciation, 149. 
 Wetzel V. Schultz, 289. 
 Weybum v. White, 32. 
 Weynant v. New York and Harlem E. E. Co., 
 
 141. 
 Whale V. Whale, 197. 
 Whalen v. Supervisors of Albany, 197. 
 Wheaton v. Gates, 18, 116. 
 Wheeler v. Brant, 143. 
 " V. Cropsey, 281. 
 " V. Dakin, 45, 278. 
 " V. Dixon, 126. 
 " V. Hartwell, 82. 
 " V. Lozee, 338. 
 
 " V. Maitland, 75, 200, 272, 293, 294. 
 " V. Morris, 38, 154. 
 " V. Newbould, 146. 
 " V. New York and Harlem E. E. Co., 
 
 23, 54, 58, 178. • 
 " V. Eoohester and Syracuse E. E. Co., 
 
 99. 
 " V. Smith. Ill, 280. 
 " V Webster, 44, 178. 
 " V. Westgate, 333. 
 " V. Wheedon, 38, 117, 153. 
 " V. Wilcox, 86. 
 
 Wheeler v. Wright, 332. 
 
 Wheelock v. Hotohkiss, 332. 
 
 Whipple V. WiUiama, 26, 71, 76, 198, 215, 253, 
 
 267, 336, 338, 339. 
 Whitaker v. Farmers' Union Ins. Co., 147. 
 
 " V. Merrill, 143, 178, 249. 
 Whitoomb v. Saloman, 82. 
 White V. Ambler, 146. 
 
 " V. Anderson, 322. 
 
 " V. Anthony, 320, 336. 
 
 " V. Bennett, 126, 127, 181. 
 
 " V. Brown, 32, 122, 146, 169. 
 
 " V. Chouteau, 20, 32. 
 
 " V. Coatsworth, 178. 
 
 " V. Coventry, 146, 178. 
 
 " V. Cummings, 126, 127. 
 
 " V. Featherstonhaugh, 112, 160, 257, 
 274. 
 
 " V. Foster, 10, 146. 
 
 " V. Haight, 118, 146. 
 
 " V. Havens, 146. 
 
 " V. Hewett, 149. 
 
 " I/. Hudson Elver Ins. Co., 147. 
 
 II II 11 11 J^rj_ 
 
 " In re, 315. 
 
 " V. Joy, 122, 133, 134, 136, 139, 171, 
 
 187, 189. 
 " V. Kidd, 133, 134, 181. 
 " u. Low, 32, 122, 140, 170. 
 " V. Mayor of New York, 128. 
 " V. McAllisterl 82. 
 " V. Merritt, 143, 178. 
 " V. Monroe, 78, 202, 315. 
 " 11. Nellis, 142. 
 
 " V. Seaver, 23, 24, 143, 178, 179. 
 " v. Spencer, 132, 176, 179, 313. 
 " V. Springfield Bank, 146, 178. 
 " V. Syracuse and Utica E. R. Co., 148. 
 " V. Van Kirk, 144, 149. 
 " V. Wager, 34. 
 " V. White, 34. 
 White's Bank of Bufifalo v. Ward, 43. 
 Whitehead v. Buffalo and Lake Huron E. E. 
 Co., 13, 32, 108. 
 " V. Pecare, 76, 254, 272, 273. 
 Whitehouse v. Moore, 149, 178. 
 Whitford v. Panama B. R. Co., 33, 141, 142. 
 Whiting V. Otis, 229, 244. 
 Whitlock V. Bueuo, 149, 222. 
 
 " V. Matter of Mary Jane, 35, 45, 64. 
 " V. McKeohnie, 176. 
 " V. Roth, 83. 
 Whitlcck's Case, 293. 
 Whitney v. Bayard, 322, 326. 
 " V. Kenyon, 48, 273. 
 " «. Kimball, 241, 273, 274.- 
 " V. Mayor of New York, 99. 
 " V. Slauson, 143. 
 " V. Stevens, 11, 99. 
 " V. Waterman, 134, 315. 
 " V. Wynooop, 67, 212. 
 Whittaker v. Merrill, 32, 1^2, 178. 
 Whittier v. Bates, 134. 
 
 Wibert v. New York and Erie E. E. Co., 144. 
 Wiokelhausen v. Willett, 28, 144. 
 Wicker v. Dresser, 14, 292, 293. 
 " V. Harmon, 83, 85. 
 
Ixxx 
 
 n^DEX TO CASES CITED. 
 
 Wies V. Fanning, 123, 134, 116. 
 Wiggins V. Arkenburgh, 336. 
 
 " V. Gans, 123, 135, 162, 180. 
 
 " " 204, 235. 
 
 " V. Orser, 28, 54, 144, 119. 
 
 " V. Tallmadge, 24, 54, 129, 174, 318, 
 320, 329. 
 
 " " 42. 
 
 " v. Wallace, 327. 
 Wiggman v. Hicks, 181. 
 Wight V. Alden, 272. 
 
 " V. McClave, 327. 
 Wightman o. Shankland, 186. 
 Wilb4ar i: Hubbard, 327. 
 
 " V. Selden, 210. 
 
 " V. Wiltsey, 334. 
 Wilcock V. Curtis, 74, 166, 257. 
 Wilcox V. Bennett, 219, 221, 245. 
 
 " V. Curtis, 263. 
 
 " V. Curtiss, 336, 338. 
 
 " V. Green, 229. 
 
 " V. Smith, 207. 
 
 " V. Wilcox, 15. 
 Wild V. Supervisors of County of Columbia, 
 
 33, 50. 
 WUde V. Joel, 67, 106. 
 
 " V. New York and Harlem U. E. Co., 
 327. 
 Wilder v. Baumstauek, 48. 
 
 " 0. Lanej 311. 
 
 " 0. Seelye. 178. ' 
 Wilds V. Hudson River R. R. Co., 141. 
 Wiles V. Peck, 14, 312, 326. 
 Wiley V. Slater, 143, 236, 244, 327. 
 Wilkl'e V. Bolster, 142. 
 
 " I/. Moore, 202. 
 Wilkiming v. Schmale, 178. 
 Wilkin ti. Gilman, 126, 127, 161. 
 
 " V. Pearce, 216, 320. 
 Wilkinsu. Batterman, 30. 
 Wilkinson?;. Tiffany, 78, 79, 315, 319, 329, 337. 
 Wilklow V. Bell, 334. 
 Wilds V. Peck, 322, 326. 
 Willard v. Andrews, 337. 
 
 " V. Reinhardt, 144. 
 Willet V. Payerweather, 78. 
 Willett V. Equitable Ins. Co., 111. 
 
 " V. Metropolitan Ins. Co., 135, 176, 177. 
 
 " V. ScoviU, 106. 
 
 " V. Stringer, 87, 102, 105, 163, 308. 
 Willetts V. Finlay, 38, 40, 146, 156. 
 
 " V. PhoBnix Bank, 146. 
 
 " V. Tandenburgh, 153. 
 
 " V. Waite, 40, 111, 161. 
 Williams v. Ayrault, 11, 99, 121, 151, 152, 178. 
 
 " V. Babcock, 118, 146, 147. 
 
 " V. Bigelow, 322. 
 
 " V. Birch, 122, 131, 304. 
 
 " " 145, 178, 227. 
 
 " V. Carrington, 147. 
 
 " V. Carroll, 34, 291, 293. 
 
 " V. Christie, 152, 178, 264, 313. 
 
 " V. Cunningham, 323. 
 
 " V. Estate of Cameron, 45, 315. 
 
 " V. Fitch, 336. 
 
 " " 30, 152, 208, 244. 
 
 " V. Fowler, 178, 263. 
 
 Williams v. Garrett, 142. 
 
 " V. Glenny, 149, 178. 
 
 " V. Hayes, 122, 128, 134, 191, 221. 
 
 " V. Hernon, 337. 
 
 " V. Holdridge. 34, 142. 
 
 " V. Holland, 144. 
 
 " V. Horgan, 334. 
 
 " V. Ins. Co. of North America, 122, 123, 
 147. 
 
 " " 229, 249. 
 
 " u. Lakey, 118, 146. 
 
 " V. McCauley, 327. 
 
 " V. Miller, 50, 142. 
 
 " V. New York Central R. B. Co., 99, 
 143, 150. 
 
 " V. Richmond, 181. 
 
 " V. Eiel, 126, 127, 273. 
 
 " V. Sage, 198, 215, 235. 
 
 " V. Shaw, 162. 
 
 " V. Sholto, 70, 127. 
 
 " V, Storm, 178. 
 
 " V. Townsend, 146. 
 
 " V. Upton, 185, 187. 
 
 " V. Vanderbilt, 229i 
 
 " V. Tan Talkenburg, 54, 58, 160, 273. 
 
 " 0. Wilkinson, 128. 
 
 " •</. Wilhs, 229, 246, 247. 
 Williamson v. Brown, 152. 
 
 " V. MiUs, 146. 
 
 " V. Moore, 76, 77, 192. 
 Willins V. Wheeler, 327. 
 Willis «. Cameron, 178, 181. 
 
 " V. Chipp, 178. 
 
 " V. Forrest, 227. 
 
 " V. Havemeyer, 189. 
 
 " V. Long Island R. E. Co., 141. 
 
 " V. Orser, 132, 244. 
 
 " V. Taggard, 177, 180, 186. 
 
 " v. Underhill, 34, 129, 191, 207, 208. 
 
 " V. Warren, 94, 145. 
 Wills V. Jones, 75. 
 
 Willsou V. Henderson, 78, 79, 200, 223. 
 Wilmerding ti. Moon, 85. 
 
 " V. Mooney, 82, 85. 
 Wihnot V. Richardson, 207, 244. 
 Wilson V. Allen, 241, 306, 308, 336, 340. 
 " 117, 118. 
 
 " V. Andrews, 293, 294, 296, 300. 
 
 " V. Britton, 109, 112. 
 
 " V. Cook, 327. 
 
 " V. Davol, 178. 
 
 " V. Duncan, 40, 111, 156, 315. 
 40, 111, 156, 315. 
 
 " V. Forsyth, 111, 151, 153, 280. 
 194. 
 
 " V. Genesee County Mutual Ins. Co., 
 147. 
 
 " V. Goit, 32, 34, 142. 
 
 " V. Herkimer County Mutual Ins. Co, 
 147. 
 
 " V. Lynt, 10. 
 
 " V. Mayor of New York, 99, 121, 168, 
 169, 170. 
 
 " V. Nason, 144. 
 
 " V. Onderdonk, 307. 
 
 " V. Roberts, 146, 147, 178. 
 
 " V. Robertson, 153. 
 
INDEX TO CASES CITED. 
 
 Ixxxi 
 
 Wilson V. Robinson, 142, 186. 
 " V. Smith, 43, 253, 280. 
 " V. Wheeler, 96, ] 84, 198, 215, 265. 
 " V. Wright, 28, 280, 286, 288. 
 WEtsie V. Northam, 146, 180. 
 Winans v. Mason, 30, 276. 
 
 " V. Peebles, 34. 
 WinoheU v. Bowman, 43, 221, 222, 227, 228. 
 
 " V. Hicks, 43, 221, 222, 227, 228. 
 Windell v. Mitchel, 24. 
 Winfield v. Bacon, 40, 45, 99, 118, 151, 156, 
 
 180. 
 Wing V. Griffin, 8, 32. 
 
 " V. Huntingdon, 318. 
 " V. Ketoham, 192. 
 
 " V. New York and Erie R. E. Co., 144, 
 327, 328, 333. 
 Winne v. Sickles, 181. 
 Winnebrenner v. Edgerton, 48, T6, 
 Winslow V. Buel, 189. 
 "Winter v. Drury, 146. 
 
 " V. Kinney, 147. 
 Winterhoff w. Lugat, 315. 
 Wintermute v. Clark, 144. 
 Wintersen v. Eighth Avenue E. R. Co., 133, 
 
 141, 169, 171. 
 Winthrop v. Meyer, 207. 
 Wirgman v. Hicks, 181. 
 Wisconsin Marine and Eire Ins. Co. Bank v. 
 
 Hobbs, 50, 95, 96, 163. 
 Wiseman v. Panama R. R. Co., 144, 149, 178, 
 
 327. 
 Wisner v. Teed, 185, 186. 
 Witbeck v. Waine, 147, 152, 
 
 " " 241, 243, 309. 
 
 Witherhead v. Allen, 148, 181, 251, 304, 313. 
 Witherspoon v. Tan Dolan, 14, 15, 75, 122, 
 
 128, 129, 176, 181, 251. 
 Wolcott-u. Meech, 132. 
 " V. Winston, 126. 
 
 Wolf t;. H , 180. 
 
 Wofe V. Howard Ins. Co., 147. 
 " V. Howes, 123, 147, 149. 
 " V. Merserau, 141, 143. 
 " V. Supervisors of Richmond County, 
 
 123, 143, 168. 
 " V. Tan Nostrand, 320. 337. 
 Wood V. Anthony, 133, 135, 136, 140. 
 
 " V. Brooklyn Eire Ins. Co., 334, 335. 
 " V. Chapin, 232, 284. 
 " v. Chew, 154. 
 " V. Derrickson, 147, 181. 
 " V. Draper, 37, 99. 
 " V. Gnchrist, 131, 142. 
 " V. Harrison, 194. 
 " V. Hollister, 138. 
 " V. Hubbell, 152. 
 " v. Kelly, 315, 322, 323. 
 " V. Kimball, 14, 16, 74. 
 " V. Lambert, 251. 
 " V. Lester, 280. 
 " V. Marvine, 99. 
 " V. Merritt, 148, 180 
 " V. Robinson, 152. 
 " V. Staniels, 176, 229. 
 "■ V. Trustees of New Tork Presbyterian 
 Church, 30. 
 
 Woodu. Wheelock, 140, 147. 
 " V. Whiting, 176, 178. 
 " V. Wood, 42, 131, 153, 263. 
 Woodburn v. Chamberlin, 131, 221, 229, 264, 
 
 265 
 Woodbury v. Sackrider, 124, 133, 140, 146, 169. 
 Wooden v. Foster, 146, 236. 
 " V. Strew, 122. 
 
 " j;. Waffle, 121, 122, 123, 134, 179, 
 180, 194. 
 Woodford v. Patterson, 143, 149. 
 Woodgate v. Fleet, 156, 169. 
 Woodruff V. Bush, 267. 
 
 " V. Commercial Mutual Ins. Co., 147, 
 
 236. 
 " V. Cook, 332. 
 " V. Fisher, 15, 102, 105. 
 " 6,. Husson, 30, 131, 178, 208, 235, 315. 
 " V. Moore, 43. 
 " V. Wicker, 146. 
 Woodruff and Beach Iron Works v. Chitten- 
 den, 148, 179. 
 Woods V. Anthony, 123, 133, 134, 135, 136, 
 140. 
 " V. Illinois Central B. R. Co., 337. 
 Woods V. Thompson, 34. 
 Woodside v. Pender, 324. 
 Woodward v. Genet, 146, 147. 
 
 " V. Grier, 337. 
 Woodworth v. Bellows, 113, 174, 181, 191, 
 263. 
 " V. Woodworth, 178. 
 Woollen Manufacturing Co. v. Townsend, 307, 
 
 320. 
 Woolsey v. Judd, 8, 11, 20, 151. 
 
 " 151. 
 Woolever v. Knapp, 32. 
 Wooster v. Chamberlin, 38, 132. 
 Worden v. Brown, 23, 333, 334. 
 Wordsworth v. Lyon, 99. 
 Worrall v. Munn, 152. 
 " " 308. 
 
 Watkyns v. Abrahams, 34, 48. 
 Wright V. Baldwin, 144. 
 
 " V. Delafleld, 123, 152. 
 " " 196, 232, 242. 
 
 " V. Douglass, 10, 11, 111, 284 
 " " 243, 319, 320. 
 
 284. 
 " V. Forbes, 66. 
 " V. Garlinghouse, 146. 
 " V. Hooker, 122, 132. 
 " V. Jessup, 213. 
 " V. New York Central E. R. Co., 141, 
 
 207. 
 " V. Orient Mutual Ins. Co., 146, 147, 
 
 244. 
 " V. Saddler, 34. 
 " V. Smith, 30. 276. 
 " V. Storms, 129. 
 " V. Storrs, 140, 146, 171. 
 " V. Weeks, 152. 
 Wurts V. Jenkins, 33, 178. 
 Wyant v. Reeves, 50, 260. 
 Wyatt V. Benson, 99. 
 Wyman v. Hart, 222. 
 " V. Eemond, 128. 
 
Ixxxii 
 
 INDEX TO OASES CITED. 
 
 Xenia Branch Bank of Ohio v. Lee, 122, m, 
 180, 186. 
 
 T. 
 
 Tale V. Dederer, 34, 147, 153, 265. 
 
 " " 34, 147, 153. 
 
 " V. Gwinits, 234. 
 
 " V. Matthews, 110, 111, 279, 280. 
 Yates V. Bigelow, 162, 174. 
 
 " V. Blodgett, 82, 139, 161. 
 Tertore v. "WiswaU, 32, 121, 122, 141, 142, 
 
 192. 
 Yorks V. Peck, 218, 241, 256, 307, 332, 334. 
 Young V. Bloomer, 315. 
 
 " V. Catlett, 146, 176, 179. 
 
 " V. Colby, 308. 
 
 " V. Dake, 178. 
 
 " •</. De Mott, 162. 
 
 Young V. Edwards, 133, 140, 161. 
 
 " V. Gori. 336. 
 
 " V. Hunter, 178. 
 
 " V. Knapp, 140, 146. 
 
 " V. New York Central R. R. Co., 141. 
 
 " V. New York and Liverpool Steamship 
 Co., 148. 
 Youngs u.iee, 146, 178. 
 
 " Jj.'llansom, 99. 
 
 " V. Seeley, 136, 171. 
 
 " V. .Wilson, 152. 
 
 Zabriskie v. Smith, 32, 121, 123, 124, 132, 143, 
 
 169, 170, 175, 227, 241, 243, 320. 
 Zachrisson v. Ahman, 143. 
 
 " V. Poppe, 149. 
 Zeiter v. Bowman, 60. 
 Zellinger v. Caffe, 146, 213. 
 Zink V. Attenburgii, 264, 334. 
 
INTRODUCTOEY CHAPTER 
 
 OF THE NEW SYSTEM OP PRACTICE GENERALLY CONSIDERED. 
 
 § 1. Preliminary Ohservatums. 
 
 FoEESHADOWED iBL the Constitution of 1846, and embodied in the origi- 
 nal measure of 1848, the system of practice carried out in the Code of 
 Procedure has now, in its more dominant features, assumed the char- 
 acter of an established institution; and, though subjected to continual 
 modification in details, may fairly be considered as, in its essential prin- 
 ciples, beyond the reach of retroaction. 
 
 The revolution effected by it in the ancient system of procedure, great 
 as that revolution is, and, for extent and boldness, unparalleled in the 
 annals of legal reform, remains in some respects inchoate, or, rather, in- 
 complete in its operation. This peculiar characteristic adds no little to 
 the difficulties incurred' by the student, and still more by the illustrator 
 of its provisions. The legislature, whilst taking partial action upon the 
 report of the commissioners, have shrunk apparently from dealing with 
 the subject of civil procedure as a connected whole, as evidently con- 
 templated by the constitution of 1846 ; and, whilst remodelling portions 
 of an ,arLcient and theretofore consistent system, upon novel principles, 
 have, at the same time, permitted other portions of that same system to 
 stand disconnectedly in their original condition. The effect has been 
 to impart to the result of their labors, wlien viewed in connection with 
 other branches of the same general subject, a sort of fragmentary char- 
 acter ; and to impose upon the student, or the practitioner undertaking 
 the transaction of general business or the conduct of a contested suit, 
 the practical necessity of making himself master, in a great measure, of 
 the details of two distinct systems ; the one seemingly, but not actu- 
 ally abolished; the other generally, but not universally dominant. 
 
 Another fertile source of embarrassment to the student of the uev\ 
 system is the continued current of amendment and alteration which, in 
 every session since 1848, has, with two exceptions only, been ceaselassly 
 
 YOL. I— 1 
 
2 INTRODUOTOEY CHAPTER. § 2. 
 
 ruuuiug. This characteristic has the inevitable effect of introducing into . 
 the already formidable array of reported decisions an element of contm- 
 ual fluctuation, involving the constant necessity of looking more closely 
 into cases of apparent general applicability, to see whether that ap- 
 plicability may not in fact be a delusion, as regards the now existent or 
 some intermediate modification of the original measure. 
 
 In view of these great, and, in many respects, increasing difficulties in 
 his task, the author, on resuming it, feels bound to solicit a continuance 
 of the indulgence extended to his previous efforts ; persuaded by past 
 experience that he will again obtain it, and this not merely from his 
 general readers, but more especially from those who, being more familiar 
 with the details of the new practice, are therefore the more competent 
 to appreciate to the full the difficulties above alluded to. 
 
 § 2. Origin and Modifications of the Code. 
 
 Before entering on the more practical branches of the subject pro- 
 posed to be considered in this treatise, a glance at the history of the 
 Code of Procedure itself, and a brief general consideration of the origin 
 and applicability of the new system, will not be out of place. 
 
 The germ of the measure itself will be found in the Constitution of 
 1846, by which (art. VI., § 24) it is. thus provided. 
 
 § 24. The legislature at its first session after the adoption of this constitu- 
 tion, shall provide for the appointment of three commissioners, whose duty 
 it shall be to revise, reform, simplify, and abridge the rules and practice, 
 forms and proceedings of the courts of record in this state, and to report 
 thereon to the legislature, subject to their adoption and modification from 
 time to time. 
 
 By the previous provisions of that instrument, the whole of the 
 judiciary system of the state was remodelled. The long established 
 wall of partition between common law and equity jurisdiction was 
 broken down, the ancient chancery system abolished, and the former 
 Supreme Court transformed into a tribunal of general and mixed juris- 
 diction. See Constitution, art. YI., §§ 3-5 ; art. XIV., §§ 5-8. The 
 Code is in fact, in its chief characteristic, subordinate and ancillary to 
 this great and radical change. 
 
 Pending the labors of the commissioners, the necessary reorganiza- 
 tion of the judiciary system was carried into effect by the judiciary act, 
 chapter 280 of Laws of 1847, passed May 12th, 1847, and amended by 
 chapter 470 of the Laws of the same year, passed December 14th, 1847. 
 The provisions of these two measures are for the most part abrogated 
 by the enactments of the Code, but in some respects they are still 
 .existent, and where necessary, will be noticed hereafter. 
 
INTEOBTJCTORY CHAPTEE. — § 2. 3 
 
 The commissioners appointed as above, made their report to the 
 legislature, and two measures grounded on that report, were also intro- 
 duced in the session of 1848 ; both were passed on the 12th of April in 
 that year, and form chapters 379 and 380 of its Session Laws. Chapter 
 379 is the Code of Procedure properly so called, chapter 380 being a 
 merely supplementary measure, having reference to then existent pro- 
 ceedings. The Code itself was, as provided by section 391, to take effect 
 as from the 1st of July then next (except only as to sections 23 to 27 in- 
 clusive, the operation of which was inimediate). The supplementary act 
 went into efl'ect at once, except as to section 2, which was made con- 
 current with the Code. 
 
 The original act contained only 391 sections, leaving several impor- 
 tant matters of practice partially, and others wholly unprovided for. 
 In the session of 1849 these deficiencies were to a considerable extent 
 supplied, and the whole measure remodelled, not by way of mere 
 amendment, but by the passing of a substantive and substituted statute, 
 containing, instead of 391, 473 sections. This last number has, on all 
 subsequent alterations, been rigidly adhered- to. The supplementary 
 law was also re-enacted, with comparatively little alteration. Both 
 were passed on the 11th of April, 1849, and form chapters 438 and 439 
 of the Laws of that year, pages 613-705. 
 
 The supplementary act was to take effect immediately, except as re- 
 gards section 2, which was made concurrent with the Code. The former, 
 the Code itself, was, by section 473, to take effect on the first day of July, 
 1848, except that sections 22 to 25 were to take effect immediately, and 
 this section has remained unchanged and unaffected by any of the 
 various amendments down to the present time. 
 
 Prima facie, this last provision would seem to impart to those por- 
 tions of the Code of 1849 not contained in the Code of 1848 a retro- 
 spective effect, and, if this construction could be accepted as sound, a 
 similar operation might possibly be claimed for subsequent changes, 
 especially those introduced in the session of 1851, when the whole 
 measurq, as then amended, was reprinted in full, by way of appendix to 
 the Session Laws, by express direction of the legislature. On more 
 critical examination, however, it seems impossible to attribute to the 
 section in question any such "ea? -post facto''' effect. See Gamble vs. 
 Beattie, 4 How., 41. In this point of view the general principle laid 
 down in section 12, part I., chapter YII., title lY., of the Revised Stat- 
 utes, 1 K. S., 157, would attribute the operation of the amendment in 
 question to the 1st of May, 1 849, being twenty days from the date of the 
 final passage of the amended statute. Chapter 135 of the laws of 1854, 
 p. 317, would seem, by necessary implication, to favor this construction. 
 In the same year, 1849, the legislature appointed three commission- 
 
4 IlfTllODTTOTOET CHAPTEK. § i. 
 
 ers further to revise, &c., in the exact phraseology of the Constitution. 
 Vide Laws of 1849, ch. 312, p. 453. In 1850, these commissioners re- 
 ported and submitted the form of a complete Code of Civil Procedure, 
 embracing the whole, subject in all its branches, and coniaining no" Jess 
 than 1885 sections. They were then discharged from their functions, 
 by chapter 281, Laws of 1850, p. 618 ; but no fm-ther action was taken 
 on their report, or otherwise, in the course of that session. In 1853 a bill 
 was introduced, based on the report in question, and containing 1740 
 sections ; but it failed to pass the legislature, and the subject has since re- 
 mained in abeyance, and the anomaly, before alluded to, unprovided for. 
 
 ■ In 1851, the Code, as then existent, was again taken up by the legisla- 
 ture and numerous alterations made. This statute is chapter 479, of the 
 Laws of that year, p. 876, passed 10th July. By section 470, subdivision 
 2, it was provided that section 13, as amended (fixing the terms of the 
 Court of Appeals), should take effect on the 1st of January next. No 
 provision of this nature was made as to any other portions of the measure, 
 and, therefore, under the general enactment in the Kevised Statutes 
 before referred to, the operation of the rest of the amended sections 
 would date from 30th July, 1851. By the same section (470) it was 
 also provided that the secretary of state, in publishing the Session 
 Laws for that year, should publish, by way of appendix, the entire 
 Code, distinguishing the sections then amended by italics, which was 
 done accordingly. See Laws of that year. 
 
 The measure was again largely amended by chapter 392 of the Laws of 
 1852, p. 651, passed April 16th. No time being prescribed, the operar 
 tion of these amendments would therefore date from the 6th of May, 1852. 
 
 In the session of 1853, the general principles of the measure were 
 
 ■ left untouched. Section 28 was, however, amended so as to comprise the 
 superior local tribunals in New York, by chapter 527 of the Laws of that 
 year, p. 992, passed on the 13th of July, and taking effect immediately. 
 
 In 1854, two short measures were passed, making supplementary 
 provisions as to appeals. The former of these measures is chapter 
 135 of 1854, p. 317, passed on the 3d of April ; the latter, chapter 270, 
 of same year, p. 592. Both took effect immediately. 
 
 In 1855 two short measures were also passed. The first amends sec- 
 tion 153, in relation to reply or demurrer to answer. It forms chapter 
 44 of 1855, p. 54, passed 3d March. No time being prescribed, its opera 
 tion would date as of 23d March. The other is a separate and inde- 
 pendent measure, extending the provisions of the Code to forfeited recog- 
 nizances. It forms ch. 202 of the Laws of 1855, p. 305. It was passed 
 on the 9th of April, and, by special provision, took effect immediately. 
 
 The short session of 1856 is distinguishable as the only year, except 
 1850, in which, since its original passage, the Code was left untouched. 
 
INTKODUCTOEY CHAPTER.^§ 3. 5 
 
 By chapter 353 of the Laws of 185Y, vol. I., p. 744, passed on the 13th 
 of April, 1857, section 399 is amended, by allowing parties to testify on 
 their own behalf The operation of this inaportant change was, by 
 special provision, immediate. By chapter T23 of the Laws of the same 
 . year, vol. II., p. 551, passed only four days after, i. e., on the iTth of 
 April, numerous amendments of a general nature were made. 'So 
 specific date being prescribed, the operation of these amendments dates 
 as of the Tth of May, 1857. 
 
 By chapter 266 of the same year, p. 552, commissioners were ap- 
 pointed with a view to the general codification of the laws of this state. 
 By chapter 460, of 1862, p. 846, § 38, their term of office is extended 
 to the 1st of April, 1865. They have entered upon their labors, but as 
 yet no report has been submitted by them. 
 
 Yarious general amendments were again made by chapter 306 of the 
 Laws of 1858, p. 491. This measure having been passed without special 
 provision, on the 17th of April, it takes effect as of the 7th of May, 1858. 
 
 By chapter 428 of the Laws of 1859, p. 968, the measure is again 
 generally amended. This law took effect as of the 6th of May, 1859, 
 having passed, without special provision, on the 16th of April. 
 
 In 1860 two amendments were made. By chapter 131, p. 209, sec- 
 tion 53 was enlarged, so as to increase considerably the jurisdiction of 
 justices' courts. No period being specified, this act, passed on the 30th 
 of March, took effect on the 19th of April. By chapter 459, p. 783, 
 several general amendments were made. Under section 14 this measure 
 took effect immediately. By section 13 the commissioners for prepara- 
 tion of a civil code, under the statute of 1857, were directed to prepare 
 and submit to the legislature a book of forms, adapted to the Code of 
 Procedure. This has been done, but no action has as yet been taken 
 upon their labors. 
 
 In 1861 section 53 was again amended, by chapter 158 of that year, 
 p. 446, taking effect immediately. 
 
 In 1862 sundry amendments were made, by chapter 460 of that year, 
 p. 846. This act, passed on the 23d of April, took effect on the 13th 
 of May, 1862, there being no special provision. 
 
 § 3. Provisions of the Code, of General Application. 
 
 The following sections of the Code, constituting its commencement 
 and conclusion, and applicable, as will be seen, to the measure itself, 
 or the system thereby established, considered as a whole, irrespective 
 of the details of either, are here inserted, as in their natural division, 
 under the arrangement adopted by the author, as above noticed. 
 
 The commencement of the Code, applicable as above, consists of its 
 title, preamble, and of the introductory sections, which run as follows : 
 
IKTEODTJCTOBT CHAPTER. § 3. 
 
 CODE OF PROCEDURE. 
 
 AN ACT 
 
 To amend an act entitled ''An Act to Simplify and Abridge the Practice, 
 
 Pleadings, and Proceedings of the Courts of this State," passed April 
 
 12th, 1848. 
 
 Passed April 11th, 1849. 
 
 The act entitled "An Act to Simplify and Abridge the Practice, Plead- 
 ings, and Proceedings of the Courts of this State," passed April 12th, 1848, 
 is hereby amended so as to read as follows : 
 
 AN ACT 
 
 To Simplify and Abridge the Practice, Pleadings, and Proceedings of the 
 
 Courts of this State. 
 
 Whereas, It is expedient that the present forms of actions and pleadings 
 in cases at common law should be abolislied, and that the distinction be- 
 tween legal and equitable remedies should no longer continue, and that an 
 uniform course of proceeding, in all oases, should be established ; 
 
 Therefore, The People of the State of New York, represented in Senate 
 and Assembly, do enact as follows : 
 
 GENERAL DEFINITIONS AND DIVISIONS. 
 
 § 1. Remedies in the courts of justice are divided into 
 
 1. Actions. » 
 
 2. Special proceedings. 
 
 § 2. An action is an ordinary proceeding in a court of justice, by which a 
 party prosecutes another party, for the enforcement or protection of a right, 
 the redress or prevention of a wrong, or the punishment of a public offence. 
 
 In 1848 the phraseology of this section was different. It commenced thua : "An action is 
 a regular judicial proceeding, in which a party prosecutes," &c. 
 
 § 3. Every other remedy is, a special proceeding. 
 § 4. Actions are of two kinds : 
 
 1. CivU; 
 
 2. Criminal." 
 
 § 5. A crimmal action is prosecuted by the people of the State, as a 
 party, against a person charged with a public offence, for the punishment 
 thereof. 
 
 § 6. Every other is a civil action. 
 
 § 1. Where the violation of a right admits of both a civil and criminal 
 remedy, the right to prosecute the one is not merged in the other. 
 
 § 8. This Act is divided into two parts: 
 
 The first relates to the courts of justice, and their jurisdiction : 
 
 The second relates to civil actions commenced in the courts of this State 
 after the 1st day of July, 1848, except when otherwise provided thereru, 
 and is distributed into fifteen titles. The first four relate to actions in all 
 
rNTEODUCTOET CHAPTEE. — § 3. T 
 
 the courts of this State ; and the others to actions in the Supreme Court, in 
 the County Courts, in the Superior Court of the City of New York, in the 
 Court of Common Pleas for the City and County of New York, in the 
 Mayors' Courts of cities, and in the Recorders' Courts of cities ; and to 
 appeals to the Court of Appeals, to the Supreme Court, to the County 
 Courts, and to the Superior Court of the City of New York. 
 
 In the measures of 1848, this section is slightly different. The Code of that year was 
 distributed into twelve, not fifteen titles, and the Mayors' and Recorders' Courts within its 
 scope, were specified by name, instead of being generally described. 
 
 There is a curious mistake in this section, as applicable to the state of things in 1849, and 
 since, which seems to have escaped, notice at the time, and has never been amended. By the . 
 Code of 1848, the Superior Court was constituted the appellate tribunal for review of the de- 
 cisions of the Marine and Justices' Courts in New York. By the Code of 1849, this jurisdic- 
 tion was transferred to the Court of Common Pleas, which has since continued, and now 
 continues the appellate tribunal in these cases ; nor has the Superior Court since exercised 
 any revisory jurisdiction whatsoever. 
 
 The list '^f courts affected by the Code is now manifestly incorrect, 
 by the omission of two important tribunals, viz., the City Court of 
 Brooklyn, and the Superior Court of Bujffalo, since established. 
 
 The second division of the Code of general application, consists of 
 the concluding sections, constituting title XY., of part 2, sections 462 
 to 473, inclusive. " ^ 
 
 These provisions run as follows : — 
 
 TITLE XV. 
 
 General Provisions. 
 
 § 462. (383.) The words " real property," as used in this act, are co- 
 extensive with lands, tenements, and hereditaments. 
 
 § 463. (384.) The words " personal property," as used in this act, include 
 money, goods, chattels, things in action, and evidences of debt. 
 
 § 464. (385.) The word " property," as used in this act, includes property, 
 real and personal. 
 
 § 465. (386.) The word " district," as used in this act, signifies judicial 
 district, except when otherwise specified. 
 
 § 466. (387.) The word " clerk," as used in this act, signifies the clerk 
 of the court where the action is pending, and, in the Supreme Court, the 
 clerk of the county mentioned in the title of the complaint, or in another 
 county to which the court may have changed the place of trial, unless other- 
 wise specified. 
 
 § 467. The rule of common law, that statutes in derogation of that law 
 are to be strictly construed, has no application to this act. 
 
 This section was first introduced on the amendment of 1 849. 
 
 § 468. (388.) All statutory provisions inconsistent with this act, are re- 
 pealed • but this repeal shall not revive a statute or law which may have 
 
8 INTEODUCTOEY CHAPTER. § 3, 
 
 been repealed or abolished by the provisions hereby repeale.d. And all 
 rights of action given or secured by existing laws, may be prosecuted in the 
 manner provided by this act. If a case shall arise in which an action for 
 the enforcement or protection of a right, or the redress pr prevention of a 
 wrong, cannot be had under this act, the practice heretofore in use may be 
 adopted, so far as may be necessary to prevent a failure of justice. 
 
 § 469. (389.) The present rules and practice of the courts, in civil actions, 
 inconsistent with this act, are abrogated ; but where consistent with this 
 act, they shall ' continue in force, subject to the power of the respective 
 courts to relax, modify, or alter the same. 
 
 These two provisions were in the original Code, and slightly but unimportantly altered, 
 on the amendment of 1849. 
 
 § 4V0. The judges of the Supreme Court, of the Superior Court of the 
 City of New York, and of the Court of Common Pleas for the City and 
 County of New York, shall meet in general session at the Capitol,, in the 
 City of Albany, on the first Wednesday in August, one thousand eight 
 hundred and fifty-two, and every two years thereafter, and, at such sessions, 
 shaU. revise their general rules, and make such amendments thereto, and such 
 further rules not inconsistent with this Code, as may be necessary to carry 
 it into full effect. The rules so made, shall govern the Supreme Court, the 
 Superior Court of the City of New York, the Court of Common Pleas for 
 the City and County of New York, and the County Courts, so far as the 
 same may be applicable. 
 
 Not in the original measure, but first introduced in 1S49. The section in that year pro- 
 Tided for one revision only, abolishing the existent rules, as from 1st September then next- 
 In 1851 a biennial revision was first provided for. The present phraseology of the section 
 was settled on the amendment of 1852. 
 
 Under chapter 484 of 1862, p. 970, section 3, these Tules now govern the practice of the 
 Marine and District Courts of the City of New York, so far as they can be made applicable. 
 
 § 471. (390.) Until the legislature shall otherwise provide, the second part 
 fi{ this act shall not affect proceedings upon mandamus or prohibition ; nor 
 appeals from surrogates' courts, except that the costs on such appeal shall be 
 regulated and allowed in the manner provided in section three hundred and 
 eighteen of this act ; nor any special statutory remedy not heretofore obtained 
 by action ; nor any existing statutory provisions relating to actions, not in- 
 consistent with this act, and in substance applicable to the actions hereby, 
 provided ; nor any proceedings provided for by chapter five of the second 
 part of the Revised Statutes, or by the sixth and eighth titles of chapter five 
 of the third part of those statutes, or by chapter eight of the same part ex- 
 cluding the second and twelfth titles thereof, or by the first title of chapter 
 nine of the same part ; except that when in consequence of any such pro- 
 ceeding a civil action shall be brought, such action shall be conducted in 
 conformity to this act ; and except, also, that where any particular provisioa 
 
INTEODUCTOKT CHAPTER. § 4. 9 
 
 of the titles and chapters euumerated in this section shall be plainly incon- 
 sistent with this act, such provision shall be deemed repealed. 
 
 See the amendments in this provision, from the original clause in 1848, and their effect, as 
 more fuUy considered in the following section of this work. 
 
 § 472. Nothing in this act contained shall be taken to repeal section 
 twenty-three of article two of title five of chapter six, part third of the 
 Revised Statutes, or to repeal an act to extend the exemption of household 
 furniture and working tools from distress for rent, and sale under execution, 
 passed April 11th, 1842. 
 
 This enactment was first introduced on the amendment of 1849. 
 
 The section of the Revised Statutes, here reserved, relates to property exempt from execu- 
 tion. It is numbered 23 in the third edition, which is probably here referred to, but in the 
 Revised Statutes, as originally passed, its number is 22. 
 
 § 4:13. (391.) This act shall take effect on the first day of July, 1848 ; 
 exceptthat sections twenty-two, twenty-three, twenty-four, and twenty-five, 
 shall take effect immediately. 
 
 The applicability of this provision, as regards the different amendments from tune to time, 
 has been already, considered under section 2 of this work. 
 
 § 4. /Statutory and other Provisions reserved hy Section 4V1. 
 
 In the original Code of 1848, this section was more extensive in its 
 purview. It excluded from the operation of the Code proceedings 
 upon quo warranto, information, and s^ire facias to repeal letters patent, 
 as well as those on Tnandainus and prohibition. It likewise included in 
 its reservation of proceedings under the Revised Statutes, proceedings 
 under the 2d, 3d, 4th, and 5th titles of chapter Y., part III., of those 
 statutes. 
 
 In 1849 these portions of the section were stricken out. The three 
 special remedies on quo warranto, information, and scire facias, are now 
 provided for in chapter II. of title XIII. of the Code itself, sections 428 
 to 44Y inclusive, first inserted on that occasion. The titles of chapter 
 Y. of the Eevised Statutes, omitted on that occasion from the list of ex- 
 cepted portions, areas follows: Title II. Proceedings to compel the de- 
 termination of Claims to Real Property. Title III. Of Partition. Title 
 lY. Writ of Nuisance. Title Y. "Waste. This omission does not, of 
 course, abolish the remedies themselves ; the forms of those remedies 
 were provided for on that amendment, by sections 448 to 454 of the 
 Code itself. 
 
 In 1852 the section was again amended, by inserting the " second 
 part of this act" in substitution for " this act," as the clause stood in 
 1848 and 1849 ; in other respects the wording of 1849 remained un- 
 altered. 
 
10 INTEODUCTOKY CHAPTER. § 4. 
 
 In 1862 its phraseology was settled as it now sts.nds ; the provision 
 that the costs of appeals from Surrogates' Courts are to he regulated 
 by the Code, being then first inserted by amendment. 
 
 The following is a list of the statutory provisions excepted from the 
 operation of the Code by the section now in question. 
 
 Chapter Y., part II., of the Eevised Statutes, contains the statute 
 law as to insolvency and its incidents, and as to the custody of the 
 estates of, persons of unsound mind and drunkards. 
 
 The excepted titles of chapter Y., part III., of the same statutes are 
 these : 
 
 Title YI. Of trespass on lands. IST. B. Prescribing the measure of 
 damages in certain, cases. 
 
 Title YIII. Proceedings to discover the death of oestuis que vie, 
 where suspected. 
 
 The two titles of chapter YIII. of the Eevised Statutes excluded 
 from the operation of the section, and which are accordingly directly 
 affected by the Code, are these : 
 
 Title II. Proceedings by or against infants. 
 
 Title XII. Of the action of replevin. Proceedings of these natures 
 are therefore essentially governed by the new practice. 
 
 The other titles of the same chapter, on which the section directly 
 operates, are these : 
 
 Title I. As to suits in forma pauperis. 
 
 Title III. Suits by and against executors and administrators, and 
 against heirs, devisees, and legatees. 
 
 Title lY. Suits by and against corporations, or public bodies having 
 corporate powers, or the officers representing them (including provisions 
 for their voluntary dissolution). 
 
 Title Y. Suits against officers on their official bonds. 
 
 Title YI. Suits for penalties, and forfeitures, and provisions for the 
 collection and remission of forfeited recognizances, and fines imposed 
 by courts. 
 
 IST. B. By chapter 202 of the laws of 1855, p. 305, this reservation 
 is partially annulled, and the provisions of the Code extended to for- 
 feited recognizances. 
 
 Title YII. Proceedings for the admeasurement of dower. 
 
 Title YIII. Proceedings for the collection of demands against ships 
 and vessels. 
 
 Title IX. Proceedings for the recovery of rent and of demised prem- 
 ises. (As regards the power of distress, however, these provisions are 
 abolished by chapter 274 of the Laws of 1846.) 
 
 Title X. Summary proceedings to recover the possession of land m 
 certain cases. 
 
INTEODUCTORY CHAPTEE. § 5. 11 
 
 Title XI. Distress ou cattle", &c., damage feasant. 
 
 Title XIII. Proceedings to punish contempts. 
 
 Title XIY. Arbitrations. 
 
 Title XY. Foreclosure of mortgages by advertisement. 
 
 Title XVI. Proceedings for the draining of swamps and low lands. 
 
 Title XYII. Miscellaneous provisions, relative to suits, and proceed- 
 ings in general ; and, 
 
 Title XYIII. Provisions as to the lien of mechanics, &c., on build- 
 ings erected by them. 
 
 This last title is, however, substantially swept away by subsequent 
 enactments. 
 
 The first title of chapter IX. part III. of the Eevised Statutes, con- 
 tains the statute law on the subject of habeas corjpus and cerUorari. 
 
 N. B. Several of the provisions reserved as above have been since 
 changed by subsequent amendments of the legislature, which changes, 
 where they enter into the scope of this work, will be noticed here- 
 after. 
 
 § 5. Rules of the Qowrts. 
 
 In considering the general applicability of the new system of prac- 
 tice, the rules of the courts, by which the minor details of that practice 
 are governed, demand as of course their share of notice. The authority 
 to make regulations of this kind is in its very nature an essential in- 
 cident to the constituent powers of any court of general jurisdiction, 
 and has, from time immemorial, been exercised by the higher tribunals 
 referred to in section 4Y0. But, by that section, the exercise of that 
 power is henceforth practically restricted, being now made the subject 
 of special statutory direction. 
 
 The general rules directed to be made by the original section oS1849, 
 were published by the judges of the Supreme Court in general session as 
 of the 4:th of August, and took effect the 1st of September in that year. 
 The biennial revisions directed by the amendment of 1851, have taken 
 place as follows : The first was had on Wednesday the 5th of August, 1852, 
 being the first occasion on which the judges of the Superior Court and 
 Court of Common Pleas of New York took part in the convocation for 
 that purpose under the section as it now stands. These Amendments 
 took effect on the 1st of October, 1852. The next took place as of the 2d 
 of August, 1854 ; the amendments thBn made going into effect on the 1st 
 of October following. The year 1856 passed over without any change in 
 'the regulations of 1854, it being considered unnecessary by the as- 
 sembled judiciary. The last actual revision, constituting the present 
 rules of the .courts above referred to, was had as of the 4th of August, 
 
12 INTEODUCTOEY CHAPTER. § 6. 
 
 and took effect on the 1st day of October, 1858. No action was taken 
 by the judges either in 1860 or 1862. 
 
 The same element of uncertainty, before -alluded to as involved in the 
 frequent changes made by the legislature, in the text of the Code itself, 
 is in a minor degree attributable to the rules, as thus amended from 
 time to time; nor is this difficulty lessened by the circumstance that, on 
 the different revisions, the numbers by which specific regulations are 
 designated have been continually changed. On the last occasion, in 
 particular, the numerical arrangement was, in a great measure, thor- 
 oughly remodelled. The strict attention of the student will be requisite 
 to this peculiarity, especially in consulting the earlier, with reference to 
 later decisions, on those portions of the practice which they regulate; 
 "Whenever a rule is cited in extenso, the present and the last preceding 
 number will be given ; when merely referred to, the former only. 
 
 The subject is, moreover, further complicated by the existence of sep- 
 arate rules in relation to the special practice of the Superior Court and 
 Court of Common Pleas of the City of JSTew York, and also by the mak- 
 ing, from time to time, of sundry special regulations by the justices of 
 different districts of the Supreme Court, to govern the special practice 
 in those districts. These different regulations, where necessary, will be 
 hereafter noticed in loco, and until abrogated, they should, of course, 
 be observed by the practitioners of the districts in question. The 
 power of the justices of any particular district of the Supreme Court to 
 make general rules seems, however, to be taken away, and to be now 
 vested exclusively in the convocation of the judiciary above provided 
 for. This point is expressly decided in re The Bowery, 19 Barb., 588. 
 The effect of a rule of court is confined to questions of practice and reg- 
 ularity. They cannot affect the jurisdictional competency of the court. 
 AlthauseYs. Eadde, 3 Bosw., 410. (434.) ISTor do they avail to control 
 or nei^tralize any positive statutory provision. Vide Martin vs. Kor 
 nouse, 17 How., 146 ; 9 Abb., 370, note. 
 
 The rules of the Court of Appeals are not affected by the provision 
 now under consideration, and the powers of that court in this respect 
 remain without specific restriction. The rules are adverted to hereafter 
 m loco. In cases which were not reached by this provision nor those 
 of the Code, it would seem that the former practice of the Conrt of 
 Errors will still govern. Hastings vs. McKinley, 8 How. 175. 
 
 § 6. Former Practice, how far Existent. 
 
 By sections 468 and 469, above cited under subdivision 3, provision 
 is made, first, that in cases in which redress cannot be had by an action 
 under the present system, the ancient practice may be adopted so far 
 
INTEODUCTOEY CHAPTER. § 6. 13 
 
 as may be necessary to prevent a failure of justice ; and, secondly, that 
 the practice and rules existent in 1848, though abrogated where incon- 
 sistent with the Code, are, where consistent with it, continued in force. 
 There is in the rules, the following special provision on the subject : 
 
 Rule 93. (90.) All actions depending on the first day of July, 1848, may 
 be conducted aacording to the rules of the Supreme Court, adopted in July, 
 1847, so far as the same are applicable. 
 
 In cases where no provision is made by statute or by these rules, the 
 proceedings shall be according to the customary practice, as it has hereto- 
 fore existed in the Court of Chancery, and the Supreme Court, in cases not 
 provided for by statute, or by the rules of this Court. 
 
 In 1849, the first date stood the 12th of April, instead of the 1st of July. 
 
 The letter of the above provisions requires no extended comment. 
 It is clear that, under them, the ancient rules and practice may still be 
 resorted to in those classes of cases, or those branches of the practice in 
 any specific case, as to which the provisions of the Code, or of the 
 present rules, are wholly or partially inefficient to afford relief or di- 
 rection, but in those only ; and equally clear that, in all other instances, 
 the new practice governs, and the old can no longer be resorted to. 
 
 Plain as this distinction is in theory, the exact line of demarcation 
 will often be found some'yhat difficult to draw in practice, especially in 
 the different proceedings after issue joined ; and the instances in which 
 a partial recourse to the principles, and, even in some cases, to the 
 forms of the older system will be requisite, are not infrequent, and' 
 this, not merely in special proceedings, but in ordinary actions, regu- 
 larly commenced and prosecuted under the forms of the Code. 
 
 This branch of the subject will be dealt with in detail hereafter, in 
 connection with each spepific proceeding. 
 
BOOK I. 
 
 OF COURTS OF JUSTICE AND THEIR OFFICERS. 
 
 CHAPTER I. 
 
 COUKTS OF JUSTICE WITHIN" THIS STATE. 
 
 § 7. Statutory Provisions. 
 
 The following list of the tribunals within this state is given in the 
 Code, part I., title I., section 9. 
 
 TITLE I. 
 Of the Courts in General. 
 
 § 9. The following are the courts of justice of this State : 
 
 1. The Court for the trial of impeachments. 
 
 2. The Court of Appeals. 
 
 3. The Supreme Court. / 
 
 4. The Circuit Courts. 
 
 5. The Courts of Oyer and Terminer, 
 
 6. The County Courts. 
 
 7. The Courts of Sessions. 
 
 8. The Courts of Special Sessions. 
 
 9. The Surrogates' Courts. 
 
 10. The Courts of justices of the peace. 
 
 11. The Superior Court of the city of New York. 
 
 12. The Court of Common Pleas for the city and county of New York. 
 
 13. The Mayors' Courts of cities. 
 
 14. The Recorders' Courts of cities. 
 
 15. The Marine Court of the city of New York. 
 
 16. The Justices' Courts in the city of New York. 
 
 17. The Justices' Courts of cities. 
 
 18. The Police Courts. 
 
 In 1848, this aeotion was slightly different, No. 1 was styled the Courts of General Sessions 
 of the Peace. In Nos. 13 and ) 4 the different cities were enumerated. The Justices' Courts 
 
COUETS OF JTJSnCE "WITHIN THIS STATE. § 8. 15 
 
 in New York, No. 16, are stjled "Assistant" Justices' Courts. No. IT in 1848 wag "the 
 Municipal Court of the City of Brooklyn." This tribunal was abolished, and the " City Court of 
 Brooklyn,'' established in its stead, by chapter 125 of 1849, page 170. , It is most singular 
 that, on the amendment of 1849, this tribunal, established by that very session of the legis- 
 lature, is omitted in the list. In No. 18 of 1848 (No. 11 of the present section) the Justices' 
 Courts of cities comprised within its scope, are mentioned by name. 
 
 § 10. These courts shall continue to exercise the jurisdiction now vested 
 in them respectively, except as otherwise prescribed by this act. 
 
 The list given in section 9, ha? never been amended since 1849. It 
 is now, in many respects, incorrect. The following specific errors may 
 be noticed. Two important tribunals since established, i. e., the City 
 Court of Brooklyn, and the Superior Court of Buffalo, are omitted 
 from it altogether. The designation of ISTo. 16 has also since been 
 changed from " Justices' Courts," to " District Courts," in the City of 
 New York. 
 
 It must not be supposed either that, although mentioned in the Code, 
 all the courts enumerated in the above list are necessarily subject to 
 its provisions. Nos. 1, 5, 7, 8, and 18, are in nowise affected by it. The 
 same may be said of No. 9, a tribunal of special jurisdiction, governed 
 exclusively by the Eevised Statutes. 
 
 The practice of Nos. 10, 15, 16, and 17, though in part regulated by' provisions of the Code, 
 depends in a greater measure upon other and independent statutes. This practice is so essen- 
 tially different in its main features from that wMch governs the courts of superior jurisdiction, 
 that its treatment in detail would be incompatible with the scope and objects of the present 
 work. In some few of its features, however, having reference to the limits of the jurisdiction 
 of these tribunals ; to the provisions for removing causes involving the title to real estate into 
 a higher court ; to the -docketing and enforcement of their judgments iu certain cases, and to 
 the exercise, by the County Courts and New York Common Pleas, of appellate jurisdiction, 
 with the necessary preliminaries to such exercise, the subject wiU be hereafter considered. 
 
 § 8. Federal Courts. 
 
 Before passing on to the consideration of the jurisdiction and powers 
 of the different tribunals whose practice is regulated by the Code, the 
 existence of anojher class of tribunals, exercising in some instances an 
 exclusive, and in others a concurrent jurisdiction in certain classes of 
 cases,' seems proper to be adverted to, though in strictness unconnected 
 with the main pui"pose of the work. 
 
 The jurisdiction in question is exercised by the courts of the United 
 States. "Without attempting to give more than the merest sketch of it, 
 it may be defined as threefold. 
 
 1. The original and exclusive, 
 
 2. The concurrent, 
 
 3. The appellate authority possessed by the courts referred to, within 
 the limits of the state sovereignties, and which authorities are exercisa- 
 
16 COURTS OF JUSTICE -WITHIlSr THIS STATE. — § 8. 
 
 ble, tie two former by the District and Circuit Courts, and the latter 
 by the Supreme Court of the United States. 
 
 I. The original and exclusive jurisdiction of the federal tribunals ex- 
 tends to controversies of the following nature : 
 
 1. To cases between two states. 
 
 2. To cases where a foreign ambassador, minister, or consul, or the 
 domestics of the two former, are parties defendants. 
 
 3. To cases in which a state is defendant, save only as regards con- 
 troversies between a state and its own citizens. 
 
 4. To cases arising under the patent or copyright laws, or the rev- 
 enue laws of the United States. 
 
 5. To cases of admiralty or maritime jurisdiction ; and, 
 
 6. To criminal cases arising within the limits of the last-named juris- 
 dicdiction, or cognizable under the authority of the United States. 
 
 The personal privilege under the second division, is in strictness capable 
 of being waived by continued non-assertion, though it is available in. bar 
 of further proceedings in the local tribunal, at any stage of those pro- 
 ceedings. 
 
 II. The concurrent jurisdiction of the federal tribunals may be shortly 
 stated as comprising : 
 
 1. All cases in law or equity, arising under the constitution, laws 
 and treaties of the United States ; or where an alien sues for tort in 
 violation of the law of nations. 
 
 2. Cases wherein foreign ambassadors, consuls, &c., are plaintiffs. 
 
 3. Cases wherein the United States are plaintiffs. 
 
 4. Controversies in which a state is plaintiff, and individuals are de- 
 fendants. 
 
 5. Controversies between a state, defendant, and its own citizens. 
 
 6. Controversies between citizens of different states, or between citi- 
 zens of the same state, claiming lands under grants of different states. 
 
 7. Controversies between a state or the citizens thereof, and a foreign 
 state. 
 
 8. Controversies between citizens and aliens. 
 
 The jurisdiction under classes 3, 6, and 8, is, however, limited to cases 
 where the value of the thing in controversy exceeds five hundred dollars ; 
 the amount of the claim itself, and not of the recovery, beino' the crite- 
 rion of value. Where exercisable, the jurisdiction in cases of this de- 
 scription is so far paramount, that they are removable from the state 
 court to the federal tribunal by authority of the latter, by means of a 
 proceeding analogous to certiorari, the details of which will be adverted 
 to hereafter. 
 
 III. The appellate jurisdiction of the federal tribunals extends to all 
 cases in which any decision shall have been pronounced by the highest 
 
COUETS OS' JUSTICE WITHIN THIS STATE.— § 8. 17 
 
 court of any state, repugnant to the constitution, treaties, or statutes 
 of the United States, or drawing in question any commission issued or 
 authority conferred by the general government. 
 
 In patent and copyright cases the state courts cannot acquire juris- 
 diction, even by consent of the parties. Dudley vs. Mayhew, 3 Oomst., 
 9 ; Tomlinson vs. Battel, 4 Abb., 'iJa'o ; Deming vs. Chapman, 11 How., 
 382. In Woolseyv^. Judd, however (4Duer,<679; 11 How., 49), it was 
 held, by the Superior Court, that this exclusive jurisdiction in copyright 
 cases, does not deprive the state courts of the power to restrain the 
 publication of private letters contrary to the wishes of the writer. But 
 see dissenting opinion of Bosworth, Oh. J., 4 Duer, 596. 
 
 And, in cases of tort committed within the limits of property ceded 
 to, and in possession of the United States ; the jurisdiction is exclusive, 
 and that of the state courts is precluded. Arfrist/rong vs. Foote, 19 How., 
 237; 11 Abb., 384. 
 
 Their jurisdiction does not extend, however, to a controversy, as to 
 towage on a navigable river, within the boundaries of the state. Abbey 
 vs. The Steamboat Robert L. Stevens, 22 How., 78. 
 
 The paramount authority of these courts on questions of commer- 
 cial law is acknowledged by the Superior Court in Stoddard vs. The 
 Long Island Railroad Company, 5 Sandf , 180. 
 
 The implicit obedience which it becomes the state court to render 
 on the reversal of its decision by the Supreme Court of the United 
 States, is as fully admitted by the same tribunal, ia Kanouse vs. Martin, 
 3 Duer, 664. 
 
 When an order has once been made for transfer of a case from the 
 state to the federal courts, under the power above alluded to, it can 
 neither be vacated nor appealed from. Livermore vs. JenJcs, 11 How., 
 479 ; Illius vs. The New York <& New Haven Railroad Company, 
 3 Kern., 597. 
 
 And, in all cases where the courts in question have assumed jurisdic- 
 tion, its acquisition will be presumed, until the contrary be shown by 
 the party seeking to impeach it. Chemung Canal Banh vs. Judson, 4 
 Seld., 254 ; Ruokman vs. Cowell, 1 Comst., 505. 
 
 But that presumption does not deprive the state courts of the power, 
 or release them from the duty of inquiring into the question as to 
 whether that jurisdiction was in fact acquired. Chemuny Canal Bank 
 vs. Judson, supra. 
 
 In cases where, under different suits, the jurisdiction of the federal, 
 and of the state courts has been invoked in substantially the same 
 controversy, the latter can only properly act in subordination to the 
 proceedings of the former, but, where this is compatible, relief of tjiis 
 subordinate nature may be granted. Thompson vs. Van Vechten, 5 
 Duer, 618. If incompatible, as where a double arre&t had taken place, 
 YoL. I.— 2 
 
18 or THE COURT OF APPEALS. — § 9. 
 
 the proceeding in tlie state court will be set aside. Sernandez vs. 
 Camobdi, 4 Duer, 642. In Wing vs. Griffm, 1 E. D. Smith, 162, it 
 was held that the interlocutory action of the federal tribunal was effec 
 tive, so far as to discharge a lien claimed by the plaintiff in that court, 
 even though his suit was afterward dismissed for want of jurisdiction. 
 
 In relation to the possible conflict of jurisdiction of the federal and 
 state courts in matters falling equally within the cognizance of both, 
 see The People v. The Sheriff of Westchester Coimty, 10 L. O., 298; 
 in re Kaine, ibid., 257; in re Eickhoff, 11 L. O., 310. 
 
 Towle V. Forney, 4 Kern., 423, affirming same case, 4 Duer, 164, 
 presentfe a case of jurisdictional conflict between the federal and state 
 tribunals; the latter asserting their privilege to maintain their own de- 
 cision as against that of the former, in a question exclusively depend- 
 ing upon the laws of the state, and not falling within any of those 
 classes of controversy in which the question at issue is regulated by a 
 statute of the United States, and in which, therefore, the authority of 
 a federal decision must necessarily control. 
 
 CHAPTER H. 
 
 OF THE COURT OF APPEALS. 
 
 § 9. Statutory Promsions avd Amendments. 
 
 The jurisdiction of this, the highest of the state tribunals, is thus de- 
 fined by section 11 of the Code : 
 
 § 11. The Court of Appeals shall have exclusive jurisdiction to review 
 upon appeal every actual determination hereafter made at a general term by 
 the Supreme Court, or by the Superior Court of the city of New York, or 
 the Court of Common Pleas for the cityand county of New York, or the 
 Superior Court of the city of Buffalo, in the following oases, and no other :— 
 
 1. In a judgment in an action commenced therein, or brought there from 
 another court ; and upon the appeal from such judgment, to review any in- 
 termediate order mvolvmg the merits, and necessarily affecting the judg- 
 ment. 
 
 2. In an order affecting a substantial right, made in such action, when 
 such order in effect, determines the action, and prevents a judgment from 
 which an appeal might be taken, and when such order grants or refuses a new 
 trial ; but no appeal to the Court of Appeals, from an order granting a new 
 
OF THE COURT OF APPEALS. — § 9. 19 
 
 trial, shall be effectual for any purpose, unless the notice .of appeal contain an 
 assent on the part of the appellant, that if the order be affirmed, judgment 
 absolute shall be rendered against the appellant. Upon every appeal from 
 an order granting a new trial, if the'Court of Appeals shall determine that 
 no error was committed in granting the new trial, they shall render judg- 
 ment absolute upon the right of the appellant ; and after the proceedings 
 are remitted to the court from which the appeal was taken, ap assessment 
 of damages Or other proceedings to render the judgment effectual, may be 
 there had, in cases where such subsequent proceedings are requisite. 
 
 3. In a final order affecting, a substantial right made in a special proceed- 
 ing, or upon a summary application, in an action after judgment. But such 
 appeal shall 'not be allowed in an action originally commenced in a court of a 
 justice of the peace, or in the Marine Court of the city of New York, or in 
 an assistant justice's court of that city, or in a justice's court of any of the 
 cities of this state, unless any such general term shall, by order duly entered, 
 allow such appeal, before the end of the next term after which such judg- 
 ment was entered. The foregoing prohibition shall not extend to actions 
 discontinued before a justice of the peace, and prosecuted in another court, 
 pursuant to sections sixty and sixty-eight of this code. 
 
 This section has undergone oonsiderablo alteration hj the legislature from time to time. 
 In 1848 the revisory powers of this tribunal were confined to the judgments of the Supreme 
 Court, Superior Court, and Court of Common Pleas of New York. The prohibition of an 
 appeal from the lower jurisdictions was positive. 
 In 1849 there was a verbal amendment, but no change of consequence. 
 On the amendment of 1851 the section was remodelled, and power given to take cognizance 
 of appeals from orders, by the insertion of the first portion of subdivision 2, as it now stands 
 down to and inclusive of the words " an appeal might betaken." A subdivision was added, 
 giving an appeal in an order granting a new trial ; and the " Municipal Court of the City 
 of Brooklyn," was stricken out of the prohibitory hst. 
 In 1852, the provision giving an appeal from an order, granting a new trial, was repealed. 
 Pending its operation, a restricted construction was given to it ; .it being held that the re- 
 view granted by it extended to questions of law only and not to questions of fact. Moore v. 
 Westerveli, 1. C. R. (N. S.), 415. 
 
 After its repeal in' 1852, the court in question considered that that amendment deprived it 
 of all jurisdiction over appeals of this nature, though brought previous to and pending at the 
 time of that repeal. Gale v. Wells, 1 How., 191 ; Porterv. Jones, ibid., 192. 
 ■ In those cases, and doubtless in a number of others, appeals so taken were dismissed. Two 
 years after, however, the legislature undertook to provide a remedy, and by chapter 135 of the 
 laws of 1854, p. 317, enacted that in all cases where such appeals had been taken, before the 
 amendment of 1852 took effect as a law, they should be heard and determined by the Court 
 of Appeals, notwithstanding that amendment. 
 
 In 1857, the section was again amended, fixing_ its phraseology as it now stands, with the 
 single exception, that in subdivision 2, an appeal was not given in terms from an order refus- 
 ing a new trial. This addition.was made on the amendment of 1862. 
 
 In addition to the special powers tlius conferred by the Code, the 
 Court of Appeals has also jurisdiction of all cases pending in the late 
 Court of Errors, transferred to it as directed by the Constitution, art. 
 VI., section 25, by the judiciary act, eh. 280 of 1847, art. II., §12. 
 
20 OF THE COUBT OF APPEALS. — § 9. 
 
 By chapter 421 of 1853, p. 820, certain powers of tlie late Court of 
 Chancery, in relation to the enrolment of decrees, are given to the 
 judges of the Court of Appeals, in connection with' this branch of their 
 duties ; and in The Farmers' Loan and Trust Company vs. Carroll, 2 
 Comst., 566 ; 4 How., 211 ; 2 C. K., 138, the powers of the court are 
 asserted as extending to causes in the late Court of Chanc&y, trans- 
 ferred to the Supreme Court, on the abolition of the former jurisdiction. 
 
 § 12. (12.) The Court of Appeals may reverse, affirm, or modify the 
 judgment or order appealed from, in whole or in part, and as to any or all 
 of the parties ; and its judgment shall be remitted to the court below, to be 
 enforced according to law. 
 
 Dates from 1849, on which oooasiou the phraseology of the original section was made 
 fuller and more definite. 
 
 § 13. (13.) There shall be four terms of the Court of Appeals in each year, 
 to be held at the Capitol, in the city of Albany, on the first Tuesday of Janu- 
 ary, the fourth Tuesday of March, the third Tuesday of June, and the last Tues- 
 day of September, and continued for as long a period as the pubHc interests 
 may require. But the judges of said court may, in their discretion, appoint 
 one of said terms in each year to be held in the city of New York. Addi- 
 tional terms shall be appointed and held at the same place by the court, 
 when the public interest requires it. The court may, by general rules, provide 
 what causes shall have a preference on the calendar. On a second, and 
 each subsequent appeal to the Court of Appeals, or when an appeal has once 
 been dismissed for defect or irregularity, the cause shall be placed on the 
 calendar as of the time of filing the first appeal. 
 
 Continual changes have been made in this section. 
 
 The Code of 1848 provided for six general terms. 
 
 In 1849 the number was reduced to five, both Toj amendment in the section itself, and 
 also previously by chapter 333, of the Laws of that year, p. 434: 
 
 During this period, the sittings of the , court were migratory, under section 9, art. II., of 
 the judiciary act. 
 
 In 1851, this system was changed, the sessions of the court fixed permanently at Albany 
 and four terms established, as now. The only difference was in the period at which the 
 fourth term was held, which was altered as it now statids, in 1852. 
 
 The last clause of the present section was added on the amendment of 1858, and changed 
 in its phraseology in 1862; the power to appoint a session in the city of New York, being 
 first conferred in 1859. 
 
 By chapter 167, of 1860, p. 270, a statutory preference is given to 
 appeals in which executors or administrators are sole plaintifts or sole 
 defendants, or which prevent the issue of letters testamentary, or of 
 general administration. 
 
 § 14. (14.) The concurrence of five judges is necessary to pronounce a 
 judgment. If five do not concur, the case must be reheard. But no more 
 
OF THE COtTBT OF APPEALS. — § 10. 21 
 
 than two reheaxings shall be had, and if, on the second rehearing, five 
 judges do not concur, the judgment shall be affirmed. 
 
 In 1848, a rehearing was absolutely provided for. 
 
 In 1849, the judgment or order wag to be affirmed, unless a rehearing were ordered. In 
 1851, the section was fixed as it now stands. 
 The two following were first inserted in 1849. 
 
 § 15. If, at a term of the Court of Appeals, proper and convenient rooms, 
 both for the consultation of the judges, and the holding of the court, with 
 furniture, attendants, fuel, lights, and stationery, suitable and sufficient for 
 the transaction of its business, be not provided for it, in the place where hj 
 law the* court may be held ; th6 court may order the sheriff of the county to 
 make such provision, and the expense incurred by him in carrying the order 
 into effect, shall be a county charge. 
 
 § 16. The Court of Appeals may be held in other buildings than those 
 designated by law as places for holding courts, and at a different place in 
 the same city fi-om that at which it is appointed to be held. Any one or 
 more of the judges may adjourn the court, with the like effect as if all were 
 present. 
 
 This section originally provided for adjournments of the court from place to place. On the 
 amendment of 1851, this part was stricken out, being no longer necessary. 
 
 § 10. Jurisdiction and Powers. 
 
 This court is composed of eight judges, four elected. by the electors 
 of the state for terms of eight years, so classified as that one shall be elected 
 every second year, and four selected from the class of justices of the 
 Supreme Court having the shortest term to serve. Constitution, art. 
 VI., § 2. ■ 
 
 Provision is by the same section directed to be made by law in rela- 
 tion to the carrying out of this organization ; and by another section of 
 the same article, different other details in relation to the general powers 
 and duties of the judges of this and of the Supreme Court are regulated, 
 or directed to be regulated by law. For these details see the next 
 chapter. 
 
 The clerk of this tribunal is likewise an elective officer, to be chosen 
 by the electors of the state. Vide section 19 of the same article. 
 
 The justices selected from the Supreme Court are, under section 6, 
 article 1 of the judiciary act, chapter 280 of 1847, to be taken alter- 
 nately from the 1st, 3d, 5th, and Yth, and the 2d, ith, 6th, and 8th ju- 
 dicial districts, which arrangement has since been observed. 
 
 JBy the same section it is provided that six judges of the Court of 
 Appeals shall be necessary to constitute a quoi'um for holding any term 
 of said court. 
 The constitutionality of this provision was doubted by Bronson and 
 
22 OP THE COTJKT OF APPEALS. § 10. 
 
 Jewett, JJ., in Oakley vs. Aspmwall, 3 Comst., 547, 9 L. O., 45, but 
 the majority decided that the court might be held by less than the eight 
 judges. On failure of a quorum, the attending judges may ad-joura 
 from time to time till one shall attend. Ch. 470 of 1847, § 2. 
 
 By section 5 of the judiciary act, chapter 280 of 1847, it is provided 
 that the judge elected by the electors of the state who shall have the 
 shortest time to serve, shall be the chief justice of the court. 
 
 In case of any vacancy occurring in the office of a judge before the 
 expiration of his term, that vacancy may be filled by appointment by 
 the governor of the state, until supplied at the next general election of 
 judges, -vihen it is to be filled by election for the residue of th% unex- 
 pired term. Constitution, art. YI., § 13. 
 
 By chapter 41 of the Laws of 1850, p. 45, further provision is made 
 that, whenever any of the judges of the Court of Appeals, being a jus- 
 tice of the Supreme Court, shall be absent or cannot attend, the gov- 
 ernor may designate another justice of the same class to serve in his 
 stead, until he or some one duly qualified to take his place shall attend 
 
 By section 2 of the same statute it is also provided that the last clause 
 of section 2, title 1 , chapter 3, of the third part of the Eevised Statutes 
 shall not apply to any judge of the Court of Appeals. The clause so 
 excepted runs in the. following words, " E"or can any judge decide or 
 take part in the decision of any question which shall have been argued 
 in the court when he was not present, and sitting therein as a judge." 
 
 The disqualifications of interest, consanguinity, or affinity to either of 
 the parties, imposed by the prior portion of that section, subsist, however, 
 in full force ; nor is the objection capable of waiver even by the consent 
 of the parties. This is so held, but by a majority only of the judges 
 taking part in the decision, in the much discussed case of Oakley vs. As- 
 pmwall, 3 Comst., 547, 9 L. 0., 45. See the subject of general dis- 
 qualification as concerns judges in general, more fully treated in the 
 next chapter. It has been held by the Court of Appeals that one of its 
 judges who has taken part, as a member of the court below, in a de- 
 cision sought to be reviewed, is not thereby disqualified, but that it is, 
 on the contrary, his right and his duty to take part in the determina- 
 tion on that decision in, the court above. Pierce vs. Delamater, 1 Comst., 
 17. This decision wholly ignores section 3, title I., chapter III., part III., 
 of the Eevised Statutes, 2 R. S., 275, expressly providing to the con- 
 trary, on the ground that, being ancillary to the constitution of 1821, 
 this provision was virtually repealed by its abrogation on the substitu- 
 tion of that of 1846. 
 
 The principle here laid down, would seem, at first sight, to be some- 
 what in conflict with that in Oakley vs. Aspinwall, 3 Comst., 547, above 
 cited. A distinction is, however, drawn by Hurlbut, J. (p. 551-553), 
 
OF THE COURT OF APPEALS. — § 10. 23 
 
 that the provisions of section 2 of the title in question, being declara- 
 tory ,of universal principles of law, are not within the same category 
 as those of section 3, which are not called for by any inherent reason 
 or fitness ; and that, once established, nothing short of an express dec- 
 laration of the sovereign will ought to be deemed sufficient to abrogate 
 the former. The circumstance that a justice of the Supreme Court is 
 serving, by selection, as a judge of the Court of Appeals, does not dis- 
 qualify him from performing his ordinary duties as a member of the 
 lower tribunal. McGarron vs. The People, 3 Kern., 74. 
 
 When judgment has been pronounced by this tribunal, in open court, 
 without any public expression of dissent in any of its members, that 
 judgment is conclusive, and cannot be inquired into on any allegation, 
 as what may have taken place among those members, in the confer- 
 ence chamber or out of court. Mason vs. Jones, 3 Comst., 375 ; 5 How., 
 118 : 3 C. E.. 164; OaUey vs. Asj>mwaU, Hid., 547 (556, 557) ; 9 L. O., 
 45. Nor can any allegations of that nature be taken into consideration 
 by the inferior tribunal whose decision has been reviewed, when the 
 question comes on afresh under the remittitur. OaTdey vs. AspinwcUl, 
 10 L. O., 79 ; 1 Duer, 1. 
 
 Where two or more points' are discussed in the opinions delivered, 
 and the determination of either in the manner there indicated would 
 authorize the judgment pronounced ; the judges concurring in the judg- 
 ment must be regarded as concurring in those opinions upon the points 
 discussed ; unless some dissent is expressed, or the circumstances neces- 
 sarily lead to a different concliision. James vs. Patten, 2 Seld., 9. 
 
 And, on a second appeal, where the question presented was identical 
 with that formerly decided,- the court held it would not depart from its 
 former adjudication, though, on the former hearing, the judges then sit- 
 ting were not unanimous in making that decision, and the reasoning of 
 those who concurred was not in harmony. Oakley vs. Aspinwall, 3 
 Kern., 500 ; following same case, 4 Comst., 513. 
 
 Where judgment on demurrer had been reversed, on appeal to this 
 court, the decision was held by the court below to be conclusive on all 
 the grounds of demurrer takcD, though only one of those grounds was 
 discussed in the opinion delivered on the reversal. Mew Yorh and 
 New Hamen Rail/road Compa/ny vs. Schuyler, 8 Abb., 239, following 
 same case, 17 K Y., 592 ; 7 Abb., 41. 
 
 In Green vs. Cla/rh, 13 Barb., 57, it is also laid down that a judg- 
 ment of affirmance in an appellate court should, in the absence of evi- 
 dence of dissent, be held an affirmance, not only of the judgment, but 
 of the precise proposition decided by the court below. 
 
 In Nicholson vs. Leamtt, 2 Seld., 521, it seems to be held that, where 
 a positive opinion is pronounced by one of the members of the courts 
 
24 OF THE COTJKT OF APPEALS. § 10. 
 
 without dissent by the. others, a point discussed in that opinion is to 
 be considered as established, though no actual decision was made by 
 the court, none being necessary for determination of the suit; ove- 
 rruling the views of the court below to the contrary, in 4 Sandf., 252 
 (294). 
 
 The deduction of course follows from the above decision, and its 
 general donstitution, that a deliberate adjudication of the court now in 
 question, or of the late Court of Errors, is, as a general rule, conclusive as 
 a precedent. It seems scarcely necessary to cite authorities on this point, 
 but the following may be referred to : Palmer vs. Lawrence, 1 Seld., 
 389; Buell vs. The Trustees of Lochport, 4 Seld., 55 ; Towle vs. For- 
 ney, 4 Kern., 423; Oakley vs. Aspinwall, 1 Duer, 1 ; 10 L. 0., Y9; 
 Sohufeldt vs.; Ahemethy, 2 Duer, 533 ; Wall vs. The Fast River Govv- 
 pany, 3 Duer, 264; Beirne vs. JDord, 4 Duer, 69 ; I^ew York and New 
 Ha/ven Railroad Company vs. Schuyler, supra; Van Winkle vs. Corv- 
 stantine, 6 Seld., 422; Martin vs. Kanouse, 17 How., 146; 9 Abb., 
 370, note. 
 
 An affirmance by default, however, settles nothing. Watson vs. Hus- 
 son, 1 Duer, 242. A reversal similarly obtained, is, of course, similarly 
 devoid of ulterior authority. The same principle holds good as to an 
 affirmance, for want of the concurrence of five judges, after two re- 
 hearings, under section 14. See an instance in Moss vs. AveriU, 6 Seld., 
 449. Although, as regards that particular case, the judgment must be 
 affirmed, the questions of law raised by it remain open. See Bridge 
 vs. Johnson, 5 Wend., 372. 
 
 To this class the rule of sta/re decisis does not apply, nor, though neces 
 sarily dominant, does that rale seem entirely inflexible as to others. 
 The right and duty of the court to examine into the principles of its 
 previous determination, and, when clearly shown to be erroneous, to 
 overrule them, is distinctly asserted and acted upon by a majority of 
 the judges in Leamitt vs. Blatchfm-d, 17 IST. Y., 521. See also Curtis vs. 
 Leamtt, 15 K Y., 9; Church vs. Brown, 21 IST. Y., 315 (334); Oros- 
 venor vs. Atlantic Fire Insu/rance Company of Brooklyn, 1 7 IS". Y. 391 
 (400) ; Buffalo Steam-Engine Works vs. Sun Mutual Insurance Com- 
 pany, 17 ]Sr. Y., 401. See also conflict of adjudication between Rum- 
 sey vs. The People, 19 JST. Y, 41, and Banning vs. Carpenter, 20 IST. Y., 
 447. See likewise comments upon this practice, in Wilscm vs. lynt, 
 30 Barb., 124 (131). Compare, likewise, Brewster vs. Silence, 4 Seld., 
 207, with Olencove Mutual Inswramce Company vs. Ha/rrold 20 Barb. 
 298, and Chv/rch vs. Brown, above cited. 
 
 It is obvious, however, that this right is one of the most delicate na- 
 ture, and only to be exercised in extreme cases. In the following, the 
 rule of sta/re decisis is strictly maintained. Van Winkle vs. Oon^tan- 
 
or THE COTJET OF APPEALS.^§ 10. 25 
 
 tine, 6 Seld., 423 ; Bell vs. McElwain, 18 How., 150 ; White vs. Fos- 
 ter, 18 How., 151. 
 
 "Where, too, the opinions in any specific case leave it wholly uncer- 
 tain what particular point or principle of law was decided by the court, 
 or what a majority of the members thought upon any particular ques- 
 tion, the decision will be considered as of no authority. Vide Wells vs. 
 The Steam Namgation Company, 2 Oomst., 208 ; wholly disregarding 
 the decision of the Court of Errors in Alexander vs. Greene, 1 Hill, 
 533. 
 
 So also, where, on a second trial in the court below, material evidence 
 was given on a new and controlling element in the case, not brought 
 before the appellate tribunal on the previous occasion, its previous re- 
 versal was disregarded, and its former judgment reiterated by that 
 court ; and, on appeal, that action was affirmed. Bowen vs. Newell, 2 
 Duer, 584 ; affirmed, 3 Kern., 290 ; disregarding same case, 4 Seld., 
 190. See same principle asserted in Wright vs. Douglass, 10 Barb., 
 97 ; but that particular decision is a second time reversed upon general 
 considerations, 3 Seld., 564. 
 
 And where, by the report of an adjudged case, it appeared that a 
 poin^ essential to the decision rendered, was not taken or inquired into 
 at all by the court above, the court below considered itself at liberty to 
 disregard the decision as authority upon that specific question. Moloney 
 vs. Dows, 8 Abb., 316. See, likewise, Regiia vs. Holmes, 19 How., 
 430. 
 
 The power of this court, and of the Federal tribunals, to inquire mu- 
 tually into each other's jurisdiction, though such jurisdiction is, in the 
 absence of proofs to the contrary, to be presumed, is laid down in The 
 Chemung Ccmal Banh vs. Judson, 4 Seld., 254 ; and its rights as the 
 highest court in the state, to be bound by state decisions only, in mat- 
 ters not within the statutory jurisdiction of those tribunals, is main-- 
 tained in Towle vs. Fa/rney, 4 Kern., 423, as before noticed. 
 
 The prohibition from entertaining appeals in cases commenced in a 
 justice's court, without special leave of the appellate tribunal below, 
 extends to cases removed from a district court in JNew York, into the 
 Court of Common Pleas of that city, under the special statutory power 
 conferred by chapter 344, of 1857. Smith vs. White, 23, N. T.', 572. , 
 
 Since the enactment of chapter 174, of 1859, a judgment in mandamus 
 is reviewable in this court on ordinary appeal. People vs. Chv/rch, 20 
 N. T., 529, Prior to that enactment, the review could only be had on 
 a writ of error, which, for that purpose, was held to be still authorized. 
 Becher vs. The People, 18 N. Y., 487. 
 
26 OF THE STJPEEME COUET. — § 11. 
 
 CHAPTEE III. 
 
 OF THE SUPREME OOUET. 
 
 § 11. General Constitution, and Powers of Judges. 
 
 The scope of this tribunal is coextensive with the limits of the state, 
 embracing every species of relief, and every variety of jurisdiction, ori- 
 ginal and revisory. Its common law authority dates from the original 
 establishment of courts of justice in the former colony of New York ; 
 its cognizance of equitable cases, from the Constitution of 1846. The 
 powers exercised by it have never on any occasion been made the sub- 
 ject of constitutional definition, but have devolved upon it without re- 
 striction — ^its jurisdiction at common law being that which heretofore 
 belonged to the Supreme Court of this colony, being identical, or nearly 
 so, with that exercised by the courts of King's Bench, Common Pleas, 
 and Exchequer, in England ; and, in equity, that by the Court of Chan- 
 cery, in the same country; subject, however, in either case, to the 
 exceptions, additions, and limitations, created and imposed by the con- 
 Btitiition and laws of this state. Yide 2 E.. S., 196, § 1 ; 2 R. S., 
 173, § 36. See, likewise, definition in Kanouse- vs. Martin, 3 Sandf., 
 653 ; and Graham's Practice, p. 23. 
 
 The criminal jurisdiction exercised by the justices of this court, when 
 sitting in oyer and terminer, analogous in its nature to that of the 
 common law tribunals, before referred to, falls out of the scope of this 
 work. 
 
 ■ By the Constitution of 1846, art. YI., sec. 3, it is simply provided : 
 " There shall be a Supreme Court having general jurisdiction in law 
 and equity ;" the former powers of the legislature to regulate the juris- 
 diction and proceedings in both being reserved by the next section. By 
 other provisions contained in article XIV. of the same measure, the 
 whole of the former system is swept away, and the old Supreme Court 
 and Court of Chancery abolished ; the transfer of jurisdiction from the 
 ancient to the substituted judiciary taking place as from the first 
 Monday of July, 1847. Tide art. XIY., sec. 5. See, as to the retro- 
 spective effect of the provision, Suydam v. Holden, Seld., notes, Oct. 
 7th, 1853, p. 16. 
 
 The following definition of the jurisdiction, then conferred, is con- 
 tained in section 16 of the judiciary act : 
 
 "The Supreme Court, organized by this act, shall possess the same powers 
 
OF THE STJPEEME COXJET. — § 11. 27 
 
 and exercise the same jurisdiction as is now possessed and exercised by the 
 present Supreme Court and Court of Chancery ; and the justices of said 
 court shall possess the powers and exercise the jurisdiction now possessed 
 and exercised by the justices of the present Supreme Court, chancellor, vice- 
 chancellors, and circuit judges, so far as the powers and jurisdiction of said 
 courts and officers shall be consistent with the present constitution and the 
 provisions of this act. And all laws relating to the present Supreme Court 
 and Court of Chancery, or any court held by any vice-chancellor, and the 
 jurisdiction, powers, and duties of said courts, the proceedings therein, and 
 the officers thereof, and their powers and duties, shall be applicable to the 
 Supreme Court organized by this act, the powers and duties thereof, the 
 proceedings therein, and the officers thereof, their powers and duties, so far 
 as the same can be so applied and are consistent with the constitution and 
 the provisions of this act." 
 
 See likewise as to transfer of any special powers of vice-chancellors or 
 I'udges of the old Supreme Court, the farther statute ch. 30, of 1849, p. 
 27 ; and generally as to the effect of the section above cited, Mason vs. 
 Jones, 1 C. E. (E". S.), 335 ; Ga/roie vs. Shddon, 3 Barb., 232 ; Wyatt 
 vs. Benson, 23 Barb., 32Y ; and Oriffith vs. Merritt, 19 1^. T., 629. 
 
 He two next sections of the judiciary act provide as to revisory 
 jurisdiction of the new court, to be exercised by writ of error or certio- 
 rari at coinmon law, or appeal in chancery, being the same as that 
 exercised by the older tribunals. The whole system of appeals has 
 since been remodelled by the Code, the ancient forms, by way of 
 writ of error, being abolished. The proceeding hj cerUorari\&, in cer- 
 tain cases, still existent. Both subjects will be noticed in detail here- 
 after. 
 
 The revisory juiisdiction thus exercised, is shortly defined by Gra- 
 ham, p. 23, as " a revisory power over every court of common law or 
 statutory jnrisdictiou in the state, excepting only the court for correc- 
 tion of errors." This definition is still substantially true, save only 
 that the " Court of Appeals" should be substituted in the last branch of 
 the sentence ; and that, as regards the New York Superior Court, and 
 Court of Common Pleas, and the Superior Court of Buffalo, this re- 
 visory power, so far as it was heretofore exercised by appeal or writ of 
 error to this court, has been abolished. 
 
 In addition to the general jurisdiction, original and revisory, above 
 referred to, tbis court is also invested with the ancient common law 
 powers of restraining or enforcing the exercise of authority on the 
 part of inferior courts or by public officers, by way of mandamus or 
 prohibition. It is likewise the jnrisdietion, especially charged with the 
 exercise, or with supervision over the exercise by its inferiors, of the 
 numerous , statutory authorities, of a g^wasi-judicial nature, exercisable 
 
28 OF THE SUPREME COUET: § 11. 
 
 independent of the ordinary forms of an action by way of special pro- 
 ceeding. 
 
 Ey other sections of article YI., of the Constitution, various further 
 provisions are made, ha\'ing reference to the justices of the court. 
 Under section 4, the state is to be divided into eight judicial districts, 
 of which the city of New York is to be one, with power to reorganize 
 those districts in certain cases (§ 16). The number of justices to each 
 district is to be four, with power to increase that number in the city of 
 ISTew York, which power has been exercised by the addition of a fifth 
 justice, in that district, by chapter 374 of Laws of 1852, section 8, p. 
 592 ; those justices are to be elected for terms of eight years, and to be 
 so classified as that one of the justices of each district shall go out at 
 the end of every two years (§ 4), this classification to be provided for 
 by law (§ 9). Under section 6 provisions may be made by law for 
 designating the justices who are to preside at the general terms in the 
 different districts, and it is. also provided that such general terms may 
 be held by three justices or more, of whom the justice so designated is 
 always to be one; general powers of holding all other courts being given 
 to the other justices, exercisable in any county. 
 
 Further provisions are made by the same article, having common 
 reference to the justices of this court and the judges of the Court of 
 Appeals. Their compensation is to be established by law; and is not 
 to be increased or diminished during their continuance in office (§ Y). 
 See this rule rigorously applied in The People vs. Haws, 32 Barb., 207 ; 
 20 How., 29 ; 11 Abb., 261. Such judges are not to hold, and are ineligi- 
 ble for any other oiiice or public trust, nor can they exercise any power 
 of appointment to public office (§ 8). The times of holding their terms 
 are to be provided for by law (§ 9 ). Both judges and justices are 
 made removable by concurrent resolution of both houses of the legis- 
 lature (§ 11). Both are to be elected ; the judges of the Coiirt of Ap- 
 peals by the electors of the state, the justices of the Supreme Court 
 by the electors of the several judicial districts, at such times as may 
 be prescribed by law (§ 12). Any vacancy in either oifice may, from 
 time to time, be filled by appointment by the governor until it shall 
 be supplied at the next general election, when it is to be filled by elec- 
 tion for the residue of the unexpired term (§ 18). In relation to the 
 governor's powers in this respect, and the duration of the appointment 
 when made, vide People vs. Cowles, 3 Kern., 350. None are to receive 
 for their own use any fees or perquisites of office (§ 20), which last 
 prohibition is common to all judicial officers, except justices of the 
 peace. 
 
 The provisions of the Constitution above refei-red to, which required 
 further legislative action, were duly carried, out in the ensuing session. 
 
OF THE SirPKEME COUBT. — § 11. 29 
 
 By chapter 240 of the Laws of 1847, the state was, as directed, divid- 
 ed into eight judicial districts, consisting as follows : 
 
 The first, of the city and county of New York. 
 
 The second, of the counties of Eichmond, Suffolk, Queen's, King's, 
 Westchester, Orange, Eockland, Putnam, and Dutchess. 
 
 The third, of the counties of Columbia, Sullivan, Ulster, Greene, Al- 
 bany, Schoharie, and Eensselaer. 
 
 The fourth, of the counties of "Warren, Saratoga, "Washington, Essex, 
 ■Franklin, St. Lawrence, Clinton, Montgomery, Hamilton, Fiilton, and 
 Schenectady. For certain purposes, Fulton and Hamilton are treated 
 as one county. Vide Code, § 20. See also, chapter 95, of 1860, p. 
 168. 
 
 The fifth, of the counties of Onondaga, Oneida, Oswego, Herkimer, 
 Jefferson, and Lewis. 
 
 The sixth, of the counties of Otsego, Delaware, Madison, Chenango, 
 Broome, Tioga, Chemung, Tompkins, and Cortlandt. 
 
 A new county (Schuyler), has been created by the legislature, by 
 chapter 386, of 1854, p. 913, partly out of counties comprised in this, 
 and partly out of others forming portions of the seventh district. On 
 this latter ground, the constitutionality of the law is denied, in Zan- 
 ning vs. Carpenter, 20 N. T., 447. It had been previously recognized, 
 in JRamsey vs. The People, 19 N. T., 41. 
 
 The seventh, consists of the counties of Livingston, "Wayne, Seneca, 
 Y"ates, Ontario, Steuben, Monroe, and Cayuga. 
 
 The eighth, of the counties of Erie, Chatauque, Cattaraugus, Orleans, 
 Niagara, Genesee, Alleghany, and "Wyoming. 
 
 The election of the different judicial ofiicers is regulated by chapter 
 276, of the Laws of the same year. 
 
 By the judiciary act, chapter 280, of 1847, the classification of the 
 judges and justices is provided for, and detailed directions given with 
 reference to the holding of courts by them ; and the designation of the 
 justices to preside at general term, as also directed by the Constitution. 
 
 Those portions of that statute which provide as to the holding of 
 terms, &c., are repealed by the Code. The section (§ 15), which regu- 
 lates the presidency at general terms, was again amended by chapter 
 170, of the laws of 1848, and, as amended, runs as follows : 
 
 § 16. The justice of the Supreme Court, in each judicial district, hav- 
 ing the shortest time to serve, and who is not a judge of the Court of 
 Appeals (nor appointed or elected to fill a vacancy in the first class), shall 
 be a presiding justice in the Supreme Court ; and in case of the death, ab- 
 sence, 9r inability of the presiding justice, appointed to hold any general 
 term of the Supreme Court, any three justices convened to hold such term^ 
 may designate one of their number to preside at such general term. 
 
30 OF THE SUPEEME COURT. — § 11. 
 
 N. B.— That portion of the section which is included between parentheses, is now obsolete. 
 This designation, when once made, extends to the whole term, if deemed expedient, during 
 which the authority of the designated judge will continue, and wiU not be defeated by the re- 
 turn of the regular presiding justice to the district before its close. Peopk vs. Hicks, 1 5 Barb., 
 153. 
 
 By sections 81 and 82, of the same measure, the following general 
 restrictions are imposed upon the exercise of judiciary powers, by, 
 amongst others, the officers in question : 
 
 § 81. No judge of any court shall have a voice in the decision of any cause 
 in which he has been counsel, attorney, or sohcitor, or in the subject-matter 
 of which he is interested. 
 
 § 82. No judge of the Court of Appeals, or justice of the Supreme Court, 
 shall practise as an attorney, solicitor, or counsellor, in any court of this 
 State. 
 
 To these may be added the following, imposed by the amended ju- 
 diciary act, chapter 470, of the laws of 1847, section 52 : 
 
 § 52. No partner or clerk of any judge, or officer, shall practise before 
 him, as attorney, sohcitor, or counsel, in any cause or proceeding whatever, 
 or be employed in any suit or proceeding which shall originate before such 
 judge, or officer; nor shall any judge, or officer, act as attorney, solicitor, or 
 counsellor, in any suit or proceeding which shall have been before liiifl. in 
 his official character. 
 
 In addition to the above, the justices of the Supreme Court are liable 
 to the general disqualification, imposed by title I., chapter III., of the 
 3d part of the Kevised Statutes, 2 R. S., 275. 
 
 These provisions run as follows ; 
 
 § 2. No judge of any court can sit as such, in any cause to which he is 
 a party, or in which he is interested, or in which he would be excluded from 
 being a juror, by reason of consanguinity or affinity to either of the parties ; 
 nor can any judge decide Or take part in the decision of any question which 
 shall have been argued in the court, when he was not present or sitting as 
 judge. 
 
 N. B. — The first part of this section is common to all courts. The latter portion does not 
 affect the Court of Appeals. See last chapter. By chapter 15 of 1850, p. 20, a special power 
 IS given to remove any cause in which the justices in the district in which, it is pending, or 
 any of them, are thus disqualified, into any adjoining district. 
 
 The prohibition against a judge taking part in the decision of a ques- 
 tion, at the argument of which he was not present, does not disqualify 
 him from sitting with two others who heard it, to constitute a court, when 
 the decision is pronounced ; and that decision, he taking no part in it, 
 will be valid. A consultation between the three judges, who actually 
 heard the- argument, will be presumed. Corning vs. Slosson, 16 N. Y., 
 294. 
 
OF THE SUPREME COUET. — § 11. 31 
 
 The disqualification of consanguinity has been noticed in detail in 
 the previous chapter, and the decision of Oakley vs. Aspinwall, re- 
 ferred to. In Place vs. The Butternuts Woollen and Cotton Manufac- 
 turing^ CompoAiy, 28 Barb., 503, it was even held to extend so far 
 as to incapacitate a justice whose relation was a stockholder in the 
 company there in question. There seems, however, some reason to 
 doubt -whether this conclusion is not carried too far. See dissenting 
 opinion of Balcom, J. 
 
 § 3. No judge of any appellate court, or of any court to which a writ of 
 certiorari or of error shall be returnable, shall decide or take part in the de- 
 cision of any cause or matter which shall have been determined by him, 
 when sitting as judge of any other court. 
 
 N.B. — See doubts thrown upon the constitutionality of this provision by the Court of 
 Appeals, as noticed in the previous chapter. 
 
 § 4. No judge can practise as solicitor, counsellor, or attorney in the 
 court of which he is a judge, except in those Suits in which he shall be a 
 party, or in the subject-matter of which he shall be interested. 
 
 § 5. No judge shall have a partner practising in the court of which he is 
 a judge ; nor shall any judge be directly or iadirectly interested in the costs 
 of any suit that shall be brought in the court of which he is a judge, except 
 those suits in which he shall be a party or interested as above provided. 
 
 By chapter 272, of 1841, section 1, 3 E. S., 3d edition, 372, the fol- 
 lowing further restriction is added. 
 
 No judge shall directly or indirectly take any part in the decision of any 
 cause or question which shall be brought or defended in the court of which 
 he is a"judge, by any person acting as an attorney or counsellor, with whom 
 he shall be interested or connected as a partner in any other court. 
 
 And lastly, by 2 B. S., 275, section 6, any judge is prohibited from 
 receiving fees or other compensation for advice in matters pending, 
 or which he has reason to believe may be pending before him, or for 
 drafting papers in such cases. 
 
 The fact that one of the justices of the court is, for the time being, 
 serving as a judge of the Court of Appeals by selection, does not affect 
 his authority, to perform his ordinary duties, as such justice. McGa/rron 
 vs. The People^ 3 Eem., 74. 
 
 In the Supreme Court, being a court of general jurisdiction, jurisdic- 
 tion will always be presumed tiU the contrary appears. Wright v. Poiog- 
 lass, 10 Barb., 97. See also to the same effect Bumstea'd v. Read, 31 
 Barb., 661, drawing the distinction between courts of general and those 
 of special jurisdiction, as regards the necessity of specific averments in 
 the latter case, and the impossibility of jurisdiction being conferred by 
 mere consent in &aj. 
 
32 . OF THE SUPREME COUET. § 11. 
 
 As between this tribunal and another of co-ordinate jurisdiction, the 
 Coui-t in which the controversy is first raised is that which acquires ju- 
 risdiction, and, if a suit be subsequently .commenced in another for the 
 same purpose, proceedings should be stayed. McOa/rthy v. Peake, 18 
 How., 138; 9 Abb., 164. 
 
 The impropriety of allowing proceedings to be instituted in one judi- 
 cial district, in relation to a controversy already pending in another, is 
 strongly insisted on, and an application of.that nature refused in Whit- 
 ney vs. Stevens, 16 How., 369. 
 
 The present being a continuation of the former Supreme Court and 
 Court of Chancery, it will in all cases 'Consider the decisions of those 
 tribunals as binding as its own previous adjudications. Spicer vs. Ifor- 
 ton, 13 Barb., 642 ; Zovett vs. The German Reformed Church, 12 
 Barb., 67. "Whether it acts through the special or general term-, its 
 powers are the same, and the decision is a decision of the Supreme Court. 
 Mason vs. Jones, 1 C. R. (IST. S.), 335 ; Tracy y^. Talmadge, 1 Abb., 460; 
 Ayres vs. Covell, 9 How., 573 ; Anon.ys,. Anon., 10 How., 353. 
 
 Although possessing all the powers, and exercising all the functions 
 both of the former Supreme Court and also of the Court of Chancery, 
 this tribunal has not acquired, by the blending of both systems, any 
 powers not previously possessed by either of the former tribunals. And 
 in exercising a statutory power, it is confined by the limits of that power 
 as conferred. By changing the form of application from a petition to a 
 complaint, it cannot alter its essential qualities, or enable the submission 
 of controversies or the bringing of parties before the com-t, on subjects 
 foreign to the proceeding as authorized. Onderdonh vs. Mott, 34 Barb., 
 106. 
 
 See also as to this last point of the limited powers of the court in that 
 class of cases, and its incompetency to exercise general jurisdiction, 
 The People vs. Porter, 1 Duer, 709 ; The People vs. Wilcox, 22 Barb., 
 178; Wyatt vs. Benson, 23 Barb., 327. But, though so incompetent, 
 relief may in certain cases be obtained from it under the same circum- 
 stances, through the instrumentality of a petition addressed to the Court 
 in Equity. People vs. Wilcox, stipra. And, in proceedings under a 
 statute of a general and public nature, the court acts as one of general 
 jurisdiction, and not as exercising a special statutory power. Pangs 
 vs. Puchimfield, 18, JST. Y., 592. As to its powers and duties, with refer- 
 ence to questions as to the ponstitutionality or unconstitutionality of any 
 act of the legislature, vide Clarke vs. TJie City of Rochester, 5 Abb. 107. 
 
 By virtue of their general powers and control over the suitors within 
 their jurisdiction, this court and others of similar authority are compe- 
 tent to entertain a controversy and make a decree affecting lands in 
 another state. Williams vs. Ayrault, 31 Barb., 364. 
 
OF THE SUPREME COUET. — § 11. 33 
 
 But not so in actions by or against a foreign corporation, whieli are 
 regulated by special statute. In these, the cause or subject of action 
 must have arisen, or sorne property to be acted upon mast be situated 
 within the jurisdiction. Cumberland Goal and Iron Company vs. Hoff- 
 man Steam, Coal Company, 30 How., 62. And even thefa'ct that prop- 
 erty of such a corporation, defendant, has been attached in such a suit, 
 will not avail, where the plaintiff also is non-resident. Campbell vs. 
 Proprietors of Champlain and St. Lawrence Railroad, 18 How., 412. 
 See likewise Whitehead vs. Buffalo and Lake Huron Railway Com- 
 pany, 18 How., 218. 
 
 The order of a judicial officer, in a case of which he has jurisdiction, fully 
 protects all parties acting under it, and the judicial officer himself, 
 though, in making it, he may have erred in the exercise of his discretion. 
 Landt vs. Hilts, 19 Barb., 283. 
 
 By the Revised Statutes, 2 E. S., 1T3, section 37, it was provided 
 as follows: 
 
 " The Court of Chancery shall dismiss every suit concerning property, 
 where the matter in dispute, exclusive of costs, does not exceed the value of 
 $100, with costs to the defendant." 
 
 By the amendment of 1862, section 39, this section is wholly repealed, 
 a previous provision being made to the same effect by the amendment 
 in section 274, as to proceedings to enforce a judgment against the 
 estate of ?kfeme covert. 
 
 This puts an end to the previous controversy on the subject. The 
 proposition that this ouster of jurisdiction still continued, was main- 
 tained in 'Shephard vs. Walher, 7 How., 46 ; Marsh vs. Benson, 19 
 How., 415 ; 11 Abb., 241 ; and in the dissenting opinion of Bosworth, 
 J., in Woolsey vs. Judd, 4 Duer, 596. 
 
 The converse, i. e., that imder the Code there is no limitation what- 
 ever on the jurisdiction of the court, and that this provision of the 
 Eevised Statues was obsolete, was maintained in Woolsey vs. Judd, 4 
 Duer, 379 ; 11 How., 49 ; QuioJc vs. Keeler, 2 Sandf , 231 ; Mallory vs. 
 Norton, 21 Barb., 424; Durham vs. Willard, 19 How., 425; and 
 Odbvne vs. St. John, 12 How., 333. 
 
 As to the powers of this court to entertain, under its general juris- 
 diction, an action upon an award, notwithstanding that the submission 
 itself provided for the entry of judgment in the County Court, see 
 Bv/rnside vs. Wliitniey, "iA. IST. Y., 148. 
 
 In the first district, this court, and the New York Superior Court, 
 and Court of Common Pleas, have exclusive jurisdiction of all actions 
 brought against the corporation of that city. Ch. 379, of 1860, § 1, 
 p. 645. 
 
 In cases in which a judge of the County Court is disqualified from 
 
 Vol. I.— 3 
 
34 OF THE SUPREME COTJET.— § 12. 
 
 acting, the Supreme Court assumes jurisdiction. Code, § 30, sub. 13; 
 also, amended judiciary act, ch. 470, of 1847, § 31. And the same is 
 the case, where any two of the justices of the Superior Court of Buf- 
 falo, are similarly unable to hear and decide any case before them at 
 general terrti. Laws of 1857, ch. 361, § 10, vol. I., p. 754. The other 
 powers of transfer into its own, from certain other jurisdictions, of causes 
 there pending, also possessed by this court, will be hereafter considered. 
 
 Under the' Code, as it now stands, this court has also special juris- 
 diction of actions commenced in a justice's court, but discontinued, on 
 the ground that the title to real estate is brought in question, under the 
 special provisions contained in title VI., part I., of that measure. 
 This enactment was contained in the original measure of 1848. By 
 the amendment of 1851, this peculiar jurisdiction was transferred to the 
 County Courts. It remained in them till 1858, when, by the amend- 
 ments of that year, it was retransferred to the Supreme Court. 
 
 By chapter 45, of 1862, p. 812, the experiment is made of estab- 
 lishing a tribunal of conciliation in the sixth district, for the disposal 
 ■of , controversies voluntarily submitted by both parties. When- pos- 
 sessed of such a controversy, the jurisdiction of this tribune,! is substan- 
 tially the same as that of the Supreme Court, but a resort to it cannot 
 be compelled, and the whole proceeding is rather in the nature of a 
 jiidicial arbitration than of an ordinary suit. Such being its nature, 
 and the operation of the statute being, moreover, strictly local and not 
 general, the consideration of the subject falls without the scope of the 
 present work. 
 
 § 12. Provisions of the Code ; or^ consequent titer eon. 
 
 The Code, without defining or attempting to, interfere with the 
 powers of this court in jurisdictional matters, provides for the holding 
 of its terms, and other minor matters of detail, as follows : 
 
 TITLE III. 
 
 Of the. Supreme Court ^ Circuit Courts^ and CovHs of Oy&r and 
 
 Terminer. 
 
 § IV. (15.) All statutes now in force, providing for the designation of the 
 times and places of holding the general and special terms of the Supreme 
 Court, and the Circuit Courts, and Courts of Oyer and Terminer and of 
 the judges who "shall hold the same, are repealed, from and after the first 
 day of July, one thousand eight hundred and forty-eight ; and the order of 
 the Supreme Court, adopted July fourteen, one thousand eight hundred 
 and forty-seven, prescribing the times and pla.oes of holding the general and 
 special terms of the court, and the Circuit Courts, and Courts of Oyer and 
 
OF THE STJPBEME OOTJET. — § 12. 35 
 
 Terminer, during the residue of the year one thousand eight hundred and 
 forty-seven, and for the years one thousand eight hundred and forty-eight, 
 and one thousand eight hundred and forty-nine ; and assigning the business 
 and duties thereof to the several judges of the court, is, from and after the 
 first day of July, one thousand eight hundred and forty-eight, abrogated ; 
 and the provisions of this title are substituted in place thereof. 
 
 § 18. (16.) At least four general terms of the Supreme Court shall be 
 held annually in each judicial district, and as many more as the judges in 
 such district shall appoint, at such times and places as a majority of the 
 judges of such district shall appoint. 
 
 Amended as it stands in 1849. In 1S4S, six general terms were to be held in each 
 district. 
 
 § 19. (17.) The concurrence of a majority of the judges holding a gen- 
 eral term, shall be necessary to pronounce a judgment. If a majority do not 
 concur, the case shall be reheard. 
 
 § 20. (18.) There shall be at least two terms of the ckcuit court and court 
 of oyer and terminer held annually in each of the counties of this State, 
 and as many more terms thereof, and as many special terms, as the judges 
 of each judicial district shall appoint therein, but at least one special 
 term shaU be held annually in each of said counties. Fulton and Hamil- 
 ton shall be considered one county for the purposes of this section. 
 
 .iuended as it stands in 1849. In 1848 tlie number of terms in each county was specifically- 
 prescribed. 
 
 § 21. (19.) Circuit courts, and courts of oyer and terminer, shall be held 
 at the same places, and commenced on the same day. 
 
 In 1848, this section commenced with the words " special terms." 
 
 The Code of 1848 went on here to make special provisions, by sections 20, 21, and 22, in 
 relation to the continuance of the special term, circuit and court of oyer and terminer, on each 
 occ-asion. These sections were stricken out in 1849. 
 
 § 22. (23.) The Governor shall, on or before the first day of May, one 
 thousand eight hundred and forty-eight, by appointment in writing, desig- 
 nate the times and places of holding the general and special terms, circuit 
 courts, and courts of oyer and terminer, and the judges by whom they shall 
 be held ; which appointment shall take effect on the first day of July there- 
 after, and shall continue until the thirty-first day of December, one thousand 
 eight hundred and forty-nine. The judges of the Supreme Court of each 
 district shall, in like manner, at least one month before the expiration of 
 that time, appoint the times and places of holding those courts for two years, 
 commencing on the first day of January, one thousand eight hundred and 
 fifty, and so on, for every two succeeding years, in their respective r"' 
 tricts. 
 
 §23. (24.) The Governor may also appoint extraordinary genera' 
 cial terms, circuit courts, and courts of oyer and terminer, whe* 
 judgment, the public good shall require it. 
 
36 OF THE SUPEEME COTTET. § 12. 
 
 § 24. (25.) The places appointed within the several counties, for holding 
 the general and special terms, circuit courts, and courts of oyer and terminer, 
 shall be those designated by statute for holding county or circuit courts 
 K a room for holding the court in such place, shall not be provided by the 
 supervisors, it may be held in any room provided for that purpose, by the 
 sheriff, as prescribed by section twenty-eight. 
 
 General and special terms of the Supreme or county courts and circuit 
 courts, and courts of oyer and terminer, may be adjourned, to be held on any 
 future day, by an entry to be made in the minutes of the court ; and juries may 
 be drawn and summoned for an adjourned circuit or county court, or an ad- 
 journed court of oyer and terminer, and causes ma,y be noticed for trial, at 
 an adjourned circuit or county court, in the same manner as if such courts 
 were held by original appointment. 
 
 And special terms may be adjourned to be held at a future day at the 
 chambers of any justice of said court residing within the district, by an en- 
 try in the same manner, and then adjourned from time to time, as the justice 
 holding the same shall order and direct. 
 
 The concluding sentence of the last clause was added by amendment in 1862. Otherwise, 
 that clause dates from the amendment of 1851. It is a condensation of the provisions on the 
 same subject contained in the judiciary act, section 19, and the amended judiciary act, section 11. 
 
 The first dates from 1848, except a mere formal change in 1849. 
 
 § 25. (26.) Every .appointment so made, shall be immediately transmitted 
 to the Secretary of State, who shall cause it to be published in the news- 
 paper, printed at Albany, in which legal notices are required to be inserted, 
 at least once in each week, for three weeks before the holding of any court 
 in pursuance thereof The expense of the publication shall be paid out of 
 the treasury of the State. 
 
 The Code of 1848 went on by section 27 to make sundry provisions as to the designation of 
 judges to hold courts in different districts, and as to one judge, at least of those who held a 
 general term, being obliged to sit at that next succeeding. These were omitted in 1 849, and are 
 now obsolete: 
 
 § 26. (28.) Incase of the inability, for any cause, of a judge assigned for 
 that purpose, to hold a special term or circuit court, or sit at a general 
 term, or preside at a court of oyer and terminer, any other judge may 
 do so. 
 
 By section 29 of 1848 the clerk was bound within ten days after the expiration of every 
 term or circuit, to certify to the governor the amount and nature of the business done. This 
 clause was left out on the amendment of 1849. 
 
 § 27. (30.) The judges shall, at all reasonable times when not engaged in 
 holding court, transact such other business as may be done out of court. 
 Every proceeding, commenced before one of the judges in the first judicial 
 district, may be continued before another, with the same effect, as if com- 
 menced before him. 
 
 The first clause of this section has come down unaltered. The second dates from 1849. 
 
OF THE SUPREME COUET. § 12. SY 
 
 The Code of 18i8 was more specific in its direotiona as to the transaction of chamber busi- 
 ness in the first district, specially providing for the attendance of one of the judges from ten 
 to three on every judicial day, and longer if the business required it. 
 
 § 28. (31.) The supervisors of the several counties shall provide the 
 courts appointed to be held therein w/th room, attendants, fuel, lights, and 
 stationery, suitable and sufficient for the transaction of their business. If 
 the supervisors neglect, the court may order the Sheriff to do so ; and the 
 expense incurred by him in carrying the order into effect, when certified by 
 the court, shall be a county charge. 
 
 To the above provisions may be added the following, inserted for the 
 first time on the revision of 1851, as part of section 459 — the prior por- 
 tion of that section I'elating to other matters. 
 
 Whenever the judges of the Supreme Court in any district find that the 
 court, at any term or circuit, has not been, or will not be able to dispose of 
 all the cases upon the calendar, they may request the governor to assign 
 other judges, and, if necessary, appoint extraordinary terms and circuits, 
 for the purpose of disposing of such cases. The governor may thereupon 
 make sucli assignment, and the judges assigned must hold the courts ac- 
 cordingly. 
 
 By chapter 1 of the laws of 1850, p. 1, it had been previously enacted 
 that — 
 
 Whenever from any cause any general or special term of the Supreme 
 Court, or any Circuit Court, or Court of Oyer and Terminer duly appointed, 
 shall be in danger of failing, it shall be the duty of the governor to designate 
 some justice or justices of the Supreme Court who shall hold said courts re- 
 spectively. 
 
 By chapter 374 of the Laws of 1852, p. 591, additional provisions 
 are made for the administration of justice in tlie first distriet. Addi- 
 tional sittings for the trial of all issues of fact triable by a jury, are to 
 be held at such times as the chief judge of the Court of Appeals shall 
 appoint (§ 1). By section 2, it is made the duty of such chief judge, 
 whenever applied to by the presiding justice in the first district, to 
 appoint such sittings, to assign some justice of the Supreme Court to 
 hold the same, and to designate the class of business which shall be 
 noticed for or triable thereat ; and it shall be the duty of the justice so 
 appointed to hold such sitting. All statutes in force, with reference to 
 circuit courts, in the city and county of N"ew York are, under section 3, 
 to be applicable to these sittings. By section 4, it is competent for the 
 said chief judge, whenever applied to for that purpose, by any one of 
 ike justices of the Supreme Court, elected in the first district, to assign 
 some justice of that court to sit in the general or special terms in said 
 
38 OF THE STJPEEMj; COTJET. § 13. 
 
 < 
 
 district. Under section 5, the objection as to different circuits and 
 sittings being held at the same time is obviated, provision being made 
 by sections 6 and 7 for the raising of funds to pay the expenses of such 
 justices, and likewise for additional compensation to the justices resident 
 in the first district. By, section 8, the election of an additional justice 
 for that district is, as before noticed, provided for. 
 
 The power of the justices of this court to make rules, in concurrence 
 with those of the New York local jurisdictions, conferred by section 
 470, and the rules from time to time promulgated and revised under 
 that power, have been before noticed and tJie provision cited under 
 section 3. 
 
 Under chapter 167 of 1860, p. 270, cases in which executors or ad- 
 ministrators are sole plaintiffs or sole defendants, or which prevent 
 the issuing of letters to either, are entitled to a special preference on 
 the calendars of this court. 
 
 § 13. General Term. 
 
 • 
 
 The highest form in which jurisdiction is exercised by the justices of 
 this court is by their sittings in general term. 
 
 The functions of this branch of the court are, for the most part, strictly 
 appellate, its principal business being the revision on appeal of the judg- 
 ments of inferior tribunals, or of the decisions or rulings of a single justice 
 of the court itself, at circuit, special term, or chambers, and of the judg- 
 ments or orders entered in pursuance of such decisions or rulings. The 
 justices exercise, when thus sitting, the same powers as were possessed at 
 common law by the general term of the former Supreme Court, and in 
 equity, by the chancellor sitting on appeal. Vide Mason vs. Jones, 
 1 C. E. (E. S.), 335 ; Grade vs. Freeland, 1 Comst., 228. The general 
 term has likewise, by especial provision of the Code, original cognizance 
 of questions submitted for the opinion of the court, without the ordinary 
 forms of an action, under section 372 of that measure. Its powers are 
 however not strictly confined to the exercise of mere appellate jurisdic- 
 tion, but are of wider scope as regards collateral applications, when it 
 chooses to exercise thepa. It has accordingly taken cognizance of ex^ 
 ceptions to the interlocutory report of a referee set down to be heard be- 
 fore it in the first instance, and refused, on motion, to sti-ike the cause 
 off its calendar. Tracy vs. Tallmadge, 1 Abb., 460. Of matters affect- 
 ing its own calendar it of course takes cognizance on motion. See 
 PeelYs. Elliott, 16 How., 483. In Anon. vs. Anon., 10 How., 353; it 
 asserted and acted upon- its powers to make an original order for retax- 
 ation of costs. In Dwl vs. Agan, ICE., 134, it was considered that a 
 motion in arrest of judgment (if unanswerable at all, which was doubted) 
 
OF THE SirPBEMIE COTJET. § 13. 39 
 
 could only be there made. And its powers to entertain a motion for an 
 injunction, or to continue an injunction granted by a reversed judgment, 
 pending an appeal from that judgment, are distinctly asserted in Dralce 
 vs. Hudson River Railroad C&m^pcmy, 2 C. E., 67 ; and' J%e Town of 
 Guilfcyrd vs. Cornell; 4 Abb., 220. 
 
 It take slikewise original coguizance of writs of error in criminal cases, 
 {^de Tracy vs. Tallmadge, sv/prd)^ and exercises especial jurisdiction in 
 reference to the admission of attorneys and counsel, and to the control 
 of the conduct of those officers when admitted. 
 
 The general term has also peculiar cognizance of exceptions directed 
 to be heard there in the fii-st instance, under section 264 of the Code, and 
 likewise of applications for judgment, on a verdict subject to the opinion 
 of the court (§ 265). 
 
 The decisions of the general term in one district, on a question of law 
 or practice, ought, as a general rule, and in the absence of special rea- 
 son to the contrary, to be taken as conclusive by the justices in another. 
 Andrews vs. WaLlege, 8 Abb., 425 ; 17 How., 263 ; Burt vs. Rowis, 
 16 How., 289 ; Olcott vs. The Tioga, Railroad Company, 26 Barb., 147 ; 
 Andrews vs. Wallace, 29 Barb., 350 ; Goii vs. Runhin, 19 How., 164, 
 (167) ; Loring vs. United States Vulcanized Ghitta Percha Compa/ny, , 
 30 Barb., 644 ; Malan vs. Simps&n, 20 How., 488 ; 12 Abb., 225. 
 
 This rests, however, much in the discretion of the judges before whom 
 the question is brought, and as to what they may or may not consider 
 as a sufficient special reasoi;! for rendering a conflicting decision. 
 When in conflict, the decision of its own general term controls the 
 practice in each district, until one or other branch of the com-t recedes 
 ■from its previous position, or the question is settled by the Court of 
 Appeals. ■ Whilst this is the case, that question is, of course, completely 
 open in the other districts. 
 
 As to the duty of disregarding a clearly .erroneous decision, even of the 
 general term of the same court, see Romaine vs. Kinsheimer, 2 Plilt., 519. 
 
 A motion to dismiss an appeal taken to the general term, is cogniza- 
 ble by the appellate tribunal only. Barnum vs. Seneca OouriAy Bank, 
 6 How., 82 ; Harris vs. Olarh, 10 How., 415 ; Bradley vs. Van Zandl, 
 3 C. E., 217. And after its decision has been made, all applications 
 for correction of that decision, in matters of substance, must .be made 
 to it, and not to the special term. Corning vs. Powers, 9 How., 54 ; 
 Ayres vs. Govill, 9 How., 573. 
 
 But in mere matters of form, or regularity, irrespective of the sub- 
 stance of the. decision, the special term has power to entertain amotion, 
 and to correct any error in the entry of the decision of the general term, 
 He Agreda vs. Mantel. 1 Abb., 130 ; BagUy vs. Brawn, 3 E B. Smith, 
 66 ; or to open a default irregularly taken, Ayres vs. Covill, 9 How., 573. 
 
40 OF THE SUPEEME COURT. § 14. 
 
 Where error of fact has been committed in the trial below, the gene- 
 ral term, on reversing the judgment, has no power, however clear the 
 case may be, to render final judgment in favor of the appellant. All it 
 is authorized to do, is to grant a new trial. Astor vs. L^ Am.ourewa, 4 
 Seld., 107 ; reversiiig same case, 4 Sandf., 524 ; Marquat vs. MarqvMt, 2 
 Kern, 340 ; Meyer vs. The City of Louisville, 26 Barb., 609 ; Cobb vs. 
 Cornish, 15 How., 407 ; 6 Abb., 129 ; 16 N. Y., 602. 
 
 Nor has the general term any power to award judgment in the first 
 instance, on failure to answer, or in analogous cases ; that power be- 
 longs to the special term. Ryan vs. McCannell, 1 Sandf., 709. So, 
 likewise, as to a special statutory application. In re Walker, 2 Duer, 
 655. The rule may be broadly stated, that any hearing or application, 
 as to which the court may subsequently be called upon to exercise its 
 revisory jurisdiction, cannot properly be made to the general term, biic 
 should be brought on before a single judge in the first instance. If 
 otherwise, the applicant or party would, of necessity, be deprived of his 
 right to have the original action of the court reversed by the assembled 
 bench, a right of which he cannot be deprived. Vide O-raoie vs. Free- 
 land, supra. See also, as to a motion for new trial in a special pro- 
 ceeding, in re Fm-t Plain and Cooperstown Railroad Company, 3 C. 
 E., 148. 
 
 § 14. Oircuit and Special Term. 
 
 These sittings are frequently holden by the same judge, on the same oc- 
 casion, for which express authority is given by section 20 of the judiciary 
 act. This circumstance leads to the distinction between them being 
 frequently lost sight of. In strictness, however, the cognizance of a 
 judge sitting at circuit or oyer and terminer, is of a comparatively lim- 
 ited nature. His office is primarily to preside at the hearing of issues 
 of fact, triable by a jury ; but, under section 255 of the Code, and rule 
 28 (21 of 1854), issues of fact to be tried by the court may also be tried 
 before him as Well as at special term, and this course is not unfrequently 
 adopted in the case of the taking of inquests, or the trial of other causes 
 not involving any important contest upon the facts. He has also power, 
 under rule 24, to entertain an application for judgment on failure to 
 answer. 
 
 ' To the above is superadded, by section 264 of the Code, authority, at 
 his discretion, to entertain a motion, to be made on his minutes to set 
 aside a verdict and grant a new trial, upon exceptions, or for insufficient 
 evidence, or for excessive damages, but such motion can only be heard 
 at the same term or circuit at which the trial is had. Section 265 would 
 seem to give a wider scope to the powers of the judge at circuit to hear 
 
OF THE SUPEEME COUET. § 14. 41 
 
 « 
 
 motions for a new trial, but in practice this does not seem to have ob- 
 tained. He, the judge, may likewise order a reference of the case when 
 brought on, but, except to try or refer, hardly any step can be taken by 
 him at circuit. Mann vs. Tyler, 6 How., 235 ; 1 C. E. (N. S.), 382. 
 
 In Bedell ys,. Powell, 3 C. R., 61, it was considered that, in the coun- 
 try districts, a justice holding circuit and oyer and terminer at a time 
 and place for which no special term was appointed, had no authority to 
 make any order at all in a motion not cognizable by him out of court. 
 He has no authority to hear motions, except at a general or special 
 term. 
 
 This doctrine is carried out by rule 40 of the court, which expressly 
 provides that non-enumerated {i. e., original, as distinguished from enu- 
 merated, *. e., appellate motions), shall be heard at special term, except 
 when otherwise directed by law ; whilst the alterations made in that 
 rule, on the last revision, only refer to motions at a special term, 
 noticed contemporaneously with a circuit, and do not recognize the 
 practice of bringing on motions, at a circuit held independently. 
 
 Of course this principle must be understood as applicable only to 
 motions of an interlocutory nature, extraneous to the actual hearing of 
 the cause. There is another class not requiring any notice, but inci- 
 dental to the hearing itself, such as motions for a nonsuit, for the ex- 
 clusion of testimony, &c., which are of necessity .excluded from its 
 operation. 
 
 When once a cause has been tried, it seems immaterial whether the 
 procfeedings subsequent to verdict be inserted in the record, as taken at 
 the circuit or special term. It is, at all events, no cause for reversal. 
 and, if the practice be irregular, the remedy is by motion. Dart vs. 
 MoAdam, 27 Barb., 187. 
 
 The functions of the special term are thus defined by section 20 of 
 the judiciary act, chapter 280 of 1847: "To hear and determine non- 
 enumerated business in suits and proceedings at law, and to take testi- 
 mony and hear and determine suits and proceedings in equity ; and 
 orders in suits and proceedings at law, and orders arid decrees in suits, 
 and proceedings in equity, may be made at such special term." 
 
 To this original cognizance of contested motions and hearings in 
 equity, there is superadded by the Code that of causes triable by the 
 court. This class includes all issues of law, and likewise issues of fact, 
 with the exception of those joined in actions for the recovery of money 
 only, or of specific, real, or personal property, or for divorce on the 
 ground of adultery, which are primarily triable by a jury. In all 
 these, however, except the last, a jury trial may be waived, and then 
 the matter falls more peculiarly within the cognizance of the 
 special term, though the circuit has power to try them under section 
 
42 OF THE StrPEEME COURT. § 14. 
 
 255 of the Code and rule 28, and occasionally does so, especially on the 
 taking of inqnests and the trial of cases in which a jury is waived. 
 
 The special term is likewise the proper forum for hearing motions for 
 a new trial in jury cases, and applications for judgment on a special 
 verdict, or case reserved for further argument or consideration ; except 
 in the case of exceptions, directed to be heard in the first instance by a 
 general term. Code § 265. 
 
 The justice sitting at special term possesses substantially the same 
 powers and exercises the same authority as was heretofore possessed by 
 a vice-chancellor, or a single judge of the old Supreme Court ; subject 
 to revision, in all cases, by the general term. Vide Mason vs. Jone^, 1 
 C. E. (S. S.), 335. Grade vs. Freeland, 1 Comst., 228. 
 
 An application for judgment on failure to answer, or to reply when 
 necessary, must likewise be made to the judge, at special term, and not 
 at chambers. Rule 24. Aymar vs. Chace, 12 Barb., 301 ; ICE. 
 (if. S.), 330. To award judgment, " the court" must be invoked. Ryan 
 vs. McCannel,.! Sand., 709. ISTor does Porter vs. Lent, 4 Duer, 671, 
 really conflict with this principle, inasmuch as, under the special regu- 
 lations of the Superior Court, the judge attending at chambers sits in 
 fact at special term. 
 
 In one case, however, *'. e., that of an application for judgment on a 
 frivolous pleading, an application for judgment may be made to a 
 judge in or out of court, and is therefore, cognizable at chambers as 
 well as at special terni. Code, § 247. Witherspoon vs. Yan Dolar, 
 15 How., 266 ; Mles.ya. Iliolcs, 12 How., 153. 
 
 The powers of the special term, with reference to the correction of 
 errors of the general term in matters of form but not extending to mat 
 ters of substance, have been already noticed, and the cases cited in the 
 preceding section. 
 
 . A common law certiorari cannot be allowed by a justice out of court, 
 but, though ex parte, the application must be made at special term. 
 Gardner vs. Oomnvlssioners of Highways of Town of Warren, 10 
 How., 181. 
 
 The powers of the special term extend to the correction or setting 
 aside of the report of a referee, or the entry of judgment thereon, for 
 irregularity, want of sufficient statement, or neglect to pass upon all the 
 issues in the case. Huloe vs. Sherman, 13 How., 411 ; Brush vs. Mvl- 
 la/ryy, 12 Abb., 344. See also Yan Steenhurgh vs. Hoffman, 6 How., 492 ; 
 Goulard vs. Gastillon, 12 Barb., 126 ; Church vs. Erben, 4 Sandf. 691 ■ 
 and sundry authorities cited at 13 How., 412. But it has no power, 
 when a referee has passed upon the whole of the issues, to set aside the 
 report upon the ground that his decision is erroneous in law. Errors of 
 that nature are reviewable on appeal only, and not on motion.- ' Datm 
 
OF THE STTPEEME COUET.— -§ 14. 43 
 
 yi. Howe, 3 Kern., 306; Lakm,N%. New York amd Erie Railroad 
 Company, 11 How., 412. • 
 
 An application for an indefinite stay, or for setting aside proceedings 
 pending before another officer, cannot properly be made to a judge at 
 cbambers, but should be to the court at special term. Bank of Genesee 
 vs. Spencer, 15 How., 14 ^ Bangs vs. Selden, 13 How., 374. 
 
 It may be laid down as a general rule that when, by statute, an appli- 
 cation for interlocutory or independent relief is dii'ected to be made," to 
 the court," that application is cognizable by the judge only when hold- 
 ing special term, and cannot properly be entertained by him, at cham- 
 bers or out of court. So held as to a motion for an allowance. Mamn 
 vs. Tyler, 6 Plow., 235 ; ICE. (E. S.), 382. See also rule 62, as to 
 an order for appointment of a guardian ad litem in partition. Disirow 
 vs. Folger, 5 Abb., 53. 
 
 But in the first district, the practice is otherwise, and, under the spe- 
 cial authority conferred by section 401, subdivision 2, all motions what- 
 soever, except for a new trial on the merits, are cognizable by a judge or 
 justice out of court. See Main vs. Pope, 16 How., 271, and Disbrow 
 vs. Folger, supra. This power would seem however to be restricted to 
 motions in a pending suit. In special statutory proceedings brought 
 before the court on petition, the judge sitting at special term is alone 
 competent to act, whether in the first or the other districts. In re 
 Walker, 2 Duer, 655 ; inre Bookhout, 21 Barb., 348. 
 
 By the same section of the Code (401), the districts within which mo- 
 tions must be made are prescribed, the first district being specially sep- 
 arated from the others. If brought on in the wrong district, the order 
 made on a motion wiU be null. It is however voidable only, and until 
 set aside should be obeyed. Harris vs. Clark, 10 How., 415 ; Wewcomb 
 vs. Beed, 14 How., 100 ; Bangs vs. Selden, 13 How., 374 (163); Cajial 
 Bank vs. Harris, 1 Abb., 192. 
 
 Although, as a general rule, a judge sitting at special term is compe- 
 tent to entertain motions, of whatever nature, including that class 
 which is also cognizable by a judge out of court ; still there is one de- 
 scription of applications on' which the latter alone is competent to act, 
 and that is the class of proceedings which by statute are directed to be 
 made to a judge or justice of the court, as, for instance, proceedings 
 supplementary to execution. 
 
 It has been held that the court, or a judge of it sitting at special 
 term, has no power to make an order in these cases. Bitting vs. Yan- 
 dmbwrgh, 17 How., 80; Miller ys. Eossman;!^ How., 10; Bank of 
 Genesee vs. Spencer, 15 How., 14. See Davis vs. Turner, 4 How., 190. 
 And, further, that the exclusive jurisdiction of the judge out of court, 
 includes the power to punish for a contempt of his order, re Smethurst, 
 
44 OF THE SUPREME COTJET. § 14. 
 
 2 Sandf., 724 ; 3 C. E., 55 ; WicJcer vs. Dresser, 14 How., 465 : and 
 *bat he has not merely the power, but the exclusive power of doing so, 
 iShephard vs. Deem, 13 How., 173. 
 
 ' The contrary of the last proposition is, however, maintained, and the 
 power of a judge sitting at special term, to punish for contempt in such 
 a case, asserted in Dresser vs. Vcm Felt, 6 "Duer, 687 ; 15 How., 19 ; 
 and WicJcer vs. Dresser^ 13 How., 331. The mere objection that an 
 ord^r appointing a receiver in a similar proceeding, was entitled at 
 special term, instead of at chambers, has been also disregarded. In re 
 The KnicherhocTcer Bamh, 19 Barb., 602. 
 
 But, though the judge at chambers has exclusive jurisdiction in pro- 
 ceedings of this nature, his powers are confined to the limits imposed 
 by the statute ; he cannot act in them collaterally, by way of granting 
 a stay of proceedings, or instructing a receiver, when appointed. That 
 power rests only with the court. Bcmk of Genesee vs. Spencer, 15 
 How., 14, 412 ; In re The Knickerhocker Banh, 19 Barb., 602. 
 
 Although the granting of orders for extensions of time, or stay of 
 proceedings, is, when exercised within the limit of twenty days im- 
 posed by section 401, within the cognizance of the judge sitting at cham- 
 bers ; an application for such an extension, or stay, when running over 
 a longer period, can only be made at special term, and is not cognizable 
 by a judge sitting at chambers. Harris vs. ClarTc, 10 How., 415 ; 
 Saase vs. Wew York Central Railroad Company, 14 How., 430 ; Ba/ngs 
 vs. Selden, 13 How., 374 ; Wood vs. Kimball, 18 How., 163 ; 9 Abb., 
 419 ; Steam Namigation Company vs. Weed, 8 How., 49. 
 
 Art application under section 174, for relief in respect of an omission 
 or mistake, lies also to the court, and not to the judge. Sheldon vs. 
 Wood, 6 Duer, 679 ; 14 How., 18. 
 
 And, as a general rule, it may be stated that all orders which affect 
 the disposition of a pending action, in a radical and not an interlocutory 
 manner ; as an order for reference, for judgment on default, for a dis- 
 continuance, or others of the like nature, should be entitled, and applica- 
 tions made for them at special term, and not at chambers, though such 
 application be made ex parte, or even by consent. The grautino' of a 
 reference is, under section 271, the especial province of " the court." 
 
 An application to extend time already expired, falls clearly within 
 the jurisdiction of the special term, and the judge sitting at chambers 
 has no jurisdiction.. It is no longer an ex parte proceeding ; the adverse 
 party, having acquired a positive right, is entitled to be heard upon 
 notice. Doty vs. Brown, 3 How., 375 ; 2 C. R., 3. 
 
 The special, and not the general term, is the forum before which an 
 appeal from a justice's court, originally taken to the county court but 
 transferred to this court by reason of the incapacity of the county judo'e 
 
OF THE SUPEEME COTJET. § 15. 45 
 
 to hear it, should be brought to a hearing. Sheldon vs. Albro, 8 How., 
 305 ; Bamis vs. Stone, 16 How., 538, and cases mentioned, p. 540 ; 
 Wiles vs. PecTc, ibid., 541. 
 
 Since the recent amendment of section 24, a special term may now 
 be adjourned to be held at a future day, at the chambers of any justice 
 of the -court residing within the district. 
 
 § 15. Judge at Chamher-s. 
 
 The power of the judge or justice, at chambers or out of court, in- 
 cludes, in all the districts, the large class of ex parte orders and orders of 
 course, whether made in the course of a regular action, or on a special 
 statutory proceeding. Mathis vs. Vail, 10 How., 458. To this is 
 superadded, in the first district alone, the power of hearing contested mo- 
 tions. The court is always open for business of this nature, and the 
 judge, sitting in chambers, exercises, in equity cases, substantially the 
 same powers as were formerly exercised by the chancellor out of term, 
 or by the clerk of the court in the entry of orders of course. Vide 
 amended judiciary act, ch. 4Y0 of 184Y, § 16 ; Clark vs. Judson, 2 
 Barb., 90 ; Garcie vs. Sheldon, 3 Barb., 232. 
 
 The functions of the judges at chambers are thus provided for by the 
 Code. 
 
 Under section 27, before cited in this chapter, they are directed " at 
 all reasonable times when not engaged in holding court" to " transact 
 such other business as may be done out of com-t," M'ith the additional 
 clause that " every proceeding commenced before one of the judges in 
 the first judicial district, may be continued before another, with the 
 same effect as if commenced before him." 
 
 Under section 401, hereafter more particularly considered on the 
 subject of motions, it is thus specially provided : 
 
 By subdivision 2. " Motions may be made in the first judicial district 
 to a judge or justice out of court, except for a new trial on the merits." 
 By subdivision 3. " Orders made out of court, without notice, may be 
 made by any judge of the court in any part of the state," with further 
 provisions as to their being made by a county judge, noticed in the 
 next section of this work. See also section 403, on the latter subject. 
 
 By subdivision 6, the following limitation is imposed: "No order 
 to stay proceedings for a, longer time than twenty days shall be granted 
 by a judge out of court, except upon previous notice by the adverse 
 party." 
 
 By section 404 it is thus provided : " When notice of a motion is 
 given, or an order to show cause is returnable before a judge out of 
 court, and, at the time fixed for the motion, he is absent or unable to 
 
46 OF THE SUPREME COXJET. § 15. 
 
 liear it, the same may be transferred by Ms order to some other judge, 
 before whom the motion miglit originally have been made." 
 
 N. B. In the first district, all motions noticed for a particular day, 
 and not able to be then brought on, stand over as a matter of course till 
 the next day, unless a different disposition be made. MatUs vs. VaAl, 
 10 How., 458. 
 
 By section 405, it is also provided, that the time within which any 
 proceeding in an action must be had after its commencement, except 
 the time within which an appeal must be taken, may be enlarged on 
 affidavit, showing grounds therefor, by a judge out of court. 
 
 The power of making ex parte orders is clearly exercisable by any 
 justice, without regard to the district in which he acts. In Adams vs. 
 8age^ 13 How., 18, this power was asserted to extend to the enlargement 
 of time to make a case, for a period exceeding twenty days, in an action 
 pending in the first district, by order of a justice of the seventh, at 
 chambers, on contested motion. This conclusion is based on section 405, 
 but its correctness seems very doubtful. It is in direct conflict with 
 Bangs vs. Selden, 13 How., 374. 
 
 As stated in the last section of this work, the cognizance of special 
 proceedings of a statutory nature, in which jurisdiction is conferred on 
 a judge or justice, as such, and not upon the court, belongs more espe- 
 cially, and indeed exclusively, to that officer, sitting at chambers, so long 
 as he acts directly within the limits of that authority, but not so when 
 his action is not direct but collateral. See that section and cases there 
 cited. He cannot, however, act in the matter of a special statutory 
 proceeding, in which the court acts as such. In re Hicks^s Will, 4 
 How., 316, 2 C. E., 128. 
 
 It should likewise be observed that, although under sections 401 and 
 405 the granting of orders for extension of time or stay of proceedings 
 em parte, is especially the function of the judge at chambers, his power 
 in that respect is limited to twenty days ; and that an extension or stay for 
 a longer, or for an indefinite period, or an extension of time ah-eady ex- 
 pired, is not within his jurisdiction, and can only be obtained by appli- 
 cation to the special term. See last section, and authorities there cited. 
 
 Nor can he take cognizance of an application in any of that class of 
 special proceedings, which, under the terms of the statutozy authority 
 conferring such cognizance, is directed to be made to the court, upon 
 petition or otherwise. Bee same section, and authorities cited. 
 
 But in that class of applications where, on petition, the chancellor 
 had jurisdiction to interfere in vacation, as in an application as to the 
 custody of a minor child, the judge, sitting at chambers, has similar 
 powers, and is competent to act. Wilcox vs. Wilcox, 4 Kern., 575, 
 affirming People vs. Wilcox. 22 Barb., 178. 
 
OF THE STJPEEME COUET. § 15. 47 
 
 "When acting at chambers, under a special statutory authority, he is 
 bound by the limits of that authority, and cannot exercise general equi- 
 table jurisdiction. Vide Wheaton vs. Gatss, 18 N". Y., 395. 
 
 As a general rule, contested motions are, in all districts except the 
 first, cognizable by the court at special term, and not by the judge at 
 chambers. Vide Mann vs. Tyler, 6 How., 235 ; 1 0. E. (N. S.), 382. 
 
 This is clearly provided for by rule 40. That rule admits however 
 of many exceptions. It does not of course apply to that class of pro- 
 ceedings which, by special provision, may be taken before a judge out 
 of court, in which cases any contest which may ai-ise remains cognizable 
 by the judge before whom the proceeding was instituted, or his substi- 
 tiite under section 404. Necessity frequently arises also for applications 
 consequent on the previous action of the judge himself, as motions for 
 settlement or correction of an order or decree, on points of form, or in re- 
 lation to the preparation, settlement, or resettlement of a case or biU of 
 exceptions, which, though possibly brought on on regular notice, come 
 properly for hearing before the same judge, out of court. 
 
 In the first district the above distinctions do not exist, and the fact 
 that, in the different courts, the same judge is in the habit of sitting co- 
 temporaneously at chambers and at special term, lessens still more the 
 chance of any material difficulty, especially if care be taken to, entitle 
 any order made by him as made within the proper jurisdiction. . Yids 
 Porter vs. Lent, 4 Duer, 671 ; Loiober vs. The Mayor of New Yorlc, 5 
 Abb., 325 ; Wood vs. KimhaU, 18 How., 163 ; 9 Abb., 419. 
 
 As a general rule, a judge at chambers has, as above noticed, no cog- 
 nizance of motions tending directly to the regular progress or final dis- 
 position of the cause, and not collateral in their nature. Yide Dtcel vs. 
 Agofli, 1 C. E., 134. There is however one exception, i. e., a motion for 
 judgment on a frivolous pleading. This, by section 247 of the Code, is 
 expressly cognizable by a judge or justice out of court, and, on such a 
 motion, it is competent for him to make precisely the same disposition 
 of the case as if it had come on before him regularly at special term. 
 Witherspoon vs. Van Dolar, 15 How., 266 ; Witherhead vs. Allen, 28 
 Barb., 661. 
 
 It is not competent for one judge sitting at Chambers to vacate the 
 order of another. A motion for that pui-pose must be made to the court 
 on notice. Cayuga County Bank vs. Warfield, 13 How., 439 ; Bank of 
 Genesee vs. Spencer^ 15 How., 14 ; Blake vs. Locey, 6 How., 108 ; Lind- 
 say vs. Sherman, 1 C. E., N. S., 25 ; 5 How., 308 ; Woodruff ys. Fishtr, 
 17 Earb., 224 ; Mills vs. Thurslry, 1 C. E., 121. See however Bruce vs. 
 Delaware and Hudson Canal Company, 8 How., 440. Or the question 
 may be brought up on appeal, when the order has been made on notice. 
 Follett vs. Weed, 3 How., 360. Nor can a judge at chambers review 
 
48 OF THE SUPBEME COUET. § 16. 
 
 tlie decision of another judge collaterally. People vs. Orser, 12 How., 
 550. The judge, however, may vacate his own ex parte order, and that 
 ex parte, without notice to the adverse party. Code, § 324. 
 
 Trior to the last revision of the rules, it was held incompetent for a 
 judge sitting at chambers to make an order to show cause, returnable 
 before another judge, or in court. Merritt vs. Slocum, 6 Plow., 350. 
 Since that revision, such an order may be made, if returnable before the 
 judge who grants it, or at a speci-al term appointed to be held in the 
 district in which such judge resides. Eule 39. Nor did the principle 
 ever apply to motions in the first district. 
 
 A judge at chambers cannot tax or adjust general costs taxable under 
 the Code. The clerk alone is so authorized. Van Schaiek vs. Winne, 8 
 How., 5. The decision of the latter is however reviewable by the former 
 so sitting. ISTor does this rule alTect his former power to adjust costs in 
 proceedings antecedent to the Code, or not subject to its provisions. 
 
 A judge of one district cannot take cognizance of or make an order 
 to show cause affecting a motion in a cause triable in another. Said- 
 win vs. City of Brooklyn, unrep. See also cases as to first district, 
 cited in last section. 
 
 § 16. Chxmber Business. Powers of County Judge, or Svjpreme 
 
 Cowrt Commissioners. 
 
 The manifest inconvenience caused by the accumulation of applica- 
 tions, purely formal, and directed to the obtaining of relief, purely ex 
 parte, and uncontested in its nature, led to the delegation of that branch 
 of the powers of the justices of the Supreme Court, to a class of inferior 
 officers specially deputed for that purpose. This delegation was origin- 
 ally made by the legislature to a class of officers styled Supreme 
 Court commissioners ; to be appointed under a power conferred by the 
 Revised Statutes. This office has been abolished, by section 8, article 
 XIV., of the Constitution; and is now non-existent, as regards any pro- 
 ceedings in a regular suit, and, for the most part, in special proceedings. 
 There is, however, a certain class of applicatious in which judges of 
 some of the other courts are still entitled to exercise powers which wire 
 originally conferred upon them as Supreme Court Commissioners, ex 
 officio, and which will be noticed at the end of the present section. 
 
 The power heretofore exercised by the commissioners above referred 
 to, is now, by statute, transferred to the county judge. Section 27 of the 
 amended judiciary act made provision on the subject, but the authority 
 at present exercised is conferred by the Code. 
 
 By section 401, subdivision 3, it is provided that orders made oiit of 
 court, without notice, " may be made by a county, judge of the county 
 
OE THE SUPREME COXJET. § 16. 49 
 
 where the action is triabje, or by the comity judge for the county in 
 ■which the attorney for the moving party resides, except to stay pro- 
 ceedings after verdict." 
 
 This provision dates from the amendment of 1849. The power was, 
 however, only given in that year, to the county judge of the county 
 where the action is triable. That to the county judge of the county in 
 which the attorney for the moving party resides, was first conferred by 
 the amendment of 1859. 
 
 By section 403, the following general power was added by the Code 
 of 1848, and has come down unaltered. 
 
 § 403. (364.) In an action in the Supreme Court, a county judge, in addi- 
 tion to the powers conferred upon him by this act, may exercise, within his 
 county, the powers of a judge of the Supreme Court at chambers, according 
 to the existing practice, except as otherwise provided in this act. And, 
 in all cases where an order is made by a county judge, it may be reviewed, 
 in the same manner as if it had been made by a judge of the Supreme Court. 
 
 And, by section 405, the power to extend the time for taking any 
 proceeding, given to a judge of the court, is also conferred (if the action 
 be in the Supreme Court) on a county judge. 
 
 Similar authority is likewise conferred on this ofiBcer. by other sec- 
 tions of the Code, in regard to ex parte orders granting a provisional 
 remedy, which he is empowered to make, as follows : As to arrest, by 
 section 180; as to injunction, by section 218; and, as to attachment, 
 by section 228. See Sank of Lanslnghurgh vs. MoKie, 7 How., 360 ; 
 ConMinYs. Dutcher, 5 How., 386 ; 1 C. E., (IS". S.), 49. In Seymour vs. 
 Mercer, 13 How., 564, it was laid down that an order of arrest granted 
 by a special surrogate was valid, on the ground that that officer was, 
 by virtue of the statute under which he was appointed, entitled to ex- 
 ercise all the powers of a county judge out of court. In Eddy vs. How- 
 htt, 2 0. E., 76, it was held that an injunction granted by the county 
 judge of a county, other than that named in the complaint as the 
 place of trial, was a nullity, but this conclusion no longer holds good 
 since the last amendment. 
 
 The power of the county judge in these matters, extends, however, 
 only to the granting of initial ex parts orders, or to the vacating of such 
 an order, out of court without notice, under section 324. Ban]p of Lan- 
 smgburgh vs. McKie ; Conklin vs. Dutcher, supra; Gomoay vs. Hitch- 
 ms, 9 Barb., 378. A motion to vacate or modify the order, when 
 granted, being of necessity a contested motion, can only be made to 
 the court ; and even the judge who actually made the order, is not 
 competent to entertain it. Rogers vs. MoElhone, 20 How., 441 ; 12 
 You I. 
 
50 OP THE SUPREME COURT. § 16. 
 
 Abb., 292. See also, express provision to the same effect in section 
 225, in relation to injunctions. 
 
 The county judge of the county to which an execution has been 
 issued, has, under sections 292 to 302 inclnsive of the Code, special 
 jurisdiction in proceedings supplementary to execution. His powers in 
 a proceeding of this nature, when con^menced before him, are the same 
 as those of a judge of the court ; nor has the court or a judge any 
 authority to interfere with his exercise of those powers, except only by 
 way of appeal, so long as he keeps within tlie limits of his statutory 
 jurisdiction. Conway vs. Hitchms, 9 Barb., 378 ; Sale vs. Lamson, 4 
 Sandl'., 718. 
 
 But, beyond the limits of that jurisdiction, those powers do not ex- 
 tend. He cannot, therefore, make an order staying such proceedings, 
 though pending before him. It is a stay of proceedings after verdict, 
 from which he is restricted by section 401. Ba/nk of Genesee vs. 
 Spencer, 15 How., 412. See Otis vs. Spencer, 8 How., 171, as to pro- 
 ceedings after verdict, in which it is laid down that proceedings on 
 judgment, entered on the report of a referee, do not fall within that 
 prohibition. This seems contrary to the spirit, though possibly within 
 the letter of the statute ; it is, too, a mere dictum, doubtingly announced. 
 
 Nor is it within his competency to grant an arbitrary stay to either 
 party, without reference to some other application to be made. Chub- 
 luck vs. Mortison, 6 How., 367 ; Schench vs. McKie, 4 How., 246, 3 
 C. E.., 24. Nor can lie or a judge at chambers grant a continuing or 
 indeiinite stay. Bank of Genesee vs. Spencer, 15 How., 14 ; Bangs vs. 
 Selden, 13 How., 374. 
 
 He cannot make au order providing as to the amount of security, 
 to be given upon an appeal ; that falls within the cognizance of the 
 court only, Otis vs. Spencer, 8 How., 171. 
 
 In Peebles vs. Rogers, 5 How., 208, 3 C. R., 213, it was considered 
 that the general power of extending time to answer, conferred on the 
 county judge, by section 29 of the judiciary act, was not affected by the 
 limits imposed by section 401 of the Code ; and that the county judge 
 of any county was competent to make such an order. This conclusion 
 is, however, doubted in ChvMnock vs. Morrison, 6 How., 367 ; and Bangs 
 vs. Seldm, 13 How., 163. 
 
 Under the last amendment of section 401, the power contended for 
 in PeMe^ vs. Eogers, is given in express terms. This would seem, by 
 implication, to destroy the authority of that case, and sustain ChiMuck 
 vs. Morrison as to proceedings previous to that amendment. Be- 
 fore 1859, there was considerable discussion as to the force of the ex- 
 pression, " the county where the action is triable," and as to which was 
 ±lie county within which the county judge had jurisdiction in sach 
 
OF THE SUPREME COUBT. § 16. 61 
 
 cases. It had, however, been nearly if not entirely settled that the 
 word " triable" meant the county designated by the plaintiff in his 
 complaint, or, after change of the venue, any county to which that 
 venue had been so changed. See Bcmgs vs. Selden, 13 How., 163. 
 Same case, 13 How., 374 ; Sturgess vs. Weed, 13 How., 130 ; OhuUuok vs. 
 Morrison, 6 How., 367 ; Eddy vs. Howlett, 2 C. R., 76 ; Erwin vs. 
 Yoorhees, 26 Barb., 127, conflicting with Peebles vs. Rogers, 5 How., 
 208, 3 C. E., 213. In Ashins vs. Heams, 3 Abb., 184, it was ex- 
 pressly decided that, pending a motion to change the venue, the 
 county judge of the county designated in the complaint, was alone 
 competent to act. 
 
 The county judge cannot grant an order to show cause returnable 
 before the court, or before a judge of it. Askms vs. Hearns, swpra ; 
 M&rritt vs. Slocfwm, 6 How., 350. 
 
 He cannot, under any circumstances, hear a contested motion in an 
 action pending in the Supreme Court. Merritt vs. Slocum, 3 How., 
 309 ; 1 C. E., 68 ; Rogers vs. MoElhone, 20 How., 441 ; 12 Abb., 
 292. Nor has he the power to settle interrogatories in such an action, 
 or to issue a commission. Erwin vs. Yoorhies, 26 Barb., 127. See, 
 however, section 15 of the amended judiciary act, below noticed. 
 
 Nor has. he any power to entertain proceedings by way of habeas 
 corpus, in relation' to the custody of a minor child, that power being ex- 
 pressly given to "the court," by statute, 2 E. S., 148, 149, §§ 1, 2; 
 People vs. Humphreys, 24 Barb., 521. 
 
 On the ordinary habeas corpus he is, however, empowered to act 
 within the county in which a prisoner is detained. 2 E..S., 363, § 23 ; 
 or, in certain cases, in another, § 24. 
 
 The jurisdiction of the county judge in the above several respects 
 being of a limited nature, nothing can be presumed in its favor, and on 
 a proved state of facts, admitting of a reasonable doubt, will be against 
 it. People vs. Hurlbut, 5 How., 446 ; 1 C. E., (N. S.), 75 ; 9 L. 0., 245. 
 But, in the absence of proof, nothing will be so presumed. Bourns re. 
 Harris, 4 Comst., 374. 
 
 It must be borne in mind, that the restrictions on the power of the 
 county judge above noticed, refer only to his action in causes pending 
 in the Supreme Court, in which he acts as a mere deputy for one of the 
 justices of that tribunal. To those commenced in his own court, they 
 do not apply. In this branch of jurisdiction, his action is as unfettered 
 as that of any other judge, either on interlocutory application, or other- 
 wise. Nor is a judge of the Supreme Court at liberty to interfere with 
 that action, and, should he attempt to do so, his order will be vacated. 
 Blake vs. Locy, 6 How., 108. 
 
 Under section 13 of the amended judiciary act, chapter 470, of 1847, 
 
52 OF THE SUPREME COTTBT. § 16. 
 
 the county judge was empowered to allow writs of ne exeat in suits 
 arid proceedings in the Supreme Court, and this power would seem to 
 be still existent, in those cases in which that writ may still be held is- 
 suable. See hereafter, under the head of arrest. 
 
 By section 15 of the same measure, an application for a commission 
 in an action at law, may be made to a county judge at chambers, in 
 the county of his residence, wherever the venue may. be laid. This pro- 
 vision would seem to be nearly, if not entirely obsolete ; the subject 
 of motions in general, and the powers of the county judge in such cases, 
 being now regulated by the Code. iSee Sturgess vs. Weed, 13 How., 
 130. 
 
 The original powers of the ofiSce of Supreme Court commissioners, 
 were conferred by article II., title II., chapter III., part III., of the Ee- 
 , vised Statutes. 2 E. S., 280, 281. Their powers extended generally 
 to the performance of all duties, and the execution of every act, power, 
 and trust, which a justice of the Supreme Court might perform out of 
 court, according to its rules and practice, or pursuant to any statute (§ 
 18). By section 32, every recorder of a city, and every judge of a 
 coxinty court, of the degree of counsellor-of-law, were commissioners, 
 ex officio ; and by section 33, the same authority was conferred on the 
 judges of the Superior Court of the city of New York. The judges of 
 the latter tribunal are also, by section 23 of the act for its establish- 
 ment, chapter 137, of 1828, " authorized to perform all the duties which 
 the justices of the Supreme Court out of term, are authorized to do and 
 perform, by any statute of this state." 
 
 By section 8, article XIV., of the Constitution of 1846, the office of 
 Supreme Court commissioners was abolished from the first Monday of 
 July, 1847. Before the date in question, i. e., on the 12th of May, 
 chapter 255 of the laws of that year was, however, passed, providing 
 for the election of justices of the Superior Court, and Court of Common 
 Pleas ; and by section 7 it was enacted, " that the justices of the Supe- 
 rior Court should have and possess the same powers, and perforrii the 
 same duties, as the justices of that court now possess and perform." 
 
 In Benard vs. JIargous, 2 Duer, 540, the question came up as to 
 whether, under the seption last cited, the power of a justice of the Su- 
 perior Court to exercise ex officio the powers of a Supreme Court com- 
 missioner was or was not still continued, notwithstanding the formal 
 abolition of the office. It was decided in the affirmative, and this de- 
 cision has been affirmed by the Court of Appeals. Benard vs. JS'argous, 
 3 Kern., 259. See, also, People vs. Porter, 1 Duer, 709, 11 ; L. 0., 228. 
 
 By chapter 121 of 1849, section 4, it was provided that the recorder of 
 .the city of Troy, or in his absence or inability the mayor of that city, 
 might exercise the powers conferred on county judges, by the provisions of 
 
OF THE SUPEEME COUET. § 16. 53 
 
 the code, in relation to supplementary proceedings, and also the powers 
 ot a judge of the Supreme Court at chambers. In Griffin vs. Griffith: 6 
 How., 428, it was held that this provision was unconstitutional, as tend- 
 mg to revive the office of Supreme Court commissioner ; and that an 
 order m a Supreme Court action, granted by the officer in question, 
 was void. This case is, however, overruled, and the constitutionality 
 • of the statute in question affirmed by the Court of Appeals, in Huyner 
 vs. James, 17 JST. Y., 316. 
 
 By chapter 320 of 1848, the powers of a judge of the Supreme Court 
 at chambers are conferred on the recorder of Hudson ; and, by chapter 
 374 of the same year, on the recorder of Oswego. The city judge of 
 New York and the recorder of New York have also similar powers. 
 See Avery's Case, 6 Abb., 144, and Laws of 1847 and 1850 there 
 cited. 
 
 By chapter 125 of 1849, section 26, it is provided that the judge of 
 the city court of Brooklyn may " exercise within the county of Kings 
 all the powers of a justice of the Supreme Court at chambers." This 
 officer stands, therefore, on the same footing, as regards the making of 
 ex parte orders in the Supreme Court, as those previously mentioned. 
 Cushman vs. Johnson, 13 How., 495 ; 4 Abb., 256. The same powers 
 are conferred on the justices of the Superior Court of Buffalo, by chap. 
 96 of 1854, section 24 and 25 ; amended by chapter 361 of 1857. 
 
 In Cushman vs. Johnson it was held, however, that, under the statute 
 above referred to, the powers of the city judge of Brooklyn do not ex- 
 tend to the exercise of jurisdiction in supplementary proceedings on a 
 judgment of the Supreme Court. The opinion also maintains that it 
 was incompetent for the legislature to confer upon the officer in ques- 
 tion any of the powers of a Supreme Court commissioner ; but, so far, 
 the case is undoubtedly overruled hj ITaynervs. James, 17 N. Y., 316, 
 above cited. 
 
 In a case of habeas corpus for detention, the powers of the city judge 
 of Brooklyn, conferred as above, are limited ; and he cannot issue such 
 a writ running into another county, without proof that in such other 
 county there is no officer authorized to grant it, Yide 2 R. S., 563, § 23 ; 
 Dpoley's Case, 8 Abb., 188. And the decision is couched in genei-al 
 terms, and would seem to include within its scope a county judge or 
 any other officer exercising similar jurisdiction, not residing within the 
 county in which the prisoner is detained. 
 
 The powers of a judge or justice, now exercising the powers of a Su- 
 preme Court commissioner, are limited, and do not extend to the exer- 
 cise of general jurisdiction. On the statutory habeas corpus, in relation 
 to the custody of an infafit child, even a judge of the Supreme Court 
 cannot exercise the equitable powers of the court, unless invoked by 
 
54 OF THE COUNTY COTJETS. § 17. 
 
 special petition. People vs. Wilcox, 22 Barb., 1Y8 ; and an ex officio 
 Supreme Court commissioner cannot exercise any powers of that nature, 
 or do more than declare that infant at liberty to go where it pleases. 
 PeopU vs. Porter, 1 Duer, 709 ; 11 L. O., 228. 
 
 CHAPTEE IV. 
 
 OF THE COUNTY COURTS. 
 
 § 17. Jurisdiction and Powers — Statutory Provisions. 
 
 These tribunals exercise throughout the whole of the state, the 
 city and coiinty of New York excepted, a limited but extensive 
 jurisdiction in matters of a local nature, similar in its substantial 
 features to that formerly vested in the courts of Common Pleas 
 and general sessions, for counties. This jurisdiction is of a civil, 
 and also of a criminal nature, but the former alone enters within 
 the plan of this treatise. In the city of l^ew York itself, the powers 
 of the county judge, strictly so called, are merged in and form part of 
 the more extensive authority vested in the local tribunals considered in 
 the next chapter. 
 
 The present organization of the county court has its germ in section 
 14, article YI. of the constitution of 1846, which runs as follows: 
 
 § 14. There shall be elected in each of the counties of the state, except 
 the city and county of New York, one county jiidge who shall hold his 
 office four years. He shall hold the county court and perforin the duties of 
 the office of surrogate. The county court shaU have such jurisdiction in 
 cases arising in justices' courts, and in special cases, as the legislature may 
 prescribe, but shall have no original civil jurisdiction, except in such special 
 cases. 
 
 This section then proceeds to the effect following : 
 
 Subd. 1. Provides for the holding of courts of general sessions with 
 criminal jurisdiction. 
 
 2. Kelates to the salary of the county judge, to be fixed by the board 
 of supervisors. 
 
 3. Provides for the election of a special officer, to perform the duties 
 of surrogate, in counties having more than 40,000 inhabitants. 
 
 4. Euns thus : " The legislature may confer equity jurisdiction in 
 special cases upon the county judge." 
 
 And 5. Authorizes the establishment of inferior local courts of civil 
 and criminal jurisdiction in cities. 
 
OF THE COUNTY COUETS. § 1*7. 55 
 
 By article XIY. section 5 of the same instrument, jurisdiction of all 
 suits and proceedings originally commenced^ and then pending in any 
 court of Common Pleas (except in the city and county of New York), 
 is from the first Monday of July, 1847, vested in the Supreme Court. 
 By this provision, the abolition of the ancient jurisdiction, for which 
 the present county courts are in a great measure the substitute, was 
 consummated. 
 
 The election of county judges so directed, was organized by the legis- 
 lature, in the following session, by chapter 276 of the laws of 1847. 
 By art. 4 of the judiciary act, chapter 280 of 1847, further regulations 
 were made in relation to the court thus established, and the surrogates' 
 courts. • 
 
 The duties exercised by the county judge in the latter capacity, or 
 by his substitute, in those coimties in which a separate officer is elected, 
 and the practice before the judge or officer so acting, do not fall within 
 the cognizance of this present work, but will be found in the separate 
 treatises devoted to this particular subject. That practice is wholly re- 
 ■ gulated by statute, and the jurisdiction conferred is exercised independ- 
 ent of the forms adopted in an ordinary action or suit. 
 
 The jurisdiction of the county court was defined by section 36 of the 
 judiciary act, as being that which was then possessed and exercised by 
 the Courts of Common Pleas of the same county, or the Court of 
 Chancery, so far as should be consistent with the constitution and the 
 provisions of that act ; but, inasmuch as the whole of that jurisdiction is 
 remodelled by the Code itself, it seems needless to cite that section in 
 eootenso. 
 
 By the amended judiciary act, chapter 470 of 1847, the following 
 further regulations are made. In section 28 powers are given to these 
 courts to entertain applications for sale of the property of a religious 
 incorporation and the disposition of its proceeds. See Code, § 30, 
 sub. 9. 
 
 Section 31, of the same measure, contains a provision for transferring 
 into the Supreme Court any cases in which the judge of the county 
 court is incapable of acting, similar to that contained in subdivision 13 
 of section 30, as introduced in 1852, and amended and extended in 
 1860, as below noticed. Prior to the former year, the authority for that 
 purpose was only to be found in the section in question ; and the 
 county judge's duty to make a certificate of incapacity was, from 1852 
 to 1860, prescribed by that provision only, and not by the Code. As to 
 his duty to make such a certificate, pending this period, vide /Sheldon 
 vs. Albro, 8 How., 306. The section may also be considered as still in 
 force, so far as it defines the incapacities to which the provision is ap- 
 plicable. They are as follows : 
 
56 OF THE COUM^TY COURTS. § lY. 
 
 Whenever a 'cause or matter shall be pending in any county court, in 
 which the judge of such court shall have been attorney, solicitor, or coun- 
 sel, or shall be interested, or in which he would be excluded from being a 
 juror, by reason of consanguinity or aifinity to either of the parties, or in 
 the decision of which he shall have taken part, when sitting as a judge in 
 any other court, it shall be his duty, <fec. 
 
 The following special disqualifications are imposed by section 48, of 
 the same measure: 
 
 No county judge shall practise or act as an attorney, solicitor, or counsel- 
 lor, in any court of which he shall be or shall be entitled to act as a member ; 
 nor shall any partner or person connected in law business with any such 
 judge, practise or act as an attorney, solicitor, or counsellor, in any court 
 of which such judge shall be or shall be entitled to act as a member, or in 
 any cause or proceeding originating in such court ; nor shall any judge 
 practise or act as a counsellor in any cause or proceeding which shall have 
 originated in a court of which he shall be or shall be entitled to act as a 
 member. 
 
 9 
 
 In addition to the above, county judges are further subject to the 
 general disqualifications imposed on all judicial officers in common, as 
 noticed in the last chapter. 
 
 The jurisdiction of these tribunals is now definitely laid down in 
 title IV., pal-t I., of the Code itself, as follows : 
 
 TITLE lY. 
 
 Of the County Courts. 
 
 § 29. (32.) All statutes now in force, conferring or defining the jurisdiction 
 of the county courts, so far as they conflict with this act, are repealed; and 
 those courts shall have no other jurisdiction than that provided in the next ' 
 section. But the repeal contained in this section shall not affect any pro- 
 ceedings now pending in those courts. 
 
 § 30. (33.) The county court has jurisdiction in the following special cases, 
 but has no original civil jurisdiction except in such cases : 
 
 1. Civil actions, in which the relief demanded is the recovery of a sum of 
 money, not exceeding five hundred dollars, or the recovery of the possession 
 of personal property, not exceeding in value five hundred dollars, and in 
 which all the defendants are residents of the county in which the action is 
 brought, at the time of its commencement : subject to the right of the Su- 
 preme Court, upon special motion for good cause shown, to remove any such 
 action to the Supreme Court before trial. 
 
 2. The exclusive power to review, in the first instance, a judgment ren- 
 dered in a civil action by a justice's court in the county, or by a justices' court 
 in cities, and to aflSrm, reverse, or modify such judgment. 
 
 3. The foreclosure or satisfaction of a mortgage, and the sale of mortgaged 
 
OF THE COUNTY COURTS. § 17. 57 
 
 premises situated within the county, and the collection of any deficiency on 
 the mortgage, remaining unpaid, after the sale of the mortgaged premises. 
 
 4. The partition of real property situated within the county. 
 
 5. The admeasurement of dower in lartd situated within the county. 
 
 6. The sale, mortgage, or other disposition of the real property, situated 
 within the county, of an infant or person of unsound mind. 
 
 7. To compel the specific performance, by an infant heir or other person, 
 of a contract, made by a party who shall have died before the performance 
 thereof 
 
 8. The care and custody of the person and estate of a lunatic or person 
 of unsound mind, or an habitual drunkard, residing within the county. 
 
 9. The mortgage or sale of the real property, situated within the county, 
 of a religious corporation, and the disposition of the proceeds thereof 
 
 10. To exercise the power and authority heretofore vested in such courts 
 of Comnion Pleas, over judgments rendered by justices of the peace, tran- 
 scripts 'of which have been filed in the ofiices of the county clerks in such 
 counties. 
 
 11. To exercise all the powers and jurisdiction conferred by statute upon 
 the late courts of Common Pleas of the county, or the judges, or any judge 
 thereof, respecting ferries, fisheries, turnpike-roads, wrecks, physicians, ha- 
 bitual di-unkards, imprisoned, insolvent, absent, concealed, or non-resident 
 debtors, jail-liberties, the removal of occupants fi-om State lands, the laying 
 out of railroads through Indian lands, and upon appeal from the determina- 
 tion of commissioners of highways, and all other powers and jurisdiction 
 conferred by statute, which has not been repealed, on the late court of Com- 
 mon Pleas of the county, or on the County Court, since the late Courts of 
 Common Pleas were abolished, except in the trial and determination of civil 
 actions ; and to prescribe the manner of exercising such jurisdiction, when 
 the provisions of any statute are inconsistent with the organization of the' 
 County Court. 
 
 ' 12. To remit fines and forfeited recognizances, in the same cases and like 
 manner as such power was given by law to Courts of Common Pleas. But 
 the first subdivision of this section shall not apply to the County Court of 
 the counties of Kings and Erie. 
 
 13. To grant new trials, or affirm, modify, or reverse judgments in actions 
 tried in such court, upon exceptions or case made, subject to an appeal to 
 the Supreme Court ; but in any action or proceeding pending in the County 
 Court in which the county judge is, for any cause, incapable of acting, it 
 shall be his duty to make a certificate of such fact, and file the same in the 
 office of the clerk of such county court; and thereupon jurisdiction of such 
 action or proceeding shall be vested in the Supreme Court, and such further 
 proceedings shall be had therein, according to the practice of Such court, as 
 might have been had in the county court, if such cause or matter had re- 
 mained therein ; but all such matters shall be heard or tried, in the first in- 
 stance, at a special term or circuit court held in the county where such ac- 
 tion or proceeding is situated. 
 
58 Of the county cofets. — § 17. 
 
 Subdivision ]3, as above cited, was passed as it now stands on the amendment of 1860. 
 The rest of the section, and the germ of the above subdivision, dates from 1852. 
 
 Prior to tliat year, many changes were made. In the original Code, the jurisdiction con- 
 ferred was, in many particulars, less extensive. In 1849, considerable alterations and addi- 
 tions were made. In 1851, the section was remodelled, standing, as to the first eleven sec- 
 tions, precisely, and as to the twelfth and thirteenth sections, substantially as it does now, 
 save only as regards the power of transfer into the Supreme Court in cases of incapacity. 
 That power was added, but in permissive terms only, and with less detail, on the amendment 
 of 1852, in which the present phraseology of subdivision 13 was fixed. 
 
 The above enumeration completes the consideration of the statutory 
 powers directly conferred by the title of the Code above considered. By 
 title Y., section 33, subdivision 2, the foUovs^ing further source of juris- 
 diction is opened by a provision analogous to that last above referred to. 
 
 " And any action or proceeding pending in any Mayor's or Recorder's 
 Court in which the judge is for any cause incapable of acting, may by 
 such court be transferred to the county court of the county, and there- 
 upon tlie papers therein on file in the Mayor's or Recorder's Court shall 
 be transmitted to the county court, which shall thenceforth have juris- 
 diction of such action or proceeding." 
 
 By chapter 193 of the laws of 1849, p. 291, amending the Revised 
 Statutes in relation to summary proceedings to recover the possession of 
 land, an appeal is, by subdivision of section 5, given to the county court, 
 in cases where those proceedings have been had before a justice of the 
 peace, similar to the appeal which lies from the judgment of such officers 
 in civil actions, except only that the decision of such county judge shall 
 be an affirmance or reversal of such judgment, and shall be final. 
 
 Original jurisdiction in the same class of proceedings was also speci- 
 ally conferred on the judgte of the county court by section 1 of the same 
 measure, and by section 28, article II., title X., chapter VIII., part III., 
 of the Revised Statutes thereby amended. 2 R. S., 512, § 28. But 
 this special jurisdiction would seem now to be merged in the more gen- 
 eral provisions of the present subdivision 13, of section 30, which attri- 
 bute to this court the whole of the powers and jurisdiction conferred by 
 statute on the late Courts of Common Pleas for the county, or on the 
 county court, since those courts were abolished. 
 
 These courts have also original jurisdiction of actions for the enforce- 
 ment of mechanics' liens for sums above $50, in all the counties of the 
 state except New York and Erie. See chapter 402 of 1854, section 6, 
 extended in its operation by chapter 204 of 1855, section 1. 
 
 In addition to the above, the following items of jurisdiction have also 
 been conferred upon these courts by separate statutes. 
 
 As to the liberties of jails, by chapter 21 of 1851, page 22. 
 
 By chapter 90 of 1860, p. 151, section 4, 5, 6, they were also empowered 
 to take cognizance of the proceedings thereby authorized in relation to 
 
OF THE COUNTY COUETS. § 17. 59 
 
 tlie sale of the estate of a married woman without her husband's consent. 
 These sections are however wholly repealed by chapter 172 of 1862, p. 
 343, without any substitute being provided. 
 
 § 31. (34.) The County Court is always open for the transaction of any bu- 
 siness for 'which no notice is required to be given to an opposing party. At 
 least two terms in each county for the trial of issues of law or fact, and as 
 many more as the county judge shall appoint, shall be held in each year, at 
 the places in the counties respectively designated by statute for holding county 
 or cu-cuit courts, on such days as the county judge shall, from time to time, 
 appoint, and may continue as long as the court deem necessary. 
 
 Notice of such appointment shall be published in the state paper, at least 
 four weeks before any such term, and also in a newspaper, if any, printed in 
 " the county ; so many of such terms as the county judge shall designate for 
 that purpose, in such notice, may be held for the trial of issues of law, and 
 hearing and decision of motions and other proceedings at which no jury shall 
 be required to attend. 
 
 The section, as it now stands, dates from 1851. 
 
 In 1849, tlie first sentence was- omitted altogether, -and the rest of the first clause was dif- 
 ferently worded. 
 
 In 1848, the system of practice, now regulated by this and tlie next section, was provided 
 for at greater length, and with greater detail, by sections 34 to 38 of that measure, both in- 
 clusive. 
 
 § 32. Jurors for the county courts, and courts of sessions, shall be drawn 
 from the jury-box of the county, and summoned in the same manner as for 
 the trial of issues at a circuit court. 
 
 First introduced in 1849, in substitution for the provisions of 1848, above referred to. 
 
 It wiE be observed that, by section 24 of the Code, cited in the last chapter, these tribu- 
 nals possess the same powers as the Supreme Court for adjourning their terms, when held, 
 and making all necessary arrangements for that purpose. 
 
 As also noticed in that chapter, they possessed, from 1851 to 1858, cognizance of actions 
 commenced before a justice, but discontinued, on the ground of the title to real estate being 
 brought into question; but, since 1858, that branch of jurisdiction is restored to the Supreme 
 Court. 
 
 Before passing on to the general consideration of the jurisdiction of 
 these courts, it may be a convenience to the reader simply to refer to 
 the provisions of the Revised Statutes, in reference to which the special 
 powers of these courts, as above enumerated, are severally exercisable, 
 though of course without entering into any discussion on those subjects. 
 
 The statutory directions respecting foreclosure, wiU be found at 2 
 E. S., 191-194, in connection with the jurisdiction of the late Court of 
 Chancery. These special provisions are now, in great part, obsolete, 
 being merged in the more recent and general amendments of the Code, 
 but they are alluded to here, as being especially referred to in the case 
 of Arnold vs. Itees, below commented upon. 
 
 ']!'he statute law as to partition, obtained by way of petition, and not 
 
60 OP THE COUNTY COUKTS. § lY. 
 
 by ordinary suit, is contained in title III., chapter .Y., part III., of those 
 statutes, 2 K. S., 316-333. 
 
 That as to the admeasurement of dower, will be found in title YII., 
 of chapter VIII., of the same part, 2 R. S., 488^93. 
 
 That as to the sale or otiier disposition of the real estate of infants, 
 and the specific performance of contracts by infant heirs, at 2 E. S., 
 194-197. 
 
 That as to the care of the person, and the disposition of the estate 
 of persons of unsound mind, at 2 R. S., 52-56. 
 
 The general act for the incorporation of religious societies, is that of 
 the 5th of April, 1813. Laws of 1813, ch. 60. Various amendments 
 of that act have since taken place, and various local acts passed by the . 
 legislature, which will be found in vol. III. of the third edition of the 
 Revised Statutes, and in the laws of the different years since that edi- 
 tion was published. 
 
 The provisions of the Revised Statutes as to the powers of the courts 
 of common pleas over justices' judgments, will be found at 2 R. S., 
 245-249. 
 
 The statiite law as to ferries, at 1 R. S., 526-528. 
 
 That as to fisheries, at 1 R. S., 687-690. See likewise, numerous local 
 statutes. 
 
 As to turnpike roads, 1 R. S., 695-697. 
 
 As to wrecks, 1 R. S., 690-695. 
 
 As to physicians, 1 R. S., 452-456. 
 
 As to habitual drunkards, 2 R. S., 52-56. 
 
 That as to imprisoned, insolvent, absent, concealed, or non-resident 
 debtors, at 2 R. S., 1 to 52, i. e., in ch. V., of part II., title I., passim. 
 See also act of April 26, 1831, following the provisions above referred 
 to, in the more recent editions. 
 
 As to thehberties of jails, 2 R. S., 432^37. 
 
 As to the removal of occupants from state lands, 1 R. S., 206, § 52-55. 
 
 As to the laying out of railroads through Indian lands. Laws of 1836, 
 ch. 316. 
 
 As to appeals from the determination of commissioners of highways, 
 1 R. S., 518-521, and subsequent amendments by ch. 180, of 1845. 
 
 The general jurisdiction of the late courts of common pleas, will be 
 found laid down in title V., ch. I., part III., of the Revised Statutes, 2 
 R. S., 208-218. See also, sundry local and other statutes, accompanying 
 those provisions in the more recent editions. 
 
 *rhe provisions as to the collection and remission of fines and forfeited 
 recognizances, are contained in art. II., title VI., ch. VIII., part III,, 
 of the Revised Statutes, 2 R. S., 483-488. 
 
OF THE COinSTTT COUETS: — S 18. 61 
 
 § 18. Jurisdiction generally considered. 
 
 The limits of the original civil jurisdiction in ordinary actions, con- 
 ferred or attempted to be conferred on these tribunals, by the amend- 
 ment of 1851, as above noticed, have been the subject of considerable 
 discussion, and the question seems still involved in some obscurity, 
 owing to the diversity of opinion as to the precise limits and extent of 
 the term " special cases" employed by the framers of the Constitution 
 of 1846, in section 14 of article VI., above cited. The exercise of 
 their appellate or other authority, in cases arising in justices' courts, is 
 free from that difficulty. 
 
 In Eundolf vs. Thalheimer, 2 Kern., 593, the Court of Appeals de- 
 cided, nemine dissentiente, that, in an action for assault and battery, these 
 courts have no jurisdiction, and that section 30, so far as it professes to 
 confer that jurisdiction, is unconstitutional ; and the reasoning of the 
 learned judges who came to that conclusion, is not based upon any 
 peculiarity in the remedy, but embraces within its scope the whole 
 class of common law actions of whatsoever nature. A dictum to the 
 same effect will be found in Griswold vs. Sheldon, 4 Comst., 581. In 
 the previous cases o?Dayharsh\a. Eno, 1 Seld., 531 ; ^^.^l Frees vs. Ford, 
 2 Seld., 176 (also incorrectly reported 1 C. E. (N. S.), 413) ; the point 
 did not come up. In the former, it was not raised at all ; in the latter, 
 the court expressly declined passing upon it. The views to the con- 
 trary entertained in Beeoher vs. Allen, 5 Barb., 169, are necessarily 
 overruled by this decision. Kundolf vs. Thalheimer, is also sup- 
 ported, as to common law actions, by Doubleday vs. Heath, 16 N. Y., 
 80. Vide opinion of Denio, J., p. 82. 
 
 The principle laid down in the former decision is, however, strongly 
 attacked by Comstock, J., in his opinion in Arnold vs. Bees, 18 K Y., 
 57 ; 7 Abb., 328 ; 17 How., 35 ; and, at first sight, this case, which up- 
 holds the jurisdiction of these courts in an ordinary suit for foreclosure, 
 would seem to be in conflict with the above. On a more close exam- 
 ination, however, the remark does not seem to hold good. The views 
 of Judge Comstock are supported by Judges Eo'osevelt and Pratt 
 only ; Judges Johnson and Denio were for reversal, on the ground that 
 foreclosure under our statutes is an exceptional and peculiar case, in 
 which jurisdiction in the County Courts is to be upheld, for the same 
 reasons are assigned in respect to partition in Doubleday vs. Heath, 
 before referred to ; Judge Selden expressed no opinion, whilst Judges 
 Harris and Strong dissented, the former delivering an opinion sustaining 
 the principle of interpretation in Kundolf y6. Thalheimer. See Ee- 
 port, p. 68. 
 
62 OF THE COXJNTT COTTKTS. — § 18. 
 
 Arnold vs. Bees decides, as above noticed, in favor of the jurisdic- 
 tion of these courts, in a suit for foreclosure. This decision of necessity 
 overrules that of Hall vs. Ndson, 23 Barb., 88 ; 14 How., 32, in which 
 the contrary conclusion is come to, on the authority of Kundolf vs. 
 Thalheimefr. 
 
 The jurisdiction in these cases is also supported in Benson vs. Cfomr 
 well, 26 Barb., 218 ; 6 Abb., 83, in which that case is fully commented 
 on, and a distinction drawn .between ordinary actions at law and cases 
 in equity, subdivision 4 of article XIV. of the Constitution being 
 specially alluded to. 
 
 In Dovhleday vs. Heath, 16 IST. Y., 80, before alluded to, the jurisdic- 
 tion of these courts is upheld in an action for the partition of land. In 
 one point of view the report seems unsatisfactory. .The opinion of 
 Denio, J., proceeds throughoiit on the assumption that a proceeding for 
 partition being commenced by petition, without suit, is of a summary 
 and special character, for which reason it may be considered a " special 
 case." He also assumes that by section 448 of the Code, the forms of 
 the Eevised Statutes are adopted, p. 82, when the section itself runs 
 that the general provisions of those statutes shall apply to actions for 
 partition brought under that act, ''so far as the same can he so a/ppUed 
 to the substance and subject matter of the action, without regafd to 
 form.'''' 
 
 He also says, in another place, alluding to the ancient writ out of 
 chancery, de pa/rticipatione facienda, " Suits for partition thus became 
 regular actions, and if the practice of partitioning lands in this form 
 had been continued in this state, and if the present action was of that 
 character, I do not see how it could be considered a special case, within 
 ■the constitutional provision," p. 83. By the statement of the case, p. 
 80, it appears that the proceedings were instituted, not by petition, but 
 by summons and complaint, thus making it not a special proceeding, 
 but a regular action under the Code ; that the defendants appeared and 
 answered, and that the questions as to the construction and validity of 
 the will of the original testator raised by the pleadings were regularly 
 litigated. The reasoning of the learned judge, in which all the others 
 seem to have concurred, appears therefore in direct conflict with the 
 decision pronounced, and in affirmance of the general principle laid 
 down in Kundolf vs. Thalheimer. 
 
 In this point of view the case seems not to justify, but, on the con- 
 trary, to impugn the conclusion come to in Arnold vs. Eees, foreclosure 
 having always been a proceeding in the nature of an ordinary suit in 
 chancery, commenced and prosecuted as such, and not by virtue of any 
 special statutory authority; such statutory directions as exist being 
 merely applicable to some few of the details, and not to the essential 
 
OF THE COUNTY COURTS. — § 18. 63 
 
 principles of that remedy. See also dissenting opinion of Harris, J., 
 in Arnold vs. Hees, 18 N. Y., 72. 
 
 The result of the above cases "would tend to show that the original 
 jurisdiction of these courts, in actions at law, is denied by the court of 
 last resort ; and that even in suits in equity commenced and prosecuted 
 in the ordinary manner, and not dependent in their essence on the 
 powers conferred by any special statutory authority, that jurisdiction, 
 though for the present partly supported, is still involved in doubt; and 
 ' that the whole question of such original jurisdiction may not improb- 
 ably be made the subject of deliberation by that tribunal on some 
 future occasion, according to the principles laid dow^n in Gv/rtis vs. 
 Lea/vitt, and Leavitt vs. Blatohford, and other cases referred to in a pre- 
 vious chapter. That this may be so, is in fact expressly assumed by 
 Comstock, J., in his opinion in Arnold vs. Rees, recommending the 
 judgment which was in fact entered. F*<^e 18 IST. T., 59-61. See also; 
 as to the non-existence of general equitable jurisdiction in these courts 
 in relation to the exercise of a power specially conferred, Wheaton vs. 
 Gates, 18 IST. Y., 395. 
 
 These courts, though exercising substantially the powers of the late 
 courts of common pleas, are not, like them, courts of general, but of 
 limited and statutory jurisdiction. All facts conferring that jurisdic- 
 tion, must, therefore, of necessity, appear upon the record, or their 
 judgments will not be sustained. Frees vs. Fm'd, 2 Seld., 1Y6 ; 1 C. E. 
 (E. S.), 413. This overrules the reasoning on that point in Kundolf 
 vs. Thalheimer, IT Barb., 506 ; reversed on another point, as above 
 noticed, 2 Kern., 593. See also Oormley vs. Mcintosh, 22 Barb., 271; 
 and The People vs. Soper, 3 Seld., 428. See, likewise, The People vs. 
 HuTbert, 5 How., 446 ; 1 C. R. {^. S.), 75 ; 9 L. 0., 245. Nothing 
 can be presumed in favor of the jurisdiction of an inferior court ; but, 
 on the contrary, nothing will be intended against it, unless actually 
 shown. Barnes vs. Harris, 4 Comst., 374. 
 
 A judgment by these courts for an amount exceeding that limited by 
 the statute which confers jurisdiction is void. Griswold, vs. Sheldon, 
 4 Oomst., 581 (585 per Bronson, J.), 1 O.R (N. S.), 261. 
 
 In the case of an habitual drunkard, it has been held that the juris- 
 diction of these courts is, by the conjoint operation of subdivisions 8 
 and 11 of section 30, when read in connection with section 2, of title 
 II. tjhapter Y., part II., of the Eevised Statutes, 2 E. S., 52, limited 
 to eases where the property of such drunkard does not exceed $250, and 
 that any proceeding involving a larger amount, will be void for want 
 of jurisdiction. In re Smith, 16 How., 567. 
 
 The power of the county court in proceedings for the sale of the 
 estate of a religious incorporation, is of a strictly limited nature, and 
 
64 OF THE COUNTY COURTS. § 18; 
 
 if, in such a proceeding, the judge goes on to authorize any application 
 of the proceeds not strictly warranted by the statute, his order will be 
 inoperative for want of jurisdiction. Wheaton vs. Gates, 18 N. Y., 395. 
 He exercises the powers heretofore conferred by statute on the chancel- 
 lor, as such, not those of the late court of chancery, which are now 
 vested in the Supreme Court. 
 
 An action of trespass, arising in a justices' court, and transferred to the 
 county court, on the ground of title to land being in question, was held _ 
 by the court of appeals, to be a case arising in a justices' court, and that 
 jurisdiction had therefore been acquired, the legislature being suf- 
 ficiently empowered by the constitution to confer it in such cases, Cooh 
 vs. JSfelUs, 18 N. Y., 126. See, likewise, The Clyde and Rose Plank- 
 road Company vs. Baker, 12 How., 371 ; and Brown vs. Brown, 2 
 Seld., 106. 
 
 In Mosier vs. Hilton, 15 Barb., 657, it was held, that a power given 
 by special statute to a local county court, in relation to the acquisition of 
 real estate, by a railroad company, was not afiected by the general repeal 
 in section 29, but was saved and is still subsisting, under subdivision 11, 
 of section 30, and section 471; and McAllister vs. Albion Plankroad 
 Cmnpany, 11 Barb., 610, maintains the same doctrine as generally ap- 
 plicable to proceedings authorized to be taken in the county court by 
 any special statute, this decision being based on section 471 alone. 
 
 As regards the appellate, jurisdiction of these tribunals, it is held in 
 The People Y&. County Judge of Rensselaer, 13 How., 398, to extend 
 to the judgm.ent of a justice in proceedings under the mechanics' lien 
 law, as well as to one rendered in all ordinary actions. 
 
 It must be borne in mind that, with the exception of their appellate 
 powers, and some few items of the peculiar statutory authority formerly 
 -i-ested in the Courts of Common Pleas, and now attributed to these tri- 
 bunals, the Supreme Court exercises an equal, or rather a paramount 
 jurisdiction over the same matters; and, in the event of any conflict 
 with that jurisdiction, possesses the power in most instances of removing 
 the controversy within its own cognizance, by means of certiorari, pro- 
 hibition, or special order of removal, as prescribed in subdivision 1 of 
 section 30. 
 
 With the details of the proceedings, in which these courts exercise 
 original jurisdiction, the Sxipreme Court cannot interfere. So held, and 
 order made by a justice of the Supreme Court in supplementary pro- 
 ceedings on a county court judgment, vacated in Blake vs. Looy, 6 How., 
 108. 
 
 The proceedings in these courts are, under section 470, governed by 
 the rules of the Supreme Court from time to time, so far as the same 
 may be applicable. 
 
OF THE COURTS OF CITIES. — § 19. 65 
 
 Tlieir jurisdiction, as common law tribunals, in proceedings for the 
 naturalization of aliens, is maintained in The People vs. Pease, 30 Barb.,-1'*' 
 588. (600.) 
 
 CHAPTER V. 
 
 OF THE COURTS OF CITIES. 
 
 § 19. JurisiliGtion and Powers — Statutory Provisions. 
 
 Thkse Courts, all of statutory and comparatively recent origin, pos- 
 sessed, when first established, a jurisdiction analogous in most respects 
 to that of the tribunals treated of in the last preceding chapter, but of 
 a strictly local nature. Since that establishment, the powers of several 
 of these tribunals have been greatly augmented by successive enact- 
 ments. In those created in the cities of New York and Buffalo, this 
 has been done to such an extent as to place their jurisdiction, once ac- 
 quired, substantially on the same footing as that of the Supreme Court. 
 This peculiarity increases the difhculty of treating the subject of the 
 ■ general jurisdiction of this class of courts in a general point of view. 
 This difficulty is not diminished by the fact that some of the earlier 
 statutes, and also the section of the Code which defines their jtirisdiction, 
 are partly of general and partly of special application. 
 
 In treating of the statutory provisions applicable to these courts, it is 
 proposed to cite, first, the provisions of the constitution, which, with one 
 exception, bear upon the question in a general point of view ; secondly, 
 the provisions of the Code itself, applicable to these tribunals in general, 
 drawing attention to the distinctions between the New York courts 
 and those of other cities, apparent on the face of those provisions; and 
 thirdly, to cite those sections of the Code itself, and such other statutes 
 or statutory provisions as bear upon any one or more of these couiiB, 
 eeparately and independently considered. 
 
 (a.) Constitutional Feovisions. 
 
 The constitution itself provides both prospectively and retrospective- 
 ly upon the subject. 
 
 The j/i'ospective provisions are contained in subdivision 5 of section 
 14, and in section 21 of article VI., and run thus : 
 
 § 14, subd. 5. Inferior local courts of civil and criminal jurisdiction^ 
 Vol. L— 5 
 
66 OF THE COURTS OF CITIES. § 19. 
 
 may be established by the legislature in cities ; and such courts, except 
 for the cities of New York and Bufialo, shall have an uniform organization 
 and jurisdiction in such cities. 
 
 § 21. The legislature may authorize the judgments, decrees, and de- 
 cisions of any local inferior court of record, of original civil jurisdiction, 
 established in any city, to be removed for review directly into the Court of 
 Appeals. 
 
 The retrospective clauses are contained in article XIY. In section 
 6, providing for the transfer to the Supreme Court of all suits and pro- 
 ceedings pending in any Court of Common Pleas, there is a special 
 exception of that in the city and county of New York. 
 
 By section 12, it is thus provided : 
 
 All local courts established in any city or village, including the Supe- 
 rior Court, Common Pleas, Sessions and Surrogates' Courts of the city and 
 county of New York, shall remain until otherwise directed by the legislature, 
 with their present powers and jurisdiction. The judges, clerks, &c., to con- 
 tinue in office for their then terms, or until the legislature should otherwise 
 direct. 
 
 (5.) Pbovisions of Code of Geneeal Application. 
 
 These provisions are contained in section 33, which runs as follows : 
 
 § 33. (39.) The jurisdiction of the Superior Court of the City of iSTew 
 
 York, of the Court of Common Pleas for the City and County of New York, 
 
 of the Mayors' Courts of cities, and of the Recorders' Courts of cities, shall 
 
 extend to the following actions : 
 
 1. To the actions enumerated in section one hundred and twenty-three 
 and one hundred and twenty-four, when the cause of action shall have 
 arisen, or the subject of action shall be situated, within those cities res- 
 pectively. 
 
 2. To all other actions where all the defendants shall reside, or are person- 
 ally served with the summons, within those cities respectively, or where one 
 or more of several defendants, jointly liable on contract, reside or are per- 
 sonally served with the summons, within those cities respectively, except in 
 the case of Mayors' and Recorders' Courts of cities, which courts shall only 
 have jurisdiction where all the defendants reside within the cities in which 
 Buch courts are respectively situated. The Supreme Court may remove • 
 into that court any action brought under this subdivision, and pending in 
 the Superior Court, or Court of Common Pleas for the city and county of 
 New York, and may change the place of trial therein, as if such action had 
 been commenced in the Supreme Cour ; such order for removal and for 
 change of place of trial to be made in the Supreme Court upon motion ; and, 
 on filing a certified copy of such order in the oflJce of the clerk of the 
 Superior Court, or of the Court of Common Pleas, such cause shall be 
 deemed to be removed into the Supreme Court, which shall proceed therein 
 as if th^ same had originally been commenced there ; and the clerk with 
 
OF THE C0UET3 OF CITIES. — § 19. 67 
 
 whom such order is filed must forthwith deliver to the clerk of the county 
 in which, by such order, the trial is ordered to be had, to be filed in his office, 
 all process, pleadings, and proceedings relating to such cause. Any action 
 or proceeding pending in any Mayor's or Eecorder's court, in which the 
 judge is for any cause incapable of acting, may by such court be transferred 
 to the county court; and thereupon the papers on file Ln the Mayor's or Re- 
 corder's court shall be transmitted to the county court ; which shall thence- 
 forth have jurisdiction of such action or proceeding. 
 
 3. To actions against corporations, created under the laws of this state, and 
 transacting their general business, or keeping an office for the transaction of 
 business within those cities respectively, or established by law therein, or 
 created by or under the laws of any other state, government, or country, 
 for the recovery of anf debt or damages, whether liquidated or not, arising 
 upon contract, made, executed or delivered within the state, or upon any 
 cause of action arising therein. 
 
 The actions enumerated in sections 123 and 124 are as follows : 
 
 In section 123: 
 
 1. For the recovery of real property or of an estate or interest therein, or for the determina- 
 tion in any form of such right or intefest, and for injuries to real property. 
 
 2. For the partition of real property. 
 
 3. For the foreclosure of a mortgage of real property. 
 
 4. For the recovery of personal property distrained for any cause. 
 In section 124: 
 
 1. For the recovery of a penalty or forfeiture imposed hy statute. 
 
 2. Against a public ofBcer or person specially appomted to execute his duties, for an act done 
 by him in virtue of his office, or against a person who, by his command or in his aid, shall do 
 any tiling touching the duties of such officer. 
 
 The above section (33) was established as it now stands upon the amendment of 1852. 
 
 In the original Code the jurisdiction was less extensive, and all were placed on the same 
 footing as regards its acquisition by residence or service. Nor was any given in actions 
 against foreign corporations. The power of transfer into the Supreme Court was also 
 absent. 
 
 In 1849 that power was added to the section, and it was otherwise verbally amended and 
 slightly extended in operatioo. 
 
 It remained in this form until the amendment in 1852. 
 
 (c.) Distinctions between New York and othee Local Teibunals.. 
 
 On a review of the above provisions, the' distinction to be drawn be- 
 tween the New York tribunals, and the Mayors' and Eecorders' Courts 
 of other cities, is obvious. ' 
 
 So far as it is conferred by subdivisions 1 and 3, their jurisdiction is 
 
 similar. 
 
 Under subdivision 2 there is a radical diiFerence. The Mayors' and 
 Recorders' Courts are only competent to act, where all the defendants are 
 resident within the cities in which they are situated. Their jurisdiction, 
 in the class of transitory actions, is, therefore, of a quad local, and so 
 far of an inferior nature. It cannot be acquired, as in the New York 
 
68 OF THE COUJKTS OF CiriES. — § 19. 
 
 courts, by the mere accident of service ; residence, and that a residence 
 of all the defendants, is a prerequisite to its acquisition. Another type 
 of inferiority is this, i. e., that the powers of the Supreme Court to 
 transfer within its own jurisdiction, by writ of habeas corpus or certio- 
 rari, any cause or proceeding pending in an inferior court, are still ap- 
 plicable to the Mayors' and Eecorders' Courts. The Superior Court and 
 New York Common Pleas are both, as hereafter shown, exempted from 
 this supervisory power, and the only authority the Supreme Court can 
 now exercise, in relation to them, is that specially conferred by tliis 
 subdivision. Over the other courts it remains, as before, a general 
 power. It will be seen, also, that the power of removal into the county 
 court, given by the last clause of the subdivision, is applicable to 
 the Mayors' and Eecorders' Courts only, and not to the New York 
 tribunals. 
 
 A similar distinction exists with reference to the review of tlieir de- 
 cisions. The appeal from those of the Mayors' and Eecorders' Courts 
 lies to the Supreme Court (Code § 344) ; from the New York tribunals 
 it lies directly to the Court of Appeals. Code § 11, 333. 
 
 {d.) Special Peovisions of Code. New Yoek Common Pleas. 
 
 Proceeding with the provisions of the Code, the next that occurs 
 
 is: 
 
 § 34. (40.) The Court of Common Pleas for the city and county of New 
 York, shall also have power to review the judgments of the Marine Court of 
 the city of New York, and of the justices' courts in that city. 
 
 In 1848, that power was attributed to the Superior Court. The present section dates from 
 1849. 
 
 In the year 1857, a singular inconsistency took place in the action 
 of the legislature upon this subject. 
 
 By section 76, of chapter 344, of that session, vol. I., p. 727, consoli- 
 dating the provisions relating to the district courts {i. e., the justices' 
 courts), in the city of New York, it was thus provided : " The provi- 
 sions of the Code of Procedure to review judgments in these courts" 
 (referring to the specific sections), " shall apply to said courts, except 
 that such appeals shall be to the Superior Court of the city of New 
 York." 
 
 This statute was passed on the 13th of April, 1857, and, by section 82, 
 was to take effect immediately. From that date, therefore, the jui-is- 
 diction in question, so far as regards those specific courts, stood retraus- 
 ferred from the Common Pleas to the Superior Court. 
 
 This change was of short duration, as, by section 21, of chapter 723, 
 of the Laws of the same year, vol. II., p. 560, amending section 352, of 
 
OF THE C0UBT8 OP CITIES, — § 19. 69 
 
 the Code, passed only four days after, i. e., on the ITth of April, 1857, it 
 was again provided that when the judgment to be reviewed should have 
 been rendered by a general term of the Marine Court of the city of 
 New York, " or by a justice of the justices' court of that city, the ap- 
 peal shall be to the Court of Common Pleas for the city of New York." 
 Though there is a regrettable confusion in the wording of these pro- 
 visions, owing to the change of nomenclature of the New York justices' 
 courts, effected by section 1 of the former statute, being unnoticed in 
 the latter, still, there is no doubt that the temporary change is annulled, 
 and the jurisdiction restored to the Common Pleas, after an interregnum 
 in the Superior Court of twenty-four days, chapter 723 not being pro- 
 vided to take effect immediately. 
 
 Tlie subject of this temporary transfer of jurisdiction was brought up 
 before the general term of the Superior Court, and, after consultation 
 with the justices of the Common Pleas, it was decided that the juris- 
 diction of the Common Pleas was restored, and that the Superior Court 
 abrogated, by the measure secondly above cited. Hawkins vs. Mayor 
 of New York, 5 Abb., 344 ; Bay vs. Swaokhammer, 5 Abb., 345, note. 
 See also, The People vs. Willis, 5 Abb., 205. The temporary doubt en- 
 tertained obiter in Davis vs. Hudson, 5 Abb., 61, has been disregarded, 
 and the practice so established, by consent of both the courts in ques- 
 tion. See statement at end of report, in Day vs. Swaclcliammer, supra. 
 
 (fi.) Special Peovisions of Code. Common Pleas and Supbkioe Coukt. 
 
 The Code, dealing with the two courts above mentioned, but not 
 with the other city courts, proceeds as follows : — 
 
 § 35. (41.) The Superior Court of the city of New York, and the Court 
 of Common Pleas for the city and county of New York, shall, within twenty 
 days, appoint general and special terms of those courts respectively, and pre- 
 scribe the duration thereof; and they may, from time to time, respectively, 
 alter such appointments ; and hereafter no fees shall be paid for any service 
 of a judge of either of those courts. 
 
 8 36. (42.) A general term shall be held by at least two of the judges of 
 those courts respectively, and a special term by a single judge. 
 
 8 37. (43.) Judgments upon appeal shall be given at the general term ; all 
 others, at the special term. 
 
 This provision is somewhat modified by suhsequent amendments in section 265, which au- 
 thorize judgments to be pronounced at general term, on exceptions heard there in the first 
 instance or on verdict subject to the opinion of the court. See also, section 47. 
 
 8 38. (44.) Theconcurrenceoftwo judges shall be necessary to pronounce 
 
 a iudgnient at the general term. If two do not concur, the appeal shall be 
 
 reheard. ' 
 
 8 39. A crier shall be appointed by the Superior Court of the city of New 
 
70 OF THE COURTS OF CITIES. — § 19. 
 
 York, and by the Court of Common Pleas for the city and county of New 
 York, respectively, to hold his office during the pleasure of the court. He 
 i<lian receive a salary to be fixed by the supervisors of the city and' county of 
 New York, and paid out of the county treasury. 
 
 This section dates from the amendment of 1849. By chapter 173 of the Laws of 1859, p. 
 4a 1, tlie power of filling a vacancy in the office of a judge of either of these courts, until the 
 commencement of the poUtioal year next succeeding the first subsequent annual election, is 
 given to the governor. 
 
 Both courts are now equally entitled to the benefit of section 28 of the Code. Vide Laws 
 of 1853, chapter 529, p. 992. 
 
 § 40. The Superior Court of the city of New York shall, from the first 
 day of May, one thousand eight hundred and forty-nine, consist of six jus- 
 tices. 
 
 This and the followmg sections, down to the end of the title, date from 1 849. They were 
 first enacted by chapter 124 of the laws of that yea;r, p. 168, passed March 24th, 1849, and 
 amended by chapter 337, p. 487, passed 10th April, one day before the Code, and both taking 
 effect immediately. These statutes are almost identical with the provisions before cited from 
 the Code itself, as amended in that year. The differences are merely verbal 
 
 The next three sections of the Code, originally forming part of the 
 statute first tibove referred to, are virtually obsolete. They provide as 
 follows : 
 
 § 41. For the election of three additional justices of this court at the an- 
 nual charter election in April, 1849. 
 
 § 42. For the taking of votes on that occasion. 
 
 § 43. For the classification and terms of office of the three additional 
 judges so elected. 
 
 The powers of the additional judges thus elected, were held to be co-ex- 
 tensive with those of the original justices of this court, by Oakley, J., in 
 Svffvs. Bennett, 2 C. R., 139. 
 
 The Code then proceeds thus : 
 
 § 44. After the expiration of the terms of office under such classification, 
 the term of office of all the justices of the Superior Court of the city of New 
 fork shall be six years ; and any vacancy occurring in the offices created by 
 this title, shall be filled in the manner prescribed for filling vacancies in the 
 office of the present justices. 
 
 Vide supra statute of 1859, in relation to the intermediate power of appointment given to 
 the governor in the event of such a vacancy. 
 
 § 45. The justices elected pursuant to this title, subject to the provisions 
 contained in section forty-nine, shall have the same powers, and perform the 
 same duties, in all respects, as the present justices of such Superior Court, 
 and shall receive the same salaries, payable in like manner. 
 
 § 46. A general term of the Superior Court may be held by any two of 
 the six justices thereof, and a special term by any one of them ; and general 
 and special terms, one or more of them, may be held at the same time. 
 
OF THE COURTS OF CITIES. — § 19. 7l 
 
 § 47. All civil suits at issue at the time of the passage of this act, that from 
 and after the first of May, 1849, shall be placed upon the calendar of the Su- 
 preme Court, at any general or special term thereof, to be held in the city of 
 New "i ork, and which shall be in readiness for hearing on questions of law 
 only, or are equity cases, may, by an order of that court, or of the judge hold- 
 ing such special term, be transferred to said Superior Court of the city of New 
 York, and to be heard at the general terms thereof. 
 
 In 1849, this section concluded with the words "hereinafter provided for,'' special provisions 
 being made by section 49 for the hearing of this class of cases by the three additional jiistioes 
 elected in that year. By chapter 2 of the laws of 1851, p. 8, those words are stricken out and 
 section 49 repealed. This class of cases are now nearly if not entirely run out, and when 
 heard at general term, are cognizable by any judges of the court holding that branch of it. 
 
 This section only applies to suits in equity, in which issue was joined 
 before the passing of the Code. An action commenced under the Code 
 was held not to be so transferable. Giles vs. Lyon, 4 Comst., 600 ; 1 
 C. R. (N. S.), 257. But when an issue had been so joined originally in 
 the late Court of Chancery, the case was held to be properly transferred. 
 Palmer vs. Zawrenoe, 1 Seld., 389. 
 
 § 48. The said Superior Court shall have jurisdiction of every suit so trans- 
 ferred to it, and may exercise the same powers in respect to every such suit, 
 and any proceedings therein, as the Supreme Court might have exercised, if 
 the suit had remained in that court. 
 
 Section 49, specially providing for the hearing of this class of cases, has been since repealed, 
 as above stated. 
 
 § 50. Appeals from the judgments of the Superior Court in such suits, may 
 be taken to the Court of Appeals, in the same manner as from the judgmente 
 of the Superior Court, in actions originally commenced therein. 
 
 § 51. The provisions of section twenty-eight of this act, shall apply to the 
 said Superior Court. 
 
 These provisions above cited in chapter III., entitle this court to rooms, attendants, fuel, 
 lights, and stationery at the charge of the county. The same privileges are extended to the 
 Court 'of Common Pleas by chapter 529 of the Laws of 1853, p., 992. 
 
 Provisions of other Statutss, a^licaUe to different Courts, as wider. 
 
 (f.) To SUPEEIOE OOTJET AND CoUET OF CoMMON PlEAS. 
 
 The provisions of section 21 of article YI. of the constitution, before 
 cited authorizing the decisions of any local inferior court of original 
 civil jurisdiction, established in a city, to be removed for review directly 
 into the court of appeals, were carried out as to these tribunals, by section 
 3 of the amended judiciary act, chapter 470 of the Laws of 1847, which 
 provides that writs of error thereafter issued to those two tribunals, shall 
 be issued from the court of appeals, instead of the Supreme Court, ther&^ 
 
72 OF THE COUlfTS OF CITIES. § 19. 
 
 tofore the appellate authority. This change, which in effect elevates 
 these two courts to an equality with the Supreme Court, in proceedings 
 in which jurisdiction is once acquired, is continued by the Code, which 
 provides for a similar review by way of appeal, sections 11, 333. The 
 Superior Court of Buffalo is, as below noticed, the only other local tri- 
 bunal which stands in the samt! category. 
 
 Both are specially exempted from any revisory jurisdiction of the Su- 
 preme Court, by way of writ of habeas corpus or certiorari: the Supe- 
 rior Court, by section 15 of chapter 137 of the Laws of 1828 — the Com- 
 mon Pleas, by chapter 32 of the Laws of 1844 — extending and applying 
 to it the section last cited. 
 
 In the same section will be found the gei-m of the provision for re- 
 moval in certain cases, in subdivision 2, section 33. It runs in these 
 word^ : " but the Supreme Court shall have authority to make an order 
 to remove into the said Supreme Court, any transitory action pending 
 in the said Superior Ccfurt, in which the trial ought to be had elsewhere 
 than in the city of New York." 
 
 By the 16th and 17th sections, provisions are made defining the prac- 
 tice in the Supreme Court, on a motion for that pnT|3ose ; and, by sec- 
 tion 18, power is given to any judge of the latter tribunal, or any officer 
 authorized to perform the duties of a judge of the Supreme Court at 
 chambers, to stay proceedings, pending an application for such an order. 
 
 By sections 4 to 7, inclusive, of chapter 186 of the Laws of 1830, 
 similar powers are given to the Supreme Court, in relation to actions 
 pending in the New York Common Pleas. 
 
 By sections 3 and 4 of chapter 276, of Laws of 1840, powers are 
 given to both these tribunals to compel a witness to make a deposition 
 for the purposes of any pending motion or proceeding. 
 
 By chapter 255 of the Laws of 1847, provisions are made for the 
 election of the justices of the Superior Court and the judges of the Court 
 of Common Pleas. These provisions affected both tribunals in common. 
 The judicial officers, in both, when elected, were to be classified so that 
 one of them should go out of office every two yeai-s— their terms of 
 office beginning on the first of January, 1848. After the expiration of 
 the terms, under such classification, the term of office of such judge* 
 or justices to be, for the future, six years— sections 3 and 4. This, it 
 will be seen, is substantially the same arrangement as that contained in 
 the Code, with reference to the additional justices of the Superior Court. 
 
 By section 5 provision is made for the filling of vacancies by election, 
 and, by section 7, the then powers of the judges of both courts are at- 
 tributed to those to be so elected: By section 6 the justices of the Su- 
 perior Court are to select one of their number to be chief-justice, and 
 the judges of the Common Pleas one of theirs to be first judge; and 
 
OF THE COURTS OF CITIES. § 19. 73 
 
 in default of selection, tlie justice or judge elected for a full term, and 
 having the shortest time to serve, to be such chief-justice or first judge. 
 The salaries of the officers in question are provided for by section 8, 
 provision being made by section. 10, as to their former fees. By section 
 9 the previously-existing offices of justice of the Superior Court, and 
 chiet-judge and associate judge of the Common Pleas, are abolished, and 
 the newly -appointed officers substituted, as from the 1st of January, 
 1818. 
 
 By section 49 of the amended judiciary act, chapter 470 of 1847, 
 the following special disqualification is imposed upon the officers in 
 question : 
 
 § 49. No jndge of the Superior Court of the city and county of New 
 York, and no judge of the Court of the Common Pleas for the said city and 
 county, shall practise or act as an attorney, solicitor, or counsellor in any 
 court. 
 
 In addition to this such officers are, of course, subject to the general 
 disqualifications befoi'e noticed in chapter III., under the head of the 
 Supreme Court. 
 
 By chapter 379 of 1860, p. 645, exclusive jurisdiction of actions and 
 special proceedings, in which tlie Mayor and Corporation of jSTew York 
 is a party defendant, is given to these two tribunals and to the Supreme 
 Court. 
 
 ig.) To THE SuPEXilOE CoTJET ALONE. 
 
 This Court was fii-st created and its jurisdiction defined by chapter 
 137 of the Laws of 1828. Its original cognizance v.'as that of a 
 court of law, and it was so styled in the title of that act. It consisted 
 of a chiet-justice and two associate justices, appointed by the governor, 
 holding office for terms of five years. It was empowered by section 5 
 to hear, try, and determine, according to law, all local actions arising 
 within the city and county of New York ; and all transitory actions, al- 
 though the same may not have arisen therein. Pi'ovisions were added 
 giving it the full powers and machinery of a Court of Record, to follow 
 generally the forms of the Court of Common Pleas, subject to altera- 
 tions by such rules of practice as the justices might, froji:i time to time, 
 establish. The process of the court, with the single exception of its 
 subpoenas, ran only within the city and county of New York, and not 
 into any other county in the state — sections 13, 14. Sections 15 to 18 
 contain the provisions above noticed, in relation to the removal of ac- 
 tions into the Supreme Coiirt. Under section 19, all writs of error upon 
 judgments of this tribunal, were made returnable before the Supreme 
 Court. Under section 22 its judgments, when docketed, became liens 
 upon real estate within the county. By section 23 full powers, the 
 
74 OF THE COXJBTS OF CITIES. — § 19. 
 
 same as those of the justices of the Supreme Court out of term, were 
 given to the justices of this tribunal out of court. By section 24 it waa 
 invested with appellate jurisdiction, in lieu of that previously existing 
 in the Supreme Court, over the Marine and Justices' Courts, to be ex- 
 ercised by writ of certiorari. Under section 27 power was given to 
 the Supreme Court, by consent of the parties, to transfer New York 
 causes to this tribunal. 
 
 Sundry formal amendments were made in this statute by chapter 2i 
 of 1830 and chapter 170 of 1834. The additional powers conferred by 
 sections 3 and 4 of the latter, for obtaining depositions to be used on a 
 motion, have been before noticed. 
 
 By sections 3, 4, and 5, of chapter 461 of 1837, the appellate jurisdiction 
 of this court, by writ of certiorari, as above, is more fully defined and 
 provided for. 
 
 By section 33, article II., title II., chapter III., part III., of the 
 Eevised Statutes, 2 E. S., 281, the judges of this court are, ^s noticed 
 in a previous chapter, invested with the full powers of Supreme Court 
 commissioners, except only that they cannot stay proceedings in that 
 tribunal. 
 
 (Ji.) To THE New Yoek Common Pleas alone. 
 
 The original jurisdiction of this tribunal is stated in title Y., chapter 
 I., part III., of the Eevised Statutes. Section 1 of that title (2 E, S., 
 208) provides generally for the continuance of a Court of Common 
 Pleas in each county, to possess the powers and exercise the jurisdiction 
 of the courts of Common Pleas of the former colony, with the additions, 
 limitations, and exceptions created and imposed by the constitution and 
 laws of the state : every such court to have powers : 1. To hear, try, and 
 determine, according to law, all local actions arising within the county, 
 for which such court shall be held ; and all transitory actions, although 
 the same may not have arisen within such couuty. 2. To grant new 
 trials. 3. To hear and determine appeals from justices' courts, in the 
 cases and in the rdanner prescribed by law. 4. To exercise the power 
 and jurisdiction conferred by law over the persons and estates of habit- 
 ual drunkards ; 'and 5. To exercise such other powers and duties as may 
 be conferred and imposed by the laws of this state. 
 
 General directions are then given in relation to the practice in these 
 courts. By section 22 (2 E. S., 215), the first judge of the County Courts 
 of the city and county of New York, and the mayor, recorder, and al- 
 dermen of that city were appointed judges ; and, by section 24, the clerk 
 of the city and county of New York was to be ex officio clerk of the 
 Court of Common Pleas for the city and county of New York. The 
 remaining section of the title in question, applicable to this court, con- 
 
OF THE COITBTS Oi" CITJJiJ. — § 19. 75 
 
 tained sundry regulations as to its practice generally, and also, as a 
 court of general sessions. 
 
 By chapter 88 of 1843, a special clerk was appointed for this court ; 
 and section 14, above noticed, was repealed. All judgments docketed 
 by such clerk, were, under section 3 of this statute, to be a lieu on real 
 estate in the city and county, the same as if docketed by the county 
 clerk ; but, by section 6 of chapter 104 of 1844, this power was taken 
 away, and a docketing with the county clerk made an essential pre- 
 requisite to the acquisition of such lien. 
 
 By chapter 186 of 1830, sundry regulations of practice were estab- 
 lished ; and, as before noticed, power was given to the Supreme Court 
 to remove into its own cognizance,. transitory actions, in which it was 
 proper that the venue should be changed. 
 
 By chapter 32 of 1844, this court was, as also before noticed, placed 
 on the same footing as the Superior Court, by abolition of the super- 
 visory power of the Supreme Court, by writ of oeriiorwri. 
 
 By chapter 94 of 1834, one associate judge ; and, by chapter 116 of 
 1839, an additional associate judge was appointed, and invested with' 
 the same powers as the first judge, thus making up the court as at pre- 
 sent constituted. 
 
 Consequent, upon the constitution of 1846, the organization of this 
 court and of the Superior Court was remodelled, and its jurisdiction 
 was subsequently defined by the Code, as above noticed. In 1854, the 
 following further addition was made to that jurisdiction, by section 6 
 of chapter 198 of the laws of that year, p. 464. 
 
 § 6. The said Court of Common Pleas for the city and county of New 
 York has power and jurisdiction of the following proceedings : 
 
 "To remit fines and forfeited recognizances in the same cases and in like 
 manner as such power was heretofore given by law to courts of Qommon 
 Pleas, and to correct and discharge the dockets of liens and of judgments 
 entered upon recognizances, and to exercise in the city of New York all 
 the powers and jurisdiction now or hereafter conferred upon or vested in 
 the said court, or the County Courts in their counties, and the powers and 
 iurisdiction which were vested in the Court of Common Pleas for the city 
 and county of New York before the enactment of the act designated as the 
 Code of Procedure, passed April 12th, 1848." 
 
 It will be seen that under the above section this court now possesses, 
 in addition to the jurisdiction conferred by section 33 as above cited, 
 the whole of the jurisdiction possessed by the other county courts, as 
 conferred by section 30. It is, therefore, peculiarly the County Com-t 
 for the city and county of New York. 
 
 By the same statute, chapter 198, of 1854, a special clerk of this 
 court is appointed, and provisions are made for the delivery to him, by 
 
76 OF THE COURTS OF CITIES. § 19. 
 
 the county clerk, of the property, books, and papers appertaining to the 
 court. This arrangement is that now subsisting. 
 
 By section 4 of chapter 513, of 1851, p. 954, original jurisdiction is 
 conferred upon this court, of proceedings under the mechanics' lien 
 law, such jurisdiction being exclusive, in cases where the claim exceeds 
 $100, and concurrent with the justices' and marine courts in cases under 
 that amount. And, by chapter 404 of the Laws of 1855, p. T60, any 
 application for payment out of any surplus moneys arising from the sale 
 of property foreclosed under a lien of this nature, is cognizable by this 
 court, and this court only. 
 
 By chapter 344 of 1857, section 3, subdivision 3, power is given to 
 any defendant in an action brought in the New York district courts, 
 where the claim or. demand shall exceed $100, to remove such cause as 
 of right into this tribunal, on executing an undertaking for the amount 
 of any judgment to be recovered against him. 
 
 But this transfer does not deprive the cause of its original character, 
 so far as an ultimate review is concerned. Leave must still be obtained 
 to carry up the case to Jhe Court of Appeals, the same as in cases de- 
 cided in a district or in the Marine Court in the first instance. SmMh 
 vs. White, 23 N. Y., 572. 
 
 (■i.) SUPEEIOE COUET OF BuFFALO. 
 
 This court bears in its jurisdiction and powers a close analogy to those 
 in New York. This, assimilation is foreshadowed in subdivision 5 of 
 section 14, article YI. of the constitution before cited, excepting the 
 cities of New York and Buffalo from the provision that inferior local 
 courts in cities shall have an uniform organization and jiirisdiction. 
 
 In its origin this court was the Recorder's Court of the city of Buffalo. 
 It was first established by chapter 210 of 1839; amended by chapter 109 
 of 1842. Its original jurisdiction extended to local actions arising in 
 that city, and not elsewhere, with exclusive jurisdiction of appeals from, 
 and the review by certwrari of judgments rendered by, any justice of 
 the peace in such city. It had also concurrent jurisdiction with the 
 county court (if Erie county of transitory actions, and the general powers 
 and authorities of a county court, and its judgments, when docketed, were 
 a lien on real estate in the county. By chapter 362 of 1848, power was 
 given to this court to review its decisions and grant new trials, and the 
 mayor of the city was authorized to act in the absence or during a va- 
 cancy in the office of recorder. 
 
 By chapter 138 of 1850, p. 208, the powers of the Recorder's Court 
 were largely increased, and were made equivalent to those possessed by 
 the county and New York tribunals at. that time. They are substan- 
 tially the same, with but little variation, as those conferred by the statute 
 
• OF THE COURTS OF CITIES. — § 19. Y? 
 
 next cited, and therefore, as they are lengthy, it seems unnecessary to 
 cite them twice over. 
 
 By chapter 96 of the laws of 1854, p. 222, the last named statute was 
 amended, and the present tribunal substituted for the Recorder's Court. 
 By chapter 361 of the laws of 1857, Vol., I. p. 753, sundry sections of 
 this act are again amended. In citing tliem the amended versions will 
 be given, drawing attention to the alterations made, as heretofore done 
 in relation to the different sections of the Code. 
 
 The substitution above noticed is effected by section 1. The statute 
 as amended runs as follows: 
 
 § 1. The Court known as the Eecoi>der's Court of the city of Buffalo, is 
 hereby contiaued with the additional jurisdiction conferred by this act. It 
 shall be composed of three justices, and shall be known as the Superior Court 
 of Buffalo. It shall be a Court of Eecord, and its jurisdiction shall in all cases 
 be presumed. But nothing in this act shall affect its jurisdiction of actions or 
 proceedings now pending therein ; nor does it affect any judgment or order 
 already made, nor any proceeding already taken. 
 
 Sections 2 to 7, provide for the organization of the court thus consti- 
 tuted. The then Recorder of Buffalo was to be one of the justices till 
 the expiration of his term. The office is made elective, and the term of 
 office is eight years. The two other justices were to be elected in April, 
 1854, and to be classified, the justice drawing the shortest term to serve 
 till the 31st of December, 1861; the other till the 31st of December, 1863 ; 
 their terms of ofiice to commence from the 1st of May then next. The 
 duration of this last term seems to conflict with the previous provision 
 fixing the term of office at eight years. 
 
 By sections 9 to 14 inclusive, the jurisdiction and powers of this tri- 
 bunal are defined as follows : 
 
 § 9. The said court shall have jurisdiction of the following actions and pro- 
 ceedings, where the cause of action arises, or the subject thereof is situate in 
 the city of Buffalo. 
 
 1. For. the recovery of real property, or of any estate or interest therein, 
 or for the determination, in any form, of any such right or interest, or claim 
 thereto, and for injuries to real property and chattels real. 
 
 2. For the partition of real property. * 
 
 3. For the foreclosure of mortgages of real property, and chattels real. 
 
 4. For the admeasurement of dower. 
 
 5. For the sale, mortgage, or other disposition of real property of an infant, 
 habitual drunkard, lunatic, idiot, and persons of unsound mind. 
 
 6. To compel a specific performance by an infant heir, or other person, of 
 a contract, respecting real property and chattels real. 
 
 7. For the mortgage or sale, by a religious corporation, of its real property, 
 and the application of the proceeds thereof. 
 
V8 OF THE COURTS OF CITIES. — § 19. 
 
 8. For the recovery of a penalty or forfeiture. 
 
 9. For the recovery of persoual property distrained for any*ause. 
 
 10. Against a public oiBoer or person specially appointed to execute his 
 duties, for an act done by him in virtue of, or under color of his office ; or 
 against a person who, by his command or in his aid, does any thing. touching 
 the duties of the office. 
 
 § ] 0. The said court shall have jurisdiction, also, in all other civil actions, 
 whether the cause of action arise or the subject of the action be situate in the 
 city of Buffiilo or not. 
 
 1. In an action arising on contract, when the defendant, or when one or 
 more of several defendants reside, or are personally served with the sum- 
 mons, or occupy a tenement for the transaction of his or her ordinary busi- 
 ness in that city, or when the contract was made in that city. 
 
 2. In an action for any other cause, vfhen the defendant or defendants pro- 
 ceeded against reside in that city, or occupy a tenement therein for the 
 transaction of their ordinary business, or are personally served with summons 
 in that city. 
 
 3. In an action arising on contract, or against common carriers, upon the 
 custom or duty, when all the defendants reside out of the state, but one or 
 more of them has property in the city. 
 
 4. When the defendant is a corporation, created under the laws of this 
 state, and transacts its general business, or keeps an office, or has an agency 
 established for the transaction of business in that city, or is established there- 
 in by law. 
 
 5. When the defendant is a corporation, created by or under the laws of 
 another state, government, or country, and has property in said city, or an 
 agency established therein. 
 
 6. When the action or proceeding is against the city of BuflFalo or its offi- 
 cers. 
 
 § 11. The said court shall also have the care and custody of all idiots, luna- 
 tics, persons of unsound mind, and habitual drunkards, residing in said city 
 of Bufialo, and of their real and personal estate. 
 
 § 12. The said court shall, within said city, have concurrent jurisdiction 
 with the Supreme Court,^ of writs of prohibition, of mandamus, of habeas 
 corpus, of certiorari, of ad quod damnum, of ne exeat, and of all other com- 
 mon-law and statutory writs ; of the remedies heretofore obtained by any 
 writ now abolished, which may now be obtained hy civil action, and of all 
 special proceedings whatsoever ; and shall have power to hear, adjudge, and 
 determine the same. 
 
 The said court shall also have exclusive jurisdiction in every case in which 
 the title to real estate shall come in question, in an action commenced in a 
 justices' court in said city, where such action shall be discontinued and an- 
 other action shall be commenced for the same cause, as provided by sections 
 55, 56, 57, 58, 59, 60, 61, and 62 of the Code of Procedure ; in every case 
 the condition of the undertaking required by the said fifty-sixth section shall 
 
OF THE COURTS OF CITIES. — § 19. 79 
 
 be, that the defendant shall give an admission in writing of the service of a 
 summons and complaint in the said Superior Court, if the plaintiff shall de- 
 posit such summons and complaint with the justice, as provided in. said 
 section ; all the provisions of the said sections applicable to County Courts 
 shall, in such actions, apply to the said Superior Court. 
 
 N. B. The first clause of the above section was inserted on the amendment of this statute 
 iu 1857. The second clause constituted the section as it stood in 1854. 
 
 § 13. In all cases where, by the provisions of this act, the jurisdiction of 
 the said court is not made to depend upon the personal service of the sum- 
 mons in the said city, the summons may be served in the same place and in 
 the same manner as it could be, if the action or proceeding were pending in 
 the Supreme Court of this state. ■ 
 
 § ]4. "Writs of subpoena, attachments for contempts, precepts for the 
 collection of interlocutory costs, and all writs and process awarded by said 
 court, or any judge thereof, may be issued to and executed in any county of 
 the state ; and the said court shall have the same powers as the Supreme 
 Court to enforce all its process, orders, and judgments, and to grant new 
 trials and rehearings. 
 
 This section as it stands dates from 185T. In 1854, the first clause of the section waa 
 confined to writs of subpoena only, and the words, "and rehearings," were omitted from the 
 second. 
 
 By sections 15 to 18, powers are given for the removal into the 
 Supreme Court of transitory actions, for the purpose of changing the 
 venue into another county, and also of any action by consent of the 
 parties, analogous to those previously noticed under the heads of the 
 New York Superior Court and Common Pleas. 
 
 By section 19, exclusive jurisdiction is given to the Court of Appeals 
 to review the judgments of this court, and provision is made for appeals 
 from the special to the general terms of the court itself, in all cases 
 where a similar appeal could be taken in the Supreme Court, in an 
 action or proceeding therein. 
 
 The former appeal, as in that tribunal, lies only from the decision of 
 the general term, and the Court of Appeals will not review a final 
 judgment rendered by the special term only, though consequent on a 
 previous decision on a demurrer reviewed by the full bench of the court. 
 HoUisUr Bank of Buffalo vs. Tail, 15 N. Y., 593: 
 
 The above section was amended in its phraseology in 1857. Its 
 purview was the same in 1854. 
 
 By section 20, this court is constituted as the final appellate tribunal 
 for review of judgments rendered by a justice of the peace of the city of 
 Buffalo, instead of the Supreme Court. See Burgart vs. Stork, 12 
 How., 559 ; see also, Code, § 352, amendment of 1862. But this clause 
 
80 OF THE CO0ETS OF CITIES.^§ 19. 
 
 does not extend to judgments in cases arising in justices' courts in the 
 county of Erie, out of the city. 
 
 By section 21, the judgments of this court, when docketed in any 
 county of this state, become liens, and are enforceable against the pro- 
 perty or person of the judgment debtor, precisely as judgments of the 
 Supreme Court. The remedy here given against the person, dates from 
 the amendment of 1857 ; the other portions of the section, from 1854. 
 
 Section 22 provides for the holding and adjournment of general and 
 special terms. The former, under section 23, may be held by two jus- 
 tices, and all issues at law are to be tried thereat. The concurrence of 
 two justices shall be necessary to pronounce a judgment at a general 
 term, and if two do not concur, the cause shall be reheard. The special 
 terms are to be held by a single justice, at which issues of fact are to 
 be tried. 
 
 By sections 24 and 25, provisions are made for the continual transac- 
 tion of chamber business by one of the justices ; and to each of such 
 justices there are given the powers of the former recorder of Buffalo, 
 and also, all the powers possessed by a justice of the Supreme Court 
 out of court, or at chambers^ Full provisions are also made for the 
 hearing or continuance, before any of the justices, of any notice or 
 proceeding noticed or commenced before another. 
 
 N. B. — These sections, as they stand, date from the amendment of 
 1857. The amendment of section 24 is merely formal ; that of section 
 25 radical and substantial. In 1854, it merely gave to each of the 
 justices the powers of a county judge in Supreme Court proceedings. 
 
 By section 26, all the provisions of the Code, except title IV., of part 
 XL, applicable to the Supreme Court, and not in conflict with the pro- 
 visions of that act, are made applicable to the court in question. 
 
 N. B. — ^The title referred to, is that which relates to the fixing and 
 change of venue. 
 
 Under section 27, the practice of this tribunal is to lie that of the 
 Supreme Court, subject always to such changes not inconsistent with 
 any statute, as may be made therein, by rules of the court in question. 
 The section goes on to provide for the recovery of the ordinary double 
 costs by public officers, or persons acting under them, on succeeding in 
 any action. 
 
 The 29th and 30th sections, both amended in 1857, provide for the 
 summoning and empannelling of jurors, and the furnishing suitable 
 places for transaction of the business of the court. 
 
 Sections 31 to 36, inclusive, relate to its criminal jurisdiction. 
 By section 37, all the provisions of law relating to the late Eecorder's 
 Court, not inconsistent with that act, are made applicable to the Supe- 
 rior Court. 
 
OF THE COUETS OP CITIES. § 19. 81 
 
 The act of 1854 took effect from the 1st of May, 1854 ; the amend- 
 ments of 1857 immediately, *. e., the 10th of April, 185Y. 
 
 By the latter statute, the following section, before noticed in chapter 
 III., was added to the original act : 
 
 § 39. If any action or proceeding is pending in said court before, the 
 general term, and two of the justices of said court, from any cause, shall be 
 disqualified to hear or decide the same, the court shall, by order, transfer 
 the same to the Supreme Court, which last court shall, upon a certified coi)y 
 of such order being filed with its clerk, become fully possessed of such action 
 or proceeding. 
 
 It will be observed, that the jurisdiction thus conferred upon this 
 court is of the very highest nature, consistent with its peculiar attributes 
 as a local tribunal. In all essential respects it is equivalent to that of 
 the Superior Court and Court of Common Pleas of the city and county of 
 IS^ew York. In some, its attributes are even superior and its cognizance 
 of wider scope. See section 12, first clause, and compare section 10 and 
 its different subdivisions with section 33 of the Code. See likewise the 
 power to make rules changing the practice of the Supreme Court, whicli 
 seems virtually to exempt this tribunal from the liability to be governed 
 by the Supreme Court rules from time to time, imposed upon the simi- 
 lar jurisdictions in New York by section 4Y0 of the Code. 
 
 In the International Bank vs. BradUy, 19 N. Y., 245, the following 
 points are decided in favor of the jurisdiction of this court : 
 
 That the mode of its organization, as above stated, is constitutional ; 
 
 And that, in support of its jurisdiction, it is to be presumed, after 
 judgment, that a non-resident indorser of a note dated at Buffalo, made 
 his indorsement within that city. 
 
 {j.) Matoks' and Recoedees' Cotjets. 
 
 The following special disqualification, in addition to those before 
 noticed in chapter III., is, by section 50 of the amended judiciary act, 
 chapter 470 of 1847, imposed upon persons filling the office of recorder ; 
 
 8 50. No recorder shall practise as an attorney, solicitor, or counsellor,, 
 in any court of which he shall be, or shall be entitled to act as a member, or 
 in any cause or proceeding originating ia any such court; nor shall any 
 partner of, or person connected in law business with any recorder, practise- 
 as an attorney, solicitor, or counsellor in any court of which such recorder . 
 shall be, or Shall be entitled to act as a member, or in any cause or proceed- 
 ing originating in any such court. 
 
 The three courts first below mentioned were organized prior to the 
 revision of the statutes in 1828. The others are of subsequent institu- 
 tion, as below referred to. 
 
 YoL. I.— 6 
 
82 OF THE COURTS OF CIXrES. § 19. 
 
 (k.) Matob's Oouet of Albant. 
 
 The original powers of tliis tribunal Were to hear, try, and determine 
 according to law, all local actions arising within the city of Albany, 
 and also all transitory actions, although the same might not have arisen 
 therein. It was to be held by the mayor, recorder, and aldermen of 
 the city of Albany, or the mayor and recorder jointly, or each of them 
 singly, with or without the presence of any of the aldermen. But any 
 alderman might sit as a judge, and in case of the absence of the mayor 
 and recorder, or of their offices being vacant, any three aldermen were 
 empowered to hold a court. In its records the words "judges' of the 
 said court," were to be a sufficient description. 
 
 By chapter 328 of 1830, it was made the special duty of the recorder 
 to preside in and hold the court. Under chapter 275 of 184:2, section 
 14, no judge of the court, other than the recorder, is competent to make 
 orders in vacation, unless in case of his absence, death, or inability. 
 
 By chapter 86 of 1842, it was further provided that no action shall be 
 removed from this court on account of the amount of debt or damages 
 claimed therein. Chapter 24 of 1848 also relates to it, but does not 
 interfere with or alter its jurisdiction. Under chapter 386 of 1840, its 
 judgments were directed to be docketed with the clerk of the court 
 before they became a lien. 
 
 (I.) Mayor's Court of Hudson. 
 
 The original organization of this court, so far as regards the judges 
 who constitute it, and their powers, was, in all respects, similar to that 
 of the Mayor's Court of Albany. Its original jurisdiction was to hear, 
 try, and determine, according to law, all actions, real, personal, and 
 mixed, arising within that city and not elsewhere. By chapter 101 of 
 1829, that jurisdiction was extended to all causes of action wherever aris- 
 ing, but limited, as to appeals, to those from the judgment of a justice in 
 that city. By chapter 189 of 1844, it was empowered to try all local 
 actions arising within the city of Hudson, and all transitory actions, 
 although the same may not have arisen therein ; and, bv the same 
 statute, its judgments, when docketed, were enforceable by fieri 
 facias in any county of the state. Before that, they were governed bv 
 chapter 386 of 1840 above noticed. 
 
 By chapter 320 of 1848, the powers and duties of a justice of the Su- 
 preme Court at chambers, are conferred upon the recorder of this city, 
 (m.) Mayor's Cotiet of Tkot. 
 
 The organization of this court was similar, in all respects, to that of 
 the two last noticed, and its judgments stood upon the same footing as 
 those of the Mayor's Court of Albany above noticed. Its jurisdiction 
 
OF THE COXJETS OP CITIES. — § 19. 83 
 
 similarly extended to all local actions arising within the city of Troy ; 
 and, also, all transitory actions, although the same may not have arisen 
 therein. By chapter 86 of 1848 criminal jurisdiction was conferred 
 upon it. By section 9 it was provided that no personal action, pending 
 in it, shall be removed therefrom, by writ of certiorari, unless the debt 
 or damages claimed, or the matter or thing demanded, shall exceed the 
 sum of $500 ; and, also, that its judgments may be docketed in any 
 county in the same manner, and with the like effect as judgments of 
 the Supreme Court. 
 
 By section 11 the powers of a Supreme Court commissioner are con- 
 ferred on the recorder. As before noticed, the constitutionality of this 
 provision has been doubted ; but it is finally recognized by Hayner vs. 
 James, lY N.Y., 316, overruling Oriffm vs. OHffiih, 6 How., 428. 
 
 (w..) Mayor's Cotjet of Rochestee. 
 
 This tribunal, established by chapter 145 of the Laws of 1844, as a 
 court of record, and possessing an organization similar, and a jurisdic- 
 tion analogous to that of the three ti'ibunals last above ];iotieed, has 
 since been abolished, and its jurisdiction transferred to the Supreme 
 Court, by chapter 303 of the Laws of 1849. 
 
 (o.) Recoedee's Cotjet op TJticA. 
 
 This court was first established by chapter 319 of 1844. It is to be 
 held by the recorder of that city, to be called " The Recorder's Court 
 of the City of TJtica," and to be a court of record. Its powers were, 
 first, to hear, try, and determine, according to law, all local actions 
 arising in said city, and not elsewhere. It possessed concurrent juris- 
 diction with the County Court of Oneida county, in appeals from and 
 writs of certiorari on judgments rendered by any justice of the peace in 
 said city, and also in transitory actions where the defendant resided ■ 
 there. Its general authority and its practice were to be the same as 
 that of the County Courts, and its judgments, when docketed, were to 
 be similarly enforceable. 
 
 By chapter 291 of the Laws of 1845, section 3, the full powers of a 
 court of Common Pleas in relation to special proceedings, wherein the 
 subject-matter of such proceedings should arise or be within the said 
 city, were conferred upon it, concurrently with the County Court of 
 Oneida, such proceedings and its decisions to be subject to appeal and 
 removal by writ of certiorari, as in a county court. 
 
 It was also provided, by the same section, that the power and duties 
 of the recorder, at chambers, in respect to suits and proceedings cogni- 
 zable before such court, should be the same as those of a first judge of 
 the County Courts. 
 
84 or THE COURTS OF CITIES. § 19. 
 
 Chapter 95 of the Laws of 1846, and 320 of 1844, relating to this 
 court, do not affect its civil jurisdiction and powers, as above noticed. 
 
 {p.) City ComtTS oeganized since the CoNSTrruTioN of 1846. 
 
 The two tribunals below noticed both lie within this category. Both 
 seem to fall directly within the letter of subdivision 5, section 14, article 
 VI. of that constitution, providing that any inferior courts of civil and 
 criminal jurisdiction, established by the legislature in cities, shall, ex- 
 cept for the cities of New York and Buffalo,. " have an uniform organi- 
 zation and jurisdiction in such cities." 
 
 It will be seen by the analysis below given, that in the organization 
 of the tribunals now in question, this provision has been entirely disre- 
 garded. The question does not seem, however, to have been raised, 
 down to the present time. 
 
 {q.) Eecoedee's Court of Oswego. 
 
 This court is established by chapter 374 of the Laws of 1848. Its 
 style is " The Recorder's Court of the City of Oswego," and it is to be 
 held by the recorder of that city, or, in case of his absence or inability 
 to serve, by the mayor and any two aldermen. By section 2, its juris- 
 diction is defined as being that conferred on the Mayors' and Recorders' 
 courts by the Code of that year, passed the same day. Its process is 
 under section 16, to be directed to the sheriff of Oswego county, and 
 to have the same effect as the process of County Courts ; and its judg- 
 ments, under section 19, are, when docketed, similarly enforceable in 
 any county. 
 
 By section 20, the powers and duties of the recorder at chambers, 
 are the same as those of a judge of the County Court, in County Court 
 proceedings, at chambers ; and by section 21, the powers of a judge of 
 the late Courts of Common Pleas at chambers, or out of court, or of a 
 Supreme Court commissioner, are conferred upon him. 
 
 By chapter 134 of 1849, p. 186, all the provisions of the Code of 
 1848, applicable to the Recorders' Courts then named in that section — 
 i. e., Buffalo and Utica — are made applicable to proceedings in this 
 court. The rest of the amendments made by that statute relate to its 
 criminal jurisdiction. 
 
 Further amendments are made in relation to that branch of jurisdic- 
 tion, by chapter 96 of 185Y, vol. I., p. 202. By section 4, the recorder ■ 
 is invested with the powers of a county judge or justice of the Su- 
 preme Court in supplementary proceedings in Oswego county, whether 
 the action be in his own or any other court. 
 
OF THE COtTBTS OF CITIES. — ^§ 19. 85 
 
 (r.) City Cotjet of Beooklyn, 
 
 The organization of this court is effected by chapter 125 of the Laws 
 of 1849, p. 110, subsequently amended by chapter 102 of 1850, p. 148. 
 The amended sections will be cited, noticing the changes made, accord- 
 ing to the plan before pursued. 
 
 Section 1 provides for the election of a city judge, to hold office for 
 6 years. By section 2, the said judge alone, or, in case of his absence, 
 inability to act, or vacancy in said office, the mayor and any two alder- 
 men of that city are authorized to hold a court of civil jurisdiction, to 
 be called " The City Court of Brooklyn," to be a court of record, and 
 its jurisdiction to extend to the following actions : 
 
 1. To the actions enumerated in section 103 of the Code of Pi'oce- 
 dure, when the cause of action shall have arisen, or the subject of the 
 action shall be situated within the said city. 
 
 N. B.— This refers to the Code of 1848, not thai; of 1849, though 
 passed the same day. Vide Oriswold vs. The Atlantic Dock Company, 
 21 Barb., 225. Section 103 of that measure comprised sections 123 and 
 124 of the present. The provisions of those sections have been before 
 cited, in relation to the Superior Court and Court of Common Pleas of 
 New York, the jurisdiction of which is analogous in this respect. It 
 may be shortly defined as embracing the whole class of strictly local 
 actions. 
 
 2. To all other actions where all the defendants shall reside, or be 
 personally served with the summons within said city. 
 
 3. To actions against corporations created under the laws of this 
 state, and transacting their general business within said city, or estab- 
 lished by law therein. 
 
 Section 3 provides for the holding of monthly terms. By section 4 
 this court is invested with the same powers as the Supreme Court in 
 relation to actions within its jurisdiction. Its practice is to be the same, 
 as far as practicable, and it has power to review all of its decisions and 
 to grant new trials. 
 
 Under section 5 its judgments are placed on the same footing as judg- 
 ments in the Supreme Court, and it possesses the same powers as that 
 tribunal, over the dockets of these judgments and over its process. 
 
 Under section 6, an appeal lies from its judgments, and from any in- 
 termediate order, involving the merits and necessarily affecting the 
 judgment, to the Supreme Court at general term ; such appeal to be 
 governed by the provisions of law relative to appeals from an inferior 
 jurisdiction. 
 
 This is an amended section. In 1849 this appeal was governed by the 
 provisions of law relative to appeals to the Court of Appeals. In Gou- 
 
86 QF THE COURTS OF CITIES. § 19. 
 
 lard vs. Oastillon, 12 Barb., 126, it was held that the appeal granted as 
 above, does not lie from a judgment entered in this court on the report 
 of a referee, until after the court, on special application, has first refused 
 to correct any error committed. A further appeal now lies to the Court 
 of Appeals under the Code, but, prior to 1851, the general term of the 
 Supreme Court was the ultimate tribunal. 
 
 Sections 7 to 10 inclusive, all amended in 1851, provide for matters 
 of detail not afiecting the jurisdiction. 
 
 Sections 11 and 12 relate to its criminal powers. By section 13 its 
 terms are regulated, those in May, July, September, November, Jan- 
 uary, and March in each year being devoted to civil, the others to crim- 
 inal business. 
 
 By sectidn 22, the costs recoverable in this, are the same as those 
 allowed in the Supreme Court. 
 
 Under section 24, the city judge has, in suits pending in this court, 
 the same powers at chambers as a justice of the Supreme Court. He 
 may also exercise, within the county of Kings, all the powers of a jus- 
 tice of the Supreme Court at chambers, and possesses generally the 
 powers of a county judge at chambers, or of a Supreme Court commis- 
 sioner. His powers as a justice of the Supreme Court at chambers are, 
 however, strictly local, and do not extend to the issuing of a habeas cor- 
 pus running into another county, without proof that there is no officer 
 in that county authorized to grant such writ. Dqoley's Case, 6 Abb., 
 188. 
 
 The sections following, from 27 to 36 inclusive, do not relate to 
 this court, but to a police justice, to be elected as there provided. 
 
 By section 37, any vacancy in the office of city judge may be sup- 
 plied by the council till the next charter election ; and, by section 38, 
 the former municipal court of the city is abolished, and its jurisdiction 
 and proceedings transferred to the police justice, to be elected as 
 above. 
 
 It will be seen that the powers and jurisdiction of this court are, in 
 some respects, analogous, in others, greatly inferior to those of the New 
 York local tribunals. In transitory actions against joint debtors, its 
 cognizance is of narrower scope, residence, or service within the city of 
 all the defendants being necessary to acquire jurisdiction ; and it has 
 no powers to entertain an action against a foreign, but only against a 
 domestic corporation. 
 
 The equitable jurisdiction of this court, when acquired, is recognized 
 as being the same as that of the former Court of Chancery, in McNulty 
 vs. PrenUoe, 25 Barb., 204, (215.) But, though extensive, that juris- 
 diction is of a limited and inferior nature, and all facts necessary to 
 confer it must appear upon the record of its judgment, or it will not be 
 
OF THE COTJETS OF CITIES. § 20. 8*7 
 
 evidence in another court. Simmons vs. Be Ba/rre, 8 Abb., 269 ; affirm- 
 ing 6 Abb., 188. 
 
 And, the jurisdiction of this court being strictly local, a referee ap- 
 pointed by it has no power to act, unless within the limits of the city 
 of Brooklyn, Bonner vs. MePhail, 31 Barb. 106. 
 
 § 20. New York Local Tribunals. — Decisions as to Jwis- 
 
 diction. 
 
 The ai-rangements as to the business of these courts, as transacted by 
 the general term, or by the single justice or judge, are identical, or 
 nearly so, with those in the Supreme Court, as noticed in chapter III. 
 The powers, duties, and disqualifications of those officers are also simi- 
 larly identical, and the general practice substantially the same. That 
 practice is, in fact, regulated by the rules of the Supreme Court (§ 470), 
 in the biennial revision of which their judges take part ; but both the 
 Superior Court and Common Pleas have also laid down, and, from time 
 to time, are in the habit of making special regulations for their own 
 guidance. Their powers, in this respect, seem never to have been 
 questioned, nor does such appear likely to be the case, as these regula- 
 tions merely affect matters of internal detail, and do not profess to 
 override or conflict with the general regulations established by the as- 
 sembled judiciary, under the section in question. 
 
 The decisions of both these tribunals are now fully and constantly re- 
 ported ; those of the Common Pleas since 1855, and those of the Superior 
 Court from a period antecedent to the Code. These reports are neces- 
 sarily of high authority, and possess a peculiar character of internal 
 unity, which, in the more widely-diffused organization of the Supreme 
 Court, is occasionally wanting. Both of them, the Superior Court es- 
 pecially, have, on numerous occasions, asserted their independence of 
 the Supreme Court, and disregarded its rulings, when contrary to their 
 own views on the same subject. As instances of this, compare Ford vs. 
 Bahcoclc, 2 Sandf., 618 ; 7 L. O., 270, with Cole vs. Jessv^, 2 Barb., 309, 
 overruled on that point, and Ford vs. Babcoch sustained, by the Court 
 of Appeals, 6 Seld., 96 ; 10 How., 515 ; compare, also, Washington Bank 
 of Westerl/y vs. Pahner, 2 Sandf., 686, with President of Barik of 
 Ithaca vs. Bean, 1 C. E., 133. See, likewise, this doctrine directly laid 
 down in Reynolds vs. Bams, 5 Sandf., 267 ; and the right asserted in 
 Gashm^re vs. Be Wolf 2 Sandf., 379. 
 
 And, when it has once acquired jurisdiction of a controversy, this 
 court does not recognize any action of the Supreme Court interfering 
 with the exercise of that jurisdiction. Bermett vs. Le Boy, 14 How., 178 ; 
 5 Abb., 55 ; see also, 6 Duer, 683. Nor will it, when invoked, interfere 
 
88 OF THE COUETS OF CITIES. § 20. 
 
 in a similar manner with the exercise of jurisdiction by another tribimal 
 competent to act. Qromt vs. Quick, 6 Sandf., 612. 
 
 See also, statement as to the general jurisdiction of this court having 
 been defined, by the Court of Appeals, to be as wide as that of an ordi- 
 nary action under the Code, given at 3 Duer, 160, case of State of New 
 York \&.Maym\ c&o., of New York, erroneously referred to at 5 Abb., 
 .59. That jurisdiction is generally so asserted in Cashmere vs.. Crowell, 
 1 Sandf., Y15. 
 
 Once acquired, the jurisdiction of this and the other tribunals treated 
 of in this chapter, cannot aftervpards be collaterally impeached by a 
 party who has had an opportunity, and has omitted to contest it, 
 Bydmian vs. Mayor of New York, 1 Seld., 434. A voluntary ap- 
 pearance cures all defects as to jurisdiction over the person. Smith vs. 
 Bipeer, 2 C. E., YO ;. Watson vs. The Cabot Bank, 5 Sandf., 423 ; 
 • Varian vs. Stmens, 2 Duer, 635. 
 
 In the dissenting opinion of Bosworth, J., in Woolsey vs. Judd, 4 
 Duer, 596, doubts are thrown over the competency of this, or, in fact, 
 of any other court entertaining a controversy in equity in a matter of less 
 value than $100, but the decision of the majority of the general term is 
 adverse, and asserts the possession of general jurisdiction in equity, 
 whatever may be the value of the matter in dispute. Same case, 4 Duer, 
 379 ; 11 How., 49. 
 
 See the general equity jurisdiction of this tribunal asserted, and 
 claimed as extending to a suit to compel specific performance by a re- 
 ligious incorporation of thei'* contract for sale of real estate, authorized 
 by the Supreme Court according to the statute, in Bowen vs. The Irish 
 Presbyterian Congregation of tite city of New York, 6 Bosw., 245. 
 
 The jurisdiction of this tribunal is asserted to be concurrent with 
 that of the United States Courts, in a matter of salvage, in Cashmere vs. 
 Be Wolf, 3 Sandf., 379. The dictum of Paine, J., in Sturgis vs. Baw, 3 
 Sandf., 451, apparently conflicting with this case, is not so, in fact, being 
 based on general views as to the powers of a court of mere common 
 law jurisdiction to deal with a controversy of this nature. 
 
 The student should carefully distinguish between the relative juris- 
 diction of these courts, in strictly local, and in transitory actions. 
 
 Partition is of the former nature, and, in an action for that purpose, 
 jurisdiction depends upon the situation of the property in JSTew York, 
 irrespective of the residence of the parties. Varian vs. Stevens, 2 
 Duer, 635. See also Nichols vs. Bomaine, 9 How., 512. 
 
 In suits of this nature the jurisdiction of both these tribunals is ab- 
 solute, and equal to that of the Supreme Court in like cases. Vide 
 Mthav^e vs. Badde, 3 Bosw., 410. (428, 438.) 
 
 It would seem, however, that no tribunal, except the Supreme Court, 
 
OF THE COURTS OF CITIES.— § 20. 89 
 
 has jurisdiction of a suit for partition brought by an infant plaintiff. 
 Yide Jennings vs. Jenniiigs^ 2 Abb., 6 (14) and chapter 277 of 1852, 
 there cited. 
 
 In Ring vs. MoCoun, 3 Sandf., 524, the Superior Court decided 
 against its own jurisdiction to compel a conveyance of real property in 
 another county, on the ground that the action was local. This case 
 stands affirmed in Ring vs. McOoun, 6 Seld., 268. In OookYS. Chase, 
 3 Duer, 643, it is also clearly intimated that an action to enforce a lien 
 on real property in Brooklyn is not within its cognizance. 
 
 Where, however, the nature of the controversy itself, though involv- 
 ing a claim affecting lands in another court, is not local, but transitory, 
 this court will assume- jurisdiction. So held in the case of a bill for 
 specific performance, in Atichinoloss vs. J!foit, 12 L. 0., 119. 
 
 The jurisdiction of this court was asserted in a suit for divorce, the 
 requisitions of the Revised Statutes being satisfied in relation to the 
 residence of the parties. Fm^rest vs. Forrest, 6 Duer, 102. 
 
 Its powers to entertain a suit against a foreign corporation, upon any 
 cause of action, in which such corporation is duly brought into court, 
 are maintained in The New Yorlc Floating Derrick Company vs. JSfew 
 Jersey Oil Company, 3 Duer, 648, and Watson vs. TJie Cabot Bank, 5 
 Sandf., 423 ; aud its powers to take cognizance of a controversy, between 
 individuals and the corporation of New York itself, are recognized by 
 the Court of Appeals in The People vs. Sturtevant, 5 Seld., 263. This 
 is now made a matter of special statutory provision. Yide chapter 379 of 
 1860, above cited. 
 
 In actions of a local nature, and also in transitory actions against 
 joint debtors, one of whom resides in the city of New York, and has 
 been there served ; service may be made upon the defendants, in the 
 former, and upon the other defendants in the latter case, in any county 
 of the -state, and the service will be valid. Porter vs. Lord, 4 Duer, 
 682, 13 How., 254 ; 4 Abb., 43. See generally as to service on joint 
 
 debtors, under the section as it now stands, vs. -, 1 Duer, 
 
 662. Previous to the amendment of 1852, service on joint debtors in 
 this manner was not sufficient. Yide Pelafield vs. Wright, 3 Sandf, 746. 
 It seems that a yoluntary appearance, though under protest, waives all 
 objection as to the mode of service. Mahamey vs. Penman, 1 Abb., 34. 
 See, however, Delafield vs. Wright, supra, and Granger vs. Schwartz, 
 11 L. O., 346. Juri>sdiction must appear upon the record, Frees vs. Ford, 
 2 Seld., 176. In Mahaney vs. Penman it was held that a qualified 
 appearance as above confers it, as a defendant cannot appear and pro- 
 test simultaneously. See Clason vs. OorUy, 5 Sandf., 454 ; 10 L. 0., 237 ; 
 affirmed 4 Seld., 426. 
 
 To render the jurisdiction by service effectual, that service must be 
 
90 OF THE COTTRTS OF CITIES. — § 20. 
 
 made honafide. If the party served has been induced to come within 
 the jurisdiction, by a false statement, the service will be set aside. 
 Carpenter vs. Spoovxr, 2 Sandf., 717. See similar principle asserted in 
 Gaup^I vs. Simomon, 3 Abb., 47i. So, where service was made on a 
 resident of a foreign state, whilst attending as a witness, such service 
 was, in like manner, set aside. Seomer vs. Robinson^ 3 Duer, 622. 
 
 No action can be taken by these courts, prior to the acquisition of 
 jurisdiction. It has been even held that an attachment cannot be is- 
 sued by the Superior Court, before the summons in the action has been 
 actually served. Fisher vs. Curtis, 2 Sandf., 660 ; 2 C. K., 62 ; Granger 
 vs. Schwartz, 11 L. 0., 346. See, also, as to an action against a for- 
 eign corporation, MoDonough vs. Phdps, 15 How., 372. 
 
 This doctrine is, however, qualiiied, and it is laid down that such an 
 attachment may be issued before, and to accompany the summons, to 
 be executed simultaneously with or after the service of the latter, in the 
 more recent case of Oould vs. Bryan, 3 Bosw., 626. 
 
 In an attachment under the Revised Statutes, all necessary jurisdic- 
 tional facts must be distinctly proved. Payne vs. Young, 4 Seld., 158. 
 See, also, Ca/ntviell vs. The Duhuque Western Railroad Company, 17 
 How., 16, as to an attachment under the Code. But, when jurisdic- 
 tion is once acquired by service on one joint debtor, the property of any 
 
 other non-resident 'may be attached in this court. vs. , 1 
 
 Duer, 662. And such was also the case, as to an attachment under 
 the Revised Statutes, when issued by a firm, one partner of which was 
 a resident. Renard vs. Hargous, 3 Kern., 259. 
 
 The power of removal given to the Supreme Court, in subdivision 2 
 of section 33, is not exercisable by that tribunal as of right, but is dis- 
 cretionary, and should not be exercised, unless for good cause shown. 
 Campbell vs. Butler, 4 Abb., 55. 
 
 Neither of the cou]-ts inlmediately in question are competent to ex- 
 ercise any special statutory powers, conferred upon the former court of 
 Chancery, or upon the Supreme Court as such. So held, as to a commis- 
 sion of lunacy, in re Brown, 4 Duer, 613 ; 1 Abb., 108 ; as to the custody 
 of infant children, pending an action for divorce. In re De Angelis, 1 C. 
 E. (TSr. S.), 349. ISTor, being courts of limited jurisdiction, can they 
 properly interfere in a case not provided for by statute. In such a case 
 the Supreme Court is the proper forum. So held, as to an application 
 for process to compel the attendance of witnesses, to be examined under 
 a foreign commission. .In re a Petition, &c., 5 Sandf., 674. 
 
 On the same principles, it has been held, that this court cannot en- 
 tertain a suit for winding up the affairs of a foreign corporation. Day 
 vs. U. 8. Gar Spring Company, 2 Duer, 608 ; or, statutory proceedings 
 for dissolution of a domestic incorporation, Kattenstroth vs. The Astar 
 
OP THE COUKTS OF CITIES. — § 20. 91 
 
 Bank, 2 Duer, 632 ; Brake vs. The Pytliago-ras Association, i Duer, 
 658 ; 11 How., 44. 
 
 This court is, however, competent to exercise all statutory authorities 
 speeiiically given to the Supreme Court, in relation to proceedings in a 
 suit when once commenced. Gould vs. McOarty, 1 Kern., 575. 
 
 Its judges, as before noticed, have all the powers of Supreme Court 
 commissioners. Benard vs. Bargous, 2 Duer, 540, affirmed, 3 Kern., 259. 
 But, in a case of habeas corpus, that power is strictly statutory, and 
 cannot be .exercise4 in matters of discretion, incident to ,the general 
 equitable jurisdiction of the Supreme Court. Th6 People vs. Porter, 1 
 Duer, 709, 11 L. O., 228 ; The People vs. Gosper, 8 How., 288. See 
 as to the exercise of jm-isdiction in habeas corpus,' The People vs. 
 Lemmon, 5 Sandf., 681, affirmed by the Supreme Court on certiorari, 
 26 Barb., 270. The exercise of jurisdiction by a judge, under this 
 authority, is, as appears by the case last cited, reviewable by the 
 Supreme Court. He acts, in fact, as a subordinate officer of that tri- 
 bunal, and not as a judge of his own court. 
 
 The appeal lying from this court to the Court of Appeals, the deci- 
 sions of the latter are, of course, controlling upon its action. See in- 
 stances of submission in such cases, in Schufeldt vs. Abemethy, 2 Duer, 
 533 ; OaJdey vs. Aspinwall, 3 Kern., 500. 
 
 In cases, however, where a distinction can be drawn between the 
 facts on which its O"^^ decision or that of the Court of Appeals is 
 based, it has, on more than one occasion, repeated its former adjudica- 
 tion after a reversal. Compare Oooh vs. Litchfield, 5 Seld., 279, with 
 same case, 2 Bosw., 137 ; also Bowen vs. Newell, 2 Duer, 584, with 
 the affirmance in 3 Kern., 290, and the previous reversal of a former 
 judgment, 4 Seld., 190, 12 L. O., 231. 
 
 Several of the cases directly applicable to the Court of Common 
 Pleas, being also applicable to the Superior Court, have been before 
 noticed in this subdivision. 
 
 In Ha/rriott vs. The New Jersey Bail/road Gompa/mj, 8 Abb., 284, it 
 is held that, to enable a non-resident plaintiff to maintain an action in 
 the Common Pleas, against a foreign corporation, it must be shown 
 either that the contract was made, or the cause of action arose, or the 
 subject of the action is situated within the state, or the court will not 
 acquire jurisdiction. It is plain that this ruling applies equally to the 
 Superior Court. 
 
 In an action against joint tortfeasors, jurisdiction is acquired by the 
 Common Pleas by service on one of them. McKenzie vs. Hachstaff, 2 
 E. D. Smith, 75. 
 
 In cases arising on mechanics' liens in the city of ISTew York, the 
 Common Pleas, as against the Supreme Court, has exclusive jurisdic- 
 
92 justices' courts. — § 21. 
 
 tion of proceedings for their enforcement. Noyes vs. Burton, 17 How., 
 449. 
 
 Prior to the present organization of the Court of Common Pleaa 
 undbr the Code, its decisions were reviewable by the Supreme Court, 
 The decisions of the latter tribunal, whilst holding that position, are tc 
 be taken, by the former, as conclusive. Updilce vs. CanvpleU, 4 E. 
 D. Smith, 570 ; White vs. Choutecm, 1 E. D. Smith, 493. 
 
 CHAPTER VI. 
 
 JUSTICES' OOUETS. 
 
 § 21. Jurisdiction of Justices' Cowrts in General. — Statutory 
 
 Provisions. 
 
 PuESUiNG the analysis of the different courts of civil jurisdiction, 
 whose practice is affected by the Code, we come, in the last place, to 
 the courts in question, including the Marine and District Courts of the 
 city of New York. 
 
 These tribunals are all of inferior and strictly limited jurisdiction, 
 defined by the Code or other subsequent statutes. Their practice, 
 though regulated in some few particulars by the provisions of the former 
 measure, is essentially different from that of the higher tribunals. It 
 falls, therefore, with some slight exceptions, entirely without the scope 
 of the present treatise, and, accordingly, the consideration of it in the 
 present chapter will be strictly confined to a citation of the provisions 
 of the Code itself, and of any other statutes beai'ing upon those provi- 
 sions, or on the subject of jurisdiction, including a short notice of some 
 few decisions bearing upon the latter subject, with the single exception 
 of that portion of those provisions which relate to the removal into the 
 superior jurisdiction of cases here commenced, which will be treated in 
 the usual manner. At a subsequent stage of the work, in which the 
 appeal from these tribunals to the higher jimsdiction is considered, any 
 points bearing on their practice, necessary to be noticed with reference 
 to such appeals, will be dwelt upon. 
 
 The provisions of the Code itself run as follows : 
 
 TITLE YI. 
 
 Of the Courts of Justices of the Peace. 
 
 § 52. (45.) The provisions contained in sections two, three, and four of 
 the article of the Revised Statutes, entitled " Of the jurisdiction of justices' 
 
justices' courts. — § 21. 93 
 
 courts," as amended by sections one and two^of the act concerning justices' 
 courts, passed May 14th, 1840, and the provisions contained in sections 59 
 to 66, of the same article, both inclusive, are repealed, and the provisions 
 of this title substituted in place thereof. But this repeal shall not affect any 
 action heretofore commenced in a court of a justice of the peace. 
 
 The first three sections of the Revised Statutes above referred to, were those by which the 
 jurisdiction of these courts was formerly defined. Those of sections 59 to 66 provided for the 
 removal of cases involving the title to real estate, and are re-enacted below, with somo 
 alterations. 
 
 By chapter 158 of 1861, p. 446, the following is substituted for sec- 
 tion 53 (46) of the Code as it stood before ; save only as regards subdi- 
 vision 2, which was amended as it now stands, in 1862 : 
 
 Justices of the peace shall have civil jurisdiction in the following actions, 
 and no others ; excepting as in the second section, it is provided : — 
 
 1. In actions arising on contracts for the recovery of money only, if the 
 sum claimed does not exceed two hundred dollars. 
 
 2. An action for damages fqr injury to rights pertaining to the person, or 
 to the personal or real property, if the damages claimed do not exceed two 
 hundred dollars. 
 
 3. An action for a penalty not exceeding two hundred dollars. 
 
 4. An action commenced by attachment of property, as now provided by 
 statute, if the debt or damages claimed do not exceed two hundred dollars. 
 
 5. An action upon bond conditioned for the payment of money, not ex- 
 ceeding two hundred dollars, though the penalty exceed that sum, the judg- 
 ment to be given for the sum actually due. Where the payments are to be 
 made by instalments, an action may be brought for each instalment as it 
 becomes due. 
 
 6. An action upon a surety bond taken by them ; though the penalty or 
 amount claimed exceed two hundred dollars. 
 
 7. An action upon a judgment rendered in a court of a justice of the peace, 
 or by a justice or other inferior court in a city, where such action is not pro- 
 hibited by section 71. 
 
 8. To take and enter judgment on the confession of a defendant, where 
 the amount confessed shall not exceed five hundred dollars, in the manner 
 prescribed by article 8, title 4, chapter 2, of part 3, of the Revised Statutes. 
 
 9. An action for damages for fraud in the sale, purchase, or exchange of 
 personal property, if the damages claimed do not exceed two hundred 
 dollars. 
 
 The second section retains the operation of a subdivision added to this section in 1860, by 
 chapter 131 of the Laws of that year, p. 209. That subdivision runs thus ; 
 
 10. An action to recover the possession of personal property claimed, the 
 value of which, as stated in the affidavit of the plaintiff, his agent, or attor- 
 ney, shall not exceed the sum of one hundred dollars. 
 
 § 2. The plaintiff in such action, at the time of issuing the summons, but 
 
94 justices' courts. — § 21. 
 
 not afterward, may claim the immediate delivery of such property as here- 
 inafter provided. 
 
 § 3. Before any process shall be issued in an action to recover the posses- 
 sion of personal property, the plaintiff, his agent, or attorney shall make 
 proof by affidavit, showing : 
 
 1. That the plaintiff is the owner, or entitled to immediate possession, of 
 the property claimed, particularly describing the same. 
 
 2. That such property is wrongfully withheld or detained by the defendant. 
 
 3. The cause of such detention or withholding thereof, according to the 
 best knowledge, information, and belief of the person making the affidavit. 
 
 4. That said personal property has not been taken for any tax, fine, or 
 assessment, pursuant to statute, or seized by virtue of an execution or 
 attachment against the property of said plaintiff; or if so seized, that it is 
 exempt from such seizure by statute. 
 
 5. The actual value of said property. 
 
 § 4. On receipt of such affidavit, and an undertaking, in writing, executed 
 by one or more sufficient sureties, to be approved by the Justice of the 
 Peace before whom such an action is commenced, to the effect that they are 
 bound in double the value of such property as stated in said affidavit for the 
 prosecution of said action, and for the return of said property to the defend- 
 ant, if return thereof be adjudged, and for the payment to him of such sum 
 as may for any cause be recovered against said plaintiff, the Justice shall 
 indorse upon said affidavit a direction to any constable of the county in 
 which said Justice shall reside, requiring said constable to take the property 
 described therein from the defendant, and keep the same, to be disposed of 
 according to law; and the said Justice shall at the same time issue a sum- 
 mons directed to the defendant, and requiring him to appear before said 
 Justice at a time and place to be therein specified, and not more than twelve 
 days from the date thereof, to answer the complaint of said plaintiff; and 
 the said summons shall contain a notice to the defendant that in case he shall 
 fail to appear at the time and place therein mentioned, the plaintiff will have 
 judgment for the possession of the property described in said affidavit, with 
 the costs and disbursements of said action. 
 
 § 5. The constable to whom said affidavit, endorsement, and summons 
 shall be delivered, shall forthwith take the property described in said affidar 
 vit, if he can find the same, and shall keep the same in his custody. He 
 shall thereupon, T\'ithout delay, serve upon said defendant a copy of such 
 affidavit, notice, and summons, by delivering the same to him personally, if 
 he can be found in said county ; if not found, to the agent of the defendant 
 in whose possession said property shall be found; if neither can be found, 
 by leaving such copies at usual place of abode of the defendant, with some 
 person of suitable age and discretion. And shall forthwith make a return 
 of his proceedings thereon, and the manner of serving the same, to the Jus- 
 tice who issued the said summons. 
 
 § 6. The defendant may at any time after such service, and at least two 
 
justices' coukts. — § 21. 95 
 
 days before the return day of said summons, serve upon plaintiff or constable 
 who made such service, a notice in writing that he ex;cepts to sureties in said 
 bond or undertaking ; and if he fail to do so, all objection thereto shall ba 
 waived. If such notice be served, the sureties shaU justify, or the plaintiff 
 give new sureties on the return day of said summons, who shall then appear 
 and justify, or said justice shall order said property delivered to defendant, 
 and shall also render judgment for defendant's costs and disbursements. 
 
 § 7. At any time before the return day of said summons, the said de- 
 fendant may, if he has not excepted to plaintiff's sureties, require the return 
 ot said property to him, upon giving to the plaintiff, and filing same with 
 the justice, a written undertaking, with one or more sureties, who shall jus- 
 tify before said justice on the return day of said summons, to the effect that 
 they are bound in double the value of said property, as stated in plaintiff's 
 affidavit, for the delivery thereof to said plaintiff, if such delivery be ad- 
 judged, and for the payment to him of such sum as may for any cause be 
 recovered against said defendant ; and if such return be not required before 
 the return day of said summons, the property shall be delivered to said 
 plaintiff. 
 
 § 8. The qualification of sureties and their justification under this act, 
 shall be the same as provided in sections one hundred and ninety-four and 
 one hundred and ninety-five of the Code, ia respect to bail on arrest in the 
 Supreme Court. 
 
 § 9. Sections two hundred and fourteen, two hundred and fifteen, and two 
 hundred and sixteen of the Code, shall apply to proceedings and actions 
 brought under this act, substituting the word constable for the word sheriff 
 whenever it occurs in either of said sections. 
 
 § 10. The actions so commenced shall be tried in all respects as other 
 actions are tried in justices' courts. 
 
 § 11. In all actions for the recovery of the possession of personal prop- 
 erty, as herein provided, if the property shall not have been delivered to 
 plaintiff, or the defendant by answer shall claim a return thereof, the justice 
 or jury shall assess the value thereof, and the injury sustained by the pre- 
 vailing party by reason of the taking or detention thereof, and the justice 
 shall render judgment accordingly, with costs and disbursements. 
 
 § 12. K it shall appear by the return of a constable that he had taken the 
 property described in the plaintiff's affidavit, and that defendant cannot be 
 found, and has no last place of abode in S9,id county, or that no agent of de 
 fendant could be found on whom service could be made, the justice may 
 proceed with the cause in the same manner as though there had been a' per- 
 gonal service. 
 
 § 13. For the indorsement on said affidavit, the justice shall receive an 
 additional fee of twenty-five cents, which shall be included in the costs of 
 the suit. 
 
 As regards the Marine and District Courts in the city of New Tork, the whole of this last 
 subdivision is, however, practically abolished by chapter 484 of the Laws of 1862, p. 970, 
 
96 justices' courts. — § 21. 
 
 section 17, which extends to these tribunals the wliole of that portion of the Code which confers 
 the provisional remedy of replevin, and augments their jurisdiction in this class of cases, to con- 
 troversies where the value of the property claimed does not exceed two hundred and fifty dollars. 
 As above noticed, subdivision 10 dates from the special statute of I860 ; the prior portion 
 of the section from that of 1861, with the exception of subdivision 2, which' dates from 1862, 
 as above noticed. 
 
 In 1861, the jurisdiction of these Courts was doubled, so far as regards the amount in con- 
 troversy, two hundred being substituted for one hundred doUars passim, and $500 for ^50, 
 in subdivision 8. 
 
 The last previous amendment was in 1851. In 1849 the section was also enlarged, and ox- 
 tended in its operation from the original provisions of 1348. 
 
 § 54. (47.) But no justice of the peace shall have cognizance of a civil action, 
 
 1. In which the people of this State are a party, excepting for penalties not 
 exceeding one hundred dollars ; 
 
 2. Nor where the title to real property shall come in question, as provided 
 by sections 55 to 62, both inclusive; 
 
 3. Nor of a civil action for an assault, battery, false imprisonment, libel, 
 slander, malicious prosecution, criminal conversation, or seduction ; 
 
 4. Nor of a matter of account, where the sum total of the accounts of both 
 parties, proved to the satisfaction of the justice, shall exceed four hundred 
 dolljlrs ; 
 
 5. Nor of an action against an executor or administrator, as such. 
 
 Dates from 1849. In 1848 the limitation in subdivision 1, was $50. 
 
 § 55. (48.) In every action brought in a court of a justice of the peace, where 
 the title to real property shall come in question, the defendant may, either 
 with or without other matter of defence, set forth in his answer any matter 
 showing that such title will come in question. Such answer shall be in writing, 
 signed by the defendant or his attorney, and delivered to the justice. The 
 justice shall thereupon countersign the same, and deliver it to the plaintiff. 
 
 § 56. (49.) At the time of answering, the defendant shall deliver to the jus- 
 tice a written undertaking, executed by at least one sufficient surety, and 
 approved by the justice, to the effect that, if the plaintiff shall, within thirty 
 days thereafter, deposit with the justice a summons and complaint in an action 
 in the Supreme Court, for the same cause, the defendant will, within ten days 
 after such deposit, give an admission in writing of the service thereof. 
 
 Where the defendant was arrested in the action before the justice, the un- 
 dertaking shall further provide, that he will at all times render himself amena- 
 ble to the process of the court, during the pendency of the action, and to such 
 as may be issued to enforce the judgment therein. In case of failure to com- 
 ply with the undertaking, the surety shall be liable, not exceeding one hundred 
 dollars. 
 
 This section as it stands dates from the amendment of 1858. Previously, the undertaking 
 ran for thirty days instead of twenty, as the period of deposit, and ten days instead of twenty, 
 for the givingT)f the admission. Down to -1851, the forum of transfer was, as now, the Su- 
 preme Court In 1851 it was changed to the County Court, and so remained till 1858. 
 
justices' courts. — § 21. 97 
 
 § 57. (50.) Upon the delivery of the undertaking to the justice, the action 
 hefore him shall be discontinued, and each party shall pay his own costs. The 
 costs so paid by either party shall be allowed to him, if he recover costs in the 
 action to be brought for the same cause in the Supreme Court. If no such 
 action be brought within thirty days after the delivery of the undertaking, the 
 defendant's costs before the justice may be recovered of the plaintiflF. 
 
 The same change as to the forum was made in this, as in the preceding section. 
 
 § 58. (51.) If the undertaking be not delivered to the justice, he shall have 
 jurisdiction of the cause, and shall proceed therein; and the defendant shall 
 be precluded, in his defence, from drawing the title in question. 
 
 § 59. (52.) If, however, it appear on the trial, from the plaintiff's own show- 
 ing, that the title to real property is in question, and such title shall be dis- 
 puted by the defendant, the justice shall dismiss the action, and render judg- 
 ment against the plaintiff for the costs. 
 
 Dates as it stands from 1849 ; the difference in 1848 was merely verbal. 
 
 § 60. (53.) When a suit before a justice shall be discontinued, by the de- 
 livery of an answer and undertaking, as provided in sections fifty-five, fifty- 
 six, and fifty-seven, the plaintiff may prosecute an action for the same cause, 
 in the Supreme Court, and shall complain for the same cause of action, only, 
 on which he relied before the justice ; and the answer of the defendant shall 
 set up the same defence, only, which he made before the justice. 
 
 This section has "been subject to the same change, as to the forum of substitution. 
 
 Down to 1851, the concluding words were, "the answer of the defendant shall be the same 
 which he made before the justice." This wording having given rise to some difficulty, as will 
 be noticed below, it was then changed. 
 
 § 61. (54.) If the judgment in the Supreme Court be for the plaintiff, he 
 shaU recover costs ; if it be for the defendant, he shall recover costs, except 
 that upon a verdict he shall pay costs to the plaintiff, unless the judge cer- 
 tify that the title to real property came in question on the trial. 
 
 Similar change to that in those preceding. 
 
 § 62. (55.) If, in an action before a justice, the plaintiff have several causes 
 of action, to one of which the defence of title to real property shall be inter- 
 posed, and, as to such cause, the defendant shall answer and deliver an 
 undertaking, as provided in sections fifty five and fifty-six, the justice shall 
 discontinue the proceedings as to that cause, and the plaintiff may commence 
 another action therefor in the Supreme Court ; as to the other causes of ac- 
 tion, the justice may continue his proceedings. 
 
 All actions pending in any County Court, on the 1th day of May, 1858, 
 in all cases in which a plea of title was interposed in actions originally com- 
 menced in a justice's com-t, are transferred to and vested in the Supreme Court, 
 with full power and jurisdiction to proceed therein, as commenced in said 
 Supreme Court,, by reason of a plea of title having been interposed in a 
 justice's court in like cases. 
 
 Vol. I— 7 
 
98 justices' cofkts. — § 21. 
 
 The last clause was added as the amendment of 1861. Same changes as to forum, as in 
 those preceding. 
 
 § 63. (56.) A justice of the peace, on the demand of a party in whose 
 favor he shall have rendered a judgment, shall give a transcript thereof, 
 which may be filed and docketed in the office of the clerk of the county 
 where the judgment was rendered. The time of the receipt of the trans- 
 cript by the clerk, shall be noted thereon, and entered ia the docket ; and, 
 from that time, the judgment shall be a judgment of the County Court. A 
 certified transcript of such judgment may be filed and docketed in the 
 clerk's office of any other county, and with the like efiect, in every respect, 
 as in the county where the judgment was rendered; except that it shall be 
 a lien, only from the time of filing and docketing the transcript. But no 
 such judgment, for a less sum than twenty-five dollars, exclusive of costs, 
 hereafter docketed, shall be a hen upon, or enforced agaiast real property. 
 
 Dates as it stands from 1849. In 1848, the provisions were less specific, and that limit- 
 ing the lien was omitted. 
 
 § 64. (57.) The following rules shall be observed in the courts of justices' 
 of the peace : 
 
 1. The pleadings in these courts, are: 
 
 1. The complaint by the plaintiff. 
 
 2. The answer by the defendant. 
 
 2. The pleadings may be oral, or in writing; if oral, the substance of 
 them shall be entered by the justice in his docket ; if in writing, they shall 
 be filed by him, and a reference to them shall be made in the docket. 
 
 3. The complaint shall state, in a direct and plain manner, the facts con- 
 stituting the cause of action. 
 
 4. The answer may contain a denial of the complaint, or of any part 
 thereof, and also notice, in a plain and direct manner, of any facts constitu- 
 ting a defence. 
 
 6. Pleadings are not required to be in any particular form, but must be 
 such as to enable a person of common understanding to know what is in- 
 tended. 
 
 6. Either party may demur to a pleading of his adversary, or any part 
 thereof, when it is not sufficiently explicit to enable him to understand it, or 
 it contains no cause of action or defence, although it be taken as true. 
 
 7. If the court deem the objection well founded, it shall order the plead- 
 ing to be amended, and if the party refuge to amend, the defective pleading 
 shall be disregarded. 
 
 8. In case a defendant does not appear and answer, the plaintiff cannot 
 recover, without proving his case. 
 
 9. In an action or defence, founded upon an account or an instrument for 
 the payment of money only, it shall be sufficient for a party to deliver 
 the account or instrument to the court, and to state that there is due to 
 him thereon, from the adver.se party, a specified sum, which he claims to 
 recover or set off. 
 
justices' couets. — § 21. 99 
 
 10. A variance between the proof on the trial and the allegations in a 
 pleading, shall be disregarded as immaterial, unless the court shall be satis- 
 fied that the adverse party has been misled, to his prejudice thereby. 
 
 11. The pleadings may be amended at any time before the trial, or during 
 the trial, or upon appeal, when, by such amendment, substantial justice will 
 be promoted. If the amendment be made after the joining of the issue, and 
 it be made to appear to the satisfaction of the court, by oath, that an adjourn- 
 ment is necessary to the adverse party in consequence of such amendment, 
 an adjournment shall be granted. The court may also, in its discretion, 
 require as a condition of an amendment, the payment of costs to the adverse 
 party. 
 
 12. Execution may be issued on a judgment heretofore or hereafter ren- 
 dered in a justice's court, at any time within five years after the rendition 
 thereof, and shall be returnable sixty days from the date of the same. 
 
 13. K the judgment be docketed with the county clerk, the execution shall 
 %e issued by him to the sheriff of the county, and have the same efiect, and 
 be executed in the same manner as other executions and judgments of the 
 County Court, except as provided in section 63^ 
 
 14. The court may, at the joining ofissue, require either party, at the request 
 of the other, at that, or some other specified time, to exhibit his account on 
 demand, or state the nature thereof, as far forth as may be in his power, 
 and in case of his default, preclude him from giving evidence of such parts 
 thereof as shall not have been so exhibited or stated. 
 
 15. The provisions of this act, respecting forms of action, parties to actions, 
 the rules of evidence, the times of commencing actions, and the service of 
 process upon corporations, shall apply to these courts. 
 
 The defendant may, on the return of process, and before answering, 
 make an ofier in writing to allow judgment to be taken against him for an 
 amount to be stated in such offer, with costs. The plaintiff shall thereupon, 
 and before any other proceedings shall be had in the action, determine 
 whether he will accept or reject such offer. If he accept the offer, and 
 give notice thereof in writing, the justice shall file the offer and the accept- 
 ance thereof, and render judgment accordingly. If notice of acceptance be 
 not given, and if the plaintiff fail to obtain judgment for a greater amount, 
 exclusive of costs, than has been specified in the offer, he shall not recover 
 costs, but shall pay to the defendant his costs accruing subsequent to the 
 offer. 
 
 The concluding clause, enabling an offer, was added on the amendment of 1860, otherwise 
 the section dates substantially from 1849. Slight verbal changes were made in 1851 and 
 1852. In 1848, the provision was short and general. 
 
 N. B. — As below noticed, the jurisdiction of these tribunals in the 
 city of New York, has since been considerably increased. In the 
 country districts, and in other cities, it is unchanged, and section 64 re- 
 mains applicable to all in common. 
 
100 justices' courts. — § 21. 
 
 The provisions of the Eevised Statutes by which, iu matters unpro- 
 vided for by that section, the practice of these courts is governed, will 
 be found in title lY., chapter II., part III., of the Revised Statutes 
 (2 E. S., 225, et seq.) ; and in the later statutes collated with them in 
 the more recent editions. 
 
 Under section 6 of the above chapter, and chapter 140 of the Laws 
 of 1846, a justice of the peace being or becoming an innholder or tavern- 
 keeper, has no power or jurisdiction, or loses it on becoming so. 
 Under section T of the same chapter, any justice being a member of the 
 senate or assembly, or a judge of a County Court, is not obliged to 
 take cognizance of any business brouglit before him, but may act or 
 not, at his discretion. 
 
 With respect to the former disqualification, it was held in Rice vs. 
 Milks, T Barb., 337, that it only extends to regular proceedings in the 
 justice's court, and does not deprive the justice of any statutory 
 authority, conferred upon him individually. 
 
 Justices of the peace are also subject to most of the. other disqualifi- 
 cations imposed on judicial officers, as noticed in the previous chapters. 
 So held, as to that of relationship to one of the parties, on a confession 
 of judgment, Chopin vs. Churchill, 12 How., 367 ; to sitting where 
 he is himself a party. Baldwin vs. Mo Arthur, 17 Barb., 414. 
 
 Or where, on a previous suit for the same matter, he had acted as 
 counsel for the plaintiff. Carrington vs. Andrews, 12 Abb., 348. 
 Where a justice of the Marine Court was a material witness, it was 
 held that he should not have tried the cause. Brown vs. Brown, 2 
 E. D. Smith, 153. See, as to removal of cause under these circum- 
 stances, Commissioners of Excise of Saratoga County vs. Doherty, 16 
 How., 46. The section of the Judiciary Act which forbids the part- 
 ner or clerk of a judge to practise before him as an attorney, has, 
 however, been held not to apply to these courts. Fox vs. JacJcson, 
 8 Barb., 355. 
 
 In the city and county of ISTew York, and the county of Kings, none 
 but admitted attorneys of the Supreme Court are now to be allo-y^^ed to 
 practise in these tribunals. See chapter 484 of 1862, p. 976, sections 
 1 and 2 ; chapter 53 of 1862, p. 179. This restriction is, however, con- 
 fined to these counties. In the others, the right to practise is unlim- 
 ited. 
 

 justices' couets. — § 22. | I 101 ) ' 
 
 §22. Jwrisdiction in New Yo7'k and other Gities. — . '~ ^ 
 
 Provisions.' . 
 
 These provisions are contained in title VII., and run thus — 
 
 TITLE VII. 
 Of Justices' and other Inferior Cowrts m Cities. 
 
 Chaptee I. 
 The Marine Court of the city of New York. 
 
 § 65. The Marine Court of the city of New York shall have jurisdiction 
 in the following cases, and no other : 
 
 1. In actions simOar to those in which courts of justices of the peace have 
 jurisdiction, as provided by sections 53 and 54. 
 
 2. In an action upon the charter or a by-law of the corporation of the. city 
 of New York, where the penalty or forfeiture shall exceed twenty-five 
 dollars, and not exceed one hundred dollars. 
 
 ' 3. In an action between a person belonging to a vessel in the merchant 
 service, and the owner, master, or commander thereof, demanding compen- 
 sation for the performance, or damages for the violation of a contract for 
 services on board such vessel, during a voyage performed, in whole or in 
 part, or intended to be performed, by such vessel, though the sum demanded 
 exceed one hundred dollars. 
 
 4. In an action by or against any person belonging to or on board of a 
 vessel in the merchant service, for an assault and battery or false imprison- 
 ment, committed on board such vessel, upon the high seas, or in a place 
 without the United States, of which the ordinary courts of law of this State 
 have jurisdiction, though the damages demanded exceed one hundred 
 dollars. But nothing in this or the last preceding subdivision of this sec- 
 tion, shall give the court power to proceed, in any of the cases therein re- 
 ferred to, as a court of admiralty or maritime jurisdiction. 
 
 The jurisdiction of this court has been greatly enlarged and its im- 
 portance greatly increased by subsequent independent statuses. 
 
 It is a court of early institution, and is noticed in title III., chapter 
 III., part III. of the Eevised Statutes, § 1. 
 
 Its reorganization and the election of two justices, is regulated by 
 chapter 144 of 1849, amended by chapter STT of ihe same year. 
 
 By chapter 389 of 1852, its number of justices was increased to three. 
 And by section 9, in aU cases in which its jurisdiction was limited, so 
 as not to exceed $100, that limitation was increased, so that the re- 
 covery of either party might thereafter be $250. This act was passed 
 
102 justices' cottets.— i§ 22. 
 
 on the 17th of April, and came into operation on the 7th of May, 1852. 
 This increase of jurisdiction bears upon subdivisions 1 to 6 inclusive, and 
 9 of section 53 ;' and, also, upon subdivision 1 of section 54, above cited. 
 This and similar enlargements of jurisdiction have, however, been held 
 not to be retrospective in their effectj as regards the costs in suits then 
 pending. Dvmhar vs. Duffy, 11 L. O., 349. 
 
 By chapter 617 of 1853, p. 1165, passed on the 21st of July, 1853, 
 and taking effect immediately, the jurisdiction was again greatly 
 enlarged. .By section 1, it was enacted that this court should have 
 jurisdiction over and cognizance of actions of assault and battery, false 
 imprisonment, malicious prosecution, libel and slander, where the dam- 
 ages claimed do not exceed $500. 
 
 By section 2, in cases in which the jurisdiction was limited, as above, 
 to. a recovery by either party of $250, that jurisdiction was extended to 
 $500, " notwithstanding that the accounts of both parties may exceed 
 $400." This bears upon the same subdivisions of sections 53 and 54, as 
 are |ibove noticed ; and likewise upon subdivision 4 of the latter. 
 
 By section 5, the power of reviewing its own decisions at general 
 term, was, for the first time, conferred upon it. This last change occa- 
 sioned a good deal of difficulty, and a conflict between this court and 
 the New York Common Pleas, the appellate jurisdiction, until obviated 
 by the amendment of section 352 of the Code, in 1857. The appeal 
 from the decision of the single judge lies to the general term, as above, 
 and from the general term to the Court of Common Pleas. The right 
 to this form of appeal dates from the measure of 1863, above cited. 
 People vs. Gale, 13 How., 260, 3 Abb., 309. See hereafter under the 
 head of appeals. 
 
 Its internal practice as to the issuing and service of summons, and 
 the entry of judgment by default, on a verified complaint, without 
 further proof, is further regulated by chapter 295 of 1857. 
 
 By chapter 334 of that year, its jurisdiction in actions against the 
 -Mayor, Aldermen, and Commonalty of the city of E"ow York, was cur- 
 tailed, and limited to actions in which the demand does not exceed 
 $200 ; but this last branch of cognizance seems to be now wholly taken 
 away by chapter 379 of 1860, p. 645. 
 
 By the mechanics' lien act, chapter 513 of 1851, section 6, this court 
 has also original jurisdiction of cases where the amount claimed does 
 not exceed $100 ; and this irrespective of the original amount of the 
 accounts between the parties. Foley vs. Oough, 4 E. J). §mith 724. 
 
 Under chapter 484 of 1862, p. 970, sections 1 and 2, none but regu- 
 larly admitted attorneys are henceforth entitled to practise in this court, 
 or in the District Courts in New York city. 
 
 And, by section 3 of the same statute, the rules of the Supreme Court 
 
justices' couets. — § 22. 103 
 
 are to apply to the same tribunals, so far as they can be made appli- 
 cable. 
 
 And the statute in question effects other very important general 
 alterations in the mode and form of procedure in both. 
 
 Chaptee II. 
 
 The District Courts in the city of New York. 
 
 § 66. The assistant justices' courts in the city of New York, shall here- 
 after be styled the justices' courts in the city 6i New York, and shall have 
 jurisdiction in the followuig cases : 
 
 1. In actions similar to those in which justices of the peace have jurisdic- 
 tion, as provided by sections 63 and 54. 
 
 2. In an action upon the charter or a by-law of the corporation of the city 
 of New York, where the penalty or forfeiture shall not exceed one hundred 
 dollars. 
 
 The jurisdiction of these tribunals has also been considerably aug- 
 mented, and their whole constitution remodelled by subsequent legis- 
 lation. 
 
 They are noticed as " Assistant Justices' Courts," in title III., chapter 
 n., part III., of the Revised Statutes, section 2. Their election and 
 organization into six districts is provided for by chapter 153 of the Laws 
 of 1848, and further regulated by chapter 514 of 1851. 
 
 By chapter 324 of 1852, their style is changed to that of " District 
 Courts in the City of New York." 
 
 By chapter 65 of 1864, the 6th district was divided into three parts, 
 and two additional districts, the 7th. and 8th, created out of it. 
 
 By chapter 344 of 1857, all the laws relating to these courts were 
 consolidated, and their jurisdiction increased as follows by section 3 : 
 
 § 3. These courts have jurisdiction in the following actions : 
 
 1. In actions similar to those provided for by sections 53 and 54 of the 
 Code of Procedure, where the sum recovered shall not exceed $250, not- 
 withstanding the accounts of both parties shall exceed $400. 
 
 2. In an action upon the charter, ordinance, or by-law of the corporation 
 of the city of New York, or a statute of this state, where the penalty shall 
 exceed $250. 
 
 This singular and obvious error in the original section is corrected by 
 section 5 of chapter 334 of 1858, by the insertion of the word " not" 
 after shall. 
 
 By subdivision 3 of the same section, the following power of removal 
 into the Common Pleas is given : 
 
 In any action commenced in pursuance of this section, where the claim 
 or demand shall exceed the sum of $100, upon the application of the defeud- 
 
104 justices' cottets. — § 22. 
 
 ant, the Justice shall make an order removing the same, at any time after 
 issue joined, and before the trial of the same, into the Court of Common 
 Pleas in and for the city and county of New York, upon the defendant exe- 
 cuting to the plaintiff an undertaking, with one or more sufficient sureties, 
 to be approved of by the Justice of the court in which such action is com- 
 menced, to pay to the plaintiff the amount of any judgnient that may be 
 awarded agaiast the defendant by the said Court of Common Pleas. 
 
 This section will be noticed as conferring not merely a power, but a 
 positive right to removal, on compliance with its provisions. 
 
 By the remaining sections of this act, numbering in all, the above 
 inclusive, eighty-two, the practice of these courts is regulated, and the 
 former statutes, the Code excepted, were generally repealed. Sections 
 53 and 54 of the latter measure are substantially retained, by reference 
 as above noticed. The remainder, section 66 excepted, are positively 
 saved by section 48, running thus : 
 
 The provisions of sections 55 to 64 both inclusive, and of section 68 of the 
 Code of Procedure, shall apply to these courts, except that the transcript of 
 judgment specified in the latter section, shall be furnished by the clerk of 
 the court in which the judgment was rendered, and also except that the ex- 
 ecution may issue as well out of the District Court in which the judgment 
 was rendered, as out of the Court of Common Pleas. 
 
 By section 49 power is given to any party recovering an amount ex- 
 ceeding the jurisdiction, to remit the excess and enter judgment for the 
 residue. 
 
 Under section Y7 the justices of these courts are invested with powers 
 as to the administration of oaths, the taking and certifying of deposi- 
 tions and acknowledgments, similar to those possessed by a judge of a 
 court of record, and also empowered to perform the duties imposed by 
 the Bevised Statutes, in the taking of foreign depositions, and in sum- 
 mary proceedings to recover the possession of land, and likewise as to 
 certain criminal proceedings. See, as to further alterations in the prac- 
 tice of these courts, in common with that of the Marine Court, chapter 
 484 of the Laws of 1862, p. 9Y0, above noticed. 
 
 By chapter 334 of the Laws of 1857, these courts are absolutely' de- 
 prived of all jurisdiction in actions against the Mayor, Aldermen and 
 Commonalty of the city of New Tork. See also chapter 379 of the 
 Laws of 1860, p. 645. 
 
 Under section 6 of the mechanics' lien law, chapter 513 of the Laws 
 of 1861, they possess, in common with the Marine Court, original juris- 
 diction of cases under that statute, where the sum claimed does not ex- 
 ceed one hundred dollars. 
 
justices' COUETS,-r-§ 22/ 105 
 
 Chaptee III. 
 'the Justices^ Courts of Cities. 
 
 § 6Y. (60.) The justices' courts of cities shall have jurisdiction in the fol- 
 lowing cases, and no other : 
 
 1. In actions similar to those in which justices of the peace have jurisdic- 
 tion, as provided by sections 63 and 54. 
 
 2. In an action upon the charter or by-laws of the corporations of their 
 respective cities, where the penalty or forfeiture shall not exceed one hun- 
 dred doUars. 
 
 In 1848 these courts were specified by name, as " The Municipal Court of the City of Broolc- 
 lyu," and the Justices' Courts of the cities of Albany, Troy, and Hudson, respectively. The 
 present section dates from 1849. 
 
 Chapter IV. 
 General Provisions. 
 
 § 68. (61.) The provisions of sections fifty-five to sixty-four, both inclusive^ 
 relating to forms of action, to pleadings, to the times of commencing ac- 
 tions, to liie rules of evidence, to filing and docketing transcripts of judg- 
 ments, to their effect, and the mode of enforcing them, and to proceedings- 
 where title to real property shall come in question, shall apply to the courts 
 embraced in this title ; except that, after the discontinuance of the actions 
 in the inferior court, upon an answer of title, the new action may be brought 
 either in the Supreme Court, or in any other court having jurisdiction 
 thereof; and except also that in the city and county of New York, a judg- 
 ment for twenty-five dollars or over, exclusive of costs, the transcript 
 wher,eof is docketed in the office of the clerk of that county, shall have the 
 same effect. as a lien, and be enforced in the same manner as, and be deemed 
 a judgment of, the Court of Common Pleas for the city and county of N'ew 
 York. 
 
 This section as it stands dates from 1851. In 1848 it was substantially the same, except 
 that in the latter part, any judgment, without regard to amount, became a lien when docketed. 
 In 1849 the present limitation wo,3 inserted. The amendment of 1851 consisted in adding the 
 words " and'be deemed," in the concluding sentence. 
 
 It will be observed, however, that, as regards an action discontinued 
 on the ground of title to real estate, the transfer is not solely to the 
 Supreme Court, as in the former title, but may be to any other court 
 having jurisdiction. 
 
 The New York District Courts have been held not to be justices' 
 courts, within the scope of subdivision 10 of section 53, as added by the 
 special statute of 1860, above cited, and to have no jurisdiction to en- 
 tertain an action, or to administer the statutory remedy in the nature 
 of replevin thereby created. Loomis vs. Bowers, 22 How., 361. 
 
106 justices' couets. — § 23. 
 
 § 23. Various Points as to Jwrisdiction.^ 
 
 The following decisions relate to the subject of the jurisdiction of 
 these tribunals, generally considered. 
 
 The amount of debt or damages claimed, regulates the acquisition of 
 that jurisdiction. Mv/rray vs. Deg7'0ss, 12 L. 0., 311; 3 Duer, 668; 
 Laugh/rom vs. Orser, 15 How., 281 ; 6 Duer, 697. If the claim exceed 
 the statutory limit, there will be a total failure to acquire it. Bellinger 
 vs. Ford, 14 Barb., 250. 
 
 The mere reduction of an original claim, exceediiig $400, by pay- 
 ments reducing it to that sum, does not constitute a matter of account, 
 so as to deprive the justice of jurisdiction. But where the defendant 
 seeks to set off items arising in a course of mutual dealing, and not 
 sijecifically appropriated as payments, it will be otherwise. Ward vs. 
 Ingraha/in, 1 E. D. Smith, 538. In the latter case, provided the 
 amounts proved on both sides exceed $400, no jurisdiction will be ac- 
 quired. Still/well vs. Stajples, 3 Abb., 365 ; 5 Duer, 691 ; Brady vs. 
 Burlrow, 2 E. D. Smith, T8 ; Gilliland vs. Campbell, 18 How., 177. 
 And, where the evidence is conflicting, the finding of the justice, that 
 he is ousted of jurisdiction, will be held conclusive. Barker vs. Eatcni, 
 25 Barb., 122. To cases under the mechanics' lien law, this limitation 
 does not apply ; but the' court will have jurisdiction whatever may have 
 been the original amount, provided the claim does not exceed the special 
 limitation of $100. Foley vs. Gough, 4 E. D. Smith, 724. Although 
 executors or administrators cannot be sued, there is no restriction on 
 th^ir suing in these tribunals ; and the above disqualification has been 
 held, not to extend to a suit on an administration bond brouo-ht aa-ainst 
 the obligor. O'Neil vs. Martin, 1 E. D. Smith, 404. See, however, 
 Mahoney vs. Gunter, 10 Abb., 431. 
 
 Under the Code of 1848, a justice had no power to take a judgment 
 by confession. His previous authority was taken away, and was not 
 restored till the amendment of 1849. Daniels vs. Hinhston, 5 How., 
 322. Such a confession may be made in court, by consent, on the case 
 coming on for trial, without writing or affidavit. Such a case does not 
 fall within subdivision 8. Gates vs. Ward, 17 Barb., 424. 
 
 Of the class of equitable actions in general, these courts have no ju- 
 risdiction. So held, as to a suit, to enforce the note of a married woman 
 against her separate estate. Coon vs. Brooh, 21 Barb., 546 ; Cobine 
 vs. St. John, 12 How., 333. See, however. Walker vs. Swayzee, 3 Abb., 
 136, as to the power of entering a personal judgment against her ; but 
 this doctrine seems untenable under the statute as it then stood. Nor 
 
justices' courts. — § 23. 107 
 
 have they of an action for enforcement of an equitable lien against real 
 estate. Quimby vs. Sloan, 2 Abb., 93 (98) ; 2 E. D. Smith, 594. 
 
 These courts cannot entertain jurisdiction of an action against a 
 sheriff for a false return. LoAighran vs. 'Orser, 15 How., 281 ; 6 Duer, 
 697 ; Warden vs. Brown, 14 How.,' 327. Yam, Ylech vs. Bv/rroughs, 
 6 Barb., 341, which would seem to conflict with this, was before the 
 Code, by which the former general jurisdiction in actions on the case 
 was taken away. 
 
 Nor are they competent to entertain an action for damages for fraud- 
 ulent representations. White vs. Seawer, 25 Barb., 235. 
 
 Though the JSTew York District Courts have no cognizance of an ac- 
 tion for seamen's wages, this does not preclude them from entertaining 
 a suit upon the contract of a shipping agent, to pay advance wages be- 
 fore the seaman proceeds to sea. Loftus vs. Ola/rk, 1 Hilt., 310. 
 
 Their jurisdiction does not extend to an action against a foreign cor- 
 poration. Paulding vs. The Hudson Manufactnir>/ng Convpany, 2 E. D. 
 Smith, 38 ; 3 0. E., 223. 
 
 In the same case, it was held that this objection may be waived by 
 appearance, and pleading to the merits. 
 
 See likewise, as to the point that objections grounded on the improper 
 issue or service of process, may be waived by appearance and pleading 
 to, and going to trial upon the merits, Sperry vs. Major, 1 E. D. Smith, 
 361 (364) ; Snyder vs. Goodrich, 2 E. D. Smith, 84 ; Bray vs. Andreas, 
 1 E. D. Smith, 387 ; Oushingham vs. Phillips, ibid., 416 ; Andrews 
 vs. Thorp, ibid., 615 ; Monteith vs. Cash, ibid., 41^; 10 L. 0., 348; 
 Miln vs. Russell, 3 E. D. Smith, 303 ; Ingersoll vs. Gillies, ibid., 119 ; 
 De Agreda vs. Faulberg, ibid., 178 ; Aldrloh vs. Ketchamn, ibid., 577 ; 
 DeTivpsey vs. Paige, 4 E. D. Smith, 218 ; Gossling vs. Broach, 1 Hilt., 
 49. Pobinson vs. West, 1 Sandf , 19, to the same effect, was, however, 
 reversed by the Supreme Court, in error. Yide Robinson vs. West, 11 
 Barb., 309. 
 
 As a general rule, however, objections foimded on a want of jurisdic- 
 tion of the controversy, or of the person, or by reason of an improper 
 issue, or an insufficient or wrongful service of process, are incapable of 
 waiver, and may be raised at any time ; and it is the duty of the justice 
 to dismiss the action when the fact appears. See Sperry vs. Major, su- 
 pra ; Snyder vs. Goodrich, 2 E. D. Smith, 84 ; Beattie vs. Larhin, ibid., 
 244 ; Beldeyh vs. The New York and Harlem Railroad Company, 15 
 How., 17 ; Sherwood Y&. Saratoga and Washington RaMroad Company, 
 15 Barb., 650 ; Fitch vs. Pevlin, ibid., 47 ; Wheeler vs. The New York 
 and Harlem Railroad Company, 24 Barb., 414; Cornell vs. Smith, 2 
 Sandf., 290 ; Allen vs. Stone, 9 Barb., 60 ; Robvnson vs. West, 11 Barb., 
 309 ; Bellinger vs. Ford, 14 Barb., 250. And not only is an attach- 
 
108 justices' cotjkts. — § .23. 
 
 uieiit issued by a justice without the security required by statute void, 
 but it confers no protection to those acting under it. Davis vs. Marshall, 
 li Barb., 96. 
 
 But an objection of this nature cannot be raised collaterally in 
 another action. Proceedings must be taken directly in the suit itself. 
 New Torh and Erie Railroad Compamy vs. Purdy, 18 Barb., 574. 
 See, however, dictum of Bronson, J., dissenting, in Barnes vs. Harris, 4 
 Comst., 374, (3Y9). 
 
 The same general rules as to presumption, apply to these courts, as 
 to the others of limited jurisdiction, trea,ted of in the preceding chap- 
 ters. No presumption can, as a general rule, be made in favor of that 
 jurisdiction, but, when shown, nothing will be presumed against it 
 without actual proof. Vide Barnes vs. Harris, 4 Comst., 374 ; Foster 
 vs. Hazen, 12 Barb., 547. And where an official return of service is 
 made, the usual presumption as to the proper discharge of his duties, 
 by the officer making it, will be indulged. Vanhi/rh vs. Wilds, 11 Barb., 
 520 ; Eeno vs. Pi/nder, 20 N. Y., 298. 
 
 In relation to actions on judgments brought under subdivision 7 of 
 section 53, the special prohibition of section 71 must be borne in mind. 
 Under that section, such an action cannot be brought in the same 
 county within five years after the rendition of the judgment, unless in 
 one of the following cases — ^the, death, resignation, incapacity to act, 
 or removal from the county of the justice, that process was not person- 
 ally served on the defendant, or all the defendants, in case of the death 
 of some of the parties, or where the docket or record of such judgment 
 is lost or destroyed. 
 
 An action of this nature is not limited to a claim for $100, but may 
 be brought for any sum due on the judgment sued upon. Hwmphrey vs. 
 PersOTs,'23 Barb., 313. 
 
 As regards the New York local courts, it has been held that, before 
 bringing such an action, as between the same parties, leave of the court 
 must be obtained, on notice to the adverse party, under the general 
 provision for that purpose in section 71. Vide Thompson vs. Sutphen, 
 2 E. D. Smith, 527; and Mills vs. Winslow, ihid., 18; 3 C. E., 44; 
 overruling McOuire vs. Gallagher, 2 Sandf., 402. 
 
 The judgments of these courts, when duly docketed, effect a lien 
 on real estate coextensive in tinie with that effected by a judo-ment of 
 the Court of Common Pleas. Waltermire vs. Westover, 4 Kern. 16 ; 
 Nicholls vs. Atwood, 16 How., 475. 
 
 On the render of judgment, the justice is functus officio, and cannot 
 entertain any further application or make any further order in the 
 cause. Carpentier vs. Willett, 18 How., 400. 
 
 And if, on the other hand, he renders judgment prematurely, before 
 
justices' couets. — § 24. 109 
 
 the case is closed, the judgment will be void. Prentiss vs. Sprague, 1 
 Hilt., 428. 
 
 § 24. Hemoval of Cause where Title to Real Estate 'is in question. 
 
 The point as to when a controversy is or is not within the purview 
 of the sections above cited, has been made the subject of considerable 
 debate, as appeai-s by the following adjudications : 
 
 Where it is necessary for the plaintiff to establish his title in order to 
 recover at all, the objection lies, and it is the duty of the justice, at 
 whatever stag.e of the trial this shall appear, to dismiss the action. So 
 held, where a tenant denied title of his lessor's assignee. Main vs. 
 Cooper, 26 Barb., 468. And the justice, in such a case, cannot take 
 cognizance of the cause, even by consent. Yide Striker vs. Mott, 6 
 Wend., 465 ; MeNamara vs. Bitely, 4 How., 44. But to entitle the 
 defendant to siich a dismissal, the attention of the justice must be called 
 td the fact. Browne vs. Scofield, 8 Barb., 239. 
 
 Title comes into question in an action in the nature of the former 
 action for waste. Snyder vs. Beyer, 3 E. I). Smith, 235. So in an 
 action for trespass in cutting wood, resisted on the ground of right to 
 cut it ; or for a trespass, resisted on the ground of right of way. Boyce 
 vs. Brown, 3 How., 391 ; 7 Barb., 80 ; Fredonia a/nd Sinclea/rviUe Plcmk 
 Mood Gonupany vs. Wait, 27 Barb., 214 ; Striker vs. Mott, supra ; 
 Smith vs. Mitten, 13 How., 325. See also dictum in Boulston vs. Clark, 
 3 E. D. Smith, 366. (373.) 
 
 A mere allegation in the defendant's answer, that a plaintiff in an , 
 action for damages was where he had no right to be, does not put title 
 to land into question. Pierret vs. Moller, 3 E. D. Smith, 574. ISTor 
 is such the case in a similar action for a mere injury to the plaintiff''& 
 possession as occupant. Hardrop vs. Oallagher, 2 E. D. Smith, 523 ; 
 Squires vs. Seward, 16 How., 478. Or in an action for obstructing a 
 river claimed to be a public highway, resisted on the ground of right to 
 erect a dam under special grant from the legislature. Browne vs. Soo- 
 field, 8 Barb., 239. Or in action by a plank road company for toll, 
 grounded on proof of incorporation and possession, title not being con- 
 tested by the answer. Fredonia and Sindearmlle PlamJc Road Com- 
 pany vs. Wait, 21 Barb., 214. See likewise collaterally Squires vs. 
 Seward, 16 How., 478. 
 
 If the defendant, being apprized by the complaint that title will come 
 in question, and having the opportunity of taking the objection in his 
 answer, omits to do so, and goes to trial, the justice will retain his 
 jurisdiction. Section 69 is not applicable to cases where the question 
 of .title is apparent on the face of the complaint,- and the defendant 
 
110 justices' COtJETS. — § 24, 
 
 omits to avail himself of his privilege, but only where that question first 
 comes up on the trial. Adams vs. Rimers, 11 Barb., 390 ; Fredonia 
 and Sinclearville Plank Road Company vs. Wait, 2Y Barb., 214; White 
 vs. Seaver, 25 Barb., 235. Where the defendant himself, under a gen- 
 eral denial, proved the plaintiff's title as part of his own case, jurisdic- 
 tion was held not to be ousted, the title not being disputed. Hastings 
 vs. Glenn, 1 E. D. Smith, 402. 
 
 The mere fact that title is necessary to be proved by the plaintiff 
 in an action for injury to his possession, will not oust jurisdiction, 
 unless such title is disputed by the defendant. Bellows vs. 8ackett, 
 15 Barb., 96. 
 
 The following decisions, though made directly on the question of 
 costs, bear upon the question : 
 
 An issue joined upon a license to do an act on real estate, does not 
 involve the title to real property. Lawnitz vs. Barnum, 4 Sandf., 637. 
 Nor is the question raised in an action for a trespass, defended on the 
 sole ground that defendant was entitled to enter for the purpose of 
 blasting and removing rock, pursuant to a contract, plaintiff's title not 
 being contested. O^Reilly vs. Bavies, 4 Sandf., 722. But, where de- 
 fendant justified on the ground that, under a contract for sale of the 
 premises in question, he was entitled to a right of entry to remove, at a 
 future period, certain shrubs growing thereon, it was held that title 
 came in question. Powell vs. Rust, 8 Barb., 567 ; ICE. (N. S.), 172. 
 A mere license to a purchaser to enter until default in payment of part 
 of his purchase-money, was held, however, not to involve the question 
 of title, in an action by such purchaser against the vendor for re-entry 
 after such a default. Bolittle vs. Eddy, 7 Barb., 74. Ifor is the ques- 
 tion of title involved in an action for damages for breach of an agree- 
 ment to convey, when the only question was as to whether an inchoate 
 right of dower was or was not a subsisting incumbrance. Smith vs. 
 Riggs, 2 Duer, 622. 
 
 A good deal of difiiculty has been raised by the original wording of 
 section 60, which prescribed that the defendant's answer should be the 
 same as that which he made before the justice. It was contended, that 
 under this section, such answer must be identically the same, and could 
 not be altered or amended in any respect, or replied to. Vide MoNamara 
 vs. Bitdy, 4 How., 44 ; Cusson vs. Whalon, 5 How., 302, 1 C. E. (N. 
 S.), 27. See Boyoe vs. Brown, 3 How., 391, affirmed 7 Barb., 80, per 
 contra. In Wendell vs. Mitchell, 5 How., 424, it was, on the contrary, 
 considered that the pleading in such a ease might be amended in point ol 
 form, but not in matters of substance. It was also afterward held that 
 such an answer might, and must be replied to. Kiddle vs. Degroot, 1 C. 
 E. (N. S.) 202, 272. In Jewett vs. Jewett, 6 How., 185, it was further held 
 
justices' courts. — § 24. Ill 
 
 that the whole of the pleadings in these cases were to be governed by 
 the rules of the courts above, the only restriction being, that the cause 
 of action and the ground of defence must be the same as before the justice. 
 Jewett vs. Jewett is acknowledged as authority in Smith vs. Floyd, 18 
 Barb., 522 (526), and it was settled by the Court of Appeals in Wig- 
 gins vs. Tallmadge, 1 How., 404, that the answer in the court above 
 in such cases, need not be in the identical words of the original answer 
 below, provided it contains the same substantial defence, and that any 
 portion of the original defence might, in such second answer, be aban- 
 doned. The power of the court above to amend the pleadings in such 
 a case, upon appeal, is asserted in Govld vs. Olass, 19 Barb., 179 ; and 
 the question seems now fally settled by the last amendment of the sec- 
 tion, prescribing merely that the defence, and not that the answer, shall 
 be the same. 
 
 , It seems that it is not incumbent for the plaintiff to give notice to 
 the defendant of the deposit of the summons and complaint with the 
 justice, and that if the latter, in ignorance of that fact, omit to give an 
 admission of service as required by section 58, he will be remediless, 
 the court above having no jurisdiction of the action to enable them 
 to entertain a motion 'in it, until actual service of the summons. 
 Dams vs. Jones, 4 How., 340 ; 3 C. K. 63. 
 
 If, however, the plaintiif accept service of the answer in the court 
 above, without the formal admission provided for by the section, it will 
 be a substantial performance of the undertaking, and his right to a 
 literal compliance will be waived. Wiggins vs. Talknadge, T How., 404. 
 
 The giving of the undertaking under section 56 is a matter of sub- 
 stance, and unless it is shown to have been given, the justice will not be 
 held to be ousted of his jurisdiction. LaUiebte vs. YanKeuren, 1 How., 
 409. 
 
 For the purposes of an appeal, an action discontinued and recom- 
 menced as above, is an action commenced in a justice's court. Cooh vs. 
 milis, 18 E". Y., 126 ; Brown vs. Brown, 2 Seld., 106 ; 6 How., 320 ; 
 Pugsley vs. Kessdhurgh, 6 Seld., 420 ; 7 How,, 402 ; Wiggins vs. Tall- 
 madge, 7 How., 404. See, also Lalliette vs. Yan Kev/ren, 7 How., 409. 
 Prior to 1857, the Supreme Court was the ultimate tribunal in this 
 class of cases. Since the amendment of that year, they are appealable 
 to the Court of Appeals. 
 
 It seems that, whilst this class of cases remained transferable to the 
 County Courts, they were competent to entertain one so arising, irrespec- 
 tive of the residence of the defendants ; and jurisdiction of the person 
 may be shown on the record, by making the proceedings before the 
 justice part of the judgment-roll. Clyde and Rose Plank Road Com- 
 pany vs. Baher, 12 How., 371, affirmed 22 Barb., 323. 
 
112 OP OFFICEES OF THE COtTRT. — S 25. 
 
 CHAPTEK VII. 
 
 OF OFFICERS OF THE OOTJET. 
 
 § 25. Prelimina/ry Observations. — Delegation of JvMcial 
 
 Powers. 
 
 HAvmG thus considered the different courts established for the ad- 
 ministration of justice within this state, and the duties and powers of 
 the judicial officers by whom justice is so administered, it remains to 
 notice, in the last place, the various subordinate officers who exercise in- 
 ferior functions, having reference to that administration, or by whom 
 proceedings in those courts are carried put. 
 
 The functions of these officers, and the power of compelling the due 
 performance of those functions, on the part of the suitors in the different 
 courts whose practice forms the subject of this work, will be shortly 
 treated of in the present chapter. It is not proposed, however, to enter 
 at any great length into the numerous points of detail relative to the 
 exercise of those functions, and not bearing directly upon the progress 
 of a suit or proceeding, when instituted. This consideration falls rather 
 within the limits of an elementary than those of a practical treatise. 
 The office of sheriff, in particular, has formed the subject of several 
 separate works. 
 
 The powers of the judges themselves, and the different restrictions 
 upon the exercise of those powers, have been noticed in the previous 
 chapters. In some few instances, the powers so conferred are capable 
 of partial delegation. One of those instances, i. e., the making of orders 
 of course in the Supreme Court by a county judge, or Supreme Court 
 commissioner, has been already noticed. Another instance of such del- 
 egation is that of a referee, who, under section 272 of the Code, is en- 
 titled to exercise pro hoc vice all the powers and functions of a judge. 
 The same is the case with respect to proceedings before a sheriff's jury, 
 over which the sheriff presides, and exercises for the time being judicial 
 functions. In the taking of testimony by commission, the commissioners 
 also stand to a certain, but limited extent, in the place of the court. 
 Commissioners for the making of partition, and admeasurement of dower, 
 likewise exercise quasi judicial powers. Again, commissioners de lu- 
 natico inquirendo, or in the case of an idiot or habitual drunkard, pre- 
 side judicially ; and the first commissioner in particular, performs most 
 of the ordinary functions of a judge at the trial of a cause, on the execu- 
 tion of such a commission. 
 
OF OFFICERS OF THE COURT. — § 26. 113 
 
 • § 26. Olerh of the Court. 
 
 This officer is charged with all the multifarious minor duties connected 
 with the due registration and safe keeping of the records belonging or 
 incident to any suit or proceeding in the court for which he acts, and 
 is invested with numerous minor authorities connected with those powers. 
 He is bound to keep his office continually open for certain specified 
 hours, amounting to the whole of the ordinary business day. Vide 2 
 E. S., 285, § 64. 
 
 By chapter 276 of 1860, p. 480, these hours are defined as follows : 
 In the county of N^ew York, from 9 a. m. to 4 p. m. 
 In the other counties, from 8 a. m. to 6 p. m., between the 31st 
 of March and the 1st of October ; and for the other six months, from 
 9 A. M. to 5 p. M. ; Sundays and holidays excepted. 
 
 Before the constitution of 1846, there were special clerks of the Su- 
 preme Court and Court of Chancery, and other officers styled clerks of 
 counties, the latter being more peculiarly the depositaries of records, the 
 former charged with the general business of the' tribunals for which they 
 were appointed. By the constitution, article YI., § 19, this arrange- 
 ■ment was changed, and it was provided that the clerks of counties should 
 be clerks of the Supreme Court, with such powers and duties as should 
 be prescribed by law. They are elective officers for terms of three years. 
 They may be required to give security, and are subject to removal by 
 the governor. Constitution, article X. The power of appointment to 
 any vacancy until the next election rests with the same officer. 1 R. S., 
 124, § 49 ; chapter 58 of 1836, § 2. Pending the organization of a new 
 county, and until all proceedings for that purpose are completed, the 
 clerk for such county, though elected, has no power, and his acts will 
 be void. Larming vs. Carpenter, 23 Barb., 402. 
 
 Under section 13 of the judiciary act, the clerks of counties hold all 
 the former powers of the clerks of the Supreme Court, and registrars 
 and clerks in Chancery in all the counties iii this state. They are also 
 clerks of the county courts within their counties,, except only in the city 
 and county of New York. 
 
 The Court of Common Pleas in thait city has its own clerk, and such 
 is the case also as to all the other courts, in. cities, whether of superior or 
 inferior jurisdiction. The clerk of the- Cburt of Appeals is likewise a 
 separate and independent officer. His election is provided for by the 
 section of the constitution above cited. 
 
 Under the Eevised Statutes, 1 E. S., 376, §§ 56^9, the clerks of 
 counties are each baund to appoint a deputy to act during his incapa- 
 city or absence, or in the event of a vacancy ; but the powers of this. 
 Vol. I.— 8 
 
114 OF prPICEKS OF THE OOUKT. § 26. 
 
 officer cease, on such vacancy being filled by appointment. People vs. 
 Snedelaer, 4 Kern, 52. A deputy clerk may perform any ordinary 
 ministerial act ; such, for instance, as certifying to the genuineness of the 
 signature of a commissioner of deeds, and such act will be valid. Lynch 
 ys. Lwmgston, 8 Barb., 463 ; affirmed, 2 Seld., 422. 
 
 Under the Code, numerous quasi-]udad3l duties are imposed upon 
 the clerk of the court, whether acting as clerk of the court or of any 
 specific tribunal. On the entry of judgment by default, in an action 
 on contract for the recovery of money only, he assesses the amount of 
 that recovery — section 246, subdivision 1. He enters up judgn?ent upon 
 a confession (§ 384), or upon an offer, if accepted (§ 385). He is also 
 charged with the computation of interest and the taxation of costs, 
 upon the entry of judgment of whatever nature — sections 310, 311. 
 (^See also as to costs on foreclosure by advertisement, 2 R.'S., 652,-§ 3.) 
 And this is so peculiarly his duty, that it is not competent for a judge 
 of the court to tax such costs in the first instance. Van Schaich vs. 
 Winne, 8 How., 5. 
 
 But his authority extends only to the taxation of costs on a judg- 
 ment ; it does not extend to those of an interlocutory nature. Moriscm 
 \?,. Ide, 4 How., 304 ; Echerson vs. Spoor, 4 How., 361 ; 3 C. K., 70 ; 
 NMis vs. De Forest, 6 How., 413. But he may do so, as referee, by 
 special direction of the court. Mitchell vs. Westervelt, 6 How., 265 ; 
 affirmed, 6 How., 311. 
 
 He is the party whose especial duty it is to make up the judgment- 
 roll, on the entry of judgment in all cases — Code § 281. Renouil vs. 
 Harris, 2 Sandf , 641, 1 C. E., 125. 
 
 But when he has taxed costs on a judgment, his taxation may be re- 
 viewed by a judge of the court. Whipple vs. Williams, 4 How., 28. 
 See also note, 3 C. K., 24. See likewise Goodyear vs. Baird, 11 How., 
 377; Schultz vs. Whitmsy, 17 How., 471 ; 9 Abb., 71. And when the 
 court, whose judgment he entera, has made a decision on the subject of 
 costs, he is bound to follow that decision, even though manifestly 
 wrong. Chapin vs. ChurehiU, 12 How., 367. 
 
 The presumption lies, in the absence of proof to the contrary, that he 
 has regularly done his duty. American Exchange Bank vs. Smith, 6 
 Abb., 1. Any irregularity, however, on his part, when shown to exist, 
 will be corrected, and the parties will not be allowed to suffer from it. 
 Neele vs. Berryhill, 4 How., 16 ; Renouil vs. Harris, 2 Sandf., 641 ; 2 
 C. R., 71. But relief of this nature rests in the discretion of the court, 
 and may, if no injustice is done, be denied. Chapin vs. Churchill, 12 
 How., 367. 
 
 He is bound to keep in his office a book for the entry of judgments 
 (Code, § 379); and also, by rule 9 of the Supreme Court, a .complete 
 
OF OFFICERS OF THE COUKT. — § 27. 115 
 
 register of all suits and proceedings pending, and all other necessary 
 books, and such others as the courts of his district, at general term, may- 
 direct. 
 
 The pei-formance of his duty is compellable by attachment, and the 
 foi-m of notice, on an application for that purpose, is prescribed by 
 rule 8. 
 
 An important part of his duty consists in the making of oflicial 
 searches amongst the records in his office, for the purposes of title or 
 otherwise. His duty, in this respect, in the city of New York, is 
 regulated by special statute — chapter li2 of 1853. 
 
 His fees are prescribed by statute. As between the parties, it is 
 comJ)etent for him to refuse them, if he so chooses. 8ohermerhom vs. 
 Van Voast, 5 How., i58 ; 1 C. E. {E. S.), 400. 
 
 Although "his is the office in which the records of naturalization of 
 aliens are kept, he has no power to issue a certificate of citizenship. 
 That power is not ministerial, but judicial, and is vested in the judges 
 only. In re GlarJc, 18 Barb., 444 ; 10 How., 246 ; 1 Abb., 901. 
 
 Both the clerk and the deputy clerk of any court, are each, during 
 his continuance in office, disqualified from practising in such court as 
 a counsellor, solicitor, or attorney. 1 E.. S., 109, § 25. 
 
 The clerk of any court of record, including therefore the county 
 clerk, within his county, possesses, under 2 E. S., 284, section 49, gen- 
 eral authority to take and certify to any oaths or affidavits required or 
 authorized by law, in any cause, matter, or proceeding ; except oaths on 
 the actual trial, oaths of office, and other oaths required to be taken by 
 particular officers. 
 
 As to his duty to perform such service, when required ; his right to insist on prepaj-ment 
 of the fees for that service ; and the waiver of that right by giving credit to the party bound 
 to pay them, see Purdy vs. Peters, 23 How., 328. 
 
 §27. Oaths and Acknowledgments. — Commissioners of Deeds. 
 
 As above noticed, the clerk of each court of record possesses a gen- 
 eral power for the administration of oaths, in suits or proceedings. 
 Under the same section (2 E. S., 284, section 49), the same power is 
 given to any judge of any court of record, circuit judge, Supreme 
 Court commissioner, or commissioner of deeds ; and, when so taken and 
 certified by any of such officers, or by the clerk, as above, such oath or 
 affidavit may be used in any court within the state, of record or not of 
 record ; or before any judicial or other officer, before whom any such 
 cause, matter, or proceeding may be pending. 
 
 Affidavits to be read in the Supreme Court may, also, under the 
 same section, be taken before any commissioner appointed for that pur- 
 pose by the justices of said court. Under chapter 344 of 1857, section 
 
116 OF OFFICBKS OF THE COUET. § 27. 
 
 75, the clerk of each of the New York District Courts is likewise au- 
 thorized to administer oaths in the city of New York, in' the same 
 manner, and with the like effect as if he was the clerk of a court of 
 record. The administration .of oaths by these different officers is how- 
 ever, as a general rule, more especially confined to proceedings pending 
 in their own particular courts. 
 
 For these purposes, and also for that of taking acknowledgments of 
 deeds, undertakings, and satisfactions, the ministration of the officers 
 styled commissioners of deeds, is also widely and generally available, 
 and the facilities in this respect have of late been considerably ex- 
 tended. 
 
 The authority of this class of officers is conferred by the Eevised 
 Statutes. They are appointed for any county or city, and their original 
 powers under 2 E. S., 282, 283, section 41, were, in addition to that 
 above noticed as to oaths, to take the proof and acknowledgment of 
 deeds, and the discharge of mortgages ; and also to take the acknowl- 
 edgment of bail, and of satisfaction of judgments in the Supreme Court, 
 or in the courts of the county or city for which they are appointed. 
 Under 2 E. S., 282, section 40, the same power is vested in the judges 
 of County Courts. By chapter 238 of the Laws of 1840, the office of 
 commissioner of deeds is abolished in the several towns of this state, 
 and the powers and duties of such commissioners transferred to the jus- 
 tices of the peace in such towns. 
 
 The powers of these several officers are strictly local, and none of 
 them has any general authority to act, out of the local limits for which 
 he is appointed. In any acknowledgment or affidavit taken by them, it 
 is therefore an indispensable requisite that the venue, where such ac- 
 knowledgment or affidavit is taken, should appear upon its face. If this 
 is omitted, the certificate will be a nullity, and the proceeding of no 
 avail. Lane vs. Morse, 6 How., 394; Gooh vs. Staats, 18 Barb., 407. 
 
 By 1 E. S., 759, section 18, it is further provided that any certificate 
 of acknowledgment taken before a commissioner of deeds, or judge of 
 the County Courts, not of the degree of counsellor at law, shall not be 
 of any effect in any other county than that of his residence, unless 
 there be subjoined to it a certificate of the clerk of such county, iden- 
 tifying his authority and signature. This certificate must therefore be 
 obtained in all such cases. The fee for this service is twenty-five cents. 
 The deputy clerk is competent to grant such a certificate. Zynoh vs. 
 Lwingston, 8 Barb., 463 ; affirmed, 2 Seld., 422. 
 
 By chapter 360, of 1859, p. 869, all the powers of commissioners of 
 deeds are conferred upon notaries public of this state, in addition to 
 their former powers, and without official seal. If his certificate is to be 
 used out of the city for which such notary is appointed, his signature 
 
OF OFFICERS OF THE COURT. § 27. 117 
 
 must be authenticated by the county clerk as above. See, as to the 
 full powers of a notary under the above .statute, People vs. Ilasoall, 18 
 How., 118. 
 
 The power of taking .acknowledgments of deeds within this state, is 
 also, by virtue of 1 R. S., 757, section 4, vested in the present judges 
 of the Supreme Court, and of the county and city courts, in addition to 
 commissioners of deeds and justices of the peace, as above, but with the 
 same local limitations as before noticed. The same powers are conferred 
 on the same officers, as to the satisfaction of mortgages, by 1 R. S., 761, 
 section 28 ; and, under -2 E. S., 362, section 23, a satisfaction of judg- 
 ment may, in like manner, be acknowledged before some judge of the 
 court in which the judgment was rendered, or before some judge of the 
 county courts, or a commissioner of deeds. And, lastly, by chapter 271 
 of 1833, section 2, every written instrument, except promissory notes 
 and bills of exchange, or wills, may be proved or acknowledged in 
 the same manner as a conveyance of real estate, and the certificate of 
 the proper officer endorsed thereon, shall entitle it to be received in 
 evidence, as if it were such a conveyance. 
 
 The taking of acknowledgments out of the state, has been, from 
 time to time, provided for as follows : 
 
 By 1 R. S., 757, section 4, subdivision 2, the power of taking acknowl- 
 edgments without the state, but within the United States, is conferred 
 upon the following officers : The chief-jijstice, and associate justices of 
 the Supreme Court of the United States ; district judges of the United 
 States; the judges or justices of the Supreme, Superior, or Circuit 
 Courts, of any state or territory within the Uijited States ; and the 
 chief judge, or any associate judge of the Circuit Court of the United 
 States, in the District of Columbia — ^but limited in each case to the 
 place or territory to which the jurisdiction of the court to which such 
 judicial officer belongs shall extend. Under chapter 222 of 1829, similar 
 powers are given to the mayors of Philadelphia and Baltimore ; and, by 
 chapter 109 of 1815, to the mayor of any city in the United States. 
 
 By chapter 259 of 1858, provision is made for the recording of docu- 
 ments acknowledged or proved in any other state or territory, according 
 to its laws, when both the grantor and the officer before whom it was 
 proved or acknowledged shall be dead. 
 
 As to acknowledgments taken out of the United States, the following 
 powers are conferred by 1 R. S., 757, sections 5 and 6 : 
 
 If the parties reside in any state or kingdom in Europe, or in North 
 or South America, the acknowledgment may be taken before any min- 
 ister plenipotentiary, or any minister extraordinary, or any charge 
 d'affaires, of the United States, resident within such state or kingdom. 
 If in France, before the consul of the United States in Paris ; if in 
 
118 OF orncEKS of the cottet, — § 27. 
 
 Eussia, before the consul at St. Petersburg!! ; if in the United Kingdom 
 of Great Britain and Ireland, or its dominions, before the mayor of 
 London, the mayor or chief magistrate of Dublin, the provost or chief 
 magistrate of Edinburgh, or the consul of the United States at London. 
 By section 7, such proofs or acknowledgments must be duly certified 
 under the hand and seal of office of such officers. By chapter 222, of 
 ] 829, these facilities are extended, and acknowledgments may be taken 
 before any consul of the United States resident in any foreign port or 
 country, or before a judge of the highest court in Canada. 
 
 By 1 E. S., 757, section 8, an acknowledgment may also be taken be- 
 fore any person specially authorized by commission under the seal of 
 the Court of Chancery ; which power is no doubt exercisable by the 
 present Supreme Court. 
 
 Under 1 E. S., 758, sections 9 to 12, inclusive, sundry provisions are 
 made relating to acknowledgments and proofs, to the effect that the 
 person making them must be known to, or identified before the officer, 
 and also as to the separate examination of married women residing 
 within this state ; but, without the state, a married woman may ac- 
 knowledge as if she were a.fe7ns sole. 
 
 In relation to the taking of affidavits in foreign states or countries, 
 the following provision is made by 2 E. S., 396, section 25 : 
 
 In cases where, by law, the affidavit of any person residing in another 
 state of the United States, or in any foreign country, is required, or may be 
 received in judicial proceedings in this state, to entitle the same to be read, 
 it must be authenticated as follows : 
 
 1. It must be certified by some judge of a court having a seal, to have 
 been certified or taken before him, specifying the time and place where taken. 
 
 2. The genuineness of the signature of such judge, the existence, of the 
 court, and the fact tliat such judge is a member thereof, must be certified by 
 the clerk of the court, under the seal thereof. 
 
 N. B. — A master extraordinary in Chancery in England, cannot talce an affidavit to be 
 used in this state. His powers in that respect are merely local. Vids Lahens vs. Melden, 1 
 Barb., 22. 
 
 By chapter 206 of 1854, the power of taking oaths and affirmations 
 is specially given to the officers named in 1 E. S. 757, sections 5 and 6 
 (to& supra), and also to any other consul or vice-consul, or minister 
 resident of the United States,^ appointed to reside in any foreign port 
 or place. Such taking must be certified under the hand and seal of 
 such officers respectively. 
 
 In regard to the taking of both acknowledgments and affidavits, in 
 other states and foreign countries, the facilities have of late years been 
 continually increasing. 
 
 By chapter 290 of 1840, power is given to the governor to appoint 
 
OP OFFtCEES OF THE COTJKT.^§ 27. 119 
 
 and commission one or mo^-e commissioners in eacli of the other states 
 and territories of the United States, or in the District of Columbia, with 
 full power and authority to take aclcnowledgments., and to administer 
 oaths and affirmations, with the same effect as an officer residing within 
 tlie state. 
 
 By chapter 270 of 1850, amended by chapter 788 of 1857, and chap- 
 ter 222 of 1859, the exercise of this power is regulated in detail, tlie 
 former statute being repealed. By section 1 that power is again con- 
 ferred, and the same authority is given to such commissioners, when 
 appointed, in the very fullest terras, so as to extend beyond a question 
 to every description of acknowledgment or affidavit. Their powers 
 are strictly local. Section 5. 
 
 By the act of 1850, the authority, as in the Bevised Statutes, is con- 
 fined to the United States ; by the amendment of 1857 it is extended, 
 60 as to authorize such appointments in Canada. In both, the number 
 of such commissioners is not to exceed five in any one city or county. 
 This number is extended to ten in any one county by chapter 222 of 
 1859. Each of such commissioners is to take an oath, and to prepare 
 an official seal, an impression of which, together with his signature, is to 
 be filed in the office of the secretary of state at Albany. His certificate 
 is to be under his hand, and under such official seal ; and before the 
 document so certified can be used or read in evidence, it must be au- 
 thenticated by the official certificate of the secretary of the state, to the 
 effect prescribed by section 4. The fee for this certificate is twenty -five 
 cents. Section 6. It will therefore be necessary on the receipt of any 
 document so certified, to enclose it forthwith to that officer, at Albany, 
 postage paid, with the above fee, and also the return postage, or a 
 stamped envelope, enclosed. 
 
 By chapter 195 of 1848, amended by chapter 303 of 1863 (since 
 
 repealed), chapter 111 of 1854 (superseded in effect though not repealed), 
 
 and chapter 61 of 1856, these facilities are further increased, as to the 
 
 proof and acknowledgment of deeds made by persons resident within 
 
 any other state or territory of the United States, or the District of 
 
 Columbia ; and they may now be taken by any officer of any such state 
 
 or territory, authorized by its laws to take acknowledgments. Section 
 
 3, which has been the subject of all the amendments above noticed, 
 
 prescribes the mode of authentication of the signature and authority of 
 
 the officer so acting, which is to be by a certificate under the name and 
 
 official seal of the clerk, register, recorder, or the prothonotary of the 
 
 county in which such officer resides, or of the County or District Court 
 
 or Court of Common Pleas thereof. This certificate should, of course, 
 
 be procured simultaneously with the taking of an acknowledgment iu 
 
 that form. 
 
120 OF ornoERS oe the cotjet. — § 28. 
 
 A special power to take affidavits is also conferred by chapter 471 of 
 1862, p. 870, upon persons holding the rank of colonel or any higher 
 rank in the New York state volunteers in the service of the United 
 States, and any commissioned officer in said service, and who is a coun- 
 sellor of the Supreme Court of this state. 
 
 By-chapter 308 of 1858, amended by chapter 283 of 1862, p. 478, the 
 governor is further empowered to give a similar commission to that 
 authorized by the statute of 1850, with similar powers as to the taking 
 of acknowledgments and affidavits, to one or more, not exceeding three, 
 commissioners, in each of the following cities, viz. : London, Liverpool, 
 and Glasgow, in Great Britain ; in Dublin, Belfast, Cork, and Galway, 
 in Ireland ; and Paris and Marseilles, in France. Such commissioners 
 have also the additional power, under section 1, of certifying the exist- 
 ence and correctness of a copy of any patent-record, or other document 
 remaining of record in any public office or official custody in Great 
 Britain or France, such certificate to be evidence. Vide sections 8 and 
 9. Similar provisions to those of the statute above referred to, are made 
 with reference to the official seals of such commissioners, and the neces- 
 sity of the authentication of their acts by the secretary of state, who is 
 entitled to the same fee for such authentication. See instructions above 
 given. The fees of these commissioners are prescribed by section 7. By 
 the amended measure of 1862, the governor is empowered, in his dis- 
 cretion, at any time hereafter, to appoint a commissioner for any other 
 foreign state or country, with the same powers as above. 
 
 It may not be out of place to mention that similar arrangements exist 
 for taking acknowledgments and depositions relating to property or 
 proceedings in other states or teri-itories, by commissioners appointed 
 for this state. Affidavits for use in the English courts may be sworn 
 before a British consul or vice-consul. 
 
 It is irregular for the attorney for one of the parties to a suit to act 
 as commissioner of deeds in taking an affidavit in that suit. Gilmore 
 vs. Sempstead, 4 How., 153. But such is not the case with regard to 
 affidavits unconnected with, or preparatory to a suit before it is actually 
 pending, The rule is merely technical. A confession of judgment 
 sworn to before the plaintiff's attorney, was accordingly held good in 
 Post vs. Coleman, 9 How., 64. 
 
 The office of commissioner of deeds being merely ministerial, and not 
 judicial, relationship to the parties is no disqualification. Zynoh vs. 
 Zwmgston, 8 Barb., 463 ; affirmed, 2 Seld., 422. 
 
 § 28. Sherifs. 
 This officer may be shortly defined as the executive agent of the 
 different courts of justice, for enforcement of their judgments or orders, 
 
OF OFFICEES OF THE COTJET. § 28. 121 
 
 and the summoning and empannelling of juries for the trial of causes 
 pending within their jurisdiction. He is likewise invested with quasi- 
 judicial functions in presiding over what is termed a sheriff's jury, 
 summoned for the assessment of damages, on judgment by default, 
 on a writ of inquiry, or other special writ directed to him, and, alsol, in 
 cases where the title to property on which a levy has been made by 
 him is contested. Vide 2 K. S., 286, § 58. He is likewise, when employed 
 by the parties to an action, bound to act as their official agent in the 
 service of process or papers. He further acts virtually on their em- 
 ployment, in taking property under the provisional remedy of replevin. 
 He is, ex qffioio, custodian of the jails within his county, and of the 
 prisoners confined therein, whether on civil or criminal process. 1 E. 
 S., 380, § 75. The office is elective for a term of three years, subject 
 to removal .by the governor for cause shown. Constitution, art. X. 
 § 1. He can hold no other, and is ineligible for re-election during three 
 years. 1 R. S., 112. See, also, constitution of 1846, art. X., § 1. In 
 case of his removal or death, the governor may supply the vacancy 
 until the next election. 1 E. S., /123, § 44 ; 1 E. S., 124, § 49 ; ch. 
 58, of 1840. The out-going sheriif continues the proceedings under a 
 levy actually made by him whilst in office, and is fully empowered for 
 that purpose. Vide 3 E. S., 438, § 67-69 inclusive. Of all other mat- 
 ters left unfinished in his office, and of the prisoners in his custody, the 
 incoming sheriif takes charge. 
 
 On going into office he gives an official bond for the due discharge 
 of his duties, the penalty being $20,000 in the city of ISTew York, and, 
 $10,000 in other counties (1 E. S., 378, § 67, 68) ; and, in default of 
 liis doing so, the office becomes vacant. Constitution of 1 846, article X., 
 § 1. He is also bound .to appoint ah under-sheriff, who holds during 
 his pleasure, and supplies his place during any vacancy. 1 E. S., 379, 
 § 71, 72. 
 
 He may appoint as many deputies as he thinks proper, from whom 
 he takes bonds similar to his own, and he and the under sheriff may 
 also depute persons to do particular acts. 1 E. S., 379, § 73, 74. A 
 deputy, when appointed, may resign his office, which resignation dis- 
 charges his sureties from responsibility as to his future acts. Oilbert 
 vs. Luce, 11 Barb., 91. 
 
 In the event of both pffices being vacant, the coroner, or one of the 
 coroners of the county, acts in the sheriff's place till the vacancy is sup- 
 plied, giving a similar bond. Should the latter neglect or refuse to do 
 so, the first judge of the county appoints a special sheriff during the 
 vacancy. 1 E. S., 380-382, § 78-86 inclusive. The whole of article V., 
 title II., chapter XII., part I., of the Eevised Statutes (1 E. S., 378-382 
 inclusive) relates to the duties and powers of the officers in question. 
 
122 OF OFFICEES OF THE COURT. — § 28. 
 
 The sheriff is bound to keep a proper office, continually open during 
 business hours, and the leaving of notices or papers at that office, or, if 
 he have no office, then with the county clerk, is service on him. Vide 2 
 E. S., 285, § 55-57. Sheriffs, under-sheriffs, deputy sheriffs, sheriffs' 
 clerks, and coroners, are all, during their continuance in office, disquali- 
 fied from practising as counsellors, solicitors, or attorneys. 1 E. S., 
 109, § 27. 
 
 In the event of the sheriff himself being a party to any action, pro- 
 cess against him is directed to and executed by the coroner. See ar- 
 ticle 8, title YI., chap. VII., part III., of the. Eevised Statutes, 2 E. S.^ 
 442^t44. See similar authority in case of replevin, 2 E. S., 533, § 67. 
 Should both sheriff and coroner be parties, such process then issues to 
 persons specially appointed by the court, and styled elisors. 
 
 The duties and responsibilities of both sheriff and coroner, under the 
 Eevised Statutes, are expressly continued by the Code in the following 
 terms : 
 
 In relation to executions (which subject will be more fully considered 
 hereafter, under that head), by section 291, which runs as follows : 
 
 § 291. Until otherwise provided by the legislature, the existing provisions 
 of law, not in conflict with this chapter, relating to executions and their 
 incidents, the property liable to sale on execution, the sale and redemption 
 thereof, the powers and rights of oiKoers, their duties thereon, and the pro- 
 ceedings to enforce those duties, and the liability of their sureties, shall 
 apply to the executions prescribed by this chapter. ^ 
 
 In relation to the service of process, and generally, in section 419, in 
 the following terms ; 
 
 § 419. Whenever, pursuant to this act, the sheriff imay be required to 
 serve or execute any summons, order, or judgment, or to do any other act, he 
 shall be bound to do so in Uke manner as upon process issued to him, and 
 shall be equally liable in aU respects for neglect of duty ; and, if the sherift" 
 be a party, the coroner shall be bound to perform the service, as he is now 
 bound to execute process where the sheriff is a party ; and all the provisions 
 of this act relating to sheriffs, shall apply to coroners when the sheriff is a 
 party. 
 
 The performance of the formal duties of the sheriff", or the payment 
 over of moneys in his hands, is compellable by attachment. The mode 
 of proceeding in such cases is regulated by^rule 8 of the Supreme Court. 
 See hereafter under the head of proceedings for contempt. The party 
 has in addition a remedy by action ; and, in a case where the title to a 
 fund in the sheriff' 's hands was actually disputed, he was compelled to 
 resort to that mode of procedure, instead of an attachment. Wilson 
 vs. Wrighty^ How., 459. 
 
OF OFFICERS OF THE COURT. § 28. 123 
 
 In the execution of process directed to him, the sheriff is bound to 
 exercise the utmost diligence, and acts under the strictest responsibility, 
 and at his own peril ; nor will the court interfere to direct him as to 
 the mode of that execution. Bowie vs. BraJie, 2 Abb., 161. 
 
 The ordinary presumption as to the due performance of official acts 
 lies, however,, in his favor. Smith vs. Hill, 22 Barb., 656. 
 
 He is not responsible for any acts done by him within the limits of 
 his authority, when acting under process regular on its face. Yide 
 Cross vs. Phelps, 16 Barb., 502, (503) ; Lmdt vs. Hilts, 19 Birb., 283. 
 And this, even though the judgment on which such process issues be 
 voidable. Sheldon vs. Stryker, 21 How., 329. See also generally as to 
 the right to protection of a judicial or ministerial officer acting merely 
 in error. Stanton Vs. Schell, 3 Sandf., 323. 
 
 But if, under process, however regular, he takes the goods of a wrong 
 party, it will be no protection to him, even though so directed by the 
 process itself. Stiimpson vs. Reynolds, 14 Barb., 506 ; Marsh vs. Backus, 
 »16 Barb., 483 ; Kuhlman vs. Orser, 5 Duer, 242 ; King vs. Orser, 4 
 Duer, 431. But an action of trespass does not lie against him by the 
 owner of goods, for taking them out of the possession of another party, 
 on process against that party. Foster vs. Pettibone, 20 Barb., 350. 
 
 If he knowingly omits to make a sufficient levy on attachment, there 
 being property enough to answer for the debt, he will be liable to the 
 creditor for any deficiency. Ra/nsom, vs. Halcott, 18 Barb., 56 ; 9 
 How., 119 ; and if collusion or an omission to levy on property be shown 
 in a case of execution, the court will interfere to prevent the fraud from 
 being effectuated. Eagle vs. BormeoM, 2 Sandf, 679 ; 3 C. E., 205. 
 
 He is bound, at the request of the party, to prosecute and collect any 
 bonds or securities taken by him in the course of his duty, or he will be 
 liable for the omission. 'Nov can he require an indemnity for so doing. 
 Swezey vs. Zott, 21 IST. Y., 481. 
 
 He is responsible for the safety of property under his charge, and 
 bound to exercise full diligence ; but his responsibility is not that of an 
 insurer, and the question of negligence or the reverse, is one of fact. 
 Moore vs. Westervelt, 21 IST. Y., 103 ; reversing same case, 2 Duer, 59. 
 
 He is responsible, and becomes a trespasser, if he take property exempt 
 from execution. Hoyt vs. Van Alstyne, 15 Barb., 568. He is also re- 
 sponsible for any surplus property, or any damage to that surplus. 
 Waterhury YB. Westervelt, 5 Seld., 598. And, if he sell goods in an ille- 
 gal manner, as after sun-down, he will be responsible to the debtor, and 
 held a trespasser al initio. Ca/rwrick vs. Myers, 14 Barb., 9. 
 
 He is also liable in attachment for taking goods out of the possession 
 of a consignee, entitled to their custody, as holding a lien. Brownell vs. 
 CarnUy, 3 Duer, 9. He is likewise liable as a trespasser, if, on an exe- 
 
124 OF orncEEs of the court. — § 28. 
 
 ration against one partner, he sells entire property of the partnership. 
 Bates vs. Jmnes, 3 Duer, 45. 
 
 If, when money ought to be applied by himself, he allows another 
 person to take the control, of it, he will be liable for the acts or omissions 
 of such person. Van Tassel vs. Van Tassel, 31 Barb., 439. 
 
 He is answerable for the acts of his deputies, and liable, jointly with 
 them, for any misfeasance on their part. Waterbury vs. Westervdt, 5 
 Seld., 598 ; King vs. Orser, 4 Duer, 431 ; Shddon vs. Paine, 6 Seld., 
 398. Also, jointly with his indemnitors, for a sale wrongfully made. 
 HerrimgYS. Eoppock, 3 Duer, 20 ; 12 L. 0., 167. Likewise, jointly with 
 plaintiff in attachment, for a wrongful levy. Ma/rsh vs. Backus, 16 Barb., 
 483 : and, when he takes the property of a third party, the onus lies on 
 him to prove his right to do so. Cross vs. Phelps, 16 Barb., 502. 
 
 "When the title to property levied on by him is contested, he may sum- 
 mon a jury to try the question of title. Yide 2 K. S., 286, § 58. In 
 such cases, he has also a right to demand an indemnity from the party, 
 before proceeding, and it has been held that he may demand such an* 
 indemnity, even after the sale of the property, and before paying the 
 proceeds over. Westervelt vs. Frost, 1 Abb., 74. He is, however, gen- 
 erally prohibited from taking any bond, obligation, or security, by color 
 of his office, in any other case or manner than such as are provided by 
 law ; and any such security taken otherwise is to be void. Vide 2 E. S., 
 286, § 59. An assignment of any bond taken by him for the benefit 
 of a party is compellable, and may be made by the under-sheriff, or 
 other party acting during a vacancy. 2 E. S., 286, § 60. 
 
 In an action against him, the fact that the process in which that ac- 
 tion is based is voidable, cannot be set up by him as a defence. Oros- 
 venor vs. Hunt, 11 How., 355 ; Bacon vs. Cropsey, 3 Seld., 195. The 
 same is the case in an action for an escape. Ginoechio vs. Orser, 1 Abb., 
 433 ; Hutchinson vs. Brand, 6 How., 73 ; affirmed, 5 Seld., 208. Benick 
 vs. Orser, 4 Bosw., 384. But, if such process be not merely voidable but 
 void, he will not then be liable. Ginoechio vs. Orser, supra / Carpen- 
 ter vs. WiUett, 18 How., 400. 
 
 When held liable for a false return, he cannot make use of the judg- 
 ment on which he is held for his own benefit. Ca/rpemter vs. Stilwell, 
 1 Kern., 61 ; reversing same case, 12 Barb., 128. 
 
 The measure of damages against him, on an action for a false return 
 on execution, is the amount directed to be levied, and interest. People 
 vs. Loti, 21 Barb., 130 ; Ledyard vs. Jonss, 3 Seld., 550. He cannot 
 show that that amount was not due under the judgment {Bacon vs. 
 Cropsey, 3 Seld., 195), " or that the judgment is still collectable ;" but he 
 may show, in mitigation, that defendant had no property on which he 
 could have levied. Ledyard\i,. Jones, 4 Sandf , 67; affirmed, 3 Seld., 550. 
 
OF OFFIOESS OF THE COURT. § 28. 125 
 
 His own retvirn, or the return of his deputy, is conclusive against him 
 in all cases. Sheldon vs. Payne, 3 Seld., 453 ; Kulilmom vs. Orser, 5 
 Duer, 242. If, however, the party interferes with the execution of the 
 process, and makes the deputy his official agent for any purpose, both 
 will be discharged. The mere giving of instructions, however, upon 
 which the deputy does not act, will not have that effect, and the liability 
 will continue. Sheldon vs. Payne, supra. Same case, 6 Seld., 398. 
 
 In certain cases, he becomes himself liable as bail for a party in cus- 
 tody. See hereafter under the head of arrest. In these cases he has the 
 same rights and remedies as other bail, in relation to the surrender of the 
 principal. Buclcman vs. Ca/rnhj, 9 How., 180 ; Sartos vs. Merceques, 9 
 How., 188. See as to the extent of his liability, in such a case, Metcalf 
 vs. Stryher, 31 Barb., 62, 10 Abb., 12 ; Gallarati vs. Orser, 4 Bosw., 94. 
 
 His other powers and duties, under the special provisions of the 
 Code, the limitations applicable to proceedings against him, the fees 
 which he is entitled to receive, the nature and form of proceedings 
 against him or his sureties, on his official bond or otherwise, and his 
 privileges as to the venue in those proceedings, will be hereafter con- 
 sidered under their appropriate heads. 
 
 "When liable for an escape, the death of the escaped prisoner does not 
 discharge him. Tanner vs. Hallenbeok, 4 How., 297. 'Eov is the insol- 
 vency of such party 'a defence, j^e/" se ; it only goes to the measure of 
 damages. Loosey vs. Orser, 4 Bosw., 391 ; McCreery vs. Willet, 4 Bosw., 
 643 ; affirmed, 23 How., 129 ; Daguerre vs. Orser, 10 Abb., 12, note. 
 
 But the return of the prisoner before service of summons, though 
 after it is actually delivered to the coroner, discharges his liability. 
 Wiggin vs. Orser, 5 Duer, 118. 
 
 If the prisoner be taken out of his hands by a superior authority, 
 whose acts he cannot control or influence, he will not be liable. Wich- 
 elhausen vs. Willet, 21 How., 40 ; 12 Abb., 319. Otherwise, however, 
 when he is so taken merely by a justice's warrant. Brown vs. Tracy, 9 
 How., 93. 
 
 The affidavit of his deputy, of the service of any process or paper, is, 
 as between third parties, prima faoie evidence, but capable of disproof. 
 Vam, Benssela£.r vs. Chadmick, 7 How., 297. But his official return, as 
 to any matter in which such return is directed by statute, is conclusive. 
 Columbia Inswra/nce Company vs. Farce, 8 How., 353 ; Lamed v^. 
 Vamdenfmrgh, 7 How., 379 ; JSusseU vs. Gray, 11 Barb., 541. 
 
 But such return is no evidence whatever of the service of any paper 
 as to which it, is not directed, as of an order in supplementary proceed- 
 ings. Such service can only be proved by affidavit. Utica City Banxk 
 vs. Buell, 9 Abb., 385 ; 17 How., 498. 
 
126 OF OFFICERS OF THE COURT. 8 30. 
 
 § 29. Other Minister uH Officers. 
 
 The authorized depositary of moneys brought into court by the 
 authority of different tribunals, is, in the absence of special directions 
 on the subject, the county treasurer of the county in which the action is 
 triable, and, in JSTew York, the chamberlain of that city. The statutory 
 provisions on that subject will be found at 1 E. S., 369-371. See like- 
 wise as to moneys belonging to infants, chapter 386 of 1859, p. 912. 
 The performance of their duties in this respect is regulated by rules 81 
 to 83, inclusive. The clerk of the court is also occasionally charged 
 with a deposit of this nature. 
 
 Receivers, committees of the person or estate of lunatics, and guardi- 
 ans, are also, to a certain extent, qualified officers of the court. Their 
 functions as such will be hereafter considered. 
 
 § 30. Attorneys arid Counsel. 
 
 Though exercising no ministerial office, attorneys and counsel are, in 
 strictness, officers of the court. They derive from it their authority to 
 act, the exercise of their functions is subject to its supervision and con- 
 trol, and, in certain cases, they may be compelled by it to act without 
 fee or reward. See 2 E. S., 444 and 445, as to suits in forma jpau- 
 
 Before the constitution of 1846, the offices were separate. They are 
 now blended together, and the same person generally exercises both 
 functions under the same retainer. Their capacities and authority, 
 however, are still distinct, when separately employed. Yide Easton vs. 
 Bmith, 1 E. D. Smith, 318. 
 
 Both professions are thrown open, by the constitution, to any male 
 citizen of good moral character, and who possesses the requisite qualifi- 
 cations of learning and ability. Art. VI., section 8. By section 75 of 
 the judiciary act, chapter 280 of 1848, the mode of admission is pre- 
 scribed, which is to take place at a general term ; and the mode of 
 examination on this occasion is regulated by rules 1 and 2. See gener- 
 ally as to such examination, in re Pratt, 13 How., 1. 
 
 Under chapter 202 of 1860, p. 342, graduates of the law school of 
 Columbia College are also to be admitted to practice. 
 
 The constitutionality of this provision was drawn into question in the 
 following cases : Matter of the Law Graduates of the Unim&rsiiy of 
 New York, 31 Barb., 353 ; 19 How., 97 ; 10 Abb., 348 ; In the matter 
 of Admission of GradiMtes, die, 19 How., 186 ; 10 Abb., 358. These 
 cases are, however, reversed, and the constitutionality of the statute 
 
OF OFFICEES OF THE COTJET. — § 30. 127 
 
 established by the Court of Appeals. Matter of AppUoaldon of Henry 
 W. Cooper, 22 K Y., 67 ; 20 How., 1 ; 11 Abb., 301. 
 
 The general term also possesses the power of removal and suspension 
 of these officers. See section 75 of judiciary act; above cited. An 
 attorney and counsellor, when so admitted, is entitled to. practise in all 
 the courts of the state. Constitution, art. VI., § 8, supra. But he can 
 only be admitted by the Supreme Court, as above. No other court is 
 competent to do so. In re Brewer, 3 How., 169. 
 
 By the amended judiciary act, chapter 490 of 1847, section 46, power 
 is given to any person of good moral character, though not admitted, to 
 appear for another person, provided he is specially authorized to appear 
 for him in writing, or by personal nomination in open court. 
 
 This power, for obvious reasons, has been but infrequently exercised, 
 and, when attempted to be exercised, has been made the subject of con- 
 siderable discussion. It has been held, on several occasions, to be un- 
 constitutional. Bullard vs. Van Tassel, 3 How., 402; MoKean vs. 
 Devries, 3 Barb., 196 ; 1 C. E., 6. See also Weare vs. Slocum, 8 How., 
 397. It seems, however, by a note at 1 C. R., 106, that, in another 
 district, a party so nominated was allowed to appear ; and Le Roy vs. 
 Ha/rley, 1 Duer, 637 ; 11 L. O., 29, admits the right, though declining 
 to pass upon the question, and holding that a nomination so made must 
 be approved and authorized by the court, and that, without such appro- 
 val, all the acts of the nominee will be unauthorized and void. See to 
 the same effect, Bridsnhecker vs. Mason, 16 How., 203. Nor is such a 
 special attorney entitled to have any costs taxed in his favor. BuUa/rd 
 vs. Ya/n Tassel, swpra. 
 
 Attorneys and counsellors, when admitted, hold their offices for life, 
 subject to removal or suspension for any deceit, malpractice, or misde- 
 meanor. 1 K. S., 109, §§ 23 to 25. The general term is the fonmi 
 for such an application, on which, the party accused is entitled to a copy 
 of the charges made against him, and to an opportunity of being heard 
 in his defence. 
 
 It has been held, that an attorney cannot practise, whilst resident 
 out of the state. Richardson vs. BrooMyn City and Newtown Rail- 
 road Company, 22 How., 368. This disability is, however, now re- 
 moved by special statute — chapter 43 of 1862, p. 139. 
 
 By section 303 of the Code, subsequently cited under the head of 
 costs, the measure of compensation, as between attorney and client, 
 formerly regulated by law, is now left entirely to the agreement, ex- 
 press or implied, of the parties. 
 
 All the former checks upon the relation are, in this respect, entirely 
 swept away, and, where the bargain between the attorney and client 
 is in any manner fair, and not procured or induced by fraud or oven'each- 
 
128 OF OFFICEES OF THE COTTET. § 30. 
 
 ing, the court will not interfere to regulate, but will, on the contrary, 
 carry it out. See Homey vs. Second Avenue Rmlroad CoTwpcmy, 18 
 ]Sr. Y., 368 (373) ; Benedict vs. Stuwrt, 23 Barb., 420 ; Satterlee vs. 
 Fraser, 2 Sandf., 141. (142). 
 
 Nor, as between attorney and client, are taxable costs any longer the 
 measure of compensation, but proof of the value of his services must be 
 given in all cases. Garr vs. Mairet, 1 Hilt., 498 ; Moore vs. Wester- 
 vdt, 3 Sandf., 762 ; Stow vs. Hamlin, 11 How., 452. See, also, Easton 
 vs. Smith, 1 E. D. Smith, 318. See, however, as to their being, 
 prima facie, the measure of value, Keenan vs. DorjUnger, 19 How., 
 153 ; 12 Abb., 327, note. 
 
 The court, however, will still interfere summarily, with regard to 
 arrangements between them and their clients, to prevent fraud, or to 
 relieve against an unreasonable or oppressive bargain. See Barry \i. 
 WUtmsy, 3 Sandf., 696 ; 1 C. E. (K S.), 101. See, also, Benedict vs. 
 Stuart, 23 Barb., 420. (423.) Nor can an attorney retain property ac- 
 quired by a fraud, and the court will interfere to prevent it, though in 
 a case where, between party and party, it would have denied relief. 
 Ford vs. Harrington, 16 E". T., 285. See generally, on the subject of 
 the alteration effected by section 303, dictum of Hand, J., in Barber 
 vs. Cresset, 6 How., 45 ; 1 C. E. (IST. S.), 401. The court will interfere, 
 on the other hand, in a proper case, to protect the attorney from fraud 
 committed on the part of, or through the instrumentality of his client. 
 Ma/rquat vs. Mul/oey, 9 How., 460. 
 
 Under article III., title II., chapter III., part III., of the Eevised 
 Statutes (2 B. S., 297, 298), several provisions are made respecting the 
 responsibility of these officers. Under section 68, they are indictable 
 for deceit or collusion. By section 69, treble damages are recoverable 
 against them for wilful delay or extortion. A penalty is imposed by 
 section 70, for allowing proceedings in their name, by persons not their 
 partners or clerks. The allowing a subpoena to be so issued, falls with- 
 in this prohibition. YorTcs vs. PecJc, 31 Barb., 350. 
 
 By section 71, it is provided, that no attorney, counsellor, or solicitor 
 shall, directly or indirectly, buy or be interested in buying any bond, 
 bill, promissory note, bill of exchange, book debt, or other thing in ac- 
 tion, with the intent, or for the purpose of bringing any suit thereon ^ 
 whilst, by section 72, he is equally prohibited from making or procuring 
 loans, either in money or value, as an inducement, or in consideration 
 of placing in his or any other hand, any debt, demand, or thing in ac- 
 tion, for collection ; and a violation of either of those provisions sub- 
 jects him to indictment and removal from office. 
 
 By section 74, however, these severe provisions are relaxed so as not 
 to prohibit his receiving any bond, &c., for any estate, real or per- 
 
OF OFFICERS OF THE COtTBT. — § 30. 129 
 
 sonal, or for services actually rendered, or a debt antecedently contract- 
 ed, or from buying or receiving a bill of excbange, draft, or otber thing 
 ■ in action, for the purpose of remittance, aild without intent to violate 
 any of the preceding sections. 
 
 A mortgage has been held to be within the meaning of this prohibi- 
 tion. Hall vs. Bartlett, 9 Barb., 297. But, in the same case, it was 
 decided that a foreclosure by advertisement was not a suit within the 
 meaning of the statute, which, being penal, must be strictly construed, 
 and the intent clearly established. A loan, pending an action already 
 commenced, or made for the purpose of obtaining security for a previous 
 debt, has been, held not to be within the prohibition. Vide Baiated vs. 
 Dean, 12 "Wend., 143 ; and Watson's Executors vs. McLaren, 19 
 Wend., 55T. 
 
 An attorney who has dissolved partnership, pending a suit, is not 
 liable for the frauds of his former partner, committed after that dissolu- 
 tion. Ayrault vs. Chamherlin, 26 Barb., 83. 
 
 An attorney who has received money belonging to his client, must 
 pay it over at once, or an attachment will lie against him. And, 
 this rule extends not merely to moneys received by him in a suit or 
 proceeding, but also to moneys placed in his hands in his professional 
 character, for investment. In re Grant vs. Chester, 16 How., 260 ; 7 
 Abb., 357. 
 
 An attorney is, it would seem, privileged from serving as a juror 
 {pide 2 K. S., 416, section 35) ; and also from arrest whilst employed in 
 some cause pending, and then to be heard, but not beyond the actual 
 sitting of the court; or when sued with any other person. 2 E. S., 
 290, § 86. 
 
 He cannot, as before noticed, act as an attorney, whilst filling the 
 office of judge, clerk of a court, sheriff, sheriii''s clerk or deputy, or 
 coroner ; nor can he, or his clerk, be bail in an action. See Blankmam, 
 vs. Hilliker, 1 L. 0., 188, 189. But it would seem that this disability 
 does not extend to his executing any undertaking or security prescribed 
 by statute, saving only bail on arrest. Yide Walker vs. Holmes, 23 
 "Wend., 614 ; Hoffman vs. Rowley, 13 Abb., 399. 
 
 All communications passing between him and his client, with refer- 
 ence to business in which he is employed, are privileged, and he cannot 
 be compelled, nor will he be allowed to disclose them. And this same 
 privilege extends to similar communications between his clerk and 
 such client. Sibley vs. Waffle, 16 JST. Y., 180. The privilege in ques- 
 tion is not confined to communications with reference to a suit: or pro- 
 ceeding, but extends to any professional business whatever. Williams 
 vs. Fitoh, 18 N. Y., 546 ; 'CJmrch vs. Richards, 3 E. D. Smith, 89. The 
 communication must, however, be made for the jpurposes of consulta- 
 
 7oL. 1—9 
 
130 OF OFFICERS OF THE COUET. — § 30. 
 
 tion or advice, or the privilege may. be lost. Same case, p. 97, per 
 Ingraham, J. 
 
 But where there appears to be a combination between the attorney ' 
 and client, to make use of the privilege of the former for the purpose 
 of withholding important evidence, it will not be sustained. People 
 vs. Sh&nffof New York, 29 Barb., 622; 7 Abb., 96. See likewise, 
 same views, held, and the privilege in question fully considered, from a 
 point of view xmfavorable to its continuance. Mitchell 's case, 12 Abb., 
 249. 
 
 JISTor does the privilege of the attorney excuse him from being com- 
 pelled to testify as to negotiation between the parties, or between 
 himself and the adverse party. Woodruff vs. Hwrson, 32 Barb., 557. 
 . A party to any litigation, of full age and sound mind, has his op- 
 tion to appear by attorney or in person (2 E. S., 276, § 11), and this 
 privilege would seem to extend to a married woman, in those cases in 
 which she is competent to sue alone. Yide Code, § 114. The at- 
 torney for an infant , is employed by his guardian. In the case of a 
 person of unsound mind the committee is the acting party. See Code, 
 §§ 115-134. 
 
 Once employed, the authority of the attorney continues pending the 
 suit, until judgment, and also over the proceedings for enforcing such 
 judgment when rendered. And, at any time within two years, he may * 
 enter satisfaction. 2 E. S., 362, § 24. During the whole of that time 
 he has full control over all proceedings; and all papers, except pro- 
 cess to bring his client into contempt, must be served on him, and on 
 him only, by which his client will be bound. Service on the client 
 himself will be of no effect. Code, §§ 417, 418 ; Bogardus vs. Lw- 
 mgston, 7 Abb., 428 ; Tripp vs. De Bow, 5 How., 114. See, however, 
 as to the duty of the attorney being in strictness fulfilled, on judgment 
 being perfected, Adam,s vs. Fort Plain Bank, 23 How., 45. 
 
 And, until changed, his authority continues on a writ of error or ap- 
 peal, and service must be made on him, and not on the party. Same 
 case. See also rule IV. of Court of Appeals. 
 
 When employed, he is bound to the exercise of the utmost skill, care, 
 and diligence, and is responsible for his omission in any of these respects. 
 His client is, however, bound to furnish him with the necessary funds, 
 and, if this be omitted, he may decline to proceed, but, in this case he 
 cannot retain his client's papers. 
 
 His undertakings, consents, and admissions are enforceable for the 
 benefit ^ the adverse party, and bind his client. To be binding, how- 
 ever, they must be in writing, or reduced to the form of an order. 
 Eule 13. 
 
 The attorney has authority to open a judgment by default without 
 
OF OFriCEKS OF THE COURT. — § 30. 131 
 
 consulting his client, but lie does so at his own peril, should loss be 
 shown to have accrued. Clmsmcm vs. Merkel, 3 Bosw., 402. 
 
 And even an unauthorized appearance by him may suffice to bind 
 the client by his acts. Bogardus vs. Livingston, 2 Hilt., 236 : A for- 
 tiori, where there is any thing amounting to a ratiiication. Johnston 
 vs. McAusland, 9 Abb., 214. 
 
 But the client may be relieved against an unauthorized stipulation, 
 depriving him of a substantial right, in a matter outside the ordinary 
 conduct of the suit. People vs. 'Mayor of New YorTt, 11 Abb., ^h. 
 See general note as to attorney's authority, p. 74. 
 
 His authority is of course determined by the client's death, and he 
 cannot claim to act for the representatives without a fresh retainer. 
 
 He may be changed by consent, or upon cause shown, and upon 
 such terms as may be just, upon the application of his client, by order 
 of a justice of the court, and not otherwise (rule 12); and the client 
 has a right to make such a change, without inquiry into his motives. 
 Trust vs. Repoor, 15 How., 570. 
 
 When made, notice of such substitution must be served on the ad- 
 verse party, Bogardus vs. Richtmeyer, 3 Abb., 179, as, until such 
 notice, service on the former attorney will remain good service, and 
 bind the client. 
 
 When so changed, he has a lien on the papers in his hands for the 
 amount of his compensation, and cannot be compelled to deliver those 
 papers over, until that lien is discharged, or reasonable provision made 
 for it. He may, however, be compelled to produce them on a pressing 
 emergency. Trust vs. Repoor, 15 How., 570. 
 
 If, however, he take a special security for his compensation, such lien 
 will be waived. And where his claim is doubtful, he may be required 
 to take security, if tendered, and to deliver up the papers. Cunning- 
 ham vs. Wilding, 6 Abb., 413. 
 
 A reference to ascertain the amount of his lien, is the proper course 
 to be pursued in the event of any dispute, and, until it is decided, he 
 will not be compelled to deliver over the papers. In re Russell, 
 
 I How., 149 ; see order, p. 150, and, in a suit by him for his fees, 
 a reference is the proper course. Bowman vs. Sheldon, 1 Duer, 607 ; 
 
 II L. 0., 219. 
 
 But the right to compel him to deliver papers, extends only to papers 
 in a suit strictly considered ; any held by him as a trustee, or for the 
 purposes of an accounting, he has a right to retain, until fully dis- 
 charged. 
 
 He has, also, a lien on all moneys received by him, for the amount 
 of his compensation, and likewise, on any judgment recovered by 
 him ; the client cannot satisfy such a judgment to the prejudice of 
 
132 OF OFFICEKS OF THE COURT. § 30, 
 
 that lien, and it extends not merely to his taxable costs, but also to 
 the amount of any stipulated compensation. 
 
 This point is settled by Bomey vs. The Second Avenue Railroad 
 OompoMy, 18 K Y., 368. It had been previously made the subject 
 of very considerable discussion, as to whether such lien had, or had 
 not, been abolished by section 303 of the Code. 
 
 Its existence had been previously maintained, and the attorney's 
 lien protected in the following cases : Sweet vs. Ba/rtlett, 4 Sandf., 
 661 ; Wilkins vs. Batterman, 4 Barb., 47 ; Sherwood vs. Buffalo amd 
 New York City Railroad Company, 12 How., 136 ; Spear vs. Hyers, 
 unreported, cited 2 Whitt. Pr. (2d edition), p. 225 ; Anderson ads. 
 Johnson, 1 C. R. (N. S.), 200 ; 9 L. O., 113, note ; Haight vs. Holoomb, 
 16 How., 173 ; 7 Abb., 210, affirming pro tanto; Same oase, 16 How., 
 160 ; Ward vs. Wordsworth, 1 E. D. Smith, 598 ; also as Ward vs. 
 Syme, 9 How., 16, reversing same case, 1 C. K. (N. S.), 208, 9 L. 0., 
 113. By these decisions, the following, to the contrary effect, are 
 clearly overruled: Davenport vs. Ludlow, 4 How., 337; 3 C. E., 66; 
 Noxon vs. Gregory, 5 How., 339 ; Benedict vs. Harlow, 5 How., 
 347. (350.) 
 
 The same principle has been carried out, and the attorney's lien 
 protected, in the following more recent cases, carrying out the prin- 
 ciples as laid down in Rooney vs. The Second Avenue RaAl/road 
 Company, supra; ShacMeton vs. Hart, 20 How., 39,12 Abb., 325, 
 note ; East River Bank vs. Kidd, 13 Abb., 337, note ; Hall vs. Ay&r, 
 19 How., 91 ; 9 Abb., 220. See also Owen vs. Mason, 18 How., 156 ; 
 see also generally, Acherman vs. Ackerman, 14 Abb., 229 ; reversing 
 same case, 11 Abb., 256. 
 
 And the attorney's lien has been held to extend, not merely to his 
 taxable costs and stipulated compensation, but also to his counsel fees. 
 Ackerman vs. Ackerman, supra ; Haight vs. Holcomb, 16 How., 160. 
 This latter decision stands reversed on this point. See same case, 
 16 How., 173, 7 Abb., 120. But this reversal is disapproved, and the 
 case held to fall within the principle of Rooney vs. The Second Avenue 
 Railroad Company, in Hull vs. Ayer, 19 How., 91, 9 Abb., 220. See 
 likewise as to the attorney's lien not being affected by payments to 
 him for counsel fees, Easton vs. Smith, 1 E. D. Smith, 318. 
 
 The attorney's lien, or his rights as assignee of the client's claim, will 
 also be protected as against an attempted set-off between the parties. 
 Tide Smith vs. Lowden, 1 Sandf., 696 ; Oihon vs. Fryatt, 2 Sandf., 
 638 ; Van Pelt vs. Boyer, 8 How., 319 ; Roberts vs. Carter, Yl How., 
 341 ; 9 Abb., 366, note ; Rollins vs. Alexander, 11 How., 100; WashxB. 
 Hamilton, 3 Abb., 35 ; Ely vs. Cook, 2 Hilt., 406; 9 Abb., 366 ; East 
 River Bank vs. Kidd, supra. See, however, the right of set-off main- 
 
\ OF OFFICERS OF THE COURT. — § 30. 133 
 
 tained in Crocher vs. Olaughh/, 2 Duer, 684 ; Hayden vs. McDermott, 
 9 Abb., 14 ; and in favor of an attorney, assignee, in Bagley vs. Brown, 
 
 3 E. D. Smith, 66. See,^as to the i-ight of the attorney to the benefit of 
 a judgment entered up for costs only, Wright vs. Smith, 13 Barb., 414. 
 
 But the rights of an attorney, in this respect, cail only be protected 
 on motion, where the court proceeds outside the statute. They cannot 
 be so in a cross-action, where the set-oif . is regularly pleaded. Vide 
 Martin vs. Kanouse, 17 How., 146 ; 9 Abb., 370, note. 
 
 And the motion for such purpose must be made within a reasonable 
 time. The right to relief may be lost by laches. Wimans vs. Mason, 
 33 Barb., 522 ; 21 How., 153. ISTor, on a motion for other purposes, 
 will the court look outside the motion-papers to see whether the attor- 
 ney's lien has been disregarded. De Graw vs. Boardman, 13 Abb., 
 337, note. 
 
 And any stipulation or oifer made by the attorney to waive or reduce 
 his compensation will be enforced, but, in the latter case, his lien will be 
 maintained for the reduced amount. McKenzie vs. Rhodes, 13 Abb., 
 337. 
 
 In strictness, however, the attorney acquires no lien till the recovery 
 of judgment. Pending the previous litigation, the parties have a 
 right to settle the controversy without regard to his interests. Yide 
 Benedict vs. Harlow, 5 How., 347; McKenzie vs. McKenzie, 21 
 How., 467. And the same rule holds good as to the costs of an appeal 
 or a writ of error, settled before the hearing. Shank vs. Shoemaker, 
 18 N. Y., 489 ; Brown vs. Gomstock, 10 Barb., 67 ; Sweet vs. Bartlett, 
 
 4 Sandf., 661. See the subject of this right, in a.'nj case in which there 
 is no collusion or intent to deprive the' attorney of his costs, very fully 
 examined in McDowell vs. Second Avenue Railroad Gompany, 4 Bosw., 
 670. 
 
 Where there has been any fraud or intent to deprive the attorney of 
 his costs, the courts have, however, interfered, and allowed him to go 
 on and collect them. Rasquin vs. Knickerhooker Stage Gompany, 21 
 How., 293 ; 12 Abb., 324. See also Keenan^%. DerJUnger, 19 How., 
 163 ; 12 Abb., 327, note;andTFbo(Zvs. Trustees of the Northwest Presby- 
 terian Ghurch, 7 Abb., 210, note, carrying the principle still further. 
 
 In Greighton vs. Ingersoll, 20 Barb., 541, an attorney who had been 
 changed before judgment, was held to have a lien on the fund subse- 
 quently recovered, for his costs up to the time of change. 
 
 And a settlement in fraud of the attorney will be set aside. Ma/rguat 
 vs. MvJ/oey, 9 How., 460. 
 
 The attorney's lien is, however, personal, and cannot be enforced in 
 the hands of an assignee of his claim, nor will his taking a transfer of the 
 assignee's judgment revive it. GhappellY&. Damn, 21 Barb., 17. 
 
BOOK n. 
 
 AS TO ACTIONS GENERALLY CONSIDERED. 
 CHAPTER I. 
 
 OF PARTIES TO AN ACTION. 
 
 § 31. Statutory Provisions. 
 
 The provisions of tlie Code eflfect a complete revolution in the old 
 common-law rules with respect to parties ; and substitute for them, 
 with little or no modiiication, the antecedent doctrine of the Courts of 
 Equity. The equitable interest will, therefore, as a general rule, be the 
 grand criterion as to who are or are not necessary parties to an action 
 when commenced. 
 
 The following extract from the report of the commissioners will 
 throw light upon their intentions in framing those provisions. 
 
 " The rules respecting parties in the courts of law, differ from those in the 
 courts of equity. The blending of the jurisdiction makes it necessary to 
 revise these rules to some extent. In doing so, we have had a three-fold 
 purpose in view ; first, to do away with the artificial distinctions existing in 
 the courts of law, and to require the real party in interest to appear in court 
 as such ; second, to require the presence of such parties as are necessary to 
 make an end of the controversy ; and, third, to allow, otherwise, great lati- 
 tude in respect to the number of parties who may be brought in." 
 
 See on the same subject, Wallace vs. Eaton, 5 How., 99; 3 C. E., 161- 
 Hollmbeck vs. Tan Valhenhurgh, 5 How., 281 ; 1 0. E. Q^. S.) 33 • 
 St. John vs. Pierce, 22 Barb., 362, and Grmnell vs. Schmidt, 2 Sandf, 
 706;3C.E., 19;8L. 0.,197. 
 
 The provisions in question are contained in title III. of part II. 
 Before citing them, it may be as well to draw attention also to the two 
 first sections of title I. of the same part, which bear generally on the 
 Bubiect. 
 
• 
 
 OF PARTIES TO AN ACTIOKT. — § 31. 135 
 
 TITLE I. 
 Of the Form, of Gimil Actions. 
 
 § 69. (62.) The distinction between actions at law and suits in equity, and 
 the forms of all such actions and suits heretofore existing, are abolished ; 
 and there shall be in this state, hereafter, but one form of action for the en- 
 forcement or protection of private rights, and the redress of private wrongs, 
 which shall be denominated a civil action. 
 
 Dates from 1849. Substantially the same in 1848. 
 
 § YO. (63.) In such action, the party complaining shaU be known as 
 the plaintiff, and the adverse party as the defendant. 
 
 The two remaining sections of that title relate to matters of detail in practice, and will ac- 
 cordingly be cited hereafter. 
 
 Title III. of Part II. runs thus: 
 
 TITLE III. 
 
 Of the Parties to Civil Actions. 
 
 § 111. (91.) Every action must be prosecuted in the name of the real 
 party in interest, except as otherwise provided in section one hundred and 
 thirteen ; but this section shall not be deemed to authorize the assignment of 
 a thing in action, not arising out of contract. 
 
 But an action may be maintained by a grantee of land in the name of a 
 grantor, when the grant or grants are void by reason of the actual possession 
 of a person claiming under a title adverse to that of the grai/tor at the time of 
 the delivery of the grant, and the plaintiff shall be allowed to prove the facts 
 to bring the case within this provision. 
 
 The last clause in this section was added in 1862. That as to assignments of choses in 
 action, in 1851. The rest of the sentence dates from 1848, with a formal change in 1849. 
 
 § 112. (92.) In the case of an assignment of a thing in action, the action 
 by the assignee shall be without prejudice to any set-off or other defence, 
 existing at the time of or before notice, of the assignment ; but this section 
 shall not apply to a negotiable promissory note or bill of exchange, transferred 
 in good faith, and upon good consideration, before due. 
 
 The words "transferred in good faith," Ac, down to the end of this section, were added to 
 it on the amendment of 1849. Otherwise, it dates from 1848. 
 
 § 113. (93.) An executor or administrator, a trustee of an express trust, 
 or a person expressly authorized by statute, may sue, without joining with 
 him the person for whose benefit the action is prosecuted. A trustee of an 
 express trust, within the meaning of this section, shall be construed to in- 
 clude a person with whom, or in whose name, a contract is made for the 
 benefit of another. 
 
 The first sentence of this section is in the original Code ; the second, defining who is a 
 trustee of an express trust, dates from the amendment of 1851. 
 
136 OF PAETIES TO AN ACTION. § 31. 
 
 § 114. (94.) When a married woman is a party, her husband must be 
 joined with her, except that, 
 
 1. When the action concerns her separate property, she may sue alone. 
 
 2. When the action is between herself and her husband, she may sue or 
 be sued alone. 
 
 And in no case need she prosecute or defend by a guardian or next friend. 
 
 N. B. — The commencement and the two subdivisions are in the original Code. Tlie sup- 
 plementary sentence, as it now stands, was inserted in the amendment of ISST. In 1851, a 
 provision was made of directly contrary import. It ran thus, and remained the law from 
 1851 to ISSt: 
 
 " But where her husband cannot be joined with her, as herein provided, she shall prosecute 
 or defend by her next friend." 
 
 § 115. (95.) When an infant is a party, he must appear by guardian, who 
 may be appointed by the court in which the action is prosecuted, or by a 
 judge thereof, or a county judge. 
 
 The words " or a county judge," were inserted in 1849. Otherwise, the section dates from 
 1848. 
 
 § 116. (96.) The guardian shall be appointed as follows: 
 
 1. When the infant is plaintiff, upon the application of the infant, if he be 
 of the age of fourteen years ; or, if under that age, upon the application of his 
 general or testamentary guardian, if he has any, or of a relative or friend of 
 the infant. If made by a relative or friend of the infant, notice thereof must 
 first be given to such guardian, if he has one ; if he has none, then to the per- 
 son with whom such infant resides. 
 
 2. When the infant is defendant, upon the application of the infant, if he 
 be of the age of fourteen years, and apply within twenty days after the ser- 
 vice of the summons. If he he under the age of fourteen, or neglect so to 
 apply, then upon the application of any other party to the action, or of a rela- 
 tive or friend of the infant, after notice of such application being first given to 
 the general or testamentary guardian of such infant, if he has one within this 
 State; if be has none, then to the infant himself, if over fourteen years of age 
 and within the State ; or, if under that age and within the State, to the per- 
 son with whom such infant resides. * 
 
 And in actions for the partition of real property, or for the foreclosure of 
 a mortgage or other instrument, when an infant defendant resides out of this 
 State, the plaintiff may apply to the court in which the action is pending, at 
 any special term thereof, and will be entitled to an order, designating some 
 suitable person to be the guardian for the infant defendant, for the purposes of 
 the action, unless the infant defendant, or some one in his behalf, within a num- 
 ber of days after the service of a copy of the order, which number of days shall be 
 in the said order specified, shall procure to be appointed a guardian for the 
 said infant ; and the court shall give special directions in the order for the man- 
 ner of the service thereof, which may be upon the infant himself, or by service 
 upon any relation or person with whom the infant resides, and either by mail 
 or personally upon the person so served. 
 
OF PAETIES TO AK ACTION. § 31. 137 
 
 Tho concluding clause was added on the amendment of 1862. The form of the two preced- 
 ing subdivisions was substantially settled upon that of 1851, with shght verbal improvements 
 in 1852. 
 
 In the original Code, the provisions were less comprehensive. 
 
 § 117. (97. ) All persons having an interest in the subject of the action, and 
 in obtaining the relief demanded, may be joined as plaintiffs, except as other- 
 wise provided in this title. 
 
 § 118. (98.) Any person may be made a defendant, who has or claims an 
 interest in the controversy, adverse to the plaintiff, or who is a necessary 
 party to a complete determination or settlement of the questions involved 
 therein. 
 
 The last moiety of the sentence, "or who is a necessary party," &c., was first inserted in 
 1S49. 
 
 § 119. (99.) Of the parties to the action, those who are united in interest, 
 must be joined as plaintiffs or defendants; but, if the consent of any one, 
 who should have been joined as plaintiff, cannot be obtained, he may be made 
 a defendant, the reason thereof being stated in the complaint ; and when the 
 question is one of a common or general interest of many persons, or when 
 the parties are very numerous, and it may be impracticable to bring them all 
 before the court, one or more may sue or defend for the benefit of the whole. 
 
 The concluding clause, authorizing a party to sue or defend for his class, was first inserted 
 in 1849. 
 
 § 120. (100.) Persons severally hable upon the same obligation or instru- 
 ment, including the parties to bUls of exchange and promissory notes, may, 
 all or any of them, be included in the same action, at the option of the 
 plaintiff. 
 
 § 121. (101.) No action shall abate by the death, marriage, or other disar 
 biUty of a party, or by the transfer of any interest therein, if the cause of 
 action survive or continue. In case of death, marriage, or other disability 
 of a party, the court, on motion, at any time- within one year thereafter, or 
 afterwards, on a supplemental complaint, may allow the action to be con- 
 tinued, by or against his representative or successor in interest. In case of 
 any other transfer of interest, the action shall be continued in the name of 
 the original party ; or the court may allow the person to whom the transfer 
 is made, to be substituted in the action. After a verdict shall be rendered 
 in any action for a wrong, such action shall not abate by the death of any 
 party, but the case shall proceed thereafter in the same manner as in cases 
 where the cause of action now survives by law. 
 
 At any time after the death, marriage, or other disability of the party 
 plaintiff, the court in which an action is pending, upon notice to such per- 
 sons as it may direct, and upon application of any person aggrieved, may, in 
 its discretion, order that the action be deemed abated, unless the same be 
 continued by the proper parties, within a time to be fixed by the court, not 
 less than six months nor exceeding one year from the granting of the order. 
 
138 OF PARTIES TO AN ACTIOK. § 31, 
 
 The concluding clause was added on the amendment of 1862 ; that preceding, commencing 
 "After a verdict," &c., on that of 1857. The prior portion is in the original Code, the provi- 
 sion as to a supplemental complaint being transferred to this from the next, in 1849. 
 
 § 122. (102.) The court may determine any controversy between the par- 
 ties before it, when it can be done without prejudice to the rights of others, 
 or by saving their rights ; but when a complete determination of the contro- 
 versy cannot be had without the presence of other parties, the court must 
 cause them to be brought in. And when, in an action for the recovery of 
 real or personal property, a pe,rson, not a party to the action, but having ah 
 interest in the subject thereof, makes application to the court to be made a 
 party, it may order him to be brought in by the proper amendment. 
 
 A defendant, against whom an action is pending upon a contract, or for 
 specific real or personal property, may, at any time before answer, upon affi- 
 davit that a person, not a party to the action, and without collusion with 
 him, makes against him a demand for the same debt or property, upon due 
 notice to such person and the adverse party, apply to the court for an order 
 to substitute such person in his place, and discharge him from liability to 
 either party, on his depositing in court the amount of the debt, or delivering 
 the property, or its value, to such person as the court may direct ; and the 
 court may, in its discretion, make the order. 
 
 The second branch of the first clause of this section, and the whole of the provisions as to 
 interpleader, were added upon the amendment of 1851. 
 
 In the original Code, the section merely provided, permissively, for the bringing in of addi- 
 tional parties when necessary, by amendment or by supplemental complaint, and on summons. 
 The first sentence was settled as it stands in 1849, -with a verbal change in 1851. 
 
 The provision of the Code in section 173, enabling the court, "before 
 or after judgment, in furtherance of justice, and on such terms as may 
 be proper, to amend any pleading, by," amongst other things, " adding, 
 or by correcting a mistake in the name of any party," may be consid- 
 ered as so far a corollary to and in furtherance of the above provision. 
 
 Geneeal Kemaeks. — It is obvious that to consider the law as to par- 
 ties with that full detail which a thorough examination would demand, 
 is utterly beyond the scope and would be foreign to the objects of an 
 ordinary work on practice. The subject, in its general bearings, forms 
 the staple of several independent treatises, to which the reader is accord- 
 ingly referred. All that will be attempted by the author on the present 
 occasion, will be a short mention, for the information of the student, of 
 some of the general features of that law ; and, for the convenience of 
 the practitioner, a notice of some of the recent decisions since the pas- 
 sage of the Code, following the arrangement of the subject adopted in 
 that measure. 
 
OF PARTIES TO AK ACTION. — § 32. 139 
 
 § 32. Real Party m Interest. 
 
 {a.) Competency to Sue. 
 
 The rule as laid down by sections 111 and 112, is primarily and in 
 terms applicable to the case of a plaintiff. It is obvious however that 
 the same principle must hold good as to the joinder of defendants, and 
 that, in all cases, the person really interested is the proper party. 
 
 Though its previous consistency is slightly impaired by the addition 
 in 1862, as to suits by a grantee of land in the name of his grantor, 
 the rule itself is too obvious in its scope, and too clear in its terms, to 
 need specific explanation. Its application has, however, given rise to 
 numerous questions, as below noticed. 
 
 (5.) OWNEE OE PeOPEETT. 
 
 A mere consignee of goods, as agent for the consignors, cannot 
 maintain an action for an injury to them during the voyage; the 
 owner or shipper is the proper party. Ogden vs. Ooddington, 2 Smith, 
 317; Price vs. Powell, 3 Comst., 322; Bows vs. Cobh, 12 Barb., 310. 
 But, priTTia facie, a consignee will, however, be presumed to be the 
 owner, until the presumption is rebutted. Price vs. Powell, swpra. 
 And see generally as to the right of a consignee to sue, even though no 
 formal bill of lading have been given, Brewer vs. JBrig Water Witch, 
 19 How., 241. As to stoppage in tramsitu, and the right of the ven- 
 dor of goods to reclaim them at any time before they actually reach the 
 hands of an insolvent vendee, see Harris vs. Pratt, 17 N.T., 249 ; 
 affirming same case, 6 Duer, 606. 
 
 The creditors of an insolvent have been held to have the right to sue 
 for money received by his trustee, under a void assignment, in exclu- 
 sion of that of a receiver for one only, under supplementary proceed- 
 ings. Smith vs. Woodruff, 1 Hilton, 462 ; but this latter conclusion 
 is contrary to Porter vs. WilUams, 5 Seld., 142 ; 12 How., 107. 
 
 The party injured is the only proper plaintiff in injunction to prevent 
 the erection of a building. A public officer cannot properly sue. 
 Lam/port vs. AUott, 12 Abb., 340. 
 
 An action under the statute of betting and gaming must be brought 
 by the real depositor of money, though the name of another may have 
 been used in making the bet. Ruckman vs. Pitcher, 20 N. T., 9. 
 
 Special property in a chattel, accompanied by the right to its present 
 possession, is sufficient ownership to support an action for injury to such 
 chattel during that possession. Harrison vs. Mwrshall, 4 Smith, 271 ; 
 and present possession is sufficient to ground an action for conversion 
 by a stranger. Paddock vs. Wing, 16. How., 547. 
 
140 OF PARTIES TO AN ACTION. § 82. 
 
 The lessor of property is not liable for the wrongful act of his lessee. 
 Blaoliwell vs. Wiswall, 14 How., 257 ; 24 Barb., 355. 
 
 In an action on a policy of insurance, on which the loss is made payable 
 to a mortgagee, that mortgagee, during his mortgage, is the owner, and 
 can alone sustain the action. Bipley vs. The Astor Insurance Gompany, 
 17 How., 444 ; Ennis vs. The Harmony Fire Insurance Company, 3 
 Eosw., 516. But where, on a marine policy, the loss was made pay- 
 able to a third mortgagee, the owner warranting the vessel to be free 
 from all liens, it was, held the insurance was that of the owner and not 
 of the mortgagee, and that the existence of the prior mortgages was a 
 breach of the warranty and fatal to the policy. Bidwell vs. The north- 
 western Insurance Company, 19 N. Y., 179. 
 
 In The Mutual Insurance Company of Buffalo vs. Eaton, 11 L. 0., 
 140, it was held that an insurance company, who had paid a loss oc- 
 casioned by collision, could not maintain an action in their own name 
 against the wrong-doer ; but that such an action could only be brought 
 in the name of the owner of the property injured ; it being further held 
 that the company, xmder such circumstances, has a right to bring an 
 action in that form, on indemnifying the actual plaintiff, and would be 
 protected against his acts. A demurrer was accordingly allowed on 
 that ground. 
 
 "Where, however, an agent had inserted his name in the policy as 
 special payee, it was held that the action was properly brought in the 
 name of his principal. lane vs. Columbus Insurance Company, 2 C. 
 E.., 65. And an alienee of a policy may sue in his own name, and 
 might do so, even before the Code. Bodle vs. The Chenango County 
 Mutual Insurance Company, 3 Comst., 53. 
 
 The real owner, not the mere holder of a promissory note, is the 
 proper plaintiff. Parlcer vs. Totten, 10 How., 233 ; White vs. Brown, 
 14 How., 282. See, also, Clarh vs. Phillips, 21 How., 87. A bona fide 
 endorsee or holder may, however, recover, though the payment of the 
 price to the payee be contingent on future collection. Cummings vs. 
 Morris, 3 Bosw., 560. A transferee without consideration, for the mere 
 purpose of bringing suit, cannot maintain it. Killmore vs. Culver, 24 
 Barb., 656. ISTor, where the plaintiff has a i-ight to money due on a note 
 is his title to recover affected by the fact that he has not the actual 
 possession of the note. Selden vs. Pringle, 17 Barb., 458. The pre- 
 Biimption of law lies, however, until rebutted, that the holder of a ne- 
 gotiable bill of exchange, or promissory note, is its owner. James vs. 
 Chalmers, 5 Sand., 52 ; affirmed, 2 Seld., 209 ; Mottram vs. Mills, 1 
 Sand., 37. 
 
 The mere delivery, with intent to transfer the payee's interest, was 
 held sufficient to entitle the transferee to sue on a contingent order for 
 
OF PARTIES TO AN ACTION. § 32. I4l 
 
 seaman's wages. Zqftus vs. Clark, 1 Hilt., 310. And a party hold- 
 ing promissory notes, as trustee for himself and others, may recover. 
 Fletoh&r vs. Derrichson, 3 Bosw. 181. 
 
 An action for an injury to a house from negligent blasting, was 
 held to be properly brought against the contractor by a lessee, and 
 the liability of the latter to his landlord under an agreement to re- 
 pair, did not impair his right to sue. Ulrich vs. MoGale, 1 Hilt., 
 251. 
 
 A legatee of specific securities may sue in his own name to recover 
 them, either with the assent or after the final discharge of the executor. 
 Sere vs. Goit, 5 Abb., 481. The same is the case with a cesUd que 
 trust of a portion of a specific fund, after that proportion has been set 
 apart by a proceeding binding on the trustee. Oeneral Mwtm,al Ifi- 
 suranoe Company vs. Benson, 5 Duer, 168. 
 
 The cestui que trust is the only proper person to maintain an action 
 as against the trustee. Female Association of New Yorh vs. JBeeh- 
 mam,, 21 Barb., 565 ; Griffen vs. Ford, 1 Bosw., 123. 
 
 The equitable owner of property in possession may maintain an ac- 
 tion for damages to the freehold. Hood vs. New Yorh and Erie Rail- 
 road Coinjpany, 18 Barb., 80. 
 
 A suit in equity for the benefit of a lunatic, must be brought in his 
 own name. The power of a committee to sue as such is statutory, and 
 confined to the enforcement of debts or claims, transferred to him, or to 
 the possession or control of which he is entitled. McKillip vs. Mc. 
 KilUp, 8 Barb., 552. 
 
 A subsequent grantee may maintain an action against the original 
 grantor on a covenant running with the land. Colby vs. Osgood, 29 
 Barb., 339. 
 
 The owner of lands, redeeming under a sale on execution, may sue for 
 waste intermediate between the sale and his redemption. Thomas vs. 
 Crofut, 4 Kern., 474. 
 
 A bank is the proper party to sue on a draft payable to the order of 
 their cashier. Camden BanTc vs. Rogers, 4 How., 63 ; 2 C. E., 45. An 
 association formed under the general banking law, may sue either in 
 the name used by it, or in that of its president. The East River Bank 
 vs. Judah, 10 How., 135. 
 
 The interest of a plaintiff must be actual at the time of the com 
 mencement of the suit : where therefore a mortgagor of chattels, remain 
 ing in possession, had actually sold the property to a third party, relief 
 was denied to him in a suit to set aside the mortgage. James vs. Oak- 
 ley, 1 Abb., 324. 
 
 An inchoate purchaser of property at a sheriff's sale, cannot maintain 
 an action against ■ other persons not parties to the suit in which the 
 
142 OF PARTIES TO AN ACTION. — § 32. 
 
 judgment of sale was rendered, before completing his purchase and 
 taking a deed of the property. Blanco vs. Foote, 32 Barb., 535. 
 
 Nor, on the other hand, can a grantor of land maintain an action in 
 respect of the title to it, though he may have specially agreed to that 
 effect with his grantee. He has no title left. Townsend vs. Goelet, 
 11 Abb., 187. 
 
 An action upon an administration bond, actually assigned by the sur- 
 rogate under sections 63 and 65 of chapter 460, of 1837, to a party enti- 
 tled under his decree to payment of a distributive share, was held to be 
 properly brought in the name of that party. Baggott v- Boulger, 2 
 Duer., 160. When, however, an action had been brought in the name 
 of the people, the relator being joined on a similar bond, for the benefit 
 of a creditor, under a mere direction that the bond be prosecuted, pur- 
 suant to section 23, chapter 320 of 1830, it was held to be rightly so 
 brought. The People vs. Laws, 3 Abb., 450. This decision is affirm- 
 ed, 4 Abb., 292. By this ruling, however, the authority of Baggott vs. 
 Boulger, which proceeds on a different provision, is not denied. Bos 
 vs. Sea-mail, 2 C. K., 1, inclines to the same conclusion as The People 
 vs. Laws, and the opinion, which merely expresses a doubt, does not 
 support the head note. See the subject of bonds of tliis nature further 
 considered in the next section. 
 
 A surety on an undertaking on appeal, who had paid the amount of 
 his liability to the 'plaintiff, was held entitled to sue the latter in his 
 own name to recover back that amount, on a subsequent reversal by 
 the Supreme Court of the United States. Garr v. Martin, 1 Hilt., 
 358. As to letting in sureties to defend in the place of their principal, 
 see Jewett vs. Crane, 13 Abb., 97 ; 35 Barb., 208. 
 
 (c.) Tenants in Common. 
 
 In a suit in the nature of a common-law action for trespass on prop- 
 erty held in common, or for its use and occupation, all tenants in com- 
 mon or coparceners should be joined as plaintiffs. Porter vs. Bleiler, 
 17 Barb., 149 ; Bice vs. Hallenbech, 19 Barb., 664 ; and a remainder- 
 man in fee may so sue for an injury to the inheritance, notwithstand- 
 ing an intervening life estate. Van JDeusen vs. Toung, 29 Barb., 9. So 
 also as to a claim for a breach of covenant on a contract for sale to 
 joint owners, made before a conveyance to them. Atwood vs. Norton, 
 27 Barb., 638. 
 
 But one of several heirs may maintain a separate action for his pro- 
 portionate part of rents, accrued under a lease executed by the intes- 
 tate. Jones vs. Feloh, 3 Bosw., 63. So also as to a sum awarded to 
 heirs, as such, on taking of lands for a public improvement. Van Wart 
 vs. Price, 14 Abb., 4, note. 
 
OP PARTIES TO AK ACTION. — § 32. 143 
 
 Devisees iu remainder may maintain a joint action against the exe • 
 cutor of a tenant for life, for rents collected by him, due after the ter- 
 mination of the life interest. Marshall vs. Moseley, 21 N. Y., 280. 
 
 A similar rule to the above holds good as to the ownership of chat- 
 tels held in common ; where the action is in the nature of a common- 
 law action, and the injury affects, or the claim arises out of the joint 
 estate, all must be joined as plaintiffs. Coster vs. The New York and 
 Erie Railroad Company, 6 Duer, 43 ; 3 Abb., 332 ; also noticed 5 
 Duer, 677. 
 
 But, where any of the parties so interested refuse to join in a joint suit, 
 or where the equitable powers of the court are invoked, one or more may 
 sue alone, the others being made defendants. 8ame case. 
 
 And, after severance of a fund originally held in common, by a pro- 
 ceeding binding on the trustee, each party may maintain a separate ac- 
 tion for his ascertained share. General Mutual Insurance Company vs. 
 Benson, 5 Duer, 168. 
 
 Pending a tenancy in common of real estate, one of such tenants is 
 not liable to account to the others, in an action for use and occupation. 
 Wool&oer vs. Knapp, 18 Barb., 266. And if he interfere with the occu- 
 pation of his cotenant, or that cotenant's licensee, he wiU be a trespasser. 
 McGa/rrell vs. Murphy, 1 Hilt., 132 ; Jo7ies vs. Felch, 3 Bosw., 63. 
 ITeither can one tenant in common of personal property maintain a 
 common-law action against another, without showing a loss, destruction, 
 or sale by him. Tinney vs. Steblins, 28 Barb., 290. ISTor can one 
 sue another for taking and converting his due proportion of personal, 
 property so held. Forbes vs. Shattaick, 22 Barb., 568 ; Tripp vs. Riley, 
 15 Barb., 333. 
 
 I^or have tenants in common of personal property any common-law 
 remedy to obtain a division of it. But, in equity, one or more of them 
 may sue for and obtain a partition, or a sale and division of the proceeds 
 Tinney vs. SteHbins and Tripp vs. Riley, supra. 
 
 According to the old English rule, any one or more of several tenants 
 in common may sue alone, in actions that savor of the realty. This rule 
 is changed by statute as to ejectment. Vide 2 R. S., 341, section 11. 
 Porter vs. Bliel&r, supra. Partition is however maintainable by one or 
 more, and is so maintainable, although the plaintiff be out of possession. 
 Beebee vs. Griffing, 4 Kern., 235. 
 
 As to the right of an individual Indian to maintain trespass for lands 
 held by him separately, and not in common, vide Blaclesmith vs. Fel- 
 lows, 3 Seld., 401. 
 
 Joint owners of a vessel are tenants in common, and must sue jointly; 
 but, in the case of the death of any one of them, the suit lies in or must 
 be continued by the survivors only, Buckman vs. Brett, 22 How., 233 ; 
 
144 OF PAETIES TO AN ACTION. — § 32. 
 
 13 Abb., 119. See also Bishop yb. Edmiston, 13 Abb., 346. Joint char- 
 terers are joint owners, pro hao vice, as respects transactions arising out 
 of the voyage for which the vessel is chartered. Sherman vs, Fream, 
 30 Barb.,' 478. See likewise Coster vs. New Yorh and Erie Railroad 
 Company, 6 Duer, 43 ; 3 Abb., 332, noticed 5 Duer, 677; Dennis vs. 
 Kennedy, 19 Barb., 517. 
 
 Tenants in common of a pew are seized of several interests, and a joint 
 action cannot be maintained against in respect of their several shares of 
 an assessment. St. PauVs Church in Syracuse vs. Ford, 34 Barb., 16. 
 
 id.) Paetmles. 
 
 Analogous to the interests of tenants in common is that of partners 
 in property of the partnership. 
 
 In actions for the recovery of partnership property, for an injury to 
 that property, or for a debt or liability due or belonging to the partner- 
 ship, aU the general partners must join as plaintiffs. A mere special 
 partner, however, in a limited partnership formed under the statute, need 
 not be joined either as plaintiff or defendant. Vide 1 E. S., 766, § 14; 
 But if such a special partner interfere with the transaction of the gen- 
 eral business of the firm, or otherwise violates the provisions of the 
 statute, he will become generally liable, and may then be joined. Vide 
 1 K. S., 766, § 17 ; Hid., 767, § 22. 
 
 Partners, as such, may maintain a joint action against an inn-keeper 
 for loss of goods, the property of the firm, in the possession of one of its 
 -members. Needles vs. Howard, 1 E. D. Smith, 54. 
 
 A dormant partner, even though unknown to the contractor, is, since 
 the Code, a necessary party as plaintiff, in an action brought on a con- 
 tract with the partnership. Seoor vs. Keller, 4 Duer, 416. But where 
 a contract of leasing was made with two individuals contracting as such, 
 without suspicion that they had a co-partner in the business for which 
 the premises were leased, it was held that an unknown partner need not 
 in such case be joined as defendant. Hurlbut vs. Post, 1 Bosw. 28. 
 They have the right, but are not bound to sue all under such circumstan- 
 ces. Brown vs. Birdsall, 29 Barb., 549. So also, where the name of 
 a dormant partner had been fraudulently concealed, an injunction to 
 restrain a creditor from levying on partnership property was set aside. 
 Van Valen vs. Russell, 13 Barb., 590. 
 
 Although, as a general rule, no action at law can be maintained be- 
 tween partners, pending their relation as such {Koningslm^gh vs. La'w- 
 nitz, 1 E. D. Smith, 215), a contribution or express stipulation by one 
 for the benefit of the others, may be enforced by them or by their 
 trustee, as against a limited partner. RoUnson vs. Mcintosh 3 E D 
 Smith, 221. 
 
OF PARTIES TO Alf ACTION. — § 32. 145 
 
 One partner may sue another at law, for damages occasioned by a 
 premature dissolution, in breach of the partnership articles. His 
 remedy is not confined to an accounting in equity. Bagley vs. Smith, 
 6 Seld., 489; 19 How., 1. 
 
 And, after actual division of a specific fund, assented to by all, one 
 partner may afterward maintain suit against another, for moneys col- 
 lected, being part of his allotted portion. Crosby vs. Nichols, 3 Bosw., 
 450. 
 
 Although, pending a limited partnership, the general partners alone 
 have power to sue and be sued, it seems, that, in a suit by a creditor 
 for a receiver and distribution of the copartnership property, involving 
 a virtual dissolution, the limited partner ought to be joined, as essentially 
 a party in interest. Schulten vs. Lord, 4 E. D. Smith, 206. 
 
 In another suit arising out of the same controversy, the special part- 
 ner appears to have been brought in. Yide Lachaise vs. Maries, 4 
 E. D. Smith, 610. 
 
 An action may be brought by one firm against another, having a 
 mutual partner, for an ascertained balance, due in respect of mutual 
 dealings. Cole vs. Reynolds, 18 N. Y., Y4. Nor is an accounting a 
 necessary concomitant of such a suit ; though, if necessary, one may be . 
 directed. This case seems, at first sight, to overrule the doctrine held 
 in that of Englis vs. Furniss, 4 E. D. Smith, 587 ; 3 Abb., 82, viz. : that 
 such a suit is only maintainable in equity, and that it involves an inves- 
 tigation and settlement of the accounts. When looked into, however, 
 the discrepancy disappears ; the claim in Cole vs. Reynolds, arising upon 
 a stated and settled account, whereas, that in Englis^B. Furniss, was of 
 an unliquidated nature. 
 
 In an action upon a partnership debt, all the partners must be joined, 
 and the non-joinder of any will be a valid defence. Bridge vs. Payson, 
 5 Sand£, 210^ Mayhew vs. Robinson, 10 How., 162. And an out- 
 going partner has been held liable for the whole of a debt, arising out 
 of a continuesd consignment of goods begun to be made to the firm 
 while he remained a member, and wound up after his retirement. 
 Briggs vs. Briggs, 15 N. T., 471 ; affirming same case, 20 Barb., 477. 
 
 The whole of the partners in a firm were held liable for a warranty 
 given by one of its members on the sale of firm property, in Sweet vs. 
 Bradley, 24 Barb., 549. 
 
 One partner is liable to third persons, for injuries occasioned by the 
 neo-ligence of another, or of a servant employed and paid by that other 
 exclusively, if committed in the course of the partnership business. 
 Cotter vs. Bettner, 1 Bosw., 490. 
 
 Vol. I.— 10 
 
146 OF PAETIES TO AN ACTION, — S 32. 
 
 (e.) Joint and Several Oontkactoks. 
 
 The ease of joint and several contractors presents, as regards the 
 question of parties, a close analogy to that of a partnership. 
 
 In an action on a joint contract, all vfho joined in it should be made 
 defendants, and if any be omitted, the objection is demurrable in its 
 nature. Crooke vs. O'JUggins, 14 How., 154. In Mahamy vs. Pe?i- 
 wiaw, 4Duer, 603, it was held that in an action on a joint judgment, the 
 joint liability still continued. 
 
 Where the contract or instrument creates a joint and also a several 
 liability, all parties interested may or may not be joined in the same 
 action, at the option of the plaintiif (wjc^e section 120) ; but that joinder 
 in no way affects the responsibilities of the parties as between each 
 other, which remain as they were originally fixed by their contracts. 
 Alfred vs. WatUns, 1 C. K. (N. S.), 343 ; Kelsey vs. Bradbury, 21 
 Barb., 531 ; Parher vs. Jackson, 16 Barb., 33 ; Brainard vs. Jones, 
 11 How.; 569 ; De Bidder vs. 8cherm.erTwrn, 10 Barb., 638 ; Snow vs. 
 Howard, 35 Barb., 55. 
 
 A several judgment may be rendered on a contract originally joint, 
 on facts being shown which render the liability several in fact, as in 
 the case of a note wrongfully signed with the firm name by one part- 
 ner ; and, under such circumstances, a several action may be brotight. 
 Parher vs. Jackson, 16 Barb., 33. See also, as to severance on a plea 
 of infancy, put in by one of two joint makers of a promissory note, 
 Butler vs. Morris, 1 Bosw., 329. This last objection is however per- 
 sonal, and cannot be taken by third parties. Slocum vs. Hooker, 1 3 
 Barb., 536. In Brown vs. Birdsall, 29 Barb., 549, it is held that 
 where joint debtors reside in different states, they may be sued sepa- 
 rately, in the states having jurisdiction of the persons or property. 
 
 The lessee of premises and the guarantee of his rent, by the same 
 instrument, were held to be properly joined as co-defendants in the 
 same action, under the power conferred by section 120, in Carrnan vs. 
 Piatt, 23 N. Y., 286. 
 
 Although different parties may be liable for the same sum of money, 
 yet if their responsibility arises under different contracts, the liabilities 
 are several, and they cannot be joined in the same action. So held as 
 to a guarantee written under a promissory note. Brewster vs. Silence, 
 4 Seld., 207 ; affirming same case, 11 Barb., 144 ; Allen vs. Fosgate, 11 
 How., 218 ; Glencove Mutual Insurance Company vs. Harrold, 20 
 Barb., 298 ; De Biddsr vs. Schermerhorn, 10 Barb., 638. 
 
 These decisions overrule Enos vs. Thomas, 4 How., 48. See likewise 
 the indecisive cases of Hall vs. Farmer, 2 Comst., 553 ; Durham, vs. 
 
OF PARTIES TO AN ACTION. — § 32. 147 
 
 Manrow, 2 Comst., 533. See also Brown vs. Curtis, 2 Comst., 225, 
 and note, p. 553. 
 , So also, this liability is several in a suit by a subsequent indorser 
 ' -against prior indorsers to recover back money paid by him on taking 
 up a note. Earlier vs. Gassidy, 16 Barb., 177. See likewise, as to 
 similar liability, White vs. Low, 7 Barb., 204. The liability of a 
 purchaser of goods and guarantor of payment are also several, and in- 
 capable of joinder. Leroy vs. Shaw, 2 Duer, 626. See likewise 8;pen- 
 cer vs. Wheeloch, 11 L. O., 329. The same is the case as regards those 
 of a lessee and of his surety. Phalen vs. Dinger, 4 E. D. Smith, 379. 
 
 "Where the liability under a contract originally joint has subsequently 
 been severed, a joint action will no longer lie. Thus, in a common- 
 law action against surviving partners on a partnership debt, the exe- 
 cutors of the deceased partner cannot be joined. Hiygins vs. Mochwell, 
 2 Duer, 650 ; Voorhies vs. Baxter, 1 Abb., 43 ; De Agreda vs. Mantel, 
 1 Abb., 130. So held also as to joint makers of a promissory note. 
 Marehause vs. Ballow, 16 Barb., 289. 
 
 The cases overrule the decision in Bicart vs. Townsend, 6 How., 460 ; 
 but the conflict is more apparent than real, as the necessity of framing 
 an action against all such parties jointly, on principles of equitable re- 
 lief, is clearly pointed out in the "opinion. 
 
 The creditor is not, however, deprived of his remedy against the exe- 
 cutors in such cases. They are liable in equity, on an allegation that 
 the surviving partners have been sued, and are insolvent. Higgins vs. 
 Bookwell ; Yoorhies vs. Baxter ; De Agreda vs. Mantd, swpra. 
 
 Where the liability is not joint, but joint and several, the action may 
 be brought in an equitable form against all parties in the first instance, 
 proper allegations being made to show the liability of the representatives 
 as above. Parkev vs. Jackson, 16 Barb., 33 ; De Agreda vs. Mantel, 1 
 Abb., 130. See also, Rica/rt vs. Townsend, 6 How., 460. This doctrine 
 does not, in fact, conflict with that in Mprehmise vs. Ballow, above cited, 
 as in that case, no circumstances appeared to have been stated to lay 
 ground for the interposition of the court in equity, but the action was 
 a pui'e common-law action. 
 
 Carriers on a joint route, who have paid what is due to the others in- 
 terested, and delivered the goods, are entitled to recover the whole 
 freight, on their individual account, without any of* the incidents of a 
 partnership transaction. Merrich vs. Oordon,'2Q E". T., 98. 
 
 {f.) Joint Toktfeasoes. 
 
 The liability of parties standing in this position is joint and several, 
 and they may be either sued jointly or separately, or any one or more 
 may be joined in the same action, at the option of the plaintiffs. See 
 
148 OF PAETIES TO AS ACTION. — § 32. 
 
 as to power of joinder, J^ing vs. Orser, 4 Duer, 431 ; Waterbury vs. 
 Westervelt, 5 Seld., 598 ; Herring vs. Hoppook, 3 Duer, 20 ; 12 L. 0., 
 167 ; Mwrsh vs. Backus, 16 Barb., 483. And, as to power of severance, 
 Cross vs. Sackett, 2 Bosw., 617; 6 Abb., 247; 16 How., 62; Mead vs. 
 Mali, 15 How., 347, reported as Caaeaux vs. Mali, 25 Barb., 578. 
 
 As to the right of a party injured by the concurrent negligence of 
 two railway companies, to maintain an action against both, on their 
 joint and several liability, see Oolegrove vs. Ifew York and New Hamen 
 and New York and Harlem Railroad Cmivpanies, 20 IST. Y., 492. 
 
 (^.) Peincipal and Agent. 
 
 The principal and not the agent is the proper pi^rty to sue^ or be 
 sued, upon a contract of which he is in fact the owner, though made 
 in the agent's name. Eriokson vs. Oompton, 6 How., 471 ; Union 
 India-Rubher Compa/ny vs. Tomlvnson, 1 E. D. Smith, 364 ; St. John 
 vs. Griffi,t7i, 13 How., 59 ; 2 Abb., 198 ; Fish vs. Wood, 4 E. D. Smith, 
 337 ; Haight vs. Sahler, 30 Barb., 218 ; Stanton vs. Camp, 4 Barb.., 
 274. And if, in making such a contract, the same person act as the 
 agent of both parties, the court will avoid the contract, on the applica- 
 tion, or as the result of a defence put in by either. New York Central 
 Insurance Company vs. ITie National Protection Insurance Company, 
 4 Kern., 85 ; reversing same ease, 20 Barb., 468. See also, Hentley 
 vs. Tfie Colwmhus Insurance Company of Philadelphia, 19 Barb., 595. 
 And even when, by the terms of a policy of insurance, the loss was ex- 
 pressly made payable to the agent only, it was, nevertheless, held that 
 the principal might maintain an action on such policy. lane vs. Col/rnn- 
 ius Insurance Company, 2 C. R., 65. Where the principal is known, 
 he, and he alone, is liable. Conro vs. Fort Henry Iron Company, 12 
 Barb., 27. 
 
 A subsequent ratification by the principal, of the acts of the agent, is 
 equivalent to an original authority. Conro vs. Fort Henry Iron Corw- 
 pany, 12 Barb., 27 ; Howard vs. Howa/rd, 11 How., 80. And this, 
 even where the principal had originally no right to depute him. New^ 
 ton vs. Bronson, 3 Kern., 587. But where an agent had, by not dis- 
 closing the name of his principal, rendered himself personally liable for 
 goods sold and delivered to him, a subsequent recognition of his agency 
 was held not to be available to discharge him from that liability. 
 Nason vs. Cockroft, 3 Duer, 366. See also, Cabre vs. Stwrges, 1 Hilt., 
 160 ; and Blakeman vs. Mackay, 1 Hilt., 266. 
 
 Where lands were bought in at a judicial sale, by a party assuming 
 to act as agent for another, but having in fact no authority, it was held 
 that a specific performance could not be compelled as against either, 
 there being no written contract. Hegeman vs. Johnson, 35 Barb., 200. 
 
OF PARTIES TO AN ACTION. — § 32. ' 149 
 
 Where an agent had sold a forged bill of exchange, without disclosing 
 the name of his principal, he was held liable for the amount received, 
 though, if he had passed over the moneys to that principal before de- 
 mand made for reimbursement, he would have been exonerated. Mor- 
 rison vs. Ourrie, 4 Duer, 79. Where an agent signed a lease, as agent 
 for the owner, but without disclosing the name of such owner, it was 
 held that either might maintain an action. Morgan vs. Bead, 7 Abb., 
 215. See, as to the right of an undisclosed principal to sue in such 
 case. Van Lien vs. Byrnes, 1 Hilt., 133 ; but he does so, under those 
 circumstances, subject to any equities between the defendant and the 
 agent. 
 
 Where, in a sale of goods, the agent's credit was preferred, and his note 
 taken in lieu of that of the principal, it was held that the latter could- 
 not afterwards be sued. Bankln vs. Be Forest, 18 Barb., 143. And 
 where agents had themselves assumed the contract, and satisfied their 
 principal, it was held that they could sue in their own name. White 
 vs. Chouteau, 1 E. D. Smith, 493. See same ease, 10 Barb., 202. 
 
 And the agent may maintain an action in his own name, upon a note 
 or contract, payable to him by its terms. CorisideraM vs. Brisbane, 
 22 N. Y., 389 ; reversing same case, 2 Bosw., 471. See also, BeiZVyvs. 
 CooTc, 22 How., 93. 
 
 The principal, though innocent, is liable for fraud or misconduct of 
 the agent acting within the scope of his authority, nor need that au- 
 thority be express. Hunter vs. Hudson Biver B'on and Machine Com- 
 pa/ny, 20 Barb., 493. But not for acts of this nature, in matters beyond 
 that scope. New York Life Lnswrance and Trust Compa/ny vs. Beebe, 
 3 Seld., 364. 
 
 Where, however, the wrong relates solely to the compensation of the 
 agent himself, and not to the interest of the principal, the latter will 
 not be answerable. Gondii vs. Baldwin, 21 Barb., 181. 
 
 As to the general responsibility of a principal for the wrongful or 
 negligent acts of his agent, committed within the scope of his employ- 
 ment, see Thomas vs. Winchester, 2 Seld., 397. 
 
 As to the nullity of stock, fraudulently issued by the agent of a pub- 
 lic company, when acting clearly beyond the scope of his authority, 
 vide The Mechanics^ Bank vs. The New York and Nemo Haven Bail- 
 road Com/pany, 3 Kern., 599; 4 Duer, 570; reversing same case, 4 
 Duer, 480. 
 
 {h.) Paeents, PIusbands, and Masters. 
 
 The parent of an infant seduced, is, if entitled to her services, the 
 only party who can maintain an action for such seduction. She can- 
 not sue herself. Hamilton vs. Lomax, 26 Barb., 615 ; 6 Abb., 142. 
 
150 OF PAETEES TO AN ACTION. § 32. 
 
 But where tlie father is not entitled to such services, he cannot main- 
 tain the action. JDain vs. Wycoff, 3 Seld., 191. On a second trial, how- 
 ever, proof that the defendant procured the plaintiff's daughter to be in- 
 dentured to him for the purpose of effecting her seduction, was held to 
 be an answer to the objection, and the recovery was sustained. Same 
 case, 18 JST. Y., 45 
 
 Where the trunk of a minor employed upon his father's business was 
 lost, it was held that the father could maintain an action against the 
 carrier. Grant vs. Newton, 1 E. D. Smith, 95. 
 
 But a father cannot maintain an action for an injury to his child, un- 
 less some actual loss has accrued, or may accrue to him. Stephenson vs. 
 Hall, 14 Barb., 222. 
 
 ■ In a case of death of a wife by malpractice, the husband, as such, can 
 alone maintain an action, on the ground of loss of service He. cannot 
 sue as administrator. Lynch vs. Davis, 12 How., 323. 
 
 Before the recent change in the law, it was held that, in an action 
 for slander of the wife, where the words are actionable only by reason 
 of special damage, the husband must sue alone. If the words were 
 slanderous ^.er «e, he must be joined with the wife as plaintiff. Klein 
 vs. Hentz, 2 Dner, 633. But where the wife, if sole, could not have 
 recovered damages, the husband cannot, when suing for loss of service. 
 Wilson vs. Goit, 17 N. T., 442. _ 
 
 On the same principle, he cannot recover damages for her death, by 
 a railway collision, where that death was instantaneous. No period 
 intervened in which he could be said to have sustained the loss of her 
 service or society. Green vs. The Hudson River Railroad Company, 
 16 How., 230 ; 28 Barb., 9. See also Lucas vs. The New York Cen- 
 tral Railroad Compary, 21 Barb., 245. 
 
 The husband may maintain an action for enticing away his wife, or 
 inducing her to live apart from him, and this even against her father, 
 but some wrongful motive must be shown. Bennett vs. Smith, 21 
 Barb., 439. 
 
 He may also sue for services rendered by her. Avogadro vs. Bull, 
 4 E. D. Smith, 384. 
 
 He may likewise maintain an action for moneys due to her, unless it 
 appear aifirmatively, that they were part of her separate estate, under 
 the statutes of 1848 and 1849. Crolius vs. Roqualina, 3 Abb., 114. 
 And, after her death, he may sue for arrears of rent, or for use or occu- 
 pation of her real estate, during coverture. Jones vs. Pattersmx, II 
 Barb., 572 ; but the marriage and death of the wife in this case were 
 both antecedent to the statute of 1848. 
 
 The subject of the liabilities of mastere, or employers, for the torts of 
 their servants or employees, will be found fully considered, and numer- 
 
OF PARTIES TO AN ACTION. — ■§ 32. ■ .151 
 
 ous decisions cited, at a subsequent stage of the present work, section 
 140 ; head — Relation of Ernployer and Employee. 
 
 {i.) COEPOEATIONS. 
 
 Corporations incorporated by or under the provisions of any law of 
 this state, may sue and be sued by their corporate names. 
 
 The same is the case as to foreign corporations, created by the laws 
 of any other state or country. Vide 2 E. S., 457, section 1, and 459 
 section 15, as amended by chapter 107 of 1849, and saved by section 
 471 of the Code. Vide also section 114. See also Mutual Benefit Life 
 Insurance Oompam,y vs. Davis, 2 Kern., 569. 
 
 To give the court jurisdiction, however, there must either be a vol- 
 untary appearance by the defendant {vide Watson vs. TJie Odbot 
 BanTc, 5 Sandf., 423), or the case must, where the plaintiff is non-resi- 
 dent, be brought within section 427 of the Code, by showing, either 
 that the cause of action has arisen, or that the subject of the action is 
 situated within the state. 
 
 In relation to the former, the place where a contract is to be per- 
 formed is that, where, in a jurisdictictnal sense, the cause of action arises. 
 BuroMe vs. Eokha/rt, 3 Comst., 132 ; Gamrvpbell vs. TJie Proprietors of 
 the Ohampla/in and St. Lawrence Bail/road, 18 How., 412. See also 
 as- to a bill drawn in one state and payable in another. President, (S;c., 
 of Ba/nk of Commerce vs. The Rutlxmd a/nd Washington Bail/road 
 Company, 10 How.-, 1. See, however, in relation to this last point, 17 
 How., 16 ; The Western Bank vs. The City Banh of Columbus, 7 
 How., 239 ; CamtweU vs. The Dubuque Western Bailroad Company, 
 17 How., 16. 
 
 A foreign corporation suing another, is a non-resident plaintiff within 
 the meaning of the section, and must bring the case within its terms. 
 See two last cases. If not, the suit will not be maintainable. House 
 vs. Cooper, 30 Barb., 157; 16 How., 292; Cumberlamd Coal and Iron 
 Compa/ny vs. Hoffman Steam Coal Company, 30 Barb., 159. 
 
 It has been held that the plaintiff's claim, and the satisfaction which 
 he seeks out of the property, is the subject of the action, and not the 
 property itself, though attached ; and that, accordingly, a seizure under 
 attachment did not avail to confer jurisdiction, the plaintiff being non- 
 resident. Whitehead vs. The Buffalo and lake Huron Bailroad. 
 Cpmpamy, 18 How., 218. See also dictum, per Hatid, J., 10 How., 8 ; 
 and Campbell vs. The Proprietors of tlie Champlavn and St. lawrenoe 
 RaU/road, 18 How., 412. These decisions seem, however, to ignore 
 the numerous cases holding that a suit of this description is more pecu- 
 liarly a proceeding in rem. Vide Hulbert vs. The Hope Mutual Insu- 
 rant Company, 4 How., 275 ; Brewster vs. The Michigan, Central 
 
152 OF PARTIES TO AN ACTIOK. — § 32. 
 
 Rml/road Company, 5 How., 183 ; 3 C. K., 215 ; Bates vs. Tlie New 
 Orleam, Jachson, and Great Northern Railroad Compamy, 13 How., 
 516 ; 4 Abb., 72 ; Ready vs. Stewart, 1 C. E. (N. S.), 297. The recent 
 amendment of section 134, subdivision 1, seems, too, adverse to the 
 above strict construction. 
 
 Companies or associations, whether joint stock or private, consisting 
 of not less than seven persons, may sue or be sued in the name of their 
 president or treasurer for the time being, and a suit so commenced does 
 not abate, but may be continued by or against his successors in office. 
 Chapter 258 of 1849, amended by chapter 455 of 1851. Vide Tibhetts 
 vs. Mood, 21 Barb., 650. See also De Witt vs. Chandler, 11 Abb., 459. 
 But this statute does not extend to create a right of action, in a case in 
 which the association was not itself competent to sue ; Corning vs. 
 Oreene, 23 Barb., 33 ; or in respect of a matter of which a court -of law 
 will not take cognizance ; Austin vs. Searing, 16 IST. T., 112. 
 
 It seems, however, that it is in the option of associations formed under 
 a general law, either to sue in this form, or in the name used by them 
 in transacting their business. East River Bank vs. Judah, 10 How., 
 135. 
 
 The provisions of the laws of 1849 and 1851, above referred to, do not 
 extend to fire companies. Masterson vs. Botts, 4 Abb., 130. Nor has a 
 board of health capacity to sue or be sued. The People vs. The Super- 
 visors of Monroe, 18 Barb., 567 ; Gardner vs. The Bo(ird of Health, c&c, 
 6 Seld., 409 ; affirming same case, 4 Sandf, 153. 
 
 Nor are the supervisors of a county a body corporate, so that an ac- 
 tion can be maintained against them for a county charge. Brady vs. 
 Supervisors of New York, 6 Seld., 260; affirming s^me case, 2 Sandf., 
 460. See also Chase vs. County of Saratoga, 33 Barb., 603. 
 
 A town in its corporate capacity cannot sue to recover back moneys 
 paid out of the proceeds of an illegal assessment ; Town of Gallatin vs. 
 Loucks, 21 Barb., 578 ; or maintain an action against supervisors for an 
 illegality. Town of Guilford vs. Cornell, 18 Barb., 615. 
 
 A suit was held to be maintainable by the Seneca Nation of Indians 
 suing as such, they being in effect created a corporation, by the act for 
 their protection and improvement, passed on the 8th of May, 1848. Th& 
 Seneca Nation of Indians vs. Tyler, 14 How., 109. 
 
 A religious incorporation must sue as such, and proceedings cannot 
 be maintained in the individual names of the trustees. The People vs. 
 Fulton, 1 Kern., 94 ; Bundy vs. Birdsall, 29 Barb., 31. And an ac- 
 tion is maintainable by such a body, when incorporated, on a promise 
 made antecedent to, but having in view such incorporation. The Re- 
 formed Protestant Dutch Church vs. Brown, 17 How., 287. A corpo- 
 ration is the proper defendant in a suit brought upon a contract made 
 
OF PAETIES TO AK AOTIOJiT. — § 32. 153 
 
 in the name of an agent, but in fact for its benefit. Oowro vs. Port 
 Henry Iron Company, 12 Barb., 27. 
 
 An individual banker, carrying on business under the general bank- 
 ing law, cannot assiime or sue in a corporate name. Godd vs. RatJibone, 
 19 ]Sr. Y., 37; overruling Banh of Havana vs. WioMMn, 16 How., 97 ; 
 7 Abb., 134. See, however, as to an error of this nature being curable 
 by amendment, Banh of Havana vs. Magee, 20 N. Y., 355. 
 
 An action properly commenced by a corporation doe's not abate, but 
 is continuable in the corporate name after its dissolution. Wew Yorh 
 Marbled Iron WorTcs vs. Sm,ith, 4 Duer, 362. 
 
 An individual corporator, as such, is not a party to a suit brought by 
 or against a corporation. Hack vs. Ths Mayor of If9w York, 3 Comst., 
 489. This seems to overrule Place vs. Butternuts Woollen and Cotton 
 Manufacturing Corrvpa/ny, 28 Barb., 503. Nor can an individual in-' 
 habitant maintain an action to restrain or avoid the act of a municipal 
 corporation, not affecting his private interest, as distinct from that of 
 other inhabitants. Roosevelt vs. Draper, 23 N. Y., 318. Nor, it has 
 been held, is a municipal corporation liable for money collected and 
 wrongfully withheld by one of its ofiicers. Onderdonk vs. City of 
 Brooklyn, 31 Barb., 505. 
 
 It is competent for a corporation, as representing the stockholders, to 
 institute a suit in its corporate name, for the purpose of removing a 
 cloud in their title, occasioned by the wrongful issue of spurious cer- 
 tificates by one of its ofiicers. Wew York and New Haven Railroad 
 Company vs. Schuyler, 17 N. Y., 592; 7- Abb., 41; reversing same' 
 case, 1 Abb., 417. 
 
 In 8hae and Leather Bank vs. Thompson, 23 How., 253, it was held 
 that a corporation might maintain an action of libel, in respect of words 
 used affecting its credit as such. 
 
 In a suit by an individual stockholder against officers, complaining 
 generally of a fraudulent overissue of stock, and appropriation of cor- 
 porate funds, but not making out a ease of individual injury, it was 
 held that the company was a necessary party. Wells vs. Jewett, 11 
 How., 242; Bell vs. Mali, 11 How., 254. "Where individual injury is 
 alleged, the cause of action becomes several, and may be severally as- 
 serted. See cases noticed in next section. 
 
 And the company may be joined as a co-defendant, in an action to 
 establish the plaintiff's right to stolen scrip, Wells vs. Smith, 7 Abb., 261 ; 
 or in an equitable proceeding to charge individual stockholders, and 
 praying a discovery of their names and residences, with a view to make 
 them parties. Bogardus vs. Rosendale Manufacturing Company, 3 
 Seld., 147. 
 
 The corporation, not the contractor, is the proper party against whom 
 
154 OF PARTIES TO AN ACTION. — § 32. 
 
 relief should be sought by an individual owner assessed for an improve- 
 ment, and aggrieved by such work not being done according to con- 
 tract. MoCafferty vs. MoCabe, 13 How., 275 ; 4 Abb., 57. 
 
 The questions which have arisen as to the .liability of municipal cor- 
 porations for the wrongful acts of their contractors or agents, and when, 
 and when not^ such liability will accrue, will be found considered here- 
 after, section 140, Relation of Employer and Employee. 
 
 An agent of a corporation cannot be sued by individual stockholders 
 for alleged misapplication of corporate funds. To sustain such a com- 
 plaint, there must be an averment that the corporation itself has refused 
 to bring an action. VanderbiltYS,. Garrison, 5 Duer, 689; 3 Abb., 361. 
 
 An action upon- the official bond of a constable of the city of New 
 York, in respect of his wrongful act, must be prosecuted in the name 
 of the corporation, nor need the party for whose benefit the proceeding 
 is taken be joined. Mayor of New YorTc vs. Brett, 2 Hilt, 560. See 
 also, as to a similar bond given to the people. People vs. Norton, 5 Seld., 
 176, there cited. 
 
 (y.) DiEECTOES AND StOCKHOLDEES. 
 
 Directors and stockholders in public companies for manufacturing, 
 mining, mechanical, or chemical purposes, are, by statutory provision, 
 individually liable to creditors of any such companies ; the latter to the 
 full amount of their stock until fully paid ; the former, generally, in the 
 event of any false representation or breach of trust on their part. Oh. 
 '40 of 1848. 
 
 And the liability of directors or officers of joint stock companies, 
 or associations, domestic or foreign, is not merely statutory, but general ; 
 and, under it, any one or more of its directors or officers may be held 
 responsible for misstatement made, or fraud committed, in which they 
 participate, or to which they are privy by their acts or omissions, and 
 that, either jointly or individually, at the option of the parties, or any 
 one of the parties injured ; and those parties may sue, either jointly or 
 severally. Vide Cazeaux vs. Mali, 25 Barb., 578 ; Mead vs. Mali, 15 
 How., 347; Cross vs. Sachett, 2 Bosw., 617 ; 16 How., 62 ; 6 Abb., 247; 
 Wells vs. Jewett, 11 How., 242; Bell vs. Mali., 11 How., 254; Garri- 
 son vs. Howe, 17 N. Y., 458 ; Cumberland Coal and Iron Company vs. 
 Sherman, 30 Barb., 553 ; Therasson vs. McSpeddon, 2 Hilt., 1 ; Perhins 
 y&.'Church, 31 Barb., 84. Nor in such an action heed the company itself 
 be joined. See last case. 
 
 It is competent to an individual stockholder to sue the company of 
 which he is a member, and also its officers, for the purpose of establish- 
 ing his title to the stock held by him. Wells vs. Smith, 7 Abb., 261. 
 ' The liability of individuals composing an unincorporated association, 
 
OF PARTIES TO AN ACTION. — § 32. 155 
 
 is unlimited. They stand, in fact, on the footing of ordinary partners, 
 and are responsible as such. Wells vs. Gates, 18 Barb., 554 ; Dennis 
 vs. Kennedy, 19 Barb., 517. 
 
 The liability of a stockholder, v?hen sued by a creditor, is individual 
 as' regards both parties, and no others need be joined. Abbott vs. As- 
 pinwall, 26 Barb., 202. See also Perkins vs. Cliv/reK, 31 Barb., 84, 
 above cited. 
 
 But a stockholder so sued, is not- liable for debts of the company an- 
 tecedent to his becoming such, by the issue of his stock certificate ; nor 
 will his having previously given his note for stock to be issued on its 
 payment, antedate that liability. Tra(yy vs. Yates, 18 Barb., 152. ISTor 
 is a trustee or director who has neglected to report, liable for a debt in- 
 curred by the company, after his ceasing to hold ofiice. The Quarry 
 Company vs. Bliss, 10 Abb., 211. 
 
 And proof by a stockholder, of having already paid debts to the full 
 amount of his stock, will be a complete defence. Garrison vs. Howe, 
 17 N.'Y., 458. And it would seem that he may himself institute a suit 
 for an account and distribution. 
 
 A stockholder, sued individually for enforcement of a judgment 
 obtained against the company of which he is a member, is only liable 
 to one suit at a time; nor can a second be maintained against him, 
 until the first is determined, and an execution returned unsatisfied in 
 .whole or in part. Laws of 1853, ch. 153, p. 283. 
 
 (^.) States and Govkenments. 
 
 A foreign state or government may sue in its federative name. Re- 
 publie of Mexico vs. Arrangois, 11 How., 1; affirmed, 5 Duer, 634; 
 11 How., 576. 
 
 It cannot be sued for the purpose of enforcing any remedy against it ; 
 but, in a controversy affecting others, it may, at the outset of the action, 
 be made a party defendant, to give it an opportunity to appear and take 
 part in the controversy, if it judge right to do so. Yide Mannhxg vs. 
 The State of Nicaragua, 14 How., 517. But it may consent to be sued 
 on such terms as may be just. Peofle of State of Michigan vs. Plwenix 
 Bank of New York, 4 Bosw., 363. 
 
 Nor can the state of !New York be sued by an individual, except as 
 authorized by statute. Kierstedj^. The People, 1 Abb., 385. 
 
 In an action for intrusion into office, the individual claiming that 
 office must be joined as a co-plaintiff with the people. People vs. Ry- 
 der, 16 Barb., 370 ; affirmed, 2 Kern., 433 ; Tlie People vs. Walker, 23 
 Barb., 304. 
 
 The people were held to be properly made plaintiffs in a suit to com- 
 
156 OF PARTIES TO AN ACTION. § 32. 
 
 pel the trustees of a bank to contribute to the safety-fund for the benefit 
 of all claimants. The People vs. Walker, 21 Barb., 630. 
 
 And, in a suit for a matter affecting the whole community, the attor- 
 ney-general is a necessary defendant. Davis ys. The Mayor of New 
 Yorh, 3 Duer, 663. The same officer is also the proper party to sue for ' 
 a public injury. Korff v&. Oreen, 16 How., 140; 7 Abb., 108, note. 
 See Roosevelt \%, Draper, 16 How., 137; 7 Abb., 108; and opinion of 
 Harris, J., in same case, 7 Abb., 124. See subsequent affirmance in 
 same case, Roosevelt vs. Draper, 23 N. Y., 318. See likewise as to an 
 injunction to prevent the misuser of its authority by a municipal corpo- 
 ration, in matters not falling within the scope of its legislative functions, 
 People vs. The Mayor of New YorTc, 9 Abb., 253 ; Samie vs. Samve, 32 
 Barb., 102. See, however, People vs. Law, 22 How., 109. 
 
 And an action on the official bond of a public officer, in respect of his 
 misconduct, will be properly brought in the name of the people. Peo- 
 ple vs. Norton, 5 Seld., 176. 
 
 (Z.) Assignee m Conteact. 
 
 It will have been seen that, under section 111, the assignee and not 
 the assignor of a chose in action, is henceforth the proper party to be 
 joined as plaintiff, in all cases. 
 
 To be available, however, the assignment must be antecedent to the 
 action ; if executed subsequently to its commencement, it will not sus- 
 tain the complaint. Garrigue vs. Loesoher, 3 Bosw., 578. 
 
 An assignment of this nature is valid, and transfers the right to sue, 
 though made without sufficient, or without . any consideration, or if 
 even a mere gift. See Clarh vs. Downing, 1 E. D. Smith, 406 ; Beach 
 vs. Raymond, 2 E. D. Smith, 496 ; St. John vs. American Mutual Life 
 Lnsurance Company, 3 Kern., 31 ; Mills vs. Fox, 4 E. D. Smith, 220 ; 
 Yogel vs. Badcock, 1 Abb., 176 ; Burtnett vs. Qwynne, 2 Abb., 79 ; 
 Richardson vs. Mead, 27 Barb., 178 ; Arthur vs. Brooks, 14 Barb., 
 533 ; Eastern Plamh Road Company vs. Vaughan, 4 Kern., 546 (555). 
 But if clearly colorable, it might be impeached. Burtnett vs. Gwynne, 
 supra. 
 
 And when a written contract is made upon its face for the benefit of 
 a third party, such party may sue on it without the form of an assign- 
 ment. Lhstern Plank Road Company vs. YoMghan, supra. 
 
 Any contract upon which an action might be maintained by the 
 executors of the contracting party, is legally assignable, and may be 
 sued on by the assignee. Sears vs. Conover, 34 Barb., 330. 
 
 A complete title to a debt due from a third person passes by an as- 
 signment, though notice be not given to the debtor. Richa/rdson vs. 
 Ainsworth, 20 How., 521. 
 
OF PARTIES TO AN ACTIOK. — § 32. 157 
 
 And wlieii a judgment is paid wholly or in part by one not bonnd 
 by it, the taking of an assignment is unequivocal evidence on his part 
 of an intention not to satisfy it. The assignment is valid, and the 
 judgment remains unextinguished. Harheok vs. Vanderlilt, 30 N. Y., 
 395. But such an assignment does not carry with it any collateral 
 and independent remedies, in respect of fraud, which might be asserted 
 by the assignor. Borst vs. Baldwin, 30 Barb., 180. 
 
 No title to sue will of course pass by an assignment iivcomplete in 
 itself, for want of the concurrence of a necessary party. Mtlls vs. 
 Pearson, 2 Hilt., 16. 
 
 An assignment by parol may avail, but, to be valid, it must be com- 
 plete and for sufficient consideration, and all control over the subject- 
 matter must be surrendered. Hupp vs. Blanohwrd, 34 Barb., 627. 
 
 It is not now necessary to inquire whether an assignment passes the 
 legal title. The assignee, if he have the whole interest, may sue in his 
 own name, whether his title be legal or equitable. Hastings vs. 
 McKinley, 1 E. D. Smith, 2Y3. 
 
 But. if the assignee's complaint negative his own title, it will be bad 
 on demurrer. Palmer vs. 8medley, 28 Barb., 468 ; 6 Abb., 205 ; Nel- 
 son vs. Eaton., 15 How., 305 ; Y Abb., 305. 
 
 Permission to revive was refused to a party claiming as assignee of 
 the executor of a deceased party, in Rogers vs. Adriance, 22 How., 
 97. The doctrine of privity, it was believed, had never been carried 
 60 far. 
 
 A guarantee is assignable, and the assignee must sue in his own 
 name. Small vs. Sloan, 1 Bosw., 352. 
 
 An assignee of a chose in action entitled to the money due is, in all 
 cases, the proper party to sue. Combs vs. Bateman, 10 Barb., 573. 
 
 An assignment, for valuable consideration, of a mere expectancy, is 
 good in equity, and takes effect when that expectancy is brought into 
 existence. And, where a person having a debt due to him, assigns 
 parts of it to different persons in succession, a suit is maintainable by 
 any one of them, to collect his part of the demand. Field vs. The 
 Mayor of Nevi York, 2 Seld., 179. And such an assignment of a 
 share in an unsettled estate avails to pass an interest, then unknown to 
 the assignor. Couch vs. Pelaplaine, 2 Oomst., 397. But, in a suit by 
 an assignee of part of an entire demand actually due, all the other 
 part assignees who remain unpaid should be made parties. Cooh vs., 
 The Genesee Muinial Insurance Company, 8 How., 514. 
 
 Mere delivery, without endorsement or assignment, of a non-negoti- 
 able note for the contingent payment of money, is sufficient transfer to 
 give the transferee a right to sue. Loftus vs. Clarh, 1 Hilt., 310. 
 A redelivery or surrender of the assignment by the assignee to the 
 
158 OF PA11TI?:S TO AN ACTIOST. § 32. 
 
 assignor, accepted by the latter, divests the former of his title. Ball 
 vs. larhin, 3 E. D. Smith, 565. 
 
 A conditional agreement between the assignor and assignee to share 
 the debt, if collected, does not make the former a necessary party, 
 where the assignment is absolute on its face. Durgin vs. Ireland, 4 
 Kern., 322. 
 
 But in Lewando vs. Dunham, 1 Hilton, 114, where an assignihent 
 was made to one party, another being entitled to share in the proceeds, 
 it was held that both should have been joined. 
 
 A mere lien on property, retained by the assignor, is not assignable. 
 Wing vs. Griffin, 1 E. D. Smith, 162. Neither is a mere inchoate right 
 of dower. Moore vs. Ths Mayor of New York, 4 Seld., 110. Nor is 
 a claim on a policy on which loss, if any, is made payable to the mort- 
 gagee, assignable by the mortgagor. Ripley, vs. The Astor Insurance 
 Company, 17 How., 444. 
 
 A claim to recover back money paid on a bet, is assignable. Meech 
 vs. Stoner, 19 IST. T., 26 ; overmling Weylv/rn vs. White, 22 Barb., 82. 
 See, also, Hendrickson vs. Besrs, 6 Bosw., 639. 
 
 A balance due on an unsettled account is assignable, and the assignee 
 may sue in his own name. Allen vs. SmAth, 16 N. Y., 415. 
 
 Sheriff's fees actually earned, are assignable, but not those to be earned 
 thereafter. Bi/rUeoh\'B. Stafford, 23 How., 236 ; 14 Abb., 285. 
 
 Where a partner assigned all his interest in the partnership property, 
 held, that a debt due from himself to the firm did not pass. Van Scoter 
 vs. LefferU, 11 Barb., 140. 
 
 The owner of property, and his assignee for the benefit of creditors, 
 were held to be properly joined as coplaintiffs, in a suit to have a prior 
 judgment against the former cancelled. Monroe vs. Delavan, 26 
 Barb., 16. 
 
 An assignee for creditors cannot delegate his trust, and an assign- 
 ment by him to a third party to collect will be void, unless executed by 
 every creditor. Small vs. Ludlow, 1 Hilt., 189. 
 
 An action will be properly brought in the name of a trustee for 
 creditors, so long as the assignment to him remains in force, though, 
 if attacked, it may be voidable. Ogden vs. Prentiss, 33 Barb., 160 ; 
 and cases cited, p. 163. 
 
 An assignee in trust for creditors does not stand in the position of a 
 purchaser, but merely takes 'the rights of his assignor, and cannot sue, 
 where the latter would be barred. Yan Reusen vs. Radcliff, 17 N.Y. 
 580. See, also, Maas vs. Goodman, 2 Hilt., 275. 
 
 Such an assignee is not primarily liable for rent, where the lease is 
 not specially assigned to him. He is entitled to an election, either to 
 
OF PAETIES TO AN AOTIOH". — § 32. 159 
 
 take or abandon the lease, witliin a reasonable time. BagUy vs. 
 Freeman^ 1 Hilton, 196 ; Joumeay vs. Braokley, 1 Hilt., 447. 
 
 An action for rent, payable under a covenant, lies in favor of the as- 
 signee of the lessor against the assignee of tlie lessee. Main vs. 
 Feathers, 21 Barb., 646 ; Main vs. Davis, 32 Barb., 461. 
 
 And such an assignee may maintain ejectment for its non-payment, 
 where the assignment to him Vas made prior to the disabling statute — 
 chapter 396 of 1860, p. 675. Main vs. Oreen, 32 Barb., 448 ; Same 
 case, 33 Barb., 136. 
 
 An action for breach of a covenant running with the land, is prop- 
 erly brought by an assignee or sub-assignee of the covenantee, owning 
 the land at the time the breach was committed. Beach vs. Barons, 
 13 Barb., 305. 
 
 An assignee, pendente lite, need not be made a party, and, if he 
 omits to seek to be brought in, he will be bound by the decree. Oleave- 
 land vs. Boerum, 23 Barb., 201 ; affirmed, 27 Barb., 262 ; 3 Abb., 
 294. See, also, ETrnnet vs. Bowen, 23 How., 300. 
 
 An a,ssignment of a satisfied claim is nuil, and confers no interest 
 whatever. Cochran vs. Sherman, 5 Duer, 13. So, also, is an assignment 
 by officers of a company, of its choses in action, made without authority of 
 the directors. Hoyt vs. Thompson, 1 Seld., 320. 
 
 An assignee of a claim for which an extension and the acceptance of 
 notes.for the amoiint have been fraudulently obtained, has all the rights 
 of an assignor, and may sue on the original consideration, surrendering 
 the notes. French vs. White, 5 Duer, 2'54. 
 
 An assignment by a defendant of a judgment in replevin, confers a 
 right upon the assignee to sue upon the undertakings given on the tak- 
 ing of the property, in his own name. Bowdoin vs. Coleman, 6 Duer, 
 182 ; 3 Abb., 431. 
 
 The benefit of a contract to make an annual payment to two parties, 
 or the survivor, if demanded, is assignable by that survivor. Prindle 
 vs. Carruthers, 15 JST. Y., 425. Vide note, p. 430. 
 
 The assignee of a policy on the assignor's own life, may recover on 
 the death of such assignor, without reference to the amount of consider- 
 ation paid by him. St. John vs. The America/n Mutual Life Insurance 
 Company, 3 Kern., 31. 
 
 'Hoy is it material that the assignee of a valid life insurance has him- 
 self no interest in the life insured. Yalton vs. National Loam, Fund 
 Life Assurance Company, 20 IST. T., 32 (38). 
 
 A claim on a policy after loss is absolute, and assignable, without the 
 consent of the insiirers, notwithstanding the usual prohibitory clause. 
 The restriction is upon assignment of the risk, not on a transfer of the 
 debt, when arisen. Mellen vs. The Hamilton Fire Insurance Company, 
 
160 OF PARTIES TO AN AOTIOX § 32. 
 
 17 N. T.,' 609 ; 5 Duer, 101 ; Goit vs. The National Protection Inmjir 
 ranee Corwpamy, 25 Barb., 189'. 
 
 A restricted view as to the power of an equitable assignee to sne in 
 his own name upon a common-law cause of action, is taken by Selden^ 
 J., in ITie Merchants' Mutual Insurance CorrvpoMy of Buffalo vs. 
 Eaton, 11 L. O., 140; 5 Duer, 101. There must, to sustain an action 
 in that form, be an assignment in fact ; a mere equity or contract for 
 an assignment im,futuro is not sufficient. In such a case the court will 
 still permit an action in the name of .the legal, for the benefit of the 
 equitable owner, and will protect the latter's interest. 
 
 A claim of stockholders against a company, to be refunded the 
 amount of subscriptions paid in by them for a purpose which has 
 failed, arises ex contractu, and is assignable. Pecltham vs. Smith, 9 
 How., 436. 
 
 "Where an assignment of a claim in blank is delivered to a purchaser, 
 he may fill in another name, and the substituted party will be an as- 
 signee, within the meaning of the Code. An account may be assigned 
 by parol, and a mere delivary with intent to transfer is sufiicient. Wal- 
 dron vs. Baker, 4 E. D. Smith, 440. . 
 
 As to assignment of claim for valtie of property wrongfully taken, or 
 damages arising out of a wrongful act, see the next subdivision. 
 
 As to the assignee of a chose in action, holding it; when assigned, 
 subject to all equities existent at the time of the assignment, as ex- 
 pressly provided by section 112, see Maas vs. Goodmian, 2 Hilt., 275, 
 and cases there cited ; McCready vs. Bumsey, 21 How., 271 ; Mecham^ 
 ics" BamJc vs. N'ew York omd New Haven Bail/road Company, 3 Kern.. 
 599 (629). 
 
 But this does not confer any such right upon a creditor whose set- 
 ofi" has accrued subsequent to the assignment. Ogden vs. Prentiss, 33 
 Barb., 160. 
 
 When the claim of the plaintiif is assigned absolutely pendente lite, 
 the court, on motion of the defendant, may, it has been held, order the 
 complaint to be dismissed, unless the assignee be duly substituted of 
 record. Sherman vs. Ooma.n, 22 How., 517'. 
 
 See, however, per coni/ra, Emmet vs. Bowen, 23 How., 300, holding 
 that, under such circumstances, the suit should, under section 121 be con- 
 tinued in the name of the original plaintiff, unless the transferee applies 
 to be substituted. 
 
 (m.) Assignee in Tokt. 
 
 The phraseology of section 111 has given rise to considerable discus- 
 sion as to what may, or may not, be considered a thing in action not 
 arising out of contract, coming within the prohibition which it contains 
 
OF pAkties to an action. — § 32. 161 
 
 and a liberal view as to its interpretation has, on the whole, been taken 
 by the coiirts. 
 
 The distinction may be broadly drawn thus : "Whera the right of 
 action is for a personal injury, or for personal damage, imconnected 
 with the possession of or right to property, the claim is personal, and, 
 so long as it remains unliquidated, is not assignable. Any right of 
 action' in respect of a chattel wrongfully taken, lost, or detained, or lor 
 the value of that chattel, including that to recover damages for its con- 
 version, though technically sounding in tort, and also any cause of 
 action arising from the non-performance of a contract, are, on the con- 
 trary, all of them assignable, arid the assignee may sue in his own name, 
 notwithstanding the provision alluded to. " 
 
 A claim for unliquidated damages in respect of a breach of a contract 
 for employment, was held assignable, and to be properly prosecuted in 
 the name of the assignee, in Monahan vs. Story, 2 E. D. Smith, 393j 
 So also for breach of covenant by a landlord, to allow certain privileges. 
 Munson vs. Riley, ibid., 130. So likewise on breach 6i a special con- 
 tract for- delivery of merchandise. Dana vs. Fiedler, 1 E. D. Smith, 
 463 ; affirmed, 2 Kern., 40. 
 
 The purchaser of personal property in the wrongful possession of a 
 tkird party, may, after a demand, maintain in his own name an action 
 in the nature of trover for its illegal detention. McGxiin vs. Warden, 3 " 
 E. D. Smith, 355 ; Hall vs. Bohinson, 2 Comst., 293 ; Kellogg vs. 
 Church, 3 C. K., 53 ; Cass vs. The New YorTc and New Haven Rail- 
 road Company, 1 E. D. Smith, 522 ; Robinson vs. Weelcs, 1 C. E. Qs. 
 S.), 311 ; 6 How., 161 ; Van Hassell vs. Borden, 1 Hilt., 128.^ And 
 such a right of action will pass by a general assignment for creditors. 
 McKie vs. Jt^<^(i, 2 Kern., 622; Andrews vs. Durant, 18 N. T., 496; 
 Whittaker nz! Merrill, 30 Barb., 389. These cases overrule Thurman 
 vs. Wells, 18 Barb., 500. But a previous demand is, in such a case, 
 essential. Howell vs. Kroose, 4 E. D. Smith, 357 ; 2 Abb., 167 ; Sher- 
 man vs. Elder, 1 Hilt., 178. And, if the defendant has parted with the 
 chattel before the assignment, no action will lie against him. Duell vs. 
 Cudlifp, 1 Hilt., 166 ; Nash vs. Fredericks, 12 Abb., 147. 
 
 A claim against an innkeeper for money stolen from his guest, is. 
 assignable. Stanton vs. Leland, 4 E. D. Smith, 88. 
 
 A claim for damages for goods lost by a common carrier, is assigna- 
 ble. The test, in such cases, is laid down thus : In the event of the 
 death of the original claimant, would the cause of action pass to his 
 executors as assets, or, would it die with his person ? In the former 
 case the claim is assignable ; in the latter, not. Freeman vs. Newton, 
 3 E. D. Smith, 246. See People vs. Tioga Common Pleas, 19 Wend., 
 73. The same rule is laid down bv Paige, J. {obiter), in Hoyt -ws. 
 Vol. I.— 11 
 
162 OF PARTIES TO AN ACTION. — § 32. 
 
 Thompson, 1 Seld., 320 (347), in the following terms : " All choses in 
 action, embracing demands which are considered as matters of property 
 or estate, are inow assignable, either at law or in equity. Nothing is 
 excluded but mere personal torts which die with the person." See aa 
 to tlie same test, Zabrishie vs. Smith, 3 Kern., 322 ; Butler vs. The 
 New York and Erie Railroad Company, 22 Barb., 110. 
 
 A cause of action against a common carrier for negligence in not 
 delivering goods, is also held assignable, in Smith vs. The New York 
 amd New Haven RaMroad Company, 16 How., 277 ; 28 Barb., 605 ; 
 Waldron vs. Willard, 17 IST. Y., 466 ; Eoy vs. The Troy am,d Boston 
 RoAVroad Company, 24 Barb., 382. These cases are founded on the 
 doctrine laid down in McKie vs. Judd, and overrule Thurhian vs. 
 Wells, above cited. 
 
 A claim for damages to personal property is, on the same principles, 
 assignable. Butler vs. The New York am,d Erie Railroad Company, 
 22 Barb., 110. 
 
 A factor, responsible for goods consigned to him, may maintain an ac- 
 tion for their conversion. Gorum vs. Carey, 1 Abb., 285 ; and so may 
 a forwarding merchant, who has made advances on goods consigned to 
 him for transport to the ultimate consignees. Fitzhugh vs. Wiman, 5 
 Seld., 559 ; or a consignee for sale who has made advances. AdamiS 
 vs. Bissell, 28 Barb., 382. 
 
 Although a cause of action for damages for a mere fraud may not be 
 assignable, yet a claim for reimbursement of moneys so obtained'is so, 
 and may be sued in the name of the assignee. Sheldon vs. Wood, 2 
 Bosw., 267. 
 
 So likewise as to a claim for reimbursement of moneys lent, on refusal 
 by the borrower to indorse a note agreed to be taken in lieu of a former 
 one surrendered. Westcott vs. Keeler, 4 Bosw., 564. ' 
 
 As to the assignment of a judgment recovered on a cause of action 
 sounding in tort, see King vs. Kirby, 28 Barb., 49. 
 
 An owner of goods may maintain trover for their detention, though 
 under contract to sell to a third person, provided he still retains the 
 right to their possession. Mimeskeimer vs. Heine, 4 E. D. Smith, 65. 
 . The interest of one of the next of kin of a party killed by a wrongful 
 act, in damages to be recovered under the statute of 1847, is capable of 
 assignment. Quin vs. Moore, 15 IST. Y., 432. See also other cases be- 
 low cited. 
 
 Proceeding from the consideration of causes of action arisiiag out of a 
 wrong, which are assignable, to those which are not, the rule of '■^ Actio 
 personalis moritur cum persona^'' affords, as above stated, the true test. 
 
 An action for damages for a false representation of the solvency of a 
 vendee of merchandise, falls within the exception in section 111, and is not 
 
OF PARTIES TO AN ACTION. — § 32. 163 
 
 assignable. ZabnsJcie vs; Smith, 3 Kern., 322 ; Jlyslop vs. Bcmdall, 11 
 How., 97; 4 Duer, 660. So also as to an action to set aside a judgment 
 and agreement, on the ground of fraud. Borst vs. Baldwin, 17 How., 
 285 ; 8 Abb., 351 ; 30 Barb., 180. 
 
 An action for damages for injuries to tbe property, rights, or interests of 
 another, as distinguished from mere personal torts, survives to or against 
 the representatives of both parties (2 R. S., 448, § 1, 2) ; and in Haight 
 vs. H&yt, 19 ]Sr. Y., 464 this riglit was held to extend to an action against 
 the vendor of land, for fraudulent representations as to an incumbrance. 
 
 A right of action to cancel a contract on the ground of usury, is 
 merely personal, and incapable of assignment. BougTiton vs. Smith, 26 
 Barb., 635. 
 
 And such an action is still maintainable by the mortgagor, notwith- 
 standing an assignment by him of the fee of the mortgaged premises to 
 a trustee for creditors. Strong vs. Strickland, 32 Barb., 284. 
 
 So likewise, the right to set aside a deed on the ground of fraud, is 
 personal, and incapable of assignment. McMahon vs. Allen, 34 Barb., 
 66 ; 12 Abb., 275. 
 
 ISTor is a right of action for damages for a mere personal tort assigna- 
 ble, as for injury from a collision ; Hodgman vs. West&rn Railroad Cor- 
 poration, 7 How., 492 ; Picrple vs. The Hudson Rimer Railroad Com- 
 pany, 1 Abb., 33; 4 Duer, 74; or, for slander; If ash vs. Hamilton, 3 
 Abb., 35. See also principle generally stated in McKie vs. Jvdd, 2 
 Kern., 622 (635); B idler vs,. The New York and Erie Railroad Com- 
 pany, 22 Barb., 110 (112) ; Robinson vs. Wells, 6 How., 161 (164) ; 1 
 C. K (N. S.) ; 311 (312). 
 
 But, in an action under the statute by the representatives of a person 
 killed by accident, the share of one of the next of kin Js assignable. 
 Quin vs. Moore, 15 N. Y., 432. Of course such a cause of action cannot 
 fall under the rule above noticed, as it does not arise until after, and as 
 the consequence of, the death of the person injured. 
 
 In Norton vs. Wiswall, 14 How., 42, it was held that, as regards the 
 defendant in such a case, the action is personal, and, if he dies during 
 the litigation, does not survive as against his representatives. In Boedt 
 vs. Wiswall, 15 How., 128, the contrary conclusion is come to, and it 
 was held that the representatives were liable ; and this decision, having 
 been affirmed at general term {vide p. 145), necessarily overrules that 
 in Norton vs. Wiswall. The same conclusion is repeated by the gen- 
 eral term of the same district in Yertm^e vs. Wiswall, 16 How., 8, on 
 the ground that the suit is in fact brought for the enforcement of a statu- 
 tory right of property. 
 
 An action for a wrongful entry in lands is personal, and does not sur- 
 vivt or continue. See dicta in Moseley vs. The Albany Northern Rail- 
 
164 OF PARTIES TO AK ACTION.— § 33. 
 
 road Company, 14 How., 71 (74) ; Puinam ys. Ycm Bur en, 1 How., 
 31 (32). ITor does a right of entry for breach of a condition subsequent, 
 jpass by assignment or conveyance of the premises held subject to the 
 condition. Nicoll vs. New York and Erie Railroad Gomfany, 2 
 Kern., 121. 
 
 § 33. Representatives amd Trustees. 
 
 By section 111, a right to sue in their own names, without joinder of 
 those ultimately interested in the result, is given to the following parties, 
 entitled '■'■En autre droit:" 
 
 1. Executors or administrators. 
 
 2. Trustees of an express trust. 
 
 3. Persons expressly authorized by statute. 
 
 It is proposed to consider these three classes severally in their order. 
 
 (1.) Executors ok Administkatoks. 
 
 An executor or administrator may sue on a note made or indorsed to 
 him, either as adininistrator, or in his own right. Bright vs. Currie, 
 5 Sandf., 433 ; 10 L. O., 104 ; Merritt vs. Seamam, 2 Seld., 168 ; Eagle 
 vs. Eox, 8 Abb., 40 ; 28 Barb., 473. 
 
 An administrator may sue in trover, for conversion during the intes- 
 tate's lifetime. Sheldon vs. Eoy, 11 How., 11. 
 
 The personal representatives of a deceased lessee for lives, have an 
 estate in the land, and, being entitled to possession, may maintain 
 ejectment. Mosher vs. Yost, 33 Barb., 277. 
 
 A personal representative cannot maintain an action for rents, not 
 actually due at the time of the decease of his testator or intestate. 
 They belong to the heir, as incident to the reversion. Eay vs. JlaUoram, 
 35 Barb., 295. 
 
 An administrator ad collige^idum is competent to sue for and recover 
 personal estate of the decedent, until his authority is superseded ; and 
 so is an administrator de honis non, when appointed. McMahon vs. 
 Allen, 4 E. D. Smith, 319. 
 
 An executor may sue his co-executor for payment of a debt he owes 
 to the estate. Wurts vs. Jenkins, 11 Barb., 546. A person named as 
 executor, but who has not qualified, may also bring suit agaijist his co- 
 executor, to establish a right against the estate. Hunter vs. Hunter 
 19 Barb., 631. ' 
 
 The administrator of afeme covert cannot sue for injury to her in her 
 lifetime. The right of action is vested in the husband only, as such. 
 Lynch vs. Dcmis, 12 How., 323. 
 
 An action under the statute is maintainable by the administrator of a 
 party killed by an accident, in any case in which the injured party h*m- 
 
OF PAETIE8 TO AH" ACTION. — § 33.' 165 
 
 self could have prosecuted, and may be brought by the administrator 
 of an infant. Oldfield vs. The New York and Harlem Railroad Com- 
 pany, 3 E. D. Smith, 103 ; affirmed, 4 Kern., 310 ; Quin vs. Moore, 15 
 N. T., 432. The fact that the deceased left a widow, or next of kin, is, 
 however, essential to a recovery, and therefore must be averred. 8af- 
 fordv&. Drew, 3 Duer, 627; 12 L. 0., 150; Green y?,. The Hudson 
 River Mail/road Company, 31 Barb., 260; 16 How., 263; Liooas-vs. The 
 New York Central Railroad Company, 21 Barb., 245. But it is not ne- 
 cessary to aver that the deceased left both. Oldfield Yt,. The New York 
 and Harlem Railroad Company, 4 Kern., 310. ISTor is it necessary to 
 aver that such widow or next of kin were dependent upon the deceased 
 for their support. The action is in the nature of pne for injury to prop- 
 erty, for the benefit of any parties interested in either capacity. Dick- 
 ens vs. The New York Central Railroad Company, 28 Barb., 41. 
 
 In Beach vs. T%e Bay State Company, 2Y Barb., 248 ;*16 How., 1 ; 
 6 Abb., 415, it is laid down that, where jurisdiction has been otherwise 
 acquired, this form of action is maintainable in respect of death occa- 
 sioned by an accident occurring out of the state. In Ya/iideventer vs. 
 The New York and New Haven Railroad Company, 27 Barb., 244 ; 
 6 Abb., 239, the direct contrary of this proposition is maintained. 
 BeOjch vs. The Bay State Company, has since been reversed (18 How., 
 335) ; 30 Barb., 433 ; and in Whitford vs. The Panama Railroad 
 Compa/ny, 3 Bosw., 67, it is also maintained that, under these circum- 
 stances, the courts have no jurisdiction. 
 
 The following decisions may be noted with reference to actions against 
 representatives : — 
 
 Such an action, when brought against an executor for wi'ongful pay- 
 ment of a legacy, is properly brought against him only, without join- 
 der of the wrongful recipient. Oleason vs. Thayer, 24 Barb., 82. But, 
 in an action against him to compel payment of a disputed bequest, all 
 parties whose rights may be aifected by the decision should be joined. 
 Trustees of the Theological Seminary of Auburn vs. Kellogg, 16 
 N. T., 83. 
 
 In actions brought by or against executors, it is not necessary to join 
 those as parties to whom letters testamentary have not been issued, and 
 who have not qualified. Chap. 149 of 1838 ; 2 E. S., 133, § 3. See 
 Brownson vs. Giford, 8 How., 389 (396). Moore vs. Willett, 2 Hilt. 
 522. But all who have qualified must be joined. Scranton vs. T'ar- 
 rrieri and Mechanics'' Bank of Rochester, 33 Barb., 527. 
 
 In respect to the joinder of the executors of a deceased partner, or 
 joint and several contractors, see under preceding clauses of this section. 
 
 A cause of action for an injury to the property, rights or interests 
 of another, as distinguished from a mere personal tort, survives to and 
 
166 OP PARTIES TO AN ACTION. § 33. 
 
 against the representatives of both parties. 2 R. S., 448, § 1, 2. See 
 Eaight vs. Eayt, 19 N. Y., 464. 
 
 A foreign administratrix, having brought property of the intestate 
 to this state, is suable here in respect of it. GuUch vs. GuUck, 33 
 Barb., 92 ; 21 How., 22. 
 
 2. Tbustees of Express Teust. 
 
 The exact extent and meaning of this term, as employed in the sec- 
 tion now under consideration, has given rise to much discussion, 
 especially previous to the explanatory amendment of 1851. 
 
 The following haTe been held to be trustees within the meaning of 
 the section, and are therefore competent to sue in their own names : 
 
 A mercantile factor, contracting in his own name, on behalf of his 
 principal. Grinnell vs. Schmidt, 2 Sandf., T06 ; 3 C. R., 19 ; 8 L. 0., 197. 
 An agent, "contracting as agent, without disclosing the name of his 
 principal, Morgan vs. Reid, T Abb., 215 ; but, in this case, it is com- 
 petent for the principal himself to sue at his election. Vide Ericlcson 
 vs. Compton, 6 liow., 471, and other cases before cited in last section 
 under head of Principal and Agent. 
 
 An auctioneer selling goods in his own name. Bogart vs. O' Regan, 
 1 E. D. Smith, 590 ; Minturn vs. Main, 3 Seld., 220. 
 
 The managing owner of a vessel, both generally, and as regards the 
 equitable interest of the intended purchaser of a share. Ward vs. 
 Whitney, 3 Sandf., 399 (403) ; affirmed, 4 Seld., 442. 
 
 A contractor for the benefit of third parties, as in the case of a 
 theatrical agent, entitled to transfer the services of an engaged com- 
 pany, and claiming payment "on their behalf. Rowland ys. Phale7i,l 
 Bosw., 43. 
 
 The outgoing trustees of an association, suing upon a promissory 
 note made payable, by name, to them or to their successors. J)ama 
 Ys. Qarr, 2 Seld., 124. 
 
 An agent for a foreign principal, suing upon a note taken in his own 
 name. Considerant vs. Brisbane, 22 IS". Y., 389. 
 
 The general agent of a foreign incorporated association, authoriz ed 
 to sue as such. Habicht vs. Pemlertan, 4 Sandf., 657. 
 
 The officer of a foreign bank similarly authorized. Myers vs. 
 Machado, 6 Duer, 678 ; 14 How., 149 ; 6 Abb., 198. 
 
 An officer of a foreign government, authorized by statute to sue for 
 government property in his own name. Peeil vs. Elliott, 16 How., 
 483 ; 7 Abb., 433. , 
 
 An ambassador or public officer representing such a government. 
 Vide The Repvhlio of Mexico vs. Arrangois, 11 How., 1 (4, per Hoff- 
 man, J.) ; 5 Duer, 634. 
 
OF PARTIES TO AN ACTIOK. — § 33. 16*7 
 
 An assignee of a policy of life insurance, in trust for the widow and 
 children of the deceased. St. John vs. The American Mutual Life 
 hxsurance Company., 2 Duer, 419 ; 12 L. 0., 265; affirmed, 3 Kern., 31. 
 
 A trustee for creditors. Mellen vs. The Ea/milton Fire Insurance 
 Company, 6 Duer, 101 ; affirmed, 17 IST. Y., ,609 ; Lewis vs. Crraham, 
 4r Abb., 106. And this, whether his trust is general, or only special, 
 for himself and other individual creditors. Flei$her vs. Derrickson, 
 3 Bosw., 181. And, where his trust is general, it is sufficient to join 
 him only as defendant, in a suit to set aside the assignment. Bank of 
 British North America vs. Suydam, 6 How., 379 ; 1 C. B- (N". S.), 
 . 325 ; Scudder vs. Voorhis, 5 Sandf , 271. He represents his cestui que . 
 trusts under these circumstances. 
 
 And it is competent for such a trustee to sue individually, as holder 
 of a promissory note, part of the trust estate, if he so elect. Butter- 
 field vs. Macomber, 22 How., 150. 
 
 A trustee of this nature may sue, though the assignment under which 
 he claims be voidable, if impeached. Ogden vs. Prentiss, 33 Barb., 
 160. See also other cases cited in last section. 
 
 It has been also held that a trustee, suing or being sued in partition, 
 represents cestui que trusts not then in being, and that they will be 
 bound by the decree. Head vs. Mitchell, 5 Abb., 92. 
 
 A widow, guardian in socage, has been held to be the proper plaintiff 
 in a suit for rents due to infant heirs, or for use and occupation of their 
 land. Sylvester vs. Balston, 31 Barb., 286. 
 
 The president or treasurer of an incorporated association, consisting 
 of not less than seven persons, may sue as such, pursuant to statute. 
 TiUetts vs. Blood, 21 Barb., 650. 
 
 The nominal proprietor of an individual bank may also sue, as 
 trustee, without joining his co-proprietors. Burhank vs. Beach, 15 
 Barb., 326. 
 
 A suit may be brought in the name of the sheriff, for the benefit of 
 one of his deputies. Stillwell vs. Hurlhert, 18 N". Y., 374. 
 
 The deputy himself cannot maintain such an action. TeTwilliger vs. 
 Wheeler, 35 Barb., 620. 
 
 A suit for the benefit of others may be brought in tlie name of the 
 people, as trustees of an express trust, in any case where a bond is 
 taken to them, for the benefit of individuals. So held, as to the bond 
 of a trustee substituted by order of the Court of Chancery. Ths People 
 vs. Norton, 5 Seld., 176. (See generally Bos vs. Seaman, 2. C. K., 1.) 
 Or on an administration bond merely directed to be prosecuted. Tlie 
 People vs. Laws, 3 Abb., 450 ; affirmed, 4 Abb., 292. But otherwise, 
 when such a bond has been actually assigned. Baggott vs. Bovlger, 2 
 Dner, 160 ; and see this subject, before discussed, under section 32. 
 
168 OF PARTIES TO AK ACTIOF. § 33. 
 
 And the people were held to be properly made plaintiiBFs, in a siut to 
 compel the trustees of a bank to contribute to the safety-fund. The 
 People vs. ^¥allcer, 21 Barb., 630. 
 
 In a suit for a public injury, the attorney-general, as representing the 
 whole community, is the proper party to sue. Korff vs. Green, 16 How., 
 140; Y Abb., 108, note; Roosevelt vs. Draper, 16 How., 137; 7 Abb., 
 108, and opinion o:5(iIarris, J., in same case, 7 Abb., 124. See likewise 
 affirmance, Boosevdt vs. Draper, 23 N. Y., 318. See also People vs. 
 Mayor of New YorTc, 19 How., 155 ; 10 Abb., 144; People vs. Albany 
 wnd Vermont Railroad Company, 19 How., 523 ; 11 Abb., 136. 
 
 The same officer is also the proper plaintiff', in a suit to compel the 
 due administration of a public charity. Female Association of New 
 York vs. Beehmxim, 21 Barb., 565. 
 
 The mayor and coi-poration, when obligees on a constable's bond, 
 are the proper plaintiff's, in a suit brought upon it for the benefit of a 
 party aggrieved. Mayor, dac, of New York vs. Doody, 4 Abb., 127. 
 
 In a suit against a third party in respect of trust 'property, the trus- 
 tee is,, in all cases, the proper plaintiff. Fernale Association of New 
 York vs. Beekman, 21 Barb., 565 ; and the only proper defendant in a 
 suit by a third party brought in respect of trust property. Keteltas vs. 
 Penfold, 4 E. D. Smith, 122. 
 
 ■ One trustee cannot sue another, while he remains such, for a breach 
 of trust. The cestui que trust is the proper plaintiff in such cases. 
 Trustees of Methodist Episcopal Church in Pultney vs. Stewart, 27 
 Barb., 553 ; Female Association of New York vs. Beekman, 21 Barb., 
 565. 
 
 A partner cannot sue as trustee for his copartners. Secor vs. Keller, 
 4 Duer, 416. 
 
 The committee of a lunatic has been held to stand in the character 
 of trustee, and to be entitled to sue, to set aside a warrant of attorney 
 executed by the lunatic, while such. Person vs. Wa')Ten, 14 Barb., 488. 
 See also Griswold vs. Miller, 15 Barb., 520. 
 
 In relation to the power of trustees in insolvency, to sue as such, 
 vide 2 E. S., 41, § 7. 
 
 The title of a foreign assignee in bankruptcy to sue in respect of 
 property in this state, was refused to be recognized in Mosselman vs. 
 Caen, 34 Barb., m ; 21 How., 248 
 
 This doctrine is, however, unsustainable, in eases where there exists 
 no conflict between foreign and domestic creditors. The rio-ht of a 
 party standing in the position of a foreign receiver or assignee, to sue 
 as such, seems to be clearly established. See Rcn/t vs. Thompson, 1 Seld., 
 320 (341) ; RumJc vs. St. John, 29 Barb!, 585. 
 
OF PARTIES TO AN ACTION. — § 33. 169 
 
 » 
 
 3. Peesons atjthoeized by Statute. 
 (a.) Committees. 
 
 Bj' 2 E. S., 53, section Y, and section 2 of chapter 112 of 1845, re- 
 ceivers and committees of lunatics and liabitual drunkards, duly ap- 
 pointed, may sue in "their own names for any debt, claim, or demand 
 transferred to them, or to the possession and control of which they are 
 entitled, as such ; and, by section 134 of the Code, subdivision 3, pro- 
 vision is made for the service of process upon them in a suit against a 
 person, judicially declared of unsound mind. 
 
 The committee of an habitual drunkard may sue as such, in his own 
 name, on a note given to the party whom he represents {Davis vs. 
 CarjpenUr, 12 How., 28Y) ; but the declarations of that party, prior to 
 his being declared such, are admissible in evidence. 
 
 The committee, as trustee of an express trust, may sue to set aside 
 a warrant of attorney, or deed, executed by the lunatic while such. 
 Person vs. Warren., 14 Barb., 488 ; Griswold vs. Miller, 15 Barb., 520. 
 See, likewise, as to a motion to set aside a judgment imfairly obtained 
 against him, Demelt vs. Leonard, 19 How., 140 ; 11 Abb., 252. 
 
 But, by the appointment of a committee, the lunatic loses- none of his 
 rights ; and all suits concerning his property, must still be brought in 
 his own name, except those in which the committee, is authorized 
 to sue by statute. McKillip vs. McKilUp, 8 Barb., 552. 
 
 ISTor can the committee enforce or adopt the lunatic's contract made 
 during lunacy. Fitzhugh vs. Wilcox, 12 Barb., 235. 
 
 To sue a lunatic after appointment of a committee, without leave of 
 the court, is a contempt ; and, on application, proceedings may be 
 restrained ; but a judgment so obtained, will not be ipsofaxito void, and 
 will not be set aside, where no real defence is shown. Sternbergh vs. 
 Schoolcraft, 2 Barb., 153. Nor can an action be maintained by the 
 committee to recover the value of property sold, under execution issued 
 on a judgment so obtained. Grippen vs. Culver, 13 Barb., 424. 
 
 As to the power of the guardian or committee of an infant lunatic to 
 
 apply to the court for the appointment of a guardian ad litem, in a suit 
 
 for partition, to wHch such infant lunatic is a party. Vide Rogers ys. 
 
 McLeam, 11 Abb., 440 ; reversing same case, 31 Barb., 304 ; 10 Abb., 
 
 306. , . 
 
 (5.) Public Officers. 
 
 The authority of the attorney-general to sue in respect of an injury 
 done, or a liability incurred to the public, and of the mayor and corpo- 
 ration in respect of a constable's bond, in their characters of trustees of 
 an express trust, has been already considered, and the cases cited. 
 
170 OF PAETIES TO AN ACTION. § 33, 
 
 The following officers are expressly authorized to sue in their own 
 names, with the addition of their narae of office, showing, by proper 
 averment, that they do not sue individually : Commissioners of High- 
 ways. Gould vs. Glass, 19 Barb., 179 ; Fowler vs. MoU, 19 Barb., 
 204. The Master "Warden of the port of New York, in a suit for a 
 penalty under the statute of 1830. The People vs. Deming, 13 How., 
 441 ; 1 Hilt, 271. The Comptroller, in a suitto foreclose a mortgage, 
 assigned to him by a bank, to secure redemption of its notes. Flagg 
 vs. Munger, 2 Kern., 483. Overseer of the Poor, in a suit under a filia- 
 tion bond, for payment for support of a bastard child. Hoagland vs. 
 Hudson, 8 How., 343. The Board of Commissioners of Excise, in an 
 action for a penalty under the liquor law. The Board of Commission- 
 ers of Excise of Saratoga County vs. Doherty, 16 How., 46. And the 
 names of the individual commissioners should not be inserted. Pomroy 
 vs. Sperry, 16 How., 211 ; Hall vs. Benson, 18 How., 303. In an ac- 
 tion against the Board of Supervisors, it is in like manner. erroneous to 
 name the individuals. Ilill vs. Board of Supervisors of Livingston, 
 County, 2 Kern., 52 (63), per Allen, J. See, also, Wild vs. Supervisors 
 of Columhia County, 9 How., 315. 
 
 A suit may be continued by a public officer, after the expiration of 
 his office, until his successor be duly substituted. Manchester vs. Har- 
 rington, 6 Seld., 164. 
 
 (c.) Officers of the Court. 
 
 A sheriff may sue as such in his own name, or in the name of the 
 defendant, to recover property in the hands of a third party, levied 
 upon by him under an attachment (Code, section 232) ; and may also 
 prosecute bonds taken by him in the course of the proceedings under 
 that remedy, section 237, subdivision 4. 
 
 Receivers may sue or be sued in their own names, in respect of prop- 
 erty comprised within the limits of their receivership ; but, before a re- 
 ceiver can sue or defend, the leave of the court should be obtained. 
 
 Special authority to sue is conferred upon receivers in supplementary 
 proceedings, by the Code, section 299 ; see, likewise, rule 92 of the 
 Supreme Court ; and also on receivers or trustees of insolvent or dis- 
 solved corporations, nominated by the court, by 2 R. S., 464 section 41 
 and 2 R. S., 469, section 68. See also chapter 71 of 1852, in connection 
 with 2 R. S., 463, section 36 ; and likewise chapter 224 of 1854, and 
 chapter 348 -of 1858. 
 
 The same power is given to trustees in cases of insolvency. 2 R. S., 
 41, section 7. 
 
 As to the right of the sequestrator of an incorporated company to 
 sue as such, see Brinton vs. Wood, 19 How., 162. 
 
OF PARTIES XO AN ACTION. — § 34. lYl 
 
 § 34. Sushamd and Wife. 
 
 Though inherently simple, considerable difficulty has arisen in the 
 ■working of section 114, partly from the nature of the subject itself, and 
 partly from the changes from time to time made by the legislature. 
 
 The question as to the necessity of the wife, when suing, being repre- 
 sented by a next friend, was much discussed, during the period between 
 the original enactment of the Code and the amendment of 1851, pre- 
 scribing that course. It was decided that she might sue without one, 
 in a suit for limited divorce, in Ti;ppel vs. Tippel, 4 How., 346 ; 3 0. E., 
 40 ; Newman vs. Newman, 3 C. E., 183 ; 8hoi-e vs. Shore, 2 Sandf., 715 ; 
 S L. O., 166 (reported as Anon., 3 C. E., 18). See also White vs. White, 
 
 5 Barb., 474 ; 4 How., 102. It was held, on the contrary, that she 
 could not so sue, in Gait vs. Ooit, 4 How., 232 ; 2 0. E., 94 ; affirmed, 
 
 6 How., 68 ; 3 0. E., 23, and Forrest vs. Forrest, 3 0. E., 254. The 
 amendment of 1851 set the question at rest, in favor of the latter view. 
 
 The necessity of her being represented by a next friend, in cases 
 where she sued or was sued alone, between 1851 and 1857, was clear on 
 the face of the enactment itself, and is maintained in Willis vs. Under- 
 hill, 6 How., 396-; Heller vs. Reller, 6 How., 194; 1 C. E. (N. S.), 
 309 ', Meldora vs. Meldora, 4 Sandt., 721 ; Henderson vs. Easton, 8 
 How., 201 ; Towner vs. Towner, 7 How., 387 (in which case it was also 
 held, that no regular order for his appointment was necessary). See 
 also Thomas vs. Thomas, 18 Barb., 149 ; 12 L. 0., 274 ; Phillips vs. 
 Burr, 4 Duer, 113 ; Bergman vs. Howell, 3 Abb., 329, 330. 
 • But, even under the Code of 1851, it was not necessary that a next 
 friend should be appointed for the wife, when her husband was joined 
 with her as co-plaintiff. Woods vs. Thompson, 11 How., 184. 
 
 Since the amendment of 1857, the- appointment of a next friend for 
 the wife is dispensed with in every case. Ooodall vs. MoAdam, 14 
 How., 385. 
 
 Whatever might have been the doubts as to whether a married 
 woman might or might not appear by attorney, whilst it was necessary 
 that she should be represented by a next friend, there seems no doubt 
 but that, since 1857, it is competent for her to do so ; and such M^as 
 probably the case before. Vide 2 E. S., 276, section 11. See also 
 Phillips vs. Burr, 4 Duer, 113 (114, 115) ; Bergman vs. Howell, 3 
 Abb., 130 (131). 
 
 In a suit not concerning her separate property, it is not even neces- 
 sary that a guardian should be appointed for the wife, if an infant. 
 Her husband represents her. Cook vs. Rawdon, 6 How., 233 ; 1 0. E. 
 (N. S.), 382 ; Rulh&rt vs. Newell, 4 How., 93. 
 
172 OF PARTIES TO AN ACTION. § 34. 
 
 {a.) JoiNDEE AS Plaintiffs. 
 
 The question as to whether, in a suit concerning the wife's separate 
 property, the husband may or may not be joined with her as co-plaintiff, 
 has given rise to much difference of opinion. 
 
 It is clear, by the words of the statute itself, that she. may, if she 
 chooses, sue alone, without joining her husband. In Brownson vs. 
 Gifford, 8 How., 389, it was laid down, that to make the husband co- 
 plaintiff with the wife in a suit for partition of her separate estate, was . 
 a misjoinder. 
 
 In Howland vs. The Fort Edward Paper Mill Company, 8 How., 505, 
 it was held that the non-joinder of the husband, as plaintiff, in a suit 
 for a note, part of the wife's separate estate, was no ground of demur- 
 rer. See also, /Spies,vs. The Accessory Transit Company, 5 Duer, 662. 
 In Sherma/ii vs. Burnham; 6 Barb., 403, it is decided that the husband 
 cannot be joined as co-plaintiff with the wife, in a suit by her against 
 the trustees of her separate estate. And in Smith vs. Kea/rney, 9 How., 
 466, that, in a suit to recover her separate property, her husband can- 
 not even act as her next friend, or be joined as co-plaintiff. Nor can 
 he sue with her, in a suit for the conversion of her separate property. 
 AcMcy vs. Tarbox, 29 Barb., 512. 
 
 In Yan Buren vs. CocMurn, 2 C. E., 63, it was held, on the con- 
 trary, to be optional with a married woman, whether the action in such 
 a case should be in her own name, as sole plaintiff, or in the joint 
 names of herself and lier husband. The game conclusion is supported 
 in Woods vs. Thompson, 11 How., 184; and Rusher vs. Morris,^ 
 How., 266. And in Ingraham, vs. Baldwin, 12 Barb., 9, it was de-« 
 cided that, in ejectment for the wife's estate, the husband was properly 
 joined as plaintiff, as tenant by the courtesy initiate. This judgment is 
 affirmed, in same case, 5 Seld., 4a; but the opinion in the court above 
 does not touch on this particular point. In Rowland vs. The Fort 
 Edwa/rd Paper Mill Company, 8 How., 505, it was also considered 
 that, in a suit concerning a note, part of the wife's separate estate, the 
 husband ought to be joined, either as plaintiff or defendant. 
 
 It is impossible entirely to reconcile these decisions on all points. 
 
 It seems clear, however, from all, that the non-joinder of the husband 
 is no ground of demurrer. It is competent for the wife, if she so elect, 
 to sue alone. The better course will, perhaps, be for her to do so, and 
 the weight of authority seems to incline in that direction. As to her 
 power to put in a separate answer, when defendant, see SaHey vs. 
 Bitter, 9 Abb., 400. 
 
 But, if there exists any interest in the husband in the matter in. con- 
 troversy, it seems equally clear that he ought to be joined in all cases. 
 
OF PASTIES TO AN ACTION. — § 34. 173 
 
 If sucli interest be coincident with, or derivative from that of the wife, 
 several of the above cases, and Ingraham vs. Baldwin^ in particular, 
 authorize bis being joined as co-plaintiff ; but if it be in any wise di- 
 verse from, or capable of being brought into conflict with hers, to make 
 him a defendant will be the proper course. 
 
 The propriety of so joining the husband is laid down in Howlcmd vs. 
 Th& Fort Edward Paper Mill Company, and Sherman vs. Burnham, 
 above cited. If he claims any interest in the subject, or if a complete 
 determination of the controversy cannot be made without him, he must 
 be made a defendant. Hillman vs. Hillman, 14 How., 456. 
 
 In a suit for partition of the husband's property, the wife, as inchoate 
 doweress, should be joined as co-plaintiff. Hippie vs. GiTborn, 8 How., 
 456. This agrees with the Line of reasoning in Ingraham vs. BaldAJoin, 
 above referred to. In an action for rent of the wife's estate, under a 
 lease executed by both, both were held to be properly joined as plaintiffs. 
 Jacques vs. Short, 20 Barb., 269. In Avogadro vs. Bull, 4 E. D. 
 Smith, 384, it was considered, obiter, that oii a contract for the wife's 
 services, it was optional for the husband either to sue alone, or to join 
 her as co-plaintiff. In Bunderdale vs. Grymes, 16 How., 195, it Avas 
 held, on the contrary, that where the cause of action, though on a con- 
 tract made in terms with the wife, was, in effect, the property of the 
 husband, or arose on trespass on property not distinctly alleged to be 
 the wife's separate estate, it was a misjoinder to associate her with him 
 as co-plaintiff, and this is a direct decision on the point. 
 
 When husband and wife sue jointly in ejectment, they must recover 
 jointly or not at all. An act on the part of the husband alone, debarring 
 himself only, will be fatal to the joint action. Barton y&. Draper, 5 
 Duer, 130. And so also, in tort brought by both, as plaintiffs. Several 
 judgmente cannot be rendered in respect of the same injury. Bunder- 
 dale vs. Grymes, 16 How., 195. 
 
 In an action for words spoken of the wife, which are slanderous jper se, 
 both must be joined as plaintiffs. "When the words are actionable only 
 by reason, of special damage, the husband may sue alone. Klein vs. 
 Rents, 2 Dner, 633 ; Williams vs. Hbldredge, 22 Barb., 396. See, on 
 this subject, Wilson vs. Goit, 17 JST. Y., 442. 
 
 Since the statute of 1860, chapter 90, p. 157, section 7, an action for 
 assault and battery committed upon the wife is maintainable by her 
 alone, and the husband cannot be joined as a co-plaintiff. Mann vs. 
 Marsh, 35 Barb., 68 ; 21 How., 372. " See also, Weiher vs. Moritz, 11 
 Abb., 113. 
 
 In the following cases, the right of the wife to sue alone, in suits con- 
 cerning her separate property, clear indeed upon the face of the statute 
 itself, is established by decision. 
 
174 OF PAETIES TO AN ACTION'. — § 34. 
 
 In ejectments for ouster from part of her separate estate. Darby vs. 
 Callaqhan, 16 N. T., 71. For fraudulent representations, inducing a 
 sale of such estate for a worthless consideration. Newbery vs. Garland, 
 31 Barb., 121. 
 
 For recovery of her separate chattels. Spies vs. Accessory Transit 
 Company, 6 Duer, 662 ; Ackley vs. Tarlox, 29 Barb., 512. For dam- 
 age thereto. Roberts vs. Carlton, 18 How., 416. 
 
 On a note, part of her separate property. Howland vs. Fort Edward 
 Paper Mill Company, 8 How., 505 ; Smart vs. Coinstock, 24 Barb., 
 411. Or on a note indorsed and delivered to her, and not proceeding 
 from her husband. Dillage vs. Parks, 31 Barb., 132. For a loan 
 made by her to a firm of which her husband was a member. Devin 
 vs. Devin, IT How., 514. And, see generally, Willis vs. Underhill, 
 6 How., 396. 
 
 ■ But it is equally clear, on the face of the section itself, that, in all 
 cases in'which the wife is not authorized by statute to sue or be sued 
 separately, her husband must be joined with her. 
 
 And, where the wife had ostensibly paid over money, acting, in fact, 
 as the mere agent of the husband, it was held that a suit for its repay- 
 ment would lie in his name only, and could not be brought in hers. 
 £rower vs. Vandenburgh, 31 Barb., 648. 
 
 (5.) JoiNDEE AS Defendants. 
 
 In an action of foreclosure for a mortgage of the wife's separate 
 estate, in which the husband had joined, it was held that both were 
 properly made defendants. Conde vs. Shepard, 4 How., 75 ; 2 C. E., 
 58. And, in a suit for foreclosure on the husband's mortgage for pur- 
 chase money, the wife, though not dowable as against the mortgage, 
 must be joined, as interested in the equity of redemption. MiUs vs. Van 
 Voorhies, 20 IST. Y., 412 ; 10 Abb., 152. 
 
 The husband will, it has been held, be properly joined as defendant, 
 in a suit in which he is or may be claimed to be personally liable, 
 though the direct object be to charge the wife's separate estate. ' Smith 
 vs. Scribner, 12 How., 501 ; Phillips vs. Hagadorn, 12 How., 17 ; 
 Colvin vs. Currier, 22 Barb., 371 (386) ; Goelet vs. Gori, 31 Barb.' 
 314. And it was held, that though a married woman might sue, she 
 could not be sued alone, in matters concerning her separate property. 
 Sexton vs. Fleet, 2 Hilt., 477 ; 15 How., 106 ; 6 Abb., 8. See, how- 
 ever, Palen vs. Lent, 5 Bosw., -713, holding that an attempt to unite 
 in the same complaint, a personal demand against the husband, and a 
 claim to change the wife's separate property, was a misjoinder, though 
 otherwise he might have been made a party. 
 
 And, under chapter 576 of 1853, p. 1067, an action for the ante- 
 
'of parties to an action.— § 34. 175 
 
 nuptial debts of the wife might be brought against both, though only 
 her separate property was bound. 
 
 But, since the statute of 1860, the wife may be sued alone in such 
 matters, section Y. " 
 
 And it will be no longer necessary to make the husband a party, 
 unless special relief is sought against him. Vide Taylor vs. Olenwy, 
 22 How., 240. 
 
 Where, in an action brought on the joint bond of husband and 
 wife, the complaint prayed judgment against the wife's estate only, 
 without showing that -the debt was incurred for the beneiit of that 
 estate, it was held bad upon demurrer. Goodall vs. McAdam, 14 
 How., 385. See also Yale vs. Dederer, 18 N. T., 265 ; 17 How., 165; 
 reversing 21 Barb., 286. Likewise, same case, 22 E". Y., 450 ; 20 
 How., 242 ; reversing 31 Barb., 525 ; 19 How., 146. 
 
 In an action for a tort committed by the wife, it is proper to join 
 both, though the husband was not present or assisting. Matthews vs. 
 Festel, 2 E. D. Smith, 90. But before trover can be maintained, for 
 goods -wrongfully taken, under such circumstances, a demand made upon 
 the husband must be proved. Gurney vs. Kenny, 2 E. D. Smith, 182. 
 
 In an action for necessaries furnished to the wife during coverture, it 
 is not proper to join her as defendant. Her husband alone is liable. 
 Main vs. Stephens, 4 E. D. Smith, 86. 
 
 If, in an action properly brought against both husband and wife, it 
 appear upon the trial that a case is made out against one only, separate 
 relief may be given by the judgment. Marquat vs. Marqxiat, 2 Kern., 
 336 ; reversing same case, Y How., 417. , Or a separate judgment may be 
 entered on a tort proved against one, but not against the other. Wag- 
 ner vs. Bill, 19 Barb., 321. 
 
 And, where husband and wife, sued in the same action, have separate 
 interests, she must verify her answer separately. Youngs vs. Seely, 12 
 How., 395. 
 
 Where, however, she was a mere nominal party, it was held, that on 
 service of process on the husband only, he might, and was bound to put 
 in a joint appearance and answer. Eckerson vs. Vollmer, 11 How., 42. 
 
 An action is maintainable a.gainst both husband and wife jointly, for 
 debts of the latter, contracted before marriage ; but the execution on any 
 judgment therein is only to issue against, and such judgment only avails 
 to bind the separate estate of the wife, and not that of the husband. Any 
 husband acquiring any portion of his wife's separate property, is liable 
 for such debts, but only to the extent of the property so acquired. 
 Laws of 18S3, ch. 576, p. 1057. 
 
 In Berley vs. Ranvpaeher, 6 Duer, 183, it is held, that this statute is 
 incapable of being construed so as to give it a retrospective eifect, and 
 
176 OF PAETIES TO AN ACTION. § 34. 
 
 r 
 
 that a personal judgment shonld properly be entered against both de- 
 fendants, in an action for the wife's debt, where the marriage ^nd the 
 debt were both contracted before its passage. This overrul&s Foote vs. 
 Morris^ 12 L. 0., 61, holding the contrary conclusion. 
 
 (c.) Sund/ry Decisions. 
 
 It would be incompatible with the plan and objects of the present 
 work to enter into any full detail as to the law of husband and wife, or' 
 to pretend to feite all the various decisions bearing upon the changes in 
 that law, effected by the different statutes passed since 1848, under 
 which the old common-law rights of the husband are abolished, and all 
 property acquired by the wife is now held by her as her separate estate. 
 It may not, however, be inapplicable to notice some few of those de- 
 cisions, which have a bearing, more or less direct, upon the subject now 
 under qonsideration. 
 
 The acts having this operation are as follows : chapter 200 of 1848 ; 
 chapter 375 of 1849, p. 528 ; chapter 90 of 1860, p. 167 ; chapter 172 
 of 1862, p. 343. A radical change is also made in the whole system by 
 the amendments in sections 274 and 287 of the Code, under which a 
 personal judgment may now be taken against a married woman, in the 
 same manner as against other persons, but to be levied and collected 
 out of her separate estate, and not otherwise. 
 
 These last amendments seem in particular to have effected a substan- 
 tial abolition of the former distinctions between a feme covert and a 
 feme sole, as regards the assertion of legal remedies by or against 
 her. 
 
 By chapter 576 of 1853, p. 1057, a remedy was also given against the 
 wife's separate estate, in .respect of her debts contracted before mar- 
 riage, and the husband exonerated from personal liability, except 
 where he shall have acquired property of the wife, to the extent of that 
 property. 
 
 By section 2 of the act of 1848, its operation was sought to be ren- 
 dered retrospective. This portion of it has, however, been held to be 
 clearly unconstitutional, and tliat its operation and that of the amended 
 statutes extends only to marriages contracted since the former year, and 
 to no other. See Westervelt vs. Gregg, 2 Kern., 202 ; Wright vs. Sad- 
 dler, 20 IST. T., 320; Rider vs. Hulse, 33 Barb., 264; Smyder vs. 
 Snyder, 3 Barb., 621; White vs. White, 5 Barb., 474; 4 How., 102- 
 Rolmes vs. Holmes, 4 Barb., 295 ; Hurd vs. Cass, 9 Barb., 366 ; Smith 
 vs. GoMn, 17 Barb., 157. By these decisions. Sleight vs. Bead, 9 
 How., 278 ; affirmed, 18 Barb., 159, is clearly, so far, overruled. 
 
 But by the last cited case, and by Blood vs. Humphrey, 17 Barb., 
 660, it is held, that the section in question is not unconstitirtional, but 
 
OF PARTIES TO AN ACTION.— § 34. 177 
 
 IS, on the contrary, still operative, so far as regards property acquired 
 by a wife, after the passage of the statute of 1848, though her marriage 
 was antecedent to that statute; and this holding does not seem to be 
 impeached by that in Westervelt vs. Cfregg, above referred to. 
 
 The statutes in question do not operate to take away the husband's 
 rights to administer to, and to take as his own, the property of the de- 
 ceased wife, where she dies intestate. Her right to dispose of her prop- 
 erty is personal only, and, if not exercised by her deed or -will, that 
 right is exhausted, and the former law resumes its operation. Shum- 
 way vs. Cooper, 16 Barb., 556 ; YalUnce vs. Bausoh, 28 Barb., 633 ; 
 17 How., 243 ; 8 Abb., 368 ; McCosher vs. Goldmg, 1 Bradf., 64. See 
 likewise, Westervelt vs. Oregg, above cited ; and Ecmsom vs. Nichols, 
 22 ]Sr. T., 110, finally settling the question. 
 
 Considerable controversy arose, prior to the statute of 1860, as to 
 whether tenancy by the courtesy was or was not abolished by the pre- 
 vious enactments. The affirmative is maintained in BiUmgsvs. Baker, 
 28 Barb., 343 ; 15 How., 625 ; 6 Abb., 213. See also head-note to 
 Thurber vs. Townsend, 22 IST. Y., 517. The negative is asserted in Surd 
 vs. Cass, 9 Barb., 366 ; Clarh vs. Clarh, 24 Barb., 581 ; Vallance vs. 
 Bausch, 28 Barb., 633 (642) ; 17 How., 243 ; 8 Abb., 368 ; Smith vs. 
 Golmin, 17 Barb., 157. 
 
 Provision was made for the rights of a surviving husband by the 
 statute of 1860, sections 10 and 11. But, inasmuch as by the statute of 
 1862, section 2, these very sections are repealed, the conflict of author- 
 ity upon the subject seems to be revived. 
 
 The acts of 1860 and 1862, above referred to, have effected a com- 
 plete revolution in regard to the rights and liabihties of a feine covert, 
 and the mode of their enforcement, respectively. 
 
 By section 1 of the former, not merely is the possession of her separate 
 property, and of such as may devolve upon her, secured to her absor 
 lutely, withoul; interference on the part of her husband, or his credit- 
 ors ; but she is also entitled to the same rights in any which she may 
 acquire by her trade, business, labor, or services, carried on or per- 
 formed on her sole and separate account. Full powers to carry such 
 trade, business, &c., on are given, and full protection with regard to 
 her earnings insured to her by section 2. Whilst under section 8, a 
 more than implied power is given to her, to enter into necessary con- 
 tracts for such purposes, whilst the husband is, on the .other hand, 
 exonerated from any liability in respect to such contracts. 
 
 And not merely so, but, under section 7, a married woman may now 
 sue and be sued in the same manner as a feme sole, in all matters re- 
 lating to her properlljr, person, or character ; whilst, by the last amend- 
 ments in sections 274 and 287, of the Code, and section 5, of the act of 
 Vol. I— 12 
 
178 OF PAETIES TO AN ACTION. — § 34. 
 
 1862, the former difficulties in the way of entering up judgment, and 
 issuing execution against her property, are removed. 
 
 These radical and sweeping changes neutralize almost entirely the 
 difficulties that were felt upon the subject, whilst it remained under the 
 operation of the statutes of 1848 and 1849, and render it unnecessary 
 to insert more than a cursory notice of most ,of the decisions made, 
 pending that operation. 
 
 Those decisions established conclusively the principle that, pending 
 the operation of those statutes, the incapacity of the wife to make a 
 strictly personal contract still subsisted, and that there existed no power 
 in the courts to render a personal judgment against her. See Ghaprtian 
 vs. Lemman, 11 How., 235 ; Erwvn vs. Downs, 15 N. Y., 5T5 ; Wotkyn^ 
 vs. Abrahams, 14 How., 191; PhilUps vs. Hagadorn, 12 How., 17; 
 Cobine vs. St. John, 12 How., 333 ; Coon vs. Brooks, 21 Barb., 546 ; 
 Williams vs. Carroll, 2 Hilt., 438 ; Morgan vs. Andriot, 2 Hilt., 431 ; 
 18 How., 2T1 ; Andriot vs. Lavn^ence, 33 Barb., 142 ; Sexton vs. Fleet, 
 2 Hilt., 4T7; 15 How., 106 ; 6 Abb., 8 ; Switzer vs. Valentine, 4 Duer, 
 96 ; 10 How., 109. See also RouilUer vs. Wernicke, 3 E. D. Smith, 310 ; 
 Yale vs. Dederer, 18 N. Y., 265 ; 17 Plow., 165 ; reversing same case, 
 21 Barb., 286 ; SaTne case, 22 K. Y., 450 ; 20 How., 242 ; reversing 
 same, 31 Barb., 525 ; 19 How., 146 ; Ba/rton vs. Beer, 21 How., 309 ; 
 35 Barb., 78. And the principle was even extended to the case of a new 
 promise by a widow, to pay a debt incurred during coverture, Gould- 
 ing vs. Damson, 28 Barb., 438 ; Watkins vs. Halstead, 2 Sandf., 311. 
 
 The above class of cases clearly overruled, pro tanto. Walker vs. 
 Swaysee, 3 Abb., 136, and Sexton vs. Flest, 2 Hilt., 477 ; 15 How., 
 106; 6 Abb., 8. 
 
 It was likewise held under those statutes, that the wife could not 
 earry on a separate business without the husband's assent, and that, in 
 such case, or in any case in which he was interested in the profits, 
 property thus acquired by her was liable for his debts. See Freeman 
 vs. Orser, 5 Duer, 476 ; Sherman vs.. Elder, 1 Hilt., 178 ; Same case, 1 
 Hilt., 476 ; Marsh vs. Rojppock, 3 Bosw., 478 ; Switzer vs. Valentine, 
 4 Duer, 96 ; 10 How., 109 ; Bass vs. Bean, 16 How., 93 ; CoUne vs. 
 St. John, 12 How., 333 ; Lovett vs. RoUnson, 7 How., 105 ; Oates vs. 
 Brower, 5 Seld., 205 ; Glarm vs. Tounglove, 27 Barb., 480 ; Cropaey 
 vs. McKinney, 30 Barb., 47. 
 
 But, where the husband did nothing for the wife's support, her rights 
 were maintained, in Burger vs. White, 2 Bosw., 92, and Van Ellen vs. 
 Carrier, 29 Barb., 644. See also Cheeseborough vs. Rouse, 5 Duer, 125. 
 
 And debts of the wife, of this nature, were held enforceable as against 
 the husband, in Smith vs. SilUmam,, 11 How., 368 ; ' Switzer vs. Valen^ 
 tme, 4 Duer, 96 ; 10 How., 109 ; Cropsey vs. McKimney, 30 Barb., 47 
 
OF PARTIES TO AN ACTION.-^§ 34. 179 
 
 (5Y) ; Lovett vs. Robinson^ 7 How., 105 ; 6'^<3;!!es vs. Brow&r, 5 Seld., 205 ; 
 <?^(fe«, vs. Prentice, 33 Barb., 160. 
 
 And, althougli the statute of 1860 exonerates the husband from liabil- 
 ity for the wife's debts in such a case, he still remains liable for a pen- 
 alty incurred in and about her separate business. Commissioners of 
 Excise vs. Keller, 20 How., 280. 
 
 But in a suit upon a note signed by the wife only, in respect of a 
 joint business carried on by her and the husband, the latter was held 
 not to be liable. Palen vs. Lent, 5 Bosw., Y13. So also where he 
 joined in a mortgage upon the wife's separate property, merely to per- 
 fect the title. Moore vs. Moore, 21 How., 211. 
 
 But under the previous, as under the present statute, it was always 
 competent for the wife to bind her separate estate, by a contract exe- 
 cuted by her, knowingly, and with that express and declared intention, 
 ■ or in a matter from which benefit resulted to the property itself ; and a 
 debt incurred by her, from which such a benefit directly accrued, was, in 
 like manner, held enforceable. Only, prior to the amendments in the 
 Code of the present year (1862), such a charge or liability could only 
 be enforced by a proceeding -m rem, and not as a persbnal debt of the 
 wife. See Cheeseborough vs. House, 5 Duer, 125 ; Firemen^s Insurance 
 Company of Albany vs. Bay, 4 Barb., 407; aflirmed, 4 Comst., 9; 
 Hauptman vs. CatUn, 20 IST. Y., 247; afiirming same case, 3 E. D.' 
 Smith, 666 ; 4 Abb., 472. See also previous decision, 1 E. D. Smith, 
 729 ; Berry vs. Wiesse, 2 E. D. Smitli, 662, note ; Dickerman vs. Abra- 
 Jmms, 21 Barb., 551 ; Colvin vs. Currier, 22 Barb., 371 ; In re the 
 Recijyrocity Bank, 17 How., 323. See also same case, 22 N. Y., 1. 
 
 In Yale vs. Dederer, above cited, it has been twice laid down by the 
 Court of Appeals, that the note of a married woman, given as surety 
 for her husband's debt, is not enforceable against her estate, and that 
 even a parol expression of her intention to charge her property with the 
 amount will not suffice. In order to effect such a charge, the intention 
 to do so must be declared in the very contract which is the foundation 
 of the chargfe, or the consideration must be obtained for the direct ben- 
 efit of the estate itself. See second decision, 22 N. Y., 450 ; 20 Ilow., 
 242. See this same view anticipated, in Bass vs. Bean, 16 How., 93 ; 
 and followed in Owen vs. Cawley, 22 How., 10 ; 13 Abb., 13, and An- 
 driot vs. Lawrence, 33 Barb.j 142. The last decision in Yale vs. De- 
 derer, clearly overrules the view taken in Francis vs. Boss, 17 How., 561. 
 
 A debt expressly agreed to be paid out of the separate estate, and 
 incurred by the wife for her own benefit, was held so enforceable, in 
 OJiapman vs. Lemmon, 11 How., 235. See also, as to her express obli- 
 gation, Arnold vs. Bingold, 16 How., 158; Smith vs. Scribner, 12 
 How., 501. 
 
180 OF PARTIES TO AN ACTION. § 34. 
 
 A specific appropriation of property by the wife, for payment of the 
 debt of the hnsband, was held revocable by her at any time, notwith- 
 standing that an advance had been made upon the faith of it. Isaacs 
 vs. Oorham, 1 Hilt., 4T9. 
 
 Since the statute of 1860, the following decisions have been miado 
 with respect to the rights and liabilities of parties under it. 
 
 The liability of a, feme covert in respect of goods purchased by her ' 
 for the purposes of her separate business, was held to be identical with 
 that of 2k feme sole, both as regards the liability itself and the mode of 
 its enforcement, and this, even though she was not originally liable, the 
 goods having been purchased before the statute, but, after its passage, 
 had given a fresh note in renewal. Ba/rton vs. Be&r, 35 Barb., 78 ; 21 
 How., 309 ; Young vs. Oori, 13 Abb., 13, note. 
 
 The same is the case where she is sued upon a contract or liability, by 
 which a direct benefit has accrued to her or to her property. Taylor 
 vs. Olermy, 22 How., 240. 
 
 But she cannot now, any more than formerly, bind herself, by a con- 
 tract from which no benefit has proceeded to her. And/riot vs. Lofljo- 
 rence, 33 Barb.[ 142. 
 
 And as regards contracts wholly independent of her separate property, 
 the former disabilities 6f a feme covert remain in full force, and are 
 wholly unaffected by the recent legislation. See Nemlle vs. Neville. 
 22 How., 500. 
 
 The rights of a mortgagee in good faith, of the wife's separate prop- 
 erty, are fully maintained in Tollman vs. HoMxhurst, 4 Duer, 221. 
 
 The marriage of a female mortgagee with the mortgagor does not 
 merge the security, but it is still enforceable by her during coverture. 
 Power vs. Lester, 23 IST. Y., 527 ; affirming same case, 17 How., 413. 
 
 The statutes in question do not affect property held by the wife 
 jointly with the husband, as to which the law obtains as it did before. 
 Goelet vs. Gori, 31 Barb., 314. 
 
 A wife cannot be treated as agent of the husband, merely by virtue 
 of the relation between them. Her act will not bind him unless per- 
 formed in his name. Livingston vs. Sloessel, 3 Bosw., 19 ; Gahisha vs. 
 Hitchcock, 29 Barb., 193. 
 
 A married woman, suing in equity, is bound to do equity. Ehnore 
 vs. Thomas, 7 Abb., 70. See also, as to an infant, Darvin vs. HatfieU, 
 4 Sandf , 468. And the court will relieve against a fraud committed by 
 her. Mownt vs. Morton, 20 Barb., 123. Or indirectly, as by refusing 
 to open her default. Genet vs. Dusenhery, 2 Duer, 679 ; 11 L. O. 355. 
 It is held in Wmans vs. Peebles, 31 Barb., 371, that her conveyance 
 to her husband is valid in eqiuty, jf not at law. The contrary propo- 
 sition is maintained in White vs. Wager, 32 Barb. 250. 
 
01* PARTIES TO AIT ACTION. § 35. 181 
 
 § 35. Inf writs. 
 
 It will be seen that, under section 115, an infant can only sue or be 
 Bued by his guardian, being in substance the same rule as prevailed be- 
 fore the Code, in relation to infant defendants. The previous practice, 
 as to infant plaintifis, is changed, and an infant can no longer appear, 
 as previously, by his next triend, with the exceptions below noticed. 
 A guardian must be appointed in all cases. HoftaiUng vs. Teal, 11 
 How., 188. A judgment taken against an infant defendant, without 
 appointing a guardian ad litem, was, on similar grounds, set aside in 
 Kellogg vs. Klook, 2 C. E., 28. 
 
 But in special statutory proceedings, the natural guardian of an in- 
 fant may appear and present a petition as its next friend, without 
 special appointment by the court. Matter of Mary JatwWhitlook, S2 
 Barb., 48 ; 19 How., 380 ; 10 Abb., 316. 
 
 But, in such a proceeding, the interests of other infants, not made 
 parties to it, will not be bound, and the proceeding, as regards them, 
 wilt be void. Horsepool vs. Davis, 6 Bosw., 581. 
 
 The section in question, and that immediately succeeding, go on to 
 provide the made in which the guardian, representing the infant, shall 
 be appomted. This branch of the subject will be treated of in a subse- 
 quent chapter, in connection with the commencement of an action. 
 The present observations will be confined to a citation of the decisions 
 aiiecting the rights or liabilities of infants, strictly considered, without 
 reference to the mode iu which their representative, in an action relating 
 to such rights or liabilities, is chosen or authorized. 
 
 A suit commenced by an infant, without the appointment of a guar- 
 dian, is wholly irregular. Where, therefore, the complaint had been 
 verified and the summons issued, as of a date previous to the order 
 appointing a guardian ad litem, the service, though made the same day 
 as the order, was set aside. Hill vs. Thacter, 3 How., 407; 2 C. R., 3. 
 
 The same is the case as regards a suit in partition, Commenced by an 
 infant plaintiff, under the special statute of 1852, chapter 277. The 
 authority of the court must be obtained, and the next friend by whom, 
 in this class of cases, the infant is still represented, must be regu- 
 larly appointed and must give security. GlarJc vs. Ola/rk, 21 How., 
 479. 
 
 There is, however, one exception to the rule, that an infant must be so 
 represented, and that is in the ease of an infant feme covert, in an 
 action which does not concern her separate property', and to which, 
 therefore, she is merely a formal party. In such case, her husband repr 
 resents her, and no special appointment of a guardian will be necessary. 
 
182 OF pj\eties to an action. — § 35, 
 
 Cooh vs. EawcUm, 6 How., 233 ; 1 C. E. (N. S.), 382 ; Ilulbert vs. 
 Newell, 4 How., 93 ; Eokerson vs. Volhner, 11 How., 42. 
 
 An infant, previous to the Code, miglit join, by his next friend, in an 
 action for use and occupation of lands of which he was tenant in com- 
 mon, without regard to the fact that he had a general guardian. Por- 
 ter vs. BleileT", 17 Barb., 119. There can be no question but that the 
 same rule holds good under that measure, and that even when such is 
 the case, a guardian ad litem must be appointed. See section 116, sub- 
 division 1. 
 
 As a general rule, an infant is wholly incapable, durante inirioritate, 
 of making any contract or doing any act to his own prejudice, and has 
 full liberty of disaffirmance, either then, or on his coming of age. 
 
 He must, however, do equity in such a case, and will not be allowed 
 to disaffirm his executed contract, without restoring the consideration, 
 awd making good any deterioration occasioned by his use of the subject- 
 matter. Bartholomew vs. I^innemore, 17 Barb., 428. And in such a case, 
 not only will this be so, but the burden of proof of fraud, if alleged, will 
 rest upon the infant so suing. Gray vs. Bessington, 2 Bosw., 257. 
 
 And when, after coming of age, he brings an action to set aside a 
 deed executed by him during his minority, he must make an entry, or 
 otherwise openly disapprove his previous act, before he can maintain 
 such action. Voorhies vs. Voorhies, 24 Barb., 150. 
 
 His contracts are, however, valid until avoided by him, and his mere 
 subsequent conveyance will not have that effect. Palmer vs. Miller, 
 25 Barb., 399 ; Voorhies vs. Voorhies, sv/pra ; Dominich vs. Michael, 4 
 Sandf., 374. His infancy is a personal privilege, of which he only can 
 avail himself, and, in an action on a contract in which he has joined, he 
 must still be made a defendant. Slocum vs. Hooker, 13 Barb., 536 ; re- 
 vei-sing same ease, 12 Barb., 563 ; 6 How., 167; 10 L. O., 49. See also, 
 as to his privilege being personal, and his contracts voidable only, and 
 not void, Jones vs. Butter, 30 Barb., 641 ; 20 How., 189 ; Fox vs. Heath 
 21 How., 384. ' 
 
 His ratification, after coming of age, validates his deed, executed 
 wliilst a minor, as of the date of its original delivery, and affects all in- 
 termediate conveyances or sales, except for a new and valuable consid- 
 eration. Palmer vs. Miller, supra. 
 
 So also his promise to pay his note after coming of age will revive and 
 ratify it, and his liabihty will be complete, though such ratification has 
 been made upon a special contract, provided he fail in performance of 
 the terms of that contrct. Taft vs. Sergeant, 18 Barb. 320. 
 
 But, to enable the creditor to avail himself of such new promise, it 
 must possess the elements of a new contract, of whjch the old debt sup- 
 plies the consideration, A bare acknowledgment will not be sufficient. 
 
OF PAETIES TO AN ACTION. — § 35. 183 
 
 Hodges vs. Hunt., 22 Barb., 150; Waikiw y?,. Stevens,'^ Barb., 1C8 
 (1^5). 
 
 A general promise will, however, be sufficient to charge him, though 
 the amount be not specified. AehermariYB. Runyon, 1 Hilt., 169. 
 
 And, where a submission to arbitration had been made during his 
 minority, and the amount awarded had been paid at the time to his 
 guardian, and received by himself on coming of age, it was held that ■ 
 such a receipt was an affirmance of the submission, and a bar to a re- 
 newal of the claim. Jones vs. Phmnix Bank, 4 Seld., 228. It seems 
 too, that an omission to enforce the claim with due diligence, after the 
 attainment of his majority, would have the same effect. See same case, p. 
 236, and Delano vs. Blake, 11 Wend., 85, there cited. 
 
 But, as a general rule, an infant, or his guardian representing him, 
 can neither give a consent nor make a submission. A submission with- 
 out action, under section 372, of a controversy in which infants were in- 
 terested, was, accordingly, held void in Fisher \b. Stilson, 9 Abb., 33. 
 
 An infant, when plaintiff, is as much bound and as little privileged 
 as an adult, and, in such a case, affirmative relief will be granted to the 
 defendant where entitled to it. Darrin vs. Hatfield, 4 Sandf , 468. See 
 affirmance, Selden's notes, 30th Dec, 1852, p. 36. But, on this par- 
 ticular point the appellate court did not pass. See analogous decision, 
 as to liability of a, feme covert, Elmore vs. Tlwmas, 1 Abb., 70. 
 
 And, where an infant was interested in an estate liable for taxes, a 
 sale of a sufficient portion was ordered, Tinder chapter 327 of the laws of 
 1855, on the petition of the other parties interested. Norsworthy vs. 
 Bergh, 16 How., 315. 
 
 An infant cannot be estopped from pleading his infancy under any 
 circumstances, not even by his own declarations that he was of age at 
 the time he made a contract. Brown vs. MoGune, 4 Sandf., 224. 
 
 But, in the event of an unexpected defence of this nature being put 
 in the court may allow the plaintiff to discontinue against him without 
 costs, even at the trial. BuHer vs. Morris, 1 Bosw., 329. See Slocum 
 vs. Hooker, 13 Barb., 536 (541). 
 
 It follows from the general rule as to the incapacity of an infant to 
 contract, before stated, that an action for breach of his promise of mar- 
 riage cannot be maintained. Hamilton vs. Lomax, 26 Barb., 615 ; 6 
 Abb., 142. 
 
 But in an action against him for a wrong, he has no such privilege. 
 In a suit for conversion of, or injury to property, he stands in the same 
 positien as an adult, and his infancy is no defence. Fish vs. Ferris, 
 5 Ducr, 49 ; Conhling vs. Thompson, 29 Barb., 218. 
 
 An infant is equally bound as an adult by his voluntary appearance. 
 Where therefore a guardian ad litem, had been regularly appointed on 
 
184 OF PAETIE3 TO AN ACTION. — § 36. 
 
 the petition of the itifant defendant himself, he was held to be regularly 
 brought into court, though not served with the summons. Varian vs. 
 Stevens, 2 Duer, 635. ' 
 
 See also, as to the power of a guardian to represent minors in a parti- 
 tion suit, Althcmse vs. Jiudde, 3 Bosw., 410. Also, as to the extent 
 to which an infant lunatic will be bound by the appearance of a proper 
 person as his guardian ad litem. Rogers vs. MoLewn, 11 Abb., 440 ; 
 reversing suTne case, 31 Barb., 304 ; 10 Abb., 306. 
 
 When in court, the rights of an infant will be protected, whether 
 objection be taken on his part or not. The court is equally bound to 
 notice a defect, if any. Fleet vs. Dorland, 11 How., 489. 
 
 As to the extent to which an infant will be bound by a settlement 
 made on her marriage, vide Wetmore vs. Kissam, 3 Bosw., 321. Jones 
 vs. Butler, 20 How., 189 ; 30 Barb., 641. 
 
 As to the extent of liability of a parent for necessaries furnished to 
 his infant child, see Pooch vs. Miller, 1 Hilt., 108. 
 
 Where the shares of infants in an intestate's estate had been paid 
 over to their general guardian, an action to recover their proportion of 
 the deficiency, after foreclosure of the intestate's mortgage, was held to 
 be properly brought against them. Merchants^ Insurance Company 
 vs. Hinmam,, 34 Barb., 410 ; 13 Abb., 110. 
 
 § 36. Joinder of Plaintiffs. 
 
 The rule, as laid down in section 117, that all parties having an in- 
 terest in the subject of the action, or in the relief demanded, may be 
 joined as plaintiffs, is of general application, and, although permissively 
 worded, is, in cases where the action is for the assertion of a joint and 
 not of a several interest, substantially imperative, subject only to the 
 qualification in section 119, authorizing any party proper to be joined 
 as plaintiff, to be made a defendant, if his consent cannot be obtained. 
 
 The rule is the same now in all cases, whether the subject-matter of 
 the action be legal or equitable in its nature. Loomis vs. Brown, 16 
 Barb., 325. It was accordingly hold that, in an action on an injunction 
 liond, all the obligees might be joined as plaintiffs, notwithstanding a 
 difference in the nature and amount of their claims. 
 
 Where the action was brought by one of the harbor masters of New 
 York, for an accounting in respect of fees received by the defendant, 
 and belonging to all, it was held that all should have been joined. 
 Dean vs. GKamherlin, 6 Duer, 691. 
 
 In a suit by a devisee, for specific performance of the testator'fe con- 
 tract, for sale of lands, the executor of the deceased was held to be 
 a necessary party, and that he should have been joined as plaintiff. 
 Adams vs. Green, 84 Barb., 176. 
 
OF PARTIES TO AN ACTION. — § 36. 185 
 
 "Where, in an action brought by an assignee, it was proved that an- 
 other person was entitled to share in the proceeds, it was held that both 
 were necessary parties. Lewando vs. Dun/uim,'l Hilt., 114. 
 
 In an action upon an undertaking, all the promisees, or those who re- 
 present them, should be joined. Bowdoin vs. Oolman, 6 Duer, 182 ; 
 3 Abb., 341. 
 
 And, unless they are so numerous, as to fall within the purview of 
 that part of section 119 which authorizes a suit by one of a numerous 
 class, for the benefit of the whole, all should appear, by their individual 
 and real names. Kirk vs. Young, 2 Abb., 453. 
 
 A several action cannot be maintained hy one or more of several 
 owners of a vessel, for recovery of their individual shares. All must 
 be joined, either as plaintiffs, or as defendants, if recusant ; and, in the 
 latter case, the suit must be brought as in equity. Coster vs. The New 
 York and Erie Railroad Company, 6 Duer, 43 ; 3 Abb., 332 ; noticed, 
 5 Duer, 677. See also, Dennis vs. Kennedy, 19 Barb., 517. See like- 
 wise, Bucknam vs. Brett, 22 How., 233 ; 13 Abb., 119 ; 35 Barb., 596 ; 
 Bishop vs. Edmiston, 13 Abb., 346. So also as to charterers, who are 
 joint owners ^TO hoc vice. Shefman vs. Fream, 30 Barb., 478. 
 
 In an action by one of the harbor masters of the port of New York, for 
 his share of fees collected by another, being the property of the whole, 
 it was held that all should be joined. Dean vs. Ohamberlin, 6 Duer, 
 691. 
 
 Owners of different tenements affected by the same nuisance, were 
 held to be properly joined as co-plaintiffs in a suit for an injunction. 
 Peck vs. Elder, 3 Sandf., 126. So, also, as to owners of different lots 
 entitled to the benefit of the same covenant. Brovmer vs. Jones, 23 
 Barb., 153. 
 
 Different creditors in the same interest, were held to be properly 
 joined as co-plaintiffs, in a suit to enforce payment of their debts against 
 the property of a corporation which had made a lease, amounting to 
 an invalid assignment of its property. Conro vs. Fort Henry Iron 
 Company, 12 Barb., 27. 
 
 In Gere vs. Dibble, 17 How., 31, it was held that several judgment 
 creditors) were properly joined as co-plaintiffs, in an action in the na- 
 ture of a creditor's bill, and to set aside a mortgage, as fraudulent. 
 
 But though they may be so joined in an action of this nature, when 
 the relief sought is of an equitable description, they cannot thus unite 
 in an action at law, or take several judgments for damages, in a suit 
 brought by way of a creditor's bill, where no equitable property is 
 discovered. Sa^e vs. Mosher, 28 Barb., 287. Nor can one of the 
 creditors under a trust deed, sue the assignee for breach of trust, sever- 
 ally. Bishop vs. Houghton, 1 E. D. Smith, 5'66, 
 
186 OF PARTIES TO AN ACTION. § 36. 
 
 A simple contract creditor cannot maintain a several action of this 
 nature, to reach property of an insolvent firm. He cannot so sue, ex- 
 cept for the benefit of his class. Za Chaise vs. Lord, 10 How., 461 ; 
 1 Abb., 213 ; 4 E. D. Smith, 612 (n.) 
 
 But a judgment creditor, entitled to an equitable lien, need not sue 
 for his class, but may maintain a several action. Tallmadge vs. 8iU, 
 21 Barb., 34; Greene vs. Break, 32 Barb., Y3 ; reversing same case, 10 
 Abb., 42. 
 
 Assignor and assignee of real estate, w^ere held to be properly joined 
 as co-plaintiffs, in a suit to cancel a judgment prior to the assignment. 
 Monroe vs. Delavan, 26 Barb., 16. 
 
 The claimant to an office is properly joined with the attorney-gene- 
 ral, as co-plaintiff. See People vs. Byder, 16 Barb., 370 ; affirmed, 2 
 Kern., 433 ; and The People vs. Walker, 23 Barb., 304 ; before cited 
 under the head of public officers. 
 
 But, where the interests of parties are several, they cannot properly 
 be joined as co-plaintiffs. Thus held, with reference to the commission- 
 ers of two towns, suing together for a penalty for encroachment on a 
 highway running between them. Bradley vs. Blair, lY Barb., 480. 
 So also, as to parties contributing to an illegal bet, and suing to re- 
 cover it back, one contributor cannot sue for the whole fund. Ruck/mom, 
 vs. Pitcher, 13 Barb., 556. So, likewise, a joint action for libel cannot 
 be maintained by several members of an association, not being partners, 
 nor having a community of pecuniary interest. Giraud vs. Beach, 3 
 E. D. Smith, 337. Or by parties claiming to recover on ejectment, un- 
 der different titles, for different interests. People vs. Mayor of Nem 
 York, 10 Abb., 111. 
 
 On the same principle, a complaint containing separate counts, in 
 tlie name of separate plaintiffs, was held to be bad, on demurrer for 
 misjoinder, in St. John vs. Pierce, 22 Barb., 362. 
 
 In partition, a feme covert entitled to a share, as of her separate es- 
 tate, may, and ought to sue alone, without joining her husband. Brown- 
 son vs. Gljford, 8 How., 389. But, where the share is her husband's, 
 she should be joined as a co-plaintiff. Ripple vs. Gilborn, 8 How., 456. 
 
 And it has been held that a tenant-in-common of a vested remainder 
 may sue for partition, though his right to possession be postponed dur- 
 ing the continuance of a life estate ; and this, whether that intervening 
 estate is held as an entirety, or in common: so held by four judges of 
 the Court of Appeals. Blakeley vs. Colder, 17 IST. Y., 617 (629) ; 13 
 How., 476 ; but the majority not being prepared to adopt that conclu- 
 Bion, the decision was placed on another ground. 
 
 To maintain ejectment, the plaintiff must be out of possession. Tay- 
 lor vs. Cran-e, 15 How., 358. A married woman may maintain it for her 
 
OF PARTIES TO AN ACTION. § 37. 187 
 
 separate estate, without joining her husband. Darhy vs. Caliayhan, 
 16 N. Y., 71. But where the husband is tenant by the courtesy initi- 
 ate, it seems he may be joined witli her. Ingraham vs. Baldwin, (12 
 Barb., 9 ; affirmed generally, but this particular point not noticed in 
 the opinion, 5 Seld., 45. 
 
 In a suit by a mortgagor on a policy payable to the mortgagee, the 
 latter should be joined as plaintiif, or sue in his own name, or it should 
 be shown that his debt has been discharged. . Ennis vs. The Harmony 
 Fire Insurcmce Company, 3 Bosw., 516. 
 
 A stockholder induced to purchase stock by false representations of 
 the directors of a company,' may sue individually. Cazeaux vs. MalA, 
 25 Barb., 578 ; 15 How., 347. 
 
 Parties aggrieved in their private rights by the act of a public body, 
 cannot maintain an action for the general injury to the public. They 
 can only sue as regards their individual interest. See cases cited in 
 next section. 
 
 § 37. Suit hy One of a Class. 
 
 The provision of section 119, that, where the question is one of com- 
 mon or general interest, or where the parties are very numerous, and 
 it may be impracticable to bring them all before the court, one or more 
 may sue or defend for the benefit of the whole, is the next subject that 
 offers itself for consideration. It falls here in its natural order, as one 
 which, though couched in general terms, is more pecnliai'ly applicable 
 to the case of plaintiffs than to that of defendants in an action. 
 
 The mere number of parties interested does not, of necessity, bring 
 the case within the provisions of this section. So held, and a demurrer 
 to the complaint allowed, in a case where one of an association of thirty- 
 five persons had assumed to sue on behalf of the whole of the membei"s. 
 Kirk vs. Young, 2 Abb., 453. 
 
 The following have been held entitled to sue on behalf of themselves 
 and their class, under the provisions of this section : 
 
 Simple contract creditors of an insolvent firm. Za Chaise vs. Lord, 
 4 E. D. Smith, 612, note ; 10 How., 461 ; 1 Abb., 213. One or more 
 creditors of an insolvent corporation. Conro vs. Port Henry Iron Com- 
 pany, 12 Barb., 27 (58). One or more creditors suing an assignee for 
 their benefit, in respect of a breach of trust committed by him, and to 
 compel an account. Bishop vs. Houghton,. 1 E. D. Smith, 566. Cred- 
 itoi's seeking to impeach a trust assignment as void in part only. C(xs 
 vs. Piatt, 19 How, 121 ; 32 Barb., 126. 
 
 A judgment-creditor has, on the contrary, his option to sue by way 
 of fereditor's bill, either in his own name individually, or on behalf of 
 
188 OF PAEXIES TO AK ACTION. — § Si. ' 
 
 his class. Samviond vs. Hudson Jiwer Iron amd Machine Company, 
 20 Barb., 378. See also TaUmadge vs. Sill, 21 Barb., 34; Greene vs. 
 Brieh, 32 Barb., 73 ; reversing ^ame ease, 10 Abb., 42. 
 
 To enable a member of an incorporated association to sue in this 
 form, he must show, not merely that his associates are numerous, but 
 that the nature of their common interest is such as to enable them, if 
 brought before the court, to sue in their own right, or in their own 
 names. IlaMoht vs. Pemherton, i Sandf., 657. 
 
 An action is maintainable by a member of such an association, on 
 behalf of his class, the complaint being properly framed. And it may 
 be brought, as under the old practice, for the benefit of the whole, or 
 of those interested who shall come in and contribute to the expenses. 
 Dennis vs. Kenned/y, 19 Barb., 517. 
 
 The power so given to sue, is given from necessity, and to prevent a 
 failure of justice. The interest represented must therefore be of a com- 
 mon, and not of a several nature, or the suit will not be admissible. So 
 held, and a demurrer sustained to a bill filed by one of numerous parties 
 claiming to be aggrieved by an assessment made by a municipal cor- 
 poration, and seeking to avoid such assessment, and to restrain its col- 
 lection. Bouton vs. The Ciiy of Brooklyn, 15 Barb., 375; afiirming 
 sa/nie case, 7 How., 198. 
 
 So a party cannot be made defendant as representing a class, where 
 the interests of the individuals composing that class are diverse, and 
 their obligations and the rights of the plaintiff against them are not 
 common to all. Reid vs. The Evergreens, 21 How., 319. 
 
 But where an action was brought by the trustee of a company for 
 instructions, it was held that all its creditors need not be joined, where 
 they were numerous and unknown to the plaintiff. Coe vs. Beckwith, 
 31 Barb., 339 ; 19 How., 398 ; 10 Abb., 296. 
 
 In Shepard vs. Wood, 13 How., 47, and Wood vs. Draper, 24 Barb., 
 187, it was held, that an individual tax-payer might maintain an action 
 on behalf of himself and his class, to restrain the collection of a tax ille- 
 gally imposed, but not individually. The same principle, i. e., that an 
 individual tax-payer may, in this form, and acting on behalf of the 
 common interest, restrain the performance of a public act, alleged to 
 bfe illegal, has been maintained in a number of cases, as follows : viz. : 
 Ad/riance vs. The Mayor of New York, 1 Barb., 19 ; Brower vs. The 
 same, 3 Barb., 254; Christopher -vs. The same, 13 Barb., 567; Milhau vs. 
 Sharp, 15 Barb., 193 ; Same case, 17 Barb., 435 ; Stwyvesant vs. Pear- 
 sail, 15 Barb., 244; De Baum vs. The Mayor of New York, 16 Barb., 
 392 ; Wetmore vs. Story, 22 Barb., 414 ; 3 Abb., 262 ; Roosevelt vs 
 Draper, 12 How., 469 ; reversed, 16 How., 137 ; 7 Abb. 108. See 
 also Davis vs. The Mayor of New York, 1 Duer, 451. This last case 
 
Olf PARTIES TO AN ACTION. § 37. 189 
 
 is, however, reversed, 4 Kern., 506— and the whole of this class of cases 
 is disapproved by the Court of Appeals, and the rule laid down, that 
 under such circumstances, an individual, or individuals, cannot sue 
 merely as representing the common interest, and without showing a 
 private injury ; and that such a proceeding, if void, can only be redress- 
 ed at the suit of the state, or of some officer authorized to act on behalf 
 of the public. Doolittle vs. TJie Supervisors of Broome County, 18 
 N. Y., 155 ; 16 How, 512. See also Warwich vs. The Mayor of New 
 Tori, 16 How., 357; T Abb., 265; Smith vs. The Metropolitan Gas 
 Light Company, 12 How., 187 ; and Arhenburgh vs. The Mayor of 
 New Yorh, 23 Barb., 360. See likewise the same principles laid down 
 with reference to redress of an alleged public wrong, not violating pri- 
 vate rights of property, Smithva. Loakwood, 13 Barb., 209; 10 L. 0., 
 232. A private person can, however, bring such an action, provided 
 the question involves some peculiar damage to his individual interests. 
 In such a case he may maintain an injunction to restrain that damage ; 
 and so far, but no farther, part of the cases above referred to, are ap- 
 proved. Doolittle vs. The Supervisors of Broome County, 18 K. Y., 
 155 (163) ; 16 How., 512 ; Davis vs. The Mayor of New Zbr^, 4-Kern., 
 506. See also Wetmore vs. Story, 22 Barb., 414 ; 3 Abb., 262, above 
 cited ; Davis vs. The Mayor of New Yorh, 2 Duer, 663 ; Roosevelt vs. 
 Draper, 7 Abb., 108 ; 16 How., 137. 
 
 Nor can an individual maintain an action for the specific perform- 
 ance of a public duty imposed for the public benefit. Getty vs. The 
 Hudson Biver Railroad Company, 21 Barb., 617. 
 
 And, in a village or place where there is no municipal' corporation 
 to represent the public, an individual may sue on behalf of himself and 
 others similarly interested, to restrain the perversion of land dedicated 
 to public uses from the legitimate purposes of that dedication. Cady vs. 
 Conger, 19 K Y., 256. 
 
 In McKenzie vs. DAmmireux, 11 Barb. 516, it was held that when 
 the question is one of common or general interest, one or more may sue 
 for the benefit of that interest, without showing that the parties are 
 numerous, or that it will be impracticable to bring them all before the 
 court. The wording of the section is disjunctive, and the latter pro- 
 vision includes indiscriminately all actions, whether they involve ques- 
 tions of common interest or not. A part of the specific legatees under 
 a will were accordingly held to be entitled to maintain a suit on behalf 
 of all, for an accounting and a sale of the real estate, against the execu- 
 tor, and the legatees and devisees of the residue. 
 
 A suit for an injunction cannot be maintained by one only of several 
 parties interested in the same subject-matter. He must make all parties 
 or sue on their behalf. Smith vs. Loehwood, 1 C. K. (N. S.), %Vd ; 10 
 
190 OF PARTIES TO AN AOTION. § 38. 
 
 L. 0., 12. See subsequent decision, allowing demurrer in that partien- 
 lar case, 13 Barb., 209 ; 10 L. 0., 232, above referred to. 
 
 An action brought by a shareholder against directors of a company, 
 for fraudulent representations, by which he was induced to purchase 
 stock, is of an individual nature, and is maintainable without joining 
 or suing on behalf of the other stockholders. Cazeaux vs. Mali, 25 
 Barb., 578 ; 15 How., 347. Where, however, the fraudulent represen- 
 tations were not distinctly charged, or alleged to have been made to 
 the plaintiff, and the complaint merely charged the directors with mis- 
 conduct, diminishing the value of the plaintiff's shares ; it was held, 
 that the action was in the common interest of all the stockholders, and 
 should have been brought accordingly. Wells vs. Jewett, 11 How., 
 242 ; Bell vs. Mali, 11 How., 255. 
 
 § 38. Joinder of Defendants. 
 
 The law as to the joinder of defendants, is laid down by sections 
 118, 119, and 120, as above cited; the two former declaring the rule 
 so far as it is optional, the latter as it is imperative. 
 
 The rule so laid down is, in its general features, substantially the 
 same as that of the former Court of Chancery, and may be shortly 
 stated as follows : — the plaintiff has his option of bringing in all parties 
 in any wise interested in, or necessary. to a complete settlement of the 
 controversy brought before the court ; but, when that controversy re- 
 lates to a joint interest, or where its complete determinatiim cannot be 
 had without the presence of others, not originally joined, all persons 
 claiming such interest, or necessary to that determination, must be 
 joined, either as plaintiffs or defendants. By section 122, the distinc- 
 tion is clearly pointed out between those cases in whicli the coui't may, 
 and those in which it cannot proceed without the joinder of specific 
 parties, or classes of parties. 
 
 It is proposed to consider in the present section the decisions bearing 
 upon this rule, in the following order : 
 
 1st. To cite the authorities of general applicability, bearing on the 
 question of necessary parties. 
 
 2d. Those as to the propriety of joining parties, or classes of parties, 
 generally considered. 
 
 3d. To consider the rule in question, as applicable to specific contro- 
 versies. 
 
 The bringing in of necessary parties, omitted in the first instance, 
 will be treated of in the next succeeding section. 
 
OF PARTIES TO AN ACTION. — S 38. 191 
 
 (a.) 1. Neoessaet Defendants. 
 
 Where all proper parties are not before it, the court may refuse to 
 interfere. Thus, an assignment was refused to be reformed upon the 
 answer of the defendants, when all interested under it had not been 
 made parties. Smith vs. Howard, 20 How., 151. A decree for di- 
 vision of sale-moneys was reversed, some of the heirs interested not being 
 before the court. Valentine vs. Wetherill, 31 Barb., 655. All claim- 
 ants to a fund in the hands of a foreign administratrix, were also held 
 proper to be joined in Gulich vs. Gulich, 33 Barb., 92 ; 21 How., 22. 
 Where an accounting is sought, all parties interested must also be 
 brought in. Lewis vs. Varnum, 12 Abb., 305. See also Wade vs. 
 Rusher, 4 Bosw., 53T. 
 
 In a suit to recover a contingent legacy, payable in a certain event, out 
 of the residue bequeathed to a third party, it was held that the repre- 
 sentatives of the residuary legatee were necessary parties, the claim 
 tending to take away or to reduce the fund bequeathed for their benefit. 
 Trustees of the Theological Society of Auburn vs. Kellogg, 16 N. Y., 
 83. See also, in court below, 18 Barb., 360, holding that all interested 
 in the fund, whether in a representative or individual capacity, were 
 necessary to be brought in. And a residuary legatee who brings an 
 action-for his share in the fund, must join all the others interested in 
 the residue, and also tlie heir, where that legacy is a charge upon real 
 estate. Tonnelle vs. Hall, 3 Abb., 205, 
 
 In a suit by one only of several parties whose different properties 
 were affected by the same mechanics' lien, for an apportionment, and to 
 clear his title, it was held that he should have joined the other parties 
 so affected, and relief was denied. Paine vs. Bonney, 4 E. D. Smith, 
 734. See, as to who are owners, on such a proceeding, McMahon vs. 
 Tenth Ward School Officers, 12 Abb., 129. 
 
 In an action by one of three co-defendants, to set aside a judgment 
 entered against all, it was held, though their general assignee was made 
 a party, that the others should have been joined. Bowers vs. Tall- 
 madge, 16 How., 325. 
 
 On a bill filed by a receiver, appointed by the court, against the trustee 
 of a judgment-debtor, in order to reach that debtor's equitable interest 
 in a trust fund, the debtor himself was decided to be a necessary party. 
 Yanderpool vs. Vam, Valkenburgh, 2 Seld., l90. See also Shaver vs. 
 Brainard, 29 Barb., 25. Where a life-interest in a fund left for the 
 support of the testator's daughter, was sought to be reached on supple- 
 mentary proceedings, it was held that the question as to how much was 
 necessary for her support, could only be decided in an action to which 
 
192 Ot PARTIES TO AN ACTION. § 38. 
 
 she and her trustee should be made parties. Genet vs. Foster, 18 
 How., 50. 
 
 In an action to carry out a trust deed, or against a trustee for breach 
 of trust, all the cestui que trusts are necessary parties. Colgrove vs. 
 Talhnadge, 6 Bosw., 289 ; Bishop vs. Houghton, 1 E. D. Smith, 666 ; 
 Bank of British North America vs. SvA/dam, 6 How., 379 ; 1 C. K. 
 (]Sr. S.), 325. See, likewise, Johnson vs. Snyder, below cited. But in 
 one brought to set aside a trust deed, the reverse is the case. The 
 assignee then represents the creditors, and they need not be joined. 
 Bank of British Worth America vs. Suydam, above cited ; Russell vs. 
 Basher, 4 Barb., 232 ; Wheeler vs. Wheedon, 9 How., 293 ; Scudde/r 
 vs. Voorhis, 5 Sandf , 271. "Where the suit was of a mixed nature, and 
 the plaintiff, suing for creditors, sought both to set aside an assignment, 
 and also to remove one of the trustees, it was held that the relief de- 
 manded in the latter clause, made the judgment-debtor a necessary 
 party defendant, though otherwise he need not have been joined. Wal- 
 lace vs. Eaton, 5 How., 99. 
 
 The fraudulent vendee of goods and his assignee for creditors are 
 united in interest, and may be joined as co-defendants in replevin, in the 
 same action. Nichols vs. Micha£l, 23 N. Y., 264. 
 
 In an action for the charter-money of a vessel, persons who had ad- 
 vanced money for repairs in a foreign port, and claimed a lien on the 
 freight, were held to be necessary parties. Sturteva/nt vs. Brewer, 4 
 Bosw., 628. 
 
 In an action by one partner against another for an accounting, as- 
 signees of the balance due, and also creditors entitled to be paid in pri- 
 ority to the plaintiff, were held to be necessary parties. Johnson vs. 
 Snyder, 8 How., 498. See also same case, 7 How., 395. 
 
 Creditors of a mutual insurance company, affected by a decision in a 
 suit brought against the company and its receiver only, by which de- 
 cision the latter was restrained from making an assessment and collect- 
 ing funds applicable to debts of their peculiar class, were held to be 
 necessary parties, and brought in as such, on motion, in Rvhha/rd vs. 
 Eames, 22 Barb., 597. 
 
 The plaintiff on execution was in like manner brought in as a defend- 
 ant, in an action of replevin brought against a constable for seizing prop- 
 erty in the possession of a third party, on execution against that party. 
 Conldim, vs. Bishop, 3 Duer, 646. 
 
 The omission to join all the members of a partnership in a suit for 
 moneys collected, or for a debt contracted by the firm, is a good defence. 
 Wooster vs. ChamberUn, 28 Barb., 602 ; Sweet vs. Tuttle, 4 Kern., 466 ; 
 Bridge vs. Pa/yson, 5 Sandf., 210. In a suit against a partnership, all 
 acting partners are, but dormant partners are not, necessary parties. 
 
OF I>ARTIES TO AN ACTION. § 38. 193 
 
 And in an equitable action against joint contractors, if it appear on the 
 trial tLat any oftliem have not appeared, or been served with process, 
 the trial cannot proceed. Powell vs. Finch, 5 Duer, 666. All persons 
 who have joined in a contract shonld be made parties in an action on 
 that contract. Groolce vs. O^llkjgins, 14 IIow., 154. And the same 
 nile holds good, of course, as to joint tenants, or tenants in common of 
 real estate, where the debt or injury sued for is the property of, or is 
 common to all. ' 
 
 The assignee of a mortgage, though out of the state, was held to be, 
 as of course, a necessary defendant, in a suit brouglit against the debtor 
 and mortgagor only, seeking to set ^side that very assignment. Gray 
 vs. ScJuTiek, 4 Comst., 460. 
 
 A foreign assignee of one of two parties who had exchanged notes, 
 was held to be a necessary party to a controversy to deternuTie the mu- 
 tual equities, as regarded such exchange and the collection of collaterals. 
 .Nantucket Pacific Banh vs. SteUbins, 6 Duer, 341. 
 
 In an action for damages, and to restrain waste brought by a vendor 
 of real estate, pending an uncompleted contract for sale, the vendee is 
 a necessary party. Kidd vs. Pennison, Q Barb., 9. 
 
 The attorney-general was considered a necessary party as plaintiff or 
 defendant, in a suit involving the public interest, in the following cases: 
 State of New York vs. The Mayor of New York, 3 Duer, 119 ; Poms 
 vs. Tho Mayor of New York, 2 Duer, 663. Vide 1 li. S., 179. 
 
 In an action where relief is souglit, on the ground of the abuse of power 
 by a municipal body, that body, and the persons whose action is im- 
 peached, are necessary parties. Peo2>le vs. Law, 34 Barb., 494. But 
 where the action sought to be impeached is that of the legislature, the 
 corporation, it w^as held, need not be joined. People vs. Maym' of Nemo 
 York, 20 ITow., 144. 
 
 In a suit by a stockholder against directors of a company, when the 
 complaint merely alleges acts of misconduct, and does not distinctly 
 charge misrepresentations made to the plaintiff himself; it was held 
 that the other stockholders, and also the company itself, were necessary 
 parties. WellsYs. Jewett, 11 IIow,, 242 ; Bell vs.' Mali, 11 How., 255 ; 
 but otherwise, where the complaint alleges misrepresentation, directly 
 inducing the plaintiff to purchase stock or shares, in which latter case 
 his right of action is several, and enforceable against individual direc- 
 tors severally. Qazeaux vs. Mali, 25 Barb., 578 ; 15 How., 347. 
 
 Parties jointly interested in' the subject-matter, refusing to join as 
 plaintiffs, must be brought in as defendants. Coster vs. New York and 
 Erie Bailroad Company, 6 Duer, 43 ; 3 Abb., 332 ; noticed 5 Duer, 
 
 677. 
 
 But in such a case, the reason of their non-joinder as plaintiffs should 
 
 YoL. I.— 13 
 
194 OF PAETFES TO AN ACTION. § 38. 
 
 be specifically alleged. Yowng vs. New YorJc and Lmerpool Steam- 
 ship Compamy, 10 Abb., 229. 
 
 The grantor of an estate with warranty, and who had, on the sale, 
 represented an unsatisfied mortgage to be invalid, was held to be not 
 only a proper but a necessary party to a suit, brought by his grantee 
 against the mortgagee, to have such mortgage satisfied. Wandle vs. 
 Tv/rney, 6 Duer, 661. 
 
 In relation to the necessary parties in a suit for interpleader, see 
 Willets vs. Finlay, 11 How., 468. 
 
 In an action for nuisance erected on lands transferred to another, 
 both the erector of the nuisance apd the transferee of the lands, are to 
 be named co-defendants. Vide 2 E. S., 332, § 2. 
 
 In an action in the nature of a creditor's bill to reach equitable assets, 
 and also to declare a conveyance by the judgment-debtor fraudulent, it 
 was held that a subsequent grantee of the premises in question, before 
 the commencement of the action, was a necessary party. Sage vs. 
 Mosher, 28 Barb., 287. 
 
 As to the effect of an omission to omit joining all creditors holding 
 liens, in an action to set aside a trust deed as fraudulent, and as to the 
 extent to which a creditor so omitted may gain priority on a future 
 sale, see The CKatauque County Bank vs. Risley, 19 N. Y., 369. 
 
 The old rule, that a defendant pleading misjoinder of necessary 
 parties, must give the plaintiff a better writ, and name the parties he 
 requires to be joined, is maintained in Fowler vs. Kennedy, 2 Abb., 
 34T. 
 
 (5.) Peopee Defendants. 
 
 It is, of course, in the nature of an axiom, that all parties necessary 
 are proper to be made defendants, and, therefore, it is needless to do 
 more than to draw the reader's attention to the last division, and to 
 the cases there cited, as being, of necessity, equally applicable to the 
 present. 
 
 It is competent for the plaintiff to introduce any persons as defend- 
 ants, for his protection against any technical claims which they might 
 set up. HvU vs. Smith, 8 How., 281. Of course, he does so at the 
 risk of having to pay their costs, should they turn out to have been im- 
 properly joined. See Hammersley y&. Hammiersley, 1 L. 0., 127. And 
 it may be taken as a general rule, that a defendant, properly joined, 
 cannot take objection to the joinder of others with him, whether prop- 
 erly or improperly brought in. Excess of parties is no objection in 
 his mouth, but only in the mouth of the superfluous party himself. See 
 hereafter, under the head of Dermvrre/r ; see also Brownson vs. Gifford, 
 8 How., 389, 
 
OF PARTIES TO AW ACTION. § 38. 195 
 
 It is not proper to join the agent as defendant, where the principal is 
 known {Conro vs. jPort Henry Iron Com.pany, 12 Barb., 27), nnless, of 
 course, the agent be personally interested or liable. 
 
 In an action against a trustee, by one of several parties entitled. to a 
 common fund, all interested must, as a general rule, be made parties ; 
 but not so, when the interests of those parties have been severed, by a 
 proceeding binding on such trustee. When this has been done, each 
 party may sue severally. The General Mutual Insurance Comjpany vs. 
 Benson^ 5 Duer, 168. 
 
 Purchasers of different parcels of land, under sales made by an agent 
 in violation of his authority, cannot be joined as co-defendants, in one 
 suit to compel a surrender of their contracts. The causes of action are 
 several, and every purchaser must be separately sued ; but the agent 
 may be properly joined as a defendant in each suit. Lexington and 
 Big Sandy Railroad Company vs. Goodman, 25 Barb., 469 ; 5 Abb., 
 493 ; 15 How., 85. So, likewise, as to grantees under several convey- 
 ances by a judgment-debtor, in fraud of creditors. Eeed vs. Strykei; 6 
 Abb., 109. 
 
 But this principle is controverted, and it is held that, in an action to 
 set aside various liens on a debtor's property for fraud, all such lien- 
 holders may be joined in the same action, the cause of action arising 
 out of the fraud of the debtor being single. Morton vs. Weil, 33 Barb., 
 30 ; 11 Abb., 421 ; Newbould vs. Warren, 14 Abb., 80. 
 
 In an action by a public company, as representing the shareholders 
 in general, against numerous holdere of stock fraudulently issued, to 
 cancel sucli stock, and remove the cloud upon the general title, it was 
 held no misjoinder to unite all such holders in the same action. New 
 York and New Saoen Railroad Ooinpany vs. Schuyler, 17 N. Y., 592 ; 
 7 Abb., 41 ; reversing same case, 1 Abb., 417. 
 
 Where the plaintiff was injured by the concurrent negligence of two 
 companies, it was held (Woodruff, J., dissenting), that both miglit be 
 joined as co-defendants in the same proceed! ng. Colegrove vs. Harlem and 
 New Haven Railroad Company, 6 Duer, 382 ; affirmed, 20 N. Y., 492 
 
 And, as a general rule, the liability of joint tortfeasors is either joint 
 or several, at the option of the plaintiff, and lie may sue accordingly. 
 Vide Cazeaux vs. MaU, 25 Barb., 578 ; 15 How., 347. See, as to joinder 
 of master in action for tort of servant, Montfort vs. Haghes, 3 E. D. 
 Smitli, 591. And as to the application of t!ie rule of respotideat supe- 
 rior in such cases, see heretofore, section 32, under tlie head of Masters, 
 c&e., and cases there cited. 
 
 In an action for a partnership debt, the representativt's <vf a deceased 
 partner cannot properly be joined, unless inability to pay, oti the part 
 of tlie survivor, be alleged on the face of the coiMplaint. Voorhis vs. 
 
196 OF PARTIES TO AN ACTION. § 38. 
 
 CUUs' Executor, 17 IST. T., 354 ; Iliggins vs. EoclcweU, 2 Duer, 650 ; 
 Morehouse vs. Ballou, 16 Barb., 289; Voorhies vs,. Baxcter, 1 Abb., 43; 
 18 Barb., 592. (See also Pinckney vs. Wallace, 1 Abb., 82.) The 
 above clearly overrule Ricart vs. Townsend, 6 How., 460. 
 
 Where, however, the demand is several, or joint and several, this 
 rule does not obtain, and the representatives of a deceased contractor 
 may be joined with the survivor ; and, in Parker vs. Jackson, 16 Barb., 
 33, this rule was even applied to the case of a note signed first by a 
 partnership firm, and subsequently by one of the partners individually. 
 
 The wrongful recipient of a legacy is not a necessary party, in a suit 
 by the legatee against the executor to compel its payment. Gleason 
 vs. Thayer, 24 Barb., 82. 
 
 In a suit to set aside an assignment, the assignee represents the cred- 
 itors interested, and they need not be pei-sonally joined. See Bank of 
 British North America vs. Suydam, Russell vs. Lasher, and Wheeler 
 vs. Wheedon, cited in preceding division of this section. 
 
 A judgment-debtor, and his fraudulent assignee, charged with ob- 
 structing the creditor in his remedy on execution, were held to be prop- 
 erly made co-defendants in a creditor's bill. Hammond vs. Hudson 
 River Iron and Machine Gompany, 20 Barb., 378. See also Nichols 
 vs. Michael, 23 IT. Y., 264. 
 
 A judgment against all the individuals, seventy-five in number, com- 
 posing a private association, was affirmed as properly taken, in an action 
 founded on the contract of their managers, in Wells vs. Gates, 18 Barb., 
 554. , 
 
 As long as the personalty of a deceased debtor remains unexhausted, 
 ]iis executor or administrator is the proper party to be sued, before dis- 
 tribution ;■ but, afterwards, the assets may be pursued in the hands of 
 next of kin, or legatees. 
 
 But, after the exhaustion of such personal estate, the real estate may 
 be resorted to, first in the hands of the executor, and afterwards in 
 those of the heir, and, failing, in those of the devisee of such real estate. 
 
 In Stewart vs. Kissam, 11 Barb., 271, the priorities of the parties 
 sued in the above capacities are distinctly laid down, and it was held, 
 1st. That before a creditor can sue legatees, he must show that no assets 
 have been delivered to or remain with the next of kin. 2d. That before 
 the heirs can be sued, the insufiiciency of the personal estate in the 
 hands of the executors, next of kin, and legatees, must be shown ; and 
 that a suit at law against those parties is a' necessary preliminary to the 
 right to sue the heirs ; and, 3d. That before devisees can be resorted to, 
 the insufficiency and the exhaustion of all remedies against the prior 
 parties must in like manner be shown. It was also held, that it makes 
 no difference that the same persons are entitled to the' whole estate, 
 
OF PARTIES TO AW ACTION. — § 38. 197 
 
 real and personal, the statute requiring the creditor in all cases to seek 
 satisfaction from the latter, before he resorts to the former, in tlao hands 
 of the heirs. 
 
 In the same case it was held that the heirs, under such circum- 
 stances, must all be sued jointly, whether in law or in equity, and also 
 that the heirs and personal representatives cannot be joined in the 
 same suit. This last conclusion seems, however, to be no longer law, 
 since the subsequent passage of the Code. In Kellogg vs. Olmsted, 6 
 How., 487, it was in like manner held that, under the statute of 1837 
 (Laws of 1837, p. 5^, § 73), the heirs of an intestate must be. sued joint- 
 ly, and cannot be so separately, for a debt against the intestate ; but 
 that such liability does not make them liable as joint debtors, within 
 the purview of the statutory provisions in relation to the taking of judg- 
 ment against parties standing in that capacity, and not served with 
 process. In Roe vs. Swezey, 10 Barb., 247, the same conclusions as 
 were come to in Stewart Vs. KissaTu with respect to the prerequisites 
 to a suit against heirs under these circumstances, are maintained ; and 
 it was held that such a suit could not be brought, within the three 
 years' limitation prescribed by the statute, under any circumstances. 
 
 In a suit against a partnership, the acting partners are all necessary 
 parties. The reverse is, however, the case as regards limited or dor- 
 mant partners, under the provisions of part 11.^ K. S., chapter lY., title 
 I.; IE. S., 763 to 768. 
 
 An action must be brought against a lunatic, idiot, or habitual 
 drunkard, in his own name, the process being served, as specially pro- 
 vided by section 134. The leave of the court must, however, be pre- 
 viously obtained on petition, in all eases where the party has been 
 judicially declared to be such, according to the old practice. Sover- 
 hill vs. Dickson, 5 How., 109 ; Ball vs. Taylo7\ 8 How., 428. The 
 inqiiisition in such a case is conclusive evidence of incapacity, and 
 evidence to rebut it cannot be given. Wadswat-th vs. Sherman, 14 
 Barb., 169 ; affirmed, 4 Seld., 888. 
 
 In chapter 385 of the Laws of 1836, special provision is made with 
 reference to the parties to be made defendants in actions against asso- 
 ciations owning vessels, &c., and a plaintiff is not bound to make per- 
 sons parties, who have not acquired and duly registered their interest, 
 as thereby provided, at least thirty days before suit brought. 
 
 In Gook vs. Oenesee Mutual Insurance Company, 8 How., 514, it 
 was held that assignees of portions of an entire demand, who had not 
 received their shares, were proper parties in a suit instituted by an- 
 other, standing in the same capacity ; but that it would not be neces- 
 ■ sary to join others who had received their proportions. 
 
 In an action to set aside a mortgage as usurious, both the assignor 
 
198 OF PAllTIES TO AN ACTION. § 38. 
 
 and assignee of that mortgage are proper defendants. JViles vs. lian- 
 daU, 2 C. E., 31. IST. B.— The head-note is incorrect. 
 
 Parties liable for the same debt, under different contracts or instru- 
 ments, cannot be joined as co-defendants in the same action. See here- 
 tofore, under the head of Joint and Several Oontraotors. 
 
 In interpleader, in I'espect of a fund due to an insolvent bank, it was 
 held that the proper parties to be joined were the receiver of such bank 
 on the one hand, and on the other, attaching creditors, and the sheriff 
 who had attached for them ; but that the general creditors of the bank, 
 being represented by the receiver, need not be joined. Willetts vs. Fiiv- 
 lay, il How., 468. 
 
 Though a judgment of interpleader directs a suit between A and B 
 by name, all parties who claim an interest in the property, or whose 
 presence is necessary to a complete determination of the controversy, 
 may properly be brought in. Leavitt vs. Fisher, 4 Duer, 1. 
 
 Although a party to a controversy be nominally joined as a defend- 
 ant, he does not actually become so, unless, and until process in the 
 action is duly served upon him. East River Ba/nh vs. Cutthig, 1 
 Bosw., 636 ; Robinson vs. Frost, 14 Barb., 536. 
 
 In a suit for specific performance of a contract to convey several lots, 
 part of a larger tract, the whole of which was subject to a prior mortgage, 
 it was held improper to join the prior mortgagee as defendant, in anti- 
 cipation of proceedings he might thereafter take, and to secure the 
 plaintiff's possible equities in that contingency. Chapman vs. West, 
 10 How., 367 ; affirmed, 17 N. ¥., 125.. 
 
 It is not necessary to join arbitrators as parties in an action to set 
 aside their award as invalid, on grounds not imputing auy wrong. 
 Kn&wlton vs. MicMes, 29 Barb., 465. 
 
 A mere trustee, who had actually conveyed the property in question 
 over to his cestui que trust, was held not to be a proper party to a suit 
 to set aside the transaction, as against the latter. Sjaicer vs. Hunter, 14 
 Abb., 4. 
 
 In an action against parties holding property of a defendant levied 
 upon under attachments, it was held that the suit was properly brought 
 by one of the attaching creditors ; that other creditors holding attach- 
 ments against the same fund were properly joined as defendants ; that 
 the sheriff was not a proper party, the claimants to the fund being all 
 represented ; nor was the judgment-debtor, against whom the attach- 
 ment was levied, he having no interest in that fund, or right to contest 
 the lien of the plaintiffs. Skinner vs. Stewart, 13 Abb., 442. 
 
 (o.) Defendants in Specific Cases. 
 Fweclosv/re. — In foreclosure, every person interested in the corpiks 
 
OF PAETIES TO AN ACTION. § 38. 199 
 
 of the estate, and every junior incumbiancer, whether on n.ortgage, or 
 as a creditor on a judgment docketed in the same county, must be made 
 a party, or the suit will be incomplete, and the title obtained under the 
 decree defective. See Brainard vs. Cooper, 6 Seld., 356. So, also, 
 where a party interested in the mortgage itself is not joined. Peek vs. 
 MaUams, 6 Seld., 509. See also, as to the neglect to join a second mort- 
 gagee, Walsh vs. Rutgers Fire Insurance Company, 13 Abb., 33. And 
 in the event of a sale under such a foreclosure, the original mortgagee 
 merely acquires the equity of redemption as against the second incum- 
 brancers omitted to be joined, and, in a subsequent toreclosure by the 
 latter, he will be a proper defendant. Same case. 
 
 If the plaintiif, however, makes unnecessary parties, he does so at his 
 peril. Case vs. Price, 17 How., 348 ; 9 Abb., 111. 
 
 The rights of a party claiming adversely, and prior to the mortgage, 
 cannot properly be litigated in an ordinary suit for foreclosure ; and, if 
 he object, the suit should be dismissed against him. Corning vs. Smith, 
 2 Seld., 82. See, also, Lewis vs. S7rdth, 11 Barb., 152; Y L. O., 292; 
 affirmed, 6 Seld., 502; 12 L. 0., 193 ; and generally, iZcmcoc^ vs. Maiir 
 eooh, 22 N. Y., 568. 
 
 The wife of the mortgagor, or of any subsequent grantee of the equity 
 of redemption, is a necessary party in all cases ; and this, whether the 
 mortgage was executed before or after her marriage. And, even when 
 she has actually joined in a mortgage, containing the usual power of 
 sale, or where the mortgage, being for unpaid purchase money, is free 
 from her dower, as between her and the mortgagee (under 1 R. S., 740, 
 § 5), she must' be equally joined as a party, on account of the right to 
 redeem, and of the interest in the surplus, both of which she still retains. 
 Denton vs. Nanny, 8 Barb., 618; Wheeler vs. Mor^'is, 2 Bosw., 524; 
 Vartis vs. Underwood, 18 Barb., 561 ; Milh vs. Van Yoorhis, 23 Barb., 
 125 ; reversed, but not on this point, which is, on the contrary, established, 
 20 JSr. T., 412 ; 10 Abb., 152 ; Blydenburgh vs. Northrop, 13 How., 
 289 ; Brownson vs. Gifford, 8 How., 389 (396) ; Pinckney vs. Wal- 
 lace, 1 Abb., 82 ; and, where she .has not joined in the mortgage, even 
 if she be actually made a party in another capacity, or as merely claim- 
 ing some interest, she will not be barred. To bind her in such a case, 
 she must be distinctly made a party, as claiming or being entitled to 
 claim her dower, and be charged by specific allegation as such. Her 
 rights are paramount, and will not otherwise be barred. Lewis vs. 
 Sm,ith, 11 Barb. 152 ; affirmed, 5 Seld., 502 ; 12 L. 0., 193 ; and if she 
 objects the suit cannot proceed against her, but her rights must be de- 
 termined in a separate proceeding. 
 
 In foreclosure of a mortgage of the wife's estate, it may still be pru- 
 dent to make the husband a party, until the question as to the abolition 
 
200 OF PAKTIES TO AN AOTIOM'. § 38. 
 
 or non-abolition of his rights as tenant by the courtesy, is finally and 
 definitively settled (see above, section M, and cases there cited) ; and 
 where, as is usual, be has joined in the bond or mortgage, he is, of 
 course, not merely a proper but a necessary party. Vide Gonde vs. 
 Shepard, 4 How., 75 ; 2 C. R., 58. 
 
 Under tlie last amendment (1862), the filing of a notice of lis peiv- 
 dens is of itself a commencement of the action ; and a grantee of the 
 equity of redemption, whose deed is not recorded until after such filing, 
 will not be a necessary party, but will be bound by the decree, though 
 such deed have been previously executed — section 132. Between 1858 
 and 1862, the filing of such notice had the same effect, -provided the 
 summons was simultaneously or had been previously served; and if 
 filed before service, such efi'ect was attributed to it from the date of such 
 service, if subsequently made. See Ewrh vs. Barnard, 22 How., 437; 
 Farmers' Loan and Trust Com.pany vs. DlcJcson, 17 How., 477 ; 9 Abb., 
 61. Prior to 1858, he was held to be a necessary party under such cir- 
 cumstances. See Hall vs. Nelson, 23 Barb., 88 ; 14 How., 32 \ Gris- 
 wold vs. Fowler, 6 Abb., 113. 
 
 The plaintiff, though at liberty to do so, is not bound to join a mere 
 contractor for the purchase of the equity of redemption. Grooke vs. 
 O'Higgins, 14 How., 154. 
 
 Any parties liable for the deficiency, may also be joined ; but, where 
 the payment of the mortgage had been assumed by a subsequent gran- 
 tee, as between him and the mortgagor, it was held that, although such 
 grantee thereby became a necessary party, the mortgagor was not. 
 Drury vs. Glarh, 16 How., 424. See also Van Nest -vs. Latson, 19 
 Barb., 604; StebUns vs. Hall, 29 Barb., 524. 
 
 Where a deed is made absolutely to trustees without restriction, they 
 are necessary parties, but, where such deed is made in trust for a cor- 
 poration, the corporation, and not the trustees, should be joined. Gase 
 vs. Price, 17 How., 348 ; 9 Abb., 111. Tlie same rule would, of course, 
 hold good in any case where the trustee holds a mere nominal estate, 
 and the real title is in the cestiti que trust. 
 
 A decree regularly obtained, in a suit against the mortgagor and his 
 grantee, was refused to be opened, to let in a claim, founded upon a deed 
 executed between such mortgagor and such grantee, after decree but be- 
 fore sale ; although such deed declared that the original deed to the 
 grantee, though absolute on its face, was in fact a mortgage, and that the 
 general assignee of the mortgagor, before suit brought, was accordingly 
 entitled to an equity of redemption. Griswold vs. Fowler, 6 Abb., 113. 
 
 Where the owner of a mortgage had first assigned it to specific trus- 
 tees, as security for an indebtedness, and afterwards executed a general 
 assignment to trustees for creditors, it was held that the latter were 
 
OF PAKTIES TO AN ACTION. — ^§ 38. 201 
 
 necessary parties to a foreclosure brought by the former. Bari vs. 
 Poole, 2 Kern., 495. 
 
 An assignee or purchaser pendente lite, is not a necessary party, and 
 if he does not himself seek to be brought in as a party, he will be con- 
 cluded by the decree, and this rule includes an assignee in bankruptcy 
 or insolvency. Cleveland vs. Boerum, 3 Abb., 294 ; 23 Barb., 201 ; 
 affirmed, 27 Barb., 252. 
 
 The rules as to the parties in a suit for foreclosure of a mechanics' 
 lien, are, in many respects,, analogous to those in an oi'dinary foreclo- 
 sure. All parties necessary to enable the court to do complete justice 
 in the premises, should be joined, or may be brought in. Prior lien- 
 holders are not necessary parties, unless the plaintiff claims a higher 
 equity. Where the plaintiff is a sub-contractor, and claims for money 
 due from the contractor, and there is any difference' between tlieu:i as to 
 the amount due, the latter is a proper party, and may be brought in. Sul- 
 livan vs. Deoher, 1 E. D. Smith, 699 ; 12 L. 0., 109 ; Zowier-vs. C'Jdlds, 
 2 E. D. Smith, 577 ; 1 Abb., 415. But the non-joinder is not ground of 
 demurrer. Foster vs. Slddtnore, 1 E. D. Smith, 719. ISTor is it necessary 
 for the plaintiff to make either prior or subsequent lien-holders, parties 
 to his proceeding, unless they apply, or he wishes to contest the valid- 
 ity or superior equity of the former. Kaylor vs. 0'' Conner, 1 E. D. 
 Smith, 672. But though such is the case in the first instance, at the 
 outset of the suit, the Court of Common Pleas exercises a very liberal 
 discretion in these matters, as to the subsequent bringing in of any 
 parties having an interest in the controversy, on that interest becoming 
 apparent. See the above cases, ^passim. 
 
 (d.) Paktition. 
 
 In partition, every person directly or indirectly interested in the cw- 
 pus of the estate itself, must be a party, including the wives of parties 
 living, in respect of tlieir inchoate right to dower. Vide Brownson vs. 
 Oifford, 8 How., 389 (396). 
 
 An executor or a trustee, who has not qualified, need not be 
 brought in. 
 
 Incumbrancers are not necessary parties, though it may sometimes 
 be expedient to make them so, in order to a sale of the property, or 
 to bind them by the decree, or to settle priorities among the parties, 
 where any of them claim a charge as against the others. Bogardus vs. 
 Parker, 7 How--, 305. If done, however, this will be at the risk of 
 costs. See Hammersley vs. Hammersley, 7 L. 0., 127, unless it be 
 done, as there, at the request of the other parties. 
 
 The including superfluous parties will not, under ordinary circum- 
 
202 OF PARTIES TO AN ACTION. § 38. 
 
 Stances, constitute a demurrable objection. Brownson vs. Gifford, 8 
 
 How., 389. 
 
 A jadgment-creditor of one of the parties interested, cannot claim to 
 be brought in, for the purpose of enforcement of his lien. Waring vs. 
 Waring, 3 Abb., 246. 
 
 Partition may be maintained of a derivative estate carved out of the 
 
 fee, as in the instance of a grant of minerals, with right to enter for the 
 
 purpose of working them. The owner of the fee itself, who is the com- 
 
 ' mon source of title, is not a necessary party in such case. Canfield vs. 
 
 Ford, 28 Barb., 336 ; 16 How., 473. 
 
 Where the trustee of an undivided share, and all cestui que trusts in 
 being, were brousht in, it was held that cestui que-trusts not then in 
 esse, were bound by the decree. The trustee represented them. Mead 
 vs. Mitchell, 5 Abk, 92 ; affirmed, 17 K Y., 210. 
 
 In partition, unknown defendants may be brought in, in the same 
 manner as in other cases. Allen ys. Allen, 11 How., 277. 
 
 (e.) Ejectment. 
 
 The rule as to the joinder of defendants in this action is still substan- 
 tially the same as that declared in the Eevised Statutes. 2 E. S., 304, §4. 
 
 If the premises are actually occupied by a tenant, that tenant is the 
 proper defendant. 
 
 A mere party in charge, under the orders of othei's, is not however 
 an actual occupant of the premises, in such a sense as that the action 
 can be brought against him. People vs. Ambrecht, 11 Abb., 97. 
 
 If not occupied, the action may then be brought against some person 
 exercising acts of ownership on the premises claimed, or claiming title 
 thereto, or some interest therein, at the commencement of the suit. 
 
 But, 'to maintain ejectment at all, the plaintiff himself must be ac- 
 tually out of possession. Taylor vs. Crane, 15 How., 358. 
 
 Where, therefore, there is an actual occupant of the premises, he 
 must be joined as defendant in all cases. The -only question is, as to 
 whether other parties, also claiming an interest adverse to the plaintiff, 
 can or cannot be joined with him, so as to insure a complete determi- 
 nation of the controversy, under section 118 of the Code, or otherwise. 
 
 Under the Revised Statutes this \vas allowed to a certain extent — sec 
 2 E. S., 341, section 17, which provides that, in ejectment brought against 
 a tenant, " the landlord of such tenant, and also any person having 
 any privity of estate or interest with such tenant, or with such landlord, 
 in the premises in question, or in any part thereof, may be made defendant 
 with such tenant, in case he shall appear, or may at his election appear 
 without such tenant; and, in the latter case, the court may order stay 
 of execution on any judgment against the tenant." 
 
OF PAETLES TO AN ACTION. — § 38. 203 
 
 That this rule is not abolished by the Code is decided in Godfrey vs. 
 Townsend, 8 How., 398. 
 
 The question then arises, as to whether, under the Code, it is or is 
 not competent for a plaintiff to anticipate this action on the part of 
 the landlord, or of any other person having any privity of estate or 
 interest with him or with the tenant, and to make such parties original 
 defendants, instead of perfecting a judgment against the tenant alone, 
 subject to be stayed on the appearance of any such party. 
 
 This seems to be settled in the affirmative, as will appear by the 
 cases below cited. 
 
 The tenant in possession, though only for a year, is, as has been said 
 before, a necessary party in all cases. Ellicott vs. Mosier^ 11 Barb., 
 574 ; affirmed, 3 Seld., 201. 
 
 In ejectment for dower, brought before admeasurement, he is the 
 only proper party, but, after admeasurement, the tenant of the freehold 
 may then be joined. 3 Seld., 208. 
 
 In Fosgate vs. The Herkimer Manufacturing and Hydraulic Com- 
 pany, 12 Barb., 352, it was held that, where some of the defendants 
 were not in actual possession, but claimed an interest in the contro- 
 versy adverse to the plaintiff (the others being tenants in possession un- 
 der them), the former were properly made defendants under section 118, 
 in order to a complete determination of the controversy ; and this de- 
 cision is affirmed, 2 Kern., 580. It is true that, in both case's, the ruling 
 is primarily based on the ground that the objection of misjoinder, if 
 tenable, had been waived, by being omitted to be set up in the answer 
 {vide 2 Kern., 584, 585) ; but in the opinion, Crippen, J., says, " I see no 
 good reason why the landlord may not be made defendant in the first 
 place with the tenant," citing section 118 (2 Kern., 583) ; and the rule 
 that all persons necessary to a complete determination of the contro- 
 versy may now be joined (under section 118), is positively laid down in 
 Waldorph vs. Bortle, 4 How., 358. Van B%ren vs. Oochhum, 14 Barb., 
 118, simply decides, that a person not in possession is not a necessary, 
 but expressly disclaims deciding the question as to whether, if claiming 
 an interest, he may not be a proper party. 
 
 The strict view of the question is, however, taken in Palen vs. Sey- 
 nolds, 22 How., 353, in which it is laid down that, although the land- 
 lord may, if he wishes, appear and defend, he cannot be joined as a 
 defendant without his consent. 
 
 In The Champldin and St. Lawrence Railroad Co. vs. Valentine, 19 
 Barb., 484, it was held that a recovery could not be had against the 
 landlord, sued jointly with the tenant, on the ground that there was no 
 proof that he had entered or withheld the premises, or committed any 
 wrong against the plaintiff; but this ruling is based upon the evidence . 
 
204. , OF PAETIE8 TO AN ACTION. ^-§ 38. 
 
 gweii, and not upon any technical objection, as to his having been 
 made a party in the first instance. The enjoyment of a mere easement 
 on land, without exclusion of the public, is not a sufficient occupancy 
 or act of ownership, whereon to ground ejectment, at the suit of the 
 owner of the soil. Bedfield vs. Utica and Syracuse EaMroad Company, 
 25 Barb., 54. 
 
 Nor can parties be sued in ejectment, who are not, and never have 
 been, rn possession, or exercised acts of ownership, since the acquisition 
 of the plaintiff's interest. Van Home vs. Everson, 13 Barb., 526. 
 
 In The People vs. The Mayor of Nexo Torlc, 28 Barb., 240 ; 17 How., 
 56 ; 8 Abb., Y, it is laid down {obiter) that, in an action brought by the 
 people against numerous lessees of the corporation, the corporation was 
 not properly joined as a co-defendant ; but the decisions cited scarcely 
 bear out the rule as contended for, and one of them {Fosgate vs. Herhimer 
 Mamiifaeturing Company) is distinctly overruled by the subsequent 
 decision in the same case, above referred to. 
 
 Ejectment is not maintainable, in the same action, against different 
 purchasers, claiming under different grants. Yoorhies vs. Voorhies, 24 
 Barb., 150. 
 
 But the plaintiff may proceed jointly against several tenants, renting 
 different apartments in the same house, on the ground, that then- posses- 
 sion of the lot, on which the house stood, was joint. Pearce vs. 
 Colden, 8 Barb., 522. 
 
 When the action is against several defendants, and it appears on the 
 trial that their holdings of distinct parcels are in severalty, the plaintiff 
 may be compelled to elect against which he will proceed, and a verdict 
 is, therefore, to be rendered for the others. 2 E. S., 306, § 27. But 
 where the complaint alleged and the answer admitted a joint possession, 
 » it was held that the defendants' rights in this respect were waived by 
 such a decision ; and that the judge properly, under such circumstances, 
 decided that the plaintiff" could not be compelled to elect, though sev- 
 eral occupations were proved. Fosgate vs. The Ilerldmer Manufac- 
 turing and Hydraulic Company, 2 Kern., 580 ; affirming 12 Barb., 
 352, above cited. 
 
 An action commenced against a person in possession or in receipt of 
 the profits of the premises, is not to be barred or delayed by reason of 
 any alienation by such person, either before or after its commencement. 
 2 R. S., 342, § 18. 
 
 {f.) Unknown Defendants. 
 The Code makes the following express provision upon this subject : 
 § 175. (150.) When the plaintiff shall be ignorant of the name of a defend- 
 ant, such defendant may be designated in any pleading or proceeding by any 
 
OF PARTIES TO AN ACTION. § 38. 305 
 
 name ; and, when his true name shall be discovered, the pleading or proceed- 
 ing may be amended accordingly. 
 
 It is not allowable for the plaintiff to use a fictltions name at hjs dis- 
 cretion, but only when he is ignorant of the true one. Orandall vs. 
 BcmK, 1 How., 271. See as to use of a name, under this section. 
 Pindar vs. Black, 4 How., 95 ; 2 C. E., 53. 
 
 There should be some designation, showing who is intended. If so, 
 service by publication against unknown parties, designated to the best 
 of the plaintiff"'s ability, will be good. Allen vs. Allen, 11 How., 277. 
 
 It is competent for a party seeking to charge stockholders of a pri- 
 vate corporation, to file a bill against the company, and such stock- 
 holders as are known to him, praying a discovery as to the name and 
 residences of the others. Bogardus vs. The Rosendale Manufactur- 
 ing Company, 3 Seld., 147. 
 
 A summons cannot be set aside on the ground of a misnomer, where 
 the plaintiff" was ignorant of the true name of the defendant. Miller 
 vs. Stettiner, 22 How., 518. 
 
 {g.) Peivileg]5P Defendants. 
 
 Ambassadors, Consuls, &o. — Foreign ambassadors and their servants 
 possess an absolute privilege of exemption from suit in the state courts ; 
 and this privilege extends to ambassadors from one foreign sovereign 
 state to another. Holhrook vs. Henderson, 4 Sandf., 619. 
 
 A consul, or vice-consul, possesses a similar privilege, though, so long 
 as he does not assert it, the courts are not absolutely disqualified from 
 entertaining the action. It is, however, competent for him to assert 
 that privilege at any juncture during the proceedings, however late it 
 may be. Nor will the fact that he is impleaded with a citizen upon a 
 joint contract, avail to give jurisdiction. Valarino vs. Thoiwpson, 3 
 Seld., 576 ; affirming same case, 3 C. E., 143 ; Taaks vs. Schmidt, 19 
 How., 413. See also Davis vs. Packard, 7 Peters, 276. In re Ay- 
 cinena, 1 Sandf., 690 ; Oriffin vs. Pominguez, 2 Duer, 656 ; 11 L. 0., 
 285; Bepublio of Mexico vs. Arrangois, 11 How., 1; affirmed, p. 576, 
 and 5 Duer, 634. See also as to cases sounding in tort, Hernandez vs. 
 Carnoheli, 4 Duer, 642 ; 10 How., 433. The above cases unquestion- 
 ably overrule Flynn vs. Stoughton, 5 Barb., 115. 
 
 It has been held that the subsequent revocation of the exeguatnir of a 
 foreign consul will cure the defect, and that the court will acquire juris- 
 diction from such time ; Bock River Bank vs. Hoffinan, 22 How., 250; 
 14 Abb.,72 ; but this case stands reversed, on the ground that, the court 
 being without jurisdiction when the action was cpmnienced, it cannot 
 be conferred by any subsequent occurrence. Naylor vs. Hoffrrum,, 22 
 How., 510. 
 
206 OP PARTIES TO AN ACTIOK. § 39. 
 
 An ambassador from the United States to a foreign country has, it 
 has been held, no privilege of the above nature. Mechanics' Bank vs. 
 Webb, 21 How., 450; 14 Abb., 72, note. 
 
 A member of the legislature is not privileged from suit, but onlj' 
 from arrest or imprisonment in that suit, when pending. 
 
 § 39. Abatement. — Bringing in of Defendants. 
 
 The remedies provided by section 121, in the event of the abatement 
 of a suit, will be treated of hereafter, in connection with the subject of 
 revivor and supplemental pleading. 
 
 The subject of the bringing in of defendants under the facilities af- 
 forded by the first clause of section 122, above cited, divides itself 
 naturally into two branches : 1st, the bringing in of additional parties, 
 when the necessity becomes apparent at the hearing, or during the regu- 
 lar progress of an action, either on the motion of one of the parties to 
 that action, or on the suggestion of the court, under the first sentence ; 
 and 2d, the bringing in of such parties, on tlieir own special application, 
 with a view to the protection of their interests, irrespective of those of 
 the original parties, under the second sentence of that clause. 
 
 , (a.) BEiNGmG IN, m Eegulae Cotjese of Action. 
 
 It will be unnecessary to cite again in this, a large number of the 
 decisions referred to in the tliree next preceding sections. It will be 
 suflicient to say that, when any person interested in a controversy ap- 
 pears to the parties, or is declared by the court, to be either a necessary 
 or a proper defendant, the joinder of such person M-ill follow, as a mat- 
 ter of course. Those sections, and the decisions there cited, should 
 therefore be considered as closely connected with, and in effect consti- 
 tuting part of the present. 
 
 Where it was made apparent that the rights of the original parties 
 could not be determined as between themselves, until the claim of a 
 third person was liquidated, the plaintiff was compelled to amend, by 
 bringing such party in, thougli a resident of another state. Sturtevant 
 vs. Brewer, 17 How., 671 ; 9 Abb., 414; affirmed, 4 Bosw., 628. 
 
 The mere obtaining an order to bring in additional parties, will be 
 wholly nugatory, unless such parties are regularly served with process. 
 AMn vs. The Albany Northern Railroad Comjyany, 14 How., 337. 
 
 The receiver of an insolvent corporation was ordered to be substi- 
 tuted as defendant, instead of the corporation itself, in Fuller vs. The 
 Webster Fire Insurance Company, 12 How., 293. 
 
 . The right of the defendant to claim that an adtlitioiial party be 
 brought in, will be altogether waived, if he does not sot it nii as a de- 
 
OF PARTIES TO AN ACTION. § 39. 207 
 
 fence, or if, after an adverse decision on demurrer, he submits, and 
 pleads to the merits. Freeman vs. Newton, 3 E. D. Smitli, 246. 
 
 The right to make a rrio|ion to amend the complaint, by making an 
 additional defendant, may be waived by undue delay ; as by proceeding 
 to trial and taking no step, except as the result of the defendant'^ motion 
 to dismiss the complaint. MoMaJion vs. Harrison, 12 How., 39. Nor 
 can the same defendant, if not originally liable, be again brought in 
 by supplemental bill, with a view to make him liable in another capa- 
 city. Sams case. See likewise Peoh vs. Ward, 3 Duer, 647. 
 
 Nor will the court order new parties to be brought in, against the 
 will of the plaintiff, unless their presence is necessary to the determina- 
 tion of the action. Sawyer vs. OhamberSj 11 Abb., 110. 
 
 (5.) BEiNGmG IN, ON Application of Thied Paett. 
 
 Relief of this nature has been granted in the following cases, on ap- 
 plication of the party seeking to be joined. 
 
 By bringing in the judgment-creditor, in a suit against a constable, 
 for levying on property in the possession of the judgment-debtoi', but 
 claimed by a third party. Cmildin vs. Bishop, 3 Duer, 646. 
 
 By bringing in an assignee, pendente lite, of part of the subject- 
 matter of the controversy. MoOown vs. Leamenworth, 2 E. D. Smith, 
 24 ; 3 C. R, 151. 
 
 Or by bringing in an assignee in bankruptcy or insolvency. 
 
 But this can only be done on his own application. Cleveland vs. 
 Boerum, 3 Abb., 294 ; 23 Barb., 201 ; affirmed, 27 Barb., 252. And if, 
 where the action is in rem, he does not interfere, but suffers it to pro- 
 ceed in his absence, he will be bound by the judgment. Same case. 
 
 In Fraser vs. Oreenhill, 3 C. R., 172, it was held that, where an at- 
 tachment has been issued against a debtor's property, under the Code, 
 any other creditors of that debtor may not only be proper parties to 
 the suit, but may apply to the court for the purpose of being brought 
 in as such. 
 
 In Judd vs. Young, however, 7 How., 79, a similar application, by sub- 
 sequent creditors claiming an interest in surplus moneys under a prior 
 foreclosure, was refused, on the ground that the provisions of section 122, 
 under which the application was made, were confined to actions for 
 the recovery of specific real or personal property, and to them alone ; 
 and this seems to be the sounder view, for it would indeed be a great 
 hardship to a creditor, to have his proceedings embarrassed by the 
 presence of persons who are entire strangers to the main subject of the 
 suit, and whose only claim can be in respect of a surplus, which cannot 
 arise until after the satisfaction of his debt, and in which he has there- 
 fore no interest whatever. 
 
208 OF PAETIES TO AN ACTION. § 40. 
 
 In Oarswell vs. Neville, 12 How., 445, though the application was 
 similar to that in Fraser vs. Greenhill, the question was not passed 
 upon, relief being denied upon another grolmd. 
 
 The conclusion in Judd vs. Young is supported by Tnllman vs. 
 Hollistsr, 9 How., 508, denying an application for similar relief, 
 though on a right admitted to be clear, and holding that such right 
 must be asserted in a separate proceeding. See also Sherman vs. 
 Partridge, 4 Duer, 646 (651) ; 1 Abb., 256; 11 How., 154 ; Wilson vs. 
 Duncan, 11 Abb., 3 ; reversing same case, 8 Abb., 354. 
 
 A judgment-creditor cannot seek to be brought in as a party to a 
 suit for partition. Waring vs. Waring, 3 Abb., 246. 
 
 An application of this nature will be too late, if delayed until after 
 the entry of judgment. Oarswell vs. Neville, 12 How., 445. 
 
 And where, by being brought in, in a mechanics' lien case, on his own 
 application, the contractor occasioned additional costs, which, as be- 
 tween the sub-contractor and the owner only, would not have accrued, 
 he was personally charged with them. Eagleson vs. Glarl-, 2 E. D. 
 Smith, 644 ; 2 Abb., 364. 
 
 This remedy is confined to the cases specified. Where, therefore, an 
 outgoing partner applied to be brought in as party to a suit for an 
 account of partnership assets, in which he claimed an interest, his mo- 
 .tion was denied. It was not an action "for the recovery of personal 
 property," within the meaning of the section. Dayto^i vs. Wilkes, 5 
 Bosw., 655. 
 
 Analogous to the case of a third party applying to be let in, is that 
 of a person nominally made a defendant, but not actually served with 
 process. In such a case, where the plaintiif had filed a notice of lis 
 pendens, but omitted to proceed further, the proceedings were set aside, 
 on motion of one of the defendants. JDyle vs. Smith, 13 How., 104. 
 
 The parent of a married infant, against whom a divorce had been ob- 
 tained, ■ was held to have no standing in court for the purpose of 
 making an application as amicus curice, alleging collusion, and asking 
 to have the judgment opened ; but, though her application was denied, 
 a reference was directed by the court, of its own motion. E. B. vs. C. 
 B., 8 Abb., 44; 28 Barb.,''299. 
 
 The rule that, on a proper application, sureties may be let in to de- 
 fend, in the place of their principal, even after judgment, is laid down 
 in Jewett vs. Crame, 13 Abb., 97 ; 35 Barb., 208. 
 
 § 40. Interpleader. 
 
 The practice and forms upon an application for this pui-pose, will be 
 considered in a subsequent portion of the work. The present obser- 
 
OF PAKTIES TO AN ACTIOW. — § 40. 209 
 
 vations being simply confined to the right to this remedy, and to the 
 cases bearing on that riglit. 
 
 The power so conferred^ does not interfere with the right of a person 
 standing in a similar position, to maintain a separate suit for an in- 
 terpleader, according to the former practice in Chancery upon that 
 subject. See cases below cited. Such a proceeding is, of course, his 
 only remedy, when he wishes to be discharged of his responsibility be- 
 fore action brought by either of the claimants, and he has his option 
 afterwards. But if, where in his power to obtain relief under this pro- 
 vision, he should vexatiously institute a separate proceeding, he might 
 possibly be charged with the additional costs thereby occasioned. 
 
 In relation to an application under section 122, it will be observed 
 that the powers of the court are entirely discretionary, and that the re- 
 lief so asked, can only be asked as a matter of favor, and not of right ; 
 and that those powers only extend to actions ex contractu, or for the 
 recovery of specific real or personal property. 
 
 The party applying must prove entire good faith on his part, and en- 
 tire absence of collusion with the party proposed to be substituted in 
 his place ; and he must also place the subject-matter of controversy 
 within the control of the court, entirely and without reserve. Under these 
 circumstances, and under these only, can the application be made ; and 
 a failure in any one of these requisites will, of course, be fatal to it, 
 and would probably involve the payment of costs. If it succeed, how- 
 ever, the applicant obtains a complete release from the controversy 
 and its consequences, and the substituted party takes his place in all 
 respects. 
 
 Of course, this remedy is entirely inapplicable to cases where the 
 party seeking it retains any claim or interest whatever in the subject- 
 matter of the controversy, or is in reality directly liable ; as in the case 
 of an advertised reward claimed by several, or in those where he has 
 otherwise given occasion for that controversy by his own acts. It is 
 simply and solely intended to meet the case of a mere depositary, or 
 holder of that subject-matter, in an ofiicial, ministerial, or fiduciary ca- 
 pacity, either original, or attaching by implication, under occun-ences, 
 accruing subsequent to its original coming into his possession. 
 
 A party into whose hands money or goods may have come in the or- 
 dinary course of business, for safe custody, and to be thereafter accounted 
 for to the proper owners, may also become entitled to this remedy ; 
 and it would seem, from some of the English cases, that the existence 
 of a mere lien upon such goods, for charges in respect of such custody, 
 which lien does not in its nature attach specially on either of the claim- 
 ants, .and involves no assertion of ownership in any part thereof, will 
 not be a bar to such an application ; though any claim of actual owner- 
 
 VoL. I.— 14 
 
210 OP PAETIES TO AN AOTIOIT. — § 40. 
 
 ship, or litigation in respeat thereof, in any part of such deposit, how- 
 ever small, will be held to be so. 
 
 A purchaser of land, unable to pay his purchase-money to one or 
 other of two parties claiming title to the estate contracted to be sold, 
 has been held in England to be a proper subject for this species of relief. 
 
 Any dealing with either of the parties, calculated to alter their inter- 
 est in the subject-matter in question, or to give either of those parties an 
 independent right against the depositary, the taking of any indemnity 
 from either, or any illegality in the original transaction, out of which 
 the deposit arose, will, of course, do away with the lona ficies of the 
 application, and form an effectual bar to it, as showing collusion. The 
 reverse, however, seems to be the case with regard to a mere demand 
 of indemnity, prior to the action, when not complied with. 
 
 The following recent decisions bear upon the subject : 
 
 This remedy has been granted in the following cases — 
 
 To a defendant who held, as administrator, a promissory note, the 
 title to which was disputed by two parties. Yan JBushirk vs. Roy, 8 
 How., 425. 
 
 To a bank, in relation to a balance, the right to which was contested 
 by an assignee, and also by a creditor of the depositor, and his receiver 
 imder supplementary proceedings. Fletcher vs. The Troy Savings 
 Bank, 14 How., 383. 
 
 Interpleader, under analogous circumstances, was granted in a suit 
 for that purpose, in the following cases : Beck vs. Stephani, 9 How., 
 193 ; Willetts vs. Finlay, 11 How., 468 ; Mayor of New York vs. 
 Flagg, 6 Abb., 296 ; Winfield vs. Bacon, ^^ Barb., 154. 
 
 It was allowed in a controversy concerning rent, in Seaman vs. Wright, 
 12 Abb., 304. The stakeholder is entitled to his costs as against the un 
 successftil party, and may retain them out of the fund. Willetis vs. 
 Waite, 13 How., 34; Miller vs. De Peysier, 1 Abb., 234. 
 
 Where there is any other contest between the plaintiff and the de- 
 fendant, than simply that of ownership of the goods claimed by a third 
 party, the motion cannot be granted. When the action is for a debt 
 arising on the sale of goods, the purchaser cannot require his vendor to 
 interplead, with a third party claiming title to the goods themselves. 
 Sherinan vs. Partridge, 4 Duer, 646 ; 11 How., 154 ; 1 Abb., 256. If 
 the defendant denies, or the plaintiff claims, a liability beyond the mere 
 admission of the office of stakeholder, interpleader cannot be had. 
 Patterson vs. Perry, 14 How., 505 ; 6 Duer, 686. 
 
 It will not be granted, where there is any diversity between the rights 
 of the parties alleged to claim the fund. Nor, when one of such claimants 
 does not appear upon the motion, and satisfy the court as to their willing- 
 ness to be made defendants, and his pecuniary responsibility for costs ; 
 
OF PARTIES TO AN ACTIOK. — § 40. 211 
 
 especially so, where sucli claimant is a non-resident. Nor will any con- 
 dition be imposed upon the original defendants, beyond making a de- 
 posit in court of the amount in question. The proceedings are designed 
 to be simple and summary ; and unless it be reasonably apparent that 
 the change can work no prejudice to the plaintiff, relief must be sought 
 in a different way. Lund vs. Seamen^s Bank for Sewings, 20 How., 
 461 ; affirmed, 23 How., 258. 
 
 Interpleader was denied, in a case where the sum in question was 
 deposited with the original defendants, as a loan, and its title was dis- 
 jnited between the original depositors, and parties claiming under at- 
 tachments against them. Wilson vs. Duticam,, 11 Abb., 3 ; reversing 
 saTne case, 8 Abb., 354. 
 
 A common carrier who has received goods, as the property of one 
 party, cannot interplead, on their being claimed by another. McGaw 
 vs. Adams, 14 How., 461. 
 
 There can be no interpleader for a portion of an entire fund, the 
 claim to which is partly admitted and partly denied. Before the 
 court can make the order, it must appear that the discharge from 
 liability will be total. Bender vs. Sherwood, 15 How., 258. 
 
 And the fund in dispute must be ascertained, with sufficient certainty 
 •to enable it to be brought into court, unless the parties can agree to fix 
 the amount. WiUets vs. Finlay, 11 How., 468. 
 
 Nor will interpleader lie, when the demands of the different claim- 
 ants are not for the same debt, or remain unliquidated. It was accord- 
 ingly declared inadmissible in proceedings on a mechanic's lien, where 
 the owner sought to be discharged, on payment of the sum admitted by 
 him to be due to the plaintiff and other sub-contractors. Chamberlain 
 vs. O'Connor, 1 E. D. Smith, 665; 8 How., 46. 
 
 The strict rules as to interpleader are not, however, applicable to a 
 proceeding by a corporation, bringing suit against numerous holders of 
 stock, alleged to be fraudulently issued, with a view to the cancellation 
 of the certificates of such as should prove to be so. Wew York amd 
 New Haven Railroad Cormpany vs. Schvyler, 17 N. T., 592 ; 7 Abb., 
 41 ; reversing sajne case, 1 Abb., 417. 
 
 An order of this nature is appealable. Wilson vs. Dv/nca/n, 11 Abb., 
 3 ; and the final determination, on a reference under it, is reviewable 
 in the Court of Appeals. Kirly vs. FitBpatrioh, 18 N. Y., 484. 
 
212 LIMITATION OF ACTIONS.— § 41 
 
 CHAPTER II. 
 
 LIMITATION OF ACTIONS. 
 
 § 41. Statutory Provisions, 
 {a.) Peovisions of Title II., Paet II., or the Code. 
 
 The following are the provisions of the Code upon this subject, form- 
 ing title II., part II., of that measure. They have come down from 
 its original passage with comparatively little mutation, their nature 
 being that of a consolidation and re-enactment of the former law upon 
 the same subject. 
 
 TITLE II. 
 
 Of the Time of commencing Civil Actions. 
 
 Chapter" I. Actions in general. 
 
 II. Actions for the recovery of Real Property. 
 
 III. Actions, other than for the recovery of Real Property. 
 
 IV. General Provisions. 
 
 Chapter I. 
 
 Of the Time of commencing Actions in general. 
 
 § 73. (66.) The provisions contained in the chapter of the Eevised Statutes, 
 entitled " Of actions and the times of commencing them," are repealed, and 
 the provisions of this title are substituted in their stead. This title shall not 
 extend to actions already commenced, or to cases where the right of action 
 has already accrued; but the statutes now in force shall be applicable to 
 such cases, according to the subject of the action, and without regard to the 
 form. 
 
 This section' as it stands dates from 1849. The amendment from 1848 waa, however, 
 formal, rather than substantial in its nature. 
 
 § 74. (67.) Civil actions can only be commenced within the periods pre- 
 scribed in this title, after the cause of action shall have accrued, except 
 where, in special cases, a different limitation is prescribed by statute, and in 
 the cases mentioned in section 73. But the objection that the action was 
 not commenced within the time limited, can only be taken by answer. 
 
 Less comprehensive in 1848. Fixed as it stands in 1849; except the last provision, as to 
 the mode of taking the objection, which was added in 1851. 
 
LIMITATION OF ACTIONS. — § 41. 213 
 
 Chapter II. 
 The Tims of commencing Actions for the Recovery of Real Property. 
 
 The whole of thia chapter, in its present form, dates from the amendment in 1849, and has 
 come down wholly unaltered. 
 
 The same object was attained in the Code of 1848, by retaining in force the previous pro- 
 Tisions of the Revised Statutes upon the same subject. Vide 2 R. S., 293 to 295, inclusive. 
 
 § 75. The people of this State will not sue any person for, or in respect to, 
 any real property, or the issues or profits thereof, by reason of the right or 
 title of the people to the same, unless, 
 
 1 . Such right or title shall have accrued within forty years before any ac- 
 tion or other proceeding for the same shall be commenced ; or unless, 
 
 2. The people, or those from whom they claim, shall have received the 
 rents and profits of such real property, or of some part ' thereof, within the 
 space of forty years, 
 
 § 76. No action shall be brought for, or in respect to, real property, by 
 any person claiming by virtue of letters patent, or grants from the people of 
 this state, unless the same might have been commenced by the people as 
 herein specified, in case such patent or grant had not been issued or made. 
 
 § 77. When letters patent or grants of real property shaU have been issued 
 or made by the people of this State, and the same shall be declared void by 
 the determination of a competent court, rendered upon an allegation of a 
 fraudulent suggestion, or concealment, or forfeiture, or mistake, or ignorance 
 of a material fact, or wrongful detaining, or defective title ; in such case an 
 action for the recovery of the premises so Conveyed, may be brought, either 
 by the people of this State, or by any subsequent patentee or grantee of the 
 same premises, his heirs or assigns, within twenty years after such determi- 
 nation was made, but not after that period. 
 
 § 78. No action for the recovery of real property, or for the recovery of 
 the possession thereof, shall be maintained, unless it appear that the plaintiff, 
 his ancestor, predecessor or grantor, was seized or possessed of the premises 
 in question, within twenty years before the commencement of such action. 
 
 § 79. No cause of action or defence to an action founded upon the title to 
 real property, or to rents or services out of the same, shall be effectual, un- 
 less it appear that the person prosecuting the action, or making the defence, 
 or under whose title the action is prosecuted or the defence is made, or the 
 ancestor, predecessor or grantor of such person was seized or possessed of 
 the premises in question, within twenty years before the committing of the 
 act in respect to which such action is prosecuted or defence made. 
 
 § 80. No entry upon real estate shall be deemed sufficient, 'or valid as a 
 claim, unless an action be commenced thereupon within one year after the 
 making of such entry, and within twenty years from the time when the right 
 to make such entry, descended or accrued. , 
 
 § 81. In every action for the recovery of real property, or the possession. 
 
214 LIMITATION OF ACTIONS. — § 41. 
 
 thereof, the person establishing a legal title to the premises, shall be pre- 
 sumed to have been possessed thereof within the time required by law ; and 
 the occupation of such premises by any other person, shall be deemed to have 
 been under and in subordination to the legal title, unless it appear that such 
 premises have been held and possessed adversely to such legal title, for twenty 
 years before the commencement of such action. , 
 
 § 82. Whenever it shall appear that the occupant, or those under whom he 
 claims, entered into the possession of premises imder claim of title, exclusive 
 of any other right, founding such claim upon a written instrument, as being 
 a conveyance of the premises in question, or upon the decree or judgment of 
 a competent court ; and that there has been a continued occupation and pos- 
 session of the premises included in such instrument, decree or judgment, or 
 of some part of such premises, under such claim, for twenty years, the prem- 
 ises so included shall be deemed to have been held adversely, except that 
 where the premises so included consist of a tract divided into lots, the 
 possession of one lot shall not be deemed a possession of any other lot of 
 the same tract. 
 
 § 83. For the purpose of constituting an adverse possession, by any per- 
 son claiming a title founded upon a written instrument, or a judgment or 
 decree, land shall be deemed to have been possessed and occupied in the 
 following cases : 
 
 1 . Where it has been usually cultivated or improved ; 
 
 2. Where it has been protected by a substantial enclosure ; 
 
 3. Where, although not enclosed, it has been used for the supply of fuel 
 or of fencing timber, for the purposes of husbandry, or the ordinary use of 
 the occupant ; 
 
 4. Where a known farm or a single lot has been partly improved, the por- 
 tion of such farm or lot that may have been left not cleared, or not enclosed, 
 according to the usual course and custom of the adjoining" country, shall be 
 deemed to have been occupied for the same length of time as the part im- 
 proved and cultivated. 
 
 § 84. Where it shall appear that there has been an actual continued occu- 
 pation of premises, under a claim of title, exclusive of any other right, but 
 not founded upon a written instrument, or a judgment or decree, the 
 premises so actually occupied, and no other, shall be deemed to have been 
 held adversely. 
 
 § 85. For the purpose of constituting an adverse possession, by a person 
 claiming title not founded upon a written instrument, or a judgment or de- 
 cree, land shall be deemed to have been possessed and occupied in the fol- 
 lowing cases, only: 
 
 1. Where it has been protected by a substantial enclosure ; 
 
 2. Where it has been usually cultivated or improved. 
 
 § 86. Whenever the relation of landlord and tenant shall have existed be- 
 tween any persons, the possession of the tenant shall be deemed the posses- 
 •sion of the landlord, until the expiration of twenty years from the termina- 
 
LIinTATION OF ACTIONS. — § 41. 215 
 
 tion of the tenancy; or, where there has been no written lease, until the 
 expiration of twenty years from the time of the last payment of rent ; not- 
 withstanding that such tenant may have acquired another title, or may have 
 claimed to hold adversely to his landlord. But such presumptions shall not 
 be made after the periods herein limited. 
 
 § 87. The right of a person to the possession of any real property, shall 
 not be impaired or aifected by a descent being cast, in consequence of the 
 death of a person in possession of such property. 
 
 § 88. If a person entitled to commence any action for the recovery of real 
 property, or to make an entry or defence founded on the title to real prop- 
 erty, or to rents or services out of the same, be, at the time such title shall 
 first descend or accrue, either, 
 
 1. Within the age of twenty-one years, or, 
 
 2. Insane, or, 
 
 3. Imprisoned on a criminal charge, or in execution, upon conviction of a 
 criminal offence, for a term less than for life, or, 
 
 4. A married woman ; 
 
 The time during which such disability shall continue, shall not be deemed 
 any portion of the time in this chapter limited for the commencement of 
 such action, or the making of such entry or defence ; but such action may 
 be commenced, or entry or defence made, after the period of twenty years, 
 and within ten years after the disability shall cease, or after the death of the 
 person entitled who shall die under such disability ; but such action shall not 
 be commenced, or entry or defence made after that period. 
 
 Chapter III. 
 
 The Time of commencing Actions, other than for the Recovery of Meal 
 
 Property. 
 
 § 89. (69.) The periods prescribed in section seventy-four, for the com- 
 mencement of actions, other than for the recovery of real property, shall be 
 as follows : 
 
 §90. (70.) Within twenty years : 
 
 1. An action upon a judgment or decree of any court of the United States, 
 or of any State or Territory within the United States ; 
 
 2. An action upon a sealed instrument. 
 § 91. (71.) Within six years: 
 
 1. An action upon a contract, obligation, or liability, express or implied ; 
 excepting those mentioned in section ninety. 
 
 2. An action upon a liability created .by statute, other than a penalty or 
 forfeiture. 
 
 3. An action for trespass upon real property. 
 
 4. An action for taking, detaining, or injuring any goods or chattels, in- 
 cluding actions for the specific recovery of personal property. 
 
 5. An action for criminal conversation, or for any other injury to the 
 
216 LmiTATIOK OF ACTIONS. — § 41. 
 
 person or rights of another, not arising on contract, *iand not hereinafter 
 enumerated. 
 
 6. An action for relief, on the ground of fraud, in cases which heretofore 
 were solely cognizable by the Court of Chancery ; the cause of action in such 
 case not to be deemed to have accrued, until the discovery, by the aggrieved 
 party, of the facts constituting the fraud. 
 
 Dates from 1849. Substantially the same in 1848. 
 
 § 92. {12.) Within three years : 
 
 1. An action against a sheriff, coroner, or constable, upon a liability incur- 
 red by the doing of an act in his official capacity, and in virtue of his office, 
 or by the omission of an official duty ; including the non-payment of money 
 collected upon an execution. But this section shall not apply to an action 
 for an escape. 
 
 2. An action upon a statute, for a penalty or forfeiture, where the action is 
 given to the party aggrieved, or to such party and the people of this State, 
 except where the statute imposing it prescribes a different limitation. 
 
 In 1848, the words " or constable,'' were absent. They were inserted in 1849. 
 
 § 93. (73.) Within two years : 
 
 1. An action for libel, slander, assault, battery, or false imprisonment. 
 . 2. An action upon a statute, for a forfeiture or penalty to the people of this 
 State. 
 
 It may be remarked, obiter, that these periods are, in many respects, materially reduced 
 from those allowed by the Revised Statutes, with the single exception of slander. The 
 former periods were four years, in assault, battery, and false imprisonment, and six in libel. 
 
 § 94. (74.) Within one year : 
 
 1. An action against a sheriff or other officer, for the escape of a prisoner, 
 arrested or imprisoned on civil process. 
 
 § 95. (75.) In an action brought to recover a balance due upon a mutual, 
 open, and current account, where there have been reciprocal demands between 
 the parties, the cause of action shall be deemed to have accrued from the time 
 of the last item proved in the account on either side. 
 
 • Dates from 1849. In 1848, the closing words ran thus : " from the time of the lastjtem in 
 the account on the adverse side." 
 
 § 96. (76.) An action upon a statute for a penalty or forfeiture, given in 
 whole or in part to any person who will prosecute for the same, must be com- 
 menced within one year after the commission of the offence ; and if the action 
 be not commenced within the year by a private party, it may be commenced 
 within two years thereafter, in behalf of the people of tthis State, by the attor- 
 ney-general, or the district attorney of the county where the offence was com- 
 mitted. 
 
 § 97. (77.) An action for relief, not hereinbefore provided for, must be com- 
 menced within ten years after the cause of action shall have accrued. 
 
LIMITATIOIT OF ACTIONS.— § 41. 217 
 
 § 98. [18.) The limitations prescribed in this chapter shall apply to actions, 
 brought in the name of the people of tliis State, or for their benefit, in the 
 same manner as to actions by private parties. 
 
 pHAPTEB IV. 
 
 General Provisions as to the Time of commencing Actions. 
 
 § 99. (79.) An action is commenced, as to each defendant, when the sum- 
 mons is served on him, or on a co-defendant, who is a joint contractor, or 
 otherwise united in interest with him. 
 
 An attempt to commence an action is deemed equivalent to the commence- 
 ment thereof, within the meaning of this title, when the summons is delivered, 
 with the intent that it shall be actually served, to the sheriff, or other oflBcer, 
 - of the county in which the defendants, or one of them, usually or last resided ; 
 or, if a corporation be defendant, to the sheriff, or other officer, of the county 
 in which such corporation was established by law, or where its general busi- 
 ness was transacted, or where it kept an office for the transaction of business. 
 But such an attempt must be followed by the first publication of the summons, 
 or the service thereof, within sixty days. 
 
 Remodelled as it now stands in 1851. The substance of the origiaal section was to the 
 same purport. The alterations made in 1849 were chiefly formal, except that the verifica- 
 tion of the complaint was then a commencement of the action, provided the summons was 
 delivered for the purpose of service during the next five days, and afterwards actually served. 
 
 § 100. (80.) If, when the cause, of action shall accrue against any per- 
 son, he shall be out of the State, such action may be commenced within the 
 times herein respectively limited, after the return of such person into this 
 State ; and if, after such cause of action shall have accrued, such person 
 shall depart from find reside out of this State, the time of his absence shall 
 not be deemed or taken as any part, of the time limited for the commence- 
 ment of such action. 
 
 Dates from 1851. Amended also in 1849, but the changes made, on both occasions, were 
 comparatively unimportant. 
 
 § 101. (81.) If a person entitled to bring an action mentioned in the last 
 chapter, except for a penalty or forfeiture, or against a sheriff or other officer 
 for an escape, be, at the time the cause of action accrued, either : 
 
 1. Within the age of twenty-one years; or, 
 
 2. Insane; or, 
 
 3. Imprisoned on a criminal charge, or in execution under the sentence of 
 a criminal court, for a term less than his natural life ; or, 
 
 4. A married woman ; 
 
 The time of such disability is not a part of the time limited for the com- 
 mencement of the action, -except that the period within which the action 
 must be brought, cannot be extended more than five years by any such dis- 
 
218 LIMITATIOK OF ACTIONS. — § 41. 
 
 ability, except infency ; nor can it be so extended, in any case, longer than 
 one year after the disability ceases. 
 
 The four subdivisions of this section have come down unaltered, but the introduotory and 
 final clauses were amended; the former thrioe, i. e., 1849, 1851, and 1852. The latter in 1849 
 and 185], in which latter year it was settled as it stands. 
 
 § 102. (82.) If a person entitled to bring an action, die before the ex- 
 piration of the time limited for the commencement thereof, and the cause of 
 action survive, an action may be commenced by his representatives, after 
 the expiration of that time, and within one year from his death. If a person 
 against whom an action may be brought, die before the expiration of the time 
 limited for the commencement thereof, and the cause of action survives, an 
 action may be commenced against his executors or administrator, after the 
 expiration of that time, and within one year after the issuing of letters 
 testamentary, or of administration. 
 
 In 1848 this section was confined to parties plaintiff, and consisted of the first sentence 
 only, with a shght verbal difference. 
 In 1849 it was passed in its present form. 
 
 § 103. (83.) When a person shall be an alien, subject, or citizen of a coun- 
 try at war with the United States, the time of the continuance of the war 
 shall not be part of the period limited for the commencement of the action. 
 
 § 104. (84.) If an action shall be commenced within the time prescribed 
 therefor, and a judgment therein for the plaintiff be reversed on appeal, the 
 plaintiff, or, if he die, and the cause of action survive, his heirs or repre- 
 sentatives may commence a new action, within one year after the reversal. 
 
 § 105. (85.) When the commencement of an action shall be stayed by in- 
 junction, or statutory prohibition, the time of the continuance of the injunc- 
 tion 01- prohibition, shall not be part of the time limited for the commence- 
 ment of the action. 
 
 In 1848 this section was simply confined to a stay by injunction. 
 In 1849 it was altered as it stands. 
 
 § 106. (86.) No person shall avail himself of a disability, unless it existed 
 when his right of action accrued. 
 
 § 107. (87.) When two or more disabilities shall coexist at the time the 
 right of action accrues, the limitation shall not attach until they all be re- 
 moved. 
 
 § 108. (88.) This title shall not affect actions to enforce the payment of 
 bills, notes, or other evidences of debt, issued by moneyed corporations, or 
 issued or put in circulation as money. 
 
 § 109. (89.) This title shall not affect actions against directors or stock- 
 holders of a moneyed corporation, or banking associations, to recover a pen- 
 alty or forfeiture imposed, or to enforce a liability created by law ; but such 
 actions must be brought within six years after the discovery, by the 'ag- 
 grieved party, of the facts upon which the penalty or forfeiture attached, or 
 the liabihty was created. 
 
LIMITATIOK OF ACTIONS. — § 41. 219 
 
 Dates from 1849. In 1848 the reference to the Revised Statutes was specific, and banking 
 associations 'were not mentioned. 
 
 § 110. (90.) No acknowledgment or promise shall be sufficient evidence 
 of a new or continuing contract, whereby to take the case out of the opera- 
 tion of this title, unless the same be contained in- some writing signed by 
 the party to be charged thereby ; but this section shall not alter the effect 
 of any payment of principal or interest. 
 
 Dates from 1849. In 1848 the phraseology was different, and no mention was made of the 
 effect of a payment of principal or interest. 
 
 Other Statutory Provisions. 
 
 Independent of those created by the above provisions of the Code, 
 there are a few other special statutory provisions to which attention is 
 necessary. 
 
 (5.) As TO Suits by oe against Eepeesentatives. 
 
 Under 2 E. S., 89, section 38, a claim, disputed or rejected by an execu- 
 tor or administrator, and not referred pursuant to the preceding sections, 
 must be sued upon by the holder, within six months after such dispute 
 or rejection, if the debt or any part thereof be then due ; or within six 
 months after some part thereof shall become due ; or he will be barred 
 from maintaining any action. 
 
 Under 2 R. S., 448, section 8, the term of eighteen months from the 
 death of any testator or intestate, is not to be .deemed part of the time 
 limited by law, for the commencement of an action against his execu- 
 tors or administrators. And by section 9, the time between the death 
 of such person and the granting of letters testamentary or of adminis- 
 tration, not exceeding six months ; and, also, six months after the 
 granting of such letters, is not to be deemed any part of the time limited 
 by law, for the commencement of actions by executors or administrators. 
 
 (c.) Heies oe Devisees. 
 
 By 2 E. S., 109, section 53, no suit is allowed to be brought against 
 the heii-s or devisees of any real estate, in order to charge them with 
 the debts of the testator or intestate, within three years from the grant- 
 ing of letters testamentary or of administration, upon the estate of their 
 testator or intestate. 
 
 Under IE. S., 748, section 3, the title of a purchaser in good faith 
 from heirs, cannot be impaired by any devise of their immediate an- 
 cestor, unless the will of such ancestor shall have been duly proved 
 and recorded within four years from his death ; except where disability 
 or concealment exists, as noticed in subdivisions 1 and 2, in which 
 latter cases, the limitation is to commence from one year from the re- 
 
220 LIMITATION OF ACTIONS. § 41. 
 
 moval of the disability, or from the delivery of the will to the devisee, 
 or his representative, or to the proper surrogate. 
 
 {d) DoWEE. 
 
 Under 1 E. S., 742, section 18, a widow is allowed twenty years from 
 the death of her husband to demand her dower ; and if, at the time of 
 such death, she be under the disabilities of infancy, insanity, or im- 
 prisonment, the time for which such disability shall continue, is to be 
 excluded. This provision of the Eevised Statutes was held to be re- 
 trospective in Brewster vs. Brewster, 32 Barb., 428. 
 
 {e.) Ejectment. 
 
 Special limitations, with provisions in relation to disabilities, analo- 
 gous to those of the Code, are iixed by the Eevised Statutes, in relation 
 to the statutory right to a new trial in ejectment, and to judgments 
 taken by default in that action. 
 
 {f.) TJSHET. 
 
 A suit for the recovery back of money paid on usury must be brought 
 by the payer within one year from the transaction, or by the overseers 
 of the poor, or county superintendent, within three years next after 
 such one year, or it will not be maintainable. 1 E. S., 772, §§ 3, 4. 
 
 {g^ Service by Publication. 
 
 A defendant, allowed to defend an action, after judgment against 
 him on service by publication, must proceed within one year after notice 
 of such judgment, and within seven years after its rendition, or it will 
 stand against him. Code, § 135, last clause. 
 
 (A.) Justices' Judgments. 
 
 An action upon a justices' judgment cannot be brought in the same 
 county within five years after its rendition, unless under the circum- 
 stances specified in section 71 of the Code. 
 
 (i.) "Weits of Ekeoe. 
 ♦ 
 
 As regards the few cases to which the proceeding by writ of error 
 may possibly remain applicable, it may be convenient to notice the 
 limitation of two years, with provisions as to disabilities, &c., fixed by 
 2 E. S., 594, 595, sections 21 to 24, inclusive. 
 
 (J.) Suits against Stockholders. 
 
 By section 24 of chapter 40 of 1848, p. 54, divers restrictions are im- 
 posed in relation to suits against stockholders in manufacturing cor- 
 
LIMITATION OF ACTIONS. — § 42. 221 
 
 porations on their personal liability, and no sncli suit can be com- 
 menced after two years from the time that the defendant shall have 
 ceased to be a stockholder. 
 
 § 42. Real Estate. 
 
 The provisions of the Code on this subject being mainly, if not en- 
 tirely, re-enactments of previous statutory provisions, or declaratory 
 of fixed principles of law, have been the subject of comparatively little 
 discussion. 
 
 The reported cases may be classified under two heads : 1. Those in 
 relation to actions by the people. 2. Those as to actions by private 
 parties, bearing chiefly on the doctrine of adverse possession. 
 
 (a.) Actions by the People. 
 
 The legislatui'e convened under the Revised Constitution of 1846, 
 showed, at first, a strong disposition to assert the rights of the people to 
 a somewhat harsh extent, as evidenced by the resolution of the 10th of 
 April, 1848. See Laws of 1848, p. 582, expressly directing the attorney- 
 general to impeach all manorial titles throughout the state, wherever it 
 may be found practicable ; and, by the provisions of chapter 128 of the 
 Laws of 1850, declaring that proceedings so instituted by him, shall 
 have precedence over all others. 
 
 In claims of this nature, every presumption is to be made on behalf 
 of the people, and against parties claiming in opposition to them ; and 
 the mere fact of lands having been actually unoccupied, and with- 
 out the bounds of any known patent, is of itself sufficient to show a 
 prima facie title on their part, unless rebutted by distinct evidence of 
 actual adverse possession, or of adverse documentary title: this rule 
 being founded on the general principle that, prima fade, the state is 
 the owner of all unclaimed and unoccupied laijds. See The People vs. 
 Van Rensselaer, 8 Barb., 189 (193) ; Same case, 5 Seld., 291 (319) ; The 
 People vs. Livingston, 8 Barb., 253 (259). / 
 
 But, as rega,rds an actual occupant of land, there is no presumption 
 of title in favor of the people, until it is showii that the possession 
 has been vacant within forty years. People vs. Rector of Trvnity 
 Chtirch, '2i'2i ]Sr. Y., 44 ; affirming same case, 30 Barb., 537. See, also, 
 McKinnan vs. Bliss, 21 N. T., 206. 
 
 And, even as regards waste lands, proof thart those claimed are within 
 the limits of a grant or patent, executed either by the state, or by the 
 crown before the Revolution, how^ever extensive Or improvident that 
 grant may have been, will avail to rebut the presumption above referred 
 to, and to bring the case within the limits of the present or former stat- 
 
222 LIMITATION or ACTIO]SrS. — § 42. 
 
 utes, without regard to any question as to actual user or occupation. 
 People vs. Van Eensselmr, 5 Seld., 291 ; reversing 8 Barb., 189 ; People 
 vs. lAmngston^ 8 Barb., 253 ; MoKinnan vs. Bliss, above cited. See 
 also, as to suit to avoid a grant. The People vs. Olmke, 5 Seld., 349. 
 
 And in relation to proof of adverse possession, tbe same rules are to 
 be applied as against the state, as are applicable in a suit between one 
 individual and another, provided such possession has continued for the 
 full statutory period. The People vs. Clarke, 10 Barb., 120 ; affirmed, 
 5 Seld., 349. And the period of limitation is the same in a suit brought 
 by a grantee of the people, if, during the time relied upon, the title was 
 in the state. Champlain and St. Lawrence Railroad Company vs. Val- 
 entine, 19 Barb., 484. 
 
 Adverse possession must be proved for the whole period to constitute 
 a bar. But, on demurrer to answer, a technical allegation in the exact 
 words of the statute relied upon is sufficient, and will avail to defeat the 
 action. People vs. Arnold, 4 Comst, 508. In The People vs. Van 
 Rensselaer, 9 Barb., 189, it is held that, under the Code, a bare aver- 
 ment of this description is insufficient, and that the defendant must 
 plead the facts, and show an adverse possession in himself or his grant- 
 ors during the whole period, by special allegations. This decision, 
 though acquiesced in in that particular case {yide 5 Seld., 291), seems to 
 be irreconcilable with The People vs. Arnold, as above cited, and the 
 latter is of course of higher authority. 
 
 As to loss of property by the state, by omission to enforce claim to 
 it in due time, vide Phoenix vs. The Commissioners of Emigration, 12 
 How., 1 ; 1 Abb., 466. 
 
 (5.) Actions by Private Parties. 
 Adverse Possession. 
 
 "Where adverse possession commenced prior to the Eevised Statutes, 
 twenty-tive years' occupancy is required to bar a right of entry. Ola/rh 
 vs. Baird, 5 Seld., 183 ; Fosgate vs. The' Herhinner Manufacturi/ng and 
 HydraxdAo Company, 9 Barb., 287. 
 
 Though an alien cannot acquire title by means of adverse possession, 
 yet he may plead the statute, and it will be available to him as a de- 
 fence, in an action of ejectment by the true owner. Overing vs. Rus- 
 sell, 32 Barb., 263. But a mere denial of possession itself, does not 
 tender the proper issue. Ford vs. Sampson, 30 Barb., 183 ; 17 How 
 447 ; 8 Abb., 332. ' 
 
 As to the distinction between adverse possession as regards the statute 
 against champerty, and that for the purposes of the statute of limita- 
 tions, see Cra/ry vs. Goodman, 22 !N". T., 170. 
 
LI3IITATI0W OF ACTION'S. — § 42. 223 
 
 The following have been held sufficient to constitute an adverse pos- 
 session : 
 
 The continuous and uninterrupted user of a water-right or other ease- 
 ment or privilege, for more than twenty years, either under claim of 
 right, or with the assent of the owners of the land affected by such ease- 
 ment. Olmsted vs. Loomis, 5 Seld., 423 ; Miller vs. Garlock, 8 Barb., 
 253 ; Townsend vs. McDonald, 2 Kern., 381 ; Moyt vs. Carter, 16 
 Barb., 212 ; Demeyer vs. Legg, 18 Barb., 14. It creates the presump- 
 tion of a grant. Hammond vs. Zehner, 21 N. Y., 118. 
 
 But no acquiescence short of the full period of twenty years will have 
 that effect, or repel the contrary presumption, that the diversion of a 
 water-course was in hostility to the rights of riparian proprietors, and 
 not under a grant or license. Haight vs. Price, 21 IST. Y., 241. 
 
 An easement granted by deed cannot, however, be lost by mere non- 
 user. To defeat it, there must be an actual adverse possession of twenty 
 yeai's. Smyles vs. Hastings, 22 IST. Y., 217 ; affirming same case, 24: 
 Barb., 44; Townsend vs. McDonald, sfujyra. So likewise as to a pre- 
 scriptive right of way, which, though disused by assent to a substitute, 
 must be restored, if the substituted way be again closed. Hamilton vs. 
 White, 1 Seld., 9. ' 
 
 And twenty years' possession gives title to an original encroachment, 
 when not a public nuisance. ' PecTchain vs. Henderson, 27 Barb., 207. 
 
 Lengthened acquiescence in a boundary -line will also be a conclusive 
 bar. Baldwin vs. Brown, 16 N. Y., 359 ; Pierson vs. Moslier, 30 
 Barb., 81. See, also, Smith vs. McAllister, 14 Barb., 434, coming to 
 same conclusion, on the ground that an agreement will be presumed. 
 But nothing short of twenty years' acquiescence will be a bar. Unless 
 there be an estoppel mpais. JEmericTc vs. KoTiler, 29 Barb., 165. 
 
 After twenty years' possession, by a vendee who lias performed his 
 contract, a conveyance to him will be presumed. But the presumption 
 will, it seems, only run from the time of actual or presumed perform- 
 ance. Vrooman vs. Shepherd, 14: ^nrh., 4:4:1. And payment will not, 
 in such a case, be presumed in favor of the vendee, on his affirmative 
 proceeding, though the contract was a sealed contract. Morey vs. 
 Fa/rmers' Loan a/nd Trust Compamy, 4 Kern., 302 ; reversing sam,e 
 case, 18 Barb., 401. See likewise, as to presumption of a grant, Da- 
 ney&r vs. Legg, 18 Barb., 14. 
 
 Possession of thirty-five years, under a grant, originally invalid for 
 want of sufficient consideration, but absolute in its terms, was held to 
 be adverse, in Corwvn vs. Corwin, 9 Barb., 219. See, likewise, as to 
 title derived from parties not originally entitled to convey, but acqui- 
 esced in by claimants, Orim vs. Dyar, 3 Duer, 354. 
 
 In Robie vs. Sedgwick, 35 Barb., 319, it was held, that twenty years' 
 
224 LIMITATION OF ACTIONS. § 42. 
 
 • 
 
 exclusive possession by trustees of a school district, was sufficient to raise 
 the presumption of a valid right in them, as against defendants confess- 
 edly without title ; also, that a corporation may claim title by means 
 of adverse possession, the same as an individual. Likewise, that the 
 doctrine of abandonment by non-^iser, applies only to easements claimed 
 by one over the land of another, and not to title to the land itself. 
 
 See, as to presumption of payment of a mortgage after twenty years, 
 Belmont vs. G'Bnen, 2 Kern., 394. But such presumption will not lie, 
 if there has been a recognition of such mortgage within twenty years. 
 Harrington vs. Slade, 22 Barb., 161 ; or at any time within twenty years 
 after that mortgage has become due, Jngraham vs. Baldwin, 5 Seld., 
 45 ; Peck vs. Mallams, 6 Seld., 509 ; Calkins vs. Mell, 20 'E, T., 147. 
 
 The unequivocal assertion of title on the part of a party in posses- 
 sion, is sufficient to make that possession adverse ; and such adverse pos- 
 session will comprise premises actually so enjoyed, even though they be 
 not technically comprised in the deed under which such party claims 
 title. Sherry 'VS. Freelcing, ^ Duer,'453. But, unless he repels that 
 presunjption by positive Evidence of an adverse claim of title on his 
 part, he will, prima facie, be presumed to claim no more than what his 
 deed embraces. Bowie vs. Brake, 3 Duer, 35. 
 
 In Thompson vs. The Mayor of New York., 1 Kern., 115, it was held, 
 that the mere appropriation of the whole of the wharfage of a pier, of 
 which the corporation was entitled to receive, and had demised, one 
 moiety, by the owner of the other half, was not sufficient to create a 
 title by prescription against them, there being no notice to, or knowl- 
 edge shown, on their part, that an adverse claim was made, or that the 
 wharfage was being received in contravention of their rights. 
 
 In Lane vs. Gould, 10 Barb., 254, the nature of adverse possession 
 with reference to open and uninclosed woodlands is defined in extenso. 
 The possession there claimed was not continuous as to any specified 
 portion of the property, but consisted in taking wood at various times, 
 and in occasionally inclosing and cultivating small portions for a single 
 season. It was held that this species of enjoyment was not sufficient to 
 constitute a title, and that, to make out an adverse possession, where 
 there is no deed, there must be a real substantial inclosure, a '■'■pedis 
 fossessio" or an usual cultivation or improvement of the premises, con- 
 tinued for a sufficient length of time, and accompanied throughout by 
 a claim of title. It is not necessary that this occupancy should be un- 
 der a rightful title, but it must be marked by definite boundaries, and 
 continued for a sufficient period. See also, on these points. Poor vs. 
 Eorton, below cited. It was also held, with reference to a claim under 
 a deed, that the only effect of a paper title was to enlarge and extend 
 the possession, so as to include the entire lot described ; but that, if the 
 
LIMITATION OF ACTIONS. — § 42. 225 
 
 instniment claimed under contain no certain and ascertainable descrip- 
 tion, it cannot have the effect of extending the possession beyond the 
 ^^ pedis possessio," which is definite, positive, and notorious. 
 
 So, also, in Corning vs. Troy Iron and Nail Faotory^ 34 Barb., 523; 
 22 How., 212, it was held that the limits of property adversely pos- 
 sessed could not be extended by construction. To give the defence 
 effect there must be actual occupancy, measured by a distinct, visible, 
 and marked, and not by a presumptive or constructive possession. 
 
 "Where, however, there has been an actual occupation and a substan- 
 tial inclosure, possession for a sufficient time will avail to give title, 
 though part of that inclosure consist of a natural boundary. Becker vs. 
 Yan VaZh&nburgh, 29 Barb., 319. 
 
 Tlie mere exercise of an alleged right of commonage does not avail 
 to constitute an adverse possession. And, if such alleged right be 
 inerely personal in respect of inhabitancy, it cannot be sustained: Smith 
 vs. Floyd, 18 Barb., 522. 
 
 I^for will the mere cutting of lumber for sale, or for fuel, indiscrimi- 
 nately exercised over a large uninclosed tract, avail to constitute an 
 adverse possession, under the provisions of the Revised Statutes equiv- 
 alent to subdivisions 3 and 4 of section 83. Munro vs. Merehant, 26 
 Barb., 383. 
 
 In Poo7' vs. Horton, 15 Barb., 485, it was held, that where an entry 
 had been made on wild lands, but not proved by whom, "the presump- 
 tion was that such entry was permissive, and not in hostility to the true 
 title." It was also held, that an ejectment for uncultivated lands might 
 be maintained without actual entry ; and likewise, that an adverse 
 claimant in possession may legally abandon or release his rights, and 
 will be concluded by his acts in this respect. 
 
 Use alone, for twenty years, is sufficient to establish a dedication of 
 land to public purposes ; but, to support such a dedication, it must have 
 been the. free and voluntary act of the owner. Gould vs. Glass, 19 
 Barb., 179; Wiggins y?, Talhnadge, 11 Barb., 457. See, generally, as 
 to dedication, Clements vs. The Village of West Troy, 10 How., 199 ; 
 16 Barb., 251 ; Badeau vs. Mead, 14 Barb., 328. 
 
 An original dedication may, however, be lost by non-user, against an, 
 actual adverse possession during a sufficient period. Baldwin vs. The 
 City of Buffalo, 29 Barb., 396. 
 
 As against a reversioner, there cannot be an adverse possession ; it 
 can only exist as against a person entitled at the time. Clarice' vs. 
 Hughes, 13 Barb., 147 ; BurhoMsys. Van Zamdt, 3 Seld., 623 ; JEtoyt vs. 
 Dillon, 19 Barb., 644 ; Leoflrned vs. Tallmadge, 26 Barb., 443. A re- 
 versioner or remainder-man have, each of them, twenty years to bring 
 suit, after the commencement of their right of entry, and also the 
 Vol. 1.^15 
 
226 LIMITATION OF ACTIONS. — § 42. 
 
 farther period of disability, if existent. Mcmdall vs. Baah, 2 Abb., 
 307. 
 
 Nor will a mere trespass, witbout claim of title, avail to constitute 
 an adverse possession. Millet' vs. Piatt, 5 Duer, 272 ; vide Bowie vs. 
 Brahs, swpra. 
 
 A grantor, who has remained, in possession, will be estopped from 
 claiming that possession to be adverse as against. his grantee. Bat, 
 where the latter has entered nnder his conveyance, and the title con- 
 veyed to him was good, the rule will no longer apply, and the grantor 
 will be no more precluded from setting up an adverse possession subse- ' 
 quently oi"iginated, than he would be from taking a subsequent con- 
 veyance from the grantee. Kent vs. Hwrcourt, 33 Barb., 491; Despm^d 
 vs. Walhridge, 15 N. Y., 374. 
 
 A judgment-debtor, continuing in possession after an execution sale 
 of his interest, might, it was held, be presumed to hold title under the* 
 purchaser. Where the latter had omitted to record his deed, it was 
 held that such possession was not constructive notice to the claimant 
 of a subsequent interest. Also, that by omitting to claim an adverse 
 right, he had waived it. Ooolc vs. Tra/vis, 20 IST. T., 400. 
 
 Possession held under a derivative or subordinate title, however 
 lengthened, is not adverse. Howard vs. Howard, l7 Barb., 663 ; 
 Learned vs. Tallmadge, 26 Barb., 443. A tenant cannot originate or 
 continue it as against his landlord. Cm'nim,g vs. Tray Iron and Na/d 
 Factory, 34 Barb., 485 ; 22 How., 217. 
 
 (o.) Special Limitation. 
 
 In Boe vs. Sioezey, 10 Barb., 247, it was held that a suit, having, 
 directly or indirectly, the effect of charging real estate in the hands of 
 heirs with the debt of their ancestor, could not, under any circum- 
 stances, be commenced within the three years' limitation fixed by stat- 
 ute, 2 R. S. 46 ; even though that suit sought to deprive them of that 
 character, and to render them liable as purchasers, under a deed of trust. 
 
 After the expiration of that period, the period of future limitation 
 will be the ten years fixed by section 97. So held, in an action to 
 charge the real estate in the hands of a devisee. Elnjoood vs. Biefen- 
 dorf, 5 Barb., 398 ; Wood vs. Wood, 26 Barb., 350. 
 
 {d.) Disabilities. 
 In relation to the application of the rule as to disabilities, as laid 
 down by section 88, see Bandall vs. Baab, 2 Abb., 307. As to the 
 exact date from which the period of ten years allowed by that section 
 will commence to run, see Phelan vs. Douglass, 11 How., 193. Refer 
 to sections 106 and 107 in reference to disabilities in general. 
 
IJMITATION OF ACTIONS, — S 43. 227 
 
 § 43. Personal Actions. 
 
 The provisions on this subject form title III. of part II., as above 
 ' cited ; sections 107, 108, 109, and 110 of title IV., which fall more pe- 
 
 * ciiliarly within this branch of the subject, will also be considered in the 
 ■ present division ; the xjext being more peculiarly devoted to matters 
 
 relating to the subject of limitations in general, without regard to the 
 distinction between real and personal causes of action. 
 
 As to the rule for the computation of time in such cases, see 
 McGraw vs. Walker, 2 Hilt., 404. 
 
 {a.) Twenty Teaes. 
 
 This period is now fixed, as will be seen, as an absolute limitation, 
 
 * and not by way of presumption of payment, as under the analogous 
 provisions of the Revised Statutes. When examined into, it will be 
 found, however, that the distinction does not, in reality, effect any sub- 
 stantial alteration. in the rights of parties entitled under a judgment or 
 a sealed instrument ; the same conditions, *. e., an acknowledgment or a 
 payment on account of the original debt, which, under the Revised 
 Statutes, availed to rebut the presumption, are, under section 110 of the 
 Code, of equal avail to take the case out of the operation of the 
 present statute. As to the case of part payment, there is a species of 
 inten-egnum between 1848 and 1849, the section of the former year, 
 though abolishing the provisions of the Revised Statutes, being silent 
 on that subject, and having reference to an acknowledgment only. In 
 1849, however, this anomaly was removed, and the pi'ovisions of the 
 former, and of the present law, substantially harmonized. 
 
 The provisions, in this respect, are not retrospective, as will be seen 
 in the cases cited below, in connection with this branch of the subject. 
 The same was the case with reference to those of the Revised Statutes, 
 in cases which arose antecedent to their passage ; the older law gov- 
 erns in each case. Vide Garll vs. Hart, 15 Barb., 565 ; Austin vs. Tomp- 
 Mns, 3 Sandf., 22; Waddell ys. Ehnendorf, 12 Barb., 585; affirmed, 
 6 Seld., IVO; Henderson vs. Cairns, 14 Barb., 16. 
 
 In relation to the presumption of payment of a debt secured by mort- 
 gage, see Belmont vs. O^Brien, 2 Kern., 394 ; Harrington vs. Slade, 'iH 
 Barb., 161 ; Ingraham vs. Baldmim,, 5 Seld., 45 ; Peck vs. Mallamhs, 6 
 Seld., 509 ; and Calkins vs. Isbell, 20 N. Y., 147 ; referred to in the 
 preceding section. See, likewise, as to the term presumption of pay- 
 ment, and what it generally imports, Martin vs. Oage, 5 Seld., 398 ; 
 The New York Life Insurance and Trust Compam,y vs. Covert, 29 
 Barb., 435 ; Austin vs. TompMns, 3 Sandf., 22. But the presumption 
 
228 LIMITATION OF AOTIOKS. § 43. 
 
 of payment, under these circumstances, is strictly defensive in its na- 
 tiu-e, and cannot, under any circumstances, be made the ground for 
 affirmative relief Morey vs. The Farmers^ Loan and Trust Compcmy, 
 4 Kern., 302 ; Lcmrenoe vs. Bull^ 4 Kern., 477. 
 
 The former law, as to. pleading such a preaumption, has, of course, 
 become obsolete ; but the principle laid down in Austin vs. Tom.pJcins, 
 i. 6., that, where a judgment has been taken against executors, for assets 
 " quam,do aodd.&rint^'' that judgment will still remain in force, and the 
 parties holding it may enforce it at any time, as against assets subse- 
 quently accrued, at however late a period, may probably be held to be 
 still existent, even under the present more positive limitation. 
 
 An assessment on property has the effect of a mortgage or of a judg- 
 ment, and the same period of limitation applies to an action for its en- 
 forcement. Mayor of New York vs. Colgate, 2 Kern., 140 ; affirming 
 2 Duer, 1. 
 
 In foreclosure, on a mortgage for securing the amount of a note, 
 the twenty years' period runs. Pratt vs. Huggins, 29 Barb., ,277. 
 
 When the lien of a judgment on real estate is barred by lapse of 
 time, the court will protect the rights of hand fide purchasers by per- 
 petual injunction. Wilson vs. Smith, 2 C. K., 18. 
 
 The wording of section 90, would seem to be sufficiently large to in- 
 clude the judgments of a court not of record. See Dela/van vs. Florence, 
 9 Abb., 277, note ; see also Nicholls vs. Atmood, 16 How., 475. Where 
 such judgment is docketed in the county court, such is clearly the case. 
 Waltermire vs. Westover, 4 Kern.j 16. 
 
 As against the real estate of an intestate, a surrogate's decree, award- 
 ing a mere personal judgment in favor of the administratrix, as the 
 result of an accounting, has not, for the purposes of the statute of limi- 
 tations, the force of a regular judgment. It is, so far, a mere per- 
 sonal claim, and not enforceable as a debt of the intestate. Bull vs. 
 MUler, 17 How., 300. 
 
 In Whitens Bank of Buffalo vs. Ward, 35 Barb., 637, it is laid down 
 that, in a ease where judgment had been entered against joint debtors, 
 on service of part of them, under the provisions of the Code^ a defend- 
 ant not served, could not avail himself of the six years' limitation, as 
 against a suramons to show cause why he should not be bound by the 
 judgment, under the proceedings now provided for by that measure. ■ 
 
 (5.) Six Teaes. 
 
 The scope of section 91 ia of the widest nature, and embraces within 
 it by far the larger portion of civil actions, whether sounding in tort or 
 in contract. 
 
 See, as to proceedings against a joint-debtor not served with the ori- 
 
LIMITATION OF ACTIONS. § 43. 229 
 
 ginal process, not being comprised within this period of limitation, 
 White's Bank of Buffalo vs. Wa/rd, above cited. 
 
 The following decisions have been made, as to the time from which 
 the statute, when set in motion, will commence to run : 
 
 As against administrators of the deceased maker of a joint and seve- 
 ral note, the period of eighteen months from the death of their intestate, 
 will have to be added to the six years statutory time. They will, for 
 this purpose, be regarded as sued separately. Parker vs. Jackson, 16 
 Barb., 33. 
 
 Where the trustee of a religious incorporation had collaterally secured 
 their debt on his own estate, he was held entitled to the rights of a 
 surety, and that, as between him and the society, the statute only -ran 
 from the enforcement of the debt against his estate, without regard to 
 that of the original transaction. Jones vs. East Society M. E. Church 
 of Rochester, 21 Barb., 161. 
 
 In a suit by an indorser compelled to pay the amount of a note, 
 against prior indorsers, the statute will run from the time of payment 
 of the money by him, and not from the maturity of the note. Barker 
 vs. Cassi&y, 16 Barb., 177. But the remedy of the payee against the 
 maker, under similar cfrcumstances, arises upon the note itself, and 
 not in respect of the payment, and the statute will run accordingly. 
 Woodruff vs. Moore, 8 Barb., 171. 
 
 So long as a right remains suspended and vested in no one, the ope- 
 ration of the statute is suspended also. Thus, in p, case where an 
 action was brought by an administrator, in respect of property re- 
 ceived after the intestate's death, but before administration taken out, 
 it was held that the statute did not commence running until the latter 
 date. BucMin vs. Fcyrd, 5 Barb., 393. 
 
 The stock note of a mutual insurance company, though in form pay- 
 able on request, is, in law, payable on demand, and the statute begins 
 to run against it from it:s date. Howland vs. Edrminds, 23 How., 152 ; 
 reversing same Gase,^Z Barb., 433; Bdl vs. Yat^, 33 Barb., 627; 
 Sands vs. St. John, 23 How, 140. 
 
 A double principle of limitation will be applicable in proper cases. 
 Thus, where a note was secured by mortgage, it was held that, as to the 
 remedies on the latter, the twenty years period applied, but that a suit 
 on the note only should be brought within the six years. Pratt vs. 
 Muggins, 29 Barb., 277. See also, as to the operation of the former 
 statute, in cases where remedies were concurrent, AjppWyg vs. Brown, 
 23 How., 207. 
 
 So also where stock had been pledged, it was held that, although an 
 equitable action to redeem might be brought within ten years, the legal 
 
230 LIMITATION OF ACTIONS. § 43. 
 
 remedy, by trover or otherwise, was limited to six. Roberts vs. Sykes, 
 30 Barb., 173 ; 8 Abb., 345. 
 
 Services rendered for a lengthened period, under a general retainer, 
 will, for the purposes of the statute, be regarded as a hiring from year 
 to year, and not as a claim dating from the expiration of the employ- 
 ment. Davis vs. Gorton, 16 IST. Y., 255. 
 
 The right of an attorney to sue his client for the costs of an action 
 accrues, and the statute will run from the recovery of judgment in the 
 client's favor, without regard to the attorney's power to take subsequent 
 proceedings, if advisable. Adams vs. Foi-t Plain Banh, 23 How., 45. 
 
 In an action against assessors, the statutory time will run from the 
 date of completion of their assessment. Mygatt vs. Washhv/rn, 15 
 K T., 316. 
 
 The same case decides that an action commenced on the 24th of July, 
 1852, the assessment being completed on the same day in 1846, was not 
 barred, on the ordinary principle of excluding the first and including the 
 last day of a statutory period. 
 
 A surrogate's decree in favor of an administratrix for a balance due 
 to her from the estate, is, for the purpose of enforcement against the 
 real estate of the intestate, a mere personal claim under the special pro- 
 vision of 2 K. S., 293 (4th edition), and, as such, falls within the six years' 
 limitation. Bull vs. Miller, 17 How., 300. 
 
 "Where credit is given on a sale of goods, the statute commences to 
 run from the expiration of that credit, and not from the date of the sale 
 itself Vide Harden vs. Palmer, 2 E. D. Smith, 172. 
 
 In actions sounding in tort, the date of the commission of the injury 
 or offence complained of, governs the statutory time. 
 
 Thus, in trover, the statute was held to run from the actual conver- 
 sion of the property, without regard to the time of demand and refusal, 
 in Kelsey vs. Griswold, 6 Barb., 436. 
 
 In an action against an agent, for neglect to pay over moneys collected 
 by him, the statute runs from the date of the collection, no previous 
 demand being necessary. Hichoh vs. EiokoTi, 13 Barb., 632. Vide 
 Schroeppel vs. Corning, 2 Seld., 107 (117). This strict doctrine is a little 
 modified in Lyle vs. Mtirray, 4 Sandf, 590, which holds that, under 
 such circumstances, the agent is bound to give his principal immediate 
 notice. If he does, and the principal omit to make a demand within a i 
 reasonable time, he will then put the statute in motion. li 
 
 But this is not the case, with respect to goods left with a factor for 
 sale on commission. In such a case the principal is bound to make a 
 demand, and until he does so, the statute wiU not commence to run. 
 Bai/rd vs. Walker, 12 Barb., 298 ; ICE. (N. S.), 329; LyU vs. Mur- 
 ray, swpra; Halden vs. Crafts, 4 E. D. Smith, 490 ; 2.Abb.'j 301. And 
 
LIMITATION OP ACTIONS. § 43. 231 
 
 even if the factor undertake to remit such funds without direction of the 
 principal, he does so at his own risk. Heulach vs. Bother, 2 Duer, 227. 
 
 The statute doefi not commence to run against the consignor of mer- 
 chandise to a foreign port, until after the account of its sale by the con- 
 signee has been received by him. Davis vs. Cram,, 4 Sandf , 355. 
 
 A suit against a stockholder, to charge him individually with a debt 
 of his corporation, falls within subdivision 2 of the section now in ques- 
 tion. It is not an action for a penalty, under section 92. Coming vs. 
 MoCullough, 1 Comst., 47. 
 
 In Schroeppel vs. Corning, 10 Barb., 576, affirmed by the Court of 
 Appeals, 2 Seld., 107, it was held that, in an action brought to set aside 
 an assignment of securities made as part of an usurious transaction, the 
 statute will commence running from the date of that assignment, both 
 as regards the assignment itself, and also as to any moneys paid under 
 it: Paige and Foote, J. J., dissenting from the latter conclusion, and 
 holding that the receipt of such moneys created a new cause of action. 
 
 In an action for the use of chattels, the statute is a bar to any portion 
 of the claim which accrued more than six years before the action is 
 brought, aider vs. Union India Rubber ConvpoMy, 4 Bosw., 169. 
 Same vs. Same, 6 Bosw., 85. 
 
 The following cases have been decided under subdivision 6, or the 
 analogous provisions of the Revised Statutes. In an action to enforce 
 an equitable lien for unpaid purchase-money, the debt and not the lien 
 is the cause of action, and the six years' limitation will apply ; and the 
 rule would seem to be the same in all cases where, formerly, the courts 
 of common law and equity would have had concurrent jurisdiction. 
 Sorst vs. Corey, 15 I^. T., 505. See also Mayne vs. Oriswold, 3 
 Sandf., 463 ; Applehy vs. Brown, 23 How., 207. 
 
 To render the defence, that the plaintiff discovered the facts constitut- 
 ing the fraud more than six years back, available, that defencei must be 
 distinctly pleaded and proved. Sears vs. Shafer, 2 Seld., 268. See 
 also Mayne vs. Qriswold, swpra. In relation to what may or what 
 may not be held to amount to a discovery, see Bidwell vs. The Astor 
 Mutual Inswrance Company, 16 !N". Y., 263, which holds that there is 
 no rule of law fixing the period in which delay in asserting a right 
 under such circumstances will bar a party from relief, other than that 
 contained in this statute. 
 
 (e.) Theee Yeaes. 
 
 The sheriff is entitled to the benefit of this limitation in an action 
 agaiiist him for taking the goods of a third party, in the absence of any 
 evidence of bad faith. Bennison vs. Plumb, 18 Barb., 89. 
 
 And even where the breach has been a gross one, the statute will 
 
232 LIMITATIOK OF ACTIONS. § 43. 
 
 commence running in his favor from the date of the breach of duty on 
 his part, and not from the time of its discovery. Vcm Tmsel vs. Vrni 
 Tassel, 31 Barb., 439. 
 
 But in such cases, as in others, the periods of suspension consequent 
 upon the death of the party injured, and the taking out of adminis- 
 tration to his estate, will be excluded. Coddvngton vs. CmmUy, 2 
 Hilt., 528. 
 
 A suit against a stockholder for payment of a corporation debt, un- 
 der the provisions of the Eevised Statutes, was held not to be an action 
 for a penalty, within the scope of this provision. Coming vs.^ MoOul- 
 lough, 1 Comst., 47. An action to charge trustees of a manufacturing 
 corporation with its debt, on the ground of omissions and breaches of 
 duty, was held to be an action for a penalty in Merohcmts' Bamk of JSfew 
 Hwoen vs. Bliss, 21 How., 365; 13 Abb., 225. 
 
 ((?.) One Year. 
 
 "With reference to an action for an escape, it may, though not in strict- 
 ness bearing upon the question of limitation, be convenient to observe, 
 that the subsequent death of an escaped prisoner, before action brought, 
 is no discharge of such liability. See Tanner vs. HaUenheoTc, 4 
 How., 297. 
 
 The fact that a prior escape has taken place, unknown to the plaintiff, 
 will not be available as a defence to the sheriff, in such an action, 
 brought in due time after the escape actually complained of. Benick 
 vs. Orser, 4 B6sw.,,384. 
 
 In Schroejfypel vs. Corning, 2 Seld., 107, affirming 10 Barb., 576, it 
 was held that the limitation of one year, in relation to suits on usurious 
 contracts, fixed by the provision of the Eevised Statutes, cited at the 
 conclusion of the preceding section, applies only to eases where money 
 is actually paid for excess of usury, and not to a suit brought to set 
 aside an assignment of securities for similar purposes, or for moneys re- 
 ceived under such assignment. Under these circumstances, the usual 
 statutory period of six years is applicable. 
 
 {e.) Ten Yeaes. 
 
 This period includes, as a general rule, all suits or controversies of an 
 equitable nature, except such as fall within the class of actions for relief 
 ' on the ground of fraud, and which are specially excepted from its ope- 
 ration, and brought within the six year class, by subdivision 6 of sec- 
 tion 91. And this exception applies generally in all cases, whether 
 within the scope of the exclusive or of the concurrent jurisdiction of the 
 courts of equity on that ground. See above under that class, and.^w«< 
 vs. Corey, and Mayne vs. Griswold, there cited. 
 
XEiflTATION OF AGITOlirS. — § ,43. 233 
 
 In the former of these decisions it was held, that an action to enforce 
 a mere equitable lien for unpaid purchase-money, not secured by any 
 ^^ecial instrument, fell within the six years period. It was, in effect, 
 an action for the debt itself, the lien being held to be a mere incident, 
 and to be of no higher natlire than the debt out of which it arose. It 
 may be remarked that the decision is based on the antecedent provi- 
 sions of the Eevised Statutes, now repealed by section T3, the action 
 being antecedent to the code, and that the reasoning in the opinion 
 mainly depends upon the special wording of those provisions. The 
 question may possibly, therefore, be considered as still open, under the 
 present wording of the code, in cases as to which fraud cannot be pre- 
 dicated. In Bloodgood vs. Bruen, however, 4 Seld., 362, it was held 
 incidentally, that the equitable right to an action against the estate of a 
 deceased partner, where the surviving partner subsequently becomes 
 insolvent, arises at the time of such insolvency, and is barred in ten 
 years therefrom. The question was not raised, but it might fairly be 
 contended that the remedy against the deceased partner's estate, was 
 as much a mere incident to the original indebtedness, as the lien for such 
 original debt, sought to.be enforced in Borst vs. Gorey. 
 
 A suit for enforcement of a mortgage, or lien secured by deed, is 
 clearly within the longer limitation. Yide Borst vs. Gorey, supra, p. 
 510. See also Pratt vs. Huggins, before cited. A suit for enforcement 
 of a debt against the real estate of a testator in the hands of the devi- 
 see, has been held to be purely equitable, and to fall within the ten 
 years limitation. JEhuood vs. Diefendorf, 5 Barb., S98. 
 
 An action for an account in respect of transactions between the cash- 
 ier of a bank and the bank itself, with a view to ascertain the balance 
 due, claimed by the plaintiff, as purchaser of all demands at a judicial 
 sale of the bank assets, was held to be strictly equitable, and within the 
 ten years limitation in Mann vs. Fairchild, 14 Barb., 548. 
 
 An administrator, who had failed to prove his debt against the intes- 
 tate's estate for ten years, was held to be barred under this section. 
 In re Rogers, AdmAnistrator, 11 L. 0., 245. 
 
 In relation to. the applicability of this period of limitation (com- 
 mencing from the expiration of the previous statutory provision of three 
 years), in a suit to charge the debts of a testator on his real estate in the 
 hands of devisees, see close of previous section (42), and Elmood vs. 
 Diefendorf and Wood, vs. Wood, there cited. 
 
 The statute does not commence to run, against a party in actual 
 
 possession of property, until after his actual eviction, although his cause 
 
 of action might have previously accrued. Bartlett vs. Judd, 23 
 
 Barb., 262. 
 
 As between pledger and pledgee, the time at which the former is en- 
 
234 LIMITATION OF ACTIONS. § 43. 
 
 titled to redeem, will be that from which the statute commences to nin, 
 nor will the subsequent receipt of the profits of the thing pledged, by 
 the latter, avail to constitute a new cause of action, or alter the compu- 
 tation of the time of limitation. Roberts vs. SyTces, 30 Barb., 173 ; 8 
 Abb., 345. 
 
 In a suit for the purpose of reforming a deed, the statute does not 
 commence to run, if ever, until the discovery of the error complained 
 of, and the assertion of an adverse claim in consequence. Bartlett vs. 
 Jvdd, 21 ISr. Y., 200. See also, as to the enforcement of unfulfilled 
 conditions in an antenuptial settlement, De Pierret vs. Thorn, 4 
 Bosw., 266. 
 
 (/".) DlSABILniES, &c. 
 
 Although inserted in the Code, as part of the chapter devoted to gen- 
 eral provisions (section 101), in relation to disabilities, has more peculiar 
 reference to the statute, as applicable to personal estate only, and is 
 therefore referred to here. There are no reported cases since the Code 
 immediately bearing upon its terms. In relation to the date from 
 which the period allowed will be counted, see Phelan vs. Douglass, 11 
 How., 193, already cited under the head of Peal Estate. Kefer to sec-, 
 tions 106 and 107, on the subject of disabilities, generally considered. \ 
 
 The two following subjects, though of a general nature, and inappli- 
 cable to any specific period of limitation, fall naturally within the head 
 of personal, as contradistinguished from real estate, and will therefore 
 be considered in the present connection. The former of them is in fact 
 classified, by the framers of the Code, in the chapter devoted to that par- 
 ticular subject ; the latter, forming the subject of section 110, is disas- 
 sociated by them, and included in the chapter of general pi-ovisions. 
 
 (^.) Account Cueeent, Effect of. 
 
 The present wording of section 95, dating, as above noticed, from 1849, 
 is far more liberal in its scope than the previous provision of 1848, or 
 than the old law upon the subject ; under which, it was held in Hal- 
 loch VB. Losee, 1 Sandf., 220, that items on one side only were not sufli- 
 cient to take a case -of current account out of the statute, and that there 
 must be items on both sides, within the period of limitation, to have 
 that eftect. 
 
 To bring the case within the present statute, however, it seems clear 
 that the account must not merely be not one-sided, but that, to have that 
 operation, it must be one in respect of mutual dealings, commenced be- 
 fore, but continued within the period of limitation. See, as to the law on 
 this subject prior to the Kevised Statutes, but now obsolete, Ogden vs. 
 Astor, 4 Sandf, 311. The subsequent receipt of profits on a thing 
 
LIMITATION OF ACTIONS. — § 43. 235 
 
 pledged, by the pledgee, ■will not avail to make out a ease of mutual 
 accounting, but time will run as against the pledgor from the period 
 when he was entitled to redeem. Roberts vs. Sylces, 8 Abb., 345 ; 30 
 Barb., 173. 
 
 To bring a case within the statute, the dealings must be direct, and 
 the account an open account between the actual parties. Where there- 
 fore one of the parties to such an accounting had purchased a demand 
 against the other, on an open account between the latter and a third . 
 party, it was held that his demand on such assigned claim, was barred 
 by the lapse of six years from the time it accrued to his assignor, though 
 the assignment was made before the statute attached, and mutual deal- 
 ings had subsequently been continued between the assignee and the 
 debtor. Oreen vs. Ames, 4 Kern., 225. 
 
 (A.) Acknowledgment oe Paet Payment. 
 
 The Code prescribes, as will be seen by section 110, that, to bar the 
 operation of the statute, an acknowledgment or new promise must be in 
 writing, signed by the party to be charged thereby. This rule is now 
 imperative. 
 
 It destroys, therefore, the authority of the previoiis class of cases, giv- 
 ing effect to a parol acknowledgment or new promise under similar cir- 
 cumstances. Vide Waikins -vs. Stevens, 4 Barb., 168 ; Waheman vs. Sher- 
 man, 5 Seld., 85 ; and case helow, 11 Barb., 254 ; Beach vs. Tooher, 10 
 How., 29Y ; Philips vs. Peters, 21 Barb., 351 ; Oarshore vs. Huyoh, 6 
 Barb., 583. However binding in its form, such a promise will now, for 
 the future, be unavailing. See Wadswm'th vs. Thomas, 7 Barb., 445 ; 
 3 C. E., 227 ; Esselstyn vs. Weeks, 2 Kern., 635 ; 2 Abb., 272 ; revers- 
 ing, 2 E. D. Smith, 116 ; E(ype vs. Boga/rt, 1 Hilt., 544. 
 
 In CHZlespie vs. Rosenlcrants, 20 Barb., 35, and Qlen Oove Mutual 
 Insuramee Company vs. Hayi-old, 20 Barb., 298, it is, however, held that 
 this doctrine does not extend to cases where the right of action had ac- 
 crued prior to the Code ; such cases being, by section 73, expressly ex- 
 cluded from the operation of the whole title referring to this subject; 
 and that, accordingly, in such cases, the former law governs, and a 
 parol acknowledgment, though made subsequent "to the Code, will still 
 be sufficient to take the case out of the operation of the statute. See 
 also Winchell vs. Bowman, 21 Barb., 448 ; affirmed as WiMchell vs. 
 Hieks, 18 IS.. T., 558. The dictum, in this last report (p. 566), seems 
 to overrule the contrary view, as maintained in Yam, Alen vs. Feltz, 32 
 Barb., 139 ; 9 Abb., 277. 
 
 The acknowledgment, by letters, of a balance due upon a note, and 
 a remittance, to be applied on account of it, within six years, were held 
 in McMullm vs. Grannis, 10 L. 0., 57, to be sufficient to take the case out 
 
236 LIJnTATION OF ACTIONS.— § 43. 
 
 of the statute ; and it was also held, that under such circumstances, the 
 onus will lie on the defendant setting up the statute, to show that there 
 was another indebtedness to which such acknowledgment might refer. 
 
 To have the effect in question, the acknowledgment relied upon must 
 be direct and Toluntary. If deficient in either of these respects it will 
 be unavailing. Thus in Bloodgood vs. Bruen, 4 Seld., 362 ; reversing 
 same case, 4 Sand., 427, it was held that A recognition of the plaintiff's 
 .debt by the defendant, in an answer in another suit brought by a 
 different party, was not sufficient to revive the claim. 1. Because it 
 was not made to the plaintiff or to any one representing him, but to a 
 stranger. 2. Because the admission was not voluntary. 3. Because 
 the defendant there in question did not make the alleged admission in 
 the character of executor, in which he was sued, but in another ; and, 
 4. Because, if the admission had been made by him in the character of 
 executor, it could not bind the estate of the testator. If he could do so 
 in any manner, it could only be by a positive contract. It was like- 
 wise held that the party in question, as surviving partner, could not, 
 by any act of his, revive the debt as against the estate of his deceased 
 partner. 
 
 See likewise, on first of these heads, Wakeman vs. Sherman, 5 Seld., 
 85 ; see also Watjcms vs. Stevens, 4 Barb., 168, as to a debt barred by 
 a bankrupt, or an insolvent discharge. 
 
 The insertion of a creditor's name in an insolvent's schedule, was, on 
 like principles, held not to be a sufficient acknowledgment to take the 
 case out of the statute. Avery's case, 6 Abb., 144. 
 
 Neither does a devise, for the payment of debts generally, without 
 particular specification, prevent the statute from running, as against a 
 debt due prior to the testator's decease. 'Martin vs. Oage, 5 Seld., 398. 
 
 To defeat the operation of the statute by a part payment, such pay- 
 ment must appear to be made on account of the specific claim, and on 
 account of a larger debt. It must also be voluntary on the part of the 
 debtor, and consistent with an intent to pay the balance. Thus, a pro- 
 rata payment by an administratrix, under a surrogate's decree, was held 
 to be no promise on her part to pay such balance, so as to deprive her 
 of the benefit of the statute, in Arnold vs. Downing, 11 Barb., 564. 
 
 In Woodruff y%. Moore, 8 Barb., 171, it was held that the payment 
 of a note by the indorser, after the statute of limitations had expired, 
 on action brought against him by the then holder before the statute had 
 run out, did not avail to revive his claim against the maker, against 
 whom the statute had also run. The payment was held to be a pay- 
 ment on his. own contract as indorser, and not to have been money paid 
 to the use of the maker. 
 
 In cases of a strictly joint indebtedness, the acknowledgment of either 
 
LIMITATION OF ACTIONS. — § 43. 237 
 
 party will, of course, suffice to bind both, while the joint interest sub- 
 asts. If, however, that joint interest be severed, the subsequent ac- 
 knowledgment of either of the parties, will not suffice to revive it as 
 against the other. Thus, in Lane vs. Doty^ 4 Barb., 530, it was held 
 that a surviving principal on a joint promissory note, could not revive 
 the debt by acknowledgment or part payment, as against the repre- 
 sentatives of the surety deceased, even though the transaction took 
 place within six years. In Yam, Ke,uren vs. Parmelee, 2 Comst., 523, 
 it was, in like manner, held that, aftei* the dissolution of a partnership, 
 a subsequent acknowledgment by one of the partners, did not avail to 
 revive the debt as against the firm. 
 
 Where the liability is joint and several, a payment by one of the 
 parties, whether in respect of principal or interest, will not avail to re- 
 vive the debt as against the others, but only as against himself. Boga/rt 
 vs. Vermilyea, 10 Ba,rb., 32 ; 3 C. E., 142 ; 1 C. E. (N. S.), 212 ; affirmed 
 by Court of Appeals, 6 Sel'd., 477 ; Dunham vs. Dodge, 10 Barb., 566 ; 
 Shoemaker vs. Benedict, 1 Kern., 176. See likewise, as to the general 
 principle, Lewis vs. Woodworth, 2 Comst., 512. BeedYS. MoNaughten, 
 15 Barb., 168, holding the contrary, as regards a payment of interest, 
 is stated to have been reversed by the Court of Appeals, in Winchell vs. 
 Eichs, 18 ISr. Y., 558 (561). 
 
 In the above cases, the surety, or party jointly liable, sought to be 
 charged, and setting up the statute, had taken no part in the transac- 
 tion. "Where, however, two out of three sureties on a promissory note, 
 being called upon by the holder for payment, referred him to the prin- 
 cipal, and the principal, on such reference, made a payment on account, 
 it was decided that such part payment extended so as to bind the two 
 sureties in question. The tjiird, who took no part in the transaetion, 
 was held, on the contrary, to be discharged. Winchell vs. HicJcs, 18 
 J!^. T., 558 ; affirming samie case, headed as Winchell vs. Bowman, 21 
 Barb., 448. See also Monroe vs. PoUer, 22 How., 49 ; 34 Barb., 358. 
 
 "Where two oiit of threfe joint and several promisors, made an assign- 
 ment in trust for creditors, it was held that a part payment, by the 
 trustee, availed to suspend the statute as against such two assignors, but 
 not as to the third party, also originally liable. Ba/r'ger vs. Dv/rvin, 22 
 Barb., 68. 
 
 This conclusion is, however, controverted, on the ground that the 
 assi^eo is not the agent of the debtor for that purp,ose, in Pickett vs. 
 Kiiig, 34 Barb., 193 ; and, being a general term decision, it must be 
 looked upon as overruling the former. 
 
 An action on a, demand takto out of the operation of the statute by 
 a subsequent acknowledgment or part payment, is in the nature of an 
 action on the old demaU'd, and not on the new promise, and should be 
 
238 LIMITATION OF ACTIONS. § 44. 
 
 brought accordingly. Ca/rshore vs. HuycTc, 6 Barb., 58£i; PhiUps vs. 
 Peters, 21 Barb., 351 ; WmcheU vs. Bowmcm, 21 Barb., 448 ; aflarmed, 
 WincMl vs. Hiclcs, 18 IST. T., 558 (566) ; Vcm Allen vs. Feltz, 32 Barb., 
 139 ; 9 Abb., 277. 
 
 In Cmroll vs. Oa/rroll, 11 Barb., 293, acts of the executor in the man- 
 agement of the estate, were held to be sufficient acknowledgments -of his 
 continued liability as such, and to prevent the statute from running, as 
 between him and the devisees. 
 
 A payment made on account of a general bill, but accompanied by a 
 protest as to a particular item, does not prevent the statute from run- 
 ning as to that item. To take the case out of its operation, such pay- 
 ments must be general in their nature. Peck vs. New York and Liv- 
 erpool United States Mail Steamshif Oompamy, 5 Bosw., 226. 
 
 § 44. Gmieral Provisions. 
 
 Before quitting the subject of limitations, it is proposed to consider 
 such of the provisions of chapter IV. of this portion of the Code as 
 above cited, as have not been already disposed of in connection with 
 the subject of personal actions, taking those provisions in their order, as 
 they appear in the chapter in question. 
 
 (a.) Commencement of Action. 
 
 As to the law on the subject of the commencement of an action against 
 joint contractors, immediately previous to the Code, mde Vanderiburgh 
 vs. Biggs, 3 How., 316. 
 
 It will be observed that the section now in question (§ 99), pre- 
 scribes distinctly what may be considered as an attempt to commence 
 an action, sufficient to take the case out of the operation of the statute. 
 The student must be careful, in this connection, not to confound the tech- 
 nical commencement of an action with the acquisition of jurisdiction by 
 the court, in such proceedings, when fii-st instituted. Jurisdiction may, 
 under section 139 of the Code, be acquired by the allowance of a pro- 
 visional remedy, but such acquisition of jurisdiction will not be sufficient 
 of itself to bar the operation of the statute. See also amendment in sec- 
 tion 122 as to the effect of a notice of lis pendens. To have that effect 
 there must be a positive service of process, or a delivery of that process 
 for service, in the manner prescribed by section 99. Under the recent 
 amendment of section 132 (1862), the filing of a notice oi lis pendens is 
 to be considered as the commencement of an action for the purposes of 
 that section, *. e., for the acquisition of a charge on the property claimed, 
 provided that step be followed up by service of the summons within 
 the time there specified. It may probably be held that the commence- 
 
LIMITATION OF ACTIONS. — § 44r. 239 
 
 ment of the action in this manner would not, either, be sufficient to take 
 the case out of the operation of section 99. A voluntary appearance of 
 the defendant is the only other condition that will avail for that pur- 
 pose. Such an appearance is, under section 139, " equivalent to per- 
 sonal service of the summons," on the defendant appearing. The ob- 
 taining such an appearance is therefore no longer an attempt to com- 
 mence, bi^t an actual commencement of the action. As to the ineffi- 
 ciency of the mere allowance of a provisional remedy to form a basis for 
 ulterior proceedings, independent of that remedy itself, see J^endall vs.' 
 JVashburn, 14 How., 380. Moore's Executors vs. Thayer, 6 How., 47 ; 
 In re Chriswold, 13 Barb., 412. The mere , indorsement of the sheriff 
 on the summons, of the date, is not, however, conclusive, or even suffi- 
 cient evidence of its being delivered to him for the purpose of service. 
 It must be proved independently, by specific evidence, or possibly by 
 a certificate under 2 E. S., 440, § 78. Wardwell vs. Patrick, 1 Bosw.," 
 406. 
 
 As to the rules by which the time of the actual commencement of an 
 action will be computed, see McGrawo vs. Walker, 2 Hilt., 404. 
 
 The amendment of a complaint dates back to the actual commence- 
 ment of the action, and will save the statute from attaching, even as to 
 a new cause of action thereby first introduced. Ward vs. Kalbfleisch, 
 21 How., 283. 
 
 (5.) Suspension of LnaTATioNS. 
 
 By Absence. 
 
 On reference to section 100, as above cited, it will be seen that, to 
 suspend the statute as against an actual debtor, both departure and resi- 
 dence out of the state, are required. The '■'om.imus revertendi^^ is there- 
 fore an essential element in any decision of the question. Under the 
 Code, as it stood from 1849 to 1851, a simple departure was, however, 
 sufficient. Yide supra / note to section. 
 
 The provision as to residence has, however, received a liberal con- 
 struction. To constitute a party a non-resident under this provision, a 
 change of domicile is not necessary ; a material absence is sufficient, as 
 contradistinguished from a temporary departure, followed by an imme- 
 diate or speedy return. Harden vs. Palmer, 2 E. D. Smith, 172. 
 
 But a mere temporary absence, with a view to a return to the state as 
 the debtor's residence, will be of no avail. Wheeler vs. Webster, 1 E. D. 
 Smith, 1 ; Hickok vs. Bliss, 34 Barb., 321. 
 
 The provision in the first part of the section, that the statute shall 
 not run as against a debtor, absent when the cause of action accrued, 
 until after his return, is equally applicable to a non-resident as to a resi- 
 dent. Time will not commence to run against him until he shajl come 
 
240 LIMITATION OF ACTIONS. § 44. 
 
 into the state. Cole vs. Jessup, 6 Se]d.,_ 96 ; 10 How., 515 ; rcTersing 
 somie ease, 2 Barb., 309 ; Fard vs. Babcoch, 2 Sandf., 518 ; T L. O., 210 ; 
 Carpenter vs. Wells, 21 Barb., 593. 
 
 But this rule is confined to natural persons. A foreign corporation 
 does not come within, and cannot plead the statute. Olcott vs. The 
 Tioga EaMroad Company, 20 IST. Y., 210 ; reversing same case, 26 Barb., 
 147. See also Bart vs. The Farmers' Bank of Bridgeport, 27 Barb., 
 337 (343). 
 
 The operation of the section is not confined to any one single absence 
 of the debtor. Any number of successive absences, however numerous, 
 may be accumulated, and the aggregate of the whole will have to be 
 deducted from the period of limitation. A retiu-n, however short, with- 
 out residence, is, however, sufficient to set the statute in motion. Ford 
 vs. Babeock, 2 Sandf., 518 ; 7 L. 0., 270 ; Ha/rden vs. Palmer, 2 E. D. 
 Smith, 172 ; Berrien vs. Wright, 26 Barb., 208 ; Cole vs. Jesgup, 6 
 Seld., 96 ; 10 How., 515 ; Cutler vs. Wright, 22 N. Y., 472 (477) ; 
 overruling Dorr vs. Swarfwout, 5 L. O., 172. 
 
 The death of the debtor during his absence works the following re- 
 sults : If he was so absent at the time the debt accrued, the statute 
 will only commence to run as against his representatives, from the time 
 of granting of letters of administration in this state. Davis vs. Oarr, 
 2 Seld., 124. But if, when actually indebted, he subsequently depart, 
 his personal exemption is no longer available, and the statute will com- 
 mence to run as against his. representatives, excluding only the statu- 
 tory time allowed to them as such. N. B. One year under the Code, 
 and eighteen months previous to its passage. Christopher vs. Qarr. 2 
 Seld., 61. 
 
 In eases of a joint and several liability, the operation of the statute 
 is individual. It does not run against one of two makers of a joint and 
 several promissory note, while such maker is residing in a foreign coun- 
 try, though the other remain a resident, and the action, in the mean 
 time, becomes baiTed as against him. Bogart vs. Vermilyea, 6 Seld., 
 447 ; affirming samie case, 1 C. E. (IST. S.), 312. See also previous decision 
 in same case, 10 Barb., 32 ; 3 C. R., 142. See likewise Dermy vs. Smith, 
 18 N. Y., 567 ; Cutler vs. Wright, 22 N. Y., 472 (477). By these 
 decisions Ealden vs. Crafts, 4 E. D., Smith, 490 ; 2 Abb., 301, is so far 
 overruled. 
 
 But, where the liability is joint, and not joint and several, as in the 
 case of partners, the statute will not run in favor of one of them during 
 his absence. Damis vs. Kinney, 1 Abb., 440. 
 
 (c.) Death of Paett. 
 The eflfect of the death of a party interested, as extending the period 
 
LIMITATIOK OF ACnONS. — § 44. 241 
 
 during which the statute will run in favor of his representatives, haa 
 already been considered in the present and the next previous section. 
 See cases of BucMvn vs. Ford, 5 Barb., 393 ; Ohristopher vs. Ga/rr, 2 
 Seld., 61 ; Damis vs. Garr, 2 Seld., 124 ; Goddington vs. Ca/rinley. 
 above cited. See likewise Carroll vs. Carroll, 11 Barb, 293, as to vir 
 tual suspension of the statute by acts and declarations of executors. 
 See also Arnold vs. Downirhg, 11 Barb., 554, and Ma/rtim, vs. Gage, 5 
 Seld., 398, as to the extent to which the power of a representative to 
 plead the statute will remain unaffected, either by a surrogate's decree, 
 or a general devise for payment of debts. 
 
 {d.) Injunction' oe PEoniBrrioN. 
 
 It is not necessary for a plaintiff to plead specially that an injunction 
 obtained by the defendant has been actually served upon him. It is 
 suffieieht if he had notice of it, and the disabilities of absence and stay 
 by injunction may be concurrent. Berrien vs. Wright, 26 Barb., 208. 
 
 {e.) Concluding Kemaeks. 
 
 A foreign statute of limitations, however unquestionable as the lex 
 loci, is wholly unavailable in an action brought within this state. Yide 
 Story on Conflict of Laws, ch. XIV., §§ 576 to 583, inclusive. 
 
 Section 108, exempting actions brought against moneyed corpora- 
 tions on biUs, notes, &c., put into circulation as money, from all limita- 
 tion whatsoever, will not have escaped attention. 
 
 Vol. L— 16 
 
BOOK III 
 
 OF THE COMMENCEMENT OF AN ACTION,. AND THE PRELIM- 
 INARIES THERETO, WHEN NECESSARY 
 
 CHAPTER I. 
 
 OF THE PI?ELIMINAEIES TO THE COMMENCEMENT OF AN ACTION IN 
 
 CERTAIN CASES. 
 
 § 45. Va/rious Prelimina/ries. 
 
 (a.) Inpants. 
 
 Before an action can be commenced by or on behalf of an infant 
 plaintiif, a guardian ad litem must be regularly appointed. As to the 
 mode of procedure for that purpose, see chapter IV. of this book. 
 
 If the summons be previously issued, the whole proceeding will be 
 irregular, and, on application, will be set aside. Vide Hill vs. Thacter, 
 3 How., 407 ; 2 C. E., 3. 
 
 It is equally essential to the regularity of interior proceedings against 
 an infant defendant, that a guardian should be appointed in due time. 
 A judgment taken against an infant, without such previotis appoint- 
 ment, was accordingly absolutely set aside, with costs, in Kellogg vs. 
 Kloch, 2 C. E., 28. 
 
 The old practice, of suing by a next friend, is, as a general rule, ab- 
 solutely abolished by the Code, and an infant must now sue or defend 
 by a guardian alone, in all cases. Eoftailvng vs. Teal, 11 How., 188, 
 See also HuTbert vs. Yoimg, 13 How., 413. 
 
 Special authority is given to institute a suit for partition on behalf 
 of an infant tenant in common, by chapter 277 of the Laws of 1852. 
 In this particular proceeding, the appointment of a next friend, instead 
 of a guardian, is prescribed by section 2, according to the old practice. 
 So also, special statutory proceedings may be originated by a next friend. 
 See In re WTiitlock, 32 Barb., 48 ; 19 How., 380 ; 10 Abb., 316. The 
 change in nomenclature, for it amounts to little more, effected by 
 sections 115 and 116 of the Code, seems to have been overlooked by 
 
COMMENCEMENT OE ACTIONS. § 45. 243 
 
 the legislature in framing the statute of 1852, above cited. The refer- 
 ence to the Hevised Statutes is also erroneous. The provisions intend- 
 ed to be referred to, are evidently sections 2, 3, and 4, of title III., 
 chapter V. of those statutes, and not chapter I., as the reference stands 
 in section 2. In relation to the proof necessary to authorize such an 
 appointment, and the mode in which the facts should be stated in the 
 referee's report, see In re Mwrsao, 16 How., 383. 
 
 As to the presumption in favor of the regularity of a surrogate's sale, 
 where infants are concerned, whether made before or since the Bevised 
 Statutes, vide Chandler vs. Worthrop, 24 Barb., 129. 
 
 (5.) Lunatics, &c. 
 
 As before noticed under the head of Parties, special statutory author- 
 ity is given to the committee of a lunatic, or person of unsound mind, 
 to sue in his own nanae for any debt or demand transferred to him, or to 
 the possession of which he is entitled as such. But, before commencing 
 such a suit, the committee should apply to the court for leave to sue, other- 
 wise he may be held responsible for the costs. His position in this re- 
 spect is precisely analogous to that of a receiver — the practice in which 
 case is below considered. , 
 
 There remains, however, a large class of cases, as there noticed, to ' 
 which this statutory authority does not extend. In all these, the lunatic 
 or other disqualified individual must sue, or be sued, in person {vide 
 McKillip vs. McKillip, 8 Barb., 552) ; and the previous leave of the 
 court must be obtained, before a suit can properly be instituted. 
 
 The couree to be pursued by a party having a claim against the estate 
 of a lunatic, of which a committee has been appointed, is to apply to 
 the court by petition, to enforce his claim. If that claim is undisputed, 
 the committee will be ordered to pay it ; if disputed, so as to bring it 
 seriously in question, a reference wiU be ordered, or the plaintiff will 
 be permitted to bring an action to determine its justice and extent. He 
 will not be allowed to commence such an action without the express 
 sanction of the court. And, even where there appears to be a right of 
 action, the preference will be given to a reference under the control of 
 the court. Williams vs. Estate of Camieron, 26 Barb., 172. SoverhUl 
 vs. Dickson, 5 How., 109. The same rule holds good as to proceedings 
 against the estate of an habitual drunkard. HaU vs. Taylor, 8 How., 
 428. 
 
 The commencement of a suit against a lunatic's estate, without leave 
 so obtained, is a contempt of court, and, on application, proceedings in 
 it will be restrained. A judgment so obtained is also liable to be set 
 aside, on suggestion of fraud, or undue advantage taken on the part of 
 the plaintiff. It is not, however, vpso facto void, but only voidable ; 
 
244 OOMMElSrCEMEN-X OF ACTIOjS'S. § 45. 
 
 and, when no real defence was shown, the caurts have refused to inter- 
 fere. Stembergh ts. 8oJwolcraft, 2 Barb., 153. See likewise Orippm 
 vs. Oulmer, 13 Barb., 424. 
 
 The above cases apply to proceedings against the estate of a lunatic, 
 after inquisition found .and appointment of a committee. Before such 
 inquisition, there would not appear to be any special restriction ; though 
 in a proper case, the court would doubtless interfere, and stay proceed- 
 ings nntil the appointment of a committee. Till such inquisition found, 
 the usual presumption of sanity would of course apply. The declara- 
 tions of an habitual drunkard, prior to his being declared such, were 
 accordingly admitted in Davis vs. Ca/rj>6nter, 12 How., 287. 
 
 Inquisition, when found, is conclusive evidence of incapacity, and no 
 subsequent act of an habitual drunkard will have any avail. Wads- 
 worth vs. Shermcm, 14 Barb., 169 ; affirmed, 4 Seld., 388. Even the 
 issuing of a commission, if known to a party dealing with the drunkard, 
 will render the transaction voidable for fraud. Griswold vs. Miller, 15 
 Barb., 520. And the finding on a subsequent inquisition, dating back 
 the lunacy of a party who had executed a bond and warrant of attor- 
 ney, to a period antecedent to that execution, was held to render such 
 transaction voidable, in the discretion of the court. Person vs. Wwr- 
 ren, 14 Barb., 488. 
 
 (o.) Reoeivbes. 
 
 As a general rule, a receiver cannot properly bring or defend a suit 
 without the special authority of the court. If he does so withoM au- 
 thority, and fails in the proceeding, he will be personally responsible 
 for the costs {Phelps vs. Cole, 3 0. E., 157) ; and this is so, even when 
 he is appointed in supplehientary proceedings ; Smith vs. Woodruff, 6 
 Abb., 65. He has, it is true, under rule 92, a general authority in such 
 cases, to sue for and collect all debts due to the debtor ; but still, if he 
 exercise that authority without the special sanction of the court, he 
 does so at his peril, in ease of failure. When prosecuting with leave, and 
 in good faith, his exemption fi-om liability for costs, stands on the same 
 footing as that of an executor or administrator prosecuting in behalf of 
 an estate. St. John vs. Penison, 9 How., 343. "When once authorized, 
 he is not merely enabled, but bound to proceed. Winfield vs. Bacon, 
 24 Barb., 154. 
 
 In all cases, therefore, a receiver, before suing, should apply to the 
 court for leave to do so. The application should be made in the suit in 
 which he is appointed. It is, of course, ex parte in its nature, and 
 should be founded on affidavit, showing the facts under which he ap- 
 plies, and which render a suit expedient ; or, which seems the better 
 course, those facts may be laid before the court in the form of a verified 
 
COMMENCEMENT OF ACTIONS. § 45. 245 
 
 petition. An action -against a receiver should not be commenced with- 
 ont leave of the court ; and the doing so without permission, may be 
 adjudged a contempt, and the proceedings in such action set aside. 
 Be Oroot vs. Jay, 30 Barb., 483 ; 9 Abb;, 364 ; reversing, it would seem, 
 Jay's case, 6 Abb., 293 ; Taylor vs. Baldwin, 14 Abb., 166 ; Rvhlell 
 vs. Dana, 9 How., 424. Nor can he properly be restrained by injunc- 
 tion in the discharge of his oiScial trust. To restrain him, under these 
 circumstances, is in fact to restrain the operation of the court itself. 
 The proper remedy is to apply to that court for instructions. Yam, 
 Rensselaer vs. Emery, 9 How., 135 ; Hubbell vs. Dana, sujpra ; Wvn- 
 Jield vs. Bacon, 24 Barb., 154. As to the general power of a receiver 
 to apply to the court for instructions, vide Curtis vs. Leavitt, 1 Abb., 
 274 ; 10 How., 481. 
 
 It has been held incompetent for a receiver under supplementary pro- 
 ceedings, to bring an action in the nature of a creditor's bill, to set aside 
 a fraudulent assignment by the debtor. Seymour vs. WUson, 16 Barb., 
 294 ; Hayner vs. Fowler, 16 Barb., 300 ; Oasjper vs. Bennett, 12 How., 
 30Y. See also Goody ea/r vs. Betts, 7 How., 187. The contrary, and 
 that such receiver, as representing the creditors, may maintain such an 
 action, is established by the Court of Appeals in Porter vs. WilUa/ms, 
 6 Seld., 142 ; 12 How., 107. See likewise Seymour vs. Wilson, 15 How., 
 355 ; reversing same case^lQ Barb., 394, above cited. No opinions are, 
 however, given in this last case, and the report itself is indecisive. 
 
 {d.) Suit in Foema Paupebis. 
 
 The practice in this case is expressly defined by the Revised Statutes, 
 title I., chapter YIII., part III., 2 R. S., 444, 445. 
 
 The application may be made to the court in which the suit is brought 
 or intended to be brought, section 1. It may, under section 2, be made 
 by petition, stating : — 1. The nature- of the suit or intended suit ; 2. That 
 the applicant is not worth $20, except wearing apparel and necessary 
 furniture, and excepting the subject-matter of the action, when he is not 
 in possession thereof. 
 
 The petition must be verified. by the applicant's own affidavit, and 
 supported by a certificate of a counsellor of the court, that he has ex- 
 amined the claim, and is of opinion that the applicant has a good cause 
 of action. The court, if satisfied of the facts, and that there is a merito- 
 rious cause of action, shall, by rule, admit the applicant to prosecute as 
 a poor person, and shall assign him counsel, solicitors, and attorneys, 
 and all other officers requisite for prosecuting the suit, who shall do 
 their duty without fee or reward — section 3. 
 
 By such order such applicant is exempted from the payment of fees 
 and from costs, though it seems that, if he succeed, h« may recover 
 
246 COMMENCEIDSNT OF ACTIONS. § 45. 
 
 them {vide Graham's Pr., p. 917) ; but, in case of misconduct, the privi- 
 lege may be revoked— sections 4, 5. 
 
 It is obvious that, when made antecedent to suit, this application is 
 ex parte in its nature. If m^&&§mdmU Ute, notice should be given to 
 the opposite party. Ostrander vs. Hcwper, 14 How., 16. 
 
 "Where the motion for this purpose on behalf of a non-resident infant 
 plaintiff, was unreasonably delayed until after the cause had been no- 
 ticed for hearing, the court refused to make the order, or to exonerate 
 the attorney and guardian ad litem from the responsibility they had 
 already incurred. Florence vs. Bulkley, 1 Duer, Y05 ; 12 L. 0., 28. 
 
 An application of the same nature was denied, on the ground of de- 
 lay, in Ostrander vs. Sarper, 14 How., 16. It was further held that 
 the statute does not extend at all to the case of a plaintiff against whom 
 judgment has been already rendered, and who merely seeks to appeal 
 from that judgment. Also, that it is not competent for one of several 
 plaintiffs to sue in this manner. The poverty of all must be shown, 
 and the leave must extend to all, or -it cannot be granted. 
 
 In Eoberti vs. Carlton, 18 How., 416, it was held that liability for 
 the costs of a former suit, is no bar to an application of this nature ; 
 and also that a married woman may so prosecute for injuries to her 
 separate property. 
 
 {e.) Actions by ATTOENEY-GEinEEAL. 
 
 Under section 430 of the Code, the leave of the court is also made a 
 prerequisite to actions brought by the attorney -general, for vacating the 
 charters, or annulling the existence of corporations other than muni- 
 cipal, under the peculiar circumstances there specified. 
 
 See, as to proceedings of this description, Smith vs. The Met/ropolitam 
 Gas Light Compa/)iy, 12 How., 187. The mode of apphcation, under 
 such circumstances, will doubtless be analogous to that in the case of 
 any other ofiicer of the court seeking its direction. See above, under 
 the head of Receivers. 
 
 This provision is not applicable to suits by the same officer for in- 
 trusion into office, &c., under section^ 432 of the Code, and those suc- 
 ceeding. In these cases, the determination rests with the attorney- 
 general alone, and not with the court, and mandamus yiiW not lie. The 
 People vs. The Attorney- General, 22 Barb., 114; 13 How 179- 3 
 Abb., 131. •' ' 
 
 (/.) Actions on Judgments. 
 
 The following are the provisions of the Code on this subject, which 
 have come down unaltered : 
 
 § 71. (64.) No action shall be brought upon a judgment rendered in any 
 court ft' this state, except a court of a justice of the peace, between the same 
 
COMMEKCEMEKT OF ACTIOIfS.— § 45. 2 47 
 
 parties, without leave of the court for good cause shown, on notice to the 
 adverse party ; and no action on a judgment rendered by a justice of the 
 peace, shall be brought in the same county within five years after its rendi- 
 tion, except in case of his death, resignation, incapacity to act, or removal 
 fi'om the county, or that the process was not personally served on the de- 
 fendant, o\- oh all the defendants, or in case of the death of some of the 
 parties, or where the docket or record of such judgment is or shall have 
 been lost or destroyed. 
 
 The above section operates, as will be seen, by way of imposition 
 of a condition precedent, prior to the bringing of actions on the judg- 
 ments of courts of record, and, as to those on justices' judgments, by 
 way of Kmited prohibition. 
 
 It is evident that, under the wording of the section itgelf, this pro- 
 hibition does not, as regards the latter, extend to the bringing of such 
 an action on a justice's judgment in any other county. Under the 
 machinery, as to docketing judgments of that nature, as provided by 
 section 63, it is clear, however, that the plaintiff has now a sufficient 
 remedy, without any necessity of going through the form of a fresh 
 proceeding. 
 
 An action cannot be commenced in another court iipon a judgment 
 rendered, in a court of record, on service by publication. Its effect is 
 strictly that of a judgment m rem, not m, personam. Force vs. Oower, 
 23 How., 294. 
 
 {g.) As TO Judgments or Cotjets of Recced. 
 
 The provisions of this section are equally applicable to judgments 
 recovered before as after the Code. Finch vs. Oa/rpenter, 5 Abb., 225. 
 
 The defendant's remedy, in. the event of an action being brought 
 against him, without leave obtained, as prescribed, is by motion to set 
 aside the summons and complaint. Same case. On such a motion, 
 when made by the' defendant, leave will not be granted to the plaintiff 
 to commence such action, nv/ncpro inmc. He cannot claim this as part 
 of his opposition, but will be pint to a substantive motion on his own 
 part, so as to give the defendant a full opportunity of answering the 
 affidavits on which it is grounded. 
 
 The mode of procedure, on the part of the plaintiff, is an application 
 to the court on notice to the adverse party. This application may bei 
 made, either on verified petition, or on notice of motion, and affidavits. 
 Good cause must be shown, as expressly prescribed by the section. The 
 affidavits, or petition, must, therefore, be full and explanatory, showing 
 the existence of the judgment, and the reasons why relief cannot be ob- 
 tained without a fresh proceeding. In framing such affidavits, express 
 attention should be paid to the provisions of section 284, enabling the 
 
248 COMMENCEMENT OF ACTIONS. § 45. 
 
 issuing of execution after five years, by leave of the court, on notice to 
 the adverse party. The aflSdaVits should show good reason, sufficient 
 to convince the court that this provision is inadequate to afford relief, 
 under the peculiar circumstances, without going through the forms of 
 a fresh proceeding, or the application may probably be denied. 
 
 The necessity of obtaining leave, as above prescribed, is enforced in 
 Thompson vs. iSutphen, 2 E. D. Smith, 527, where a judgment obtained 
 in an action commenced without it, was reversed on the ground of the 
 omission. , 
 
 The words " between the same parties," however, operate to give the 
 section- a comparatively limited scope. Where, therefore, the interests 
 of either party are in any manner changed, the prohibition is no longer 
 effective. 
 
 Thus it has been held, that where a judgment has been assigned 
 iondjide, the assignee may commence and maintain a fresh action in 
 his own name, without any necessity of applying for leave for that pur- 
 pose. Tuftts vs. Brmsted, 4 Duer, 607 ; 1 Abb., 83 ; McButt vs. 
 Hwsch, 4 Abb., 441 ; Kopjper vs. Howe, 2 Hilt., 69. Nor does the 
 section prohibit the setting up of a justice's judgment by way of coun- 
 ter-claim or defence, especially by an assignee. Gla/rk vs. Story, 29 
 Barb., 295. 
 
 A suit by an executor or administrator of a deceased party is simi- 
 larly maintainable, without leave or previous application to the court. 
 Under these circumstances, the representative has no remedy under sec- 
 tion 284, and a fresh action is the only course that is open to him. 
 This action is in the nature of the ancient proceeding by scire facias, 
 and the right to bring it is expressly reserved by section 428, abolish- 
 ing that form of remedy. Thurston -vs.. King, 1 Abb., 126 ; Cameron 
 vs. Tomig, 6 How., 372; Wheeler vs. BaUn, 12 How., 537; Jay vs. 
 Martine, 2 Duer, 654; Ireland vs. Zitehjield, 22 How., 178. 
 
 An action in the nature of a creditor's bill, is not an action on a 
 judgment within the meaning of this section, and may accordingly be 
 maintained without previous leave of the court. Quick vs. Keeler 2 
 Sandf., 231 ; Dunham vs. Nicholson, 2 Sandf, 636 ; 3 C. E., 205 ; Oat- 
 Im vs. Doughty, 12 How., 457. 
 
 In Smith vs. Paul, 20 How., 97, an application of this nature was 
 held to be the proper form of bringing up the question, as to whether 
 a claim under an old judgment was or was not extinguished by the 
 defendant's subsequent discharge in insolvency, alleged to be void. 
 
 By chapter 153 of 1853, p. 283, a special, prohibition is imposed on 
 the multiplication of suits against shareholders in a joint-stock com- 
 pany, founded on a judgment against the company itself. No more 
 than one suit can, under this provision, be brought and be maintained 
 
COMMENCEMENT OE ACTIONS. — § 45. 249 
 
 against any such shareholder at one time, nor until the same shall be 
 determined, and execution issued and returned unsatisiied, in whole or 
 in part. 
 
 The Assistant Justices' or District Courts in the City of New York, 
 are not Justices' Courts, within the meaning of the section now in ques- 
 tion. I{ will be equally necessary, therefore, to obtain the leave of the 
 court, before commencing an action on one of their judgments, as it is 
 in the case of one of the higher courts of record. Thompson vs. Sut- 
 phen, 2 E. D. Smith, 527 ; Mills vs. Wmslow, 2 E. D. Smith, 18 ; 3 
 C. E., M. See also Jackson vs. WTiedon, 1 E. D. Smith, 141 ; 3 0. E., 
 186. By these cases MoGuire vs. Gallagher, 2 Sandf., 402; 1 C. E., 
 127, is clearly overruled. 
 
 (A.) On: Justices' Judgments. 
 
 It will be seen by the cases last above cited, that the New York local 
 courts of inferior jurisdiction are not courts of a justice of the peace, 
 within the purview of the foregoing section. 
 
 As to an action on a justice's judgment, generally considered, see 
 Humphrey vs. Person, 23 Barb., 313 ; and Nicholls vs. Atwood, 16 
 How., 475. 
 
 In Smith vs. Jones, 2 C. E., 78, it was held by Hogeboom, county 
 judge, that a justice's judgment could not be set up by way of set-off 
 in another action, when rendered within five years. See, however, per 
 contra, Olarh vs. Story, 29 Barb., 295. 
 
 A justice's judgment, from the time a transcript is docketed in the 
 county clerk's office, loses its primary quality, and becomes a judgment 
 of the County Court ; and an action cannot afterwards be brought upon 
 it without leave of the latter. Iajoti vs. Mcmly, 18 How., 267 ; 32 
 Barb., 51 ; 10 Abb., 337. 
 
 (*'.) Notice oe Demand in certain Cases. 
 
 Under section 348, as amended in 1862, no action can be com- 
 menced on an undertaking given on appeal from a judgment to the 
 general term, till ten days after service of notice on the adverse party, 
 of the entry of the order or judgment of affirmance. And in case of 
 security being duly given, on an appeal to the Court of Appeals, pro- 
 ceedings in any such action are further suspended, till the determina- 
 tion of such appeal. 
 
 In proceedings against the corporation of New York, presentment of 
 the plaintiff's demand to Jhe comptroller for adjustment, and a second 
 demand in writing, made upon that officer after the expiration of twenty 
 days from the first presentation of the claim, are made a prerequisite 
 by chapter 379 of 1860, p. 645, § 2. 
 
250 SETTLEMENT OF A CONTBOTEESY. § 46. 
 
 CHAPTER 11. 
 
 OF PEOOEEDIFGS FOR SETTLEMENT OF A OONTEOVEEST WITHOUT 
 
 ACTION BKOUGHT. 
 
 General Rema/fks. 
 
 The modes of accomplisMng this object, as pointed out by the Code, 
 are twofold. 1. The bringing such controversy to a final decision upon 
 a case, without going through the forms of an action ; and 2. The con- 
 fession of judgment in respect thereof; which subjects will be succes- 
 sively treated. 
 
 The proceeding by arbitration, under the powers conferred by the 
 Eevised Statutes, is also analogous to the former of the above. This 
 remedy belongs, however, strictly to the class of special proceedings, 
 and, as such, falls without the scope of this work. 
 
 § 46. Submission of Controversy. 
 
 The following are the provisions of the Code upon this subject, as 
 contained in chapter I., title XII., part II. They were all contained 
 in the original measure, and have come dovsm unaltered. 
 
 Chaptbe I. 
 
 Submitting a Controversy, without Action. 
 
 § 372. (325.) Parties to a question of difference, which might be the sub- 
 ject of a civil action, may, without action, agree upon a case contaiaing the 
 facts upon which the controversy depends, and. present a sabmission of the 
 same to any court which would have jurisdiction, if an action had been 
 brought. But it must appear by aifidavit that the controversy is real, and 
 the proceeding in good faith, to determine the rights of the parties. The 
 court shall thereupon hear and determine the case at a general term, and 
 render judgment thereon, as if an action were depending. 
 
 § 3*73. (326.) Judgment shall be entered in the judgment-book, as in other 
 cases, but without costs, for any proceeding prior to notice of trial. The 
 case, the submission, and the copy of the judgment, shall constitute the judg- 
 ment-roll. 
 
 § 374. .(327.) The judgment may be enforced in the same manner as if it 
 had been rendered in an action, and shall be subject to appeal in like manner. 
 
 The sections above cited point out clearly the nature of the case and 
 
^SETTLEMENT OF A CONTEOVEESY. § 46. 251 
 
 submission to be prepared, when "this mode of procedure is adopted, 
 and also of the affidavit by which that case, when prepared, must be 
 verified. 
 
 On the case being set down for argument, it assumes, in all essential 
 respects, the character of an appeal to the general term, on questions 
 of law, from a judgment ordinarily obtained ; both parties being, as to 
 all questions of fact, concluded by the submission. The practice has, 
 in short, the effect of enabling parties desirous of effecting an amicable, 
 yet conclusive settlement of a controversy between them, to place their 
 case precisely on the same footing as if, after ha^dng gone through all 
 the regular stages, it had been passed upon by a single judge, and an ap- 
 peal taken from that decision to the general term, but without the delay 
 and expense consequent on the ordinary proceedings for that purjjose. 
 
 The papers are to be printed as on an appeal, at the expense of the 
 party who stands in the position of plaintiff. Rule 43. 
 
 This remedy is only appropriate in cases where no action has been 
 brought. Where, therefore, pending a regular action, the parties 
 agreed upon and submitted a case in this form, it was held that the 
 action must be deemed to be abandoned, or at least suspended, and the 
 case considered and determined entirely independent of it. If the sub- 
 mission of the case did not of itself work a discontinuance of the action, 
 it must do so when followed by a judgment, and must, meanwhile, sus- 
 pend it. Yan SicMe vs. Van SioTcle, 8 How., 265. 
 
 In Lang vs. Bophe, 1 Duer, YOl ; 10 L. O., 70, it was held that the 
 provisions of the Revised Statutes for granting a new trial, as of right, 
 in ejectment cases, are not applicable to a judgment rendered on a sub- 
 mission of this nature. Such a proceeding is not an action within the 
 scope of those provisions. The submission has the effect of passing the 
 case at once to the general term ; nor can the parties be released, on 
 motion, from the legal effect of their submission, so as to enable them 
 to litigate before a jury the facts upon which they had agreed. 
 
 The necessity of the fullest consideration of the whole of a contro- 
 versy, in all its possible bearings, before this course, if proposed by the 
 adverse party, is finally assented to, is so clearly evidenced by the 
 above decision as to need no comment. 
 
 This conclusion is made still more clear by the case of Neilson vs. 
 The Commercial Mutual Insura/noe Oom^parvy, 3 Duer, 455, which holds 
 that, where a case is thus submitted, the court can only determine the 
 questions of law that arise upon the facts agreed upon, and has no 
 power to vacate the submission,»or to send the cause to a jury, for de- 
 termination of any questions of fact that upon its face may appear to 
 be doubtful. The court must itself construe the submission. As to 
 the costs in such cases, see sam,e case, 3 Duer, 683. 
 
252 SETTLEMENT OF A CONTKOVERST. § 47^ 
 
 This mode of proceeding is wholly inapplicable to cases in which an 
 infant is legally interested. It rests essentially upon consent, which 
 an infant has no power to give, nor has the court, it would seem, any 
 power to appoint a guardian for' such purpose. Fisher vs. StUson, 
 9 Abb., 33. 
 
 And, of course, the same principle will hold good as to any other 
 controversy, to which a person incompetent to give a consent is a neces- 
 sary party. 
 
 § 4Y. Confession of Judgment. — StaPiitoi'y Provisions. 
 
 The provisions of the Code on this subject form chapter III., title XII., 
 part II. They run as follows : — 
 
 Chaptee III. 
 
 Confession of Judgment, without Action. 
 
 « 
 
 § 382. (335.) A judgment by confession may be entered, without action, 
 either for money due or to become due, or to secure any person against con- 
 tihgent liability on behalf of the defendant, or both, in the manner prescribed 
 by this chapter. 
 
 § 383. (336.) A statement in writing must be made, signed by the de- 
 fendant, and verified by his oath, to the following effect : 
 
 1. It must state the amount for which judgment may be entered, and 
 authorize the entry of judgment therefor. 
 
 2. If it be for money due or to become due, it must state concisely the 
 facts out of which it arose, and must show that the sum confessed therefor 
 is justly due or to become due. 
 
 3. If it be for the purpose of securing the plaintiff against a contingent 
 liabiUty, it must state concisely the facts constituting the Hability, and must 
 show that the sum confessed therefor does not exceed the same. 
 
 § 384. (33Y.) The statement may be filed with, a county clerk, or with a 
 clerk of the Superior Court of the city of New York, who shall indorse upon 
 it and enter in the judgment-book a judgment of the supreme or said supe- 
 rior court, for the amount confessed, with five doUars costs, together with 
 disbursements. The statement and aflBdavit, with the judgment indorsed, 
 shall thenceforth become the judgment roU. Executions may be issued and 
 enforced thereon, in the same manner as upon judgments in other cases in 
 ^such courts. When the debt for which the judgment is recovered is not all 
 due, or is payable in instalments, and the mstalments are not aU due, the 
 execution may issue upon such judgment for the collection of such instal- 
 ments as have become due, and shall be in the usual form, but shall have in- 
 dorsed thereon, by the attorney or person issuing the same, a direction to 
 the sheriff to collect the amount due on such judgment, with interest and 
 costs, which amount shall be stated, with interest thereon, and the costs of 
 
SETTLEMENT OP A CONTEOVEKST. § 48. 253 
 
 said judgment. Notwithstanding the issue and collection of such execution, 
 the judgment shall remain as security for the instalments thereafter to be- 
 come due; and whenever any further instalments become due, execution 
 may, in like manner, be issued for the collection and enforcement of the 
 same. 
 
 In 1848 the powers were less comprehensive, and confined to the Supreme Court. In 1849 
 the power to the Superior Court was added. In 1851 the section was enlarged, and remodelled 
 in its present form. 
 
 The above remedy is equivalent to the cognovit, or warrant of attor- 
 ney, under the former practice. The following provision is made by 
 section 424 in relation to entry of judgment on securities of that nature, 
 taken before the passage of the Code, but on which such judgment had 
 not then been perfected : 
 
 § 424. Upon any bond and warrant of attorney executed and delivered 
 before the first day of July, 1848, judgment may .be entered in the manner 
 provided by sections 382, 383, and 384, upon the plaintiff's filing such bond 
 and warrant of attorney, and a statement, signed and verified by himself, in 
 the form prescribed by section 382. 
 
 This section dates from 1849. There was no analogous provision in the original measure. 
 
 It will be remembered that, under subdivision 8 of section 53 of the 
 Code, before cited, justices of the peace are authorized to enter judg- 
 ment on confession, where the amount does not' exceed $250, in the 
 manner prescribed by the Eevised Statutes, article VIII., title IV., chap- 
 ter II., part III. The student is referred to such provision, but the prac- 
 tice on the entry of a judgment, under the authority so given, does not 
 enter within the scope of this work. Eeference may, however, be made 
 to the recent cases of Cha/pin vs. Churchill, 12 How., 367 ; and PoTr' 
 loch vs. Aldrich, 17 How., 109. 
 
 § 48. Subject Generally Considered. 
 
 In cases where judgment is entered upon an old cognovit or warrant 
 of attorney, the whole of the ancient forms are -swept away, and the 
 only course now adoptable is that prescribed by section 424, in connec- 
 tion with the other provisions of the Code above cited. Allen vs. SmilUe, 
 12 How., 156 ; 1 Abb., 354. It was also considered that where the 
 security had, as there, been in existence more than five years, notice 
 was necessary to be given to the adverse party before the entry of judg- 
 ment, or the issuing of execution thereon, in analogy to the provisions 
 of section 284 and 71 of the Code, as above cited or referred to. 
 
 It is not competent for a trustee to confess judgment so as to bind 
 the trust estate, even by direction of the court. The proper course is 
 
254 SETTLEMENT OE A CONTROYEESY, § 48. 
 
 an order to him to pay the debt out of the first moneys received from 
 the estate. Mallory vs. Clark, 9 Abb., 358 ; 20 How., 418. 
 
 Nor can a party accept a confession as a trustee for others ; the lia- 
 bility must be direct, in order to sustain the proceeding. Marks vs. Rey- 
 nolds, 12 Abb., 403 ; reversing same case, 20 How., 338. 1 
 
 A confession of judgment, under the Code, cannot be made in an ac- 
 tion arising out of tort. The proceeding is only authorized in respect 
 of money due or to become due, or for security against a contingent 
 liability. Boutel vs. Owens, 2 Sandf , 655 ; 2 C. R., 40. 
 
 This form of proceeding is, in the same case, held to be wholly inap- 
 plicable where an action has been already commenced. It is no longer 
 a " confession of judgment without action." 
 
 It was likewise there held that the confession in that particular case 
 was wholly void, on the ground that it had been obtained from the de- 
 fendant whilst in custody at the suit of the plaintiff, and without the 
 presence of an attorney to advise him. See also Wilder vs. Ba/umstach, 
 3 JEow., 81. 
 
 A confession prepared by the plaintiff, in the absence of a legal ad- 
 viser for the defendant, will, in all eases, be strictly watched, and if 
 there be any absence of good faith in it, or the proceedings under it, a 
 stay will be at once granted, or it may even be set aside, although the 
 statements on the motion may be contradictory. Merritt vs. Baker, 
 11 How., 456. 
 
 Where an action has been already commenced, the proper form for 
 bringing about a virtual confession of judgment, is by an offer, under 
 section 385 of the Code. This practice may be often conveniently 
 adopted for bringing about the same result as a confession without ac- 
 tion, especially where the preparation of such a confession would in- 
 volve a long and complicated statement of facts. There can be no 
 doubt that such an offer may be made and accepted, immediately the 
 action is commenced ; or that, when made, it may embrace an acknowl- 
 edgment of the whole of the plaintiff's demand. 
 
 Being an ordinary instead of a statutory proceeding, the rules of 
 interpretation which govern it are much less rigid, and the power to 
 amend or disregard errors in form, much more extensive. The coiirts 
 as will be seen below, are disposed to place a strict construction on the 
 phraseology of a confession, and to require, as indispensable, a much greater 
 precision and detail in averment, than such as is sufficient to sustain an i 
 ordinary complaint, and render it good upon demurrer. Such a com- 
 plaint, however, if sufficient for the purpose of bringing a case to trial, 
 is sufficient for the support of an offer, and of the consequent judgment 
 entered upon it. See BRll vs. Worthrcyp, 9 How., 525 ; also Emery vs. 
 Bedf.eld, 9 How., 130. The proceeding, however, if taken in this form, 
 
SETTLEMENT OF A CONTEOVEEST. — § 48. * 255 
 
 must be strictly 'bona fide. Any absence of good faith will unquestion-. 
 ably be equally fatal to a judgment entered upon offer as to one entered 
 upon confession, if such judgment be impeached by subordinate cred- 
 itors. See Bridenbeoker vs. Mason, 16 How., 203. 
 
 As between confessor and confessee, a judgment entered on a confes- 
 sion deficient in particularity, must be, nevertheless, sustained. It is 
 not competent for the former to impeach his own act. Von Keller vs. 
 Muller, 3 Abb., 375, note ; Ely vs. Gooh, 2 Hilt., 406 ; 9 Abb., 366 ; 
 Parh vs. Churchy 5 How., 381 ; 1 0. E. (N. S.), 47. A mere assignee 
 for creditors stands, as representing the debtor himself, or the creditors 
 at large only, in the same position. Beekman vs. Kirh, 15 How., 228. 
 So, also, as to an administrator. Wliii/aey vs. Kenyon, 7 How., 458. See 
 generally, as to where creditors do not intervene, Delaware vs. Ensign, 
 21 Barb., 85 (91). 
 
 IsTor can a judgment, entered upon confession, be collaterally im- 
 peached. Though voidable in a direct proceeding at the instance of 
 other creditors, it is not void, even though irregular. Sheldon vs. Stryher, 
 34 Bai-b., 116 ; 21 How., 329. 
 
 A confessee of judgment has been held precluded from impeaching a 
 prior confession by the debtor, as against an assignee for value, where 
 his own statement had tended to induce the assignment. Nor can a 
 plaintiff, whose own statement is defective, impeach a prior confession 
 for defect. Has vs. Lawser, 18 How., 23 ; 9 Abb., 380, note. 
 
 And, under similar circumstances to the above, an amendment has 
 been permitted. Johnston vs. FelUrmam,, 13 How., 21 ; Dams yS. 
 Morris, 21 Barb., 162. In the latter case it is stated that no superior 
 equities existed, and, in the former, an express reservation was made, 
 that such leave was given, so as not to interfere with the rights of any 
 judgment-creditors, which might, in the mean time, have attached. 
 
 In Mann vs. Brooks, 7 How., 449, an amendment of this description 
 seems to have been sustained, even though subsequently impeached by 
 a junior judgment-creditor, and the possibility of an amendment being 
 granted, where the transaction was satisfactorily proved to be bond fide, 
 and the form of the confession was defective, on account of a misappre- 
 hension of the practice and of the requirements of the statutes, is also 
 recognized by Dean, J., in Oha^pdl vs. OhappeU, 3 Kern., 215 (222). 
 See, however, disapjproval by S. B. Strong, J., in Boyden vs. Johnson, 
 11 How., 503 (506). 
 
 In Yon Beck vs. Shwmam,, 13 How., 472, it was held that the better 
 practice, under such circumstances, would be to set aside the judgment 
 altogether, leaving the plaintiff to pursue such course as he might be 
 advised. 
 
 On an application by a junior judgment creditor, a judgment entered 
 
256 SETTLEMENT OF A CONTKOVERST. § 48. 
 
 on an insufficient confession is not merely voidable, but void, and can- 
 not stand. Von Beck vs. Shuman, supra ; B&rmell vs. Henry, 13 
 How., 142 ; Hammond vs. Bush, 8 Abb., 152 ; ChappeU vs. Ohappell, 
 2 Kern., 215. See also numerous cases below cited. 
 
 Where, however, the confession itself was sufficient, and the judgment 
 entered upon it was irregular, through the mere omission of an officer of 
 the court, an amendment was permitted, even as against other judgment 
 creditors. Weele vs. BerryUll, 4 How., 16. It was there held that the 
 formal provisions of the statute, however imperative in terms, are never- 
 theless directory in their nature, and therefore the court will not allow 
 an innocent party to suffer, from a mistake or omission of one of its 
 officers in this respect. See also Dakj vs. Mathews, 20 How., 267 ; 12 
 Abb., 403, note. 
 
 In Post vs. Colemcm, 9 How., 64, the same disposition was evinced 
 to disregard mere technicalities, and it was held that the defendant's 
 signature to the verification following the statement, instead of to the 
 statement itself, was a sufficient compliance with the statute ; and, like- 
 wise, that the verification before one of the plaintiff's attorneys was no 
 objection to the regularity of the judgment. The rule in that respect 
 does not apply to affidavits preparatory to the commencement of a suit. 
 There is then no suit pending. 
 
 It does not clearly appear in the report by whom the motion was made 
 in this case. In Purdy vs. Upton, 10 How., 494, the first of these 
 points, i. e., that a signature to the verification only was a sufficient 
 signature under the statute, was so held, on the motion of a junior judg- 
 ment-creditor. The motion was granted, however, on other grounds. 
 A verification by which the debtor merely swore " that he believed the 
 above statement of confession to be true," was held sufficient in Pelar 
 ware vs. Ensign, 21 Barb., 85. 
 
 A public officer, liable to be sued for services rendered to the public, 
 may confess judgment in his official capacity ; but the supervisors of the 
 county will not be concluded, and may go behind it, and inquire whether 
 the whole or part of the cause of action was a county charge. G&re vs. 
 Supervisors of Cayuga, 7 How., 255. 
 
 A confession of judgment will, it seems, be good, though made to a 
 substituted party, if the transaction be otherwise hond fide. Paton vs. 
 Westervelf, 12 L. O., 7 ; 2 Duer, 362. See also Purdy vs. Upton, 10 
 HoT^., 494 (497), and MarJcs vs. Reynolds, 20 How., 338. 
 
 A confession made by a person disqualified from entering into a con- 
 tract, will be wholly void. So held, as to a married woman. Wotkyns 
 vs. Abrahams, 14 How., 191. A warrant of attorney, executed by a per- 
 son, subsequently found on inquisition to have been a lunatic at the 
 time, was, on similar grounds, held voidable, and set aside on terms in 
 
SETTLEMENT OP A CONTROVEESY.— § 48. 25T 
 
 Person vs. Warren, 14 Barb., 488. A trustee cannot confess judgment 
 so as to bind the trust estate. Mallory vs. Clark, 9 Abb., 358 ; 20 
 How., 418. 
 
 A judgment, confessed to a party who was already secured, by assign- 
 ment in trust for himself and other creditors, under which he still 
 claimed, has been set aside as fraudulent and void. K he would en- 
 force it, he must abandon the assignment. D''Ivernois vs. Leamitt, 23 
 Barb., 63. 
 
 One partner cannot confess judgment as against the firm, without the 
 consent of the other. Such judgment may probably be valid as against 
 the party signing, but it will be void as against the other, and cannot be 
 enforced against the joint property. Stoutenimrgh vs. Vcmdernhurgh, 7 
 How., 229. See also EoersoJm vs. Gehrmcm, 10 How., 301 ; 1 Abb., 
 167 ; and Oroesbech vs. Br^ywn, 2 How., 21 ; Lmnhert vs. Converse, 22 
 How., 265. In Van Keller vs. Mvller, 3 Abb., 375, note, which at first 
 sight might imply the contrary, the application was on the part of the 
 confessor himself, and the other partner did not intervene. 
 
 The question as to how far an offer under Section 385, made by one 
 co-partner under similar circumstances, may or may not operate to 
 sustain a judgment against the firm property, a point on which con- 
 siderable discussion has arisen, does not fall in strictness within this 
 division of the subject, and will be considered hereafter under its proper 
 head. 
 
 It seems that the mere confession of a judgment is not per se a viola- 
 tion of an injunction restraining the disposition of property ; but, if ac- 
 companied by acts showing an intent to dispose of such property, it will 
 be held to be so. Boss vs. Clussman, 1 C. E. (N. S.), 91 ; 3 Sandf , 676. 
 
 An order vacating a judgment entered upon confession, is appealable 
 to the Court of Appeals. Belknap vs. Waters, 1 Kern., 477. 
 
 A confession obtained and judgment entered thereon, by an attorney, 
 during the creditor's absence and without his knowledge, but on which 
 the attorney afterwards issued execution at the request of that creditor's 
 partner, was held to be good, as regarded creditors whose judgments 
 were recovered subsequent to such request. The acceptance was suffi- 
 cienti as against them. Johnston vs. J^oAusland, 9 Abb., 214. 
 
 {a.) Form of Confession. 
 
 The form of the document to be drawn up, and the requisites which 
 it must embody, are clearly prescribed by section 383, as above cited. 
 As to the affidavit, see Post vs. Coleman, Purdy vs. TTpton, and Dela ' 
 wa/re vs. Ensign, swpra. 
 
 The provisions in subdivisions 2 and 3, which require a concise 
 statement of the facts out of which the indebtedness arose, or whiclxi 
 
 YoL. I— 17 
 
258 SETTLEMENT OF A CONTKOVEESY. § 48. 
 
 constitute the liability intended to be secured, have, nevertheless, given 
 rise to considerable discussion. 
 
 It appears to have been frequently considered that a general allega- 
 tion, such as would be sufficient to sustain a complaint for the same 
 indebtedness or liability, would be sufficient, and the cases are numer- 
 ous in which this course has been substantially pursued. It is clear, 
 however, that this is not sufficient. 
 
 The statement of facts required by the legislature, is not for the mere 
 pui-pose of sustaining the judgment itself, but for. that of enabling other 
 creditors of the defendant to test the lona fides of the transaction, by 
 inquiry and examination into the facts stated, and as a guard against 
 fraud.' See Chofppell vs. GJm^ell, 2 Kern., 215 (21 Y, 218, 221) ; Dim- 
 ham vs. Watermcm, 17 N. Y., 9 (11) ; 6 Abb., 35T ; Purdy vs. U2>ton, 
 10 How., 494, and most of the other cases below cited. 
 
 It is proposed, in view of this general principle, to consider the dif- 
 ferent classes of indebtedness, as to which confessions of judgment have 
 been either sustained or impeached, citing and considering the decisions 
 under each head. 
 
 (5.) Peomisboey Notes. 
 
 .The law upon this subject, is now settled by the cases of Cha^ell vs. 
 Cha^pdl, and Dunham vs. Waterman, above referred to. 
 
 The statement in Cha/ppell vs. Chapj>ell, 2 Kern., 215, merely 
 described two promissory notes held by the plaintiff, averring that a 
 specified amount was justly due thereon, without entering into any 
 particulars as to their consideration and origin. This confession was- 
 decided to be bad. The reasoning on which that conclusion is predi- 
 •iated, is thus given in the opinion of Gardiner, C. J. : " If that object" 
 {i. e., the object of the legislature in enacting this provision) " was to 
 improve the condition of the other creditors, by compelling the parties 
 to spread upon the record a more particular and specific statement of 
 the facts out of which the indebtedness arose, thus enabling them, by 
 a comparison of that statement with the known circumstances and 
 relations of the debtor, to form a more accurate opinion as to his integ- 
 rity in confessing the judgment, than was possible under the former 
 system, then the statement in this case is clearly insufficient." 
 
 The learned judge, after remarking that the maker did not become 
 indebted by the mere execution of a written promise to pay money, 
 added : " The statute looks not to the evidence of the demand, but to 
 the facts in which it originated ; in other words, to the consideration 
 which sustains the promise. The law requires this to be concisely set 
 forth, in the statement which is to form part of the record." 
 
 The same views are expressed by Dean, J., at page 221, in the fol- 
 
- SETrLEMENT OF A CONTEOVEESY. — § 48. 259 
 
 lowing terms : " The intention of this requirement, was to compel the 
 person confessing a judgment to disclose under oath, which oath was to 
 become part of the public records, what was the real consideration of 
 the judgment confessed, and to show, to all interested, the transaction 
 out of which the debt originated." 
 
 In Dunham vs. Waterman, 17 N. Y., 9; 6 Abb., S.^T; reversing 
 sams case, 3 Duer, 166, a similar statement, containing a mere descrip- 
 tion of the note, adding, only, that it was given on a settlement of 
 accounts between the plaintiff and the defendant on a specific date, 
 was, in like manner, held to be void, and set aside. 
 
 But, where consideration for the note, by which the demand is evi- 
 denced, appears upon the face of the confession, the details need not be 
 shown. A general allegation that it was given "for money had, or 
 money borrowed, will suffice. Freligh vs. Brink, 22 N. Y., 418; 
 affirming sam^ case, 18 How., 89 ; reversing decision, at special tei-m, 
 16 How., 272-; 30 Barb., 144; Laning vs. Owrpenter, 20 IST. Y., 447. 
 And, where the facts in relation to the indebtedness appear fully, an 
 omission to add the merely formal allegation that the sum for which 
 judgment is*confessed, " is justly due, or to become due," will not 
 destroy the validity of the judgment. Laning vs. Carpenter, supra. 
 
 In all these cases, the application for relief was on behalf of a junior 
 judgment-creditor : in Dunham vs. Waterman, by suit ; in the others, 
 by motion for that purpose. 
 
 These decisions are in a,ffirmance of the same principles, as laid down 
 in the following cases : Plwnm,er vs. Phommer, 7 How., 62 ; BomTc of 
 Kindsrhoolc vs. Jameson, 15 How., 41 ; Johnston vs. FellerTnan, 13 
 How., 21 ; BonneU vs. Henry^ 13 How., 142 ; Von Beck. vs. Shumun, 
 iMd., 472 ; Moody vs. Townsend, 3 Abb., 375 ; Kendall vs. Hodgins, 7 
 Abb., 309 ; 1 Bosw., 659. See also Beekman vs. Kirk, 15 How., 228 ; 
 Winebrermer vs. Edgerton, 30 Barb., 185 ; 17 How., 363 ; 8 Abb., 419 ; 
 Norris vs. Denton, 30 Barb., 117. See also Daly vs. Matheios, 20 How., 
 267 ; 12 Abb., 403, note. In Daly vs. Mathews, above cited ; in ClaiUm, 
 vs. Sanger, 11 Abb., 338, affirming same case, 31 Barb., 36 ; 17 How., 
 674 ; 9 Abb., 214, note ; and also in McKee vs. Tyson, 10 Abb., 392, the 
 rule seems to be too strictly laid down, and the cases to be deprived of 
 their authority, so far as regards confession of judgment on a promis- 
 sory note, by Freligh vs. Brink, above cited. 
 
 The above class of cases overrules Mann vs. Brooks, 8 How., 40 ; 
 affirming same case, 7 How., 449; Whitney vs. Kenyan, Y How., 458; 
 and, so far, the opinion of Willard, J., in Mv/rray vs. Judson, 5 Seld., 
 73 (84). 
 
 In Post vs. OolemMi, 9 How., 64, a statement that the defendant gave 
 his promissory note there described, for coal purchased of the plaintiff 
 
260 SETTLEMENT OF A CONTROVERSY. § 48. 
 
 for the use of the defendant's house, was held to be sufficient, and that 
 the defendant's declaration that the debt was justly due, made it lega,Uy 
 due, though, by the terms of the note, the credit had not expired. The 
 debt became merged in the judgment. 
 
 In Hmley vs. Preston, 14 How., 20, a confession for security to an 
 accommodation indorser was similarly sustained, though executed be- 
 fore the note was negotiated, and execution issued thereon, before it 
 became due. 
 
 This point is also settled by Dow vs. Plainer, 16 N. T., 562, which 
 holds that a statement in such case is sufficient, if it sets forth that the 
 judgment is confessed to secure the plaintiff for a debt justly to become 
 due on his indorsement, as the surety of the plaintiff, and for his bene- 
 fit, of bills and notes, which are fally described, as to names, dates, 
 amounts, and times of payment. 
 
 This ease and that immediately previous, fall, as will be seen, more 
 peculiarly under subdivision 3, father than subdivision 2 of the section 
 in question. 
 
 A confession for " amount due to the plaintiff for plai^^tiff 's liability 
 on guarantee, now past due, to a specified person, for a specified sum," 
 was held void for want of siifficient particulars, in Win^enner vs. EA- 
 geHon, 30 Barb., 185 ; 17 How., 363 ; 8 Abb., 419. 
 
 The case of a confession of judgment, by a drawer or iifdorser of a 
 bill of exchange, or the payee or indorser of a note, in respect of his 
 liability as such, irrespective of the transaction between the original 
 parties ; or by a maker of a note tainted with usury, as between him and 
 the original holder, but executed by such maker to a hondjide pur- 
 chaser of such note, without notice so as to avoid it in his hands, does 
 not appear to have as yet come up for adjudication. The same princi- 
 ples will probably be held to govern them. The statement, if taken, 
 should be full and particular, setting out sufficient to show the original 
 consideration for the note or bill, where the maker, or drawer, or a party 
 cognizant of the facts is the confessor. Where the confession is simply 
 from a prior to a subsequent indorser, it might be argued that this 
 could not be reasonably required, but, whether this be so or not, care 
 must be taken in all eases to make the statement as distinct and specific 
 as it is possible *o make it, and to set forth all facts, necessary to show 
 title in the actual plaintiff and liability in the defendant, within the 
 knowledge of the latter. 
 
 The test might seem to be this : It is necessary to set forth in the 
 confession all facts which, if his debt were contested, would be necessary 
 to be proved by the plaintiff, to enable him to recover; concisely, of 
 course, but substantively and distinctly. 
 ' See, as to a confession purporting to state a liability, on sundry 
 
SEITLEMENT OP A CONTKOVEKSY. § 48. 261 
 
 promissory notes in a schedule thereto annexed, but deficient in want 
 of particularity, both as to the statement itself, and also as to the 
 schedule, Ramann -vs. KemhaTt, 11 Abb., 132. 
 
 (c.) Goods Sold. 
 
 The amount of detail necessary in a confession of this nature has also 
 been the subject of considerable discussion. On the one hand, it is not 
 necessary that the statement for this purpose should assume the form, 
 or give the full information of a bill of particulars. The statute re- 
 quires a concise, not a detailed statement of facts. On the other, that 
 statement should be full enough specifically to point out the nature, 
 date, and amount of the transaction or transactions out of which the 
 indebtedness arises. 
 
 The cases on this head are numerous, and in some slight degree con- 
 flicting. 
 
 The following have been held to be insufiicient : A confession for 
 goods, &c., sold and delivered to the confessor by the confessees, " and 
 pm'chased by me," i. e., the confessor, " in the years 1851 and 1852." 
 Sehooloraft vs. Thompson, 1 How., 4:46. This decision is, it is true, 
 reversed, 9 How., 61, but it is so fully sustained by those next cited, 
 that it may be considered as of aiithority, and the reversal overruled. 
 See especially Boyden vs. Johnson, 11 HoM^, 503 (505). 
 
 Confessions, merely stating certain articles to have been sold and de- 
 livered, and not giving time, place, quantity, or price or value. Purdy 
 vs. TIjpton, 10 How., 494. A confession, simply for goods sold and de- 
 livered, or on a note for goods sold and delivered, not giving further 
 particulars. Moody vs. Townsend, 8 Abb., 375. A statement that the 
 plaintiff, at various times in two given years, sold and delivered to the 
 defendant large quantities of meat, on which there was due a balance 
 specified. JVeiisicmmYS. Keirn, 7 Abb., 23 ; see also same case, 1 Hilt., 
 520 ; the total amount of the debt and the amount of the pay-, 
 ments should have been concisely stated. A statement that the debt 
 arose .upon a promissory note given by the debtor to a third party 
 for goods sold, and indorsed by such third party to the plaintiff. Olaf- 
 ImYS. Scmger, 31 Barb., 36 ; 17 How., 574 ; 9 Abb., 214, note; affirmed, 
 11 Abb., 338. Or a similar statement, that the note in question was 
 given for goods, furnished before its date. McKee vs. Tysen, 10 Abb., 
 392 (see, however, observations as to the above cases, so far as regards 
 a confession on a promissory note). A statement that the indebtedness 
 was for " goods sold and delivered, and upon an accounting had, on the 
 day when the confession was made." Boyden vs. Johnson, 11 How., 
 503, citing Chwppell vs. Cha^ell, 2 Kern., 216, as generally appli- 
 cable. Statements that the indebtedness arose on account of goods, 
 
262 SETTLEMENT OF A CONTROVERSY. § 48. 
 
 wares arid merchandise, and property sold and delivered by the plain- 
 tiff, for which the defendant had not paid ; and another for goods, &c., 
 sold and delivered by the plaintiff to the defendant " since the 1st day 
 of January, 1855," the judgment being signed in December of that 
 year, Gandal vs. Firm, 23 Barb., 652 ; 13 How., 418 : such case lay- 
 ing down generally, that, when the indebtedness is for property sold, 
 the confession " should state when it was sold, the general nature of the 
 property, and the time of credit, the price or aggregate of the purchase, 
 and the amount of payments, if any." A form is also suggested on p. 
 422. See likewise, to the same effect, DaVy vs: Mathews, 20 How., 267 ; 
 12 Abb., 403, note ; Clements vs. Gerow, 30 Barb., 325. A statement 
 that the indebtedness was for goods heretofore delivered to the defend- 
 ant, and now due. Hojypock vs. Donaldson, 12 How., 141. 
 
 This last case, however, is in favor of a comparatively liberal con- 
 struction of the statute, and a statement in a second confession naming 
 a specific sum, " being the amount of a bill of goods this day purchased 
 of" the plaintiff, was held sufficient, and the judgment on that confes- 
 sion was supported. 
 
 A confession that the indebtedness arose on a balance of account of 
 merchandise, purchased by the defendant of the plaintiff", on various 
 bills, commencing on a specified day in 1855, the last bill being dated 
 on a specified day in 1856, amounting to a specified total ; and then 
 proceeding to state that such total had been reduced by payments made 
 by the defendant, commencing on a specified day in 1855, the last pay- 
 ment being made on a specified day in 1856 (the total of such pay- 
 ments being given), and leaving a balance also specified, and the prin- 
 ciples, as to credit, on which that balance was struck, explained, was 
 held sufficient in Mott vs. Dawis, 15 How., 67, by Harris, J., a more 
 liberal view being taken by him of the intrepretation of the statute, 
 than in most of the other cases, above cited. 
 
 A confession for a sum due for grain, purchased on or about a given 
 day, without specifying the kind or quantity of grain, was sustained in 
 Healy vs. Preston, 14 How., 20. » 
 
 In Delaware vs. Ensign, 21 Barb., 85, a confession "for goods, 
 wares, and merchandise," sold and delivered to the defendant by the 
 plaintiff, in a specified month, was sustained. See also, Reid vs. Clark, 
 noticed p. 90. It must be remarked, however, that Delaware vs. 
 Ensign came up simply as between confessor and confessee, on a motion 
 for a new trial, and was not a. case where adverse rights were set up. 
 See report, p. 91-92. 
 
 A confession for a debt for goods, &c., sold and delivered at various 
 times, as per schedule annexed— no schedule being annexed iu fact- 
 was held void in Clements vs. Gerow, 30 Barb., 325. 
 
SETTLEMENT OF A OONTEOVEKSY. — § 48. 263 
 
 {d.) Balance of Account. 
 
 A mere statement that a balance is due from the defendant to the 
 plaintiff, on account, is insufficient. The total amount of the debt and 
 of the payments should be stated. Neushaum vs. Kemi, 7 Abb., 23. 
 See also, Gandal vs. Finn, 23. Barb., 152 ; 13 How., 418 ; Boyden vs. 
 Johnson, 11 How., 503. See, however, Matt vs. Bmis, 15 How., 67, 
 supra, sustaining a confession of this nature, where general particulars 
 of the account between the parties, were given. 
 
 {e.) Moneys Lent. 
 
 A confession of indebtedness for " money lent and advanced at divers 
 times, from the 1st of December, 1853, to date," was held bad, as not 
 sufficiently particular, in Davis ^s. Morris, 21 Barb., 152 ; Chappell vs. 
 Chappell, 2 Kern., 215, supra, being considered as conclusive. See 
 also Ely vs. Cooh, 2 Hilt., 406 ; 9 Abb., 366. 
 
 And confessions, merely purporting to be for. money borrowed, with- 
 out specifying the amount, were held bad for want of particularity, in 
 Gletnents vs. Gerow., 30 Barb., 325. 
 
 The same conclusion is come to with respect to a statement that, since 
 a day in 1845, the plaintiff had lent to the defendant, a religious incor- 
 poration, a specified sum to pay off and discharge their debts, and which 
 had been used for. such purpose. It should have stated whether the 
 money was all advanced at one time or at several times, and when and 
 in what sums ; and also how the debts, paid off with the amount, arose, 
 for what consideration, who were the creditors, and whether the amounts 
 were real hondfide debts of the congregation. A number of judgments 
 confessed to individual creditors, with the same deficiency of detail, 
 were also set aside. Stebbins vs. TTie East Society of the, M. E. Chv/rch 
 of Rochester, 12 How., 410. See likewise, Hamimond vs. Bush, 8 
 Abb., 152. 
 
 A confession that, on or about a date specified, the plaintiff" lent to. 
 the defendant in cash a fixed sum, which sum, with interest thereon, 
 giving the total amount, was then justly due, was sustained in John- 
 ston vs. McAusland, 9 Abb., 214. 
 
 {f.) Judgments and Written Instruments. 
 
 Even where the plaintiff's debt arose upon a balance due on three 
 previous judgments, a confession, merely stating that fact, without giv- 
 ing the dates, amounts, or time of docketing, or the balance due on 
 each, or the particulars of the consideration out of which they arose, 
 was held fatally defective, on the authority of several of the above eases, 
 and of Chappell vs. Chappell, and Dunham vs. Waterman, in particular ;. 
 
264 SETTLEMENT OF A OONTEOVEKST. § 48. 
 
 and relief was altogether denied to the defendant, whether by way of ■ 
 reformation of the judgment, or enforcement of an equitable lien. Earn- 
 mond vs. Bush, 8 Abb., 152. 
 
 A similar conclusion was come to in Beehncm vs. Ki/rh, 15 How., 
 228, as to a confession predicated on a judgment, without giving partic- 
 ulars as to when or how it was obtained, or whether any thing remained 
 due on it ; and likewise on a bond, giving the date and amount, but not 
 stating what amount remained due on it ; though the relief there moved 
 for was refused on other grounds. 
 
 A confession for an indebtedness stated to arise " on the sale and con- 
 veyance by the plaintiff to the defendant of his right, title and interest 
 in certain property, in January, 1854," without giving any further par- 
 ticulars, or even that the amount mentioned was a fixed price, was like- 
 wise held to be insufiicient in Thompson vs. Van Veehten, 5 Abb., 458. 
 
 ig.) CoNxmGBNT Liability. 
 
 The requisites of a confession of this nature are clearly defined in sub- 
 division 3, of section 383, as above cited. 
 
 If deficient in particularity, so as not to give full information upon 
 the subject of the liability, against which security is intended to be 
 given, the judgment entered under it will not stand. Hamann vs. 
 Kemha/rt, 11 Abb., 132. 
 
 If a confession be made to cover any future indebtedness, it should 
 be particularly specified, and should appear to be called for by some 
 existing liability. Boy den vs. Joh/nson, 11 How., 503. 
 
 "Where, however, the confession was made to indemnify the plaintiff' 
 as accommodation indorser, it was held sufficient to give a full descrip- 
 tion of the notes in question, and that the consideration of the notes 
 need not be stated, nor that they had been actually discounted, that 
 fact being inferable. Ma/rhs vs. Reynolds, 12 Abb., 403 ; reversing, but ■ 
 not on this point, sarne case, 20 How., 338. . 
 
 A judgment, confessed on warrant of attorney under the old practice, 
 executed to secure future advances, was held good in Truscott vs. King, 
 2 Seld., 149 ; but, when such advances are made to the amount of the 
 judgment, and afterwards paid by the debtor, the authority so given is, 
 as against subsequent incumbrances, /wwciSws offioio, and cannot stand as 
 a continuing security for still farther advances, or for the final balance 
 of a current account. 
 
 (A.) Enteit of Judgment. 
 
 A confession before the actual entry of judgment, is a bare authority. 
 Until such judgment is actually entered by the clerk, there is no salt, 
 no recovery or adjudication, actual or formal, nothing, of which notice 
 
SETTLEMENT OF A CONTEOVEESY. — § 48. 265 
 
 can be given to subsequent incumbrancers or grantees, or a lien ac- 
 quired so as to bind them. It is this act of the clerk that not only 
 creates the lien, but the judgment. Till it is done, there is neither. 
 Blydetiburgh vs. Northrop, 13 How., 289. 
 
 Although no previous adjudication of the court is required, to warrant 
 the entry of a judgment by confession ; yet, when entered, it has all 
 the qualities and attributes of other judgments. Such entry requires 
 the exercise of the jurisdiction of the court ; and, when entered, the 
 judgment is the judicial act of the court, recorded by its clerk. Lom- 
 ■sing vs. Carpenter, 23 Barb., 402 ; affirmed, 20 N. Y., 44Y. 
 
 A judgment entered by the clerk of the county of Schuyler, before 
 tlie completion of its legal creation, was accordingly held to be void. 
 
 Every direction of the statute must be fully complied with, before the 
 judgment is valid and a lien. The bare entry in the judgment-book, by 
 the clerk, is of itself insufficient ; he must also indorse such judgment 
 upon the statement itself. Both are essential to its validity. Weele vs. 
 BeiTyhill, 4 How., 16. This is, however, the duty of the clerk, and 
 not of the attorney ; and, if omitted, the court will not allow the party 
 to suffer, but will direct an amendment of the record, " nwic pro tunc.'''' 
 See also BaZy vs. Mathews, 20 How., 267 ; 12 Abb., 403, note. 
 
 A description in an execution, when issued, that the judgment had 
 been obtained in an action, has been held not to be a substantial defect, 
 it being clear that the proper judgment was intended. Healey vs. 
 Preston, 14 How., 20. 
 
 A judgmenjb of this nature may be vacated in part, and may stand 
 valid, as to another portion of the indebtedness professed to be secured. ' 
 See MavTcs vs. Reynolds, 12 Abb., 403, above cited; Lannhert vs. Goth- 
 verse, 22 How., 265. 
 
 (*.) Vacating of Judgments by Confession. 
 
 As before stated, the following points are distinctly established by 
 the cases above cited. 
 
 1. That it is competent for subsequent judgment-creditors of the 
 debtors to attack, and, if irregularly entered, to set aside a judgment 
 entered by confession, and that this right also extends to a, hondfide 
 purchaser of lands, or to an adverse trustee. 
 
 2. That it is competent for parties interested in attacking such a 
 judgment to do so, either by motion entitled and made in the proceed- 
 ing itself, which, for the purposes of such motion, is treated as an action, 
 or, if they elect, to take that course by means of separate and independ- 
 ent suit brought for that purpose, or Ijy way of counter-claim in a suit 
 for enforcement of the judgment. 
 
 3. It is not competent for a creditor at large to take either proceed- 
 
266 SETTLEMENT OF A CONTKOVEEST. § 48. 
 
 ing. Before he can do so, lie must reduce his indebtedness into actual 
 judgment. A voluntary assignee stands in the same position as repre- 
 senting the creditors at large. 
 
 4. It is not competent for the party confessing, to move to avoid his 
 ovm confession, on the ground of a defect of statement ; and this in- 
 competency extends to those who derive title under him, and are bound 
 by his acts, as voluntary assignees, representatives, &c., or even, it 
 would seem, a subsequent confessee. Nor can such judgment be im- 
 peached, in a strictly collateral proceeding. 
 
 But this last disqualification does not extend to a hondfide purchaser 
 or grantee of lands on which the judgment is an apparent lien. Keiv- 
 dall vs. Ilodgins, 1 Bosw., 659 ; 7 Abb., 309 ; Neusbaxim vs. Keim, 7 
 Abb., 23 ; 1 Hilt., 520. 
 
 Or to a trustee, representing an interest, adverse to that of the party 
 confessing or suffering the entry of judgment against him. Lowler 
 vs. The 3fa/yor' of New York, below cited. 
 
 See above, on first and second points, Cha/pipeU vs. Chappell, 3 Kern., 
 215 ; Bonnell vs. Hen/ry, 13 How., 142 ; Kendall vs. Ilodgins, 1 Bosw., 
 669 ; r Abb., 309 ; Lowber vs. Mayor of New Torh, 16 How., 123 ; 5 
 Abb., 484 ; 26 Barb., 262 ; and also 5 Abb., 325 (being the case of a 
 judgment suffered) ; Wi7iebrennerYS. Edgerton, 30 Barb., 185 ; 17 How., 
 163 ; 8 Abb.., 419 ; Dunham vs. Waterman, 17 K". Y., 9 ; 6 Abb., 357 ; 
 Neusbaum vs. Keim, 1 Hilt., 520 ; 7 Abb., 23 ; also, HamTnand vs. 
 Bush, 8 Abb., 152 ; Norris vs. Denton, 30 Barb., 117 ; Dahj vs. 
 Mathews, 20 How., 267 ; 12 Abb., 403 (note). 
 
 On the third point, Kendall vs. Ilodgins, 1 Bosw., 659 ; 7 Abb., 
 309 ; Neushaum vs. Keim, 7 Abb., 23 ; 1 Hilt., 620 ; Beekman vs. Kirh, ' 
 15 How., 228 ; Lowber vs. The Mayor of New York, stopra. 
 
 On the fourth point, Neusbaum vs. Keim, supra ; Beekman vs. 
 Kirk, 15 How., 228 ; Sheldon vs. Stryker, 34 Barb., 116 ; 21 How., 
 329 ; Bly vs. Oook, 2 Hilt., 406 ; 9 Abb., 366 ; Davis vs. Morris, 21 
 Barb., 152. 
 
 A defendant cannot be heard on a motion to set aside the judgment, 
 for irregularity in matters merely directory; and, a lapse of one 
 year will bar him from all relief in this respect. Vide 2 E. S., 282, 
 § 2 ; Park vs. Church, 6 How., 381 ; 1 C. E. (N. S.), 47. 
 
 A defect in the statement of indebtedness is not, however, ah irregu- 
 larity, but is matter of substance, avoiding the judgment, and unamend- 
 able as against other judgment-creditors. See Winelrrenner vs. Mgerton, 
 30 Barb., 185 ; 17 How., 368 ; 8 Abb., 419 ; Von Beck vs. Shumwn, 
 13 How., 472 ; Dunham vs. Waterman, 17 IST. Y., 9 ; 6 Abb., 357 • 
 McKee vs. Tysm, 10 Abb., 392 ; Hammed vs. Bush, 8 Abb.^ 152 • 
 Boyden vs. Johnson, 11 How., 503 ; Johnson vs. FeUerman, 13 How., 
 
OF THE COMMENCEMENT OE AN ACTION. — § 49. 267 
 
 21 ; Glemmts vs. Gerow, 30 Barb., 325 ; Norris vs. Denton, 30 Barb., 
 117 ; I)aly vs. Mathews, 20 How., 26Y; 12 Abb., 403, note ; Ghwppell 
 vs. Chapj>eU, 2 Kern., 215 ; Bonnell vs. Henry, 13 How., 142 ; all 
 above cited. 
 
 CHAPTER in. 
 
 OF THE COMMENCEMENT OF AN ACTION. 
 
 § 49. Statutory Provisions. 
 
 An action is commenced, in all cases, by summons. 
 
 The following are tbe provisions of the Code on this subject, and 
 those immediately connected with it, as contained in title Y., part II., 
 of that measure : 
 
 TITLE Y. 
 
 Of the Manner of Oonrniendng Ovvil Actions. 
 
 § 127. (106.) Civil actions in the courts of record in this State, shall be 
 commenced by the service of a summons. 
 
 § 128. (107.) The summons shall be subscribed by the plaintiff, or his 
 attorney, and directed to the defendant, and shall require him to answer 
 the complaint, and serve a copy of his answer on the person whose name is 
 subscribed to the summons, at a place within the State, to be therein speci- 
 fied, in which there is a post-office, within twenty days after the service of 
 the summons, exclusive of the day of servi(!e. 
 
 § 129. (108.) The plaintiff shall also, insert in the summons a notice, in 
 substance as follows : 
 
 1. In an action arising on contract, for the recovery of money only, that 
 he wiU take judgment for a sum specified therein, if the defendant fail to 
 answer the complaint, in twenty days after the service of the summons. 
 
 2. In other actions, that if the defendant shall fail to answer the complaint, 
 within twenty days after service of the summons, the plaintiff will apply to 
 the court for the relief demanded in the complaint. 
 
 Dates as it stands from 1849. 
 
 In 1848 the time allowed for answering was not referred to, and the notice under subdi- 
 vision 2 was to specify the time and place of application to the court. 
 
 § 130. (109.) A copy of the complaint need not be served with the sum- 
 mons. In such case, the summons must state where the complaint is or will 
 
268 OF THE COMMENOEMBBTT OF AM" ACTION. § 49. 
 
 be filed ; and if the defendant, within twenty days thereafter, causes notice 
 of appearance to be given, and in person, or by attorney, demands in writing 
 a copy of the complaint, specifying a place within the State where it may 
 be served, a copy thereof must, within twenty days thereafter, be served 
 accordingly, and, after such service, the defendant has twenty days to an- 
 swer, but only one copy need be served on the same attorney. 
 
 Dates aa it stands from 1851. 
 
 In 1848 the structure of this and the succeeding section was wholly different, and the ser- 
 vice of the complaint was obligatory in the first instance. 
 
 In 1849 it was amended, approximating more closely to its present form, but allowing ten 
 days only for a demand of copy of the complaint, when not served in the first instance. 
 
 § 131. (109 and 110.) In the case of a defendant, against whom no per- 
 sonal claim is made, the plaintiff may deliver to such defendant, with the • 
 summons, a notice, subscribed by the plaintiff or his attorney, setting forth 
 the general object of the action, a brief description of the property affected 
 by it, if it affects specific real or personal property, and that no personal 
 claim is made against such defendant, in which case no copy of the com- 
 plaint need be served on such defendant, unless within the time for an- 
 swering, he shall, in writing, demand the same. If a defendant, on whom 
 such notice is served, unreasonably defend the action, he shall pay costs to 
 the plaintiff. 
 
 Passed in its present form in 1851. Before that year the first clause formed part of the 
 preceding section, and this consisted only of the concluding sentence. 
 
 § 132. (111.) In an action affecting the title to real property, the plaintiff, 
 at the time of filing the complaint, or at any time afterward, or, whenever 
 a warrant of attachment, under chapter IV. of title VII., part II. of this 
 Code, shall be issued, or at any time afterward, the plaintiff, if the same be 
 intended to affect real estate, may file with the clerk of each county in which 
 the property is situated, a notice of the pendency of the action, containing 
 the names of the parties, the object of the action, and the description of 
 the property in that county affected thereby ; and, if the action be for the 
 foreclosure of a mortgage, such notice must be filed twenty days before 
 iudgment, and must contain the date of the mortgage, the parties thereto, 
 and the time and place of recording the same. From the time of fiUug 
 only, shall the pendency of the action be constructive notice to a purchaser 
 or incumbrancer of the property affected thereby ; and every person whose 
 conveyance or incumbrance is subsequently ekecuted or subsequently re- 
 corded, shall be deemed a subsequent purchaser or incumbrancer, and shall 
 be bound by all proceeding taken after the fiUng of such notice, to the 
 same extent as if he were made a party to the action. 
 
 For the purposes of this section an action shall be deemed to be pendiu"- 
 from the time of the filing of such notice, provided, however, that such 
 notice shall be of no avail, unless it shall be followed by the first publication 
 of the summons on an order therefor, or by the personal service thereof on 
 a defendant within sixty days after such filing. 
 
OF THE COMMENOEMENT OF AN ACTION. — § 49, 269 
 
 And the court in which the said action is pending may, in its discretion, 
 at any time after the actioln shall have be.eome abated, as is provided in sec- 
 tion number one hundred and twenty-one, on good cause shown, and on ap- 
 plication of any party aggrieved, after the action shall have become abated, 
 as is provided in section one hundred and twenty-one, direct the notice 
 authorized by this section to be removed from record by the clerk of any 
 county in whose office the same may have been filed. 
 
 In 1848 tlila section was confined to actions affecting the title to real property; In 1849 
 and 1851 the wording was changed, the purport remaining substantially the same. In- 1857 
 the authority to file such a notice in cases where a warrant of attachment has been issued 
 was first conferred; and, in 1858, the persons who were to«be deemed subsequent purchasers 
 or incumbrances were first defined as at present. 
 
 The concluding clauses, giving to the filing of such a notice the effect of a commencement 
 of the action, for certain purposes, were added upon the ameudjnent of 1862. 
 
 § 133. (112.) The summons may be served by the sheriff of the corBity 
 where the defendant may be found, or by any other person not a party to 
 the action. The service shall be made, and the summons returned, with 
 proof of the service, to the person whose name is subscribed thereto, with all 
 reasonable diligence. The person subscribing the summons, may, at his 
 option, by an indorsement on the summons, fix a time fov the service thereof, 
 and the service shall then be made accordingly. 
 
 § 134. (113.) The summons shall be served by delivering a copy thereof, 
 as follows : 
 
 1. If the suit be against a corporation, to the president or other head of 
 the corporation, secretary, cashier, treasurer, a director, or managing agent 
 thereof; but such service can be made in respect to a foreign corporation, 
 only when it has property within this State, or the cause of action arose 
 therein, or where such service shall be made within this State, personally, 
 upon the president, treasurer, or secretary thereof. 
 
 2. If against a minor under the age of fourteen years, to such minor per- 
 sonally, and also to his father, mother, or guardian, or, if there be none 
 within the State, then to any person having the care and control of such 
 minor, or with whom he shall reside, or in whpse service he shall be em- 
 ployed. 
 
 3. If against a person judicially declared to be of unsound mind, or inca- 
 pable of conducting his own affairs in consequence of habitual drunkenhess, 
 and for whom a committee has been appointed ; to such committee, and to 
 the defendant personally. 
 
 4. In all other cases, to the defendant personally. 
 
 The preamble, and the three last subdivisions, have come down unchanged. The first, in 
 1848, consisted of only the first portion -of the sentence; in 1849, the wording was changed, 
 and the second portion added. In 1859 it was completed, by the. addition of the third and 
 concluding part. 
 
 § 135. (114.) Where the person, on whom the service of the summons is 
 to be made, cannot, after due diligence, be found within the State, and that 
 
270 OF THE COMMEJS^CEMENT OF AN ACTION. § 49. 
 
 f 
 
 fact appears by affidavit, to the satisfaction of the court, or a judge thereof, 
 or of the county judge of the county where the trial is to be had, and it in 
 li]cc manner appears that a cause of action exists against the defendant, in 
 respect to whom the service is to be made, or that he is a proper party to 
 an action relating to real property in this State, such court or judge may 
 grant an order that the service be made by the publication of a summons, in 
 either of the following cases : 
 
 1. Where the defendant is a foreign corporation, and has property withm 
 the State, or the cause of action arose therein ; 
 
 2. Where the defendant, being a resident of this State, has departed there- 
 from, with intent to defraud his creditors, or to avoid the service of a sum- 
 mons, or keeps himself concealed therein, with the like intent ; 
 
 3. Where he is not a resident of this State, but has property therein, and 
 the court has jurisdiction of the subject of the action; 
 
 4. Where the subject of the action is real or personal property in this 
 State, and the defendant has, or claims a lien or interest, actual or contingent, 
 therein, or the relief demanded consists wholly or partly in excluding the 
 defendant from any interest or lien therein ; 
 
 5. Where the action is for divorce, in the cases prescribed by law. 
 
 The order must direct the publication to be made in two newspapers, to 
 be designated as most likely to give notice to the person to be served, and 
 for such length of titne as may be deemed reasonable, not less than once a 
 week for six weeks. In case of publication, the court or judge must also 
 direct a copy of the summons and complaint to be forthwith deposited in 
 the post-office, directed to the person to be served, at his place of residence, 
 unless it appear that such residence is neither known to the party making 
 the application, nor can with reasonable diligence be ascertained by him. 
 When publication is ordered,- personal service of a copy of the summons 
 and complaint out of the State, is equivalent to publication and deposit in 
 the post-office. 
 
 The defendant against whom publication is ordered, or his representa- 
 tives, on application and sufficient cause shown, at any time before judg- 
 ment, must be allowed ta defend the action ; and, except in an action for 
 divorce, the defendant, against whom publication is ordered, or his represen- 
 tatives, may, in like manner, upon good cause shown, be allowed to defend 
 after judgment, or at any time within one year after notice thereof, and 
 within seven years after its rendition, on such terms as may be just ; and, 
 if the defence be successful, and the judgment, or any part thereof, have been 
 collected, or otherwise enforced, such restitution may thereupon be com- 
 pelled as the court directs ; but the title to property sold under such judg- 
 ment to a purchaser in good faith, shall not be thereby affected. And, in all 
 cases where publication is made, the complaint must be first filed, and the 
 summons, as published, must state the time and place of such filing. 
 
 In actions for the foreclosure of mortgages on real estate, already institu- 
 ted, or hereafter to be instituted, if any party, or parties, having any interest 
 
OF THE OOMMENCEMENT OF AN ACTION. — § 49. 271 
 
 in, or lieu upon such mortgaged premises are unknown to the plaintiff, and 
 the residence of such party or parties cannot, with reasonable diligence, be 
 ascertained by him, and such fact shall be made to appear, by affidavit, to the 
 court, or to a justice thereof, or to the county judge of the county where the 
 trial is to be had, such court, justice, or county judge, may grant an order 
 that the summons be served on such unknown party or parties, by publish- 
 ing the same for six weeks, once in each week successively, in the State 
 paper, and in a newspaper printed in the county where the premises are 
 situated, which publication shall be equivalent to a personal service on such 
 unknown party or parties. 
 
 TMs section has undergone considerable variation. 
 
 In 1848 it was shorter and less comprehensive, nor was it subdivided as at-present. 
 
 In 1849 it was first reduced into separate heads. The provisions, though enlarged from 
 those of 1848, were stfll comparatively restricted, except only in subdivision 1, which was 
 general, without limitation as to property or origin of the controversy, and the remedy was 
 confined to actions on contract, or for damages for breach of contract. 
 
 In 1851 the section was added to and remodelled as it stands now, save only that the re- 
 striction last above referred to was stiU continued. 
 
 On the amendment of 1858, this restriction was removed. 
 
 The concluding clause was added upon the amendment of 1860. 
 
 § 136. (115.) Where the action is against two or more defendants, and, 
 the summons is served on one or more, but not on all of them, the plaintiff 
 m.i,y proceed as follows : 
 
 1. If the action be against defendants jointly indebted upon contract, he 
 may proceed against the defendant served, unless the coUrt otherwise direct ; 
 and if he recover judgment, it may be entered against all the defendants 
 thus jointly indebted, so far only as that it may be enforced against the 
 joint property of all, and the separate property of the defendants served, 
 and, if they are subject to arrest, against the persons of the defendants 
 served: or, 
 
 2. If the action be against defendants severally liable, he may proceed 
 against the defendants served in the same manner as if they were the only 
 defendants. 
 
 3. If all the defendants have been served, judgment maybe taken against 
 any or either of them severally, when the plaintiff would be entitled to judg- 
 ment against such defendant or defendants, if the action had been against 
 them or any of them alone. 
 
 Passed as it stands in 1851. In 1848 it was much less comprehensive, both as regards the 
 number of subdivisions, of which there were two only, and also as to their nature. In 1849 
 it was again changed, approximating more closely to its present form, but with differences in 
 Bubstance as well as form. 
 
 § 137. (116.) In the ca,ses mentioned in section 135, the service of the sum- 
 mons shall be deemed complete at the expiration of the time prescribed by 
 the order for publication. 
 
 § 138. (117.) Proof of the service of the summons, and of the complaint 
 or notice, if any, accompanying the same, must be as follows : 
 
272 OF THE COMMENCEMENT OF AN ACTION. § 49. 
 
 1. If served by the sheriff, his certificate thereof; or, 
 
 2. If by any other person, his affidavit thereof; or, 
 
 3. In case of publication, the affidavit of the printer, or his foreman, or 
 principal clerk, showing the same ; and an affidavit of a deposit of a copy 
 of the summons in the post-office, as required by law, if the same shall have 
 been deposited ; or, 
 
 4. The written admission of the defendant. 
 
 In case of service, otherwise than by publication, the certificate, affidavit, 
 or admission, must state the time and place of the service. 
 
 Dates as it stands from 1851. 
 
 In the original Code the substance was the same, but the wording a, little less particular 
 and comprehensive. 
 
 § 1.39. From the time of service of the summons in a civil action, or the 
 aUowanpe of a provisional remedy, the court is deemed to have acquired 
 jurisdiction, and to have control of all the subsequent proceedings. A 
 voluntary appearance of a defendant is equivalent to personal service of the 
 summons "upon him. 
 
 In 1848 there was no such provision. 
 
 In 1849, the section, as then passed, consisted only of the first sentence, as it now stands. 
 The second, as to the effect of an appearance,. was added to it in 1851. 
 
 (5.) Act of 1853, as to Substituted Seevice. 
 
 The above are the whole of the provisions of the Code on tbe subject 
 •of this chapter. 
 
 In 1853, however, a separate measnte was passed by tlie legislature, 
 giving additional facilities for the service of process, and also of notices. 
 &c., essential to the prosecution of an action when commenced. 
 
 The measure in question constitutes chapter 511 of the laws of that 
 year, p. 9Y4. It is entitled " an act to facilitate the service of process 
 in certain cases," and its provisions run as follows : 
 
 Whenever it shall satisfactorily appear, to any court, or any judge of the 
 Supreme Court, or any county judge, by the return or affidavit of any sheriff, 
 deputy sheriff, or constable, authorized to serve or execute any process or 
 paper for the commencement, or in the prosecution, of any action or pro- 
 ceeding, that proper and diligent effort has been made to serve any such pro- 
 cess or paper on any defendant in any such action, residing in this state; and 
 that such defendant cannot be found, or, if found, avoids or evades such 
 service, so that the same cannot be made personally, by such proper dili- 
 gence and effort, such court or judge may, by order, direct the service of 
 any summons, subpoena, order, notice or other process or paper to be made 
 by leaving a copy thereof at the residence of the person to be served, with 
 some person of proper age, if admittance can be obtained, and such p'roper 
 person found who will receive the same; and if admittance cannot be ob- 
 tamed, or any such proper person found, who wUl receive the same, by 
 
OP THE COMMENCEMENT OF AN ACTION. — § 50. 273 
 
 affixing the same to the outer or' other door of said residence, and by put^ 
 ting another copy thereof, properly folded or enveloped, and directed to 
 the person to be served, at his place of residence, into the jDost-office in the 
 town or city where such defendant resides, and l)aying the postage thereon. 
 On filing with the clerk of the county where such defendant resides, or the 
 county in which the complaint in any such action is by law to be filed, an 
 affidavit showing service according to such order, such summons, subpoena, 
 order, notice, or other process or paper, shall be deemed served, and the 
 same proceedings may be taken thereon as if the same had been served by 
 dehvery to such defendant personally, or otherwise, as by law now required ; 
 but the court may, upon any application by them deemed reasonable, at any 
 time, permit any defendant to appear and defend, or have such other relief, 
 in any action or proceeding founded on any such service, as the nature of 
 the ease may require. 
 
 (a.) Unicnown Defendants. 
 
 The following provision of the Code is also material in relation to 
 suits, brought against a defendant whose name is, at such time, un- 
 known to the plaintiff : 
 
 § IW. (150.) When the plaintiff shall be ignorant of the name of a de- 
 fendant, such defendant may be designated in any pleading or proceeding 
 by any name ; and, when his true name shall be discovered, the pleading or 
 proceeding may be amended accordingly. 
 
 (d.) Special LsrDOESBMEisrT. 
 
 By the Eevised Statutes (2 E. S., 481, seetiori 7), it is provided, that 
 upon every process issued, to compel the appearance of the defendant 
 to any action for the recovery of a penalty or forfeiture, there shall be 
 indorsed a general reference to the statute by which such action is 
 given. 
 
 There is as yet no reported decision on the subject of this provision ; 
 but it may probably be held that it is still in force, not being incon- 
 sistent with the Code, and, till the point is settled, it may be more pru- 
 dent to comply with it in that class of cases. 
 
 § 50. Summons Generally Considered, 
 {a.) Nattiee of. 
 
 Uiid er section 127 as above cited, summons is the process by which every 
 civil action is commenced. This provision does not really conflict with 
 that in section 139, that, from the time of the allowance of a provisional 
 remedy, jurisdiction may be acquired. Jurisdiction of this latter na- 
 ture is merely limited, and for the purposes of the remedy itself, and, 
 in fact, before a provisional remedy can be obtained, the summons 
 
 Vol. L— 18 
 
274 OF THE COMMENCEMENT OF AN ACTION. § 50. 
 
 must, in all cases, be issued, if not served. See Code, sections 183, 206, 
 220, 227 ; see also Burgess vs. Stitt, 12 How., 401. For the purposes 
 of ulterior proceedings, indei)endent of that remedy, such jurisdiction 
 is, practically, of no avail. See heretofore under the head of Limi- 
 tations, section 44, of this work. :N'or is the mere attempt to commence 
 an action (see section 99 of the Code), of any greater avail. It merely 
 serves to take the case out of the operation of the statute, and it must 
 be followed by service of the summons, either personally or by publica- 
 tion, within a limited period, or it will be 'a nullity. 
 
 The provisions of the code have swept away the forms of the old 
 practice, and a summons is necessary in all cases. An attempt to com- 
 mence ,,an action by service of declaration, soon after its coming into 
 operation, was accordingly held to be. a nullity, and the defect una- 
 mendable. Diefendorf ^^. Elwood, 3 How., 285 ; 1 C. E., 42. 
 
 Where any other proceeding is necessary as a condition precedent to 
 the right to sue, a summons previously issued will be a nullity. Thus 
 a summons dated and issued in the name of an infant plaintiff, before 
 the appointment of her guardian ad litem, was set. aside as irregular. 
 Hill vs. Thacter, 3 How., 407 ; 2 C. E., 3. 
 
 In proceedings for the determination of claims to real estate, sum- 
 mons in accordance with the provisions of the code, has been held to be 
 the proper form of commencement under section 449, notwithstand- 
 ing its discrepancy with the form of notice prescribed by the Eevised 
 Statutes. HamTrwnd Y%.Tillotson, 18 Barb., 332 ; overruling Crane vs. 
 Sawyer, 5 How., 372 ; 1 C. E. (ISF. 8.), 30. 
 
 The plaintiff will be bound by the form of his summons as issued, 
 and cannot subsequently change his position before the Court. Where, 
 therefore, he issued his summons as administrator, and subsequently 
 declared generally, the variance was held to be fatal. Blanchard vs. 
 Strait, 8 How., 83. 
 
 In one case, and one only, the issuing of a summons will not only be 
 unnecessary, but unadvisable, and that is with reference to moneys col- 
 lected by an attorney and not paid over on demand, in respect of which 
 an attachment is issuable under the Eevised Statutes. If, instead of 
 issuing such attachment, the client bring an action in the ordinary 
 course, the right to the former remedy will be held to have been waiv- 
 ed, and it cannot be afterwards obtained. Gottrell vs. Finlayson, 4 
 How., 242. 
 
 Independent of the provisions of the Code below cited, it has been 
 held to be necessary that the summons, when issued, should contain the 
 'name of the court in which the defendant is required to appear. 
 
 In Wa/rd vs. Stringham, 1 C. E., 118, a summons and copy complaint, 
 thus deficient, were held to be a nullity, and leave to amend was re- 
 
OF THE COMMENGEMEKT OF AK ACTIOK. — § 50. 275 
 
 fused. In an anonymotis case, 2 0. E.., 75, a judgment entered upon a 
 sximmons so issued, the complaint not being gerved, was also set aside. 
 In JDix vs. Palmer, 5 How., 233 ; 3 C. E.., 214, the omission in ques- 
 tion was considered " a fatal objection" (though held to be waived by- 
 subsequent acquiescence) ; and in James vs. Kirhpatrick, 6 How., 
 241 ; 3 C. E., 174, the same view was sustained, and a judgment, enter- 
 ed on such a summons, set aside as irregular, leave to amend being 
 only granted, on terms equivalent to the bringing of a fresh action. 
 
 In Walker vs. Hubbard, 4 Plow., 154, this omission was held to be a 
 defect, but amendable. In that case a complaint had been served. In 
 Dix vs. Palmar, and Jam,es vs. Kirk/patriclc, it does not appear that 
 such had been the case. TaUman vs. Hinman, 10 How., 89, conflicts, 
 however, with the above view. It is there decided, that an order re- 
 fusing to set aside a judgment taken \)j default, on the ground of this 
 specific defect, is not appealable, on the ground that the statement of 
 the name of the court is not a statutory prerequisite, and that the omis- 
 sion is therefore one which it is competent for the court to disregard in 
 its discretion. 
 
 This view seems better grounded, and more consonant with the spirit 
 of section 176, in those eases in which the defendant has no real reason 
 to complain of being actually misled, and does not show the existence 
 of a defence, from which, if the judgment stands, he would be pre- 
 cluded. See also Gooh vs. Kelsey, 19 IST. Y., 412, below cited. 
 
 In Yates vs. Blodget, 8 How., 278, the defect was likewise disre- 
 garded, and the decisions first above cited are dissented from, on the 
 same ground, i. e., that the insertion of the nanie of the court is not a 
 statutory requisition. See Cooh vs. Kelsey, supra. In that case, the 
 name of the court appeared on the complaint, which was served at the 
 same time. 
 
 Tlie liberal view taken in Yates vs. Blodget, is supported by the two 
 following decisions made by the same judge, which hold the converse, 
 i. e., that the omission of the name of the court in the complaint, which 
 is in fact a statutory requisite (see section 142), may, nevertheless, be 
 disregarded where that information is given by the summons. Van 
 Namee vs. Pedble, 9 How., 198 ; Yan Benthuyse^i vs. Stevens, 14 How., 
 70. This doctrine is, however, dissented from in Merrill vs. Grinnell, 
 12 L. O., 286, where the latter omission was held to be a defect, but 
 amendable. 
 
 It is not necessary that the name of the state should appear on the 
 face of the summons, even where the defendant is non-resident, and the 
 service by publication. Cooh vs. Kelsey, 19 E". T., 412 ; afiirming 
 same case, 17 How., 134; 8 Abb., 170. This decision overrules TilMS 
 vs. Belyea, 16 How., 371 ; 8 Abb., 177. 
 
276 OF THE COMMEKCEMEKT OP AW ACTION. § 60. 
 
 A summons properly issued in replevin, will not be affected by any 
 defect in the collateral papers relating to the provisional remedy. Wis- 
 consin Maj-'ine and Fire Insurance Company BanJe vs. Hobbs, 22 How., 
 494 (499). 
 
 (5.) FoEM OF Summons. 
 
 The requisites in this respect, which are imposed by sections 128 and 
 129, may be shortly summed up as follows. It is, in all cases, indis- 
 pensable — 
 
 1. That the summons should be subscribed by the plaintiff or his 
 attorney. 
 
 2. That it should be directed to the defendant. 
 
 3. That he should be formally required thereby to answer the com- 
 plaint in the action. 
 
 4. That the place where his answer is to be served should be dis- 
 tinctly specified. 
 
 6. That the time within which such service should be made should 
 also be distinctly pointed out. 
 
 • 6. That he should be distinctly warned that, in the event of his not 
 answering, the plaintiff will take judgment, or apply for relief against . 
 him. 
 
 (o.) 1. SUBSCEIPTIOK. 
 
 The subscription of an agent of the plaintiff, not an attorney, is bad, 
 and a summons so subscribed will be set aside. Weai'e vs. Slocum, 
 3 How., 397 ; 1 C. E., 105. 
 
 The printing the attorney's name afr the foot of the usual form of 
 summons, is not a subscription within the provisions of the statute. 
 For a copy it will be sufficient, but the original must be actually sub- 
 scribed in writing. Farmers' Loan and Trust Co. vs. Dickson, 17 
 How., 477 ; 9 Abb., 61. 
 
 Tlie defect in question was, however, held to be immaterial, and dis- 
 regarded in Mutual Life Insurance Co. vs. Ross, 10 Abb., 260, note. 
 
 In addition to the subscription, the attorney should add his place of 
 business. If he neglect to do so, papers may be served upon him at 
 his place of residence, through the mail ; and the same regulation .ap- 
 plies to a party prosecuting in pereon. (Kule 10.) Where, however, 
 the simimons specifies on its face, as usual, the place where the answer 
 is to be served, such insertion would doubtless be held to be a sufficient 
 compliance with the rule. 
 
 (c?.) 2. DrEEOTiON TO Defendant. 
 
 In an action against a county, the suit should be brought against the 
 board of supervisors. When against the supervisors, as such, they 
 
OF THE COMMENCEMENT OE AN ACTION. — § 50. 277 
 
 should be individually named. Wild vs. Supervisors of County of Oo- 
 lumlia, 9 How., 315. 
 
 In this connection, the provisions of section 175, enabling suits against 
 unknown defendants to be brought in a iictitious name, falls naturally 
 under notice. 
 
 See, as to power to use any reasonable designation for that purpose, 
 Pindar vs. BlaoTi, 4 How., 95 ; 2 0. E., 53. 
 
 It is not, however, allowable to the plaintiff to use a fictitious name 
 at his discretion ; but only when he is ignorant of the true one. Some 
 description must also be given, so as to identify the party intended as 
 far as possible ; and the facts of the use of a fictitious name, and of the 
 plaintiff's ignorance of the true one, must likewise appear on the sub- 
 sequent proceedings. CrandaU vs. Beach, 7 How., 271. 
 
 A misnomer of the defendant will be a fatal objection ; and, where 
 he has not appeared in the action, may be raised by him at any time, 
 even after judgment and execution. Farnham vs. Hildreth, 32 Barb., 
 277. 
 
 In ihe,Waterl)ury Manufaeturvng Company vs. Krause, 1 Hilt., 560 , 
 9 Abb., 175, note, the plaintiff was allowed to correct an error of this 
 description- on motion. 
 
 In JElliott vs. Hart, 7 How., 25, it was held that the objection might 
 be taken in the same manner by the defendant. This conclusion is, 
 however, denied, and an answer, in the nature of a plea in abatement, 
 held the proper remedy in Miller vs. Stettiner, 22 How., 518. 
 
 In Allen vs. Allen, 11 How., 277, it was held that the section war- 
 ranted the publication of a suinmons in partition, addressed to " Thos. 
 Allen and his wife and children, and others, owners unknown." 
 
 Where new parties are added by amendment of the complaint, a cor- 
 responding amendment of the summons is essential. Follower vs. 
 Laughlin, 12 Abb., 105. 
 
 {e.) Requisition to Answee Complaint. 
 
 This is essential in all cases. If a copy is served with the summons, 
 the latter must expressly refer to that copy. If the summons is served 
 alone, a reference to the complaint is equally necessary, and, in addition, 
 it must be stated where that complaint is or will be filed. (§ 139.) An 
 omission of this nature was held to render the summons wholly irregu- 
 lar in Piguolet vs. JDaveau, 2 Hilt., 584. 
 
 The omission of this statement is a positive defect. It has been held, 
 however, that the provision is directory, and an amendment permitted, 
 both on general grounds, and also because the statute of limitations 
 would otherwise have run. Keeler vs. Beits, 3 0. R., 183. In the 
 sa/me case an omission to annex the complaint, the summons stating it 
 
278 OF THE COMMENCEMENT OF AN ACTION. § 50. 
 
 to be so, was in like manner disregarded. So also in Eart vs. Kremer, 
 1 C. E., 50, it was held there was nothing in the objection^ that the 
 summons stated that a copy of the complaint would be filed, instead of 
 the complaint itself, as prescribed by the section. 
 
 (/.) Place of Seevice of Answee. 
 The summons, to be regular, must require the answer to be served on 
 the actual subscriber, whoever that subscriber may be. Any other di- 
 rection will be clearly bad. Weave vs. Slooum, 3 How., 397 ; 1 C. K., 
 106. An amendment, however, was there permitted, as otherwise the 
 statute would have run. 
 
 {g.) TmE or Seevice of Answee. 
 
 This requisition is so clear that as yet there is no reported decision on 
 its bearing, as regards the form or regularity of the summons. In its 
 other aspect, as to the time allowed to the defendant to answer, it will 
 be considered hereafter. 
 
 (A.) Notice of Taking Judgment, oe Application foe Eelief. , 
 
 The classification of actions under the second subdivision of section 
 129, has given rise to considerable discussion, the great difiiculty being 
 to ascertain the precise extent of the terms, " An action arising on con- 
 tract for the recovery of money only," employed in the first of those 
 subdivisions, and what are the " other actions" not included within the 
 scope of these tenns. 
 
 To a certain degree, this classification, as regards common law reme- 
 dies, is grounded on the old distinction between actions ex contractu 
 and ex delicto. The latter fall almost universally within subdivision 2. 
 The same may be predicated of the whole class of proceedings for equi- 
 table relief 
 
 The expression, " arising on contract," standing alone, would be 
 clearly synonymous with action " ex contractu." The qualification of 
 that expression involved in the additional words, " for the recovery of 
 money only," has been the source of the difiiculty which has been 
 experienced in arriving at a satisfactory construction. 
 
 Amongst the many cases in which the question has been passed upon. 
 The People vs. Bennett, 6 Abb., 343 ; afiirming same case, 5 Abb., 384, 
 may be selected as that which goes most deeply into the subject, and 
 in which the nearest approach to a satisfactory definition is arrived at. 
 The conclusion come to is couched in the following words : 
 
 Taking the whole definition together, " the action arising on contract 
 for the recovery of money only," I think the rule is this : 
 
 Where the action is brought for the recovery " of a sum of money 
 
OP THE COMMENCEMENT OF AN ACTION. — § 60. 2*79 
 
 payable by the contract on which the action is brought, whether the 
 contract be verbal or written, express or implied, and even if it be no 
 more than a legal duty or liability, whether imposed by statute or de- 
 clared by the judgment of a court — if the sum sued for is certain in 
 amount, or capable of being reduced to certainty by computation, then 
 the summons must be in the form prescribed by subdivision 1, of section 
 129 of the Code, and, upon any failure to answer and contest the ex- 
 istence of the contract, liability or duty, judgment may be taken for 
 want of an answer in the manner prescribed by subdivision 1, of section 
 246, In other actions, the summons must be in the form prescribed by 
 subdivision 2, of section 129, and judgment can be obtained only on 
 application to the court." 
 
 This rule, on the whole, comes nearest to the general result of the 
 various cases below cited, and may be accepted as that sanctioned by 
 the weight of authority. It is obvious, however, that it is founded in 
 some degree on expediency, and on the collateral provisions of section 
 246. The judges would seem to have looked beyond mere abstract 
 reasoning, founded on the wording of section 139, exclusively consid- 
 ered (^ide same ease, 6 Abb., 346), and to have framed their decisions 
 in view of what would or would not be most conducive to substantial 
 justice to the defendant, in the event of his neglecting or declining to 
 appear, and allowing the plaintiff to take judgment by default. In cases 
 where the former, though admitting generally the plaintiff's right to 
 recover, might still, upon the trial, have contested the amount of lia- 
 bility flowing from the admission of that right, the power of doing 
 BO is, by the above construction, substantially secured to him, when 
 the summons is under subdivision 2. He may then, by a notice of ■ 
 appearance, secure to himself the right to be heard on the application 
 for the relief demanded, and of being present and presenting his views 
 or counter-evidence, on any reference or assessment which may then be 
 ordered. Yide section 246, subdivision 2. In cases where the contract 
 itself, or thfe liability or duty sought to be enforced, fixes the amount 
 due, either by way of a specific sum, or in such a manner that a bare 
 computation, without extraneous or collateral evidence, is all that is 
 requisite to arrive at a correct conclusion as to the amount of recovery, 
 it is equally obvious that he cannot claim any such opportunity, as of 
 right, and that, if extended, it could in nowise avail him. 
 
 (i.) As TO Subdivision 1. 
 
 A wide view of the operation of this subdivision is taken in the fol- 
 lomng cases, which hold that any action for damages arising from 
 breach of contract is within its wording. Such an action is " an action 
 arising on contract for recovery of money only." So held as to an ac- 
 
280 OF THE COMMENCEMENT OP AN ACTION. § 50. 
 
 tion for breach of promise of marriage. Leopold vs. Poppenheviner, 
 1 C. E., 39 ; WiUmms vs. Miller, 4 How., 94; 2 C. E., 65. As to hd 
 action for breach of a carrier's contract, Trapp vs. The New Yorh and 
 Erie liailroad Company, 6 How., 237 ; 1 C. E. (N. S.), 384. As to 
 an action for breach of a contract to convey real estate, the opinion 
 going to the extent that all cases in which a recovery is sought on con- 
 tract, whether the sum be fixed or not, and even on a quantum meruit^ 
 fall within the scope of this provision, Groden vs. Drew, 3 Dner, 652 ; 
 
 6 Abb., 338, note. As to an action for breach of covenants in a lease, 
 for proper cultivation, Gohb vs. Dunhin, 17 How., 97; referring also to 
 Cook vs. Pomeroy, 10 How., 103. 
 
 Of the above, Williams vs. Miller, and Trapp vs. New Yorh and Erie 
 Railroad Compamj, are directly, and the others, as will be seen below, 
 substantially overruled. Coih vs. Dunkin is reversed, 19 How., 164. 
 
 In an action for goods sold and delivered, a summons under subdi- 
 vision 2 was, at an early period, decided to be bad. JDiMee vs. Mason, 
 1 C. E., 37 ; 6 L. 0., 363. 
 
 An action for a statutoiy penalty, of fixed amount, has been decided 
 to fall within subdivision 1. The People vs. Bert.nett, 5 Abb., 384 ; 
 aifirmed, 6 Abb., 343; Commissioners of Excise of Albany County vs. 
 Classon, 17 How., 193. Though arising out of an offence, the statute 
 makes the penalty, in effect, a debt. See also dicta as to the same 
 being the case, in a suit brought on a judgment, for a cause of action 
 originally arising ex delicto. 5 Abb., 387 ; 6 Abb., 348. 
 
 An action for liquidated damages under the express provisions of a 
 contract, falls within subdivision 1. Cemetery Boa/rd of Town of 
 Hyde Park vs. Teller, 8 How., 504. 
 
 The following have been held to be erroneously commenced under 
 that subdivision, and to fall under the class of actions for relief: 
 
 A suit for foreclosure. Wynamt vs. Beeves, 1 C. E., 49. For ma- 
 licious prosecution. AYebb vs. Mott, 6 How., 439. For loss of goods 
 by common carriers. Hewitt vs. Ho^vell, 8 How., 346 ;' Flynn vs. 
 Hudson River Railroad Company, 6 How., 308 ; 10 L. O., 158. 
 "Where the complaint, though the debt arose out of contract, contained 
 charges of fraud, making that the gravamen. Field vs. Morse, 1 How., 
 12. A suit for Avrongfully detaining property. Voorhies vs. Scojield, 
 
 7 How., 51. For breach of an agreement to convey real property. 
 Johnson vs. Paul, 14 How., 454 ; 6 Abb., 335, note. For breach of' a 
 manufacturing contract. Tuttle vs. Smith, 14 How., 395 ; 6 Abb. 329. 
 
 Swift vs. Be Witt, 3 How., 280 ; 1 C. E., 25 ; 6 L. O., 314, is authori- 
 ty, if authority were required, for the usual form of summons under this 
 subdivision, viz. : that the plaintiff will also take judgment for intei-est 
 on the amount specified. 
 
OF THE OOMMENCEMElirT OF AN ACTION. — § 50. 281 
 
 (J.) As to Subdivision 2. 
 
 The following establish the principle above laid down, viz. : that 
 wherever the claim of the plaintiff arises ex delicto, or in equity, or 
 where, in an action sounding in contract, he seeks to enforce a claim for 
 an unliquidated amount, or to obtain any other relief than such as is 
 represented by or included in a mere money judgment, his proper form 
 of commencing the action is by a summons for relief under subdivision 2, 
 and that in such cases he cannot avail himself of the more summary rem- 
 edy which subdivision 1, when applicable, provides in case of a default. 
 
 Subdivision 2 has been held the proper form. 
 
 In an action against a common carrier for loss of goods, (Jlo7' vs. Mai- 
 lory, 1 C. E., 126 ; Flynn vs. The Hudson River Railroad Company, 6 
 How., 308 ; 10 L. O., 158, directly overruling Williayns vs. Miller, sxipra; 
 Hewitt vs. Howell, 8 How., 346 ; Luling vs. Stanton, 2 Hilt., 538 ; 8 
 Abb., 378 ; as to a carrier's liability, CampbellY?,. PerTtins, 4 Seld., 430. 
 ■ In an action for breach of promise of marriage, overruling Leopold 
 vs. Poppenheimer, and Williams vs. Miller, above cited ; McNeff vs. 
 Short, 14 How., 463 ; MoDonald vs. Walsh, 5 Abb., 68 ; Daniis vs. 
 Bates, 6, Abb., 15 ; in an action for malicious prosecution, Webh vs. 
 Mott, 6 How., 43^9. 
 
 In an action against an attorney for moneys collected, involving an 
 accounting between the parties. West vs. Brewster, 1 Duer, 647 ; 11 
 L. O., 15Y. 
 
 For a breach of warranty on sale of a horee, Dunn vs. Bloomi/ngdale, 
 14 How., 474 ; 6 Abb., 340, note. See likewise, Masten vs. Soovill, 6 
 How., 315. 
 
 In an action for an unliquidated amount of damages on breach of 
 contract, and for demands under that contract, Tuttle vs. Smith, 14 
 How., 395 ; 6 Abb., 329. For unliquidated damages generally (per 
 Barculo, J.), The Cemetery Boa/rd of Hyde Park vs. Teller, 8 How., 504 ; 
 Johnson vs. Paul, 14 How., 454 ; 6 Abb., 335, note; McNeff vs. Short, 
 14 How., 463 ; Luling vs. StamAon, 2 Hilt., 638 ; 8 Abb., 378 ; Coll 
 vs. Punkin, 19 How., 164 ; reversing, 17 How., 94. 
 
 Generally, in an action sounding in tort, though arising out of breach 
 of contract, or where collateral relief is prayed. Rider vs. Wliitlock, 12 
 How., 208 ; Field vs. Morse, 7 How., 12 ; Travis vs. Tobias, 7 How., 
 90. See also Atwell vs. Le Roy, 15 How., 227 ; 4 Abb., 438. 
 
 In an action against bail for not surrendering their principal, Kelsey 
 vs. Covert, 15 How., 92 ; 6 Abb., 336. 
 
 An action for foreclosure is clearly within this subdivision. Wynant 
 vs. Reeves, 1 0. R., 49. An action for goods sold and delivered, as 
 clearly not. Diblee vs. Mason, 1 0. E., 37 ; 6 L. O., 368. 
 
282 OF THE COMMENCEMENT OF AN ACTION. § 51. 
 
 Under the Code of 1848, it was necessary to specify in the summons 
 a time and place at which, and the county iu which, the application for 
 judgment would he made. Warner vs. Kenny, 3 How., 323 ; 1 C. E., 
 96 ; Anonymous, 1 C. E., 82. Since the amendment of 1849, and the 
 making of rule 24, formerly 85, this is no longer necessary. 
 
 A summons issued under both of the subdivisions, against three de- 
 fendants, demanding a money judgment against two of them, and relief 
 against all three, was held to be irregular. The Code contemplates only 
 one notice, or a notice under one of its subdivisions. It should have 
 been confined to subdivision 1. Baxter vs. Arnold, 9 How., 446. 
 
 Qc.) Special Indoesem3;nts. 
 As to the special indorsement on process in an action for a statutory 
 penalty, required by the Eevised Statutes, see 2 E. S., 481, § T, above 
 referred to as probably still in force. 
 
 § 51. Summons, Amend/ment of. 
 
 Defects in a summons cannot be disregarded nor amended as of 
 course. Dihlee vs. Mason, 1 C. E., 3Y ; 6 L. O., 363 ; McCrane vs. Moul- 
 ton, 3 Sandf , 736 ; 1 C. E. (E. S.), 157. 
 
 These decisions seem clearly to overrule Bamenport vs. Bussel, 2 
 C. E, 82. 
 
 Such defects are, however, amendable on applicatiob to the court. 
 Special power for this purpose is conferred by section 173 ; and, in Zfiwie 
 vs. Beam, 19 Barb., 51 ; 1 Abb., 65, the general power of the court to 
 amend proceedings before it, is asserted as existent, independent of the 
 provisions of the Code. 
 
 That application, when made affirmatively, must be upon notice 
 where there has been a general appearance of the defendant. Hewitt 
 vs. Iloiuell, 8 How., 346. And, in all cases, an application to the court 
 is necessary, either by way of affirmative proceeding, or in answer to a 
 motion of the defendant on the ground of defect or variance. Gray vs. 
 Brown, 15 How., 555 ; Allen vs. Allen, 14 How., 248 ; McBonald vs. 
 Walsh, 5 Abb., 68. 
 
 "Where new parties are brought in by amendment of the complaint, 
 an amendment of the summons will be absolutely necessary. Follower 
 vs. Laughlin, 12 Abb., 105. 
 
 The power of amendment has for the most part been liberally exer- 
 cised, and, when in furtherance of justice, will be so at any stage of the 
 proceedings, even after judgment. Sluyter vs. Smith, 2 Bosw., 673. 
 See generally. Van Wyoh vs. Hardy, 20 How., 222 ; 11 Abb., 473 ; 
 The Waterlury Manufacturing Comjpany vs. Krause, 1 Hilt., 560 ; 9 
 
OF THE COMMENCEMENT OE AN ACTION. — § 51. 283 
 
 Abb., 175, note ; Xeeler vs. Belts, 3 C. K., 183 ; MUott vs. JIart, T How., 
 25 ; Weare vs. Slooum, 1 C. E., 105 ; 3 How., 397. And, as to terms 
 to be imposed, James vs. Kirhpatrick, 5 How., 241 ; 3 C. E., 174. In 
 Ward vs. Stringhcum, however, 1 0. E., 118, relief of this nature was de- 
 nied, no name of any court appearing in either the summons or com- 
 plaint, as originally served. So also in JSallett vs. Righters, 13 How., 
 43, and Kendall vs. Washlm/rn, 14 How., 380, such relief was denied, 
 for the purpose of sustaining judgment obtained on service by publi- 
 cation. Being a statutory proceeding, no amendment could be made 
 for the purpose of aiding the acquisition o'f jurisdiction under those 
 circumstances. 
 
 A general appearance, or its equivalent, has been held to waive all 
 inherent defects in the summons, and even the want of any summons 
 at all. See cases below cited under section 59. 
 
 In Dunn vs. JBloomingdale, 14 How., 474; 6 Abb., 340, note, there 
 is a dictuTTh that the issuing of a summons under subdivision 2, instead 
 of subdivision 1, of section 129, is a harmless error, which it does not 
 concern the defendant to have corrected. The summons in that case 
 was, however, decided to be properly issued. See also, as to disregard 
 of mere technical objections, Sart vs. Kremer, 2 C. E., 50 ; Mutual 
 Life Insurance Company vs. Boss, 10 Abb., 260, note ; Van Wych vs. 
 Rardy, 20 How., 222 ; 11 Abb., 473. 
 
 A stricter view is taken on the subject in VoorJiies vs. Scofield, 1 
 How., 51 ; Shafer vs. Httmphrey, 15 How., 564 ; Tuttle vs. Smith, 14 
 How., 395 ; 6 Abb., 329 ; where it was held that the objection' that the 
 complaint does not conform to the summons, is not waived by a general 
 appearance. In the latter of these two cases, the complaint was not 
 served with the summons, and, therefore, an appearance could not prop- 
 erly be held to waive a defect of which the defendant was then ignorant, 
 and of which he could not obtain a knowledge without appearing. In 
 Yoorhies vs. Scofield, the complaint had been served at the outset, and 
 the doctrine seems at the first glance a little more questionable. The 
 defendant moved, however, simultaneously, to set aside the proceedings, 
 and therefore could not be held as guilty of laches. 
 
 Considerable discussion has taken place as to which of the two is 
 irregular, the summons or the complaint, in case of variance between 
 them. The position that, inasmuch as the summons brings the defend- 
 ant into court, and the complaint subsequently states the grievances of 
 the plaintiff and the remedy he asks, the former controls, and that the 
 latter, if inconsistent, is irregular (according to the old practice of set- 
 ting aside a declaration for variance with the writ), is maintained in the 
 following decisions, viz., Eider vs. Whitlock, 12 How., 208 ; Allen vs. 
 AUen, 14 How., 248 ; Boirngton vs. Latham, 14 How., 360 ; Tuttle vs. 
 
284 OF THE COMMENCEMENT OF AN ACTION. § 52. 
 
 Smith, 14 How., 395 ; 6 Abb., 329 ; Johnson vs. Paul, 14 How., 454 ; 
 6 Abb., 335, note ; Gray vs. Brown, 15 How., 655 ; Shafer vs. Humpl\r 
 rey, 15 How., 564 ; Davis vs. Bates, 6 Abb., 15 ; Follower vs. Laugh- 
 lin, 12 Abb., 105 ; Campbell vs. Wright, 21 How., 9. See also, as to a 
 motion on -the part of the defendant being the proper course under such 
 circumstances, Elliott vs. Hart, 7 How., 25. 
 
 The contrar)' position, *. e., that, under these circumstances, the sum- 
 mons and not the complaint is irregular, is laid down in Voorhies vs. 
 Scofield, Y How., 51 ; Field vs. Morse, 1 How., 12 ; Webh vs. Mott, 6 
 How., 439 ; Flymi vs. The Hudson River Railroad Company, 6 How., 
 308 ; 10 L. O., 158 ; The Cemetery Board of Htjde Park vs. Teller, 8 
 How., 504. See also, Croden vs. Brew, 3 Duer, 652 ; 6 Abb., 338, note ; 
 and Chambers vs. Lewis, 11 Abb., 210 ; affirming same case, 2 Hilt., 
 591 ; 10 Abb., 206. 
 
 The former theory seems preferable, and the weight of authority pre- • 
 ponderant; but both classes of cases converge practically to a similar 
 result. Proceedings based or judgment entered upon a summons and ' 
 complaint inconsistent with each other, cannot stand, if attacked by 
 the adverse party. The proper form of attack would seem to be to set 
 aside the latter as inconsistent. At the same time the mistake com- 
 mitted by the plaintiff is more likely to have arisen in the framing of 
 the former, and the relief which he will more probably seek, either 
 affirmatively or by way of answer to an adverse motion, will be to have 
 the summons made conformable to the complaint. Either amendment 
 lies within th6 power of the court, and neither is likely to be refused, 
 of course, upon proper terms. In Bidder vs. Whitloch, relief of this 
 nature was given in the alternative, at the plaintiff's election ; in Allen 
 vs. Allen, and Gray vs. Brown, an amendment of both was permitted. 
 
 An amendment of the summons, and a notice that the plaintiff wiU 
 abide by the complaint originally served, will not prejudice his right to 
 amend the latter, as of course, after the coming in of the defendant's 
 answer. Boss vs. Binsmore, 20 How., 328 ; 12 Abb., 4. 
 
 Mere delay in an application for leave to amend the summons wiU 
 not be a bar to the application, but, in such a case, the court will im- 
 pose such terms, if necessary, as will prevent it from working to the 
 prejudice of the defendants. McElwain vs. Corning, 12 Abb., 16. 
 
 § 52. Service of Complaint, with Summons. 
 
 It is left optional by the Code, section 130, as to whether a copy of 
 the complaint should or should not be served with the summons ; but, 
 in a majority of instances, the expediency of adopting that course is 
 unquestionable ; for the obvious reason, that a defendant, desirous of 
 
OF THE COMMENCEMENT OF AN ACTION. — § 54. 285 
 
 delay, may wait till the very last day, before he demands a copy of the 
 complaint, and, by then serving that demand,, may practically gain an 
 extension of his time to defend, amounting to doTible that allowed to 
 him, when the complaint accompanies the summons. 
 
 There are, however, two classes of cases in which the summons may 
 advantageously be served alone ; i. e., 1, those in which an immediate 
 commencement of the action is an object, or in which ' it is likely that 
 several defendants may defend jointly ; and 2, those in which no per- 
 sonal claim is made against any one or more of the defendants. 
 
 § ^3. Notice of no Personal Glckim. 
 
 In these last cases, the Code has made provision for the service of a 
 notice to that effect, concurrent with the summons, the requisites as to 
 which are prescribed by section 131. Under the Code of 1849, the 
 plaintiff's power in this respect was limited to cases of partition or 
 foreclosure ; but, by the last amendment, it is extended to causes of 
 every description, without limitation, and may now be advantageously 
 exercised, with reference to every mere formal defendant, against whom 
 no personal claim is made, in any suit, of whatever nature. In cases 
 involving a claim upon specific real or personal property, a brief de- 
 scription of that property must be inserted. 
 
 The benefits of adopting this course, wherever practicable, in refer- 
 ence both to the proceedings at the outset, and also to the ultimate 
 award of costs in the action, in the event of an unreasonable defence, 
 are obvious ; and therefore, wherever possible, it should never be omit- 
 ted ; though, of course, it cannot be doTie with reference to any defend- 
 ant against whom substantive relief is sought, and, if attempted imder 
 such circumstances, would render the proceedings so far void, db initio. 
 It would seem that, where husband and wife are mere formal defend 
 ants, service of notice on the former alone would be held suflicient. 
 
 As to the proper fees to be allowed for service of this proceeding, 
 Vide Gallagher vs. Egan^ 2 Sandf , T42 ; 3 C. E., 203 ; Benedict vs. 
 Warrlner, 14 How., 568. 
 
 § 54. Serviee of Summons. 
 
 Hie essentials of a valid summons, and of the accompanying notice, 
 in cases where that course is admissible, having thus been considered, 
 the next point to be entered upon is that as to their due service. 
 
 Even in courts of record of limited authority, the mere issuing of a 
 summons is sufficient, prima faeie, to confer jurisdiction ; and, if such 
 summons be served within the proper limits, the presumption will be 
 that it was duly issued. Barnes vs. Harris, 4 Conist., 374. 
 
286 OF THE COMIIENCEMENT OF AK AOIION. — § 54. 
 
 As a general rule, and for general purposes, an action is not^ com- 
 menced until actual service of the summons. The operation of section 99 
 is confined to cases in which the statute of limitations would otherwise 
 operate. Held accordingly in an action against the sheriff for an 
 escape, that the mere delivery of the summons to the coroner did not 
 har the defence of a voluntary return of the prisoner before actual ser- 
 vice. Wiggins ys,. Orser, 5 Duer, 118 ; see also, Zeeve.Awrill, 1 Sandf, 
 731. There is no way of bringing a party into court against his will, 
 but by the service of process ; and a judgment otherwise obtained will 
 be void. Akin vs. The Albany Northern Railroad Company, 14 
 How., 337. The only exception to this rule is where the defendant 
 voluntarily appears, which, under section 139, is equivalent to personal 
 service. See ante, section 51 ; see also Variants,. Stevens, 2 Duer, 635. 
 In certain cases, however, it has been held that a party under disability 
 may be bound by service on a person standing in the place of his or her 
 legal protector. Tlius, in a suit respecting the real estate of a husband, 
 to which the wife was merely made a party as inchoate doweress, it 
 was decided that the husband, on service on himself alone, was bound 
 to enter a joint appearance for both. Eckerson vs. Vollmer, 11 How., 
 42. So also service of the summons and complaint in partition on a 
 guardian ad Utem, appointed under the Eevised Statutes, was consider- 
 ed sufficient to bind the minors whom he represented. Althause-vs. 
 Radde, 3 Bosw., 410 ; Varian vs. Stevens, 2 Duer, 635. These two 
 last cases seem to conflict with section 134 of the Code, prescribing 
 personal service on an infant in all cases. In Althause vs. Radde, it 
 appears, however, that such service had actually been made, 3 Bosw., 
 434 ; and in Varian vs. Stevens, the infants had appeared and petition- 
 ed for the'guardian's appointment. See likewise, as to the guardian 
 ad litem for an infant and lunatic defendant, Rogers vs. McLean, 
 11 Abb., 440. 
 
 Another case in which personal service may be dispensed with, is in 
 the case of an action involving the title to real estate, commenced in a 
 justice's court, and discontinued under sections 65 to 58 of the Code. 
 Under these circumstances, deposit of the summons and complaint with 
 the justice entitles the plaintiff to an admission of service, pursuant to 
 the defendant's imdertaking, as prescribed in sectipn 56. It seems, 
 however, that the action will not be considered as technically com- 
 menced, until such admission or its equivalent is actually given, or ser- 
 vice actually made. See Davis vs. Jones, 4 How., 340 ; 3 C. E., 63 ; 
 Wiggins vs. Tallmadge, 7 How., 404. 
 
 A defendant against whom relief is prayed, has the right to appear 
 and answer, even though the summons has not been served on him. 
 Higgins vs. Rockwell, 2 Duer, 650. 
 
OK THE COMMENCEMENT OF AN ACTION. § 54. 287 " 
 
 In an action against two parties not joint-debtors, the recoyery of 
 judgment against one severs the action, and the other cannot be subse- 
 quently served. The East Biver Banh vs. Outting, 1 Bosw., 636. 
 
 It has been held that, where an order for publication had been ob- 
 tained, subsequent service of the summons and complaint within the 
 state was not sufficient to sustain a judgment, the publication having 
 been subsequently continued, and the defendant not having been in- 
 formed at the time, that the personal service would be relied upon. 
 Niles vs. Vanderzee, 14 How., 547. 
 
 The law imposes sundry restrictions as to the days on which service 
 can be made. 
 
 Service made on a Sunday is utterly void. 1 K. S., 675, § 69. So 
 likewise, service cannot be made on an elector on election day, in the 
 city or town in which he is entitled to vote. 1 R. S., 127, § 4. Or on 
 an elector entitled to vote at a town , meeting, on any day during which 
 such town meeting shall be held. 1 R. S., 342, § 10. See, as to service 
 on election day being void, Weehs vs. Noxon, 11 How., 189 ; 1 Abb., 
 280 ; and Bieree vs. Smith, 2 Abb., .411. Marks vs. Wilson, 11 Abb., 87, 
 refers to proceedings in Justices' Oom'ts, and the head-note is inconsis- 
 tent with the decision. 
 
 If any fraud be committed in connection with the service, it will be 
 absolutely void. Thus, where a siimmons and complaint in divorce 
 was delivered to the defendant when actually on board a foreign steamer, 
 in a sealed package, without any indication of its contents, in conse- 
 quence of which she remained wholly unaware of the action till too 
 late to take measures to defend, judgment obtained on such service was 
 • set aside, with costs. Bulkeley vs. Bulkeley, 6 Abb., 307. So also in 
 cases where misrepresentation had been made, with a view to bring the 
 defendant -within the jurisdiction of the court, or the bailiwick of the 
 sheriff making such service. Carpenter vs. Spooner, 2 Sandf., 717 ; 2 
 0. E., 140 ; afSrmed, 3 C. E., 23 ; Goupil vs. Simonson, 3 Abb., 474. 
 
 Service made on an Indian, contrary to the statute, 2 E. L., 153, § 2, 
 is void. Hastings vs. Farmer, 4 Oorast., 293. 
 
 A non-resident witness, who has voluntarily come within the jurisdic- 
 tion of the court for the express purpose of being examined, is privi- 
 leged from the service of process during his attendance. He has the 
 same privilege as a witness attending under subpcena, and that privilege 
 extends to the service of process as well as to exemption from arrest. 
 Seamer vs. Eoliiison, 3 Duer, 622 ; 12 L. O., 120 ; Merrill vs. George, 
 23 How., 331. But these exemptions would seem not to extend to ser- 
 vice of a copy complaint, when the summons had been previously served 
 in due coiirse. Van Pelt vs. Boyer, 7 How., 325. 
 
 It IS essential to tlie due service of process, that it should hot merely 
 
288 OF THE COMMEWCEMEJSrT OF AN ACTION. § 54. 
 
 be delivered to, but left with the party served. Beehnan vs. GuUer, 2 
 C. R., 51. See likewise, Mlos vs. Vanderzee, 14 How., 547. Eule 18, 
 prescribing the mode of proof, is also explicit on this point. 
 
 The service must also be made by a person not a party to the action — 
 section 133. But this objection must be taken in due season. If delayed 
 till after the entry of judgment, it will not be necessarily available. 
 Hunter vs. Lester, 18 How., 347 ; 10 Abb., 260 ; Myers vs. Overton, 4 
 E. D. Smith, 428 ; 2 Abb., 344. 
 
 Although, as a general rule, service upon another person is wholly 
 unavailing to bring a defendant within the jurisdiction of the court, it 
 has been held, in some cases, that this rule is not wholly inflexible. 
 Thus, where the sheriif had made his formal return of service of capias, 
 under the former practice, the judgment, in the absence of any affidavit 
 of merits, or proof of collusion, was refused to be set aside for irregu- 
 larity, Anon., 4 How., 112. This case is, however, expressly overruled, 
 and the strict doctrine, that the plaintiff must bring the defendant 
 within the jurisdiction, and that the mere silence of the latter, though 
 subsequently cognizant of the service, and in possession of the sum- 
 mons itself, is not sufficient as a waiver, the defect being one of juris- 
 diction, and not of regularity, is maintained at general term, in Wil- 
 liams vs. Van Valksnburg, 16 How., 144. 
 
 In Southwell vs. Marryatt, 1 Abb., 218, a more liberal -view is 
 taken, where an attempt at evasion on the part of the defendant was 
 made out. He was, however, allowed to come in and defend upon 
 terms. In Hilton vs. Thurston, 1 Abb., 318, a motion to set aside a 
 judgment, under similar circumstances, was denied, on the ground of 
 laches, the defendant having taken no steps until supplementary pro- 
 ceedings were instituted, no defence being shown. 
 
 It is obvious that the rule, as laid down in Williams vs. Van Valken- 
 lurg, is the safer, if not the only safe guide in practice, so far as the 
 plaintiff is concerned. 
 
 A defect of this, or any analogous nature, should, on its discovery, 
 e impeached at once upon motion ; it is not available to a defendant 
 on demurrer. Nones vs. The Hope Mutm,al Insurance Company 8 
 Barb., 541; 5 How., 96 ; 3 C. E., 161. ' 
 
 The fact that an attachment has been placed in the hands of the 
 sheriff, is no bar to service of the summons by another person. Mills 
 vs. Oorlett, 8 How., 500. Nor is it essential that all the parties ori- 
 ginally named in the summons should be actually served, or subse- 
 quently proceeded against. Travis vs. Tobias, 7 How., 90. 
 
 In an action against joint-debtors, brought in the Superior Court, it 
 was held that by personal service upon one of such joint-debtors, within 
 the city of New Tork, jurisdiction was fully acquired, and service 
 
OF THE COMMENCEMENT OF AN ACTION. — § 54. 289 
 
 might be made upon the others, in any other county. Porter vs. Lord, 
 4 Duer, 682 ; 13 How., 254 ; 4 Abb., 43. The same principle holds 
 good, of course, as to the other tribunals possessing the same jurisdic- 
 tion in that respect. 
 
 Where, however, there was sufficient to warrant a suspicion of con- 
 nivance between the plaintiff and the defendant served, the judgment 
 was opened, to give the others an opportunity to defend generally. 
 Cleveland vs. Porter, 10 Abb., 40Y. 
 
 In certain cases, service upon public officers or companies may, 
 iinder special statute, be made upon parties or agents specially desig- 
 nated for that pitrpose. 
 
 Thus, service against the board of supervisors, is to be made on their 
 chairman or clerk. 1 E. S., 384, § 3. 
 
 Life and fire insurance companies are, under the general incorpora- 
 tion laws of 1853, to appoint an attorney in this state, on whom process 
 of law can be served, and file the appointment with the comptroller. 
 Chap. 463, of 1852, § 15, p. 893 ; chap. 466, of 1853, § 23, p. 915. 
 
 By chapter 279, of 1855, section 1, every insurance or other corpora- 
 tion, created by the laws of any other state, and doing business in this, 
 is to designate a similar agent in each county where it transacts busi- 
 ness, and file such designation in the office of the secretai-y of state. In 
 default of this designation, service may, under section 3, be made on 
 any person found within the state, acting as the agent of such corpora- 
 tion, or doing business for them. But, to bring a company within the 
 operation of this statute, it must be doing business within this state. 
 Vide Doty vs. The Michigom Central Railroad Company, 8 Abb., 427. 
 
 These prbvisions are merely to facilitate service ; they do not operate 
 to give or enlarge jurisdiction against such bodies, where it does not 
 otherwise exist. The Cwmberland Coal Convpany vs. Shsrmam, 8 
 Abb., 243. 
 
 By chapter 282, of 1854, section 14, analogous provisions are made 
 for the appointment, by railroad companies, of a special agent, in each 
 county through which their line may pass, to receive service of process 
 issued by a justice of the peace. The provisions at 2 E. S., 285, sec- 
 tions 55-57, for the service of notices and other papers at the sheriff's 
 office, do not seem to extend to original process. 
 
 Since the amendment of 1859, service on the president, secretary, or 
 treasurer of a foreign corporation, made personally within this state, is 
 good service, for all purposes connected with the commencement and 
 prosecution of an action ; if served on any other officer, it is only effec- 
 tive when that corporation has property within the state, or the cause 
 of action arose therein ; the latter prerequisite was introduced on the 
 amendment of 1851. See, as to service of this latter nature, President 
 YoL. I.— 19 
 
290 OF THE OOMIIEKOEMENT OF ATT ACTION. § 54. 
 
 of Bamk of Commerce vs. The Washington and Eutland Bail/road 
 Company, 10 How., 1. 
 
 Under the Code of 1848, 1849, it was held that service of this nature 
 was good, so far as notice of commencement of a suit was concerned, 
 but that the only way of making such a service effectual for the entry 
 of judgment, was by the issuing of an attachment, either concurrent or 
 subsequent, the proceeding being in its nature m rem and not in per- 
 sonam. Hulhert vs. The Hope Mutual Insurance Company, 4 How., 
 275 ; affirmed, 4 How., 415 ; Nones vs. The Rope Mutual Insurance 
 Company, 8 Barb., 541 ; 5 How., 96 ; 3 C. E., 161 ; Brewster vs. The 
 Michigan Central Railroad Company, 5 How., 183 ; 3 C. R., 215. 
 
 The amendment of 1851 embodies this view in one of its branches. 
 See, on the same point as above, under this amendment, Bates vs. The 
 New Orleans, Jackson, am,d Great Northern Rail/road Company, 13 
 How., 518; 4 Abb., 72. 
 
 By that of 1859, the restrictions against taking a general judgment 
 are, as will be seen, importantly enlarged. As to when the cause of 
 action may be considered as arising within this state, see cases hereto- 
 fore cited under section 31, under head of corporations. 
 
 In Brewster vs. Tlie Michigan Central Railroad Company, 6 How., 
 183 ; 3 C. R., 215, above cited, decided in 1850, it was held that service 
 on a mere local agent of a foreign corporation for special purposes, was 
 not service on the managing agent within the terms of the section, but 
 that such managing agent mast be one whose agency extends to all the 
 transactions of the company. • The act of 1855, above cited, would 
 seem to remove this particular difficulty, when such company does 
 business in this state, but not otherwise. Yide Doty vs. The Michigan 
 Central Railroad Company, 8 Abb., 427. 
 
 As regards domestic corporations, however, the restriction subsists, 
 and a " managing agent," on whom service can be made, must be one 
 whose powers are not limited, but extend to a general supervision and 
 control of the general interests of the corporation. Service on the fol- 
 lowing has therefore been held to be insufficient : On the baggage 
 master or freight agent at a railroad station. Flynn vs. The Hudson 
 River Railroad Company, 6 How., 308 ; 10 L. 0., 158 ; Wheeler vs. 
 The New York and Harlem Railroad Company, 24 Barb., 414 : on 
 an agent for a foreign railroad corporation, merely for the purpose of 
 selHng tickets for passage over their road. Doty vs. The Michigan Cen- 
 tral Rail/road Company, 8 Abb., 427. 
 
 An agent of an insurance company, authorized to effect insurances, 
 -though residing at a different place from where the principal office of 
 the company is located, h-as been held a managing agent within the 
 meaning of the section, Bain vs. Tlie Globe Insurance Compamy, 9 
 
OF THE COMMENCEMENT OF AN ACTION. — § 54. 291 
 
 How., 448 ; and in a motion to set aside a judgment entered on service 
 of this nature, the corporation will be held bound to establish the irreg- 
 ularity clearly, the information being within their power. Donadi vs. 
 The New York State Mutual Insurance Company, 2 E. D. Smith, 519. 
 See, as to the legal location of the principal office of a company, West- 
 ern Transportation Company vs. Scheu, 19 N. Y., 408. 
 
 When the subject matter of the suit is within the jurisdiction of the 
 court, an appearance on the part of a foreign corporation will waive, 
 however, all other irregularities, and give that jurisdiction. Watson vs. 
 Thh Cabot Bank, 5 Sandf., 423. 
 
 Service on the secretar_y of a religious incorporation was held to be 
 good, but upon individual trustees to be bad service under the former 
 practice, in Lucas vs. The Trustees of the Baptist Church of Geneva, 
 4 How., 353, 
 
 Service of this nature must be made upon the officers de facto of such 
 a corporation ; if made on others claiming to be officers dejure, but oiit 
 of possession, it will be ineffectual. Berrian vs. The Methodist Society 
 in New. Yorh, 6 Duer, 682 ; 4 Abb., 424. 
 
 Although, by subdivision 3, a special mode of service is prescribed in 
 the cases of lunatics, &c., yet the commencement of an action against 
 a party judicially declared to be such, will not be regular, without pre- 
 vious application to the court, on petition for leave for that purpose, as 
 under the former practice ; and, if commenced, the proceedings in such 
 an action will be restrained, until such leave has been obtained. Sover- 
 hill vs. Dickson, 5 How., 109. See- also, ^ETaZZ vs. Taylor, 8 How., 428, 
 as to action against a committee. 
 
 Service on a lunatic in person is absolutely indispensable, in all cases, 
 whether a committee has been ajDpointed or not. Heller vs. Heller, 6 
 How., 194; 1 0. E. (N. S.), 309. 
 
 A mere admission of personal service, made out of the state, on a 
 non-resident, has been held a nullity, and incompetent to confer juris- 
 diction, and that publication was the only proper course under such 
 circumstances. Litchfield vs. Burwell, 5 How., 341 ; 9 L. G., 182 ; 1 
 C. E. (If. S.), 42. This decision was made in 1850, before the amend- 
 ment of section 139, prescribing the effect of a voluntary appearance, 
 which would probably be now held sufficient. 
 
 Where the proof of service on parties deceased since the coinmence- 
 ment of a suit in partition was defective, but complete as to the succes- 
 sors to their interests, subsequently brought in, the original objection 
 was held to be obviated. Waring vs. Waring, 7 Abb., 472. 
 
292 OF THE COMMENCEMENT OF AN ACTION. — § 55, 
 
 § 55. Substihoted Service against Resident Defendants. 
 
 The statute of 1853, authorizing service of this nature, vide ante, sec- 
 tion 49, has received, as might be expected, a strict construction ; and, 
 to enable the acquisition of jurisdiction by service under it, its pro- 
 visions must be strictly and literally complied with. 
 
 Thus, where the party was stated to be absent from the state, in Ohio, 
 and not expected back, except on a visit, service was set aside, on the 
 ground that neither inability to find the defendant, nor avoidance or 
 evasion on his part, had been shoAvn. Collins vs. Carnpfield, 9 How., 
 519. So also where the defendant was known to be absent in Califor- 
 nia on business. Jones vs. Derly, 1 Abb., 458. And, where the de- 
 fendant was in Europe, and the time of 4iis return was uncertain. 
 Foot vs. Harris, 2 Abb., 454. 
 
 In Collins vs. Campfield, the action related to real estate, and the 
 plaintiif had a clear remedy by publication, under the Code, section 
 135, subdivision 4. See report, pp. 521, 522. Whether the statute 
 may. not have received too strict a construction, and whether the words, 
 " so that the same {i. e.^ service)' cannot be made personally," have re- 
 ceived their due weight in the other two decisions, may possibly be 
 doubted. The plaintiff, under these very circumstances, i. e., of a pro- 
 longed 'butlo7m fide absence from the state, has no remedy by publica- 
 tion, and it might be contended that the legislature, in providing for a 
 service on a resident who cannot be found, had in contemplation to 
 provide for this very state of things, i. e., of a defendant who cannot be 
 foimd for the purposes of service, " so that service cannot be made per- 
 sonally on him," and which yet does not fall within the other alterna- 
 tive, of avoidance or evasion. In neither of the two cases does the 
 actual residence of the defendant appear to have been given ; in the 
 one he is stated to have been in California, in the other in Europe, nor 
 would either address have enabled service upon him. 
 
 In Foot vs. Harris, it is considered that the circumstances of the case 
 were similar to those in Close vs. Van Husen, 6 How., 15Y, decided in 
 January, 1851, and that the course there taken was open to the plain- 
 tiff. It was there held, under somewhat similar circumstances, that in 
 equitable cases the plaintiff still possessed a remedy, under the act of 
 April 12, Laws of 1842, p. 363, where the last known residence of the 
 defendant was within the state ; and that such act was not inconsistent 
 with the Code, and therefore still in force. The plaintiff, it was held, 
 " should present his application by petition, bringing his case within 
 the 135th section of the Code, so far as form is concerned, and the first 
 section of the act of 1842. The publication of the order should be in 
 
OF THE COMMENCEMENT OF AN ACTION.— ^§ 56. 293 
 
 two newspapers, to be designated, as most likely to give notice to the 
 persons to be served, and for the period of three months." (Compare 
 Code, section 135, with Law of 12th April, 1842, section 2, subdi- 
 vision 2.) 
 
 On examination, the analogy seems, however, to be incomplete, and 
 that the plaintiff would have no greater remedy under that statute. In 
 Ciose vs. Van Susen, it is expressly stated that the " plaintiff, after 
 diKgent inquiry, could not ascertain where the defendant's place of 
 residence was at present." There seems to be no substantial dis- 
 tinction to be drawn between this phraseology and the expi*essions 
 of the statute of 1853 ; and the latter would seem adequate to afford 
 substantially the same measure of relief as was contemplated in the 
 fiarmer. 
 
 As to the necessity of a strict and literal observance of the forms and 
 phraseology of the statute, in proceedings of this nature, see Foot vs. 
 Harris, sujpra ; Collins vs. Syan, infra. 
 
 By this measure, provision is clearly made for such a case as Yan 
 Rensselaer vs. Dumhar, 4 How., 151, of designed and persistent, avoid- 
 ance of service, which the provisions of the Code as to publication were 
 held incompetent to reach. 
 
 Before making the order, the judge should be fully satisfied that the 
 case is brought within the provisions of the statute. He is authorized 
 and required to decide whether or not sufficient facts are shown to con- 
 fer jurisdiction, and, if he decides affirmatively, the question becomes 
 res judicata. Collins vs. Ryan., 32 Barb., 647. 
 
 § 56. Service hy Publication. — Generally Considered. 
 
 This remedy is of wider scope and earlier date than that considered 
 in the previous section, and extends to all cases where the defendant is 
 non-resident, or cannot, after due diligence, be found within the state. 
 It is coeval with the Code, and embodies substantially the^former prac- 
 tice in equity. , It has, upon the whole, been extended from time to 
 time by the different amendmenjts which have taken place, as before 
 noticed in citing the section (135). 
 
 Being a statutory proceeding, in derogation of the fundamental right 
 of every party, sought to be affected by an. adjudication "m invitum^'' 
 to have personal notice of the proceedings, and in particular of the 
 original process conducing to that result, the statute must be strictly 
 followed, as a prerequisite to the acquisition of jurisdiction. See Haight 
 V6. Rusted, 4 Abb., 348 ; affirmed, 6 Abb., 170 ; Morrell vs. Kimlall, 
 4 Abb., 352 ; HaUett vs. Righters, 13 How., 43 ; Towsley vs. McDon- 
 ald, 32 Barb., 604 ; FisTce vs. Anderson, 33 Barb., 71 ; 12 Abb., 8 ; 
 
294 OF THE OOMMEKCEMENT OF AN ACTION. § 56. 
 
 Cooh vs. Farren, 34 Barb., 95 ; 21 How., 286 ; 12 Abb., 359 ; affirming 
 . same case, 11 Abb., 40 ; Kendall vs. Washburn, 14 How., 380. The 
 same was the case under the former practice. See Brisbane vs. Pea- 
 body, 3 How., 109. As to the general powers of the legislature to pro- 
 vide for substituted service of this or an analogous description, and the 
 constitutionality of enactments for that purpose, when passed, vide In 
 re Empire City Banic, 18 E". Y., 199 ; 8 Abb., 192, note. And it has 
 been held that this remedy is even available against defendants whose 
 names are unknown, a proper designation being given. Allen vs. Allen, 
 11 HoW., 2Tr. 
 
 It may be expedient to depart in a trifling degree from the arrange- 
 ment of the section itself, and to consider — 
 
 1. The prerequisites to obtaining the remedy. 
 
 2. The mode of application. 
 
 3. The proceedings under the order when obtained ; and, 
 
 4. The rights reserved to the defendants against whom service is or- 
 dered. 
 
 (ffi.) Peeeequisctes. 
 
 The first prerequisite is that the person to be served " cannot after due 
 diligence be found within the state." As this fact must appear by affi- 
 davit, it mil be better considered in treating of the form of application. 
 The same course will be expedient as to the other statements prescribed 
 by the introductory sentence. 
 
 This inability appearing, the case must then be brought within one 
 of the five categories prescribed by the section, which will be considered 
 in their order. 
 
 1. The remedy is applicable in the case of foreign corporations, but 
 it must appear either that such corporation has property within the state, 
 or that the cause of action arose therein. Some little difficulty has oc- 
 curred in the construction of this provision, in connection with section 
 427, as respects an action brought by a non-resident plaintiflt". See here- 
 tofore section 32, under the head of Corporations, and decisions there 
 cited and commented i^pon. Where the plaintiff is a resident, no such 
 difficulty arises. 
 
 In Cantwell vs. The Dubuque Western Railroad Company, 17 How., 
 16, an order for publication was set aside, on the ground that the plain- 
 tiff, being a non-resident, had not brought his case within the provisions 
 of the section in question. See also Campbell vs. The Proprietors of 
 the Chojnplain amd St. Lwwrence Pailroad, 18 How., 412. See how- 
 ever, observations, supra section 32. 
 
 2. It is applicable in the case of a fraudulent departure or conceal- 
 ment on the part of the defendant. But such fraudulent intent must be 
 
OF THE COMMENOEMENT OF AN ACTION. — § 56. 295 
 
 shown distinctly, and not by mere inference. Warren vs. Tiffany, 17 
 How., 106 ; 9 Abb., 66 ; Towsley vs. McDonald, 32 Barb., 604. 
 
 The wording of this subdivision of the section being identical with a 
 portion of section 229, prescribing precisely the saine condition, as one 
 of those under which an attachment may be issued, the consideration 
 of this branch of the subject, and the cases which bear upon it, are de- 
 ferred until that portion of the work {infra, §110), to which the reader 
 is therefore referred. Few if any of the decisions which bear upon the 
 point, with the one exception above cited, have been pronounced with 
 immediate reference to the mere question of service ; attachment being 
 the more important remedy, and the two being ordinarily moved for in 
 connection with each other, especially since the making of rule 25, which 
 in effect makes the concurrence of both indispensable in the class of 
 common law actions. 
 
 3. It is applicable as against non-resident defendants, having property 
 within the state, provided the court has jurisdiction of the subject of 
 the action., 
 
 This provision has again a complete analogy with those on the sub- 
 ject of attachments, see sections 227, 229, and the decisions are mu- 
 tually applicable. Vide infra, section 109. 
 
 The mere temporary bringing of the defendant's team within the 
 limits of the state, was held not to be jper se a sufficient having of prop- 
 erty therein, whereon to ground service by publication. A judgment so 
 obtained was set aside. Haiglit vs. H'usted, 4 Abb., 348 ; affirmed, 5 
 Abb., 170. 
 
 4 and 6. It is applicable to the class of proceedings to foreclose or 
 exclude a lien on real and personal estate, and to suits for divorce. 
 
 This class of cases, being equitable in their nature, do not fall within 
 the scope of rule 25, and the issuing of an attachment is not a necessary 
 concomitant. 
 
 On the applicability of this remedy to eases of divorce there are no 
 reported decisions. As regards real estate it is held in Allen vs. Allen, 
 11 How., 277, that, in partition, where the names of persons supposed to 
 have a possible interest in the premises were unknown, publication 
 might be made, a proper designation being given. 
 
 Q).) Mode of Applioatiok. 
 
 The proceeding for this purpose is of course ex parte. It, is of neces- 
 sity founded on affidavit, which must show the requisite jurisdictional 
 facts. 
 
 It is cognizable by the court in which the action is brought, or by a 
 judge thereof, or by the county judge of the county where the trial is 
 
296 OT THE COMMENCEMEKT OP AN AOTIOM". § 56. 
 
 to be had. Prior to 1851, any county judge was competent to make 
 the order, but, in that year, the jurisdiction wag limited as above. 
 
 The form of the order is prescribed. The complaint must be filed 
 before publication, and the summons, as published, must state the time 
 and place of such filing. 
 
 It is proposed to consider these subjects in their order, omitting the 
 second, which does not require any further illustration. 
 
 (c.) AlTFIDAVIT. 
 
 The utmost care must be taken in preparing this document, as any 
 failure in proof may involve a failure to acquire jurisdiction. Vide 
 Mertson vs. Thomas, 5 How., 45 ; 3 C. E., 74. 
 
 To comply with the statute, it must appear by such affidavit or by 
 affidavits, if the facts requisite are not all within the cognizance of one 
 person. 
 
 1. That the defendant in question cannot, after due diligence, be 
 found within the state. 
 
 2. That a cause of action exists against such defendant, or that he is 
 a proper party to an action relating to real property within the state. 
 
 3. The ease must be clearly brought within the scope of one of the 
 five subdivisions. 
 
 The different facts necessary for the above purpose must be stated as 
 facts, and with sufficient detail to establish them as such, especially 
 where an inference is sought to be grounded on them. A mere alle- 
 gation in the words of the statute, standing alone, will not avail ; 
 though, on the other hand, the exact wording should always be care- 
 fully followed, either in part of the statement of facts, 'as such, or in 
 immediate connection with it. The statement so made must be made 
 positively and directly, as far as practicable, and not on mere informa- 
 tion and belief; or, when it is necessary to swear to facts not within 
 the personal knowledge of the deponent, the sources of the information 
 and the grounds of the belief must be cleai-ly given, so as to lead the 
 mind of the judge or officer to the same conclusion. See hereafter, 
 under the head of Provisional Eemedies. See also Evertson vs. Thomas, 
 and Warren vs. Tiffany, s^tpra. 
 
 "When the party sought to be served is clearly a non-resident, it 
 seems that it is not necessary to prove an attempt to serve the sum- 
 mons upon him. Vernam vs. Holhrooh, 5 How., 3 ; Ramdon vs. Govlmi, 
 3 How., 416; Titus vs. Relyea, 17 How., 265 (269); but, in all other 
 cases, actual diligence for that purpose should not merely be sworn to, 
 but shown by a statement of the means employed. 
 
 It should be shown also that a summons and complaint have been 
 
OF THE COMMENCEMENT OE AN ACTION. § 56. 297 
 
 made out. JRawdon vs. Oorbin, 3 How., 416. See also note, 1 C. E., 
 13, wliicli is, however, too vague to be of much practical use. 
 
 Where the complaint has been already filed, as directed at the end 
 of the section, a statement of that fact' should be made. See Kendall 
 vs. Washiurn, 14 How., 380. 
 
 The place of residence of the defendant proposed to be served, or the 
 fact that such residence is either unknown to the plaintiff, or cannot,' 
 with reasonable diligence, be ascertained by him, must also appear, 
 with sufficient detail in the latter event, to show such diligence. 
 Hyatt vs. Wagenright, 18 How., 248. Especially is this the case 
 when the application is made under the last clause, as added on the 
 amendment of 1860, and a mere publication is ordered, without direct- 
 ing a service, or attempt at service, by mail. See Cooh vs. Farren, 
 34 Barb., 95; 21 How., 286; 12 Abb., 359 ; affirming same case, 11 
 Abb., 40. The statement of residence may be made, however, on in- 
 formation and belief Vide Van Wych vs. Hardy, 20 How., 222 ; 11 
 Abb., 4Y3. 
 
 In the case of a non-resident defendant, the existence of property 
 belonging to him within the limits of the state, is a jurisdictional fact, 
 and must be shown affirmatively Fiske vs. Anderson, 33 Barb., 71 ; 
 12 Abb., 8. 
 
 The requisites of an affidavit under subdivision 2 are prescribed with 
 considerable detail in Towsley vs. McDonald, 32 Barb., 604. It must 
 not merely show the existence of a cause of action, and that the defend- 
 ant cannot be found, but also an intent to defraud or avoid service 
 must be substantiated. To establish the intent to defraud creditors, 
 the affidavit must show that the defendant has property of some kind ; 
 that he has made, or is aboiit to make, a fraudulent or illegal disposi- 
 tion of it ; or that he unjustly refuses to apply it to the payment of his 
 debts ; or has secreted or removed, or is about to secrete or remove ; or 
 has fraudulently incumbered it. 
 
 And, to authorize an order on the ground of departure to avoid 
 service, the affidavit must furnish proof of such intent. Where, there- 
 fore, it did not appear that, at the time of departure, any summons 
 had been issued, or was about to be served, or that the defendant was 
 threatened with, or feared, or expected a suit, the affidavit was held 
 defective, and the order void. 
 
 The disposal of the affidavits used upon an application of this nature 
 was left unprovided for until the last revision of the rules, when, by 
 rule 4, it was directed that they and also the order, should be forth- 
 with filed with the clerk of the proper county. If not so filed within 
 five days, the defendant may move to vacate the proceedings for irreg- 
 ularity, with costs. Prior to the making of this rule, it had been held 
 
298 OF THE COMMENCEMENT OF AN ACTION. § 56. 
 
 that the nsxTal practice was to file or leave the former with the judge 
 who granted the order. Vernam vs. Holbrooh, 5 IIow., 3. 
 
 {d.) FoKM OF Oedbe. 
 
 The section itself is clear as to the terms of the order, which must 
 distinctly direct the publication of the summons, give the names of 
 the newspapers in which the publication is to be made, and define the 
 length of time, exceeding the prescribed minimum, for which it is to 
 continue. It must also direct a copy of the summons and complaint to 
 be forthwith deposited in the post-office, directed to the defendant, at 
 his place of residence, unless it appear that such residence is unknown, 
 and cannot be ascertained. The applicant should, of course, be pre- 
 pared with the names of the newspapers in which he proposes that 
 publication should be made. 
 
 Any variation from this prescribed standard will be fatal to the valid- 
 ity of the whole proceeding. Thus, where the order submitted to the 
 judge, merely directed that a copy of the summons and complaint be 
 deposited in the post-office, addressed to the defendant, the papers were 
 returned without granting it. It should have provided that such copy 
 be forthwith deposited, directed to the defendant at his residence, 
 naming it if known. Hyatt vs. Wagenright, 18 How., 248. A similar 
 defect was held fatal to the whole proceeding, and judgment set aside, 
 in Warren vs. Tiffany, 17 How., 106 ; 9 Abb., 66. See also, £aoJk vs. 
 Orussell, 2 Abb., 386. In Van Wyck vs. Hardy, however, 20 How., 
 222 ; 11 Abb., 473, the rule was less strictly applied. 
 
 It has also been held expedient that the order should either recite 
 the summons, or refer to it as being annexed, for the purposes of con- 
 necting it with the record ; which seems advisable. Rawdmi vs. Corbin, 
 3 How., 416. 
 
 In a case falling under subdivision 2, which presupposes that the 
 defendant is a resident of the state, but has departed of concealed him- 
 self, the order, if his residence appears upon the papers, must direct 
 service upon him by mail. Towsley vs. MoBonald, 32 Barb., 604. 
 
 (e.) Peooeedings undee Oedee. 
 
 The fu-st proceeding is to file the complaint, if not already filed, as, 
 by the last clause of the section, this is a positive prerequisite to 
 publication. 
 
 The affidavits and the order itself, must also be filed forthwith, and 
 within five days at the furthest, as directed by rule 4, imder peril of 
 the penalty there prescribed. 
 
 Before publishing the summons, it must be carefully examined, to 
 see whether the time and place of filing the complaint is properly iu- 
 
OF THE COMMENCE JfENT OF AN ACTION. § 56. 299 
 
 serted. The courts are strict upon this subject, but not to excess. 
 Where, therefore, the summons against a non-resident, distinctly stated 
 in the body, that the summons would be filed in the ofiice of the clerk 
 of the County of Kings, at the City Hall, city of Brooklyn, Kings 
 County ; and then, in a note at the foot, stated the date of such filing, 
 the Com-t of Appeals overruled the objections : 1st, that the name of 
 the state was omitted ; and, 2d, that the statement of time was in a 
 foot-note, and not in the body of the summons. O'ooTc vs. Kelsey, 19 IST. T., 
 412. See report below, 17 How., 134 ; 8 Abb., ITO, as Coolc vs. Esleeck. 
 By this decision, Titus vs. Belyea, 16 How., 3Y1 ; 8 Abb., 177, holding 
 the direct contrary, is overruled, and the dissenting opinion, in that 
 case, of Eosecrans, J., 17 How., 265, confirmed. 
 
 "Where, too, the summons, as published, misstated the. day of filing 
 the complaint, the latter having been actually on file one day earlier 
 than that inserted, the technical irregularity was disregarded. Jacquer- 
 son vs. Yan Erben, 2 Abb., 315. The following irregularities, viz., an 
 omission of the name of some of the defendants from the copy summons 
 filed ; and an omission to insert the name of the city, in designating 
 the office of the plaintiff's attorney, were also disregarded in VanWyok 
 vs. Hardy, 20 How., 222 ; 11 Abb., 473. 
 
 But, where the filing had been wholly omitted, the defect was held 
 jurisdictional, and judgment set aside. Kendall vs. Washbu7Vi, 14 
 How., 380. See also Hallett vs. Rightsrs, 13 How., 43. 
 
 As to the proper mode of folding and directing a notice, in the anal- 
 ogous proceeding of foreclosure by advertisement, vide IiaMo7ie vs. 
 Clarice, 9 Abb., 66, note. If the notice be enclosed in an envelope, 
 that envelope should be sealed. If unsealed, the direction should be on 
 the notice itself. 
 
 The complaint need not be published with the summons. Aiiaii,., 
 3 How., 293; 1 C. E., 102. This is clear from the terms of the 
 section itself. A deficiency in the whole period of publication, will be 
 an irregularity, avoiding the judgment. Hallett vs. Righters, 13 How., 
 43. As to the time during which publication must be continued, vide 
 supra, section 58, under head oi Proof of Service. 
 
 A delay in mailing the complaint will also render the judgment ir- 
 regular. So held, and the objection sustained in the mouth of a pur- 
 chaser, Bach vs. Grussell, 2 Abb., 386. An omission to mail will be 
 fatal. Hallett vs. Righters, 13 How., 43. But, where duly mailed, it 
 will be presumed that the defendant received it. Mackay vs. Laidlaw, 
 13 How., 129. 
 
 And in Tan Wyck vs. Hardaj, 20 How., 222 ; 11 Abb., 473, a rea- 
 sonable delay in mailing the papers, caused by waiting to have them 
 printed, was held not to render the judgment irregular. There can be 
 
300 OF THE COMMENCEMENT OP AN ACTION. § 56. 
 
 no doubt, however, of its being the safest, if not the only safe course, to 
 mail them at the earliest possible moment. 
 
 After an order for publication, service of the summons oniy, made 
 out of the state, will be wholly unavailable. Morrell vs. Kirniball, 4 
 Abb., 352. 
 
 Some discussion has arisen as to the effect of personal service of the 
 summons and complaint, out of the state, after an order for publication 
 has been granted. The point seems clear, however, upon the words of 
 the section itself, which prescribes that personal service of both, out of 
 the state, is equivalent to publication and deposit in the post-office. 
 Service of the summons only is a nullity, and it would seem that proof 
 of service of an amended complaint in this manner would be wholly un- 
 available. Vide Morrell vs. Kimhall, 4 Abb., 352. 
 
 In Eoche vs. Ward, 7 How., 416, the force of this provision is ac- 
 knowledged, though tlae exact circumstances under which the defend-' 
 ant's application was denied do not appear. 
 
 In LitchfieU vs. Burwell, 5 How., 341 ; 1 0. E. (ISr. S.), 42 ; 9 L. 
 0., 182, it was considered that the effect of personal service, outof the 
 state, was merely to dispense with service by mail as prescribed, and 
 not to do away with the necessity of publication. In this diotwm the 
 positive wording of the section seems to be lost sight of. 
 
 That it dispenses with and is equivalent to both, according to the 
 express terms of the statute, is clearly laid down in Tomlinson vs. Yam, 
 Veeken, 6 How., 199 ; ICE. (N. S.), 31Y ; DyJcers vs. Woodward, 7 
 How., 313 ; Abrahams vs. Mitchell, 8 Abb., 123. But, though it clearly 
 has this, no greater effect can be attributed to it. Fiske vs. Anderson, 
 33 Barb., 71 ; 12 Abb., 8. 
 
 The effect of personal service, within the state, after an order made, is 
 left unprovided for. In such a case, if that service be relied on, the 
 defendant should be distinctly so informed, and the publication should 
 be abandoned. Niles vs. Yamderzee, 14 How., 547. 
 
 The provisions of section 135 seem to place it beyond a doubt that 
 where an order for publication has once been made, the service will not 
 be deemed complete until the expiration of the time prescribed by the 
 order, notwithstanding that the necessity for publication itself may have 
 been done away with, by personal service out of the state. See Tmnlin- 
 son vs. Yan Vechten, 6 How., 199; 1 C. E. (N. S.), 317 ; Abrahams vs. 
 Mitchell, 8 Abb., 123. The contrary conclusion, i. e., that the defend- 
 ant's time to answer will run from the date of such actual service, if 
 made without reference to the terms of the order, is maintained in Dy- 
 Tcers vs. Woodward, 7 How., 313 ; but this view seems to be overruled. 
 
 It is also held, in the former cases, that the defendant's time to answer 
 runs from the expiration of the period so limited, and that the plaintiff 
 
OF THE COMMENCEMENT OP AN ACTION. — § 56. 301 
 
 must wait that additional time, before he can enter up his judgment. 
 See also Maclcwy vs. Laidlaw, 13 How., 129 ; Back vs. Crussell., 2 
 Abb., 386. 
 
 The death of a non-resident defendant, pending the order for publica- 
 tion, has been held to abate the action, so that it cannot be revived 
 against his representative. McEwens Executor -vs. Public Adminis- 
 trator, 3 C. E., 139. On appeal to the general term, the doctrine here 
 laid down was approved, but, an attachment having been issued, and 
 property taken, that fact was held sufficient to give the court jurisdic- 
 tion, and to enable it to grant an order of substitution, by which the 
 plaintiff's provisional lien might be enforced. Moore vs. Thayer, 10 
 Barb., 258 ; 6 How., 4Y ; 3 0. E., 176. The plaintiff's hen, so acquired, 
 was in like manner maintained, as against alleged irregularities in the 
 mode of service. Biirclthart vs Samolford, 7 How., 329. 
 
 The mere fact of an attachment pending will not avail, however, to 
 sustain the rendering of judgment ; for that purpose, service must be 
 complete and regular. Kendall vs. Washitcrn, 14 How., 380. In that 
 case, however, the plaintiff 's right to pursue his attachment was retained, 
 on setting aside the judgment as irregular. 
 
 The mode of entry of judgment on service of this nature, and the 
 proceedings necessary for that purpose, will be hereafter considered 
 under their proper heads. It may be as well, however, to draw to the 
 student's attention the positive prerequisites now imposed by rule 25, 
 as inserted upon the last revision. In actions for the recovery of money 
 only, it is, since the passing of that rule, essential to show that 9n attach- 
 ment should have been previously issued, and a levy made under it. 
 An undertaking for the making of restitution, if ordered, must also be 
 previously produced and filed. 
 
 Warren vs. Tiffany, 17 How., 106 ; 9 Abb., 66, would at first sight 
 seem to be a decision in point as to the effect of the riile in question, 
 and the irregularity of entering up judgment, where the plaintiff has 
 omitted to attach the defendant's property. On examination of the 
 report, it appears, however, that this decision was made in September, 
 1858 and therefore, before the rule came into operation, though after 
 it was actually made, ^ee Prearnble to Mules. This appears to deprive 
 the case of its direct authority, besides which, there seems strong reason 
 to doubt whether it is competent for the judiciary to deprive the plain- 
 tiff of his right to enter and to enforce a general judgment on such ser- 
 vice which the Code itself seems to confer, or to impose restrictions upon 
 that right, which the legislature have not seen fit to prescribe. Still 
 gi-eater is the doubt whether after judgment had once been actually 
 entered, mere non-compliance with such a rule woiild render it voidably 
 irregular. 
 
302 OF THE COMMENCEMENT OF AN ACTION. — § 56. 
 
 The view sustained in the rule seems to proceed upon tlie theory that 
 an action against a non-resident defendant is strictly in its nature a pro- 
 ceeding in rem^ and not in personam. Vide HuTbert vs. Hope Mutual 
 Insurance Company, 4 How., 275, 415, and other cases before cited. It 
 seems, however, calculated to work special hardship, in cases falling un- 
 der subdivision 2, besides which, if the conclusion drawn at the close of 
 Warren vs. Tiffany, i. e., that the judgment could in no event affect 
 any property of the defendant, except such as had been taken by virtue 
 of an attachment regularly issued in the action, be correct, it would seem 
 to leave the plaintiff, holding such a judgment, wholly remediless, as 
 against subsequently acquired or subsequently discovered property of 
 the defendant, an attachment being merely issuable in contemplation 
 of a future judgment. (§ 227.) 
 
 This can scarcely be the correct view, besides which, the very rule 
 itself does not call for, or apparently warrant, such extreme strictness 
 of construction. 
 
 In Fishe vs. Anderson, 33 Barb., 71; 12 Abb., 8, the point is suggested, 
 but not passed upon. Force vs. Gower, 23 How., 294, is authority that 
 the judgment, as regards its ulterior incidents, is strictly a judgment in 
 rem, and not in personam. 
 
 {/.) Eights Keseeved to, oe Exeecisable by Defendant. 
 
 It remains to notice the measures which the defendant may take to 
 set aside service of this nature, or to obtain leave to come in and de- 
 fend, after judgment obtained thereon. 
 
 It will be seen that, at any time before judgment, the defendant may 
 come in and defend, as of course ; and that he possesses the full power 
 of doing so, and of enforcing restitution, if he prevail (except as regards 
 the rights of lonafide purchasers), within a very extended period after 
 its rendition, except in the single case of divorce, on proof that he has 
 not had a full year's previous notice of such judgment ; a provision 
 which renders it highly advisable that, wherever practicable, a formal 
 notice of judgment being entered, should be forthAvith served upon him 
 on the part of the plaintiff. Under the Code of 1849, a defendant, who 
 had been personally served out of the state, or who had received the 
 summons by post, was precluded from coming in to defend after judg- 
 ment. See HuTbert vs. The Hope Mutual Insurance Company, before 
 cited; but this restriction no longer exists, under the recent amend- 
 ments. 
 
 Tlie courts will not interfere with the discretion of a justice, granting 
 an order of this nature, or set such order aside, merely because the evi^ 
 dence on which it was granted was slight. RocJw vs. Ward, 7 How. 416. 
 
 Mere technical irregularities in the proceedings may, too, be amend- 
 
OF THE COMMENCEMENT OF AN ACTION. — § 56. 303 
 
 cd or disregarded, and the lapse of one year after judgment will bar an 
 application on that ground. JaGquerson \s. Van JSrien, 2 Ahh., S15; 
 Rallett vs Righters, 13 How., 43. 
 
 But where the defect is one of substance, or the irregular proceeding 
 tends to confer jurisdiction, this is not so. The whole proceeding will 
 then be defective, and may be set aside, even though the application 
 be delayed for more than one year after judgment. The limitation 
 imposed by 2 E. S., 358, section 2, does not apply, where the cpiestion 
 is one of right or substance. Hallett^B. Righters, 13 How., 43. 
 
 ]S"or will the issuing of an attachment so far avail the plaintiff, though 
 his rights under it may be saved. Vide Kendall vs. Washluriv, 14 
 How., 380, and other cases before cited in that connection. 
 
 ]S"or will the laches of the defendant avail to bar such a motion, 
 where the defect is jurisdictional. Titus vs. Relyea, 16 How., 371 ; 
 8 Abb., ITY (185), which, so far, does not appear to be overruled. It 
 will avail, however, to bar a motion on the ground of mere irregu- 
 larity. Abrahams vs. Mitohell, 8 Abb., 123. 
 
 The question as to whether, on a motion to set aside service of this 
 nature, additional affidavits may or may not be used on the part of the 
 plaintiff, seems to be still open. CantwellYS,. The DvhugueWestern 
 Rail/road Company, IT How., 16. But it may, probably, be held to be 
 governed by the same principles as are applied to the analogous case 
 of attachment, viz., that, where the motion is made simply on the 
 ground of irregularity in the original papers, further affidavits cannot 
 be used ; but that where additional facts are stated in the defendant's 
 papers, it is competent for the plaintiff to bring further testimony, to 
 rebut those facts and sustain the proceeding. 
 
 An application by the defendant to be allowed to come in and de- 
 fend, though made in due time, does not,^6i^ se, open the judgment, or 
 stay proceedings under it. Carswell vs. Neville, 12 How., 445. Nor 
 is it competent for a third party to move to be allowed to come in, after 
 judgment entered. 
 
 A defendant seeking to come in is confined to the assertion of his 
 own rights. The judgment will not be opened, on his application, on 
 the ground of irregularity, as regards proceedings against a co-defendant. 
 CJiapman vs. Lemmon, 11 How., 235. Liberty to defend on the merits 
 was, however, there granted on terms ; and such, as a general rule, 
 will be the case, wherever the existence of a defence is shown, these 
 terms, of course, resting in the discretion of the court. 
 
 A non-resi-dent defendant, served out of the state, is not entitled, as 
 of right, to the service of a second copy of the complaint. His mere 
 demand will not entitle him to have one. Mackay vs. Laidlaw, 13 
 How., 129. 
 
304 OF THE OOmiENCEMENT OE AN ACTION. 8 58. 
 
 § 57. Service on several Defendants, Joint Debtoi's, dc. 
 
 The provisions of section 136, under which, in actions against several 
 defendants, the summons may be served upon any one or more of them 
 alone, and separate proceedings taken thereupon, against the parties so 
 served, will be remarked ; though, of course, it will be premature, at 
 this pdint, to enter into the details of those proceedings. The peculiar 
 description of process by means of which parties against whom a joint 
 judgment has been entered without personal service upon them, or the 
 representatives of a deceased judgment-debtor, may be respectively sum- 
 moned to show cause why they should not be bound by the judgment 
 already on record, will be hereafter considered in connection with that 
 branch of the subject. • 
 
 § 58. Proof of Service. 
 
 Section 138 points oiit three modes by which service, when made, 
 may be proved : 
 
 1. By sheriff's certificate. 
 
 2. By affidavit. 
 
 3. By admission. 
 
 {a.) Sheeiff's CEExmoATE. — Affidavit. 
 
 It is essential that the sheriff's certificate should identify the summons 
 and complaint served by him, as being the summons and complaint in 
 the cause, or the service will be defective. Lichfield vs. Burwell, 5 
 How., 341 ; 9 L. O., 182 ; ICE. (N. S.), 42. 
 
 The validity of a sheriff's certificate is confined to acts done within 
 the scope of his official duty. It is no proof whatever of service made 
 by him in another county. Such service, if made by him, can only be 
 proved by affidavit, as in the case of an ordinary person. Farmers' 
 Loam, and Trust Company, vs. Dickson, 17 How., 477; 9 Abb., 61. 
 The same is the case, " a fortiori," as to the certificate of g'ervice by the 
 sheriff of another state. Thurston vs. King, 1 Abb., 126 ; Morrell vs. 
 Eimlall, 4 Abb., 352. 
 
 In like manner, the sheriff's certificate is no proof of service, in cases 
 where his return is not required by statute. His affidavit must then be 
 presented. So held, as to service of an order on supplementary pro- 
 ceedings. Utica City JBamJc vs. Buell, 9 Abb., 385. 
 
 ISTor is his indorsement evidence of the time of the receipt of a sum- 
 mons, so as to show the commencement of an action under section 99. 
 WojrdweU vs. Patrick, 1 Bosw., 406. 
 
 As a general rule, the sheriff's return is conclusive, nor does it lose 
 
OF THE COMMENCEMENT OE AN ACTION. — ■§ 58. 305 
 
 its validity by lapse of time, or by having been previously acted upon. 
 Brlen vs. Casey, 2 Abb., 417 ; Golumbus Insurance Company vs. Force, 
 S Abb., 353. See also Anon., 4 How., 112. The dictum to the con- 
 trary, in Van Rensselaer vs. Chadwiclc, T.How., 297, is ^^ obiter, ^^ and 
 seems unauthorized. 
 
 An affidavit by a third person may, however, be impeached, and 
 proof given to show that the pretended service was not made in fact. 
 Yan Rensselaer vs. Cltadwiok, 7 How., 297; Wallis vs. Lott, 15 How., 
 567 ; Williams vs. Van Valhenburgh, 16 How., 144. 
 
 A constable's return, though, as a general riile, conclusive, and inca- 
 pable of being impeached collaterally, may be questioned on a motion 
 to open the judgment, Carroll vs. Goslin, 2 E. D. Smith, 376 ; or when 
 the defendant appears in season, Wlieeler vs. The New YorTc and Har- 
 lem Railroad Company, 24 Barb., 414. As to its conclusiveness in 
 general, vide The New Yorlc and Erie Railroad Company vs. Purdy, 
 18 Barb., 574 ; Beno vs. Finder, 20 JST. T., 298 ; reversing same case, 
 24 Barb., 423. 
 
 The sheriff is entitled to demand prepayment of his fees before • ser- 
 vice ; but, after service, he cannot retain the papers and refuse to make 
 his return. Wait vs. Schoonmaher, 15 How., 460. 
 . Those fees, in respect of service of process and papers as above, are 
 as follows : For service of the summons, or summons and complaint, 
 50 cents ; for service of notice of object of suit, 37^ cents in addition ; 
 and for his certificate of the service of both summons and notice, one 
 fee of 12^ cents only, in addition to those for mileage, at 6 cents per 
 mile, for going only, to which he is entitled under the Revised Statutes, 
 2 E. S., 644. See Gallagher vs. Egan, 2 Sandf., 742 ; 3 0. E., 203 ; 
 Benedict vs. Warriner, 14 How., 568 (570). 
 
 The form of the affidavit of service, when made by any person other 
 than the sheriff, is prescribed in detail by rule 18 (84), or 90 of 1849. In 
 such affidavit, the time and place of service must be distinctly specified, 
 the identity of the defendant served must be deposed to, and the fact that 
 the copy was left with, as well as delivered to him, must appear. An 
 omission to comply with the requisitions of the rule will not, howeyer, 
 render the service, or the proceedings under it, void, if it appear that 
 the requirements of the stfitute, section 138, are answered. A rule of 
 court may affect questions of, mere practice and regularity, but not the 
 iurisdictional competency of the court to proceed in the action. Al- 
 ihause vs. Rudde, 3 Bosw., 410 (434), per Pierrepont, J. See, as to 
 a conflict of evidence on this point. Hunter vs. Lester, 18 How., 347 ; 
 10 Abb., 260. 
 
 Subdivision 2, of the same section, prescribes the necessary proof of 
 publication. 
 
 YoL. 1.-20^ 
 
306 OF THE COMMENCEMENT OF AN ACTION. § 58. 
 
 In Bunce vs. Beed, 16 Barb., 347, it was held, as to the analogous 
 case of foreclosure by advertisement, that the affidavit of the publisher of 
 a newspaper is sufficient, though the statute prescribes it should be 
 made by the printer, his foreman, or clerk. The affidavit must also 
 prove publication in each week of the period, or it will be defective. 
 It was considered, however, that an amended affidavit might be filed 
 according to the truth of the case. As to what will be considered a 
 publication in each week, in compliance with the statute, vide Howard 
 vs. Hatch, 29 Barb., 297. 
 
 Publication for the full period prescribed by the order is necessary, 
 and publication before the date of that order will be unauthorized and 
 nugatory. Hallett vs. Highters, 13 How., 43. 
 
 See, generally, as to what will or will not be deemed a sufficient 
 publication of a legal notice, as to which a definite period is prescribed, 
 Olcott vs. Eobmson, 21 E". Y., 150 ; People vs. Gray, 10 Abb., 468 ; 
 Charnberlam vs. Deinpsey, 'ii'ii How., 356 ; 13 Abb., 421. 
 
 As to the legal fees on publication, vide chapter 252, of 1859, p. 
 551, by which they are fixed at 75 cents per folio for the first insertion, 
 and 30 cents per folio for each siibseqiient. 
 
 The period during which publication must be contiimed, is expressly 
 prescribed by section 425. It is to be computed " so as to exclude the 
 first day of publication, and include the day on which the act or event 
 of which notice is given is to happen, or which completes the full 
 period required for publication." 
 
 This principle is the same as that prescribed generally by section 
 407, as to the computation of time, which is to be made by excluding 
 the first day and including the last, unless it be Sunday, when that 
 day is also to be excluded. 
 
 As to the reception of the affidavit of a person dead or insane, as pre- 
 sumptive evidence of service of a notice, vide chapter 244, of 1858, 
 p. 394. "Whether this statute would apply to proof of service of a 
 summons, seems, however, doubtful. 
 
 (5.) Admissions. 
 
 It will be seen that, by section 138, it is equally necessary that the 
 time and place of service should be stated upon an admission, as upon 
 a certificate or affidavit. 
 
 An admission signed by the party, cannot be made available, as the 
 ground of ulterior proceedings, without extrinsic evidence. The signa- 
 ture of such party, and the fact that he is the party sought to be 
 charged, must be proved by affidavit. The court takes judicial notice 
 of the signatures of its own officers, but not of those of third parties. 
 Litchfield vs. Burwell, 5 How.-. 341 ; 1 0. E. (N. S.), 42 ; 9 L. O., 182 
 
OP THE COMMENCEMENT OF AN ACTION. — § 59. SOY 
 
 The objection, however, may be barred by laches. In a case where 
 the motion was delayed until after judgment, the plaintiff was allowed 
 to amend, and supply the necessary proof, nunc pro time. Jones vs. The, 
 United States Slate Company, 16 How., 129. 
 
 § 59. Jurisdiction, Acquisition of, and Appearance. 
 
 The provisions of section 139 are of a twofold application. 
 
 1st. It defines when jurisdiction is acquired. 
 
 2d. It also provides as to the efi'ect of a voluntary appearance. 
 
 {a.) JUEISDICTION. 
 
 The questions which have arisen as to the operation of this provision 
 have been in fact anticipated in the previous divisions of this work. 
 The effect of those decisions may be shortly stated as follows : 
 
 For the main objects of an action, i. e., the pleadings, the joinder of issue, 
 the bringing such issue to trial, and the rendering of judgment thereon 
 when brought, together with the numerous branches of relief collateral 
 to such main objects, jurisdiction can only be acquired by service of the 
 summons, or its equivalent. 
 
 But, for the purposes of sustaining, enforcing, modifying, or vacating 
 a provisional remedy, or any applications relative to or dependent there- 
 on, jurisdiction, limited to the above objects, is acquired on the allow- 
 ance of such remedy. 
 
 And, for the purposes of that section, a similar effect is ascribed to the 
 filing of a notice of lis pendens under section 132, by the amendment 
 of 1862, if followed up by the service of process in the manner there 
 prescribed. 
 
 (5.) Appeaeance. 
 
 A voluntary appearance of a defendant is by the statute " equivalent 
 to personal service of the summons upon him." On such appearance 
 therefore jurisdiction is fully acquired, for all purposes whatsoever. The 
 mode of appearance and its incidents, apart from the subject of that 
 jurisdiction, will be considered hereafter. 
 
 A general appearance waives all irregularity whatever either in the 
 summons itself or in the mode of service, or even the want of any Sum- 
 mons at all. It is an admission on the part of the defendant that he 
 has been regularly brought into court. Dix vs. Palmer, 5 How., 233 ; 
 3 C. E., 214 ; Mulleins vs. Clarh, 3 How., •27 ; Flynn vs. TJie Hudson 
 River Bailroad Company, 6 How., 308 ; 10 L. 0., 158 ; Webb vs. Mott, 
 6 How., 439 ; Hewitt vs. Howell, 8 How., 346. And it admits like- 
 wise, that the court into which he is brought has jurisdiction of his per- 
 
308 OF THE COMMENCEMENT OE AN ACTION. § 59. 
 
 son. Waison vs. The Cabot Banh, 6 Sandf., 423 ; Varian vs. Stevens, 
 2 Duer, 635. See also, as to appearance by a foreign state, Manning 
 vs. The State of Nicaragua^ 14 How., 51Y. 
 
 And not merely does such an appearance waive all irregularities in 
 the summons or its service, but also in the complaint itself, if made 
 after service of the latter. Beck vs. Stephani, 9 How., 193. Or in the 
 proceedings on a provisional remedy antecedent to the action, as in 
 replevin. Hyde vs. Patterson, 1 Abb., 248. So also, as to the objec- 
 tion that an action by a receiver has been commenced without leave of 
 the court, HulleU vs. Dana, 9 How., 424. 
 
 It does not however extend to give validity to a previous proceeding 
 which is not merely irregular, but void. So held, as to an attachment, 
 issued out of the Superior Court before jurisdiction had been acquired. 
 Granger vs. Schwartz, 11 L. 0., 346. IN^or does it waive the objection 
 that the court has no jurisdiction of the subject-matter of the action. 
 Harriott vs. The New Jersey Railroad am-d Transportation Company, 
 2 Hilt., 262 ; 8 Abb., 284. 
 
 Any proceeding in the cause, which assumes that the defendant is 
 regularly in court, is equivalent to an appearance, and will have. the 
 same effect, so far as the waiver of irregularities is concerned. So held, 
 as to obtaining an order for further time to answer. Quin vs. Tilton, 
 2 Duer, 648. So also, even where a general notice of motion to set 
 aside the summons had been given and signed by the defendant's attor- 
 ney, without any limitation that such appearance was for that specific 
 purpose only. Baxter vs. Arnold, 9 How., 445 ; Bole vs. Manley, 11 
 How., 138. The contrary, and that a notice of appearance, when served 
 with motion papers to set a judgment aside, is not a waiver, is held in 
 Bierce vs. Smith, 2 Abb., 411. The objection, however, in that case, 
 was that the service made was void by statute. "Where the defendant 
 in his answer had specially protestedi against the jurisdiction of the 
 coijirt, founded on personal reasons, it was held, nevertheless, that by 
 such answer the objection was waived. Mahaney vs. Penman, 4 Duer, 
 603 ; 1 Abb., 34. 
 
 It has been considered that, where the summons only has been 
 served, a general appearance and demand of copy of complaint, does not 
 preclude the defendant from taking the objection, that the latter, when 
 ser\^d, is a departure from the summons, and therefore irregular ; and 
 this view seems to be well grounded. See, heretofore, section 51, and 
 Voorhies vs. Soofield, 1 How., 51 ; Shafer vs. Humphrey, 15 How., 
 564, and Tuttle vs. Smith, 14 How., 395 ; 6 Abb., 329, there cited and 
 commented upon. 
 
OF THE COMME^f CEMENT OP AN ACTION. — S 60. 309 
 
 § 60. ' Notice of Ids Pendens. 
 
 The last amendment (1862) being a mere addition to section 132, 
 leaving the section itself ilnaltered, the plaintiff must still file his com- 
 plaint, in real estate cases, prior to or simultaneously with this proceed- 
 ing ; the legislature, if they intended, having omitted to relieve him 
 from this restriction. The notice may, however, be filed, in all cases, 
 before service of the summons, provided only the latter be subse- 
 quently served as there prescribed, viz., either by publication, or by 
 personal service upon a defendant within sixty days after its filing. It 
 is in fact expressly declared to be a commencement of the action, for 
 the purposes of section 132, as it now stands. 
 
 In the case of foreclosure, it is an indispensable prerequisite to the 
 obtaining of judgment. See Brandon vs. MoOann, 1 C. E., 38. This 
 provision is, in effect, a continaance of the former practice. Vide 2 
 R. S., 174, section 43. See also chapter 342 of 1840, sections 8 and 9, 
 •amended by chapter 360 of 1844, section 5. 
 
 In other actions affecting real estate, the filing of this proceeding is 
 not obligatory but permissive ; but, wherever the title of such estate is 
 sought to be affected, directly or indirectly, no prudent practitioner will 
 neglect taking it, and taking it at the outset ; nor will such a practi- 
 tioner neglect doing so in every county in which property, so affected, 
 may be situate. By doing so, he places a stop upon the property, and 
 prevents it from being subsequently dealt with, in prejudice of his 
 client's rights. By omitting to do so, he leaves those rights still liable to 
 be defeated by subsequent acts, notwithstanding the steps taken in the 
 suit for their actual assertion. 
 
 The provisions of the section, empowering the filing of such a notice, 
 in cases where an attachment shall be issued, aiid real estate souglit to 
 be charged under that attachment, are comparatively recent, and date, 
 as before shown, from the amendment of 1857. They are, however, 
 foreshadowed, and the practice suggested as necessary', in Lea/rned vs. 
 Yandenburgh, 7 How., 379. The practice on filing such a notice is 
 defined in The People vs. Conolly, 8 Abb., 128. 
 
 The notice is only available as against actual parties to the action, or 
 purchasers, or incumbrancers, subsequent to the lien sought to be en- 
 forced. Prior purchasers, or incumbrancers, not proper parties, cannot 
 be charged by it, nor is it proper to index or insert their names. The 
 People vs. Gonolly, svpra. 
 
 Under the section, the filing is constructive notice to purchasers or 
 incumbrancers of the property affected. This provision does not, how- 
 ever, derogate from the effect of actual notice to such a purcliaser or 
 
310 OF THE COMMENCEMENT OF AN ACTION. § 60. 
 
 incumbrancer, where chargeable with it. See Griswold vs. Miller, 15 
 Barb., 520, as to the nullity of a purchase from an habitual drunkard, 
 with knowledge that a commission against him had been issued, and 
 was then in course of execution. 
 
 The amendment of 1862 has removed the difficulty previously felt as 
 to the effect of filing such a notice, before the service of summons, on 
 the defendant. 
 
 It was before laid down that such filing of the notice could have no 
 effect at all, before the service of summons on the party sought to be 
 affected. Burroughs vs. Reiger, 12 How., 171 ; 12 Abb., 393, note ; 
 Farmers' Loan and Trust Company vs. Dickson, 17 How., 477 ; 9 Abb., 
 61. It was held, however, that subsequent service gave a notice so 
 filed a prospective operation. Tate vs. Jordan, 3 Abb., 392. And also 
 that a subsequent filing of the complaint, gave a notice, filed after ser- 
 vice of summons, an effect, running from the day when the pi-oceeding 
 was completed. Benson vs. Sayre, 7 Abb., 472, note ; Waring vs. 
 Waring, 7 Abb., 472 (473). 
 
 Inasmiich as a fall description of the suit in general, and particularly 
 of the property affected, is a necessary incident to the validity of a no- 
 tice of this description, it seems to follow, as a necessary consequence, 
 that, if the plaintiff, after filing his nolice, subsequently amend his com- 
 plaint iu substantial matter, either as regards the parties to the action, 
 the premises affected, or the relief claimed, a new notice should be filed, 
 in accordance with the fresh matter pleaded ; and such is the general 
 practice. Where, however, the amendment made consisted merely in 
 the addition of the names of parties, and the names of the defendants 
 so added were subsequently stricken out, and nothing was claimed 
 against them, nor did it appear that their interests were material to the 
 title of purchasers, under a decree, it was held that the original notice 
 was sufficient, and aii order was made that such purchasers complete 
 their purchases. Waring vs. Waring, supra. 
 
 A purchaser, '■'■pendente lite," is bound by the decree, whether he bo 
 or be not made a party. Harrington vs. Blade, 22 Barb., 161. And 
 such is the case as to all parts of the property affected by the suit, and 
 as to all equities arising out of the rights or liabilities of the defendant. 
 Chxipman vs. West, 17 IST. Y., 125. Notice filed against his vendor, has 
 been held to discharge a vendee from specific performance of a contract 
 for purchase. Earl vs. Campbell, 14 How., 330. See, however, Zeiter 
 vs. Bowmam, 6 Barb., 133, as to the right of a party sought to be 
 charged, to be heard, in respect of collateral proceedings in the action 
 relating to the income of the subject-matter, by which his interests may 
 be affected. 
 
 Since the amendment of 1858, the question as to the parties who are 
 
OF THE COMMENCEMENT OF AK ACTION. § 60. 311 
 
 bound by sucli a notice, is specifically provided for. Before that amend- 
 ment, it was held that where the deed of a purchaser, though not re- 
 corded until after the filing of the notice, was previously executed, he 
 was a necessary party. Hall vs. Nelson, 23 Barb., 88 ; 14 How., 32. 
 See also Griswold vs. Fowler, 6 Abb., 113. F. B. The report of this 
 last case is mispaged, which creates considerable confusion. As to the 
 effect of the section as now amended, see Earls vs. Barna/rd, 22 
 How., 437. 
 
 A substantial compliance with the statute will be suflicient, and a 
 judgment, when given, cannot be collaterally impeached, on the ground 
 of mere irregularity in the notice, or proof of filing. Potter vs. Row- 
 land, 4 Seld., 448. As to the disregard of mere amendable irregulari- 
 ties, see also Warvng vs. Warvng, 7 Abb., 472. 
 
 A notice containing a supei-fluous initial in the name of the defend- 
 ant, has been held sufficient to put a purchaser, '■'•pendente lite^'' on in- 
 quiry, and to charge him with the knowledge to which such inquiry 
 would have led. TF^&er vs. Fowler, 11 How., 4.58. 
 
 A notice, when filed, cannot be vexatiously continued, in the absence 
 of a siiit actually and regularly commenced and prosecuted. Where, 
 therefore, the plaintifi^, after filing notic§, took no steps to serve the de- 
 fendants for two mouths, and whei'e his initial pi'oceedings were other- 
 wise irregular, the notice, on motion of one of the defendants, was 
 vacated. Lyle vs. Smith, 13 How., 104. See also recent amendment 
 of the section itself, specially authorizing an application for that pur- 
 pose, in a case where the action has abated, and has not been duly 
 revived. 
 
 But a notice, regularly filed, cannot, pending the action, be taken 
 from the files of the court, on any suggestion of inconvenience, even 
 though security has been collaterally given by the defendant. Pratt 
 vs. Eoag, 6 Duer, 631 ; 12 How.,* 215. 
 
 An index of the notices so filed is directed by the statute to be kept 
 by the county clerk, vide 2 E. S., 174, section 43 ; chapter 342 of 1840, 
 section 8. In the County of Kings, snch notices are by statute to be 
 recorded, and the county clerk is entitled to a fee of six cents per folio 
 for that service ; vide chapter 212 of 1859, sections 1 and 2. 
 
 The due filing of the notice may be proved, either by affidavit, or by 
 the certificate of the county clerk with whom it is filed. In all cases, 
 therefore, a duplicate copy should be kept, on which that certificate may 
 be indorsed, or which may be annexed to the required affidavit, where 
 that form is adopted — see rule 71. Such proof must show that such 
 filing has taken place at least twenty days before such application for 
 judgment, and at or after the time of filing the complaint, as still re- 
 .juired by the section. 
 
312 APPOINTMENT OF GUARDIAN AD LITEM. § 62. 
 
 § 61. Mechanics' lAens. 
 
 It is not proposed to enter into any detailed consideration of the 
 statutory remedies provided for this pui-pose. They fall strictly under 
 the head of special proceedings, and, as such, will be hereafter advert- 
 ed to. 
 
 It may he convenient, however, to notice them in connection' with 
 the matters treated of in the present chapter. At a certain stage of the 
 proceedings they assume, and thenceforward, down to the conclusion 
 of the controversy, retain, the characteristics of an oixiinary suit seeking 
 relief in rem. See Ogden vs. Bodle, 2 Duer, 611. 
 
 The original filing of the lien bears in some of its features a close 
 analogy to a notice of lis pendens, except only that its operation is 
 limited to the period prescribed by the statute. It goes beyond that 
 proceeding, however, in that it not merely gives notice of, but actually 
 creates, a charge on the property sought to be affected, ranking in 
 priority from the date of that filing, and affecting all subsequent pur- 
 chasers or incnmbrancerh, with constructive notice of the charge so 
 created. ' 
 
 The notice to the owner to appear and submit to an accounting or 
 settlement has, to all practical intents and purposes, the eifect of a 
 summons. See Smith vs. Maince^ 1 C. E. (IST. S.), 33-0 ; Brown vs. 
 Wood, 2 Hilt., StO. If the owner appears on tlie return of such notice, 
 a complaint must then be filed by the claimant, which complaint inust 
 be answered by the owner, in the usual manner. The cause then prot- 
 ceeds like any other action, and, in relation to the pleadings and pro- 
 ceedings, will be treated of hereafter. 
 
 The owner is not, however, remediless, in the event of a delay by the 
 claimant in the assertion of his rights. He possesses the power of com- 
 pelling the latter to assert and enforce those rights within a limited pe- 
 riod, on service of a notice to that effect. If the latter fail to do so, the 
 lien will be discharged. 
 
 CHAPTER IV. 
 
 OF THE APPOINTMENT OP GUARDIAN AD LITEM, AND HIS DUTIES. 
 
 § 62. General Remarks.. 
 
 Befoee entering upon the general proceedings in a suit, the appoint- 
 ment of a guardian ad litem, and his duties, may advantageously 1© 
 
APPOINTMENT OF GUAKDIAN AD LITEM. § 63. 313 
 
 considered at the present juncture. "Where suit is brought in the name 
 of an' infant, such appointment must, of necessity, take place, as a pre- 
 liminary to any other proceeding in the action, and, in fact, to the 
 bringing of the action itself; and the considerations as to a similar 
 appointment on behalf of an infant defendant are so essentially analo- 
 gous, that the convenience of considering both in the same chapter, as 
 one connected whole, is self-evident. 
 
 The subjects of the appointment of a general guardian on behalf of 
 infants, irrespective of the prosecution or defence of a suit, or of a special 
 guardian for the sale of such infant's real estate, both belong to the 
 class of special statutory proceedings, and fall, as such, beyond the 
 province of the present work. The Code contains no provision upon 
 either subject, though rules 63 to YO, inclusive, of the Supreme Court, 
 prescribe the practice to be pursued. 
 
 § 63. Statutory and other Provisions. 
 
 The sections of the Code bearing on this subject are numbers 115 and 
 116. These sections have already been cited in extenso, and the amend- 
 ments in them noticed, in section number 31 of this work, under the 
 head oi Parties, to which the reader is referred. It may be convenient, 
 however, to give here a short recapitulation of their effects. 
 
 Section 115 provides, that when an infant is a party, he must appear 
 by guardian, who may be appointed by the. court in which the action 
 is prosecuted, or by a judge thereof, or by a county judge. 
 
 Section 116 prescribes the course to be pursued on such appointment. 
 
 When the infant is plaintiff, the infant himself is the proper appli- 
 cant, if of the age of fourteen years. If under that agte, the application 
 should then be made by his geneAl or testamentary guardian, if he has 
 any, or by a relative or friend. If made by a relative or friend of the 
 infant, notice must first be given to such guardian, if he has one ; if he 
 has none, then to the person with whom such infant resides. 
 
 When the infant is defendant, he is himself the proper applicant in 
 the first instance, if of the age- of fourteen years. He is allowed 
 twenty days after service of the summons to make such application. 
 
 If he neglect to do so within that time, or if he be under fourteen, 
 then, any other party to the action, or any relative or friend of the 
 infant, may so apply. Notice of such application must, however, be 
 given : — 1. To the general or testamentary guardian of such infant, if 
 he has one within this state. 2. If he has none, then to the infant him- 
 self, if over fourteen, and within the state. 3. If he be under that age, 
 and within the state, then to the person with when such infant resides. 
 
314 APPOINTMENT OF GTJAEDIAN AD LITEM. — § 63. 
 
 The case of an infant defendant in foreclosure or partition, resident 
 out of the state, is now provided for by the amendment of 1862. 
 
 In such case, the plaintiff may take an order appointing a guardian 
 ad -litem, unless the infant himself, or some one on his behalf, procures 
 such an appointment, within a specified time after service of the order, 
 the mode of which service is to be thereby prescribed. 
 
 The provisions above referred to, appear to be mainly in substitution 
 for those of title II., chapter YIII., part III., of the Eevised Statutes 
 (2 E. S., 445 to 447), now repealed by the conjoint operation of sec- 
 tions 468 and 471 of the Code. 
 
 The practice is further provided for by rules 60 to 62, inclusive, of 
 the Supreme Court. They run as follows : — 
 
 Rule 60. (53 of 1854.) ISTo person shall be appointed guardian ad litem, 
 either on the application of the infant or otherwise, unless he be the gen- 
 eral guardian of such infant, or is fully competent to understand and protect 
 the rights of tSe infant, and who has no interest adverse to that of the in- 
 fant, and is not connected in business with the attorney or counsel of the 
 adverse party. And no person shall be appointed such guardian who is not 
 of sufficient ability to answer to the infant for any damage which may be 
 sustained by his negligence in the defence or prosecution of the suit. 
 
 This rule shall not apply to actions for the recovery of money only, or of 
 specific real or personal property, as specified in section 253 of the Code. 
 
 N. B. — This last sentence would aeem to remove all restrictions whatever as to the qualifi- 
 cations of the party to be appointed, in the class of actions here designated, except such as the 
 court or judge may think fit to prescribe. This relaxation of the ancient practice dates from 
 the revision of 1854. Prior to that of 1858, the former portion of the rule prescribed that 
 the appointment should be either of the general guardian, or of " an attorney or ofBoer of the 
 court who is fully competent," &c. Any person is, however, now competent to act. 
 
 Rule 61. (52 of 1854.) It shall be the duty of every attorney or officer 
 of this court, to act as the guardian of any infant defendant, in any suit or 
 proceeding against him, whenever appointed for that purpose by an order 
 of this court. And it shall be the duty of such guardian to examine into 
 the circumstances of the case, so far as to enable him to make the proper 
 defence, when necessary for the protection of the rights of the infant ; and 
 he shall be entitled to such compensation for his services, as the court may 
 deem reasonable. 
 
 N. B.— This rule, as left unaltered on the revision last referred to, seems to contemplate that 
 in the case of a guardian for an infant defendant, the former practice of appointing an attorney 
 or officer of the court, will stUl be usually, if not necessarily, pursued. 
 
 Rule 62. (54 of 1854.) Wo guardian ad litem for an infant party, unless 
 he has given security to the infant according to law, shall, as such guardian, 
 receive any money or property belonging to such infant, or which may be 
 awarded to him in the suit, except such costs and expenses as may be al- 
 lowed by the court, to the guardian, out of the fund, or recovered by the 
 
APPOINTMENT OF GtTAEDIAN AD LITEM. § 63. 315 
 
 infant in the suit. Neither shall the general guardian of an infant receive 
 any part of the proceeds of a sale of real property belonging to such infant, 
 sold under a decree, judgment, or order of the court, until the guardian has 
 given such further security for the faithful discharge of his trust, as the 
 court may direct. 
 
 This last rule carries out the provisions of section 420 of the Code, 
 which are imperative upon the same subject, and extend not merely to 
 a guardian ad UteTn, but to any person acting in that capacity, hovrever 
 appointed. 
 
 That section runs as follows : 
 
 § 420. (381.) No guardian appointed for an infant, shall be permitted to 
 receive property of the infant, until he shall have given sufficient security, 
 approved by a judge of the court, or a county judge, to account for, and 
 apply the same, under the direction of the court. 
 
 The above provisions and rules apply to the subject of 'guardianship 
 ad litem, generally considered. 
 
 In partition, the practice is still regulated by the provisions of the 
 Revised Statutes, on the same subject, saved and kept in force under 
 sections M8 and 455 of the Code ; the former specially applying that 
 reservation to actions for partition ; the latter, generally, to actions 
 concerning real property, brought under the Code, according to the 
 sub^ebt-matter of the action, and without regard to its form. 
 
 The provisions as to guardianship in partition will be found at 2 E. S., 
 31Y, sections 2, 3, and 4. 
 
 By section 2 it is thus provided : " That, if it shall be represented 
 to the court by any party intending to make application for a partition, 
 that there are any minors who should be parties to the proceedings 
 thereon, and it shall be satisfactorily proved to the court that at least 
 ten days' nbtice has been served on such minors as reside in this state, 
 or upon their general guardian, of an intention to apply, such court 
 shall thereupon appoint a suitable and disinterested person to be guar- 
 dian for one or more of such minors, whether the said minors shall reside 
 in or.out of the state, for the special purpose of taking charge of the 
 interests of such minors, in relation to the proceedings for a partition." 
 
 Under section 3, the guardians so appointed shall represent the 
 minors in the proceedings, " and their acts in relation thereto shall be 
 binding on such minors, and shall be as valid as if done by such minors 
 after having arrived at full age." 
 
 Under section 4, such a guardian, before entering on his duties, is 
 bound to give security for the due performance of his trust. 
 
 In a case of partition by suit, the Court of Chancery was authorized 
 by chapter 27Y of 1833, to appoint one of its own officers as guardian 
 
316 APPOINTMENT OF GUARDLi^N AD LITEM. § 63. 
 
 adUtem for an infant defendant, for whom no suitable and disinterested 
 person sliould volunteer to appear and give the security above required ; 
 and there can be no doubt that this power is now possessed by the 
 Supreme Court, but probably not by any of the tribunals of inferior 
 or limited jurisdiction. 
 
 An analogous general provision is made as to actions relating to real 
 property, at 2 R. S., 341, section 12, where it is provided that the plain- 
 tiff's proceedings in such an action shall not be suspended by reason of 
 the infancy of any defendant, but that guardians to defend the i-ights 
 of infant defendants, shall be appointed as in personal actions. In such 
 actions, if the infant does not procure the appointment of a guardian 
 within the time limited for his appearance, the plaintiff may proceed 
 to have such guardian appointed, as in personal actions. 
 
 By chapter 277 of 1852, p. 411, power is expressly given for the in- 
 stitution of proceedings for partition by an infant plaintiff, and under 
 section 2 he is, in such proceedings, to be represented by a competent 
 next friend. It is evident from the remainder of the section, that such 
 next friend is to be appointed precisely in the same manner, and under 
 the same conditions, as a guardian for an infant defendant, under the 
 provisions of 2 E. S., 317, sections 2, 3, 4, though the reference to the 
 chapter containing those provisions i-s erroneous, standing as chapter I., 
 but being in fact chapter V. of part III. of those statutes. 
 
 By section 3, power is given to the court, or a judge, to authorize 
 and direct the filing of the bond, imposed as a condition by section 4 
 of the above provisions of the Revised Statutes, " nuno pi-o tunc^'' so 
 as to validate all the proceedings, in the event of such bond having been 
 omitted to be given in due time, or of its not being found on file. Such 
 power is made exercisable before judgment, in all cases, and, after judg- 
 "ment, in cases of actual partition. 
 
 By chapter 679 of 1857, vol. II., p. 504, the full powers of amend- 
 ment, given by section 173 of the Code, are made applicable to pro- 
 ceedings under the provisions of the Revised Statutes, last above 
 referred to. 
 
 Under section 316 of the Code, the following provision is made on 
 the subject of costs : 
 
 § 316. When costs are adjudged against an infant plaintiff, the guardian 
 by whom he appeared in the action shall be responsible therefor, and pay- 
 ment thereof may be enforced by attachment. 
 
 This provision is analogous to that at 2 R. S., 446, section 2, now 
 repealed, under the operation of sections 468 and 471 of the Code. 
 
APPOINTMENT OF GUARDIAN AD LITEM. — 8 64. 317 
 
 § 64. General Ohseriiations. 
 
 By the measures of 1848 and 1849, petition was prescribed, as 
 the proper form for obtaining preliminary relief of this nature. On 
 the amendment of 1851, the word " petition" was stricken out, and the 
 more general term, " application," substitiited. Where, however, the- 
 application is made in the case of an infant plaintiif, in which case (the 
 suit being as yet non-existent) it is necessary to lay substantive ground 
 for any interference by the court ;■ or where, if made in relation to an 
 infant defendant, the substantive facts on which that application is 
 grounded do not appear upon the face of the complaint, petition seems 
 still the preferable course, because, by the adoption of that mode, the 
 allegation of those facts becomes, as it were, a substantial portion of 
 the record. 
 
 A motion on notice and affidavit, is, however, clearly admissible un- 
 der the section as it stands, in all cases, and especially in those where, on 
 application for a defendant, such substantive facts are already apparent 
 upon the record, and the supplementary statements necessary to bring 
 the case within the strict purview of the section, are merely collateral. 
 
 It will be observed, that there is a distinction to be drawn between 
 applications in partition and in other cases. In the latter, any judge 
 of the court, or a county judge, is competent to act ; in partition, such 
 application can only be made to the court, as such. Neither a county 
 judge, nor even a judge at chambers, in any district, except the first, 
 is competent to make the order ; which, if so obtained, will be a nullity, 
 and renders the whole proceeding void. Lyle vs. Smith, 13 How., 104., 
 
 In the first district, however, such an order may be made, at cham- 
 bers, and operates as an order of the court, under the special authority 
 conferred by section 401. Disbrow vs. Folger, 5 Abb., 53. 
 
 The course to be pursued is simple and easy. If the application be 
 made by petition, all the facts necessary to show the applicant's or 
 infant's interest, and to bring the application clearly within the pro- 
 visions of section 116, must be distinctly stated upon its face. It must 
 then be signed and verified by the petitioner, and his signature proved 
 in the usual form. (See next book, under the head of Formal Pro- 
 ceedings.) If grounded on affidavit, the same facts must appear on the 
 face of that affidavit. In either case, the written consent of the pro- 
 posed guardian to serve must be subjoined. "When the action does not 
 fall within the classes specified in. section 258 of the Code, the particu- 
 lars required by rule 60 must appear clearly, either upon the face of 
 the moving affidavit, or by affidavits supplementary to the petition, if 
 the application be so made. If it does fall within either of those classes, 
 
318 APPOINTMENT OF GtJAEDIAN AD LITEM. — § 64. 
 
 this supplementary proof seems not to be necessary. • It may be advis- 
 able, however, to give it, and certainly, if done, the application must 
 be more satisfactory to the officer to whom it is made. 
 
 The proceeding is almost necessarily ex farte^ though where there is 
 any contest or doubt on the subject of the appointment, the court or 
 judge applied to may, of course, prescribe that notice be given, in which 
 case that proceeding will assume the shape of an ordinary motion. 
 
 As a general rule, it is not necessary, though competent to serve a 
 copy of the order upon the adverse party. The fact of the appointment 
 must, of course, be alleged in either the title or on the face of the plead- 
 ing of the infant so represented. 
 
 But where the application is for the appointment of a guardian for a 
 non-resident infant defendant, in foreclosure or partition, the order 
 must, as expressly prescribed by section 116, be served, and the mode 
 of service must also be prescribed upon its face. 
 
 When the infant is plaintiff, and money or property is sought tO be 
 recovered, it may, if practicable, be often expedient to prepare and sub- 
 mit to the jiidge, with the other papers, a bond as prescribed by rule 65, 
 in relation to security by a general guardian. This is not, however, 
 necessary, as regards the commencement or prosecution of the suit in 
 the lirst instance. 
 
 But on a recovery being had, either by plaintiff or defendant, the 
 guardian ad litem cannot receive such money or property, save only 
 costs in the cause, and any expenses allowed him by the court, " unless 
 he has given security to the infant according to law." See rule 62, 
 supra. What this security should be, may be gathered from rule 65, pre- 
 scribing that to be given by a general guardian. It should consist of a 
 bond, with two sureties, in double the amount of such money or prop- 
 erty, or security by way of mortgage on unincumbered real property. 
 Of course, where there is a general guardian of the infant, and such 
 guardian has given general security under rule 65 ; and, when real 
 estate of the infant is sold, has also given the additional security re- 
 quired by rule 62, as above cited, the general guardian, and not the 
 guardian ad litem, will be the proper person to receive and apply the 
 fund, save only as regards the latter's costs and expenses. 
 
 It is absolutely essential to the validity of all subsequent proceedings, 
 that the guardian for an infant plaintiff should be appointed before the 
 commencement of the action. Where, accordingly, such appointment 
 had been made, after issuing, but before service of summons and ot 
 complaint, the latter were set aside as irregular. Hill vs. Thacter 3 
 How., 407 ; 2 C. R, 3. 
 
 A judgment against an infant defendant by default, without the 
 previous appointment of a guardian ad litem, was set aside on mo- 
 
APPOrPTTMENT OF GTIABDIAK AD LITEM. — § 64, 319 
 
 tioii, without imposing terms, and with costs, in Kellogg vs. Klook, 2 
 C. E., 28. 
 
 It is competent for the appellate tribunal to make an appointment ot 
 this nature, pending an appeal, where that precaution has been neglected 
 or omitted in the court below. Fish vs. Ferris, 3 E. D. Smith, 567. 
 
 In Ooolc vs. Eawdon, 6 How., 233 ; 1 C. K. (N". S.), 382, it was con- 
 sidered that the restrictions imposed by the present rule 60 (56 of 1849), 
 were not applicable to a guardian for an infant plaintiff, but only as 
 regards a defendant. The correctness of this conclusion seems ques- 
 tionable, there seeming to be nothing in the wording of the rule itself, 
 from which it can be legitimately drawn. 
 
 It is, however, laid down clearly that, in such a case, such guardian 
 ought to be shown to be a responsible person, as, under section 316, he 
 is liable for costs. The same principle, and that it is the duty of the 
 court, to insist that such a guardian should be both a competent and a 
 responsible person, though the Code is silent upon the subject, is laid 
 down in Ten Broeck vs. Reynolds, 13 How., 462. These cases were 
 both before the revision of the rule in 1858. It seems, however, to be 
 still competent and highly expedient for a judicial oiScer to make the 
 same requisition in similar cases, notwithstanding the relaxation of that 
 rule then introduced. 
 
 The old practice as to an infant plaintiff suing by a next friend is 
 abolished. *Whether plaintiff or defendant, he can now 6nly appear by 
 guardian. Hoftailing vs. Teal, 11 How., 188; Hulbert vs Young, 13 
 How., 413. See, however, an exception to this rule, in the case of an 
 infan* plaintiff in partition, under chapter 27Y of 1852, above cited. 
 See also Clarh vs. ClarTc, 21 How., 479. N"or does it apply to the 
 special statutory proceeding for sale of an infant's real estate, in which 
 the matter is still to be originated by a next friend. Vide Matter of 
 WhitlocJc, 32 Barb., 48 ; 19 How., 380 ; 10 Abb., 316. 
 
 In the single case of husband and wife, however, the practice of a 
 married woman suing by a next friend was continued, by section 114 of 
 the Code, until the amendment of 1857. Since that amendment, " in 
 no case need she prosecute by her guardian or next friend." See sec- 
 tion as it now, stands. This modification of the original provision would 
 seem to relieve her from the necessity of suing or defending by a guar- 
 dian, when suing or being sued alone, even where she is an infant. In 
 rule 60, as it stood in 1854, it was provided that a next friend for a 
 married woman might be ap|»ointed in the same manner as a guardian 
 ad litem,, on the application of an infant, but this provision was stricken 
 out in 1858. 
 
 Whilst this practice continued, it was held that where husband and 
 wife sued jointly for joint property, no guardian ad litein need be ap- 
 
 ta 
 
320 ■ APPOINTMENT OF GUARDIAN AD LITEM.— § 64. 
 
 pointed for the wife, though an itifant, the husband being responsible 
 for the costs. Cooh vs. Rawdon, 6 How., 233 ; 1 0. K, K S., 382. 
 See also HuWert vs. Ifewell, 4 How., 93. The rule was otherwise, 
 however, where she sued alone. Vide (hit vs. Goi% 6 How., 53 ; 4 
 How., 232 ; Goolc vs. Bawdon, supra. 
 
 A guardian ad litem cannot, it seems, be properly appointed for an 
 infant, over fourteen years of age, without such infant's consent. E. JB. 
 vs. a B., 28 Barb., 299 ; 8 Abb., 44. 
 
 Although, after the expiration of the twenty days allowed to an in- 
 fant defendant over the age of fourteen, by subdivision 2 of section 116, 
 itis competent to any other party to make the application, this does not 
 deprive the infant himself of that power, at any subsequent time, until 
 he 'has been so forestalled. MoGonneU vs. Ada/ms, 3 Sandf., 728 ; 1 
 C. E. (K S.), 114. 
 
 A guardian, whether general or ad litem, cannot, on a judicial sale, 
 become purchaser of the property of the infant, unless for that infant's 
 benefit, either as principal, or even as agent for another party ipide 2 
 E. S., 326, § 62) ; and it is the duty of the court, on the fact coining in 
 any manner to its knowledge, to order a resale at once, without waiting 
 for an application to be made on behalf of the infant himself. A guar- 
 dian stands in this respect on the same footing as any other trustee. Le- 
 fevre vs. Laraway, 22 Barb., 167. 
 
 A guardian for an infant defendant stands, as to his liability for costs, 
 in the same category as other mere representatives. He falls clearly, as 
 " a person expressly authorized by statute," within the purview of sec- 
 tion 317, which provides that, in an action so defended, costs maybe re- 
 covered, but such costs shall be chargeable only tipon, or collected out 
 of, the estate, fund, or party represented, unless the court shall direct 
 the same to be paid by the defendant personally, for mismanagement or 
 bad faith in the defence. This provision is similar to that at 2 E. S., 
 447, section 12, now repealed by the Code. 
 
 Although a guardian ad litem is entitled to reimbursement of his ex- 
 penses, out of the recovery, when obtained, he must apply for that pur- 
 pose at once, and before that fund has been paid over to the ward ; other- 
 wise the court will not enforce his right, by way of lien on the amount, 
 but will leave him to his remedy by action. Leopold vs. Meyer, 2 Hilt., - 
 580 ; 10 Abb., 40. 
 
 If the court clearly discovers that the interests of the infant are com- 
 mitted to a guardian who is not likely to protect them, he should be 
 removed, and a proper one appointed. Litchfield vs. Burwell, 5 How., 
 341 ; 9 L. O., 182 ; 1 C. E. (K S.), 42. 
 
 No consent of a guardian, on behalf of infants, will render valid a 
 judgment against them, in the absence of legal proof, or any other 
 
APPOINTMENT OF GTIABDIAN AD LITEM. — § 64. 321 
 
 irregular proceeding in the cause. Litchfield vs. Burwell, above cited. 
 Nor is the responsibility of the guardian to the infant, any answer to 
 the objection. 
 
 As to the total want of validity of any proceeding founded upon con- 
 sent, in cases in which an infant is interested, and the want of power in 
 the court to appoint or sanction the action of a guardian under such cir- 
 cumstances, vide Fisher vs. Stillson, 9 Abb., 33. 
 
 As to the power of an infant joint defendant who has not been served, 
 to appear voluntarily, and procure the appointment of a guardian on his 
 own behalf, in order to interpose the defence of infancy, see Wellington 
 vs. Classon, 18 How., 10 ; 9 Abb., 175. 
 
 {a.) GXTAEDIAIT IN PARTITION. 
 
 A guardian may, under the special statute, be appointed for infant 
 defendants in partition, before the commencement of the proceeding. 
 On filing the security prescribed, and giving notice to the intended 
 plaintiff, such guardian will be held to have accepted the appointment. 
 Service of the summons and complaint may then be made on him in- 
 stead of on the infants, and his acts and omissions will theticeforth bind 
 them in the cause, the same as if made or done by themselves, after ar- 
 riving at full age. Althause vs. Radde, 3 Bosw., 410 ; Va/rian vs. Ste- 
 vens, 2 Duer, 635. See likewise, as to the appointment of a guardian 
 for an infant lunatic defendant, Hogers vs. McLean, 11 Abb., 440 ; re- 
 versing same case, 31 Barb., 304 ; 10 Abb., 306. 
 
 As before noticed, the appointment cannot be made, under any 
 circumstances, by a county judge, nor even by a judge out of court, 
 except in the first district. 
 
 It is competent for the court to allow the bond prescribed by section 4 
 of 2 E. S., 317, to be filed, nunc pro tunc, after judgment, and even 
 after a sale under judgment, notwithstanding the apparent restriction 
 contained in the statute of 1852, in the latter case. Crogha/ri vs. Lim- 
 vngston, 17 !N". Y., 218 ; 6 Abb., 350 ; afiirming saTne case, 25 Barb., 
 336. This case necessarily overrules Jennings vs. Jennings, 2 Abb., 6, 
 holding the contrary. The act of 1857, before cited, gives, indeed, 
 special authority to this effect. See Waring vs. Waring, 7 Abb., 472; 
 but the decision in Croghan vs. Livingston is based upon a broader 
 view as to the general powers of the court to grant amendments of this 
 or au analogous nature, in order to sustain the proceeding. See also, 
 generally, Rogers vs. McLean, 11 Abb., 440 ; reversing same case, 31 
 Barb., 304; 10 Abb., 306. 
 
 Such a bond is amendable, but all the obligors must concur in the 
 application for that purpose. Vide 2 K. S., 556, §§ 33, 34. Such ap- 
 plication should be upon petition duly verified, specifying the proposed 
 Vol. I— 21 
 
322 APPOINTMENT OF GXJAEDIAN AD LITEM. — -§ 64. 
 
 alterations, and should contain an express consent to the amendment, 
 and an agreement to execute and acknowledge the bond as amended. 
 A new surety may be united, with his consent, and that of the original 
 obligors. Shaw vs. Lawrence, 14 How., 94. 
 
 As to the necessity of its being shown that the interests of infants 
 cannot be sold for their value without the institution of a suit, on an 
 application for leave to commence one on their behalf, under the statute 
 of 1852, vide In re Marsao, 15 How., 383. See generally, as to the 
 necessity of such an application, Ola/rh vs. Clarh, 21 How., 479. 
 
 As to the total disqualification of a guardian in partition to become 
 purchaser, either as principal or agent, of any portion of the subject- 
 matter of the suit, see Lefevre vs. Laraway, 22 Barb., 167, above cited. 
 
BOOK IV. 
 
 FORMALITIES AND INTERLOCITTORT PROCEEDINGS. 
 
 * • 
 
 § 65. General Observations. 
 
 Peoceedings in a suit, when commenced, may be classified under two 
 grand divisions : 
 
 1. Ordinary proceedings, directly and necessarily conducing to the 
 ultimate result. 
 
 2. Interlocutory or collateral proceedings, not strictly necessary, 
 though expedient, and adoptable or not, at the option of the parties. 
 
 The essential characteristics of both will be treated of hereafter ; but 
 those incidents which are common to all, or which bear upon mere 
 form, without regard to the substance of an application to the court 
 when niade, will be preliminarily treated. 
 
 ^o this branch of the subject the present book will be devoted, con- 
 sidering, in their order— 
 
 1. Mere formalities, incident to all proceedings whatever, whether 
 direct or collateral. 
 
 2. The forms and course of interlocutory applications, as distinguished 
 from their substance. 
 
 § 66. Notices amd Service of Papers. 
 
 "Written notices to the adverse party are, m the first place, necessary 
 in connection with almost every proceeding, in every stage of the 
 cause ; and, as a general rule, all papers conducing to, or consequent 
 upon, an application for relief, or necessary with a view to the progress 
 of the cause, must be served upon the adverse party. 
 
 (a.) Statutory and other Pkovisions. 
 
 The provisions of the Code connected with this branch of the subject 
 will be found in chapter XI., part II. They run as follows : 
 
 § 408. (369.) Notices shall be in writing ; and notices and other papers 
 may be served on the party or attorney, in the manner prescribed in the next 
 three sections, where not otherwise provided by this act. 
 
32i HfTEELOCUTOKT PKOCEEDmGS. § 66. 
 
 § 409. (SVO.) The service may be personal, or by delivery to the party or 
 attorney on whom the service is required to be made ; or it may be as fol- 
 lows: 
 
 1. If upon an attorney, it may be made during his absence from his office, 
 by leaving the paper with his clerk therein, or with a person having charge 
 thereof; or, when there is no person in the office, by leaving it, between 
 the hours of six in the morning and nine in the evening, in a conspicuous 
 place in the office ; or, if it be not open, so as to admit of such service, then 
 by leaving it at the attorney's residence, with some person of suitable age 
 and discretion. 
 
 2. If upon a party, it may be made by leaving the paper at his residence, 
 between the hours of six in the morning and nine in the evening, with some 
 person of suitable age and discretion. 
 
 § 410. (STl.) Service by mail may be made, where the person making the 
 service, and the person on whom it is to be made, reside in different places, 
 betweeja which there is a regular communication by mail. 
 
 § 411. (372.) In case of service by mail, the paper must be deposited in 
 the post-office, addressed to the person on whom it is to be served, at his 
 place of residence, and the postage paid. 
 
 § 412. (373.) Where the service is by mail, it shall be double the time 
 required in cases of personal service, except service of notice of trial, which 
 may be made sixteen days before the day of trial, including the day of 
 
 The conclusion, with reference to notice of trial, was added in 1859. The former portion 
 dates from the original Code, with an improvement in the phraseology, in 1849. 
 
 § 413. (374.) Notice of a motion, or other proceeding before a court or 
 judge, when personally served, 'shall be given at least eight days before the 
 time appointed therefor. 
 
 Dates as it stands from 1849. In 1848, the provision was more specific, prescribing dif- 
 ferent periods of notice, in different cases. 
 
 § 414. (375.) Where a defendant shall not have demurred or answered, 
 service of notice, or papers, in the ordinary proceedings in an action, need 
 not be made upon him, unless he be imprisoned for want of bail, but shall 
 be made upon him or his attorney, if notice of appearance m the action has 
 been given. 
 
 In 1848, the section stopped at " for want of bail." The additional clause was subjoined 
 on the amendment of 1 849. 
 
 § 415. (376.) Where a plaintiff, or a defendant who has demurred, or 
 answered, or gives notice of appearance, resides out of the state, and has no 
 attorney in the action, the service may be made by mail, if his residence be 
 known ; if not known, on the clerk for the party. 
 
 In 1848, the section merely prescribed that the service might be made "on the ftlerk for 
 the party." In 1849, it was altered as it now stands. 
 
INTERLOCITTOET PEOCEEDINGS. — § 66. 325 
 
 Section 416 relates to tlie filing of papers, and will be considered 
 under the next head. 
 
 § 417. (378.) Where a party shall have an attorney in the action, the ser- 
 vice of papers shall be made upon the attorney, instead of the party. 
 
 § 418. (379.) The provisions of this chapter shall not apply to the ser- 
 vice of a summons, or other process, or of any paper to bring a party into 
 contempt. 
 
 The following provision as to service in general, is made by rule 
 10 (5) : 
 
 On process or papers to be served, the attorney, besides subscribing his 
 name, shall add thereto his place of business ; and, if he shall neglect to do 
 so, papers may be served on him at his place of residence through the mail, 
 by directing them according to the best information which can conveniently 
 be obtained concerning his residence. 
 
 This rule shall apply to a party who prosecutes or defends in person, 
 whether he be an attorney or not. 
 
 General Oiservations. 
 
 (5.) Seevice on Paett oe Attoenet, and its Peoof. 
 
 ^ The mode in which service is to be made is so clearly prescribed by 
 section 409, that it seems unnecessary to add any more specific direc- 
 tions upon the subject. 
 
 With reference to rule 10, as above cited, it is clear that, when an 
 attorney, or party acting in person, changes his ofiice or residence, pend- 
 ing the suit, he ought to notify the opposite party, and such is the 
 usual practice. 
 
 When the attorney is changed during the progress of the action, no- 
 tice of the substitution must of course be served on his opponent as 
 heretofore. This notice must be in writing, and must state the place of 
 business of the substituted party, in compliance with the above rule. ISTo 
 particular form need however be observed. It need not be explanatory 
 as to how the substitution was effected, the bare fact being all that is 
 necessary to be shown. Dorlon vs. Lewis, 1 How., 132 ; Bogardus vs. 
 Biehtmeyer, .3 Abb., 1T9. 
 
 The following points may be stated as essential to be attended to, on 
 proof of service of this nature : The time and place of the service, the 
 person on whom and the mode in which it is made, must be distinctly 
 shown, so as to bring it clearly within the purview of the section. In 
 all cases the paper must be stated as being not merely delivered to, but 
 left with the recipient. 
 
 When the service is made on a clerk or person in charge, in the ab- 
 sence of the attorney from his office, that absence should appear ; if not, 
 
326 INTEELOCTTTOEY PROCEEDINGS. — § 66. 
 
 it may be questionable wbether service upon any other person will be 
 strictly regular. It is clear that a notice cannot be properly served 
 when the office is not open, by passing it under the door, or otherwise ; 
 and clear also that service upon a clerk, or person in charge, is not reg- 
 ular, if made elsewhere than in the office itself. The limitations as to 
 hours, in cases of service at the residence of either party or attorney, 
 should likewise be carefully noted. 
 
 If the paper be left in a conspicuous place, it should be then shown 
 that no person competent to receive it was in the office ; and where 
 the paper is so left, the fact that service was between the hours pre- 
 scribed by the section, must also be stated. If left at the attorney's 
 residence, a statement that his office was not open so as to, admit of sei*- 
 vice there, that the paper was there left within the hours prescribed, 
 and that the recipient was of suitable age and discretion, must be made. 
 If made at the party's residence, the suitableness of the recipient, and 
 that the service was within the prescribed hours, should in like manner 
 appear. It would be as well, in such case, to state incidentally that 
 the party has appeared in his own behalf, and has no attorney. In all 
 cases the affidavit should speak positively to the identity of the party 
 or attorney. Rule. 11 as to service of summons may be taken generally 
 as a safe guide. As to the necessity of a full and particular statement 
 of the mode of service in the proof, when sought to be impeached, vide 
 Van Wyoh vs. Reid, 10 How., 366. 
 
 The statute of 1853, enabling substituted service on the part of a 
 plaintiff, where a defendant cannot be found, or, if found, avoids or 
 evades ordinary service, has been already considered in connection with 
 the subject of summons. The provisions of that statute are equally ap- 
 plicable to service of every description, when sought to be made upon a 
 defendant. Its terms will be found heretofore, in section 49 ; the cases 
 relating to it, in section 55. It is needless to do more, on the present 
 occasion, than to make this reference, as none of those cases are specially 
 applicable to the service of papers, as contradistinguished from process. 
 In section 54 various other matters are treated in connection with the 
 service of summons, which are equally applicable to that of notices or 
 other papers, and should be referred to accordingly. See also, as to ser- 
 vice of papers on a Sunday, being void. Field vs. Park, 20 Johns., 140. 
 
 By 2 E. S., 285, sections 55 to 57, express provision is made, -ena- 
 bling service of notices or other papers on the sheriff, by leaving them 
 at an office which he is bound to provide for such purpose, or on de- 
 fault of his making such provision, then at the office of the county clerk. 
 
 As to the reception of the affidavit of a person dead .or insane, as 
 presumptive evidence of service of a notice, vide chapter 244 of 1858, 
 p. 394. 
 
INTERLOOXJTOEY PROCEEDINGS. — § 66. 327 
 
 Where an admission of due service can be obtained from the party 
 or attorney, it -will, of course, dispense witli the necessity of more ibr- 
 mal proof. To obtain such an admission is, therefore, an usual and 
 convenient practice. It must be borne in mind, however, that when 
 signed by a party, not an attorney, that admission will require extrinsic 
 pvoof to make it ayailable as the ground of any further proceeding. 
 Of an attorney's signature the court will, on the contrary, take jiidicial 
 notice. See before, section 58, under the h.Qa,dL oi Proof of Service of 
 Summmis. 
 
 The imperative provisions of rule 20, as to marking and numbering 
 the folios on papers for service, their indorsement with the title of the 
 cause, and their being fairly and legibly written, must in all cases be 
 strictly attended to. See that rule, below cited and considered, in sec- 
 tion 67. 
 
 A notice must, when given, be properly signed and authenticated, 
 or it will be unavailable. Thus, a notice of judgment served by an 
 attorney, without his signature or mention of his place of business, was 
 held a nullity in YorTcs vs. PeeTe, 17 How., 192. 
 
 See also, generally, as to other notices, Pemilt vs. Zeona/rd, 19 How., 
 182 ; People vs. Gray, 10 Abb., 468. 
 
 Any irregularity in service, whether made personally or by mail, 
 will, however, be waived, if the paper, so served, is retained and acted 
 upon. K irregular, it should be returned forthwith, within the same 
 day at farthest, with a statement of the irregularity complained of. 
 See this subject more fully treated in a subsequent chapter (ch. II., 
 book VI., § 127). See also, Georgia Lumber Company vs. Strong, 3 
 How., 246 ; GilmoreY?,. Hempstead, 4 How., 153 ; The Chemmig Canal 
 Bank vs. Judson, 10 How., 133 ; Wright vs. Forbes, 1 How., 240 ; 
 McGown vs. Leamenworth, 2 E. D. Smith, 24 ; 3 C. E., 151 ; Taylor yi,. 
 Mayor of New York, 11 Abb., 255. 
 
 (c.) Seevice on Attorney. 
 
 The attorney on whom papers are served must be the attorney of 
 record. Service on a mere agent will be wholly unavailable. Weave 
 vs. SloGV,m, 3 How., 397; 1 C. K., 105. On the other hand, service on 
 a person not an attorney, and not authenticated as having authority to 
 act, will be nuU, and no order can be founded on it. Buckman vs. 
 Carnly, 9 How., 180. 
 
 Service on the party of the ordinary papers in a suit, after an attorney 
 has appeared for him, will not be good. In Trip> vs. Pe Bow, 5 How., 
 114 ; 3 0. E., 163, a notice of appeal, served on the party, instead of the 
 attorney, was decided to.be bad, and such appeal was accordingly lield 
 to be a nullity. It was also held that the objection might be taken 
 
328 ■ UTTEELOCUTOEY PEOCEEDINGS. — § 66. 
 
 advantage of at any time, provided the party served had not appeared 
 and answered, or proceeded in such a manner as to waive the defect, and 
 give the court jurisdiction. 
 
 In Merder vs. Pearlstone, 1 Abb., 325, judgment grounded on ser- 
 vice of amended complaint on the party, instead of his attorney, after 
 appearance, was set aside as irregular. 
 
 In Lprd vs. Vandenlurgh, 6 Duer, 703 ; 15 How., 363, it was held 
 that, where an attorney resides in one town or city, and has his oiSce 
 in another, the adverse party is not bound to follow him to that resi- 
 dence, if his ofiice be closed. The attorney, will in such case, be con- 
 cluded by the designation given by him in compliance with the 10th 
 rule, and if service at .his actual residence be necessary, it may be made 
 by mail. A party is not bound to make an impracticable service, and 
 if the oflBce, under siich circumstances, be closed, an endeavor to serve 
 at such office within due time, followed by actual service within a rea- 
 sonable time afterwards, when the office is open, will be regarded as 
 sufficient. 
 
 The latter of the above conclusions is also come to in Falconer vs. 
 Ucoppell, 2 C. E., 71, where the party endeavored to serve his pleading 
 within due time, at both the attorney's office and dwelling, and, failing 
 to effect either, served it personally the next day, with notice of the 
 attempted service of the day before. See also, Watlcins vs. Stevens, 3 
 How., 28. 
 
 Of course this doctrine is only adapted to extreme cases, where full 
 diligence has been used, and the conduct of the other side has been evi- 
 dently evasive. Unless the moving party has made every possible 
 effort, and fails, not from want of any exertion of his own, but from the 
 absence or bad faith of the opposite party, it would, on the contrary, be 
 most unsafe for him to rely on obtaining relief of- this description. Yide 
 Waikins vs. Stevens, supra. See also, Ferriss vs. Morrill, 3 How., 20. 
 
 In complying with rule 10, the attorney has the right to designate 
 his own residence or office for the purposes of service, and, when he has 
 so decided by a proper subscription, the adverse party is bound to con- 
 form thereto. Rowell vs. McGormick, 6 How., 337 ; 1 C. R. (IST. S.); 
 73 ; Hiird vs. Davis, 13 How., 57. 
 
 It is irregular to serve papers upon an attorney, after he becomes a 
 non-resident of the state. In such a case the proper practice would 
 seem to be that prescribed at 2 E. S., 287, section 67, where it is pro- 
 vided that, in the event of the death, removal, or suspension, or ceasing 
 to act of an attorney, the person for whom he was acting shall be noti- 
 fied to appoint another attorney or solicitor, in such manner as the court 
 shall direct, at least thirty days before any proceeding shall be had 
 against such person. Diefendorf vs. House, 9 How., 2i3. An appli- 
 
rNTEBLOCTTTORT PEOCEEDIBIGS. — § 66. 329 
 
 cation to the court would, therefore, seem necessary in this state of 
 things. Notice of a consequent application must also be given to the 
 party, if he neglects to appear pursuant to the notice. Jewell ts. 
 Schouten, 1 Oomst., 241. 
 
 In Hoffman vs. Hawley, 13 Abb., 399, it is held that, after due notice 
 has been served as above, service may be made upon the party in per- 
 son, if he neglects to appoint another attorney. 
 
 When an attorney has once been appointed, the adverse party will be 
 justified in continuing to treat him as such, until another has been regu- 
 larly substituted, and he has received notice of that substitution. JFTir- 
 Tcer vs. The City of WilUamsburgh, 13 How., 250. See also Dorlon vs. 
 Lewis, and Bogardus vs. Sicht7neyer, swpra. 
 
 Where a paper has been refused by an attorney, as served out of due 
 time, a subsequent service on his clerk, in ignorance of the refusal of his 
 principal, was held of no avail. O'Erien vs. Catlin, 1 0. R. (N. S.), 273. 
 
 {d.) Sekvice OS Paett. 
 
 It will be seen above that, under section 418, service of summons, or 
 process, or of any paper to bring a party into contempt, must be on 
 such party personally, and cannot be made on the attorney; See below, 
 under the head of Contempts and Enforcement of Orders. 
 
 The following cases refer to personal service generally. "Where a 
 statute prescribes service on an individual, it means personal service, 
 and a notice by mail, though it reaches the party, is ineffectual. Math- 
 hun vs. Acker, 18 Barb., 393. Service of appeal from a justice's judg- 
 ment in New York cannot be made on the attorney, where the party is 
 a resident. Earll vs. Chaprnan, 3 E. D. Smith, 216. 
 
 See, as to service on the party being admissible, where, after the death 
 of his attorney, and due notice being given to him, pursuant to the 
 statute, he neglects to appoint another, Hoffman vs. Rowley, 13 Abb., 399. 
 
 (e.) Seevice by Mail. 
 
 The decisions in relation to service of this description, admissible, as 
 will have been seen, in those cases where the attorneys or parties prose- 
 cuting or defending in person do not reside in the same place, are 
 more numerous. 
 
 The dominant principles in the subject, where the party serving 
 appears by attorney, are thus laid down in Schenck vs. McKie, 4 How., 
 246 ; 3 0. E., 24, Where he appears in person, the modifications to 
 be made in the rule, as laid down, are self-evident. 
 
 1. Such service must be made by the attorney. If made by the party, 
 or by the party's agent, it will be unavailing. 
 
330 INTEKLOCUTOEY PECrCEEDIKrGS. — § 66. 
 
 2. The paper must be posted at the residence of the attorney, and not 
 elsewhere ; properly addressed, and the postage paid. 
 
 3. If these requisitions be duly complied with, the service will be 
 deemed regular, and Ihe party to whom the notice is addressed will 
 then take the risk of the failure of the mail. 
 
 It will be observed that the fact that there is a regular communication 
 by mail between the residences of the attorneys or parties acting is also, 
 by section 410, made a prerequisite to the validity of this description of 
 service. 
 
 Where the defendant's attorney has named his place of residence, on 
 his notice of appearance, or otherwise as required by rule 10, any papers 
 served on him by mail must be directed in accordance with the address 
 so given, or the service will be void. The words "place of residence," 
 in the rule in question, must, in such cases, be understood with reference 
 to the post-office to which the papers are to be directed. RmjoelZ vs. 
 MGCorrrdoJc, 1 C. E. (N. S.), Y3 ; 6 How., 33T. Service of papers 
 directed to another ^ost-office in the same town was there held to be 
 irregular. 
 
 It has been held that an address to " the place of residence" of the 
 attorney, pursuant to section 411, was satisfied by addressing the letter 
 to the post-office of that place, although a fuller designation was given 
 upon the notice of appearance, and the paper required to be so served. 
 Oothout vs. HMnelander, 10 How., 460. This view seems somewhat 
 doubtful. The practice is certainly inexpedient, and the address should 
 in all cases be given as full as practicable. See also Surd vs. Da/vis, 
 13 How., 57. The view taken in Schenck vs. McKie, that the party or 
 attorney, serving by mail, can only do so jfrom his own place of resi- 
 dence, is also supported in the latter case. This strict rule is, however, 
 qualified in Peebles vs. Rogers, 5 How., 208 ; 3 C. E., 213, wherein it 
 is held that if the papers so mailed are actually received by the adverse 
 attorney in due time, he cannot then take advantage of the objection. 
 The attorney so serving takes, in such a case, the risk of the papers 
 actually arriving, and if they so arrive, that risk is discharged. 
 
 The jnailing may take place on the very last day allowed for service, 
 and even after the mail for that day has left. Noble vs. Trotter, 4 
 How., 323 ; 3 0. E., 35 ; Schuchardt vs. Both, 10 Abb., 203. By these 
 decisions. Maker vs. Comstoch, 1 How., 87, to the contrary effect, is 
 overruled ; and the cases of Brown vs. Briggs, 1 How., 152 ; RadcUff 
 vs. Van Benthuysen, 3 How., 67 ; and Jacobs vs. Hooker, 1 Barb., 71, 
 under the old practice, are cited in JSToble vs. Trotter, in support of the 
 view so taken. 
 
 The rule that the party to whom a paper so served is addressed takes 
 the risk of the failure of the mail ; that the service will be good even 
 
INTEELOCITTOET PEOCEEDINGS. — § 66. 331 
 
 altliough tliat paper fails to reach him in due time, and that any action 
 which he may take under the supposition of a default, will nevertheless 
 be set aside, is fully maintained in Noble vs. Trotter a,nd Schuchardt vs. 
 Roth, swpra. Also in Chadwich vs. Brother, 4 How., 283 ; Gibson 
 vs. Murdoch, 1 C. E., 103 ; La/wler vs. Sa/ratoga Mutual Fire Insurance 
 Co., 2 C. K., 114 ; Crittenden vs. Adams, 5 How., 310 ; 3 C. E., 145 ; 
 1 C. E. (K S.), 21. 
 
 In this last decision it is, however, held that the above provision does 
 not extend to service of a notice of appeal, on the clerk of the court as 
 such. * 
 
 The time of service by mail dates from the time the letter is mailed, 
 not from that on which it is received, and such former date will be 
 binding on the adverse party. Van Home vs. Montgomery, 5 How., 
 238 ; see also Hornby vs. Cramer, 12 How., 490. 
 
 The principle laid down in Peebles vs. Rogers, supra, that service by 
 mail, though unduly made in the first instance, may nevertheless be 
 effectual, if the papers are actually received by the adverse party in time, 
 and that the rteal effect of such irregular service will be merely to shift 
 the risk of failure of the mail, is supported by Van JBenthuysen vs. Ste- 
 vens, 14 How., 70. In that case, the papers on a motion were mailed 
 only eleven days previous to the hearing, but a fresh notice, referring 
 to those papers, was personally served on the attorney in due time. 
 TJnder these circumstances the papers so mailed, were allowed to be used, 
 as having, by some means, come to hand before due service of the notice. 
 
 The necessity of a notice served by mail being for double the usual 
 time, is acted upon in Dresser vs. BrooTts, 5 How., 75. In Dorian vs. ' 
 Lewis, 7 How., 132, it was even held that this double time had the 
 effect of enlarging the time to appeal, where notice of judgment had 
 been so served. This view is, however, more than doubtful ; see here- 
 after under the head of Appeals. In the same case, it is held that ser- 
 vice of a complaint in this mode has the same effect, aS regards the 
 defendant's time to answer. WasHhurn vs. Herrich, 4 How., 15 ; 2 0. 
 E., 2, and Cusson vs. Whalen, 5 How,, 302 ; 1 0. E. (IST. S.), 27, are to 
 the same effect. This view will be more fully considered hereafter, in 
 connection with the subject of time to answer. 
 
 The omission to pay the postage on a service of this nature, would seem 
 to be a fatal defect, and that the opposite party may, in such case, re- 
 turn the pleading, which will J)e a nullity. Van Benthuysen vs. Dyle, 
 8 How., 312. 
 
 (3.) Seevice on Absent Pakj'y. 
 
 In section 415, provision is made for the case of a party who has 
 appeared in the action, but who resides out of the state, and has no 
 
332 INTERLOCUTORT PEOCEEDINGS. — § 67. 
 
 attorney within it. In this case, the service may be made by mail, if 
 his residence be known ; if not, on the clerk, for the party. This last 
 mode of service is however rarely, if ever, adopted, as the Code itself 
 expressly provides that, as regards the summons on the one hand (sec- 
 tion 128), or the notice of appearance on the other (section 130), a 
 place for service within the state must be named; service at which 
 place would doubtless, under such circumstances, be held regular, both 
 generally, and under rule 10. 
 
 § 67. Preparation and Filing of Papers. 
 
 (a.) Peepaeation. 
 
 This subject is expressly regulated by rule 20 (41), of the Supreme 
 Court, which runs as follows : 
 
 Rule 20. (41.) The attorney, or other officer of the court, who draws any 
 pleading, deposition, affidavit, case, hill of exceptions, report, or other paper, 
 or enters any judgment, exceeding two folios in length, shall distinctly num- 
 ber and mark each folio in the margin thereof; and all copies, either for the 
 parties or the court, shall be numbered or marked in the margin, so as to 
 conform to the original draft or entry, and to each other, and shall be in- 
 dorsed with the title of the cause. And all the pleadings and other pro- 
 ceedings, and copies thereof, shall be fairly. and legibly written; and if not 
 so written, and folioed, and endorsed, as aforesaid, the clerks shall not file 
 such as may be offered to them for that purpose, nor will the court hear any 
 motion or application founded thereon. The party upon whom the paper is 
 served, shall be deemed to have waived the objection, unless, within twenty- 
 four hours after the receipt thereof, he return such papers to the party serv- 
 ing the same, with a statement of the particular objection to its receipt. 
 
 This rule was increased in its stringency and extent, on the revision 
 of 1858. The concluding sentence added on that occasion, effects, how- 
 ever, a considerable modification in that stringency, and renders it 
 practically of little, if any, hardship. This alteration was, doubtless, 
 made in view of the principles laid down in the following cases, viz. : 
 
 Sawyer YS. Schoonmaker, 8 How., 198 ; Strauss vs. Parker, 9 How., 
 342 ; Broadway Bank vs. Danforth, 7 How., 264 ; The Chemung Canal 
 Bank vs. Judson, 10 How., 133 ; Chatham Bank vs. Van Vechten, 3 
 Duer, 628. See strict view taken in Henry vs. Bow, 20 How., 215. 
 
 The remedy for a defect of this kind, is by motion to set aside the 
 pleading or paper ; the objection is not raiseable by way of demurrer. 
 Dorman \s. Kellam, 14 How., 184; 4 Abb., 202. See also several 
 cases below cited, on the analogous question of an omission, to sep- 
 arate and number several causes of action or defence in the same 
 pleading. 
 
INTERLOCUTQET tEOCEEDIKGS. — § 67. 333 
 
 There can be no question as to the expediency of strictly conforming 
 to the above regulations, or that the party who neglects them, does so 
 at his peril. At the same time, the objection is not one which the 
 courts will favor, and the party objecting must take care that his own 
 practice is strictly and technically regular, or it will fail. Yide Sawyer 
 vs. SGhoonmaker, and Broadway Bank vs. Banforth, supra. 
 
 All writs, process, proceedings, and records whatsoever, in any 
 court, shall be in the English language (except that the proper and 
 known names of process and technical words, may be iised as hereto- 
 fore). They must be made out on paper or parchment, in a fair, legible 
 character, in words at length, and not abbreviated, except abbreviations 
 in common use, and numbers may be expressed by Arabic figures or 
 Eoman numerals, in the customary manner. Vide 2 E. S., 2Y5, § 9. 
 
 (5.) Filing ojb" Papbks, Stattttoet aj^d othee Peovisions. 
 
 The Code itself makes provision on this subject, in the following 
 sections : 
 
 § 416. (3 7 7.) The summons, and the several pleadings in an action, shall 
 be filed with the clerk, within ten days after the service thereof respec- 
 tively, or the adverse party, on proof of the omission, shall be entitled, 
 without notice, to an order from a judge that the same he filed, within a time 
 to be specified in the order, or be deemed abandoned. 
 
 § 422. If an original pleading or paper be lost or withheld by any person, 
 the court may authorize a copy thereof to be filed and used instead of 
 the original. 
 
 Not in the original Code ; inserted in 1849. Copies of tiie summons and pleadings may also 
 be used in making up a judgment-roll, under section 281. 
 
 § 423. The various undertakings required to be given by this act, ipust be 
 filed with the clerk of the court, unless the court expressly provides for a dif- 
 ferent disposition thereof, except that the undertakings provided for by the 
 chapter on the claim and delivery of personal property, shall, after the justi- 
 fication of the sureties, be delivered by the sheriff to the parties respectively, 
 for whose benefit they are taken. 
 
 Dates also from 1849. 
 
 Provisions are also made as to the filing of papers by rules 3, 4, 7 
 and 9, which run as follows : 
 
 Rule 3. Papers shall be filed in the oflSce of the clerk of the county speci- 
 fied in the complaint as the place of trial, of in the county to which the place 
 of trial has been changed ; and in case the place of trial is changed for the 
 reason that the proper county is not specified, as required by section 129 of 
 the Code, papers on file at the time of the order making such change, shall 
 be transferred to the county specified ia such order ; and all other papers in 
 the cause shall be filed in the county so specified. 
 
334 rNTEELOCUTOEY PROCEEDINGS. § 67. 
 
 When the affidavits and papers upon a non-enumerated motion, are re- 
 quired by law to be filed, and the order to be entered, in a county other than 
 that in which the motion is made, the clerk shall deliver to the party prevail- 
 ing on the motion, a certified copyof the rough minutes, showing what papers 
 were used or read, together with the affidavits or papers used or read upon 
 such motion, with a note of the decision thereon, or the order directed to be 
 entered, properly certified. And it shall be tlje duty of the party to whom 
 such papers are delivered, to cause the same to be filed, and the proper order 
 to be entered in the proper county, within ten days thereafter, or in default 
 thereof he shall lose the benefit of said order. 
 
 , Rule 4. It shaR be the duty of the plaintiff's attorney forthwith to file with 
 the clerk of the proper county, all undertakings given upon procuring an 
 order of arrest, an injunction order, or an attachment, with the approval of 
 the justice or judge taking the same indorsed thereon ; and, in case such 
 undertakings shall not be filed within five days after the order for arrest or 
 injunction or the attachment has been granted, the defendant shall be at 
 liberty to move the court to vacate the proceedings for irregularity, with 
 costs, as if no undertaking had been given. It shall also be the duty of the 
 attorney to file within the same time, and under the like penalty, the affidavits 
 upon which an injunction or attachment has been granted, and also the affi- 
 davits upon which an order for the service of a summons by publication, or 
 an order for a substituted service of a summons has been granted, together 
 with the order for such service. 
 
 Rule 7. (88.) The sheriff shall file with the clerk the affidavits on which an 
 arrest is made, within ten days after the arrest. 
 
 Rule 9. (4.) The several clerks of this court shall keep in their respective 
 offices, in addition to the "judgment-book," required to be kept by section 
 279 of the Code of Procedure, a book, properly indexed, in which shall be 
 entered the title of all civil actions and special proceedings, with proper 
 entries under each, denoting the papers filed and the orders made, and the 
 steps taken therein, with the dates of the several proceedings ; an index of 
 all undertakings filed in the office, stating in appropriate columns the title 
 of the cause or proceeding in which it is given, with a general statement of 
 its condition, or a reference to the statute under which it is given, the date 
 when, and before whom acknowledged or proved, by whom approved, and 
 when filed, with a statement of any disposition of or order made concerning 
 it I and such books, properly indexed, as may be necessary to enter the 
 minutes of the court ; docket judgments ; enter orders and all other neces- 
 sary matters and proceedings ; and such other books as the courts of the re- 
 spective districts, at a general term, may direct. 
 
 Judgments shall only be filed and entered or docketed, in the offices of 
 the clerks of the courts of this State, within the hours during which, by law, 
 they are required to keep open then- respective offices for the transaction of 
 business. 
 
 The provisions of rule 20, before cited, under which the clerks are 
 
INTERLOOUTOEY PEO0EEDING8. — § 6*7. 335 
 
 enjoined not to file any papers offered to them, not legibly written, and 
 not folioed or endorsed, as thereby directed, will not either have escaped 
 attention. 
 
 The Superior Court has also made the following special rule on the 
 subject of filing papers on a motion, of date of the 11th of April, 1857; 
 
 1st. The attorneys of the parties must file immediately every paper read 
 by them on a motion. 
 
 2d. Every order hereafter entered, must specify the papers on which it 
 was granted or opposed ; and the clerk is directed not to enter any order, 
 imless such papers are exhibited to him and filed, or unless they have been 
 previously filed. 
 
 , The above rules substantially carry out the previous directions as to 
 the filing of pleadings and papers, in suits in equity, contained in the 
 judiciary act, chapter 280 of 1847, section 50, only they are now made 
 equally binding in all cases, and in every description of action. 
 
 (c.) Filing of Papers Continued. — General Observations. 
 
 Where the venue in an action had been changed for the convenience 
 of witnesses, a commission subsequently issued, and directed to be re- 
 turned to the clerk of the original county of venue, was held regular, 
 and that the return was properly filed in the office of the latter.- TFA'ii}- 
 ney y&.WynGoap, 4 Abb., 370. N. B. — This decision was prior to the 
 last revision of rule 3, which seems to make the filing in either county 
 optional in such a case ; and the filing in the county of actual trial, only 
 obligatory, when that change is on the ground that the proper county 
 was not originally specified. 
 
 Judgment on an appeal ought to be entered, and the papers filed in 
 the county of venue or trial, and not in that in which the appeal is 
 heard : in the latter case it will be irregular. Andrews vs. Durant, 6 
 How., 191. 
 
 The court may permit a mistake in filing a pleading, required to be 
 filed under section 416, to be corrected. The provision that it be other- 
 wise deemed abandoned, has been held to be merely directory, and not 
 imperative, so as to preclude relief, on the omission being explained. 
 Short vs. May, 2 Sandf , 639. 
 
 A party filing a pleading in obedience to such an order is not bound 
 to notify his adversary. Douoy vs. Soyt, 1 C. E. (N". S.), 286. 
 
 With respect to the necessity of an undertaking being duly filed in 
 an injunction case, vide Cooh vs. Dickerson, 2 Sandf., 691. It seems 
 that, under the Code, an undertaking of this description need not of 
 necessity be delivered up to the party entitled to enforce it, with a view 
 to that enforcement, as an inspection and the production of it on the trial 
 
336 INTEELOCtrTOEY PROCEEDINGS. § 68. 
 
 ■will be all that is really requisite for that purpose. Wilde vs. Joel, 6 
 Duer, 671 ; 15 How., 320. 
 
 § 68. Consents and Admissions. 
 
 The giving of consents or admissions is a matter of frequent occur- 
 rence in the ordinary proceedings in a cause, when carried on between 
 the opposite attorneys in a fitting and proper spirit. . 
 
 The practice in relation to them is thus regulated by Rule 13 (37) : 
 
 No private agreement.or consent between the parties or their attorneys, 
 in respect to the proceedings in a cause, shall be binding, unless the same shall 
 have been reduced to the form of an order by consent, and entered ; or unless 
 the evidence thereof shall be in writing, subscribed by the party against 
 whom the same shall be alleged, or by his attorney or counsel. 
 
 The consent of the party himself, regularly reduced to writing and 
 signed, is as obligatory as that of the attorney, and the acts of the latter 
 contrary to that consent, even though done in ignorance of it, will be 
 ii-regular. Braisted vs. Johnson, 5 Sandf., 671. 
 
 As to the disposition of the courts to disregard parol agreements, and 
 to hold the parties and their attorneys to a strict observance of this 
 rule, vide Mulligan vs. Brophy, 8 How., 135 ; Brome vs. Wellington, 
 1 Sandf, 664 ; Ooll vs. Lackey, 6 Duer, 649. 
 
 A party subsequently seeking to disregard or avoid a written stipula- 
 tion, on the ground of fraud or otherwise, does so at his peril, and at the 
 risk of his proceedings being set aside as irregular, with costs, if the 
 question be decided against him. Fitch vs. Hall, 18 How., 314. 
 
 An 'admission of due service of a paper, waives all objections as to 
 the regularity of that service. Struver vs. The Ocean Insurance Coin- 
 pany, 9 Abb., 23. It would seem too, that a mere waiver of service is 
 not an agreement, and does not come within the rule, and may there- 
 fore be proved by parol. Yide 8 Cow., 119. 
 
 The above regulation does not apply to agreements made in the 
 presence of the court or a referee, and certified to be so made, but such 
 an agreement may stand, though not reduced to writing and signed in 
 regular form. And, where such an agreement exists, the technical 
 objection that it is not reduced to writing, will be waived by acts 
 amounting to a deliberate recognition, and a submission to act under it. 
 Vide Corning vs. Goojper, 7 Paige, 587 ; and cases collected in note at 
 3 Abb., 171. 
 
 "Where, too, a verbal agreement between attorneys has been relied 
 upon, and action taken by the opposite party in consequence of such 
 reliance, the courts will not hold this rule to be applicable, but will 
 
ESTTERLOCUtOKT PEOCEEDINGS. — § 69. 337 
 
 compel the party who has obtained an advantage by means of the 
 verbal stipulation, to perform it on his part. Montgomery vs. EUis, 6 
 How., 326. 
 
 A stipulation, given under a mistake as to its real legal effect, may be 
 relieved against. Becker vs. Lamont, 13 How., 23. The same rule 
 holds good, of course, as to one obtained by fraud or misrepresentation 
 of any description. 
 
 And, in order to conclude the adverse party on a motion, a stipula- 
 tion, if relied on, must be produced or proved. Sta/ring vs. Jones, 13 
 How., 423. 
 
 § 69. Undertakmgs. 
 
 In various proceedings in the course of a cause, undertakings by way 
 of security, are required by the Code, or may become necessary. 
 
 The essentials o.f these documents will be considered hereafter, in 
 connection with the proceedings to which they relate. 
 
 Their disposition, when executed, is prescribed by section 423, and 
 rules 4 and Y, already cited in section 67, under the head of The Fit/i/ng 
 of Papers. 
 
 All, of whatever nature, must be duly proved or acknowledged. The 
 following are the provisions of rule 6 (71) on that subject, and generally 
 as to the justification of sureties : 
 
 Rule 6. (71.) Whenever a justice, or other officer, approves of the security 
 to be given in any case, or reports upon its sufficiency, it shall be his duty to 
 require personal sureties to justify, or, if the security offered is by way of 
 mortgage, on real estate, to require proof of the value of such estate. . And all 
 bonds and undertakings, and other securities in writing, shall be duly proved 
 or acknowledged in Uke manner as deeds of real estate, before the same shall 
 be received or filed. 
 
 Prior to the revision of 1858, this rule went on to prescribe the form 
 of the report or certificate of approval ; but, on that occasion, this part 
 of it was stricken out. The subject of justification will be hereafter 
 considered, under the different heads of proceedings, and especially 
 under that of Bail on Arrest. 
 
 The residence of the sureties ought properly to appear on the face of 
 the undertaking. Blood vs. Wilder, 6 How., 446. 
 
 If the essentials of the statute or order which require the giving of a 
 bond or undertaking be complied with, it will be good, if given in either of 
 those forms, though such statute or order may, in terms, require the other. 
 Oonhlm vs. Butcher, 5 How., 386 ; 1 0. E. (F. S.), 49 ; The People 
 vs. Lowbery 7 Abb., 158. See also provision to the same effect as to. 
 
 Vol. I— 22 
 
338 INTERLOOUTOEY PROCEEDINGS.— § 10. 
 
 bonds required by law, at 2 E. S., 556, section 33. But an undertaking 
 not complying with the proper statutory requirements was held void, 
 as expressing no consideration on its face, in Robert vs. Donnelly 10 
 Abb., 454. 
 
 A bond or undertaking, once given, cannot be altered in substance, 
 or by substituting another surety, without the consent of the surety con- 
 tinuing. Cobb vs. Lackey, 6 Duer, 649. A statutory bond, if defect- 
 ive, is amendable on the application of all the obligors, under 2 E. S., 
 556, section 34 ; but the statute must be strictly complied with. Shano 
 vs. Lawrence, 14 How., 94. 
 
 As to the subsequent insolvency of the sureties in an undertaking, 
 rendering it necessary to give fresh security, see hereafter, under the 
 different heads in which it may be required. See also generally, Weh- 
 her vs. Moritz, 11 Abb., 113. 
 
 § 70. Affidavits. 
 
 The proof of collateral • matters, either with reference to points of 
 form, or to the establishment of a title to collateral relief, is a matter 
 of continual necessity, pending the progress of an action. This proof 
 is supplied by means of an affidavit. 
 
 The essentials of the affidavits required in different cases, will be con- 
 sidered under the heads with which they are connected. 
 
 The officers before whom affidavits may be taken, and the powers of 
 those officers, have been already defined, and the subject fally gone into 
 in book I., chapter VII., section 27, to which the reader is therefore 
 referred. 
 
 The signatures both of the party and of the officer taking the affi- 
 davit are essential, and, without either, the document will be a nullity. 
 Vide Laimbeer vs. Allen, 2 Sandf, 648 ; 2 C. E., 15 ; Graham vs. 
 MoCotm, 5 How., 353 ; 1 C. E. (IST. S.), 43 ; George vs. MoAvoy, 6 
 How., 200 ; ICE. (N. S.), 318, and various other cases subsequently 
 cited, under the head of Verification of Pleadings. 
 
 An affidavit, when made, should be free from erasures and interline- 
 ations. Didier vs. Wa/rner, 1 C. E., 42; or, if made, they should, 
 according to the English practice, be noticed and identified, as made 
 before it is sworn, by the officer's initials, or otherwise. 
 
 When the affidavit is taken before a commissioner of deeds, it is 
 essential that the venue should be stated, to show that he had jurisdic- 
 tion to take it. If omitted, it will be a nullity. Lane vs. Morse, 6 
 How., 394 ; Oooh vs. Stoats, 18 Barb., 407. The same rule, of course, 
 holds good as to other officers, whose jurisdiction to administer an oath 
 is limited as to place. 
 
rPTTEELOCUTOKT PROCEEDINGS. — § 70. 339 
 
 The mere omission of the date of the jurat has, however, been held 
 not to be a fatal objection. Sdhoolarafi vs. Thompson, 7 How., 446. 
 
 Wliere an affidavit in a statutory proceeding, is prescribed by the 
 statute to be made before a particular officer, the direction must be 
 strictly complied with ; if not, jurisdiction will not be acquired. Small 
 vs. WTieaton, 2 Abb., 175. In respect to the statements made it will, 
 however, be different, and, if such an affidavit cleWy establishes the 
 facts required by the statute, it will be sufficient, though it does not 
 follow the exact wording. Johnson vs. McDonald, 2 A'b^., 290. 
 
 The statements in an affidavit, when made, should be clB^r, direct, 
 and to the pifrpose, stating the facts deposed to, as facts, ancTnot by 
 way of innuendo or inference. Arguments, and statements of conclusSj^ns 
 of law, should also, as a general rule, be strictly avoided. The ob- 
 ject of an affidavit is to supply the proof of facts, and nothing more* 
 the conclusions to be drawn from, or any reasoning to be based up(^ 
 those facts, fall within the province of the counsel, and not of tho/de- 
 ponent / 
 
 Wtere an affidavit refers, either wholly or partially, to any dogitment, 
 in relation to which theVitness testifies, it is usual, and is clgarly ad- 
 visable, if not necessary, to identify that document, by markihg it with 
 some letter or number, and referring to that designation in the affidavit 
 itself. If the proving of the document be a matter of importance, it 
 will be prudent to add to that identifying mark, the initials or signature 
 of the officer before whom the affidavit is taken, and, in special cases, 
 an express reference to the affidavit itself, as thus: " This is the paper 
 
 writing marked A-, referred to in the affidavit of B. C, sworn this 
 
 day of , before me." The document thus becomes what is termed 
 
 an exhibit, and may then be read in evidence with, and as forming 
 part of, the affidavit. 
 
 When made in an existent action or proceeding, it is the usual, and 
 unquestionably by far the better course, to entitle the affidavit in that 
 proceeding. 
 
 It is not, however, essential to do so : the Code, in chap. IX., title 
 XII., of part II., making the following provision on the subject : 
 
 § 406. (367.) It shall not be necessary to entitle an affidavit in the action; 
 but an affidavit made without a title, or with a defective title, shall be as 
 valid and effectual, for every purpose, as if it were duly entitled, if it intel- 
 ligibly refer to the action or proceeding in which it is made. 
 
 To bring an affidavit within this section, there must, however, be a 
 reference, and that an intelligible reference, to the action or proceed- 
 ing in which it is to be used. Where, therefore, an affidavit for an at- 
 tachm-ent omitted to state whether the deponent was plaintiff or de- 
 
340 rNTEELOCTJTOEY PBOCEEDIH-GS. — § Yl. 
 
 fendant, and did not in any part of it state who was either, it was held 
 to be entirely insufficient. Burgess vs. Stitt, 12 How., 401. v 
 
 It has been doubted by the Court of Appeals whether the omission 
 of the name of the court, in which the affidavit is to be used, was re- 
 medied by the above section ; and, the papers in general being entitled 
 in the Supreme Court, a motion in the Court of Appeals to dismiss the 
 appeal was denied, on that ground. GUchnanys. CUokman, 1 Comst., 
 611 ; 1 C. E., 98 ; 3 How., 365. 
 
 In Blake vs. Looy, however, 6 How., 108 ; 1 C. K. (JST. S.), 406 ; the 
 same objection, *'. e., that the affidavit and notice were entitled in the 
 wrong court, was disregarded. The opinion refers in" terms to this 
 section, which clearly refers to the affidavit alone, and to no other ; 
 but section 176 seems as clearly to sustain the decision. See Williams 
 vs. Sholto, 4 Sandf , 641. See also Ths People vs. Townsend, 6 How., 
 1T8. 
 
 In Pindar vs. Blach, 4 How.,. 95; 2 C. E., 53, an affidavit, en- 
 titled in an action not yet commenced, and referring to an unknown 
 party, designated under section 175, as the " real defendant," was sus- 
 tained as sufficient. 
 
 In Bowmam, vs. Sheldon, 5 Sandf, 657 ; 10 L. 0., 338, the dictum 
 in Gliokma/n vs. CUckman is questioned, though the con-ectness of the 
 decision is admitted, and it was held that the name of the court is part 
 of the title. The notice of motion being, however, correctly headed, 
 the case was held as coming within the section, and the error disre- 
 garded, as one by which the adverse party could not have been misled. 
 
 In The People vs. Diheman, 7 How., 124, it was considered that the 
 above section did not apply to proceedings on mandamus, and that in 
 such cases, an affidavit wrongly entitled, or, as was there the case, en- 
 titled in a suit, when in fact there was none pending, could not prop- 
 erly be received. The ground is also taken there, under section 471, 
 that proceedings upon mandamus are excepted from the operation of 
 the Code. 
 
 § 71. (a.) Computation of Time. 
 
 The computation of time in the different proceedings in a suit, as rfe- 
 gards the service of notices, pleadings, and the performance of any con- 
 ditions whatever, is thus specially provided for by the Code, in chapter 
 X., title XII., of part II. 
 
 § 407. (368.) The time within which an act is to be done, as herein pro- 
 vided, shall be computed, by excluding the iSrst day and including the last. 
 If the last day be Sunday, it shall be excluded. . 
 
 That as to the time of publication of legal notices, is thus regulated 
 in chapter XY. of the same title and part. 
 
INTEELOCtrTOEY PBOOEEDINGS. — § VI. 341 
 
 § 425. The time for publication of legal notices shall be computed so as to 
 exclude the first day of publication, and include the day on which the act or 
 event, of which notice is given, is to happen, or which completes the full 
 period required for publication. 
 
 This section dates from 1849. 
 
 In Judd vs. Fulton, 4 How., 298 ; 10 Barb., 117, the practice of the 
 courts, with reference to the former section, is laid down as follows : 
 
 " The rule is well settled, that, in computing time, the first day, or 
 the day when the time begins to run, is to be excluded. If the de- 
 fendant had been required to do an act, within thirty days from the 
 happening of an event, which had occurred on the 26th of August, he 
 could have had the whole of the thirtieth day, that is, of the 35th of 
 September, for that purpose. But, if he was prohibited doing an act 
 until after the expiration of the thirty days, he could not do it until the 
 next day, that is, the 26th of September." 
 
 In Phelan vs. Douglass, 11 How., 193, the general principle is thus 
 stated : 
 
 The legal rule of computing time is, that whenever the whole day 
 and every part of it can be counted, then it should be ; whenever, if 
 counted, the party would in fact have but a fractional part of it, then it 
 should not be counted ; the party bound to perform, should have the 
 whole number of full and entire days given him for that purpose. 
 
 See likewise generally, Westgate ys. Handlin, 7 How., 372. 
 
 A notice of trial, served on the 9th for the 19th of the same month, 
 was held to be good, in Easton vs. Chamherlain, 3 How., 412, and 
 Dayton vs. Mclntyre, 5 How., 117 ; 3 C. E., 164. 
 
 In T'niax vs. Olute, 7 L. 0., 163, the doctrine of the exclusion of 
 Sunday was fully carried out in practice. Service of an aflBdavit on the 
 12th of March, under an order extending the time to do so to ten days 
 from the first, was held to be sufiicient ; the eleventh, in strictness the 
 last of the ten days allowed, having fallen on a Sunday. See also 
 Broome vs. Wellington, 1 Sandf , 664 ; Phillips vs. Prescott, 9 How., 
 430. See likewise the same principle applied generally to the time 
 limited for payments of an insurance premium. Campbell vs. Inter- 
 national Life Assurance Society of London, 4 Bosw., 298. 
 
 An order returnable on a Sunday was, on like grounds, held a nul- 
 lity in the Arctic Fire Lnrnwance Co. vs. Hicks, 7 Abb., 204. See also 
 generally as to the nullity of any legal proceeding on that day. Pul- 
 ling vs. The People, 8 Barb., 384 ; Smith vs. Wilcox, 25 Barb., 341. 
 
 In Whipple vs. Williams, 4 How., 28, it was even held, that in notices 
 under any statute, for less than a week, Sunday should be excluded 
 altogether from the computation. This case is, however, clearly over- 
 
342 INTEELO0T7T0ET PKOCEEDESrGS.-^§ Tl. 
 
 ruled by Easton vs. Ckamberlmn, above cited ; King vs. Dowdall, 2 
 Sandf., 131 ; Bissell vs. Bissell, 11 Barb., 96 ; and Taylor vs. OorUere, 
 8 How., 385 ; in all of which it is held, that, where Sunday is an inter- 
 mediate day, there is no rule or principle by which it is to be excluded 
 from the computation ; though otherwise, of course, when it is the last 
 day of the period. 
 
 "With regard to the construction of statutes, the rule is however 
 otherwise ; and the act must be done within the time thus provided, 
 as appears by the following decisions : 
 
 In The People vs. Wood, 10 L. O., 61, where the defendant was in- 
 dieted for obtaining money under false pretences, under 2 E. S., 607, 
 which prescribes that the indictment shall be found and filed within 
 three years after the commission of the offence, it was held that the day 
 on which the act is done must be included in the computation : and 
 the indictment, on the Tth of ITovember, 1851, for an offence commit- 
 ted on the 7th of November, 1848, was quashed, as barred by the statute. 
 
 So, also, where the last of the four days allowed to a justice for ren- 
 dering his judgment expired on the following Sunday, a judgment ren- 
 dered by him on the Monday morning was held to be void. Bissell 
 vs. Bissell, 11 Barb., 96. 
 
 See likewise generally. The People vs. The New Yorh Genital PaM- 
 road Comp>any, 28 Barb., 284 ; Broome vs. Wellington, 1 Sandf., 664 ; 
 Phelan vs. Douglass, 11 How., 193 ; McGuire vs. Ulrich, 2 Abb., 28 ; 
 The People vs. Wallcer, 17 IST. Y., 502 ; Judd vs. Fulton, supra. 
 
 In Seluenck vs. McKie, 4 How., 246 ; 3 C. B., 24, it was held that, 
 where additional time to plead is granted by order, such additional 
 time is irrespective of the date of the order itself, and does. not com- 
 mence to run, until the time thereby extended would have expired, had 
 no order been made. 
 
 (5.) Publication. 
 
 As to the time of publication of legal notices, the principles as laid 
 down in section 425 are supported and applied in the following decisions. 
 Bunce vs. Reid, 16 Barb., 347 ; Westgate vs. Hamdlin, 7 How., 372. 
 As to publication for a given number of weeks, and what will be suffi- 
 cient in such cases, vide Howard ys. Hatch, 29 Barb., 297." As to the 
 illegality of advertising in a newspaper published on a Sunday, see 
 Simth vs. Wilcox, 19 Barb., 581 ; affirmed 25 Barb., 341. 
 
 See generally, as' to the time for publication of statutory notices, 01- 
 Gott vs. Pohinson, 21 IsT. T., 150 ; People vs. Gray, 10 Abb., 468 ; 
 Chamlerlain vs, Dempsey, 22 How., 366 ; 13 Abb., 421. 
 
 In relation to notices published in the Albany Evening Journal, prior 
 
mXEELOCITTOEY PEOOBEDIKGS. — § 72. 343 
 
 to 2d July, 1859, deeming it the state paper, vide chapter 174 of 1860, 
 page 296. 
 
 See also special statutes as to the publication of notices in the coun- 
 ties of Fulton and Hamilton, chapter 95 of 1860, page 168, and chapter 
 297 of 1860. page 517. 
 
 § 72. Interlocutory Applications. — Statutory a/nd other Pro- 
 
 visions. 
 
 The following are the provisions of the Code upon this subject, as 
 contained in chapter VIII., title XII., of part II. 
 
 § 400. (367.) Every direction of a court or judge, made or entered in 
 writing, and not included in a judgment, is denominated an order. 
 
 § 401. (358 to 362.) [l.J An application for an order is a motion. 
 
 [2.] Motions may h,e made in the first judicial district, to a judge or jus- 
 tice out of court, except for a new trial on the merits. 
 
 [3.] Orders made out of court, without notice, may be made by any judge 
 of the court, in any part of the state ; and they may also be made by a 
 county judge of the county where the action is triable, or by the county 
 judge of the county in which the attorney for the moving party resides, 
 except to stay proceedings after a verdict. 
 
 [4.] Motions upon notice must be made in the district in which the action 
 is triable, or in a county adjoining that in which it is triable ; except that 
 where the action is triable in the first judicial district, the motion must be 
 made therein, and no motion upon notice can be made in the first judicial 
 district in an action triable elsewhere. ' , 
 
 [5.] In all the districts, a motion to vacate or modify a provisional remedy, 
 and an appeal from an order allowing a provisional remedy, shall have pre- 
 ference over all other motions. 
 
 [6.] No order to stay proceedings for a longer time than twenty days,, 
 shall be granted by a judge out of court, except upon previous notice to tlie 
 adverse party. 
 
 When any party intends to make or oppose a motion in any court of 
 record, and it shall be necessary for him to have the afiidavit of any person 
 who shall have refused to make the same, such court may, by order, appoint 
 a referee to take the afiidavit or deposition of such person. Such person may 
 be subpoenaed and compelled to attend and make an afiidavit before such 
 referee, the same as before a referee to whom it is referred to try an issue. 
 And the fees of such referee, for such service, shall be three dollars per day. 
 
 The final clause of the section was first added to it upon the amendment of 1862. The prior 
 portions have undergone considerable changes from time to time. 
 
 In 1848, it formed five sections, 358 to 362, inchisive. Their purport was in some respects 
 the same as now, but less extensive. 
 
 In 1849, the five sections were consolidated into one, but without subdivisions as at present, 
 the scope of the provisions being extended. 
 
344 mTEELOCUTOBT PEOCEEDINGS. — § 72. 
 
 In 1852, it was added to, but still remained unaubdivided in form. 
 
 In 1858, it was remodelled and subdivided as at present, the former arrangement being in 
 several respects altered. 
 
 In 1859, an addition vras made to the third subdivision. Otherwise the section has come 
 down unchanged since 1858. 
 
 § 402. (363.) When a notice of a motion is necessary, it must be served 
 eight days before the time appointed for the hearing; but the court or 
 judge may, by an order to show cause, prescribe a shorter time. 
 
 Dates as it stands from 1849. In 1848, the notice was five days. 
 
 § 403. (364.) In an action in the Supreme Court, a county judge, in 
 addition to the powers conferred upon him by this act, may exercise, within 
 his county, the powers of a judge of the Supreme Court at Chambers, 
 according to the existing practice, except as otherwise provided in this act. 
 And in all cases where an order is made by a county judge, it may be re- 
 viewed in the same manner as if it had been made by a judge of the Supreme 
 Court. 
 
 Dates as it stands from 1849. In 1848, his powers were those of " a judge out of 
 court.'" 
 
 § 404. (365.) When notice of a motion is given, or an order to show 
 cause is returnable before a judge out of court, and, at the time fixed for 
 the motion, he is absent, or unable to hear it, the same may be transferred, 
 "by his order, to some other judge, before whom the motion might origi- 
 nally have been made. 
 
 Dates as it stands from 1849. In 1848, the provision was generally similar, but more in 
 detail, giving power to the parties to transfer by'notice. 
 
 A similar contingency is also contemplated, and more extensive 
 powers attributed, in the case of motions in the Supreme Court, within 
 the first judicial district, in section 27, before cited in book I., under 
 the head of /Supreme Court, running thus : 
 
 § 27. The judges shall, at all reasonable times, when not engaged in hold- 
 ing court, transact such other business as may be done out of court. Every 
 proceeding commenced before one of the judges of the First Judicial District, 
 may be continued before another, with the same effect as if commenced be- 
 fore him. 
 
 § 405. (366.) The time within which any proceeding in an action must be 
 had, after its commencement, except the time within which an appeal must 
 be taken, may be enlarged, upon an affidavit showing grounds therefor, by 
 a judge of the court, or, if the action be in the Supreme Court, by a county 
 judge. The affidavit, or a copy thereof, must be served with a copy of the 
 order, or the order may be disregarded. 
 
 Dates as it stands from 1849. In 1848, the power could only be esercised "before 
 judgment." 
 
 The following section of the Code, abeady cited in section 66, under 
 
INTEKLOOUTOEY IPKOCEEDINGS. — § ^2, 345 
 
 the general head of Notices, is also more especially pertinent to the 
 subject now under consideration. 
 
 § 413. Notice of a motion, or otter proceeding before a court or judge, 
 when personally served, shall be given at least eight days before the time 
 appointed therefor. 
 
 The review or vacating of ordei^s, is thus provided for by section 324 : 
 
 § 324. (272.) An order, made out of court, without notice to the adverse 
 party, may be vacated or modified, without notice, by the judge who made 
 it ; or may be vacated or modified, on notice, in the manner in which other 
 motions are made. 
 
 The rules of the courts on the subject of motions, are numerous. The 
 citations in the present chapter will be confined to those afi'ecting the 
 practice of the Supreme Court, and the analogous and inferior jurigdic- 
 tions. Those of the Court of Appeals will be considered hereafter, in 
 connection with the peculiar practice of that tribunal. 
 
 The first rule necessary to be cited is number 40, which runs as 
 I follows : 
 
 Rule 40. (2V.) Enumerated motions are motions arising on special ver- 
 dict ; issues of law ; cases ; exceptions ; appeals from orders sustaining or 
 overruling demurrers ; appeals from an inferior court ; and appeals by vir- 
 tue of section 348 of the Code. 
 
 Non- enumerated motions include all other questions submitted to the 
 court, and shall be heard at special term, except when otherwise directed 
 by law. 
 
 Contested motions shall not be noticed or brought to a hearing, at any 
 special term held at the same time and place with a circuit, except in actions 
 upon the calendar for trial at such circuit, and in which the hearing of the 
 motion is necessary to the disposal of the cause ; and except, also, that in 
 counties in which no special term, distinct from a circuit, is appointed to be 
 held, motions in actions triable in any such county, may be noticed and 
 brought on at the time of holding the circuit and special term in the county 
 in which such actions are triable. 
 
 Enumerated motions, being all in the nature of appeals, will be here- 
 after treated of under that head, and rules 42 and 45, by which that 
 branch of practice is regulated, cited in the same connection. They 
 are, in fact, regular and necessary proceedings in the cause, and in no 
 wise interlocutory in their nature. Motions of the latter description 
 fall within the non-enumerated class, and to their consideration the 
 rest of the present chapter will be strictly confined. 
 
 A few of this class of applications are cognizable by the general term, 
 and are regulated by the following rule : 
 
346 mTEELOCUTOET PEOOEEDmGS. — § 72. 
 
 Rule 48. (33.) Non-enumerated motions made in term-time, at a general 
 term, will be heard on the first day, and Thursday of the first week, and 
 Friday of the second week of the term, immediately after the opening of the 
 court on that day. Except in the first judicial district, a party attending 
 pursuant to notice, to oppose a non-enumerated motion, if the same shall not 
 be made on the day for which it is noticed, may, at the close of that order 
 of business, take a rule against the party giving the notice, for costs for at- , 
 tending to oppose. 
 
 Motions in criminal cases may be heard on any day in term. 
 
 The practice in the lar^e class of non-enumerated motions cognizable 
 at special term, is thus laid down by rule 49 : 
 
 Rule 49. (32.) Non-enumerated motions, except in the first district, shall 
 be noticed for the first day of the term, or sitting of the court, accompanied 
 with copies of the afiadavits and papers on which the same shall be made ; 
 and the notice shall not be for a later day, unless sufficient cause be shown 
 (and contained in the affidavits served) for not giving notice for the first day. 
 
 The manner in which contested motions shall be brought on, is thus 
 prescribed by rule 39 : 
 
 Rule 39. (25.) All questions for argument, and all motions, shall be 
 brought before the court on a notice ; or, when a notice less than eight days 
 is prescribed by the judge or court, under section 402 of the Code, by an 
 order to show cause ; and, if the opposite party shall not appear to oppose, the 
 party making the motion or obtaining the order, shall be entitled to the rule 
 or judgment moved for, on proof of due service of the notice or order and 
 papers required to be served by him, unless the court &hall otherwise direct. 
 
 Such order to show cause shall only be granted when a special reason for 
 a notice less than eight days appears on the papers presented, and the party 
 shall, in his affidavit, state the present condition of the action, and whether 
 at issue, and the tune appointed for holding the next circuit in the county 
 where the action is triable. The order shall also (except in the first judicial 
 district) be returnable only before the judge who grants it, or at a special 
 term appointed to be held in the district in which such judge resides. 
 
 No order served after the action shall have been noticed for trial, if served 
 withui ten days of the circuit, shall have the effect to stay the proceedings 
 in the action, unless made at the circuit where such action is to be tried, or 
 by the judge who is appointed or is to hold such circuit. 
 
 And, when the motion is for irregularity, the notice or order shall specify 
 the irregularity complained of. 
 
 This rule, so far as it permits a judgment by default, or by the consent of 
 the adverse party, shall not extend to a complaint for a divorce. 
 
 A similar rule to the above, so tar as regards the not granting orders 
 to show cause without sufficient reason shown for shortening the time 
 
INTEELOCUTOET PEOCEEDINGS. — § 72. 347 
 
 of notice, was made in the second district on the 20th of February, 
 1857. 
 
 Rules 22, 50, 51, 52, 53 and 58, are applicable to special classes of 
 motions, and not to motions generally coiiSidered ; and, as such, will be 
 hereafter cited in their order. 
 
 The renewal of an application on the same state of facts, is thus pro- 
 hibited : 
 
 Rule 23. (82.) If any application for an order he made to any judge or 
 justice, and such order be refused in whole or in part, or be granted con- 
 ditionally, or on terms, no subsequent application, upon the same state of 
 facts, shall be made to any other judge or justice ; and if, upon such subse- 
 quent application, any order be made, it shall be revoked ; and, in the aflS- 
 davit for such order, the party shall state whether any previous application 
 for such order has been made. 
 
 The entry of a rule by default, is regulated as follows : 
 
 Rule 55. (26.) When a rule is obtained, either at a general or special term, 
 by default, the counsel obtaining the same shall indorse his name, as counsel, 
 on the paper containing the proof of notice ; and the clerk, in entering the 
 rule, shall specify the name of such counsel. 
 
 The former practice, of entering orders of course, without the signa- 
 ture of the judge, is, in the first district, practically abandoned. It has 
 been, however, revived to a limited degree, by the following, forming 
 the fii'st part of the order of the 29th of September, 1859, before cited: 
 
 Ordered, Whenever a consent is filed with the clerk of this court for the 
 substitution of the attorney, or for the discontinuance of an action, the clerk 
 may enter on the minutes of the court the substitution of the attorney or 
 the discontinuance of the action, without any order of the judge therefor. 
 
 The form of an order to be entered upon petition is specially regu- 
 lated, as follows : 
 
 Rule 56. (38). Orders granted on petitions, or relating thereto, shall refer 
 to such petitions by the names and descriptions of the petitioners, and the 
 date of the petitions, if the same be dated, without reciting or setting forth 
 the tenor or substance thereof unnecessarily. Any order or judgment direct- 
 ing the payment of money, or affecting the title to property, if founded on peti- 
 tion, where no complaint is filed, may, at the request of any party interested, 
 be enrolled and docketed, as other judgments.' ; 
 
 Special provision is made as to the practice to be pursued on entering 
 orders made in another county than that of the venue, by rule 3. The 
 rule itself has already been cited m extenso in the present chapter, sec- 
 tion 67, under the head of Filing of Papers. Unless the order is duly 
 
348 INTEBLOOUTOEY PEOCEEDINGS. — § 72. 
 
 entered in the proper county within ten days, the defaulting party loses 
 the benefit of it. 
 
 The periods for compliance with an order, when made, are fixed by 
 
 rule, as follows : 
 
 Rule 57. (35.) In all cases where a motion shall be granted, on payment of 
 costs, or on the performance of any condition, or where the order shall require 
 such payment or performance, the party whose duty it shall be to comply 
 therewith, shall have twenty days for that purpose, unless otherwise directed 
 in the order. But, where costs to be adjusted are to be paid, the party shall 
 have fifteen days to comply with the rule, after the costs shall have been 
 adjusted by the clerk on notice, unless otherwise ordered. 
 
 Motions in criminal cases may, under rule 48, be brought on any day 
 during a general term. See, however, Ba/rron vs. The People, 1 Barb., 
 136. See likewise chap. 37 of 1858, p. 65, prescribing that notice of the 
 day on which it will be so brought on must be given: Cases in certio- 
 rari are also, under rule 47, entitled to precedence, on the morning of 
 any day during the first week in term. 
 
 Special regulations have been made from time to time in relation to 
 motions in the first district of the Supreme Court. 
 
 The following rule was made 29th of September, 1859 : 
 
 "After October, 1859, all motions at special term or chambers must be noticed 
 for ihe. first and third Mondays in each term, and for no other time. Such 
 motions will be heard in order on those and the succeeding days, unless oth- 
 erwise ordered by the judge holding the term, until disposed of 
 
 Motions must be noticed for 12 o'clock," noon. Me parte business wUl be 
 attended to between 10 and 12 o'clock, each day." 
 
 This practice has been continued, and a calendar of motions for each 
 motion day is regularly made out by the clerk. 
 
 Several special orders have been made from time to time, in relation 
 to the order of business on this calendar. 
 
 That at present pending, runs as follows : 
 
 SUPREME COURT— CHAMBERS. 
 
 OEDEE OF BtrsUSfESS ON THE MOTION CALENDAR. 
 
 Ordered that the following classes of motions shall have preference at Cham- 
 bers in the order herein mentioned, and that all orders heretofore made in 
 relation thereto be and are hereby vacated. 
 
 I. Motions to place on special circuit calendars. 
 
 n. Motions for extra allowance. 
 
 III. Motions for judgment in foreclosure cases, where no answer is put in,- 
 and on frivolous answers or demurrers. 
 
INTEELOCUTOEY PEOCEEDINGS. — § 72; 349 
 
 IV. Motions for reference and for commissions to take testimony. 
 • V. Motions to discharge from imprisonment. 
 VI. Motions to punisli for contempt. 
 
 Vn. All other motions to which preference is given by the statute, 
 Vni. The general call of the calendar. 
 
 Motions noticed for 12 o'clock will be heard in the special term room. 
 
 By order of the Court. 
 
 H. W. Genet, Clerk. 
 
 It seems questionable whether, in strictness, this rule does not, to some 
 extent, contravene the express direction contained in section 401, sub- 
 division 5, that "in all the districts, a motion to vacate, or modify a' 
 provisional remedy," " shall have precedence above all other motions." 
 
 The following provisions, made by a rule of 29th March, 1860, in the 
 same district, are practically continued, though by the terms of that 
 above cited that rule might be deemed vacated : 
 
 On written consent of the attorneys, any motion before it is called will be 
 set down iy the Clkek for any specified day in the term, hut no motion will 
 be heard before it is eeachbd in its order on the Calendar. 
 
 No contested motions wUl be heard on Saturdays. 
 
 The practitioner should inform himself, however, as to the practice 
 from time to time. 
 
 On the 2Tth March, 1857, the following rule was made as to the 
 entry of orders : 
 
 " No order will be entered on a litigated motion except on consent, or at 
 least one day's notice to the opposite party." 
 
 The order of business on motion days in Kings County, is thus pre- 
 scribed by rule of the second district : 
 
 1. Me parte motions. 
 
 2. Motions to modify, and discharge provisional remedies. 
 
 3. Applications for judgment, and other motions on notice in foreclosure 
 and partition cases. 
 
 4. Applications for judgment, on notice, in other cases, for want of an an- 
 swer, or on account of frivolousness of demurrer, answer, or reply. 
 
 6. Motions in proceedings against persons brought up by attachment. 
 
 6. Motions for commissions and discovery of books and papers, and for 
 the examination, of parties. 
 
 7. Motions to change the place of trials. 
 
 8. Motions to open defaults. 
 
 9. Motions to strike out sham and irrelevant pleadings, to strike out irre- 
 levant or redundant matters, and to make a pleading definite and certain by 
 amendment. 
 
 10. Motions for allowance of injunction. 
 
 11. Other motions. 
 
350 mTBKLOCUTOBY PEOCEEDrNGS. — § 72. 
 
 The following special rules have been made by the Superior Court 
 and the Court of Common Pleas in relation to the above subject. 
 Eules 5 and 6 of the former tribunal run thus : 
 
 Rule 5. Non-enumerated motions will be heard by one of the justices at 
 the special term room and the chambers, daily, at 10 a. m., throughout the 
 year- -except on New Year's Day, Go6d Friday, the Fourth of July, the 
 day of the Annual Election, Thanksgiving Day, and Christmas. For such 
 motions, and for the purpose of hearing any ex parte applications, either in 
 an action or otherwise, which are required by law to be made in open 
 court, and for the purpose of making all necessary orders thereon, and 
 giving judgment in causes, under chapter first, of title eight, of the second 
 part of the Code, a special term will be held every day during the year, at 
 10 o'clock A. M., except on the days above named; and as many special 
 terms may be held at the same time, as there shall be justices of the court 
 attending to hold the same. 
 
 Rule 6. The justices designated to hold the general terms, will attend at 
 chambers daily, during their respective terms, from 10 to 11a. m., to dis- 
 pose of ex parte applications, and of non-enumerated motions in which all 
 the parties are present" or represented. All applications for ex parte orders, 
 and for judgments upon failure to answer, during the general terms, must bo 
 made before 11 o'clock a. m. 
 
 The rule of the same court of 11th of April, 1857, prescribing the 
 filing of all papers used on a motion, and directing that every order to 
 be entered must specify the papers on which it was granted or 
 opposed, and directing the clerk not to enter any such order unless 
 such papers be placed on file, either then or previously, has been 
 already cited in extenso in this chapter, section 67, under the head of 
 JFiling of Papers. 
 
 In the Court of Common Pleas, contested motions form a part of the 
 special term business provided for by rule 2, as follows : 
 
 Rule 2. The special terms for the trial of all issues of fact and law, and 
 hearing of all matters, except business to be heard at the general terms, shall 
 be held on the first Monday of each month except August, shall continue 
 for three weeks, if necessary, and may be continued for the fourth week, 
 by the judge holding the same, when he is not engaged at the general term. 
 
 The chamber business is thus regulated : 
 
 Rule 4. Motions that may be made out of court, and. chamber business, 
 will be heard before a judge at chambers, daUy, between 10 and 12 a. m. 
 Appeals from such motions shall be submitted at the Saturday ol'the general 
 term. 
 
 A provision similar to that contained in rule 39 of the Supreme Court, 
 thus made, by rule adopted on the 2ith of March, 1850 : 
 
 is 
 
INTEBLOOUTOET PE00EEDING8. — § 74. 351 
 
 Ordered, That orders to show cause on non-enumerated motions, will not 
 hereafter be granted, except upon affidavit showmg the necessity of making 
 the time of notice shorter than is required in the Code ; and, where such 
 order is returnable on any other day than the first day of the special term, 
 the reason therefor must be stated in the affidavits on which the motion is 
 founded. 
 
 By order of the 22d of March, 1851, a special practice is prescribed 
 by this court, in relation to the review of questions of practice decided 
 by a single judge, which will hereafter be noticed under the head of 
 Appeals, to which it properly belongs. 
 
 § 73. Motions. — General Glassification. 
 
 An order is, as above stated, obtainable on motion only. 
 
 The distinction between enumerated and non-enumerated motions, 
 has been before drawn. It is with the latter only that the present 
 chapter has concern. 
 
 Non-enumerated motions may again be divided into two. grand 
 heads, viz. : 
 
 1. Expa/rte; 
 
 2. Opposed motions ; 
 
 which will be treated in their order. 
 
 § 74. Ex parte AppUcations. 
 
 {a.) By whom and wheee Cognizable. 
 
 In the Supreme Court, orders of this description may be .made by 
 any judge of the court, in any part of the state. See as to their 
 duty in this respect, section 27, before cited, under head of Supreme 
 Court. 
 
 They may also, with the one exception of a stay of proceedings 
 after verdict, be made by the county judge of the county -where the 
 action is triable, or by the county judge of the county in which the 
 attorney for the moving party resides. § 401, subd. 3. 
 
 In the Superior Court and New York Common Pleas, and other 
 courts of limited or local jurisdiction, a judge of the court itself is 
 alone competent to act. But he may so act wherever found within the 
 territorial limits in which he is authorized to do official acts. Cobb vs. 
 Laohey, 2 Abb., 158 ; 4 Duer, 673 ; 12 How., 200. 
 
 This class of applications are of course peculiarly cognizable by the 
 judge to whom they are made, when sitting at chanjbers, or out of 
 court. See Book I, Chap. III., §§ 15 and 16. 
 
352 nsTTEBLOCtrroEY proceedings. — § 74. 
 
 (b.) General Chaeaotebistios. 
 
 The very term "ex^arte" implies of course an order obtained with- 
 out notice to the adverse party. 
 
 Under this head may be classed : 
 
 Orders of course. 
 
 Orders entered by consent. 
 
 Orders for publication or substituted services. 
 
 Orders granting an extension of time, or a modified stay of pro- 
 ceedings. 
 
 Any other orders incident to the progress of the cause, to which the 
 applicant is entitled as of right, without power to the adverse party to 
 oppose. 
 
 An order to show cause is also ex parte on its first granting. And 
 so are, as a general rule, orders for the provisional remedies of arrest, 
 injunction and attachment. These classes, however, if opposed or 
 sought to be vacated, lose thereupon their original character, and pass 
 into that of contested motions. 
 
 The essential characters of orders falling under this head, will, as 
 usual, be considered hereafter. 
 
 As a general rule they are predicated on affidavit, or on petition, 
 where that form is applicable. See below under that head. Where, 
 however, no -extraneous fact is necessary to be proved, whereon to 
 ground the application, the order may of course stand and be obtained 
 alone. 
 
 When obtained on affidavit, it is an usual practice to add the order 
 at its conclusion. The title of the cause should, however, always ap- 
 pear, either prefixed to the order itself, or to the preliminary affidavit, 
 according to circumstances. 
 
 Where the order is entered by consent, the original of the latter 
 should either be prefixed or annexed to it. If the consent be of the 
 attorney in the cause, no identification will be necessary; if of the 
 party, his signature will require to be proved, by affidavit. 
 
 The papers, when ready, must be presented to the officer to whom 
 the apphcation is made, who, if the order be a chamber order, affixes 
 his signature. The date should be filled in, either previously or at 
 the time. 
 
 Orders by consent are, however, properly special term orders. They 
 must, under Kule 13, before cited, be "entered." If out of the first 
 district, they should therefore properly be presented to a judge of the 
 court when holding such a term. In all cases they should be entitled 
 as special term orders, and the judge, instead of simply signing the 
 paper, when presented, affixes his direction for the entry of the order 
 
INTEELOCTJTOEY PEOCEEDINGS. — § 74. 353 
 
 by the clerk ; and it must thereupon be entered and the papers filed 
 accordingly. In the first district, however, orders for substitution or 
 discontinuance may be entered by the clerk without any signature by 
 the judge, under the rule of 29th September, 1859, as above cited. 
 
 A mere chamber order in a pending action need not be entered at 
 all, nor the papers filed with the clerk. 8a/)iage vs. Relyea, 3 How., 
 2Y6 ;_ 1 G. K., 42. Vernam vs. Holhrooh, 5 How., 3. 
 
 It may, however, be occasionally prudent to do so, and an order for 
 publication or substituted service must now, under Rule 4, be so filed. 
 An order made on petition, being usually a substantive and independent 
 application, should, as a general rule, be regularly entered, and the 
 papers filed, as in the case of an order of the court. Ex parte orders, 
 wherein relief is granted against an adverse party, in an action or pro- 
 ceeding pending, should in all cases be served, accompanied by copies 
 of the papers .upon which they are grounded, upon the adverse attorney 
 or party. 
 
 Under Kules 37 and 58, orders of course may be entered in the 
 cases there provided for, on'filing special affidavits as prescribed. The 
 essentials of these two proceedings will, as usual, be considered in their 
 proper place. 
 
 An application to a judge to modify or vacate his own ex parte order, 
 under the authority conferred by section 324, if entertained by him, 
 falls clearly within this division. But such an application is cogniza- 
 ble by such judge alone ; if made to any other, it assumes the charac- 
 teristics of an ordinary motion. Cayuga County Banh vs. Warfield, 
 13 How., 439. See this subject generally considered hereafter, under 
 the head of Appeals. 
 
 An application for a writ of assistance, by the purchaser under a 
 judgment of foreclosure, and who has obtained his deed, and been or- 
 dered to be let into possession, is an exparte order, to which the appli- 
 cant is entitled as of right, without notice, and without power for the 
 adverse party to oppose. A grantee of the purchaser is similarly enti- 
 tled. Neio Yorh Life Insurance and Trust Company vs. Rand., 8 
 How., 35, affirmed 8 How., 352. The New Yorh Life Insurance and 
 Trust Company vs. Cutler, 9 How., 407. 
 
 An application to remove a mere technical difficulty in a special pro- 
 ceeding, is addressed to the discretion of the court, and may be made 
 either exparte or on notice, as the court may direct. In re P otter sony 
 4 How., 34. 
 
 (c.) Extension of Time. 
 
 The subject of the extension of time to plead, and of the restrictions, 
 imposed upon an application for that purpose by Rule 22, will be here- 
 Vol. I.— 23 
 
354 rNTEELOCTJTOEY PEOCEEJDINGS. — § 14:. 
 
 ^fter considered under its proper head. As to the obligatory nature of 
 that rule, see ^llis vs. Van JVess, 14 How., 313. 
 
 The power of any judge in any part of the state to make an ex parte 
 order of this description, in a cause pending in the first ' district, is 
 asserted in Adams vs. Sage, 13 How., 18. The recent amendments of 
 section 401, have placed this matter beyond a doubt. 
 
 To be obtainable ex parte, an extension of time must be applied for, 
 before the applicant is actually in default. Stephens vs. Moore, 4 Sandf, 
 674. Doty vs. Brown, 3 How., 3Y5 ; 2 C. E., 3. 
 
 An agreement, signed by the plaintiff in person, extending the time to 
 answer, on payment of part of his demand, was held to be valid and 
 binding, and a judgment, taken by his attorney within the extended 
 period, though apparently without knowledge of the extension, was set 
 aside as irregular in Braisted vs. Johnson, 5 Sandf., 671. 
 
 {d.) Stat of Peoceedings. 
 
 The general power of extension conferred by section 405, is, however, 
 essentially limited by_ subdivision 6 of section 401, prescribing that no 
 order to stay proceedings for a longer time than twenty days, shall be 
 granted by a judge out of court, without notice to the adverse party. 
 
 This proliibition does not extend to orders of the court, or orders of that 
 nature. The judge who tried the cause may, accordingly, of his own 
 knowledge, and without special affidavit, grant an indefinite extension 
 of the time to serve a case or bill of exceptions. Thompson vs. Blan- 
 cha/rd, 3 How., 399 ; 1 C. E., 105. If made to another judge, the 
 application should be grounded on affidavit. 
 
 Although a judge out of court cannot grant a stay, extending be- 
 yond the prescribed period of twenty days, it seems he may do so when 
 sitting at special term. The court, as such, is competent to grant the 
 application, though made ex parte and without notice. Harris vs. Clarh, 
 10 How., 415. The Steam Navigation Company vs. Weed, 8 How., 49. 
 
 The same conclusion is more than implied in Mitchell vs. Hall, 7 
 How., 490, where, after expressing some doubt as to whether an ex parte 
 order for a stay until after the decision on a bill of exceptions, granted 
 some time after the trial, by the then presiding judge, might or might 
 not be good, for the excess beyond the twenty days, the learned judge 
 adds : " The safest and best practice undoubtedly'is, when the first or- 
 der is applied for, to make it an order of the court, which will give it 
 a vitality commensurate with the necessities of the case." Such an or- 
 der, however, to be effectual, must be regularly entered and acted upon. 
 If the applicant do not enter it in due time, or take a.eourse of proceed- 
 ing amounting to an election to abandon it, it will not avail him. Sage 
 vs, Mosh£r, 17 How., 367. The distinction between an order made by 
 
INTEELOCUTOET PROCEEDINGS. — § li. 355 
 
 the judge sitting at chambers or at special term, is maintained to the 
 full in Wood vs. KimUll, 18 How., 163 ; 9 Abb., 419. Although made 
 by a judge of the first district sitting at the same time in both capaci- 
 ties, such an order, entitled as a chamber order, and not entered as of 
 special term, was set aside,* with liberty to renew the application in pro- 
 per form. 
 
 The mere making or entitling of a chamber order as made at special 
 term, will not however affect its validity. In re Kniclcerhooker Bcmk, 
 19 Barb., 602. 
 
 Although, in effect, intended to apply to a- shorter period than twenty 
 days, an ex parte stay cannot be applied for in an indefinite form. An 
 indefinite stay of proceedings until the hearing of a motion, cannot be 
 granted otherwise than on notice, or order to show cause. SoJienolc vs. 
 MoKie, 4 How., 246 ; 3 C. K., 24. See also Mitchell vs. Hall, 7 How., 
 490, above cited ; and Lottimenf vs. Lord, 4 E. D. Smith, 183. 
 
 In ChuHbuch vs. Morrison, 6 How., 367, it was held that no judge 
 has properly the right to grant a stay for a given period, or for twenty 
 days, arbitrarily, without sufiicient reason shown. Such a stay, if 
 granted, should always be as a means to an end, and should be founded 
 on a case showing, at least, a prima facie right to some relief, and a 
 necessity for arresting the proceedings of the adverse party, until the 
 apj)lication for that relief can be made. See also Sales vs. Woodin, 
 8 How., 349. Such an order is not, however, void, but voidable, and 
 the proper remedy is a motion to set it aside. Hempstead vs. Hemp- 
 stead, 7 How., 8. See also, as to the old practice of staying proceed- 
 ings, until the next term at which a motion could be heard. Gray vs. 
 Jones, 3 How., 71. 
 
 The same rule is substantially maintained in Barngs vs. Selden, 13 , 
 How., 374. It is held that a judge, anywhere, may make an order out 
 of court, and without notice, staying- proceedings, to enable a party to" 
 apply for some ulterior relief, provided the time does not exceed twenty 
 days. If he goes beyond that limit, the order is void ; he has trans- 
 cended his jurisdiction. If a longer stay is required, the application 
 must be upon notice. See likewise, as to the extent of the powers of 
 a judge at chambers in this respect, The BamJc of Qenesee vs. Spencer, 
 15 How., 14. 
 
 It has been held incompetent for a judge, sitting at chambers, to inter- 
 fere, by means of a stay, with proceedings pending before another judge 
 or officer having sole or exclusive jurisdiction. Such a power only 
 belongs to the court. So held, as to supplementary proceedings, pend- 
 ing before a county judge. The Bam,h of Oenesee vs. Spencer, svpra. 
 JSTor has even the county judge himself, before whom the proceedings 
 are pending, the power to make such an order. Sarnie case, 15 How., 412. 
 
356 rNTERLOClTTOET PBOCEEDINGS. — § 74. 
 
 Eule 39, as last amended, expressly prohibits such an interference, 
 on the part of any other judge, with the proceedings at a circuit, for 
 which a cause has, before the order, been actually noticed for trial. 
 This rule is in accordance with the same doctrine, previously held in 
 Hasbrouck vs. Elrich, 1 Abb., Y6. 
 
 Eule 58 expressly provides for the revocation of a stay, granted for 
 the purposes of a motion, by a defendant, to change the venue ; on the 
 plaintiff's showing, by affidavit, that, according to the settled practice 
 of the court, he is entitled to retain it. See hereafter under that head. 
 
 An ex jparte stay of proceedings on a partition or foreclosure sale is 
 now expressly prohibited by rule 80, and a notice of at least two days 
 made imperative. Prior to this rule, it was held that a party obtaining 
 a stay of this description acts at his peril, and will not be allowed to 
 take advantage of any irregularity produced by such action. La Fa/rge 
 vs. Yan Wagenen, 14 How., 54. 
 
 As to the positive stay effected by the allowance of a common-law 
 certiorari, vide In re Gonover vs. Devlin, 14 How., 348. 
 
 An order extending the time for a proceeding may be so far valid, 
 and yet, in so far as it effects a stay exceeding twenty days, may, at 
 the same time, be invalid and disregarded for the excess. Siiff vs, 
 Bennett, 2 Sandf., 703 ; 3 C. E., 139. See also Mitchell vs. Hall, sujora. 
 
 In Langdon vs. Wilkes, 1 0. E. (IST. S.), 10, it is held that a copy of 
 the afiSdavits on which a mere stay of proceedings, not involving any 
 extension of the applicant's time to take any proceeding, has been 
 granted, need not be served with the order. This is only necessary 
 when such an extension is sought under section 405. 
 
 In the same case, it was held competent for a judge out of court to 
 make successive orders staying proceedings, with a view to the same 
 application, though, collectively, they might effect a stay for more than 
 twenty days. Under the circumstances of the case the order seems 
 sustainable, and, in fact, the period of twenty days had not yet been 
 exhausted by the orders, collectively considered, as wiU appear from 
 an examination of the case itself, which scarcely bears out the positive 
 proposition enounced in the head-note. 
 
 In Wilcoch vs. Curtis, 1 C. E., 96, it was considered that an exten- 
 sion of time to answer was not, in effect, a stay of proceedings, and was 
 not affected by the prohibition in question. 
 
 It would be unsafe to rely on this view, or on the practice of obtain- 
 ing a succession of ex parte extensions for twenty days each, which has 
 sometimes been pursued. 
 
 The proposition laid down in the head-note of Langdon vs. Wilkes, 
 i. e., that a judge out of court may make any number of ex parte orders 
 sta,ying proceedings, though, collectively, they stay proceedings for 
 
INTEELOCUTORY PEOOEEDINGS. — § Y5. 357 
 
 more than twenty days, is expressly overruled, and an ex jparte appli- 
 cation for a second stay denied in Arion., 5'»Sandf., 656. The same, 
 and that a second order of this description, may be disregarded as an 
 evasion of the statute, is positively laid down in Sales vs. Woodin, 
 8 How., 349. See also Mills vs. Thursby (No. 2), 11 How., 114 ; Mar- 
 vin vs. Lewis, 12 Abb., 482. 
 
 § YS. Opposed Motions, where GognizaMe. 
 
 The considerations as to the cognizance of interlocutory applications, 
 either by the general term, by the special term, by a judge or justice at 
 chambers, or by a county judge, or other officer performing the duties 
 of a judge out of court, have already been fully entered into, in chapter, 
 HI., book I., under the head of The Supreme Goxirt, especially in sec- 
 tions 13 to 16, inclusive, of that chapter, to which the reader is accord- 
 ingly referred. 
 
 It remains, however, to notice the distinction between applications in 
 the first and in the other districts, as drawn by section 401, subdivisions 
 2 and 4, as above cited. 
 
 (a.) FlEST DiSTKICT. 
 
 The peculiar characteristics of this district are — 
 
 1. All motions in actions there triable must, an'd, 
 
 2. Motions in actions triable elsewhere cannot, be made within it. 
 This last rule does not, however, extend to purely ex pa/rte appli- 
 cations. 
 
 It applies, however, in all cases where notice, in any shape, is requi- 
 site to be, or is in fact given, to the adverse party, and includes, there- 
 fore, an order to show cause. Baldwin vs. The City of Brooklyn (per 
 Edwards, J., unrep.). 
 
 In The Canal Bank vs. Harris, 10 How., 452 ; 19 Barb., 58Y ; 1 
 Abb., 192, this principle was acted upon, and the court refused to 
 entertain a motion to vacate execution issued to the sheriff of New 
 York, on a judgment docketed in that county, on the ground that that 
 motion should have been made at Albany, where the judgment was 
 originally entered. So also a motion, in a suit to foreclose a mortgage 
 on land within the second, but referred to a referee residing within the 
 first district, was denied by a judge of the latter, in Wheeler vs. Mait- 
 lamd, 12 How., 35. 
 
 In Oeller vs. Hoyt, 1 How., 265, it was held that the hearing of a 
 motion, contrary to the above restriction, is not a question of jurisdic- 
 tion, so as to render an order so obtained " ipso facto" void. Any 
 Supreme Court justice, it was there ruled, had jiu-isdiction to hear the 
 
358 nSTTEELOCtTTORY PEOCEEDINGS. § 75. 
 
 motion and to make the order, " although, if objection were made, he 
 should not hear the motion ; the order, when made, is the order of the 
 Supreme Court." 
 
 In Harris vs. Clarh, 10 How., 41^, it was held, however, on the other 
 hand, that an order so granted was void, for want of jurisdiction, and 
 should be set aside, on motion of the adverse party. 
 
 When the complaint omitted to specify the venue, but the fact that 
 the venue was intended to be laid in the first district was apparent upon 
 the summons, a motion to set it aside, made in the third, was denied. 
 Dawison vs. Powell, 13 How., 287. See, however, Hotchhiss vs. Crocker, 
 15 How., 336; Morrill vs. Orinnell, 10 How., 31. 
 
 A county judge has, no power whatever to rhake an injunction ordei', 
 or any other order, except mere orders of course, in cases pending 
 within this district. Eddy vs. Ilowlett, 2 C. li., 76. 
 
 As to the extent of the powers of a judge in this district, sitting at 
 chambers, and holding a special term at the same time, vide Main vs. 
 Pope, 16 How., 271 ; Witherspoon vs. Van Polar, 15 How., 266 ; Pis- 
 hrow vs. Folger, 5 Abb., 53. As to the practice of the Superior Court, 
 in respect of the granting, and especially the taking, of defaults upon 
 motions at special term or chambers, respectively, see Cobb vs. Lackey, 
 4 Duer, 673 ; 12 How., 200 ; 2 Abb., 158. 
 
 The above restriction as to motions in the first district has, however, 
 been held only to extend to motions in the regular course of a suit, and 
 not to those in which purely independent relief is sought. The judges 
 in that . district have asserted their power to hear motions of- this 
 description, though the actions in which they were made were strictly 
 triable elsewhere. So held on a motion to compel an attorney to give 
 up the papers in a suit. Cunningham vs. Wilding, 5 Abb., 413. On 
 a motion for a supersedeas, for omissioii to charge an imprisoned defend- 
 ant in execution, l^ills vs. Jones, 2 Abb., 20. See also, as to an order 
 for taxation of costs under a surrogate's appeal, which was held to be 
 cognizable by any justice of the court, at any place within the state. 
 Brock/way vs. Jewett, 16 Barb., 590. 
 
 And this power is acknowledged by the general term of the fourth 
 district, in a case where a prisoner under execution, on a judgment there 
 entered, was released on habeas corpus, by order of a justice of the 
 first. See CaldweWs Case, 35 Barb., 444 ; 13 Abb. 405. 
 
 (5.) Other Districts. 
 
 In these districts, the facilities for making motions are increased as to 
 the places, but diminished as to the mode, of making the application, as 
 follows : 
 
 1. A motion may be made in any county within the district in which 
 
rNTEELOCXJTOET PKOCEEDINGS. — § 75. 359 
 
 lie action is triable ; or, in any county, thougli in another district (the 
 first excepted), which adjoins the connty in which the venue is laid ; but, 
 
 2. A motion, on notice, cannot be made before a judge, at chambers, 
 or out of court, or otherwise than " at special term." See Rule 40. 
 See, also. Bedell vs. Powell, 3 C. E., 61, and Schench vs. MoKie, 4 
 How., 246 ; 3 C. E., 24. Disbrow vs. Folger, 5 Abb., 58. 
 
 It has been held that the affidavits in support of a motion should 
 show affirmatively that it is made in the proper district, or it may be 
 denied. Sohermerhorn vs. Devlin, 1 C. E., 13 ; Dodge vs. Hose, 1 0. E., 123. 
 
 In Peebles vs. Rogers, 5 How., 208; 3 C. E., 213, it was held that 
 the words, " the county where the action is triable," include any county 
 in which, under sections 123 to 125, the plaintiff is at libe^^y to have 
 it tried. At that time, the question as to whether a change of the 
 place of trial did or did not carry with it a change of the venue, was 
 still left unprovided for. The subsequent amendments have placed this 
 beyond a doubt. The county originally fixed by the plaintiff', now 
 clearly determines the place for interlocutory applications. When that 
 county is changed for another, in another district, the change carries 
 with it a change of the district for this purpose. This principle is fully 
 carried out, and the view taken in Peebles vs. Rogers, expressly over- 
 ruled in Bomgs vs. Selden, 13 How., 163 ; same case, 13 How., 3Y4, in 
 which the question is very fully considered, and the different authori- 
 ties cited and examined. See also Ashins vs. Ilearns, 3 Abb., 184. 
 
 Where, however, the plaintiff has omitted to specify any county in 
 his complaint, so that the venue is not in fact fixed, the defendant may 
 move in the district of his own residence, the action being in fact there 
 triable, nor does a reference to the summons avail to deprive him of 
 that right. Hotohkiss vs. Crocker, 16 How., 336. See, also, Morrill vs. 
 Crrmnell, 10 How., 31. The former of these decisions is contrary to 
 Damson vs. Pmioell, 13 How., 28Y, before cited. The doctrine in Dam- 
 son vs. Powell, as to disregarding the mere technical defect, seems more 
 consonant, however, with the general spirit of the Code. It is also more 
 consistent with the decisions in Johnston vs. Bryan, and Ingleheart vs. 
 Johnson, below cited, 
 
 A motion for a commission must be made within the regular district, 
 and the provisions of the Eevised Statutes and the Judiciary Act, en- 
 abling it to be made to any judge of the court, or a county judge, are 
 inconsistent with the Code, and are therefore repealed. Sturgess vs. 
 Weed, 13 How., 130. 
 
 Where a summons had been served, stating that the complaint would 
 be filed in a particular county, it was held that a motion for judgment 
 for not serving a copy of the complaint, could not be made in another 
 district, unless in a county immediately adjoining the county named. 
 
360 INTERLOCUTORY PROCEEDINGS. § 76. 
 
 Johnston vs. Brycm, 5 How., 355 ; 1 C. E. (N. S.), 46 ; Inglehewrt vs. 
 Johnson, 6 How., 80. "Where, therefore, a county is situated in the 
 middle, and not on the borders of a judicial district, the motion cannot 
 be made out of the latter. 
 
 The same conclusion is come to in Blaokma/r vs. Van Imwager, 5 
 How., 367; 1 0. E. {E. S.), 80. It is, however, held in that case, that 
 although irregularly made, as being in a wrong county, the order on a 
 motion, by a judge of the Supreme Court, cannot be treated as a nullity 
 and disregarded. It is binding until set aside, and the party aggrieved 
 must proceed accordingly. See also . as to this last point, Greller vs. 
 Soyt, 7 How., 265 ; Rem/pstead vs. Hempstead, 7 How., 8. 
 
 A stricter view on this last subject is taken in Harris vs. ClarTc, 10 
 How., 415, in which it was held that an order, made in the first district, 
 in an action triable elsewhere, was void for want of jurisdiction. The 
 propriety of a motion being made to set it aside, instead of its being 
 merely disregarded, was, however, recognized. 
 
 "Where a cross action had been brought, in respect of matter origi- 
 nally set up, by way of defence, in another district, it was held that the 
 motion, for the purpose of compelling a consolidation of the two pro- 
 ceedings, could only be made in the cross action, and in the proper dis- 
 trict in which such motion was cognizable ; and an application of that 
 nature in the original proceeding was accordingly denied, but without 
 prejudice to its renewal in regular form. Farmers' Loan and Trust 
 Gomjpany vs. Hunt, 1 C. E. (St. S.), 1. 
 
 "Where the plaintiff had brought a number of separate aotions against 
 the same defendants, in respect of the same cause of action, but in- dif- 
 ferent counties,' all the parties to the action residing, in fact, in one 
 county, it was held that the motion to consolidate was properly made 
 in that county. Percy vs. Seward, 6 Abb., 326. 
 
 By special statute, chapter 35 of 1848, motions arising in the county 
 of Orleans, may be brought to a hearing in Erie, in the same manner as 
 if those counties adjoined. 
 
 A county judge cannot hear a contested motion under any circum- 
 stances, even though it be to vacate his own order. Rogers vs. McEl- 
 hone, 20 How., 441 ; 12 Abb., 292. See also Lancaster vs. Boormam., 
 20 How., 421, there referred to. 
 
 § 76. — O^pposed Motions — Notice of. 
 
 Opposed or opposable motions must be brought on in all cases, on 
 notice to the adverse party. This may be effected either by notice in 
 the ordinary form, or, when the usual period of that notice is required 
 to be shortened, by order to show cause. These two proceedings wiU 
 accordingly be considered in their order. 
 
rNTEELOOITTOEr PEOCEEDINGS. — 8 76. 361 
 
 (a.) Notice of Motion. 
 
 The ordinary notice of motion nrnst in all cases be given and served 
 at least eight days before the hearing. See sections 402, 413, of the 
 Code, before cited. When service of it is made by mail, that time must 
 of course be doubled. (Section 412.) See as to the necessity of the 
 full period of notice being given, unless the time is shortened by order 
 of the court, Hogers vs. McMhone, 20 How., 441 ; 12 Abb., 292. 
 
 In one single case, however, a two days' notice may be given, *. e., 
 on an application to stay a judicial sale, when made to a judge out of 
 court. This is specially provided for by rule 80. 
 
 In all the districts, enumerated motions should be noticed for the first 
 day of term. (Eule 42.) 
 
 In all except tiie first, non-enumerated motions should be noticed for 
 the same, and not for any later day, unlesS sufiicient cause for so doing 
 be shown on the affidavits served. (Rule 49.) Vide Whipple vs. Wil- 
 liams, 4 How., 28. 
 
 In such districts, contested motions, not immediately connected with 
 the disposal of a cause on the circuit calendar, are not, as a general rule, 
 to be noticed or brought to hearing at a special term, held at the same 
 time and place with such circuit. Those counties in which no special 
 term, distinct from a circuit, is appointed to be held, are, however, ex- ' 
 cepted from this regulation. In those, a motion may be noticed, and 
 heard at the circuit and special term in the county of venue. See rule 
 40, above cited. 
 
 In the first district, the practice is less stringent. In the Supreme 
 Court the notice may be given for either the first or third Monday 
 in term. Eule of the 29th September, 1859. In the Superior Court 
 and Common Pleas, there is no restriction as to the day for which 
 notice should be given of chamber > or special term motions. Appeal 
 motions to the general term will be heard, and should be noticed for the 
 fourth Saturday of the month in the Common Pleas, and each Satur- 
 day during the general terms in the Superior Court. 
 
 In respect to one class of motions, i. e., those to correct or render a 
 pleading more definite and certain, a positive restriction is imposed by 
 rule 50. Motions of this class must be noticed, before demurring or 
 answering the pleading, and within tiventy days from the «ervice 
 thereof. See Bowmom vs. Sheldon, 5 Sandf., 657 ; 10 L. 0., 338 ; 
 Moosa vs. The Saugerties a/nd Woodstock' Tumjnke Road Compwny, 8 
 How., 237; Sogers vs. Raihhone, 6 How., 66. 
 
 In the last case, it was held necessary that the fact that the motion 
 was so noticed, should appear affirmatively on the moving papers. 
 This view is, however, overruled, and the doctrine that such omission, 
 
362 INTEELOCUTOET PEOOEEDINGS. — § 76. 
 
 if made, should be shown as matter of defence, held in Ba/rber vs. Bermett, 
 i Sandf , 705 ; and Boosa vs. T/i£ ScmgerUes, die, Turmpike Road Com- 
 pany, swpra. 
 
 The right to make such a motion will, also, be waived by the service 
 of an answer to the impeached pleading, after notice given, Ooch vs. 
 Marsh, 8 How., 439 ; or by an extension of time to plead. Bowman vs. 
 Sheldon, 5 Sandf, 657 ; 10 L. O., 338 ; or by servifce of notice of trial, 
 which admits that a sufiicient issue is raised, Esmond vs. Yan Ben- 
 schoten, 5 How., 44. 
 
 As to the inefficiency of a notice of motion, given either prematurely 
 or too late, see hereafter, section 78, under head ot Incidental Points. 
 
 The following are the necessary concomitants of a valid notice of 
 motion : 
 
 1. It nmst be regularly entitled in the cause or matter in which the- 
 motion is intended to be made. The entitling it in a wrong court has 
 even been held a fatal and unamendable defect. Cli6km,a/n vs. Click- 
 man, 1 Comst., 611 ; 3 How., 365 ; 1 C. E., 98. The contrary view, 
 entertained in Blake vs. Locey, 6 How., 108 ; 1 C. E. (JST. S.), 406, seems 
 not to be maintainable, under the section there referred to. The defect 
 may, doubtless, be disregarded under section 176 ; but the error is one 
 that ought never to be made. 
 
 2. The papers on which the motion is intended to be grounded, should 
 be clearly and unmistakably indicated. What those papers are will 
 be shown in the succeeding section. 
 
 Care must be taken to make this indication sufficiently specific; and 
 if the motion is one of general bearing on the pleadings or past proceed- 
 ings, general words should be used, or subjoined to the more particular 
 specification, so as to place the right to read any of such proceedings 
 beyond a doubt. 
 
 Copies of all papers, on which the motion is specially grounded, 
 must, in all cases, be served with it, and referred to in the notice as 
 being so served. The only exception is, when such motion is based, in 
 whole or in part, on papers already served on some previous occasion, 
 or on papers in the possession of, or served by the adverse party. In 
 these 'Cases, the latter may be so referred to, and it will not be necessary 
 to furnish a second set of copies of the one, or copies of the other. 
 Wheuva motion is founded entirely on the papers of the adverse party, 
 a simple notice will be sufficient. Newbury vs. Newbury, 6 How. 182 • 
 1 C. E. (IST. S.), 409. Papers omitted to be served, or referred to as 
 above, cannot, if objected to, be read on the hearing. 
 
 When a motion is founded on the pleadings, in whole or in part, a 
 simple reference to those pleadings will be all that is so far requisite, 
 nor will formal proof of their identity, or of the existence of the suit 
 
INTEELOCTJTOEY PEOCEEDINGS. — § 1Q. 363 
 
 itself, be required. Newbury vs. Newbury, 6 How., 182 ; oYerruling 
 Osborn vs. Lobdell, 2 C. R., 77. See also Barrow vs. Miller, 5 How., 
 247; 3C. R, 241. 
 
 As to tlie power of making use of a case and exceptions, when set- 
 tled, in a motion in the cause, directed to another object, see Ycm Ber- 
 gen vs. Ackhs, 21 How., 314. 
 
 3. The judge, or officer, before whom the motion is to be made, and 
 the exact time and place at which it is to be so made, must also clea:fly 
 appear. It is usual to specify the hour at which the court or judge 
 will sit, generally at ten, a. m. 
 
 In motions to the general or special term, a notice that the motion 
 will be made " at the sitting of the court," on the day referred to, will, 
 however, be sufficient. It is very usual and proper, though not essen- 
 tially necessary, to add to the designation of time, the words, " or so 
 soon thereafter as counsel can be heard." 
 
 In the first district, the time for which contested motions are to be 
 noticed, is now fixed, by the rule of the 29th of September, 1859, above 
 cited, at twelve m. In the Superior Court, ordinary motions should be 
 noticed for ten ; appeal motions, for eleven, a. m. In the Common 
 Pleas, for either ten' or eleven. The former is, perhaps, the more regu- 
 lar, but litigated business is rarely taken up before the latter hour. 
 
 4. The relief asked for, must be positively and distinctly specified, 
 with suflicient detail and precision to make it unmistakably apparent. 
 "When made under any statutory provision, the exact wording of that 
 provision had better, in all cases, be followed. If relief is asked for in 
 the alternative, both alternatives should be clearly presented. See be- 
 low, as to the demand for further relief , which, in all cases, should close 
 the notice, and decisions there cited. Eelief not asked for, cannot be 
 granted. Bi re Pa/yn, 8 How., 220. At the same time, the relief asked 
 for must not be too broad, or the applicant cannot obtain his costs. 
 
 5. "When the motion is for irregularity, the notice or order (to show 
 cause) shall specify the irregularity complained of. Rule 39. 
 
 Before 1852, when this provision was inserted in the rules, the point 
 was a contested one, it having been held in Burns vs. Bobbins, 1 0. R., 
 62, and Blake vs. Looy, 6 How., 108 ; 1 C. R. (E. S.), 406, that, where the 
 errors relied on were sufficiently indicated on the accompanying papers, 
 it was not necessary to state them upon the notice itself; the contrary 
 conclusion being come to in Ooit vs. Bambeer, 2 C. R., 79. 
 
 The rule, as made, has since been acted upon in Whitehead vs. Peoa/re, 
 9 How., 35, and Boche vs. Ward, 7 How., 416. See, likewise, as to 
 the general principle, The Broadway Bank vs. Banforth, 7 How., 
 264 ; Ha/rder vs. Harder, 26 Barb., 409 ; Baxter vs. Arnold, 9 How., 
 445 (448) ; Perkins vs. Mead, 22 How., 476 ; 8elov&r vs. Forbes, 22 
 
364 INTERLOCUTOBy PEOCEEDnSTGS. § 76. 
 
 How., 477. See as to what will be a sufficient statement, on a motion 
 to open a judgment for irregularity, Hicks vs. Brermam, 10 Abb., 
 304. The rule does not apply, however, to a motion to set aside a 
 judgment entered on confession, on the ground of a substantial, as dis- 
 tinguished from a formal defect in the statement. Wmebrenner vs. 
 Edgerton, 30 Barb., 185 ; 17 How., 363 ; 8 Abb., 419. 
 
 A party moving on merely technical grounds, must see that his own 
 papers are not open to the same objection as his adversary's, or his 
 motion may be denied on that ground. Sawyer vs. Sohoonmaher, 8 
 How., 198. 
 
 And, where he moves for irregularity, he must apply at the earliest 
 opportunity at which his motion can, with certainty, be made. Seddy 
 vs. Wilson, 9 How., 34. As to the waiver of irregularities by a general 
 appearance, vide Baxter vs. Arnold, 9 How., 445. He must also 
 clearly substantiate the irregulai-ity complained of, if disputed. Donadi 
 vs. New Yorh State Mutual Insurance Company, 3 E. D. Smith, 519. 
 
 6. All the grounds on which the motion is made should also distinctly 
 appear upon the face of the notice, or on the moving papers. If this 
 be omitted, the moving party will be confined to those which are stated. 
 BovjmanY&. Sheldon, 5 Sandf , 657; 10 L. 0., 338; Ellis vs. Jones, 
 6 How., 296. 
 
 Objections to one pleading cannot be split up into several motions ; 
 they must all be taken at once, or a second application will be de- 
 nied. Desmond vs. Woolf, 1 C. R., 49 ; 6 L. 0., 389. A party cannot 
 bring forward his objections by instalments. Mills vs. Thursby (No. 
 2), 11 How., 114. 
 
 7. The general demand for such further or other order, or relief, as 
 may be just, should never be omitted. 
 
 A highly liberal view of the extent of the powers of the court, 
 under a demand of this nature, has been held in some cases. Thus in 
 Martim, vs. Kamouse, 2 Abb., 390, it was considered as sufficient to 
 support an order for the addition of a new defendant, on a motion to 
 dissolve an injunction. In Boington vs. Lapham, 14 How., 360, an 
 order setting aside the complaint was so granted, on a motion to set 
 aside the summons for irregularity. 
 
 And in Fosdich vs. Groff, 22 How., 158, an order that the de- 
 fendant satisfy a demand admitted by the answer, was made on a 
 partial denial of the plaintiff's motion to strike out part of such an- 
 swer as false, and for judgment upon the remainder as frivolous. 
 
 The above cases are, however, somewhat exceptional in their 
 nature. The general rule is, that the further relief so granted must 
 be of a nature analogous, and not extrinsic, to that expressly asked for 
 in the motion. This rule is strictly stated in Shear vs. RaH, 3 How., 
 
INTEELOCTJTOET PEOCEEDINGS. — § 76. 365 
 
 74, antecedent, however, to the Code. In Mott vs. Burnett, 2 E. D. 
 Smith, 50, the striking out an entire answer was held not within such 
 a demand, on a motion to strike out parts of that answer. " The rehef 
 should not be of such a nature as the adverse party is not by the .no- 
 tice expressly called upon to oppose." ' The granting of a feigned issue 
 was, in like manner, held not to be "within the scope of further relief 
 on a motion to set aside a judgment. .Mann vs. Brooks, 7 How;, 
 449. Nor can judgment be directed, on a notice of motion asking only 
 for an order. Darrow vs. Meller, 5 How., 247 ; 3 C. K., 241. Nor 
 is leave to renew a motion, already decided legitimately, within the 
 scope of this demand. A new and substantive motion should be made. 
 Bellinger vs. Martindale, 8 How., 113. See below as'to costs. 
 
 8. If costs of the motion be intended to be asked for, they must be 
 demanded in terms. If not, they cannot be given, and the award of 
 them is not within the scope of a demand for further relief. Northrup 
 vs. Yan Dusen, 5 How., 134 ; 1 C. E., 140. If, on the other hand, 
 they be vexatiously demanded, it will be a reason for denying the mo- 
 tion with costs. Battershall vs. Davis, 23 How., 383. 
 
 They will not be awarded either, if the applicant asks more than he 
 is entitled to, or more than he essentially obtains. Allen vs. Allen, 14 
 How., 248 ; McKenzie vs. Eaclcstaff, 2 E. D. Smith, 75. 
 
 In Bates vs. James, 1 Duer, 668, it was held that a notice of motion, 
 once given, cannot be afterwards countermanded by the party who has 
 given it, so as to deprive his adversary of the right to attend on the 
 day specified, and have the application dismissed with costs. In prac-' 
 tice, however, this is rarely insisted on, when the countermand is made 
 in due time, and with good faith. 
 
 9. The notice must be signed by the attorney for the moving party, 
 or by the party himself, if he appears in person, and be addressed to 
 the adverse attorney or party, as the case may be. 
 
 A notice of an application to exonerate the sheriff as bail, signed by 
 a person neither an attorney nor a party to the action, and not a-uthen- 
 ticated, so as to apprize the plaintiff distinctly that the sheriff himself 
 was seeking relief, was held not to be sufiicient notice of a motion on 
 the sheriff's behalf, in Budkman vs. Carnley, 9 How., 180. 
 
 (5.) Obdee to show Oatjse. 
 
 Though assuming the technical form of an ex parte order, this pro- 
 ceeding is, in fact, but another form of notice of an adverse .application. 
 It possesses all the ordinary incidents of a notice of motion. The party 
 obtaining it is the moving party, and is, as such, entitled to open and 
 to close the argument on the return. Wew YorTc a/nd Harlem Railroad 
 C&mpamy vs. The Mayor of New York, 1 Hilt, 662. The form of an 
 
366 INTEELOCUTOEY PEOOEEDINGS. — § H6. 
 
 ordinary notice should, mutatis mutandis, be followed, in an order to 
 show cause, and all the different matters which, as stated in the last 
 division of this section, must necessarily appear on the face of the for- 
 mer, are equally necessary to be attended to in the latter, where adopt- 
 ed'. There is no distinction between the two in this respect, save only 
 as to signature and address. 
 
 This mode of proceeding is, in strictness, applicable to those cases 
 only in which it is desirable to bring on the motion on a notice shorter 
 than the usual period. Stringent restrictions are imposed upon the 
 practice, by rule 39, as recently revised, in accordance with the analo- 
 gous regulations previously imposed by the ISTew York Common Pleas 
 and by the Supreme Court in the second district, as cited or referred to 
 above, in section T2. 
 
 The exceptional nature of orders to show cause, and that they should 
 not be granted indiscriminately, especially when operating as a restraint 
 on the adverse party, is strictly laid down in Androvette vs. Bovins, 15 
 How., 75 ; 4 Abb., 440. 
 
 It has been a frequent practice to give notice in this form, where an 
 intermediate stay of proceedings was. considered desirable. Such object 
 can, however, equally be obtained by obtaining a separate order for a 
 stay, grounded on the ordinary notice, and serving it with the moving 
 papers. Care must, however, be taken under these circumstances, that 
 the stay so obtained is not couched in indefinite terms, so as possibly 
 to exceed the prescribed twenty days' period. A party taking an un- 
 reasonable stay by order of this description, does so at his peril. La 
 Farge vs. Yan Wagenen, 14 How., 54. 
 
 The course to be pursued on obtaining an order to show cause, is to 
 •present the moving affidavits and the proposed form of order to a judge 
 out of court. Those afiidavits must lay a proper foundation for the 
 motion, as in the case of an ordinary notice. They must show, in addi- 
 tion, some good special reason why a notice, less than eight days, 
 should be given ; and, likewise, the present condition of the action, 
 whether it is at issue, and, in the Supreme Court, the time appointed 
 for holding the next circuit in the county of venue. In the Common 
 Pleas, reason why, if so, the order is returnable on any other than the 
 first day of term, should also appear. 
 
 The return of the order, in a case pending in the Supreme Court, is 
 now specially provided for by rule 39. It must, in all the districts 
 except the first, be returnable only before the judge who grants it, or 
 at a special term appointed to be held in the district in' which such 
 judge resides. This rule somewhat qualifies the strict view previously 
 held in Merritt vs. Slocum, 6 How., 350, that no judge, out of court, 
 possessed the power of making such an order, returnable in court or out 
 
INTEELOCTJTOET PEOCEEDINGS. — § 77. 367 
 
 of court, before any jud^e^tlier than himself. See also Hasbrouck vs. 
 JEhrich, f Abb., 16. At present, however, such an order cannot be 
 obtained from a judge of any other district than that in which the 
 venue is laid, or from a county judge under any circumstances. 
 
 In the first district this regulation does not obtain, and an order to 
 show cause may there be made by one, returnable before another judge 
 of any of the courts in that district, either at special term or at 
 chambers. 
 
 An order to show cause, obtained before the suit is commenced, will 
 be wholly irregular, and cannot serve for the basis of a motion, ^at- 
 tenstrbth vs. The Astor Banh^ 2 Duer, 632. 
 
 This form of procedure is not allowable by way of shortening the 
 time on a motion for judgment on a frivolous pleading, under section 
 247. The party is entitled to the full period of notice prescribed by 
 that section. Lefferts vs. Snediker, 1 Abb., 41. 
 
 In relation to an order to show cause, obtained under the provisions 
 of the Revised Statutes, in certain cases of abatement of suit, see Wil- 
 Umnson vs. Moore, 5 Sandf., 647 ; see also infra, under head of Revvoor. 
 
 § 77. Other Papers a/nd Proceedvngs before Hea/ring. 
 
 As a general rule, motions, unless grounded simply on the pleadings, 
 or on the papers of the adverse party, attacked on the ground of irregu- 
 larity, are based either wholly or in part upon affidavit. 
 
 To enter into the essentials of the affidavits to be so used, would be 
 premature. Each application demands its own peculiar mode and 
 essentials of statement. Those essentials must, of course, be fully com- 
 plied with, and a clear title to the relief demanded shown upon the 
 moving papers. Any material deficiency in that showing will be fatal 
 to the apphcation. 
 
 {a.) Depositions on Motion. 
 
 The above observations are, of course, applicable to voluntary affi- 
 davits — the usual course of procedure in such cases. Provision is, 
 however, made by statute, for cases in which such an affidavit, though 
 necessary, cannot be voluntarily obtained. 
 
 An unwilling witness may be compelled to make a deposition for 
 such purpose, under the Eevised Statutes, as regards actions pending in 
 the Supreme Court, and under special statute, as regards the New 
 Tork Superior Court and Common Pleas. 
 
 The provision of the Eevised Statutes will be found at 2 E. S., 554, 
 sections 24, 25. They run as follows : 
 
 § 24. When there shall be any motion or other proceeding in the Supreme 
 
368 INTEKLOCUTOET PEOCEEDINGS. § 77. 
 
 Court, in which it shall be necessary for either party to have the deposition 
 of any witness, who shall have refused voluntarily to ■ make his deposition, 
 the court may direct a commission to be issued to one or more persons, 
 inhabitants of the county in which such witness resides, to take his testi- 
 mony. 
 
 § 25. Such witness may be subpoenaed to attend and testify before such 
 commissioners, in the same manner as before referees, and with the like 
 effect ; and obedience to such subpcena may be enforced in the same manner. 
 
 The statutory provision, in relation to similar proceedings, as regards 
 the Superior Court, is contained in section 3, chapter 276, of Laws of 
 1840, and runs thus : 
 
 When there shall be a motion or proceeding in the said Court, in which it 
 shall be necessary for either party to have the deposition of any witness, 
 who may be within the jurisdiction of said court, and who shall have refused 
 to make his deposition voluntarily, the said court may issue a summons, 
 requiring such witness to attend before a judge thereof, to make his said 
 deposition ; and obedience to such summons may be enforced, as in case of 
 , a subpoena issued by said court. 
 
 By section 4 of the same statute, the above powers are likewise given 
 to the New York Court of Common Pleas, in like manner, and to the 
 same extent, as to the Superior Court. 
 
 By the concluding sentence of section 401, as amended in 1862, pro- 
 vision is now made for taking an affidavit or deposition of this nature, 
 in all cases, before a referee ; and for compelling any person, who may 
 refuse, to attend and make the same before such referee, the same as 
 before a referee to whom it is referred to try an issue. 
 
 The same remedy is, therefore, obtainable in all the courts of higher 
 jurisdiction, though with some differences in form. In all those courts, 
 the motion must be grounded on an affidavit to the same effect, viz., 
 that the deposition is necessary, and that the witness has refused to 
 make it ; the fact- that such witness is within the jiirisdiction being 
 further superadded, when the application is in the Superior Court or 
 Common Pleas. The form of order to be applied for is, however, differ- 
 ent in the different jurisdictions, unless a reference be ordered, the ex- 
 amination taking place before a judge in the ISTew York tribunals, and 
 before special commissioners in the Supreme Court. In the latter a 
 subpcEua must be issued and served on the witness ; in the former the 
 order itself constitutes the process on which his attendance is compella- 
 ble. In both, the usual witness's fee ought, as a precaution, to be paid 
 to him at the time of service. The examination then proceeds in the 
 ordinary form of an examination " de lene esse," or of that of a party 
 before trial under the Code, and the deposition, when taken, may be 
 used on the motion, and should be filed in like manner. 
 
INTEELOCUTOEY I -.jOEEDLNGS. — § 77. 369 
 
 In Stake vs. Andre, 18 How., 159, it is held that there is nothing in 
 the Code or the Revised Statutes which authorizes the issuing of a 
 commission for the compulsory examination of the adverse party, for 
 the purposes of a motion. The Code, it was held, does not contemplate 
 such a power, for any other purpose than that of the trial of the cause. 
 See also Palmer vs. Adams, 22 How., 375, and Huelin vs. Kidner, 6 
 Abb., 19. As to the other tribunals above referred to, whether the 
 recent amendment, authorizing process to compel any person to attend, 
 for such purpose, before a refei'ee, the same as upon the trial of an 
 issue, does or does not modify this view, remains yet to be decided. 
 
 (J) Petitions. 
 
 A motion may also be founded upon a verified petition, either instead 
 of or in conjunction with an afiidavit. 
 
 Where the application is of a nature directly arising out of or col- 
 lateral to the ordinary proceedings in a suit, or where a provisional or 
 other remedy is sought to be obtained or enforced, under the provis- 
 ions of the Code itself, afiidavit will be the more usual form, and peti- 
 tion will, as a general rule, be inapplicable as the ground of a motion. 
 
 In cases of applications under a special statutory proceeding, inde- 
 pendent of an action, or where relief sought, auxiliary to a pending 
 suit, is of a direct and not of a collateral nature, and stands upon its 
 own distinct basis, independent of its connection with that suit, peti- 
 tion will often be the more proper form. 
 
 Proceedings for the appointment of a guardian ad litem, being pre- 
 liminary to and independeri^t of a suit, are accordingly more usually 
 taken by petition. So also, petition has been held the proper mode of 
 obtaining an order for representatives of a deceased plaintiff, to show 
 cause why suit should not stand revived in their names, or be dismissed 
 as far as their interests are concerned. Williamson vs. Moore, 5 Sandf., 
 647. It is doubtless the proper form of application for leave to bring an 
 action. See rule 77, as to commencement of a suit for partition of part of 
 a larger estate held in common, or for sale of an infant's real estate. 
 Me Boohhout, 21 Barb., 348. Likewise in applications for a com- 
 mission in lunacy, or in relation to the management of the property 
 of lunatics, &c., and in a number of analogous proceedings. It must 
 not, however, be prematurely presented. Vide In re Payn, 8 How., 
 220. 
 
 Petition is expressly prescribed as the proper form of procedure in 
 an application under section 237, as amended in 1859, for an order 
 that the sheriff sell any portions of property attached by him, which 
 may remain uncollected, after six months from the docketing of the 
 judgment in the same action. 
 
 Vol. I.— 24 
 
370 INTEELOCDTOET PEOCEEDINGB. — § 17. 
 
 The form and constituents of a petition remain as under the old 
 equity practice. The title of the cause, or a description of the mat- 
 ter in -which it is presented, should be prefixed. It must be duly 
 addressed to the court or officer applied to. After the preamble, 
 a statement of the facts on which relief is sought, succeeds, in the ordi- 
 nary form of allegation in a pleading or affidavit. It concludes with 
 a prayer for the relief sought, to which a general prayer for further or 
 other relief should be subjoined, as in the case of a notice of motion. 
 
 "Whenever practicable, the petition should be signed by the actual 
 petitioner. If not, then by some fully accredited agent, and the sig- 
 nature, in either case, must be attested by a witness. An affidavit of 
 verification must be subjoined by the party who signs. If made by an 
 agent, such affidavit must also give some good reason why he signs in- 
 stead of his principal, and explain the nature of his agency and the 
 extent of his knowledge, as in the case of a verification of a plead- 
 ing. An affidavit of the witness, proving the signature, must also be 
 added. 
 
 Thus signed and verified, the petition takes the place of an affidavit, 
 and must be served as such with the ordinary notice of motion, where 
 the application is opposed or opposable. Where the order is expa/rte, 
 and not adverse in its nature, this need not of course be done. 
 
 Whether filed or not, the petition should in all cases be annexed to, 
 and accompany, the order of the court or judge when made. See 
 rule 55 above cited, and hereafter considered, as to the form and entry 
 of such orders. 
 
 (c.) Seevice of Papees. 
 
 The notice of motion or order to show cause, and all papers whatso- 
 ever on which the order has been granted, or referred to in the notice, 
 with the different exceptions before specified, must in all cases be served 
 upon the adverse party, or parties, if more than one, in the usual man- 
 ner. See heretofore under the head of Service. The rule is, that with 
 the exceptions above alluded to, no paper, not served as above, can be 
 read upon the motion, as against a party omitted to be served with it, 
 and this rule will be strictly enforced. 
 
 It is the usual course to obtain an admission of such service. If re- 
 fused or not obtainable, that service must be proved by affidavit. The 
 admission or affidavit is usually, to save trouble, indorsed upon or an- 
 nexed to the original papers, referring to them accordingly, but of 
 course it may be made separately. Such a reference, and a clear iden- 
 tification of every paper served, is an indispensable part of such proof. 
 
 As a general rule, the moving papers must be served upon every party 
 who has been served or has appeared in the case, or is in any wise inter- 
 
INTEELOOUTOEY PEOCEEDESrOS. — § 78. 371 
 
 ested in tlie application. It would seem, however, that, as regards 
 parties wlio have been merely served with process, and have not appear- 
 ed, this rule will not be insisted upon. Thus, where two defendants had 
 been originally served with process, but neither had appeared, and one of 
 those defendants had subsequently removed from the state to parts xm- 
 known, it was held that service on the latter was not necessary, and an 
 order, obtained by service on the other, was sustained by the Court of 
 Appeals, in Suydam vs. Jlolden, Court of Appeals, 7 Oct., 1853 ; Seld., 
 Notes, No. 4, page 16. " After service of the first process upon the party, 
 it was simply a matter of practice whether any, and what, notice should 
 be given to him of any subsequent proceedings in the cause." 
 
 {d.) Motion Calendar. 
 
 In the first district, a regular calendar is made of contested and non- 
 enumerated motions, twice a month, pursuant to the rules of the 29th of 
 September, 1859, and the 29th of March, 1860, above referred to, and 
 they can only be brought on in their order, as they stand on that calendar. 
 
 For the purpose of placing it on such calendar, a note of the motion, 
 in the nature of a note of issue, must be filed with the clerk at chambers. 
 This note should contain the title of the cause, the names of the attorneys, 
 and an indication of the nature of the motion, in order to secure its 
 being placed in its proper order. As motions are placed and take their 
 number oh such motion calendar, and their precedence between each 
 other, from the actual filing of such note, it is advisable, to save delay 
 and its consequent inconvenience, that it should be done immediately 
 after notice has been served, and not deferred till a later day, or even a 
 later hour. 
 
 In other districts, and in the other courts in the first district, this rule 
 does not obtain, and all that is required is the attendance of the moving 
 party, on the day specified in his notice. 
 
 Appeals from orders, though strictly non-enumerated motions, must., 
 in the first and second districts, be placed on the general term calendar, 
 by a note of issue filed in the ordinary manner, and are then called in 
 their order, on the days appointed by rule 48. In the New York local 
 tribunals this is not necessary, but such motions are argued or submit- 
 ted on days specially appointed. 
 
 § 78. Opposed Motions — Continued. 
 
 (a) CouESE ON Hearing and Incidental Points. 
 
 The provisions of sections 404 and 27, under the former of which a 
 motion, noticed to be heard before a judge out of court, may, in the 
 event of his own absence or inability to hear it, be transferred by his 
 
372 INTEELOOUTOEY PEOOEEDIWGS. — § 78. 
 
 order to some other judge competent for that purpose; and under the 
 latter, a motion commenced before one judge in the first district, may 
 be continued before another, will not have escaped attention. 
 
 (5.) Default on Motion. 
 
 The taking of a default by the moving party is specially provided 
 for by rule 39, as above cited. He is entitled to take it, as of course, 
 on proof of due service of his moving papers, unless the court shall 
 otherwise direct. 
 
 The time at which such a default, or a default on the part of the ad- 
 verse party may be taken, varies, however, according to circumstances. 
 
 Defaults on appeal motions, in the first and second districts, and on 
 opposed motions, in the first district, can only be taken on the call of 
 such motion on the non-enumerated or motion calendar respectively. 
 The same will of course be the case elsewhere, whenever a motion 
 calendar is adopted, or motions are placed on the general calendar. 
 This rule equally applies to the moving as to the opposing party. 
 Special provision is however made, by rule 48, as to defaults on non- 
 enumerated motions, when taken by the latter. He is, as there pro- 
 vided, entitled to take his rule on the day for which' the motion is 
 noticed, at the close of that order of business. This rule would seem, 
 prvmd facie, to apply to general term business only. It is, however, 
 generally worded. 
 
 Where the time at which a default may be taken is not made the 
 subject of special regulation, the course to be pursued is as follows : 
 
 The usual practice of the courts is to wait for some short time, gen- 
 erally half an hour, before the order by default is granted, though this 
 accommodation to the absent party is not a matter of right but of cour- 
 tesy. At the expiration of that time, the matter is then mentioned to 
 the judge, the form of calling the opposite party (generally by the crier 
 of the court), is gone through, and, on his failing to appear, the order is 
 taken as of course, unless, as provided for by rule 39, the court shall 
 otherwise direct. This power the judge possesses under any circum- 
 stances, provided he consider the order applied for to be objectionable 
 in itself, or otherwise improper to be granted, either ^e^ se, or without 
 a reiterated notice to the opposite party. 
 
 In case of the failure of the counsel for the moving party to appear, 
 on the return of his motion, the opposing counsel will, after waiting 
 the usual time, be entitled to take an order dismissing the motion, and 
 usually with costs, the ceremony of a call and failm-e being gone, 
 through, as above noticed. 
 
 What the usual time for waiting may be, rests, of cpurse, entirely in 
 the discretion of the judge. At general term, it is clearly governed by 
 
INTERLOCUTOKY PEOOEEDIlSraS. — § '78. 373 
 
 rule 48, as above cited. Where there is a regular order of business 
 adopted, the same principle will doubtless be followed by the judge 
 holding special term, even if the rule itself do not apply. Such is the 
 case in the second district, where defaults in each of the ten classifica- 
 tions made by the rule above cited, are in order, immediately after the 
 making of motions under that class, and before passing on to the next. 
 
 If a default be applied for at the regular time, no affidavit will, be 
 requisite, the 'facts of attendance, on the one hand, and non-attendance, 
 on the other, being patent, and within the knowledge of the judge. 
 Should the application be delayed, and the motion to take such default, 
 on either side, be made on any subsequent day, it should be grounded 
 on an affidavit, proving the attendance on the one hand, and the non- 
 appearance on the other, at the time appointed. 
 
 With a view to an application of this nature, it seems equally essen- 
 ,tial, for the opposing as well as for the moving counsel, to be in attend- 
 ance at the precise hour appointed. If this precaution be omitted, 
 neither party can be assured but that his adversary may have been in 
 court during the period when he himself was absent, and that an appli- 
 cation to vacate any order he may take, may not be made and granted, 
 on proof of that fact. 
 
 The denial of a rnotion by default, taken as above, is no bar to its 
 renewal, on that default being duly excused. JBowman vs. Sheldon, 5 
 Sandf., 657 ; 10 L. O., 338. 
 
 A motion noticed for a specific day out of an appointed term, must 
 be brought on on that day only. The moving party, if he fail then to 
 attend, in consequence of the Icnown absence of the judge, cannot sub- 
 sequently take the default of his adversary. Vernovy vs. Tanney, 3 
 How., 359. The rule is otherwise, however, in the first district, where 
 motions are continually in order, and, if not heard on the day of notice, 
 stand over, as of course, until the next. Mathis vs. Vail, 10 How., 
 458. 
 
 It is essential, under rule 55, that the counsel who takes his adver- 
 sary's default, should endorse his name as counsel on the paper con- 
 taining the proof of notice. This should always be done at the time. 
 
 A motion which interferes with the power of the court in controlling 
 its own calendar, will not necessarily.be granted by default. Grain vs. 
 Rowley, 4 How., 79. This case was in the Court of Appeals, but there 
 can be no question that the other courts possess a similar discretion 
 under rule 39. 
 
 Nor can an order, void in itself, as exceeding the powers of the court 
 or judge, be sustained, even though so taken. Wilkinson vs. Tiffany, 4 
 Abb., 98. 
 
 But, where the order is otherwise regular, it will be sustained, even 
 
374 rNTEELOOUTOKT PEOOEEDIKGS. — § 78. 
 
 though a substantial excuse for postponement be subsequently offered. 
 It was the duty of the adverse party to appear and submit that excuse 
 at the time. Van Alstrand vs. House, 3 Abb., 226. 
 
 In the Superior Court, where several judges sit at the same time, the 
 party wishing to default his adversary must have him called in vaca- 
 tion, before the justice who sits at chambers on the day of return. In 
 terjn time, defaults can only be granted by the justice holding the special 
 term, in the room which he occupies for such business. Coib vs. Lackey, 
 4 Duer, 673 ; 12 How., 200 ; 2 Abb., 158. 
 
 (5.) CouESE OF Heaeing, wheke both Paeties appear. 
 
 A motion, when brought on in regular course, is heard and argued 
 in the usual manner ; the affidavits on both sides, or any other papers 
 or documents on which the motion is grounded, are first read ; after 
 which counsel are heard on both sides, in support, opposition, and re- 
 ply, as in other cases, the right to commence and close the argument 
 resting, of course, with the moving party. 
 
 The moving party, on opening his motion, can only read the affida- 
 vits and papers served with his notice or order to show cause, or those 
 previously served, and therein referred to. He cannot introduce evi- 
 dence, of his intention to rely on which he has not given due notice to 
 his adversary. 
 
 The party opposing the motion is entitled to use the papers served 
 by his adversary, or referred to in the notice, together with the plead- 
 ings and any previous proceedings in the action, and any papers pre- 
 viously served by him upon his adversary, which bear directly upon 
 the question at issue. He is also entitled to bring in, and to read on 
 the hearing, any affidavits which he may consider necessary, and may 
 have obtained, in order to rebut the case made by his adversary, or to 
 strengthen that made out by him in opposition, and likewise any ex- 
 hibits there referred to. 
 
 It has been held that it is competent for the judge who hears a mo- 
 tion to order a vivd voce examination. Barber vs. Case, 12 How., 351 ; 
 Meyer vs. Lent, 16 Barb., 538. The latter case is, however, reversed, 
 and the former necessarily overruled by the Court of Appeals. Meyer 
 vs. Lent, 1 Abb., 225. 
 
 When the opposer's case is closed, it is open to the moving party to 
 introduce counter-evidence, if he have any ; and his latitizde in this 
 last respect is clearly the same as that of his adversary. If the matter 
 in the affidavits in opposition show a state of things of which he was 
 not previously aware, it is competent for him to ask that the motion 
 may stand over, for some limited period, to enable him to bring evi- 
 dence in reply, and likewise that he be furnished with copies of the 
 
INTEELOCUTOET PEOCEEDINGS. — § 18. 375 
 
 opposing testimony ; and, if the case be of sufficient importance, and 
 the matter requiring to be rebutted is clearly new matter, the applica- 
 tion will, in all probability, be granted, and the above condition im- 
 posed. In general, however, the original statement and cOunter-state- 
 ment of the parties, suffices for the purposes of an ordinary motion, and 
 an adjournment for the above purpose is a matter of comparatively rare 
 occurrence. 
 
 The different cases in which motions of particular classes are en- 
 titled to precedence have been before adverted to, and the provisions 
 for that purpose cited under section Y2. 
 
 In the first district, a motion, not reached on the day for which it 
 was noticed, stands over, as of course, till the next, and so on till it is 
 disposed of Mathis vs. Vail, 10 How., 458. 
 
 It is, of course, competent for the parties, by stipulation, or for the 
 judge, by order, to adjourn the hearing of a motion to any other day 
 than that for which it is noticed, and so on, from time to time, either 
 before or when it is reached or brought on in its order. 
 
 In motions placed on the motion-calendar, in the first district, ex- 
 press provision has been made for such adjournment by consent filed 
 with the clerk, by the rule of the 29th of March, 1860, as above re- 
 ferred to. 
 
 On the argument of a contested motion, it is not unusual, where the 
 case is of sufficient importance, for the counsel on both sides to prepare 
 and submit written points and citations of authorities, as on any other 
 argument. The judge, if he so think fit, may, of course, take the 
 papers and reserve his decision, and usually does so in such cases. 
 
 A motion on the ground of irregularity, on which the practice of the 
 moving party is open to the same objection, is felo de se. NewcoTinb vs. 
 Heed, 14 How., 100. See also Sawyer vs. Schoomaker, 8 How., 198. 
 
 Whether affidavits, as to the mere credibility of a witness, should 
 ever be received on motion, has been held questionable. If -ever re- 
 ceived, it should be with an opportunity to the adverse party to pro- 
 duce counter-affidavits. Merritt vs. Baker, 11 How., 456. See gen- 
 erally, as to the privilege to a moving party to ask that the motion 
 stand over, for the purpose of obtaining affidavits, in rebuttal of new 
 matter alleged by his adversary, Schermerhorn vs. Yom Voast, 6 How., 
 458; 1 C. E. (K S.), 400. 
 
 In a case where the affidavits on a motion are not sufficiently definite 
 and certain, it is competent, and may be proper for the court to order a 
 reference to try the question raised. Meyer vs. Lent, 1 Abb., 225. 
 Although reversed on another point, the case below, as reported 16 
 Barb., 638, lays down the same doctrine. See also Barron vs. Sand- 
 ford, 14 How., 443 ; 6 Abb., 320 (note) ; Bemilt vs. Leona/rd, 19 
 
3T6 INTEELOCUTOEY PEOCEEDIWGS. § TS. 
 
 How., 140 ; 11 Abb., 252 ; Pendleton vs. Weed, IT IST. Y., 72 ; Kii^y 
 vs. Fitsfat/)4cTc, 18 E". Y., 484. See likewise, as to old equity suits, 
 Flagg vs. Munger, 3 Barb., 9 ; 2 C. E., 17. Steele vs. Palmer, 7 Abb., 
 181, recognizes the principle, but holds that the power should be cau- 
 tiously exercised by the court, and only in special cases, when the 
 judge himself cannot come to a satisfactory conclusion, upon the facts as 
 made out. 
 
 It is positively laid down in Meyer vs. Lent and Ba/rron vs. Sand- 
 ford, above cited, that on a reference of the above description, either 
 party is entitled to examine his opponent, as to the facts stated in the 
 aifidavits, and to produce other evidence. The decisions that such tes- 
 timony cannot be compelled for the pm-poses of a motion which have 
 be&n before cited, would seem to refer only to an examination ante- 
 cedent to, and for the purposes of the motion, before it is made. 
 
 The moving party must fully make out and prove his ease on the 
 hearing, or the application will be denied. Accessory Transit^ Gotn- 
 j>any vs. Ga/rrisen, 18 How., 1 ; 9 Abb., 141. 
 
 To be cognizable on the hearing, the ground of any objection taken 
 must distinctly appear on the moving papers, Hat-der vs. Harder, 26 
 Barb., 409 ; and it will be irregular to grant relief to an opposing 
 party, on matters ajjpearing on his papers, which the moving party has 
 had no opportunity to answer. Nor will the court allow such opposing 
 party to amend a defect in his proceedings, unless it can see that no 
 valid objection could be made to such amendment, on a motion speci- 
 fically directed to that end. Garde vs. Sheldon, 3 Barb., 232. 
 
 Defects in the moving papers will, however, be waived by an appear- 
 ance and omission to object. Main vs. Pope, 16 How., 271 ; and con- 
 tinued laches in making a motion may be held to bar the applicant's 
 right altogether. Bogardus vs. Livingston, 7 Abb., 428.' 
 
 A question, already decided by one justice of a district, sitting at 
 special term, should not be passed upon adversely by another, on a re- 
 newal of the same motion under leave given. The proper course is to 
 deny the renewed motion, to the end that the judgment of the general 
 term may be obtained. Peel vs. Elliott, 16 flow., 484. 
 
 Costs cannot be awarded to the moving party, if omitted to be asked 
 for in the notice of motion. Northrup vs. Van Dusen, 5 How., 134 ; 1 
 C. E., 140. Nor should they be so, when the applicant fails in part of 
 his application. Allen vs. Allen, 14 How., 248 ; Mackenzie vs. Eacl- 
 staff, 2 E. D. Smith, 75. 
 
 Under a recent amendment of section 315, costs can now be granted 
 to abide the event, according to the old practice. Before that amend- 
 ment this power, though frequently exercised, had been doubted. Vide 
 Johnston vs. Jillift, 7 How., 485. 
 
INTEELOOUTOET PEOCEEDINGS. — § 18. 377 
 
 Aud, where necessary, costs on a,n interlocutory proceeding may now 
 be adjusted by tbe clerk — section 311, amendment of 1862. 
 
 In the event of delay on the part of the court, in deciding on a mo- 
 tion, when argued, the moving'party will not be allowed to suffer, but 
 effect wUl be given to the decision, as of the time when the motion was 
 made. So held, and a judgment intermediately taken set aside, in Willson 
 vs. Henderson, 15 How., 90. See generally, Cramford vs. Wilson, 4 
 Barb., 504 (524), and cases cited. 
 
 An amendment of his pleading by the adverse party, subsequent to 
 notice served, will not deprive the mover of his right to bring on the 
 motion, on the merits, where any portion of the grounds of it are 
 equally applicable to the amended as to the original pleading. Toll 
 vs. Gromwdl, 12 How., 79. 
 
 (c?.) Inoidentajq PonsTTS. 
 
 The following are some of many decisions, which bear upon the sub- 
 ject of motions, generally considered, and for the consideration of which 
 the present juncture appears upon the whole the most appropriate. 
 
 Where a creditor's action had been brought, and the plaintiff' moved 
 in that suit to set aside certain sales under execution as irregular, and 
 also for an order directing the sheriff to retain unsold property, it was 
 held that the latter portion of the relief might be granted, but that the 
 former should be denied, in the motion so made. The application for 
 that purpose should have been in the action in which the executions 
 issued. Jackson vs. Sheldon, 9 Abb., 127. 
 
 After issue has been joined, motion is not the proper form for raising 
 objections which go to defeat the whole case of the adverse party. The 
 cause should be regularly tried in its proper order, and the party's 
 title to relief should not be otherwise passed upon. Banks vs. Maker, 
 2 Bosw., 690. In applications which do not go to the whole issue, mo- 
 tion is, on the contrary, the proper coiirse. See below, untler various 
 heads. 
 
 In Burnham vs. De Bevoise, 8 How., 159, it was held, however, that 
 an incurable defect in a complaint is not waived by pleading, but can be 
 taken advantage of by motion, at any time, in any stage of the action. 
 
 A motion must not be made prematurely. Thus, in divorce, a mo- 
 tion for almxonj, pendente lite, noticed before service of a copy of the 
 complaint, after demand, was adjourned, to give the defendant time to 
 put in his answer. Beese vs. Eeese, 2 C. E., 81. 
 
 So likewise with reference to an application to appoint a committee 
 of a Innatic, before a commission of lunacy has been issued and returned. 
 The court possess no jurisdiction to make such an order, however pres- 
 sing may be the circumstances. In re Payn, 8 How., 220. 
 
378 INTEELOCUTOEY PEOCEEDINGS. § 78, 
 
 So further with reference to a motion to strike a cause from the gen- 
 eral term calendar, noticed before the appellant's time to file his case after 
 settlement had expired. Donahue vs. Sides, 21 How., 438. 
 
 And, under certain circumstances, delay in making a motion will be 
 fatal. See above, as to motions to correct a pleading, the time for 
 making which is prescribed by rule 50. A motion to relieve a party 
 from a judgment taken against him, through mistake, surprise, or 
 neglect, must be made within one year, Code, section 174 ; and, gen- 
 erally, laches, if gross, will be fatal, or detrimental to the success of an 
 application in this form. Bogardus vs. Livingstorix 7 Abb., 428. See 
 also, St. John vs. Hart, 16 How., 192, as to a denial of amotion to dis- 
 continue, without payment of additional costs, incurred by the party's 
 delay to make it. See likewise, as to the denial of a motion to set aside 
 an irregular proceeding, on the ground of delay in the application. 
 Persse and BrooTcs Paper Works vs. Willett, 14 Abb., 119 ; Fea/rn vs. 
 QeVpoke, 13 Abb., 473, there referred to. 
 
 The court will not interfere on motion, in a matter within the discre- 
 tion of a referee, pending the reference, and before his report ; eveii 
 though the referee himself be desirous of obtaining the decision of the 
 court, on a point raised in the course of the proceedings. The parties 
 must wait for the report, and then review it in the usual mode. Scherm&r- 
 Iwrn vs. .Develin, 1 C. E., 13. See, also, Ayrault vs. Sackett, 17 How., 
 461 ; 9 Abb., 154, note. 
 
 When, however, the report has been made, and appears defective, the 
 court will then interfere on motion. Poke vs. Peek, 1 0. R., 54 ; Pem- 
 ing vs. Post, 1. C. E., 121. This proceeding is, however, only applica- 
 ble to the curing of formal defects, and not to the review of the con- 
 clusions come to, however erroneous they may be. See hereafter, under 
 the heads of Trial ly Referees, and Appeals. 
 
 The mere fact that, pending a motion to set aside a judgment on the 
 ground of Lfregularity, the defendant, in order to save his rights, served 
 a notice of appeal to the general term, was held not to be a waiver' of the 
 motion, in Clumpha vs. Whiting, 10 Abb., 448. 
 
 The powers of the court do not extend so far as to enable it to cor- 
 rect a final decree, regularly entered, though not enrolled, upon motion, 
 ex:cept on consent, or as to matters quite of course. It can only be 
 done by means of a rehearing, or, if the decree have been enrolled, by 
 bill of review. Picdbia vs. Evera/rd, 4 How., 113. Corrections may, 
 however, be made, as to provisions merely consequent on directions al- 
 ready given, such as, for instance, the correction of an insufficient notice 
 of sale in partition. Romaine vs. McMillen, 5 How., 318. 
 
 After an appeal has been taken, a motion cannot be made in the 
 court below, on matters directly pertaining to, and aifecting the appeal 
 
rNTERLOCtTTOEY PROOEEDINGS. — § IS. 379 
 
 itself. Valten vs. Nabional Loan Fund Life Assurance Society, 19 
 How., 515. But this restriction does not extend to matters in mere 
 correction of the record. See below, under the head of Appeals and 
 Ifew Trial. 
 
 In special statutory proceedings, where the mode of obtaining relief, 
 or the review of a decision, is made the subject of special provision, the 
 course pointed out must be prescribed, and the ordinary provisions of the 
 Code will not be applicable. Vide Ln re Albany Northern Railroad 
 Go. vs. Cramer, 7 How., 164 ; Vischer vs. The Hudson River Rail- 
 road Company, 15 Barb., 37 ; Welch vs. Cooh, 7 How., 282. 
 
 A doubtful question in mandamus will not be entertained on motion 
 to quash, but the mandamus will be allowed to go, that the matter 
 may come np in due form on the return. People vs. College of Phy- 
 sicians, 7 How., 290. 
 
 A motion clearly unnecessary, and irregular as such, should, it has 
 been held, be dismissed, instead of being denied. Bull vs. Melliss, 13 
 Abb., 241. 
 
 (e.) Renewal of Motion. 
 
 An application, once made and refused, or granted conditionally, can- 
 not be subsequently made, on the same state of facts, to another justice ; 
 and. if made, the order should be revoked. See rule 23, above cited. 
 
 The principle of this rule is fully carried out in Bellinger vs. Martin- 
 dale, 8 How., 113 ; Mills vs. Thursby (ISTo. ^), 11 How., 114 ; and 
 How vs. Frear, 13 Abb., 241, note ; 21 How., 343. 
 
 It may be renewed, however, by leave of the court, whenever 
 granted. 
 
 To obtain that leave, all necessary facts should appear. Bellinger 
 vs. Martindale, supra. The existence of new matter, which has oc- 
 curred or come to the knowledge of the moving party since the 
 decision of the former motion, should be shown. Willet vs. Fayer- 
 weather 1 Barb., 72. Matter known to him at the time of the first, 
 but not stated, cannot be made the ground of a second application. 
 The applicant must disprove laches. Vide Cazneau vs. Bryant, 6 Duer, 
 668 ; 4 Abb., 402 ; Pattison vs. Bacon, 21 How., 478 ; 12 Abb., 142. 
 
 In the event of such an application, the applicant must state in his 
 affidavit, the fact of the previous application. See rule 23. 
 
 The denial of a motion, on the default of the moving party, is no 
 bar to its renewal, if that default be sufficiently excused. Bowman vs. 
 Sheldon, 5 Sandf., 657 ; 10 L. O., 338. 
 
 The decision of a motion is never regarded in the light of " res adju- 
 dicata,^'' although, as a matter of orderly practice, the court will not 
 usually .allow a motion, once made and decided, to be renewed on the 
 
380 nSTTERLOCtlTOBT PROCEEDINGS. § 79. 
 
 same facts, nor upon additional facts, without leave first obtained. 
 Snyder vs. White, 6 How., 321. 
 
 See, however, as to the decision of the judge on a previous motion 
 being conclusive, so far as controverted questions of fact are concerned, 
 STiinner vs. Oettmger, 14 Abb., 109. 
 
 A rehearing of a motion may sometimes be granted on the same 
 papers, but only on special occasions, and to prevent a failure of justice, 
 as with reference to an unappealable order. White vs. Monroe, 33 
 Barb., 650 ; 12 Abb., 35Y. 
 
 See, as to the impropriety of one justice of a district passing, at 
 special term, on a renewed motion, on a point previously decided on the 
 original hearing. Peel vs. Elliott, 16 How., 484. 
 
 The subjeot of the costs of a motion, and when they should or should 
 not be awarded, will be found discussed in book XI'Y., section 338, 
 under the head of Costs of Motion. 
 
 § 79. Orders. 
 
 (a.) General Remarks. 
 
 The decision of the court or judge on a motion, whether ex parte or 
 opposed, is, when pronounced, carried into effect by means of an order. 
 An order is thus defined, by section 400, above cited : 
 
 Every directioti of a court or judge, made or entered in writing, and not 
 included in a judgment, i* denominated an order. 
 
 The above definition is so wide as to be clearly applicable to every 
 proceeding, in which interlocutory action is taken by the court or 
 judge, on application of the party. A warrant of attachment has 
 accordingly been held to be clearly within it, in Gonklin vs. Butcher, 
 6 How., 386; 1 C. E. (IST. S.), 49; and Bmik of Lansingbm-gh vs. 
 McKie, 7 How., 360. 
 
 The distinction between an order and a judgment is so broad, that, 
 in ordinary cases, there is little risk of the one being confounded with 
 the otlier. This distinction is laid down in Bentley vs. Jones, 4 How., 
 335 ; 3 C. E., 37, in the following terms : " An order is the decision of 
 a motion. A judgment is the decision of a trial." 
 
 In a certain class of cases, however, in relation to decisions upon de- 
 murrers, or in respect of a frivolous pleading, the limits approach more 
 closely, and have given rise to some discussion, which will be hereafter 
 considered, under the heads of the proceedings in question. 
 
 An order made by an officer having jurisdiction in the premises, 
 however irregular it may appear to be, cannot be disregarded or treated 
 as a nullity ; the only course will be to move to vacate or set it aside. 
 
ENTERLOOUTOKY PEOCEEDINGS. — § 19. 381 
 
 See Blackmar vs. Tom Inwager, 5 How., 367 ; 1 0. R. (N. S.), 80 ; 
 Hem^pstmd vs. Ileinpstead,^^ How., 8 ; ijeller vs. Soyt, Y Plow., 265. 
 See also The Arctic Fire Insurance Company vs. Hides, 1 Abb., 204. 
 An order returnable on a Sunday is, however, there held to be a nullity. 
 An order, duly made, binds all parties to the suit who have been 
 properly served. It is not, however, it would seem, conclusive upon a 
 person not a party, even though he appear by counsel to oppose. See 
 Acker vs. Zedyard, 8 Barb., 514. 
 
 (5.) FoEM OF Oedee. 
 
 In drawing up an order upon an opposed motion, the following rules 
 must be observed : 
 
 1. When made at a special or general term, an express reference to 
 such term, the time- and place at which it is held, and the name or 
 names of the judge or judges holding it, must be prefixed, prior to, or in 
 connection with, the title of the cause. On a mere chamber order this 
 is not necessary. See, however, In re The Knicherioeher BanTc, 19 
 Barb., 602 ; Dresser vs. Van Pelt, 6 Duer, 687 ; 15 How., 19 ; and 
 CaldweWs case, 35 Barb., 444 ; 13 Abb., 405, as to a mistake in this 
 respect not being a fatal error. 
 
 2. The title of the cause should be correctly given. 
 
 3. A reference must be made to the papers read, identifying them. 
 See especially rule 56, as to the mode of such reference to a petition, 
 when the order is so granted. 
 
 4. The fact that counsel have been heard should be stated, where such 
 is the case. Where the order is taken by default, the fact that the ad- 
 verse party was called and did not appear, shoilld be similarly alleged. 
 The proof of service must| also be indorsed with the name of the moving 
 counsel — rule 55. 
 
 5. Then follows the actual order. When taken by default, it should 
 be couched in the precise terms of the notice, or petition, " mutates rrvw- 
 tandis." If the motion is granted as made, the same rule should be 
 observed. If the court vary its terms or make any other directions, 
 that variance and those directions must be strictly followed. 
 
 On ex parte applications, the order will of course be prepared before- 
 hand. On contested motions, where it is likely to be granted as moved 
 for, this will often be a convenient practice, as it can then be handed 
 in at once to the judge, either for his signature at the time, or after- 
 wards, if he defer his decision. 
 
 If the decision varies from the notice, the order will have to be set- 
 tled, after the decision is pronounced. Where the counsel on both |ldes 
 are in court, this is usually done at once, and the terms of the order, 
 when settled between them, are submitted to the judge forthwith, while 
 
382 INTEELOCUTORY PEOCEEDINGS. — § 19. 
 
 the subject is fresh in his memory. Where, on the contrary, that deci- 
 sion is deferred, and subsequently delivered, in the absence of the coun- 
 sel or either of them, the prevailing party then draws up the form of 
 order, and usually submits it to the opposite counsel, before applying 
 to the judge for his signature. In the first district of the Supreme 
 Court, it is expressly prescribed that an order on a litigated motion 
 shall not be entered, except on consent, or at least one day's notice to 
 the opposite party. See rule of the 2Yth of May, 1857, before cited. 
 
 If, when an order is so submitted, the opposite counsel approves of 
 it, either as drawn, or with alterations, it is usual for him to subjoin a 
 consent to its entry, or to add his approval in the margin. The order, 
 as so approved, can then be handed in to the judge for signature, and 
 entered. 
 
 Should there be any question on the terms of the document drawn 
 up, or should the moving party merely serve notice of settlement, with- 
 out submitting any form, the parties then attend before the judge who 
 heard the application, in order that he may finally decide on the exact 
 form of entry. In such cases, it is a frequent practice for the counsel 
 on each side to prepare the forms for which they contend, and after, or 
 in connection with their argument, to present them, to the judge for 
 settlement, or for election between them. The latter, at the time, or 
 subsequently, if he takes the papers under advisement, adopts one of 
 the forms, either as it stands, or as altered by him, or draws up and 
 signs his own order, and then either forwards the papers to the moving 
 party, or lodges them with the clerk, who communicates the decision 
 generally by posting up a notice of it at his ofiice, or the chambers of the 
 court. When so signed, that order may, of course, be entered by the 
 prevailing party without further preliminary. 
 
 The above is the course usually pursued in the first district, and, 
 wherever feasible, will be found the most convenient. It is not, how- 
 ever, imperative. In the others it is a frequent, and, indeed, the usual 
 practice for the judge, on returning the papers to the clerk, to indorse 
 upon or subjoin to them a mere note of his decision, without settling 
 or signing the form of the" order. '■[ 
 
 It is also not unusual for the judge, sitting at special term, merely to 
 announce his decision to the clerk, when he gives it at the time of the 
 hearing, and for the latter to record it, as delivered, upon his minutes. 
 
 In either of the foregoing cases, the clerk himself subsequently enters 
 the proper order, on application of the prevailing party, without settle- 
 ment or signature by the judge. Should any difficulty arise as to its 
 exact terms, communication must be again had with the judge, and it 
 will then be a convenient practice to transmit to him, with such com- 
 munication, a form for his settlement and signature. 
 
IISTTEELOCTITOET PBOCEEDINGS. — § Y9. 383 
 
 When tlie order is made at chambers, the usual course is for the judge 
 to sign his name at the foot of it. "Where, however, it is made at spe- 
 cial term, or is otherwise of such a nature as to require entry with the 
 clerk, the practice, when a form is submitted, is for him to indorse upon, 
 or subjoin to the document a direction for the clerk to enter it, and 
 which constitutes the latter's authority for that purpose. 
 
 On expa/rte applications, the order may be either drawn up in the 
 above manner, or appended at the close of the moving papers. It must 
 then be submitted to the judge for his signature. Tlie same is the case 
 as regards the preparation of an order by consent. 
 
 (c.) Entey of Oedee. 
 
 "When made at special term, the order must in all cases be entered 
 with the clerk. The same course should be pursued with chamber 
 orders also, whenever they are made upon notice, or are opposable in 
 their nature, as granting relief against an adverse party. Mere exten- 
 sions of time or ex parte orders, not of the above description, need not 
 be entered at all, as before noticed. 
 
 Section 466 defines clearly the clerk with whom such entry is to be 
 made. He is " the clerk of the court where the action is pending, and, 
 in the Supreme Court, the clerk of the county mentioned in the title of 
 the complaint, or of another county to whifth the court may have 
 changed the place of trial ;" the clerk, in short, of the county of venue 
 for the time being, in whose office all papers should be filed. See this 
 subject fully treated, and the decisions in point cited, under the head of 
 FiUng Papers, in the present book, section 67. 
 
 An order extraneous to the regular course of the suit, as, for instance, 
 in supplementary proceedings, though made in another district, should 
 be entered in that in which the venue is laid. OouU vs. Torrance, 19 
 How., 560. 
 
 The entry of an order, when requisite, is now made imperative, by 
 rule 3, as amended upon the last revision, and the course to be pursued 
 when the order is to be entered in a different county from that in which 
 the motion is made, is clearly prescribed. See that rule as cited in 
 extenso in section 67, as above. See also, as to the previous practice in 
 this respect. Savage vs. Belyea, 3 How., 276 ; 1 0. K., 42, there cited. 
 
 "Where an order affects a stay of proceedings, it has been held that the 
 entry of it under this rule is imperative, and will be strictly enforced. 
 Sage vs. Mosher, 17 How., 367. The filing, which is in fact equivalent 
 to the entry of orders for service by publication, or substituted service, 
 is likewise positively enjoined by rule 4, cited above in the same sec- 
 tion. Orders by consent must also be entered, or they will not be bind- 
 ing. (Eulel3;) 
 
384 INTEELOCUTORY PKOCEEDIKGS. — § 79. 
 
 In those cases in which, as abore noticed, the judge merely commu- 
 nicates his decision, and does not himself sign the form of order, the 
 usual course is for the prevailing party to prepare and submit to the 
 clerk the form he proposes to enter. That form must, of course, be in 
 exact conformity with, and must, where practicable, follow the exact 
 wording of the decision as communicated. The authority of the clerk 
 is of necessity restricted, and it is of course wholly incompetent for 
 him to make any variation whatever from that decision, in matter of 
 substance. 
 
 It is also not uufrequent for a judge, on deciding a motion, to return 
 the papers, with a note of his decision, to the prevailing party, instead of 
 to the clerk. In this case the same practice may be pursued, the note 
 of decision, when filed, being equally efficient as an authority to the 
 clerk to make the necessary entry, whether he receive it direct from the 
 judge, or through the medium of the party. The party, in such case, 
 prepares the form of order, and either submits or transmits it to the 
 clerk, accompanied by the decision and papers, according to circum- 
 stances. 
 
 The practice is similar, in relation to orders entered by consent. The 
 form of order is prepared, and either subjoined or annexed to the con- 
 sent, and filed with it. In the first district, the consent and order must, 
 with the exceptions below noticed, be submitted to a judge, and his sig- 
 nature obtained, before entry. In the others, the clerk may enter the 
 order at once, without the judge's signature, on the consent being' pro- 
 duced and filed. The same practice is now also pursued in the first 
 district, as regards orders for discontinuance, or substitution of an attor- 
 ney. See rule of the 29th of September, 1859, above cited. In other 
 cases, the practice remains as heretofore. 
 
 A consent signed by the attorneys or counsel in the cause requires no 
 proof, the judge or clerk taking judicial notice of their signatures. It 
 signed by a party, as such, an affidavit identifying his signature must 
 be annexed. The consent must, of course, be signed by all parties to 
 the .suit, or all afi'ected by the order, or it cannot be entered. 
 
 The entry of an order, of course, declaring a case and exceptions 
 abandoned, on filing affidavit, showing a default in filing the same for 
 ten days after settlement, pursuant to the provisions of rule 37, would 
 seem also to be within the powers of the clerk. Where practicable 
 the signature of the judge had, however, better be obtained. 
 
 The filing of the papers upon which an order is based, or has been 
 granted, or opposed, in connection with its entry, is also substantially 
 imperative in its nature. It is clearly implied by the terms of rule 3, 
 and made obligatory in various cases by rule 4. In the Superior Court, 
 the clerk is expressly directed not to enter any order, unless this prac- 
 
rNTEELOCTJTOEY PEOCEEDINGS. — § 79, 385 
 
 tice is strictly complied witli. See rule of the 11th of April, 1857, 
 above cited. 
 
 The same rule also expressly directs that the order, when entered, shall 
 specify such papers, and the same praqtice should be pursued in the 
 other tribunals. See also rule 56, as to the mode of specification of the 
 effect of a petition, in an order grounded upon that form of proceeding. 
 
 In the event of any neglect or dereliction of the moving party, either 
 in the entry of his order, when obtained, or the filing of the papers in 
 connection with it as above, his adversary may compel him to do so by 
 application to the court. An order made at special term is, in fact, of 
 no validity, until its entry. As regards chamber orders, express power 
 is given by section 350, to compel that entry for the purposes of an ap- 
 peal. The course to be pursued in this case, is to serve a requisition to 
 that effect on the adverse party, and, if he neglect to do so, to apply, to 
 the court, on. proof gf service of such requisition, and that it has not 
 been complied with. The section being imperative, the order to com- 
 pel such entry will be an order of course, and may, therefore, be ob- 
 tained ex parts. In the event of continued non-compliance, a motion to 
 vacate would probably be the proper course. As to the necessity of the 
 entry of an order, of whatever nature, before an appeal can be taken 
 therefrom, vide Nicholson vs. Dunha/m, 1 0. E.., 119 ; Smith vs. 
 Bodd, 2 E. D. Smith, 215 ; Marshall vs. Francisco, 10 How., 147 ; 
 JPeet vs. Cowenhoven, 14 Abb., 56. 
 
 If, after an order has been settled, a resettlement be directed, and the 
 order is then modified, it must be re-entered, and a second copy served. 
 Bowman vs. JEarle, 3 Duer, 691. 
 
 As to the power of the c'ourt to order the entry of an order 'ti-wwc pro 
 tunc, in a case calling for that form of relief, vide Willson vs. Hender- 
 son, 15 How., 90. 
 
 And, in a proper case, an amendment of an order may be prescribed, 
 as a condition upon the granting of ulterior relief. Mallory vs. Cla/rTc, 
 9 Abb., 358 ; 20 How., 418. 
 
 If, on the contrary, an order be improperly entered, it may be stricken 
 out and vacated on motion. See Bedell vs. Powell, 3 C. E., 61. 
 
 An order or judgment directing the payment of money, or affecting 
 the title to property, may, if granted on petition only, and not in a 
 regular suit, be enrolled and docketed as other judgments, under the 
 special authority conferred by rule 56. 
 
 Where an order is granted on terms for the benefit of the adverse 
 party, that party must either accept or abandon the order.m ioto. If 
 he avails himself of the terms, his right to maintain an appeal from it 
 Will be lost. Peel vs. EMott, 16 How., 483 ; Nolle vs. Prescott, 4 E. 
 D. Smith, 139. 
 
 YoL.L— 25 
 
386 INTEBLOCUTOET PEOCEEDINaS. — § 79. 
 
 "Where a stay of proceedings, originally granted until the decision of 
 the motion, is continued by the order made upon it, any proceedings 
 taken after the decision, and before the entry of the order, will be irreg- 
 ular. Warren vs. Wendell^ 13 Abb., 187. 
 
 "Where, after the decision of a motion, but before the entry of the 
 order, the suit becomes abated, the entry cannot be perfected until after 
 it has been duly revived. Reed vs. Butler, 11 Abb., 128. 
 
 "Where an order, made at chambers^ is erroneously entitled at special 
 term, that mere fact will not necessitate its entry, if not otherwise 
 requisite. OaldweWs case, 35 Barb., 444 ; 13 Abb., 405. 
 
 Appeals from orders and their incidents, will be considered hereafter 
 under the appropriate head. 
 
 {d.) OEETirrED Copt. 
 
 The order having been duly entered, and the papers on which it was 
 granted duly filed, a certified copy should be obtained from the clerk 
 of the court. His fee on such copy is the usual payment of five cents 
 per folio, and may be charged as a disbursement. It is an usual prac- 
 tice to prepare the copy and examine it with the clerk, paying him the 
 fee. This will be found a convenient method, where dispatch is an ob- 
 ject, though, of course, it is not incumbent on the party to do so, but 
 the clerk is, on the contrary, bound to furnish the copy, on payment of 
 the fees. 
 
 {e.) Service of. 
 
 The order being thus entered, and a certified copy obtained, a copy 
 of the latter should be served on the opposite party, with a formal no- 
 tice indorsed, to the eff'ect that it is a copy of the order so made. The 
 same is the case, with reference to orders made out of court and not en- 
 tered with the clerk, copies of which should be served in like manner, 
 accompanied, where necessary, with copies of the afiidavits or papers 
 on which they were granted, as before noticed. This service should, 
 in all cases, be made at once, and should never be neglected or 
 deferred, for the obvious reason, that the time within which an appeal 
 may be taken by the adverse party, runs (under section 332) from the 
 date of written notice only, without reference to that of the making or 
 entry of the order itself; and, if that precaution be neglected, the time 
 for taking such an appeal will be indefinitely postponed. See as to the 
 necessity, for this purpose, of making a renewed service of an order, 
 which has been resettled after entry, Bowmam, vs. Earle, 3 Duer, 691, 
 swpra. 
 
 By section 348, as amended in 1862, service of notice of the order or 
 judgment affirming a judgment appealed from, is made a condition 
 
INTEELOCUTOET PEOCEEDINGS. — § 79. 387 
 
 precedent to the commencement of an action upon the undertaking 
 given on the part of the appellant. 
 
 It would seem from the case of Hempstead vs. HempsUadi, 7 How., 
 8, that an omission to serve the whole of the papers necessary to be 
 served with. an order, though an irregularity, does not render the pro- 
 ceeding absolutely void and inoperative, until set aside on a proper 
 application. 
 
 As to the mode of service, when made, see heretofore under section 
 66. The provisions of section 418, to the effect that service of a paper 
 tending to bring a party into contempt, must be personal, must, of 
 course, be borne in mind, as regards orders having that tendency. 
 
 {f.) Peefoemance of Conditions. 
 
 Under rule 57 as above cited, a party is allowed twenty days for 
 payment of costs or performance of any condition, if imposed, unless 
 otherwise directed. Where costs to be adjusted are to be paid, fifteen 
 days are allowed for payment after the adjustment. 
 
 In Sturtevant vs. Fairman^ 4 Sandf., 674, it was held that, where an 
 order requires a party to amend, or the like, and directs him to pay 
 costs ; the payment of those costs is not a condition precedent to the 
 act required, unless a special provision to that effect be made, or neces- 
 sarily implied in the order. 
 
 Where an order opening a default, imposed terms that a stipulation 
 should be made, which, it appeared, could not be performed, it was 
 held that the party could not appeal from the order on that ground ; 
 that his proper course would have been to give the stipulation ; and 
 that if, by reason of facts beyond his control, he could not afterwards 
 comply with it, he should then set up such facts, in answer to the mo- 
 tion founded on his omission to comply. Oale vs. Vernon, 4 Sandf, 
 709. The appeal in that case was accordingly dismissed, and a judg- 
 ment for non-suit, granted in consequence of the omission to stipulate 
 under these circumstances, sustained. 
 
 {g.) Enfoecement of Oedees. 
 
 This subject, both as regards the recovery of costs, and also the mode 
 of compelling the performance of an act directed to be done, by process 
 of contempt, will be hereafter considered under the head of Execution. 
 
 As to the power of giving to an order, made on petition, the effect of 
 a judgment, in certain cases, see rule 56, as above cited and referred to. 
 
 Qi.) Keveew ok Vacateng of Oedees. 
 The questions as to the review of ordei's, will be likewise fully con- 
 sidered under the head of Appeals. Ex parte orders may be vacated 
 or modified, without notice, by the judge who made them ; or by the 
 
388 INTERLOCUTOET PEOCEEDIlirGS. § 79. 
 
 same, or any other judge, on notice, in the usual manner. (See Code, 
 § 324.) Orders of any nature may be set aside for irregularity, on a 
 regular application. An order may be revoked, under rule 23, if un- 
 duly obtained, by means of a second application, on the same state of 
 facts on which a preyious motion has been refused. A revocation of a 
 stay of proceedings, on a motion to change the venue, may also be ob- 
 tainable as of right, on taking the measures for that purpose, prescribed 
 by rule 58. 
 
 The following decisions relate fo the power given by section 324 : 
 
 The application, to vacate or modify, when made to the judge who 
 granted the order, may be ex parte, nor is there any thing in the section 
 which restricts it to the moving party. In a proper case, calling for 
 immediate interference, his adversary may apply. As a general rule, 
 however, the latter will b^ left to his motion in the usual course. See, 
 as to the general scope of the section, Cayuga County Bank vs. War- 
 field, 13 How., 439. 
 
 The power of the judge to vacate an injunction order, even when 
 granted by himself, is denied in Mills vs. Thursby, 1 C. E., 121, on the 
 ground that the case is governed by section 225. In Bruce vs. Dela- 
 ware amd Hudson Carnal Compam,y, 8 How., 440, the existence of that 
 power is maintained, though it is held not to be the better practice,- and 
 that it should never be done, except in a case of urgency, for the pre- 
 vention of immediate injury. 
 
 A motion to vacate, on notice, may be made at once, without any 
 necessity of a previous application to the judge who granted the order. 
 Lindsay vs. Sherman, 5 How., 308 ; 1 C. E. (IST. S.), 25 ; Blake vs. 
 Locey, 6 How., 108 ; 1 C. E. (K S.), 406. 
 
 The section does not apply to an order obtained upon notice to the 
 adverse party, though made out of court ; the course in such a case is to 
 procure its entry, if necessary, under section 350, and to appeal. Follett 
 vs. Weed, 3 How., 360 ; 1 C. E., 65. 
 
 It has been held that, where an allowance has been irregularly 
 granted, the party aggrieved may either appeal, or move to vacate under 
 this section. Wilkinson vs. Tiffam/y, 4 Abb., 98. 
 
 But so far as such allowance rests in discretion, it will not be re- 
 viewed on such a motion, nor, as a general rule, will any question, as to 
 the exercise of discretion by a judge, be so entertained. See Dresser vs. 
 Jennings, 3 Abb., 240 ; Lapeous vs. Ea/rt, 9 How., 541 ; or any ob- 
 jection on a mere point of form, not involving the merits. Vide Main 
 vs. Pope, 16 How., 271. 
 
 An application to one judge to modify the order of another,as to the 
 imposition of terms, was held not to be improper, in Selden vs. Chris- 
 topher, 1 Abb., 272. 
 
INTEELOCITTOEY PEOCEEDINGS. — § 79. 389 
 
 But, as a general rule, it wiU not be proper to apply to one judge, on 
 motion, to review tlie order of another. See Ryle vs. Harrington, 14 
 How., 59 ; 4 Abb., 421 ; Bangs vs. Selden, 13 How., 163. See, how- 
 ever, that course taken, where an order, made in the first district, in an 
 action triable elsewhere, was claimed to be void. Harris vs. Clarh, 10 
 How., 415. 
 
BOOK Y. 
 
 OF PKOVISIONAL REMEDIES. 
 
 This class of proceedings forms the subject of a separate division of 
 tlie Code, title YII., part II., and, for obvious reasons, will be most 
 conveniently treated, in connection with the subject of interlocutory 
 applications. Four out of the five principal remedies so provided are 
 usually, though not necessarily applied for, at the outset of the suit, 
 when commenced, and all are extrinsic to the regular determination of 
 the controversy between the parties, and adoptable or not at the discre- 
 tion of the mover. 
 
 The subjects of the present and of the preceding book are, therefore, 
 to a certain degree, parenthetical. After much consideration, the au- 
 thor has adhered to the arrangement adopted by him in his second 
 edition, of introducing them, as such, at a stage immediately conse- 
 quent upon the inception of a regular suit, before passing on to the 
 consideration of the pleadings and proceedings in such suit, when 
 commenced. 
 
 CHAPTER I. 
 
 AKEEST AND BAIL. 
 
 § 80. Statutory cmd otli&r- Provisions. 
 
 Tms remedy forms the subject of chapter I., title VII., part II. of 
 the Code, running as follows : 
 
 Chaptbe I. 
 
 Arrest and Bail. 
 
 § irs. (153.) No person shall be arrested in a civil action, except as pre- 
 scribed by this act ; but this provision shall not affect the act to abolish im- 
 
AEEJEST AND BAIJ.. — § 80. 391 
 
 prisoument for debt, and to punish fraudulent debtors, passed April 26tb, 
 1831, oi> any act amending the same, nor shall it apply to proceedings for 
 contempts. 
 
 § "ITO. (154.) The defendant maybe arrested, as hereinafter prescribed, in 
 the following cases : 
 
 1. In an action for the recovery of damages, on a cause of action not 
 arising out of contract, where the defendant is not a resident of the State, or 
 IS about to remove therefrom, or where the action is for an injury to person 
 or character, or for injuring, or for wrongfully taking, detaining, or convert- 
 ing property. 
 
 2. In an action for a fine or penalty, or on a promise to marry, or for 
 money received, or property embezzled or fraudulently misappHed, by a 
 public ofiicer, or by an attorney, solicitor, or counsellor, or by an officer or 
 agent of a corporation, or banking association, in the course of his employ- 
 ment as such, or by any factor, agent, broker, or other person in a fiduciary 
 capacity, or for any misconduct or neglect in office, or in a professional 
 employment. 
 
 3. In an action to recover the possession of personal property unjustly 
 detained, where the property or any part thereof has been concealed, 
 removed or disposed of, so that it cannot be found or taken by the sheriff, 
 and with the intent that it should not be so found, or taken, or with the in- 
 tent to deprive the plaintiff of the benefit thereof. 
 
 4. When the defendant has been guilty of a fraud, in contracting the debt, 
 or incurring the obligation for which the action is brought,, or m concealing 
 or disposing of the property, for the taking, detention, or conversion of 
 which the action is brought. 
 
 5. When the defendant has removed, or disposed of his property, or is 
 about to do so, with intent to defraud his creditors. 
 
 But no feihale shall be arrested, in any action, except for a wilful injury to 
 person, character, or property. 
 The form of this section, as it stands, was fixed on the amendment of 1851. 
 In 1848 it was less comprehensive, sections 4 and 5 being wholly omitted. 
 In 1849 they were added, and the scope generally extended by amendment. 
 
 § 180. (155.) An order for the arrest of the defendant must be obtained 
 from a judge of the court in which the action is brought, or from a county 
 judge. 
 
 § 181. (156.) The order may be made, when it shall appear to the judge 
 by the affidavit of the plaintiff, or of any other person, that a sufficient cause • 
 of action exists, and that the case is one of those mentioned in section 179. 
 
 The provisions of this chapter shall apply to all actions included within 
 the provisions of section 1V9, which shall have been commenced since the 
 30th day of June, 1 848, and in which judgment shall not have been obtained. 
 
 Dates, as it stands, from 1849. In 1848 it consisted of the first sentence only, with some 
 verbal differences, restricting the power as now conferred. 
 
 § 182. (157.) Before making the order, the judge shall require a written 
 
392 AKEEST XKT> BAIL. — § 80. 
 
 undertaking on the part of the plaintiff, with or without sureties, to the 
 effect, that if the defendant recover judgment, the plaintiff will pajf all costs 
 that may he awarded to the defendant, and all damages which he may sus- 
 tain by reason of the arrest, not exceeding the sum specified in the under- 
 taking, which shall be at least one hundred dollars. If the undertaking be 
 executed by the plaintiff, without sureties, he shaU annex thereto an affida- 
 vit that he is a resident and householder or freeholder within the State, and 
 worth double the sum specified in the undertaking, over aU his debts and 
 liabilities. 
 
 Dates from 1849. In 1848 the undertakiag was to be for $250. 
 
 § 183. (158.) The order may be made to accompany the summons, or at 
 any time afterward, before judgment. It shall require the sheriff of the 
 county where the defendant may be found, forthwith to arrest him and hold 
 him to bail in a specified sum, and to return the order at the time and place 
 therein mentioned, to the plaintiff or attorney by whom it shall be subscribed 
 oi; indorsed. 
 
 But said order of arrest shall he of no avail, and shall be vacated or set 
 aside on motion, unless the same is served upon the defendant, as provided 
 by law, before the docketing of any judgment in the action ; and the de- 
 fendant shall have twenty days after the service of the order of arrest, in 
 which to answer the complaint in the action, and to move to vacate the 
 order of arrest or to reduce the amount of bail. 
 
 The final clause was added on the amendment of 1862. The rest of the section dates from 
 1849, and was substantially the same in 1848. 
 
 § 184. (159.) The affidavit and order of arrest shall be delivered to the 
 sheriff, who, upon arresting the defendant, shaU deliver to him a copy 
 thereof. 
 
 § 185. (160.) The sheriff shall execute the order by arresting the de- 
 fendant, and keeping him in custody until discharged by law ; and may call 
 the power of the county to his aid, in the execution of the arrest, as in case 
 of process. 
 
 § 186. (161.) The defendant, at any time before execution, shall be dis- 
 charged from the arrest, either upon giving hail, or upon depositing the 
 amount mentioned in the order of arrest, as provided in this chapter. 
 
 § 187. (162.) The defendant may give bail, by causing a written under- 
 taking to be executed by two or more sufficient bail, stating their places of 
 residence and occupations, to the effect that the defendant shall at all times 
 render himself amenable to the process of the court, during the pendency of 
 the action, and to such as may be issued to enforce the judgment therein, or 
 if he be arrested for the cause mentioned in the third subdivision of section 
 179, and undertaking to the same eifect as that provided by section 211. 
 
 In 1848, this section stopped at the words, " enforce the judgment therein;" the condusion 
 was added in 1849. 
 
 § 188. (163.) At any time before a failure to comply with the undertaking, 
 
AEEEST AND BAIL. — § 80. 393 
 
 the bail may surrender the defendant, in their exoneration, or he may sur- 
 render himself to the sheriff of the county where he was arrested, in the fol- 
 lowing manner : 
 
 1. A certified copy of the undertaking of the bail shall be delivered to the 
 sheriff, who shall detain the defendant in his custody thereon, as upon an 
 order of arrest, and shall, by a certificate in writing, acknowledge the sur- 
 render. 
 
 2. Upon the production of a copy of the undertaking and sheriff's certifi- 
 cate, a judge of the court, or county judge, may, upon a notice to the plain- 
 tiff of eight days, with a copy of the certificate, order that the bail be 
 exonerated ; and, on filing the order, and the papers used on said applica- 
 tion, they shall be exonerated accordingly. But this paction shall not apply 
 to an arrest for the cause mentioned in subdivision 3 of section 179, so as 
 to discharge the bail from an undertaking, given to the effect provided by 
 section 211. 
 
 In 1848, the concluding exception was omitted. In 1849, a portion of it was added. In 
 1851, the section was settled as it now stands. 
 
 § 189. (164.) For the purpose of surrendering' the defendant, the bail, at 
 any time or place, before they are finally charged, may themselves arrest 
 him ; or, by a written authority, indorsed on a certified copy of the under- 
 taking, may empower any person of suitable age and discretion to do so. 
 
 § 190. (165.) In case of failure to comply with the undertaking, the bail 
 may be proceeded against by action only. 
 
 § 191. (166.) The bail may be exonerated, either by the death of the 
 defendant, or his imprisonment in a State prison, or by his legal discharge 
 from the obligation to render himself amenable to the process, or by his 
 surrender to the sheriff of the county where he was arrested, in execution 
 thereof, within twenty days after the commencement of the action against 
 the bail, or within such further time as may be granted by the court. 
 
 The words, "or his imprisonment in a state-prison," were added on the amendment of 1849. 
 
 § 192. (167.) Within the time limited for that purpose, the sheriff shall 
 deliver the order of arrest to the plaintiff or attorney by whom it is sub- 
 scribed, with his return indorsed, and a certified copy of the undertaking of 
 the bail. The plaintiff, within ten days thereafter, may serve upon the 
 sheriff a notice that he does not accept the bail, or he shall be deemed to 
 have accepted it, and the sheriff shall be exonerated from liabihty. 
 
 Dates from 1849. In 1848, the original undertaking was to be delivered by the sheriff to 
 the plaintiff, and returned by the latter, within ten days, if the bail were not accepted. 
 
 § 193. (168.) On the receipt of such notice, the sheriff or defendant may, 
 within ten days thereafter, give to the plaintiff, or attorney by whom the 
 order of arrest is subscribed, notice of the justification of the same, or other 
 bail (specifying the places of residence and occupation of the latter), before 
 a judge of the court, or coimty judge, at a specified time and place, the time 
 
394: AEKEST AND BAIL. § 80. 
 
 to be uot less than five, nor more than ten days, thereafter. In case other 
 bail be given, there shall be a new undertaking, in the form prescribed in 
 section 18V. 
 
 Dates as it stands from 1851. In 1848 the justification was to be before a judge. In 1849, 
 as at present, or before " a justice of the peace." These last words were stricken out in 1851, 
 but, strangely enough, the corresponding change was not made in sections 194, 195, and 196. 
 
 § 194. (169.) The qualifications of bail must be as follows : 
 
 1. Each of them must be a resident, and householder or freeholder, with- 
 in the State. 
 
 2. They must each be worth the amount specified in the order of arrest, 
 exclusive of property exempt from execution; but the judge, or a justice of 
 the peace, on justification, may allow more than two bail to justify severally, 
 in amounts less than that expressed in the order, if the whole justification 
 be equivalent to that of two sufficient bail. 
 
 In 1848, the words, " or a justice of the peace," were not in the section. They were added 
 in 1849, and, as above noticed, have never since been stricken out. 
 
 § 195. (170.) For the purpose of justification, each of the bail shall attend 
 before the judge, or a justice of the peace, at the time and place mentioned 
 in the notice, and may be examined on oath, on the part of the plaintiff, 
 touching his sufficiency, in such manner as the judge or justice of the peace, 
 in his discretion, may think proper. The examination shall be :|-educed to 
 writing, and subscribed by the bail, if required by the plaintiff. 
 
 Same remarks as to last section. Dates as it stands from 1849. 
 
 § 196. (171.) If the judge or justice of the peace find the bail sufficient, 
 he shall annex the examination to the undertaking, indorse his allowance 
 thereon, and cause them to be filed with the clerk ; and the sherifi" shall 
 thereupon be exonerated from Kability. 
 
 Same remarks as on last. 
 
 § 19V. (1V2.) The defendant may, at the time of his arrest, instead of 
 giving bail, deposit with the sherifi" the amount mentioned in the order. 
 The sheriff shall thereupon give the defendant a certificate of the deposit, 
 and the defendant shall be discharged out of custody. 
 
 § 198. (1V3.) The sherifi" shall, within four days after the deposit, pay the 
 same into court; and shall take fi-om the officer receiving the same, two 
 certificates of such payment, the one of which he shall deliver to the plain- 
 tifi", and the other to the defendant. For any default in making such pay- 
 ment, the same proceedings maybe had on the official bond of the sheriff, 
 to collect the sum deposited, as in other cases of delinquency. 
 
 Dates from 1849. Substantially the same in 1848. 
 
 § 199. (1V4.) If money be deposited, as provided in the last two sections, 
 bail may be given and justified upon notice, as prescribed in section 193, any 
 time before judgment ; and, thereupon, the judge before whom the justifica- 
 
AEBEST AND BAIL. — § 80. 395 
 
 tion IS had, shall direct, in the order of allowance, that the money deposited 
 be refunded by the sheriff to the defendant, and it shall be refunded ac- 
 cordingly. 
 
 Has come down substantially unchanged, the amendment necessary to make it conform to 
 sections 194 to 196, having been omitted in 1849. 
 
 § 200. (1V5.) Where money shall have been so deposited, if it remain on 
 deposit at the time of an order or judgment for the payment of money to 
 the plaintiff, the clerk shall, under the direction of the court, apply the same 
 in satisfaction thereof, and, after satisfying the judgment, shall refund the 
 surplus, if any, to the defendant. If the judgment be in favor of the de- 
 fendant, the clerk shall refund to him the whole sum deposited, and remain- 
 ing unapplied. 
 
 § 201. (176.) If, after being arrested, the defendant escape or be rescued, 
 or bail be not given or justified, or a deposit be not made instead thereof, 
 the sheriff shall himself be liable as bail. But he may discharge himself 
 from such Hability, by the giving and justification of bail, as provided in sec- 
 tions 193, 194, 196, and 196, at any time before process against the person 
 of the defendant, to enforce an order or judgment in the action. 
 
 A merely verbal change was made in 1849. 
 
 § 202. (177.) If a judgment be recovered against the sheriff, upon his 
 liability as bail, and an execution thereon be returned unsatisfied, in whole 
 or in part, the same proceedings may be had on the official bond of the 
 sheriff, to collect the deficiency, as in other cases of delinquency. 
 
 § 203. (178.) The bail taken upon the arrest, shall, unless they justify, or 
 other bail be given or justified, be hable to the sheriff, by action, for dam- 
 ages which he may sustain by reason of such omission. 
 
 A merely verbal change in 1849. 
 
 § 204. (179.) A defendant arrested may, at any time before judgment, 
 apply, on motion, to vacate the order of arrest, or to reduce the amount of 
 bail. 
 
 This power was originally confined to any time before the justification of bail. In 1858 it 
 was extended to any time before judgment, as it now stands. 
 
 § 205. (180.) If the motion be made upon affidavits on the part of the 
 defendant, but not otherwise, the plaintiff may oppose the same by affidavits, 
 or other proofs, in addition to those on which the order of arrest was made. 
 
 The provisions of this portion of the Code are, by special statute, ex- 
 tended to all actions for penalties incurred, or moneys payable, under 
 the acts in relation tq insurances within this state by foreign corpora- 
 tions ; and the defendants in such actions are, accordingly, arrestable, 
 in the manner, and with all the incidents above prescribed. Laws of 
 1857, eh. 548, §§ 9, 10 ; vol. 2 of 1857, p. 171. 
 Under subdivision 5 of section 401, motions to vacate or modify an 
 
396 AEEEST AOT) BAIL. — § 81. 
 
 arrest are entitled to precedence over all others in all the districts. See 
 heretofore, section 72, under the head of Motions. 
 
 Under section 423, and rule 4, already cited in extenso in section 67, 
 under the head of Filing of Papers, the undertakings required to be 
 given under this chapter must be filed with the clerk of the court. 
 
 Rule 5 (83) makes this express' provision as to the justification of 
 bail : 
 
 Whenever baU are required to justify, they shall justify vithia the 
 county where the defendant shall have been arrested, or where the bail 
 reside. 
 
 Rule 6 (71), providing that, in all cases where a justice or other 
 officer approves of the security to be given, he shall require the sure- 
 ties to justify ; a-nd also, that all undertakings shall be acknowledged 
 in like manner as deeds of real estate, has been already cited in extenso 
 in section 69, under the head of Undertakings. 
 
 Rule 7, already cited in section 67, prescribes that the sheriff shall 
 file with the clerk the affidavits on which an arrest is made, within ten 
 days after the arrest. 
 
 § 81. General Rema/rks. 
 
 Though subjected to a complete refusion, and modified in some re- 
 spects by the Code, the law on this subject remains substantially the 
 same as under the previously existing statutes. The intentions of the 
 framers of the former measm-e in this respect, are expressed by them- 
 selves, as follows, in page 160 of their report : " The enactments of the 
 Code," say they " are intended as a substitute for all the present statutes, 
 providing for the arrest of persons upon civil process, before execution. 
 We have," they proceed, " adhered generally to the principle of the exist- 
 ing laws ; although, in some respects, we have restricted the right of 
 arrest, and particularly by requiring, in all cases, an order of a judge. 
 We have also provided, that, before an arrest, the plaintiff must give 
 security to pay the defendant's costs, and whatever damages he may 
 sustain by the arrest. We have also proposed that the defendant may 
 make a deposit of money, in all cases, instead of giving bail." 
 
 (a.) Peivileged Persons. 
 
 Before entering on the subject of arrest in general, it may be conve- 
 nient to consider the persons who are privileged therefrom, by statute 
 or otherwise, and who, accordingly, do not fall within the purview of 
 the present chapter. 
 
 They may be shortly stated as follows : 
 
AEEEST AWD BAIL. — § 81. 397 
 
 Senators. and representatives of Congress, during their attendance at 
 the sessions of their respective houses, and in going to or returning 
 from the same. Constitution of United States, art. I., § 6, sub. 1. 
 
 Members of the state legislature, during their attendance at the ses- 
 sion, or while absent, with leave of the house to which they belong ; 
 likewise for fourteen days previous to any session, and while going to 
 and returning therefrom, if the time do not exceed fourteen days. The 
 same privilege is given during any adjournment not Exceeding fourteen 
 days. Officers of either house, while in actual attendance, are also 
 similarly exempt. Vide 1 E. S., 154, §§ 6 to 10, inclusive. 
 
 Electors, on election-day. Law of April 5th, 1812, tit. I., § 4. Vide 
 1 K. S. (3d edition), p. 130. Also electors at town meetings, during 
 such meetings. 1 E. S., 342, § 10. 
 
 Militiamen, on the day of parade. 1 E. S., 303, § 27. 
 
 Officers of a court of record, during its actual sitting ; when sued 
 alone, but not when sued with any other person ; but this privilege 
 does not extend to an attorney or counsellor, unless employed in some 
 cause, pending, and then to be heard in such court. 2 E. S., 290, § 86. 
 
 Witnesses, whose attendance is enforceable in any proceeding, during 
 such attendance, and while going to and returning from the place at 
 which they are required to attend. 2 E. S., 462, § 51. See Stewwrt 
 vs. Howard, 15 Barb., 26, as to the waiver of this privilege by a gen- 
 eral appearance. 
 
 Eevolutionary soldiers. 2 E. S., 428, ch. 238 of 1830, §§ 1, 3, 3. 
 Vide 2 E. S., 523 (3d edition). 
 
 Persons holding office under the metropolitan police act, while 
 actually on duty. Laws of 1857, ch. 669, § 18, vol. 2, of 1857, p. 211. 
 Not so, however, when off duty. See Squires' s Case, 12 Abb., 38. 
 
 And, lastly, persons exempt by law from suit in the state courts — as 
 ambassadors, consuls, &c. (see heretofore, under the head of Parties), 
 are, of necessity, exempt from arrest under the process of such courts. 
 
 A sheriff is liable to arrest for the wrongful taking of property, the 
 same as any other person. HiU vs. Lott, 10 How., 46. 
 
 (b.) NON-IMPEISONMENT AcT OF 1831. 
 
 It will have been seen that, by section 178, the operation of this statute 
 is expressly saved. 
 
 It may be convenient, therefore, to take a glance at its provisions, 
 and to show how far they may be considered as still existent, or as 
 substantially abrogated. 
 
 By section 1 of that statute, imprisonment was abolished in all 
 actions or suits founded on contract, or for the recovery of damages 
 for breach of contract ; but, by section 2, proceedings for contempts,, 
 
398 AEEEST AND BAIL. — § 81. 
 
 actions for fines or penalties, or on promises to marry, or -for moneys 
 collected by any public officer, or for any misconduct or neglect in 
 office, or in any professional employment, were exempted from that 
 abolition. 
 
 Under section 3, a plaintiff in any of the actions falling within the 
 purview of section 1, was, nevertheless, enabled, either before or after 
 judgment, to 'apply to a judge of the court in which his suit was 
 brought, or to any officer authorized to perform the duties of such 
 judge, for a warrant to arrest the defendant. 
 
 The circumstances under which such warrant was obtainable, were 
 thus defined by section 4 ; 
 
 § 4. No such warrant shall issue, unless satisfactory evidence be ad- 
 duced to such officer by the affidavit of the plaintiff, or of some other 
 person or persons, that there is a debt or demand due to the plaintiff 
 from the defendant, almounting to more than fifty dollars, and specify- 
 ing the nature and amount thereof, as near as may be, for which the 
 defendant, according to the provisions of this act, cannot be arrested or 
 imprisoned ; and establishing one or more of the following particulars : 
 
 1. That the defendant is about to remove any of his property out of 
 the jurisdiction of the court in which such suit is brought, with intent 
 to defraud his creditors ; or, 
 
 2. That the defendant has property or rights in action which he 
 fraudulently conceals, or that he has rights in action, or some interest in 
 any public or corpomte stock, money, or evidences of debt, which he 
 unjustly refuses to apply to the payment of any judgment or decree 
 which shall have been rendered against him, belonging to the com- 
 plainant ; or, 
 
 3. That he has assigned, removed, or disposed of, or is about to 
 assign, remove, or dispose of any of his property, with intent to defraud 
 his creditors ; or, 
 
 4. That the defendant fraudulently contracted the debt, or incurred 
 the obligation, respecting which such suit is brought. 
 
 The statute then goes on to provide for the arrest of the defendant ; 
 for a substantial trial before the officer issuing the warrant, if such de- 
 fendant, when arrested, shall controvert the plaintiff's allegations, and 
 for his continued imprisonment, in case those allegations shall be sub- 
 stantiated, imless he shall pay or secure the debt, or make, or give 
 security that he will make, an assignment of all his property in the 
 manner there prescribed. 
 
 On comparison of the section of the statute in question, above cited, 
 with the provisions of the Code, it will be seen that, on most points, 
 those provisions are nearly coincident, and the latter measure is in effect 
 a substitute for the former. Section 178, and subdivisions 1 and 2 of 
 
AREEST AND BAIL. § 81. 399 
 
 section 179 of the Code, folly cover the ground taken in sections 1 and 
 2 of the statute of 1831. 
 
 Subdivision 5 of section 179 of the Code seems also fully to comprise 
 the remedies given by subdivisions 1 and 3 of section 4, of the previous 
 statute. The only difference is that, in subdivision 1 of the latter, the case 
 of a removal out of the jurisdiction of the court is specially put ; and 
 that subdivision 3 embraces, in terms, the case of an assignment, as well 
 as a removal or disposition of property. But both seem fairly com- 
 prised in the more general wording of the Code. 
 
 Subdivision 4 of section 179 seems again fally to coincide with, and 
 to be in fact of wider operation than subdivision 4 of section 4 of the 
 other statute. 
 
 Subdivision 2 of the latter is, however, wholly diverse from the por- 
 tion of the Code now under consideration. It is applicable only to pro- 
 ceedings after judgment to reach property endeavored to be unjustly 
 retained by the debtor, and, as such, will be hereafter considered in 
 that connection. See as to proceedings of this nature,. King vs. Kirby, 
 28 Barb., 49. It may be remarked, however, in passing, that a similar 
 remedy is provided by section 292 of the Code, in the course of supple- 
 mentary proceedings. 
 
 Proceedings under the act of 1881, hdve, therefore, for the most 
 part, fallen into disuse, and the author has accordingly deemed it 
 unnecessary to treat that branch of the subject in detail. There can 
 be no doubt, however, that a plaintiff is entitled to his election to 
 proceed under either statute. Gregory vs. Werner, 1 C. E. (N. S.), 
 210 ; Corwin vs. Freeland, 6 How., 241 ; Latham vs. Westervelt, 26 
 Barb., 266 ; Hall vs. Kellogg, 2 Kern., 325. But, in proceeding under 
 the earlier statute, he will be held to stricter practice. Being a special 
 proceeding, strict legal proof must be given ; a failure in sufficiency 
 of statement, will involve a failure of jurisdiction, and a warrant so 
 issued, will be no protection to those acting under it. Vredenhirgh vs. 
 Hendricks, 17 Barb., 179 ; BroadheadYs,. MoConmll, 3 Barb., 175 (189). 
 
 (c.) Peoceedings foe Contempts. 
 
 This branch of the present subject will be treated of hereafter, under 
 the head of Enforcement of Orders, in the chapter treating of execu- 
 tion. It may be remarked, however, at this point, that, by chapter 
 390 of the laws of 1847, imprisonment for contempt in non-payment 
 of interlocutory costs. is abolished, except as regards attorneys, solicitors, 
 counsellors, or officers of the court, when ordered to pay costs for mis- 
 conduct as such ; and witnesses, when ordered to pay them, on attach- 
 ment for non-attendance. See Buzard vs. Gross, 4 Plow., 23 ; Vreela/nd 
 Ts. HugJies, 2 0. E., 42. 
 
400 AKBEST AND BAIL. — § 82. 
 
 And it lias been held that the statute of 1847 does not reach the case 
 of a judgment-debtor, committed for a general contempt in supplement- 
 ary proceedings. People vs. Kelly, 22 How., 309 ; 13 Abb., 450. 
 
 (d^ Weii of Ne Exeat. 
 
 Considerable discussion has taken place upon the subject of this 
 proceeding, and as to whether it is or is not included in the general 
 abolition of arrest in civil actions, effected by section 1Y8, according to 
 the declared intention of the commissioners of the Code, in their report. 
 
 In its aspect of equitable bail, merely as the means of enforcing pay- 
 ment of an equitable debt, there seems no doubt but that such is the 
 case. Tide Fuller vs. Emerio, 2 Sandf , 626 ; 2 C. E., 58 ; Y L. O., 
 300 ; Forrest vs. Forrest, 3 C. E., 121. 
 
 In another aspect, however, the remedy in question appears to be 
 maintainable, i. e., in those cases in which its oifice is that of a preroga- 
 tive writ, and its object merely to insure the performance of some act, 
 to compel which the ordinary process of execution will be insufficient ; 
 or the giving of adequate security by a defendant for that performance, 
 before he will be allowed to quit the state. Forrest vs. Forrest, 10 
 Barb., 46 ; 3 C. E., 141 ; 5 How., 125 ; 9 L. O., 89 ; Bushnell vs. Bush- 
 nell, 1 How., 389 ; affirmed, 15 Barb., 399 ; Glenton vs. Glover, 10 
 Abb., 422 ; and it has been held that it is even issuable against a fetm 
 covert, when a proper foundation is laid for an equitable action against 
 her. JVeville vs. Weville, 22 How., 500. 
 
 The issuing of this writ is, however, an exercise of jurisdiction which 
 the courts will assume with great caution, and only in cases where the 
 plaintiff has no other remedy, and a necessity for such interposition is 
 clearly shown. Vide Forrest vs. Forrest, supra ; Pratt vs. Wells, 1 
 Barb., 425. 
 
 § 82. When Defendant is Arrestable. 
 
 The circumstances under which a plaintiff is entitled to arrest a de 
 fendant, are defined under five different classes, by section 179 of the 
 Code, as above cited. 
 
 It is proposed in the present section to consider these different classes, 
 seriatim, in their order. 
 
 A few decisions, however, bearing upon all in common will be cited 
 in the first instance : 
 
 (a.) Peeliminajet Eemarks. 
 The following cases bear generally on the subject of arrestability, 
 without reference to any peculiar class, under which such arrest maybe 
 sought to be made. 
 
AEEEST AND -BAIL. — § 82. 401 
 
 Liability to arrest, to be enforceable, must be personal. Thus, a 
 husband, though responsible for the act of his wife, cannot be arrested 
 for it. Anon., 1 Duer, 613 ; 8 How., 134 
 
 And, though a wrong may have been committed, still the plaintiff 
 cannot maintain an arrest of the defendant, unless he shows himself 
 entitled to maintain an action for its redress. See JVeville ys. JVeville, 
 22 How., 500. 
 
 A person cannot be arrested for the same cause, on proceedings in 
 two different courts. The prior arrest is a bar to its repetition in ano- 
 ther suit. Hernamdez vs. Garnobeli, 4 Duer, 642 ; 10 How., 433. But 
 the prior process, to have this effect, must be valid ; if void, the second 
 arrest will stand. Sohadle vs. Chase, 16 How., 413. 
 
 And when a party has once been arrested and held to bail, but after- 
 wards discharged for insufficiency in the affidavits, he should not be 
 arrested again in the same action. Enoch vs. Ernst, 21 How., 96. 
 
 Considerable discussion has arisen upon the point as to whether a 
 defendant is or is not arrestable, in an action brought upon a judg- 
 ment. 
 
 In Goodrich vs. Dunbar, lY Barb., 644, it was held that, in such a 
 case, the original cause of action, and the remedy of arrest, as inci- 
 dental to it, is merged in the previous judgment, and the defendant can- 
 not be arrested in an action upon the latter. The judgment in this 
 case was recovered in another state, and the doctrine above cited is, 
 to a certain extent, obiter, the actual decision being mainly based on 
 the fact that the defendant was not arrestable under any circumstances. 
 The same rule has been laid down as to a judgment in this state, though 
 recovered in a court which has not the power to grant an arrest under 
 the Code. McButt vs. Hirsch, 4 Abb., 441. See, likewise, Harris 
 vs. Cone, 10 How., 259. 
 
 In other cases, however, an arrest of this nature has been sustained. 
 In McButt vs. Hirsch, the arrest, though held generally unsustainable, 
 was, nevertheless, supported, on the ground that the examination of the 
 debtor, in supplementary proceedings, disclosed a disposal of property 
 with intent to defraud creditors. Similar proceedings, under the non- 
 imprisonment act, were also sustained after judgment, even though 
 taken by an assignee, in King vs. Kirby, 28 Barb., 49. 
 
 The recovery of judgment upon a note, indorsed by the defendant, 
 was held to be no bar to a separate action against him for fraud, in- 
 ducing the sale of the goods for which such note was given, especially 
 in a case where such fraud had been subsequently discovered. Wan- 
 der vs. Be Baum, 1 E. D. Smith, 261 ; 1 C. E. (N. S.), 280. 
 
 And, where the existence of fraud was patent upon the face of a 
 foreign judgment record, it was held no bar to the arrest of the defend- 
 VoL. I.— 26 ■ 
 
402 AKEEST AND BAIL. § 82. 
 
 aiit in respect of the fraud thus apparent. Arthurton vs. Dalley, 20 
 How., 311. 
 
 See generally, as to the power of looking behind a judgment, to the , 
 original equities or incidents of the transaction, Ola/rk yb. Bowl/i/ng, 
 3 Comst., 216 ; Oakley vs. Aspinnoall, 4 Comst., 513. 
 
 A proceeding which falls short of a valid and complete judgment, 
 though in itself a matter of record, is also no bar to an arrest. So 
 held, as to the preliminary inquisition on an English extent. Peel vs. 
 Elliott, 16 How., 485 ; 7 Abb., 433 ; 28 Barb., 200. So also, as to a 
 judgment obtained by default, and opened on terms, but allowed to 
 stand as security. Union BcmJcYS,. Mott, 16 How., 525 ; 8 Abb., 150 ; 
 affirmed, 17 How., 353. An arrest is also obtainable after verdict, 
 notwithstanding a stay of proceedings granted to the defendant for the 
 purpose of making a case. Lapeous vs. Hart, 9 How., 541. 
 
 Although a non-i-esident has the same right as a resident to this 
 provisional remedy, yet, if he attempt to exercise it, under circum- 
 stances of seeming oppression, the court will scrutinize his proceedings 
 the more closely. Hyer vs. Ayres, 2 E. D. Smith, 211. 
 
 As to the expediency of resorting to this remedy, in all practicable 
 cases, with a view to the ultimate issue of execution against the person 
 of the defendant, see KredenburghYs. Morgan, 4 Bosw., 646 ; 18 How., 
 469.; Molena/yr vs. Kerner, 22 How., 190. See likewise Code, section 
 288, amendment of 1862. 
 
 (5!) Subdivision 1. — "Wheee the Action sounds in Toet. 
 
 On reference to subdivision 1 of section 179, as above cited, it will 
 be seen that, in this class of actions, a defendant is arrestable, as under 
 the old practice. 
 
 There is, however, this distinction to be drawn : 
 
 In actions for injuries to person, character, or property, or in the old 
 action for damages in respect of trover and conversion of the latter, the 
 defendant is arrestable, by reason of the nature of the action itself, with- 
 out regard to his residence. 
 
 In other actions for damages not arising out of contract, he is only 
 arrestable when he is a non-resident, or is about to remove from the 
 state. 
 
 The following have been decided to come within the class of injuries 
 to the person. An action for crim. con. Delamater vs. Eussd, 4 How., 
 234 ; 2 C. E., 147 ; Strauss vs. Schwarswaelden, 4 Bosw., 627. An 
 action for seduction. Taylor vs. North, 3 C. E., 9. 
 
 On the collateral question of joinder, an action for a limited divorce 
 oil the ground of cruelty, has been held to fall -nathin the class of actions 
 
ARREST AND BAIL. — § 82. 403 
 
 for injury to the person. Mcintosh vs. MoLitosh, 12 How., 289 ; but 
 not so as to a suit for total divorce on the ground of adultery. 
 
 The total conversion of property is an injury to it, for which a de- 
 fendant is arrestable. J^orthern Railway of Framce vs. Oarpentier, 
 13 How., 222 ; 3 Abb., 259. 
 
 An action against a common carrier, for loss of goods, sounds in tort, 
 and he will be arrestable. BurUe vs. Ells, 4 How., 288 ; 2 C. E., 148. 
 So also does an action against an innkeeper for loss of baggage. The 
 People vs. WilleU, 26 Barb., Y8 ; 15 How., 210 ; 6 Abb., 37. 
 
 In this class of actions, however, the defendant can only be arrested 
 under this section, when he is a non-resident or about to remove from 
 the state. The gist of the action is for negligence, not for a conversion. 
 People vs. Willett, supra. 
 
 The proof that a defendant is about to remove from the state must 
 be positive, and show an intended change of residence, or he may be 
 discharged. Brophy vs. Podgers, 7 L. 0., 152. 
 
 The questions as to residence and domicile, on which the remedy as 
 against a non-resident may depend, will be fully considered hereafter 
 under the head oi Attaohment, on which remedy the decided cases upon 
 the subject- have the more immediate bearing. 
 
 An action for damages in consequence of fraudulent representations, 
 inducing the sale of goods to another person, falls within the present 
 subdivision and not under subdivision 4. ISTon-residence or an intended 
 departure, must therefore be shown, before an arrest can be maintain- 
 able. Smith vs. CorMere, 3 Bosw., 634. 
 
 A defendant in ejectment was held not to be arrestable, for damages 
 awarded against him, in respect of mesne profits. The claim against 
 him, in that respect, sounds in contract. Fullerton vs. Fitzgerald, 10 
 How., 37; 18 Barb., 441. 
 
 But, where the complaint demanded damages for the unlawful 
 holding of the property, it was held, collaterally, that the defendant 
 was arrestable. Merritt vs. Carpenter, 30. Barb., 61. Not so, how- 
 ever, where no such claim is made by the pleadings. In such a case 
 the order for arrest was vacated. Brush vs. Mullen, 12 Abb., 242. 
 
 An agent of the father, acting within the scope of his instructions, 
 and using no undue force, was held not to be liable to arrest, in an 
 action for taking possession of the person of an infant. Hernandez vs. 
 CarnobeU, 4 Duer, 642 ; 10 How., 433. 
 
 {c.y StTBDivisioN 2, — ^Actions ex contkactu, Agents, &o. 
 
 This subdivision is of wider scope than the last. 
 The defendant, under it, may be arrested — 
 
404 AEEEST AND BAIL. — § 82. 
 
 In an action on a fine or penalty. 
 
 In an action for breach of proipise to marry. 
 
 For money received, or property embezzled by a defendant, in an 
 official or iiduciary capacity. 
 
 For miscondnct or neglect in an office or professional employment. 
 
 The two first heads are clear in themselves, and have, not given rise 
 to any specific controversy. 
 
 The two latter have been the subject of more discussion. Under the 
 Code of 1848, it was doubted whether tlie words, " fiduciary capacity," 
 embraced the case of a defaulting agent. See Dunaher vs. Meyer, 1 
 C. E., 8T, pro, and Smith vs. Edmonds, 1 0. E., 86, and White vs. 
 MoAlKster, 1 C. E., 106, contra. The subsequent amendments have, 
 however, placed the matter beyond a doubt. 
 
 The following have been held to come within the purview of the 
 subdivision : 
 
 An auctioneer, selling goods, but failing to pay over the purchase- 
 money to his employer. HoTbrooh vs. Homer, 6' How., 86 ; 1 C. E. 
 (N. S.), 406. A broker, employed to sell exchange on a foreign coun- 
 try, at certain limited rates, over and above his commissions, and 
 failing to account for the proceeds. Barret vs. Oracle, 34 Barb., 20. 
 An agent, employed to sell goods, and account weekly, and failing so 
 to account. Turner vs. Thompson, 2 Abb., 444. The surety on a 
 lease, intrusted with money by his principal to pay rent due, and failing 
 to do so. Burhams vs. Casey, 4 Sandf., 706. An agent, employed to 
 collect moneys, and appropriating them. Stall vs. King, 8 How., 298. 
 One who collects his own claim, in conjunction with that of another, 
 under an agreement to account for the latter's due proportion, and who 
 fails so to account and pay it over. II-ull vs. McMahon, 10 Abb., 319. 
 See also, as to the responsibility of a./eme covert, and of her husband, 
 under similar circumstances, Solomon vs. Waas, 2 Hilt., 179. An attor- 
 ney, resident in another state, similarly employed to collect moneys 
 there. Yates vs. Blodgett, 8 How., 278. A factor, receiving money 
 for a specific purpose, and misappropriating it. Noble vs; Presoott, 4 
 E. D. Smith, 139. A commission merchant, failing to account for sale- 
 moneys, under a specific consignment. Schudder vs. Shiells, 17 How., 
 420. See, as to trover, in respect of moneys specifically received, 
 Donahue vs. Henry, 4 E. D. Smith, 162. An agent, failing so to 
 account, although alleging^the accidental loss of the amount received 
 by him. Frost vs. McCarger, 14 How., 131. Directors of a piiblic 
 company, guilty of a fraudulent and illegal sale of its property. Crook 
 vs. Jewett, 12 How., 19. The clerk of such a company, abstracting and 
 converting its shares, whether belonging to, or deposited with them. 
 Tlie Northern Railway Company of Framce vs. Ca-rpentiffr, 4 Abb., 47, 
 
AEBEST AND BAIL. — § 83. 405 
 
 See also same case, IS How., 223 ; 3 Abb., 259. A party M'itb whom 
 stock is pledged, as collateral security for an usurious loan, and refusing 
 to return it, on demand. Cousland vs. Davis, 4 Bosw., 619. 
 
 An agent, having received money, is arrestable, on a failure to pay it 
 over, even although a case of embezzlement, or fraudulent misapplica- 
 tion, be not stated. The Hepublic of Mexico vs. Arrangois, 5 Duer, 
 634'; 11 How., 576 ; Same case, 11 How., 1. But where, by the terms 
 of the contract between him and his principal, he was entitled to retain 
 a certain sum out of his receipts, and had retained no more, his arrest 
 was vacated. Chapin vs. Seelcy, 13 How., 490. 
 
 A principal may revoke his instructions to the agent, as to the dispo- 
 sal of money entrusted to him, and the latter is bound to obey his sub- 
 sequent directions. If he refuse, he will be arrestable, though acting in 
 good faith. Schadle vs. Chase, 16 How.,. 413. 
 
 The arrest, in this country, of the officer of a foreign government, 
 charged with misapplication of funds of that government, was main- 
 tained in Peel vs. Elliott, 16 How., 481, 484, 486 ; 7 Abb., 433 ; 28 
 Barb., 200. An arrest was also sustained, in respect of a fraud com- 
 mitted in a foreign country, in Arthurton vs. Dalley, 20 How., 311. 
 
 The ]^ew York partner of a house, doing business also in England, 
 was held arrestable for money received on sale of exchange on the 
 English house, and which they failed .to pay. Bull vs. Melliss, 9 
 Abb., 58. 
 
 See also generally as to the liability of all the partners to arrest, for a 
 fraud committed by one of them in the course of the partnership busi- 
 ness, Townsend vs. Bogart, 11 Abb., 355 ; Coman vs. Reese, 21 How., 
 114 ; Anonymous, 6 Abb., 319, note. 
 
 In other cases, however, an arrest has been vacated, so far as related 
 to one of the partners, shown to be innocent of any participation in his 
 co-partner's fraud. Wetmore vs. Earle, 9 Abb., 58, note; The Hanover 
 Company vs. Sheldon, 9 Abb., 240. See also dissenting opinions in 
 BuU vs. Melliss, and Townsend vs. Bogart, swpra. 
 
 Where one of the defendants, a note-broker, received the notes of the 
 plaintiffs to sell for cash, delivered them to another defendant, without 
 requiring payment, and the latter, after selling them, only handed over 
 part of the money, both were held arrestable for the conversion. Roh- 
 Uns vs. Seithel, 20 How., 366. 
 
 A principal is not liable for the fraud of his agent, provided he does 
 not participate in or ratify it. Either will ijiake him arrestable. Claf- 
 lln vs. Framk, 8 Abb., 412. 
 
 Where a bill had been deposited with a banker, whilst solvent, for 
 collection in the ordinary course of business, the receipt of the amount, 
 f.r'ter liis subsequent insolvency, was held not to constitute him a fidu- 
 
406 . AEBEST AND BAIL. § 82. 
 
 ciary, and an order for his arrest was vacated. Bussing vs. Thompson, 
 6 Duer, 696 ; 15 How., 97. 
 
 A general consignee and agent for disposal of the cargo of a ship, is 
 not arrestable for a failure to account and pay over his balance. He is 
 not a mere fiduciary. Good/rich vs. Dunha/r, 11 How., 644. 
 
 A consignee, responsible for any deficiency on the sale of goods recon- 
 signed by him to third parties, and who had received that defi'cifency 
 from the original consignor, under a similar responsibility, but had 
 neglected to perform his own agreement with his sub-consignees, was 
 held not to stand in a fiduciary capacity, as regards the latter, and not 
 to be arrestable in a suit commenced by them. Angus vs. Dunscomb, 
 8 How., 14. 
 
 Any compromise with, or taking of fresh security from a party origi- 
 nally arrestable, will change, the original claim for the wrong into a 
 debt, and destroy the plaintiff's right to ah arrest; even although the 
 intention of the parties may have been otherwise. AlUanoe Inswrance 
 Company of Philadelphia YB. (]leveland,li:'H.ow.,^OS; The Meroha/nii 
 Bank of New Haven vs. Dwight, 6 Duer, 659 ; 13 How., 366. The 
 mere granting of an extension of time upon a non-negotiable promise, 
 not founded upon a new consideration, was, however, held not to have 
 this operation, in Qeller vs. Seixas, 4 Abb., 103. 
 
 As to when the original cause of action, so' far as this remedy is con- 
 cerned, will or will not be considered as merged in a subsequent judg- 
 ment, see heretofore, at the commencement of this section. See also 
 Hyer vs. Ayres, there cited, as to the greater strictness of examination 
 into a case, where this remedy is sought by a non-resident plaintiff. 
 
 id.) Subdivision 3. — Replevin, &o. 
 
 Under the Code as it now stands, the concealment of property sought 
 to be recovered must be fraudulent, in order to give the remedy, of ar- 
 rest under this subdivision. Under the Code of 1849, the bare removal, 
 so that it could not be found by the sheriff, was held sufficient. Vam, 
 Neste vs. Conover, 8 Barb., 509 ; 5 How., 148. 
 
 In Roberts vs. Eandel^ however, 3 Sandf., Y07 ; 5 How.,' 32Y ; 3 C. R., 
 190 ; 9 L. O., 144; it was held, even under that measure, that an arrest 
 could not be granted when the defendant had not, in fact or in law, the 
 possession of the property claimed. See also Reimar vs. Nagel, 1 E. D. 
 Smith, 256 ; 1 0. E. (K S.), 219. 
 
 The same doctrine is maintained in Merrick vs. Suydam, 1 C. E. 
 (]Sr. S.), 212, as regards property parted with in good faith before suit 
 brought ; but this exception is stated to the principle, i. e., when the 
 defendant has parted with it, with the intent to deprive the plaintiff of 
 
AEEEST AND BAIL. — § 82. 407 
 
 the benefit of it, or to prevent its being retaken. In such a case the 
 defendant can be held to bail. 
 
 There can be no doubt that a case of the latter description is one to 
 which the section will apply. That replevin is maintainable under 
 such circumstances, is laid down in Broohway vs. Bv/rnwp, 16 Barb., 
 309; overruling s(mm case, 12 Barb., 14T; 8 How., 188; and question- 
 ing the authority of Roberts vs. Bcmdel, in this respect. See also Van . 
 Neate vs. Conover, 20 Barb., 547; Smage vs. 'PerUris, 11 How., IT; 
 Drake vs. Wakefield, 11 How., 106. See Brockway vs. Bwrnaj) ap- 
 proved, Nichols vs. Michael, 23 N. T., 264 (269). 
 
 An arrest cannot be maintained under this subdivision, in respect of 
 property, originally fraudulently obtained, but subsequently sold out in 
 the regular course of trade, before the commencement of the action. 
 Such a cause of action comes under subdivision 1, and a defendant, un- 
 der such circumstances, was discharged on giving ordinary bail, instead 
 of the special undertaking provided for by sections 187 and 211. Pike 
 vs. Lent, 4 Sandf., 650. 
 
 Where the property claimed was shown to be in the lawful custody 
 of a third party, an order of arrest was vacated with costs. Mul/oey vs. 
 DaA)iso7b, 8 How., 111. 
 
 An arrest under this subdivision is not maintainable where the action 
 itself is not for the possession of the property, but for damages for its 
 conversion. Seymour vs. Van Curen, 18 How., 94. 
 
 In Chappel vs. Skinner, 6 How., 338, it was held that, after having 
 arrested the defendant under this subdivision, the plaintiff cannot sub- 
 sequently take the goods under the ordinary process of replevin. He 
 was entitled to either remedy, at his election, but, having made that 
 election, was bound to abide by it. 
 
 {e.) Subdivision 4. — Feaitd m Conteacting Debt, &c. 
 
 Under this subdivision, the defendant is arrestable, when he has been 
 guilty of a fraud in contracting the debt, or incurring the obligation 
 sued upon ; 
 
 Or, in concealing or disposing of property, for the taking, detention, 
 or conversion of which the action is brought. 
 
 This last head seems to be already provided for, in substance, under 
 subdivisions 1 and 4, as above considered. JSTo case is reported, bearing 
 directly on the applicability of this particular subdivision to that class 
 of cases. 
 
 Those bearing on the question of the fraudulent contracting of a debt 
 are, however, more numerous. 
 
 The import of the words, " incurring the obligation," is fully consid- 
 ered in Orandall vs. Bryan, 15 How., 48 ; 5 Abb., 162. They are there 
 
408 AEEEST AND BAIL. — § 82. 
 
 held to be equivalent to the expressions, "legal liability" or "legal 
 duty." The arrest of a defendant for fraudulent representations, in- 
 ducing the sale of land, was accordingly maintained. 
 
 The cases are numerous in which a defendant has been held arrest- 
 able for false representations, inducing the giving of credit or the mak- 
 ing of a sale of goods to him, when actually insolvent. See Freeman 
 vs. Leland, 2 Abb., 479 : Wanzer vs. Be JBaum, 1 E. D. Smith, 261 ; 
 1 C. E. (N. S.), 280 ; Mucklan vs. Doiy, 20 How., 236 ; Wilmerdmg 
 vs. Mooneij, 11 Abb., 283.; Ballard vs. Fuller, 32 Barb., .68 ; Wallace 
 vs. Murphy, 22 How., 414. See also, generally, as to fraudulent mis- 
 representations, Bennett vs. Judson, 21 N. Y., 238. 
 
 And a party, obtaining credit by a false representation, must be held 
 to intend the legitimate consequences of his act. A mere denial of the 
 intention to defraud will not avail him. Whitcomh vs. Salsman, 16 
 How., 533. 
 
 A party who had represented himself to be solvent, at a time when 
 he must have known of his insolvency, was refused to be discharged in 
 Scudder vs. Barnes, 16 How., 534. 
 
 "Where, however, a party believed the representations mads by him 
 to be true, at the time when he made them, he was held not to be ar- 
 restable, though they were in fact false. Bi/rchell vs. Strauss, 28 Barb., 
 293 ; 8 Abb., 53 ; Oaffney vs. Burton, 12 How., 516. 
 
 A party who borrowed money expressly for one use, but converted it 
 to another, was held arrestable under this subdivision in Lovcll vs. Mar- 
 tin, 11 Abb., 126. 
 
 The mere concealment of insolvency, or probable insolvency, unac- 
 companied by any positive representation, tending to induce a credit, 
 has been held not to be a fraud, entitling the vendor to avoid the sale. 
 But otherwise, if, at such time, the purchaser has already performed an 
 open and notorious act of insolvency, and omits to disclose it. Mitchell 
 vs. Warden, 20 Barb., 253. See also as to a mere concealment, accom- 
 panied by an honest, though abortive, purpose, to continue business 
 and pay for the goods, not amounting to a fraud, Niohols vs. Pinner, 
 18 K Y., 295. See also Hall vs. Naylor, Hid., 588. 
 
 To avoid a sale, the fraudulent representations must be direct, and 
 made to the vendor himself. Evidence of mere representations to 
 others, whom he did not in fact defraud, will be inadmissible. Mur- 
 fey vs. Brace, 23 Barb., 561 ; Hall vs. Naylor, mfra. But evidence 
 of contemporaneous transactions of the same nature may be admissible, 
 as showing the " quo animo." Hall vs. Naylor, 18 N. Y., 688. See 
 sanve case below, 6 Duer, 71 ; but reversed on another point. 
 
 The decisions cited in the two last sentences, do not bear directly 
 upon the subject of arrestability. They seem, however, on the wliole, 
 
AEEEST AND BAIL. — § 82. 409 
 
 to he adverse to the conclusion come to in Morrison vs. Garner, Y 
 Abb., 425, that a mere concealment of insolvency, unaccompanied by 
 any direct representation, was sufficient to authorize the arrest of a 
 party, purchasing exchange upon credit, with the intention to make use 
 •of the bUls so purchased, without paying for them. 
 
 A false representation, inducing the giving of credit to a third per- 
 son, is not within this subdivision. Smith vs. Corhiere, 3 Bosw., 634. 
 
 In relation to the responsibility of partners for false representations, 
 inducing a sale to the partnership, see above, subdivision 2, and cases 
 there cited, especially Townsend vs. Bogart, 11 Abb., 355 ; Anon., 6 
 Abb., 319, note ; and Goman vs. Reese, 21 How., 114. 
 
 As to fraud in the contracting a debt, being merged in a subsequent 
 settlement, or taking of additional security, or in the obtaining of a 
 judgment on such debt, in an action ex contractu, see previous portions 
 of this section, and cases there cited. See, however, Wanzer vs. De 
 Baum, 1 E. D. Smith, 261 ; 1 C. R. (N. S.), 280, as to an action for 
 deceit being still maintainable for fraud in the sale of goods, notwith- 
 standing a previous judgment, on the defendant's indorsement on a note 
 given on their sale. * 
 
 To authorize an arrest of this nature, the fraud must be personal, and 
 committed at the time. A husband was, accordingly, held not arrest- 
 able on a debt contracted by him on the faith of a specific appropria- 
 tion of moneys, part of his wife's separate estate, to their payment, but 
 which she subsequently countermanded, he himself receiving the pay- 
 ment. Isaacs vs. GorJiam, 1 Hilt., 479. 
 
 An action to recover damages incurred by reason of acts of the plain- 
 tiff, induced by fraudulent misrepresentations of the defendant, was 
 held to sound in tort, and not in contract, and not to fall within this 
 subdivision, and an order for arrest of the defendant was accordingly 
 vacated in MoGovern vs. Payn, 32 Barb., 83. 
 
 (y.) Subdivision 5.— Featjdulent Disposition of Peopeett. 
 
 ■ It has been held that, to bring a defendant within the purview of 
 this subdivision, the removal of property must be secret. The fact 
 that the defendant " is about to depart out of the country, taking his 
 property with him, although he owes debts to a large amount, will not 
 subject him to the operation of this section. It is the secrecy which 
 evinces the fraudulent intent, and not the disposal or removal of the 
 property." Anon., 2 C. E., 51. 
 
 The points bearing upon a fraudulent disposition of property will be 
 more fully considered hereafter, under the head of Attachment, to 
 which remedy most of the reported decisions refer. 
 
 , A debtor is not arrestable for a mere constructive fraud, arising out 
 
410 AEKEST AND BAIL.— =•§ 82. 
 
 of the informality of an assignment made by liim, unless "a fraudulent 
 intent is shown. Birchell vs. Sircmss, 28 Barb., 293 ; 8 Abb., 53 ; 
 Spies vs. Joel, 1 Duer, 669. See generally Flatt vs, Zott, 17 JST. Y., 4T8. 
 
 But, after assignment made, a disposal by the assignee of the proper- 
 ty comprised in it, may be an arrestable fraud. McBuU vs. Hirsch, 4 
 Abb., 441. 
 
 One partner cannot arrest another, on an allegation of this descrip- 
 tion. He has no remedy under these circumstances, but in a suit for an 
 injunction and receiver. Gary vs. Williams, 1 Duer, 667. 
 
 A mere refusal to pay or provide for a debt, however gross in its 
 nature, is rioiper se sufficient evidence of an intended fraudulent dispo- 
 sition. Hathorn vs. Hall, 4 Abb., 227. 
 
 An open removal of property, under an honest misconception as to its 
 being, exempt from execution, was held not to be a fraudulent removal, 
 within the scope of the non-imprisonment act, in Krauth vs. Vial, 10 
 Abb., 139. See an arrest under this subdivision sustained in PhilUps 
 vs. Benedict, 33 Barb., 655 ; 12 Abb., 355. 
 
 The case of a fraudulent disposition of property in a foreign country, 
 as between foreigners, was held not to fall under this subdivision. Blor 
 son vs. Bruno, 33 Barb., 520 ; 21 How., 112 ; 12 Abb., 265. 
 
 In The People vs. Kelly, 35 Barb., 444 ; 13 Abb., 405, it was con- 
 sidered that the provisions of this subdivision do not comprise the case 
 of a creditor's bill, for the purpose of setting aside a fraudulent assign- 
 ment, but that they only extend to actions for the recovery of money ; 
 and that, to warrant the arrest of a party, the fraud charged against him 
 must be actual, and not constructive. 
 
 {</) Aeeest of Female. 
 
 The provision to this eifect governs the previous subdivisions of the 
 section. A female is therefore not arrestable in an action for breach of 
 promise of marriage. Siefke vs. Tajopey, 3 C. E., 23. 
 
 An illegal detention or concealment has been held to be an injury to 
 property, for which a female is arrestable. Starr vs. Kent, 2 0. E., 30. 
 This case is, however, overruled in express terms, and the principle laid 
 down that the exception only refers to wilful injuries. Tram/ vs. Le- 
 land, 2 Sandf., 729 ; 3 C. E., 47; 8 L. O., 234. In Solomon vs. Waas, 
 however, 2 Hilt., 179, this latter conclusion is disapproved. 
 
 The participation of a female in a fraudulent conversion of railway 
 shares, was held to be a wilful injury to property, for which she was 
 arrestable. The Northern Railway of Fra/ru:e y?,.' Carpentier, 13 How., 
 222 ; 3 Abb., 259. The subsequent discharge of the same party {vide 
 4 Abb., 47), does not aifect this decision, having been granted on the 
 ground of insufficiency of evidence. 
 
AEEEST AND BAIL. — § 83. 411 
 
 A female canuot be arrested for fraud in contracting a debt. She is 
 exempted by this subdivision. Wheeler vs. Hartwell, i Bosw., 684. 
 
 Where a proper foundation is laid for an eq"uitable action against her, 
 a female may, it is said, be arrestable upon a ne exeat. Not so, how- 
 ever, in a suit upon contract, not in fact binding upon her. See J!fe- 
 ville vs. Neville, 22 How., 500. 
 
 In Anonymous, 1 Duer, 613 ; 8 How., 134:, it was held by the Supe- 
 rior Court, that, notwithstanding the provision above cited, rendering a 
 female arrestable for her wilful torts, the rule of common law is not 
 altered, which exempts a married woman from arrest in all cases what- 
 ever ; and likewise that the Code does not authorize the arrest of the 
 husband, in any action founded solely either upon the contract or tort 
 of the wife, in which he is not a participant. 
 
 In Solomon vs. Waas, however, 2 Hilt., 179, this conclusion is dissented 
 from by the E"ew York Common Pleas, and it is held that the old rules 
 of law are not changed, but that a husband is still arrestable for the 
 tort of his wife, and bound to put in bail for both ; and that, though she 
 is entitled to be discharged in the first instance, on proof of her cover- 
 ture, she may be charged in execution with him after judgment. 
 
 (A.) Aeeest for Ustjepation of Office. 
 
 The provisions of section 435, under which, in actions by the attorney- 
 general in respect of usurpation of office, the defendant is arrestable, 
 must not be overlooked, though the proceeding is 'one of comparatively 
 unfrequent occurrence. 
 
 § 83. Application for Arrest. 
 
 The order may, under section 183, be made to accompany the sum- 
 mons, or at any time afterwards, before judgment. 
 
 Under section 180, it is obtainable from a judge of the court in which 
 the action is brought, or from a county judge. See Seymour vs. Mercer, 
 13 How., 564, as to the powers of a special surrogate in this respect. 
 
 [a.) AFFiDAvn. 
 
 It is so obtainable upon affidavit, the requisites of which are pre- 
 scribed by section 181. 
 
 This affidavit may be made by the plaintiff, or by any other person. 
 It must show — 
 
 1. That a sufficient cause of action exists. 
 
 2. That the defendant is arrestable under section 179. 
 
 These two cardinal requisites must be made to appear by the state- 
 ment of facts and not by bare allegation to that effect. See Piiidar 
 
412 AEEEST AND BAIL. — § 83. 
 
 vs. Black, 4 How., 95 ; 2 0. E., 63 ; Adams vs. Mills, 3 How., 219 ; 
 Crandall vs. Bryan, 15 How., 48 ; 5 Abb., 162. A bare averment in 
 the words of the statute, will be wholly insufficient. See this subject 
 more fully considered hereafter ' under the heads oi InjuncUon and 
 Attachment, the conditions on obtaining which, the latter especially, 
 ai'e substantially the same, and the affidavits must, to sustain the reme- 
 dy, possess similar requisites. 
 
 A cause of action must be shown by the affidavit, with sufficient 
 averments to sustain it, or the order will not stand. Adams vs. Mills, 
 3 How., 219. 
 
 The affidavit must be positive, not argumentative, and must make 
 out a prima facie case against the defendant. Ma/rtin vs. Vanderlif, 
 3 How., 265 ; 1 C. E., 41. 
 
 An affidavit, to warrant an arrest, must contain evidence which, in ' 
 the judgment of the officer, amounts to proof of the charge. So held 
 under the non-imprisonment act. Yredenhurgh vs. Hendricks, IT 
 Barb., 179. Such officer must have, before granting the order, legal 
 evidence, tending to convict the defendant of the charge made. The 
 decision on the weight and conclusiveness of such evidence rests, then, 
 in his discretion. Courier vs. McNamara, 9 How., 255. 
 
 Such evidence must be the best evidence that can reasonably be p)ro- 
 cured, and, wherever the statement can be made positively, it should 
 be so. This does not, however, absolutely preclude the use of state- 
 ments on information and belief. 
 
 In such a case, however, the nature, quality, and sources of the infor- 
 mation must be disclosed, so that the judge's mind may have something 
 to work upon, and he may be able to determine whether the belief is 
 well founded or not. Good reasons, too, must be given why a positive 
 statement cannot be procured. Whitloch vs. Roth, 10 Barb., 78 ; 5 
 How., 143 ; 9 L. 0., 95 ; 3 C. E., 142 ; Bell vs. Mali, 11 How., 254 ; 
 Crandall vs. Bryan, 15 How., 48 ; 5 Abb., 162. See also, Peel vs. 
 Elliott, 16 How., 481 ; 7 Abb., 433, in which an arrest was maintained 
 on an affidavit wholly so grounded, as to facts occurring in a foreign 
 country, the sources of the information being given, and the impossi- 
 bility of procuring a more direct statement at the time, made apparent. 
 
 An affidavit on mere unsupported hearsay will, however, be wholly 
 insufficient. Cook vs. Roach, 21 How., 152 ; Blason vs. Bruno, 33 
 Barb., 620 ; 21 How., 112 ; 12 Abb., 265. 
 
 On the other hand, where the plaintiff had, in his affidavit, stated 
 facts of his own knowledge, which it appeared that he only knew from 
 information, the arrest so obtained was vacated. Moore vs. Calvert 9 
 How., 474. 
 
 The examination of a judgment-debtor may, it seems, be used against 
 
AEREST AND BAIL. — § 83. 413 
 
 him as an affidavit, on an application of this description. McButt vs. 
 Sirsch, 4 Abb., 441. 
 
 A verified complaint, when before the judge at the time of appli- 
 cation, may be used, for the purpose of sustaining the order. Brady vs. 
 Bissell, 1 Abb., 76 ; Turner vs. Thom^so% 2 Abb., 444. 
 
 It has been held also, that a fatal defect in the complaint will render 
 the arrest unsustainable. Bell vs. Mali, 11 How., 254. A mere error 
 of definition or superfluity of statement will not, however, have this 
 effect. Peel vs. Elliott, 16 How., 485 ; 28 Barb., 200 ; Y Abb., 433. 
 
 Where a sufficient caiise of action has been set forth, bringing the 
 case clearly within the purview of section 179, special cause for requir- 
 ing bail need not be alleged, as under the former practice. BaTcer vs. 
 SicacMamer, 5 How., 251 ; 3 C. E., 248. 
 
 Although an arrest may be granted, on matters independent of the 
 cause of action, yet, where the statements in the affidavit were wholly 
 inconsistent with the case as made by the complaint, the order was 
 vacated. Wicher vs. Harmon, 21 How., 462 ; 12 Abb., 476. But the 
 absence of averment of fraud in the complaint, will not affect the valid- 
 ity of the order of arrest. MuMan vs. Doty, 20 How., 236. 
 
 A defendant, by giving bail, admits the sufficiency of the affidavit, 
 and waives his right to object to any formal defects in it, if existent. 
 8tewa/rt vs. Howard, 15 Barb., 26. 
 
 To give any precise form for the statements of fact in 'an affidavit of 
 this nature, would be impossible, inasmuch as such affidavit must, of 
 necessity, vary according to the circumstances of each particular appli- 
 cation. One only caution appears necessary with reference to this, as 
 to other similar cases ; and this is, that, on all occasions, the gra/oamen 
 of the charge against the defendant had better be summed up in the 
 exact words of the statute itself, and be stated throughout in accord- 
 ance with that wording, so as to bring the case, in precise and*definite 
 terms, within one or more of the subdivisions of section 179. It is im- 
 possible to insist too strongly upon the expediency of strict attention 
 beino- paid to this rule, in all questions, of whatever nature ; and, like- 
 wise to the principles, laid down in the foregoing decisions, particu- 
 larly with reference to the clear and correct statement of the cause of 
 action, or ground or grounds of arrest, being kept in mind on all 
 occasions. . 
 
 As to the requisites of the affidavit, necessary to sustain an arrest in 
 an action for crim. con., see Sachs vs. Bertrand, 22 How., 95 ; 12 
 Abb., 433 ; Strauss vs. Schwarzwaelder, 4 Bosw., 627 
 
 It is of course competent for the plaintiff so to frame the affidavit, as 
 to bring his case within the operation of any number of the separate 
 subdivisions or gi-ounds laid down in section 179, either conjointly or 
 
414 AEEEST AND BAIL. — § 83. 
 
 disjunctively. As to the validity of an affidavit of this nature, when 
 framed in the alternative, see, on the analogous subject of attachment, 
 Van Alstyne vs. Erwm, 1 Kern., 331. 
 
 Where a fact is alleged in its legal import, the details need not be set 
 out. Thus, in an affidavit by a married woman, seeking an arrest for 
 misapplication, it was held sufficient to allege the fact that the fund 
 misapplied was her separate property, without showing how it became 
 BO. Lippmcm vs. Petersburgh, 10 Abb., 254. 
 
 (5.) Seoueitt. 
 
 The plaintiff, on applying for the order, must also be prepared with 
 the security required by section 182. It may be with or without sure- 
 ties. If without, the plaintiff himself must annex an affidavit of justifi- 
 cation. 
 
 The section requires such undertaking to be " on the part of the 
 plaintiff," on which expression some discussion has arisen. 
 
 In the Superior Court, it has been held that the plaintiff himself 
 must execute this undertaking, in all cases, even though non-resident. 
 Michardson vs. Craig, 1 Duer, 666. The possibility of the execution 
 of the next friend or guardian of a married woman, or infant, being, for 
 this purpose, reasonably considered as that of a plaintiff, is, however, 
 admitted. The rule so laid down has been further relaxed by the same 
 tribunal, in admitting an undertaking, executed by the admitted agent 
 of a foreign government, as sufficient on the part of that government as 
 plaintiff. Republic of Mexico vs. Arramgois, 11 How., 1 ; affirmed, 5 
 Duer, 634 ; 11 How., 576. See, as to the strict rule being applicable 
 to partition by petition, Jennings vs. Jennings, 2 Abb., 6. 
 
 In the Supreme Court, however, this strictness of construction has not 
 obtained^ and an undertaking, in an ordinary suit, not executed by the 
 plaintiff himself, but only by his surety or sureties, has been held suffi- 
 inent. Bellinger vs. Ga/rdrm; 12 How., 381 ; 2 Abb., 441 ; Courier vs. 
 Mctlama/ra, 9 How., 255 ; AsMns vs. Hearns, 3 Abb., 184. 
 
 In Peel vs. Elliott, above cited, the undertaking was of the same 
 description, and passed without question. In the recent case oiZeffing- 
 well vs. CJiave, 5 Bosw., 703 ; 19 How., 54 ; 10 Abb., 472, the doctrine 
 of Richardson vs. Craig has been formally abandoned by the Superior 
 Court itself, and an undertaking executed, " on the part of the plain- 
 tiff," by sureties alone, held to be sufficient. The point may no\<% 
 therefore, be considered as settled. See also Lief vs. Shausenhurg, 
 referred to in same case, and reported, 10 Abb., 477, note. 
 
 Although the section says, " with or without sureties," the concur- 
 rence of one is sufficient. The real purport of the expression is with or 
 
AEEEST AND BAIL. — § 83. 415 
 
 without security. Courier vs. MoNama/ra, 9 How., 255. See also, as 
 to a bond on maritime attachment. Ward vs. Whitney^ 4 Seld., 442. 
 
 An undertaking of this description is amendable, nunc pro tunc, as of 
 the original execution, at the discretion of the court. Bellinger vs. Gra- 
 ham^ sufra ; see 2 E. S., 566, sections 33, 34; Beach vs. Southworth, 6 
 Bai'b., 173. See also' Code, sections ITS, 174. See, however, as to a spe- 
 cial statutory proceeding, Jennings vs. Jennings, 2 Abb., 6, above noticed. 
 
 A copy of the undertaking need not be served upon the defendant, at 
 the time of the arrest. Leopold vs. Poppenheiiner, 1 C. R., 39. 
 
 It seems, by the case of Manley vs. Patterson, 3 C. E., 89, that the 
 defendant is entirely without remedy, if the plaintiffs sureties omit to 
 justify, cfr even on showing them to be insufficient or insolvent. The 
 court even doubted whether " the judge had any right to refuse an 
 order for arrest," under subdivision 3, where the sheriff has returned 
 that the property in question has been eloigned, " even if he was fully 
 aware that the plaintiff had put in sham security." The arrest in that 
 case was, however, vacated on another ground, hereafter noticed. 
 
 It would appear, however, by analogy with the principles laid dovsm 
 in Davis vs. Marshall, 14 Barb., 96, with reference to the issuing of an 
 attachment by a justice, that the giving of the undertaking by the de- 
 fendant, in the form above mentioned, is a condition precedent to the 
 making the order ; and that, if omitted, the proceeding will be voidable, 
 if not void. See Bennett vs. Brown, 4 Comst., 254, there cited. 
 
 The undertaking, when executed, must be acknowledged by the sure- 
 ties, and the usual affidavit of justification subjoined. It is the duty of 
 the officer applied to to require this (rule 6) ; but the defect, it seems, 
 is amendable. Conhlin vs. Butcher, 6 How., 386 ; ICE. (IST. S.), 49. 
 
 "When presented to the judge, his approval should be indorsed upon 
 it. It must then be filed with the clerk of the court. See Code, sec- 
 tion 423. And this must be done forthwith, with the clerkjof the 
 proper county, and within five days at the furthest, under penalty of 
 the proceeding being vacated on motion — rule 4. The approval of the 
 judge has been held essential, and its omission a fatal defect. See 
 Newell vs. Dora/n, 21 How., 427. 
 
 (c.) Oedek. 
 
 Tlae requisites and form of the order to be applied for are distinctly 
 prescribed by section 183. 
 
 The time of its return not being fixed by special provision, should be 
 inserted at some reasonable date. The first day of the succeeding term 
 may in "the majjority of instances, be a proper period to insert, but 
 each case will be governed by its peculiar circumstances. The amount 
 >; bail required, must also be fixed. In ordinary cases, the proper sum 
 
416 AEEEST AKD BAIL. — § 84. 
 
 ■will be double tlie amount of the claim. Tbe matter rests, however, in 
 the discretion of the judge, and may be modified by him accordingly. 
 See BaJitir vs. SwaoTchamer, 5 How., 251 ; 3 0. E., 248. 
 
 The affidavit, undertaking, and order, having been thus, prepared, 
 and submitted to the judge to whom application is made, his signature 
 must be obtained to the latter, if his decision be to grant it. The 
 undertaking having been filed as above directed, the affidavit and order 
 of arrest must thereupon be delivered to the sherifi', as provided by 
 section 184, with all necessary instructions, to enable him to discover 
 and arrest the defendant. 
 
 Service of the order upon the defendant, is now rendered essential by 
 section 183, as amended in 1862 ; and it has the eflect of extending his 
 time to answer, or to move to vacate, or to reduce the amount of bail. 
 
 By the express terms of the section the order can only be made before 
 judgment. This applies, however, only to a judgment actually en- 
 forceable. Where, therefore, a judgment taken had been opened, and 
 the defendant allowed to come in and defend, a subsequent arrest was 
 sustained, even though the judgment itself was ordered to stand as 
 security. Union Bank vs. Mott, 17 How., 353 ; 9 Abb., 106 ; affirm- 
 ing same case, 16 How., 525 ; 8 Abb., 150. 
 
 § 84. Mode and Incidents of Arrest. 
 
 With this delivery, the duty of the plaintiff' 's attorney is completed, 
 and that of the sheriff' commences. In cases where immediate dispatch 
 is necessary, it may be convenient to prepare and hand to the sheriff, 
 with the originals, copies of the affidavit and order, which, under tlie 
 same section, it is his duty to deliver to the defendant at the time of 
 the arrest. In strictness, it is the sheriff's duty to make "them, but the 
 necessyy delay for that purpose, however short, might possibly, in 
 some cases, involve inconvenience. 
 
 The provision, requiring the delivery of such copies, has, however, 
 been held to be merely directory, and the defect one which may be 
 cured by amendment, in the discretion of the court. Keeler vs. Betts, 
 3 0. E., 183 ; Courier vs. McNama/ra, -9 How., 255. 
 
 The sheriff, under rule 7, is bound to file the affidavits with the clerk, 
 within ten days after an arrest, when made. 
 
 If he does not succeed in effecting an arrest, within the time pre- 
 scribed by the order, an amendment, extending that time, should be 
 applied for, under section 174. 
 
 If he fail to make a due return, within the time so prescribed or ex- 
 tended, the performance of that duty may be enforced by attachment, 
 and a notice should be served upon him, as provided by rule 8. 
 
AEBEST AKD BAIL. § 85. 417 
 
 The mode of arrest, when made, is prescribed by section 185. The 
 sheriff must keep the defendant in custody until discharged by law. It 
 must, be made fairly, and not induced by false representations ; if so, the 
 defendant may be discharged. Qoupil vs. Simonson, 3 Abb., 474. 
 
 On making his return, the sheriff must deliver the order of arrest 
 to the plaintiff, or his attorney, with that return indorsed. Where 
 bail has been given, it must be accompanied by a certified copy of the 
 Tindertaking. This return, when made, is conclusive. Goluimbus In- 
 surcmce Company vs. Foroe^ 8 How., 353. 
 
 The hability of the sheriff, in respect of an escape, or otherwise, is 
 expressly provided for by sections 201 and 202. If a deposit be made, 
 or bail be given, and justified, as hereafter noticed, the sheriff's liability 
 is at an end ; but, if not, he is, himself, liable as bail. He may, how- 
 ever, discharge himself from that liability, by the giving and justifi- 
 cation of bail, in the same manner as provided with respect to the de- 
 fendant himself, at any time before the latter is charged in execution ; 
 but, after he has been so charged, his powers in that respect are gone, 
 and his liability is the sam'e as that of other bail. Buchmcm vs. Cam- 
 ley, 9 How., 180 ; Sartos vs. Meroeques, 9 How., 188. His liability, as 
 above, may be enforced, by proceeding against him or his sureties, in 
 the usual manner. If, on the other hand, bail be put in on the part of 
 the defendant, and such bail, or others, fail to justify, they will, under 
 section 203, be liable to the sheriff, by action, for any damages which 
 he may sustain by that omission. 
 
 § 85. DefendanCs Oow'se wTien Arrested, 
 {a.) Motion to Vacate. 
 
 On the arrest taking place, the first point to be looked into fey the 
 defendant is, in relation to the validity of the order of arrest, and also 
 as to the amount of the bail thereby required to be given ; as, if the 
 order be informal, or if the bail demanded be excessive, relief may be 
 obtained by him, by means of a special application to the court. His 
 powers in this respect are conferred by section 204, as above cited. li 
 will have been observed in connection with this section, that prior to tlit 
 amendment of 1858, a motion for this purpose could only be made before 
 " the justification of bail." Since that amendment, such relief is ob- 
 tainable at any time before judgment, without regard to the fact as 
 to whether bail has or has. not been given or justified. A motion for 
 the reduction of bail could hardly be entertained, however, after the 
 latter proceeding has taken place. And a motion to vacate, if luade 
 after justification of bail, would certainly be strictly scrutinized, and,. 
 
 Vol. I.— 27 
 
418 AEEEST AND BAH. — § 85. 
 
 probably, denied, unless . a very strong case were shown. It is also 
 probable that the doctrine laid down in Stewwrt vs. Howard, 15 Barb., 
 26, i. <3., that the putting in of bail waives all objections to the form of 
 the plaintiff's affidavit, or on the ground of the defendant's privilege 
 from arrest, may still be maintained. 
 
 The recent amendment in section 183 (1862) extends the time to 
 make a motion, of the above nature, to twenty days after service of the 
 order of arrest. ISTo change having been made in section 204, it seems 
 clear that this amendment cannot operate to shorten the period there 
 allowed for that purpose. It would, however, clearly extend the time, 
 in a case where service is made within twenty days before judgment, 
 and such will, probably, be- held to be its operation. 
 
 The following may be referred to as decisions under section 204, be- 
 fore the amendment, and whilst the justification of bail remained the 
 statutory criterion: Barber vs. HuHbard, 3 C. E., 169 ; Wilmerding vs. 
 Moon, 1 Duer, 643 ; 8 How., 213 (in which it was held that where bail 
 had never been given, such an application could be made, even after 
 judgment) ; Lewis vs. Truesdell, 3 Sandf., T06 ; and Barker vs. Dillon, 
 \ C. K. (N. S.), 206 ; 9 L. 0., 310. In the last two cases it was con- 
 sidered that a delay by the defendant in making this motion, until after 
 liis bail had become perfect, by expiration of the plaintiff's time to 
 except, was equivalent to justification, and was a bar to the application, 
 overruling the contrary view as held in Ba/rber vs. Hubbard. See, 
 howevever, ^pe?- contra, CadyYB. Edmonds, 12 How., 197 ; and Gaffney 
 vs. Burton, 12 How., 516. In Dale vs. Eaddiff, 15 How., Yl ; 25 
 Barb., 333, a consent to accept bail, as tendered, was, in like manner, 
 held equivalent to justification. See likewise, generally, Overill vs. 
 Durhee, 2 Abb., 383, reported as O'Niel vs. Durke, 12 How., 94; 
 McKenzie vs. Haokstaff, 2 E. D. Smith, 75. 
 
 The following decisions carry out the amendment in section 204, to 
 the effect that a motion of this nature may now be made in all cases, 
 at any time prior to the entry of judgment, and after bail has been 
 perfected: Warren vs. Wendell, 13 Abb., 187; Wicker vs. Harmon, 
 31 How., 462 ; 12 Abb., 476. 
 
 The motion for this purpose must be made upon notice in the usual 
 manner, or upon an order to show cause. If grounded on a positive 
 defect in the papers on which the arrest was granted, no affidavits 
 will, of course, be necessary. If, on the other hand, the application 
 be grounded on facts extrinsic to the case as made by the plaintiff, the 
 facts so adduced must, of course, be proved on affidavit in the usual 
 manner, and copies of such affidavits must be served with the notice or 
 order to show cause, in due course. 
 
 Since the amendment of 1858, motions for this purpose are entitled 
 
ARREST AND BAIL. — § 85. 419 
 
 to a preference, in all the districts, under section 401, subdivision 5. 
 See heretofore, under the head of Motions. 
 
 Since the same amendment, it is clear that a motion of this nature 
 is inadmissible after the entry of judgment. See the following cases : 
 Barker vs. Wheeler^ 23 How., 193 ; 14 Abb., 170 ; Roberts vs. Garter, 
 17 How., 479 ; 9 Abb., 106, note ; Crowell vs. Brown, 17 Plow., 68 ; 
 9 Abb., 107, note; overruling The Brid<jewater Paint Mamifacturing 
 Company vs. Messmore, 15 How., 12. See, however, recent amend- 
 ment of section 183 (1862), as regards a motion of this nature, made 
 within twenty days after service of the order upon the defendant. 
 
 A motion of this nature may, it seems, be made ex parte, to the 
 judge who granted the order, but to no other. Cayuga County Bank 
 vs. Warfield, 13 How., 439. Of course this mode of procedure can only 
 be applicable to cases where the plaintiff's proceedings are manifestly 
 defective. Where the matter admits of a contest, or where the appli- 
 cation is made to another judge, it must, of course, be made upon 
 notice or order to show cause, the usual period of notice being given. 
 It must, in all the districts (except the first), be made at special terra, 
 and not at chambers. Scmie case; Dwnaher vs. Meyer, 1 C. R., 87; 
 and a county judge has no pov^rer to hear such a motion, even though 
 it be to vacate his own order. Rogers vs. MoElhone, 20 How., 441 ; 
 12 Abb., 292 ; Lancaster vs. Boorman, .20 How., 421. 
 
 Since the revision of 1868, a motion of this description lies for irreg- 
 ularity, in the event of the plaintiff's neglect to file the undertaking 
 duly approved. See nile 6, above referred to. See also Newell vs. 
 Dor an, 21 How., 427. 
 
 Motions of this description fall under two general heads : 
 
 1. Motions by the defendant, on the ground of defect in the plain- 
 tiff's proceedings, grounded on those proceedings alone ; 
 
 2. Motions on affidavits, denying the facts alleged by the plaintiff, or 
 setting up new matter in defence, or by way of avoidance ; 
 
 Which classes it is proposed to consider seriatim. 
 
 (i.) Motions on Plaintiff's Papers. 
 
 On an application of this description, the plaintiff cannot introduce ad- 
 ditional evidence in support of the arrest — the remedy must stand or fall 
 on the origind papers. See Peel vs. Elliott, 16 How., 481 (482) ; Adams 
 vs. Mills, 3 How., 219 ; Martin vs. Vanderlij), 3 How., 265 ; 1 C. R, 41. 
 
 Where the defendant , moves in this form, the plaintiff's affidavit, 
 being uncontradicted,' is to be taken as true ; it is, however, to be 
 strictly construed against him. Hathorn vs. Hall, 4 Abb., 227. But 
 if his statements establish a prima fade case, such case, being uncon- 
 tradicted, is ufficient, and the order should stand. Moers vs. MorrOf 
 
420 AEEEST AND BAIL. § 85. 
 
 29 Barb., 361 ; 17 How., 280 ; 8 Abb., 257. See likewise Ths Union 
 Bank vs. Mott^ 17 How., 353 ; 9 Abb., 106, as to the effect of such an 
 omission to contradict, even when the statements are based upon infor- 
 mation and belief only. 
 
 A motion of this description should be made at once ; and it has been 
 held that it cannot properly be so after answer. Yide Bedell vs. Stnirta, 
 1 Bosw., 634 ; 6 Abb., 319, note. See however The Columlus Insurance 
 Company vs. Force^ 8 How., 353. The obtaining of judgment will be 
 a positive bar to it. Wihnerding vs. Moon, 1 Duer, 645 ; 8 How., 213. 
 
 A variance between the mode of statement in the plaintiff's com- 
 plaint, and in his affidavits, would seem not to be a ground for vacating 
 the order. Steele vs. Palmer, 7 Abb., 181. See also Peel ys. ElUott, 
 16 How., 485 ; 7 Abb., 433 ; 28 Barb., 200. Nor will an amendment 
 of the summons have that effect. Union Bank vs. Mott, 6 Abb., 315. 
 
 Where, however, the plaintiff had, after arrest, served his complaint, 
 including several causes of action, to some of which that remedy did 
 not extend, it was held that the order should have been vacated. 
 Lambert vs. Snow, 2 Hilt., 501 ; 17 How., 517 ; 9 Abb., 91 ; McGovern 
 vs. Payn, 32 Barb., 83. A fatal defect in the complaint may also have 
 the same effect. Bell vs. Mali, 11 How., 264; Neville vs. Neville, 
 22 How., 500. Or a variance, showing clearly that the groimd of 
 action is inconsistent with the ground of arrest. SeywKyur vs. Van 
 C'uren, 18 How., 94 ; Wicker vs. Harmon, 21 How., 462 ; 12 Abb., 
 476. Harris vs. Cone, 10 How., 259, tends to the same effect, but 
 seems unsustainable, in view of the decision in Corwin. vs. Freeland^ 
 and other analogous cases, hereafter referred to. 
 
 In Sachs vs. Bertrand, 22 How., 95 ; 12 Abb., 433, the order was 
 vacated, on a deficiency of allegation in the plaiutiff''s affidavit, to make 
 out the offence charged. See also as to an affidavit on mere hearsay, 
 Oook vs. Roach, 21 How., 152. 
 
 An order of this nature will not be vacated on a merely technical 
 objection, independent of the cause of arrest, and which may be reme- 
 died by amendment, such as that of a misjoinder of parties. Weller 
 vs. Moritz, 11 Abb., 113. 
 
 A motion for the reduction of bail may be made on the plaintiff's 
 own showing, where it is clearly excessive. Baker vs. SwackhaTner, 5 
 How., 251 ; 3 0. K., 248. It was there considered that, where the 
 defendant was a permanent resident, a less amount of bail would be 
 required for his appearance, than in the case of a transient person. 
 
 (c.) Motion on. Affidavits. 
 
 Motions of this nature may be again subdivided under two general 
 heads. 
 
AEEEST AND BAIL. § 85. 421 
 
 1. Motions to vacate, when the ground of arrest constitutes, or tends 
 to constitute, the plaintiff's cause of action. 
 
 2. Motions where the right of arrest arises out of collateral circum- 
 stances, not bearing directly upon the plaintiff's right to recover. 
 
 The distinction now established has given rise, in the course of that 
 establishment, to considerable discussion. 
 
 It may be considered as settled that, in that class of actions which 
 sound in tort, or where the fraud, or the circumstances by which the 
 defendant becomes arrestable, form an integral part of the plaintiff's 
 cause of action, and one of the issues to be tried in the cause, a bare 
 denial of the plaintiff's allegations in this respect, will not, ;per se, form 
 ground for the defendant's discharge. According to the old familiar 
 rule, the court will not try the cause upon motion. See Martin vs. 
 Vanderlip, 3 How., 265; 1 C. E., 41 ; Adams vs. Mills, 3 How., 319; 
 Geller vs. Seixas, 4 Abb., 103 ; Solomam vs. Waas, 2 Hilt., 1Y9 ; Crit- 
 tenden vs. Subbell, 6 Abb., 319, note ; Oousland vs. Davis, 4 Bosw., 
 619 ; Bedell vs. Siurta, 1 Eosw., 634 ; 6 Abb., 319, note ; Barrett vs. 
 Grade, 34 Barb., 20 ; Anonymous, 6 Abb., 319, note ; Nolle vs. Pres- 
 cott, 4 E. D. Smith, 139. See also Ths Repvhlio of Mexico vs. Arran- 
 gois, 5 Duer, 634; Frost vs. McCarger, 14 How.,' 131. The obtaining 
 of judgment was, even before the amendment, a positive bar to a mo- 
 tion of this class. Wilmerding vs. Moon, 1 Duer, 645 ; 8 How., 213. 
 The defendant is not, however, absolutely precluded from establishing, 
 if he can do so, the existence of a complete defence ; and, if he suc- 
 ceeds, the order may be vacated. See Manley vs. Patterson, 3 C. R., 
 89 ; Barher vs. HuUard, 3 G. E., 156 ; affirmed, 3 C. E., 169. The 
 burden^of proof rests, however, in such case, upon the applicant. The 
 court may assume to itself the power of weighing the evidence on both 
 sides, to determine whether the order shall stand, even where the de- 
 fendant's 'case rests upon a general denial. Falconer vs. Elias, 3 Sandf., 
 731 ; ICE. (N. S.), 155. But, as a general rule, it will not do so, and 
 if the applicant falls short of satisfying the court that such a defence 
 exists, and will be certainly established on the trial, the application ■ 
 should not be granted. See The Pepuhlic of Mexico vs. Arrangois, 
 supra, qualifying the doctrine laid down in same case, 11 How., 1 ; and 
 so far overrnling Sernamdez vs. Oarnobeli, 4 Duer, 642 ; 10 How., 433. 
 See also Frost vs. McCarger, 14 How., 131 ; Ano7iymoit,s, 6 Abb., 319, 
 note ; and & prima facie case shown by the plaintiff, will be sufficient to 
 sustain the order. Gould vs. Sherman, 10 Abb., 411. 
 
 On the other hand, in cases where the action sounds in contract, or 
 where the arrestability of the defendant arises out of extrinsic facts, im- 
 material to the decision of the main issues of the case, the whole ques- 
 tion is open on a motion of this description. In the event of a contest 
 
422 AEKEST AND BAIL. — § 85. 
 
 of fact, the burden of sustaining the arrest will be upon the plaintiff, 
 and, if he does not make out his case, the defendant is entitled to be 
 discharged. The test will be, whether, upon the whole case, asmade 
 out on both sides, the court, if called upon to act on the application as 
 res nova, would grant, the order. EepuUic of Mexico vs. Arrangois, 5 
 Duer, 634 ; Same case, 11 How., 1 ; Hernandez vs. GarnoheU, 4 Duer, 
 642; 10 How., 433; Ohapin vs. Seeley, 13 How., 490; TJie Union 
 Bank vs. Mott, 6 Abb., 315 ; Banrron vs. Sa7iford, 14 How., 443 ; 6 
 Abb., 320, note ; Claflin vs. Franh, 8 Abb., 412 ; Mechlin vs. Berry, 
 23 How., 380 ; Allen vs. McOrdsson, 32 Barb., 662. See likewise, Cor- 
 win vs. Freeland, 2.Seld., 560, and Cheney vs. Oarbutt, 5 How., 467; 
 1 C. E. (ISr. S.), 166 ; Falconer vs. Elias, 3 Sandf., 731 ; 1 C. E. (N. S.), 
 155 ; and, even the obtaining of judgment was not, before the recent 
 ainendment, a bar to a motion of this description. Wihnerding vs. 
 Moon, 1 Duer, 645 ; 8 How., 213. See also Camp vs. Tibhets, 2 E. D. 
 Smith, 20 ; 3 C. E., 45. 
 
 A mere denial of the plaintiff's case will not, however, form ground 
 for the defendant's discharge, even in cases of this description. Tliere 
 must be a preponderance of evidence, either by other witnesses, or by 
 the statement of other matters to confirm that denial. PhilTA/ps vs. 
 Benedict, 20 How., 265. And, in a doubtful state of circumstances, the 
 defendant will not be discharged, where full explanations, rebutting the 
 inferences to be drawn from the plaintiff's statements, are not given by 
 him. Wilmerding vs. Mooney, 11 Abb., 283. 
 
 If an unfounded statement has been made by the plaintiff in his affi- 
 davit, the arrest will not stand. Moore vs. Calvert, 9 How., 474. See 
 also as to his perjury, Strong vs. Grannis, 26 Barb., 122. 
 
 An arrest induced by fraudulent i-epresentations, will likewise be 
 vacated. Goupil vs. Simonson, 3 Abb., 474. 
 
 A motion of this nature is the only proper remedy, where the action 
 is one in whicli the defendant cannot be aiTested. Holhrooh vs. Homer, 
 1 0. E. (N. S.), 406 ; 6 How., 86. 
 
 The fact that the plaintiff has levied under an attachment in. another 
 state, is no ground for vacating an arrest in this. Vide Litlmner vs. 
 Turner, 1 C. E. (I^T. S.), 210, and i^owZer vs. ^roc/fc, there referred to. 
 
 The defendant cannot move to vacate, on the ground that special cause 
 for requiring bail has not been shown, as under the former practice. 
 The setting forth a sufficient cause of action is now enough. Baker vs. 
 Swaokhamer, 5 How., 251 ; 3 C. E., 248. 
 
 ' On a motion of this description the defendant cannot set up the de- 
 fence of the statute of limitations, where he has omitted to raise it by 
 his answer. Arthvrtmi vs. Dulley, 20 How., 311. 
 
 A mere ovursrateineiit af tiie plaintiff's claim is noi^perse, a ground 
 
AKBEST AND BAIL. — § 85. 423 
 
 for the discharge or modification of the order. Noble vs. PrescoU, 4 
 E. D. Smith, 139. 
 
 And the amount of bail fixed by one judge, should not be reduced by 
 another, unless new facts are presented, bearing upon the question. 
 Union Bamk vs. Mott, 6 Abb., 315. 
 
 The fact that the defendant has already been arrested for the same 
 cause, under the process of another court, is sufiicient to entitle him to 
 his discharge, or to have the plaintiff put to his election. Hernandez 
 vs. Ca/rndbeli, 4 Duer, 642 ; 10 How., 433. But, to have that eff'ect, 
 such prior process must be valid. Schadle vs. Chase, 16 How., 413. 
 Nor is it sufiicient that the defendant was arrestable, on proceedings 
 instituted in a foreign country ; it must be shown that he was actually 
 arrested. Arthurton vs. Dalley. 20 How., 311. 
 
 As to the effect of a settlement between the parties, altering the nature 
 of the plaintiff's claim, or the merger of that claim in a judgment ob- 
 tained on contract, upon the plaintiff's right to an arrest, see heretofore, 
 under section 82, and cases there cited. Where that right is destroyed 
 or impaired, the defendant is, of course, entitled to his discharge. 
 
 In one case, an application in the nature of a motion to vacate the 
 original arrest, may be made after judgment, 'and that is in the event 
 of the plaintiff^s neglecting to charge the defendant in execution. This 
 remedy is specially provided by the Revised Statutes (2 E. S., 556, 
 §§ 36, 3Y), and has not been abolished by the Code. Wdls vs. Jones, 2 
 Abb., 20. 
 
 In an application by one non-resident against another, it seems the 
 courts will hold the plaintiff to stricter practice, where the case presents 
 any features calling for that coui-se. Hyer vs. Ayres, 2 E. D. Smith, 
 211. 
 
 It has been held that an appeal from an order denying a motion of 
 this description is to be discouraged, and that it should be affirmed, 
 unless the .appellant shows clearly that the necessary facts were not 
 established. Moers vs. Morro, 29 Barb., 361 ; 17 How., 280 ; 8 Abb., 
 257. 
 
 And, where leave has been given to the applicant to renew his mo- 
 tion, and he avails himself of that leave, the appeal cannot be sustained. 
 Fed vs. JEUiott, 16 How., 483 ; Nolle vs. Prescott, 4 E. D. Smith, 139. 
 
 (<?,) OouESE OK Heaeikg. 
 
 Under section 205, the plaintiff, where the defendant moves to vacate 
 upon affidavits, is entitled to introduce supplementary proof in support 
 of the order. Otherwise he cannot do so. 
 
 It has been held,' on the analogous question of replevin, that, on a 
 motion to set aside,, the plaintiff may be allowed to amend his original 
 
424 'AEEEST AND BAIL. — § 85. 
 
 papers. See Bepew vs. Leal, 2 Abb., 131 ; Spaldmg vs. SpaMmg, 3 
 How., 297. See also, as regards arrest, Bell vs. Mali, below cited. 
 
 A verified complaint may be used by the plaintiff to sustain tbe 
 original order. Brady vs. Bissell, 1 Abb.j T6 ; Turner ys. Thompson, 
 2 Abb., 444. 
 
 The counter affidavits, which the plaintiff is entitled to use on such 
 a motion, must be such as meet or repel the case made in the defend- 
 ant's proofs.. The principles on this subject are the same as those 
 imder the former practice. Martin vs. VanderUp, 3 How., 265 ; 1 
 C. E., 41. 
 
 It has been held that he cannot, on such affidavits, set up a ground 
 for retaining the arrest, not put forth as an original ground of the 
 order. Oady vs. Edmonds, 12 How., 197. In Bell vs. Mali, 11 How., 
 254, leave was, however, given to the plaintiffs to amend their com- 
 plaints, which, as framed, were unsustainable, and to supply defects in 
 their affidavits ; the defendants to have the right to answer such new 
 affidavits, and renew the motion for their discharge. 
 
 In Balla/rd vs. Fidler, 32 Barb., 68, and/Sco^iJ vs. WilUwms, 14 
 Abb., 70, evidence of other concurrent .frauds committed by the defend- 
 ant, was allowed to be introduced as proof of his intent in committing 
 the particular fraud charged. See generally Hall vs. Naylor, 18 IST. Y., 
 588, there referred to. 
 
 On the hearing of a motion of this description, it is competent for 
 the court, if it so think fit, to order a reference, and adjourn the de- 
 cision of the motion till the coming in of the report. Ba/rron vs. San- 
 ford, 14 How., 443 ; 6 Abb., 320, note. But, to warrant such a pro- 
 ceeding, it has been held that the case should be very special, so as not 
 to enable the judge himself to come to a satisfactory conclusion upon 
 the facts as made out, without further investigation. Steele vs. Palmer, 
 7 Abb., 181. 
 
 On the granting of a motion of this description, it is competent and 
 usual for the court to impose the condition, that no action shall, be 
 brought for false imprisonment, when it appears that 'the arrest was 
 without malice and upon probable cause. The Northern Eailway 
 Compamy of France vs. Carpentier, 4 Abb., 47 ; Alden vs. Sarson, 4 
 Abb., 102 ; Sachs vs. Bertrand, 22 How., 95 ; 12 Abb., 433 ; Edgerton 
 vs. Ford, 11 Abb., 415 ; McGovern vs. Payn, 32 Barb., 83 (92.) 
 
 A motion of this nature, if denied, cannot be renewed, on any state 
 of facts, without leave of the court. Lovell vs. Martin, 21 How. 238. 
 ' Sa'me case, 12 Abb., 178. 
 
 The discharge of the defendant, if granted, is res judicata, and he 
 cannot be rearrested, even although adjudged guilty of fraud at a trial, 
 had upon his default to appear upon the call of the cause. Steele vs. 
 
AB,B,EST AND BAIL. — § 86. 425 
 
 Palmer, 11 Abb., 62. See also, generally, Enoch vs. Ernst, 21 
 How., 96. 
 
 § 86. Bail Tnj DefendaM. 
 
 Assuming that the defendant is satisfied tlia,t no grounds exist, by 
 means of whicli the order of arrest can be vacated, or the amount of 
 bail reduced, by means of a special application as above ; or if his 
 application has been made, and his discharge denied, two modes are 
 open to him, by which his immediate release may be obtained. 
 
 1. By giving bail in the original or reduced amount fixqd by the 
 order. 
 
 2. By a deposit of the same amount in the hands of the sheriff. 
 These proceedings may be taken by him, under section 186, " at any 
 
 time before execution." After judgment, the plaintiff's remedy ceases 
 of course to be provisional, and beconies absolute, under the execution, 
 if duly issued. See subsequent chapter on that subject. 
 
 (a.) Deposit. 
 
 This mode of procedure is of comparatively rare occurrence. It is 
 regulated by sections 197 to 200 inclusive, as above cited. 
 
 The sum to be deposited, is the amount mentioned in the order. Of 
 course, where the bail has been reduced, the reduced amount only need 
 be paid to the sheriff. On payment, that officer gives the defendant a 
 certificate, whereon he is entitled to his discharge. 
 
 Within four days, the amount must be paid by the sheriff into court, 
 two certificates being taken by him, one of which he delivers to each 
 party. 
 
 The defendant may obtain a return of the amount, on giving and jus- 
 ' tifying bail, at any time before judgment. 
 
 But, on judgment being given, the money is to be applied under the 
 direction of the court. If in favor of the plaintiff, he is entitled to 
 satisfaction' out of the fund. The defendant then receives the surplus ; 
 or, if judgment be in his favor, the whole fund is returned to him. 
 
 Money so deposited becomes, after the giving of bail, the property of 
 the defendant, and is, as such, liable to attachment in the hands of the 
 sheriff, before actual return. Baiter vs. Weiner, 6 Abb., 191. 
 
 (5.) Bail, Natuee of. 
 
 The nature of the bail to be given, is prescribed by section 187. 
 
 The undertaking must be written. 
 
 It must be executed by two or more sufficient sureties. 
 
 It must state their places of residence and occupations. 
 
426 illlEEST AND BAIL. — § 86. 
 
 Unless the arrest is made under the third subdivision of section 179, 
 it must be to the effect that " the defendant shall at all times render him- 
 self amenable to the process of the court, during the pendency of the 
 action, and to such as may be issued to enforce the judgment therein.'' 
 
 If the arrest is made under the third subdivision, the undertaking 
 must then be similar to that prescribed by section 211, to be given on 
 the return of the property in replevin. It must be to the effect that the 
 sureties " are bound, in double the value of the property, as stated in 
 the affidavit of the plaintiff, for the delivery thereof to the plaintiff, if 
 such delivery be adjudged, and for the payment to him of such sum as 
 may, for any cause, be recovered against the defendant." 
 
 The wording of this part of section 187 is obscure, and leaves it 
 somewhat uncertain whether it was the meaning of the legislature that 
 the undertaking in this case should contain the requisites of section 
 211, in addition to, or in substitution for those of section 187. Until , 
 the section be corrected, or its exact construction be settled, it may pos- 
 sibly be the safest course to combine both in the form adopted. 
 
 As to the stringency and effect of this peculiar form of security, see 
 Van Neste vs. Oonover, 8 Barb., 509 ; 5 How, 148. Unless the case is 
 clearly brought within the terms of the subdivision, the court will not 
 enforce it, but will only require the more ordinary security. Pihe vs. 
 Lent, 4 Sandf , 650 ; Mulvey vs. Davison, 8 How, 111. , 
 
 (c.) Bail, Qualifications of. 
 
 The qualifications of parties proposed as bail are declared by section 
 194, as follows : 
 
 Each must be a resident, and householder or freeholder within the 
 state. 
 
 Each must be worth the amount specified in the order of arrest, ex- 
 clusive of property- exempt from execution ; or more than two may be 
 allowed to justify severally, in lesser amounts, if the whole justification 
 be equivalent to two sufficient bail. 
 
 The above specific qualifications, now rendered imperative, do not, 
 however, affect the question of disqualification on other grounds, when 
 applicable. The old common law doctrines in this respect are unaf- 
 fected by the Code. An attorney, therefore, or his clerk, remains dis- 
 qualified, although he may otherwise satisfy all the conditions imposed 
 by section 194. Miles vs. Clarh, 2 Bosw., 709 ; affirmed, 4 Bosw., 
 632 ; Wheeler vs. Wilcox, 7 Abb., 73 ; see also Byckman vs. CoUrmm, 
 13 Abb., 398. So also as to officers of the court — persons temporarily 
 or .permanently privileged — persons indemnified by the defendant's 
 attorney — persons manifestly unworthy of trust, &c., &c. 
 
ARREST AND BAIL. — § 8'?. 427 
 
 (d.) Undeetaking, IIS Incidents and Form. 
 
 The sheriff, on taking bail, is confined to and must strictly pursue 
 the authority conferred by the statute. It seems, however, that if the 
 plaintiff personally discharge the debtor from arrest, he may take any 
 security he pleases. Vide Decker vs. Jvdson, 16 IST. Y., 439 (442). It 
 has been held that, where proceedings are taken in a court of limited 
 jurisdiction, the sureties ought to be resident within the district em- 
 braced in its powers. See Herriok vs. Taylor, 1 C. E. (E. S.), 382, note. 
 This conclusion seems, however, doubtful. 
 
 The undertaking, and the affidavits of justification by the sureties, must 
 be in strict conformity with the wording of the statute. See sections 
 187, 194. The place of residence and occupation of the sureties must 
 be stated — section 187. The undertaking itself must, under rule 6, be 
 proved or acknowledged by the latter as a deed of real estate, before it 
 can be received or filed. It must, of course, be signed, and the afiida- 
 vits sworn to by all of them ; when perfected, it must be delivered to 
 the sheriff, who. is bound to receive the bail, if sufficient, and to release 
 the defendant thereiipon ; though of course it is competent for him to 
 refuse an undertaking, deficient in any respect, either as regards the 
 sureties, or the form of the document itself The sheriff must then, 
 " within the time limited by the order, deliver the order of arrest to 
 the plaintiff or attorney by whom it is subscribed, with his return 
 indorsed, and a certified copy of the undertaking of the bail." See 
 section 192. The original remains with him for the present— subject 
 of course to the direction of the court. On justification, however, in 
 the event of the sureties being excepted to, it passes out of his posses- 
 sion into that of the clerk, as below shown. 
 
 § 87. JException and Justifioation. 
 
 (a.) Exception. 
 
 If the plaintiff is not satisfied with the bail taken by the sheriff, his 
 course is to serve upon the latter a notice that he does not accept it. 
 This must be done within ten days after the receipt by him of the sher- 
 iff's return, and of a certified copy undertaking, as prescribed by see- 
 on 192. 
 
 The omission so to except, is an acceptance of the bail, and exoner- 
 ates the sheriff from liability. It is, also, a waiver of all technical ob- 
 jections to the capacity of the sureties. See Miles vs. Clarke, 4 Bosw., 
 632 ; affirming same case, 2 Bosw., 709. 
 
428 AEREST AND BAIL. — § 87. 
 
 (5.) Notice of Justifioatiok. 
 
 On receipt of notice of exception, the sheriff or the defendant may, 
 within ten days thereafter, give to the plaintiff or his attorney, notice 
 of justification of the same or of substituted bail (specifying, in that case, 
 the places of residence and occupations of the latter), before a judge of 
 the court or a county judge, at a specified time and place, the time to 
 be not less than five, nor more than ten days thereafter. In case other 
 bail be given, there must be a new undertaking executed — section 194. 
 
 Rule 5 (83) prescribes that, in such case, the bail shall justify in the 
 county where the defendant shall have been arrested, or where such 
 bail reside. This must, of course, be attended to in the specification of 
 place. 
 
 The period for justification by the" sureties, may be extended beyond 
 the limit prescribed in the notice, on good cause shown ; an order must, 
 however, be duly obtained, and a fresh notice given. Burns vs. Rob- 
 Uns, 1 C. E., 62. 
 
 A stipulation between the attorneys, if entered into in due form, 
 will, of course, have the same effect. 
 
 (c.) Justification. 
 
 "Whenever due notice of justification has been given, the plaintiff is 
 bound to attend, at the time and place specified, or, as of course, the 
 bail will stand perfected, and the sheriff discharged. By not attending, 
 he wholly waives the benefit of his exception, and this will equally be 
 the case though the sureties themselves may fail to attend. Vide Bal- 
 lard vs. Ballard, 18 IST. Y., 491. 
 
 If, on the contrary, the notice be given for a wrong county, it will 
 be a nullity, and the sheriff will not be discharged, unless the plaintiff 
 waive the objection, by appearing on the examination, or otherwise by 
 direct acquiescence in the proceeding. 
 
 On a technical failure of the sureties to attend, at the time and place 
 appointed, a re-justification was ordered, on an undertaking on appeal, 
 in Hees vs. Snell, 8 How., 185. 
 
 The mode of procedure, on justification, is prescribed by section 195. 
 Each of the bail must attend before the judge or justice, at the time and 
 place specified. Each may be examined on oath by the plaintiff touch- 
 ing his sufficiency, in such manner as the judge or justice may prescribe. 
 As to the evident mistake in this and the analogous sections, on the 
 amendment of 1851, and the evident power of the county judo-e, in lieu 
 of a justice of the peace, in this matter, see note to the above section 
 as cited in section 80, supra. 
 
 On a fiiilure on the part of the sureties to attend, the plaintiff should 
 
AEEEST AND BAIL. — § 8T. 429 
 
 obtaiu from the judge or officer a certificate of that fact, in order to the 
 establishment of the sheriff's liability, if necessary. "When he has 
 regularly attended, and the adverse party has failed to be present, it 
 seems that the latter result must necessarily follow. In Hees vs. STidi, 
 supra, the sureties, on appeal, attended and justified at a later hour ; 
 and this proceeding was treated' as irregular, and a re-justification 
 ordered. On arrest, a stricter rule would probably be enforced, and the 
 proceeding held void, though possibly the time to justify might be ex- 
 tended, on suflBcient cause shown. 
 
 "When, on the contrary, the sureties attend, the examination regularly 
 proceeds. It must be reduced to writing, and must also be subscribed 
 by the bail, if required by the plaintiff. 
 
 Both of the sureties must be examined, and must answer all rea 
 sonable questions as to their sufficiency, within the discretion of the 
 presiding officer. A failure to answer, when required, will of course 
 involve a failure of the justification. K either surety fail to justify, the 
 proceedings will be incomplete, and the sheriff will not be discharged. 
 It is competent, however, for the judge or justice to allow others to 
 be substituted for the defaulting surety or sureties, and leave should be 
 applied for at the time, to do so, and to give fresh notice. 
 
 In this case, such substituted sureties must attend and submit to a 
 similar examination. A new undertaking must be executed. Section 
 193. 
 
 On the substituted justification, it is also competent for the judge to 
 allow more than two bail in the whole to justify, in amounts less than 
 that expressed in the order. Section 194. 
 
 But, in any case where more than two justify, whether on the original 
 or on a substituted justification, the whole justification must be equal 
 to that of two sufiicient bail. If not, the proceeding will be irregular. 
 Vide Oraham vs. Wells, 18 How., 376. 
 
 In the event of the bail failing to justify, they are liable to the 
 sheriff, for all damages which, he may sustain by reason of such omis- 
 sion. The giving or justification of substituted bail, will, however, 
 discharge the original sureties. See section 203. 
 
 "When the examination has been had, and the justification proves 
 insufficient, a certificate of the fact should be obtained by the defend- 
 ant from the presiding officer, as suggested before, in the case of a 
 default' to attend. 
 
 "Where, on the contrary, the bail on justification is found sufficient, 
 the duty of the presiding officer is prescribed by section 194. He is 
 to annex the examination to the undertaking, and cause both to be 
 filed with the clerk. The attorney for the defendant will, as a general 
 rule, be the proper party to see that this is done. It moris imme- 
 
430 AKEEST AND BAIL. § 88. 
 
 diately however, concerns the sheriff, as, until the proceeding is com- 
 plete, he will not be exonerated from liability. Its completion dis- 
 charges him. See same section. 
 
 The undertaking then passes out of the possession of the sheriff 
 into that of the clerk, in whose custody it thenceforth. remains, subject 
 to the directions of the court. The proper clerk is the clerk of the 
 county in which the action is triable, either originally or by change of 
 venue. Code, § 466. In a court of special jurisdiction, the clerk of 
 that court is, of course, the proper depositary. 
 
 In the event of a failure on the part, of the plaintiff to except, and 
 the consequent acceptance by him of the bail, involving a similar exon- 
 eration of the sheriff from liability, the undei-taking still remains in the 
 custody of that officer. No provision is made, enabling him to file it, 
 in such case, with the clerk. It seems, however, to be rather contem- 
 plated by section 188. 
 
 The justification or acceptance of bail, when complete, cannot be re- 
 opened, on the ground of the subsequent insolvency of the sureties. The 
 discharge of the sheriff is absolute. See analogous decisions, in Willett 
 vs. Stringer, 6 Duer, 686 ; 15 How., 310 ; Dudley vs. Goodrich, 16 
 How., 189. 
 
 § 88. Sv/rrender hy Bail. 
 
 At any time before a failure to comply with their undertaking, it is 
 competent for the bail to surrender the defendant, or for him to surren- 
 der himself in their exoneration. 
 
 The practice, in this respect, is analogous to that prior to the Code, 
 imder 2 E. S., part III., chap. VI., article III., §§ 380 to 383, inclusive. 
 
 The present mode of procedure is prescribed by sections 188 and 189. 
 
 Under subdivision 1 of the former section, a certified copy of the un- 
 dertaking shall be delivered to the sheriff. That officer is then to de- 
 tain the defendant thereon, as upon an order of arrest. He is, there- 
 upon, by a certificate in writing, to acknowledge the surrender. 
 
 Under section 189, the bail, at any time or place, before they are 
 finally charged, may themselves arrest the defendant ; or, by a written 
 authority, indorsed on a certified copy of the undertaking, they may 
 empower any person of suitable age and discretion to do so. 
 
 On such arrest by any person other than the sheriff, the defendant 
 must, of course, be delivered over into the custody of that officer, and 
 his certificate of surrender obtained with all practicable dispatch. 
 
 When the defendant is within the county, the more usual mode will, 
 of course, be to deputize the sheriff himself, or one of his officers. 
 When the party to be arrested is out of its limits, the bail must act 
 themselves, or appoint a special agent. 
 
AEEEST AND BAIL.' — § 89. 431 
 
 In re Taylor, 7 How., 212, it was considered by Humphrey, county 
 judge, that it was competent for any one or more of several bail, to 
 give the authority above provided for, without the concurrence of all 
 concerned ; and also, that though they had failed to justify, the bail in 
 that case were competent to surrender their principal, and authorized 
 to take all necessary steps for that purpose. 
 
 The period within which this authority may be exercised by the bail, 
 is fixed by section 191. They are allowed twenty days for that pur- 
 pose, from the commencement of an action against them, or within 
 such further time as may be allowed by the court. The right of action 
 does not, of course, accrue, until a judgment has been obtained against 
 their principal, and an execution against his property issued and re- 
 turned unsatisfied. 
 
 "When, however, the twenty days have once expired, and the time 
 for surrender has not within that period been extended, it is no longer 
 legally competent for the bail to siirrender their principal, or for the 
 sherifl" to hold him. Baker vs. Ourtis, 10 Abb., 2Y9. 
 
 It is, however, competent for the court to relieve the sureties in such 
 a case, and to allow of a subsequent surrender, on payment of the costs 
 of the action, under the general authority conferred by section 172. 
 Gilbert vs. Bulkley, 1 Duer, 668. But such relief is discretionary, and 
 will not be granted, where connivance or laches esist on the part of the 
 sureties, vide Baker vs. Ourtis, supra. In Batik of Geneva vs. Rey- 
 nolds, 20 How., 18 ; 12 Abb., 81, it was considered that, where bail 
 apply for leave to make a surrender after the expiration of the legal 
 period, they should be required to disprove the fact of being indemni- 
 fied by their principal, and that, if such be the case, their application 
 should be denied. The discretion of the court in this respect was ac- 
 cordingly held to have been improvidently exercised, but, as it could 
 not be reviewed upon appeal, a rehearing at special term was directed. 
 See long note upon the subject of the discharge or exoneration of bail, 
 at 12 Abb., 81. , 
 
 § 89. Exoneration of Bail. 
 
 The cases in which the bail may be exonerated are prescribed by sec- 
 tion 191. They are as follows : 
 
 1. By the death of the defendant. 
 
 2. By his imprisonment in a state prison. 
 
 3. By Ms legal discharge from the obligation to render himself ame- 
 nable to the process. 
 
 4. By his surrender to the sheriff of the county where he was arrest- 
 ed, in execution of such process, within the time limited, as stated in the 
 
432 AEKEST AND BAIL. — § 89. 
 
 last section. See generally, as to the exoneration of bail, Bamk of 
 Geneva vs. Reynolds, 20 How., 18 ; 13 Abb., 81, and note, at latter 
 reference. 
 
 As to the right of the bail to move for a discharge, on the ground of 
 the death of their principal, and as to their power to obtain such relief, on 
 facts from which the presumption of that death may legally be drawn, 
 see Merritt vs. Thompson, 1 Hilt., 550 ; as to the period at which they 
 can claim exoneration in such case, even after action brought against 
 them, see Hayes vs. Carrington, 21 How., 142 ; 12 Abb., 179. 
 
 The expression, "imprisonment in a state prison," will, probably, 
 not be confined to a prison in this state, but receive construction, with 
 reference to section 4 of chapter 231, of 1846, which prescribes that, 
 whenever a bail-bond shall have been taken, on the arrest of a party in 
 a suit at law, or in equity, and such " party shall be subsequently im- 
 prisoned, either in this state, or in any other state or territory of the 
 United States, or in Ca'nada, or elsewhere, on a criminal charge," the 
 court in which the suit is pending, shall have power, upon due notice 
 to the opposite party, " to make such reasonable order for the rplief of 
 such bail, as they may see fit to grant." 
 
 In the Union Bank vs. Mott, 19 How., 114 ; 10 Abb., 3Y2, on a mo- 
 tion by the plaintiff for leave to amend during the trial, the original 
 bail were discharged, the amount required having been excessive, and 
 the propriety of the original arrest doubtful, on the facts as then shown ; 
 but without prejudice to a new application for arrest, under the amend- 
 ed complaint. 
 
 (ffi.) ExONEEETUR. 
 
 In the event of surrender, the course to be pursued by the bail to 
 obtain an exoneration, is substantially the same as under the former 
 practice, and is specially prescribed by subdivision two of section 188. 
 
 Notice of eight .days must be given to the plaintiif. 
 
 A certified copy of the undertaking, and of the sheriff's certificate of 
 surrender, under subdivision one of the same section, must be produced. 
 
 A copy of that certificate must be served upon the plaintiff, with the 
 notice. 
 
 Application must then, on the expiration of the notice, be made to 
 a judge of the court, or county judge. 
 
 It is of course competent for the plaintiff, if he can show cause, to 
 oppose the motion ; as for instance, where the application is not made 
 in due time, within the limitation imposed by section 191. 
 
 Where, however, the applicant has been regular in his practice, and 
 the defendant duly surrendered, the order will be nearly as of course. 
 On a motion of this description, it is not competent for the bail to ques- 
 
AEREST AND BAIL. — § 90, 433 
 
 tion the legality of the original arrest ; their undertaking estops them. 
 Vide Barksr vs. Russell, 11 Barb., 303 ; ICE. (N. S.), 5Y, reversing 
 same case, 1 C. E. (TST. S.), 5 ; Oregory vs. Levy, 12 Barb., 610 ; T How., 
 3T ; Holhrooh ys. Homer, 6 How., 86 ; 10. E. (N. S.), 406. 
 
 The arrest of the defendant under execution against his person, on 
 final judgment in the same action, is, of course, per se, an exoneration 
 of the bail, without the necessity of any special order for that purpose, 
 and their undertaking is then performed. 
 
 But this observation is not applicable to, nor does the subdivision 
 now in question, comprise an undertaking on ari'est, under subdivision 
 three of section 1Y9. In that case, the sureties still remain responsible 
 for the value of the property in respect of which the arrest is made, 
 and generally, for the payment of any judgment recovered by the plain- 
 tiff against the defendant. ISTothing but full satisfaction and payment 
 of that judgment, will, in this case, avail to discharge their liability. 
 See section 179, subdivision three, sections 187 and 188, subdivision two. 
 
 The award of judgment in favor of their principal, is of course a dis- 
 charge of the liability of bail, whilst that judgment subsists ; but if, upon 
 appeal, it be reversed, or if it be set aside, with liberty to the plaintiff 
 to proceed in the action, their liability revives. Yan Gerard vs. LighU, 
 13 Abb., 101. As to the necessity of an application for an exoneretur 
 being made, in order to set in motion the time, within which the plain- 
 tiff is bound to charge the defendant in execution, see Sills vs. Lewis, 
 13 Abb., 101, note. 
 
 § 90. Sheriff's Liability. 
 
 This liability is provided for by section 201. 
 
 The sheriff himself is liable as bail in the following cases : 
 
 1. If, after being arrested, the defendant escape or be rescued. 
 
 2. If bail be not given ; or, if given, it be not justified. 
 
 3. Or, if a deposit be not made in lieu thereof. 
 
 He may, however, at any time, before process issued against the 
 person of the defendant to enforce an order or judgment in the action,' • 
 discharge himself from such liability, by the giving and justification of 
 bail, in the ordinary manner, as provided in sections 193 to 196 in- 
 clusive. 
 
 In the event of any judgment being recovered against him on this 
 liability, and remaining unsatisfied on execution, recourse may be had 
 for any deficiency, against his sureties on his official bond, as in other 
 cases of delinquency. 
 
 In assuming these liabilities he is, however, entitled to the same 
 privileges as ordinary bail. He may arrest and surrender the defend- 
 
 YoL. I.— 28 
 
434 AEEEST AND BAIL. § 92. 
 
 ant in the same manner and within the same period. No special pro- 
 cess is necessary to enable him to make that arrest, and if, at any time, 
 within the prescribed limit, he can, by any lawful means, obtain the 
 custody of the defendant's person, so that he can be held in execution, 
 his liability will be discharged. JBuokmrni vs. Oarnley, 9 How., 180 ; 
 8a/rtos vs. Merceques, 9 How., 188 ; Daguerre vs. Orser, 3 Abb., 86 • 
 MeOregory vs.' Willett, 17 How., 439 ; Sea/uer vs. Genner, 10 Abb., 
 256 ; Daguerre vs. Orsev, 10 Abb., 12, note. 
 
 In relation to the liability of the sheriff in such cases, being identical 
 with that of bail, who have failed to surrender their principal, see Oal- 
 la/rati vs. Orser, 4 Bosw., 94 ; Metcalf vs. Stryker, 31 Barb., 62 ; 10 
 Abb., 12 ; MeCreery vs. Willett, 22 How., 91. 
 
 Of course these provisions and decisions in no wise effect the sub- 
 sequent liability of tlie sheriff for an escape or rescue of the defendant, 
 after he has been charged in execution against his person, which arises 
 under different conditions, and is governed by different rules. As to 
 the nature of his liabihty, on an escape after execution, vide Metoalf 
 vs. Sim/her, supra. 
 
 § 91. Remedies against Bail. 
 
 This remedy is now by action only. Section 180. 
 
 In order to commence this action it does not appear to be necessary 
 that the undertaking should be previously delivered out of Court to the 
 plaintiff. TheA seems, on the contrary, a manifest impropriety in 
 doing so. It should remain in the original custody, in order that, on 
 application of the bail, a certified copy may be obtainable, to enable 
 them to procure the surrender of the defendant, under sections 188 and 
 189. A copy, or even an examination of the document, is all that is ne- 
 cessary to enable the plaintiff to commence and proceed with his action, 
 and its production upon the trial may be obtained in the usual manner. 
 
 The proceedings in such an action, when brought, are the same as 
 in other cases, and therefore fall under their appropriate heads, in the 
 other portions of this work. 
 
 § 92. Disoharge from Arrest. 
 
 . The provisional arrest, under the powers of this chapter, will be- 
 come merged in a subsequent imprisonment of the defendant, when 
 finally charged on execution against the person. The entry of judg- 
 ment in his favor, of course, entitles him to his immediate release, if 
 actually imprisoned at the time, unless provision to the contrary be 
 made by the court, before such entry. 
 
EEPLEVES". — § 93. 435 
 
 In the mean time, between the entry of judgment in favor of the 
 plaintiff, and the retiu-n of an execution against the defendant's prop- 
 erty unsatisfied, which, under section 288, must necessarily precede the 
 issuing of one against his person, the vitality of the original arrest con- 
 tinues unimpaired, and the defendant, if then in custody, will remain 
 charged under it, with deprivation, from the entry of that judgment, 
 of the power he previously possessed of moving to vacate the order or 
 to reduce the amount of bail — section 204. In the event of any vexa- 
 tious delay on the part of the plaintiff, to charge the defendant in exe- 
 cution, after the time for doing so has arrived, the latter has his remedy 
 by motion for a supersedeas. See this subject hereafter considered, 
 under the head of Execution against the Person. Vide Wells vs. Jones, 
 2 Abb., 20 ; MiU vs. Lewis, 13 Abb., 101, note, supra. 
 
 {a.) DiSCHAEGE BY OpEEATION OP Law, OE OTHERWISE. 
 
 It remains to consider the cases in which a defendant may be dis- 
 charged from arrest, under special circumstances, or by operation of 
 law. 
 
 Insanity, either at or subsequent to the arrest, forms no ground for an 
 unconditional discharge. The only manner in which a defendant can 
 be removed from the legal custody, is under the act in relation to luna- 
 tic asylums, passed on the 7th of April, 1842, and that, during his in- 
 sanity only. Bush vs. Pettihone, 4 Comst., 300 ; 1 0. E. (IST. S.), 264. 
 
 A defendant will be released from imprisonment, by operation of law, 
 on his discharge as an insolvent, under the provisions of title I., chap- 
 ter v., part n., of the Eevised Statutes, particularly of articles 3, 4, 5, 
 6, and 7 of that title. See 2 R. S., pp. 1 to 52. The proceedings in re- 
 lation to a discharge of this nature are in no wise affected by the Code. 
 
 CHAPTER n. 
 
 KEPLEVIN. 
 
 § 93, Statutory and other Provisions. 
 
 This remedy, closely analogous to the former practice in like cases, 
 forms the subject of chapter II., title YII., part II. of the Code. 
 That chapter runs as follows : 
 
436 EEPLEvm. — § 93. 
 
 Chaptee n. 
 Claim and Delivery of Personal Property. 
 
 § 206. (181.) The plaintiff, in an action to recover the possession of per- 
 sonal property, may, at the time of issuing the summons, or at any time be- 
 fore answer, claim the immediate delivery of such property as provided in 
 this chapter. 
 
 Dates from 1849. lu the original Code the remedy was only obtainable " at the time of 
 commencing the action." 
 
 § 207. (182.) Where a delivery is claimed, an affidavit must be made by 
 the plaintiff, or by some one in his behalf, showing, 
 
 1. That the plaintiff is the owner of the property claimed (particularly 
 describing it), or is lawfully entitled to the possession thereof, by virtue of a 
 special property therein, the facts in respect to which shall be set forth. 
 
 2. That the property is wrongfully detained by the defendant. 
 
 3. The alleged cause of the detention thereof, according to his best knowl- 
 edge, information, and belief. 
 
 4. That the same has not been taken for a tax, assessment, or fine, pursu- 
 ant to a statute ; or seized under an execution or attachment against the 
 property of the plaintiff; or, if so seized, tliat it is, by statute, exempt from 
 such seizure ; and, 
 
 5. The actual value of the property. 
 
 § 208. (183.) The plaintiff may, thereupon, by an indorsement in writing 
 upon the affidavit, require the sheriff of the county where the property 
 claimed may be, to take the same from the defendant, and deliver it to the 
 plaintiff. 
 
 § 209. (184.) Upon the receipt .of the affidavit and notice, with a written 
 undertaking, executed by one or more sufficient sureties, approved by the 
 sheriff, to the effect that they are bound, in double the value of the property 
 as stated in the affidavit, for the prosecution of the action ; for the return of 
 the property to the defendant, if return thereof be adjudged ; and for the 
 payment to him of such sum as may, for any cause, be recovered against the 
 iJaintiff; the sheriff shall forthwith take the property described in the affi- 
 davit, if it be in the possession of the defendant or his agent, and retain it 
 in his custody. He shall also, without delay, serve on the defendant a copy 
 of the affidavit, notice, and undertaking, by delivering the same to him per- 
 sonally, if he can be found, or to his agent, from whose possession the prop- ! 
 erty is taken, or, if neither can be found, by leaving them at the usual place 
 of abode of either, with some person of suitable age and discretion.- 
 
 Dates, as it stands, from 1849. In 1848 notice of justification of the sureties was also to be 
 served. 
 
 § 210. (1 85.) The defendant may, within three days after the service of a copy 
 of the affidavit aiid undertaking, give notice to the sheriff that he excepts tj 
 
REPLEVIN. § 93. 43T 
 
 %the sufficiency of the sureties. If he fail to do so, he shall be deemed to 
 have- waived all objection- to them. When the defendant excepts, the sure- 
 ties shall justify, on notice, in like manner as upon bail on arrest. And the 
 sheriff shall be responsible for the sufficiency of the sureties, until the objec- 
 tion to them is either waived as above provided, or until they shall justify, 
 or new sm'eties shall be substituted and justiiy. If the defendant except to 
 the sureties, he cannot reclaim the property, as provided in the next section. 
 
 Dates from 1849. Substituted for section 185 of 1848, which was shorter and less specific. 
 
 § 211. (186.) At any time before the delivery of the property to the plain- 
 tiff, the defendant may, if he do not' except to the sureties of the plaintiff, 
 require the return thereof, upon giving to the sheriff a written undertaking, 
 executed by two or more sufficient sureties, to the effect that they are bound, 
 in double the value of the property as stated in the affidavit of the plaintiff, 
 for the delivery thereof to the plaintiff, if such delivery be adjudged ; and 
 for the payment to him of such sum as may, for any cause, be recovered 
 against the defendant. If a return of the property, be not so required, within 
 three days after the taking and service of notice to the defendant, it shall 
 be delivered to the plaintiff, except as provided in section 216. 
 
 Dates, as it stands, from 1849. In 1848 the defendant's right to a return, on giving the 
 security, was absolute, without any provision for a right of exception on the part of the 
 plaintiff. 
 
 § 212. (187.) The defendant's sureties, upon a notice to the plaintiff of 
 not less than two, nor more than six days, shall justify before a judge or 
 justice of the peace, in the same manner as upon bail on arrest ; upon such 
 justification, the sheriff shall deliver the property to the defendant. The 
 sheriff shall be responsible for the defendant's sureties, until they justify, or 
 until justification is completed or expressly waived; and may retain the 
 property until that time ; but, if they, or others in their place, fail to justify, 
 at the time and place appointed, he shall deliver the property to the plaintiff. 
 
 Dates, as it stands, from 1849, Less comprehensive in 1848. 
 
 § 213. (188.) The qualifications of sureties, and their justification, shall be 
 as are prescribed by sections 194 and 195, in respect to bail upon an order 
 of arrest. 
 
 § 214. (189.) If the property, or any part thereof, be concealed in a build- 
 ing or enclosure, the sheriff shaU publicly demand its delivery. If it be not 
 delivered, he shall cause the building or enclosure to be broken open, and 
 take the property into his possession ; and, if necessary, he may call to his 
 aid the power of his county. 
 
 § 215. (190.) When the sheriff shall have taken property, as in this chap- 
 ter provided, he shall keep it in a secure place, and deliver it to the party 
 entitled thereto, upon receiving his lawful fees for taking, and his necessary 
 expenses for keeping the same. 
 
 § 216. If the property taken be claimed by any other person than the 
 defendant or his agent, and such person shall make affidavit of his title 
 
438 KEPLEvm. — § 94. 
 
 thereto, and right to the possession thereof, stating the grounds of such 
 right and title, and serve the same upon the sheriff, the sheriff shall not be 
 bound to keep the property, or deliver it to the plaintiff, unless the plaintiff, 
 on demand of him or his agent, shall indemnify the sheriff against such 
 claim, by an undertaking, executed by two sufScient sureties, accompanied 
 ' by their affidavits that they are each worth double the value of the property, 
 as specified in the affidavit of the plaintiff, and freeholders and householders 
 of the county. And no claim to such property by any other person than 
 the defendant or his agent shall be valid against the sheriff, unless made as 
 aforesaid ; and, notwithstanding such claim, when so made, he may retain 
 the property a reasonable time, to demand such indemnity. 
 
 This and the next section were not in the original Code, but were first inserted, as they now 
 stand, on the amendment of 1849. 
 
 § 217. The sheriff shall ffle the notice and affidavit, with his proceedings 
 thereon, with the clerk of the court in which the action is pending, within 
 twenty days after taking the property mentioned therein. 
 
 By section 423, special provision is made as to the undertakings pro- 
 vided for by this chapter. Instead of being filed with the clerk, as in 
 all other cases, it is expressly directed that all such undertakings " shall, 
 after the justification of the sureties, be delivered by the sheriff to the 
 parties, respectively, for whose benefit they are taken." 
 
 § 94. General Remarhs. — Right to ReiTiedy. 
 
 The provisions of the Code, in this respect, are in substitution for the 
 provisional relief obtainable in an action of replevin, under the old prac- 
 tice. Tide 2 E. S., part III, chapter YIII., title XII. ; 2 E. S., 522 to 
 534, inclusive. 
 
 The subject now immediately under consideration, being simply the 
 provisional remedy obtainable in an action of this description, and not 
 the proceedings in the action itself, it is not proposed to enter, for the 
 present, on any lengthened consideration of the rights of parties in this 
 respect, or the mode in which those rights are ultimately enforced. 
 These will be considered hereafter, under their proper heads. 
 
 The citation of a few decisions bearing upon such rights in general, 
 and the cases in which it is or is not obtainable by a party seeking it, 
 may not, however, be inappropriate on the present occasion. 
 
 To obtain the remedy in question, the party seeking it must show an 
 absolute title to goods, of which he seeks to obtain the possession, or an 
 absoliite special property in them, and also an immediate and undi- 
 vided right to that possession. A lessor of chattels cannot, therefore, 
 maintain replevin for them, during the existence of his lessee's term. 
 The remedy is in the latter. Bruc& vs. Westervelt, 2 E. D. Smith 440. 
 
EEPLEVIW. — § 94. 439 
 
 Nor can one partner maintain it against another. Azel vs. Belz, 2 E. 
 D. Smith, 188 ; Koningsburg vs. Laimitz, 1 E. D. Smith, 215. N"or 
 vfill such an action lie, at the suit of one tenant in common of chattels, 
 against another, or the bailee of that other. Russell vs. Allen, 3 
 Kern., 1Y3. 
 
 The plaintiff's right must be clear, and void of impeachment. A 
 gambling apparatus, seized by and in custody of the police, was accord- 
 ingly held not to be repleviable. Willis vs. Warren, 1 Hilt., 590 ; 17 
 How., 100. 
 
 A mere equitable lien cannot be so enforced, the action being strictly 
 a possessory action. Otis vs. Sill, 8 Barb., 102. To maintain replevin 
 for property, in respect of which a lien is claimed, the plaintiif must be 
 entitled, not merely to a charge upon, but to the possession of, that 
 property. McCurdy vs. Brown, 1 Duer, 101. 
 
 The plaintiff in such cases has, as a general rule, an election, whether 
 he will sue in replevin or trover. To entitle him to the remedy con- 
 sidered in the present chapter, he must adopt the former mode of pro- 
 cedure. Th» action must be strictly possessory. If he sues for a con- 
 version, and asks judgment for the value, and not for the return of the 
 goods, proceedings under the present chapter will be void. Spalding 
 vs. Spalding, 3 How., 297 ; 1 0. E., 64 ; Bows vs. Oreen, 3 How., 377 ; 
 Seymour vs. Vam, Cv/ren, 18 How., 94. See also Maxwell vs. Fanfnam, 
 7 How., 236. 
 
 The plaintiff must, in like manner, elect between the present remedy, 
 and that of arrest, for the wrongful taking of property. If he avail 
 himself of the latter, he cannot subsequently maintain the former. See 
 last chapter, section 82, siibdivision 3, and case of Ohappel vs. Skinner, 
 6 How., 338, there cited. 
 
 Where the defendant has iondjide parted with the possession of the 
 property claimed, before suit brought, replevin is not maintainable ; but 
 where, on the contrary, he has so parted with it, with a fraudulent in- 
 tent, this form of procedure may be adopted. See last chapter, section 
 82, subdivision 3, and cases of Broohway vs. Burnap / Yan Neste vs. 
 Conover ; Savage vs. Perhins, and Drake vs. Wakefield, there cited. 
 See also Nichols vs. Michael, 23 ]^. Y., 264. 
 
 Beplevin will lie against goods in the hands of an .actual purcha- 
 ser, after delivery, where he has obtained that delivery by means of 
 fraudulent representations. Hvmier vs. The Hudson, Biver Iron 
 amd Machine Company, 20 Barb., 493 ; Yam Neste vs. Conover, 20 
 Barb., 547 ; or, where such purchaser has not fully complied with the 
 conditions under which the delivery was made. Kidd vs. Belden, 19 
 Barb., 266. 
 And a fraudulent vendee of goods, and his assignee for creditors, are 
 
440 EEPLEVIlf. — § 95. 
 
 liable to be jointly sued for tbeir possession. Nichols vs. Michael, 23 
 N. T., 264. 
 
 Where the defendant's possession is fraudulent, no previous demand 
 will be necessary, before commencing the action. Hunter vs. The, 
 Hudson River Iron md Machine Company, supra ; Prvngle vs. Phil- 
 Ups, 5 Sandf, 157. But, where the defendant is an innocent holder, 
 or has come into possession of the property as assignee, or bailee of the 
 original wrongdoer, demand must be made, unless he can be charged 
 with fraud or complicity in the transaction. Fuller vs. Lewis, 13 
 How., 219 ; 8 Abb., 383. 
 
 The obtaining, or not obtaining, of the provisional remedy, has no 
 bearing upon the plaintiff's right to maintain the action. He may, if 
 he chooses, dispense with his privilege in this respect. Vogel vs. Bad- 
 coolc, 1 Abb., 176. 
 
 § 95. Provisional Remedy, how obtained. 
 
 (a.) Time of Obtaintng. 
 
 This, under section 206, is at the time of issuing the s\immons, or at 
 any time before answer. The remedy is therefore only obtainable at 
 the outset of the action, and, if delayed until after the service of the 
 complaint, may be frustrated by an answer being put in. 
 
 The usual and obvious course is, therefore, to draw the papers and 
 obtain the remedy, at the very outset of the action, concurrently with 
 the issixing of the summons. 
 
 In justices' courts, it will be seen above that the right is still further 
 restricted, and is only exercisable at the time of issuing the summons, 
 and not afterwards. 
 
 (5.) Affidavit. 
 
 The first step to be taken is the affidavit required by section 207. 
 
 The preparation of this document must be carefully attended to, as, 
 the proceeding being statutory in its nature, every requisite prescribed 
 must be strictly complied with. 
 
 It may be made either by the plaintiff himself, or by some one on 
 his behalf 
 
 It must show as follows : 
 
 1. That the plaintiff is owner of the property claimed, or that he is 
 lawfully entitled to the possession of it, by virtue of a special property 
 therein. 
 
 If he is entitled by virtue of such a special property, the facts in 
 respect to that special property must be set forth. 
 
 A particular description of the property must be given. 
 
EEPLEVEsr. — § 95. 441 
 
 Where the plaintiff claims the property as owner, a bare allegation 
 to that effect, in the words of the statute, is suificient. The facts as to 
 his right need only be set forth, when he claims, in the words of the 
 section, " a special property therein." Burns vs. Robhins, 1 C. E., 62 ; 
 Vandeniurgh vs. Van Yalkenburgh, 8 Barb., 21 Y. 
 
 Where, on the contrary, such a special property is claimed, the facts 
 out of which it arises must be set out. This must be done concisely, 
 but with sufficient fullness to make the fact clearly appear ; and, where 
 the evidence of the facts relied on rests in a writing, that writing should 
 be set out, as the basis of the conclusion that such special property ex- 
 ists. Depew vs. Leal^ 2 Abb., 131. 
 
 The affidavit must further show — 
 
 2. That the property is wrongfully detained by the defendant ; and, 
 
 3. The alleged cause of detention thereof, according to the deponent's 
 best knowledge, information, and belief 
 
 The allegation of detention may be made in the words of the statute ; 
 the cause of detention should, of course, be set forth with sufficient full- 
 ness to make it clearly appear. 
 
 The affidavit must further show, in the next place, 
 
 4. That the property in question has not been taken for a tax, assess- 
 ment, or Une, pursuant to a statute ; or been seized under an execution 
 or attachment against the property of the plaintiff ; or, if so seized, 
 then that it is, by statute, exempt from such seizure. 
 
 As to the first two branches of this sentence, a negation in the word- 
 ing of the statute will, of course, be sufficient. But, if the property be 
 claimed as exempt from seizure, the facts showing that exemption must 
 clearly appear. In Sjpalding vs. Spalding, 3 How., 297 ; 1 C. E., 64, 
 it was considered necessary that a detailed statement of facts should be' 
 given for that purpose. In Roberts vs. Willard, 1 C. E., 100, this view 
 is ovemiled, and it was held that a positive statement of the fact on the 
 advice of counsel, or even a positive allegation, if made unqualifiedly, 
 might be sufficient. It. is clear that the better course will be to state 
 the facts in all cases, with sufficient detail to show that the conclusion 
 of law as to exemption is based upon adequate grounds, and not upon 
 the mere ipse dixit of the party. 
 
 In a case of this nature, where a portion only of property of the 
 same description falls within the right of exemption, the debtor must 
 make his election, and claim the specifi'c portion, so as to give the officer 
 an opportunity to return it, or he cannot maintain replevin. Seaman 
 vs. Ziice, 23 Barb., 240. 
 
 If property be wrongly taken under an execution or attachment, it 
 will be no justification, and replevin will still be maintainable in respect 
 of it, by the real owner. Marsh vs. Baclcus, 16 Barb., 483 ; Cross vs. 
 
442 EEPLEvrN". — § 95. 
 
 PMps, 16 Barb., 502 ; Kuhlmcmn vs. Orser, 5 Duer, 242. The slieriff, 
 in taking the goods of a wrong person, takes them at his peril, and re- 
 plevin may often be the proper form to raise a question as to a disputed 
 execution, or an illegal, though actual levy. For property rightly taken 
 under an attachment, or otherwise duly in the custody of the law, re- 
 plevin, of course, will not lie. Keyser vs. Waterbury, 3 0. K., 233. 
 
 The affidavit must lastly show, 
 
 5. The actual value of the property. This should, of course, be given 
 correctly, according to the best estimate that can be made. 
 
 Some value must in all cases be stated. It may, however, be arbi- 
 trary, and have reference to extrinsic circumstances. Thus, replevin 
 has been held maintainable for a warehouse entry, though bearing no 
 actual value on its face. Knehue vs. Williams, 1 Duer, 597; 11 
 L. O., 187. 
 
 It seems that an affidavit of this description will be irregular, if sworn 
 to before the plaintiff's attorney. Anonymous, 4 How., 290. 
 
 (6.) 1. Eequisition to Sheeiff. 
 
 The affidavit being prepared and sworn to, a requisition to the sheriff 
 is then indorsed upon it, as prescribed by section 208. 
 
 Although not expressly stated, there can be no doubt that the signa- 
 ture of the plaintiff's attorney will be sufficient, where that of the plain- 
 tiff himself cannot be obtained. 
 
 (c.) Undeetaeing. 
 
 But, before the sheriff can be called upon to act, an undertaking must 
 be tendered to him, as prescribed by section 209. 
 
 That undertaking must be executed by one or more sufficient sureties. 
 
 Those sureties must be approved by the sheriff. 
 
 They must, by the undertaking, be bound in double the value of the 
 property, as stated in the plaintiff's affidavit, for the prosecution of the 
 action ; for the return of the property to the defendant, if that return 
 be adjudged ; and for thd payment to the latter of such sum as may, 
 for any cause, be recovered by him against the plaintiff. 
 
 This undertaking is subject to the same general conditions as those 
 in other cases. The sureties must subjoin the nsual affidavit of justifi- 
 cation, and it must be duly proved and acknowledged, as required by 
 rule 6. See also Anon., i How., 290. 
 
 The sheriff must indorse his approval in writing, on the undertaking. 
 £wns vs. Rdbbi/ns, 1 C. E., ((2. 
 
 By the same case, the following points are also decided : 1. That a 
 party to a suit cannot be property taken by the sheriff as a surety ; 
 2. That, if the name of a party has been inserted jointly with that of 
 
KBPLEVXN". — § 95. 443 
 
 another, the sheriff may erase the former, provided he approves of the 
 undertaking with one surety only ; 3. That if he originally intended 
 to require two, then he may require another name to be inserted in the 
 place of that of the party, before he approves ; but, 4. That no change 
 can be so made in the undertaking, unless the original surety assents 
 to it. 
 
 Once given, the undertaking cannot be afterward altered by the 
 substitution of another surety, on the failure of one of those originally 
 named to justify, without the consent of all parties, and of the other 
 surety. A new undertaking should be executed under such, circum- 
 stances. Cobh vs. Lackey, 6 Duer, 649. See, however, as to the liabil- 
 ity of a substituted surety, executing a bond so altered, Decker vs. 
 Judson, 16 K T., 439. 
 
 The sureties on such an undertaking are liable for all costs awarded 
 to the defendant, including the costs of an appeal. Tiblles vs. 0'' Connor, 
 28 Barb., 538. 
 
 It has been held, accordingly, that after giving an undertaking of 
 this nature, the plaintiff cannot afterward be called upon to give the 
 ordinary security for costs, in a case where it might otherwise be 
 required. Wisconsin Marine and Fire Insurance Corwpany Sank vs. 
 Sobhs, 22 How., 494. The contrary conclusion is, however, main- 
 tained, and the defendant held to be entitled to the usual security for 
 costs, though an undertaking in replevin had been given, in Boucher 
 vs. Pia, 14 Abb., 1. 
 
 An undertaking, duly given, stands in the place of, and effects a 
 change in, the title to the property. Austin vs. Chapman, 11 L. O., 103. 
 
 {d.) Sheeiff's, Couesb of Peoceeding. 
 
 On lodgment with the sheriff of the affidavit, notice, and undertaking, 
 as above, and, on approval by him of the latter, the proceeding is com- 
 plete, no application to the court being necessary. The sheriff then 
 seizes the property, giving notice to the defendant, as prescribed by 
 section 209. That notice is given, by serving upon such defendant a 
 copy of the affidavit, notice, and undertaking. These must be deliv- 
 ered to him personally, if he can be found, or to his agent, from whose 
 possession the property is taken. If neither can be found, they may 
 be left at the usual place of abode of either, with some person of suita- 
 ble age and discretion. 
 
 His powers under the Code are more limited than they were under 
 the former practice. Under the Eevised Statutes he might take the 
 goods in question from any person in whose hands they might be 
 found. Now, he can only take them from the possession of the defend- 
 ant or his agent, and to justify him in taking them out of the hands of 
 
444 BEPLEVIN. — § 96. 
 
 a third party, he must establish the fact that such an agency subsists, 
 or the taking will be wrongful. King vs. Orser, 4 Duer, 431. 
 
 If he takes the goods of a wrong party, he takes them at his peril, 
 and he is answerable for the acts of his deputies, and liable under his 
 official bond. People vs. Schuyler, 4 Comst., 173 ; King vs. Orser, and 
 Kiihlman vs. 07'ser, supra. Nor will the fact that he was directed to 
 take the specific goods in question protect him, under these circum- 
 stances. SUmpson vs. Reynolds, 14 Barb., 506. This last conclusion 
 is, however, controverted in Foster vs. Pettibone, 20 Barb., 350. It is 
 there held that he is protected by the process issued to him, and that 
 resort must be had to the issuers or instigators of that process. 
 
 Whilst the goods are in his possession, the sheriff is responsible for 
 more than ordinary diligence ; but his liability is not that of an 
 insurer, so as to withdraw the issue of negligence from a jury. Moo-re 
 vs. Westervelt, 21 N". Y., 103; reversing same case, 1 Bo^w., 357. 
 
 The mode in which the property may be taken, and the powers of 
 the sheriff in this respect, and his duties as to its custody and ultimate 
 delivery, are prescribed, as above, by sections 214 and 215. 
 
 "Where property levied upon by the sheriff, on execution, was taken 
 out of his possession by replevin, and he subsequently recovered judg- 
 ment in the action, it was held to be his duty to prosecute the bond 
 given on the taking, for the benefit of the execution plaintiff, and that 
 he could not demand an indemnity from the latter. Swezey vs. Lott, 
 21 K Y., 481. 
 
 § 96. Defendant s Oov/rse of Action, and Ulterior Proceedmgs. 
 
 . On seizure of the property, three courses are open to the defendant : 
 
 1. He may move to set aside the plaintiff's proceedings, on the 
 ground of irregularity ; 
 
 2. He may require the plaintiff's sureties to justify ; or, 
 
 3. He may give counter security, for the purpose of retaining the 
 property. 
 
 ia.) Motion to set aside. 
 
 If he move to set aside, the motion must be noticed at once, and be- 
 fore excepting to the sureties, or taking any other proceeding ; and an 
 interim stay of proceedings, and extension of the time to except, or give 
 counter security, must be at once applied for. By requiring the sure- 
 ties to justify, his right to make a motion on the ground of irregularity 
 will be gone. See cases cited in last chapter on the analogous question 
 of Arrest. Three days only are allowed him for the former purpose. 
 
 As in other similar cases, a defendant, seeking to vacate a proceed- 
 
EEPLEVIK. — § 96. 445 
 
 inff on the ground of original defect, must appear specially. A general 
 appearance will be a waiyer of aiiy irregularities. Hyde vs. PatUrson\ 
 1 Abb., 248. 
 
 Defendants, who have given counter security, and obtained a rede- 
 livery, cannot afterwards maintain a motion of this description. NicoU 
 vs. Pinner^ 10 How., 3T6 ; Wisconsin Marine and Fire Inswra/noe 
 Company Bank vs. Eobbs, 23 How., 494. 
 
 On a motion of this description, the original affidavits and papers, 
 if defective, may be amended, or supported by supplemental proofs. 
 Spalding vs. Spalding, svpra ; Depew vs. Leal, 2 Abb., 131. See also, 
 as to amendment of pleadings to support proceeding, Dows vs. Green, 
 3 How., 377. 
 
 (5.) Justification by Plaintiff's Subetibs. 
 
 The defendant, at any time within three days after service of the affi- 
 davit and undertaking, may give notice to the sheriff that he excepts 
 to the sufficiency of the plaintiff's sureties — section 210. 
 
 It must be borne in mind that, by taking this course, he loses his 
 right to claim a redelivery of the property. The undertaking, when so 
 perfected, stands in its place. Yide AusUn\s. Chaprrum, 11 L. O., 103. 
 
 If he decline or omit to give such notice, he will be deemed to have 
 waived all objection to the sureties. 
 
 If he except to them, justification takes place, in precisely the same 
 manner as that of bail on arrest, and the qualifications of the sureties 
 are the same — section 213. See last chapter. 
 
 Until waiver of the objection, or completion of the justification of the 
 original or of substituted sureties, the sheriff remains responsible for 
 their sufficiency. 
 
 If the plaintiff's sureties omit to justify, it seems the defendant will 
 be without remedy, except as against the sheriff. See Manley vs. Pat- 
 Ursm, 3 C. E., 89. 
 
 The case of Burns vs. Rdbhvns, 1 C. E., 62, above referred to, is au- 
 thority, as to the power of the court to allow further time for sureties 
 to justify, upon good cause shown ; but, it seems, a new notice must be 
 given by them, under these circumstances. 
 
 If, on exception taken, the actual justification of the sureties be suffi- 
 cient, a technical deficiency in the original affidavit annexed to the un- 
 dertaking, will not render it void. The affidavit is not required by any 
 provision of law, but is only a precautionary measure for the benefit of 
 the sheriff. Gramt vs. Booth, 21 How., 354. But all the sureties 
 named must justify, or the undertaking will be irregular. See Graham 
 vs. WeUs, 18 How., 376. 
 
446 EEPLEViif. — § 96. 
 
 (c.) Counter Sbcitritt by Defendant. 
 
 If the defendant, instead of moving to vacate, or testing the qualifica- 
 tions of the plaintiff's sureties, prefer to retain the property in his own 
 possession, it is competent for him to do so, upon giving counter security. 
 
 This security must be given by him within three days after the tak- 
 ing and after service of notice on him, or his right to give it will be lost. 
 
 The undertaking must be executed by two or more sufficient sure- 
 ties, bound in double the value of the property, as stated in the plain- 
 tiff's affidavit, for the delivery of that property to the plaintiff, if a 
 return be adjudged, and for the payment to him of such sum as may, 
 for any cause, be recovered against the defendant. The liability of 
 the sureties on such an undertaking is immediate and absolute, on the 
 recovery of judgment by the plaintiff. /Slack vs. Heath, 4 E. D. Smith, 
 95 ; 1 Abb., 331. The very giving of it seems to ha prmia facie evidence, 
 on the trial, that the defendants actually detain the property. Blade vs. 
 Foster, 28 Barb., 387; Y Ab.b.,"406. 
 
 The sureties of the defendant are bound to justify, in any case, upon 
 a notice to the plaintiff, of not less than two, nor more than six days. 
 Section 212. No notice of exception is necessary on the part of the 
 latter, nor is any speciiic period limited, within which the justification 
 must take place. In the mean time, however, and until such justifica- 
 tion is either completed or expressly waived, the sheriff is responsible, 
 and may retain the property. Section 212. See Graham vs. Wells, 18 
 How., 376. 
 
 (d) Deliveet to Plaintiff. 
 
 If within the three days limited as above, the defendant does not 
 give counter security, the plaintiff becomes entitled to the delivery of 
 the property, unless it be claimed by a third party, under section 216. 
 His right to that dehvery is absolute, on the expiration of the period in 
 question. McCarm vs. Thompson, 13 How., 380.. 
 
 In the same manner, if the defendant's sureties for retaining posses- 
 sion, or others in their place, fail to justify at the time and place ap- 
 pointed, the plaintiff then becomes absolutely entitled to possession. 
 
 (e.) Delivery to Defendant. | 
 
 If, on the contrary, the justification of the defendant's sureties be 
 completed or expressly waived, the defendant then becomes absolutely 
 entitled to a delivery to him. Section 212. 
 
 After such redelivery, the plaintiff cannot, by any means, obtain a 
 restitution before judgment. The court will, however, interfere in a 
 proper case for the protection and preservation of the property while it 
 
EEPLEViN. — § 96. 447 
 
 so remains in the hands of the defendant. Hunt vs. Mooi/ry, 10 How., 
 4Y8. See also, as to such an injunction, Erjpstein vs. Berg, 13 How., 
 91 ; Fwrniss vs. Brown, 8 How., 59. 
 
 {/.) Sheeiff's Fees. 
 
 On delivery of the property to either party, the sheriff is entitled to 
 receive from that party his lawful fees for taking, and necessary ex- 
 penses for keeping it. Section 215. For the fees in question, see 2 
 R. S., 644 to 647. The expenses must, of course, be reasonable ; and, 
 if any question arise, a taxation of his account may be applied for in 
 the usual manner. 
 
 (g) Claim by Third Paett. 
 
 In the event of a claim -to the property being made by any person 
 other than the defendant or his agent, the party making it must serve 
 upon the sheriff, an affidavit of his title and right to the possession of 
 the property, stating the grounds of such right and title. Of course, 
 the statement in such an affidavit must be full and specific, and must 
 show distinctly the existence, and paramount nature, as against the 
 plaintiff, of the adverse title so claimed. 
 
 In such a case the sheriff is not bound to keep the property, or to 
 deliver it to the plaintiff, unless the latter, on demand, shall indemnify 
 him, by an undertaking executed by two sufficient sureties, freeholders 
 and householders of the county, accompanied by their affidavits that 
 they are each worth double the value, as stated by the plaintiff. The 
 sheriff may, however, retain the property a reasonable time, to demand 
 such indemnity. Section 216. 
 
 This is the only manner in which a third party, claiming goods act- 
 ually replevied, can assert his claim. He cannot himself replevy the 
 property, as against that officer or against the plaintiff Edgerton vs. 
 Boss, 6 Abb., 189. 
 
 The section in question does not in terms prescribe to whom the 
 property should be delivered in such a case, and it seems it should be 
 restored to the original defendant, against whom the claimant may then 
 assert his rights. Vide Edgerton vs. Boss, swpra. 
 
 {h.) Disposal of Papees. 
 
 Under section 423, the different undertakings prescribed by this 
 chapter are, after the justification of the sureties, to be delivered by the 
 sheriff, to the parties for whose benefit they are respectively taken. 
 
 The affidavit and notice must be filed by that officer with the clerk 
 of the court, within twenty days after the taking of the property. Sec- 
 tion 217. 
 
448 iKJirsroTioiir. — § 97. 
 
 (i.) On DiscoNTmuAiTOE, Peopeett to be Kestoeed. 
 The plaintiff cannot discontinue his action, without providing for the 
 return of the property to the defendant, as well as for the payment of 
 costs. If the defendant be in a situation to ask for a dismissal of the 
 complaint, he should set the cause down, and take judgment by de- , 
 fault, in the ordinary course. He cannot obtain a judgment for a re- 
 turn, on the usual motion for dismissal. Wilson vs. W7i.eeler, 6 How., 
 49 ; 1 C. K. (K S.), 402. 
 
 CHAPTER HI. 
 
 INJUNOTIOK 
 
 § 97. Statutory Provisions. 
 
 i 
 Tms remedy, being the same as that previously obtainable in equity, 
 forms the subject of chapter III., of title YH., part II., of the Code. 
 That chapter runs as follows : 
 
 Chaptee ni. 
 Injunction. 
 
 § 218. (191.) The writ of injunction as a provisional remedy is abolished; 
 and an injunction, by order, is substituted therefor. The order may be made 
 by the court in which the action is brought, or by a judge thereof, or by a 
 county judge, in the cases provided in the next section ; and, when made by 
 a judge, may be enforced as the order of the court. 
 
 § 219. (192.) "Where it shall appear by the complaint, that the plaintiff is 
 entitled to the relief demanded ; and such relief, or any part thereof, consists 
 in restraining the commission or continuance of some act, the commission or 
 continuance of which, during the litigation, would produce injury to the 
 plaintiff; or when, during the litigation, it shall appear that the defendant is 
 doing, or threatens, or is about to do, or procuring or suffering some act to 
 be done, in violation of the plaintiff's rights, respecting the subject of the 
 action, and tending to render the judgment ineffectual ; a temporary injunc- 
 tion may be granted, to restrain such act. And where, during the pendency 
 of an action, it shall appear by affidavit, that the defendant threatens, or is 
 about to remove, or dispose of his property, with intent to defraud his 
 creditors, a temporary injunction may be granted to restrain such removal 
 or disposition. 
 ■ Datea, as it stands, from 1849. Less full in 1848. 
 
mjuNCTioH",— -§ 97. 449 
 
 § 220. (193.) The injunction may be granted at the timfe of aommencing 
 the action, or at any time afterwards, before judgment, upon its appearing 
 satisfactorily to the court or judge, by the affidavit of the plaintiff, or of any 
 other person, that sufficient grounds exist therefor. A copy of the affidavit 
 must be served with the injunction. 
 
 § 221. (194.) An injunction shall not be allowed, after the defendant shall 
 have answered, unless upon notice, or upon an order to show cause ; but, in 
 such case, the defendant may be restrained, until the decision of the court or 
 judge, granting or refusing the injunction. 
 
 This and the two next sections date substantially from 1848, but were slightly altered in 
 1849. 
 
 § 222. (195.) "Where no provision is made by statute, as to security upon 
 an injunction, the court or judge shall require a written undertaking on the 
 part of the plaintiff, with or without sureties, to the effect that the plaintiff 
 Avill pay to the party enjoined, such damages, not exceeding an amount to be 
 specified, as he may sustain by reason of the injunction, if the court shall 
 finally decide that the plaintiff was not entitled thereto. The damages may 
 be ascertained by a reference, or otherwise, as the court shall direct. 
 
 § 223. (196.) If the court or judge deem it propet that the defendant, or 
 any of several defendants, should be heard before granting the injunction, 
 an order may be made, requiring cause to be shown, at a specified time and 
 place, why the injunction should not be granted ; and the defendant' may, in- 
 the mean time, be restrained. 
 
 § 224. (197.) An injunction to suspend the general and ordinary business 
 of a corporation shall not be granted, except by the court, or a judge thereof. 
 Nor shall it be granted, without due notice of the application therefor, to 
 the proper officers of the corporation, except where the people of this State 
 are a party to the proceeding, and except in proceedings to enforce the liar 
 bility of stockholders in corporations and associations for banking purposes, 
 after the first day of January, one thousand eight hundred and fifty, as such 
 proceedings are or shall be provided by law, unless the plaintiff shall give a 
 written undertaking, executed by two sufficient sureties, to be approved by 
 the court or judge, to the effect that the plaintiff wiU pay all damages, not 
 exceeding the sum to be mentioned in the undertaking, which such corpora- 
 tion may sustain, by reason of the injunction, if the court shall finally decide 
 that the plaintiff was not entitled thereto. The damages may be ascertained 
 by a reference, or otherwise, as the court shall direct. 
 
 In 1849, thfi two exceptions in the second sentence were first inserted, by way of amend- 
 ment. Otherwise, the section dates from 1848. 
 
 § 225. (198.) If the injunction be granted by a judge of the court, or by a 
 county judge, without notice, the defendant, at any time before the trial, 
 may apply, upon notice, to a judge of the court in which the action is brought, 
 to vacate or modify the same. The application may be made upou' th& 
 
 Vol. I.— 29 
 
450 nsrjTTNCTiOK. — § 98. 
 
 complaint, and the afladavits on which the injunction was granted, or upon 
 affidavits on the part of the defendant, with or without the answer. 
 
 A mere verbal change in 1849. 
 
 § 226. (199.) If the application be made upon affidavits on the part of the 
 defendant, but not otherwise,^ the plaintiff may oppose the same by affida- 
 vits or other proofs, in addition to those on which the injunction was 
 granted. 
 
 The attention of the reader may here be directed to the special stat- 
 utory provisions for the awarding of injunctions against corporations 
 abusing their powers, or becoming insolvent, as contained in article II., 
 title IV., chapter YIII., part III., of the Eevised Statutes, 2 R. &., 462 
 to 467, inclusive. As these powers go, however, rather to the right to 
 the remedy itself than the mode in which it is obtainable, a mere ref- 
 erence to them is all that is necessary on the present occasion. 
 
 § 98. Preliminary Mema/i^hs. 
 
 As in the last, so in the subject of the present chapter, an intimate 
 relation exists between the provisional and the final relief sought by the 
 party invoking the powers of the court. Each presents, in its treatment, 
 the same difficulty, in drawing the exact distinction between those con- 
 siderations which more immediately relate to the former, and those 
 bearing upon the latter, rendering it a matter of considerable difficulty 
 to draw any definite line of separation. 
 
 As far as possible, however, that separation will be attempted, and 
 the citation of cases in the present chapter, bearing on the question of 
 ultimate relief, will be confined, as far as practicable, to those points of 
 view which strike at the root of the whole proceeding, and which, there- 
 fore, deniand immediate consideration at the outset, rather tha,n those 
 more peculiarly incident to subsequent stages of the suit, when com- 
 menced. 
 
 By section 218, injunction by order is, as will be seen, substituted 
 for the previous procedure, by writ of injunction ; though technically 
 altered in form, the remedy remains, however, in its essential charac- 
 teristics, the same as under the former equity practice. 
 
 {a.) Feom whom Obtainable. 
 
 Under the same section, the order for this purpose may be made, 
 either : 
 By the court in which the action is brought ; 
 By a judge of that court ; 
 Or, by a county judge. 
 
INJUTTCTIOIT. — § 98. 451 
 
 Bnt, when made by a judge, it may be enforced as an order of the 
 court 
 
 In relation to the powers of a connty judge, in this respect, see here- 
 tofore, books I. and IV. It must be borne in mind, however, that those 
 powers are limited, and strictly confined to the granting of the remedy 
 exjparte, in the first instance; or to the vacating of it, when granted, 
 without notice, under section 324. The county judge cannot grant an 
 order, or hear a motion upon the subject, upon notice, nor can he enter- 
 tain an oppos9,ble application to dissolve or vacate his order when 
 granted. 
 
 A county judge has also no power to entertain an application for an 
 injunction to suspend the general and ordinary business of a corpora- 
 tion — section 224. 
 
 A judge of the court, in which the action is brought, is competent to 
 act, either in or out of court, at chambers or at special term. In prac- 
 tice, the application is almost invariably made to the single judge. 
 The power of the general term to entertain such a motion, is, however, 
 asserted in Drake vs. The Hudson Hiver Hailroad Oo?7ipany, 2 C. E,., 
 67. In The Town of Guilford vs. Cornell, 4 Abb., 220, that branch 
 of the court also exercised this authority, by continuing a temporary in- 
 junction, pending an appeal to the Court of Appeals from their decision, 
 reversing the judgment of the special term, by which that injunction 
 was granted. This, it was held, was a fresh injunction, and that fresh 
 secui'ity was necessary. See likewise, Hoyt vs. Carter, 7 How., 140. 
 
 In one specific case, the general term is alone competent to entertain 
 the application, i. e., in the case of an injunction sought against a state 
 officer, or board of officers, to restrain the execution by them, of any 
 law of this state. See Laws of 1851, cli. 488, § 1, p. 220. 
 
 But, to enable the judge or court to act in the premises, such court 
 must, of course, have jurisdiction of the subject of the action. "Wliere, 
 therefore, the existence and validity of a patent comes into question iix 
 the action, it has been held that an injunction granted by one of the 
 state courts cannot be sustained. Tomlinson vs. Battel, 4 Abb., 266 ; 
 Deming vs. Chapman, 11 How., 382. 
 
 On the removal of a cause into the federal courts, the order may, it 
 would seem, provide for the continuance-of an injunction previously 
 cfranted. Lidell vs. Thatcher, 12 How., 294. 
 
 (5.) In what Case§. — General Classification. 
 
 The injunctions obtainable under section 219, may be classified un- 
 der three general divisions, which will be treated of seriatim in their 
 order. 
 
452 INJUNCTION. — § 99. 
 
 1. An injunction preliminary to, and forming the relief, or part of 
 the relief, souglit by the plaintiff in the action itself. 
 
 2. An injunction not immediately arising out of the controversy to 
 be decided, but subsidiary in its nature, with a view to restrain subse- 
 quent acts of the defendant, tending to the prejudice of the plaintiff's 
 rights, or the deterioration of the matter in controversy. 
 
 3. An injunction extraneous to the subject-matter of the suit between 
 the parties, but by which a fraudulent removal or disposition of the 
 defendant's property i§ sought to be generally prevented. This last 
 description has a close connection with the subjects of execution, and 
 supplementary proceedings, and has the direct tendency of giving 
 to those ultimate remedies, a species of retroactive effect, by restrain- 
 ing, pendente lite, any disposition of the defendant's property which 
 might ultimately tend to defeat tlie remedies of the plaintiff, when 
 assertable. Tlie rights of the latter to this peculiar form of protec- 
 tion, are now strengthened by the recent amendments made in the 
 Code, granting an attachment in similar cases. See next chapter, un- 
 der that head. See also Mitohell vs. Bettmian, 25 Barb., 408. 
 
 § 99. Preliminary Injunction. 
 
 Of the three several classes of injunctions, this is at once the, most 
 usual and the most important. As a general rule, it forms an essential 
 and not unfrequently the principal object of the suit itself, and is ap- 
 plied for at its commencement. 
 
 To authorize the court to grant this remedy, tlie following conditions 
 must be satisfied : 
 
 An action must be brought, preliminary to or simultaneously with 
 the application. 
 
 Not merely must process be issued in that action, but the complaint 
 must also be prepared. 
 
 The relief or part of the relief demanded by that complaint, must 
 consist in restraining the commission or continuance of some act of tlie 
 defendant, which, if committed or continued, will be injurious to the 
 plaintiff. 
 
 It must appear by the complaint so drawn, that the plaintiff is en- 
 titled to the relief so demanded. 
 
 It is clear that, under these provisions, an injunction is only obtain- 
 able by a party standing in the position of plaintiff. A defendant, as 
 defendant, is not competent to obtain one, even although he may have a 
 case which would warrant such an interference on the part of the court. 
 Hi? only luotliod of proceeding will be to serve a summons and com- 
 
iKJUNOTioN. — § 99. 453 
 
 plaint in the nature of a cross action, and then proceed in tliat action 
 in his character of plaintiff. Thursby vs. Mills, 1 C. K., 83. _ 
 
 In the same manner, an injunction of this nature can only, as a gen- 
 eral rule, bo obtained against a defendant in the action. It cannot 
 properly issue against a person not a party. Watson vs. Fvll&r, 9 
 How., 425; Hhoades vs. Woolsey, 9 How., 510; The People ys. TJie 
 New York Cominon Pleas, 3 Abb., 181. See also Edmonston vs. Mc- 
 Loiid, 19 Barb., 356. But this does not aifect the powers of the court 
 to grant an injunction against the servants and agents of the party re- 
 strained, or to punish a violation of an injunction, when granted, on the 
 part of such servants or agents, where knowledge of the injunction is 
 brought home to them. Yide The People vs. Sturtevant, 5 Seld., 263 
 (277) ; affirming sa,me case, 1 Duer, 512. 
 
 As under the former practice, the issuing or continuance of an in- 
 junction is never a matter of strict right, but rests, in all cases, in the 
 discretion of the court. MoCafferty vs. Glazier, 10 How., 475 ; Yan 
 De Water vs. Kelsey, 2 G. K., 3; Bruce vs. Delaware and Hudson Ca- 
 nal Company, 19 Barb., 371. 
 
 (b.) Plaintiff's Title to Relief. 
 
 A cieax prima facie right to the relief sought must, in the first place, 
 appear upon the face of the complaint in all cases. This, by the section 
 itself, is essential. Unless such a title so arppears, by all proper and 
 necessary averments, the injunction should not be granted in the first 
 instance, or, if granted, it cannot stand. S??iithvs._Peno, 6 How., 124; 
 1 C. E. (N. S.), 405 ; BougUon vs. Smith, 26 Barb., 635 ; Olmsted vs. 
 Loomis, 6 Barb., 152 ; Quin vs. McOliff, 1 Abb., 322 ; Chemical Bank 
 vs. Mayor of New York, 12 Plow., 476 ; 1 Abb., 79 ; Thompson, vs. 
 The Commissioners of the Canal Fwnd, 2 Abb., 248 ; Hentz vs. Long 
 Island Railroad Company, 13 Barb., 646 ; JHartt vs. Harvey, 32 Barb., 
 55 ; 19 How., 245 ; 10 Abb., 821 ; Holdane vs. Trustees of Yillage of 
 CoU Spring, 21 JST. Y., 474. 
 
 And the title so averred must be actually existent at the time. James 
 vs. Oakley, 1 Abb., 324; Sebring y?,. Lunt, 9 How., 346; Brooks Vs. 
 Stone, 19 How., 395 ; 11 Abb., 220. 
 
 An injunction can only issue upon a complaint. Affidavits, without 
 a complaint, are not a proper basis for the order. The People vs. The 
 New York Common Pleas, 3 Abb., 181. See, however, dictuxro in 
 Morgan vs. Qioackenbush, 22 Barb., 72 ; where an affidavit on which 
 an injunction had been granted contained in fact all the re'quisites of 
 a complaint, including a prayer for relief. 
 
 And, ill such complaint, the plaintiiF must not merely show a case 
 for temporaiy interference, but also, where injunction is the dii'ect ob- 
 
454 rN-juNCTioN. — § 99: 
 
 ject of the suit, a title to final relief of the same nature. Corning vs. 
 TU Troy Iron and Nail Faotomj, 6 How., 89 ; 1 C. E. (N. S.), 405 
 Eulce vs. Thompson, 8 How., 475 ; Ward vs. Dewey, Y How., 17 
 Wandsworth vs. Lyon, 5 How., 463 ; Crocker vs. Baker, 3 Abb., 182 
 Mott vs. The United States Trust Company, 19 Barb., 568 ; The Chem- 
 ical Banh vs. The Mayor of New York, 12 How., 476 ; 1 Abb., 79. 
 And the relief, to which title is thus shown, must be prayed for in due 
 form. Hovey vs. McCrea, 4 How., 3L; Olssen vs. Smith, 7 How., 481. 
 See, however, Vincent vs. King, 13 How., 234. And not merely must 
 he show a title to relief in the premises, but also a title to such relief, as 
 against the defendant sought to be enjoined. McOafferty vs. MoCabe, 
 13 How., 275 ; 4 Abb., 57. 
 
 This rule, however, though true in general, is not in all cases rigor- 
 ously applied. Where relief is prayed against the defendant, interme- 
 diate waste or misapplication of the fund in question in the action, or 
 of any property which may be affected by the decree against him, may 
 be restrained, although such restraint may form no part of the specific 
 relief prayed in the action. See Yermilyca vs. Vermilyea, 14 How., 
 470, and other instances of similar relief being collaterally granted, 
 therein referred to. 
 
 A plaintiff, coming into court for relief of this nature, must himself be 
 free from fault, or it will be denied. Mott vs. The United States Trust 
 Company, supra ; Fetridge vs. Wells, 13 How., 385 ; 4 Abb., 144. Vide 
 FetridgeYs. Merchant, 4 Abb., 156 ; Comstock vs. White, lO.Abb., 264, 
 note ; Bennett vs. American Art Union Company, 5 Sandf., 614 ; 10 
 L. O., 132 ; Rolls vs. Francais, 19 How., 667. He must not either 
 have acquiesced in the alleged injury, or he cannot obtain it.. Harrismi 
 vs. Newton, 9 L. 0., 347. 
 
 An injunction should not be granted or maintained, if inconsistent 
 with the relief demanded by the complaint. Townsend vs. Tanner, 3 
 How., 384; 2 C. K., 6 ; Austin.vs. Chapman, 11 L. 0., 103. 
 
 ISTor, as a general rule, should an injunction be granted or continued, 
 where the plaintiff's title to relief, or the nature of his rights is uncer- 
 tain, or is disputed by the defendant; or where actual injury or damage 
 to the former is not clearly shown. Goulding vs. Bain, 4 Sandf., 716 ; 
 Austin vs. Chapman, supra ; Bennett vs. American Art Union, 5 Sandf., 
 614 ; 10 L. O., 132 ; Harrison vs. Newton, 9 L. O., 347 ; Same case, 9 
 L. 0., 311 ; 1 C. E. (N. S.), 207 ; Olmstead vs. Loomis, 6 Earb., 152 ; 
 Fredericks vs. Mayer, 1 Eosw., 227 ; The Merrimac Manufacturing 
 Company vs. Garner, 4 E. D. Smith, 387 ; 2 Abb., 318 ; Fetridge vs. 
 Merchant, 4 Abb., 156 ; Rogers v&. Michigan Southern and Northern 
 Indiana Railroad Company, 28 Barb., 539 ; La Chaise vs. Lord 10 
 How., 461 ; 1 Abb., 213 ; Samuel vs. Buger, 13 How., 342 ; 4 Abb. 
 
iKJtnsroTios". — § 99. 455 
 
 88. As to wliere no injury is shown, see also, Auburn and Oato 
 Plank Road Gompcmy vs. Douglass, 5 Seld., 444 ; Blake vs. The City 
 of Brooklyn, 26 Barb., 301 ; Ellis vs. Duncan, 21 Barb., 230 ; 11 How., 
 515 ; Spring vs. Strauss, 3 Bosw., 607 ; Mills vs. Mills, 21 How., 437. 
 And especially so, in a case wbere it appears that the defendant is 
 responsible to answer any claim of the plaintiff. Stevenson vs. Fayer- 
 weather, 21 How., 449 ; Power vs. Alger, 13 Abb., 284. 
 
 Where, however, the acts of the defendant in relation to the subject- 
 matter of the suit may be attended with irreparable injury, or such 
 defendant is irresponsible, an injunction may be so far granted as to 
 restrain injury to the subject-matter in question, even though the plain- 
 tiff 's title be disputed. Spear vs. Cutter, 5 Barb., 486 ; 4 How., 175 ; 
 Mallory vs. Norton, 21 Barb., 424 ; Brinton vs. Ward, 19 How., 162 ; 
 Rector, &c., of Church of Holy Innocents vs. Keeoh, 5 Bosw., 691. See 
 also Hunt vs. Moot/ry, 10 How., 478 ; Erpstein vs. Berg, 13 How., 91 ; 
 Furniss vs. Brown, 8 How., 59, cited in last chapter. Or, it may be 
 dotie in a case of this description, where fraud is charged against the 
 defendant. Malcolm vs. Miller, 6 How., 456 ; Merritt vs. Thompson, 
 3 E. D. Smith, 283. 
 
 A court will not, as a general rule, restrain the completion of works, 
 from which injury is merely possible, but is not shown to be certain to 
 accrue. Commissioners of Highways vs. Albany Northern Railroad 
 Company, 8 How., 70. See also Harrison vs. Newton, supra. But 
 otherwise, where the injuiy sought to be restrained is definite, and in- 
 curred at once, before that completion. Wheeler vs. Rochester and Syra- 
 cuse Railway Company, 12 Barb., 227. 
 
 The remedy of injunction will not be extended, beyond what is ne- 
 cessary to protect the rights of the plaintiff in the premises. Oallatin 
 vs. The Oriental Bank, 16 How., 253 ; McOafferty^B. Glazier, 10 How., 
 475. Nor will it be granted, where, in the granting, it will work injury 
 to the defendant, not absolutely essential for the preservation of the 
 plaintiff's rights ; or, if originally granted, it will subsequently be modi- 
 fied accordingly. Fredericks vs. Mayer, 1 Bosw., 227 ; Hamilton vs. The 
 Accessory Transit Compa/ny, 13 How., 108 ; 3 Abb., 255 ; affirmed, 26 
 Barb., 46 ; Patten vs. The Same, 13 How., 502 ; 4 Abb., 235 ; reversing . 
 same case, 4 Abb., 139 ; Bruce vs. Delawa/re and Hudson Canal Com- 
 pany, '19 Barb., 371 ; Garnee vs. Odell, 13 Abb., 264. 
 
 A member of a class of persons having a common interest, cannot 
 maintain an injunction for his own individual benefit, for acts injurious 
 to such class only, and not to himself individually, save as such mem- 
 ber. Smith YS. Lockwood, 10 L. O.., 12 ; Thompson\B. The Commissionr 
 ers of the Canal Fund, 2 Abb., 248. To obtain relief of this nature, 
 he must sue on behalf of himself and 'the class generally. See Woodv^. 
 
456 INJUNCTION. — § 99. 
 
 Brap^ir, 24 Barb., 187. Especially will such relief be denied, if, in its 
 exercise, it would be prejudicial to the rights of other members. Ham- 
 ilton vs. The Aooessory Transit Company, 13 How., 108 ; 3 Abb., 255 ; 
 affirmed, 26 Barb., 46. 
 
 An individual cannot, in like manner, obtain or maintain injunction 
 for acts constituting an injury to the public, unless he can show sep- 
 arate damage to himself, or violation of his own private rights, Srmth 
 vs. Lochwood, 13 Barb. ,^09; 10 L. 0., 232; Harrison vs. Newton, 
 9 L. O., 347 ; Badeau vs. Mead, 14 Barb., 328 ; Parsons vs. The Mayor 
 of New York, 1 Duer, 439 ; Doolittle vs. The Supervisors of Broome 
 County, 18 N. T., 155 ; 16 How., 512 ; Bavis vs. The Mayor of New 
 Torh, 4 Kern., 506 ; Anderson vs. The Rochester, LooTtport, and Niag- 
 ara Falls Railroad Company, 9 How., 553. See also Arhenbwrgh 
 vs. Wood, 23 Barb., 360 ; Fitzpatrick vs. Flagg, 5 Abb., 213 ; Mutual 
 Benefit Life Insurance Coinpany vs. Board of Supiervisors of New 
 Yorh, 33 Barb., 322 ; 20 How., 416 ; Roosevelt vs. Braper, 23 Is". Y., 
 318 ; affirming same case, 7 Abb., 108; 16 How., 137-288 ; KorffYs. 
 ■ Green, 16 How., 140 ; 7 Abb., 108, note ; BrooMyn City and Newtown 
 Railroad Company vs. Coney Island and BrooMyn Railroad Com- 
 pamy, 35 Barb., 364. 
 
 Where private injury is shown to the plaintiff himself, the converse 
 is of course the case, though the acts constituting that private injury 
 may also be generally detrimental to the public. Vide Penniman vs. 
 The New York Balance Bock Company, 13 How., 40 ; Wetmore vs. 
 Story, 22 Barb., 414 ; 3 Abb., 2Q^; Mason vs. Brooklyn City and 
 Newtown Railroad Company, 85 Barb., 373. 
 
 The court will not grant an injunction to restrain an act already 
 committed. Reube7is vs. Joel, 3 Kern., 488 ; affirming same case, 2 
 Duer, 530 ; 12 L. 0., 148 ; Perkins vs. Warren, 6 Plow., 341. Or to 
 restrain a proceeding, in attempted exercise of a statutory authority, 
 which, when taken, will, for want of an essential requisite, be void at 
 law, and can therefore do no injury. McBermott vs. Board of Police, 
 25 Barb., 635 ; 5 Abb., 422. Nor against a merely apprehended trespass, 
 in relation to which other proceedings are pending, or may be taken. 
 The Mayor of New York vs. Conover, 5 Abb., 171; The New York Life 
 Insurance and Trust Company vs. TJie Supervisors of New York, 4 
 Duer, 192 ; 1 Abb., 250 ;. The Chemical Bank vs. The Mayor of New 
 York, 12 How., 476 ; 1 Abb., 79 ; Lewis vs. Oliver, 4 Abb., 121 ; 
 Wilson vs. The Mayor of New York, 4 E. D. Smith, 675 ; 1 Abb., 4. ' 
 
 Injunction will not be granted in aid of a forfeiture, for which 
 judgment is prayed in the same suit. Linden vs. Hepburn, 3 Sandi\, 
 668 ; 3 C. K., 165 ; 5 How., 188 ; 9 L. 0., 80 ; Lamport ys' Ahbott, 12 
 How., 340. 
 
INJUNCTION. — § 99. 457 
 
 So also it will not lie in a case where a j^enalty is imposed, by con-' 
 tract or otherwise, or where the plaintiff has an adequate remedy at 
 law, by an action for damages or otherwise, in respect of such act, and 
 no injury is shown, for which compensation cannot be obtained. Liv- 
 ingston y&. The Hudson Rimer Raihoad Company, 3 0. R., 143 ; Town- 
 send vs. Tanner, 3 How., 184 ; 2 0. R., 6 ; Austin vs. Chapman, 11 L. 0., 
 103 ; Bruce vs. Delaware am,d Hudson Canal Company, 19 Barb., 3Y1 ; 
 Rogers YB. Michigan Southern and Northern Indiana Railroad Com- 
 pany, 28 Barb., 539 ; Marshall vs. Peters, V2i How., 218 ; Campbell vs. 
 Shields, 11 How., 565 ; Vincent vs. King, 13 How., 234 ; Barnes vs. 
 McAllister, 18 How., h^^; .Sheelxe,. Thompson, 9 How., 4T8; Hartt 
 vs. HaTvey, 32 Barb., 55 ; 19 How., 246 ; 10 Abb., 321 ; Balcom vs. 
 Julien, 22 How., 349 ; Butler vs. Oalletti, 21 How., 465. 
 
 Nor will the issuing of an injunction be proper, in cases where an 
 adequate remedy is given to the plaintiff by special proceeding, or by 
 certiorari, quo warranto, or other analogous remedy in respect of the in- 
 jury fomplained of. Lewis vs. Oliver, 4 Abb., 121 ; The People vs. Dra- 
 per, li: How., 233 ; 4 Abb., 333 ; 24 Barb., 265 ; TJie Mayor of New Tori 
 vs. Conover, 6 Abb., 171; MaceY%. The Trustees of Newburgh, 15 How., 
 161 ; Handley vs. The Mayor of New Tor\ 16 How., 228 ; 7 Abb., 
 11 ; Belts Y&. The City of Williamsiiirgh, 15 Barb., 255 ; Gillespie vs. 
 Broas, 33 Barb., 370 ; The People vs. Sampson, 25 Barb., 254 ; BlaJce 
 vs. TJie CHy of Brooklyn, 26 Barb., 301 ; Wilson vs. TJhe Mayor of 
 New York, 4 E. D. Smith, 675 ; 1 Abb., 4; Heywood vs. The City of 
 Buffalo, 4 Kern., 534 ; Lirn'rigston vs. Hollenbeck, 4 Barb., 9. See also 
 Boutonvs. The City of Brooklyn, 15 Barb., 375 ; 7 How., 198 ; Thatcher 
 Ys. Dusenbury, 9 How., 32 ; Hartt y&.- Harvey, 32 Barb., 55 ; 19 How., 
 246 ; 10 Abb., 321 ; Kelsey vs. King, 32 Barb., 410 ; 11 Abb., 180 ; Hy- 
 att vs. Bates, 35 Barb., 308. ' 
 
 ISTor, as a general rule, will the action of an inferior magistrate, or tri- 
 bunal, in the exercise of special jurisdiction, be so interfered with. The 
 New York Life Insurance Company vs. The Supervisors of New 
 York, 4 Duer, 192 ; 1 Abb., 250 ; Thompson vs. The Com,missio^iers of 
 the Canal Fund, 2 Abb., 248. See also Handley vs. The Mayor of 
 New York, and Blake vs. The City of Brooklyn, supra. See, how- 
 ever, The Mayor of New York vs. Conover, 5 Abb., 252 ; and Cooper 
 vs. Ball, 14 How., 295, restraining further action, under proceedings, 
 void for want of jurisdiction. 
 
 Nor, when jurisdiction has been duly acquired and duly exercised by 
 an inferior officer, will his action in a special proceeding be restrained. 
 See, as to dispossession proceedings, in respeci to which such action is 
 in fact prohibited by statute. Smith vs. Moffatt, 1 Barb., 65 ; Words- 
 worth vs. Lyon, 5 How., 463 ; 1 0. E. (N. S.), 163 ; Hyatt vs. Burr, 
 
458 iif JUNCTION. — § 99. 
 
 8 How., 168 ; Duigcm vs. Eogan, 1 Bosw., 645 ; 16 How., 164 ; Bohee 
 vs. Eammsrsley, 16 How., 461 ; Marks vs. Wilson, 11 Abb., 87 ; 8ee- 
 lach vs. McDonald, 21 How., 224 ; 11 Abb., 95. The only remedy of 
 the tenant in such cases, is by oertiora/ri. See also Ward vs. Kelsey, 
 14 Abb., 106. 
 
 It has been held, however, that, notwithstanding the statutory prohi- 
 bition above referred to, proceedings of this nature may, nevertheless, 
 be restrained by injunction, in either of the following cases, viz. : 
 Where jurisdiction has not been duly acquired, or where surprise, 
 fraud, or injustice is shown. CWe vs. CroAnford, 5 How., 293 ; ICE. 
 (N. S.), 18 ; Capet vs. Parker, 3 Sandf., 662 ; 1 C. E. (N. S.), 90 ; 
 James vs. Stuyvesant, 3 Sandf., 665, note ; Forrester vs. Wilson, 1 
 Duer, 624 ; 11 L. O., 124 ; Valloton vs. Seignett, 2 Abb., 121. 
 
 As a general rule, the lawful exercise of ownership, or of rights or 
 powers conferred by statute or otherwise, will not be interfered with by 
 injunction, even though such exercise be productive of injury to ano- 
 ther. To entitle a plaintiff to this remedy, the act to be restrained 
 must not merely be injurious to him, but also wrongful in its nature. 
 Phoznix vs. The Coriimissioners of Emigration, 12 How., 1 ; affirming 
 same case, 1 Abb., 466 ; Leigh vs. Westervelt, 2 Duer, 618 ; Williams 
 vs. JVew York Gentrral Pail/road Ooni/pany, 18 Barb., 222 ; Hartwell 
 vs. Armstrong, 19 Barb., 166 ; Bruce vs. Delaware and Hudson Canal 
 Company, 19 Barb., 3Y1 ; Anderson vs. Rochester, Lochport, and Niag- 
 ara Falls Railroad Company, 9 How., 553 ; Ely vs. The City of Roches- 
 ter, 26 Barb., 133 ; Bayaud vs. Fellows, 28 Barb., 461 ; Carpenter vs. 
 New York and New Eaven Railroad, 5 Abb., 2Y7 ; Auburn and Cato 
 Plank Road Company vs. Douglass, 6 Seld., 444; Rector, c&o., of 
 Church of Eoly Innocents vs. Keech, 5 Bosw., 691 ; New York Shot 
 and Lead Company vs. Cary, 20 How., 444 ; 10 Abb., 44 ; Mowbray 
 vs. Lawrence, 22 How., 107 ; 13 Abb., 317 ; Richa/rds vs. Northwest 
 Protestant Dutch Church, 32 Barb., 42 ; 20 How., 317 ; 11 Abb., 30 ; 
 Cooper vs. First Presbyterian Church of Sandy Eill, 32 Barb., 222 ; 
 Youngs vs. Ransom, 31 Barb., 49 ; Eelsey vs. Durkee, 33 Barb.,*410. 
 See likewise The People vs. Draperr, 24 Barb., 265 ; People vs. Met/ro- 
 politan Bank, 7 How., 144. 
 
 So also even the undue exercise of an authority, granted by statute 
 or belonging to a public body, will not be so restrained, unless such exer- 
 cise be also manifestly illegal ; nor will the question as to such validity, 
 if doubtful, be allowed to be raised in a suit for an injunction. Mace vs. 
 The Trustees of Newburgh, 15 How., 161; Thompson vs. The Com- 
 missioners of the Canal Fund, 2 Abb., 248. 
 
 The unlawful exercise of authority may, however, in extreme cases 
 be restrained, especially if immediate damage to the applicant can be 
 
INJUNCTION. — § 99. 459 
 
 stown to accrue from sucli exercise, or where the suit is brought for the 
 benefit of the whole class of persons prejudicially affected by such ex- 
 ercise. Wyatt vs. JBenson, 4 Abb., 183 ; Fuller vs. Allen, 16 How., 
 247 ; Y Abb., 12 ; Shepa/rd vs. Wood, 13 How., 4Y ; Wood vs. Draper, 
 24 Barb., 187; 4 Abb., 322; Applely ys. The Mayor of NewYorTi, 
 15 How., 428 ; Roberts vs. The Mayor of New Fork, 5 Abb., 41 ; The 
 People vs. The Mayor of New Yorh, 32 Barb., 35 ; 19 How., 155 ; 10 
 Abb., 144. See also saine case, 9 Abb., 253 ; The People vs. Sturteoant, 
 5 Seld., 263 ; affirming, The People vs. Compton, 1 Duer, 512 ; State 
 of New Yorh vs. The Mayor, (ko.,of New York, 3 Duer, 119 ; Baldwin 
 vs. The City of Buffalo, 29 Barb., 396 ; Milhau vs. Sharp, 17 Barb., 
 435 ; Same case, 28 Barb., 228 ; 7 Abb., 220 ; People vs. Law, 34 Barb., 
 494 ; 22 How., 109 ; Wetmore vs. Law, 22 How., 130 (135) ; 34 Barb., 
 515 ; Matthews vs. Mayor of New York, 14 Abb., 209. 
 
 S«e also, as to the undue exercise of authority by private incorpora- 
 tions. The People vs. Parker Vein Coal Company, 10 How., 186 ; Un- 
 derwood vs. The New York and. New Haven Railroad Company, 17 
 How., 537. 
 
 And any act of the directors of a public company, in violation of 
 their duty, such as an unauthorized sale of its property, may be, re- 
 strained, on the application of a stockholder or corporator. Abbot vs. 
 Hard Rubber Company, 33 Barb., 578 ; 21 How., 193 ; affirming same 
 case, 20 How., 199 ; 11 Abb., 204. 
 
 In restraining acts of this description, by a corporation possessing 
 both deliberative and executive powers, it must be borne in mind, that 
 it is more peculiarly the taking of action to carry out an illegal resolu- 
 tion, and not the original passage of the resolution itself, that is re- 
 strainable. Vide Whitmsy vs. The Mayor of New York, 28 Barb., 233 ; 
 People vs. The Mayor of New York, 32 Barb., 35 ; 19 How., 155 ; 
 10 Abb., 144. And the acts of such a body, ranging within the limits 
 of a justifiable discretion, will not be interfered with. People vs. 
 Mayor of New York, 32 Barb., 102. 
 
 A body of this nature will not, however, be permitted to nullify its 
 own acts, or to interfere with rights acquired under a statute which is, 
 in its nature, a contract ; and any such action, if attempted, will be 
 void, and the parties claiming under it, restrained. Brookl/yn Central 
 Railroad Company vs. Brooklyn City Railroad Company, 32 Barb., 
 358. But, not so with regard to acts of partial interference with an 
 easement, not amounting to a clear and manifest violation of right. 
 Same vs. Same, 33 Barb., 420. 
 
 On similar principles to the above, the acts of trustees, whilst acting 
 within the limits of their trust, will not be restrained, in the absence of 
 anv danger shown to the fund. Prior vs. Tupper, and Taylor vs. Ste- 
 
460 INJUNCTION". — § 99. 
 
 vens, 7 How., 415 ; Spring vs. Strauss, 3 Bosw., 60Y. Where, how- 
 ever, any evidence of fraud appears, the contrary will be the case, even 
 though such fraud be denied. Churchill vs. Bennett, 8 How., 309. 
 And, where the intermediate administration of the fund may still be 
 permitted, its ultimate- division may be restrained. See Bishop vs. 
 Halsey, 13 How., 154 ; 3 Abb., 400. 
 
 The due use of partnership property will, in like manner, not be 
 restrained, where security has been given, and no abuse is to be appre- 
 hended. Dunham vs. Jarvis, 8 Barb., 88 ; Austin vs. Chapmam,, 11 
 L. O., 103. So, also, where a partnership, alleged by the plaintiff, is 
 denied by the defendant, and there is no proof that the fund is in dan- 
 ger. Goulding vs. Bain, 4 Sandf., 716. So, likewise, where, on the 
 dissolution of a partnership, one partner has, by agreement, been in- 
 trusted with the winding up of the concern. Weber vs. Befor, 8 How., 
 502. See also Jaoquin vs. Buisson, 11 How., 385. Where, however, 
 there is no provision to that effect, a solvent partner is not, as of right, 
 entitled to assume the administration of the funds, and he may be re- 
 strained, though a preference will be given to him on appointing a 
 receiver. Hubbard vs. Guild, 1 Duer, 662. So, also, after dissolution, 
 and in the absence of any completed arrangement for its continuance, 
 the further use of partnership property may be restrained. Smith vs. 
 Banvers, 5 Sandf., 669. The institution of cross suits, under snch cir- 
 cumstances, will not be encouraged. McCarthy vs. PeaTce, 18 How., 
 138 ; 9 Abb., 164. Where, however, they actually subsist, it seems 
 that an injunction against personal interference will be granted in both. 
 IfcOrachen vs. Ware, 3 Sandf., 688 ; l' C. K (N. S.), 215. Proceed- 
 ings of a receiver, seeking to enforce a judgment against copartnership 
 property, will not be interfered with by injunction. The jjroper com'se 
 is, to apply in the suit in which he was appointed. Van Rensselaer vs. 
 Emory, 9 How., 135 ; Winfield vs. Bacon, 24 Barb., 154. 
 
 Where, also, a party has been intrusted with the management of 
 property, by contract between the parties,' that management will not 
 be interfered with, in the absence of any allegation of irresponsibility. 
 Newbury vs. Newbury, 6 How., 182 ; 10 L. O., 52 ; 1 C. R (N. S.), 
 400. 
 
 A grossly oppressive agreement may, however, be set aside, and the 
 enforcement of securities obtained tlirough its means enjoined. Smedes 
 vs. Wild, 7 How., 309. In The Cumberland Coal and Iron Company 
 vs. Sherman, 30 Barb., 553, an agent who had purchased property, in 
 violation of his duty, and his sub-purchasers, with notice, were re- 
 strained from dealing with it pending the controversy. 
 
 An injunction will not be granted in one suit, where the same ques- 
 tion has already been substantially decided in another. Livingston vs. 
 
iNjTjircTiON. — § 99. ' 461 
 
 The Hudson River Railroad Company^ 3 C. E., 143. But this rule, 
 though generally applicable, will not prevent another application to the 
 court in the same matter, where the complaint in the second suit, avers 
 facts not in existence at the time when the 'first application was made. 
 The Mayor of New York, vs. Conover, 5 Abb., 252. 
 
 An injunction cannot now be obtained in one suit to stay the prose- 
 cution of another in the same com-t. The remedy, under such circtim- 
 stances, where both suits are in respect of the same subject-matter, is 
 to make an application in the suit itself for a stay of proceedings, on 
 the usual notice ; and the proper suit to be stayed, under such circum- 
 stances, will be that secondly instituted, or that in which legal, as con- 
 tradistinguished from equitable relief, is sought to be enforced. See 
 Auhif^n City Bank vs. Leonard, 20 How., 193 ; Bederick vs. Hoysradt, 
 4 How., 350 ; 3 C. R, 86 ; Harman vs. Remsen, 23 How., 1T4 ; Hunt 
 vs. Farmers' Loan and Trust Company, 8 How., 416 ; Rowers vs. Tall- 
 madge, 16 How., 325 ; Farmers' Loan and Trust Company vs. Hunt, 
 1 C. E. (E". S.), 1 ; Foot vs. 8prague, 12 Plow., 355 ; Arndt vs. Wil- 
 liams, 16 How., 244. So also as to a special proceeding already pend- 
 ing. The Mayor of New York vs. Conover, 5 Abb., 171. 
 
 See however Ori/nnan vs. Piatt, 31 Bai-b., 328, where it was held 
 that an action was maintainable to restrain the prosecution of a suit for 
 foreclosure, under inequitable circumstances. 
 
 See also, as to restraining proceedings in ejectment, Sieman vs. Aus- 
 tin, 33 Barb., 9. Or a suit by the creditor of an insolvent corporation, 
 with a view to obtain a preference. Galway vs. United States Steam 
 Sugar Refining Company, 21 How., 313 ; 13 Abb., 211. Or a suit by 
 a lien-holder to set aside a foreclosure by advertisemeiat, on which he 
 was not served, but where his lien was in fact valuelesSj and the pro- 
 ceeding vexatious. Root vs. WJieeler, 12 Abb., 294. 
 
 Injunction is not a proper remedy to restrain a multiplicity of actions. 
 Minor vs. Webb, 10 Abb., 284. It should not be granted in a suit 
 which in itself is imperfectly brought, to stay another not equally defec- 
 tive. Laohaise vs. Marks, 4 E. D. Smith, 610 (612) ; 10 How., 461 ; 
 1 Abb., 213. 
 
 Nor can an injunction be granted by one court, to stay proceedings 
 in a previously instituted suit, pending in another court of the state, 
 having power to grant the relief demanded. Grant vs. Quick, 5 Sandf , 
 612 ; Bennett vs. Le Roy, 6 Duer, 683 ; 14 How., 178 ; 5 Abb., 55 ; 
 Leh/retter vs. Kqfman, 1 E. D. Smith, 664. 
 
 Under such circumstances, the tribunal which has first obtained juris- 
 diction of the controversy is to be preferred. Any other, if invoked, 
 should deny g,ny interference with its proceedings, and it is within the 
 power of the first tribunal to direct the suspension of proceedings in 
 
462 rNjuNcxiOK. — § 99. 
 
 the other. Rankin vs. Elliott, 16 N. T., 37T ; affirming same case, 
 U How., 339 ; Whitney vs. Stevens, 16 How., 369 ; Winfield vs. Bacon, 
 24 Barb., 154; Van Eensselaer ys. Emery, 9 How., 135 ; McCarthy 
 vs. Peake, 18 How., 138 ; 9 Abb., 164 ; Wew York Shot and lead 
 Company YS. Carey, 10 Abb., 44; 20 How., 444; The Mayor of New 
 York vs. Conover, 25 Barb., 613 ; 5 Abb., 393. 
 
 ISTor should a stay of proceedings be granted under similar circum- 
 stances. Sorley vs. Brewer, 18 How., 509. 
 
 Nor should proceedings in one action be interfered with at all by 
 raeaiis of another, unless the two aire coincident, and the relief sought 
 in one, adequate to render due relief in the other. Tarrant vs. Quack- 
 enbos, 10 How., 244; Bedell vs. McClellan, 11 How., 1Y2; Wells vs. 
 Smith, 7 Abb., 261 ; Chappel vs. Potter, 11 How., 365. 
 
 Injunction will not lie to restrain the publication of the proceedings 
 in another action. Where such a prohibition is necessary or proper, it 
 must be applied for in that action itself. Wood vs. Marvine, 3 Duer, 
 674; 12 L. 0., 276. 
 
 But, where a general suit was pending on behalf of all interested, 
 necessarily involving the validity of the title of the plaintiffs to the 
 relief sought by them, in subsequent and independent proceedings, their 
 assertion of that title in those proceedings was restrained pendente lite. 
 New York and New Ha/uen Railroad Company vs. Schuyler, 17 
 How., 464. 
 
 The recovery of a former judgment, in respect of the same matter, 
 is no cause for a stay of proceedings or injunction in a subsequent 
 action, but the party should be left to set it up as a defence in regular 
 form. Jay's case, 6 Abb., 293. But, where necessary for the pur- 
 pose of administering equitable relief between th.e parties, action on 
 such a judgment may be restrained. Watt vs. Rogers, 2 Abb., 261. 
 
 Where a party entitled to a decree has waived the benefit of it by 
 entering into a new contract, his further proceedings under it will be 
 stayed. Van Wagenen vs. La Farge, 13 How., 16. 
 
 Proceedings under a judgment, satisfied in fact, but fraudulently 
 kept on foot, may be restrauied, on application of a junior judgment- 
 creditor. Shaw vs. Dwight, 16 Barb., 536. And so 'may proceedings 
 on a judgment of an inferior court, void for want of jurisdiction. 
 Cooper vs. Ball, 14 How., 295. ' Or where a judgment has been regu- 
 larly taken in such a court, not having power to vacate it, but which, 
 nevertheless, ought, on equitable grounds, to be opened. In such a 
 case, its enforcement may be restrained, without prejudice to an action 
 upon it by the holder. Martin vs. Mayor of New York 20 How 86 • 
 11 Abb., 295 ; affirmed, 12 Abb., 243. ' ' 
 
 A court of this state, possessing general equitable jurisdiction has 
 
mJUNCTiON. — § 100. 463 
 
 power to restrain , a party to a suit pending before it, from commencing a 
 suit against the adverse party upon the same subject-matter, in a foreign 
 tribunal. Field vs. Eolbrook, 3 Abb., 377. A suit for the direct pur- 
 pose of restraining the prosecution of such an action, when already 
 commenced, will, not, however, be maintainable, though its pendency 
 will not bar an application for collateral and independent relief. Wil- 
 liams vs. Ayrault, 31 Barb., 364 
 
 On the dismissal of the complaint in an action, an injunction granted 
 in it falls, ipso facto, with that dismissal, and nothing but a reversal 
 win restore it. An appeal has not that eifect, unless it is continued by 
 special order. Hoyt vs. Carter, 1 How., 140. An injunction falls also 
 perse, upon a discontinuance of the suit. ITojpe vs. Acker, 7 Abb., 308. 
 
 An amendment, changing the character of the action, does not, how- 
 ever, of necessity, destroy, a previous injunction ; but such amendment 
 may be granted without prejudice, where such continuance is necessary 
 to do justice in the premises. Furniss vs. Broion, 8 How., 59. 
 
 As to the power of the court, when necessary, to grant an injunction, 
 having practically the eifect of a mandate, see People vs. Albany and 
 Vermont Railroad Cornpany, 19 How., 523 ; 11 Abb., 136. See how- 
 ever Ward vs. Kelsey, 14 Abb., 106. 
 
 § 100. Suhsidiary Injunction. 
 
 This remedy,- arising under the second branch of section 219, is only 
 obtainable, where the act sought to be restrained is being done or threat- 
 ened during the litigation. It does not extend to acts or threats prior 
 to the institution of the suit. "Where such are sought to be restrained, 
 the remedy lies under the first, instead of the second clause of the sec- 
 tion, and the injury must be alleged, and relief in respect of it prayed 
 in the ordinary manner. Hovey vs. McCrea, 4 How., 31 ; Malcolm vs. 
 Gaul, 6 How., 456. 
 
 To warrant an application of this nature, it must be made to appear : . 
 1. That a litigation is pending between the parties ; 2. That during 
 that litigation, the defendant is doing, or is threatening, or is about to 
 do the act sought to be restrained ; 3. That such act is in violation of 
 the plaintiff's rights, respecting the subject of the action ; and, 4. That 
 it tends to render the judgment ineffectual. 
 
 -These conditions must all be shown to exist, or the section will not be 
 satisfied. The proper way of showing this will be by afluidavit, made in 
 the suit itself. A complaint is not necessary, nor need any amendment 
 of that originally filed be made to sustain the proceeding. It is strictly 
 collateral in its nature, and though necessarily germain to the subject of 
 the suit, does not form part of the original grievance sought to be re- 
 
464 iNJtrKCTioi^'. — § 101. 
 
 dressed. Where it does, the remedy must, as above shown, be -pursued 
 under the prior provision. 
 
 The assertion of this peculiar form of the remedy is accordingly of 
 comparatively rare occurrence, and the recent reports contain no decis- 
 ions bearing directly upon the subject. .Where waste to the fund or 
 property in question in the cause is apprehended, relief in respect of it 
 will almost universally be sought at the outset of the suit, and grounds 
 for such interference laid, by specific allegation in the complaint. 
 
 § 101. Extraneous Injimction. 
 
 The remedy under the third branch of the section is, in like manner, 
 assertable during litigation. , It is, however, not confined to the conser- 
 vation of the immediate subject-matter of the litigation itself Being of 
 M'ider application, the powers of a suitor in this respect have accordingly 
 been made the subject of more extended discussion. 
 
 As in the last case, it is confined, by the terms of the section, to mat- 
 ter arising during the litigation. When so sought, it would seem that 
 all that is sufficient, in order to obtain it, is the making of an affidavit in 
 the suit itself. 
 
 In Perkins vs. Warren, 6 Plow., 341, an injunction of this nature had 
 been granted on affidavit, in precise accordance with the powers of the 
 section. It was reversed, however, by the general term, on the ground 
 that the act sought to be restrained had in fact been completed, prior to 
 the suit itself, and did not therefore occur " during the pendency of the 
 action." See also Olssen vs. Smith, T How., 481 ; Reubens vs. Joel, 3 
 Kern., 488; Pomeroy vs. Hinclmarsh, 5 How., 437; and Sebring vs. 
 Lant, 9 How., 347. 
 
 This provision does, not, however, preclude the plaintiff from relief 
 against acts or threats of the same nature, prior to the commencement 
 of the suit. In respect of these, he has his remedy under the first clause 
 of the section j but, in this case, the complaint must lay ground for that 
 relief, in the usual manner. Where, on the contrary, his claim for relief 
 lies under the present branch of the section, ground for that remedy 
 must, as in the case of a subsidiary injunction, be laid by affidavit, 
 without reference to the complaint. See Malcolm vs. Miller, 6 How., 
 456. 
 
 To be restrainable, under this section, the disposition, of his property 
 made by the defendant, must be with fraudulent intent ; and, on a 
 motion to dissolve, the question of intent will be the chief matter for 
 consideration. Brewster vs. Hodges, 1 Duer, 609. 
 
 Where, too, the justice of the claim, for which the suit is brought, is 
 doubtful, the court should refuse to interpose. Revhens vs. Joel, 3 
 
INJUNCTION. — § 102. 465 
 
 Kern., 488 ; PerTcins vs. Warren, 6 How., 341. See also La Chaise vs. 
 Marls, 4 E. D., Smith, 610 ; 10 How., 461 ; 1 Abb., 213. 
 
 An injunction of this nature may, it would seem, be obtained, at the 
 instance of a creditor at large, in a suit for that purpose. But he must 
 sue, in such ease, on behalf of his class. See La Chaise vs. Ma/rhs, 
 Reubens Ys. Joel, supra; Jackson vs. Slieldon, 9 Abb., 127. See like- 
 wise Mott vs. Dunn, 10 How., 225 ; but overruled by Reubens vs. Joel, 
 on the question of joinder of both the legal and the equitable cause of 
 action in the same siiit. See also Mitchell vs. Bettman, 25 Barb., 408. 
 
 § 102. AppUcation fm\ 
 
 {a.) When ENTEEXAmABLE. 
 
 Under section 220, an injunction may, as v»ill have been seen, be 
 granted, at the time of commencing the action, or at any time afterwards, 
 before judgment. 
 
 On the entry of judgment, the interlocutory powers of the court are, 
 therefore, exhausted. Where the injunction . is preliminary or sub- 
 sidiary, such judgment will, in fact, have disposed of the whole 
 question, as to the nature and extent of the relief to which the plaintiff 
 is entitled. As regards one staying a general disposition of property 
 of a defendant, an analogous remedy is provided in the course of sup- 
 plementary proceedings. See hereafter, under that head. 
 
 The reader will, of course, draw the distinction between an applica- 
 tion for an injunction, after judgment, in the action itself; and an 
 injunction to restrain the enforcement of a judgment, in another action, 
 applied for in a suit institiited for that purpose. 
 
 (5.) Affidavit. 
 
 In order to the granting of this remedy, it must, in all cases, appear 
 " satisfactorily to the court or judge, by the affidavit of the plaintiff, or 
 of some other person, that sufficient grounds exist therefor." 
 
 Considerable discussion has arisen as to whether a verified pleading 
 will or will not be considered as an affidavit, and may or may not be 
 read and used, as such, for the purpose of obtaining or sustaining, or 
 of dissolving, an injunction ; for the question is equally applicable to 
 motions of that nature, and may be conjointly considered. 
 
 Under the Code of 1848, when a pleading was verified on belief only, 
 such was not the case. Benson vs. Fash, 1 C. JR., 50 ; Roome vs. Webb, 
 3 How., 327; 1 C. E., 114. The latter case, however, foreshadows the 
 amendment of 1849, and holds that a verification in the old chancery 
 form would be sufficient, and make the complaint itself part of the 
 affidavit. 
 YoL. I.— 30 
 
466 rNTJUKCTioN. — § 102. 
 
 Since the amendment of 1849, when the present form of verification 
 was prescribed, the reason above assigned no longer exists. A pleading 
 verified in that form by the party is, to all intents, an affidavit, and for 
 these purposes may be used as such. This point may be now consid- 
 ered as settled. See Krom vs. Eogan, 4 How., 225 ; Schomimaker vs. 
 The Protestant Beformed Dutch Church of Kingston, 5 How., 265; 
 Fisher vs. Woodruff, 17 Barb., 224 ; Smith vs. Eeno, 6 How., 124 ; 1 
 0. E. (K. S.), 405 ; Minor vs. Terry, 6 How., 208 ; 1 C. E. (N. S.), 
 384 ; Florence vs. Bates, 2 Sandf., 675 ; 2 C. E., 110 ; Hascall vs. 
 Madison University, 8 Barb., 174 ; 1 C. E. (JST. S.), 170 ; Porter vs. 
 Cass, 7 How., 441 ; Churchill vs. Bennett, 8 How., 309 ; Fu/rniss vs. 
 Brown, 8 How., 59 ; Penfield vs. White, 8 How., 87 ; Levy vs. Ely, 
 15 How., 395 ; 6 Abb., 89 ; Leffingwell vs. Chave, 5 Bosw., 703 ; 19 
 How., 54 ; 10 Abb., 472. 
 
 By this series of cases, the contrary decisions of MilWken vs. CWy, 
 5 How., 272; 3 C. E., 250; and Servoss VB.Stannard, 2 C. E., 66, are 
 unquestionably overruled. 
 
 The verification, to have this effect, must, however, be that of the 
 party himself, or of some person having fulL knowledge of all the ma- 
 terial facts, and swearing from that knowledge. Where the complaint ■ 
 was verified by the attorney, and it appeared on the verification, that 
 all the statements in it were made on information, and none upon his 
 personal knowledge, an injunction obtained upon it was dissolved. 
 Bateau vs. Bernard, 12 How., 464. But, where an attorney verify- 
 ing speaks to the facts from his own knowledge, the verification will 
 be suSicient to sustain the proceeding. Minor vs. BucJcingham, 8 
 Abb., 68. 
 
 In like manner, the material statements in the complaint, on which 
 the plaintiff 's right to the remedy of injunction is based, must, in such 
 pleading, be made positively, and not stated to be upon information and 
 belief. If merely the latter, they will not be available. Jones vs. 
 Atteriury, 1 0. E. (IST. S.), 87; The People vs. The Mayor of New 
 TorJc, 9 Abb., 253. 
 
 Where such is the case, the plaintiff's statement must be' sustained, 
 as under the old practice, by the affidavit of a third person. Smith vs. 
 Beno, supra ; Crocker vs. Baker, 3 Abb., 182 ; Minor vs. Bucking- 
 ham, 8 Abb., 68. 
 
 The fact that statements made in a separate affidavit, either by the 
 , plaintiff himself or by another party, stating additional grounds for an 
 injunction, do not bear directly on the plaintiff's right to relief in the 
 action, will not constitute an objection. Badger vs. Wagstaff, 11 How., 
 562. But, though it is thus competent for him to fortify his original 
 claims, he cannot, as regards the cause of action itself, enlarge them by 
 
INJUNCTION. — § 102. 46t 
 
 affidavit, or prefer others. Hentz vs. The Long Island Railroad Com- 
 pany, 13 Barb,, 646. 
 
 In a separate affidavit, statements on mere information and belief, 
 without disclosing the grounds of belief and sources of information, 
 are equally unavailable. Pomeroy vs. Hind-marsh, 6 How., 437; Liv- 
 ingston vs. The Bank of New York, 26 Barb., 304 ; 5 Abb., 338. See 
 the same point fully established by collateral decisions, heretofore and 
 hereafter noticed under the heads of Arrest and Attachment. 
 
 (o.) Secueitt. 
 
 The plaintiff on applying for an injunction must, in all cases, be 
 prepared with security. See sections 222, 224. 
 
 , There exist three different kinds of security which such plaintiff may 
 be called upon to give. 
 
 •1. When provision is alrea,dy made by statute, as to the security to 
 be given, he must be prepared with the security so prescribed. 
 
 2. In ordinary cases, a written undertaking must be given on his 
 part, with or without sureties, at the discretion of the .judge, to the 
 effect prescribed by secnon 222. 
 
 3. When the general and ordinary business of a corporation is sought 
 to be suspended, he must give a written undertaking, with two suf- 
 ficient sureties, to the effect prescribed by section 224. 
 
 These three classes will be considered in their order. 
 
 {d.) Statutory Secueitt. 
 
 The provisions saved by the commencing words of section 222, -will 
 be found in article Y., title II., chapter I., Part III.,' of the Eevised 
 Statutes, 2 E. S., 188 to 191. 
 
 They relate to the staying of proceedings in a personal action after 
 verdict or judgment, and they prescribe a special form of security to 
 be given in such cases. 
 
 Tinder those provisions, proceedings are not to be stayed after ver- 
 dict or judgment, unless, 
 
 1. The party seeking such injunction shall deposit in court the full 
 amount of the verdict or judgment, as the case may be (sections 140, 
 141); and, 
 
 2. Shall give, in addition to such deposit, a bond, with one or more 
 sufficient sureties, to the plaintiff in the judgment, in such sum as 
 the officer allowing the injunction shall direct, conditioned for the 
 payment of all damages and costs, awarded by the court at the final 
 hearing of the cause. Section -141. 
 
 E". E. U^der sections 142, 143, the deposit above prescribed ipay be 
 
468 DfJUNOTIOK. — § 102. 
 
 withdrawn by the plaintiff at law, on his giving security for its res- 
 titution on due application, if directed. 
 
 But, under section 145, the officer applied to may dispense with the 
 deposit required by sections 140 and 141, and is empowered, in lieu 
 thereof, to direct the execution of a bond with sureties, conditioned for 
 the payment of the amount bo required to be deposited, whenever or- 
 dered by the court. Or, if a bond is already required, in addition to 
 the deposit, then to direct the enlargement of the penalty and con- 
 dition of such bond as may be requisite. But, whenever a deposit is 
 so dispensed with, the substituted or enlarged bond must be executed 
 by at least two sufficient sureties. 
 
 By section 148, a special form of justification by such sureties is pre- 
 scribed. Each must state in his affidavit that he is a householder resi- 
 dent within the state, and that he is worth a sum equal to the amount 
 in which the bond shall have been required, over and above all debts 
 and demands against him. 
 
 Under section 149, such bond, with the affidavit, must be filed with 
 the clerk before the issuing of the injunction. On a breach of the con- 
 dition, it is to be delivered out to the obligee|^ection 150. 
 
 Under section 144, a similar bond for damages and costs is prescribed 
 to be given, before staying proceedings in any action for recovery of 
 real estate after verdict. 
 
 When, however, the injunction in question is applied for, on the 
 ground that the judgment or verdict, proceedings on which are 
 sought to be stayed, was obtained by actual fraud, the officer applied 
 to has power to dispense with the deposit of any moneys, or the execu- 
 tion of any bond. Section 147. 
 
 In all cases to which the above provisions apply, security of this 
 nature must still be taken, and the above provisions strictly complied 
 with, or the injunction should not be granted, and, if granted, cannot 
 stand. Gooh Y^.Bickerson, 2 Sandf., 691 ; Chappel vs. Potter, 11 How., 
 365. 
 
 A mere failure to perform a promise on which judgment was con- 
 fessed, is not a fraud of the description contemplated by section 147, on 
 which the giving of the above security may be dispensed with. To 
 authorize this, the fraud must be of a gross nature, such as the substi^ 
 tution of one paper for another, a false representation of facts, or the 
 like. Cook vs. Dicker son, swpra. 
 
 Security of this nature is not necessary, on an application by a cred- 
 itor of an insolvent corporation, to restrain other creditors from enforc- 
 ing their judgments separately, and in derogation of a general proceed- 
 ing for-winding up its affairs under the statute. liutchmson vs. The 
 Nm York Central Mills, 2 Abb., 394. 
 
INJUNCTION. — § 102. 469 
 
 If security given under the above provisions satisfies tlie essential 
 requisites of the statute, it will be sufficient, though it may be given in 
 the form of an undertaking, instead of in that of a penal bond. The 
 People vs. Lowbgr, 1 Abb.; 158. See also the converse of this proposi- 
 tion in The Episcopal Church of St. Peter vs. Varian, 28 Barb., 644. 
 And, in the same case of the People vs. Towier, it was held that these 
 provisions do not extend to a case, where proceedings on a judgment 
 are stayed by application to the general term in the same action, and 
 that, on such a proceeding, security will not be necessary. 
 
 {e.) Oebinaet Secueity. 
 
 In all cases except the preceding, and the special instance of inter- 
 fering with the ordinary business of a corporation, the security pre- 
 scribed by section 222 must be given. 
 
 This security consists of a written undertaking on the part of the 
 plaintiif, with or without sureties. 
 
 It must provide that "the plaintiff will pay to the party enjoined 
 such damages, not exceeding an amount to be specified, as he may sus- 
 tain by reason of the injunction, if the court shall finally decide that 
 the plaintiff was not entitled thereto." 
 
 The condition of the undertaking should therefore be in the exact 
 words given. The amount to be specified rests, as will be seen, entirely 
 with the judge, though it' is usual to insert it in the first instance. If so, 
 it should be inserted in a sum sufficiently liberal to provide for all rea- 
 sonable contingencies, the assessment of which must, of course, depend 
 upon the peculiar circumstances of each case. If fixed too low, the 
 risk is run that the judge may refuse his approval, necessitating the 
 preparation and execution of a fresh undertaking, and the consequent 
 delay of the remedy. 
 
 And, if the amount inserted be manifestly inadequate, it will form 
 groimd for dissolving the injunction (RyoTcmom vs. Coleman., 2JL How., 
 404) ; 13 Abb., 398 ; or, for its modification, so as to prevent injury to 
 the defendants Gurnee vs. Odell, 13 Abb., 264. 
 
 The undertaking must, in all cases, be executed on the part of the 
 plaintiff, whether it is taken with or without sureties, and the number 
 and amount of such sureties rests in the judge's discretion. One surety 
 is sufficient, if approved by that officer. The plaintiff, when he executes 
 the undertaking alone, should acknowledge it, and annex an affidavit of 
 justification, in the usual manner. If he does not, the undertaking 
 should not be received. The sureties must, in like manner, acknowl- 
 edge and justify. See rule 6, and heretofore, under the head of Arrest. 
 A plaintiff resident out of the state ought also to be required to give a 
 resident surety. See, on the above points, Sheldon vs. AU&rton, 1 Sandf., 
 
470 rNjUNcnoN. — § 102. 
 
 700 ; 1 C. E., 93 ; Cov/rter vs. MoJSTamara, 9 How., 255 ; Wm-d vs. 
 Whiim£y, 4 Seld., 442. It is not necessary, however, that such under- 
 taking should be signed by the jDlaintiff in person, if the sureties are 
 sufficient. LeffimgweU y&. Cham, 5 Bosw., 703; 19 How., 54; 10 Abb., 
 472. See heretofore, under the head of Arrest. 
 
 Provided the essentials of the statute are complied with, a paper in 
 the form of a penal bond, may be accepted as a sufficient undertaking. 
 Tlie Episcopal Church of St. Peter vs. Varian, 26 Barb., 644. . See also 
 The People vs. Lowher, 7 Abb., 158, before referred to. 
 
 Where an order to show cause is granted, with an interim injunction 
 restraining the defendant, security may be, and it seems should 'be, re- 
 quired to be given, on the original granting of the order. Methodist 
 Churches of New YorTc vs. Barker, 18 IS". Y., 463 ; Sheldon vs. Aller- 
 ton, supra. 
 
 if.) SECOTtlTY ON" EeSTEAINIK-G CoEPOEATIONS. 
 
 The security prescribed to be given in this case, by section 224, is, 
 as will be seen, substantially to the same effect as the ordinary under- 
 taking under section 222. It presents, however, this distinction, *. e., 
 that the taking of sureties is no longer optional 5 but, in this case, the 
 undertaking must be " executed by two sufficient sureties, to be ap- 
 proved of by the court or judge." 
 
 {g.) Disposal of UuDEETAKraGS. 
 
 In all cases, the undertaking, of whatever nature,' must be presented 
 to the judge at the time of the application. It must, also, be approved 
 by him, before the injunction is granted, and the usual course is for 
 him to indorse his approval upon it at the time. Having approved it, 
 he hands it back to the moving party, with the order, when granted. 
 
 It must then be filed by such party forthwith, with the clerk of the 
 court — rule 4. See also section 423. In the case of statutory security, 
 this filing ought to take place even before the injunction is issued. See 
 2 K. S., 190, section 149 ; but, under the present system it will, doubt- 
 less, be sufficient, if filed forthwith in the ordinary manner. 
 
 A party omitting to file such undertaking forthwith, as directed, 
 omits it at his peril. If delayed for five days, his adversary is at liberty 
 to move the court to vacate the proceedings for irregularity rule 4. 
 
 This specific rule dates from the revision of 1858. But the filing was 
 equally necessary, prior to that rule being passed. Eiggins vs. Allen, 
 6 How., 30; CDormsll vs. McMurn, 3 Abb., 391 ; Sheldon vs. Allerton, 
 sivpra. The defect is, however, excusable^ and does not, per se, nullify 
 the proceedings taken. Leffingwell \s. Chame, 5 Bosw., 703 ; 19 How. 
 54 ; 10 Abb., 472. 
 
rNJUNCTioN. — § 102. 4Y1 
 
 The force of an undertaking given, is, it seems, spent upon a reversal 
 of judgment in favor of the plaintiif by the general term, and does not 
 extend to the expenses of an appeal to the. Court of Appeals. The 
 Town of Ouilford vs. Cornell, 4 Abb., 220 ; Hoyt vs. Ca/rter, 7 How., 
 140. 
 
 In the event of the subsequent insolvency of the sureties to the 
 undertaking, the injunction granted on it may be vacated, in the dis- 
 cretion of the court. Willett vs. Stringer, 15 How., 310 ; 6 Duer, 686. 
 
 (h.) Manner ov Application. 
 
 When obtained at the outset of the action, the order may, and gene- 
 rally will be granted by the judge ex parte, without any notice to the 
 defendant. It would seem too that, even after appearance, and at any 
 time before answer actually put in, it is equally competent for the 
 judge to do so, if he thinks fit. 
 
 It is competent for the judge to grant the order before the summons 
 is served, and to deliver it to be served .therewith. But the summons 
 must be served with the order, or the latter will be inoperative. Ser- 
 vice of it without, or before that of the summons, is irregular. Leffing- 
 well vs. Chcme, 5 Bosw., T03 ; 19 How., 54 ; 10 Abb., 472. 
 
 It is not, however, imperative upon the judge to grant the order in 
 this manner. If he deems it proper that the defendant, or one of the 
 defendants should be heard, before granting the injunction definitively, 
 it is competent for him to substitute for the positive relief, an order to 
 show cause why it should not be granted. Section 223. 
 
 In all cases where the plaintifi"'s right to this relief is in any wise 
 doubtful, or where the injunction, if granted, would be of immediate 
 detriment to the defendant, this latter is the better, and is in practice 
 the more usual course. 
 
 And, where the defendant has answered, an eccj^arfe injunction can no 
 longer be granted, but the application must be on notice or order to 
 show cause,. Section 221. Nor can an ex parte injunction be granted 
 to suspend the general and ordinary business of a corporation (§ 224), 
 unless, possibly, in the specific cases referred to in that section, the 
 wording of which is somewhat obscure. 
 
 In any case, however, where the application is not entertained ex 
 parte, the judge may either, as part of the order to show cause, or by a 
 separate order, restrain the defendant in the mean time. Sections 
 221, 223-. 
 
 Where the injury sought to be restrained is either existent or immi- 
 nent, this course should be adopted. In all cases it will be better, and, 
 where the intermediate restraint is likely to be productive of any injury 
 or inconvenience to the defendant, it will be most advisable to prepare 
 
472 rprjuNCTioK. — § 103. 
 
 and present to the judge the usual security. See Methodist Oh-wches 
 of New York vs. Ba/rkm; and Sheldon vs. Allerton, above cited. Where 
 this precaution is neglected, it is by no means improbable that the tem- 
 porary injunction may be refused. Vide Androvette vs. Sovme, 15 
 How., 75 ; 4 Abb., 440. 
 
 The order, whether absolute or to show cause, had better be prepared 
 in anticipation, and must be signed by the judge. As to its service, 
 when signed, see the next section. 
 
 When the injunction is not obtained ex parte, the ordinary notice of 
 eight days must be given, in all cases where the time is not shortened by 
 order to show cause. In those where the execution of any law by a 
 state officer or board of officers is sought to be restrained, eight days' 
 notice at least must be given. See Laws of 1851, chapter 488, section 
 2, page 921. 
 
 The course to be pursued on the hearing of an opposable application 
 of this description, being in precise analogy with that on that of a motion 
 to dissolve or vacate, both will be considered in a subsequent section, 
 under that head. 
 
 (i.) Disposal of Affedavits. 
 
 On the injunction being granted, whether ex parte or after an opposed 
 hearing, the affidavits on which it is so granted must be filed with the 
 clerk of the court by the prevailing party, forthwith, and within five 
 days at the latest. This is imperative. An omission to do so incurs 
 the same penalty as an omission to file the security. See rule 4, and 
 heretofore, under that head. 
 
 Such omission has, however, been held not to be a fatal defect, and 
 that the court may relieve against it, with or without terms, when 
 arising from inadvertence. Leffingwell -vb. Chave, 5 Bosw., 703; 19 
 How., 54 ; 10 Abb., 472, above cited. 
 
 § 103. Service of Injunction. 
 
 When obtained', the order for an injunction must be duly served upon 
 the party restrained. That service must be personal, the proceeding 
 being one to bring him into contempt. Section 418. Service on the 
 attorney instead of the party, will not be merely insufficient for the pur- 
 poses of enforcement, but positively irregular. It will not, however 
 invalidate the order. Becker vs. Hager, 8 How., 68. Where how- 
 ever, the. attorneys or agents of the party are sought to be restrained, 
 service must be made upon them also, in addition to that upon the 
 principal. That this service should be personal, is equally a matter of 
 necessity. 
 
ESTjinrcTioN. — § 103. 4Y3 
 
 A copy of the affidavit upon wMcli the injunction is granted, must be 
 served with it, or the proceeding will be open to the same objection. 
 Section 220. Penfield vs. White, 8 How., 87. The injunction in sup- 
 plementary proceedings is, however, " sui generis" and is not affected 
 by the provisions in this chapter, either as to service or otherwise. 
 Oreen vs. Bullard, 8 How., 313. 
 
 Where an order to show cause is granted with an interim, injunction, 
 the same service must of course be made. It is in fact necessarv in all 
 cases ; as, even where no stay is granted, the proceeding being, in effect, 
 a motion, copies of the moving papers must be served with the notice. 
 See rule 49. 
 
 When the injunction is granted upon a verified complaint alone, ser- 
 vice with it of that complaint and of the verification will be sufficient. 
 If not already served upon the defendant, the summons must be served 
 at the same time. If this is omitted, the injunction will be inoperative, 
 and the service irregular. Leffingwell vs. Chave, 5 Bosw., 703 ; 19 How., 
 54 ; 10 Abb., 4Y2, above cited. 
 
 In such cases it will, of course, be the most convenient course to serve 
 all the papers together. This will effect a simultaneous commencement 
 of the suit, nor will it be necessary to make a second copy of the com- 
 plaint, although in strictness it is used in a double capacity. Nor, when 
 the injimction has been granted on notice, and the complaint has 
 been previously served in. the action, will it be necessary to re-serve 
 the latter as an affidavit. A notice should, however, accompany the 
 order, that it is granted upon the complaint, of which a copy has 
 been already served, as well as upon the other papers which may ac- 
 company it. 
 
 Where the injunction is granted by a judge or officer, out of court, 
 the original order, with the judge's signature, should be exhibited to 
 the party or agent sought to be restrained, at the time when he is 
 served with a copy of it, and of the affidavits. If not, the service will, 
 as a general rule, be insufficient, as a basis of subsequent proceedings 
 for contempt, though it may, in some cases, have a certain effect, by 
 way of notice, for the purpose of saving the plaintiff's right. Codding- 
 ton vs. Webb, 4 Sandf., 639 ; Watson vs. Fuller, 9 How., 425. 
 
 This doctrine, though, as a general rule, inflexible, admits, however, 
 of some slight qualification. For instance, where a party designedly 
 commits acts, in respect of which, he knows at the time, that an injunc- 
 tion has been issued, he may be punished for these acts, even though, 
 at the time, the order restraining him has not yet been served or even 
 entered. TJrn People vs. Oompton, 1 Duer, 512 (553) ; affirmed, 5 
 Seld,, 263 (278). ■ And it will be a contempt of court for a party, 
 knowing such an order to have been made, to prevent, wilfully and by 
 
474 . rNJUNCTioK. — § 104. 
 
 open force, the making of such service. Oonover vs. Wood, 6, Duer, 
 682 ; 5 Abb., 84. 
 
 See also, as to knowledge of an injunction, being sufficient to impose 
 upon a party the duty of obeying it, so far, at least, as pecuniary rights 
 are concerned, Lim.ngston va. Swift, 23 How., 1. 
 
 "Where the order is the order of the court, and not of the single judge, 
 it will be properly served by delivering a certified copy. In this case, 
 no exhibition of the original order will be requisite. The Moa/ot of 
 New York vs. Oonover, 5 Abb., 244. 
 
 Where an injunction is directed against a corporation, it is binding, 
 not merely on the corporate body, but also on the individuals compos- 
 ing it, who are equally liable for disobedience, as if they were named 
 in the process. Service upon the mayor of the city of ISTew York, was 
 accordingly held to be sufficient, to bind every member of the corpora- 
 tion, individually, whose personal action, as such, the order was de- 
 signed to control, and to render such members individually liable for a 
 contempt, for acts of disobedience to that order. Davis vs. Mayor of 
 New Torh, 1 Duer, 451. See also The People vs. Compton, 1 Duer, 
 512 ; affirmed, 5 Seld., 265, as above noticed. 
 
 § 104. Violation of Injunction. 
 
 So long as an injunction exists, all parties enjoined are bound to 
 obey it, and any act of disobedience will be punishable by attachment 
 for contempt. The remedy of a party, aggrieved by its issuing, lies in 
 appeal, or motion to dissolve, and not in disobedience. His only safe 
 course is to obey, knowing that, if the process be wrongly issued, the 
 law will afford him redress, vide Davis vs. Mayor of New York, 1 
 Duer, 451 ; The People vs. Compton, 1 Duer, 512 ; affirmed, 5 Seld., 
 263 ; Grimm vs. Grimm, 1 E. D. Smith, 190 ; ICE. (JST. S.), 218. 
 And the fact of a subsequent dissolution of the injunction, will form no 
 justification for a wilful breach of it, whilst existent. Smith vs. Eeno, 
 6 How., 124 ; 1 C. R. (K S.), 405. 
 
 A party in Contempt may, it would seem, apply to the court for a 
 dissolution, at any time, on any matter of positive right. Smith vs. 
 Eeno, 6 How., 124 ; 1 C. R. (N. S.), 405 ; Smith vs. Austin, 1 C. R. 
 (]Sr. S.), 137. But, as regards matters not of right, the rule is different, 
 and, whilst in contempt, he cannot be heard, on application addressed 
 to the favor of the court. Krom vs. Hogan, 4 How., 225. 
 
 To deprive him of his right to make the application, the disobedience 
 must be wilful and actual, and not merely technical or excusable. Gur- 
 nee vs. Odsll, 13 Abb., 264. And, if the plaintiff's case fails for want 
 of equity, the motion will be granted on proper terms, notwithstanding 
 
INJUNCTION. — § 104. 475 
 
 the contempt. Fidd vs. Hunt, 22 How., 329 ; 13 Abb., 320, as F-ield 
 vs. Chapman. 
 
 Where an injunction has been granted on notice, and disobeyed, the 
 court will not review the propriety of granting the injunction, in the 
 first instance, on motion for an attachment against the defendant. If 
 the original order was erroneous, he should have appealed from it ; 
 but, having submitted to the order, in the first instance, he was bound 
 to obey it. Grimm vs. Grimm, 1 E. D'. Smith, 190 ; ICE. (IST. S.), 
 218. 
 
 The obedience to be so rendered, must be positive and complete, nor 
 will the court suffer any evasion or trick to be practised. An allega- 
 tion that the acts restrained, were done by the authority of a third per- 
 son, will constitute no excuse. Krom vs. Hogan, supra. And, where 
 a party restrained had done nothing himself, but had knowingly stood 
 by and connived at the act restrained, being committed by his own 
 partner, he was held equally punishable for the disobedience. Neale 
 vs. Osborne, 15 How., 81. So, also, where the party is restrained, it is ' 
 not merely his duty to refrain himself, but to give all necessaiy direc- 
 tions to all who act at his instance, or under his control ; and any act 
 of theirs, which he knowingly allows to proceed, will be a contempt 
 on his part. . The Mayor vs. Gonover, 5 Abb., 244. 
 
 In Capet vs. Parher, 3 Sandf., 662 ; 1 C. E. (N. S.), 90, it was laid 
 down that no advice of counsel, and not even the declaration of the 
 judge of an inferior court, can justify a party in disobeying an injunc- 
 tion order ; and, if he does, an attachment will issue. See also. The 
 People vs. Compton, supra. 
 
 An appeal from an order granting an injunction, does not stay the 
 
 operation of the injunction, pending the appeal ; notwithstanding 
 
 ,.which, an attachment will issue to punish the party enjoined, for any 
 
 violation of that order, whilst it remains unreversed. Stone vs. Carlan, 
 
 2 Sandf., 738 ; 3 C. R, 103. 
 
 To be punishable as a contempt, the disobedience must, however, be 
 wilful, and, if the order disobeyed be capable of a construction consist- 
 ent with the innocence of the party of any intentional disrespect to the 
 court, an attachment should not be granted. Weehs vs. Smith, 3 Abb., 
 211. See also, Conover vs. Wood, 5 Abb., 84 ; 6 Duer, 682. 
 
 In Fwmiss vs. Brown, 8 How., 59, a reference was granted, to take 
 testimony in relation to an alleged violation of an injunction, before 
 any final action was taken thereon. The same course was adopted in 
 The People vs. Compton, 1 Duer, 512 ; and, on such a reference, the 
 defendant, it was held, is bound to answer all such interrogatories as 
 ^ay be propounded to him. 
 Where, however, wilful disobedience is not brought home to the 
 
476 IKJUNOTIOBT. § 105. 
 
 party on the original order to show cause, such a reference will not be 
 granted". Conover vs. Wood, supra. 
 
 In Boss vs. Glussmom, 3 Sandf., 676 ; 1 C. K. (N. S,), 91, although 
 the court said they did not intend to decide, whether simply confessing 
 a judgment was a violation of an injunction, restraining a debtor from 
 disposing of his property ; it was held that, if such confession be made 
 with the intent to change the disposition of the property to the credi- 
 tor's prejudice, and has that eflfect, it will be a violation, and punish- 
 able accordingly. The defendant, in that case, was accordingly fined 
 in the whole amount of the plaintilf's claim, with costs, counsel fee, 
 and expenses, and was committed until the fine was paid. 
 
 Although a corporation cannot be punished for a contempt as in the 
 case of a natural person, the same object may be effected, by means of 
 a fine, or the sequestration of its property. People vs. Alhomy and 
 Vermont Bail/rood Company, 20 How., 358.; 12 Abb., 171. 
 , The operation of an injunction cannot, however, be made retroactive. 
 To be punishable, the act must either be committed, or knowingly con- 
 tinued or sanctioned, after knowledge of the restraint. Same case. 
 
 The course to be pursued for obtaming and enforcing an attachment 
 of the above nature, when issuable, Will be considered under the head 
 of enforcement of orders, in the book devoted to the subject of Execu- 
 tion. The cases above referred to, of The People vs. Oompton, and 
 Bams vs. The Mayor of New York, will be found, however, to be full 
 of information on the subject of this particular remedy. 
 
 Pending an appeal from a judgment of injunction, on which security 
 has been given, the defendant cannot be punished for its violation. 
 The power is suspended, but it revives, if the judgment be affirmed, not 
 merely as to subsequent, but also as to intermediate acts. Howe vs. Sea/r- 
 ing, 6 Bosw., 684 ; 11 Abb., 28. 
 
 § 105. Defendant's Course to Oppose or Vacate. 
 
 (a.) Opposition to Oeighstal Motion. 
 
 As will have been seen, the defendant is, in certain cases, secured the 
 right of being heard on the plaintiff's original application. He is 
 entitled to be so heard, as of right, where his answer has been put in 
 before that application. Section 221. See also, as to applications 
 seeking to suspend the ordinary business of a corporation, section 224. 
 The judge may likewiee direct that he be allowed that privilege, and 
 grant an order to show cause accordingly. Section 223. 
 
 The rule, as to the papers which may be used on such a motion, is 
 substantially the same as that on a motion to vacate or modify, as treated 
 in the next division. 
 
INJUNCTIOK.- 
 
 -§ 105. 477 
 
 (b.) Motion to Vacate ok Modift. 
 
 When an injunction has been granted ex parte, the right to move 
 to vacate or modify it, is expressly secured to the defendant by sec- 
 tion 225. 
 
 The application must be made, on notice, to a judge of the court in 
 which the action is brought. The ordinary notice of motion must be , 
 given, but, when the continuance of the injunction is productive of 
 decided injury, there is nothing which restricts the proceeding from 
 being brought on at an earlier period, by means of an order to show 
 cause. 
 
 The defendant has his option between three methods of bringing on 
 Such application. 
 
 1. He may move, on the plaintiff's papers alone, without either 
 answer or affidavits, on his own part. 
 
 2. He may move, on the complaint and answer alone, without affida- 
 vits; or, 
 
 3. He may move, on affidavits, either with or without an answer. 
 The first of these methods is proper, where the proceeding is im- 
 peached on the ground of defect in the plaintiff's application. 
 
 The second is more peculiarly applicable to those cases in which the 
 equities of the complaint are denied by the answer, and the defendant 
 elects to rest on that ground, without entering into any contest of fact. 
 
 The third is the more usual course, and is admissible, whenever the 
 correctness of the plaintiff's statement of facts is impeached, or the 
 effect of those facts sought to be avoided. 
 
 Before entering on these several classes, a few words on the subject 
 of a motion of this nature, generally considered, will be in place. 
 
 As a general rule, this description of motion is duly applicable to an 
 ex parte injunction. Where the order has been granted npon notice or 
 order to show cause, it will be manifestly inadmissible. The defend- 
 ant, in such case, had already had his opportunity of being heard, and 
 cannot reopen the discussion. 
 
 This bar, however, cannot be considered as positive, nor can it be 
 doubted but that, on a sufficient allegation of surprise, fraud, or an 
 altered state of circumstances, such a motion may be admissible. Such 
 will of course be,the case whercj on the original hearing, leave has been 
 given to the defendant to renew his application, or to make a specific 
 motion to vacate. 
 
 Independent of the motion granted by section 225, it has been held 
 that it is competent for a defendant, manifestly aggrieved, to apply,' un- 
 der section 324, to the judge who granted the order, to vacate or modify 
 it, without notice. Bruce vs. The Delaware and Hudson Canal Com- 
 
478 mjuiircTiOK. — § 105. 
 
 pany, 8 How., 440, overruling the stricter eonstruction in Mills vs. 
 TJmrsby, 1 0. K., 131. 
 
 Under very urgent circumstances, this course will be admissible, 
 especially where an interim modification is necessary, for the attain- 
 ment of substantial justice. It is not, however, the better practice, and 
 should only be allowed nnder urgent circumstances. Bruce vs. The 
 Delaware and Hudson- Canal Gompany, supra. 
 
 That such an application to the judge who granted the order, or an ap-, 
 plication to a judge out of court, is not a necessary preliminary to a mo- 
 tion to the court itself, is decided in Wood/ruff y&. Fisher, 17 Barb., 224. 
 
 Newbury vs. Newlury, 6 How., 182 ; ICE. (K. S.), 409, clearly 
 overrules the dictum in Osborn vs. Lobdell, 2 C. R., 77, that, on a mo- 
 tion of this description, it is necessary for the moving party to furnish 
 formal proof of the existence of the suit and of the proceedings in it ; 
 unless, possibly, where the order is taken by default. See Darrow vs. 
 J/aZe?-, 5 How., 247; 3 C. E., 241. 
 
 (e.) 1. Motion on Plaintiff's Papebs. 
 
 This is the proper course, where the grounds for the order obtained 
 are manifestly insufficient, or where the plaintiff's proceedings are im- 
 peachable for irregularity. "When adoptable, it presents tliis- manifest 
 advantage, that, in opposing it, the latter cannot introduce additional 
 evidence. He must stand or fall by his original papers. The defend- 
 ant is, of course, equally precluded from the introduction of additional 
 matter. The doing so would bring the application under another of 
 the above classes. 
 
 In those cases in which the complaint, or the plaintiff's statement of 
 his case on his affidavit, is manifestly defective, or where the papers on 
 which the injunction is granted, fail to make out even a prima fade 
 case, either totally, or as against the applicant, a motion of this de- 
 scription is clearly the proper and the expedient course. 
 
 Where the defendant has a double defence to the application, first on 
 the ground of defect, and also on the merits, and his motion on the for- 
 mer ground proves unsuccessful, it will be expedient for him to ask 
 leave to renew the application, on the latter, and, if a sufficient case be 
 shown, this leave may possibly be granted. It rests, however, entirely 
 in the discretion of the court, and, unless entire good faith be shown, 
 and a strong reason for such indulgence on th^part of the court, it 
 would not be safe to calculate upon that facility being extended. As 
 a general rule, the party moving for a specific item of relief, is bound, 
 on such application, to state all his objections, and to exhaust all his 
 grounds for interference. See heretofore, under the head of Motions, 
 and Desmond vs. Woolf, there cited. 
 
rNjTJNCTioK. — § 105. 479 
 
 {d.) 2. Motion on Complaint and Answer, without Apfidatits. 
 
 This class of motion is peculiarly applicable to those instances, where 
 the answer of the defendant is purely negative, and does not assert 
 matter in avoidance, and, being of this description, denies the whole 
 equity of the complaint. 
 
 A little more difficulty attends the consideration of this branch of 
 the question, arising out of the liability to confuse the ofSce of an an- 
 swer, strictly considered as a pleading, and the character of an affida- 
 vit, which, when used for the purposes of an application to vacate an 
 injunction, may be attributed to that pleading, when verified ; the 
 immediate difficulty being as to when the plaintiff is or is not entitled 
 to introduce affidavits in teply, where the motion to dissolve is made 
 on verified answer alone. Where affidavits are used in connection with 
 it, or where the answer is so verified as to deprive it of the force of an 
 affidavit (see Ji atecm yb. £erna?'d, 12 How., 464), this question does not 
 of course arise. 
 
 The general rule Is, that where the whole equity of the complaint is 
 denied by the answer, the defendant is entitled to a dissolution of the 
 injunction, "pendente life," until the plaintiff's title is established ■ by 
 proper evidence, on the regular hearing of the cause. Florence vs. 
 Bates, 2 Sandf., 675 ; 2 C. E., 110 ; BlaUhford vs. The New Torh and 
 New Hamen Railroad Company, 5 Abb., 276 ; Ga/rjpenter vs. The Same, 
 5 Abb., 277 ; Finnegan vs. Lee, 18 How., 186 ; Powell vs. Clarh, 5 
 Abb., 70 ; Clarh vs. Law, 22 How., 426 ; Eychnan vs. Coleman, 21 
 How., 404; 13 Abb., 398. 
 
 But, to have this effect, the denial of such equities must be full and 
 specific, and must cover the Avhole ground. If facts are adrnitted which 
 qualify a general denial ; if the denial be evasively made ; or if, on 
 examination of the circumstances, the court deem that the facts warrant 
 the continuance of the injunction, notwithstanding a formal denial may 
 have been made, the> rule will not be applied. Vide Florence vs. 
 Bates, supra; Hartwell vs. Kingsley, 2 Sandf, 674; 2 C. E., 101; 
 Merritt vs. Thompson, 3 E. D. Smith, 283 ; 1 Abb., 223 ; Storer vs. 
 Coe, 2 Bosw., 661 ; Litchfield vs. Pelion, 6 Barb., 187 ; Chv/rchill vs. 
 Bennett, 8 How., 309 ; Chappell vs. Potter, 11 How., 365 ; Crocker vs. 
 Baher, 3 Abb., 382 (383). 
 
 (e.) 3. Motion on Affidavits. 
 
 This, as before stated, is the more usual form in which a motion of 
 this nature is brought up. It presents the advantage to the mover of 
 being able, on the same occasion, to go over the whole ground'of the 
 case, whether on points of form or on the merits ; as, of course, on a 
 
480 INJUNCTION. — § 105. 
 
 motion of this description, every question of every nature is capable of 
 being brought up for consideration. 
 
 It may be made, as appears upon the face of the section, upon affi- 
 davits, either with or without the answer. As before noticed, an 
 answer verified by the party, or by an agent verifying from liis own 
 knowledge, is, to all intents and purposes, an affidavit, when it con- 
 tains any specific statement of facts, and so far as such statement of 
 facts is concerned. Where, or so far as it consists of bare denials of the 
 plaintiffs case, as stated, it can scarcely be said to assume that char- 
 acter. It then simply fulfils the office of a pleading. 
 
 On the preparation of affidavits of this description, care must be 
 taken to direct them especially to negative the title of the plaintiff to 
 the specific remedy of injunction. Thus, where an injunction was 
 granted to restrain a fraudulent disposition of property, it was held that 
 the only question to be considered, on the motion to dissolve, was that 
 of fraudulent intent, and that affidavits denying the debt of the plain- 
 tiff could not properly be received. Brewster vs. Hodges, 1 Duer, 609. 
 
 On a motion of this description (as in one founde'd on a denial of the 
 whole of the equity), if the plaintiff's title to relief be fully denied by 
 the defendant's affidavits, and the matter rests upon contending tes- 
 timony, without any decided preponderance in his favor ; or, a fortiori., 
 if his case, or the injury alleged by him, be substantially disproved, the 
 injunction cannot properly stand, but should be vacated, or modified, 
 as the case may demand. Perkins vs. Wa/rren,, 6 How., 341 ; Florence 
 vs. Bates, 2 Sandf., 675 ; 2 C. E., 110 ; McCafferty vs. Glazier, 10 
 How., 475 ; Merrimack Manufacturing Company vs. Oarner, 4 E. D. 
 Smith, 387 ; 2 Abb., 318 ; Chappell vs. Potter, 11 How., 865 (367). 
 
 The point next comes up for consideration as to whether, when the 
 defendant moves on a verified answer alone, the plaintiff can be allowed 
 to read affidavits or other proof, in reply, or in support of his original 
 case. 
 
 When other affidavits are used by the defendant, either with or with- 
 out such answer, there can be no doubt of this right. It is distinctly 
 provided for in section 226. 
 
 But that section says that he may do so, when such motion is made 
 on affidavit, " but not otherwise." On these words hangs the difficulty. 
 
 It has been decided in the following cases, that a broad distinction 
 exists between the term affidavit and the term answer ; and that, when 
 the defendant moves upon his answer alone, the plaintiff cannot read 
 affidavits in reply, or even his reply to such answer, and this, although 
 such answer, being verified, acquires the force of an affidavit, and may 
 be used as such, for the assertion of matter in evidence : Hartwell vs. 
 Kingsley, 2 ^andf., 674 ; 2 C. E., 101 ; Servoss vs. Stwmmrd, 2 C. E., 
 
Ij^TJUWCTION. — § 105. • 481 
 
 56. See also opinion ot "Woodruff, J., dissenting, in Merrmmck Manufac- 
 turing Company vs. Garner, i E. D. Smith, 387 ; 2 Abb., 318. See 
 likewise, Blatohford ts. The New Toric, aiid New Haven Bail/road 
 Company, 7 Abb., 322, based on the reasoning in Servoss vs. Stannard 
 (p. 324), and Minor vs. Buelcingham; 8 Abb., 68. 
 
 The decisions in Blatchford vs. The New Yorh and New Ila/ven 
 Railroad Company, and Hartwell vs. Kingsley, have both the authority 
 of decisions at general term (see note on latter, 2 Sandf., 674), and would 
 accordingly seem to bind the Superior Court, and the Supreme Court in 
 the first district. 
 
 There is, however, a very strong current of authority the other way, 
 and much force in the view contended for, which is this : "Where the 
 answer is a mere defence, not setting up any new matter, and is used 
 only as a pleading, and not for establishment of any new facts, the rule, 
 as above laid down, is undoubtedly correct. Where, however, that an- 
 swer goes beyond the mere ofBce of a defensive pleading, and sets up 
 matter in avoidance, on tlie statement of which new matter the defend- 
 ant relies in opposition to the plaintiff's case ; and the defendant uses 
 the answer on the motion, not merely as a pleading, but also as an affi- 
 davit for the assertion of such new matter ; there seems no valid reason 
 w-hatever, why the plaintiff should not be admitted to contradict that 
 new matter, merely because it happens to be technically proved by the 
 verified answer of the adverse party, when he has unquestionably the 
 right to do so if set up by the affidavit of a third party, by the separate 
 affidavit of the defendant, or even by the very answer of that defendant, 
 if not verified by himself, but by his agent. See Minor vs. Buoki/ng- 
 ham, 8 Abb., 68, supra. The above view is taken, and affidavits were 
 admitted in reply to the defendant's answer, in the following decisions : 
 Krom, vs. Hogan, 4 How., 225 ; Schoomaher vs. The Reformed Pro- 
 testant Dutch Church of Kingston, 5 Plow., 265 ; Hascall vs. Madi- 
 son University, 8 Barb., 174 ; 1 C. E. (IST. S.), 170 ; Hollins vs. Mal- 
 lard, 10 How., 540 ; Jaques vs. Areson, 4 Abb., 282 ; Powell vs. Glarh, 
 5 Abb., 70. See also generally, Damis vs. Hackley, 14 Abb., 64, note. 
 In Powell vs. Clark, supra, 5 Abb., 70 (73), it is said to have been 
 decided, that the receipt of additional affidavits is a matter of discre- 
 tion with the presiding judge, and such discretion ought surely to be 
 exercised in favor of not allowing the mere assertion of a defendant to 
 bar the plaintiff from the power of contradiction, when that right is 
 unquestionably secured to him, if the same proof be introduced in 
 another form. 
 
 But, in such a case, it has been held that the affidavits of the plain- 
 tiff in reply, whether responsive to the answer, or to affidavits on the 
 part of the defendant, should be confined to the new matter so set up. 
 YoL. I.— 31 
 
482 mJUKOTioN. — § 105. 
 
 Powell TB. Clark, supra; Florence y&: Sates, 2 C. R, 110. — 'S. B, 
 The report at 2 Sandf., 6T5, does not contain this part of the opinion. 
 
 The plaintiff's liberty to fortify his original case must, however, be 
 confined to his claim, as set up in the complaint ; he cannot enlarge 
 that claim, or prefer others. Rentz vs. The Long Island Bail/road. 
 Company, 13 Barb., 646. 
 
 (/. ) Geneeallt as to Motion. 
 
 It is competent for the plaintiff to abandon an injunction, when ob- 
 tained, by notice to the defendant. Shearman vs. The New York 
 Ceni/ralMiUs, 11 How., 269. Discontinuance of the suit has, of course, 
 the effect of destroying it per se. Hope vs. Acker, 7 How., 308. In 
 either case the injunction falls " ipso facto^^ and in neither will a sub- 
 eequent motion to dissolve be either necessary or admissible. 
 
 It falls equally, on a judgment on the hearing in favor of the defend- 
 ant. See Hoyt vs. Carter, 7 How., 140. 
 
 As to the power of the court, to provide against the removal of the 
 cause into the United States Courts operating as a dissolution p&r se, 
 vide Liddel vs. Thatcher, 12 How., 294. 
 
 In Furniss vs. Brown, 8 How., 59, an injunction granted on a com 
 plaint held bad for misjoinder, was, nevertheless, conditionally contin- 
 ued, in the event of the plaintiff's amending according to the leave 
 given. See also, as to the allowance of a technical amendment, for the 
 purpose of sustaining an injunction, Leffingwell vs. Chave, 5 Bosw., 
 703 ; 19 How., 54 ; 10 Abb., 472. 
 
 The subsequent insolvency of one of the original sureties may also, 
 it would seem, be made ground for a motion for dissolution, unless 
 fresh security be given. WiUett vs. Stringer, 15 How., 310 ; 6 
 Duer, 686. 
 
 So also inadequacy in the amount of the security as originally given, 
 will form ground for a dissolution, Ryohman vs. Coleman, 21 How., 404; 
 13 Abb., 398 ; or for a modification, Gurnee vs. Odell,_ 13 Abb., 264. 
 
 An order, continuing, modifying, or vacating an injunction, or grant- 
 iT)g one oil notice, is, of course, reviewable by the general term. It 
 cannot, however, be carried up to the ultimate tribunal, being a matter 
 exclusively resting in the discretion of the court below. See Yande- 
 waUr vs. kelsey, 1 Comst., 533 ; 3 How., 338 ; 2 C. R., 3 ; Selden vs. 
 Vermilyea, 1 Comst., 534 ; 3 How., 338 ; 1 C. E., 110. See also 
 Genin vs. Tompkins, 1 C. R. (IST. S.), 415. 
 
 If the injunction be vacated or modified, a copy of the order must, 
 of course, be served by the defendant on the adverse attorney. If, on 
 the contrary, the application be refused, or omitted to be made, the 
 injunction remains in force until the hearing of the cause, when, if the 
 
iNJuwcTioiT. — § 106. 483 
 
 plaintiff's right to continued relief of this nature be made out, it will 
 form part of the decree to be made ; if not, it falls, ipso facto, as above 
 shown. 
 
 As to how far a defendant may or may not move to vacate an injunc- 
 tion, whilst in contempt, see last section, under head of Violation of 
 Injunction, and cases there cited. 
 
 § 106. Dissolution.— Liability of Sureties. 
 
 In the event of the injunction being finally dissolved by the court, 
 the defendant will, as a general tule, be entitled to a claim for damages 
 in respect .of its granting and continuance. His immediate remedy for 
 this is by action on the undertaking. He may, however, if he so think 
 fit, also assert his right, by action against the adverse party ; but this 
 mode is unusual. 
 
 His course for the purpose of asserting the remedy so given to him, is 
 to obtain an order of reference, to ascertain the amount of damages which 
 he has sustained (see Code, sections 222, 224), and to proceed to estab- 
 . lish his claim before the referee. The plaintiff should have notice of the 
 proceedings, but it seems that it is not imperatively necessary to notify 
 the sureties, and that, without notice, they will be equally bound. Dick- 
 erson vs. OooJc, 3 Duer, 32i ; Methodist Ohnrohes of New York vs. 
 Barker, 18 IT. Y., 463. It is, however, in the discretion of the court 
 to order them to be notified, and it should, as a general rule, be 
 done, as they ought to be heard on the qitestion of damages, the re- 
 port having the effect of liquidating them. Wilde vs. Joel, 15 How., 
 320; 6 Duer, 671. 
 
 This order may properly be obtained and proceeded upon after judg- 
 ment. See case last cited. Before judgment, the application will be 
 premature, even where the temporary injunction has been abandoned. 
 Before the liability of the sureties attaches, the court must " finally de- 
 cide that the plaintiff was not entitled thereto." Shearman vs. The New 
 York Central Mills, 11 How., 269. And the same is the case, even, 
 when an adverse report has been made, so long as judgment is not en- 
 tered upon that report. Weeks vs. Southwick, 12 How., ITO. A dis- 
 continuance will give the right to proceed at once : Hope vs. Acker, 1 
 Abb., 308 ; Carpenter vs. Wright, 4 Bosw., 655 ; or a dismissal of the 
 complaint. Loomis vs. Brown, 16 Barb., 325. 
 
 On a reversal of an injunction by the general term, the liability of the 
 sureties will accrue forthwith, notwithstanding an appeal may have been 
 taken to the Court of Appeals. Nor will an order for continuance of 
 the injunction pending that appeal, avail to suspend it. Such order is, 
 in effect, a new injunction, and, to render it available, a new undertaking 
 
484 INJUKCTIOK. — § 106. 
 
 will be necessary. A restoration of the original injunction by the Court 
 of Appeals might eventually serve the sureties by waj of discharge from 
 their liability, but the appeal itself does not avail to- suspend it. Town 
 ' of Guilford vs. Cornell, 4 Abb., 220. 
 
 In estimating the damages sustained by an injunction, counsel fees 
 for defending the suit, and for moving to dissolve, may properly be in- 
 cluded. Goates vs. Goates, 1 Duer, &Q4: ; Willett vs. Soovill, 4 Abb., 
 405 ; White vs. Joel, 15 How., 320 ; 6 Duer, 671 ; Fitzpai/ricIcYB. Flagg, 
 12 Abb., 189. Also similar fees on an attachment for contempt. I)avis 
 vs. Sturtevcmt, 4 Duer, 148. But not counsel fees on an appeal to the 
 Court of Appeals, from a reversal of the judgment : Town of Guilford 
 vs. Cornell, supra ; or for obtaining the injunction in the firs^ instance. 
 Burnett vs. Photon, 21 How., 100; 12 Abb., 186. 
 
 If the injunction be, on the contrary, sustained, the defendant will be 
 liable for interest, for money retained in his hands, when he might have 
 paid it over to the plaintiff, or into court. MoKnigkt vs. Ghaunoey, 
 Court of Appeals ; see Selden's notes, 12th of April, 1853, p. 60. 
 
 On the report of the referee being obtained, it should be confirmed, on 
 special motion, and an application made to the court for leave to prose- 
 cute the bond. Griffm vs. Slate, 5 How., 205 ; 3 C. E., 213. As to 
 what such report must necessarily contain, see Taaks vs. Schmidt, 19 
 How., 413. 
 
 But where the bond is one given under the Eevised Statutes, such a 
 reference is not necessary, and it can be sued on by the party without 
 any preliminary proceeding. Leave of the court must, however, be 
 equally obtained. Higgins vs. Allen, 6 How., 80. 
 
 A bond of this last description is, under the statute, to be delivered 
 out to the defendant for prosecution. Vide 2 E. S., 190, § 150. An 
 ordinary undertaking need not be taken out of the hands of the clerk, 
 inspection and production being all that is necessary, to enable him to 
 draw his complaint, and maintain his action. White vs. Joel, sujpra. 
 
 In Willett vs. Soovell, 4 Abb., 405 (40T), judgment appears to have 
 been entered against the sureties, on the confirmation of the report, 
 without any action brought. The authority to do this seems, how- 
 ever, very questionable. See Biggins vs. Allen, and Griffing vs. Slate, 
 above cited. Defences might exist to the undertaking, from which 
 they cannot properly be precluded. White vs. Joel, supra. 
 
 In an action on a bond, under the Eevised Statutes, the plaintiff's 
 recovery will be limited to the amount of the penalty. An order that 
 the defendant in the original action pay the amount of the judgment, 
 in respect of which the injunction was granted, or that, in default, the 
 plaintiff be at liberty to prosecute, is a prudent preliminary to the 
 bringing of such action. Dickerson vs. Cook, 3 Duer, 324. 
 
ATTACHMENT. — § 107. 485 
 
 CHAPTER IV. 
 
 ATTACHMENT. 
 
 § 107. Statutory Provisions. 
 
 The Code of 1848 contained no provision whatever upon the subject 
 of this remedy. On the amendment of 1849, those in relation to it were 
 first inserted, forming chapter IV. of title YII., part II. 
 
 They run as follows : 
 
 Chapter IV. 
 
 Attachment. 
 
 § 227. In an action for the recovery of money, against a corporation cre- 
 ated by or under the laws of any other State, government, or country, or 
 against a defendant who is not a resident of this State, or against a defend- 
 ant who has absconded or concealed himself, or, whenever any person or 
 corporation is about to remove any of his or its property from this State, or 
 has assigned, disposed of, or secreted, or is about to assign, dispose of, or 
 secrete any of his or its property, with intent to defraud creditors, as herein- 
 after mentioned, the plaintiff, at the time of issuing the summons, or at any 
 time afterward, may have the property of such defendant or corporation 
 attached, in the manner hereinafter prescribed, as a security for the satisfac- 
 tion of such judgment as the plaintiff may recover. 
 
 Dates from 1857. Prior to that year, the provisions authorizing an attachment for removal 
 of property out of the state, or for a disposal of it with intent to defra,ud, were omitted. 
 
 § 228. A warrant of attachment must be obtained from a judge of the 
 court in which the action is brought, or from a county judge. 
 
 § 229. The warrant may be issued, whenever it shall appear by affidavit, 
 that a cause of action exists against such defendant, specifying the amount 
 of the claim, and the grounds thereof, and that the defendant is either a 
 foreign corporation, or not a resident of this State, or has departed there- 
 from with intent to defraud his creditors, or to avoid the service of a sum- 
 mons, or keeps himself concealed therein with a Uke intent ; or, that such 
 corporation or person has removed, or is about to remove, any of his or its 
 property from this State, with intent to defraud his or its creditors ; or has 
 assigned, disposed of, or secreted, or is about to assig-n, dispose of, or secrete, 
 any of his or its property, with the hke intent, whether such defendant be a 
 resident of this State or not. 
 
 It shall be the duty of the plaintiff procuring such warrant, within ten 
 
486 ATTACHMENT. § 107. 
 
 days after the issuing thereof, to cause the affidavits on which the same was 
 granted, to be filed in the office of the clerk of the county in which the ac- 
 tion is to be tried. 
 
 The first division of the section, down to " keeps himself concealed therein with a like in- 
 tent," was in the Code of 1849. The second, giving the remedy for the removal or conceal- 
 ment of property, was added on the amendment of 185T. The concluding sentence was sub- 
 joined on the amendment of 1860. 
 
 § 230. Before issuing the warrant, the judge shall require a written un- 
 dertaking on the part of the plaintiff, with sufficient surety, to the effect that 
 if the defendant recover judgment, or the attachment be set aside by the 
 order of the court, the plaintiff will pay all costs that may be awarded to 
 the defendant, and all damages which he may sustain by re|son of the 
 attachment, not exceeding the sum specified in the undertaking, which shall 
 be, at least, two hundred and fifty dollars. 
 
 Provision as to the undertaking, providing for the case of the attachment being set aside, 
 inserted in 1862. Dates otherwise from 1849. 
 
 § 231. The warrant shall be directed to the sheriff of any county in which 
 property of such defendant may be, and shall require him to attach and 
 safely keep all the property of such defendant within his county, or so much 
 thereof as may be sufficient to satisfy the plaintiff's demand, together with 
 costs and expenses ; the amount of which must be stated in conformity with 
 the complaint, together with costs and expenses. Several warrants may be 
 issued at the same time, to the sheriffs of different counties. 
 
 Form of section settled in 1851. Before that year, the sheriff was to attach all the defend- 
 ant's property, without limitation, to the amount of the plaintiff's demand. 
 
 § 232. The sheriff, to whom such warrant of attachment is directed and 
 delivered, shall proceed thereon, in all respects, in the manner required of 
 him by law, in case of attachments against absent debtors ; shall make and 
 return an inventory ; and shall keep the property seized by him, or the pro- 
 ceeds of such as shall have been sold, to answer any judgment which may 
 be obtained in such action ; and shall, subject to the direction of the court 
 or judge, collect and receive into his possession, all debts, credits, and 
 effects of the defendant. The sheriff may also take such legal proceedings, 
 either in his own name, or in the name of such defendant, as may be ne- 
 cessary for that purpose, and discontinue the same, at such times, and on 
 such terms, as the court or judge may direct. 
 
 § 233. If any property, so seized shall be perishable, or if any part of it 
 be claimed by any other person than such defendant, or if any part of it 
 consist of a vessel, or of any share or interest therein, the same proceedings 
 shall be had in all respects, as are provided by law, upon attachments 
 against absent debtors. 
 
 § 234. The rights or shares which such defendant may have in the stock 
 of any association or corporation, together with the interest and profits 
 .thereon, and all other property, in this State, of such defendant, shall be 
 
ATTACHMENT. — § lOY. 487 
 
 liable to be attached and levied upon, and sold to satisfy the judgment and 
 execution. 
 
 § 235. The execution of the attachment upon any such rights, shares, or 
 any debts or other property, incapable of manual delivery to the sheriff, 
 shall be made by leaving a certified copy of the warrant of attachment 
 with the president or other head of the association or corporation, or the 
 secretary, cashier, or managing agent thereof, or with the debtor or indi- 
 vidual holding such property, with a notice showing the property levied on. 
 
 § 236. Whenever the sheriff shall, with a warrant of attachment or exe- 
 cution against the defendant, apply to such officer, debtor, or individual, for 
 the purpose of attaching or levying upon such property, such officer, debtor, 
 or individual, shall furnish him with a certificate, under his hand, desig- 
 nating the number of rights or shares of the defendant in the stock of 
 such association or corporation, with any dividend, or any encumbrance 
 thereon, or the amount and description of the property held by such asso- 
 ciation, corporation, or individual, for the benefit of, or debt owing to, the 
 defendant. If such officer, debtor, or individual refuse to do so, he may 
 be required by the court or judge to attend before him, and be examined 
 on oath concerning the same, and obedience to such orders may be enforced 
 by attachment. 
 
 § 237. In case judgment be entered for the plaintiff in such action, the 
 sheriff shall satisfy the same out of the property attached by him, if it shall 
 be sufficient for that purpose. 
 
 1. By paying over to such plaintiff the proceeds of all sales of perishable 
 property, and of any vessel, or share or interest in any vessel sold by him, 
 or of any debts or credits collected by him, or so much as shall be necessary 
 to satisfy such judgment. 
 
 2. If any balance remain due, and an execution shall have been issued on 
 such judgment, he shall proceed to sell, under such execution, so much of 
 the attached property, real or personal, except as provided in subdivision 
 four of this section, as may be necessary to satisfy the balance, if enough 
 for that purpose shall remain in his hands ; and in case of the sale of any 
 rights or shares in the stock of a corporation or association, the sheriff shall 
 execute to the purchaser a certificate of sale thereof, and the purchaser shall 
 thereupon have all the rights and privileges, in respect thereto, which were 
 had by such defendant. 
 
 3. If any of the attached property belonging to the defendant shall have 
 passed out of the hands of the sheriff without having been sold or converted 
 into money, such sheriff shall repossess himself of the same, and, for that 
 purpose, shall have all the authority which he had to seize the same under 
 the attachment ; and any person who shall wUfully conceal or withhold 
 such property from the sheriff, shall be liable to double damages at the suit 
 of the party injured. 
 
 4. Until the judgment against the defendant shall be paid, the sheriff may 
 proceed to collect the notes, and other evidences of debt, and the debts that 
 
488 ATTACHSrEKT. — § 107. 
 
 may have been seized or attached under the warrant of attachment, and to 
 prosecute any bond he may have taken in the course of such proceedings, 
 and apply the proceeds thereof to the payment of the judgment. ^ 
 
 At the expiration of six months from the docketing of the judgment, the 
 court shall have power, upon the petition of the plaintiff, accompanied by 
 an affidavit, setting forth fully all the proceedings which have been bad by 
 the' sheriff since the service of the attachment, the property attached and 
 the disposition thereof; and also the affidavit of the sheriff, that he has used 
 diligence, and endeavored to collect the evidences of debt in his hands 
 so attached, and that there remains uncollected of the same any portion 
 thereof; to order the sheriff to sell the same, upon such terms and in such 
 manner as shall be deemed proper. Notice of such application shall be 
 given to the defendant or Ms attorney, if the defendant shall have appeared 
 in the action. In case the summons shall not have been personally served 
 on the defendant, the court shall make such rule or order as to the service 
 of notice, and the time of service, as shall be deemed proper. 
 
 When the judgment and all costs of the proceeding shall have been paid, 
 the sheriff, upon reasonable demand, shall deliver over to the defendant the 
 residue of the attached property, or the proceeds thereof. 
 
 That portion of subdivision four which provides for the sale of uncollected assets, was first 
 inserted on the amendment of 1859. The rest of the section, the concluding sentence included, 
 dates from 1849. 
 
 § 238. The actions herein aUithorized to be brought by the sheriff, may be 
 prosecuted by the plaintiff, or under his direction, upon the delivery by 
 him, to the sheriff, of an undertaking, executed by two sufficient sureties, to 
 the effect that the plaintiff will indemnify the sheriff from all damages, costs, 
 and expenses on account thereof, not exceeding two hundred and fifty dol- 
 lars in any one action. Such sureties shall, in all cases, when required by 
 the sheriff, justify, by making affidavit that each is a householder, and 
 worth double the amount of the penalty of the bond, over and above all 
 demands and liabilities. 
 
 § 239. K the foreign corporation, or absent, or absconding, or con- 
 cealed defendant, recover judgment against the plaintiff in such action, any 
 bond ta^en by the sheriff, except such as are mentioned in the last section, 
 all the proceeds of sales and moneys collected by him, and all the property 
 attached remaining in his hands, shall be delivered by him to the defendant 
 or his agent on request, and the warrant shall be discharged, and the pro- 
 perty released therefrom. 
 
 § 240. Whenever the defendant shall have appeared in such action, he 
 may apply to the officer who issued the attachment, or to the court, for an 
 order to discharge the same ; and, if the same be granted, all the proceeds 
 of sales and moneys collected by him, and all the property attached, re- 
 maining in his hands, shall be delivered or paid by him to the defendant, 
 • or his agent, and released from the attachment. 
 
 And where there is more than one defendant, and several property of 
 
ATTACHMENT. — § 107. 489 
 
 dther of the defendants has been seized by virtue of the order of attach- 
 ment, the defendant whose several property has been seized, may ■ apply to 
 the officer who issued the attachment, for relief under this section. 
 
 The concluding sentence added to the original section on the amendment of 1862. 
 
 § 241. Upon such an application, the defendant shall deliver to the court 
 or officer an undertaking, executed by at least two sureties, who are resi- 
 dents, and freeholders or householders in this State, approved by such court 
 or officer, to the effect that the sureties will, on demand, pay to the plaintiff 
 the amount of the judgment that may be recovered against the defendant 
 in the action, not exceeding the sum specified in the undertaking, which shall 
 be, at least, double the amount claimed by plaintiff in his complaint. If it 
 shall appear by affidavit that the property attached be less than the amount 
 claimed by the plaintiff, the court or officer issuing the attachment, may or- 
 der the same to be appraised, and the amount of the undertaking shall then 
 be doubl% the amount so appraised. And in all cases, the defendant may 
 move to discharge the attachment, as in the case of other provisional rem- 
 edies. 
 
 And where there is more than one defendant, and several property of 
 either of the defendants has been seizedby virtue of the order of attachment, 
 the defendant whose several property has been seized may deliver to the 
 court or officer an undertaking, in accordance with the provisions of this 
 section, to the effect that he will, on demand, pay to the plaintiff the amount 
 of judgment that may be recovered against such defendant. And all the 
 provisions of this section applicable to such undertaking shall be applied 
 thereto. 
 
 The concluding provisions were added in 1862. The first sentence formed the whole sec- 
 tion in 1849. The intermediate portion was added in 1857. 
 
 § 242. When the warrant shall be fully executed or discharged, the 
 sheriff shall return the same, with his proceedings thereon, to the court in 
 which the action was brought. 
 
 § 243. The sheriff shall be entitled to the same fees and compensation for 
 services, and the same disbursements, under this title, as are allowed by 
 law for like services and disbursements, under the provisions of chapter five, 
 title one, part two, of the Revised Statutes. 
 
 The above are all the provisions of the Code on the subject of attach- 
 ment. 
 
 By sections 232 and 233, however, the sheriff is directed to proceed, 
 as provided by law, in the case of attachments against absent debtors. 
 Under section 243 he is, also,. entitled to the same fees and disburse- 
 ments as are allowed by law in the same cases. 
 
 The references, so made, necessitate a citation of the provisions of the 
 Revised Statutes on these subjects. Though the procedure, under those 
 provisions, has fallen into comparative disuse, the attachment under 
 the Code being for the immediate and sole benefit of the actual plain- 
 
490 ATTACHMENT. § 107. 
 
 tiff, whereas, under the Eevised Statutes, he proceeded not merely on 
 behalf of himself but of his class in general, this portion of that pro- 
 cedure is, by these means, necessarily kept alive. 
 
 The provisions still retained in active operation by the references in 
 sections 233 and 234, constitute a portion of article I., title I., chapter 
 y., part II., of the Eevised Statutes, sections' Y to 17, and 20 to 29, in- 
 clusive. Vide 2 E. S., 4 to 6. 
 
 They run as follows : 
 
 § 7. The sheriflF to whom any such warrant shall be directed and deUv- 
 ered, shall immediately attach all the real estate of such debtor, and all his 
 personal estate, iacluding money and bank-notes, except articles exempt 
 from execution ; and shall take into his custody all books of account, vou- 
 chers, and papers relating to the property, debts, credits, and effects of such 
 debtor, together with all evidences of his title to real estate, which he shall 
 safely keep, to be disposed of as hereinafter directed. 
 
 § 8. He shall, immediately on making such seizure, with the assistance of 
 two disinterested freeholders, make a just and true inventory of all the prop- 
 erty so seized, and of the books, vouchers, and papers taken into his cus- 
 tody, stating therein the estimated value of the several articles of personal 
 j)roperty, enumerating such of them as are perishable ; which inventory, 
 after being signed by the sheriff and the appraisers, shall within ten days 
 after such seizure be returned to the officer who issued the warrant; and the 
 sheriff shall, under the direction of such officer, collect, receive, and take into 
 his possession, all debts, credits, and effects of such debtor, and commence 
 such suits and take such legal proceedings in the name of such debtor as 
 may be necessary for that purpose, and which suits and proceediogs may be 
 continued by the trustees to be appointed as hereinafter directed, untU a 
 final termination thereof. 
 
 Amended, as it stands, by section 1 of chapter 354, of 1840. 
 
 § 9. If any of the property so seized, other than vessels, be perishable, the 
 sheriff shall sell the same at public auction, under an order of the officer 
 who issued the warrant, and shall retain in his hands the proceeds of such 
 sale, after deducting his expenses to be allowed by such officer, which pro- 
 ceeds shall be disposed of in the same manner as the property so sold would 
 have been if it had remained unsold. 
 
 § 10. If any goods or effects seized as the property of the debtor, other 
 than vessels, shall be claimed by or on behalf of any other person as his 
 property, the sheriff shall summon and swear a jury to try the validity* of 
 such claim, in the same manner and with the like effect as in case of seizure 
 under execution. 
 
 § 11. If, by their inquisition, the jury find the property of the goods and 
 effects so seized to be in the person claiming them, the sheriff shall forth- 
 with deUver them to the claimant or his agent, unless the attaching creditor 
 shall by bond, with sufScient sureties, indemnify the sheriff for the deten- 
 
ATTACHMENT. — § 107. 491 
 
 tion of such goods and effects. In case of such indemnity, the sheriff shall 
 detain such goods and effects, to be disposed of as hereinafter directed. 
 
 § 12. If the property in such goods be found to be in the claimant, the 
 costs and charges arising from such inquisition, to be allowed by the officer 
 issuing the warrant, shall be paid by the attaching creditor ; but if it be 
 found to be in the debtor, then the costs and charges, to be ascertained in 
 the same manner, shall be paid by the claimant. 
 
 Amended, as it now stands, by section 297, of 1841. 
 
 The two following sections were added by chapter 242, of 1841 : 
 
 § 13. It shall be lawful for the owners or masters of any ship or vessel, 
 on board of which the goods of any non-resident, concealed, or absconding 
 debtor shall have been shipped in good faith, for the purpose of transporta- 
 tion, without reshipment or transhipment in this State, to any port or place 
 out of this State, to transport and deliver such goods according to their des- 
 tination, notwithstanding the issuing of any attachment against such debtor, 
 imless the attaching creditor, his agent or attorney, shall execute a bond 
 with sufficient sureties to any or either of the owners or masters of the ves- 
 sel on board of which such goods shall be shipped, conditioned to pay such 
 owner or master aU expenses, damages, and charges which may be incurred 
 by such owner or master, or to which they may be subjected for unlading 
 said goods from said vessel, and for all necessary detention of said vessel for 
 that purpose. [1841, ch. 242, § l.J 
 
 § 14. This act shall not extend to any case where such owner or master, 
 either before or at the time of the shipment of such goods, shall have receiv- 
 ed actual information of the issuing of such attachment, nor where the owner 
 or the master of any vessel have in any wise connived at or been privy to 
 the shipment of such goods, for the purpose of screening them from legal 
 process, or for the purpose of hindering, delaying, or defrauding creditors. 
 [Same, § 2.] 
 
 § 15. (13.) When a vessel belonging to any port or place in this state, or 
 any of the United States, or any share or any interest in such vessel, shall be 
 attached ; on the application, within thirty days thereafter, of any person 
 claiming such vessel or share, or of his agent, the ofiicer who issued the 
 warrant may cause the vessel or share so seized to be valued by three indif- 
 ferent men, to be appointed by such officer. 
 
 § 16. (14.) Within two days after such appraisement shall be made, the 
 claimant, or his agent, may execute a bond with sureties, to be approved by 
 such officer, to the people of this State, in a penalty double the amount of 
 such appraised value, conditioned that, in a suit to be brought on such bond, 
 the claimant will establish that he was the owner of such vessel or share at 
 the time of the seizure, and, in case of his failure to do so, that he will pay the 
 amount of such valuation, with interest, from the date of the bond, to any 
 trustees who may be appointed on such attachment ; or in case none be ap- 
 pointed according to law, or the attachment be discharged, to such debtor 
 or his personal representatives. 
 
492 ATTACHMENT. § 107. 
 
 N. B. The machinery of trustees is no longer applicable to the present form of attachment, 
 and the condition of the bond must, of course, be correspondingly altered. / 
 
 § IV (15.) Upon such bond being executed and delivered to Buch officer, 
 he shall order the vessel or share so seized to be discharged from the attach- 
 ment, and the sheriff shall discharge such vessel or share accordingly. 
 
 N. B. The next two sections prescribe as to the nature of the suit to be brought upon such 
 bond when given, and the proceedings thereon. 
 
 § 20. (18.) "Whenever a foreign vessel, or a share or interest in any for- 
 eign vessel shall be attached, such vessel or such share or interest may be 
 valued in the manner above prescribed, upon the application of any person 
 who shall, by his affidavit, swear that he is the owner thereof, or upon the 
 application of the agent of such owner, who shall, by his affidavit, swear 
 that he is such agent, and that he verily believes his principal to be the 
 owner of the vessel, or share so attached. 
 
 § 21. (19.) Such notice of such appUcation shall be given to the attaching 
 creditors, as the officer to whom the same is made shall deem reasonable. 
 
 § 22. (20.) Within three days after such valuation shall be returned to the 
 officer who directed the same, the creditors at whose instance the attachment 
 issued shall execute a bond, with sureties, to be approved by such officer, to 
 the person in whose behalf such claim shall be made, in double the amount 
 of the valuation, with a condition to prosecute such attachment to effect, and 
 to pay such damages as may be recovered against them, for seizing the said 
 vessel, or share, in any suit that shall be brought against them within three 
 months from the date of the bond, if it shall appear in such suit that the 
 vessel, or share or interest therein, so attached, belonged, at the time of 
 issuing such attachment, to the person in whose behalf such claim shall be 
 made. 
 
 § 23. (21.) Unless such bond be given as above prescribed, the officer who 
 issued the attachment shall grant an order discharging the vessel, share, or 
 interest so claimed from such attachment, and the same shall be discharged 
 accordingly. 
 
 § 24. (22.) If, after an attachment has been levied upon a foreign vessel, a 
 valuation of the same, or of the share or interest therein seized, be made, no 
 other warrant or attachment shall issue against the same vessel, as being'the 
 property, in whole or in part, of the same debtor, until the security above 
 prescribed shall be given by the person requiring such warrant. 
 
 § 25. (23.) If, after the execution of any such bond by an attaching cred- 
 itor, the attachment shall be discharged, or the proceedings shall cease, by 
 the omission to appoint trustees according to law, the debtor against whom 
 such attachment issued, or his agent, shall be entitled to claim such vessel, 
 share, or interest, or the proceeds thereof if the same shall hkve been sold, 
 only upon his discharging the bond so executed by such attaching creditor, 
 or by his executing to such creditor a bond, in a penalty double the valuar 
 tion made as herein directed, with sureties to be approved by the officer who 
 
ATTACHMENT. — § 107. 493 
 
 issued the attachment, conditioned to indemnify such creditor against all 
 charges and expenses in consequence of the bond so executed by him. 
 
 § 26. (24.) If the bond of the attaching creditor be not discharged, or he 
 be not indemnified as above directed, within one month after the debtor 
 became entitled to claim such vessel, share, or interest, as above prescribed, 
 such vessel, share, or interest may be sold by the sheriif in ■whose custody 
 the same may be, upon an order of the officer who issued the attachment ; 
 and the proceeds of the sale shall be paid to the attaching creditor, who 
 executed such bond for his indemnity. 
 
 § 27. (25.) If no claim be made by any owner of a domestic vessel, or 
 of a share in such a vessel, seized under any warrant of attachment, within 
 thirty days after such seizure, and no bond be executed as herein directed 
 by such claimant ; or if no claim be made within that time, by or in behalf 
 of the owner of any foreign vessel, or of a share therein, so seized, such ves- 
 sel or share may be sold by the sheriff making such seizure, under an order 
 of the officer issuing the attachment, to be granted upon the application of 
 any attaching creditor, whenever, in the opinion of such officer, a sale may 
 be necessary. 
 
 § 28. (26.) When a share in any vessel, foreign or domestic, shall be 
 seized, if no claim to such share be made by any owner thereof, as herein 
 provided, within thirty days after such seizure, it may be sold by the sheriff, 
 under an order of the officer issuing the attachment, to be granted on the 
 application of any joint owner, or of his agent. 
 
 § 29. (27.) Whenever a sale of perishable property, or of a vessel, or 
 share of a vessel, shall be ordered by any officer, as herein authorized, he 
 shall, in such order, prescribe the time, place, and notice of such sale, and 
 how the same shall be published. 
 
 The fees to which the sheriff is entitled, as reserved by section 243, 
 are not prescribed in detail by the provision of the Eevised Statutes 
 there referred to. 
 
 They will, however, be found in a subsequent portion of those statutes, 
 title III. of chapter X., part III. 
 
 They form part of section 38, which prescribes the fees of the sheriff 
 for the different services rendered by him. 
 
 The provisions immediately pertinent to the present subject run thus : 
 
 " For serving an attachment for the payment of money," or an execution, 
 &c., " for collecting the sum of two hundred and fifty dollars or less, two 
 cents and five mills per dollar ; and for every dollar collected more than 
 two hundred and fifty, one cent and two and a half mills. 
 
 " For serving an attachment against the property of a debtor, under the 
 provisions of chapter V. of the second jDart" (or against a ship or vessel 
 under other provisions, not pertinent on the present occasion), "fifty cents, 
 with such additional compensation for his trouble and expenses, in taking 
 possession of and preserving the property attached, as the officer issuing 
 
494 ATTACHMENT. — § 108. 
 
 the warrant shall cert;ify to be reasonable ; and, where the property so 
 attached shall afterward be sold by the sheriflf, he shall be entitled to the 
 same poundage on the sum collected, as if the same had been under an 
 execution." 
 
 " For making and returning an inventory and appraisal, such compensa- 
 tion to the appraisers, not exceeding one dollar to each per day, for each 
 day actually employed, as the officer issuing the attachment shall allow; 
 and the same compensation for drafting and copying the inventory, as is 
 allowed for drafts or copies to attorneys in the Supreme Court." 
 
 (N. B. — There is no compensation allowed to attorneys in the Supreme Court, which would 
 tally with this particular service. In Chancery, the allowance would be, for drafting, twenty- 
 eight cents ; for engrossing, fourteen cents ; and for every other necessary copy, seven cents 
 per folio.) 
 
 "For selling any property so attached, and advertising such sale, the 
 same allowances as on sales on executions." 
 
 For these allowances see hereafter, under that head. 
 
 § 108. General Ohservation^s. 
 
 The provisions of the Code, as above cited, are in close analogy with 
 those of the Kevised Statutes, granting a similar remedy in actions 
 against foreign corporations. See article I., title IV., chapter YIII., 
 part III., sections 15 to 36 inclusive, 2 K. S., 459 to 462, section 15 be- 
 ing amended by chapter 107 of 1849, p. 142. They are obviously 
 framed on the same model, extending the operation of the previons 
 remedy. Although that portion of the Eevised Statutes is not formally 
 repealed {vide Cam-pMl vs. The Proprietors of the Champlain and St. 
 Lawrence Railroad Company^ 18 How., 412), it may fairly be consid- 
 ered as virtually superseded by the Code as it now stands. 
 
 The operation of that measure, as regards the remedy of attachment, 
 given by the Eevised Statutes in the cases of absconding, concealed, 
 and non-resident debtors, and of debtors confined for crimes (see art. 
 I. and II., title I., ch. V., part IL, 2 E. S., 1 to 15 inclusive), is equally 
 clear in fact, but is at the first glance less obvious. JSTot being re- 
 pealed, those remedies are unquestionably still attainable, and a part 
 of the machinery provided by the Eevised Statutes is still retained, un- 
 der the Code, as above noticed. 
 
 In the case of debtors confined for crimes, the Eevised Statutes con- 
 tinue to afford the only resource, the Code being silent upon that sub- 
 ject. Those proceedings, however, are rather in the nature of prelim- 
 inaries to an insolvent assignment, than steps taken in or for the pur- 
 poses of an actual suit, and their consideration in the present work 
 would therefore be out of place. 
 
 In the case of absconding, concealed, and non-resident debtors, the 
 
ATTACHMENT. — § 108. 495 
 
 remedies given by tlie Code may fairly be considered as substituted for 
 fbose given by the Revised Statutes. That the former are in no veise 
 controlled or limited by the latter, is expressly laid down in Ready vs. 
 Stewart, 1 C. E.. (N. S.), 297. The attachment, under the former prac- 
 tice, was in fact not a provisional remedy, but a special proceeding, 
 resulting in the appointment of trustees, and in a transfer of all the 
 debtor's property to such trustees, not for the benefit of the individual 
 suitor, but to be divided amongst all c'ccAitov?,, pO/ri passu. 
 
 Having none of the characteristics of an ordinary suit, but being 
 strictly and to all intents a special proceeding, its consideration, 
 in connection with the subject of provisional remedies, would be 
 entirely out of place. Besides, this form of procedure is rapidly 
 growing, if it has not already grown, practically obsolete. The 
 superior facilities which the Code gives to a diligent creditor, are too 
 obvious to require more than a mere allusion. Proceedings under that 
 measure afford, too, another and a most important advantage. Being 
 merely operative as a provisional remedy, accessory to an action com- 
 menced by summons, those proceedings are not jurisdictional. Any 
 error in them is therefore capable of amendment, without affecting 
 their validity, or the steps taken previous to such correction.- Under 
 the Revised Statutes, the attachment itself formed, .on the contrary, the 
 original process. The proceeding itself being statutory, a strict com- 
 pliance with the statute, in all its requirements, was essential. Any 
 mistake or omission in the original affidavits was, therefore, fatal to the 
 whole, and, moreover, unamendable. It involved a failure to acquire 
 jurisdiction. See Furman vs. Walter, 13 How., 348 ; Staples vs. Fair- 
 child, 3 Comst., 41 ; Payne vs. Young, 4 Seld., 158. 
 
 A similar remedy exists in justices' courts ; but, as before stated, the 
 consideration of the practice of those tribunals is entirely beyond the 
 scope of the present treatise, and will not therefore be entered upon. 
 
 The Revised Statutes also provide a remedy by attachment, for the 
 enforcement of liens against ships or vessels, and the provisions there 
 made have been the subject of numerous subsequent amendments by 
 ' the legislature. This proceeding is not, however, provisional, or in any 
 wise accessory to a suit. It is, on the contrary, strictly special, and 
 provides a complete remedy, by sale of the vessel, and distribution of the 
 proceeds amongst all the holders of similar liens, pari passu, without 
 any preference in favor of the original promoter. Its consideration, in 
 connection with the subject of provisional remedies, would, therefore, 
 be equally out of place. 
 
 Not merely does the provisional remedy, provided by the Code, afford 
 a most valuable facility to the suitor, but, in certain cases, it is essential 
 to the enforcement of his rights. When service has been made by pub- 
 
496 ATTACHMENT. § 108. 
 
 lication, judgment cannot how be entered, unless such an attaclmieiit 
 has been issued, and an actual levy made under it. See rule 25. 
 
 Under the Revised Statutes, a non-resident was not competent to sue 
 out an attachment, though, when one was already issued, he might 
 come in under it, and participate in the division. In re Goates, 12 
 How., 344. See also, In re Bonaffe, 18 How., 15, and same case, 23 
 I^. Y., 169 ; aiSrming, 33 Barb., 469. The fact of one partner being 
 non-resident did not, however, disqualify the firm from initiating such 
 proceedings, on the affidavit of one of its resident members. Renard 
 vs. Hargous, 3 Kern., 259 ; affirming, same case, 2 Duer, 540. 
 
 Under the Code, however, a non-resident labors under no such disa- 
 bility. He may attach the property of another, in any action in which 
 an attachment is issuable, without regard as to whether the cause of 
 such action did, or did not, arise within this state. Heady vs. Stewart, 
 1 C. E.. (N. S.), 297. And this equally applies to the case of a foreign 
 corporation, so far as regards its rights as plaintiif. Yide President of 
 Banlc of Commerce vs. The Rutland and Washington Railroad Com- 
 jpany, 10 How., 1 (7). 
 
 But a suit against a foreign corporation, cannot be maintained by a 
 non-resident plaintiff, unless the cause of action shall have arisen, or 
 the subject of the action shall be situated within this state. Code, sec- 
 tion 427. Of course, in such a case, an attachment, under the Code, 
 cannot stand, unless one of these two conditions be satisfied. 
 
 See as to the former of these two prerequisites, Western Bank vs. City 
 Bank of Columbus, 7 How., 239 ; Eggleston vs. Oran,ge and Alexan- 
 dria Railroad Comjpany, 1 C. E. (IST. S.), 212 ; McDonough vs. Phelps, 
 15 How., 372 ; Cantn/jell vs. The Pubuque and Western Railroad Com- 
 pany, 17 How., 16 ; President of Bank of Commerce vs. Rutland 
 and Washington Railroad Company, 10 How., 1, supra; Bates vs. 
 The New Orleans, Jackson, and Great Northern RaAlroad Company, 
 13 How., 518 ; 4 Abb., 72. 
 
 See, as to the latter, the following decisions, holding that the mere 
 fact of property of a foreign corporation being within the state, is not 
 sufficient to warrant the issuing of an attachment. The subject of the 
 action is the claim asserted by the plaintiff, and the satisfaction whicjh 
 he seeks out of the property, not the property itself. Unless the action 
 itself be strictly in rem, jurisdiction will not, in such a case, be ac- 
 quired against a foreign corporation, and an attachment, if issued, can- 
 not stand. Whitehead vs. Buffalo and lake Huron Railroad Cotu- 
 pany, 18 How., 218 ; Campbell vs. Proprietors of the Champlam and 
 St. La/uirence Railroad, 18 How., 412. 
 
ATTACHMENT. — 8 10 9. 497 
 
 § 109. When, and from whom Ohtamahle. 
 
 The provisions to be considered in this division will be found in sec- 
 tions 22T and 228. 
 
 1. An attachment is only obtainable in an action for the recovery of 
 money. 
 
 2. It is obtainable in that action, at the time of issuing the summons, 
 or at any time afterwards. Being obtainable, however, " as a security 
 for the satisfaction of such judgment as the plaintiff may recover," it 
 follows, as a necessary consequence, that it must be applied for before 
 the recovery of such judgment. 
 
 3. The officers competent to grant this remedy are, " a judge of the 
 court in which the action is brought, or a county judge." 
 
 4. The remedy is obtainable in the following cases : 
 When the action is brought against a foreign corporation. 
 
 When it is brought against a defendant who is not a resident of this 
 state. 
 
 When the defendant, in an action for the recovery of money, has 
 absconded, or concealed himself. The meaning of these expressions is, 
 however, more fully given in section 229, where it is prescribed that 
 the affidavit must show in such cases, either that the defendant has de- 
 parted from this state " with intent to defraud his creditors, or to avoid 
 the service of a summons ; or keeps himself concealed therein with a like 
 intent." 
 
 When the defendant in such an action, being a person or corporation, 
 is about to remove any of his or its property from this state, or has 
 assigned, disposed of, or secreted, or is about to assign, dispose of, or 
 secrete, any of his or its property, with intent to defraud creditors. 
 
 In this last class, the remedy is equally obtainable, whether such de- 
 fendant be a resident of the state or not. Section 229. 
 
 It is proposed to consider these several matters in the above order. 
 
 {a.) 1. Only Obtainable in an Action. 
 
 This remedy is, as will be seen, only obtainable by the plaintiff in an 
 action, and that an action for the recovery of money. 
 
 It is therefore appropriate to the whole class of proceedings, to which 
 the form of summons issuable under subdivision 1 of section 129, is ap- 
 propriate. 
 
 It is also issuable in that class in which pecuniary damages are sought 
 to be recovered. Vide Hernstem vs. Matthewson, 6 How., 196 ; 3 0. K, 
 139. And the court wiU give a liberal construction to the statute in or- 
 der to sustain the attachment, when the action is substantially one for 
 
 Vol. I.— 32 
 
498 . ' attaohmestt. — § 109. ^ 
 
 damages, though other collateral relief be sought. Ward vs. Begg^ 18 
 Earb., 139. 
 
 But where the summons is for relief, and does not ask judgment for 
 any specified amount, an attachment will not stand, even though the 
 complaint claim damages for a specified amount. Gordon vs. Gaffey, 
 11 Abb., 1. 
 
 Where the cause of action was for a conversion, but the plaintiff 
 waived the tort, and sued for the value of the goods, the summons ask- 
 ing judgment for a money demand, an attachment was sustained. Tre- 
 nor vs. Faohwi, unreported. 
 
 In Floyd ys. Make, 19 How., 542; 11 .Abb., 349, it was even held 
 that in the case of a non-resident or absconding defendant, an attach- 
 ment might issue, in an action for damages for assault and battery. 
 
 But the remedy is not applicable to that class of suits, in which the re- 
 lief sought is not represented or representable in whole or in part by a 
 mere money payment, as in suits for specific performance, injunction, 
 and others of a like nature. 
 
 A suit for a partnership accounting is one of the latter class, and an 
 attachment cannot properly issue, even though the plaintiff, in his affi- 
 davit, assumes to state that there is due to him a sum exceeding a speci- 
 fied amount. Ackroyd vs. AcTcroyd, 20 How., 93 ; 11 Abb., 345. 
 
 (5.) 2. At what time Obtaestable. 
 
 Attachment, as maybe seen, is obtainable by the plaintiff in such an 
 action "at the time of issuing the summons, or at anytime afterwards." 
 Section 227. 
 
 But, as before noticed, it follows by necessary implication, from the 
 wording of the subsequent portions of the section, that it is only so 
 obtainable before the recovery of judgment. The remedies of the 
 plaintiff after judgment lie under execution, or supplementary pro- 
 ceedings. 
 
 A summons must accordingly be issued at the time of the application. 
 The making it out and having it ready for service will, however, be a 
 sufficient issuing. It should be presented to the officer applied to, 
 together with the other papers. It is not essential that it should be de- 
 livered to the sheriff, either with or before the attachment. It may be 
 served by any other authorized person ; but it should simultaneously or 
 previously be made out and placed in the hands of that person, with a 
 londfide intent to have it served, if practicable. Vide, Mills vs. Cor- 
 lett, 8 How., 500 ; ConUin vs. Dutcher, 5 How., 386 ; 1 C. R. (N". S.), 49. 
 
 Where the affidavit on which an attachment was granted was sworn 
 to before the date of the summons, the attachment was, on that among 
 other grounds, set aside. Burgess vs. Stitt, 12 How., 401. The affida- 
 
• ATTACHMENT. — § 109. 499 
 
 vlt on that service, was, however, manifestly defective. Otherwise, 
 there seems no reason why an attachment should not be obtainable on 
 an affidavifsworn on a previous day, provided, at the time of the actual 
 application, the summons has been issued. 
 
 The case of TreadmeU vs. Lawlor, 15 How., 8, seems wholly to ignore 
 the existence of the provision now under consideration, and, so far, can- 
 not be considered as of authority. 
 
 See, however, below, as to the necessity of jurisdiction being acquired, 
 by service or otherwise, before an attachment can be issued by a court 
 of limited powers. 
 
 (c.) 3. Fkom whom Obtainable. — Question of Jtjeisdiotion'. 
 
 The oiBcers from whom an attachment is obtainable are, as appears 
 by section 228, a judge of the court in which tjie action is brought, or a 
 county judge. 
 
 When issued, the act is the act of the court itself, and not of the 
 individual judge. Subsequent proceedings are, therefore, in no wise 
 affected by the expiration of the latter's term of ofKce, but may be 
 continued with the same effect before any other. Davis vs. Ainsworth, 
 14 How., 346. 
 
 To enable the judge to act, however, the court of which he is a mem- 
 ber must have jurisdiction of the controversy. A strict view, on this 
 question, was taken by the Superior Court, in Fisher vs. Curtis, and 
 two other cases, 2 Sandf., 660, 661, and Granger vs. Schwartz, 11 L. 0., 
 346. It was there held that, unless that court had already obtained 
 jurisdiction of the controversy by service, an attachment issued by it 
 would be void. This view is, however, receded from, and Fisher vs. 
 Curtis in terms overruled in Gould vs. Bryan, 3 Bosw., 626 ; which 
 holds that the court in question has power to issue an attachment in 
 such cases, before service, and to accompany the summons, and that the 
 actual commencement of the suit is not an essential prerequisite. The 
 attachment, however, so issued, cannot be executed, until the summons 
 has been served. See similar view, in relation to the issuing of an 
 injunction, Xeffingwell vs. Cham, 5 Bosw., 703 ; 19 How., 54 ; 10 
 Abb., 472. 
 
 Where, however, jurisdiction had been acquired by the Superior 
 Court, by service upon one of several joint debtors, it was held that an 
 attachment might be issued against the property of the others, though 
 non-resident. Anon., 1 Duer, 662. 
 
 The Supreme Court will, as a general rule, be the more convenient 
 forum of application, in proceedings against non-residents, and likewise 
 in all cases where the attachment is sought to be enforced in more than 
 one county, or out of the county of limited jurisdiction. 
 
500 ATTAOHMEKT. — § 109. * 
 
 (d.) 4. In what Cases Obtainable. Against Foeeign Coepoeations. 
 
 The power of the court to issue an attachment in cases where a 
 foreign corporation is defendant is, as before stated, limited by the pro- 
 visions of section 427, declaring when an action of this sort is or is not 
 maintainable. 
 
 The Great "Western Railroad Company of Canada enjoys, by statute, 
 peculiar immunities in this respect. On filing a bond for the payment 
 of any judgment against them, and on designating a person in ISTiagara 
 county, on whom process can be served, their property in this state is 
 exempted from attachment in suits for amounts not exceeding the pen- 
 alty of such bond ; and in suits exceeding that amount, they are 
 entitled to ten dayij' notice of aq application for an attachment against 
 such property. Vide ch. 84 of 1857, vol. 1, p. 188. 
 
 As to the power to issue an attachment against a foreign insurance 
 company, notwithstanding the provisions of section 427, see Hums vs. 
 Provincial Insurance Company, 35 Barb., 525 ; 13 Abb., 425. See 
 also, as to the jurisdiction of the court in a case between two foreign 
 corporations, arising out of a contract to be performed within, though 
 made out of, this state, Gormecticut Mutual Life Assurance Conipamy vs. 
 Ck'delamd, Oolumbus, amd Cincinnati Railroad Company, 23 How., 180. 
 
 (e.) Against ]N"on-eesident Debtoes. 
 
 The question as to when a defendant will or will not be considered 
 non-resident, within the meaning of this section, so as to render his 
 property attachable, has given rise to considerable discussion. 
 
 It may now be considered as settled that, when the defendant' has a 
 family, and the residence of that family is actually out of the state, 
 however near or convenient of access it may be, and he spends his 
 nights, or even a portion of his time with that family, at such residence, 
 he will be held to be non-resident, and his property will be attachable, 
 even although he has a place of business within the state, and passes 
 the whole of his business hours, and transacts the whole of his business, 
 in the- ordinary manner, at that place. See Lee vs. Stanley, 9 How., 
 272 ; Barry vs. Bochover, 6 Abb., 374 ; Potter vs. Kitchen, 6 Abb., 
 374, note ; Houghton vs. Ault, 16 How., 77 ; 8 Abb., 89, note ; Chwine 
 vs. Wilson, 16 How., 552 ; 8 Abb., 78 ; affirmed, 1 Bosvv., 673 ; 8 Abb., 
 103; Oreaton vs. Morgan, 8 Abb., 64; Bache vs. LoAirence, 17 
 How., 554. 
 
 These cases seem clearly to overrule Towner vs. Church, 2 Abb. 299. 
 On examination they will not be found to conflict with Haggcui't vs. 
 Morgan, 1 Seld., 422 ; affirming 4 Sandf., 198. That action was 
 brought on a bond given to obtain a release of property attached under 
 
ATTACHMENT. — § 109. 501 
 
 the Eevised Statutes, not under the Code, and the decision itself 
 turned entirely on tlie principle of estoppel. See Houghton vs. AuU, 
 and Chaine vs. Wilson, above cited. 
 
 In HurUmt vs. Seeley, 11 How., 507 ; 2 Abb., 138, the converse of 
 the above proposition was maintained, and, where the family of the 
 party had continued to reside within the state, he Was held to be still a 
 resident, and an attachment against his property was set aside, notwith- 
 standing his prolonged absence, for the purpose of setting up a coUat- 
 • eral business in the state of Wisconsin, but intending, after the estab- 
 lishment of such business, to return. 
 
 The intention of the defendant as to ultimate residence formed one 
 of the main grounds of this decision. See also Heidenhach vs. SoTiland^ 
 10 How., 477, holding that an emigrant, coming to this country with 
 the intention of settling permanently, was a resident, even though 
 living in a boarding-house. A mere intention to change a defendant's 
 residence will not, however, avail to change his status in this respect, 
 whilst incomplete and not carried into eifect. Lee vs. Stanley, 9 How., 
 272, sujpra. See also Burrowes vs. Miller,'^ How., 349. See generally, 
 on the question of domicile, Hegeman vs. Fox, 31 Barb., 475. 
 
 An attachment is maintainable against the property of a non-resident 
 or absconding partnei-, though another member of the same firmi is 
 still resident, and has been served with process. Brewster vs. Honings- 
 lurgher, 2 C. K., 50 ; Baird vs. Walker, 12 Barb., 298 ; ICE. (N. S.), 
 829 ; Anon., 1 Duer, 662. 
 
 . Under such an attachment the sheriff may, it would seem, take pos- 
 session of the partnership property, for the purpose of selling the inter- 
 est of the non-resident partner therein. Goll vs. Hinton, 8 Abb., 120 ; 
 Hergman vs. Dittlebach, 11 How., 46. The former case overrules in 
 terms the special term decision in Stoutenburgh vs. Vandenburgh, 7 
 How., 229, and Sears vs. Gea/rn, 7 How., 383, holding that, in such 
 case, it is the individual interest of the non-resident which is alone 
 liable to seizure. 
 
 {f^ Against Absconding oe Concealed Defendants. 
 
 In this class of cases, the right of the plaintiff to this remedy will 
 turn mainly on the intent of the defendant. The departure from the 
 state, or the concealment within it, must be shown to be either " with 
 intent to defraud creditors, or to avoid service of a summons." 'Sec- 
 tion 229. If such intent be disproved, or not clearly made out, the at- 
 tachment cannot stand. Vide The New YorTc and Erie Banli vs. Godd,, 
 11 How., 221. See also Warren vs. Tiffamy, 17 How., 106 ; 9 Abb., 
 ^&, before cited under the head of Service iy Publication. 
 
 To warrant the issuing of an attachment, it is not essential that the 
 
502 ATTACHMENT. — § 109. 
 
 departure from the state should be secret, as was required under the 
 Eevised Statutes, or that the concealment should be prolonged ; pro- 
 vided the intent either to defraud, or to avoid service, be made out to 
 be existent at the time. JSTor will the fact that the plaintiff has, in his 
 affidavit, drawn a wrong conclusion from the facts, avail to impeach 
 the attachment, provided either of such intents be apparent from the 
 facts themselves. Vide Morgan vs. Avery, 1 Barb., 656 ; 2 0. R., 91 ; 
 affirmed 2 C. R., 121 ; Camman vs. Tomphins, 1 0. E. (N. S.), 12 ; 
 Gilbert vs. Tompkins, 1 C. E. (N. S.), 16 ; affirmed at general term, 
 Genin vs. Tompkins, 12 Barb., 265. See likewise Van Alstyne vs. Er- 
 wine, 1 Kern., 331. 
 
 {g.) Feaudulent Removal oe Disposition of Peopeety. 
 
 In this case, also, the making out of the intent to defraud is clearly 
 essential. The provision being comparatively recent, the decisions un- 
 der it are less numerous than might otherwise have been expected. 
 
 In Mitchell vs. Bettman, 25 Barb., 408, decided immediately after 
 the amendment, the expediency of taking this course, instead of mov- 
 ing for an injunction and receiver, under similar circumstances, is dis- 
 tinctly pointed out. 
 
 The remedy, under this provision, extends to all property in the hands 
 of the defendant, whatever may be his title thereto, or even when it is 
 wrongfully in his possession. Treadwell vs. Lawler, 15 How., 8. 
 
 A mere oinission to state the intent of a conveyance upon its face, 
 though suspicious, does not necessarily make it fraudulent; nor is 
 neglect to defend an action, by means of which property is taken, a 
 fraudulent disposition of it, so as to warrant an attachment, unless fraud 
 or collusion in the suffering of such judgment be shown. Higney vs. 
 Talhnadge, lY How., 556. 
 
 The statement of mere circumstances of suspicion will not either be 
 sufficient. Fraud must be established hj prima facie \&ga\. proof, or 
 the warrant will be set aside. Matt vs. Lawrence, 11 How., 559 ; 9 
 Abb., 196. 
 
 A mere threat to make an assignment granting preferences to others, 
 unless the plaintiff would accept certain terms, if made in a mode which 
 may be construed as referring to a lawful assignment, is not, when 
 standing alone, and without proof of other contemporaneous or subse- 
 quent facts, tending to show a fraudulent intent, sufficient ground for 
 an attachment. Wilson vs. Britton, 26 Barb., 562 ; 6 Abb., 97 ; 
 reversing sam,e case, 6 Abb., 33 ; Dickerson vs. Benham, 20 How., 343 ; 
 12 Abb., 158 ; affirming same case, 19 How., 410 ; 10 Abb., 390. See 
 likewise Belmont vs. Lane, 22 How., 365 ; though what the actual de- 
 cision was in that case, is left uncertain by the report. See, as to the 
 
ATTACHMENT. — § 110. ' 503 
 
 issuing an attacluuent in respect of a fraudulent assignment, and what 
 will be sufficient evidence of a fraudulent intent, Oasherie vs. A^le, 
 14 Abb., 64 ; Skinner vs. OettiTiger, 14 Abb., 109. 
 
 See, as to facts sufficient to authorize the issuing of a justice's war- 
 rant on the same ground, Rosenfield vs. Howa/rd, 15 Barb., 546. 
 
 See generally, as to the facts necessary to be stated, in order to 
 establish the existence of an intent to defraud creditors by means 
 of a fraudulent disposition of property, Towsley vs. McDonald, 32 
 Barb., 604, already cited on the analogous subject of Service J/y 
 Pvblication. 
 
 § 110. How OUained. 
 
 This remedy is obtainable by means of an ex pa/rte application to 
 one of the officers mentioned in the last section. 
 
 In order to obtain it, the summons, as before explained, must be 
 made out and issued, previous to or at the time of such application. 
 
 The applicant must also' be prepared with— 
 
 1. The .affidavit required by section 229. 
 
 2. The security required by section 230. 
 
 3. The warrant itself, as directed by section 231. 
 
 It may also be expedient for him, in certain cases, to be pi'epared 
 with and to file a notice of lis pendens. 
 
 And, inasmuch as by the section last referred to, the amount of tlie 
 plaintiff's demand " must be stated in conformity with the complaint," 
 it is proper, wherever practicable, that the complaint should, at the 
 same time, be drawn. If not, care must be taken that this conformity 
 be strictly observed, when subsequently preparing that document. Any 
 departure may draw into serious question the regularity of the pro- 
 ceeding. 
 
 It is proposed to consider the above three requisites in their order. 
 
 (a.) 1. Affidavit. 
 
 The form of this document is clearly, prescribed by section 229. 
 
 It must appear by such affidavit : 
 
 That a cause of action exists against the defendant. 
 
 The amount and grounds of the claim must be specified. 
 
 And the case must be brought, by clear and specific allegation, with- 
 in one of the four different classifications mentioned in that section and 
 section 227, and considered in detail in the last section of this work. 
 
 These three grand requisites must be fully and clearly complied with, 
 or the application will be ineffectual, as regards the retention at all 
 events, and probably as regards the original granting of the remedy. 
 
504 ATTACHMENT. — § 110. 
 
 Tlie objection, it is true, will not be jurisdictional, in the strict sense 
 of the word, as under the Eevised Statutes ; but still it will be equally 
 the duty of the officer' originally applied to, to refuse, and of the court, 
 when ajjplied to by the defendant, to set aside or reverse the warrant, 
 if gi'anted on proof deficient in this respect. 
 
 A bare allegation, in the mere words of the statute, will not suffice. 
 Facts must be stated, by which the plaintiff's right to the remedy will 
 appear by the affidavit. Frost vs. Rider, 9 Barb., 440. ■ Furmam, 
 vs. Walter, 11 How., 348, contains, it is true, a diotmn (p. 354) appa- 
 rently at variance with this principle ; but an examination into the 
 whole case, will .show tliat it cannot fairly be considered as authority 
 to the contrary. 
 
 And such an affidavit must not, as a general rule, be grounded on 
 information and belief; at least, the grounds of the belief, and the 
 sources of the information must be disclosed, so as to enable the judge 
 to forna his judgment as to whether the information be sufficient, and 
 the belief well founded. Vide Camman vs. Tompkins, 1 0. E. (N. S.), 
 12 ; ' Gilbert vs. The Same, 1 C. E. (IST. S.), 16 ; affirmed, Oenin vs. The 
 Same, 12 Barb., 265. See also, several other cases, above cited, under 
 the heads of Arrest and Injunction. 
 
 As to the inefficiency of the mere opinion orbelief of the plaintiff, as 
 a ground for the granting of this process, see AcJcroyd vs. Achr&yd, 20 
 How., 93 ; 11 Abb., 345. 
 
 Likewise as to an affidavit on information and belief only, and not 
 stating the sources of the former, Bi^evier vs. TuoTcsr, 13 Abb., 76 ; 
 Hill vs. Bond, 23 How., 272. 
 
 But, if the main facts be made apparent by sufficient proof; the fact 
 that the accessory statements are made on information and belief, will 
 not render the affidavit insufficient. Vide Donnelly vs. Corlett, 3 Seld., 
 500. See also, as to an affidavit grounded wholly on information and 
 belief, but where such information was ample and convincing, and the 
 statement the best that could be made, under the circumstances. Peel 
 vs. Elliott, before cited under the head of Arrest. 
 
 The affidavit, to be sufficient, should make out a clear prima facie 
 case, so as to satisfy the justice applied to, not merely personally, but 
 judicially, and upon legal proof. Mott vs. Lawrence, 17 How., 559 ; 
 9 Abb., 196 ; New York and Erie Bank vs. Codd, 11 How., 221 (231)! 
 
 If the statements of the affidavit be sufficient to make out ?kpnmA 
 facie case, so as to vest the officer with jurisdiction, the general prin- 
 ciple will be applied, that the exercise of discretion by that officer 
 will not be interfered with, on motion, or appeal on the original papers, 
 though the court above may differ with him in the opinion he has 
 formed. ConUim, vs. Dutoher, 5 How., 386 ; 1 C. R. (N. S.) 49. 
 
ATTACHMENT. — § 110. 505 
 
 But, if there is a total want of evidence on any essential point, or if 
 the moving affidavit be generally insufficient, or fully disproved by the 
 defendant, the proceeding will fail, and a motion to discharge will be 
 granted, and the order for that purpose sustained on appeal. Conklin 
 vs. Dutoher, supra; New York and Erie, Bank vs. Codd^ 11 How., 
 221, supra; Burgess vs. 8tiU, 12 How., 401. 
 
 "When sufficient in substance, a mere informality in the mode of state- 
 ment will not render the affidavit insufficient. Jamiison vs. Beeoher, 
 4 Abb., 230. 
 
 A liberal view is taken as to the mode of statement of the existence 
 of a cause of action in Ward vs. Begg, 18 Barb., 139. 
 
 And where, under a given statement of facts, it is doubtful which 
 clause of the section is applicable to the intent of the defendant, the 
 affidavit may charge that intent in the alternative. Yan Alstyne vs. 
 Erwine, 1 Kern., 331 ; Camman vs. Tcmvpkins, 1 C. E. (IST. S.), 12, and 
 Crilhert vs. Tompkins, 1 C. E. (IsT. S.), 16, supra ; affirmed, Genin vs. 
 Tompkins, 12 Barb., 265. 
 
 In St. Amant vs. Be Beixoedon, 3 Sandf., 703 ; ICE. (N. S.), 104, 
 the general requisites of the affidavit on which an attachment may be 
 obtained, are thus stated by the general term of the Superior Court : 
 " We consider it proper, in a remedy of so grave a character as this — ■ 
 the attachment, in effect, tying up the entire property of a party pend- 
 ing a suit — that the affidavit upon which the proceeding is authorized 
 should be explicit, and made, in general, upon positive knowledge of 
 the deponents, so far as to establish a prima facie case. In general, 
 there is no difficulty in obtaining the affidavits of the persons who give 
 the information on which the plaintiff desires to proceed ; and when 
 such affidavits cannot be obtained, from the peculiar circumstances of 
 the case, those circumstances must be stated, with all the grounds of 
 suspicion, so as to satisfy the judge that the facts exist on which the 
 attachment is sought, and that the plaintiff has produced the best 
 evidence in his power to establish them." 
 
 There can be no question but that the strict views taken in this case 
 will be a safe guide to be followed in preparing an affidavit for this 
 purpose, and that they should be followed as far as, under the circum- 
 stances, is practicable. 
 
 In framing such an affidavit, care must especially be taken to bring 
 it exactly within the scope of the section. Although an allegation in 
 the bare wording of that section will not, as above shown, be sufficient, 
 standing alone ; but must, on the contrary, be accompanied by a state- 
 ment of the facts relied on for that purpose, such an allegation should 
 be made, in all cases, distinctly and positively, either preliminary to, or 
 at the conclusion of, the statement of facts ; and this, as regards each ' 
 
506 ATTACHMENT. — § 110. 
 
 of the grand requisites necessary to confer jurisdiction, as above stated. 
 This should never be omitted, under any circumstances, making the 
 statement under the third of those requisites in the alternative, when- 
 ever the facts stated admit of any doubt as to the legitimate inference 
 to be drawn from them. 
 
 . (5.) Seodbitt. 
 
 The plaintiff must also, at the time of the application, be prepared 
 with the security required by section 230. 
 
 That security consists, as there prescribed, in a sufficient undertaking 
 on his part, with or without surety, to the effect that, if the defendant 
 recover judgment, the plaintiff will pay all costs that may be awarded 
 to him, and all damages which he may sustain by reason of the attach- 
 ment, not exceeding the sum specified. 
 
 The minimum of that sum is fixed by the section at $250. As a 
 general rule, the insertion of this sum will be sufficient ; but it rests in 
 the discretion of the judge, and, where the amount of the plaintiff's 
 claim is large, or the taking of property under it is likely to be inju- 
 rious to the defendant, it will be safer to insert a larger sum in the first 
 instance. An omission to do this will expose the plaintiff to the risk 
 of the security tendered being disallowed, and of having to renew his 
 application. In cases where dispatch is an object, it will be especially 
 necessary to attend to this caution. 
 
 The proper form of this security is an undertaking, following the exact 
 wording of the section. It will be good, however, even if made in the 
 form of a penal bond, provided it contain the conditions here required, 
 and be otherwise regular ; and any mere formal defects will be cured 
 by amendment. ConhUn vs. Dutoher, 5 How., 386 ; ICE. (B. S.), 49. 
 
 The usual affidavits of justification must, as in other cases, be annexed 
 to the undertaking, and it must also be duly acknowledged before it is 
 presented to the judge, or it will be his duty not to receive it. Kule 6. 
 
 Care should be taken to make the undertaking of sufficient amount 
 in the first instance. But, if defective in this respect, it is within the 
 power of the court to allow an amendment by filing a new undertaking. 
 Kissam vs. Ma/rshall, 10 Abb., 424. > 
 
 (c.) Notice of Lis Pendens. 
 
 "Where real property is sought to be attached, the plaintiff should also 
 be prepared with, and must cause to be filed, immediately on the com- 
 mencement of the action, a notice of Us pendens, in order to effect an 
 immediate charge upon that property. See section 132, and, heretofore, 
 book III., section 60 of this work, under the head of that proceeding. 
 
 But, where the property attached consists merely of personalty, and 
 
ATTACHMENT. — § 110. 607 
 
 no charge is sought to be established upon real estate, this precaution 
 will be wholly unnecessary. 
 
 In the event of a subsequent discovery of any attachable interest, it 
 may be subsequently taken. 
 
 Such a notice must not be filed before the warrant is issued. It may 
 be so at any time afterward. Section 132. But, of course, it must be 
 before judgment. Tide svpra, on that head. 
 
 {d.) "Waeeant of ATrAOHMEirr. 
 
 The form of this .document is prescribed by section 231. 
 
 It is to be directed to the sheriff of any county in which the property 
 of the defendant may be. 
 
 And several warrants may be issued at the same time, to the sheriffs 
 of different counties. 
 
 Such warrant, or each warrant, if more than one, must require the 
 sheriff to whom it is addressed to attach and safely keep all the prop- 
 erty of the defendant within his county, or so much as shall be suffi- 
 cient to satisfy the plaintiff's demand, together with costs and expenses ; 
 and the amount of such demand must be stated in conformity with the 
 complaint. 
 
 In Camman vs. Tomphins, 1 0. E. (E. S.), 12, it was held that the 
 warrant is process in the progress of the cause, and must, as such, be 
 issued in the ordinary form, and under the seal of the court. 
 
 In Genin vs. Tomphms, however, 12 Barb., 265, this view was over- 
 ruled by the general term of the same court, in the same and other 
 cases, and it was held, that the signature of the judge is all that is 
 necessary ; that a formal Usts, the signature of the clerk, and the seal 
 of the court, are not requisite ; but that the signature of the plaintiff's 
 attorney ought to be required. It was also held that no return-day need 
 be inserted in the warrant. If more than one warrant is required, dupli- 
 cates should be prepared, and the judge's signature obtained thereto. 
 
 If formally defective, this process is amendable. Kissam vs. Mar- 
 shall, 10 Abb., 424. 
 
 The Code makes no provision for the possible case of its being dis- 
 covered by the plaintiff, after the issuing of an attachment or attach- 
 ments on the original papers, that the defendant has attachable prop- 
 erty in another county, not comprised in the oi-iginal warrant. There 
 is no decided case upon the subject, but it might possibly be held suf- 
 ficient to present the original papers a second time to the same judge, 
 in order to authorize the issuing of a supplementary warrant. The 
 words " at the same time," at the close of section 231, seem, however, 
 to militate against this construction, and probably the safer course 
 
508 ATTACHMENT, — § 110. 
 
 would be to renew the proceeding, by way of a second original appli- 
 cation, stating the fact that no sufficient levy has yet been made. 
 
 (e.) Application to Judge and Peoceedings theeeon. 
 
 The above papers being all prepared, application should be made to 
 the judicial officer fi-om whom the remedy is sought. 
 
 There should be presented to him the affidavit, the security, and 
 the warrant or warrants to which his signature is desired. The sum- 
 mons should also be handed in to him at the same time, to show that 
 it is actually issued ; and, if prepared already, the complaint should be 
 in court, to be produced if he asks for it, for the purpose of showing 
 that the amount stated in the warrant is in proper conformity. 
 
 If satisfied with the papers, the judge signs the warrant or warrants, 
 indorses his approval on the undertaking, and returns all the papers to 
 the plaintiff's attorney. The latter sliould also sign the warrant at the 
 time, or previously. Vide Genin vs. Tomphins, above cited. 
 
 The warrant or warrants, when signed, must be immediately lodged 
 with, or forwarded to the sheriff or sheriffs, to whom they are addressed. 
 It is not necessary that any other papers should be lodged with or for- 
 warded with them. 
 
 It is needless to urge the necessity of this proceeding being, taken 
 with all practicable speed. The attachment first lodged with the she- 
 riff will of course gain a precedence ; and, where real estate is souglit 
 to be charged, the priority of the lien effected on it, will, in the same 
 manner, depend upon the priority of lodgment. Vide Learned vs. 
 Vandenburgh, 7 How., 379 ; affirmed, 8 How., 77. 
 
 In Yale vs. Matthews, 20 How., 431 ; 12 Abb., 879, it is also di- 
 rectly laid down that, where several attachments under the Code are 
 actually levied on the same property, the one first delivpred to the she- 
 riff has priority, though it was the one last levied, and that the provis- 
 ion to that effect at 2 E. S., S66, sections 14, 15, applies in such a case. 
 See also long note upon the subject at 12 Abb., 379. And an attach- 
 ment served before the arrival of goods, will bind the surplus produce 
 of them in the hands of a consignee, in preference to another, subse- 
 quently lodged and served after their arrival. Patterson vs. Perry, 5 
 Bosw., 518 ; 10 Abb., 82. 
 
 For the same reason, the immediate filing of a notice of Ids pendens 
 should, in this last class of cases, be forthvrith attended to. The neces- 
 sity of this proceeding is foreshadowed in Lewrned vs. Vandenburgh, 
 though decided prior to the amendment in section 182, giving express 
 authority for that purpose. 
 
 The affidavits on which the warrant was granted, and the undertak- 
 ing, with the judge's approval indorsed, must also be filed by the 
 
ATTACHMENT. — § 111. 509 
 
 plaintiff's attorney with the clerk of the court. This should be done 
 at once. It must, at the latest, be done within five days, or the pro- 
 ceedings will be liable to be set aside for Irregularity, with costs. See 
 rule i. 
 
 If the summons has not already been served, or delivered to the 
 sheriff, or to some other competent person for service, this must be done 
 at once, where the defendant is a resident, or likely to be found within 
 the jurisdiction. 
 
 Where such defendant is non-resident, an order for publication should 
 be applied for, if not already made. An usual and convenient course 
 will be to make that application, in such cases, simultaneously with 
 that for the attachment. 
 
 One or the other of these courses must be taken, and should be so at 
 once. If neither be adopted, it would seem as if it might ultimately 
 impair the validity of the attachment itself, in the event of continued 
 neglect, and of a refusal to appear on the part of the defendant. See 
 HernsUin vs. MatJiewson, 5 How., 196 ; 3 C. E., 169. 
 
 Any formal defects in the papers are amendable, in order to sustain 
 the proceeding. Kissam vs. Marshall, 10 Abb., 424. 
 
 § 111. Sheriff^s Proceedings on Warrant. 
 
 The duties of the sheriff on such warrant, when issued, are prescribed 
 in extenso by sections 232 to 246 ; and, also, by the collateral provisions 
 of the Kevised Statutes, made operative by the first two of those sec- 
 tions,' and above cited in full. 
 
 The present section will be confined to those duties, as incumbent 
 upon that ofiicer before judgment. Those which devolve upon him 
 afterwards are defined by section 237, and will be considered subse- 
 quently, at the close of this chapter. 
 
 It is not proposed to enter into these subjects in minute detail, but 
 to refer the reader to the provisions themselves, as above given. 
 
 The chief heads of the sheriff's duty may, however, be thus shortly 
 stated : 
 
 He must immediately attach all the debtor's real estate, and all his 
 personal estate, including money and bank-notes (except articles exempt 
 from execution), and must take into his custody all the books, accounts, 
 vouchers, and papers relating to property of the defendant, together 
 with the title-deeds of his real estate. 2 E. S., 4, § 7. 
 
 He must immediately make a full inventory of the property seized, 
 and I'sturn it to the officer issuing the warrant, within ten days after 
 the seizure. Ibid., § 8. 
 
 He is to keep the property seized, or the proceeds of such as shall 
 
510 ATTACHMENT. — § 111. 
 
 have been sold, to answer any judgment which may be obtained in such 
 action. Code, § 232. 
 
 He is, subject to the direction of the court or judge, to collect and 
 receive all debts, credits, and effects of the defendant. Code, § 232, 
 superseding in effect 2 R. S., 4, § 8. 
 
 He may take all necessary legal proceedings for that purpose, either 
 in his own name or the name of the defendant, discontinuing them, if 
 directed by the court. Code, same section, superseding same section of 
 Eevised Statutes. 
 
 But the plaintiff, if he think fit, is entitled to have such actions prose- 
 cuted by himself or under his own direction, on delivery to the sheriff 
 of an undertaking, by way of indemnity, in the form, and with the sure- 
 ties prescribed by the Code. Section 238. 
 
 If the property seized or any of it be perishable, it may be sold by 
 the sheriff, and the avails held under the attachment. To waiTant such 
 a sale, however, an order must be obtained from the officer who issued 
 the warrant. Code, § 233 ; 2 R. S., 4, § 9. Such order shall pre- 
 scribe the time, place, and notice of sale, and mode of publication. 
 2 R. S., 7, § 27. 
 
 If the property seized, or any of it, be claimed by any third party, the 
 sheriff is to have such claim tried by a jury, in the same manner as on 
 similar claims under execution. If the inquisition find the property to 
 be in the claimant, the sheriff must deliver it to him, unless the attach- 
 ing creditor give a sufficient bond of indemnity. If such bond be given, 
 the sheriff retains the goods. In this case, the attaching creditor must 
 pay the claimant's costs of the inquisition. If the property be found in 
 the debtor, the claimant is to pay them. Code, § 233 ; 2 R. S., 4, 
 §§ 10 to 12. 
 
 The proceedings in case of attachment of a vessel or share of a vessel 
 are more complicated. They are saved by section 233 of the Code. 
 They will be found at 2 R. S., 4 to 7, inclusive, and have been aboVe 
 cited in extenso. 
 
 It will not be necessary to do more than refer to them on the present 
 occasion. Their purport is this : The owners of a vessel, on board of 
 which attached goods have been previously shipped, may, in the absence 
 of fraud or connivance, transport and deliver such goods at their desti- 
 nation, unless the attaching creditor shall give an indemnity. 2 R. S., 
 4.; §§13, 14. 
 
 On attachment of a domestic vessel, or of any share or interest in it, 
 the owners may, within thirty days thereafter, apply for an appraisal 
 of such vessel or share, and obtain a discharge of the attachment, on 
 giving a sufficient bond in doiible the appraised amount. 2 R. S., 5, 
 §§13 to 15. 
 
ATTACHMENT. — § 111. 511 
 
 Tlie converse of this is provided in tlie case of a foreign vessel, or of 
 a share or interest in it. Any person interested, or his agent, may ap- 
 ply for a valuation, on notice to the attaching creditor, and, within three 
 days after such valuation, such attaching creditor must give bond in 
 double the amount of such valuation, or the vessel or share will be re- 
 leased. 2 E. S., 5, 6, §§ 18 to 22. 
 
 The Kevised Statutes go on to provide (§ 22), that, after such a valua- 
 tion, no other attachment shall issue against the same vessel or interest, 
 unless the attaching creditor give a similar bond. This may probably 
 be required under the Code. 
 
 On discharge of an attachment of this nature against a foreign vessel, 
 the debtor himself, or his agent, may claim delivery of the property, but 
 not unless he discharges the attaching creditor's bond, or gives him a 
 counter indemnity. In default of his doing either, within one month 
 after such claim has accrued, the vessel may still be sold, and the pro- 
 ceeds handed over to the attaching creditor, who has given the indem- 
 nity bond. 2 E. S., 6, §§ 23, 24. 
 
 If no claim be made by the owner in either case, within thirty days 
 after seizure, the vessel or share attached may be sold by order of the 
 officer issuing the attachment, upon the application of any attaching 
 creditor, in which order the time, place, and notice of sale, and mode of 
 publication, shall be prescribed. 2 E. S., Y, §§ 25 to 27. 
 
 As to the duties which formerly devolved upon the trustees under an 
 attachment, being now incumbent upon the sheriff, see Mayhew vs. Dun- 
 can, 31 Barb., 87. 
 
 Eeturning to the provisions of the Code itself, the following further 
 demand notice. 
 
 The rights or shares of the defendant in the stock of any association 
 or corporation, and all other his property within the state, are liable to 
 attachment and sale to satisfy the judgment. Section 235. 
 
 The execution of the attachment upon any such property, or upon 
 any debts or property incapable of manual delivery to the sheriff, is to 
 be made by leaving a certified copy of the attachment, together with a 
 notice of the property levied uj»on, upon the proper officer of such cor 
 poration, or the debtor or individual holding such property. Section 235. 
 N. B. Where immediate dispatch is an object, it may be prudent to 
 prepare these papers before hand, and hand them to the sheriff with the 
 original attachment. It is, however, that officer's duty to make them, 
 and certify to the copy. Where the information about such property is 
 incomplete, the certificate prescribed by the next section should first be 
 obtained, and the notice then prepared in conformity with it. Vide Or- 
 ser vs. Qrossm.cm, 11 How., 520 ; 4 E. D. Smith, 443. 
 The corporation or individual scrvod under the last cited section, is 
 
512 ATTACHMENT. — § 111. 
 
 bound, when tlie application is made, to furnish the sheriff with a full 
 certificate and description of the property so attached. Section 236. 
 
 If he refuse to do so, he may be required by the court or judge to at- 
 tend, and be examined on oath concerning it ; and obedience to such 
 orders may be enforced by attachment. Same section. By this pro- 
 vision, the more detailed proceeding prescribed by chapter 53 of the 
 Laws of 1848, as regards proceedings against foreign corporations, seems 
 in effect to be superseded. 
 
 The order for such examination may be obtained ex parte. It must 
 be grounded on affidavit, proving, with sufficient detail and precision of 
 allegation, service of the certified copy and notice, under section 235, 
 and the refusal complained of This order must, of course, be served 
 personally, and the proceedings under it necessarily bear a close anal- 
 ogy to the examination of a third party, on supplementary proceedings 
 under execution. See Hopkins vs. Snow, i Abb., 368. That exami- 
 nation will supersede and stand in place of the certificate. The attach- 
 ment by which obedience may be enforced is, of course, the ordinary 
 attachment for contempt. 
 
 Continued neglect to furnish a certificate, or insufficiency of such 
 certificate, if furnished, would probably be held to amount to a refusal, 
 and to authorize an examination in the above manner, on application, 
 based on proof of the special circumstances. 
 
 In case of a refusal to hand over any rights or shares in the stock of 
 a corporation, or to pay over any debt or other property incapable of 
 such delivery, on the part of any party served with notice as above, an 
 action will have to be brought, as the Code does not seem to give any 
 summary remedy to obtain it. 
 
 The sheriff, having thus seized or taken proceedings to collect all the 
 available property of the defendant, holds it in deposit, to abide the 
 event of the suit, the plaintiff's lien taking precedence of any subse- 
 quent process lodged with him, whether by way of attachment or 
 execution. ^ 
 
 The duties of the sheriff, statutory or otherwise, having thus been 
 defined, it remains to draw attention to the reported decisions bearing 
 upon those duties, under the difierent principal .heads laid down in the 
 previous portion of this section. 
 
 (a.) Seiztjeb and rrs Incidents. 
 
 When the defendant, at the time of the attachment, has sufficient 
 property, and the sheriff knowingly omits to make a sufficient levy, he 
 will be liable for the deficiency. Hansom vs. Halcott, 9 How., 119 : 
 18 Barb., 56. 
 
 That levy may comprise, and the sheriff is bound to attach to a suffi- 
 
attaohmeint. — § 111. 51B 
 
 eient amount, all legal or equitable interests of the defendant then vest- 
 ed and of a possessory nature, and whether in real or personal property. 
 Thus, it has been held that a levy may comprise surplus moneys 
 arising from a sale under a previous execution or attachment, Wheeler 
 vs. Smith, 11 Barb., 345 ; money come to the sheriff's hands on pay- 
 ment of an execution issued by the defendant as plaintiff on such exe- 
 cution, MusGott vs. Wood/worth, 13 How., 336 ; money paid into court 
 by the defendant in a previous action, although loaned by another per- 
 son for that purpose, Salter vs. Weiner, 6 Abb., 191 ; the possessory 
 right of the mortgagor, on a chattel mortgage, reserving a right of pos- 
 session until default, Fairbanks vs. Bloomfield, 5 Duer, 434. See also 
 Hull vs. Oarnley, 1 Kern., 506, hereafter cited, under head of Execu- 
 tion. And such levy may comprise property of a partnership, for the 
 purpose of selling the attachable interest of one of the partners therein. 
 Vide Ooll vs. Hinton, 8 Abb., 120 ; Eergman vs. Dit¥^ebach, 11 How., 
 46 ; overruling Stouteriburgh vs. Vandenhurgh, 1 How., 229, and Sears 
 vs. Geam, 1 How., 383, as noticed above, in section 109. 
 
 Such levy may also comprise, and will bind an actual equitable in- 
 terest of the defendant as cestui que trust, under a trust, passive in its 
 nature. Wright vs. Douglass, 3 Seld., 564. 
 
 So also as to the mortgagor's equity of redemption in property cov- 
 ered by a chattel mortgage. Hall vs. Lamson, 23 How., 84. 
 
 It may likewise be made on a promissory note in course of prosecu- 
 tion, and, in such case, the sheriff will be entitled to be substituted as 
 plaintiff, and to continue the action. Russell vs. Ruchmam,, 8 E. D. 
 Smith, 419. 
 
 But if, before sale under the levy, the interest levied on determines, 
 and another party becomes absolutely entitled, that party has the right 
 to claim an immediate delivery, without tender of expenses. So held, 
 as regards a chattel mortgagee, becoming entitled to absolute possession 
 at a specific date. Fairbamiks vs. Bloomfield, 5 Duer, 424, supra. 
 
 In relation to the priority of attachments ranking from the date of 
 their delivery to the sheriff, see Tale vs. Matthews, 21 How., 431 ; 12 
 Abb., 379, above cited. 
 
 And as to an attachment so lodged, binding the surplus proceeds of a 
 consignment of goods not then actually arrived, in preference to one 
 subsequently lodged, and levied after their arrival, see Patterson vs. 
 Perry, 5 Bosw., 618 ; 10 Abb., 182, supra. 
 
 But it has been held, that a levy on a money bond payable by instal- 
 ments, will only, bind one due at the service of the attachment, and 
 wiU not prejudice any intervening liens on others subsequently accru- 
 ing. Syracuse City Bank vs. Golville, 19 How., 385. 
 
 A contingent future interest, not possessory at the time, cannot be 
 YoL. L— 33 
 
514 ATTACHHENT. — § 111, 
 
 made the subject of actual levy. Bates vs. New_ Orleans, Jackson, and 
 Great Northern Railroad Com;pam,y, 13 How., 516 ; 4 Abb., Y2. See 
 also Jones vs. Bradner, 10 Barb., WS. 
 
 To be leviable upon by a third party, a debt due to a non-resident 
 from a non-resident corporation, must be existent within the state. If 
 the whole transaction took place elsewhere, it cannot be, seized. Willett 
 vs. Equitable Insurance Company, 10 Abb., 193. Nor will the fact 
 that the mere evidences of such a debt, due from such a coi-poration, 
 happen to be within the state, avail to make the debt itself attachable. 
 Bates vs. The Mew Orleans, Jackson, and Great Northern Bodl/road 
 Com.pany, supra. Nor are the bonds of a foreign corporation, executed 
 and left in the hands of their agent, for the purpose of raising money, 
 attachable in his hands. In that condition, they are neither a debt nor 
 property. Coddington vs. Gilbert, 18 N. Y., 489 ; affirming same case, 
 5 Ducr, T2 ; 2 Abb., 242. 
 
 Nor is property subject to a lien, attachable, as against the interest of 
 the lien holder. Frost vs. Rider, 9 Barb., 440 ; Brownell vs. Camly, 
 3 Duer, 9. The proper course, under such circumstances, is not to 
 levy, but to serve a notice on the holder, under section 235, claiming 
 any surplus. 
 
 A foreign statutory assignment is, however, no bar to a seizure on 
 attachment in this state by resident creditors. Willetts' vs. Waite, 13 
 How., 34. 
 
 The lien, under a seizure on attachment, accrues on personal estate 
 from the time of actual levy ; on real estate from the time of the deliv- 
 ery of the attachment to the sheriff. See Lea/rned vs. Vandeniwgh, 7 
 How., 379 ; affirmed 8 How., 77 ; Ransojn vs. JSalcott, 18 Barb., 56 ; 
 9 How., 119 ; Patterson vs. Perry, 10 Abb., 82. And a subsequent 
 judgment, obtained in such action, relates back to the time of levy, 
 taking its priority from that time. Wilson vs. Forsyth, 24 Barb., 106. 
 
 The custody of property, so levied upon, remains, pendente lite, with 
 the sheriff to whom the attachment was originally issued, and does not 
 pass to his successor. Ulthnate process on the judgment must accord- 
 ingly be directed to the former. McKay vs. Earrower, 27 Barb., 463. 
 
 The levy, under attachment, does not amount to a satisfaction of 
 the debt. If, therefore, property attached be lost, pendente Ute, with- 
 out fault of the plaintiff or the sheriff, the defendant still remains 
 liable. McBride vs. Farmers''- BroMch Bank, 28 Barb., 476 ; 7 Abb., 
 347. 
 
 Payment to the sheriff, in an action commenced by him, or which he 
 is at the time entitled to prosecute, in respect of an attached debt, may 
 constitute a good defence, as against the attachment debtor. Russell 
 vs. R'uckman, 3 E. D. Smith, 419. But such payment must not be 
 
ATTACHMENT. — § 111. 515 
 
 voluntary, where the party making it has notice of an adverse claim to 
 the fund. Lyman vs. Cartwright, 3 E. D. Smith, IIY. 
 
 In levying, the sheriff acts at his peril, and will be liable if he seize the 
 goods of a wrong party. And, on the question of property, his return, 
 in another proceeding, will conclude him. Kuhhnam, vs. Orser, 5 Duer, 
 242. And a plaintiff who directs such a levy will also be liable. 
 Ma/rsh vs. Bachus, 16 Barb., 483. 
 
 On a levy on partnership property, either on a debt against the firm, 
 or one of its members, the sheriff becomes entitled to seize the part- 
 nership books. Vide 2 E. S., 4, section 7, above cited. His powers, 
 in this respect, are, however, limited to safe custody. He cannot prop- 
 erly examine or suffer them to be examined by any one except the 
 defendant, without special order of the court. ISTor does his power 
 extend to seize letters and correspondence. Ilergman vs. DitUehach, 
 11 How., 46. 
 
 Where required to make a levy on goods manifestly in the possession 
 of a third party, he inay require a bond of indemnity in the first instance 
 before making such levy, without going through the form of summon- 
 ing a jury. Chtimherlain vs. Seller, 18 N. Y., 115. 
 
 Where the sheriff would himself be entitled to bring an action for 
 the collection of property seized, he may continue the prosecution of an 
 action for that purpose previously commenced by the debtor, either in 
 the name of the latter, or in his own, by substitution. Russell vs.. 
 Ruckman, 3 E. D. Smith, 419. 
 
 Process of this nature fully protects the shei'iff in all acts which he is 
 enjoined to perform ; nor, in a suit instituted by him, will he be required 
 to do more than assert his authority under it. See Kelly vs. Breusing, 
 33 Barb., 123. 
 
 E"or can his action be properly interfered with by the court, as by 
 requiring him to part with the property attached, in the absence of 
 proof of irresponsibility. Dodge vs. Porter, 13 Abb., 253. 
 
 An order for the sale of perishable property, in an attachment under 
 the Code, will be valid, if made by a judge of the court, though the 
 term of oiSce of the judge who originally granted the warrant has 
 expired. Ba/ois vs. Ainsworth, 14 How., 346. 
 
 On the recovery of judgment, the powers of the sheriff under the 
 attachment merge in those acquired by him under the execution, when 
 lodged in his hands. Schiel vs. Baldwin, 22 How., 278 ; 13 Abb., 469. 
 
 (o.) Attachmknts ON" Vessels. 
 
 Goods shipped on account of a debtor cannot, it has been held, be 
 levied upon, till his title has been perfected by the delivery of a bill of 
 lading. Jones vs. Bradner, 10 Barb. 193. 
 
516 ATTACHMENT. — § 111. 
 
 On withdrawal of goods so shipped, it has been held that the freight 
 in respect of them must be paid. The bond required by the statute of 
 1841, above cited, had not, in this case, been given. But the decision 
 is based on general principles, and does not inquire into the effect of 
 such omission, or whether that statute is still in force under the Code. 
 Bartlett vs. Ga/rnley, 6 Duer, 194 (202). 
 
 As to the propriety of making an order for sale of an attached vessel, 
 when no claimant has come forward, vide Ready vs. Btewa/rt, 1 0. E. 
 (N. S.), 297 (300). 
 
 {d.) Service of Notice under Section 235. 
 
 Where & party is a mere naked trustee of an invalid trust, notice 
 need not be served upon him, but a levy against the actual owner will 
 be sufficient. So held under the statute of 1842. Wright vs. Douglass^ 
 3 Seld., 564. 
 
 The service of the notice prescribed by this section must be personal, 
 or it will be wholly unavailing. Orser vs. Orossman, 4 E. D. Smith, 
 443 ; 11 How., 52o'. 
 
 And the notice so given must contain a proper description of the 
 property sought to be attached, or the levy will not hold good. A mere 
 general notice will not suflBce. • If such description cannot be given in 
 the first instance, the officer must first obtain the certificate which he 
 is entitled to require under section 236 ; or, if refused, examine the 
 party applied to, and then serve the notice, based on fiuch certificate or 
 examination. Kuhlmam vs. Orser, 5 Duer, 242 ; Orser vs. Orossman, 
 supra; Lyman vs. Cartwright, 3 E. D. Smith, 117 ; Wilson vs. Dunca/n, 
 11 Abb., 3. 
 
 A notice of this description is the proper form of procedure, where 
 goods sought to be levied upon are in the hands of a party entitled to a 
 lien upon them, and, in such case, will bind the ultimate interest, sub- 
 ject to such lien. Brownell vs. Carnley, 3 Duer, 9. The right of the 
 lien-holder, under these circumstances, is a qualified right; and on 
 satisfaction of that lien, from the property itself or from other sources, 
 the goods, or their surplus value, may then be taken. Patterson vs. 
 Perry, 10 Abb., 82. 
 
 The execution of an attachment upon a promissory note in course of 
 suit at the time, may be made in this manner, by service of a notice 
 upon the attorney. Russell vs. Ruckman, 3 E. D. Smith, 419. 
 
 On the recovery of judgment, the powers of the sheriff, under the 
 attachment, are merged in those acquired by him on execution, when 
 lodged in his hands. He can no longer require a certificate, under the 
 former process, though the same information is obtainable, under the 
 latter. And, at the time of application, he is bound to disclose the 
 
ATTACHMENT. — § 112. 517 
 
 process finder wWch lie acts. SohM) rs. Baldwin, 22 How., 278 ; 13 
 Abb., 469. 
 
 {e.) Cektificate. 
 
 In Hoaglcmd vs. StodoUa, 1 0. R. (N. S.), 210, it was held that a 
 certificate, when made under section 236, is conclusive, and that an 
 order cannot be obtained for the further examination of the party who 
 has given it. See also Carroll vs. Finlay, 26 Barb., 61 ; Roplcins vs. 
 Snow, 4 Abb., 368. 
 
 But, if the plaintiff can bring a valid impeachment of its correctness, 
 it seems that such conduct might be regarded as a refusal, and an order 
 for examination might then be made. See dictum, to this effect, in 
 Ca/rroll vs. Finlm/, sujpra. 
 
 If the party applied to gives a merely negative certificate, an order 
 for examination may be made, on a similar impeachment of the truth 
 of such statement, if allowed to remain uncontradicted on the motion. 
 Hopkins vs. Snow, supra. 
 
 It is decided, in the last case, that an examination of this nature, 
 when admissible, will correspond with the rule as to examining a third 
 party, on proceedings supplementary to execution. A claim by him 
 of an exclusive interest in the property will arrest the examination, and 
 the plaintiff's only remedy will then Hq in an action against him. 
 
 § 112. Discharge of AttoGhment. 
 
 The defendant has two modes by which, if he think proper, he may 
 obtain a discharge of the attachment : 
 
 1. By a motion for that purpose. 
 
 2. By giving counter security to the plaintiff. 
 
 The first of these modes is appropriate, when the plaintiff's proceed- 
 ings are impeached for irregularity ; or sought to be set aside, on counter 
 evidence, showing that the remedy is not properly obtainable, on the 
 merits. ' 
 
 The second is proper, in those cases where the plaintiff's right to that 
 remedy itself is not controverted, but the defendant, nevertheless, seeks 
 to retain control of the property seized. 
 
 The two will be considered, seriaUm, in their order 
 
 (a.) DiSCHAEGE -aPON MOTIOK. 
 
 The right of the defendant, to apply for a discharge, as in the case of 
 other provisional remedies, is specially secured to him by the concbiding 
 provision of section 241, inserted upon the amendment of 1857. Before 
 that year, the Code itself was silent upon the subject. The right, how- 
 
518 ATTACHMENT. — § 112. 
 
 ever, had been admitted, and motions of this nature entertained, from 
 the very first, as falling within the general control of courts over their 
 own process and proceedings, and, at an early date, it was decided that, 
 on an application of this nature, the security prescribed by section 241 
 need not be given. Vide Kilian vs. Washington, 2 C. R., Y8. 
 
 The fact that an assignment to a trustee for creditors has been 
 executed by the defendant, does not, it has been held, deprive him 
 of his right to make the application. See Diokerson vs. Benham, 
 20 How., 343 ; 12 Abb., 158 ; affirming same case, 19 How., 410 ; 
 10 Abb., 390. 
 
 The motion for this purpose may, as in other similar cases, be made 
 in either of two modes — 
 
 1. Upon the original papers only, on the ground of irregularity 
 or manifest insufficiency.' 
 
 2. Upon the merits, on counter affidavits. 
 
 (b.) MoiioN FOE Ieeegulauitt oe Original Defect. 
 
 The defendant, in this class of motions, moves on the plaintiff's papers 
 only, and the latter cannot, under these circumstances, introduce evi- 
 dence in rebuttal, or to strengthen his original application. The remedy 
 stands or falls upon its original basis. If the defendant introduce evi- 
 dence on his own behalf, the motion no longer falls under this class, 
 but under the next, and affidavits may then be used by the plaintiff, 
 either to sustain the original proceeding, or to rebut the case made by 
 the defendant on his moving papers. See the above principles gen- 
 erally laid down in Brewer vs. Tucker, 13 Abb., 76 ; Hill vs. Bond, 22 
 How., 272 ; Dickerson vs. Benham, 20 How., 843 ; 12 Abb., 158 ; 
 affirming same case, 19 How., 410 ; 10 Abb., 390 ; all above cited. 
 
 See also generally, as to what will or will not be a sufficient state- 
 ment on the original papers, supra, section 110, and cases there cited. 
 
 The only exception to this rule seems to be that, where there has 
 been a change in the relations of the parties since the original applica- 
 tion was made, that change may be shown, in answer to it. Dickerson 
 vs. Benham^ swpra. 
 
 (c.) Motion on Affidavits. 
 
 This is the more usual form of application, as it is of rare occurrence 
 that the original papers should be so manifestly imperfect, as not to 
 require some statement of facts on the part of the defendant, to show 
 the irregularity or insufficiency complained of. 
 
 It has held in several instances, that the defendant's remedy in such 
 cases cannot be asserted otherwise than on appeal to the general term, 
 or by an application to the original judge to vacate his own order, and 
 
ATTACHMENT. — § 112. 519 
 
 that a motion grounded on affidavits in disproof, cannot be made at 
 special term. Vide ConkUn vs. Dutcher, 5 How., 386 ; ICE. (N. S.), 
 49 ; White vs. Featherstonhaughy 1 How., 357 ; Bank of LoMsirigburgh 
 vs. McKie, 7 How., 360 ; Wiles vs. Vanderzee, 14 How., 547. 
 
 This view is, however, evidently too restricted, and has been over- 
 ruled by a long series of decisions, which lay down the following 
 principles : 
 
 The defendant may make a motion of this description, either to the 
 judge who granted the order, or, in the ordinary manner, to a judge at 
 special term. In either case, he may ifitroduce affidavits on his own 
 behalf, either to show want of jurisdiction or insufficiency in the plain- 
 tiff's case, or to contradict the stsltements of the latter by counter evi- 
 dence, so as to test generally the propriety of issuing the attachment. 
 Morgan vs. Avery, 7 Barb., 656 ; 2 C. E., 91, 121 ; Carmnan vs. Tomjj- 
 Mns, and Oilhert vs. The Same, 1 C. E. {E. S.), 12, 16 ; Oenin vs. The 
 Same, 12 Barb., 265 ; St. Amant vs. De Beixoedon, 3 Sandf., 703 ; 1 
 C. E. (]Sr. S.), 104; Granger. YB. SchwaHz, 11 L. 0., 346 ; Eilian vs. 
 Washington, 2 C. E., 78 ; Fv/rtnoM vs. Walter, 18 How., 348 ; New York 
 and Erie Bank vs. Codd, 11 How., 221 ; Houghton vs. Axdt, 16 How., 
 77; 8 Abb., 84, note; President of Bank of Commerce vs. Rutlcmd 
 andWashington Railroad Company, 10 How., 1. See also, the more 
 recent cases of Brewer vs. Tucker, 13 Abb., 76 ; and Hill vs. Bond, 
 22 How., 272, above cited. See lilcewise, Gasherie vs. Ajpjple, 14 Abb., 
 64 ; and section 241 itself, as amended in 1857, compared with sections 
 205, 225, and 226. 
 
 Where the defendant so moves, on affidavits stating new matter, it is 
 competent for the plaintiff to introduce counter-affidavits in reply, in 
 contradiction to such new matter, or in support of the case, made out 
 upon his original application. See Morgan, vs. Avery ; Camman vs. 
 Tompkins ; Gilbert vs. The Same ; Genin vs. The Samie ; and other 
 cases cited in last sentence passim, and also the sections of the Code 
 there referred to. 
 
 But, in the framing of such affidavit, the plaintiff will be strictly con- 
 fined to matter in rebuttal of the defendant's allegations, or in support 
 of his own original case. It is not competent for him to introduce fresh 
 grounds in support of the remedy, which were not taken by him at the 
 outset. Granger vs. Schwartz, 11 L. 0., 346 ; Wew York amd Erie 
 Bank vs. Codd, 11 How., 221. See also, Wilson vs. Britton, 6 Abb., 
 33. On this point, the authority of this last case is not affected by the 
 subsequent reversal of the order (6 Abb., 97; 26 Barb., 562), such re- 
 versal being grounded on the general merits. 
 
 An attachment issued with a fraudulent intent, and not honafide, for 
 the recovery of the plaintiff's debt, will be vacated. Beed vs. Ennis, 
 
520 ATTACHMENT. § 112. 
 
 6 Abb., 393. And, if it be made manifest, that service cannot be made, 
 and that an attachment must eventually prove ineffectual, a discharge 
 of it may be proper. Vide H&rnstein v«. Matthewson, 5 How., 106 ; 
 3 C. R, 139. 
 
 In Bigney vs. Tallmadge, 17 How., 656, a motion to discharge an 
 attachment was entertained and granted on the merits, even after the 
 case had been tried before a referee, and his report in favor of the plain- 
 tiff obtained, pending the motion. ' 
 
 But, in order to enable him to maintain the application, the defend- 
 ant must still be interested in the subject-matter. Where, therefore, 
 before levy, he had sold and delivered the goods subsequently taken, it 
 was held he could not apply. Fwrmom vs. Walter, 13 How., 348. An 
 assignment to a trustee for creditors, will not, however, have this 
 effect, there is still sufficient interest left in the defendant, to sustain 
 the motion. Diekerson vs. Benfiam, above cited. 
 
 In the former case, the remedy of the party whose goods have been 
 wrongly levied upon, does not lie by way of motion to set aside the 
 proceeding, but in action for the trespass. Boscher vs. BouIUer, 4 
 Abb., 396. 
 
 The same case is authority, that where the main ground of the plain- 
 tift''s case is disputed upon conflicting affidavits,, the court will probably 
 not interfere, on motion, but leave the point to be determined upon the 
 trial. 
 
 A new ground for moving to vacate, is given by rule 4, in the event 
 of a neglect on the part of the plaintiff, to file the undertaking and affi- 
 davits, within five days, as thereby required. 
 
 Omissions of this description are, however, of an amendable nature, 
 and the plaintiff may be permitted to cure the defect, even on the hear- 
 ing of the motion. See Kissam vs. Marshall, 10 Abb., 424 ; and, col- 
 laterally, on the subject of injunction, Leffingwell vs. Cham, 5 Bosw., 
 703 ; 19 How., 54 ; 10 Abb., 472. 
 
 When an attachment has been already granted, the subsequent re- 
 moval of the cause into the United States Court, does not, jper se, dis- 
 charge it. The statute preserves it in force, but, Avhatever subsequent 
 steps are necessary in relation to it, should be made the subject of a 
 special application. Carpenter vs. The New- York and New Hansen 
 Bail/road Cmapamy, 11 How., 481. 
 
 A motion of the above nature cannot be entertained, after the attach- 
 ment has been already discharged, on security given, under section 241. 
 
 The giving of that security admits its legality, and is, it seems, a bar 
 to any subsequent application. Tide Haggart vs. Morgam, 1 Seld., 422 ; 
 affirming sams case, 4 Sandf., 198. 
 
 A general appearance' in the action will, of course, have its usual 
 
ATIACHMENT. — § 112. 521 
 
 effect of waiving all mere irregularities. It will not, however, avail 
 to destroy the defendant's right to move to vacate, on the ground of a 
 fatal objection, on proper cause shown. The appearance had better, 
 however, be special, and without prejudice to the objection taken. Vide 
 Changer vs. Schwartz, sv/pra. 
 
 When an attachment, on motion of the defendant, or a proceeding 
 of the same nature, has once been- vacated, after opposition and argu- 
 ment on the merits, another application on the part of the plaintiff, on 
 substantially the same facts, whether before the same or another court, 
 will not be entertained. Schlemmer vs. Myerstein, 19 How., 412. 
 
 ((i^.) Discharge upon Grvnsra SEcuEriT. 
 
 This mode of procedure is appropriate to those cases in which the 
 attachment has been properly issued. Yide New Yorh and Erie Bank 
 vs. Codd, 11 How., 221 (227). 
 
 The sections applicable to it are 240 and 241. 
 
 By the former of these, an appearance, on the part of the defendant, 
 is a necessary preliminary. 
 
 He may then apply to the oificer who issued the attachment, or to the 
 court, for an order to discharge it. Section 241. 
 
 Upon such application, he must deliver an undertaking executed by 
 at least two sureties, residents and householders or freeholders in this 
 state, approved by the court or officer. 
 
 Which undertaking must provide for payment to the plaintiff, on de- 
 mand, of the amount of the judgment that may -be recovered by him, 
 not exceeding the sum specified in the undertaking. 
 
 But such sum must be at least double the amount claimed in the 
 complaint, unless it appears by affidavit that the property attached 
 be less than such amount. In that case, the com-t or officer may order 
 an appraisal, and the amount of the undertaking must then be double 
 the amount so appraised. Section 241. 
 
 The above sections do not provide for notice of the application for 
 such appraisal being given to the plaintiff, nor for any right on his part 
 to compel a justification by the sureties. 
 
 The application is ex parte. Vide Sanborn vs. Elizaheihport Manu- 
 factwring Compam,y, 22 How., 106; 13 Abb., 432. It is, however, 
 clearly competent for the judge to allow the plaintiff" to be heard, if he 
 so think fit, and to direct some notice to be given to him. But when 
 he is allowed to be heard, he is heard as amicus ciurice, and not as a 
 matter of strict right. Sanborn vs. Elizdbeihport Manufactxvring Conv- 
 pany, svpra. 
 
 Especially will it be proper to hear the plaintiff in the case of an 
 appraisal. The undertaking, to be effectual, must, besides, be approved 
 
522 ATTACHMENT. § 113. 
 
 by the court or officer, and he may withhold his approval or the grant- 
 ing of the order, which is optional and not imperative, till fully satisfied 
 that justice is done. It is of course his duty to demand the usual justi- 
 fication and acknowledgment on the part of the sureties. See rule 6. 
 
 On an action on a bond of this description, the defendant will be 
 estopped from denying the validity of the original process. Hagga/rt 
 vs. Morgan, supra. 
 
 Security of this description once given, is final. Although the sure- 
 ties may subsequently become insolvent, the court cannot, it seems, 
 order additional security to be given. Dudley vs. OoodHch, 16 How., 
 189 ; 7 Abb., 26. See, as to the amount of liability of sureties in simi- 
 lar cases, Renard vs. Hargous, 2 Duer, 540 ; affirmed, 3 Kern., 259. 
 
 By giving security of this nature, the defendant waives his right to 
 move to discharge the attachment on any other ground. 'Vide sv/pra, 
 and Haggart vs. Morgan, there referred to. 
 
 After judgment, security of the above nature can no longer be given 
 on the part of the defendant, even though an appeal has been taken by 
 him. Spencer vs. Sogers' Locomotive Worlcs, 13 Abb., 180. 
 
 As to the liability of the sureties on an undertaking of the above de- 
 scription, and as to its continuance, even where the defendant has been 
 ordered, and has failed to furnish further sureties, see Jewett vs. Crane, 
 13 Abb., 97. 
 
 (e.) Result of Dischaege. 
 
 By special provision in section 240, where security is given, and by 
 natural operation of the order of discharge in all other cases, the de- 
 fendant becomes entitled to have all property seized released from the 
 attachment and restored, and all proceeds of sales and moneys received 
 by the sheriff, paid over to him or toi his agent, unless other rights inter- 
 vene, or, in the latter case, unless the court make a different direction 
 on the subject. 
 
 § 113. Question as to HigJits of other Creditors. 
 
 In Fraser vs. Greenhill, 3 C. E., 172, it was held that where an 
 attachment has been issued, any other creditor of the same party may 
 come in, on petition, and seek to be made a defendant, for the purpose 
 of litigating any general questions as to the right to the whole fund, 
 and such an order was made accordingly. Garwell vs. Neville, 12 
 How., 445, does not bear directly upon the question, merely holding 
 that an application of this description cannot be made before judg- 
 ment. 
 
 Fraser vs. Oreenhill, if supported, really seems to amount to a prac- 
 tical repeal of the peculiar provisions of the Code, under which this pro- 
 
ATTACHMENT. — § 114. 523 
 
 ceeding is one for the exclusive benefit of the attaching creditor ; and 
 to a complete practical restoration of the machinery of the proceeding 
 under the Eevised Statutes, which was one for the benefit of creditors 
 in general. 
 
 The law, as thus laid down, seems also open to most serious objection, 
 on the following grounds ; 
 
 The claims of subsequent creditors are totally beside the controversy 
 between the parties before the court. Any question on that subject is 
 purely incidental^ and has nothing to do with the rights, either of the 
 plaintiff, or the defendant, as between themselves. That controversy 
 can be determined without bringing other parties in, and surely it seems 
 a great hardship on a plaintifi' to encumber his suit with unnecessary 
 parties ; either seeking to raise collateral issues, manifestly prejudicial 
 to the rights he has obtained, by his superior diligence ; or fighting 
 about a surplus, to which no one can have any claim whatever, until he 
 have been first paid his debt and costs in full. To leave the subsequent 
 creditors to their remedy as against the sheriff, and to the independent 
 assertion of their rights as between each other, seems far more consonant 
 to sound principles and sound practice ; and a proceeding in the nature 
 of interpleader, would afibrd at once indemnity to the sheriff, and satis- 
 faction to the parties, without encuniibering the case of the original 
 suitor with controversies with which he has no concern, and difiiculties 
 from which his superior diligence ought properly to have afforded him 
 protection, and was evidently meant to do so by the legislature. See 
 general principles, as to a plaintiff's right to proceed, without impedi- 
 ment, by reason of discussions between co-defendants, as laid down in 
 Woodworth. vs. Bellows, 4 How., 24;' 1 0. E., 129. 
 
 The above views are confirmed by the case of Judd vs. Young, 7 
 How., 79, where it was held that, in an action on contract, express or 
 implied, for the recovery of money, a person interested cannot claim to 
 be brought in as a party ; and such claim was there refused, on behalf 
 of parties claiming an interest in a surplus in the hands of the defend- 
 ant. Section 122 must, it was there held, be confined to actions for the 
 recovery of real or of specific personal property. See also, to the same 
 effect, Tallmom vs. Hollister, 9 How., 508. 
 
 § 114. Effect of Judgment. 
 
 The course to be pursued in the event of judgment being entered in 
 favor of tbe plaintiff, is pointed out in detail in section 237. 
 
 As that part of the proceeding falls more strictly under the head of 
 Execution, a mere cursory notice is all that is necessary on the present 
 occasion. 
 
524 ATTACHMENT, § 114. 
 
 The sheriff is to satisfy the plaintiff's demand out of the property- 
 attached, if sufficient. " 
 
 He has to pay over for that purpose any moneys collected. Sub- 
 division 1. 
 
 If any balance remains due, and an execution has been issued on the 
 judgment, he is to proceed to sell under the execution. On a sale of 
 shares, he is empowered to execute a certificate of transfer. 
 
 If any of the attached property has passed out of his hands, he is to 
 repossess himself of it, and any person withholding such property is 
 liable in double damages. 
 
 Until the judgment is satisfied, he is to proceed to collect the assets 
 levied upon, and to prosecute any bonds taken, applying the proceeds 
 toward the jiidgment. 
 
 After six months from the docketing of the judgment, he may, on 
 application, grounded upon the petition of the plaintiff, accompanied by 
 affidavit of the proceedings had, and upon his own affidavit, that he has 
 used due diligence to collect, and that there still remain in his hands 
 uncollected assets, he may be ordered'to sell the same. The defendant 
 is entitled to notice of this application, as prescribed in the- section. 
 
 For the purpose of authorizing the sheriff to proceed as above, an 
 execution should be lodged in his hands in the usual manner. 
 
 It was considered in Keyser vs. Waterhwry, 3 C. E., 233, that, as soon 
 as an execution is so lodged, the attachment is virtually at an end ; 
 but this seems clearly inconsistent with the special directions in sec- 
 tion 237. 
 
 In Hanson vs. Tripler, 3 Sandf., 733, 1 0. K. (IST. S.), 154, it was 
 held that an attachment, and supplementary proceedings on execution, 
 might be carried on at the same time, in the same case, subject to the 
 questions as to the relative rights of the parties being settled, in an 
 action by a receiver under those proceedings, in the event of a conflict 
 arising. 
 
 The rendering of judgment puts an end to the defendant's right to 
 regain possession of the property, on giving counter security. See 
 Sjpencer vs. Rogeri Locomotive Works, supra. 
 
 {a.) Rights of Defendant. 
 
 After payment of the judgment, and all costs of the proceeding, 
 any residue of the attached property is to be paid or delivered by the 
 sheriff to the defendant. Section 237, concluding clause. 
 
 If, on the contrary, the defendant recover judgment in the action, 
 he is entitled to a redelivery to him by the sheriff, of all the attached 
 property, and of all proceeds thereof, or moneys collected, and of all 
 bonds taken by the sheriff (except those given under section 238 for 
 
ATTACHMENT. — § 115. 525 
 
 Ms indemnity, in the event of the prosecution of any actions by tlie 
 plaintiff). The attachment is to be thereupon discharged and the 
 property released therefrom. 
 
 The defendant may, too, under these circumstances, be entitled to 
 prosecute a claim for damages against the plaintiff, and against his 
 sureties, under the undertaking prescribed in section 230, by action on 
 such undertaking in the usual manner. 
 
 -■& 
 
 § 115. Sheriff'' s Hetv/rn and Fees. 
 
 On the fuU execution or discharge of the warrant, the sheriff is to 
 return the same, and his proceedings thereon, to the court in which the 
 action was brought. Section 242. 
 
 His fees for his services thereon are those for similar services under 
 the Kevised Statutes. Section 243. 
 
 The provisions on that subject have been before cited under 'sec- 
 tion 107. 
 
 He is entitled to the usual poundage on all moneys collected by him. 
 On the sale of property, he is entitled to the same fees and disburse- 
 ments as on sales on execution. 
 
 But where he neither collects nor sells he cannot claim poundage, 
 and is merely entitled to a fee of fifty cents for the levy, and to his 
 reasonable expenses, and a compensation for his trouble in taking pos- 
 session of and preserving the property levied upon. Such compensa- 
 tion is to be settled by the oflScer issuing the attachment, even al- 
 though the suit be settled, and the demand of the plaintiff be realized. 
 He, the sheriff, should apply to have such compensation fixed at once, 
 and is entitled to receive it from the plaintiff, without waiting for 
 the determination of the action. Hoge vs. Page, 11 How., 207. And 
 the plaintiff's attorney is liable. BirTcbech vs. Stafford, 23 How., 236. 
 See also, and- as to the rate of compensation to be so fixed, Alburtis 
 vs. Dudley, 21 How., 456 ; 12 Abb., 361. His disbursements must be 
 specified on oath. Mayhew vs. Duncan, infra. 
 
 This position has, however, been controverted, and it has been held 
 that, under such circumstances, the sheriff is entitled to the same 
 commissions as a trustee under the Eevised Statutes, i. e., five per 
 cent, and all necessary disbursements. Trenor vs. Fachiri, 20 How., 
 405 ; 12 Abb., 136 ; Mayhew vs. Duncan, 31 Barb., 87 ; 10 Abb., 289, 
 as Mayhew vs. Wilson. 
 
 It may be well contended that the view in the former class of de- 
 cisions is preferable, and that the case falls within the special provision 
 as to the sheriff's fee, there referred to, especially where all that has 
 been done consists of a mere service of notices, or, at the most, a keep- 
 
526 APPOINTMENT OF RECEIVER, ETC. — § 116. 
 
 ing of the property, for which compensation is fully provided. The 
 duties of a trustee, under the former process of attachment, were of 
 a very different and far more responsible nature, embracing not merely 
 security to the plaintiff, but the realization and administration of the 
 property attached. 
 
 CHAPTER V. 
 
 APPOINTMENT OF EECEIVEE, AND OTHER EEMEDIES. 
 
 § 116. 8tatutory_ and oilier Provisions. 
 
 The original Code of 1848, and the amended Code, of 1849, did not 
 provide as to the details of this subject, but contained a mere general 
 reservation of the existent powers of the court, according to the former 
 practice. 
 
 The present provisions of the Code run as follows : 
 
 § 244. (200.) A receiver may be appointed, 
 
 1 . Before judgment, on the application of either party, when he establishes 
 an apparent right to property, which is the subject of the action, and which 
 is in the possession of an adverse party ; and the property, or its rents and 
 profits are in danger of being lost, or materially injured or impaired ; except 
 in cases where judgment upon failure to answer may be had without appli- 
 cation to the court ; 
 
 2. After judgment, to carry the judgment into effect; 
 
 3. After judgment, to dispose of the property, according to„the judgment, 
 or to preserve it during the pendency of. an appeal ; or when an execution 
 has been returned unsatisfied, and the judgment-debtor refuses to apply his 
 property in satisfaction of the judgment ; 
 
 4. In the cases provided in this Code, and by special statutes, when a cor- 
 poration has been dissolved, or is insolvent, or in imminent danger of in- 
 solvency, or has forfeited its corporate rights ; and in like cases of the prop- 
 erty within this state of foreign corporations; 
 
 5. In such other cases as are now provided by law, or may be in accord- 
 ance with the existing practice, except as otherwise provided in this act. 
 
 When it is admitted, by the pleading or examination of a party, that he 
 has in his possession, or under his control, any money or other thing capable 
 of delivery, which, being the subject of the litigation, is held by him as 
 trustee for another party, or which belongs, or is due to another party, the 
 
APPOINTMENT OF EEOEIVEE, ETC. — § 116. 527 
 
 court may order the same to be deposited in court, or delivered to such 
 party, with or without security, subject to the further direction of the court. 
 
 Whenever, in the exercise of its authority, a court shall have ordered the 
 deposit, delivety, or conveyance of money or other property, and the order 
 is disobeyed, the court, besides punishing the disobedience as for contempt, 
 may make an order, requiring the sheriff to take the money or property, and 
 deposit, deliver, or convey it, in conformity with the direction of the court. 
 
 When the answer of the defendant admits part of the plaintiff's claim to 
 be just, the court, on motion, may order such defendant to satisfy that part 
 of the claim, and may enforce the order, as it enforces a judgment or pro- ■ 
 visional remedy. 
 
 Receivers of the property, within this state, of foreign corporations, shall 
 be allowed the same commissions as are allowed by law to the trustees of 
 the estates of absconding, concealed, and non-resident debtors. 
 
 The concluding sentence dates from the amendment of 1862 — the prior portions from that 
 of 1858. 
 
 The section was framed in its present shape on the amendment of 1851. It was in some 
 respects less, in others, i. e., as regards the reservation it stiU contained of the former provis- 
 ional remedies, more comprehensive than at present. In 1852, the phraseology was somewhat 
 chano-ed, and the reservation in question stricken out. In 1851, the last clause but one was 
 amended by adding the word "judgment," and in 1858, the form was finally fixed as it stands, 
 with the exception of the addition since made, as above noticed. 
 
 The general powers of a receiver, when appointed, are thus provided 
 for by rule 92 (T6 of 1854) : 
 
 Every receiver of the property and effects of the debtor shall, unless re- 
 stricted by the special order of the court, have general power and authority 
 to sue for and collect all the debts, demands, and rents belonging to such 
 debtor and to compromise and settle such as are unsafe and of a doubtful 
 character. He may also sue in the name of a debtor, where it is necessary 
 or proper for him to do so ; and he may apply for and obtain an order of 
 course, that the tenants of any real estate belonging to the debtor, or of 
 which he is entitled to the rents and profits, attorn to such receiver, and 
 pay their rents to him. He shall also be permitted to make leases, from 
 time to time, as may be necessary, for terms not exceeding one year. And 
 it shall be his duty, without any unreasonable delay, to convert all the per- 
 sonal estate and effects into money ; but he shall not sell any real estate of 
 the debtor, without the special order of the court, until after judgment in 
 the cause. He is not to be allowed for the costs of any suit brought by him 
 against an insolvent from whom he is unable to collect his costs, unless such 
 suit is brought by order of the court, or by the consent of all persons inter- 
 ested in the funds in his hands. But he may, by leave of the court, sell such 
 desperate debts, and all other doubtful claims to personal property, at public 
 auction, giving, at least, ten days' pubUc notice of the time and place of such 
 sale. 
 
 The subject of receivership on proceedings supplementary to execu- 
 
528 APPOESTTMENT OF EEOEIVER, ETC. — § 116. 
 
 tion, belongs to a subsequent division of the woi'k, and the enactments 
 of the Code, in relation to that form of the remedy, will there be cited. 
 
 The provision in relation to the receivership of a delinquent corpora- 
 tion, referred to in subdivision 4 of section iSM, will be found in sec- 
 tion 444. It provides for such an appointment, after judgment of dis- 
 solution. It therefore does not fall properly under the class of pro- 
 visional remedies. It is, on the contrary, a necessary incident and con- 
 sequence of such judgment, when pronounced, and will therefore pre- 
 sent itself for consideration in its due place, in a subsequent portion of 
 the work. 
 
 The receiverships, in similar cases, provided for by special statute, as 
 referred to in the same subdivision, are, in their nature, parts of or in- 
 cident to special statutory proceedings, though the powers of the court, 
 for such purposes, are exercisable in a suit, as well as on petition. As 
 such, they do not fall under the class of provisional remedies, incident 
 to the ordinary progress of a suit. They belong rather to the class of 
 proceedings for the winding up of an insolvent's estate, and the re- 
 ceivers appointed are, in effect, trustees for that purpose. 
 
 It will not therefore be necessary, or consistent with the scope of the 
 present work, to cite those statutory provisions in extenso, the more 
 so, as they are numerous and complicated. An indication of them, for 
 the convenience of the student, may not, however, be out of place. 
 
 The general provisions upon the subject will be found in articles II. 
 and III. of title lY., chap. VII., part III., of the Revised Statutes ; 2 
 E. S., 462 to 472 inclusive. See especially, sections 36, 41, 42, and 65 
 to 89. 
 
 These provisions have been made the subject of numerous amend- 
 ments or addition's. See especially, chapter 222 of 1842 ; chapter 239 
 of 1844; chapter 295 of 1832 ; chapter 71 of 1852, p. 67; amended by 
 chapter 403 of 1860, p. 699 ; chapter 224 of 1854, p. 502 ; chapter 226 
 of 1849, p. 340 ; amended by chapter 69 of 1855, p. 101, and chapter 
 365 of 1859, p. 880. See also chapter 348 of 1858, p. 592. 
 
 In proceedings of this nature, the Supreme Court seems to be the 
 proper forum. In Bay vs. The United States Car-Spring Oonipa/ny, 
 2 Duer, 608, the Superior Court disclaimed jurisdiction, in a suit for the 
 purpose of winding up the affairs and distributing the assets of a foreign 
 corporation. Its jurisdiction was also considered to be doubtful in a 
 proceeding for dissolution of a domestic incorporation, though the point 
 was not expressly decided, the motion being denied on another gi-ound. 
 Kattenslyroth vs. The Astor Bank, 2 Duer, 632. 
 
 That the county courts have no jurisdiction to appoint a receiver in 
 a statutory proceeding, in relation to the property of a coi-poration, is 
 expressly decided in Wheatmi vs. Gates, 18 IST. T., 395. 
 
APPOINTMENT or BECEIVEK, ETC. § 117. 529 
 
 § llT. Appointment a/nd its Incidents. 
 
 The appointment of flie receiver, under subdivisions 2 and 3 of 
 section 244, is more properly an incident of the judgment in the action, 
 or of the proceedings for its review, than a provisional remedy. . The 
 observations in the present chapter will, therefore, be more especially 
 devoted, to proceedings before judgment, under subdivision 1, leaving 
 those after judgment to be considered in their natural connection. 
 Only one observation need be made as to the latter, viz., that, when 
 applied for on special motion, the formal incidents of the application 
 and the course of procedure will be the same. "When the provision 
 forms part of the judgment itself, no special motion will, of course, be 
 necessary; but, even then, it may often be requisite to go through the 
 same forms, as far as the action of a referee and the taking of security 
 are concerned. 
 
 Keceiverships of the property of dissolved corporations and under 
 supplementary proceedings, fall also, as has been before remarked, 
 beyond the scope of the present chapter. 
 
 {a.) Application, Mode or. 
 
 The application must be made on motion in the ordinary mode, on 
 notice to the adverse party. Vide Kemp vs. Ha/rding, 4 How., 178 ; 
 Dorr vs. N'oxon, 5 How., 29. 
 
 In most cases in which such an application is admissible, it will have 
 formed part of the relief demanded in the complaint. 
 
 It may then be grounded on that document itself, when verified. In 
 most cases, however, affidavits will be requisite, either in connection 
 with or independent of the complaint, as the facts warranting the 
 granting of the remedy will have to be brought forward clearly and 
 fully, so as to satisfy the court of its propriety. 
 
 The motion will not be proper before the answer of the defendant 
 has been put in, as, until then, it cannot be known whether and to 
 what extent he disputes the plaintiff's claim. See Field y&. liipley, 20 
 How., 26. 
 
 After answer, the motion wUl be founded on the pleadings, either with 
 or without affidavits. 
 
 The application may, under the terms of the subdivision, be made 
 by either party. Usually the plaintiff is the mover upon the occasion. 
 
 The moving papers must show a cle&v prima facie right in the appli- 
 cant to the property claimed, or to some sufficient interest in it, and 
 also a reasonable apprehension of its being lost or injured, so as to 
 bring the case within the terms of the section. Both are essential to 
 
 Vor, I.— 34 
 
530 APPOINTMENT OF EEOEIVEE, ETC. § 117. 
 
 the granting of the remedy, and, if either be insufficiently shown, or 
 adequately disproved by the adverse party, the application will doubt- 
 less be refused. Vide Ooodyear vs. Betts, 7 How., 187 ; Austin vs. 
 Chapnum, 11 L. 0., 103. See also The People vs. The Mayor of New 
 Yo7-k, 10 Abb., Ill ; reversing same case, 8 Abb., 7 ; Field vs. Bip- 
 ley, 20 How., 26 ; GaVway vs. United States Steam Suga/r Rejvwmg 
 Oompany, 21 How., 313 ; 13 Abb., 211. The plaintiff must also show 
 an actual present interest in the property itself, sought to be reached 
 by the receivership. Smith vs. Wells, 20 How., 158. On the other 
 hand, a party who does not possess such an interest, will not be heard 
 in opposition to the motion. Wall Street Fire Insurance Oompany vs. 
 Loud, 20 How., 95. 
 
 The application is only proper in actions for relief; in those on a 
 mere money demand, the remedy is inadmissible. Since 1858, this 
 prohibition forms part of the section itself, but, before that amendment, 
 the practice was in fact the same. The remedy is only appropriate 
 where specific property is either claimed or sought to be administered 
 under the direction of the court, and not where a mere money judg- 
 ment is applied for. Although the prohibition does not extend to it 
 in terms, an application of this nature will be equally inadmissible in 
 an action for mere damages. 
 
 It is not an appropriate remedy, nor can it be properly applied for 
 in an action of ejectment. Thompson vs. Sherra/rd, 22 How., 155 ; .12 
 Abb., 427. 
 
 The moving papers, as in other cases where a provisional remedy is 
 sought, should state facts to warrant the application. Mere information 
 and belief, standing alone, will not, as a general rule, be sufficient. 
 Vide Livingston vs. The Bank of New York, 26 Barb., 304 ; 5 Abb., 338. 
 
 The motion may, of course, be either brought on upon full notice, or 
 on order to show cause ; but, unless imminent danger to the fund be 
 shown, the former is the more usual, and will be the more proper 
 course. The application may, from its very nature, be not unfre- 
 quently combined with one for an injunction, though ordinarily the 
 latter remedy will be applied for separately, at an earlier stage of the 
 proceedings. 
 
 It will, of course, not be proper or admissible, before the actual com- 
 mencement of the action, unless in very rare and urgent instances. 
 Kattenstroth vs. TheAstor Bank, 2 Duer, 632; McCarthy vs. Peake, 
 18 How., 138 ; 9 Abb., 164. 
 
 Such an interference can only be warranted, in the most extreme 
 cases, where immediate injury is threatened, and a mere injunction will 
 not afford adequate relief. McCan'thy vs. Peaks, supra. And, as a 
 general rule, a receiver will not be appointed, unless a necessity for that 
 
APPOmTMENT OF EEOEIVEE, ETC. — S IIY. 531 
 
 mode of interference by the court be shown. The People vb. Tlie 
 Mayor of NewYork, 10 Abb., Ill-; reversing smm case, 8 Abb., Y; 
 Hamilton vs. The Accessory Transit Company, 13 How., 108 ; 3 Abb., 
 255 ; affirmed, 26 Barb.,*46 ; Patten vs. The sams, 13 How., 502 ; 4 
 Abb., 235 ; reversing scmie case, 4 Abb., 139. 
 
 Wliere the title of the applicant to the property in question is dis- 
 puted in good faith, a receiver M'ill not usually be appointed, unless 
 positive and immediate injury is shown, making the interference of the 
 coiirt for its intermediate preservation necessary or proper. Austin vs. 
 Chapman, 11 L. O., 103 ; Goodyear vs. Betts, 7 How., 18T ; La Chaise 
 vs. Lord, 10 How., 461 ; 1 Abb., 213 ; 4 E. D. Smith, 612, note ; Oould- 
 ing vs. Bain, 4 Sandf , T16 ; Bishop vs. Halsey, 13 How., 154 ; 3 
 Abb., 400 ; Field vs. Ripley, 20 How., 26. 
 
 A bare denial of fraud on the part of the defendant, or the putting in 
 of a doubtful defence, will not, however, per se, prevent the granting of 
 the application. Churchill vs. Bennett, 8 How., 309 ; Quickvs,. Grant, 
 10 L. O., 344. 
 
 A prima facie case being shown by the applicant, the merits of the 
 action will not otherwise be inquired into, the proceeding being merely 
 for conservation of the fund, and not by way of adjudication of the 
 controversy. Sheldon vs. Weeks, 2 Barb., 532 ; 1 C. E., 87 ; Conro vs. 
 Gray, 4 How., 166 ; Todd vs. Crooke, 1 C. R. (N. S.), 324. 
 
 Where two parties are equally interested in the same fund, and an 
 injunction has been obtained by one, the granting of an injunction and 
 receiver on the application of the other will be almost of course, though 
 a prayer for that relief has been omitted to be inserted in his complaint. 
 MaCrackan vs. Ware, 3 Sandf, 688 ; 1 C. R. (K S.), 215. 
 
 The proper use of joint property by one joint tenant, will not, as a 
 general rule, be restrained, or a receiver appointed, unless abuse be rea- 
 sonably apprehended, or in cases where security has been given for a 
 due accounting. Dunham vs. Jarvis, 8 Barb., 88. But, where there 
 is any doubt of the safety of the fiind, the application will almost be as 
 of course. 
 
 Pending a partnership, or in a suit where partnership is alleged on 
 one part and denied on the other, a receivership vrill not be granted, 
 unless the fund be shown to be in danger. Goulding vs. Bain, 4 
 Sandf., 716. 
 
 But where one partner seeks redress against the fraud of another, the 
 application will be proper. CWy vs. Williams, 1 Duer, 667. 
 
 And, upon a dissolution, the granting will be almost a matter of 
 course, even though negotiations may have been pending for a new ar- 
 rangement. Smith vs. BoMvers, 5 Sandf, 669 ; Sogg vs. JEUis, 8 How., 
 473 ; Jackson vs. Be Forest, 14 How,, 81. 
 
532 APPOINTMENT OF KEOBrVER, ETC. — § 117. 
 
 The same will be the case in a suit by one partner for a dissolution, 
 on facts warranting a proceeding for that purpose. Wetter vs. SchlAeper^ 
 4 E. D. Smith, Y07 ; 15 How., 268 ; 6 Abb., 123. See also Jackson 
 vs. De Forest, sufra. 
 
 So also upon the insolvency of a partnership, whether limited or 
 special. Dillon vs. Horn, 5 How., 35 ; Levy vs. Ely, 15 How., 395 ; 
 6 Abb., 89. 
 
 So likewise in a case of fraudulent dealing with its property, by the 
 directors of a coi-poration. Abbot vs. American Hard Rvhher Gom- 
 jyany, 33 Barb., 578 ; 21 How., 193 ; affirming same case, 20 How., 
 199 ; 11 Abb., 204. 
 
 On a dissolution on the ground of insolvency of some of the part- 
 ners, although a solvent partner is not entitled as of right to the admin- 
 istration of the assets, a preference will be given to him as receiver, 
 where his capacity and integrity are unquestioned. Huhbard vs. Guild, 
 1 Duer, 662. See also, as to the rights of a surviving solvent partner, 
 Jacquin vs. Bmsson, 11 How., 385. 
 
 In winding up the affairs of an insolvent copartnership, preference 
 will be given to an application, where the suit is on behalf of all the 
 creditors of the firm, as against one where a judgment-creditor files a 
 bill in his own behalf only. La Chaise vs. Lord, 10 How., 461 ; 1 Abb., 
 213 ; 4 E. D. Smith, 612, note ; Jackson vs. Sheldon, 9 Abb., 127 ; 
 Hamhnan vs. The Emrpire Mill, 12 Barb., 341. See also Wheeler 
 vs. Wheedon, 9 How., 293, as to a suit in hostility to an assignment. 
 
 In the absence of actual fraud or imputation of insolvency, the 
 action of special assignees, in collecting the trust estate, will not be 
 interfered with by appointment of a receiver, even though the ultimate 
 division of the amount collected be restrained. Spring vs. Strauss. 
 3 Bosw., 608 ; Bishop vs. Halsey, 13 How., 154; 3 Abb., 400. 
 
 Nor will the ordinary operations of a corporation be similarly ham 
 pered. Vide Hamilton vs. The Accessory Transit Gompany, 13 How. 
 108 ; 3 Abb., 255 ; affirmed, 26 Barb., 46. 
 
 The rights of the legal owner or mortgagee of property will not be 
 interfered with by a receivership. Bayaud vs. Fellows, ^8 Barb., 451 
 Patten vs. The Accessory Transit Company, 13 How., 502 ; 4 Abb., 
 235 ; reversing same case, 4 Abb., 139. See also Marming vs. Mon- 
 aghan, 1 Bosw., 459. 
 
 When a previous suit is pending in another court, the action of that 
 court will not be impeded by way of receivership. McCarthy vs. 
 Feake, 18 How., 138 ; 9 Abb., 164 ; Thompson vs. Van Vechten, 5 Duer, 
 618. But, in the latter case, a receiver was appointed of the surplus 
 sale moneys of a vessel under libel in the United States District Court, 
 after satisfaction of the claims of the libellants. And, as between two 
 
APPOINTME]ST or EEOEIYEE, ETC. — § 11*7. 633 
 
 applications, in two different suits, pending in tlie same court, though, 
 ccBterisparibus, preference will be given to that in which a reference 
 was first directed, yet the rule is not unflinching, and that most for the 
 benefit of the general body may be selected, or the appointment will 
 be extended to both. The parties should, however, be heard. Zottimer 
 vs. Zord, 4 E. D. Smith, 183. 
 
 On the ordinary creditor's bill it is, it seems, a matter of course to 
 appoint a receiver. Zent vs. IfoQuin, 15 How., 313. See Moberts vs. 
 Albany and West Stoclcbridge Railroad Compcmy, 25 Barb., 662. But 
 see cases above cited, as to the preference that may ultimately be given 
 to a receiver representing the general body of creditors, over one only 
 appointed for the protection of a specific interest. 
 
 (b.) Peoceedings on Decision of Motion. 
 
 If a receivership be granted, the prevailing party, of course, draws 
 up the order, which will direct a reference to appoint a receiver, as 
 moved for, with the usual powers and the usual directions ; and that 
 the referee take from such receiver the necessary and' usual. security, 
 and file the same in the proper oflice ; and that, upon the filing of his 
 report and of such security, the receiver be thereupon vested with all 
 his rights and powers, as such, according to the rules and practice of 
 the court. 
 
 Having entered and served such order, the moving party obtains 
 and serves an appointment from the referee, for proceeding under the 
 order. 
 
 He then prepares, for the purposes of the hearing, a formal proposal, 
 giving the names and addresses of the proposed receiver, and of his 
 sureties. 
 
 He should likewise have ready an aflidavit, stating the particulars 
 of the property over which the receivership is to extend, and the value 
 of that property, so far as he is able to state it, in order to guide the 
 referee in fixing the amount of security to be given. 
 
 The opposing party is entitled, on his part, to present a similar pro- 
 posal, and it is, of course, competent for him to introduce any other 
 evidence, tending to show the real value of the property, or to disprove 
 any statements on the part of the applicant. He cannot, however, any 
 longer dispute the right to an actual appointment, the time for that 
 branch of the controversy being past. 
 
 That the old practice of a reference being taken in the above man- 
 ner is still existent under the code, and that the actual appointment of 
 the receiver rests, as heretofore, with the referee, and not with the court, 
 see Wetter vs. SoMieper, 7 Abb., 92. The same case also decides that 
 relationship to one of the parties is not, ipso facto, a disqualification of 
 
534 APPOINTMElJfT OF 2ECEIVEE, ETC. § 117. 
 
 a party proposed. See also, as to a reference being the proper mode 
 of procedure, McOa/rthy vs. Pealce, 9 Abb., 167, note. 
 
 Having heard the allegations and proofs of the parties, the referee 
 then proceeds to make his decision, appoints the receiver, and fixes the 
 amount of security to be given. Having signified such decision to the 
 prevailing party, that party should immediately proceed to draw up 
 the proper security. It is ordinarily taken in the form of a penal bond, 
 executed by the sureties, conditioned that the receiver shall duly collect 
 the trust fund, account for it yearly, or whenever required, and .obey 
 all orders of the court. The sureties must annex the usual affidavits of 
 justification and acknowledgment, as reqiiired by rule 6. 
 
 The bond, thus prepared, must be submitted to the referee for his 
 approval, and, of course, if he think fit, he can direct notice to be given 
 to the adverse party, and may take any reasonable steps to satisfy him- 
 self of the solvency of the sureties. 
 
 When his decision is come to, he draws up his report, and files it, 
 together with the security, as approved by him. The report appoints 
 the receiver in terms, and states that the security has been taken, and 
 annexed to and filed with it. 
 
 On the filing of these documents, the receiver's appointment and title 
 to the trust funds is complete ; and no assignment is necessary to divest 
 the title of the party or debtor as to personal property, and to vest 
 that property in him. The order itself has that effect. Porter vs. Wii- 
 Uams, 5 Seld., 142 ; 12 How., 107 ; affirming same case, 5 How., 441 ;, 
 9 L. O., 307 ; 1 C. R. (N". S.), 144 ; People vs. Hurlbut, 5 How., 446 ; 
 Van Rensselaer vs. Emery, 9 How., 135 ; Bostwich vs. Peizer, 10 Abb., 
 197 ; Wilson vs. Allen, 6 Barb., 542 ; In re Berry, 26 Barb., 55 ; Moak 
 vs. Coats, 33 Barb., 498. And he may compel its delivery by order of 
 the court ; but, to bring the party into contempt, he must make a per- 
 sonal demand. Panton vs. Zebley, 19 How., 394. 
 
 And, not merely so, but such vesting dates back, by relation, to the 
 granting of the original order of reference. From that time, the prop- 
 erty is under the control of the court, and the order operates as a 
 sequestration j?«r se. Putter vs. Tallis, 5 Sandf., 610 ; West vs. Fras&r, 
 5 Sandf, 653 ; Roberts vs. The Albany and West Stockiridge Railroad 
 Company, 25 Barb., 662 ; Steele vs. Sturges, 5 Abb., 442 ; Zottimer vs. 
 Zord, 4 E. D. Smith, 183 ; In re Perry, 26 Barb., 55. See this prin- 
 ciple applied, in a contest for precedence between two appointments, in 
 different proceedings, Deming vs. Wew York Marble Company, 12 Abb., 
 66. But, although the grajiting of an order has this effect, the receiver- . 
 ship cannot be made to take effect from the commencement of the suit^ 
 and the insertion of a clause to that effect in the order, will be irregular 
 and improper. Artisans' Bamlc vs. Treadwdl, 34 Barb. 553. 
 
APPOINTMENT OF EEGEIVEE, ETC. — § 117. 535 
 
 The order has also the same eflfect, as regards the rents of the 
 debtor's real estate. Yide Porter vs. Williams, swpra. The title to 
 such real estate does not, however, vest in this manner, though the 
 right passes to him. See Owen vs. Smith, 31 Barb., 641. To vest the 
 title in the receiver, for the purposes of assertion, a conveyance from 
 the debtor or party himself will be necessary, and such conveyance 
 will only pass the property, subject to all then existing liens, and to the 
 rights of the holders for their enforcement. Ghatauque County Bank 
 vs. Risley, 19 IST. T., 369. See also Ghatauque Gownty Bank vs. 
 WhiU, *Seld., 236 ; Smith vs. Lansing, 22 IST. Y., 520. But, on the 
 right being acquired by the receiver, the court will compel a convey- 
 ance. Moak vs. Goats, 33 Barb., 498. JST. B. See chapter 163 of 1851, 
 p. 308, confirming all assignments of this nature, executed under the old 
 Court of Chancery, or Supreme Court in equity. 
 
 As regards personal estate also, it may frequently save trouble, 
 though not strictly necessary, to obtain an assignment from the debtor 
 himself, and it can never be detrimental. As to the similar effect of 
 such an assignment, vide Fessenden vs. Woods, 3 Bosw., 550. 
 
 But the appointment of a receiver does not alter the title to the funds 
 over which his powers extend. Where, therefore, income sought to be 
 seized by him was wholly or partially inalienable, it was held that the 
 question could not be determined in the proceeding under which he 
 was appointed, but must be made the subject of a separate suit. Oenet 
 vs. Foster, 18 How., 50. 
 
 Although no confirmation of the report, or further action of the court 
 is necessary, in order to perfect the appointment of the receiver, or his 
 title to the trust funds, but, on the contrary, both are completed on the 
 filing of the report and security ; still there can be no doubt that, on ^a 
 proper application, it is competent for the court itself to set aside or 
 review those proceedings. To warrant such an interference, it must, 
 however, be clearly shown that the appointment is not suitable or 
 proper, or that there has been fraud or collusion in the proceedings, 
 otherwise the discretion lodged in the referee will not be interfered 
 with. Vide LoUim£,r vs. Lord, 4 E. D. Smith, 183 (192) ; Wetter vs. 
 Schlieper, 1 Abb., 92 (95). 
 
 When made, the appointment cannot be questioned collaterally,) 
 and when consented to by the party himself, his debtors cannot ques- 
 tion its regularity. Tyler vs. Willis, 33 Barb., 327 ; 12 Abb., 465. 1 
 Nor can the. original order be drawn into question, upon a motion 
 for a mere formal substitution of a fresh receiver. Fassett vs. Tall- 
 madge, 13 Abb., 12. 
 
536 APPOINTMENT OP EEOEIVEE, ETC. — § 118. 
 
 § 118. Duties and Powers of Becewer. 
 
 A receiver, special or general, when appointed, is. the officer of the 
 court, and not of the party at whose immediate instance that appoint- 
 ment takes place. He is bound to act in all things with a view to the 
 equitable interests of all parties entitled, and to follow such direc- 
 tions as the court may give. Lottimer vs. Lord, 4 E. D. Smith, 183 ; 
 Van Rensselaer vs. Emery, 9 How., 135 ; Ourtis vs. Leavitt, 10 How,, 
 481 ; 1 Abb., 274 ; Ahgell vs. 8ilsbury, 19 How., 48. * 
 
 He has the right of employing his own counsel for his direction. 
 Lottimer vs. Lord, supra ; or he may employ the counsel of either 
 party, where their interests are not adverse, but not otherwise. Ben- 
 nett vs. Chapin, 3 Sandf , 673. 
 
 When doubtful as to the extent or nature of his duties, he is entitled 
 to apply to the court for its instructions. Yide Curtiss vs. Leawitt, 10 
 How., 481 ; 1 Abb., 274. 'See also, as to such an application by a trustee, 
 Coe vs. Beckwith, 31 Barb., 339 ; 19 How., 398 ; 10 Abb., 296. 
 
 Or such instructions may be given, at the instance of third parties. 
 Vide Hubbard vs. Ouild, 2 Duer, 686. 
 
 But, in making such an order, the strict line of the receiver's duty 
 will be followed, and no departure allowed from it, on any considera- 
 tions of expediency. Brown vs. N^ew York and Erie Mailroad Com- 
 pany, 22 How., 451. 
 
 When . appointed in relation to partnership property, it will be his 
 duty to wind up the business. He cannot continue to carry it on, un- 
 less temporarily, and under the special direction of the court. Jackson 
 vs. Be Forest, 14 How., 81. 
 
 When goods subject to prior liabilities have come into his pos- 
 session, he is boufid to account for the proceeds, to the proper party 
 entitled to such priority. In re North Amerioam, Outta Percha Comr 
 pany, 17 How., 554; 9 Abb., 79 ; Rich vs. Loutrel, 18 How., 121 ; 9 
 Abb., 356. 
 
 On selling real estate, his acts, under the direction of the court, will 
 be valid, notwithstanding he may have personalty in his hands, appli- 
 cable to payment of part of the claims which he represents. Chatauque 
 County Bank vs. White, 2 Seld., 236. For an unlawful sale of property, 
 if made, both he and the plaintiff, if the latter interfere, will be liable. 
 Yide Manning vs. Monaghan, 1 Bosw., 459. 
 
 A receiver, like any other fiduciary, cannot himself buy, at a sale 
 
 made by him. Any purchase, if made by him, will inure for the benefit 
 
 of his cestui que trusts, at their election. Jewett vs. Miller, 6 Seld., 402. 
 
 In letting, he must let to the best advantage, or an arrange- 
 
APPOINTMENT OP EECBIVEE, ETC. — § 118. 537 
 
 ment made by him will not be Bustained. Lorillard vs. Lorilla/rd, 4 
 Abb., 210. 
 
 In making payments under an order, lie must act strictly within its 
 legal limits, and not upon any equitable views of a claim submitted to 
 him. Vide Brown vs. The New York and Erie Railroad, 19 How., 84. 
 Nor will the court anticipate a final adjudication upon the rights of 
 contesting parties, by directing an intermediate payment. HuVbard vs. 
 Oidld, 2 Duer, 685. 
 
 In relation to the prosecution or defence of suits, the theory that the 
 receiver is an officer of the court, and acts, as such, under its direction 
 and protection, has been strictly maintained. 
 
 A receiver cannot properly commence a suit without the previous 
 direction of the court. If so, he acts at his peril, and, if unsuccessful, 
 will be charged with the costs. Phelps vs. Cole, 3 C. K., 157; Smith vs. 
 Woodruff, 6 Abb., 65. Having obtained such leave, he is then bound to 
 proceed.' Winjield vs. Bacon, 24 Barb., 154. But, of course, the mere 
 granting of such leave does not alter the nature of or strengthen the 
 claim to be so asserted. WilUams vs. Laliey, 15 How., 206. 
 
 He may sue the debtor himself, for a conversion of property after his 
 appointment. Gardner vs. Smith, 29 Barb., 68. And, when appointed 
 on a general creditor's bill, he may maintain trover for property belong- 
 ing to the defendants, without showing an assignment from all of them. 
 Wilson vs. Allen, 6 Barb., 542. 
 
 In a suit of this latter nature, or on supplementary proceedings, he 
 represents the whole body of creditors, and must act in the interest of 
 aU. Sa/me case. See also Porter vs. Williams, and Chatauqys County 
 Bank vs. White, supra ; Bostwick vs. Beizer, 10 Abb., 197. 
 
 Before suing a receiver, the claimant should also obtain the leave of 
 the court {HMell vs. Dana, 9 How., 424) ; and, if sued without such 
 leave, it will be a contempt of court, and he may obtain an order re- 
 straining the action. De Groot vs. Jay, 30 Barb., 483 ; 9 Abb., 304, 
 reversing Jay''s case, 6 Abb., 293. This right may, however, be waived 
 by general appearance. Hubbell vs. Dana, swpra. See also Jay's case, 
 6 Abb., 293, supra, reversed, but not on this point. And an omission 
 to obtain such leave, though improper, is one of contempt purely, and 
 does not affect the legal right of the party. GhatoAique County BamJc 
 vs. Risley, 19 K Y., 369. 
 
 A proceeding against the receiver, must also be taken by the party 
 immediately entitled, or relief will be denied. In re North American 
 Gutta Percha Company, 17 How., 544; 9 Abb., 79. See also Rich 
 TS. Lmitrel, 18 How., 121 ; 9 Abb., 356. 
 
 A receiver, suing or being sued in good faith, stands on the game 
 footing as an executor or trustee, and is not liable for costs, where 
 
538 APPOINTMENT OF EECEIVEE, ETC. — § 118. 
 
 there is no mismanagement or bad faith on his part. St. John vs. 
 Denison, 9 How., 343 ; Marsh vs. Hussey, 4 Bosw., 614. See also, 
 Code, section 317. 
 
 A receiver acting for creditors, is, by statute, expressly authorized to 
 disaffirm, treat as void, and resist any act, transfer or agreement, made 
 in fraud of the rights of the creditors whom' he represents, for the ben- 
 efit of such creditors ; and any party committing such a fraud is de- 
 clared liable to him in the proper action. Vide chapter 314 of 1858, 
 p. 506, §§ 1, 2. 
 
 A receiver is accordingly, and was even before such statute, held en- 
 titled to bring an action in the nature of a general creditor's bill, to set 
 aside any fraudulent assignment or act of the debtor, or of others seek- 
 ing to withdraw or impair the estate or propei-ty covered by his re- 
 ceivership. Porter vs. Williams, 5 Seld., 142 ; 12 How., 107; affirm- 
 ing 5 How., 441 ; 9 L. 0., 307 ; 1 C. E. (N. S.), 144 ; Ghatauque County 
 Bank vs. White, 2 Seld., 236 ; Bostwiok vs. Beizer, 10 Abb., 197 ; Sey- 
 mour vs. Wilson, 15 How., 355 (357), (though the report is generally 
 unsatisfactory.) See also. Shaver vs. Brainard, 29 Barb., 25. By 
 these cases, the decisions to the contrary of Seymour vs. Wilson, 16 
 Barb., 294, and Hayner vs. Fowler, 16 Barb., 300, are clearly overruled. 
 
 A foreign receiver has been held entitled to the same powers of bring- 
 ing suit as a domestic receiver. ^^m^ vs. /S'^ JbA%, 29 Barb., 585. .Of 
 course it will not be necessary for him to obtain any previous leave, 
 unless from the tribunal under which he acts. 
 
 In order to obtain leave to sue, a receiver should present a petition 
 to the court, verified by affidavit, stating the nature of his claim and 
 the reasons why it is expedient to enforce it, and praying for the leave 
 required.- The application is of course ex parte, and the order, though 
 proper to be entered, need not be served. 'The same course may be 
 adopted by a claimant against the estate, or other party entitled to sue 
 the receiver, and desiring leave for that purpose. 
 
 Where a receivership was directed to continue, pending any appeal 
 to be taken from the decree of the court at special term, it was held that 
 an ulterior appeal to the Court of Appeals was also comprised in the 
 continuance. McMahon vs. Allen, 14 Abb., 220. 
 
 In the case /» re Paddock, 6 How., 215, it was held that; although 
 the court may remove trustees or receivers for insolvency, it is hot ab- 
 solutely bound to do so ; and, in that case, an application for such pur- 
 pose was refused, the fund not appearing to be in danger, and the in- 
 solvency of the receiver having been known to the parties before his 
 appointment. 
 
 In Bennett vs. Ohapin, 3 Sandf., 673, the following principles are 
 laid down, in reference to the duties of a receiver, as regards accounting. 
 
APPOINTMENT OF EEOEIVEE, ETC. — § 118. 539 
 
 He cannot make rests in his accounts, with a view to his com- 
 mission, which must be calculated on the aggregate of his receipts and 
 payments. 
 
 He is entitled to charge commission on choses in action actually in 
 his hands, and delivered over by him to the parties, before realization, 
 on a final settlement of his accounts. 
 
 He is entitled to those commissions at the rates allowed to executors 
 and administrators by the Eevised Statutes, 2 K. S., 93, i. e., 
 
 For receiving and paying out all sums of money not exceeding $1,000, 
 5 per cent. 
 
 For receiving and paying out all sums of money not exceeding $4,000, 
 2i per cent. 
 
 For all sums above $5,000, 1 per cent. 
 
 That is, for receiving, half these rates, and for paying out, one half. 
 
 And also for all his actual disbursements properly incurred. Howes 
 vs. Davis, 4 Abb., 71. 
 
 See also as to the right of the receiver of an insolvent mutual insu- 
 rance company to be allowed commissions, on the value of deposit or 
 premium notes come to his hands, and surrendered by him to the mak- 
 ers, by order of the court. Yan Buren vs. Xhe Chenango County Mu- 
 tual Insurance Gompany, 12 Barb., 671. 
 
 {a.) Insolvent Coepoeations. 
 
 Although it has, for the reasons above stated, been considered by the 
 author as foreign to the purpose of the work, to go at any length into 
 the questions relating to special statutory receiverships of insolvent 
 corporations, still, as the statutes on the subject have been ciirsorily re- 
 ferred to, a similar cursory glance afthe recent decisions bearing on the 
 subject, though without professing to go fully into it, may not be inap- 
 propriate. 
 
 See generally, as to cases of insolvent banlis. Matter of Beoiproeity 
 Bank 22 N". Y., 1 ; In re KnicherbocTcer Banh, 10 How., 341 ; In re 
 Empire City Bank, 10 How., 498; in sam,e matter, 6 Abb., 385 ; 4 
 Abb., 118 ; The Bowery Bank case, 16 How., 56 ; 5 Abb., 415 ; In re 
 Empire City Bank, 18 N". T., 199; 8 Abb., 192, note; Jones vs. 
 HobiMson, 26 Barb., 310. 
 
 As to proceedings against insolvent corporations in general, Oonro vs. 
 Gray, 4 How., 166 ; Dambmann vs. The Mnpire Mill, 12 Barb., 341. 
 A receivership effects per se a dissolution. Fuller vs. Waster Fire In- 
 surance Company, 12 How., 293 ; Bangs vs. Mcintosh, 23 Barb., 591. 
 As to the effect of the accompanying sequestration, Corning vs. The 
 Mohawk Valley Insurance Gompamy, 11 How., 190 ; Angell vs. Sils- 
 Iv/ry, 19 How., 48 ; Bangs vs. Mcintosh, swpra ; Mann vs. Pentz, 3 
 
540 APPOINTMENT OF KECEIVEE, ETC. § 119. 
 
 Comst., 415; Bcmkin vs. EIMott, 16 IST. T., 3Y7; affirming 14 How., 
 339 ; Brvnton vs. Wood, 19 How., 162. 
 
 The receiver, in such cases, is bound by, and cannot disaffirm any 
 lawful acts of the late corporation. Eminet vs. Reed, 4 Seld., 312. Nor 
 can he plead for them the defence of usury. Curtis vs. Lecuvitt, 15 
 ]Sr. X., 9 ; Same case, 17 Barb., 309 ; Hyds vs. Lynde, 4 Oomst., 387 ; 
 Brouwer vs. Ha/rbeeh, 1 Duer, 114. 
 
 But by their illegal acts he is not bound, and may impeach them. 
 Oillett vs. Moody, 3 Comst., 479 ; Talmage vs. Pell, 3 Seld., 328 ; Oil- 
 lett vs. Phillips, 3 Kern., 114. This principle is not impeached, though, 
 on collateral points, these decisions are questioned and reviewed in 
 LeoAiitt vs. Blatchford, 17 JST. Y., 521. 
 
 As to the power of the receiver of a mutual insurance company to 
 make assessments on premium notes, vide Bangs vs. Oray, 2 Kern., 
 477 ; reversing 16 Barb., 264 ; Shaugnessey vs. The Pensselaer Insurance 
 Comj>am,y, 21 Barb., 605 ; Hyatt vs. McMahon, 25 Barb., 457 ; B&ven- 
 dorf vs. Beardsl^y, 23 Barb., 656. As to restrictions on this power, 
 and the necessity of its regular exercise, vide Bangs vs. Mcintosh, 23 
 Barb., 591 ; Williams vs. Babooch, 25 Barb., 109 ; Williams vs. lakey, 
 15 How., 206 ; In re Cam;pbell, 13 How., 481 ; Bell vs. Shibley, 33 
 Barb., 610. As to when an assessment will not be necessary on a note, 
 indorsed over before losses accrued, vide White vs. Haight, 16 N.T., 310. 
 
 As to the discharge of a receivership, on proof of restored solvency, 
 vide Terry vs. Banh of Central Mew York, 15 How., 445. As to its de- 
 nial on an insufficient application, see Livingston vs. The BanJc of New 
 York, 26 Barb., 304 ; 5 Abb., 338. 
 
 When proceedings of this nature have once been instituted by the 
 attorney-general, it is not in his power to discontinue them. That dis- 
 cretion rests with the comptroller. In re Mechanics Fire Insurance 
 Company, 5 Abb., 444. 
 
 The same case is authority that the receiver, in these proceedings, 
 should be required to give security in all cases. 
 
 ■ § 119. Other Provisional Remedies. 
 
 The remedies provided by the latter part of the section, in relation 
 to funds or property admitted by a defendant to be in his possession, 
 and for the making and enforcement of an order for their deposit or de- 
 livery ; and likewise those by which the satisfaction of an admitted 
 portion of a partially disputed claun may be enforced, will hereafter be 
 considered in their appropriate place, and in connection with the pro- 
 ceedings in that stage of the action. 
 
 The remainder of the old provisional remedies have fallen into dis- 
 
APPOINTMENT OF EECEIVER, ETC. — § 119. 541 
 
 use, and seem to be formally swept away by the omission of the former 
 general reservation, on the amendment of 1852. In cases, however, in 
 which a failure of justice would otherwise occur, they may still be held 
 as existent, under the general saving clause in section 408. 
 
 The writ of suppliGOAyit, it seems, had not ceased to exist as a provis- 
 ional remedy, under the Code of 1849. Forrest vs. Forrest, ?> How., 
 125 ; 10 Barb., 46 ; 3 C. R., 141 ; 1 9 L. O., 89. 
 
 The questions as to that of ne exeat have already been considered 
 under the head of Arrest. 
 
BOOK VI. 
 
 CHAPTER I. 
 
 OF THE PLEADINGS, GEKERALLT OONSIDEEED. 
 
 Preliminary Observations. 
 
 The present division of the work, and those immediately succeeding, 
 will be devoted to this all-important matter. It will be treated first in 
 its more extended aspect, as respects the principles and forms appU- 
 cable to pleading in general, whether afiirmative or responsive. This 
 branch of the question forms the subject of the present book. The 
 minor details, as applicable to each particular stage, will be considered 
 in those which follow. 
 
 § 120. Statutory Provisions. 
 
 The portion of the Code by which the pleadings in an action are 
 regulated, is contained in title VI., part II., consisting of six chapters. 
 Part of these provisions are of general, part of particular application. 
 The author has, on reflection, considered it the more convenient course 
 to cite the whole of that chapter at the outset, recalling the attention 
 of the student to those portions of it by which specific pleadings are 
 regulated, in the subsequent chapters, when necessary. 
 
 Before entering, however, upon the citation of the chapter in ques- 
 tion, two other provisions demand also a special reference, as inti- 
 mately connected with the subject of the present book. 
 
 The first of these provisions is contained in the title and preamble of' 
 the measure itself, expressing its general intention. 
 
 They run thus. The title is : 
 
 An Act to simplify and abridge the practice, pleadings, and proceedings 
 of the Courts in this state. 
 
 The preamble : 
 
 Whereas, it is expedient that the present forms of actions and pleadings, 
 
ot PLEADmGs. — § 120. 543 
 
 in cases at common law, should be abolislied ; that the distinction between 
 legal and equitable remedies should no longer continue, and that an uniform 
 course of proceeding, in all cases, should be established, therefore, &c. 
 
 The second provision alluded to is contained in section 69 (62), (the 
 . first section of part II.,) which carries out the general abolition, proposed 
 in the preamble. It runs thus : 
 
 § 69. (62.) The distinction between actions at law, and suits in equity, 
 and the forms of all such actions and suits heretofore existing, are abolished ; 
 and there shall be in this State, hereafter, but one form of action for the 
 enforcement or protection of private rights, and the redress of private 
 wrongs, which shall be denominated a civU action. 
 
 Dates from 1849. The same in 1848, ezoept that the prevention of private ■wrongs was 
 referred to as well as their redress. 
 
 The germ of this radical and important change in the formal admin- 
 istration of justice within this state, will he found in the provision of 
 the Constitution, adverted to at the close of this section. 
 
 We now proceed to the citation of the title of the Code above 
 referred to. 
 
 TITLE VI. 
 
 Of the Pleadings in Civil Actions. 
 
 Chaptee I. The Complaint. 
 n. The Demurrer, 
 m. The Answer. 
 IV. The Reply. 
 V. General Rules of Pleading. 
 VI. Mistakes in Pleading and Amendments. 
 
 Chapter I. 
 27ie Complaint. 
 
 § 140. (118.) All the forms of pleading heretofore existing, are abolished ; 
 and, hereafter, the forms of pleading in civil actions, in courts of record, and 
 the rules by which the suiEciency of the pleadings is to be determined, are 
 those prescribed by this act. 
 
 ' Dates, as it stands, from 1852, but the substance was in the original Code, v?ith a verbal 
 change in 1849. , 
 
 § 141. (119-) The first pleading on the part of the plaintiff, is the com- 
 plaint. 
 
 8 142. (120.) The complaint shall contain: 
 
 1 . The title of the cause, specifying the name of the court in which the , 
 action is brought, the name of the county in which the plaintiff desires the 
 
544 OF PLEADINGS. — § 120, 
 
 trial to be had, and the names of the parties to the action, plaintiff and 
 defendant. 
 
 2. A plain and concise statement of the facts constituting a cause of 
 action, without unnecessary repetition. 
 
 3. A demand of the relief to which the plaintiff supposes himself entitled. 
 If the recovery of money be demanded, the amount thereof shall be stated. 
 
 The introduction and first subdivision of this section have come down unchanged. 
 
 The second stood thus, in 1848 and 1849 : 
 
 " 2. A statement of the facts constituting the cause of action, in ordinary and concise 
 language, without repetition, and in such a manner as to enable a person of common under- 
 standing to know what is intended." 
 
 In 1851, it was amended, as it now stands. 
 
 The last subdivision has come down unaltered. 
 
 Chaptee n. 
 The Demurrer. 
 
 § 143. (121.) The only pleading on the part of the defendant, is either a 
 demurrer or an answer. It must be served within twenty days after the 
 service of the copy of the complaint. 
 
 § 144. (122.) The defendant may demur to the complaint, when it shall 
 appear upon the face thereof, either — 
 
 1. That the court has no jurisdiction of the person of the defendant, or the 
 subject of the action ; or, 
 
 2. That the plaintiff has not legal capacity to sue; or, 
 
 3. That there is another action pending between the same parties, for the 
 same cause ; or, 
 
 4. That there is a defect of parties, plaintiff or defendant ; or, 
 
 5. That several causes of action have been improperly united ; or, 
 
 6. That the complaint does not state facts sufficient to constitute a cause 
 of action. 
 
 § 145. (123.) The demurrer shaU distinctly specify the grounds of objec- 
 tion to the complaint. Unless it do so, it may be disregarded. It may be 
 taken to the whole complaint, or to any of the alleged causes of action stated 
 therein. 
 
 In 1848, this section closed with the word "disregarded." The concluding sentence was 
 added in 1849. 
 
 In 1848, the following section stood here : 
 
 " § 124. After a demurrer, the plaintiff may amend, of course, and. without costs, within 
 twenty days. Upon the decision of the demurrer, the court may, if justice require it allow 
 the plaintiff to amend, or the defendant to withdraw his demurrer, and to answer." 
 
 In 1849, this section was stricken out. The cases are provided for by section 112. 
 
 § 146. (125.) If the complaint be amended, a copy thereof- must be served 
 on the defendant, who must answer it within twenty days, or the plaintiff, 
 upon filing with the clerk, on proof of the service, and of the defendant's 
 omission, may proceed to obtain judgment, as provided by section 246 ; but 
 
or PLEADINGS. — § 120. 545 
 
 ■where an application to the court for judgment is necessary, eight days' 
 notice thereof must be given' to the defendant. 
 
 Settled in its present form in 1849. Has come down uncorrected, notwithstanding the man- 
 ifest superfluity of the word "on" before "proof of the seryice." 
 
 § 14Y. (126.) When any of the matters enumerated in section 144 do 
 not appear upon the face of the complaint, the objection inay be taken by 
 answer. 
 
 § 148. (127.) If no such objection be taken, either by demurrer or answer, 
 the defendant shall be deemed to have waived the same, excepting only the 
 objection to the jurisdiction of the court, and the objection that the com- 
 plaint does not state facts sufScient to constitute a cause of action. 
 
 Dates from 1849, when the original section was slightly condensed. 
 
 Chaptee m. 
 The Answer. 
 
 § 149. (128.) The answer of the defendant must contain: 
 
 1. A general or specific denial of each material allegation of the complaint 
 controverted by the defendant, or of any knowledge or information thereof 
 suiEcient to form a belief; 
 
 2. A statement of any new matter constituting a defence or counter-claim^ 
 in ordinary and concise language, without repetition. 
 
 Has been the subject of the following changes : 
 
 In 1848, the denial was to be specific, or of knowledge sufficient to form a belief. 
 
 The second subdivision called for a statement "in such a manner as to enable a person of 
 common understanding to know what is intended." 
 
 In 1849, the denial was to be general or specific, or according to information and belief, or 
 of any knowledge sufficient to form a belief. 
 
 In 1851, the denial was again required to be specific, according to knowledge, information, 
 or belief, or of any knowledge or information sufficient to form a belief. 
 
 The second clause was altered as it stands now, except that the word "set-off" stood 
 instead of " counter-claim," and the repetition was not to be "unnecessary." 
 
 In 1852, the form was fixed as it now stands. 
 
 8 150. (129.) The counter-claim mentioned in the last section, must be one 
 existing in favor of a defendant, and against a plj,intiff, between whom a 
 several judgment might be had in the action, and arising out of one of the 
 following causes of action : 
 
 1. A cause of action, arising out of the contract or transaction set forth in 
 the complaint as the foundation of the plaintiff's claim, or connected with 
 the subject of the action. 
 
 2. In an action arising on contract, any other cause of action, arising also 
 on contract, and existing at the commencement of the action. 
 
 The defendant may set forth, by answer, as many defences and counter- 
 claims as he may have, whether they be such as have been heretofore de- 
 nominated legal or equitable, or both. They must each be separately stated. 
 
 Vol. I.— 36 
 
546 OF PLEADIKGS. — § 120. 
 
 and refer to tbe causes of action whioli they are intended to answer, in such 
 manner that they may be intelligibly distinguished. 
 
 The earlier portions of this section, so far as it provides in relation to the subject of ooimter- 
 claim, were first inserted on the amendment of 1852. 
 
 The concluding sentence formed the section hefore that year, the provisions being less fuU 
 and comprehensive. Verbal changes were made in it in 1849 and 1852, from which latter 
 year, the section dates as it stands. 
 
 § 151. The defen'dant may demur to one or more of several causes of ac- 
 tion stated in the complaint, and answer the residue. 
 
 First inserted in 1849. 
 
 § 152. Sham and irrelevant answers and defences may be stricken out on 
 motion, and upon such terms as the court may in their discretion impose. 
 
 First inserted in 1849, It then stood simply thus : 
 
 " § 152. Sham answers and defences may be stricken out on motion." 
 
 Altered as it stands in 1851. 
 
 In 1848, section 130 stood thus : 
 
 " § 130. If the answer set up new matter, which is not repUed to as provided in the next 
 section, and the action be tried on complaint and answer alone, and judgment be given thereon 
 for the plaintiff, the court may permit the defendant to withdraw, or amend the answer upon 
 such terms as shah be just." 
 
 This provision was wholly stricken out on the amendment of 1849. 
 
 Chaptbe rv. 
 
 The Reply. 
 
 § 153. (131.) When the answer contains new matter constituting a coun- 
 ter-claim, the plaintiff may, within twenty days, reply to such new matter, 
 denying generally or specifically each allegation controverted by him, or any 
 knowledge or information thereof sufficient to form a belief; and he may 
 allege, in ordinary and concise language, without repetition, any new mat- 
 ter, not inconsistent with the complaint, constituting a defence to such new 
 matter in the answer ; and the plaintiff may, in all cases, demur to an an- 
 swer containing new matter, where, upon its face, it does not constitute a 
 counter-claim or defence ; and the plaintiff may demur to one or more of 
 such defences or counter-claims, and reply to the residue. 
 
 And in other cases, when an answer contains new matter, constituting a 
 defence by way of avoidance, the court may, in its discretion, on the de- 
 fendant's motion, require a reply to such new matter ; and, in that case, the 
 reply shall be subject to the same rules as a reply to a counter-claim. 
 
 This section has been the subject of frequent amendments. 
 
 In 1848, the power to reply to new matter was general, with power to insert allegations of 
 new matter not inconsistent with the complaint. 
 
 In 1849, tho phraseology was changed, and a power to demur, for insufficiency, added. 
 
 In 1851, tho whole phraseology of tho section was revised, the power remaining subetan- 
 tially the same as in 1849, save only that denials were to be specific. 
 
OF PLEADIKG8.- 
 
 120 547 
 
 In 1852, the power to reply was restricted to matter constituting a oounter-claim, a general 
 as well as a speciflo denial being made admissible. 
 
 By chapter 44 of 1855, p. 54, the phraseology of the section was revised, and a general 
 power of demurring to the answer was conferred. 
 
 In 1857, the section was again remodelled, and fixed in the form in which it now stands, 
 save only as regards the last sentence, empowering the court to order a reply in certain 
 cases, which was added in 1860. 
 
 § 154. K the answer contain a statement of a new matter constituting 
 a defence, and the plaintiff fail to reply or demur thereto within the time 
 prescribed by law, the defendant may move, on a notice of not less than ten 
 days, for such judgment as he is entitled to upon such statement, and, if the 
 case require it, a writ of inquiry of damages may be issued. 
 
 First inserted on the amendment of 1849. Has come down unchanged, though, since 1852, 
 inconsistent with the wording of section 153. The addition made to the latter section in 1860 
 restores it however, to comparative consistency. 
 
 § 165. If a reply of the plaintiff to any defence set up by- the answer of 
 the defendant be insufficient, the defendant may demur thereto, and shall 
 state the grounds thereof. 
 
 First inserted as it stands in 1849, The same observation applies to it as to the last, but in 
 a somewhat modified degree. 
 
 Chapter V. 
 
 General Hides of Pleading, 
 
 In 1848 and 1849, this chapter began with a section aa follows: 
 
 " § 156. (133.) No other pleading shall be allowed than the complaint, answer, reply, and 
 demurrer." 
 
 In 1848, the end ran, " than the complaint, demurrer, answer, and reply.'' 
 
 On the amendment of 1851, the section was stricken out, and ihe first sentence of section 
 156 of 1849 (132 of 1848), taken from that section and substituted for it, as under. 
 
 § 156. (133.) Every pleading in a court of record must be subscribed by 
 the party, or his attorney, and, when any pleading is verified, every subse- 
 quent pleading, except a demurrer, must be verified also. 
 
 In 1848, this formed part of section 133. Verification was then necessary as to all plead- 
 ings, except demurrer. In 1849, it rested as now, in option in the first instance. In both 
 years the section'went on to prescribe the mode of verification. 
 
 In 1851, this portion was separated and passed in its present form. 
 
 § 157. (133.) The verification must be to the effect that the same is true 
 to the knowledge of the person making it, except as to those matters stated 
 on information and belief, and as to those matters he believes it to be true ; 
 and must be by the affidavit of the party, or, if there be several parties 
 united in interest, and pleading together, by one at least of such parties, ac- 
 quainted with the facts, if such party be within the county where the attor- 
 ney resides, and capable of making the affidavit. The affidavit may also be 
 made by the agent or attorney, if the action or defence be founded upon a 
 written instrument for the payment of money only, and such instrument be 
 
648 OF PLEADINGS. — § 120. 
 
 in the possession of the agent or attorney ; or if all the material allegations 
 of the pleading be within the personal knowledge of the agent or attorney. 
 When the pleading is verified by any other person than the party, he shall 
 set forth in the affidavit his knowledge, or the grounds of his belief on the 
 subject, and the reasons why it is not made by the party. When a corpo- 
 ration is a party, the verification may be made by any officer thereof; and, 
 when the State, or any officer thereof in its behalf is a party, the verifica- 
 tion may be made by any person acquainted with the facts. The verifica- 
 tion may be omitted, when an admission of the truth of the allegation 
 might subject the party to prosecution for felony. And no pleading can 
 be used in a criminal prosecution against the party, as proof of a fact 
 admitted or alleged in such pleading. 
 
 This section -vras separated from the previous portion, and passed in its present form, on 
 the amendment of 1851. 
 
 In 1848, the provision was much more simple, all that was' required being a statement of 
 belief that the pleading was true, by the party, his agent, or attorney. Verification might be 
 omitted, where the party would be privileged from testifying as a witness. 
 
 In 1849, the provision substantially assumed its present form, being revised and extended 
 in 1851. 
 
 In 1854, the following special statute was also passed, on the subject of verification, (chapter 
 75, p. 153), restoring a portion of the original system of 1-848. 
 
 " § 1. The verification of any pleading, in any court of record in this state, may be omitted, in 
 all cases where the party called upon to verify would be privileged from testifying as a witness 
 to the truth of any matter denied by such plea(^ing." 
 
 In 1848, tnere followed at this place in the Code: 
 
 "§ 134. Neither presumptions of law 'nor matters of which judicial notice is taken, need 
 be stated in a pleading.' " 
 
 In 1849, this was stricken out. i 
 
 § 158. (135.) It shall not be necessary for a party to set forth in a plead- 
 ing the items of an account therein alleged ; but he shall deliver to the ad- 
 verse party, within ten days after a demand thereof in writing, a copy of 
 the account, which, if the pleading is verified, must be verified by his own 
 oath, or that of his agent or attorney, if within the personal knowledge of 
 such agent or attorney, to the efifect that he believes it to be true, or be pre- 
 cluded from giving evidence thereof. The court, or a judge thereof, or a 
 county judge, may order a further account when the one delivered is defec- 
 tive, and the court may, in all cases, order a bill of particulars of the claim 
 of either party to be furnished. 
 
 In 1848, this section only applied to accounts where the items exceeded twenty in number, 
 and the concluding provision was omitted. 
 
 In 1849, the restriction as to items was stricken out, and the germ of the last sentence was 
 subjoined, but the word "not" was omitted in the first line. 
 
 In 1851, this manifest error was corrected, and the section passed in its present form. 
 
 § 159. (136.) In the construction of a pleading, for the purpose of deter- 
 mining its effect, its allegations shall be liberally construed, with a view to 
 substantial justice between the parties. 
 
 § 160. (137.) If irrelevant or redundant matter be inserted in a pleading. 
 
OF PLEADINGS. — § 120. 549 
 
 it may be stricken out, on motion of any person aggrieved thereby. And 
 when the allegations of a pleading are so indefinite or uncertain that the 
 precise nature of the charge or defence is not apparent, the court may re- 
 quire the pleading to be made definite and certain, by amendment. 
 
 In 1848, this section consisted of the first sentence only. The second was added by amend- 
 ment in 1849. 
 
 § 161. (138.) In pleading a judgment or other determination of a court, 
 or officer of special jurisdiction, it shall not be necessary to state the facts 
 conferring jurisdiction, but such judgment or determination may be stated 
 to have been duly given or made. K such allegation be controverted, the 
 party pleading shall be bound to establish on the trial the facts conferring 
 jurisdiction. 
 
 § 162. (139.) In pleading the performance of conditions precedent in a 
 contract, it shall not be necessary to state the facts, showing such perform- 
 ance, but it may be stated generally, that the party duly performed all the 
 conditions on his part ; and, if such allegation be controverted, the party 
 pleading shall be bound to establish on the trial the facts showing such per- 
 formance. In an action or defence, founded upon an instrument for the 
 payment of money only, it shall be sufficient for the party to give a copy of 
 the instrument, and to state that there is due to him thereon from the ad- 
 verse party, a specified sum, which he claims. 
 
 In 1848 and 1849, this section consisted of the first sentence only, with a trifling verbal 
 change in the latter year. 
 The second division of the section was added by amendment in 1851. 
 
 § 163. (140.) In pleading a private statute, or a right derived therefrom, 
 it shall be sufficient to refer to such statute, by its title and the day of its 
 passage, and the court shall thereupon take judicial notice thereof. 
 
 § 164. (141.) In an action for libel or slander, it shall not be necessary to 
 state in the complaint, any extrinsic facts, for the purpose of showing the 
 application to the plaintiff, of the defamatory matter out of which the cause 
 of action arose ; but it shall be sufficient to state generally, that the same 
 was published or spoken concerning the plaintiff; and, if such allegation be 
 controverted, the plaintiif shall be bound to establish, on trial, that it was 
 so published or spoken. 
 
 § 165. (142.) In the actions mentioned in the last section, the defendant 
 may, in his answer, allege both the truth of the matter charged as defama- 
 tory, and any mitigating circumstances, to reduce the amount of damages ; 
 and, whether he prove the justification or not, he may give in evidence the 
 mitigating circumstances. 
 
 § 166. In an action to recover the possession of property distrained doing 
 
 ■ damage, an answer that the defendant or person by whose command he 
 
 acted, was lawfully possessed of the real property upon which the distress 
 
 was made, and that the property distrained was at the time doing damage 
 
 thereon, shall be good, without setting forth the title to such real property. 
 
550 OF PLEADINGS. § 120. 
 
 Not in the original Code, but inserted, as it stands, on the amendment of 1849. 
 
 § 167. (143.) The plaintiff" may unite in the same complaint several causes 
 of action, whether they be such as have been heretofore denominated legal 
 or equitable, or both, where they aU arise Qut of — 
 
 1. The same transaction, or transactions connected with the same subject 
 of action ; 
 
 2. Contract, express or implied ; or, 
 
 3. Injuries, with or without force, to person and property, or either; or^ 
 
 4. Injuries to character ; or, 
 
 5. Claims to recover real property, with or without damages for the with- 
 holding thereof, and the rents and profits of the same ; or, 
 
 6. Claims to recover personal property, with or without damages for the 
 withholding thereof ; or, 
 
 V. Claims against a trustee, by virtue of a contract, or by operation of law. 
 But the causes of action, so united, must all belong to one of these classes, 
 and must affect all the parties to the action, and not require different places 
 of trial, and must be separately stated. 
 
 In 1848, the first subdivision was omitted, and there were differences in the structure and 
 arrangement of the others. 
 
 In 1849, the first subdivision was added, and the remaining portions changed in phraseol- 
 ogy and arrangement. 
 
 In 1852, the section was again remodelled and passed as it now stands. 
 
 § 168. (144.) Every material allegation of the complaint not controverted 
 by the answer, as prescribed in sectio'n one hundred and forty-nine, and 
 every material allegation of new matter in the answer, constituting a coun- 
 ter-claim, not controverted by the reply, as prescribed in section one hun- 
 dred and fifty-three, shall, for the purposes of the action, be taken as true. 
 But the allegation of new matter in the answer, not relating to a counter- 
 claim, or of new matter in a reply, is to be deemed controverted by the ad- 
 verse party, as upon a direct denial or avoidance, as the case may require. 
 
 Dates from the amendment of 1852. In 1848, the provision was substantially the same, 
 but adapted to the then arrangement of the measure. In 1849, there were some changes 
 made in the wording. 
 
 Chaptee YI. 
 Mistakes in Pleading, and Amendments. 
 
 § 169. (145.) No variance between the allegation in a pleading and the 
 proof, shall be deemed material, unless it have actually misled the adverse 
 party, to his prejudice, in maintaining his action or defence, upon the mer- 
 its. Whenever it shall be alleged, that a party has been so misled, that fact 
 shall be proved to the satisfaction of the court, and in what respect he has 
 been misled ; and thereupon the court may order the pleading to be amend- 
 ed, upon such terms as shall be just. 
 
 Dates as it stands from 1849. The difference from the original provision of 1848 was 
 merely verbal. 
 
OF PLEADINGS. — § 120. 551 
 
 § 170. (146.) Where the variance is not material, as provideil in the last 
 section, the court may direct the fact to be found according to the evidence, 
 or may order an immediate amendment, without costs. 
 
 § IVI. (147.) Where, however, the allegation of the cause of action or de- 
 fence, to -which the proof is directed, is unproved, not in some particular or 
 particulars only, but in its entire scope and meaning, it shall not bo deemed 
 a case of variance within the last two sections, but a failure of proof. 
 
 § 172. (148.) Any pleading may be once amended by the party of course, 
 without costs, and without prejudice to the proceedings, at any time within 
 twenty days after it is served, or at any time before the period for answer- 
 ing it expires ; or it can be so amended at any time within twenty days after 
 the service of the answer or demurrer to such pleading, unless it be made 
 to appear to the court that it was done for the purpose of delay, and the 
 plaintiff or defendant will thereby lose the benefit of a circuit or term for 
 which the cause is or may be noticed ; and if it appear to the court that such 
 amendment was made for such purpose, the same may be stricken out, and 
 such terms imposed as to the court may seem just. In such case a copy of 
 the amended pleading must be served on the adverse party. After the de- 
 cision of a demurrer, either at a general or special term, the court may, in 
 its discretion, if it appear that the demurrer was interposed in good faith, 
 allow the party to plead over, upon such terms as may be just. If the de- 
 murrer be allowed for the cause mentioned in the fifth subdivision of sec- 
 tion 144, the court may, in its discretion, and upon such terms as may be 
 just, order the action to be divided into as many actions as may be neces- 
 sary to the proper determination of the causes of action 'therein mentioned. 
 
 In 1848, the provision was short and simple, merely providing for the right to one amend- 
 ment of course. 
 
 In 1849, the mode of expression was corrected and made more definite. 
 
 In 1851, the provision substantially assumed its present form. 
 
 In 1859, the phraseology of the earlier portion was altered as it now stands. 
 
 § 173. (149.) The court may, before or after judgment, in furtherance of 
 justice, and on such terms as may be proper, amend any pleading, process, 
 or proceeding, by adding or striking out the name of any party, or by cor- 
 recting a mistake in the name of a party, or a mistake in any other respect, 
 or by inserting other allegations material to the case, or, when the amend- 
 ment does not change substantially the claim or defence, by conforming the 
 pleading or proceeding to the facts proved. 
 
 In 1848, this provision was in substance the same, but with several verbal differences. 
 In 1849, several changes in expression were made, and the substance of the present section 
 114 was added. 
 In 1852, the section assumed its present form. 
 
 § 174. The court may likewise, in its discretion, and upon such terms as 
 may be just, allow an answer or reply to be made, or other act to be done 
 after the time limited by this act, or by an order enlarge such time ; and 
 may also, in its discretion, and upon such terms as may be just, at any time 
 
S52 OP PLEADINGS. § 120. 
 
 within one year after notice thereof, relieve a party from a judgment, order, 
 or other proceeding, taken against him, through his mistake, inadvertence, 
 or surprise, or excusable neglect : and may supply an omission in any pro- 
 ceeding ; and whenever any proceeding taken by a party fails to conform in 
 any respect to the provisions of this Code, the court may, in like manner and 
 upon like terms, permit an amendment of such proceeding, so as to make it 
 conformable thereto. 
 
 In the Code of 1848 this provision -vvas wholly wanting. 
 
 It was first inserted in 1849 as part of section 173, with some verbal diEferences from its 
 present form. 
 
 In 1851, the section of 1849 was divided, and this sentence separated, and passed as section 
 174 as it now stands. 
 
 § 175. (150.) When the plaintiff shall be ignorant of the name of a de- 
 fendant, such defendant may be designated in any pleading or proceeding, 
 by any name ; and when his true name shall be discovered, the pleading or 
 proceeding may be amended accordingly. 
 
 § 176. (151.) The court shall, in every stage of an action, disregard any 
 error or defect in the pleadings or proceedings, which shall not affect the 
 substantial rights of the adverse party ; and no judgment shall be revarsed 
 or affected by reason of such error or defect. 
 
 § 177. (152.) The plaintiff and defendant respectively, may be allowed, 
 on motion, to make a supplemental complaint, answer, or reply ; alleging 
 facts material to the case, occurring after the former complaint, answer, 
 or reply ; or of which the party was ignorant when his former pleading was 
 made. 
 
 The words at the close were first inserted on the amendment of 1849. 
 
 The above are all the provisions of the Code whicli bear directly 
 upon the subject of pleading. 
 
 Title TV. of part II., which provides as to the place of trial of an 
 action, when brought, bears a close relation to the same subject, inas- 
 much as that place of trial must be originally fixed, at the time of 
 drawing up the complaint, and must, as provided by subdivision 1 
 of section 142, be specified upon the face of that document. The con- 
 sideration of this branch of the subject, and the citation of the pro- 
 visions relating to it will, however, be reserved for the next book, 
 where it will be separately treated. 
 
 The following are the provisions of the rules, bearing directly upon 
 the subject of pleading. 
 
 Eule 19. (86.) In all cases of more than one distinct cause of action, de- 
 fence, counter-claim, or reply, the same shall not only be separately stated, 
 but plainly numbered. 
 
 Eule 20, providing for the marking of the folios in the margin, and 
 the indorsement with the title of the cause, and also providing that 
 
OF PLEADINGS. § 121. 553 
 
 all papers must be legibly written, must of course be especially at- 
 tended to in so important a part of the case as tbe pleadings. This 
 provision has been already cited and considered generally in book lY. 
 
 Rule 22, having reference to the necessary formalities on an applica- 
 tion for time to answer or demur, will be cited and considered in its 
 place in the succeeding book. 
 
 Rule 50 provides thus, in relation to motions under section 160 : 
 
 Rule 60. (40:) Motions to strike out of any pleading, matter alleged to be 
 irrelevant or redundant, and motions to correct a pleading, on the ground 
 of its being " so indefinite or uncertain, that the precise nature of the charge 
 or defence is not apparent," must be noticed, before demurring or answer- 
 ing the pleading, and within twenty days from the service thereof. 
 
 Before passing on to the consideration of the working of the above 
 provisions, it may not be out of place to glance at the origin of the 
 system thus established. It will be found in the Constitution of 1846, 
 article VI. 
 
 Ry section 3, it is thus provided : 
 
 There shall be a Supreme Court, having general jurisdiction in law and 
 equity. 
 
 By section 5, thus : 
 
 The legislature shall have the same powers to alter the jurisdiction and 
 proceedings in law and equity as they have heretofore possessed. 
 
 ■ By section 10 : 
 
 The testimony in equity cases shall be taken in like manner as in cases 
 at law. 
 
 And lastly, by section 24 : 
 
 The legislature, at its first session after the adoption of the Constitution, 
 shall provide for the appointment of three commissioners, whose duty it shall 
 be to revise, reform, simplify, and abridge the rules and practice, pleadings, 
 forms, and proceedings of the courts of record in this state, and to report 
 thereon to the legislature, subject to their adoption and modification from 
 time to time. 
 
 The Code is the result of the report of the commissioners thus ap- 
 pointed ; the numerous amendments in it, from time to time, that of 
 the power of adoption and modification thus vested in the legislature. 
 
 § 121. System established ly Code. 
 
 Of the various changes effected by the Code, that in the system of 
 pleading is at once the most radical and the most searching. 
 
 In the present section, the general characteristics of this change will 
 be adverted to ; in those which follow, its details. 
 
554 OF PLEADING-S. — § 121. 
 
 Before entering upon the former branch of consideration, a recapitu- 
 lation of the provisions of the statute which bear upon it will be con- 
 venient. 
 
 The object of the Code is to simplify and abridge. 
 
 Its intent — 
 
 To abolish the present forms of actions and pleadings in cases at 
 common law; and also the distinction between legal and equitable 
 remedies. 
 
 And to establish an uniform course of proceeding in all cases. See 
 title and preamble. 
 
 Section 69 goes still further, and abolishes — 
 
 1. The distinction between actions at law and suits in equity ; 
 
 2. The forms of all such actions and suits theretofore existing ; 
 
 And declares that thereafter there shall be but one form of action, 
 denominated a civil action. 
 
 Section 140 abolishes all the forms of pleading theretofore existing ; 
 
 And directs that the forms of pleading in civil actions, and the rules 
 by which their sufficiency is determined, are thereafter to be those of 
 the Code ; and, lastly. 
 
 By sections 142, 143, 149, and 153, the nomenclature of these plead- 
 ings is established. That of the former Court of Chancery is generally 
 adopted ; that of the courts of common law generally abandoned. 
 
 Care must be taken, however, not to attribute to these changes, 
 sweeping and important as they unquestionably are, a wider latitude 
 than that which legitimately belongs to them. The Code, in its legiti- 
 mate bounds, is confined to the subject of procedure only. To carry its 
 eifect beyond those bounds, is an error, not uncommon, but manifest. 
 
 The forms of common-law pleading are, no doubt, completely swept 
 away. 
 
 So are the distinctions, in mere form, between the remedy of a plain- 
 tiff at law, and his remedy in equity. 
 
 The forms of equity pleading are also in terms abolished. The main 
 features of that branch of procedure are, however, preserved, and re- 
 established by specific enactment. 
 
 The system thus established is, in its formal characteristics, uniform, 
 and is applicable to all actions, legal or equitable. 
 
 But, in essentials, the distinctions between the legal and equitable 
 rights of suitors, between the appropriate mode of allegation of those 
 rights, and between the remedies proper for their enforcement, remain as 
 they were. These are neither abolished, nor are they capable of abolition. 
 
 These general propositions have been made, from time to time, the 
 subject of so much discussion, and of such a cloud of decisions, that it 
 would be an almost hopeless task, and certainly a great waste of time, 
 
OF PLEADINGS. — § 121. 555 
 
 to attempt to advert to all which bear, either directly or by way of 
 dicta, upon the subject. The citations below will, therefore, be con- 
 fined almost entirely to those pronounced in the court of last resort, 
 and to some few others, which, from their peculiar pertinency, seem to 
 demand a more specific notice. 
 
 (a.) Unifoemitt of Genekal System. 
 
 In Giles vs. Lyon, 4 Comst., 600 ; ICE. (IST. S.), 25Y, the impor- 
 tance of the preamble of the Code, and of keeping it in view, in inter- 
 preting its provisions, is strongly enforced, and the effect of the pro- 
 visions above cited thus defined : " They," i. e., law and equity, " were 
 to be blended and formed into a single system, which should combine 
 the principles peculiar to each, and be administered thereafter through 
 the same forms, and under the same appellations." 
 
 The following further dicta show clearly the sense of the Court of 
 Appeals upon the subject : 
 
 " The intent of the legislature is very clear, that all controversies 
 respecting the subject-matter of the litigation should be determined in 
 one action, and the provisions are adapted to give effect to that intent." 
 An equitable defence was, therefore, held admissible to an action to 
 enforce a judgment. Ddbson vs. Pearce, 2 Kern., 156 (165) ; affirming 
 same case, 1 Duer, 142 ; 10 L. 0., 170. See also Crary vs. Ooodman, 
 2 Kern., 266 (268), stating the doctrine in that case, as follows : " The 
 question in an action, is not whether the plaintiff has a legal right or 
 an equitable right, or the defendant a legal or an equitable defence 
 against the plaintiff's claim, but whether, according to the whole law 
 of the land applicable to the case, the plaintiff makes out the right 
 which he seeks to establish, or the defendant shows that the plaintiff 
 ought not to have the relief sought for." 
 
 " As the courts of the state are now constituted, they apply legal and 
 equitable rules and maxims indiscriminately in every case. In a suit 
 which could not formerly have been defended at law, but as to which 
 the defendant would have been relieved in equity, he can now have the 
 like relief in the first action." " It was always theoretically unreason- 
 able (though practically less objectionable'than has been supposed) that, 
 in one branch of the judiciary, the court should hold that the party 
 prosecuted had no defence, while, in another branch, the judges should 
 decide that the plaintiff had no right to recover. The authors of the 
 Code aiming at greater theoretical perfection, have abolished the 
 anomaly ; and now, when an action is prosecuted, we inquire whether, 
 taking into consideration all the principles of law and equity bearing 
 upon the case the plaintiff ought to recover." New York Central 
 
556 OF PLEADINGS. § 121. 
 
 Insurance Company vs. National Protection Insurance Company, 4 
 Kern., 85 (90, 91). 
 
 In Phillips vs. Oorham, lY N. Y., 270, it was held, upon similar 
 principles, that a plaintiff may assert his claim in an action, both upon 
 legal grounds, and also upon such as, before the Code, were purely of 
 equitable cognizance. See also New York Ice Company vs. North 
 Western Insuranoe Company of Oswego, 25 N. Y., 357 (360) ; 21 How., 
 296 ; 12 Abb., 414 ; and Marquat vs. Marquat, 2 Kern., 336. 
 
 " Whether the action depend upon legal principles or equitable, it is 
 still a civil action, to be commenced and prosecuted without reference 
 to this distinction." If, under the former system, a given state of facts 
 entitled a party to a decree in equity in his favor, the same state of 
 facts, in an action prosecuted under the Code, will entitle him to a 
 judgment to the same effect. If the facts are such that, at the common 
 law the party would have been entitled to judgment, he will, by pro- 
 ceeding as the Code requires, obtain the same judgment. Cole vs. 
 Reynolds, 18 IS". Y., 74 (76). See likewise ^«-o vs. WooCbjoorth, 4 Comst., 
 249 (253) ; ICE. (N. S.), 262. 
 
 Again, in Emery vs. Pease, 20 IST. Y., 62 (64), the rule is thus stated : 
 " A suit does not, as formerly, fail, because the plaintiff has made a mis- 
 take as to the form of the remedy. If the case which he states entitles 
 him to any remedy, either legal or equitable, his complaint is not to be 
 dismissed, because he has prayed for a judgment to which he is not 
 entitled." 
 
 This class of cases clearly overrule the stricter views taken by the 
 prevailing opinion in Haire vs. Baker, 1 Seld., 357, controverted by 
 Foot, J. (p. 363) ; and also in the opinion of Selden, J., in Reubens 
 vs. Joel, 3 Kern., 488 (491, et seq.), so far as that opinion seeks to 
 impeach this action of the legislature, on the ground of the aUeged 
 unconstitutionality of section 69. 
 
 See also the same general principles laid down in the eoi.U'ts below, in 
 Rishop vs. Houghton, 1 E. D. Smith, 566 (572) ; General Mutual In- 
 surance Company vs. Benson, 5 Duer, 168 (176) ; Arndt vs. Williams, 
 16 How., 244; Grant ys. Quiok, 5 Sandf., 612; Gardner yb. Oliver 
 Zee's Rank, 11 Barb., 558 ; Hinman vs. Judson, 13 Barb., 629 ; Mar- 
 quat vs. Marquat, 7 How., 417 (422), and numerous other cases. See 
 likewise the more recent dicta in Merritt vs. Carpenter, 30 Barb., 61 
 (67) ; Eartt vs. Harvey, 19 How., 245 (257) ; 10 Abb., 321 ; New York 
 Ice Comparvy vs. NorthWestern Insurance Company, 31 Barb., 72; 20 
 How., 424 ; 10 Abb., 34 ; Auburn City Rank vs. Leonard, 20 How., 
 193. As to the choice of alternative remedies imder either system, see 
 Corning Y&. Troy Iron amd Nail Factory, 34fiarb., 485 ; 22 How., 217, 
 
OF PLEADINGS. — § 121. 657 
 
 (5.) But without Confusion of Peevious Distinctions m Essentials. 
 
 Among the cases and dicta, by which this proposition is established, 
 the following present themselves for more special notice : 
 
 The broad principle that the Code has failed to abolish, but has, on 
 the contrary, recognized and provided for the essential differences which 
 distinguished the two classes of legal and equitable actions, and that 
 those distinctions only, which existed in mere matters of form, are 
 really affected, is fully laid down and legal rules applied, the action 
 being one upon a strict legal liability, in Voorhis vs. Child'' s Executors, 
 IT IS". T., 354 (358, 359, 361); affirming same case, 1 Abb., 43. 
 " Cases" (it is said by Selden, J.) " are found so naturally to arrange 
 themselves according to the classification which existed prior to the 
 Code, that the distinction between legal and equitable actions is nearly 
 as marked upon all the papers presented to the courts as formerly. 
 The same names are not used, but the nature of the cases has not been 
 changed, nor have the distinctions been abrogated." 
 
 In Cole vs. Reynolds, 18 ]^. T., Y4 (76), above cited, after stating the 
 general proposition, that the distinction between actions at law, and 
 suits in equity is abolished by the Code, it is added : " But while this 
 is so, in reference to the forms and course of proceeding in the action, 
 the principles by which the rights of the parties are to be determined 
 remain unchanged." 
 
 See also, as to the application of the common-law principle as to 
 limitations, in a suit substantially founded on a debt, though in form to 
 enforce an incident equitable lien. Bm-st vs. Carey, 15 N. T., 505. 
 
 See, likewise, Reubens vs. Joel, 3 Kern., 488 (498). Instead of being 
 abolished, the essential distinction between actions at law and suits 
 in equity are, by sections 253, 254, 275, and 276, expressly preserved. 
 Actions at law are to be tried by a jury. Suits in equity by the court. 
 Damages are to be given, as heretofore, in the former, and specific relief 
 in the latter. 
 
 And in Ooulet vs. Asseler, 22 N. T., 225 (228), the same principles 
 are not merely restated, but also applied to the distinction between 
 different forms of an action at common law, for a direct, as distinguished 
 from a consequential, injury. The rule is stated thus : " Although the 
 Code has abolished all distinctions between the mere forms of actions, 
 and every action is now in form a special action*on the case ; yet actions 
 vary in their nature, and there are intrinsic differences between them 
 which no law can abolish." Again : " The mere formal differences 
 between such actions are abolished. The substantial differences remain 
 as before." See, in Supreme Court, Barnes vs. Willett, 19 How., 564 ; 
 11 Abb., 225. 
 
558 OP PLEADINGS. — § 121. 
 
 The cases in the courts below, bearing upon this point, are numer- 
 ous. A few may advantageously be noticed, but to cite all, would be, 
 as above remarked, practically useless, and a real waste of time. 
 
 Amongst the more prominent may be noticed Bishop vs. Houghton, 
 1 E. D. Smith, 566, holding that while there is only one form of pro- 
 ceeding, whether the relief which a party seeks be legal or equitable, 
 or both, still the inherent diiference between legal and equitable relief 
 still exists, and must exist, and the plaintiff must so frame his action 
 as to enable the court to administer the particular relief to which he is 
 entitled. 
 
 Similar principles are laid down in Arndt vs. Williams, 16 How., 
 244r. That case also ackno'yt'ledges the rule that, in cases where the 
 equitable power of the court is exercisable, that power and jurisdiction 
 is the. paramount power, and the court, in the exercise of its equitable 
 jurisdiction, may and does control legal rights. See also Willia/ms vs. 
 Ayrault, 31 Barb., 364. 
 
 Where the party has a common-law remedy which is sufficient in ' 
 itself, a court will not interfere by suit in equity. Vide Heywood vs. 
 The City of Buffalo, 4 Kern., 534 ; WUson vs. Mayor of New York, 4 
 E. D. Smith, 675 ; 1 Abb., 4 ; Kelsey vs. King, 32 Barb., 410 ; 11 Abb., 
 180 ; Martt vs. Harvey, 19 How., 245 ; 10 Abb., 321, and many other 
 cases. 
 
 And, notwithstanding the attenipt to combine law and equity, the 
 action and administration of the court is, it has been held, perfectly dis- 
 tinct in affording legal or equitable remedies, as much so as when those 
 remedies were to be sought in different courts. Onderdonk vs. Matt, 
 34 Barb., 106. 
 
 An action in the nature of a common-law action for debt, cannot be 
 maintained by one firm against another, having a common member ; 
 when justice cannot be done, without an accounting on equitable prin- 
 ciples. EngUs vs. Furniss, 4 E. D. Smith, 587. 
 
 jN"or, prior to the recent changes, could such an action be maintained 
 on the promissory note of 2. feme covert. The proceeding must be of an 
 equitable nature, and in rem. Cobine vs. St. John, 12 How., 333. 
 
 That a common-law judgment for damages cannot be taken on the 
 trial of an equitable action, is held in 8age vs. Mosher, 28 Barb., 287, 
 and New York Ice Compamy vs. Narth Western Insurance Company, 
 31 Barb., 72 ; 20 How.* 424 ; 10 Abb., 34. See also, as to differences 
 in mode of trial, lawrence vs. Fowler, 20 How., 407 (415). 
 
 , The same general principles as to the indestructibility of the natural 
 and inherent distinctions between legal and equitable proceedings, 
 essentially considered, and of the power of the court in these respects, 
 are maintained in Ehnore vs. Thomas, 7 Abb., 70 (72); Merritt vs. 
 
OF PLEADINGS. — § 121. 559 
 
 Thompson, 3 E. D. Smith, 283 (294) ; Tinney vs. StMins, 28 Barb., 
 290 ; and Coster vs. The New York and Erie Railroad Compamy, 6 
 Duer, 43 ; 3 Abb., 332 ; also noticed 5 Duer, 677. 
 
 And, of the older cases upon the siibject, it will suffice to draw atten- 
 tion to Shaw vs. Jayne, 4 How., 119 ; 3 0. R., 69 ; Knowles vs. Oee, 4 
 How., 317 ; Hill vs. McCarthy, 3 0. E., 49 ; Merrifield vs. Cooley, 4 
 How., 272 ; Floyd vs. Dearborn, 2 C. E.., 17. Also especially to Lin-i 
 den vs. Hepburn, 3 Sandf., 688 ; 5 How., 188 ;,' 3 C. E., 65 ; 9 L. 0., 
 80 ; JBurget vs. Bissel, 5 How., 192 ; 3 0. E., 215 ; Wooden vs. Waffle, 
 6 How., 145 ; ICE. (N. S.), 392 ; The Rochester City Banh vs. 
 Svydam, 5 How., 216 ; Milliken vs. Carey, 5 How., 272 ; 3 0. E., 250 
 (a case in which a restricted view of the question is taken in other 
 respects) ; Ca/rpenter vs. West, 5 How., 53 ; Howard Y&.Tiffany,, 3 Sandf., 
 695 ; 1 C. E. (N. S.), 99 ; and Benedict vs. Seymour, 6 How., 298. 
 The same may be said as regards Fraser vs. Phelps, 4 Sandf., 682, 
 where it is laid down as follows : " As we have frequently had occasion 
 to say, the Code has not abolished the essential distinctions between 
 suits at law and in equity, nor ought it to be construed as limiting or 
 abridging the powers which, in cases like the present, courts of equity 
 have been accustomed to exercise." See also Cra/ry vs. Goodman, 9 
 Barb., 657 ; Dauchy vs. Bennett, 7 How., 375 ; Le Roy vs. Marshall, 
 8 How., 373; Cool vs. Litohjidd, 6 Sandf., 330; 10 L. 0., 330; 
 affirmed, 5 Seld., 279 ; 'The Merchants^ Mutual Inswra/nce Company of 
 Buffalo vs. Eaton, 11 L. O., 140 ; 5 Duer, 101 ; Bouton vs. The City 
 of Brooklyn, 7 How., 198 ; Same case, 16 Barb., 375 ; Spencer vs. 
 Wheelock, 11 L. O., 329 ; Dobson vs. I'earce, 1 Duer, 142 ; 10 L. O., 
 170 ; affirmed, 2 Kern., 156, supra ; leaving, without special citation, 
 numerous other decisions, in which the same rule has been acted upon 
 in spirit, if not enounced in terms. 
 
 (c.) Othee Pauts of Foemee System not Abolished. 
 
 The Code, it must be borne in mind, is only a system of procedure. 
 It does not alter, or profess to alter, the law as it stood before, in any 
 questions which aifect the essential rights of the suitor, as contradis- 
 tinguished from the formal mode of their assertion. 
 
 The essential distinctions between actions of different natures still 
 subsist, and a case stated with a view to relief in one description of 
 action, will not, as a general rule, be admissible as forming the basis for 
 a recovery in another of a different nature, essentially, and not formally 
 considered. 
 
 Thus, where the plaintiff such the defendant, ex delicto, for the 
 wrongful detention of a draft, proof that the latter had rightfully col- 
 lected it, was held to be a fatal variance, and that a judgment, for the 
 
560 OF PLEADINGS. § 121, 
 
 amount collected, ex ooniractu, would not have been proper, on allega- 
 tions thus framed. Walter vs. JBennett, 16 E". T., 250. See also Mayor 
 of New Yarh vs. Parher Vein tSteamsMp Company, 21 How., 289 ; 
 12 Abb., 300 ; Andrews vs. Bond, 16Barb., 633, and Seller vs. Sage, 
 12 Barb., 531. Nor will a plaintiff, baving commenced such an action, 
 ex contractu, fox the purpose of obtaining an order for publication of 
 the summons, be allowed to change the action afterwards into one 
 sounding in tort, by means of an amendment, La/ne vs. Beam,, 19 
 Barb., 51 ; 1 Abb., 65. 
 
 "Where, however, the complaint stated facts, constituting a tort, but 
 demanded a mere money judgment, a recovery was sustained, as proper 
 in either aspect of the case. Hudson River Rail/road Company vs. 
 Lounsberry, 25 Barb., 59T. So also, where the complaint was framed 
 in both aspects, Yertore vs. Wiswall, 16 How., 8 ; likewise generally, 
 Trull vs. Granger, 4 Seld., 115. 
 
 A plaintiff, electing to sue in debt, for the value of property, exempt 
 from execution, instead of in replevin for its recovery, takes the risk of 
 the change, and the amount of his money recovery will be subject to 
 the incidents of an ordinary money judgment. Mollory vs. Norton, 
 21 Barb., 424:. See also, as to the distinctions between the rule of 
 damages in an action for an escape, when brought as in debt, or as in 
 case respectively, Barnes vs. Willett, 19 How., 564 ; 11 Abb., 225. 
 
 A claim to real estate, its rents or profits, cannot be tried, under the 
 form of an action for money had and received. Carpenter vs. Stilwell, 
 
 3 Abb., 459. 
 
 An action cannot be maintained, in the ordinary form of assumpsit, 
 for a partial breach of a special contract. To warrant that form of 
 action, the agreement should have been performed, so as to leave a 
 mere simple debt or duty between the parties. Evans vs. Han'ris, 19 
 Barb., 416. But, when such agreement has been performed, the plain- 
 tiff may sue either on the special or the implied promise at his election. 
 Farron vs. Sherwood, 11 'N. T., 227. 
 
 ISTeither has the Code altered the former law, in respect to the essen- 
 tial distinctions between actions. Thus, an action against common car- 
 riers, though technically soimding in tort, arises, in fact, ex contractu, 
 and a bankrupt's discharge will be pleadable. Campiell vs. Perkins, 
 
 4 Seld., 430. And,_p(5r contra, in an action for unlawful conversion of 
 property, though arising out of an original contract of hiring, infancy 
 will be no defence. Fish vs. Ferris, 5 Duer, 49. But, when the ac- 
 tion essentially sounds in contract, the mere attempt to allege a conver- 
 sion will not change its nature, so as to exclude the defence. Munger 
 vs. Hess, 28 Barb., 75. 
 
 Nor does the Code, by the abolition of mere forms of action, avail to 
 
OF PLEADINGS. — § 121. 661 
 
 give to a plaintiff a remedy, where none existed before. Cropsey vs. 
 Sweezy, 27 Barb., 310 ; 7 Abb., 129. Nor does it operate to confound 
 those which tlieretofore existed. See Ten Eyck vs. Houghtaling, 12 
 How., 523 ; Onderdonk vs. Mott, 34 Barb., 106. 
 
 And, thoTigh it has abolished all technical rules of pleading, the Code 
 has not abolished those which are dictated by good sense, and are 
 necessary to be observed, to carry out its own provisions. Thus, when 
 an award was pleaded, it was held that its substance, at least, if not its 
 letter, must be set out, so that the court might judge of its validity as a 
 bar. Crihon vs. Levy, 2 Duer, 176. 
 
 ISoT has that measure abolished any statutory requisitions as to 
 pleading in particular cases, not inconsistent with its own provisions. 
 Such requisitions are, in fact, saved in terms, by section 471. A party 
 wishing to contest the validity of the incorporation of a company plain- 
 tiff, must, accordingly, still tender a special issue upon the subject. 
 Bank of Genesee vs. Patohin Bank, 3 Kern, 809 (314). See, on same 
 principle, The People vs. Bennett, 5 Abb., 384 ; affirmed, 6 Abb., 343. 
 See likewise, Van Buskirk vs. Roberts, 14 How., 61, as to the order 
 of pleading ; though the point immediately decided, in that case, seems 
 to be untenable. 
 
 It may be remarked, however, before passing to the next branch of 
 the subject, that the Code has, in no wise, altered the power of a suitor 
 to elect between different remedies, for the same cause of action, though, 
 having once made his election, he may, thereafter, be compelled, as 
 above, to abide by it. See cases, hereafter.cited, in section 140, under 
 head of Election. 
 
 So also, when a special covenant has been fully performed, a plain- 
 tiff may sue, at his election, either upon the special agreement itself, or 
 on the implied assumpsit arising from its performance. Faicron vs. 
 Sherwood, 17 IST. Y., 227. Or, in the same manner, for rent due under 
 a deed, though the rule, in this case, is exceptional. Ten Eyck vs. 
 Houghtaling, 12 How., 523. 
 
 A lessee, from whom possession is withheld by his lessor, is not 
 driven to his ejectment, but may sue for damages ; and this, either ex 
 contractu on the contract, whether express or implied, os in tort, for the 
 violation of the duty on the part of the defendant. TruU vs. Granger, 
 4 Seld., 115. 
 
 (^.) FoRMEE Modes of Pleading. 
 
 As a general rule, a decided preference may be considered as given 
 by the Code to the antecedent forms of equity pleadings, over those at 
 common law. The latter are, in fact, expressly stated as intended to 
 be abolished, by the preamble, which is silent as to the former. 
 
 YoL. I.— 36 
 
562 OF PLEADINGS. § 121. 
 
 The greater analogy whicli pleadings under tlie Code bear to the 
 former rules in equity, rather than to those at common law, is laid 
 down in Mayhew vs. Robinson, 10 How., 163 (166) ; Baoket vs. ^Yinc^n- 
 son, 13 How., 102 ; Hunt vs. Hudson River Fire Insurance Company, 
 2 Duer, 481 (488) ; Knowles vs. Gee, 4 How., 317. Especially is this 
 the case, in an action of an equitable nature. Coit vs. Coit, 6 How., 53. 
 
 But this principle must not be carried beyond its due limits, and is 
 only applicable to the statement of facts in a pleading, and to the 
 demand of relief, grounded upon that statement, and no further. Matter 
 can no longer be inserted with the mere view of discovery. The former 
 system of allegation, by way of pretence and charge, is also wholly 
 inadmissible. The facts of the case are required, and nothing else. 
 ClarTc vs. Harwood, 8 How., 470. And this rule is equally applicable 
 to responsive pleading. It was applied, and an answer drawn in con- 
 formity with the old chancery rules, admitting the statements in the 
 complaint, and stating various legal propositions and arguments in 
 defence, held to be bad, in Gould vs. WilUavis, 9 How., 51. 
 
 On the other hand, the essentials which lay at the root of the old 
 common-law system are, by no means, to be considered as abolished ; 
 and, on the contrary, the forms under that system may still, as regards 
 the statement of a strictly legal cause of action, be most advantageously 
 followed as precedents. Such a complaint should, in fact, contain the 
 substance of a declaration under the former system. Zabrishie vs. 
 Smith, 3 Kern., 332 (330). See this subject, more fully considered, in 
 the succeeding sections. 
 
 But this following must he strictly confined to "those instances in 
 which, under the former system, the truth of the case was alleged on 
 the face of the pleading. Mere formalities, and especially those which 
 included the assertion of falsehoods, are abolished by the Code, and a 
 statement of the truth of the case substituted in their place. En- 
 sign vs. Sherman, 14 How., 439. See also St. John ■ vs. Pierce, 22 
 Barb., 362. 
 
 The former common-law system of declaring for the same cause of 
 action by means of various counts, is also wholly swept away by the new 
 system. See last case, and numerous other decisions cited in the suc- 
 ceeding sections. 
 
 In fact, it has been held that, under the present system, and since the 
 forms of actions are abolished, every action, whether at law or in equity, • 
 may be considered as one upon the case, founded upon the peculiar 
 facts out of which the controversy arises, as set forth in the complaint. 
 Vide Minor vs. Terry, 6 How., 208 (210, 211) ; 1 C. R. (IST. S.), 384. 
 
 See a plea of the statute of limitations, in the old form, sustained in 
 Bell vs. Tates, 33 Barb., 627. 
 
OF PLEADINGS.— § 122. 563 
 
 § 122. Averments, Generally Con-sideo'ed. 
 
 Simple as are the general features of the system thus established, its 
 reduction into practical detail has been attended with much complica- 
 ! tion, and been made the subject' of prolonged and grave discussions. 
 
 The result of those discussions, in their general aspect, will form the 
 subject of the present book. Such considerations which separately 
 affect any one or more of the different branches of pleading, separately 
 considered, will be reserved for the subsequent chapters. 
 
 To the latter classification may be referred the subjects of demurrer, 
 and of strictly responsive pleading. In affirmative allegations, there 
 are of course numerous characteristics, which belong to the peculiar 
 counter relations of the plaintiff or defendant, and which will be 
 reserved in like manner. There are, however, some general features 
 pertaining to the averment of facts, whether in support of or in opposi- 
 tion to the claim made by a plaintiff, which pertain to all stages alike, 
 and which it is proposed now to consider. 
 
 The general features of the Code, in respect to averments, of this 
 nature, in pleading, whether affirmative or responsive, are so closely 
 analogous as to be in substance identical. The complaint must contain 
 " a plain and concise statement of the facts constituting a cause of ac- 
 tion, without unnecessary repetition." (Section 142, sub. 2.) The answer, 
 "a statement of any new matter constituting a defence or counter- 
 claim, in ordinary and concise language, without repetition." (Section 
 149, sub. 2.) And the reply "may allege, in ordinary and concise 
 language, without repetition, any new matter, not inconsistent with 
 the complaint, constituting a defence to new matter in the answer," 
 by which a counter-claim is pleaded. Section 153. 
 
 In a broad point of view, the same principles of averment will, for 
 the future, govern the pleadings in all actions whatever, whether of 
 common law or equitable cognizance ; and indeed such was, in many 
 respects, the case, even under the former system, with reference to those 
 general rules which lie at the root of all good pleading whatever, 
 whether legal or equitable, so far as such pleading consisted in the 
 affirmative averment of facts. 
 
 ■ But in the minor details, there still is, as there always has been, an 
 
 ■ inherent distinction between the appropriate mode of allegation in 
 \ jjleadings, directed, on the one hand, to the framing of one simple and 
 ; dominant issue, or in those destined, on the other, to serve as the basis 
 
 of special or complicated relief. The principles which apply to both 
 in common will first be treated of, and the separate distinctions 
 reserved for subsequent notice. 
 
564 OF PLEADINGS. § 122, 
 
 {a.) Facts only to be Stated. 
 
 The grand object of this portion of the Code is, as has been above 
 seen, to substitute for the former refinements and intricacies of plead- 
 ing, a bare, concise, and ordinary statement of the facts of the case 
 relied on, Avh ether affirmative or negative in its nature, and this, in clear 
 and intelligible language, without repetition, introduction of legal sub- 
 tleties, or indulgence in legal fictions. 
 
 The guage of " common understanding" imposed by the original mea- 
 sure was, it is true, soon abandoned, as too low in its requirements, and 
 too uncertain in its nature to serve as the basis of a practical system of 
 rules; the essential principle sought to be carried out by that requisi- 
 tion has, however, been kept in view and substantially established, and 
 a real necessity is now imposed upon the pleader of making his plead- 
 ings concise, intelligible, and sufficiently explanatory of the matters on 
 which an issue is tendered, to convey a real idea of the substance of that 
 issue, to a person of ordinary intelligence and capacity, though destitute 
 of technical, or even of substantial legal knowledge. 
 
 (5.) CoNSTiTUTrrE Facts. 
 
 In the first place, the facts to be stated in every pleading, whether 
 affirmative or negative, must be constitutive, i. e., such as constitute 
 either a cause of action, or a ground of defence or reply. 
 
 The whole of those facts must be stated, so as to leave no deficiency 
 in the case, whether affirmative or negative, which is' sought to be 
 pleaded. 
 
 But, beyond this, no statement will be appropriate. Mere matters of ■ 
 evidence will be redundant ; mere conclusions of law, stated in the 
 place of facts, inadmissible. 
 
 The exact line of distinction between such facts as are or are not 
 strictly constitutive, as distinguished from those merely probative in 
 their nature, is occasionally difficult to draw. Few things have been 
 more frequent in practice, as the cases show, than their utter confu- 
 sion. To cite all those cases would at once be unnecessary and weari- 
 some. A few of the more prominent dicta and decisions, in which the 
 nature of constitutive, as distinguished from probative facts, is defined, 
 will, however, be selected. A consideration of them will show that the 
 proper rule upon the. subject, though so apt to be confounded, is in 
 reality simple, and easy of application. 
 
 The following will be found in MoKyrvng vs. Bull, 16 IS.-. T., 297 
 (303). • After noticing that, in England, it has been found conducive 
 to justice, to require the parties virtually to apprise each other of the 
 facts upon which they intend to rely, Selden, J., adds : " The system 
 
OF PLEADmas. — § 122. 565 
 
 of pleading prescribed by the Code appears to have been conceived in 
 the same spirit. It was evidentl}' designed to require of parties, in all 
 cases, a plain and distinct statement of the facts which they intend to 
 prove ; and any rule which would enable defendants, in a large class 
 of cases, to evade this requirement, would be inconsistent with this 
 design ;" the point there ruled being, that evidence of payment or part 
 payment of the plaintift"'s claim could not be received under a general 
 denial, or unless payment was pleaded in terms. 
 
 The rule is well stated in Oarvey vs. Fowler, i Sandf , 665 ; 10 L. 0., 
 16 : " The plaintiff must now state in his complaint all the facts which 
 constitute the cause of action, and I am clearly of opinion that every 
 fact is to be deemed constitutive, in the sense of the Code, upon which 
 the right of action depends. Every fact which the plaintiff must prove, 
 to enable him to maintain his suit, and which the defendant has a 
 right to controvert in his answer, must be distinctly averred, and every 
 such averment must be understood as meaning what it says, and, con- 
 sequently, is only to be sustained by evidence which corresponds with 
 t its meaning." 
 
 Again, in Fay vs. Grimsteed, 10 Barb., 321 : " It is one of the prin- 
 cipal objects of the Code of procedure to abrogate the old forms of 
 pleading, and to bring the parties to a plain, concise, and direct state- 
 ment of the facts which constitute the cause of action, or the defence, 
 in place of the general statement heretofore in use." See also Bridge 
 vs. Payson, 5 Sandf., 210 ; and Stodda/rd vs. Onondaga Awnual Con- 
 ference, 12 Barb., 573. 
 
 The following general views are laid down in Mann vs. Morewood, 
 5 Sandf., 557: "A complaint must set forth all the material and issua- 
 ble facts, which are relied on as establishing the plaintiff's right of 
 action, and not the inferences from those facts which, under the advice 
 of his counsel, he may -deem to be conclusions of law. The facts which 
 are required to be stated as constituting the cause of action, can only 
 mean real, traversable facts, as distinguished from propositions or con- 
 clusions of law, since it is the former, not the latter, that can alone, 
 with any propriety, be said to constitute the cause of action." See also 
 Tollman vs. Oreen, 3 Sandf., i37. 
 
 It would be difficult to find a more comprehensive definition of what- 
 pleadings ought to be under the Code, in all cases, and without refer- 
 ence to the peculiar nature of the relief sought, than that laid down in 
 Bmfoe vs. Brown, 7 Barb., 80; 3 How., 391, in the following words: 
 " The pleader may use his own language, but the necessary matter . 
 must be there, and be stated in an intelligible and issuable form, capa- 
 ble of trial. Facts must still be set forth according to their legal effect 
 and operation, and not the mere evidence of those facts, nor arguments, 
 
566 OF PLEADEsras. — § 122. 
 
 nor inferences, nor matter of law only." " Nor should pleadings be 
 hypothetical, nor alternative," and many cases under the old practice 
 are cited. " Good pleading should be material, single, true, unambig- 
 uous, consistent, and certain to a common intent, as to time, place, per- 
 son, and quantity, and not redundant or argumentative." Again : "As 
 a general rule, a pleading, to be good by the settled principles of 
 pleading, as modified by the Code, must state the facts constituting a 
 legal cause of action or ground of defence ; and these should be set 
 forth in a plain, direct, definite, certain, and traversable manner, and 
 according to their legal effect." 
 
 In Ohwrchill vs. Churchill, 9 How., 552, the rule is thus generally 
 laid down : " The theory of the present system is, that the party plead- 
 ing should know beforehand what are the facts upon which he will rely ; 
 and that the pleading shall contain these facts, stated plainly and concise- 
 ly, without unnecessary repetition. "Whatever more a pleading contains, 
 is unauthorized, and may be stricken out." See Olarh vs. Harwood, 8 
 How., 470 ; Gould vs. Williams, 9 How., 51. See likewise Kelly vs. 
 Breusing, 33 Barb., 123, as to the avoidance of uimecessary detail. ■, 
 
 In Lawrence vs. Wright, 2 Duer, 673, the proposition is thus stated : 
 "All these errors in pleading" {i. e., the substitution of legal conclu- 
 sions for the facts out of which they arise) " will be avoided, if it be 
 constantly remembered that the facts which the Code requires to be 
 set forth, are not true propositions, but physical facts, capable, as such, 
 of being established by evidence, oral or documentary ; and from 
 which, when so established, the right to maintain the action, or the 
 validity of a defence, is a necessary conclusion of law— a conohision 
 which the court will draw, and which it is quite unnecessary for the 
 pleader to state." See also, generally, as to this last principle, Haight 
 vs. Child, 84 Barb., 186. 
 
 The necessity of a statement of the substantial facts which go to 
 make up a cause of action, with legal precision ; and the importance of 
 the statement being made with direct reference to the nature of the 
 particular remedy sought to be invoked, especially in that class of 
 cases in which, under the former practice, the plaintiff had his election 
 of different forms of action, is distinctly pointed out in Tertore vs. 
 - Wiswall, 16 How., 8. 
 
 In a case where the action was for a breach of duty, which was 
 assumed, instead of its existence being specifically shown by the plaintiff 
 the principle was thus laid down : " The difficulty is, the want of any 
 statement of facts from which such duty arises. For an allegation of 
 the duty is of no avail, unless, from the rest of the complaint, the facts 
 necessary to raise the duty can be collected." City of Buffalo vs, 
 Holloway, 3 Seld,, 493. 
 
OF PLEADINGS. § 122. 567 
 
 The distinction between the statement of a fact or of a truth is thus 
 drawn in Drake vs. Cockroft, 4 E. D. Smith, 34; 10 How., 377; 
 1 Abb., 203: "A fact, in pleading, is a circumstance, act, event, or 
 incident ; a truth is the legal principle which declares or governs the 
 facts and their operative effect." In defensive pleading, the elementary 
 rule is, that a plea or answer, which does not deny the facts alleged by 
 the plaintiff, " must state facts which, if J)roved, would destroy the 
 plaintiff's right to recover." If the plaintiff's allegations are sufficient 
 in law, the defendant, whilst admitting them, cannot dispute his right 
 to a recovery, " unless he avers new facts, which aefeat their otherwise 
 legal operation." 
 
 In cases " where the provisions of a public statute are relied on as 
 ci'eating a right of action or a valid defence, it is sufficient for the 
 party to set forth the facts which, he is advised, bi'ing his case within 
 the statutory provisions, leaving the coui't to determine whether they 
 apply or not, either upon a demurrer, or upon the trial." Of the law 
 itself the court is bound to take judicial notice, and its applicability is 
 not a fact, but a conclusion of law. Vide Goelet vs. Cowdrey, 1 Duer, 
 132 (139) ; Haight vs. Child, 34 Barb., 186. 
 
 Though the rule, as above, is well settled, there must, nevertheless, to 
 sustain such an action, be a positive allegation of all facts necessary to 
 bring the case within the statute ; and likewise of all qualifications, if 
 any, which it prescribes. Brown vs. Harmon, 21 Barb., 508. 
 
 The rule in pleading matter within the scope of a statute, is thus * 
 declared in Williams vs. The Insurance Company of North America, 
 9 How., 365 (373) : When the statute declares that an act is void, if 
 mkde in a particular manner, the objection need not be anticipated ; 
 but, where it makes the act void, unless made under specified circum- 
 stances, the rule is reversed, and the pleader, setting it up, must show 
 fhose circumstances in the first instance. 
 
 As to the allegations necessaiy to sustain an action, on the judgment 
 of a foreign court of inferior jurisdiction!, see MoLoMghlin vs. Nichols, 
 13 Abb., 244. 
 
 (e.) PsoBATivE Facts. 
 
 That the substantive facts of the case, and those only, form the only 
 proper subject of averment, in all pleading whatever, and especially in 
 pleadings under the peculiar provisioins of the Code ; and that merely 
 collatei'al or probative circumstances, not directly tending to establish 
 the capse of action, in common-law cases, or to bear upon or modify the 
 relief to be granted, where that relief is equitable or special, are inad- 
 missible in all cases whatever, whether legal or equitable, is, a leading . 
 
568 OF PLEADINGS. — § 122. 
 
 feature in, it may be safely said, every decided case, whether taking the 
 stricter or the more liberal view of the general question. 
 
 To enter upon the subject in any detail here, would be to anticipate 
 'its fuller consideration in a subsequent chapter, under the head of 
 Irrelevancy or Redwndancy. A bare notice of some of the principal 
 decisions which lay down the rule in general terms, irrespective of the 
 remedy, is all that is required for the present. 
 
 In Boyoe vs. Brown, above cited, the doctrine is broadly stated : It is 
 laid down that the only proper subjects of averment are " issuable facts, 
 essential to the cause of the action or defence, and not the facts or cir- 
 cumstances which go to establish such essential facts ;" and that " facts 
 only, and not the evidence of facts, should be stated." The same conclu- 
 sions are drawn in Shaw vs. Jayne, 4 How., 119 ; 2 C. E., 69 ; and 
 Knowles vs. Oee, 4 How., 317. See also Allen vs. Patterson, 3 Seld., 
 476 (478). The rule thus laid down, at an early period, has been 
 universally followed in the numerous subsequent decisions. Amongst 
 them Williams vs. Sayes, 5 How., 470 ; 1 C. E. (N. S.), 148 ; Rowa/rd 
 vs. Tiffany, 3 Sandf., 695 ; 1 C. R. (N. S.), 99 ; Glenny vs. Hitchins, 4 
 How., 98 ; 2 0. E., 56 ; Milliken vs. Car^y, 5 How.-, 272 ; 3 C. E., 
 250 ; and Wooden vs. Waffle, 6 How., 145 ; 1 C. E. (N. S.), 392, may 
 be selected at random as some of the more prominent, though others are 
 equally explicit. Wooden vs. Strew, 10 Plow., 48 ; Uddy vs. Beach, 7 
 Abb., 17 ; and Bilhlee vs. Corbett, 9 Abb., 200, may also be referred 
 to, as constituting part of an unbroken chain of decisions to the present 
 time. 
 
 In the action of ejectment, the rule is especially strict upon this 
 subject, as will hereafter be noticed. A good deal of discussion has, 
 likewise, taken place on the subject of averments, tending to show the 
 liability of a defendant to arrest. This point will be more fully 
 brought out hereafter, under the heads of Irrelevancy and ComplaiM. 
 The conclusion may be thus stated : Where the action sounds in 
 tort, either inherently or by election of the plaintiff, facts tending to 
 show arrestability, form in fact part of the cause of action itself, and, 
 being thus constitutive, will be properly and necessarily averred. 
 Where, on the contrary, the action sounds in contract, either inherently 
 or by election, and a recovery is sought on the contract only, facts tend- 
 ing to show fraud on the part of the defendant, are purely collateral, 
 ' and cannot properly be pleaded. 
 
 Still more objectionable will be the allegation of facts inadmissible 
 in evidence. Under no circumstances will their insertion in a pleading 
 be proper. Vide Vam, Benschoten ys. Tcjpfo, IS How., 97. 
 
OF PLEADINGS. § 122, 569 
 
 (d.) Conclusions of Law. 
 
 It is abimdantly settled under the Code, that the real facts of the 
 case form, and form alone, the proper subjects of pleading, whether af- 
 firmative or responsive, and that the bare aliegation of a conclusion 
 of law, standing alone, and unaccompanied by any statement of the 
 facts upon which that conclusion is based, will neither suffice to estab; 
 lish a cause of action, nor to constitute a defence. 
 
 This rule is manifest upon the face of the dioia in Boyce vs. Brown ; 
 The City of Buffalo vs. Hollowa/y ; McKyring vs. Bull ; Mann vs. 
 Morewood; Drake vs. Cooler oft, and Laurence vs. Wright, as already 
 cited in the present section, under the head of Constitutive Facts. See 
 also, generally, Jones vs. Phoenix Bamk, i Seld., 228 (235). 
 
 The exact nature of an allegation, objectionable on this ground, is thus 
 defined in Hatch vs. Peet, 23 Barb., 575 (583) : " An allegation of a legal 
 conclusion merely, is one which gives no fact, but matter of law only." 
 
 In Ensign vs. Sherman, 13 How., 35 (37), the following dictum oc- 
 curs as to the entire insuificioncy of a bare allegation of this nature : 
 " An act which may or may not be right or lawful, according to the 
 circumstances under which it is done, is not properly averred to be un- 
 just or unlawful, by merely calling it such. The facts which make it 
 a wrong, must be pleaded as they are to be proved, and from them the 
 conclusion follows that the party is acting unlawfully in what he does." 
 See also Fairhank vs. Bloomfield, 2 Duer, 349. 
 
 The succeeding may be cited as some among the very numerous 
 decisions in which the rule, as above laid down, has been asserted and 
 enforced. 
 
 The following affirmative allegations in complaints have oeen held 
 defective on this ground : 
 
 A bare allegation that the defendant had violated a statute, without 
 particularizing in what manner. Smith vs. Lochwood, 13 Barb., 209 ; 
 10 L. O., 232 ; 1 C. K. (N. S.), 319. ' 
 
 In an action for a statutory penalty, however, an averment of viola- 
 tion, in the words of the statute, is sufiieient. The People vs. Bennett, 
 5 Abb., 384 ; affirmed, 6 Abb., 343 ; overruling Morehouse vs. CriWy, 
 8 How., 431. 
 
 A bare allegation that defendant was indebted to the plaintiff, for 
 moneys received to his use, without stating any facts to show his liabil- 
 ity. Liencm vs. Lincoln, 2 Duer, 670 ; 12 L. O., 29. 
 
 A bare allegation of violation of a landlord's covenant, accompanied 
 by a 'statement of facts, sufficient to show violation, but insufficient to 
 charge that violation on the defendant pejrsonally. Schench vs. NanjUrr, 
 2 Duer, 675, See also Van SchmckrB. Winne, 16 Barb., 89 (95). 
 
570 OF PLEADESrOS. § 122. 
 
 An allegation that the plaintiff was sole owner of a deinand against 
 a third party, without showing how he acquired such ownership. 
 Thomas vs. Desmond^ 12 How., 321; Adamis vs. Eolley, 12 How., 
 326 (330). 
 
 An allegation of a duty on the part of the defendant, without stating 
 facts, showing such duty to be existent. Corey vs.. Mann, 14 How., 
 163 ; 6 Duer, 679. See also The City of Buffalo vs. Holloway, sujyra. 
 
 An allegation of authority to sue for a foreign corporation, without 
 showing how it was acquired. Myers vs. Maohado, 14 How., 149 ; 6 
 Abb., 198 ; 6 Duer, 678. 
 
 A bare allegation of ownership of a note, without stating indorse-' 
 ment by the payee. White vs. Brown, 14 How., 282. So, likewise, a 
 bare allegation that a counter-claim arose out of the transaction stated 
 in the complaint, without showing in what manner. Brown vs. Buck- 
 ingham, 21 How., 190 ; 11 Abb., 387. 
 
 In defensive pleading, the rule is equally clear, and a bare denial of 
 liability, or of any other legal conclusion, legitimately drawn from the 
 case, as stated by the plaintiff, wiU, if standing alone, be wholly 
 unavailing. 
 
 The detailed consideration of this branch of the question, falls more 
 appropriately under the head of frivolous or insufficient defences, as 
 treated of in a subsequent chapter. The following may, however, be 
 noticed here, as some of the more prominent decisions. 
 
 The utter insufficiency of a bare denial of indebtedness or liability, 
 as against sufiicient facts stated to show either, is manifest, and it is 
 needless to anticipate the citation of the decisions on that subject. 
 
 A mere denial of ownership in the plaintiff, in answer to a complaint 
 in which it is adequately alleged, is equally insufiicient. Witherspoon 
 vs. Van DoLa/r, 15 How., 266 ; De Sanies vs. Searle, 11 How., 477 ; 
 Siggins vs. Rockwell, 2 Duer, 650 ; Drake vs. Cookroft, 4 E. D. Smith, 
 34 ; 10 How., 377 ; 1 Abb., 203. Nor will it be aided by an allegation 
 that another is the real owner, unaccompanied by any facts showing 
 such to be the case. Brown vs. Byokman, 12 How., 313. 
 
 So likewise, as to a mere denial of interest in premises, without stating 
 facts, to disprove specific allegations showing its existence. Bentley vs. 
 Jones, 4 How., 202. Or a bare charge of fraud against a plaintiff, 
 without alleging any facts to prove its existence. MoMurray vs. Gif- 
 ford, 5 How., 14. 
 
 A bare averment of adverse possession, without stating in whom, or 
 any facts relating to it, was, in like manner, held bad, in Clarke vs. 
 Eughes, 13 Barb., 147. See also Ford vs. Sampson, 30 Barb., 183 ; 8 
 Abb., 332. 
 
 The principle is generally laid down in Mullen vs. Keamiey, 2 0. E., 
 
OF PLEADINGS. — § 122. 571 
 
 18, as follows: "An answer which admits all the facts on which the 
 plaintiff's cause of action is founded, and merely denies, genesally, that 
 the plaintiff has a cause of action, is frivolous, and will be stricken out." 
 A plea of the statute of limitations, in the old form, was sustained, 
 as being a sufficient allegation of fact, and not the mere statement of a 
 conclusion of law, in Bell vs. Yates, 33 Barb., 627. 
 
 (e.) Aeguments and Infeeences. 
 
 It is wholly unnecessary and improper, in stating the case of the 
 party pleading, to allege the arguments, or any of them, by which it is 
 supported. ' Boyce vs. Brown, supra; Lewis vs. Kendall, 6 How., 59 ; 
 1 C. E. (N. S.), 402 ; Eastings vs. Thurston, 18 How., 530 ; 10 Abb., 
 418 ; GouMys. Williams, 9 How., 51 ; Arthur vs. Brooks, 14 IBarb., 533. 
 
 Merely inferential statements are also equally inadmissible. The 
 facts of the case, and those facts only, are all that is proper to be 
 alleged. Broivn vs. Harmon, 21 Barb., 508. To draw inferences and 
 conclusions is wholly the province of the court. To support the case 
 by arguments is the office of the advocate, and not of the pleader. 
 
 See Hodi vs. President, c&c, of Butg&rs Fire Insurance Company:, 
 6 Bosw., 23 ; where the complaint was held to be demurrable, in conse- 
 quence of the facts constituting the plaintiff's case, being stated in an 
 inferential, instead of a direct manner 
 
 (/".) Sufficiency. 
 
 Whatever the nature of the pleading, whether affirmative or respon- 
 sive, it must either show in terms, or must lay ground for the introduc- 
 tion of the whole case of the party pleading, and of all the evidence in 
 his power by which that case is sought to be established, "or a recovery 
 on the adverse part defeated. 
 
 The principle as to a complaint is thus laid down in Allen vs. Pat- 
 terson, 3 Seld., 476 (479) : " Every fact which the plaintiff must prove 
 to enable him to maintain his suit, and which the defendant has a 
 right to controvert in his answer, must be distinctly averred or stated." 
 
 It ig laid down with equal clearness as to defences, in MeKyrmg vs. 
 Bull, 16 ]Sr. Y., 297 : " Neither payment nor any other defence which 
 confesses and avoids the cause of action, can, in any case, be given in 
 evidence as a defence, under an answer containing simply a general 
 denial of the allegations of the complaint" (p. 804). Again : " section 149 
 should be so construed as to require the defendants, in all cases, ta 
 plead any new matter constituting either an entire or partial defence, 
 and to prohibit thBm from giving such matter in evidence, upon tha 
 assessment of damages, when not set up in the answer", (p. 307). 
 
 The general principle ia also broadly laid down in Van Ik So^nrh 
 
572 OF PLEADnfGS. — §. 122. 
 
 vs. HaU, 13 How., 458 (460), thus : " The defendant must aver in his 
 answer, every fact necessary to show a defence, partial or total ; and 
 every such necessary averment must be proved." See likewise, Dralce 
 vs. Cochroft, 4 E. D. Smith, 34 (37) ; 10 How., 3YT ; 1 Abb., 203 ; 
 Carter vs. Koezeley, 14 Abb., 147. 
 
 It is of course especially indispensable that every fact necessary to 
 confer jurisdiction should appear upon the face of the record, and, when 
 a subject of averment, should be alleged in terms. Frees vs. Ford, 2 
 Seld., 176. See Rouse vs. Cooper, 30 Barb., 167 ; l6 How., 292 ; Cwm- 
 ierland Coal and Iron Company vs. Hoffman Steam Goal Company, 
 30 Barb., 159. See likewise Mahoney vs. Gunter, 10 Abb., 431 ; Mc- 
 Laughlin vs. Nichols, 13 Abb., 244 ; Ga/rter vs. Koezeley, svpra. 
 
 The same rule, *. e., that the whole case of the party, whether plain- 
 tiff or defendant, so far as it is necessary either to constitute a cause of 
 action on the one hand, or to establish a valid defence on the other, 
 must in all cases, be set forth on the face of his pleading, and an issue 
 tendered upon every material fact, or that such pleading will be de- 
 fective, has been laid down in a multitude of cases, of which the fol- 
 lowing may be selected as a sample. 
 
 "Where the right of a plaintiff is not prima fade clear, but, on the 
 contrary, susceptible of an adverse implication, that implication must 
 be negatived by specific averments. TimMiam vs. Borat, 15 How., 204. 
 Where a party sues under a special authority, statutory or otherwise, or 
 £n autre droit, his title so to sue must be distinctly averred in the b0dy 
 of his complaint, or that complaint will be defective, nor will a mere 
 descriptio personce in the title avail to cure the defect. It is not neces- 
 sary, however, to aver the details, but merely the facts. Sheldon vs. 
 Hoy, 11 How., 11 ; Bogert vs. Yermilyea, 6 Seld., 447; Pech vs. MaZ- 
 lams, 6 Seld., 509 ; White vs. Low, 7 Barb., 204 ; Smith vs. Loekwood, 
 10 L. 0., 12 ; 1 C. E. (IST. S.), 319 ; Johnson vs. Kemp, 11 How., 186 ; 
 Bangs vs. Mcintosh, 23 Barb., 591 ; Palmer vs. Snedley, 28 Barb., 468 ; 
 Hulhert vs. Young, 13 How., 413 ; Stewart vs. Beele, 28 Barb., 34 ; 7 
 Abb., 206, note ; Dayton vs. Gonnah, 18 How., 326 ; Gould vs. Glass, 
 19 Barb., 179. See, as to the mode of such averment, Growell vs. 
 Chwrch, 7 Abb., 205, note. A party so suing, must also, by proper 
 averments, show that the subject-matter of the suit is within the scope ■ 
 of his authority. Hyatt vs. McMahon, 25 Barb., 457. In like manner, 
 when a party is sued in such a character, the pleading must aUege all 
 necessary facts, to ghow a special liability, mde Hall vs. Taylor, 8 How., 
 428. See also White vs. Joy, 11 How., 36 ; reversed, 3 Eern., 183 ; 
 but on the ground of waiver, and not on the gcsneral principle of 
 averment. 
 
 Sep likewise, the converse of the foregoing proposition, and that a 
 
OF PLEADI]yGS. § 122. 573 
 
 mere descrijptio personm will not avail to chanc;e the rights of the plain- 
 tiff, -when the averments in the body of the pleading show a personal, in- 
 stead of a representative right to sue. Ilerritt vs. Seaman, 2 Seld., 168, 
 •Where a specific act, such as disaffirmance of an infant's deed, after 
 majority attained, is requisite to be proved as a condition precedent to 
 any right to sue, such act must not only be proved, but also specifically 
 averred. Voorhies vs. Voorhies, 24 Barb., 150. 
 
 Where the plaintiff sues in his own name, but for the benefit of his 
 class, under the special power in section 119, a special averment to that 
 effect has been held essential. Smith vs. Loohwood, 10 L. O., 232 ; 1 
 C. E. (K S.), 319. 
 
 And, in every pleading, of whatever nature, every material fact ne- 
 cessary to sustain the right of the party pleading to recover, or to defeat 
 a recovery, must be distinctly averred, and an issue tendered on such 
 averment. A plaintiff must show, both his own right to recover, and 
 also, the liability of the defendant; a defendant must either avoid the 
 plaintiff's case, or show a counter-right to relief on his own part, on 
 the face of his pleading. Page vs. Boyd, 11 How., 415 ; Fuller ys. 
 Lewis, 13 How., 219 ; 3 Abb., 383 ; Murphy vs. Merchant, 14 How., 
 189 ; 6 Duer, 679 ; Bloodgood vs. Bruen, 4 Seld., 362 ; Bristol vs. 
 Bensselaer and Sa/ratoga Bail/road Compa/ny, 9 Barb., 158 ; House vs. 
 Cooper, 30 Barb., 157; 16 How., 292; Edwards vs. Campbell, 23 
 Barb., 423 ; Yan de Sande vs. Hall, 13 How., 458 ; Smith vs. Leland, 
 2 Duer, 497 ; Safford vs. Brew, 3 Duer, 627 ; 12 L. 0., 150 ; Vroom,an 
 vs. Dunlap, 30 Barb., 202 ; Dewey vs. Hoag, 15 Barb., 365 ; Mechanics^ 
 Banking Association vs. Spring Valley Shot and Lead Company, 13 
 How., 227 ; Corsey vs. Mann, 6 Duer, 679 ; 14 How., 163 ; 5 Abb., 91. 
 A fortiori will the pleading be bad, if the averments of the party plead- 
 ing tend to defeat his alleged title. Palmer vs. Smedley, 6 Abb., 205 ; 
 affirmed, 28 Barb., 468 ; Nelson vs. Eaton, 7 Abb., 305 ; reversing 
 same case, 15 How., 305 ; Ely vs. Cooh, 2 Hilt., 406 ; 9 Abb., 366 ; 
 OridUy vs. GridUi;, 33 Barb., 250 (254). 
 
 Where an action is brought upon a special contract, the terms of such 
 contract ought properly to appear, or, at least, its substance must be 
 stated with sufficient certainty, and compliance with its conditions 
 ■ must be averred, or the pleading will be defective. Adamvs vs. The 
 Mayor of New YofJc, 4 Duer, 295 ; Gihon vs. Levy, 2 Duer, 176 ; 
 Fairbanks vs. Bloomfield, 2 Duer, 349. 
 
 And when, from its nature, such contract must properly be a con- 
 tract in writing, that fact should also be stated. Thurman vs. Stevens, 
 2 Duer, 609 ; Le Boy vs. Shaw, 2 Duer, 626. See, however, Livings- 
 ton vs. Smith, 14 How., 490, denying this necessity in the first instance, 
 but not impeaching its expediency. 
 
574 OF PLEADIIvas. — § 122. 
 
 Where the action or defence rests, in any manner, on the laws of an- 
 other state or country, such laws must be specially averred and proved as 
 facts. A general averment will be insufficient. Throo;p vs. Hatch, 3 
 ! Abb., 23 ; Vanderwerlcen vs. The New York and New Haven Rail- 
 • road Company, 6 Abb., , 239 ; Myers vs. Machado, 6 Duer, 678 ; 14 
 How., 149 ; 6 Abb., 198 ; Connecticut Bank vs. Smith, 9 Abb., 168'; 
 and generally, Hawkins vs. Brown, 30 Barb., 206. See also, as to the 
 necessity of negativing a presumption as to the effect of such law, in 
 order to the establishment of an affirmative right to sue, contrary to 
 such presumption, and to the rules of the common law, TinJcham vs. 
 Borst, 15 How., 204. See, as to presumptions in such cases generally. 
 Thorp vs. Hatch, supra. 
 
 So also, where an objection to the constitutionality of a law of this 
 state is not patent, the facts tending to show unconstitiitionality must 
 be distinctly averred. The People vs. The Supervisors of Chenango, 4 
 Seld., 317. 
 
 The consequences of an error of this nature are thus pointed out by 
 the Court of Appeals, in Eiiiery vs. Pease,,'iO IST. Y.,"62 (64) : " We are 
 required, and we are always inclined to give a liberal and benign con- 
 struction to pleadings under the present system ; but if a party, either 
 ignorantly or wilfully, will omit the very fact upon which his case 
 depends, and will content himself with averring evidence inconclusive 
 in its nature, he must take the consequences of his error, if objection be 
 made at the proper time." 
 
 Where, however, a pleading states a case which will be good in any 
 aspect, it will be supported on demurrer. Where, therefore, a com- 
 plaint merely alleged joint ownership of goods, by persons who were 
 stated by the defendant to be partners, an objection to it was overruled. 
 Loper vs. Welch, 3 Duer, 644. 
 
 The same principles of averment which apply to a complaint or an- 
 swer generally considered, apply equally to each separate statement of 
 a, cause of action or ground of defence therein stated. Each such state- 
 ment must be full and complete in itself, and must contain all neces- 
 sary constituents. See, as to such statements in a complaint, Ldndcm 
 vs. Levy, 1 Abb., 376 ; Clark vs. Farley, 3 Duer, 645. As to a de- 
 fence, Xenia Branch Bank vs. Lee, 7 Abb., 372 ; 2 Bosw., 694. 
 
 A complaint will be sufficient, under the Code, if facts are stated in 
 it which warrant the judgment of the court, though the grounds of that 
 ■ judgment may not be those originally contemplated by the* pleader. 
 Wright vs. Hooker, 6 Seld., 51. 
 
 It follows witja equal clearness, from the principle above stated, that 
 if, when the whole of the case of the party pleading is stated, the 
 facts therein stated fall short of constituting a cause of action or ground 
 
OF PLEADINGS. — § 122. 675 
 
 of defence, the pleading will, of course, be fatally defective, and prac- 
 tically useless. It will be impeachable, either by demurrer in the first 
 instance, or by objection on the ground of insufficiency at the hearing, 
 and, in aggravated cases, by motion to set aside. 
 
 To enter into any detailed consideration of this branch of the subject 
 in the present section would, of course, be premature. A few cases of 
 general aspect may, however, be advantageously adverted to. 
 
 If any portion^ of an entire contract be void for illegality, it will be 
 void in toto ; the court will not undertake to sift the claim, and it 
 cannot be made the subject of a suit. Rose vs. Truax, 21 Barb., 361. 
 
 The general principle is thus laid down in Smith vs. Lockwood, 13' 
 Barb., 209 ; 10 L. O., 232 ; 1 C. E. (E. S.), 319 : " The court must 
 see by the facts set forth in the complaint, that the plaintiff's have sus- 
 tained, or are threatened with some legal injury. Tlie objection is fatal 
 to the complaint, as it now stands." See likewise Field vs. HolhrooTc, 
 6 Duer, 597; 14 How., 103 ; Raynor vs. CZar/^, TBarb., 581 ; 3 C. R., 
 230! 
 
 See also as to insufficiency of a complaint for breach of promise of 
 marriage, Buzzard vs. Knajpp, 12 How., 504. 
 
 As to the invalidity of insufficient defences, see The Farmers' Bank 
 of Saratoga County vs. Merchant, 13 How., 10 ; Van Valenvs. Lapham, 
 5 Duer, 689 ; 13 How., 240 ; Welch vs. Eazelton, 14 How., 97 ; Ileeb- 
 ner vs. Townsend, 8 Abb., 234 ; Bank ofWaterville vs. Beltser, 13 How., 
 270 ; Snaderbeck vs. Wertler, 8 Abb., 37. As to the waiver of a stat- 
 utory objection, by an omission to plead it, see JSaight vs. Child, 34 
 Barb., 186. 
 
 ig.) Peinoiple of " secundum allegata." 
 
 The necessity for a complete averment of all material facts being 
 made, upon every pleading, whether on the part of a plaintiflp or of a 
 defendant, is fm-ther demonstrated, if demonstration were necessary, by 
 a mere reference to the familiar principle that no evidence can, on the 
 trial of a cause, be adduced by either party, unless in support or in dis- 
 proof of some issne regularly tendered by and joined upon the plead- 
 ings. The decree or judgment must be secundum allegata et probata, 
 ■and, to make proof available, it must be based upon allegation. 
 
 The following are selected as. some of the principal dicta and decis- 
 ions by which this old established principle has been recently reasserted. 
 N. B. Those in 2d Comstock are strictly under the old practice, but 
 are equally applicable to the new. 
 
 As to a complaint, thus : " Particular care must be taken to put in 
 issue in the bill, whatever is intended to be proved by the complainant 
 in the cause, otherwise he will not be permitted to give it in evidence, 
 
576 OF PLEADINGS. § 122. 
 
 for the court pronounces the decree seoundv,m allegata etprohata. Tha 
 reason of this rule is, that the adverse party may be apprized against 
 what suggestions he is to prepare his defence." Ferguson vs. Ferguson, 
 2 Comst, 360 (361). 
 
 The same rule is also again repeated in the same terras (being charac- 
 terized as " well settled"), in Kelsey vs. Western, 2 Oomst., 500 (506). 
 
 The same case then proceeds thus upon the subject of answer : 
 
 " This rule is equally applicable to a defendant who makes a defence 
 by answer. It requires him, besides answering the plaintiff's case as 
 made by the bill, to state to the court in his answer, all the circum- 
 stances of which he intends to avail himself by way of defence, for he 
 is bound by his answer to apprize the plaintiff, in an unambiguous man- 
 ner, of the nature of the case he intends to set up ; and he cannot avail 
 himself of any matter in defence which is not stated in his answer, even 
 though it should appear in his evidence." 
 
 After remarking that the provisions in sections 169, lYO, and 171 of 
 the Code, only apply to cases where the pleading sets\up some particillar 
 matter, but fails to present such matter, as proved in sorhe particular, so 
 that there is strictly a variance between the pleading and the evidence, 
 the decision proceeds : " But when, as in this case, there is a total 
 want of allegation in the pleading of the subject-matter as a ground of 
 action, or of defence, the want of such allegation is not cured by the 
 Code, so as to allow of a decree to be founded upon the proof without 
 allegation." 
 
 The same principle is as clearly, though less fully laid down in Bra- 
 zill vs. Isham, 2 Kern., 9 (17) ; affirming same case, 1 E. D. Smith, 437. 
 See also MoKyring vs. Bull, 16 IST. T., 297 (304, 307), above cited. It 
 is laid down clearly though curtly, thus: "Facts proved, but not 
 pleaded, are not available to the party proving them," in the head-note 
 to Field vs. The Makjor of New York, 2 Seld.,.179. See also Bailey 
 Yi,. Ryder, 6 Seld., 263 ; Larawayws,. Perkins, 6 Seld., 371.; McCurdy 
 vs. Brown, 1 Duer, 101 ; Oakley vs. Morton, 1 Kern., 25. 
 
 The same rule is laid down as to the necessity of matters of special 
 damage being not merely proved, but pleaded in terms, in VandersUce 
 vs. Newton, 4 Comst., 130, and Low vs. Archer, 2 Kern., 277 (282). 
 See, too, Molony vs. Dows, 15 How., 261 (265). 
 
 See also the following decisions in the courts below : 
 
 As against plaintiff's denying the introduction of evidence, on mattere, 
 not duly or sufficiently alleged or put in issue by the complaint : " The 
 rule is explicit and absolute, that the plaintiff must recover according 
 to the case made by his bill, or not at all, secundum allegata," as well 
 as "probata." Thomas vs. Austin, 4 Barb., 265 (273). See also Bris- 
 tol vs. The Rensselaer and Saratoga Railroad Company, 9 Bart)., 158 • 
 
OF PLEADDsras. — § 122. 577 
 
 Salters vs. Oenin, 3 Bosw., 250; Cottrell vs. Conhlm, 4 Duer, 45: 
 Adams vs. The Mayor of New Yorh, 4 Duer, 295 (306) ; Lwingston 
 vs. Tanner, 12 Barb., 481 ; Currie vs. Cowles, 6 Bosw., 452 ; Sjpear vs. 
 Downing, 34 Barb., 522 ; 23 How., 30 ; 12 Abb., 437. 
 
 As against defendants, under similar defects of substantive allegations 
 in the answer : Brazill vs. Isham, above cited ; Gihon vs. Levy, 2 Duer, 
 176 ; Graham, vs. Harrower, 18 How., 144 ; New York Central Insu- 
 rance Company YS. National Protection Insurance Company, 20 Barb., 
 468 (473). (N. B. — Not aflPected as regards this principle by the reversal, 
 4 Kern., 85.) Harbeck vs. Craft, 4 Duer, 122 (128) ; Pepper vs. Haight, 
 20 Barb., 429 ; Gasper vs. Adams, 28 Barb., 441 ; Pier vs. Finch, 29 
 Barb., 170 ; Ford vs. Sampson, 30 Barb., 183 ; 17 How., 447 ; 8 Abb., 
 332 ; Catlin vs. Hansen, 1 Duer, 309 ; Coan vs. Osgood, 15 Barb., 583 ; 
 Keteltas vs. Maylee, 1 C. E. (N. S.), 363 ; Newell vs. Salmons, 22 Barb., 
 647 ; Dillaye vs. Parks, 31 Barb., 132 ; Diefendorf vs. (ra^e, 7 Barb., 
 18; Devendorf vs. Beardsley, 23 Barb., 656; Jacobs vs. Remsen, 12 
 Abb., 390 ; 85 Barb., 384 ; Williams vs. ^*tcA, 6 Bosw., 674 ; (9^cZe»i 
 vs. Raymond, 5 Bosw., 16 ; /Sbo<^ vs. Johnson, 5 Bosw., 213; Kissam vs. 
 Roberts, 6 Bosw., 164 ; Buckman vs. ^i^e^, 22 How., 233 (235) ; 13 
 Abbii? 119 ; Hendricks vs. Z>ec/ter, 35 Barb., 298 ; 35. Barb., 596. 
 
 The above series of decisions on the subject of defensive pleading, 
 show the entire abolition of the ancient practice of introducing special 
 matter in evidence, on notice given, under a plea of the general issue. 
 Under the new system this is wholly inadmissible ; and facts of this 
 nature must be specifically averred. See Brazill vs. Isham, above cited. 
 See also Caiiin vs. G-unter, 1 Duer, 253 (265) ; 11 L. 0., 201. N. B.— 
 The reversal, 1 Kern., 368 ; 10 How., 315, does not aifect this point. 
 
 As to the paramount expediency of iraming the allegations of fact in 
 a pleading, with a distinct view to the relief proposed to be sought, 
 see Briggs vs. Vanderbilt, 19 Barb., 222, and Yertore vs. Wiswall, 16 
 How., 8 (10). 
 
 As to the risk incurred by either party, by looseness of allegation, in 
 respect to tlie consequent admissibility of adverse evidence, see Brown 
 vs. Colie, 1 E. D. Smith, 265. 
 
 Although public statutes need no special reference to them, on plead- 
 ing facts which bring the case within their operation, and although this 
 rule holds good as to statutes of local, as well as to those of general 
 application, and to ordinances expressly founded on such statutes, this 
 is not the case with reference to ordinary municipal ordinances. Such 
 ordinances are not public acts, to the extent that they can be jioticed, 
 without being specially pleaded. Tlie People vs. The Mayor of Ne/w 
 York, 7 How., 81. 
 
 Vol. 1.— 37 
 
578 OF PLEADINGS. — § 123. 
 
 § 123. Mode of Averment. 
 
 (a.) Geneeal Considekations. 
 
 The considerations applicable to this branch of the subject, flow, in 
 a great measure, from the principles above laid down. 
 
 The statement of facts in a pleading must be adapted to the nature 
 of the relief sought in the action. 
 
 It must be a statement of the constitutive facts of the case, and not 
 merely of the evidence proving, or tending to prove those facts. 
 
 It must state facts only, and not substitute for them bare conclu- 
 sions of law, or arguments, or inferences. 
 
 It must state the whole of the case sought to be proved, so as to lay 
 ground for all evidence sought to be introduced. 
 
 And the case so stated must be sufficient, either as a cause of action 
 or ground of defence. 
 
 On these points it will not be necessary to make any recapitulation. 
 There are,, however, several minor considerations, affecting rather the 
 mode of statement than the essentials of the matter to be stated, which 
 it is proposed to deal with in the present section. 
 
 The essential principle of every affirmative averment, whether on the 
 part of a plaintiff or of a defendant, is that all essential facts should ap- 
 pear upon its face. 
 
 (5.) Naeeative. 
 
 Although, as a general rule, it will be expedient to frame such aver- 
 ments with a special view to the peculiar relief sought, still there may 
 be cases in which a simple narrative of the facts may be expedient or 
 even necessary. See Thompson vs. Minford, 11 How., 273. 
 
 (c.) Statement of Conclusions. 
 
 Nor is it necessary, where facts sufficient to establish the case of the 
 party pleading are averred, to draw, upon the face of the pleading 
 itself, the conclusions of law arising from those facts, upon which he 
 seeks to recover or defend. Such allegations are usual, but they are 
 not, in strictness, necessary. The legal conclusion follows the fact 
 established. Vide Sheldon vs. Hoy, 11 How., 11 (16) ; Fowler vs. 
 The Wew York Indemnity Insurance Company, 23 Barb., 143 ; Ives 
 vs. Humphrey, 1 E. D. Smith, 196. See Eno vs. Woodworth, 4 Comst., 
 249 (253) ; 1 C. R. (E. S.), 262. And the same is the case, even when 
 the plaintiff has mistaken his remedy, or prayed for a judgment to 
 which he is not entitled, if the case which he has stated entitles him 
 to any, either legal or equitable. Emery vs. Pease, 20 E". Y., 62 (64). 
 
OF PLEADINGS. — § 123. 579 
 
 {d.) Statements to be Positive. 
 
 The averments in a pleading, whether on behalf of a plaintiff or de- 
 fendant, should be made positively, wherever the nature of the case 
 admits. It has been held that this should be so, even when such aver- 
 ments are actually on information and belief, the mode of verification 
 being, of itself, sufficient to effect the necessary reservation by the party 
 verifying. Vide Truscott vs. Dole, 7 How., 221 ; MilliJcen vs. Carey, 
 5 How., 272 ; 3 C. E., 250 ; BoUner vs. mhson, 3 C. E., 153 ; 9 L. O., 
 77 ; Bicketts vs. Green, 6 Abb., 82. See also New York Marbled 
 Iron Works vs. Smith, 4 Duer, 362 (374). See likewise as to denials, 
 Thorn vs. JVew York Central Mills, 10 How., 19 ; Hackett vs. Richards, 
 11 L. O., 315 ; but see also qualification of the latter case, at general 
 term, 3 E. D. Smith, 13. 
 
 There can be no doubt but .that,- wherever possible, this should be 
 done. The principle as to its absolute necessity seems, however, to be 
 carried somewhat too far in the above decisions. In others it has been 
 held that, when the truth requires it, averments made on information 
 and belief, or even on belief only, will be sufficient, as averments of the 
 fact thus stated. Radway vs. Mather, 5 Sandf., 654 ; Fry vs. Bennett, 
 1 C. E. (E. S.), 238 (249) ; Howell vs. Fraser, 6 How., 221 ; 1 C. E. 
 (ISr. S.), 270 ; Borrowe vs. MiUhank, 5 Abb., 28 ; 6 Duer, 680. 
 
 A statement, either by way of mere implication or inference, will, 
 though unanswered, be insufficient, standing alone, to warrant a recov- 
 ery, or the exclusion of evidence in disproof To have either effect, it 
 must be direct and positive. Oechs vs. Cook, 3 Duer, 161. See also 
 Brown vs. Harmon, 21 Barb., 508. 
 
 As to the statement of facts in an inferential, instead of in a direct 
 and positive manner, rendering a pleading demurrable, see Bodi vs. 
 President, cfec, Bulger's Fire Insurance Company, 6 Bosw., 23. 
 
 (e.) Htipothetical and Alteenative Pleading 
 
 As a general rule, allegations of this nature are inadmissible. Facts, 
 when pleaded, must be pleaded directly to the point, and neither hypo- 
 thetically or alternatively. As regards the statement of a cause of action, 
 this rule may be taken as universal. See Saltus vs. Genin, 17 How., 
 390 ; 8 Abb., 254 ; 3 Bosw., 639. See also, as to a hypothetical prayer, 
 lamoreux vs. The Atlantic Mutual Insurance Compa/ny, 3 Duer, 680. 
 
 As regards defensive pleading, its universal operation cannot be 
 conceded. Its general applicability is, it is true, laid down and asserted 
 in numerous recent decisions. See Boyce vs. Brown, 3 How., 391 ; 7 
 Barb., 80; McMurray vs. Gifford, 5 How., 14; lewis vs. Kendall, 6 
 How., 59; 10. R. (E. S.), 402; SayUs vs. Wooden, 6 How., 84; 1 G. 
 
580 OF PLEADIB-GS. § 123. 
 
 E. (]Sr. S.), 409 ; Pwter vs. McCreedy, 1 C. E. (IST. S.), 88 ; Arthur v?. 
 Brooks, 14 Barb., 533 ; Buddington vs. Davis, 6 How., 401 ; Wies vs. 
 Fanning, 9 How., 543 ; EamiUony&. Hough, 13 How., 14 ; Dovan vs. 
 Dinsm.ore, 33 Barb., 36 ; 20 How., 503. See also, as to a reply, Lewis 
 vs. Acker, 11 How., 163. 
 
 Even as regards slander, however, the subject matter of the majority 
 of the cases cited in the last sentence, its universal applicability is de- 
 nied, and a defence, by way of justification, in connection with a denial 
 of the charge, was allowed by a majority of the general term of the first 
 district, in Butler vs. Wentworth, 17 Barb., 649 ; 9 How., 282, such de- 
 fences being separately stated. 
 
 The general rule is, also, further controverted, and the principle laid 
 down that a separate hypothetical defence may be predicated, in con- 
 nection with a denial of the plaintiif 's case, upon any facts alleged in 
 the complaint, not presumptively within the knowledge of the defend- 
 ant, in Brown vs. Byckinan, 12 How., 313 ; and Ketohum vs. Zerega, 
 1 E. D. Smith, 553. In the latter of these cases, the subject is very 
 fully discussed, and numerous instances are given, in which pleading 
 substantially hypothetical was allowed, even under the strict rules of the 
 former practice. See Opinion, pp. 560, 561. 
 
 The learned judge adds : " It is clear to my mind that the defendant 
 cannot be required, as a condition of averring new matter, to make an 
 admission of the facts alleged, which shall preclude him from denying 
 them on the trial. Such was not the rule before the Code, and such is 
 not the rule now. It is only for the purposes of the issue formed upon 
 the new matter, that the defendant must admit, or rather that he is, by 
 setting up the new matter, deemed to admit, the truth of the allegations 
 avoided thereby. 
 
 " This is the whole of the rule, and the defendant was not required, 
 even for this purpose, to admit the allegations in terms." 
 
 This view seems more consonant to the spirit of the Code, especially 
 to that of section 150, which expressly empowers a defendant to set 
 forth, by answer, " as many defences and counter-claims as he may 
 have," the only absolute condition being that they should be separately 
 stated. 
 
 An alternative mode of statement of a single defence does not fall 
 within the spirit of the last observation, and is clearly bad. Oorhin vs. 
 St. George, 2 Abb., 465. 
 
 (/".) Inconsistency 
 
 The rule, as to inconsistency of statement, is substantially the same. 
 In a complaint it may be taken as universally inadmissible. See 
 Latti/n vs. McOa/rly, IT How., 239 ; 8 Abb., 225 ; Smith vs. EaMock, 
 
OF PLEADINGS.— § 123. 581 
 
 8 How., 73 ; Budd vs. Bingham^ 18 Barb., 494 ; Bweet vs. Ingerson, 12 
 How., 331. See also, more fully, in a subsequent chapter, under the 
 head of Joinder. As regards an answer, however, inconsistency, in 
 point of form, seems no bar to the assertion of any mamber of defences, 
 provided only they comply with the conditions of section 150, and are 
 separately stated. Inconsistency, in substance, may, however, render 
 the defence bad. See, hereafter, book VHI., chapter IV., section 176, 
 < and cases there cited. 
 
 {g.) Ceetaintt. 
 
 "Whatever the nature of the pleading, it is equally essential that its 
 allegations should be definite and certain, so as to give the court 
 adequate data on which to ground a judgment, whether affirmative or 
 negative in its nature. Tallman vs. Green, 3 Sandf., 437 ; Gihon vs. 
 Levy, 2 Duer, 176 ; Fairlanks vs. Bloomfidd, 2 Duer, 349 ; Olarh vs. 
 Farley, 3 Duer, 645 ; Cheesebrough vs. New Yorh and Erie Railroad 
 Company, 13 How., 557 ; 26 Barb., 9. See also Wiggins vs. Gans, 3 
 Sandf, 738; 1 C. E. (N. S.), 117; Anmi., 3 How., 406; Hoxie vs. 
 Cushman, 7 L. O., 149. 
 
 But, as regards the allegation of time, when not bearing upon the 
 essence of the controversy, the old rule that absolute correctness is not 
 essential, is not varied. Vide Brown vs. Harmon, 21 Barb., 508 ; 
 also Andrews vs. Chadbourne, 19 Barb., 147. 
 
 (A.) Facts Accoeding to Legal Effect. 
 
 So far as is practicable, facts should always be averred according to 
 their legal effect. Gasper vs. Ada/ms, 28 Barb., 441 ; Boyce vs. Brown, 
 above cited ; Pattison vs. Taylor, 8 Barb., 250 ; ICE. (N". S.), 174 ; 
 Dollner vs. G^son, 3 C. E., 163; 9 L. 0., 77; 8tewa/rt vs. Travis, 10 
 How., 148 (153) ; Ives vs. Humphreys, 1 E. D. Smith, 196 ; Bennett 
 vs. Judson, 21 JST. Y., 238. 
 
 The sti'ingency of the rule is, however, considerably overstated in 
 several of the foregoing decisions, nor does it seem to be positively 
 binding, in that class of cases, where, by adopting this mode of state- 
 ment, the real truth will not appear in terms. In such a case it is 
 admissible to state the facts as they occurred, leaving the court to 
 determine their effect. See St. John vs. Griffith, 1 Abb., 39. 
 
 (*".) Looseness and Superfluity. 
 
 Looseness in averment entails upon the pleader the risk of giving a 
 wider latitude for the introduction of adverse evidence. Yide Brown 
 vs. Colie, 1 E. D. Smith, 265. 
 
 Superfluity may be equally detrimental, and may totally change the 
 
582 OF PLEADINGS. — § 123. 
 
 aspect of the case, either by the waiver of objections, or the introduc- 
 tion of otherwise inadmissible proof. Belknap vs. Seeley, 2 Duer, 570 
 (579) ; Calkins vs. Isbell, 20 IsT. Y., 147 (152) ; People vs. The Bavena-, 
 wood, c&c, Turnpike and Bridge Company, 20 Barb., 518. 
 
 (J.) Anticipation. 
 
 It will be also wholly unnecessary, and, in many cases, inadmissible, 
 for the pleader to anticipate in his pleading, supposed defences or 
 grounds of reply to a supposed defence, which may or may not be 
 raised by the adverse party. All that he is required strictly to do is 
 to allege his own case, and nothing more, leaving it for his adversary 
 to set up such matters, or not, as he may choose. Vide Wolfe vs. Howes, 
 20 ]Sr. Y., 197 ; Hunt vs. Hudson Bimer Fwe Insurance Company, 2 
 Duer, 481 ; Butler vs. Mason, 16 How., 546 ; 5 Abb., 40 ; Sands vs. 
 St. John, 23 How., 140 ; Fowler vs. The New York Indemnity Insur- 
 ance Company, 23 Barb., 143 (150) ; Pattison vs. Taylor, 8 Barb., 250 ; 
 1 C. R. (N. S.), 174. 
 
 See, however, this rule somewhat qualified, and averments of this 
 nature refused to be stricken out, in Bracket vs. Wilkinson, 13 How., 
 102. See also, generally, Williams vs. The Insurance Company of 
 North Aineri.ca, 9 How., 365 (373). 
 
 In an action for an injury, it is not necessary for the plaintiff to 
 deny negligence or carelessness on his part, on the face of his complaint. 
 Wolfe vs. Supervisors of Bichmond, 19 How., 370; 11 Abb., 270. 
 
 {k.) Adaptation to Case, whethee Legal oe Equitable. 
 
 At the outset of the new practice, considerable coniiict of opinion 
 arose, some members of the judiciary inclining to the general adoption 
 of the strict rules of common-law pleading ; others to a more extended 
 application of the former mode of averment in equity. 
 
 The continued existence of the former essential distinctions between 
 suits of a strictly legal or a strictly equitable nature, having been at 
 length firmly established, as shown in previous portions of this chapter, 
 the dependent discussion as to the principles of averment, in actions 
 falling under one or the other of these classes, has died away with the 
 original controversy. 
 
 It may now be considered as completely settled, according to the 
 principle enounced at the outset, in Shaw vs. Jayne, 4 How., 119 ; 2 
 C. R., 69, that it is competent for, and also the duty of, the pleader, 
 " to adapt the form of his statement to the class, either legal or equitable, 
 to which the action belongs." 
 
 In Knowles vs. Oee, 4 How., 317, it was admitted that " the legisla- 
 ture, by adopting the forms of chancery pleadings, had given unequiv- 
 
OF PLEADINGS. — § 123. 583 
 
 ocal indication of a prfeference for those forms," and that, in consol- 
 idating two distinct systems of jurisprudence, "it became indispensable 
 to borrow something from each." See also Linden vs. JSephurn, 3 
 Sandf., 668 ; 5 How., 188 ; 3 0. E., 65 ; 9 L. O., 80 ; and Burget «. 
 Bissel, 5 How., 192 ; 3 0. K., 215, in which this principle is further 
 laid down, that, in cases where there was any doubt whether the action 
 or defence was of an equitable nature, any averments adapted to the 
 latter contingency ought to be allowed to stand. 
 
 In Ths Rochester City Bwrik vs. Suydam, 5 How., 216, the principle, 
 as to the proper averments in equitable cases, was thus enounced : 
 
 " The kind of relief given by a court of equity imperatively required 
 a different mode of stating the case from that adopted in the common- 
 law courts. 
 
 '^ The decree in chancery, with all its varied provisions, its conditions 
 and limitations, could not be ingrafted upon the record of a common- 
 law action. The two were incompatible. From the one was carefully 
 excluded every fact, not essential to enable the court to determine for 
 which party to give- judgment ; the other required a consideration of all 
 the circumstances, bearing upon the nature of the judgment, and going 
 to modify or vary its provisions." 
 
 The learned judge then summed up his argument as follows : " So 
 long as jurisdiction in equity and law are kept distinct, and courts of 
 justice are permitted to adapt the relief thus afforded to the facts and 
 circumstances in one class of cases, while they are confined to a simple 
 judgment for or against the plaintiff in all others, so long must different 
 rules be applied to pleadings at law or in equity. 
 
 " To do this is not inconsistent with the provisions of the Code, which 
 does not attempt to abolish the distinction between law and equity, 
 even if the legislature had the power to do so under the constitution. 
 See Constitution, art. YI., §§ 3 and 5. 
 
 "My conclusion, therefore, is, that the statement of facts in a com- 
 plaint should be in conformity with the nature of the action. If the 
 case, and the relief sought, be of an equitable nature, then the rules of 
 chancery pleading are to be applied ; otherwise, those of the common 
 law." 
 
 In Wooden vs. Waffle, 6 How., 146 ; ICE. (K. S.), 392, the distinc- 
 tion between the necessary allegations in common-law and equity 
 pleadings is thus drawn : " The allegations in a pleading at law consist 
 of a chain of facts, all tending to establish some definite legal right. 
 An equity pleading, on the contrary, frequehtly, if not generally, 
 consists of an accumulation of facts a,nd circumstances, without logical 
 dependency, but the accujiiulated weight of which is claimed to be 
 sufficient to raise or defeat an equity. If a single link be destroyed in 
 
584 OP PLEADINGS, — § 123. 
 
 the former, the whole conclusion falls ; but, if you abstract a fact from 
 the latter, you have npt of necessity broken the chain, but only dimin- 
 ished the weight of the whole." After drawing a similar distinction 
 between what are really material issues, in legal and equitable actions, 
 and defining the latter as " an issue upon a fact which has some bearing 
 upon the equity, and ought to be established," but not a mere matter 
 of evidence ; and stating as one of the reasons why chancery pleading 
 was made more in detail, that its purpose was "to put the court in 
 possession of all the facts going to show both the plaintiif 's right to 
 relief, and what that relief should be ;" the learned judge proceeds to 
 lay down that this reason "is in no way affected by any provision of 
 the Code. Equity jurisdiction is maintained. It is exercised upon the 
 same principles and to the same extent as heretofore. The mode of 
 trial is the same. The relief is adapted to the circumstances of "the 
 case. Every reason, therefore, which ever existed for a full statement 
 of the case, exists now." 
 
 In Howard vs. Tiffany, 3 Sandf., 695 ; 1 C. R. (N. S.), 99, it is also 
 laid down that, where a portion of the relief sought is of an equitable 
 nature, it will be often indispensable to set forth facts, which need not 
 be stated in respect of the other relief, " and, as much at large as was 
 formerly done in a well-drawn bill in chancery ;" and also, that the 
 " facts constituting a cause of action, include not merely the facts upon 
 which the plaintiff's right to relief is founded," but also " all such facts 
 as are necessary to found the particular relief demanded, and to enable 
 the court to give the proper judgment in the action." 
 
 In Minor vs. Terry, 6 How., 208 ; 1 C. E. (N. S.), 384, similar prin- 
 ciples are sustained, in relation to pleading under the Code, generally 
 considered ; and it is laid down that, since the abolition of forms, every 
 action is analogous to an action on the case, under the old practice, in 
 which the pleader was accustomed to set forth the facts of his case 
 particularly, and at large. See also Thompson vs. Minford, H How., 
 273. See likewise Coit vs. Coit, 6 How., 53 ; Fay vs. Grimsteed, 10 
 Barb., 321. The highly restricted views on the subject of averments 
 in cases of an equitable or general nature, as taken in MilUken vs. 
 Ca/ry, 5 How., 2Y2 ; 3 C. E., 250 ; Dollner vs. Oihson, 3 C. E., 153 ; 9 
 L. 0., 77 ; Pattismi vs. Taylor, 8 Barb., 250 ; 1 C. E. (IST. S.), 174, and 
 other similar decisions may now be considered as overruled, Dollner 
 vs. Gibson seems, in fact, to have been reversed. 
 
 The general result of the mutual exchange of principles referred to 
 in Knowles vs. Gee, swpra, may be thus shortly stated : 
 
 In common-law pleading, under the Code, the following principles 
 of averment are borrowed from the former equity system. 
 
 The system of different counts tending to the same relief is abolished. 
 
OP PLEADINGS. — § 123. 585 
 
 So also is the system of fictitious allegations. 
 
 So also tliat of alleging a conclusion of law as the foundation of the 
 cause of action. 
 
 The pleading must, on the contrary, aver the facts of the case, as 
 they exist. 
 
 The equity system has borrowed from that of the common law the 
 following : 
 
 The old system of averments by way of pretence and cha/rge, and the 
 statement of legal propositions, is swept away. Vide Ola/i'h vs. Har- 
 wood, and Gould vs. Williams, supra. 
 
 So also is that of interrogations and allegations with a view to dis- 
 covery. Code, § 389. 
 
 In common-law actions, the allegations must be confined to facts 
 tending to show the right to a recovery, and to those only. In suits at 
 equity this is, of course, equally necessary ; but a wider latitude is 
 given, and any facts tending to show the measure of relief to be 
 granted, are also, not merely admissible, but necessary, with a view to 
 the due administration of that relief. 
 
 (Z.) Old Foems, how fab Available. 
 
 And, with a view to the due framing of averments of either nature, 
 having regard to the distinctions above drawn, the old forms, though 
 generally abolished, may still partially be adopted, and adopted with 
 advantage. 
 
 First. With regard to common law : 
 
 It is laid down in Zabriskie vs. Smith, 3 Kern., 322 (330), that, under 
 the present system of pleading, " a complaint should contain the sub- 
 stance of a declaration under the former system." See also Howard 
 vs. Tiffany, 3 Sandf., 695 ; 1 0. E. (K S.), 99. 
 
 In Buddington vs. Da/vis, 6 How., 401 (402), the converse is laid 
 down : " "What is now a good answer, would before have constituted 
 a good plea in bar." 
 
 In the following cases, the mode of statement of a cause of action, 
 substantially in the same manner as was theretofore in use under the 
 old practice, is approved : 
 
 For false imprisonment. Shaw vs. Jayne, 4 How., 119 ; 2 0. E., 69. 
 • For breach of promise of marriage. Leopold vs. Poppenhevmer, 
 1 0. E., 39. 
 
 For assault and battery. Boot vs. Foster, 9 How., 2,t. 
 
 In an action against a common carrier, but employing the first of the 
 old counts only. StOGkbridge Iron Oompamy vs. Mellen, 5 How., 439. 
 
 In an action of replevin in the detimst. Hunter vs. Hudson Rimer 
 Iron amd Machine Company, 20 Barb., 493. 
 
586 OF PLEADINGS. § 123. 
 
 In an action for a statutory penalty. The People vs. Bennett, 5 Abb., 
 384; affirmed, 6 Abb., 343 ; The People vs. JfwZZer, 6 Abb., 344, note; 
 overruling Morehouse vs. Crilley, 8 How., 431. 
 
 Or in one brought to recover back money lost at play, contrary to 
 the provisions of the statute against betting and. gaming. Betts vs. 
 Bache, 14 Abb., 297 ; affirming same case, 23 How., 19T ; 14 Abb., 29T. 
 
 Even a complaint in the form of the old indebitatus count will b^ 
 good under the Code, the facts necessary to ground a recovery be- 
 ing stated on its face. Allen vs. Patterson, 3 Seld., 4Y6 ; Oudlipp 
 vs. Whipple, 4 Duer, 610 ; 1 Abb., 106 ; Adams vs. Holley, 12 How., 
 326 ; Stewart vs. Tramis, 10 How., 148. See also Hall vs. Southmayd, 
 15 Barb., 32. It may be remarked, however, that this line of cases are 
 in their nature permissive, and not directory. An inversion of this 
 order, and a substantive statement of the facts showing indebtedness 
 in the first instance, then alleging that indebtedness as the result, seems 
 to be better pleading. Vide Eno vs. Wood/worth, 4 Comst., 249 (253) ; 
 1 C. K. (K S.), 262. 
 
 But the common counts, tinder the old practice, will not be admis- 
 sible, if employed in the aggregate, without selection, according to the 
 true state of the case. Nor, where deficient in certainty, or allegation 
 of the specific facts on which indebtedness was predicated, will they be 
 available. Vide Blanchard vs. Strait, 8 How., 83 (86) ; Woods vs. 
 Anthony, 9 How., 78. 
 
 The substance of the former statutory declaration in ejectment, so far 
 as the truth was thereby stated, but not in so far as the statement was 
 fictitious, riiay, and should also be employed as the model for a com- 
 plaint under the Code. A detailed allegation of the plaintiff's title 
 will, in fact, be improper. Vide Ensign vs. Sherman, 14 How., 439. 
 See also same case below, 13 How., 35 ; Sanders vs. Levy, 16 How., 
 308 ; Walter vs. Lockwood, 23 Barb., 228 ; 4 Abb., 307 ; Wa/mer vs. 
 Nelligar, 12 How., 402 ; The People vs. The Mayor of New Torlc, 8 
 Abb., 7 (19). By these decisions, Lawrence vs. Wright, 2 Duer, 673, 
 is so far overruled. 
 
 And a plea of the statute of limitations, according to the old estab- 
 lished form, was sustained in Bell vs. Yates, 33 Barb., 627. 
 
 Second. With regard to equity cases : 
 
 The stating part of a well-drawn bill in chancery, will form an eligi- 
 ble model for the statement of facts in a similar complaint under the 
 Code. See Howard vs. Tiffany, above cited ; Fay vs. Orimsteed, 10 
 Barb., 321 ; Hunt vs. Hudson River Fire Inswance Compam.y, 2 Duer, 
 481 (488). 
 
OF PLEADINGS. — § 123. 5 8*7 
 
 (m.) Geneeal Obseevations as to Aveement. 
 
 Before preparing a pleading of whatever nature, every known cir- 
 cumstance of the case should he first maturely weighed, especially as 
 regards its probable bearing on the general result of the suit. No more 
 dangerous error can be committed, than to defer a complete investiga- 
 tion in this respect until the case approaches a hearing. 
 
 Whilst, in so doing, the probable defence or probable reply to that 
 pleading should be present to the mind of the pleader, whilst framing 
 his original statements ; still, on the other hand, tlie insertion of antici- 
 patory or conjectural allegations should always, as far as possible, be 
 avoided, both as affording evidence of a sense of weakness, and also as 
 calculated to suggest the taking of objections that might otherwise have 
 escaped notice. The grand object in all pleadings, should be to state 
 exactly enough to maintain the party's own case, and to furnish a 
 ground for the introduction of the evidence by which it is proposed to 
 be established ; to state every thing necessary for these purposes, and 
 to state not one word, not one syllable more. Every imneeessary alle- 
 gation, however apparently trivial, gives, jpro tcmto, an advantage to 
 the adversary. In every case, too, whilst alleging the necessary facts, 
 care must be taken to allege them, or rather to allege the conclusioa 
 founded upon them, in such general terms, as to afford ground for the 
 introduction of every species of evidence whatever, either direct or col- 
 lateral, which may possibly bear upon the issue to be tried. The judi- 
 cious employment of terms, and even the substitution of one word for 
 another, of almost the same general import, may often accomplish this, 
 and may perhaps lead to the most important ultimate results. 
 
 {n.) AVEEMENTS, UNDBE A StATTTTOET PeOVISION. 
 
 Whenever the cause of action or ground of defence is grounded upon 
 any statutory provision, the exact wording of the statute ought in all' 
 cases to be strictly followed. Schroeppel vs. Corning, 2 Comst., 132 ; 
 Htmt vs. Butcher, 13 How., 538 ; Foot vs. Harris, 2 Abb., 454. 
 
 A general averment of the passage of a statute will be sufficient, with- 
 out the details necessary to show it has actually gone into operation. 
 Wolfe vs. 8-wpervisors of Richmond, 19 How., 370 ; 11 Abb., 270. 
 
 See also, as to a declaration for a statutory penalty. The People vs. 
 Bennett, 5 Abb., 384; affirmed, 6 Abb., 343; overruling JfweAo-wse vs. 
 Crilley, 8 -How., 431. See likewise, as to plea of the statute of limita- 
 tions, Ford vs. Bahcock, 2 Sandf., 518 (523) ; Cole vs. Jesswp, 6 Seld., 
 96 ; 10 How., 515 (524) ; Bell vs. Yates, 33 Barb., 627. And where an 
 exception forms part of the enacting clause, instead of being added in a 
 
588 OF PLEADINGS. — § 123. 
 
 proviso, its existence should be negatived. First Baptist Church vs. 
 Utica and Schenectady Railroad Company, 6 Barb., 313 (319). 
 
 Where, however, the allegations in a pleading clearly bring the case 
 within the purview of a public statute, the court will take judicial no- 
 tice, and a reference to it in terms will not be indispensable. CMaley 
 vs. Reese, 6 Barb., 658 ; Brown vs. Harmon, 21 Barb., 508 ; Qoelet vs. 
 Cowdrey, 1 Duer, 132 ; Shaw vs. ToUas, 3 Comst., 188. 
 
 City ordinances must be averred as facts. People vs. Mayor of New 
 Tori, T liow., 81. But a statute under which they are made, though 
 of local application, is of a public natixre, and need not be specially 
 " pleaded. Beman vs. Tugnot, 5 Sandf., 153. 
 
 As to the presumption with respect to foreign laws, and the construc- 
 tion of the common law in another state, see Wright vs. Belafield, 23 
 
 Barb., 498. 
 
 In pleading a statutory proceeding, such as attachment, jurisdiction 
 in the officer is all that need be averred, and not even that, when issued 
 by a court of general jurisdiction. Cruyt vs. Phillips, 16 How., 120 ; 
 YAbb., 205. 
 
 (o.) Averments by ok agahtst Incoepoeations. 
 
 The following provision is made upon this subject at 2 E. S., 459, 
 section 13, part III., chapter VIII., title lY. : 
 
 In actions by or against any corporation created by or under any law of 
 this state, it shall not be necessary to recite the act or acts of incorporation, 
 or the proceedings by which such corporation was created, or to set forth 
 the substance thereof; but the same may be pleaded, by reciting the title of 
 the act and the date of its passage. 
 
 Under section 14, a misnomer of any corporation must be pleaded in 
 abatement, or it will be waived. 
 
 And by section 3, p. 458 : In suits brought by a domestic incorporation, 
 ' its existence need not be proved on the trial, " unless the defendant shall 
 have pleaded in abatement or in bar, that the plaintiffs are not a cor- 
 poration." 
 
 These provisions are amongst those specially saved by section 471 of 
 the Code, and are therefore now subsisting. 
 
 It will be observed that, with the exception of the clause as to mis- 
 nomer, they are applicable to domestic incorporations only, and not to 
 foreign. 
 
 Some difficulty has arisen as to the construction of these provisions, 
 as regards the former. 
 
 In Johnson, President, cfec, vs. Kemp, 11 How., 186, it was held 
 that a bank, created under the general banking law, when suing, 
 
OF BLEADESrGS. — § 123. 689 
 
 ought to comply with the terms of the above section, and " recite the 
 title of the Act and the date of its passage." See also Banh of Ha- 
 vana vs. Wickham, 1 Abb., 134 ; 16 How., 91 ; also p. 288, as to a 
 similar necessity on the part of an individual banker, assuming a cor- 
 porate name. 
 
 In those cases it was held that the objection might be taken by 
 special demurrer, on the ground of want of capacity to sue. See also 
 Banh of Lowville vs. Edwards, 11 How., 216. 
 
 In the majority of the decided cases, however, section 13 has, as it 
 were, been completely overshadowed by the previous provision in sec- 
 tion 3, that, unless the objection be taken by plea in abatement or in 
 bar, the incorporation need not be proved upon the trial. 
 
 It has especially been held that the objection cannot be taken by 
 demurrer at all, where the plaintiff sues by an appropriate corporate 
 name. It will be intended under such circumstances, for all the pur- 
 poses of the suit, to be a corporation, unless the contrary be averred by 
 plea, and there is no defect appearing on the face of the complaint. 
 Union Mutual Insurance Company vs. Osgood, 1 Duer, 707 ; 12*L. 0., 
 185 ; Shoe and Leather Bank vs. Brovm, 18 How., 308 ; 9 Abb., 218. 
 The same rule is laid down, where the same objection of want of legal 
 capacity to sue had been taken by statement to that effect in the an- 
 swer, but without any direct plea that the plaintiffs were not a corpora- 
 tion. Metropolitan Banh vs. Lord, 1 Abb., 185 ; 4 Duer, 630 ; Banh 
 of Waterville vs. Beltser, 13 How., 270 ; Lafayette Insurance Company 
 of Broohlyn vs. Rogers, 30 Barb., 491. Nor can the objection be raised 
 under a general denial. Kennedy vs. Colton, 28 Barb., 59 ; Banh of 
 Genesee vs. Patchin Banh, 3 Kern., 309 (314). 
 
 The above cited cases of Shoe and Leather Banh vs. Brown, Banh 
 of Waterville vs. Belzer, and Kennedy vs. Colton, go, however, much 
 further, and hold generally, that a corporation suing need not make 
 any averment of its incorporation at all, beyond what is contained in its 
 corporate narne. See also Stoddard vs. The Onondaga Annual Con- 
 ference, 12 Barb;, 573. See likewise as against a defendant, Accome 
 vs. The American Mineral Company, 11 How., 24. 
 
 These views are based upon a series of old common-law decisions, to 
 the effect that the name itself argues a corporation. 
 
 It seems practically to ignore the direct provision in section 13, pra-» 
 scribing a specific form of pleading for the purpose of that averment. 
 The authority of this line of decisions seems, however, to be doubted 
 in The Connecticut Banh vs. Smith, 9 Abb., 168. 
 
 The Banh of Genesee vs. The Patchin Bam,h, 3 Kern., 309 (314), 
 does not go to the full length as claimed in The Shoe and Leather 
 Bank vs. Brown. In the title of that case, the designation of the 
 
590 OF PLEADINGS. §* 123. 
 
 plaintiffs, although not stating the formal particulars required by 
 section 13, was full and specific, and substantially averred under 
 what law the plaintiffs were incorporated. All that was actually 
 decided was that the defendant, who had merely interposed a gen- 
 eral denial, had not pleaded in such a manner as to oblige the 
 plaintiff to prove its corporate existence. Section 3 was alone referred 
 to, and section 13 does not seem to have come up for consideration 
 at all. 
 
 It cannot be denied, that the above decisions create some doubt, and 
 a great deal of difficulty, as to the precise effect and extent of the pro- 
 vision at 2 E. S., 4.59, section 13. The easiest way of avoiding that diffi- 
 culty and removing all pretext for that doubt, would be a formal com- 
 pliance with that section in all cases. The particulars it requires to be 
 given are unquestionably proper, even if not strictly necessary, and 
 the form it prescribes short a,nd easy. The pleading will, beyond 
 doubt, be a proper, and, it may well be said, a better pleading, if so 
 framed, and will then be open to no species of objection, either as to 
 form or substance. 
 
 In averring the existence of a corporation, in the form prescribed by 
 the statute, it is sufficient to specify the original act of incorporation, 
 with a mere general reference to subsequent amendatory acts, and to 
 the public statutes. Ths Svm, Mutual Insurcmce Company vs. Dwight, 
 1 Hilt., 50. 
 
 In. Hie Seneca Nation of Indians vs. Tyler, 14 How., 109, it was 
 held that the plaintiffs, though in effect created a corporation, need not 
 make any special averments as to their right to sue. 
 
 A plaintiff suing a domestic corporation by its corporate name, ad- 
 mits its existence as such, and cannot, by the same pleading, go on to 
 allege that it has not become duly organized. The People vs. Ramns- 
 wood, c&c, Turnpike and Bridge Company, 20 Barb., 518. 
 
 In a suit by a foreign corporation, the plaintiffs should make an ex- 
 press allegation of their corporate capacity, unless the defendants are 
 estopped by having specially dealt with them as such ; and the mere call- 
 ing themselves a corporation in the title, will not suffice. The fact of 
 their corporate existence, in such a case, is properly put in issue by a 
 general denial. Section 3 (2 E. S., 488), does not apply in such case, 
 nor is any special plea necessary. Waterville Manufacturing Compamy 
 vs. Brywn, 14 Barb., 182. See also cases as to associations, below 
 cited. And in a suit by or against such a body, the other prerequisites 
 to bringing the case within the power conferred by section 427, must 
 necessarily be averred and proved. See Curnberland Coal. am,d Iron 
 Company vs. Hoffmann Steam Coal Compamy, 20 How., 62. 
 
 In such a case, however, it is not necessary for them to state tlieir 
 
OF PLEADINGS. — § 124. 591 
 
 act of incorporation at large, or even by reference, and that, especially, 
 when that incorporation has taken place under a general or even a par- 
 ticular law of the foreign state, printed in an authorized volume of its 
 statutes, and which may be the subject of judicial cognizance (see 
 Code, section 426). Connecticut Bank vs. Smith, supra; Holyohe 
 Bank ys.. JIaskins, i Sandf., 675. 
 
 Unincorporated but legal associations stand, as to averrpent, subject 
 to the same general rules as foreign corporations. The existence of the 
 association, and such facts as are necessary to give it legality as such, 
 should be'averred, but may be so in general terms. These facts may 
 be put in issue by a general denial, a special plea not being necessary. 
 Tiffamj vs. Williams, 10 Abb., 204 ; TiUetts vs. Blood, 21 Barb., 650. 
 See also, Waterville Manufacturing Company vs. Bryan, supra. 
 
 In cases where a corporation is the defendant, the complaint must 
 sliow its corporate character, by allegation beyond, mere designation in 
 the title, or demurrer will lie. Mechanics'' Banking Association vs. 
 The Spring Valley Shot and Lead Company, 13 How., 227. 
 
 A mere general allegation, without the specific particulars required by 
 section 13 (2 E.. S., 459), has been held sufiicient, as against a defendant. 
 AcGoms vs. TJie American Mineral Company, 11 How., 24. See also 
 Stoddard vs. The Onondaga Annual Conference, 12 Barb., 573. In the 
 latter case it was held that a special plea of nul tiel corporation was 
 not necessary, in the case of a corporation sued as such, but denying 
 its corporate existence. The statutory necessity for that form of plea, 
 under section 3 (2 E. S., 458), only applies to cases where a corporation is 
 plaintiff. Nor need the replication to such a plea allege the details of 
 the alleged incorporation, or any thing beyond the general fact. 
 
 As to the necessity of a positive allegation of the title of a plaintiff 
 to siie, in respect of the assets of a dissolved foreign corporation, and the 
 necessity of negativing all counter implications, see Tvnkham vs. Borst, 
 15 How., 204. 
 
 § 124. Averments hy ImpUcation. 
 
 (a.) Bt Special Provision. 
 
 Tinder sections 161, 162, and 163, averments of this nature are au- 
 thorized in three several classes of allegation. 1. In pleading a judg- 
 ment or determination of a court or officer. 2. In pleading the per- 
 formance of a condition precedent. 3. In pleading a private statute, 
 or a right derived therefrom. In the two former, an allegation that 
 the judgment or determination was duly given or made, or the condi- 
 tions duly performed, will be sufficient to put in issue all the facts 
 which tend to such conclusion. In the third, a mere reference to ths 
 
592 OF PLEADINGS. — § 124. 
 
 statute by its title and day of passage, renders its contents a matter of 
 judicial notice. 
 
 The analogous provisions in the latter portion of section 162, author- 
 izing a more simple mode of averment in the case of a written instrument 
 for payment of money only, belong more especially to the subject of 
 complaint ; and those in 164: and 165, on the subject of libel and slan- 
 der, refer exclusively — the former to the complaint — the latter, to the 
 answer in such cases. Section 166 relates to answer only. They, will 
 accordingly be considered in their place, in subsequent chapters of 
 the present work. For similar reasons, the consideratioii of section 158 
 is deferred to a later stage. 
 
 To obtain the benefit of sections 161, 162, and 163, the pleader must 
 strictly pursue the form thereby prescribed. If he departs from the 
 rule as laid down by the statute, and makes his averment in another 
 form, he does so at his peril, and will then be held to a statement of all 
 the different facts necessary to conduce to the conclusion. So held as 
 to a judgment. Hunt vs. Dutcher, 13 IIow., 538. As to a proceeding 
 before a magistrate. Ayres vs. Covill, 18 Barb., 260. Generally, Hatch 
 vs. Peet, 23 Barb., 5Y5 (580) ; Graham vs. Machado, 6 Duer, 514. 
 
 But, if the spirit of the provision be followed, the exact wording 
 need not be strictly pursued. Rowland vs. Phalen, 1 Bosw., 43. 
 
 In Hollister vs. Hollister, 10 How., 532 (539), it is stated as con- 
 ceded that section 161 does not apply to foreign judgments, and it 
 would therefore seem to follow that a general averment of jurisdiction 
 in a foreign tribunal will not be sufficient, but that all necessary details 
 must be averred, as heretofore. 
 
 This rule, however, does not apply to the jurisdiction of the United 
 States courts, which, being general in its nature, is intended, without 
 being specially proved. Bement vs. Wisner, 1 C. R. (JST. S.), 143. 
 
 " An allegation that a policy was duly assigned," was held sufScient 
 in Fowler vs. The New York Indemnity Insurance Compcmy, 23 
 Barb., 143. See also, as to assignment of an undertaking, Morange vs. 
 Mudge, 6 Abb., 243. 
 
 A bare allegation of assignment of a cause of action, will, also, in 
 all cases, be sufficient, without any statement of detail, as to its mode, or 
 consideration, or otherwise. All that is material is the change of inter 
 est; all else is matter of evidence. Horner ys. Wood, 15 Barb., 3T1 ; 
 Martin vs. Kanouse, 2 Abb., 390. 
 
 In like manner, an allegation that execution was " duly issued," is 
 suflScient, without showing the steps in the action on which its regu- 
 larity depends. French vs. Willett, 10 Abb., 99 ; 4 Bosw., 649. 
 
 A statement that a receiver was duly appointed, was held to tender 
 a sufficient issue, in Cheney vs. FisJc, 22 How., 236. So, also, as to an 
 
or PLEADmfts. — § 124. 593 
 
 allegation that an, insolvent's discharge -was duly made and granted. 
 Livingston vs. Odksmith, 13 Abb., 183. So likewise, as to the appoint- 
 ment of a party to an office, and its incidents. Piatt vs. Stout, 14 
 Abb., 178. 
 
 A statement that a meeting was " duly" convened, implies all that 
 is necessary to its regularity. The People vs. Walker, '2,^ Barb., 304; 
 2 Abb., 421. So also, as to an averment that a party was legally 
 elected. The People vs. Ryder, 2 Kern., 433. 
 
 In Gay vs. Paine, 5 How., 107 ; 3 0. R., 162, it is held that, to 
 charge an indorser, it is not necessary to set forth any details as to presen- 
 tation or payment, but that it will be sufficient to allege that the note 
 was " diily" presented and payment " duly" demanded. In Woodbury vs. 
 Sackrider, 2 Abb., 402, it is, also, laid down that an averment, that a 
 bill was " duly demanded at maturity, and thereupon duly protested 
 for non-payment, and notice thereof duly given to the indorsers," was 
 sufficient to introduce evidence to charge" all parties. In Alder vs. 
 Bloomingdale, 1 Duer, 601 ; 10 L. 0., 363, the principle is acknowl- 
 edged, and the decisions followed in Adams vs. Sherrill, 14 How., 
 297 ; and also, in Ferner vs. Williams, 14 Abb., 215. 
 
 In Oraham vs. Machado, 6 Duer, 514, these conclusions are denied, 
 and it is held that the operation of the section is to be confined exclu- 
 sively to conditions, apparent upon the face of a contract itself. See 
 also, dissenting opinion in Ferner vs. Williams, and similar inclination 
 in Adams vs. Sherrill, above cited. 
 
 This rule seems, however, to be far too strict, a,nd the doctrine of the 
 other decisions preferable. The Court of Appeals have, on the con- 
 trary, considered that the provisions of the section have a more pe- 
 culiar applicabihty to bills and notes, and other promises for the pay- 
 ment of money, without other stipulation. Prindle vs. Carruthers, 
 15 IST. y., 425 (439) ; 10 How., 33. They seem also expressly to disap- 
 prove the attempt of the Superior Court to limit the operation of the 
 section (p. 428). And, in the same case, the general effect of such 
 an allegation, and of what is put in issue by it, and by a general 
 denial of it, is laid down (p. 429). 
 
 A complete issue on all material facts is clearly tendered and joined 
 bv such a form of pleading, and, independent of the fact of Prindle 
 vs. Carruthers, and of the previous decisions above cited, there seems 
 no substantial reason why, in the averment of performance of this 
 nature, one class of contracts should be placed on a different footing 
 from another. 
 
 A far more liberal principle of mterpretation of the section, in its gen- 
 eral aspect, is laid down by the Superior Court itself, in Rowland vs. 
 Phalen, 1 Bosw., 43, with reference to the general spirit of the Code, as 
 
 YoL. I.— 38 
 
694 OF PLEADINGS. — § 124. 
 
 evidenced by eection 159, and also the general rule excluding a strict 
 construction, laid down in section 437. It is there held that the word 
 " party" in the section is to be taken as meaning the person or persons 
 by whom the condition is to be performed, and is not restricted to a 
 technical party to the suit. " The impropriety of being critical to a 
 degree which would exclude the operation of the section from large 
 classes of cases, in all respects within its spirit or intent ;" or of adher- 
 ing to " a purely strict and teichnical interpretation of its words, when 
 no beneficial purpose renders it necessary ;" and of giving to a word a 
 meaning which it does not necessarily require, " in order to restrict 
 the application of the section to as few cases as possible, and leave the 
 inconvenience the section was designed to remedy to exist in as many 
 cases as possible," is strongly enforced in the opinion, page 58 (59). 
 
 Of course, xinder the principles before laid down, an averment of the 
 performance of a condition, will be wholly insufficient for the intro- 
 duction of evidence in excuse of that performance. Vide Graham vs. 
 Machado, supra. 
 
 ISTor will an allegation that a party was " duly" authorized to sue be 
 of any avail. It falls in no respect within the provision of the section, 
 and is a mere conclusion of law. Myers vs. Machado, 6 Duer, 678 ; 
 14 How., 149 ; 6 Abb., 198. 
 
 A resort to the facilities provided by the section in question is, in all 
 cases, purely optional and never obligatoiy. Mayor of New Yorlc vs. 
 Doody, 4 Abb., 127. 
 
 (5.) By Geneeal Opeeation. 
 
 The general rule on this subject may be- stated thus: "What is 
 necessarily understood or implied in a pleading, forms part of it, as 
 much as if it was expressed." Partridge vs. Badger, 25 Barb., 146 (170). 
 
 This rule was always applicable, and is still more so under the liberal 
 intendment to be given in the construction of pleadings under sec- ., 
 tion 159. 
 
 The following may be stated as a few, amongst many cases in which 
 it has been so applied. 
 
 The word " due" has been held sufficient to express the fact that 
 money sought to be recovered had become payable. Allen vs. Patter- 
 son, 3 Seld., 476. 
 
 But the operation of that word does not extend to a debt, not payable 
 at the present time, and cannot be held to comprise one payable in 
 future. Leggett vs. Bank of Sing Sing, 25 Barb., 326. 
 
 A promise need not be pleaded, where facts are stated, from which 
 the law will imply it. Fa/rron vs. Sherwood, 17 JST. Y., 227 (230) • 
 AlUn vs. Patterson, swpra. 
 
oip PLEADisres. — § 124. 595 
 
 In Brown vs. Richm^dson, 20 E". Y., 472, it is laid down that a mere 
 Hvernient of lawful ownership of a non-negotiable note, was sufficient 
 to warrant the introduction of evidence to prove an assignment. In 
 . Holstein vs. Mice, 16 How., 1, it was held in like manner, that the 
 intermediate steps by which a note, alleged to be indorsed over, came 
 into the possession of the plaintiff", need not be alleged, but may be 
 proved, under such an averment. 
 
 Allegations of the making of an instrument, or the indorsement of a 
 note, both import delivery. Prindle vs. CaiTuthers, 15 N. T., 425 
 (426) ; Peets vs. Pratt, 6 i!a>b., 662 ; Bank of Lowville vs. Edwarchi, 
 11 How., 216. 
 
 The words " value received," on the face of an instrument, likewise 
 import consideration. Prindle vs. Garruthers, supra ; Benson vs. 
 Couchman, 1 C. K., 119. 
 
 An averment of acceptance, in like manner, implies previous presen- 
 tation. Graham vs. Machudo, 6 Duer, 514 (516). And likewise, that 
 such acceptance was in writing. Bank of Lowville vs. Edwards, supra. 
 
 And the rule has been laid down, that a specific averment of the 
 making of a contract, implies the fact that such contract was a legal 
 contract, and therefore that it was made in writing, when that condi- 
 tion is necessary to its validity. Livingston vs.. Smith, 14 How., 490 ; 
 Stern vs. Drinker, 2 E. D. Smith, 401 ; Washhw^n vs. Franklin, 7 
 Abb., 8 J Horner \s. Wood, 15 Barb., 371. These cases seem to over- 
 rule ThurmoM vs. Stemns, 2 Duer, 609, and Le Roy vs. Slwm, 2 
 Duer, 626. 
 
 Where a written instrument is stated in extenso, the recitals in it 
 have been held to have the effect of an averment of the facts recited. 
 Slack vs. Eeath, 4 E. D. Smith, 95 ; 1 Abb., 331. 
 
 Allegations of acceptance of a bill of exchange, or of indorsement of 
 a note by a corporation, have been held to imply that the proper au- 
 thority requisite for the validity of these acts had been duly obtained. 
 Partridge vs. Badger, 25 Barb., 146 (170, 171) ; The Mechanics'' 
 Banking Association vs. The Spring Valley SJiot and Lxad Gompany, 
 25 Barb., 419. 
 
 Although a mere descriptio personm in the title is wholly insufficient 
 to show the right of the plaintiff" to sue in an official or representative 
 character, still, when coupled with averments in the body of the plead- 
 ing necessarily implying that lie sues as such, the whole may be con- 
 sidered as tendering a sufficient issue. Root vs. Price, 22 How., 372. 
 See also Qould vs. Glass, 19 Barb., 179 ; and Smith vs. Levins, 4 
 Seld., 472, there referred to. 
 
 See likewise, as to the sufficiency of similar allegations to show that 
 the plaintiff 'sues in a representative character, Soranton. vs. Farmers' 
 
596 OF PLEADINGS. — § 124. 
 
 and Mechanics' BamJc of Rochester, 33 Barb., 527. See, however, con- 
 trary view as taken in Forrest vs. Mayor of New Yorh, 13 Abb., 350. 
 
 A bare plea of payment has been held to be sufficient for the intro- 
 duction of evidence, tending to show the previous discharge of a mort- 
 gage sought to be foreclosed. Pattison vs. Taylor, 8 Barb., 250 ; 1 C. 
 E. (N. S.), 174. 
 
 An allegation of possession has been held to import lawful title. 
 Sheldon vs. Soy, 11 How., 11 (16). See also cases, before cited, as to 
 the generality of statement admissible in ejectment. Allegations of sale 
 and delivery have also been held to imply a request and agreement. 
 Accome vs. The American Mineral Compam-y, 11 How., 24. And, in 
 an action for use and occupation, it is not necessary to aver the circum- 
 stances as to the origin of the defendant's tenancy. ' A contract between 
 the parties is clearly implied. Waters vs. Olarh, 22 How., 104. 
 
 As to the extended import of an allegation of conversion, see Declcer 
 vs. Matthews, 2 Kern., 313 (321). 
 
 In Zabriskie vs. Smith, 3 Kern., 322 (330), the principle as to impli- 
 cation by reasonable intendment, is thus broadly laid down : " It is suf- 
 ficient that the requisite allegation can be fairly gathered from, all the 
 averments in the complaint, though the statement of them may be 
 argumentative, and the complaint deficient in technical language." 
 
 As to averments by implication, under a general allegation, in suits 
 by or against corporations, see last subdivision of last section, and the 
 decisions there cited. 
 
 The liberality evinced upon this subject must not, however, be 
 allowed to conduce to looseness of pleading. To be available as a sub- 
 stitute for direct averment, the implication relied on must be necessary. 
 Where it falls, in any manner, short of this cardinal criterion, to rely 
 on it will be most unsafe, and a direct and positive averment in terms, 
 the only expedient course. 
 
 (c.) CoNSTEUCTION OF PlEADDSTGS. 
 
 The case of ZdbrisJcie vs. Smith, last cited, gives a fair sample of the 
 liberal principles upon which a pleading will henceforth be construed, 
 under the spirit, and especially under the actual provision for that ob- 
 ject, eifected by section 159, as above cited. 
 
 Even under the former practice, the rule that the allegations of a 
 pleading were to be construed most strictly against the pleader, was 
 subject to considerable qualification : " For the language of the plead- 
 ing is to have a reasonable intendment and construction, and, when a 
 matter is capable of different meanings, that shall be taken which will 
 support the declaration, &c., and not the other, which will defeat it." 
 And, under the Code, not merely is the court authorized, but required, 
 
GfflNEEAL VIEW, ETC. — 8 125. 597 
 
 to put snch a construction, where admissible. Allen vs. Patterson, 3 
 Seld., 476 (480) ; see also Woodbury vs. Saohrider, .2 Abb., 402 (405) ; 
 likewise Peel vs. JElliot, 28 Barb., 200 ; 16 How., 485 ; 7 Abb., 433, 
 to the effect that a mere error of definition or superfluity of statement 
 in a complaint, will not avail to deprive the plaintiff" of his general 
 rights in the action. 
 
 The rule in question is not, however, wholly done away with, where 
 the defect in allegation is not merely formal, but goes to matter of sub- 
 stance. In Cruger vs. The Hudson River Railroad Company, 2 Kern., 
 190 (201), it is thus stated : " We are not to assume, in favor of the 
 defendants, any thing which they have not averred, for the law does not 
 presume that a party's pleadings are less strong than the facts of the 
 case will warrant." ' 
 
 The principle that the liberal mode of construction authorized by 
 section 159 must not be stretched too far, and that, although its appli- 
 cation is admissible on questions of form, it is not so with regard to the 
 fundamental requisites of a cause of action, is also distinctly laid down 
 in ^ear vs. Downing, 34 Barb., 522 ; 22 How., 30 ; 12 Abb., 437. 
 See also as to an answer, Bates vs. Roselcrans, 23 How., 98. 
 
 Where a pleading is ambiguous in a material matter, it has been held 
 that the presumption should be against the party whose pleading it is. 
 Reach vs. The Ray State Steamboat Company, 18 How., 335 ; 30 Barb., 
 483. See also the rule directly stated, and strictly applied, in Rider 
 vs. Whitloch, 12 How., 208 (212). Nor will any presumption be indulged 
 id favor of a party, unless consistent with his allegations. Andrews vs. 
 Chadhourne, 19 Barb., 147. 
 
 When the adverse party neglects to impeach a pleading for ambi- 
 guity, by motion on the ground of uncertainty, and goes to trial on 
 that pleading, as it is, it has been held that the rule will be substan- 
 tially reversed, and the pleading taken most strongly against him, 
 in Wall vs. The Buffalo Water Works Company, 18 N. Y., 119. 
 
 CHAPTEE 11. 
 
 GENERAL VIEW, FORMAL REQUISITES. 
 
 § 125. Prepmation. 
 
 {a.) NuMBEEiNG Folios, &c. 
 In the preparation and service of pleadings, the same general rules 
 must be observed as with respect to other papers. 
 
598 GENERAL VIEW, ETC. § 126. 
 
 They must be fairly and legibly written. 
 
 They must be in the English language, except ordinary technical 
 words, and without abbreviations, except such as are in common use. 
 
 When exceeding two folios in length, the folios must be marked 
 in the margin, and each copy must correspond. 
 
 Each copy must be indorsed with the title of the cause. 
 
 And the attorney who indorses or subscribes them, must add his 
 place of business on each copy served. 
 
 See these subjects heretofore fully considered, and rules 5 and 10, 
 and also 2 R. S., 275, section 9, all bearing upon the point, heretofore 
 cited, in Book 4, sections 66 and 67. As there remarlted* the courts 
 view an objection of this kind with little favor, and the party who makes 
 it must see to his own proceedings being technically correct. The objec- 
 tion too must be taken at once, and the defective paper returned, or 
 it will be waived : see rule 10, and various decisions there cited. 
 
 On the other hand, the requisition is simple and easily complied with, 
 and a literal compliance will always be best. 
 
 (i.) ISTrMBEEiNG Causes of Action, &c. 
 
 This condition bears solely on the subject of pleading, and is imposed 
 by rule 19 (86), before cited. 
 
 This rule provides that " in all cases of more than one distinct cause 
 of action, defence, counter-claim or reply ; the same shall not only be 
 separately stated, but plainly numbered." 
 
 An omission to do- this is clearly a,n irregularity. Vide Blanchard 
 vs. Straii, 8 How., 83 ; Gorbin vs. St. George, 2 Abb., "465. 
 
 In the event of such omission, and of a motion on that ground, the 
 court will order a compliance with the rule. Vide Forsyth vs. Edmis- 
 ton, 11 How., 408. 
 
 The defect is, however, a mere defect in form, and not in substance, 
 and cannot be reached by demurrer, but only by motion. It is so 
 closely and inseparably connected with the more essential necessity of 
 the separation of the statements themselves required to be so numbered, 
 that the further consideration of the subject, and of the remedies of the 
 adverse party, will for the present be unnecessary. See hereafter, in the 
 chapter on complaint, under the head oi Joinder of Causes of Action, 
 and also in that relating to defects in pleading, under that of Motion 
 for Uncertainty. 
 
 § 126. Sihbscription mid Verification. 
 
 {a.') SUBSCEIPTION. 
 
 As prescribed by section 156, every pleading must be subscribed by 
 the party or his attorney. This is indispensable. In practice the 
 
GENERAL VIEW, ETC. — § 126. 599 
 
 attorney almost invariably subscribes, even wlieu the party verities. 
 The latter may, however, do so, if he chooses, and, where he appears 
 in person, of course he must. 
 
 In Hubhell vs. Livingston, 1 C. E., 63, the signature to the affidavit 
 of verification was held to be a siifficient subscription to the pleading. 
 See likewise the analogous cases of Post vs. Coleman, 9 How., 64, and 
 JPurdy vs. Upton, 10 How., 494, as to signature to a confession of 
 judgment. It is, however, far better in practice to leave no room for 
 any question on the subject, and to subscribe, both at the end of the 
 pleading, and before the verification. 
 
 In Fanners'' Loan and Trust Company vs. Dickson, 17 How., 47T ; 
 9 Abb., 61, it was held that a printed subscription of the attorneys to 
 a complaint was insufficient, and that, to the original at least, that 
 signature must be written. In the Mutual Life Lnsurance Company 
 vs. Hoss, 10 Abb., 260, note, the exact contrary is maintained as to a 
 summons. And the objection is one of that nature which will not be 
 favored by the court. See Ehle vs. Holler, 10 Abb., 287 ; 6 Bosw., 661. 
 
 (5.) .Vekefioation, when, and when not, Impeeative. 
 
 It rests, since 1849, in the option of the plaintifi', whether the plead- 
 ings throughout the suit shall or shall not be verified. Pie possesses 
 the power of compelling his adversary to do so, by verifying his own in 
 the first instance. A similar option is, at a later period, given to the 
 defendant, who, by verifying his answer, may, in like manner, compel 
 the plaintiff to swear to his reply, if one be necessary. Vide Levi vs. 
 Jakeways, 4 How., 126 ; 2 0. E., 69 ; reported als© as Lin vs. Jaquays, 
 2 C. E., 29. From this observation demurrers must, of course, bo 
 excepted, as, from their very nature, they need no verification. See 
 section 156, above cited. 
 
 When any pleading in a suit is once verified, "every subsequent 
 pleading, except a demurrer, must be verified also." Same section. 
 The term " subsequent pleading" has given rise to some discussion. It 
 has been held that a bare verification of an originally unverified com- 
 plaint, after answer put in, is of no effect as an impeachment ef that 
 answer. White vs. Bennett, 7 How., 59. ISTor, in fact, does the addi- 
 tion of a verification alone, without amendments of the complaint in 
 substance, constitute it a subsequent pleading, or require any further 
 answer at all. The verification is n.o part of the pleading. See George 
 vs. McAvoy, 6 How., 200 ; 1 C. E. (K S.), 318. 
 * In Hempstead vs. Hempstead, 7 How., 8, it is held that the term 
 " subsequent pleading" is to be construed as subsequent in the order of 
 pleading, not subsequent in time, and applies only to pleadings in 
 answer to the pleading verified, or those which follow in such order. 
 
600 GENERAL VIEW, ETC. — § 126. 
 
 It was held, therefore, that the defendant was not justified iu disregard- 
 ing, but was, on the contrary, bound to answer an unverified amended 
 complaint, served after a verified answer. 
 
 IST. B. — "Whether this decision was not carried a little too far, and 
 whether the plaintiff in that case, who had, as appears by the report, 
 verified his original complaint, had not thereby set the rule in motion, 
 as well against himself as against the defendant, seems somewhat 
 questionable. 
 
 As a general rule it will be highly inexpedient, if not impradent, for 
 a plaintiff to omit to verify his complaint in the first instance. Such 
 omission will completely deprive him of the benefit of binding down 
 the defendant to the assertion of a true, as well as of a sufficient ground of 
 defence, and it will leave the latter at full liberty to make any allegation 
 he may choose, and thus throw upon his adversary the duty of proving 
 facts, which, in a verified pleading, it would be impossible for him to 
 deny. See George vs. MoAvoy, 1 C. E. (IST. S.), 318 ; 6 How., 200. 
 See also White vs. Bennett, 1 How., 59, supra. Under the Code of 
 1848, verification was imperative in all cases. See above. See also 
 Swift vs. Hosmer, 1 C. K., 26 ; 6 L. O., 31T. 
 
 The efi'ect of verification is confined to the pleading itself. It does 
 not extend so far as to dispense with the affidavit required by statute, to 
 exclude a notarial certificate of protest as evidence. Lansing vs. Goley, 
 13 Abb., 272. 
 
 (c.) Mode of Yeeificatioit. 
 
 The verification takes place by means of an affidavit annexed to the 
 complaint. That affidavit must be sworn in the ordinary manner, 
 before a^y officer duly authorized to administer oaths. The question 
 as^to these officers and their powers, has been already fully considered 
 in book I., chapter VII., section 27, to which, therefore, the reader is 
 referred. It will suffice to say here, that the ordinary course is to 
 swear to such affidavit before a commissioner of deeds, or notary public. 
 
 A pleading must not, however, be verified before the attorney of the 
 party. If so, it will be a nullity, and may be set aside on motion, if 
 made in due time. Oilmore vs. Hempstead, 4 How., 153 ; Anon., 4 
 How., 290. 
 
 {d.) Mechanics' Lien. 
 
 The notice to create a lien of this description must now be verified, in 
 the same manner as a pleading. Vide Laws of 1855, ch. 404, § 7. 
 
 That precisely the same conditions will be required in this case, and 
 that the jurat, to be regular, must be in the same form as that pre- 
 scribed in the case of a pleading, is laid down in Conhlin vs. Wood, 8 
 
GhENEKAL VIEW, ETC. — § 126. 601 
 
 E. D. Smith, 662. The provisions of tlie act of 1855 are not, however, 
 retrospective, so as to impose the same condition upon previous pro- 
 ceedings. Foley vs. Gough, 4 E. D. Smith, Y24. 
 
 {e.) Privilege to omit Yeeification. 
 
 Under section 157, a party may omit to verify, when an admission of 
 the truth of the allegation might subject him to prosecution for a felony. 
 This provision, as above shown, dates from 1851. Since 1854, he is 
 equally privileged in those cases in which he would be .privileged 
 from answering as a witness, to the truth of any matter denied by him. 
 See statute of 1854, above cited. This last privilege was, in effect, con- 
 ceded by the Code of 1848, but taken away in 1849. 
 
 In the intermediate period, however, the courts had taken upon them- 
 selves to allow similar relief to a party claiming it, and the amendments, 
 iixing the law as it now stands, were probably the consequence of these 
 decisions. See Clapper vs. Fitzpatriclc, 3 How., 314 ; 1 C. E., 69 ; 
 under Code of 1848 ; Hill vs. Muller, 2 Sandf., 684 ; 8 L. O., 90, and 
 White vs. Cummings, 3 Sandf., 716 ; 1 0. K. (IST. S.), 107, under that 
 of 1849. 
 
 That the old principle, " nemo tenetur se ipsum prodere," is still in 
 force, and that the rule is not confined by the terms of the amendment 
 of 1851, but extends to all cases, where the answer would tend to con- 
 vict the defendant of any crime, whether strictly or not a felony, is 
 maintained in Thomas vs. Harrop, 7 How., 57. 
 
 In Springsted vs. Rolinson, 8 How., 41, this principle was extended 
 to the case of a party, who, in lieu of verifying his answer, made an affi- 
 davit that an admission of the truth of its allegations might subject him 
 to a prosecution for felony ; and an answer, put in without verification, 
 but accompanied by that affidavit, was held to be sufficient. 
 
 These cases were both prior to the further statute of 1854, which has 
 now placed the question beyond a doubt. 
 
 As to the former privilege of a witness thus extended to a party 
 pleading, see Henry vs. Salina Bank, 1 Comst., 83 (86) ; In re Van 
 Tins vs. Nims, 12 How., 507. See also generally as to discovery, Boat 
 ley vs. Bean, 5 Barb., 297. 
 
 As to the privilege of a defendant to omit to verify, where the com- 
 plaint alleges matter as to which he would be privileged from testify- 
 ino- and tlie extent to which he will be protected in that right, see Mo- 
 loney ys. Bows, 2 Hilt., 247. 
 
 The following distinction is drawn in Scovell vs. New, 12 How., 319. 
 The defendant, if entitled to the privilege, may deny the allegation, and 
 omit to verify his answer. In this ease, a regular issue is joined.* But 
 if instead of this, he, by his pleading, declines to answer the allegation 
 
602 GENERAL VIEW, ETC. § 126. 
 
 at all, on the ground that his answer might subject him to a prosecution, 
 he admits it for the purposes of the action. 
 
 A mere liability to a civil action does not extend this privilege to a 
 defendant, -where he personally is not subject to any penalty or forfeiture. 
 So held as to a stakeholder of a wager, if not appearing by the plead- 
 ings that he was either a winner or a loser, so as to bring him within 
 the statute as to gaming. Ly^ich vs. Todd, 13 How., 546. 
 
 A party thus privileged, may serve his answer without any accompa- 
 nying affidavit, where the fact of his privilege appears on the face of the 
 complaint. Wheeler vs. Dixon, 14 How., 151. IST. B. This does not 
 conflict with Springsted vs. liohinson, as, in that case, this was not suf- 
 ficiently apparent. 
 
 The privilege was extended to a defendant in an action for libel, and 
 an entire omission held good, though the privilege only extended to 
 part of the allegations, in JBlaisdell vs. Raymond, 5 Abb., 144; af- 
 firmed, 6 Abb., 148. 
 
 Wolcott vs. Winston, 8 Abb., 422, is less extended in its construction, 
 and lays down that a mere charge of fraud in the complaint, even 
 although it might be construed into a criminal misdemeanor, did not 
 entitle the defendants to omit verification. The ground taken is, that 
 they would incur no risk, as their pleading could not, in a criminal 
 prosecution, be used against them ; but this view seems to be founded 
 on a misconception of the statute of 1854, which a comparison of the 
 statute itself with the decision will show. 
 
 In Olney vs. Olney, 7 Abb., 350, it was held that the act of 1854 
 does not extend to pleadings in a divorce on the ground of adultery. 
 It is then held that the privilege conferred by that statute, does not ex- 
 tend to cases where the party will not by law be permitted, but only to 
 those where he would be privileged by law to omit answering, for his 
 own protection. In Sweet vs. Sweet, 15 How., 169, the contrary view 
 is held on this question. See also Smith vs. Smith, 15 How., 165. The 
 recent amendment of section 399 seems to bring a new element into the 
 question. In Sweet vs. Sweet, however, this further groimd is taken, 
 i. e., that by special provision of the Eevised Statutes, 2 E. S., 144, 
 section 39, the defendant, in such cases, is to be permitted to answer 
 without oath or affirmation ; and, also, that the penalties and forfeitures 
 imposed upon the guilty party by 2 E. S., 145, 146, sections 46 to 49 
 inclusive, bring the case within the general rule of exemption of a wit- 
 ness, and, therefore, set the statute in motion : this view seems, on the 
 whole, to be preferable. 
 
GENEEAL VIEW, ETC. — § 126. 603 
 
 (jf.) FOEM OF YeEIFICATION BY PaeTT. 
 
 The form of verification is distinctly specified by section 157, and 
 should, in all cases, be followed without alteration. It is substantially 
 the same as that previously adopted by the Co art of Chancery, except 
 that the additional statement, that the party has read, or heard read, the 
 pleading, is now unnecessary. 
 
 The present section dates from 1851, and is so framed as to admit 
 of slight verbal variations, provided the substance of the provision 
 be complied with. The Code of 1849 was more strict, and it was 
 then considered doubtful whether a jurat, varying in any, even the 
 slightest respect, from the prescribed wording, was valid. Vide Van 
 Sarne vs. MontgoTmry, 5 How., 238 ; Davis vs. Potter, 4 How., 155 ; 
 
 2 C. E., 99. 
 
 The rule is less technical now, the words " to the effect" unquestion- 
 ably enlarging the powers of the party in this respect. There is, in 
 reality, however, no substantial reason why the exact wording of the 
 section should not be exactly used in all cases, and such will certainly 
 be the easiest as well as the most consistent practice. Vide Tihhalls vs. 
 Self ridge, 12 How., 64. Duly interpreted, the form gives the fullest 
 latitude to the conscience of the verifying party, as full as, in fact, he 
 can reasonably require. See construction of the section, as given in 
 Truscott vs. Dole, 7 How., 221 ; Haokett vs. Richards, 11 L. 0., 315 ; 
 
 3 E. D. Smith, 13 ; TJiorn vs. The New YorTc Gentrral Mills, 10 How., 
 19 ; LevyYB. Ely, 15 How., 395 ; 6 Abb., 89 ; Rioketts vs. Green, 6 Abb., 
 82 ; and New YorTc Marbled Iron Works vs. Smith, 4 Duer, 362 (374). 
 
 The following are cases of variation from the form: 
 A mere statement that the pleading is true, without adding that it is 
 true to the knowledge of the party, will be bad, whether standing 
 alone, or accompanied with the exception as to information and belief 
 Williams vs. Riel, 5 Duer, 601 ; 11 How., 374. See also, Tibialis vs. 
 Self ridge, 12 How., 64, as to verification by an attorney. These cases 
 seem, unquestionably, to overrule Southwmih vs. Curtis, 6 How., 271 ; 
 1 C. K. (K S.), 412. 
 
 An afiidavit that the pleading was true to the knowledge of the veri- 
 fier, without stating further, was held good in Kinkaid vs. Kipp, 
 1 Duer, 692 ; 11 L. O., 313. But this statement cannot be qualified in 
 any manner. One that the complaint was substantially true, of the 
 2:)arty's own knowledge, was held bad in Waggoner vs. Brown, 8 How., 
 212. ' Any qualification, too, which makes the verification applicable 
 only to part of the statement, will make it wholly irregular. See as 
 to a mechanic's lien, Conklin vs. Wood, 3 E. D. Smith, 662. 
 The doctrine that, where the statements in the pleading are wholly 
 
604 aENERAL VIEW, ETC. § 126. 
 
 made on infonriatioii and belief, or where the facts pleaded are none of 
 them within the knowledge of the party, the pleading may be verified 
 on information and belief, or belief only, as laid down in Ha/rnes vs. 
 Tripp, 4 Abb., 232 ; and Finnerty vs. Barker, 7 L. O., 316, seems too 
 dangerous to be extensively followed in practice, as there seems really 
 no substantial reason why the ordinary form should not be followed, 
 instead of going to pains to provide a substitute. Vide Tibballs vs. 
 Self ridge, supra. 
 
 By the express terms of the section, the pleading may be verified by 
 only one of several parties united in interest, and pleading together, 
 and, so verified, will be sufficient without the concurrence of the others. 
 
 To bring this rule into operation, however, the union of such in- 
 terests must be complete. If they are in any manner severed, or sever- 
 able, the contrary principle will prevail, and, in such cases, every party 
 to the pleading must concur in the verification, ox it will be bad, pro 
 tanto, and be no pleading at all, as regards the interest of the party so 
 omitting. 
 
 So held as regards the joint answer of maker and indorser, or in- 
 dorsers. Andrews vs. Storms, 5 Sandf., 609 ; Alfred vs. Watkins, 1 
 C. E. (]Sr. S.), 343 ; Hall vs. Ball, 14 How., 305. As regards several credi- 
 tors, uniting in a joint complaint. Oray vs. Kendall, 5 Bosw., 666 ; 10 
 Abb., 66. As regards husband and wife, in a suit relating to the wife's 
 separate property. Youngs vs. Seely, 12 How., 395 ; Harlay vs. Bitter, 
 18 How., 147 ; Beed vs. Butler, 2 Hilt., 589. 
 
 The managing agent of a corporation, on whom the summons has been 
 served under section 132, verifies as an officer of the company, and not 
 as a mere agent. His verification is therefore the verification of the 
 party itself, and he may use the ordinary form. GlaubensMee vs. The 
 Ilamhurgh and American Steam Packet Company, 9 Abb., 104. 
 
 The same conclusion would seem to follow in the case of a relator, 
 verifying in an action brought by the state or its officer, though as yet 
 no decision has been made upon the subject. When verified by the 
 attorney of such relator, the ordinary rule would seem to apply. Vide 
 Tlie People vs. Allen,- 14 How., 334. 
 
 ig) Yeeification by Attoehey or Agent. 
 
 This mode of verification is only allowable under some one or more 
 of the following conditions : 
 
 1. "When the party who should verify is not vnthin the county where 
 the attorney resides. 
 
 2. When such party is, for any other reason, not capable of making 
 the affidavit. 
 
 3. When the action or defence is founded upon an instrument for the 
 
GENERAL VIEW, ETC. — S 126. 605 
 
 pa.ynient of money only, and such instrument is in the possession of 
 the agent or attorney. 
 
 4r. When all the material allegations of the pleading are within the 
 personal knowledge of the agent or attorney. 
 
 The case of an attorney residing in one county, and doing business in 
 another, seems to have been left unprovided for. The section clearly 
 points only to the county of residence. It would be unsafe practice, 
 however, to take his verification, when the party was in fact within the 
 county in which he does business. The spirit of the section clearly is, 
 that, when the party can verify without inconvenience, he ought to do 
 so, unless where the knowledge of the agent or attorney is really equal 
 to his own. 
 
 In those cases where the attorney or agent is competent to verify, he 
 must, in order to the regularity of that verification, state two things 
 expressly upon its face. 
 
 1. His knowledge, or the grounds of his belief, upon the subject. 
 
 2. The reasons why it is not made by the party. 
 
 The exact form of verification in these cases has given rise to consid- 
 erable discussion. 
 
 When the affidavit is made by the agent or attorney from his own 
 personal knowledge, it is unnecessary to state upon it any other reason 
 why it is not made by the party, or that such party is absent. Oourney 
 vs. Werseelcmd, 3 Duer,' 613. 
 
 The same principle would seem to hold good, when the attorney or 
 agent verifies on a written instrument for the payment of money only. 
 Upon this point, however, a further discussion has arisen. 
 
 In Smith vs. Rosenthal, 11 How., 442, it was held that, in such case, 
 it was sufficient for the attorney merely to state the fact that such in- 
 strument was in his possession, without any additional statement of his 
 knowledge or of the grounds of his belief as to the truth of the allega- 
 tions in the pleading. 
 
 This conclusion is however denied, and the broad principle laid down 
 that in all cases where the pleading is not verified by the party, the at- 
 torney or ao-ent must state his knowledge and the grounds of his belief, 
 whatever the circumstances be under whiCh he verifies, in the following 
 decisions which must be regarded as settling the question. Stan- 
 na/rd vs. Mattice, 7 How., 4 ; Treadwell vs. Fassett, 10 How., 184 ; 
 Mublard vs. The National Protection Insurance Company, 11 How., 
 149 • Batik of State of Maine vs. Buel, 14 How., 311 ; The Peo- 
 ple vs. Allen, 14 How., 334 ; Boston Locomotvue Works vs. Wright, 
 15 How., 253 ; Meads vs. Gleason, 13 How., 309. 
 
 In Meyers vs. Oerritts, 13 Abb., 106, the agent omitted to state, in 
 terms the fact of his ageuoj/ihe verification being otherwise sufficient, 
 
606 GENERAL YIEW, ETC. — § 126. 
 
 and showing liis possession of the notes sued on. It was held that the 
 fact of agency was sufficiently implied, and the pleading was sustained. 
 
 Where the attorney or agent verifies from personal knowledge, or 
 from possession of the instrument, verification either by him or by the 
 party is optional, without regard to the residence of the latter. Smith 
 vs. Rosenthal, 11 How., 442; Stannard vs. Mattice, T How., 4; 
 Trcadwell vs. Fassett, 10 How., 184 ; The People vs. Allen, 14 How., 
 334 ; Boston Locomotive Works vs. Wright, 15 How., 253 ; Lefevre vs. 
 Latson, 5 Sandf., 650 ; 10 L. O., 246, and, if he assigns either reason, 
 it will be sufficient. Mason vs. Brown, 6 How., 481. 
 
 In this class of cases, the general rule requiring the party to verify 
 whenever conveniently feasible, may be considered as relaxed ; in all 
 others, however, sufficient reason for verification by the attorney or 
 agent instead of by the party, must be shown, and one or other ol 
 the excuses allowed by the section, i. e., absence or inability of the 
 party to verify, must be alleged on the face of the affidavit. Vide 
 Boston Locomotive Worlcs vs. Wright ; Lefevre vs. Latson ; Stannard ' 
 vs. Mattice, supra ; Roscoe vs. Maison, 7 How., 121 ; Fitch vs. Bige- 
 low, 5 How., 237 ; 3 C. R., 216 ; Webh vs. Clark, 2 Sandf., 647 ; 2 0. 
 K., 16, and numerous other decisions. And, even in those cases where 
 the general rule is relaxed as above, the attorney must allege why the 
 affidavit is not made by the party, though he need give no other reason 
 than that of his own full knowledge, or of possession of the instrument. 
 Vide Meads vs. Gleason, 13 How., 309 ; Gourney vs. Werseelcmd, 
 supra. 
 
 The compliance with that part of the section which requires the at- 
 torney or agent to set forth his knowledge and the grounds of his 
 belief, must be full and literal, and nothing short of such a compliance 
 should be accepted. Vide TiUbals vs. Selfridge, 12 How., 64. 
 
 The general principle is tluis laid down in Treadwell vs. Fassett, 10 
 How., 184 : " In every case where the verification is so made, as far as 
 the agent or attorney speaks of his own knowledge, he must state what 
 knowledge he has ; and when he speaks of his belief, he must state the 
 grounds of such belief." See also Hubbard vs. The National Protec- 
 tion Insurance Company, 11 How., 149 ; and Meads vs. Gleason, 13 
 How., 309. He should also give the sources of the information on 
 which his belief is founded. The People vs. Allen, 14 How., 334. 
 And, he must not merely state partial grounds, but grounds sufficient 
 to cover all essential parts of the adverse pleading. Bank of State of 
 Maine vs. Buel, 14 How., 311. And, where an agent or attorney veri- 
 fies from his own knowledge, he must state, in addition to the above 
 requisites, his character as agent, and the nature of his agency, so as to 
 show that such knowledge grew- out of or pertained to his business or 
 
GENEBAL VIEW, ETC. — § 126. 60Y 
 
 trust. Boston Locomotive, Works vs. Wright, 15 How., 253, He ought 
 also to make the proper distinction, between matters which he knows, 
 and matters of which he is only informed. Vide Wilkin vs. Oilman, 
 13 How., 225. 
 
 Objections of this nature being, however, technical in their nature,- 
 the courts will be disposed to a liberal construction, and, if possible, 
 allow the verification to stand. See last case. A.nA, in' Bank of State 
 of Maine vs. Btiel, 14 How., 311, where the verifications of complaint 
 and answer were both irregular,, both were allowed to stand. 
 
 In Hmit vs. Meacham, 6 How., 400, it was at first held that, 
 although the defendants were absent from the State, the verification 
 of the attorney, stating his knowledge to be solely derived from the 
 statements of his clients, was insufficient, because the statements were 
 not derived from his own personal knowledge, or from an instrument 
 in his possession. 
 
 This doctrine is, however, too restricted, and has not been sustained. 
 That established is, that in, all cases of absence or inability of the party, 
 the attorney or agent may verify, complying otherwise with the provi- 
 sions of the section. See Stannard vs. Mattioe ; Boscoe vs. Maison ; 
 JLefevre vs. Latson, and the other decisions above cited, passim. By 
 Lefevre vs. Latson, Hunt vs. Meacham is overruled in terms, and is 
 also referred to in Stannard vs. Mattioe. 
 
 In Dixwell vs. Wordsworth^ 2 C. E., 1, a verification, by an attorney, 
 to . the efl'ect that the party was absent from the county, and that 
 "from the information furnished this deponent by said defendant, and 
 from his representations (which are the grounds of this deponent's knowl- 
 edge and belief in the matter), he believes the foregoing answer to be 
 true," was sustained by the court. 
 
 In Hill vs. Thacter, 3 How., 407 ; 2 C. E., 3, it seems to have been 
 considered that the guardian of an infant might properly verify the 
 complaint, in an action brought in his name. 
 
 When a pleading is verified by the attorney or agent, it is not neces- 
 sary it should be done by the one who knows most about the matter. 
 The attorney may verify, though his information be derived from the 
 agent. Brevert vs. Appsert, 2 Abb., 165. 
 
 As to the verification of the managing agent of a corporation, on 
 whom process has been served under section 132, being taken as that 
 of the party, and not of the agent, see Glaitbensklee vs. The Hamiburgh 
 and, American Steam Packet Company, 9 Abb., 104, before cited. 
 
 The provisions, enabling the verification of a pleading by the attor- 
 ney or agent, seem practically to abolish, and certainly to render un- 
 necessary, the former practice of taking the oath to a pleading by 
 special commission from the court. At the same time, it can scarcely be 
 
608 (JENEEAL VIEW, ETC. § 12Y. 
 
 said that tliis procedure may not still be considered admissible, if ever 
 tliongbt expedient. 
 
 (h.) Points as to Foem. 
 
 Defects in a verification, or an omission to verify, seem to be clearly 
 amendable, by leave of the court on proper cause shown. Vide Bragg 
 vs. Bechford, 4 How., 21 ; Watt vs. Bogers, 2 Abb., 261 (265). But 
 not so without leave, or by way of mere amendment as of course. Vide 
 George vs. McAvoy, supra. 
 
 The omission of the party's signature to the affidavit of verification, 
 will render the pleading altogether defective. Laimheer vs. Allen, 2 
 Sandf., 648 ; 2 0. E., 15. 
 
 So, also, the omission of the statement of venue, where that affidavit 
 is taken before a commissioner of deeds, Lane vs. Morse, 6 How., 394; 
 or an omission of the signature of the officer who takes it. 
 
 On service of the copy of a pleading, a correct copy of the affidavit 
 of verification must be added. Any omission in this respect, especially 
 an omission of the name of the party, or of the officer before whom such 
 pleading is sworn, will entitle the opposite party to treat the service as 
 a nullity. Graham vs. MoCoun, 5 How., 353 ; 1 C. E. (N. S.), 43 ; 
 Williams vs. Eiel, 5 Duer, 601 ; 11 How., 374 ; Hughes vs. Wood, 5 
 Duer, 603, note. 
 
 § 127. Cov/fse of Ad/verse Party. 
 
 The present section must be understood as exclusively confined to 
 cases of defect in an adversary's pleading, when served, in mere matter 
 of form, or as • regards the verification only. Those which go either 
 wholly or partially to the substance of the pleading, require another 
 course of proceeding, which will be considered hereafter. See Bergman 
 vs. Howell, 3 Abb., 329 ; Strout vs. Curram,, 7 How., 36. 
 
 The party, in these cases, may either proceed with a view to obtain a 
 correction of the defect complained of, or, in the case of a clearly defi- 
 cient verification, may even disregard it. 
 
 (a.) Eetuen of Defective Pleading. 
 
 In the former case, he is bound at once to return the paper served, 
 with a statement of the defects complained of. If the objection be a 
 noncompliance with rule 20, prescribing legibihty, marking of folios, 
 &c., he is bound to return the paper, accompanied by such a statement, 
 within twenty-four hours after its receipt. If not the objection will be 
 waived. The rule does not apply in terms to the case of a defective 
 verification, and, therefore, the limitation as to time is not so strictly 
 
GENEEAIi VIEW, ETC. — § 127. 609 
 
 imperative, but the spirit of it has been and will, doubtless, be equally 
 enforced. . ' 
 
 The adoption of this principle was, in fact, long antecedent to the 
 making of the rule itself, which, so far, only dates from the revision of 
 1858. That binder these circumstances, what amounts in substance to 
 an immediate return of the pleading complained of, with a statement of 
 the defects, has always been held to be necessary ; and that the party, 
 if he retain such pleading more than a reasonable time, will be held to 
 have waived the irregularity, is evidenced by the following Series of 
 decisions : Laimleer vs. Allen, 2 Sandf , 648 ; 2 C. E., 15 ; Knicker- 
 lacker vs. Lmichs, 3 How., 64 ; Levi vs. Jakewmjs, 4 How., 126 ; 2 C. 
 E., 69 ; McOown vs. Leavenworth, 2 E. D. Smith, 24 ; 3 C. E., 151 ; 
 White vs. Gumm.ings, 3 Sandf, 716 ; 1 C. E., (E. S.), 107; Williams 
 vs. Sholto, 4 Sandf, 641 ; Saioyer vs. Schoonmalier, 8 How., 198 ; Broad- 
 way Bank vs. Danforth, 7 How., 264; Rogers vs. Rathhun, 8 How., 
 466 ; HoUister vs. Livingston, 9 How., 140 ; Straioss vs. Parlier, 9 
 How., 342 ; Chatham Bank vs. Yan Veohten, 5 Duer, 628 ; Corbin vs. 
 St. George, 2 Abb., 465 ; EhUY?..IIuller, 10 Abb., 287; 6 Bosw., 661. 
 See also, as to defective notice of trial, 2^ew Yorh Central Lnsuranoe 
 Company vs. Kelsey, 13 How., 535. 
 
 It has also been held equally incumbent on a plaintiff, to return an 
 answer, defective as regards its verification, before proceeding against 
 the defendant by default, on the ground of its nullity. Strout vs. Curran, 
 7 How., 36. See also Wilkin vs. G'lman, 13 How., 225 ; Phillipsy%. 
 Prescott, 9 How., 430. See, however, jper contra, Farrand vs. Llerhe- 
 son, 3 Duer, 655. 
 
 A p arty returning a paper as irregular, is bound to state his objections, 
 not in a mere general manner, but specifically, and so as to point out 
 the exact objection complained of Broadway Bank vs. Panforth, and 
 Sawyer vs. Schoonmaker, above cited. See also President of Chemung 
 Canal Bank vs. Judson, 10 How., 133. 
 
 A verbal statement of such objection, by such party, to the person who 
 serves the defective pleading, and a return of it by him, will, however, 
 be sufficient ; and if, after that, it is again sent back to the office of the 
 objecting attorney, it will not be necessary for him to return it a second 
 time. See Jacobs vs. Marshall, 6 Dner, 689. 
 
 A mistaken specification, on return of a pleading, will not, however, 
 preclude the adverse party from taking advantage of another defect not 
 specified, where such defect is of a nature to be fatal in itself, and inca- 
 pable of being remedied. Yide Phillips vs. Prescott, 9 How., 430. 
 
 "Where a pleading is partly perfect and partly imperfect, it need not 
 be actually returned, but immediate notice of the imperfection must be 
 given to the adverse party. So, held in the case of a A'erification by on:©- 
 YoL. I.— 89 
 
610 GENEEAL TIEW, ETC. — § 127. 
 
 only, of a joint answer of parties severally liable. Hall vs. Ball^ 14 
 liW., 305. 
 
 The provision as to the return of a pleading for defective verification 
 is, of course, only applicable to the case of answer or reply. This de- 
 fect in a complaint, merely relieves the defendant from the necessity of 
 answering under oath. Quinn vs. Tilton, 2 Duer, 648. 
 
 As to the return of papers to the party, where no attorney's name ap- 
 pears upon them, see Taylor \&. Mayor of New York, 11 Abb., 255. 
 
 (5.) DiSEEGAED OF PLEADING. 
 
 In the earlier cases it was held that a pleading defectively verified 
 could not be treated as a nullity, and that the proper course was to 
 move to set it aside for irregularity ; and, also, that such motion must 
 be made, the very first opportunity after the service, or the irregularity 
 would be held to have been waived. Vide Gilmore \s. Ilenvpstead, 4 
 How., 153 ; Laimheer vs. Allen, and Oraham vs. McCoun, above cited; 
 Well vs. Olarh, 2 Sandf., 647; 2 C. R, 16. 
 
 This view, however, has since been overruled, and the rule may now 
 be considel'ed as settled, that a pleading, not duly verified, is, in effect, a 
 nullity {vide Swift vs. Hosmer, 6 L. O., 317 ; 1 C. E., 26), and may 
 be treated as sach by the adverse party. If the complaint be thiis 
 defective, the defendant's remedy is to answer without oath. If the 
 answer be defective, the plaintiff may disregard it, and enter up judg- 
 ment by default. If a reply be defective, the answer may either, be 
 taken as admitted upon the trial, or possibly a motion va^j be made 
 under section 154. Vide Fitch vs. Mgelow, 5 How., 237 ; 3 C. E., 216 ; 
 Qui/n vs. Tilton, 2 Duer, 648 ; White vs. Bennett, 7 How., 59 ; 8t/r(ms8 
 vs. Parker, 9 How., 342 ; Lane vs. Morse, 6 How., 394 ; Waggoner vs. 
 Brown, 8 How., 212; Treadwell vs. Fassett, 10 How., 184; Hublard 
 rs. The National Proteotion Insurance Company, 11 How., 149 (152); 
 Williaffvs vs. Piel, 5 Duer, 601 ; 11 How., 374 ; Hughes vs. Wood, 5 
 Duer, 603, note ; The People vs. Allen, 13 How., 334, as to the right 
 of a defendant to omit verification in such cases. As to the plaintiff's 
 power to disregard, and enter up judgment for want of a properly veri- 
 fied answer (though of course he exercises such right at his peril), vide 
 Strout vs. Curran, 1 How., 36 ; Phillips vs. Prescott, 9 How., 430. Or 
 he inay take an inquest under similar circumstances. Farrand vs. Her- 
 leson, 3 Duer, 655. But, where the pleadings of both parties under, 
 such circumstances are irregular, both will be allowed to stand. Vide 
 Bank of State- of Maine vs. Buell, 14 How., 311. See also, as to the 
 indisposition of the court to entertain motions under such circumstances, 
 Wilkin vs. Gilman, 13 How., 225. 
 
AMENDMENT .OR DISEE&AED OF ERKOES. — § 128. 611 
 
 CHAPTER in. 
 
 AMENDMENT OR DISREGARD OF ERRORS IN SUBSTANCE, 
 
 General Observations. 
 
 Eeeoes in pleading, of whatever nature, are, under specified condi- 
 tions, capable of correction under the new system, at any time during 
 the continuance of the controversy. 
 
 Such correction, or its equivalent, may be made on application of the 
 moving party, and in any of the following modes : 
 
 1. By amendment, .as of course. 
 
 2. By similar amendment, on special application to the court. 
 
 3. By amendment of immaterial defects, at or after the trial. 
 
 4. By disregard of immaterial objections at the trial. 
 
 The above four heads will form the subject of the present chapter, 
 and will be considered in the order above prescribed. The correction 
 of pleadings on adverse motion, will form the subject of that next 
 succeeding. 
 
 § 128. AmeTidments as of Course. 
 
 The power of a party in this respect is regulated by section 172, above 
 cited. 
 
 Under that section, every pleading may be once amended by the party, 
 as of course, without costs, and without prejudice to the proceedings 
 then already had. 
 
 This may be done at any time within twenty days after it is served-; 
 
 Or at any time before the period for answering it expires ; 
 
 Or it can be so amended, at any time within twenty days after the 
 service of the answer or demurrer thereto. 
 
 But this restriction is, in the latter case, imposed, that the amendment 
 must ni3t be made for the purpose of delay, in order to throw the 
 adverse party over a circuit or term, for which the cause is or may be 
 noticed. If this is made to appear to the court, the amendment may 
 be stricken out, and terms imposed. 
 
 (a.) Right to Amend. 
 
 The only restriction upon the right of a party to avail himself of 
 the facilities in question, is that imposed by the latter part of the pro- 
 
612 • AMENDMENT OR DISKEGAED OE ERROES. § 128. 
 
 vision, as above cited, in the case of amendments, made after a substan- 
 tial joinder of issTie, for the express and only purpose of delay. Other- 
 wise that right is absolute, and incapable of being defeated or abridged 
 by any act of the adverse party. Washburn vs. Merrick, 4 How., 15 ; 
 S'C. E., 2; Dicherson vs. Beardsley, 1 C. R., 37; 6 L. O., 389; Clm- 
 vs. Mallory, 1 C. E., 126 ; Morgan vs. Zeland, 1 0. E., 123 ; Currie vs. 
 Baldwin, 4 Sandf , 690 ; Cooj)er vs. Jones, 4 Sandf , 699 ; Griffin vs. 
 Cohen, 8 How., 451 ; Rogers vs. Rathhone, 8 How., 466 ; Thomps&n vs. 
 Minford, 11 How., 273 ; Burrall vs. Moore, 5 Duer, 654. 
 
 Where, after the decision of an adverse motion, the plaintiff, having 
 leave to amend his summons and complaint, had elected not to amend 
 the latter, it was held that, after the subsequent service of an answer, 
 his right to amend as of course still subsisted. It could not be cut off 
 by mere implication. Ross vs. Binsmore, 20 How., 328 ; 12 Abb., 4. 
 
 I^or can such right be impaired by any act of the adverse party. The 
 latter cannot make himself the judge, as to the competency or sufficiency 
 of an amended pleading, or disregard it when duly served. Plis rem- 
 edy, if it be defective in substance, is by motion. Spencer vs. Toolcer, 
 21 How., 333 ; 12 Abb., 353. See also McQueen vs. Babcock, 22 How., 
 229 (233) ; 13 Abb., 262. 
 
 And, if the adverse party proceed, during the time allowed as above, 
 he does so at his peril, and subject to his proceedings being defeasible, 
 and any judgment he may take being liable to be set aside, in the event 
 of a subsequent amendment in due course, and not for the purpose of 
 delay. YideWasKburn vs. Merrick ; Dlckerson vs. Bea/rsley ; Morgan 
 vs. Zeland; Griffin vs. Cohen; Rogers ys. Rathbone; and Currie vs. 
 Baldwin, above cited. 
 
 But, although, in this respect, an amendment may be said to effect a 
 qualified stay of proceedings, still, for general purposes, this is not the 
 case. The cause may be at once noticed for trial by the plaintiff, on 
 the first joinder of issue {Plumb vs. Whipples, 7 How., 411) ; and, if the 
 defendant waive his right, either expressly or by service of u counter- 
 notice, the former will be bound to proceed. Cusson vs. Whalon, 5 How., 
 302 ; 1 C. E. (N. S), 27. It has been also held that the plaintiff may 
 at once move for a reference. Bnos vs. Thomas, 4 How., 290. 
 
 But, in such cases, either party, whether plaintiff or defendant, acts 
 at his peril. That of the former, is the contingency that, before he can 
 bring the case to trial, the defendant may amend, and thus destroy the 
 issue he had intended to try. On the other hand, the defendant takes 
 the time allowed to him to amend, at the peril of all reo-ular proceed- 
 ings which may be taken against him, before he amends. Such pro- 
 ceedings, whatever they may be, are not to be prejudiced by the 
 amendment. Plumb vs. WhippUs, 7 How., 411. 
 
AMENDMENT OE DISREGARD OF EEIiOES. — § 128.. 613 
 
 The power of amendment as of course, can only be exercised once by 
 either party. If a second alteration be required, it can only be done by 
 leave of the court. White vs. The Mayor of New York, 14 How., 495 ; 
 5 Abb., 322 ; 6 Duer, 685. See also Jeroliman vs. Cohen, 1 Duer, 629. 
 
 Prior to the amendment of the section in 1859, the power to amend 
 as of course was held to exist, in cases of responsive pleading, only with 
 respect to the insertion of new matter, and that an answer consisting 
 of denials only, was not amendable as of course. Plwmh vs. Whi^les, 
 
 1 How., 411 ; Fan'rand vs. Herheson, 3 Duer, 665 ; Lampson vs. 
 McQueen, 15 How., 345. 
 
 The amendment of 1859, by making any pleading amendable, at any 
 time within twenty days after it is served, seems, however, now to 
 remove this restriction. Prior to 1851, and between 1855 and 1857, an 
 answer, being generally demurrable, was also held to be generally 
 amendable. See Townsend vs. Piatt, 3 Abb., 323. 
 
 An amended pleading supersedes, and takes, in all respects, the place 
 of the original, which, from thenceforth, is to be considered as non- 
 existent for any purpose in the case. Seneca BamJc vs. Oarlinghouse, 
 4 How., 1Y4 ; Kapp vs. Barthan, 1 E. D. Smith, 622 ; Fry vs. Ben- 
 nett, 3 Bosw., 200 ; Burrall vs. Moore, 5 Duer, 654 (656). See also 
 dictum in Dann vs. Baker, 12 How., 521, and Megrath vs. Van Wyck, 
 
 2 Sandf., 641. And, when made or allowed, an amendment dates back to 
 the commencement of the action. Ward vs. JTalifieisch, 21 How., 283. 
 
 Pending a motion for judgment on the ground of defect, it has been 
 held that the power in question is exercisable. Burrall vs. Moore, 5 
 Duer, 654 ; Currie vs. Baldwin, 4 Sandf, 690. 
 
 In these two cases, the motions were denied without costs. A stricter 
 view is taken in Williams vs. Wilkinson, 5 How., 357 ; ICE. (N". S)., 20, 
 and Hall vs. Huntley, 1 C. K. (N. S.), 21, note, where it was held that 
 the section does not apply to irregularities, and that, after motion on that 
 ground, an amendment was inadmissible, except on terms, and payment 
 of costs to the moving party. See also Aymar vs. Chase, infra. 
 
 After the decision on a motion to strike out a pleading, it can no 
 longer be amended without special leave. Aymar vs. Chase, 1 0. E. 
 (]Sr. S.), 141. But, where the pleading has been put in in good faith, 
 this leave will be granted, or a conditional order made. Witherspoon 
 vs. Van Dolar, 15 How., 266 ; Fales vs. Hicks, 12 How., 153. These 
 cases seem to overrule the diciMm to the contrary, in Sherman vs. The 
 New York Oenin'al Mills, 1 Abb., 190. 
 
 To be available, under the section in question, an amendment must 
 be substantial, and not colorable, or of formalities outside of the sub- 
 stance of the pleading. Vide Snyder vs. White, 6 How., 321 ; George 
 vs. MoAvoy, 6 How., 200 ; 1 0. E. (N. S.), 318. 
 
614 AMENDMENT OE DISKEGAED OF EKKOES. § 128. 
 
 An amendment of the complaint, changing the substantial nature of 
 the action, or involving a change of parties, so as, in effect, to necessi- 
 tate an amendment of the summons also, cannot be made at all, as of 
 course, and without special leave of the court. Eussell vs. Spear, 5 
 How., 142 ; 3 C. E., 189 ; Gray vs. Brown, 15 How., 555. 
 
 But, where such is not the case, or where the amendment does not 
 involve a misjoinder, any new cause or causes of action, claims for 
 relief, or grounds of defence, may be added in this manner. Mason 
 vs. Whiteley, 4 Duer, 611 ; 1 Abb., 85 ; Thompson vs. Minford, 11 
 How., 27B ; Wyman vs. Remond, 18 Plow., 272 ; Troy and Boston 
 Railroad Company vs. TihUtts, 11 How., 168 (170); Getty Ys.-The 
 Hudson River Railroad Company, 6 How., 269 ; 10 L. 0., 85 ; Spen- 
 cer vs. Tooker, 21 How., 333 ; 12 Abb., 353 ; McQueen vs. Babcoch, 22 
 How., 229 ; 13 Abb., 262. See also Allaben vs. Waheman, 10 Abb., 
 162, an amendment on motion. 
 
 By these cases, EoUister vs. Limingsion, 9 How., 140, and Field vs. 
 Morse, 8 How., 47, may be considered as so far overruled. 
 
 It is also competent for a party to make, in this manner, any changes 
 in the mode of statement of his case, or in the form of his action, not 
 changing its essential nature, in the particulars above referred to. Yide 
 Ilollister vs. Livingston, and Field vs. Morse, supra. See also Thomp- 
 son vs. Minford, 11 How., 273 ; Dows vs. Green, 3 How., 377 ; Chap- 
 mwn vs. Well, 6 How., 390 ; 1 C. K (N. S.), 388. 
 
 Supplemental matter, occurring after the commencement of the suit, 
 cannot be introduced by way of amendment. Hornfager vs. Homfa- 
 ger, 6 How., 13 ; 1 C. E. (JST. S.), 180 ; Beck vs. Stephani, 9 How., 
 193 (19.5); St. John vs. Croel, 10 How., 253 (258); McCullough vs. 
 Colby, 4 Bosw., 603. JSTor, without special permission, can matter 
 in answer to the original complaint be inserted in a supplemental 
 answer. Dann vs. Baker, 12 How., 521. Nor, per contra, can mat- 
 ter Jinown at the time of commencing the action, be introduced, by 
 way of supplemental pleading, or otherwise than by amendment. 
 2fcMahon vs. Allen, 3 Abb., 89; affirming, 12 How., 39, also 3 
 Abb., 92. 
 
 An order directing a complaint to be specially amended, does not 
 restrict the plaintiff's general power to amend, as of course, if exercised 
 in due time, and in a manner not inconsistent with the order. Jeroli- 
 ma/n vs. Cohen, 1 Duer, 629. 
 
 An amendment of a merely technical natiire, not altering the real 
 issue between the parties, is without prejudice to the proceedings, and 
 will not exclude the admission at the trial, of a deposition previously 
 taken. Vincent vs. ConUin, 1 E. D. Smith, 203 (209). 
 
 The powers of amendment conferred by the Code are equally applica- 
 
AMENDMENT OE DISEEGAED OF EREOES, — § 128. "615 
 
 ble iu partition, as well as in other cases. Croghan vs. Livi7igston, lY 
 N. Y., 218 ; 6 Abb., 350 ; affirming»25 Barb., 336. 
 
 A special power of amendment as of course, and exercisable at any 
 time and without costs, is conferred by chapter 464 of 1847, section 7, 
 in the case of a legal change of name, by a party, pendente lite. Analo- 
 gous to this is the provision, by section 175 of the Code, for amendment, 
 on discovery of the true name of a defendant, of which the plaintiff was 
 ignorant at the outset. ; 
 
 An amendment, when made, has no collateral effect, beyond that of 
 an acknowledgement of mispleader. It cannot be construed as a con- 
 fession, that the party has wilfully or knowingly made a false statement 
 in the pleading amended. Elizaheihport Manufacturing Oompany vs. 
 Camplell, 13 Abb., 86. 
 
 (5.) Time of Amendment. 
 
 As will have been seen, the usual period of twenty days is allowed 
 for amendment, either after the service of the pleading in the first 
 instance, or after the service of the answer or demurrer thereto. The 
 further liberty is given of doing so, at any time before the time for 
 answering it expires. 
 
 • This last mentioned provision seems clearly to secure to the pleader 
 the right to amend his own pleading, at any time within the limits of 
 an order for extension of time obtained by his adversary, in addition to 
 the original twenty days after service. 
 
 It is equally clear that the words " service of an answer or demurrer" 
 must also be held to include the service of a reply, which is, in fact, 
 essentially an answer to a counter-claim, when put in. See Seneca Bank 
 vs. Garlinghouse / Mws vs. Thomas y and Cusson vs. Whalon, before 
 referred to. 
 
 In the former of these three cases, an amendment of the complaint 
 was allowed, even after the service of a reply, on the subsequent service 
 of an amended answer by the defendant. 
 
 It has been held that, in cases where service by mail is admissible, 
 the time to amend is doubled, and runs for forty days instead of twenty. 
 Washhurn vs. Herrich, 4 How., 15 ; 2 0. E., 2 ; Cusson vs. Whalon, 
 5 How., 302 ; 1 0. E., (¥. S.), 27. These cases stand uncontradicted, 
 but whether they can be safely relied upon is very questionable. See, 
 hereafter, under the head of Time to Answer. 
 
 Of course, by amending his complaint after answer, the plaintiff 
 works a practical recommencement of the pleadings, ab initio, and can- 
 not take judgment, with reference to the date of the original service. 
 Dioherson vs. Bea/rdsley / and Seneca County Bank vs. Garlinghouse, 
 above cited. 
 
61& AMEITDMENT OE DISEEGAED OF EEEOBS. — § 128. 
 
 (c.) Eestbiotions on Powee. 
 
 The restrictions, imposed as above noticed, are solely upon amend- 
 ments, made for the mere purpose of delay, after an actual joinder of 
 issue. 
 
 Before that joinder, the right is absolute under any circumstances. 
 
 After that joinder it is equally so, unless two things be njade to ap- 
 pear to the court. 
 
 1. That the amendment is made for the purpose of delay. 
 
 2. That, by that amendment, the objector will lose the benefit of a 
 circuit, or term, for which the cause is or may be noticed. 
 
 Both these conditions must concur, to bring the restriction into oper- 
 ation. Vide Thompson vs. Minford, 11 How., 273 (275). 
 
 And the proper form of procedure, in such cases, is a motion to strike 
 out the amendment, on which the court may impose such terms as may 
 be just. See, as to similar practice, antecedent to the insertion of this 
 provision. Cooper vs. Jones, 4 Sandf , 699. 
 
 If an answer is put in in good faith, and not for delay, the mere fact 
 that the adverse party will thereby lose the benefit of a term, will not 
 authorize it to be stricken out. Oriffim, vs. Cohen, 8 How., 451. 
 
 In the same case, the following is laid down as the proper course 
 of practice, on the application authorized by the section : 
 
 " If the amended pleading shall be served during a circuit or term, 
 the court can, upon a proper ease being made, require the party amend- 
 ing to show cause, at a short day, why the amended pleading should 
 not be stricken out (Code, section 402) ; or if, for any reason, this can- 
 not be done before the adjournment of the circuit, application may be 
 made at a special term ; and, if the case is brought within the pro- 
 vision authorizing the court to strike out, it can be done, and such tenns 
 imposed upon the party thus attempting to avail himself of the statute 
 of amendments in bad faith, as will prevent injury to the adverse 
 party." 
 
 It was also*held in that case, that the taking of an inquest was not a 
 proper course under these circumstances, and one so taken was set aside. 
 The same course was taken in Rogers vs. RaMone, 8 How., 446. See 
 also Farrand vs. Herleson, 3 Duer, 655 (658). In Allen vs. Compton, 
 8 How., 251, the plaintiff evidently did not fully rely on an inquest so 
 taken, but made a subsequent motion to strike out. The general rule 
 is also admitted in Vanderbilt vs. Bleecker, 4 Abb., 289 (291). 
 
 In Allen vs. Compton, an inquest was taken, but, as above, evidently 
 not relied upon. "Where, however, the amendment is so grossly friv- 
 olous as to be obviously a fraud upon the law, the possibility of its 
 being treated as a nullity is admitted, in Rogers vs. Rathbwie, svpra. 
 
AMENDMENT OR DISEEGAED OF EEEOES. — § 129. 61 7 
 
 And tliis view was acted upon, and an inquest so takto sustained, in 
 Vanderlilt vs. Bleeoker, 4 Abb., 289. 
 
 An inquest was also sustained, as against a motion to set it aside for 
 irregularity, as taken before the time for amendment had expired, on 
 the ground that, if the defendant delays to amend, he delays at his peril. 
 Phiinl vs. Whipples, 7 How., 411. 
 
 That case, however, proceeded mainly upon the ground that the 
 answer, consisting of mere denials, was not amendable at all, and that 
 therefore the amendment itself was a nullity. That, in such case, an 
 attempted amendment may be properly disregarded, and an inquest 
 taken, without the necessity of a special motion, is maintained in Farrand 
 vs. Ilerbeson, 3 Duer, 655. 
 
 Of course the extreme measure of striking out will be of comparative 
 rarity ; and the more usual remedy will look to the imposition of terms, 
 more or less stringent, as the peculiar circumstances of each case may 
 require. 
 
 § 129. Amendnnents on Special Motion. 
 
 The power in this respect, conferred by section 1Y3, as above cited,. is 
 of the most extensive nature, and is applicable to every proceeding in 
 the suit. In its aspects as regards process, and some branches of inter- 
 locutory applications, it has been already partly considered. It -will be 
 so hereafter, in its other different phases not immediately connected with 
 the subject of pleading, wherever the necessity occurs ; the observations 
 in the present chapter being strictly confined to that subject alone, 
 without touching upon any other matters of proceeding. 
 
 The power is to the following effect : 
 
 The ^urt may amend any pleading or proceeding— 
 
 By adding or striking out the name of any party ; 
 
 By correcting a mistake in the name of a party ; 
 
 By correcting a mistake in any other respect ; 
 
 By inserting other allegations material to the case ; 
 
 Or, when the amendment does not substantially change the claim or 
 defence, by conforming the pleading or proceeding to the facts proved. 
 
 This last category must be looked upon as more peculiarly limited to 
 amendments at or consequent upon the trial, for the purpose, not of 
 laying a basis for ulterior proceedings, but rather for that of sustaining 
 a verdict or judgment already rendered. It will accordingly be sepa- 
 rately considered in the next section. The others are of more general 
 application, and have rather in view the object of forming the basis 
 for ulterior proceedings in the action itself, and will form the subject 
 of this. 
 
618 AMENDMENT OE DISEEaAED OE EEE0E8. § 129. 
 
 These powers maj all of them be exercised, either before or after 
 judgment. 
 
 But they must be exercised in furtheranpe of justice. 
 
 And, in their exercise, the court may and will impose such terms as 
 may be proper. 
 
 {a:) Amendment m ITames of Parties. 
 
 The courts are disposed to show great liberality in applications for 
 amendments of this description, whether applied for at or before the 
 trial. In the former case, terms will of course be imposed. See Dutoher 
 vs. Slack, 3 How., 322 ; 1 0. E., 113 ; Vanderwerker vs. Vanderwerker, 7 
 Barb., 221 ; Brown vs. Bdbcock, 3 How., 305 ; 1 C. E., 66 ; Bemis vs. 
 Bronson, 1 C. E., 27 : the two former being cases of adding the names 
 of necessary plaintiffs, the two latter of striking out unnecessary defend- 
 ants. In Barnes vs. Ferine, 9 Barb., 202, affirmed generally, 2 Kern., 
 18, a mistake in the designation of the plaintiffs, was, in like manner, 
 held not to be ground of nonsuit, but for amendment, at or after the 
 trial. See too Be Peyster vs. Wheeler, 1 Sandf , 719 ; 1 C. E., 93, as 
 to disregard at the trial of a technical misnomer, with' liberty for the 
 parties to apply for a subsequent amendment, if thought prudent. See 
 also Travis vs. Tobias, 8 Plow., 333. 
 
 But, as a general rule, such an amendment, unless the objection be 
 of the most technical nature, should not be made instanter on the trial, 
 but afterwards and on terms. Travis vs. Tobias, supra. 
 
 The name of a next friend was allowed to be inserted in a complaint 
 by amendment, on its being decided that the suit in that case could not 
 be brought by a wife in her own name alone. Forrest vs. Forrest, 3 C. 
 E., 254. See also Willis vs. IJnderUll, 6 How;, 396. 
 
 One plaintiff may be substituted for another by amendment, where 
 the interest of the latter has passed entirely to the former, during the 
 action ; and this, even when the matter is actually, at the time of such 
 application, in the course of hearing before a referee. Bavis vs. Soher- 
 inerhorn, 5 How., 440. See, as to similar substitution of a defendant, 
 Fuller vs. TlieWebster Fire Insurance Company, 12 How., 293. 
 
 In The People vs. WaOter^ 28 Barb., 304 ; 2 Abb., 421, an omis- 
 sion to join the relator as party plaintiff,' was permitted to be cured by 
 amendment, without costs. 
 
 In Turner vs. Hillerline, 14 How., 231, the plaintiff was also allowed, 
 pending the hearing before a referee, to strike out one of the defend- 
 ants, upon terms, for ensuring the benefit of the past proceedings and 
 costs to the defendant retained. 
 
 ,In GogJc ^s. Ken^da, 29 Barb., 120, the striking out of a defendant, 
 become superfluous by his o-wn act, was likewise sanctioned. 
 
AMENDMENT OR DISREGAEB OP EEEOES. — § 129. 619 
 
 • 111 Johnson vs. Snyder, 8 How., 498, additional defendants were 
 allowed to be introduced on terms. See likewise, Mayhew vs. liobin- 
 S071, 10 How., 162 (168). Both these cases occurred on the hearing : 
 in the former, the amendment, and payment of costs, were made a con- 
 dition of not dismissing the suit ; in the latter, the party was put to a 
 substantive application (168, note). 
 
 The courts will not, however, carry the principle too far. 
 
 An amendment, involving an entire change of parties, plaintiff and 
 defendant, so as to constitute, in fact, a new suit, was accordingly refused 
 inW7''ight vs. Storms, 3 C. K., 138. 
 
 Where, too, an amendment of this nature, if granted, would have 
 involved the making the complaint objectionable on the ground of mis- 
 joinder, it was refused. J'ecJs vs. Ward, 3 Duer, 647. 
 
 And, when made, an amendment, involving an addition of parties, 
 must^ of course, be followed up by the necessary service, so as to bring 
 them before the court ; or, of necessity, it will be wholly unavailing. 
 Aikin vs. The Allany Northern Railroad Company, 14 How., 337. 
 
 (5.) COBEECTION OF MiSTAKE. 
 
 The courts are also libei^ally disposed, as regards the extension of 
 facilities of this nature, and as a general rule, relief of this description 
 will rarely be denied. The more frequent exercise of this branch of the 
 power is that considered in the next section, by amendment, or disre- 
 gard of formal objections at the trial ; but the application of the 
 remedy on special motion is not unfrequent. 
 
 Among the many instances in which amendments of this nature 
 have been granted, may be cited the following : 
 
 The addition of the name of the county of venue. Merrill vs. Grin- 
 nell, 12 L. O., 286. 
 
 An amendment, for the purpose of averring slanderous words in their 
 original language. Debaix vs. Lehind, 1 C. E. (IST. S.), 235. 
 
 An amendment in the complaint, increasing the amount of the plain- 
 tiff's claim, originally understated. Merchant vs. The New York Life 
 Insurance Company, 2 Sandf., 669 ; 2 C. E., 66-87. The like amend- 
 ment where the nature and effect of the plaintiff's claim had been gen- 
 erally misunderstood by his attorney. Hare vs. White, 3 How., 296 ; 
 
 1 C. E., 70. 
 
 The insertion of a count on special contract, in lieu of the common 
 count on two promissory notes. Jackson vs. Sanders, ICE., 27. 
 
 The insertion of a material averment. Executors of Keese vs. Fuller- 
 ton, 1 0. E., 52. 
 
 ■ In Baynor vs. Clark, 7 Barb., 581 ; 3 0. E., 230, the plaintiff' was 
 allowed to amend his complaint, on the reversal of a judgment erroue- 
 
620 AMENDMENT OB DISEEGAED OP EEEOES. § 129, 
 
 ously taken by liim. lu Lettman Vs. Rlis, 3 Sandf., 734, an aiuend- 
 inent of the complaint was allowed after the trial, the object of it being 
 formal, and the defendant not complaining of snrprise ; but terms were 
 imposed, and such will be the general, if not the universal rule, in cases 
 of this description. 
 
 In' Comstook vs. White, 31 Barb., 301, the demand for relief was 
 ordered to be amended, in order to allow full justice to be done between 
 the parties, in respect of the matters alleged, with liberty for the defend- 
 ants to amend their answer, if the plaintiffs declined taking such action 
 on their part. See likewise Peok vs. Mallams, 6 Seld., 509, where, on 
 reversal of a judgment dismissing the complaint, leave was given to 
 the plaintiff to bring in necessary parties, though the objection liad not 
 been raised upon the adverse pleading. 
 
 But upon the decision of a demurrer, the court refused to make any 
 order allowing the plaintiff to amend his complaint. The application 
 should, it is evident, have been made sepai'ately. Lord' vs. Vreeland, 
 13 Abb., 195. 
 
 In Balcom vs. Woodruff, 7 Barb., 13, a plaintiff was allowed to 
 amend his declaration, after he had been nonsuited, and to do so nunc 
 •pro tunc, as otherwise the statute would have run out ; although the 
 court expressly guarded against their decision being drawn into a pre- 
 cedent ; and 
 
 In Burnap^%. Halloran, 1 C. E., 51, leave was granted to the 
 
 plaintiff to amend, by adding a new count to his declaration, even 
 
 after two trials had been had, resulting in the defendant's favor ; it not 
 
 ■ appearing that the defendant had been misled, or that the plaintiff' 
 
 sought to introduce a new cause of action. 
 
 It would not be safe, however, to calculate, in other instances, upon 
 the extent of liberality evinced in the two last decisions. That there is 
 some limit to it, is evinced by the case of Houghton vs. Skinner, 5 
 How., 420, where, two trials having already been had, the court re- 
 fused leave to amend, by pleading a former judgment against a co-de- 
 fendant (the suit being one against joint contractors), the matter sought 
 to be so pleaded having been known to the defendant, before issue was 
 originally joined in the cause, so that it might have been pleaded in the 
 first instance. 
 
 So in Malcom vs. Baker, 8' How., 301, leave to amend an answer, 
 after an appeal from a judgment, afiirmed at general term, was refused ; 
 though, on that affirmance, leave had been given to the defendants to 
 make the application. It was held tliat the judgment must first be set 
 aside, before such leave could be given, and that such a motion could 
 not be entertained by the special term. Even if this could be done, it 
 should not only appear that the party has been surprised or misled, 
 
AMENDMENT OE BISEEGAED OF EEEOES. — § 129. 621 
 
 after the exercise of ordinary care and skill, but also, that the amend- 
 ment asked for is clearly required, in order to promote the ends of 
 justice, before such a stretch of the power of amendment can be con- 
 sented to. 
 
 And in Field vs. Sawxhurst, 9 Hoav., 47, it was also held that the 
 extraordinary poAver of amendment after judgment should be sparingly 
 exercised, and only in a case of necessity. 
 
 An amendment of this nature is admissible, eyen though it change 
 the character of the action, the cause remaining the same. Thus, a 
 claim for damages has been allowed to be changed, into one for replevin. 
 Bows vs. Green, 3 How., 377 ; Furyiiss vs. Bfown, 8 How., 59. Or a 
 claim, originally sounding in tort, to be changed into one- in contract, 
 by striking out allegations of fraud. Field vs. Morse, 8 How., 47. Or 
 the general theory of the case to be changed. Troy and Boston Bail- 
 road Company vs. Tihlitts, 11 Plow., 168 ; Prindle vs. Aldrich, 13 
 How., 466. In Spalding vs. Spalding, 3 How., 297; 1 C. R., 64, the 
 genera;! principle is admitted, though the particular relief there sought 
 was denied, as incompatible with the provisions of the Code, as it then 
 stood. A change from contract to tort is likewise held to be allowable. 
 Chapman vs. Webb, 6 How., 390 ; 1 C. E. (K S.) 388. 
 
 In Allaben vs. WaTceman, 10 Abb., 162, a new and distinct cause of 
 action was allowed to be added, by amendment after trial, but upon 
 strict terms, abandoning all prior advantages, and vacating an order 
 of reference and the referee's report. 
 
 An amendment of this latter nature must, however, be asked in good 
 faith, or it may be denied. Thus, where a plaintiff, who, by originally 
 suing on contract, had obtained the benefit of an attachment and of 
 service by publication, afterwards moved to amend, so as to found his 
 action on tort, leave was refused. This, it was held, was not a mistake, 
 and the court had no poAver. Lane vs. Beam, 19 Barb., 51 ; 1 
 Abb., 65. 
 
 Tlie general power of the court to allow amendments of this descrip- 
 tion is asserted, but the particular amendment asked for denied in 
 Daguerre vs. Orser, 3 Abb., 86, as not being in furtherance of justice. 
 
 An amendment or correction of an error in practice will not be 
 allowed, for the purpose of obviating a jurisdictional defect ab initio, 
 such as an omission to file complaint, on service by publication. Kendall 
 vs. WasKburn, 14 How., 380. Or an omission, as regards the signature 
 of a petition for sequestration. Bangs vs. Mcintosh, 23 Barb., 591 
 (601). See, as to a jurisdictional defect in a suit originally commenced 
 in a justices' court, DoAjis vs. Jones, 4 How., 340 ; 3 C. E., 63. But 
 see also, as to the possibility of waiver of this class of objections, 
 Wiggins vs. Tallmage, T How., 404. 
 
622 AMENDMENT OB M8BEGAED OE EEE0K8. — § 129. 
 
 "Wliere, during a trial before a referee, illegal or incompetent action 
 has been had, the courts have refused to curie it by a subsequent 
 amendment, nunc pro tunc. Thus, where a referee had proceeded to 
 try the case, and had administered paths to the witnesses, without any 
 regular order of reference having been made or entered, the court 
 refused to recognize the subsequent entry of an order, nunc pro tunc, 
 in order to legalize the proceedings, and render an action for slander 
 maintainable, in respect of an imputation of perjury at such irregular 
 trial. Bonner vs. McPhail, 31 Barb., 106. 
 
 So likewise an order allowing a defendant to amend his answer, 
 nunc pro tunc, in order to support the admission of evidence which, at 
 the trial, the referee should have rejected as not within the issue, was 
 reversed in Johnson vs. Mcintosh, 31 Barb., 267. 
 
 As to the power of the court to grant leave to amend a pleading, 
 decided, on motion, to be defective, see last section, and WitJierspoon vs. 
 Yan Dola/r, and Fales vs. Hides, there cited. See, as to the granting 
 of a conditional order, on a motion of this description, Corhin vs. St. 
 George, 2 Abb., 465. 
 
 An amendment asked for, if wholly ineffectual for ■ the purpose 
 proposed, or otherwise objectionable, will be. denied. Stewart vs. 
 Smithson, 1 Hilt., 119 ; Saltus vs. Genin, IT How., 390 ; 8 Abb., 254 ; 
 3 Bosw., 639. 
 
 . See, as to permission being given to supply defects in the original 
 allegation in a complaint, McMahmi, vs. Allen, 3 Abb., 89 (92). 
 
 An implied admission in a pleading was allowed to be corrected 
 by amendment, in Va7iderUlt vs. The Accessory Transit Company, 9 
 How., 352. 
 
 An arnendment of this nature will not, as a general rule, be granted 
 after trial, and in opposition to the decision of the judge on that occa- 
 sion. A full and clear case must be shown, before the court will tlien 
 interfere. Travis vs. Barger, 24 Barb., 614. 
 
 (c). Inseetion of Mateeial Allegations. 
 
 This subject, so far as regards the insertion of allegations for tlie 
 purpose of supplying a defect, has been substantially considered in the 
 previous head. 
 
 It embraces, however, the power of inserting, by amendment, allega- 
 tions pertinent to the case, but not necessary to it in its original aspect, 
 in order to lay ground for different and independent relief." Houghton 
 vs. Latson, 10 L. 0., 32, refusing such an amendment, was decided 
 under an antecedent condition of the Code. 
 
 Thus, in Beardsley YS..Stover, 1 How., 294, a defendant was allowed 
 to insert an additional counter-claim in his answer. 
 
ame:ndment ok diseegaed of eeeoes. — § 129. 623 
 
 But, in granting such an amendment, the court will secure to the 
 defendant his right to answer or demur, as in other cases. See Union 
 Bank vs. Mott^ 19 How., 2d7 ; 11 Abb., 42 ; modifying same case, 19 
 How., 114 ; 10 Abb., 376. 
 
 The courts have frequently been disposed to refuse leave to amend, for 
 . . the sole purpose of setting up what was considered an unconscientious 
 defence ; as, for instance, the statute of limitations. See Davis vs. 
 Garr, 7 How., 311 ; Sagory vs. New York and New Haven Bailroad 
 Company, 21 How., 455 ; Macquen vs. Babcock, 22 How., 229 ; 13 
 Abb., 262. 
 
 See also, as to the retrospective effect of an amendment,, in order to 
 oust a. plea of this nature,. TFaT-i^ vs. KaWfleisch, 21 How., 283. The 
 defence of usury has been sometimes placed upon the same footing. 
 Vide Bates vs. Yoorhies, 7 How., 234 ; Gatlin vs. Gunter, 1 Duer, 253 ; 
 11 L. O., 201. This view has, however, been overruled. Vide Catlin 
 vs. G>unter, reversed by the Court of Appeals, 1 Kern., 368 ; 10 How., 
 315, holding that usury, being a defence allowed by law, is entitled to 
 be placed on the same footing as others, in this as in other respects. 
 See also Brown vs. Mitchell, 12 How., 408 ; and Grant vs. McCaughin, 
 4 How., 216. 
 
 The introduction of supplemental matter, by way of amendment, is 
 beyond the powers of the court. A supplemental pleading will be 
 necessary. Hornfager vs. Hornfager, 6 How., 13 ; 1 C. K. (IST. S.), 
 180 ; SL John vs. Oroel, 10 How., 253 (258) ; Beck vs. Stephani, 9 
 How., 193 (195). SeealsoJ/cJSfaAojivs.JiKm, 12 How., 39 (44). See 
 the same case as to the converse of the proposition, i. e., that matter, 
 antecedent to the commencement of the suit, cannot be made the subject 
 of a supplemental pleading, but can only be introduced by amendment. 
 MoMahon vs. Allen, 12 How., 39 ; and affirmance, and subsequerit 
 decision, 3 Abb., 89 and 92. As to the general liberality of the court 
 in granting amendments of the above nature, vide Harrington vs. 
 Slade, 22 Barb., 161. 
 
 See, however, a stricter view taken, as to the impossibility of curing 
 a radical defect in the action as originally commenced, by the insertion, 
 in either form, of entirely supplemental matter, not then existent. Mc- 
 Culkmgh vs. Colby, 4 Bosw., 603. 
 
 {d.) Genjieal Considerations, 
 
 The courts will not, however, be disposed to extend the^ above privi- 
 leges to a party pleading, in cases where he has been guilty of unrea- 
 sonable delay or gross laches in attempting their assertion. Vide Davis 
 vs. Garr, 7 How., 311 ; McMahon vs. Allen, 12 How., 39 ; affirmed, 8 
 
624 AMENDMENT OR DISEEGAED OE EEEOES. — § 129. 
 
 Abb., 89 (though the relief was subsequently granted, vide 3 Abb., 92) ; 
 Fgert Ys.'Wicker, 10 How., 193 ; Saltus vs. Genin, 17 How., 390 ; 8 
 Abb., 254 ; Cocks vs. Radford, 13 Abb., 207. 
 
 The power of a referee to grant amendments, under section 272, does 
 not extend to the granting of those of the nature treated of in this sec- 
 tion. It does not extend to amendments on independent motion, but is 
 confined to amendments upon the trial, strictly considered, or to disre- 
 gard of objections on that occasion. Union Bank vs. Mott, 18 How., 
 506 ; 10 Abb.,. 373 (374). 
 
 On the granting of an amendment of this description, the imposition 
 of terms, more or less stringent, is the general, and almost the univer- 
 sal rule. It is, in fact, expressly contemplated by the section. In 
 some few of the cases above cited, amendments have been granted 
 without imposing them, but this has only occurred when the defect 
 has been a mere technicality, and the objection on the adverse part 
 overstrained or invidious. It will be needless to draw attention to each 
 particular case, as all agree in the general principle, and, nevertheless, 
 almost all disagree in minor details. The question is purely one in the 
 discretion of the court, and such discretion will necessarily vary, accord- 
 ing to the circumstances of each particular case. 
 
 A few general principles may, however, be laid down, as probable 
 to be followed in individual applications. 
 
 The costs of the motion will- almost invariably be imposed. 
 
 Where the amendment is made before the trial, costs, down to the 
 time of amendment, will often be granted to the adverse party. 
 
 "When made at or after the trial, payment of costs of the trial, and 
 of any subsequent proceedings which the amendment tends to neutral- 
 ize, will be generally imposed as a condition. 
 
 Where the issue is not substantially changed, it is often stipulated 
 that any prior proceedings are to stand, and any evidence previously 
 taken is to be admissible ; or, in extreme cases, the proceedings of the 
 moving party will be vacated, and the adverse party placed in his for- 
 mer position. And, where that amendment will necessitate a change 
 of proceedings on the part of the adverse party, indemnification from 
 the expenses of that change has occasionally been made a prerequisite. 
 See the above cases, passim. See especially Union Banh vs. Mott, 19 
 How., 267, above cited. 
 
 The power to plead over, after the decision of a demurrer, as given by 
 the latter part of section 172, although closely analogous to the above, 
 is, nevertheless, a proceeding not of a general nature, but adapted only 
 to a particular pleading, and to a particular stage of the action : as suclx 
 it will be considered hereafter. 
 
 The subject of supplemental pleading, also, presenting a close analogy 
 
AMENDMENT OE BISEEOAED OE EEEOES. — § 130. 625 
 
 to that of amendment, will likewise be reserved for a separate chapter, 
 devoted to that especial subject. 
 
 In a suit against several defendants, a plaintiff, who amends in matter 
 of substance, after default taken against one of them, waives that default 
 in effect, and must serve a copy upon that defendant, so as to give him 
 a renewed opportunity of defending, if so advised. Tlie People vs. 
 Woods, 2 Sandf., 652 \ 2 C. R., 18. 
 
 § 130. Sermoe of Amended Pleading. 
 
 Whatever the grounds or mode of amendment, a copy of the amended 
 pleading must, in all cases, be served at once upon the adverse party. 
 There can be no doubt but that this is the clear meaning of the provision 
 in the section, though its peculiar wording, with reference to the imme- 
 diate antecedent, is awkward. 
 
 In every case, therefore, in which a pleading is amended, a full and 
 complete copy of it must be served upon the adverse part}'. An 
 arrangement may, of course, be occasionally made to amend the copy 
 previously served ; but, when feasible, this is a matter of pure accommo- 
 dation, and not of strict practice. 
 
 Such service is, above all, necessary, because it is only from the time 
 of actual service of the amended pleading, that the time of the adverse 
 party to answer or amend, as the case may require ; or that of the party 
 serving, to take an ultimate default, or analogous measures in default 
 of service of an answer, or reply- where requisite, will commence to run. 
 
 A fortiori, will the neglect to serve process on additional defendants, 
 if brought in, render the amendment, as to them, a complete nullity. 
 Yide Aihin vs. The Albany Northern Railroad Comjoany, 14 How., 
 357, above cited. 
 
 And if, after taking judgment by default against one of several 
 defendants, the plaintiff afterwards amends in matter of substance, he 
 opens the default, in effect, and must serve his amendments upon all, 
 the defaulted defendant inclusive. People vs. Woods, 2 Sandf., 652 ; 2 
 0. R., 18, &"upra. 
 
 And as regards service, the same general rule obtains as to other 
 papers. Where an attorney has appeared, service on the party instead 
 of the attorney will, accordingly, be void. Section 146 of the Code is, 
 in this respect, controlled by section 417. Mercier vs. Pearlstone, 7 
 
 Abb., 325. 
 
 Section 146, as above noticed, makes special provision for the taking 
 of iudgment by default, on amendment of the complaint after demurrer, 
 but the same general principle is applicable to an amended complaint 
 of whatever nature. According to the decisions above cited, it takes 
 
 YoL. I— 40 
 
626 AMENDMENT OE DISEEGAED OP EEEOES. § 131. 
 
 the place of, and supersedes the original, and the same rules are appli- 
 cable to it, as regards the necessity of an answer, and the time within 
 which that answer, to be available, must be put in. 
 
 The above rules, as to service, apply, of course, to amendments 
 directed at, or in consequence of occurrences upon the trial, as treated 
 in the next section, when not made at the time. Actual amendment of 
 the papers of the adverse party, will be peculiarly applicable to this 
 class of cases, though, of course, it is competent to the party to refuse, 
 if he chooses, that facility. In this case there seems no I'esource but to 
 serve a fresh copy ; or, where the amendments are short, a specification 
 of them, in the nature of amendments to a case as after noticed. 
 
 § 131. Amendments on or after the Trial. 
 
 The powers of the courts in this respect, as conferred by sections 169, 
 170, and 173, are most extensive. 
 
 Every variance between the pleading and the evidence, unless amount- 
 ing to a total failure of proof, is, for the future, to be either disregarded 
 or amended. See sections 169, 170, and 176. The question of a total 
 failure of proof is considered in the succeeding section of this work. 
 
 If the adverse party be actually misled, by such variance, to his preju- 
 dice, in maintaining his action or defence upon the merits, the variance 
 is to be deemed material, but not otherwise. See section 168. 
 
 To establish such distinction, such adverse party must allege, aRd 
 must prove, to the satisfaction of the court, that he has been so misled, 
 and in what respect. 
 
 The court may thereupon order the pleading to be amended, upon 
 such terms as may be just (§ 168). Relief in these cases will ordinarily, 
 though not always, be obtained by means of a substantive motion. See 
 preceding section of this- work. 
 
 But, where the variance is not established to be material, in the man- 
 ner above provided, thlen the court may direct the fact to be found 
 according to the evidence, or may order an immediate amendment, 
 without costs. Section 169. 
 
 And, under section 173, the court may, before or after judgment, in 
 furtherance of justice, and on such terms as may be proper, amend 
 any pleading or proceeding, by, among other things, " conforming the 
 pleading or proceeding to the facts proved." See also general power to 
 amend proceedings or supply omissions in them, at the close of section 
 174. But this last power can only be exercised " when the amendment 
 does not change substantially the claim or defence." 
 
 The general power of amendment, under section 169, is, on the 
 contrary, unrestricted. 
 
AMENDMENT OE DISEEGAED OF EEK0E3. — § 131. 627 
 
 It is proposed to consider these two powers and their incidents in the 
 present section : the subject of disregard of objections, and of a fatal 
 variance being reserved for the next. 
 
 By the Kevised Statutes, title V., chapter VII. of part III., 2 E. S., 424 
 to 426, extensive powers of amendnient, under similar circumstances, 
 had already been given, and those powers appear to be still subsisting, 
 in concurrence with those of the Code. See, to this efiect, in Brown 
 vs. Bdbcock, 1 0. E., 66 ; 3 How., 305. Those of the C9de, however, 
 are of wider scope, and may be considered as practically superseding tlie 
 others. 
 
 The former practice of entering suggestions on the record, is also, in 
 proper cases, still subsisting. Yide 2 E. S., 553, sections 17, 18, 19. 
 
 (a.) Amendments at the Teial. 
 
 The following may be cited as diota, laying down the general prin- 
 ciple in respect of the general conduct of a trial in this respect : " The 
 Code has made important changes in the system of nisi prius trials. 
 Under the new system, the judge at circuit possesses the same control 
 over the pleadings formerly exercised by the Supreme Court, after ver- 
 dict, and before judgment. The pleadings may now, on the trial, be 
 conformed to the proof — imniaterial allegations disregarded, immaterial 
 evidence rejected, and such judgment may be directed as the facts and 
 the law of the case require." Corning vs. Corning^ 1 C. E. (N. S.), 351 ; 
 affirmed, 2 Seld., 97. 
 
 With reference to amendments, made for the express purpose of con- 
 forming the pleading to the facts proved, it is laid down in Fay vs. 
 Grimsteed, 10 Barb., 321, that a fatal variance must leave the case im- 
 proved in its entire scope and meaning. If left unproved in sortie par- 
 ticulars, it is a subject for amendment upon terms, if the adverse party 
 has been misled by it, otherwise amendments may be made at the trial, 
 and without any conditions whatever. 
 
 In Wood vs. Wood, 26 Barb., 356 (359), the rule is thus laid down very 
 liberally : " Errors in pleadings must now be fatal to the action or de- 
 fence, or they will be disregarded and cured by amendment in further- 
 ance of justice, both before and after judgment. A plaintiff who 
 expects to recover in an action, when there is a substantial defence to it, 
 solely by reason of defects in the answer ; or a defendant who thinks of 
 succeeding in an action, upon errors in the complaint, without regard 
 to the merits of his defence, may aS well stay out of court as to come 
 in, under the Code." After citing section 176, the learned judge (Bal- 
 com, J.) proceeds : " And, when the courts construe the allegations of 
 pleadings liberally (as section 159 of the Code enjoins), with a view to 
 substantial justice, parties who are in the right, on the merits of eases. 
 
628 AMENDMENT OE DISKEGAED OF EEE0R8. § 131. 
 
 will succeed," &c. See similar views, stated in great detail, by the 
 same judge, in Dauchy vs. Tyler, 15 How., 399 (403 to 405) ; and ap- 
 proved as authority in Baker vs. Seeley, lY How., 297 (298). See like- 
 wise general statements of principle, in Gates vs. Hudson Eiver Bail- 
 road Company, 6 How., 290 ; Ayrault vs. Ghamlerlain, 33 Barb., 229 
 (238); MeKensie vs. Fa/rrell, 4 Bosw., 192 ; Frey vs. Johnson, 22 How., 
 316 (327); Root vs. Price, 22 How., 372 (374); Vam, ]Sfessv&. Bush, 22 
 How., 481; 14 Abb., 33. 
 
 An amendment made at the trial, for the purpose of conforming the 
 pleading to the facts' proved, was approved by the Court of Appeals in 
 Hall vs. Oould, 3 Kern., 127, there being no pretence of a misleading, 
 and all essential facts having been put in issue. See also Van Duzenr 
 vs. Howe, 21 ]Sr. T., 531 ; New York Ice Company vs. North Western 
 Insurance Company of Oswego, 23 IST. T., 357; 21 How., 296; 12 
 Abb., 414. 
 
 The following cases will evidence the application of the rule under 
 different circumstances : 
 
 A mistake in the proper denomination of the plaintiffs has been 
 allowed to be corrected at the trial. Vid-e Ba/rnes vs. Ferine, 9 
 Barb., 202. 
 
 Amendments have been so allowed, by striking out the names of joint 
 defendants improperly joined, or against whom there was a failure of 
 proof, terms being, however, generally imposed. Bemis vs. Branson, 
 1 C. E., 27 ; Turner vs. HillerUne, 14 How., 231 ; Marks vs. Bard, 1 
 Abb., 63 ; Bonesteel vs. Yomderhilt, 21 Barb., 26. 
 
 But, at the same time, a power of this description should be cautiously 
 exercised, and on proper terms, and only when it is not likely to 
 endanger the rights of any of the defendants. Yide. Fullerton vs. 
 Taylor, 6 How., 259 ; 1 C. E. (N. S.), 411 ; Downing vs. Mann, 3 E. 
 D. Smith, 36 ; 9 How., 204. See also, as to striking out the name of a 
 plaintiff, Travis vs. Tobias, 8 How., 333. 
 
 The omission of the name of the relator was allowed to be supplied 
 in The People vs. Walker, 23 Barb., 304; 2 Abb., 421. 
 
 It is not, however, in the power of the court, to grant an amendment 
 of this description, effecting an entire change of parties. Vide Davis vs. 
 The Mayor of New York, 4 Kern., 506 (527), overruling contrary 
 views as to the power to insert the name of the attorney-general, in 
 addition to that of private parties seeking an injunction in restraint of 
 a public corporation, as entertained by the Superior Court. Vide 3 
 Duer, 119. 
 
 An omission to state the time at which a promissory note was payable 
 was allowed to be supplied by amendment, and the variance disregarded, 
 in Chapman vs. Carolvn, 3 Bosw., 456. 
 
AMENDMENT OB DISKEftABD OF EREOES.— § 131. 629 
 
 An amendment of this nature in partition was sustained, in Gordon 
 vs. Sterling, 13 How., 405. 
 
 In Barth vs. Walthffr, 4 Duer, 228, an amendment was granted, 
 changing the amount of plaintiff's claim to conform to the proof; and 
 in Miller vs. Ga/ding, 12 How., 203, the plaintiff was admitted to 
 insert averments to found a claim for special damages, flowing out of 
 his original claim in replevin, the defendant not being able to show 
 that he was misled to his prejudice. 
 
 An additional charge in assault and battery was allowed to be 
 inserted in Hagins vs. De Hart, 12 How., 322. 
 
 It was held proper, if necessary, to amend a complaint for nuisance, 
 so as to charge such nuisance to be continuing, in Beokwith vs. Gris- 
 wold, 29 Barb., 291. 
 
 In The Clyde and Rose Plank Road Compa/ny vs. Baker, 12 How., 
 371 ; aifirmed 22 Barb., 323, it was held improper for the judge at 
 circuit to refuse an offer of the plaintiffs to produce and annex to the 
 pleadings, in a suit transferred to the Supreme Court, title being in 
 question, the original proceedings before the justice, in answer to an 
 oljjection taken as to his having acquired jurisdiction. 
 
 The general principles above stated as to amendments are admitted 
 collaterally in Bacon vs. Comstoek, 11 How., 197 ; and Dunning vs. 
 Thomas, 11 How., 281. An amendment is the proper course when the 
 defect complained of involves an insufficient statement of facts. Van- 
 derpool vs. Tafbox, 1 L. O., 150. 
 
 In Jackson vs. 8am,ders, 1 C. R., 27, permission was given to amend 
 upon the trial, by substituting for a count, upon two promissory notes, 
 a count upon a special contract, under which such notes had been 
 deposited, as a temporary security for an unfulfilled arrangement. The 
 plaintiff, however, there refused to come to the terms imposed, and was 
 nonsuited accordingly. 
 
 In the Cayuga County Bank vs. Warden, 2 Seld., 19, an amendment, 
 by striking out parts of the declaration, allowed by the judge upon the 
 trial, without costs, was sustained by the Court of Appeals, as author- 
 ized by the Code, and resting in the discretion of the court. 
 
 "Where the complaint, in slander, had omitted to allege the words 
 complained of, to have been spoken " in the presence or hearing of 
 some person," the court, at the trial, allowed the complaint to be 
 amended in that respect, without costs, the defendant not having been 
 thereby misled or injured. Wood vs. Gilchrist, 1 C. E., 117. 
 
 A party will not, however, be allowed to retract, by amendment on 
 the trial, an admission made by him in the previous pleadings, unless 
 upon very clear proof that Jie has been misled or deceived, or has acted 
 tinder evident mistake. Miller vs. Moore, 1 E. D. Smith, 739 ; Wood- 
 
630 AMJElfDMEST OK DISEEGAED OF EEEOES. — § 131. 
 
 iimi vs. Ohamherlin, 17 Barb., 446 (450). Still less will he be allowed 
 to do so, by retracting such admission and substituting a technical 
 defence. JRdbbins vs. Richardson, 2 Bosw., 248. 
 
 The power of the court in this respect extends only to the pleadings, 
 and does not warrant the granting of extraneous relief, such as the entry 
 of an independent order for discontinuance, nunc pro tunc, at the time 
 of trial, in order to overrule a defence, upon which issue had been taken 
 and tried. Bedell vs. Powell, 13 Barb., 183. 
 
 The proper time to apply for an amendment of this description is at 
 the trial itself, when the -whole subject is fresh in the mind of the court. 
 An application, delayed till a subsequent period, will be less favorably 
 entertained, and, if so delayed, then it must be sustained by aflBrmative 
 proof that the defence is true, and can be established. Tramis vs. 
 Barger, 24 Barb., 614. 
 
 Prior to the amendment of 1859, a referee had no powers of this 
 description. Whenever, therefore, an amendment of this nature was 
 necessary during a trial before him, an application to the court was 
 requisite. See an order of this kind granted in Turner vs. Hillerline, 
 14 How., 231. See also, as to its power in this respect, and as to the 
 propriety of adjourning the trial in order to such an application, May- 
 liew vs. lioUnson, 10 How., 162 (16Y). 
 
 Since the amendment of 1859, powers of this respect are given to a 
 referee. His powers are, however, strictly restricted to amendments 
 of immaterial variances or for conformity, at the actual trial. They do 
 not extend to the making of such as are properly entertainable by the 
 court on motion, or to those involving a change of the cause of action 
 or defence. Union Bank vs. Mott, 18 How., 506 ; 10 Abb., 3T2. An 
 amendment of this latter description must be applied for by means of a 
 substantive motion to the court, when terms may be iniposed, for the 
 continuance of the proceedings before the referee, or otherwise, as may 
 be just. Union Bank vs. Mott, 19 How., 114 ; 10 Abb., 372 (376) ; 
 Woodruff vs. Husson, 32 Barb., 557. See, however, contrary view 
 taken, and his general powers of amendment asserted, in Van JVess vs. 
 Bush, 22 How., 481 ; 14 Abb., 33. 
 
 Where, on the hearing before- a referee, full justice has not been done 
 between the parties, as regards the admissibility of evidence reserved 
 for consideration, and the line of defence requires alteration, the proper 
 time for a motion for that p^irpose will be immediately upon the com- 
 ing of the report. If delayed till after judgment, the general term 
 cannot entertain the application. Browne vs. Colie, 1 E. D. Smith, 265. 
 
 A motion for leave to introduce supplemental matter cannot properly 
 be made at the trial, but must be brought forward iu the usaal manner 
 on notice. Gamer vs. Hannah, 6 Duer, 262 (275). 
 
AMENDMENT OK DI8EEGAED OF EEEOES. — § 131. 631 
 
 Where an amendment proposed tends substantially to change the 
 cause of action or defence, it will be equally improper to grant it dur- 
 ing as after the trial, under which circumstances it is expressly pro- 
 hibited by section 1T3. The applicant should be put to his motion, in 
 order to the imposition of proper terms. Vide Robhins vs. Richard- 
 son, 2 Bosw., 248 (25T) ; Egert vs. Wicker, 10 How., 193 ; GatUn vs. 
 Hcunsen, 1 Duer, 309 ; Orosvenor vs. The Atlantic Fi/re Insurance Com- 
 pany of Broohlyn, 1 Bosw., 469 (479) ; New York Ma/rUed Iron Worhs 
 vs. Smith, 4 Duer, 362 (377) ; Fagen vs. Davison, 2 Duer, 153 ; Hunt 
 vs. Hudson River Fire Insurance Company, 2 Duer, 481 ; Watson vs. 
 Bailey, 2 Duer, 509. See also Beardsley vs. Stover, 7 How., 294 ; 
 Marquat vs. Marquat, 7 How., 417 ; Coam, vs. Osgood, 15 Barb., 583 ; 
 Catlin vs. Hansen, 1 Duer, 309. J[or can such an amendment be 
 granted, for the purpose of making the complaint conform to the vei-- 
 dict of a jury, for larger damages than those claimed by the plaintiff, 
 unless upon the condition of payment of costs, and granting a new trial. 
 Corning vs. Coming, 2 Seld., 97 ; 1 C. E. (]!f. S.), 351. Liberty was 
 given, however, to the plaintiff in that case, to remit the excess of 
 damages, in which case the verdict was to stand. 
 
 The granting or refusing of an amendment of this description rests, 
 as a general rule, in the discretion of the court. Gould vs. Rumsey, 
 21 Hov.'., 97 ; Kissami vs. Roberts, 6 Bosw., 154. And in Smalley vs. 
 Doughty, 6 Bosw., 66, leave was refused to amend at the trial, by set- 
 ting up the defence of usury, then raised for the first time, and not 
 previously pleaded. So also an amendment may be denied, for the pur- 
 pose of setting up matter known to the plaintiff from the outset, but 
 not pleaded in due time. Bulen vs. Burdell, 11 Abb., 381." 
 
 A refusal to allow an amendment, if based on the ground of power, 
 will, however, be error, and reviewable on appeal. Russell vs. Corwi, 
 20 K Y., 81. 
 
 "Where, by amendment during the trial, the court allows the plaintiff 
 to insert a further and separate cause of action, the defendant has a 
 right to claim that the amendments be served upon him in the usual 
 manner, and that his legal right to answer or demur to them as in other 
 cases, be secured to him, and he should be allowed, at least, a trial fee 
 and his disbursements. Union BamJc vs. Mott, 19 How., 267 ; modify- 
 ing order in same ease, 19 How., 114; 10 Abb., 376. 
 
 And, where one party is allowed to amend, liberty to make counter 
 amendments, if necessary, should be secured to the other. See Stod- 
 da/rd vs. Rotton, 6 Bosw., 378. 
 
 If an amendment to the answer be allowed at the trial, the plaintiff 
 cannot raise the objection of insufficiency, by demurrer. He should 
 raise the point by motion at the time, or, if surprised, apply for a post- 
 
632 AMENDMENT OK DISEEGAED OF EEEOES. § 131. 
 
 ponement, and for leave to reply, if necessary. Therasson vs. Peterson, 
 22 How., 98. 
 
 Amendments at the trial can, for the most part, be made or consid- 
 ered as having been made on the spot. In some cases, however, it may be 
 necessary to apply for a postponement for that purpose, and, even when 
 a defect has been disregarded, it may sometimes be prudent to make 
 the proper amendment subsequently, on special application, with a view 
 to ulterior proceedings. Vide Depeyster vs. WJieeler, 1 Sandf , 719 ; 1 
 C. E., 93. 
 
 (5.) Amendments aetek Teial. 
 
 Amendments of the above description have also not unfrequently 
 been granted at this stage of the cause. 
 
 •In Snell vs. 8nell, 3 Abb., 426, where some of the counts in the com- 
 plaint were defective, but others good, an amendment, applying the ver- 
 dict to the latter, was held to be proper. In Fry vs. Bennett, 9 Abb., 
 45, one of several causes of action was, in like manner, permitted to be 
 abandoned, and an order to that effect inserted in the judgment-roll, on 
 terms. 
 
 In Snvith vs. Floyd, 18 Barb., 522, it was considered proper to allow 
 the plaintiff leave to file a reply, necessary to the proper joinder of an 
 issue, to which the evidence given had been applicable, " mmcpro tunc." 
 
 Where the whole of the case was before the court, and every item in 
 an account had been substantially contested, an amendment of the com- 
 plaint was, allowed, so as to cover an amount found by the referee. 
 Dcuuis vs. Smith, 14 How., 187. See, however, jBowmati vs. Farle, 
 infra, to tte contrary effect. 
 
 As a general rule, however, and it may be said in all cases where 
 they are of an unliqxiidated nature, the amount of damages claimed, 
 cannot be altered after the trial, by amendment to conform. It can 
 only be granted on condition of payment of costs, and granting a new 
 trial ; and if the order do not impose such terms, it should be vacated. 
 Corning vs. Corning, 2 Seld., 97 ; afiSrming same case, 1 C. E. (N. S.), 
 351. In Bowmam, vs. Earle, 3 Duer, 691, the same rule was applied to 
 an order for amendment, increasing the amount of the plaintiff 's claim, 
 above that stated in his complaint and bill of particulars. 
 
 In Lettman vs. Ritz, 3 Sandf., 734, relief of this nature was granted, 
 and the plaintiff was allowed to amend his complaint after verdict, the 
 defect being, that the words complained of, in slander, had not been 
 averred in the original language. This leave was, however, only given 
 on terms, that he should reduce the amount of his verdict to a reason- 
 able sum. 
 
 An order allowing an amendment, after trial by a referee, by adding 
 
AMENDMENT OR DISEE&AED OF EEE0E8. — § 131. 633 
 
 a new cause of action, should only be granted on condition of the plain- 
 tiff's abandoning the report and order of reference, with costs to abide 
 the event, and serving an amended complaint, with its usual incidents. 
 AUaben vs. Wakeman, 10 Abb., 162. See also, as to the proper terms 
 in a similar case. Union BanTc vs. Mott, 19 How., 267 ; 11 Abb., 42. 
 
 An amendment to conform the pleadings to the proofs, is only proper 
 for the purpose of sustaining the judgment which has been given, and 
 not for that of impeaching or impairing its validity. Englis vs. Fur- 
 niss, 3 Abb., 82 ; Bidl vs. Birch, 6 Bosw., 674. If ever granted, it 
 should only be conditionally, and on strict terms. Gasper vs. Adams, 
 24 Barb., 287. 
 
 Where it would clearly have been the duty of the court below to have 
 ordered an amendment to conform, or to correct a mere formality, a full 
 trial having been had ; the general term have not unfrequently, on ap- 
 peal, made such an order, or treated it as having been made. Vide 
 Sluyter vs. Smith, 2 Bosw., 673 ; Bowdoin vs. Coleman, 6 Duer, 182; 
 3 Abb., 431 ; Union India Rubber Convpany vs. Tomlinson, 1 E. D. 
 Smith, 364 ; Cushingham, vs. Phillips, 1 E. D. Smith, 416 ; Olarh vs. 
 Dales, 20 Barb., 42 (67) ; Harrower vs. Heath, 19 Barb., 331 ; Bate vs. 
 Crraham, 1 Kern., 237. See also Catlin vs. Gunter, 1 Kern., 368 (375) ; 
 10 How., 315, and Smith vs. Floyd, 18 Barb., 522. 
 
 In Gould vs. Glass, however, 19 Barb., 179 (186), it was doubted 
 whether such an amendment was admissible, in a case originally com ■ 
 menced in a justice's court. See, liowever, a more liberal view in The 
 Clyde and Rose Plank Road Company vs. Baker, 12 How., 371 ; af- 
 firmed, 22 Barb., 323. 
 
 The powers of the court of granting amendments to conform, are, 
 however, strictly limited by the terms of section 173. They are only 
 admissible, when the amendment proposed does not change substan- 
 tially the claim or defence; when it does, an amendment cannot be 
 granted in this form, after the trial, nor will it be proper during the 
 trial itself. Rohiins vs. Richardson, 2 Bosw., 248 (257); Growenor vs. 
 The Atlantic Fi/re Insurance Company of Brooklyn, 1 Bosw., 469 
 (479) ; And/rews vs. Bond:, 16 Barb., 633 ; Engliss vs. Furms, 3 Abb., 
 82 ; Dag^ierre vs. Orser, 3 Abb., 86 ; Brown vs. Colie, 1 E. D. Smith, 
 265 ; Ketchum vs. Zerega, 1 E. D. Smith, 553 (562) ; ISfew York Marbled 
 Iron Works vs. Smith, 4 Duer, 362 (377) ; Egert vs. Wicker, 10 How., 
 193 ; Fagen vs. Damson, 2 Duer, 153. 
 
 But after, or in connection with the granting of a new trial, this re- 
 striction no longer applies, and it is then in the power of the court to 
 grant any amendment, which may tend to the promotion of substantial 
 justice between the parties. Troy and Boston Railroad Company vs. 
 TMits, 11 How., 168 ; Depew vs. Eeyser, 3 Duer, 335 (341). Of course 
 
634 AMENDMENT OE DiaEEaABD OF EKEORS. — § 132. 
 
 any proper terms may, and generally should, be imposed on such an 
 occasion. Vide MoGrane vs. Mayor of New York, 19 How., 144. 
 
 Undile delay, amounting to laolies, or the fact that to grant the ap- 
 plication will not be in furtherance of justice, will be a bar to any ma 
 tion of the above description. Egert vs. Wicker, 10 How., 193 ; Mal- 
 colm vs. Baker, 8 How., ' 301 ; And/rews vs. Bond, 16 Barb., 633 ; 
 Ketohwm vs. ' Zerega, 1 E. D. Smith, 553 (662) ; Ford vs. David, 1 
 Bosw., 569 (596) ; Saltus vs. Genin, 3 Bosw., 639 ; IT How., 390 ; 8 
 Abb., 254, affirmed, 10 Abb., 478. 
 
 The above powers of amendment only reach the correction of or- 
 dinary defects. They do not extend to the curing of a failure to acquire 
 jurisdiction. An order to allow a complaint to be filed after judgment, 
 nunc pro tunc, in order to sustain service by publication, was accord- 
 ingly decided to be invalid, in Kendall vs. Washburn, 14 How., 380. 
 Nor do those poWers extend to the amendment of a substantial defect, 
 in the entry of judgment upon confession. Allen vs. Smillie, 12 How., 
 156 ; 1 Abb., 354. 
 
 "Where one party has been allowed to amend, the court will be dis- 
 posed to grant the same privilege to the other, though otherwise.it 
 might not have been permitted. Hoxie vs. Cushman, 7 L. O., 149. 
 
 Unless in those eases where the party has shown a clear case of un- 
 questionable right, the decision of a judge allowing or refusing an 
 "amendment, either upon or after the trial, is a matter that rests entirely 
 in discretion, and will not be reviewed on exception or appeal. Both 
 vs. Sahloss, 6 Barb., 308 ; Brown vs. McOune, 5 Sandf., 224; Phincle 
 vs. Yaughcm, 12 Barb., 215 ; Bobbins vs. Biohardson, 2 Bosw., 248 
 (256); Ford Y?,. David, 1 Bosw., 569' (596). Woodbv/rn ys. Chamber- 
 Un, 17 Barb., 446 (450) ; St. John vs. Northrup, 23 Barb., 25 (29) ; 
 JSunt. vs. Hudson Biver Iiisurance Company, 2 Duer, 481 (489) ; Wat- 
 son vs. Bailey, 2 Duer, 509 ; JSTew York Marbled Iron Works vs. 
 Smith, 4 Duer, 362 ; Garner vs. Hannah, 6 Duer, 262 (275). 
 
 Although however, as a general rule, such allowance is discretionary, 
 the refusal to exercise that discretion, on the ground of want of power, 
 where that power exists, is error in law, and. may be reviewed as such. 
 Bussell vs. Conn, 20 IST. T., 81. So also the undue exercise of the 
 power may be reviewed. Union Bank vs. Mott, 19 How., 267. 
 
 § 132. Variances, when amd when not Disrega/rded. 
 
 It remains, before quitting the subject of amendment of pleadings, 
 to notice those cases where a defect, which in strictness might necessi- 
 tate an amendment, will nevertheless be disregarded on the trial ; and 
 also those, on the other hand, where such a defect, allowed to remain un- 
 
AMENDMENT OE DISEEaAED OP EEEOES. — § 132. 635 
 
 corrected until that juncture, will be held fatal to the ulterior prosecu- 
 tion of the action. 
 
 The former class fall especially under section 176, providing that the 
 court shall, in every stage of an action, disregard any error or defect 
 in the pleadings or proceedings, which shall not affect the substantial 
 rights of the adverse party. 
 
 The latter is expressly provided for by section 171, providing that 
 where the allegation of the cause of action or ground of defence to 
 which the proof is directed, is unproved, not in some particular or par- 
 ticulars only, but in its entire scope and meaning, it shall not be deemed 
 a case of variance within the two previous sections, but of failure of 
 proof 
 
 {a.) DiSEEGABD OF YaeIAKCE. 
 
 Many of the questions and decisions bearing upon the present subdi- 
 vision have, in effect, been anticipated in the last section of this work. 
 The same considerations are applicable to both, and the difference in 
 their application is a question rather of degree than of principle. 
 
 Neither course is applicable, where the variance is material, the test 
 of materiality being that imposed by section 1 69. Where the party 
 cannot bring himself within that test, and show that he has been actu- 
 ally misled to his prejudice upon the merits, one or the other will be 
 applied. Where the objection is so ultra technical as to trench upon 
 the frivolous, disregard will be the proper, where it has somewhat more 
 of substance in it, amendment will constitute the more usual course ; 
 but the precise limits of distinction rest entirely in the discretion ol" 
 the court. 
 
 In F(XB vs. Hunt, 8 How., 12, it is laid down to be the correct prac- 
 tice on the circuit, to lay out of the case all irrelevant allegations, or 
 immaterial issues, and to hold the parties to trial, on such as are left. 
 
 In De Peyster vs. Wheeler, 1 Sandf , 719; 1 C. E., 93, it was held 
 that variances, not affecting the merits, which do not surprise the ad- 
 verse party, and on which he ought not, in good faith, to have relied, 
 will be disregarded on arguments at bar, without directing any amejid- 
 ment. If, however, the prevailing party deem an amendment prudent, 
 he may apply for leave, by motion, after the argument, when the court 
 will allow it, on such terms as may be just. It was further held, that, 
 upon the trial of the cause, the court may, in their discretion, either 
 order amendments in like manner, or may disregard the variance. 
 
 Where, however, the defect is one involving an insufficient state- 
 ment of facts, the court will not disregard the objection, but will direct 
 an amendment. Yanderpoel vs. Tarbox, 7 L. O., 150, 
 
 This provision of the Code is in no manner applicable to objections 
 
636 AMENDMENT OB DISREGARD OF EBKOES. § 132. 
 
 taken by way of demurrer, but only to those cases in which issue has 
 been joined on the merits. Vide Yanderiburgh vs. Van Valkenburgh, 
 8 Barb., 217. In considering the latter, less strictness is required, than 
 where the objection has been taken at the outset, and an opportunity 
 allowed to amend. Vide St. John vs. Worthrup, 23 Barb., 25 (30). 
 See &\&oWMt6 vs. Spencer, 4 Kern., 247. And the same rule holds 
 good with respect to allegations deficient in certainty, the proper rem- 
 edy as to which is a motion on that ground. Seely vs. Engell, 3 
 Kern., 542. 
 
 Before the supplemental measure of 1849, this section was held in- 
 applicable to proceedings commenced before the Code. Vide Diefen- 
 dorf vs. Elwood, 3 How., 285 ; 1 0. E., 42 ; Denniston vs. Mudge, 4 
 Barb., 243. Since that measure, however, and a fortiori since the 
 amendment, in 1851, of section 459 of the Code, this is no longer the 
 case, and these provisions are clearly retrospective. Vandenburgh vs. 
 Van Valkenburgh, supra • Milbanh vs Dennistoun, 1 Bosw., 246 (280) ; 
 Pear soil vs. Fraser, 14 Barb., 564. 
 
 The following decisions will show in what manner the rule has been 
 ordinarily applied in practice. 
 
 In Chapman vs. Carolin, 3 Bosw., 456, an omission to state the time 
 when a note was payable was allowed to be supplied, and the following 
 general principles stated : 
 
 " When there is a variance between some of the allegations of a com- 
 plaint only, and the proof, and nothing more appears, the court has no 
 power to order a nonsuit, on the mere ground that such a variance, 
 whatever it may be, is material. The only test of its materiality, is 
 proof to be furnished by the defendant, that the variance has actually 
 misled him to his prejudice, in maintaining his defence upon the merits. 
 Where such proof is not furnished, the variance must be disregarded, 
 and the pleadings may be amended to conform to the facts proved." 
 See to the same effect Cotheal vs. Tallmadge, 1 E. D. Smith, 573 ; Mill- 
 lanhys, Dennistown, 1 Bosw., 246 (280); Barrich^^. Austin, 21 Barb., 
 241 (243), and others of the decisions below cited. In one of them, 
 Catlin vs. Ounter, 1 Kern., 368 (374) ; 10 How., 315, after referring to 
 the sections of the Code in terms, the court continues : " These provi- 
 sions introduce a principle unknown to the former practice, namely, 
 that of determining this class of questions, not by the incoherence of 
 the two statements upon their face, and hence inferring their efiiect 
 upon the state of preparation of the party, but by proof aliv/nde, as to 
 whether the party was misled to his prejudice by the incorrect state- 
 ment.. In this case the plaintiff did not offer any proof of the character 
 suggested, nor did he even allege that he had been misled He put 
 himself upon the old rule, &c." " If, then, the discrepancy was a van- 
 
AMENDirENT OR BKEEaAED OF EEEORS. — § 132. 637 
 
 ance, as defined by these provisions, it should have been regarded as 
 immaterial." * 
 
 In this latter case, tne variance complained of was a difference be- 
 tween the actual proof, and the allegations of an usurious agreement set 
 up in the answer. A new trial was granted, on the ground that it 
 should have been disregarded. See also Dxid vs. Spence, 1 Abb., 237. 
 Gatlin vs. Gunter, reverses the same case, 1 Duer, 253 ; 11 L. O., 201 
 (see also Fay vs Grimsteed, 10 Barb., 321), in which the old strictness 
 of rule was held with respect to the defence of usury, and an amend- 
 ment denied. 
 
 In Pea/rsoU vs. Fraser, 14 Barb., 564, the court considered it proper 
 to disregard, even upon demurrer, defects in form, in the statement lay- 
 ing ground for enforcement of the defendant's responsibility, under an 
 agreement there stated. 
 
 In Ha/rmony vs. Binghmn, 1 Duer, 209 ; affirmed, 2 Kern., 99, similar 
 defects in mere form, were held to have been duly disregarded by the 
 referee, as variances by which the defendant could not have been misled. 
 
 See also similar disregard of purely technical errors inWooster vs. 
 Chamlerlin, 28 Barb., 602; White yb, Spencer, ^'K.e.ym., 247; Seeley vs. 
 Fngell, 3 Kern., 642; Gotheal vs. Talmadge, 1 E. D. Smith, 573; 
 Beach vs. Tooher, 10 How., 297 ; Wright vs. Hooker, 6 Seld., 51 ; Gor- 
 nell vs. Masten, 35 Barb., 157. 
 
 A variance between allegation of delivery of goods to defendant, and 
 proof of delivery to a third person to defendant's credit, was, after a 
 full trial, disregarded on appeal, in Briggs vs. Evans, 1 E. D. Smith, 
 192. See also Rogers vs. Ye/rona, 1 Bosw., 417. 
 
 So also was a variance, between a pleading alleging a sale of stock 
 deposited, on a specific day, and non-accounting for the proceeds, and 
 proof that such specific stock had been twice subsequently sold, and 
 reinvested, but the proceeds of such last sale ngt accounted for. Hall 
 vs. Morrison, 3 Bosw., 520. 
 
 So as to variance between an allegation of money loaned, and proof 
 of money paid to the use of the defendant. Parsons vs. Suydam, 3 E. 
 D. Smith, 276. 
 
 Or an averment of notice of non-payment of a check, and proof of 
 facts excusing notice. Pwrchase vs. Mattison, 6 Duer, 587. 
 
 Or an averment of chattels being in the possession of the mortgagor 
 on a specific date, and proof of possession being changed by deliveries 
 to the mortgagee on that same day, there being a reasonable interpre- 
 tation i. e., that of the possession of the mortgagor being subordinate, 
 capable of reconciling the supposed discrepancy, and which ought, 
 accordingly, to have beea adopted at the trial. Willis vs. Orser, 6 
 Duer, 322. 
 
638 AMENDMENT OR DISEEGABD OF EEROES. — § 132. 
 
 I 
 Or a general averment, seeking to charge defendants as common 
 carriers, and proof at the trial, of a special liability under a specific un- 
 dertaking. Richards vs. Westcott, 1 Bosw., 589. 
 
 So, in like manner, a variance vs^as disregarded between an averment 
 that goods were the property of the plaintiif, and proof of his having a 
 special property in them, by storage in his name, and at his risk, as 
 consignee. Oorum vs. Carey, 1 Abb., 285. 
 
 So between an allegation of sole, and proof of joint liability, where 
 
 no plea in abatement had been put in. Carter \b. Rope, 10 Barb., 180. 
 
 Or between an allegation of the removal of a force pump, mentioned 
 
 in an application for insurance, and proof tendered of its non-existence. 
 
 McGomher vs. The Granite Ircsurance Company, 15 If. Y"., 495. 
 
 An objection to proof of the docketing of a judgment, as not com- 
 prised within the terms of an allegation that it had been recovered, 
 and was a lien upon property in question, was held to have been prop- 
 erly overruled in Cady^s. Allen, 22 Barb., 388. 
 
 A trifling misdescription of real property was disregarded in eject- 
 ment, in St. John vs. Northrup, 23 Barb., 25 ; Russell vs. Conn, 20 
 N. Y., 81. So also, in a case in which the question was collateral. 
 Underhill vs. The New York and Harlem Railroad Company, 21 Barb., 
 489 (497). 
 
 So as to misdescription of a promissory note, alleged to be payable 
 three months, and proved, on trial, as payable four months after date. 
 Trowbridge vs. Didier, 4 Duer, 448. See likewise Chapman vs. Caro- 
 lin, 3 Bosw., 456, before cited. 
 
 So, likewise, a variance between the pleading and the proof, as to the 
 place at which goods were delivered to common carriers, or an omis- 
 sion to state, on the face of the former, restrictions forming part of the 
 actual contract between the parties. Newstadt vs. Adams, 5 Duer, 43. 
 In an action for commissions, variances between an allegation of sale 
 for a specific amount, and proof that that amount was larger, and also 
 between an allegation of a special agreement for compensation, and 
 proof of a quantwn meruit, the special agreement not being proved, were, 
 in like manner, disregarded in Morgan vs. Mason, 4 E. D. Smith, 636. 
 A variance between the contract as alleged, and as proved, was, in 
 like manner, disregarded in The Union India Rubber Company vs. 
 Tomlinson, 1 E. D. Smith, 364. So, likewise, as to an omission to 
 allege part of a contract, and proof of it in the entire. Cobb vs. West, 4 
 Duer 38. 
 
 Proof of an agreement to insiire, was held admissible under an alle- 
 gation of actual insurance, in Mrst Baptist Church in Brooklyn vs. 
 BrooMyn Fire Insurance Company, 18 Barb., 69 (79). 
 A variance between an allegation of an absolute promise, and proof 
 
AMENDMENT OR DISEEGAED OF EEB0E8. § 132. 639 
 
 of a conditional one fulfilled, was, in like manner, held as one that 
 should be disregarded, in Ha/rt vs. Hudson, 6 Duer, 294. 
 
 A variance between the allegation and proof of the date of giving 
 notice to an insurance company, was held immaterial in Hovey vs. The 
 American Mutual InsuroMce Company, 2 Duer, 554. See likewise 
 Belknap vs. Seeley, 2 Duer, .570 (582) ; affirmed, 4 Kern., 143. 
 
 A variance, in some respects, between the allegation and the proof 
 of fraudulent representations, was held to have been properly disregarded 
 in Zahrishie vs. Sm,ith, 3 Kern., 322. See generally, as to a trifling 
 variance, between representations as alleged, and as proved, Hamhins 
 vs. Appleby, 2 Sandf., 421. 
 
 A misnomer in the pleading may, in like manner, be held immate- 
 rial. See, as to a case of a suit by an individual banker, in a name 
 importing a corporate character, Ba/nk of Ha/vana vs. Magee, 20 N. Y., 
 355. And as to the omission of one of the Christian names of a defend- 
 ant, Wolcott vs. Meech, 22 Barb., 321. See however Farnham vs. 
 Hildreth, 32 Barb., 277, holding that an essential misnomer, by state- 
 ment of a wholly erroneous Christian name, is fatal, and that, where 
 the defendant has not appeared, the objection may be taken at any 
 time. 
 
 A variance as to the time of uttering a slander, was held wholly 
 immaterial in Potter vs. Thompson, 22 Barb., 87. 
 
 A mere defect in the setting up of a sufficient defence was held to 
 be immaterial in Bicha/rds vs. Allen, 3 E. D. Smith, 399 (408). See 
 also dictum in Kelsey vs. Western, 2 Comst., 500 (607), there referred 
 to, and cited below, in the next subdivision of this section. 
 
 Although allegations in the complaint may be defective, yet, if the 
 deficiency be supplied by the pleadings or proofs of the defendant, the 
 obi'ection will be immaterial. Bate vs. Oraham, 1 Kern., 237 ; Bel- 
 knap vs. Sealey, 2 Duer, 570 (579) ; affirmed, 4 Kern., 143. 
 
 A defect of statement of essential facts in the complaint was held no 
 o-round for an appeal, where, after denial of a motion for a nonsuit, 
 those facts were actually proved upon the trial. Lovmsbury vs. Purdy, 
 18 K Y., 515. 
 
 Proof of a contract made by two only, instead of by three defend- 
 ants as alleged, was admitted, and the third defendant discharged, in 
 Bonesteel vs. VanderMlt, 21 Barb., 26. 
 
 That the defendant applying is not afiected by it, is a conclusive 
 answer to an application, on the ground of variance. Gordon vs. Ster- 
 ling, 13 How., 405 (408). 
 
 A want of statement of the venue in the complaint, was held to be 
 disregardable on motion, in Davison vs. Powell, 13 How., 287. 
 In Ma/rqyMt vs. Ma/rquat, 2 Kern., 336, a failure to prove the case 
 
640 AMENDMENT OE DISEEQAED OF EEEOES. — § 132. 
 
 as alleged, against the wife, joined as a party with her husband, was 
 held no har to a recovery being awarded, against the latter alone. By 
 this decision, the stricter view taken by the majority of the court below, 
 7 How., 417, is overruled, and the decision reversed. See also Brwm- 
 sMll vs. Jcmies, 1 Kern., 294. 
 
 It was held in DiMee vs. Mason, 1 0. E., 37 ; 6 L. O., 363, that these 
 provisions apply to pleadings only, and not to process, and that a mis- 
 take in the latter cannot be disregarded at the hearing, though the 
 court may have power to direct an amendment, on motion. 
 
 See generally, as to disregard of defects of this nature on appeal, 
 Bennett vs. Judson, 21 IS. T., 238 ; Lounsbury vs. Purdy, 18 N. Y., 
 515, above cited; Pratt vs. Hudson River Railroad Company, 21 IST. Y., 
 305 ; Olarh vs. Dales, 20 Barb., 42 ; Cody vs. Allen, 22 Barb., 308. 
 
 See also, as to disregard of variance between the plaintiff's proof 
 and his bill of particulars. Seaman vs. Low, 4 Bosw., 337. 
 
 (b.) Yaeianoe, when Fatal. 
 
 It remains to consider those cases in which, under section 171, a 
 variance. between the proof and the allegation will not be disregarded. 
 
 The test, in these cases, is that imposed by the section itself. When- 
 ever " the allegation of the cause of action or defence, to which the 
 proof is directed, is unproved, not in some particular or particulars only, 
 but in its entire scope and meaning, it shall not be deemed a case of 
 variance, within the two last sections, but a failure of proof." 
 
 The rule is thus broadly stated by Jewett, J., in Kelsey vs. Wester7i, 
 2 Comst., 500 (507) : " "When the pleading sets up a particular matter 
 as the ground of action or of defence, and fails to present it as proved in 
 some particular, so that there is strictly a variance between the plead- 
 ing and the evidence, sections 169, 170, 171 of the Code, apply arid 
 provide for the ease. But when, as in this case, there is a total want 
 of any allegation in the pleading, of the subject-matter as a ground of 
 action or of defence, the want of such allegation is not cured by the 
 Code, so as to allow of a decree to be founded upon the proof without 
 allegation." 
 
 Being of a strictly technical nature, this rule will not be indiscrimin- 
 ately or severely enforced, but only when the defects complained of 
 are in themselves of an incurable nature. Yide St. John vs. Norihrv/p, 
 23 Barb., 25 (30). 
 
 An objection of this, or the like description, will, therefore, be 
 waived, unless taken at the trial. It will then be cured by verdict or 
 judgment, and cannot be raised, under a general exception to the deci- 
 sion of the court. Belknap vs. Seeley, 4 Kern., 143 ; Lounslury vs. 
 Pwdy, 18 K Y., 515 ; Phillips vs. Gorham, 17 N. Y., 270 (275) ; 
 
AMENDMENT OE DISEEGAED OE EEEOES. — § 132. 641 
 
 Clarh vs. Bales, 20 Barb., 42 (65) ; Elton vs. Markham, 20 Barb., 343 
 (348) ; Hunter vs. Hudson River Iron Machine Company, 20 Barb., 
 493 (502) ; Brown vs. Ha/rmon, 21 Barb., 508 ; Bolsen vs. Arnold, 10 
 How., 528 (530). 
 
 A fortiori, will it be waived by an express construction agreed to 
 be giv^n to the pleadings, and a voluntary submission of the question 
 on that occasion. Ogden vs. Coddvngton, 2 E. D. Smith, 317. 
 
 And, when an amendment of the pleading, by which the variance 
 will be cured, is admissible, it will be error in the judge not to grant 
 it. Russell vs. Gonn, 20 N. Y., 81. 
 
 In the following cases, however, the rule has been strictly applied : 
 "Where a promissory note sued upon, appeared by the evidence to 
 have been altered, by the addition of the signature of the payee as 
 maker. Chappell vs. Spencer, 23 Barb., 584. 
 
 An omission to require'the joinder of the purchaser of lands, sought 
 to be reached by a creditor's bill, and the taking of a legal judgment for 
 damages, in a suit of that nature, were both held fatal errors, and a new 
 trial granted in Sage vs. Mosher, 28 Barb., 28T. 
 
 Although the variance be of an amendable nature, yet, if the parties 
 mispleading fail to ask for an amendment upon the trial, and allow the 
 case to go up on appeal, a judgment that they have failed to substantiate 
 their case will be sustained, (raster vs. -<l(?ams, 28 Barb., 441. See also, 
 as to continued laches of this description, Egert vs. WicJier, 10 How., 193. 
 An omission to aver a special statutory liability on the part of a rail- 
 road company, was held to debar a plaintiff from resorting to that 
 ground of recovery, on the failure of his case against them, on their gen- 
 eral liability as common carriers. Hempstead vs. The New YorTc Cen- 
 tral Railroad Company, 28 Barb., 485. 
 
 Where an agreement to submit to two arbitrators, and their umpire, 
 was alleged, and the proof showed an agreement to submit to three 
 arbitrators, the variance was held fatal, and that the complaint should 
 have been dismissed. Lyon vs. Blossom, 4 Duer, 318. 
 
 Where the plaintiff sued the defendant in tort for the conversion of 
 a draft, or of its proceeds, and the evidence showed a lawful receipt by 
 the latter, it was held that the variance was fatal, and that a judgment 
 ex contractu for the sum received could not be granted. Walter vs. 
 Bennett, 16 JST. Y.', 250, 
 
 Where the plaintiff sued for a wrongful conversion, and the proof 
 showed a mere breach of duty on the part of the defendant, the vari- 
 ance was held to be fatal. Moore vs. McKiMin, 33 Barb., 246. 
 
 Where all the material facts alleged by the plaintiff as the ground of 
 his claim were denied and disproved, he was held not entitled to any 
 judgment, though facts appeared upon the trial, constituting another, 
 Vol. I.-41 
 
642 AMENDMENT OE DISEEaARD OF EEEOKS. — § 132, 
 
 but wholly inconsistent cause of action. Salters vs. Genin, 3 Bosw., 
 250 ; 7 Abb., 193; See also Stearns vs. Ta^in, 5 Duer, 294 (303) ; 
 and Egert vs. Wicker, 10 How., 193. 
 
 Where, too, the defence relied on at the trial, differed in its entire 
 scope and meaning from that set up in the answer, the objection was 
 held to be fatal, and that the court had no power to amend or _ disre- 
 gard. Texier vs. Gouim,, 5 Duer, 389 ; Catlin vs. Hansen, 1 Duer, 309. 
 See also Mobbins vs. Miohardson, 2 Bosw., 248 (257). 
 
 Where the complaint averred a joint insurance and joint loss, and 
 the proof showed a joint loss, but a several insurance, by one joint owner 
 only, the variance was held to be fatal. Burgher vs. Columbian Insur- 
 ance Company of Philadelphia, 17 Barb., 274. 
 
 Where accord and satisfaction were pleaded, but the proof failed to 
 show the latter, it was held that, on the merits, the plaintiff could not 
 recover. Dolsen vs. Arnold, 10 How., 528. The immediate question 
 of variance was, however, not raised, the parties having tried and 
 argued the case upon the merits (p. 530). 
 
 Where the complaint averred a sale and delivery to the defendant, 
 but the proof showed a purchase by and a delivery to a third person for 
 his own use, without any proof of a ratification by the defendant, the 
 variance was held fatal. Smith vs. Leland, 2 Duer, 497. But not so, 
 where the purchase was made by the defendant himself, though the 
 goods were delivered to another. JRogers vs. Verona, 1 Bosw., 417. 
 
 In Coan vs. Osgood, 15 Barb., 583, where the defendants set up title 
 in a third person, and license from him, as a justification in trespass, it 
 was held that they could not change their ground at the trial, and show 
 title in one of themselves. 
 
 In Mann vs. Morewood, 5 Sandf , 557, evidence of the alleged satis- 
 faction of a debt by the delivery of stock, was held not to be receivable, 
 in support of a simple allegation of over-payment, without specifying 
 any particulars, and the complaint was dismissed accordingly. 
 
 In Whittaher vs. Merrill, 30 Barb., 389, where assignees sued for a 
 conversion of property, subsequent to their assignment, proof of a pre- 
 vious conversion, under an attachment against the assignor, was held to 
 be inadmissible, and the variance to be fatal, though a right of action 
 for such conversion might pass under the assignment. 
 
 The doctrine held in Diefendorf vs. Gage, 7 Barb., 18, that, under 
 an answer averring that property in" question in the cause " was very 
 poor, and of little value," proof could not be received, that such prop- 
 erty was " worth nothing and of no value," seems overstrained. 
 
 An essential misnomer was held to be a fatal defect, and the objec- 
 tion one that could be raised at any time, in Farnham vs. Hildreth 
 32 Barb., 277, above cited. 
 
COREEOTIOir ON ADVERSE MOTION. § 133. 643 
 
 CHAPTEE IV. 
 
 COERECTION ON ADVERSE MOTION. 
 
 § 133. General Observations. 
 
 To complete the consideration of the subject of pleadings, in a gen- 
 eral as distinguished from a speciiic and individual point of view, it 
 remains to advert, in the last place, to those remedies, by which the 
 adverse party may obtain and enforce their correction, either by the 
 excision of superfluous, or the more definite insertion of deficient 
 statements. 
 
 Both are provided for by section 160. 
 The former as follows : 
 
 " If u-relevant or redundant matter be inserted in a pleading, it may 
 be stricken out, on motion of any person aggrieved thereby." 
 The latter, in this manner : 
 
 " And when the allegations in a pleading are so indefinite or uncer- 
 tain that the precise nature of the charge or defence is not apparent, 
 the court may require the pleading to be made definite and certain by 
 amendment." 
 
 These remedies affect, as will be seen, all pleadings indiscriminately, 
 and the present is therefore the proper period for their treatment. The 
 closely analogous proceedings by which sham and irrelevant answers and 
 defences may be stricken out, on motion, or judgment moved for on a 
 frivolous demurrer, answer, or reply i^ide §§ 152-247) apply to respon- 
 sive pleading only, and, as such, will be hereafter considered. 
 
 The analogy, too, is more apparent than real. This latter class of 
 proceedings are essentially akin in their nature to demurrer. They go 
 directly to the substance, not to the mode of statement ; and, in 
 impeaching a pleading', or a separate ground of defence stated in that 
 pleading, they impeach it, not in part, but as a whole. The remedy 
 sought is not its correction, but its total rejection ; and, in those cases 
 where the whole pleading is impeached, the judgment consequent on 
 that rejection. Those under the section now under consideration are, 
 on the contrary, essentially partial in their nature. They are directed 
 strictly and solely, to deficiencies or superfluities in the pleader's mode 
 of statement, not in the substance of the case stated. The moment too 
 that the objection of irrelevancy applies wholly instead of partially to 
 a responsive pleading, or to a separate defence stated in that pleading, 
 
644 COBEEOTION OK ADTEESE MOTION. — § 133. 
 
 section 160 loses its operation. The defect becomes one of substance, 
 and not of statement, and must be otherwise reached, either by demur- 
 rer or motion under section 152. That of insufficiency also is wholly 
 beyond its reach. That defect can only be impeached by demurrer, or, 
 in gross cases of responsive pleading, by a motion on the ground of 
 frivolousness, under section 247. 
 
 (a.) When Motion Admissible, and when not. 
 
 The general rules above stated, though clear in principle, and seem- 
 ingly obvious in their application, have given rise to considerable dis- 
 cussion, in the course of their establishment and the definition of their 
 limits. 
 
 One of the great points on which that discussion has turned, has been 
 the question as to whether demurrer or motion is the more proper course 
 of impeaching a pleading, drawn in disregard of the conditions imposed 
 by sections 167 and 150 ; that different causes of action united in the 
 same complaint, on the one hand, or different counter-claims or defences 
 set forth in an answer, on the other, must, as to each, be " separately 
 stated." 
 
 It has been held that a neglect of this description on the part' of the 
 pleader, affords grounds for demurrer, under subdivision 5 of section 
 144, " That several causes of action have been improperly united," and 
 that this mode of procedure is not merely admissible but proper in such 
 case. Vide Getty vs. The Hudson River RaAlroad Company, 8 How., 
 177 ; Yam, Wamee vs. Peoble, 9 How., 198 ; Strauss vs. Pa/r]cer, 9 How., 
 342 ; Pihey&. Van Wormer, 5 How., 171 ; Durliee^^. The Sa/ratoga and 
 Washington Railroad Convpany, 4 How., 246. See likewise. Waller 
 vs. Rasha/n, 12 How., 28 (31) ; Accoms vs. The American Mineral Cani- 
 pany, 11 How., 24 ; Winterson vs. Eighth Avenue Railroad Company, 
 2 Hilt., 389. 
 
 This view is, however, abundantly overruled, and the contrary, i. e., 
 that a defect of this nature can only be reached by motion, established. ' 
 Demurrer for misjoinder is only applicable, where the causes of action 
 sought to be joined, differ in character and substance, not to a case of 
 mere confusion of statement. Vide Dormam, vs. Kellam, 14 How., 
 184 ; 4 Abb., 202 ; Moore vs. Smith, 10 How., 361 ; Lattlin vs. McCarty, 
 17 How., 239 ; 8 Abb., 225 ; Coodimg vs. McAllister, 9 How., 123 ; 
 Robinson vs. Judd, 9 How., 378 ; Pechham vs. Smith, 9 How., 436 ; 
 Woodbury vs. SacTcrider, 2 Abb., 402 ; Hess vs. Buffalo amd Niagara 
 Falls Railroad Company, 29 Barb., 391 ; Badger vs. Benedict, 1 Hilt., 
 414 ; 4 Abb., 176 ; Harsen vs. Bayamd, 5 Duer, 656 ; Lippvhcott vs. 
 Goodmin, 8 How., 242. 
 
 The proper form of motion in such case would appear to be, that the ■ 
 
COEEECTION ON ADVEESE MOTIOW. — § 133. 645 
 
 party guilty of mispleader be compelled to elect on which cause of 
 action or ground of defence he will proceed, and that the rest of his 
 pleading be stricken out as redundant. Benedict vsi 8eymoit/r, 6 How., 
 298 ; Waller vs. Raslian, 12 How., 28 ; Welles vs. Webster, 9 How., 251 ; 
 Gooding vs. McAllister, 9 How., 123 ; Robinson vs. Judd, 9 How., 378 
 (382) ; Dorman vs. Kellvm, 14 How., 184 ; 1 Abb., 202. See also Eess 
 vs. Buffalo and JYiagara Falls Railroad Gompany, 29 Barb., 301. A 
 motion to make the pleading more definite and certain may also, in such 
 case, be admissible. Vide Uarsen vs. Bayand, 5 Duer, 656 ; Wood vs. 
 Anthony, 9 How., 78. Or even a motion to set aside the complaint 
 altogether. Vide Robinson vs. Judd, supra, and House vs. Cooper, 30 
 Barb., 157 ; 16 How., 292. 
 
 The objection, on the other hand, of the undue division of a single 
 cause of action into numerous counts, is equally unattainable by de- 
 murrer. Yide Hillman vs. Hillman, 14 How., 456. So likewise as to 
 an alleged omission in statement, not affecting the substance of the 
 plaintiff's rights, . Yide Welles vs. Webster, 9 How., 251. 
 
 Election between inconsistent causes of action is, in like manner, only 
 enforceable by motion. Young vs. Edwards, 11 How., 201 ; Smith vs. 
 HaUocTc, 8 How., 73. Departure from the complaint in a reply is also 
 only available by motion, and not by demurrer. White vs. Joy, 3 Kern., 
 83 (90). Nor will demurrer lie, in respect of any superfluity of allega- 
 tion, or for immaterial matter. A motion under the section now under 
 consideration, is the only proper course. Yide Smith vs. Oreenin, 2 
 Sandf , 702 ; Watson vs. Husson, 1 Duer, 242 ; Meyer vs. Yan Collem, 
 28 Barb., 230 ; 7 Abb., 222 ; Esmond vs. Yan Benschoten, 5 How., 44; 
 Fry vs. Bennett, 5 Sandf., 54 ; 9 L. O.,' 330 ; 1 0. K. (N. S.), 238; 
 Bank of British North America vs. Suydam, 6 How., 379 ; ICE.. 
 (N. S.), 325 ; Gray ys. JVellis, 6 How., 290. See likewise, as to matter 
 in an answer, pleaded by way of counter-claim., but inadmissible as such, 
 Putnam vs. Be Forest, 8 How., 146 ; Quin vs. Chambers, 1 Duer, 673 ; 
 11 L. O., 155. The objection on the ground of uncertainty or indeli- 
 niteuess of statement, is in the same manner only remediable by motion. 
 It cannot be reached by demurrer. Yide Smith vs. Greenin, and Fry 
 vs. Bennett, above cited. See also, Howell vs. Eraser, 6 How., 221 ; 
 1 C. E. (N. S.), 270 ; Seeley vs. Engell, 3 Kern., 542 ; The People vs. 
 Ryder, 2 Kern., 433 (440) ; Welles ys. Webster, 9 How., 251 (253) ; Mar- 
 tin vs. Kanouse, 2 Abb., 327 ; 11 How., 567 ; Bement vs. Wisner, 1 
 C. E. (IST. S.), 143 ; Richa/rds vs. Edich, 17 Barb., 260 ; Atwell vs. L&- 
 roy, 15 How., 227 ; 4 Abb., 438 ; Harsen vs. Bayaad, 5 Duer, 656 ; 
 Spies vs. The Accessory Transit Company, 6 Duer, 662 ; Graham vs. 
 Cammxm, 5 Duer, 697 ; 13 How., 360 ; Merwinvs. Hamilton, 6 Duer,. 
 244 ; Prindle vs. Caiiruihers, 15 K Y., 425 ; Wall vs. The Buffalo 
 
646 COBEECTION ON ADVERSE MOTION. § 134. 
 
 Water Works Co7np(my, 18 N. Y., 119 ; Sere vs. Coit, 5 Abb., 481 ; 
 Oheesebraugh vs. New Tarh and Erie Railroad Company^ 26 Barb., 9 ; 
 13 How., 557 ; Cheney vs. Fis\ 22 How., 236 ; Lund vs. Seameios 
 Savings Bank, 23 How., 258. 
 
 Nor can the objection of redundancy be reached otherwise than by 
 motion. Boeder vs. Ormsby, 22 How., 270 ; 13 Abb., 334. 
 
 The converse of the above proposition holds, however, equally good, and 
 i-n all cases where the pleading itself, or any separate statement of cause 
 of action or ground of defence therein, is irrelevant as a whole, and not in 
 part only, the proper mode of raising the question is by demurrer, and 
 not by motion under this section. White vs. Kidd, 4 How., 68 ; Fahhri- 
 cotti vs. Launitz, 3 Sandf., 743 ; 1 C. E. (N". S.), 121 ; Benedict vs. 
 Daks, 6 How., 352 ; Nichols vs. Jones, 6 How., 356. In an unreported 
 case of Belden vs. Knowlton, in the Superior Court, the same course 
 was taken, and allegations, refused to be stricken out upon motion, were 
 afterwards held bad upon demurrer. See likewise Ha/rlow vs. Hamiil- 
 ton, 6 How., 475 ; Budd vs. Bingham, 18 Barb., 494 ; Blake vs. Eldred, 
 18 How., 240 ; and Gould vs. Horner, 1 C. E. (IST. S.), 356 ; 12 Barb., 
 601. See likewise, as to a reply framed on the principle of the old 
 common counts, Stewart vs. Trawis, 10 How., 148. The same rule was 
 applied to a motion on the ground of frivolousness. Vide Soovill vs. 
 Howell, 2 C. E., 48. 
 
 It will be found generally stated in Anon., 2 Sandf., 682 ; CorUes vs. 
 Delaplaine, 2 C. ,E., 117; 2 Sandf., 680; and Bedell vs. Steckels, 4 
 How., 432 ; 3 C. E., 105. If there is any reasonable doubt about the 
 matter complained of being pertinent or the reverse, the party should 
 be left to his demurrer. See also, Littlejohn vs. Greeley, 22 How., 345 ; 
 13 Abb., 311. 
 
 § 134. Objections Oons'idei^ed. 
 {a.) Ieeelevancy oe Eedundanct. 
 
 As might naturally have been expected, the exact limits of this class 
 of objections, have been the subject of considerable difference of opinion, 
 some judges inclining to a more liberal, others to a stricter view of the 
 subject. 
 
 Before entering into the detailed consideration of the decisions in 
 question, a few preliminary observations will not be out of place. 
 
 In the first place, the distinction between irrelevancy and redund- 
 ancy must not be lost sight of. " The terms are not equivalent. Matter 
 which is irrelevant, it is true, is also redundant ; but the converse .is 
 .by no means true. A needless repetition of material averments is 
 redundancy, although the facts averred, so far from being irrelevant, 
 
COEEEOTION ON ABVEESE MOTION. — § 134. 647 
 
 may constitute the whole cause of action.'' Bovyman ys. Sheldon^ 5 
 Sandf., 65T (660) ; 10 L. O., 338. 
 
 In Blake vs. Eldred, 18 How., 240 (242), it was considered that the 
 section now in question, was intended as a substitute for exceptions for 
 impertinence, as allowed under the former chancery practice. See also. 
 Carpenter vs. West^ 5 How., 53 ; Renssfilaer amd Washington Planh 
 Boad Company vs. Wetsel, 6 How., 68 ; Hallow vs. Hamilton, G 
 How., 475 ; Benedict vs. Bahe, 6 How., 352 ; Burget vs. Bissell, 5 
 How., 192 ; 3 C. E., 215. 
 
 A motion of this description appears to be admissible, for the ex- 
 punging of matter as scandalous, being in the nature of the former 
 exception for scandal. The power of the court to strike out matter 
 of this nature " is certainly not affected by the provisions of the Code ; 
 it is essential to the due administration of justice, and to the pro- 
 tection of the character and feelings of suitors." Vide Bowynan vs. 
 Sheldon, sujpra. See also Carpenter vs. West, 5 How., 53, in which 
 case relief of this nature was granted. 
 
 It may be convenient, with a view to the eliciting some few dominant 
 principles, in order to assist at arriving at some definite conclusion on 
 the subject, to consider the questions of iri-elevancy or redundancy, first 
 individually, and then in connection. 
 
 (5.) Ieeelbvanct. 
 
 One grand test by which the question of the irrelevancy or non- 
 irrelevancy of an allegation may be tried, is as to whether that alle- 
 gation does or does not constitute, or assist in constituting, a material 
 cause of action or ground of defence. "If it can in any measure be 
 made the subject of a material issue, it has a right to be found in 
 the pleadings. If not, it ought not to be there." Williams vs. Hayes, 5 
 How., 470 ; 1 0. E. (M". S)., 148. See also, Ingersoll vs. Ingersoll, 1 0. E., 
 102 ; Rensselaer and Washington .Plank Road Company vs. Wetsel, 
 
 6 How., 68 ; Stewart vs. Bo%ton, 6 How., 71 ; 9 L. O., 363; 1 C. E. 
 (N. S.), 404 ; Herkimer County Mutual Insurance Company vs. Fuller, 
 
 7 How., 310 ; Harlow vs. Hamilton, 6 How., 475 ; Martin vs. Kanouse, 
 2 Abb., 390 ; Edgerton vs. Smith, 3 Duer, 614. See also collaterally, 
 Newman vs. Otto, 4 Sandf., 668 ; Connoss vs. Mier, 2 E. D. Smith, 
 314 ; Arrangois vs. Frazer, 2 Hilt., 244 ; Dovan vs. Binsmore, 33 Barb., 
 86 ; 20 How., 503. 
 
 In Martim, vs. Kanouse, 2 Abb., 330, this principle is approved, but 
 extended, to the effect that matter affecting the question of the relief 
 to be granted in the suit, is also material, and has a right to be in- 
 serted. See Howard YS. Tiffamy, 3 Sandf., 695; 1 C. E. (N. S.), 99 ; 
 
648 COliEECTION ON ADVERSE MOTION. — § 134. 
 
 Ill Hoot YB. -Foster, 9 How., 37, this principle is further extended to alle- 
 gations, material to the question of damages. 
 
 In Averill vs. Taylor, 5 How., 476, a still more liberal view was 
 taken, and it was held that no part of a pleading ought to be stricken 
 out, if it can in any event become material. See likewise, to a similar 
 effect, Follett vs. Jewell, 11 L. O., 193 ; and Hynds vs. Griswold, 4 
 How., 69 ; seeming to hold that any fact material for a party to prove 
 on the trial, may be alleged by him in his pleading, and will not be 
 irrelevant. 
 
 In Averill vs. Taylor, a prayer for relief in an answer was refused to 
 be stricken out, on the ground that the plaintiff could not be prejudiced 
 by it, as it raised no issue. This view, however, has scarcely been sus- 
 tained to its full extent. In Lamoureux vs. The Atlantic Mutual In- 
 surance Conupanfiy, 3 Duer, 660, such portions of a prayer for relief, as 
 made that prayer hypothetical, were ordered to be stricken out. In 
 ■Durant vs. Oa/rdner, 19 How., 94 ; 10 Abb., 445, demands for alter- 
 native judgments, and a prayer for general relief, superadded to a de- 
 mand of judgment on a money demand, were likewise stricken' out. 
 See also Meyer vs. Van Collem, 28 Barb., 230 ; 7 Abb., 222 ; Lord vs. 
 Vreeland, 13 Abb., 195. 
 
 In Fabbricotti vs. Launitz, 3 Sandf , 743; 1 C. E. (^E. S.), 121, irrel- 
 evant matter is defined to be, that " which has no bearing on the sub- 
 ject of the controversy, and cannot affect the decision of the court." 
 See, also. Bright vs. Civrrie, 10 L. 0., 104 ; 6 Sandf, 433. 
 
 An allegation that a party had unreasonably refused to make par- 
 tition by deed, with a view to charge him with costs, was held to be 
 irrelevant in McGowan vs. Morrow, 3 C. E., 9. 
 
 In Moffatt vs. Pratt, 12 How., 48, matter grossly immaterial, and 
 obviously designed for a different purpose than that of mere pleading, 
 was stricken out, part of it as irrelevant. 
 
 In Edgerton vs. Smith, 3 Duer, 614, part of am answer, merely deny- 
 ing the receipt of notice of protest, was stricken out as irrelevant, and 
 as tendering a wholly immaterial issue. See also Arrangois vs. Fraser, 
 2 Hilt., 244, above referred to. 
 
 The addition of a second cause of defence, inconsistent with the first, 
 was held not to render the former irrelevant, and a motion on that 
 ground was denied, in Townsend vs. Piatt, 3 Abb., 323. 
 
 An allegation in slander, evidence in proof of which, if tendered, 
 would have been clearly inadmissible, was stricken out as irrelevant, in 
 F<m Bensohoten vs. Yaple, 13 How., 97. See also Boss vs. Brooks, 4 
 E. D. Smith, 644. See generally, as to the striking out of matter, sham 
 and irrelevant in its nature. The People vs. McOwmher, 27 Barb., 632. 
 
 A liberal view is taken upon the subject of irrelevancy, and the prin- 
 
COEBEOTION ON ADVERSE MOTION. — §.134, 649 
 
 ciple laid down that an allegation of facts which the plaintiff would be 
 allowed to prove at the trial, ought to be permitted to stand, in Deyo 
 vs. Brundage, 13 How., 221. See also Blaisdell vs. Baymonk, 4 Abb., 
 446 ; 14 How., 265. 
 
 In Butler vs. Mason, 16 How., 546 ; 5 Abb., 40, matter inserted in 
 anticipation of a probable plea of the statute of limitations, was held 
 irrelevant. See also Sands vs. St. John, 23 How., 140. In Bracket vs. 
 Wilkinson, however, 13 How., 102, it was held that a plaintiff was at 
 liberty to state his case in an equitable form, so as to anticipate a prob- 
 able defence of payment, and a motion to strike out as impertinent, 
 refused. See, however, Stone vs. De Puga, 4 Sandf , 681, holding mat- 
 ter in anticipation not properly pleadable in a common-law action. 
 In Cheesebrough vs. The New York and Erie Railroad Company, 26 
 • Barb., 9 ; 15 How., 557, allegations of an agreement to contract, merged 
 in a subsequent contract entered into upon its basis, were ordered to be 
 stricken out. 
 
 The view taken in Herr vs. Bamberg, 10 How., 128, that matter not 
 sufficient to constitute or tend to constitute a defence, by way of justifi- 
 cation, in slander, must be stricken out, even when pleaded in mitiga- 
 tion only, seems clearly untenable. Yide Bush vs. Prosser, 1 Kern., 34t. 
 See also Heaton vs. Wright, 10 How., 79, where such a motion was denied. 
 New matter in an answer, which was palpably no defence, either 
 total or partial, and which could not be pleaded by way of counter- 
 claim, was stricken out as irrelevant, in Kurtz vs. McOuire, 5 Duer, 660. 
 See also, as to matter wholly inadmissible by way of defence, O'Brien 
 vs. Brietenbach, 1 Hilt., 304. 
 
 The statement by answer, of a defect of parties, apparent on the face 
 of the complaint, was held irrelevant, as being waived by omission to 
 demur, in Oassett vs. Crocker, 10 Abb., 133. 
 
 Averments of fraud, in an action sounding in contract, are also clearly 
 irrelevant, and will be stricken out. Lee vs. Elias, 3 Sandf., 736 ; 1 
 C. K. (N. S.), 116 ; Sellar vs. Sage, 12 How., 531 ; Same case, 13 How., 
 230. See also, on the general principle, Corwin vs. Freeland, 2 Seld., 
 660 • reversing 6 How., 241 ; Barker vs. Russell, 11 Barb., 303 ; ICE. 
 (N. S.), 57 ; reversing 1 C. E. (N". S.), 6 ; Secor vs. Roome, 2 C. E., 1 ; 
 Cheney vs. Ga/rlutt, 5 How., 467 ; ICE. (N. S.), 166 ; Masten vs. Sco- 
 viU, 6 How., 315 ; Field vs. Morse, 7 How., 12 ; Same case, 8 How., 47 ; ; 
 also as to a reply, Brown vs. McCv/ne, 5 Sandf., 224; Rider vs. Whit- 
 lock 12 How., 208 ; Union Bank vs. Mott, 6 Abb., 315. By this series 
 of decisions, Ba/rber vs. Hubbwrd, 3 0. E., 156, and Oridley vs. Mc- 
 Cumber, 6 How., 414 ; 3 C E., 211, are clearly overruled. 
 
 This rule does not, of course, apply to an action brought as in tort, 
 where allegations of this nature necessarily form part of the cause of 
 
650 COEEECTION ON AD7EKSE MOTIOK, — § 134. 
 
 action, and, as such, are clearly admissible. See BenedMt vs. Dake, 6 
 How., 362 (354) ; Itepvhlic of Mexico vs. Arrcmgois, 11 How., 1, and 
 Masten vs. Seovill, 6 How., 315. 
 
 Although a defence may not be prima, facie sustainable, it does not 
 necessarily follow that it can be stricken out as irrelevant. Hill vs. 
 McGa/rthy, 3 C. R, 49. 
 
 Matter inserted merely for the purpose of aiding the plaintiff to 
 obtain an injunction, was considered irrelevant, in Putnam vs. Putnam, 
 2 C. E., 64. The matter complained of seems, however, to have been 
 clearly probative, in great part at least, if not entirely. There can be 
 no doubt that matter tending to show the title of a plaintiff to relief 
 by injunction, will, if properly alleged, be admissible in a suit" for that 
 purpose. Vide Howard vs. Tiffany, 3 Sandf., 695 ; 1 C. E. (N. S.), 99 ; 
 Wooden vs. Waffle, 6 How., 145 ; 1 C. E. (N. S.), 392. See likewise 
 Martin vs. KoMOuse, 2 Abb., 330, above cited. 
 
 Where a party himself tenders immaterial allegations, he cannot 
 move to strike out his adversary's answer to them as immaterial. King 
 vs. Th& JJtnica Insurance Company, 4 How., 485. See also Parshall vs. 
 Tillou, 13 How., 7; Dovan vs. Binsmore, 33 Barb., 86 ; 20 How., 503. 
 
 Portions of a complaint, inconsistent with the summons might, it has 
 been held, be stricken out for irrelevancy. Campbell vs. Wright, 21 
 How., 9. But, in a responsive pleading, inconsistency is no ground for 
 striking out a portion. Smith vs. Wells, 20 How., 158. See also cases 
 cited in a subsequent chapter, under the head of Answer. An allega- 
 tion, wholly contradictory to admitted facts, was however stricken out 
 in Shoe and Leather Bank vs. Camp, 21 How., 443 ; 13 Abb., 87, note. 
 
 (c.) Eedundanct. 
 
 This defect, as distinguished from that of irrelevancy, consists in 
 the insertion of matters, pertinent to the case, but superfluous or imper- 
 tinent, as regards the immediate purposes for which a pleading is de- 
 signed, either by undue repetition, prolixity of statement, or insertion 
 of collateral or probative matter. 
 
 A motion for this purpose has, in fact, its ultimate basis in the pro- 
 hibitions of " unnecessary repetition" in a complaint, as contained in 
 section 142, and of " repetition" in an answer or reply, as contained in 
 sections 149 and 153. 
 
 Statements of probative matter will, as a general rule, be stricken out 
 as redundant, under the broad principle laid down in the first chapter 
 of this book, that facts, and not the evidence of facts, form alone the 
 proper subject of pleading, of whatever nature. See above section 122, 
 and decisions there cited. 
 
 In motions of this description, whether the pleading be legal or equita- 
 
COEKECTION ON ADVEKSE MOTION. — § 134. 651 
 
 ble, tlie same general principle will be strictly and indiscriminately 
 applied. In either of them, mere statements of evidence, as contradis- 
 tinguished from facts, will equally be stricken out. See, as to the 
 application of this rule in common-law actions. Stone vs. De Puga, 4 
 Sandf., 681 ; Lecomte vs. Jerome, 11 L. 0., 126 ; Floyd vs. Dearborn, 2 C. 
 E., 17 ; Boot vs. Han'is, 12 Abb., 446. In suits in equity, Putnam vs. 
 Putnam, 2 C. E., 64 ; Wooden vs. Waffle, 6 How., 145 ; ICE. (N. S.), 
 392 ; Howard vs. Tiffany, 3 Sandf., 695 ; 1 0. E. (E". S.), 99 ; Rens- 
 selaer and Washington Plank Road Company vs. Wetsel, 6 How., 68. 
 The greater latitude of averment in matters of substance, permitted in 
 the latter class of actions, as contradistinguished from the former, will 
 not, as a general rule, be permitted to interfere with that application. 
 See, however, Rochester Giiry Bank vs. Suydam, and Burget vs. Bis- 
 sell, below cited. 
 
 The application of the rule is further evidenced in Shaw vs. Jayne, 
 4 How., 119 ; 2 0. E., 6Y, where a long statement of facts and circum- 
 stances was stricken out as redundant, in a complaint for false imprison- 
 ment. See likewise Radde vs. Ruckgaher, 3 Duer, 684. Also by the 
 striking out of a long history, embracing the evidence relied on to sus- 
 tain a defence of alleged fraud, in Knowles vs. Oee, 4 How., 317. The 
 chancery rules of pleading in this respect are, on the contrary, applied 
 to a very liberal extent, to a complaint or statement of defence of a 
 clearly equitable nature, in The Rochester City Bank vs. Suydam, 5 
 How., 216, and Burget vs. Bissell, 5 How., 192 ; 3 C. E., 215. 
 
 A pleading, obnoxious to the objection that several causes of action 
 or grounds of defence are mixed up in the same general allegation, in- 
 stead of being separately stated, is, as above shown, impeachable by a 
 motion of this nature, the relief sought being that the party be com- 
 pelled to elect, on which cause or ground he will rely, and that the rest 
 of such pleading be stricken out as redundant. See the last previ- 
 ous section, and Benedict vs. Seymour ; Waller vs. Raskan ; Willis vs. 
 Webster; Gooding vs. McAllister; Robinson vs. Judd; DormoM vs. Kel- 
 lam • Hess vs. Buffalo and Niagara Falls Railroad Company ; and 
 Lipfvncott vs. Goodwin, there cited. 
 
 A motion of the same description will lie, to compel an election by 
 the plaintifi" between inconsistent causes of action. Smith vs. Hallock, 
 
 8 How., 73. 
 
 As regards inconsistent defences, however, the rule is not so strict, 
 provided only they be separately stated. See this subject more fully 
 considered hereafter, under the head of Answer. 
 
 Allegations in slander, averring a repetition of the offence previously 
 alleged, and of other similar words not specifically stated, were held 
 liable to a motion of this description, in Gray vs. Nellis, 6 How., 290. 
 
652 ■ COEEECXTON ON ADVERSE MOTION. — § 134. 
 
 In Dollner vs. Gilson, 3 C. E., 153 ; 9 L. 0., Y7, the rule was over- 
 strictly applied, and an averment of facts as they actually happened, 
 instead of according to their legal effect, was stricken out. This case 
 cannot, however, be considered as of authority, and is indeed stated to 
 have been reversed. See per contra, St. John vs. Griffith, 1 Abb., 39. 
 
 Any matter not involving a statement of fact, as, for instance, a series 
 of pretences and charges, according to the old chancery system, is clearly 
 redundant, and will be stricken out. OlarTcYs. Sarwood, 8 How.,4T0. 
 So also, matter stated by way of argument only, is clearly redundant. 
 Oould vs. WilUams, 9 How., 51. 
 
 Where, too, any portion of a pleading is unnecessary, as, for instance, 
 where matter is stated in reply to an answer not constituting a counter- 
 claim, it will be held redundant and stricken out. Putnam vs. De 
 Forest, 8 How., 146. See also Quin vs. Chambers, 1 Duer, 673 ; 11 
 L. 0., 155. 
 
 The statement of the same matter in different counts, according to the 
 old common-law practice, is no longer admissible, and, where this mode 
 of allegation is employed, all of them, except one, will be stricken out 
 as redundant, the party being generally put to his election. Stoch- 
 hridge Iron Company vs. Mellen, 5 How., 439 ; Blanchard vs. Strait, 
 8 How., 83 ; Wood vs. Anthony, 9 How., 78 ; Sijpperly vs. The Troy 
 amd Boston Rail/road Compwny, 9 How., 83 ; Dows vs. Hotchkiss, 10 
 L. 0., 281 ; Churchill vs. Churchill, 9 How., 552 ; Fern vs. Vaiider- 
 iilt, 13 Abb., 72 ; Higgins vs. Thomas, 13 Abb., 72, note ; Lackey vs. 
 Yanderhilt, 10 How., 155 ; Dwnni/ng vs. Thomas, 11 How., 281 ; 
 Diclcins vs. The New Yorh Central Rail/road Company, 13 How., 
 228 ; Whittier vs. Bates, 2 Abb., 477 ; and Ford vs. Mattice, 14 How., 
 91, where it is characterized as " unnecessary repetition." See also on 
 demurrer, St. John vs. Pierce, 22 Barb., 362. In Adams vs. Holly, 12 
 How., 326, where the complaint would clearly have been open to this 
 objection, it does not seein to have been attacked on this ground. 
 
 See likewise, as to a pleading containing multifarious matter stated 
 in the same count, being open to the same description of motion, 
 Cheney vs. Fisk, 22 How., 236. 
 
 The same rule is applied to the statement of hypothetical defences in 
 Hamilton vs. Hough, 13 How., 14. See also, Wies vs. Fa/iining, 9 
 How., 543. 
 
 The above principle is somewhat qualified, and a complaint, stating 
 the same cause of action in two different forms, sustained, in Jones vs. 
 Palmer, 1 Abb., 442. It is, however, stated that such an allowance 
 should be made with great caution, and only where it is very clear that 
 the nature of the case renders it proper and necessary, to protect the 
 rights of the plaintiff, and to secure him against the danger of a nonr 
 
COEEEOTION ON ADVERSE MOTION". — § 134. COS 
 
 siut on the trial. The case is, therefore, clearly of an exceptional 
 nature. See likewise, as to similar statements, in a reply to an answer 
 obnoxious to the same objection, Stewart vs. Trmis, 10 How., 148. 
 
 In Birdseye vs. Smith, 32 Barb., 217, a complaint, containing two 
 separate counts upon the same instrument, was sustained, the causes of 
 action thus stated being separate and distinct in their nature. 
 
 A joint answer by two pai'ties severally liable, but verified by one 
 only, was held to be void, as to the party not swearing to it, and 
 stricken out, so far as regarded his defence. Andrews vs. Storms, 5 
 Sandf., 609. 
 
 The words, " as plaintiff is informed and believes," were held to be 
 redundant, and stricken out of an answer, in Trusoott vs. Dole, 7 How., 
 221, it being laid down, that all allegations in an answer must be 
 positively made, the form of affidavit of verification being a suflicient 
 qualification, where made on information and belief. See, similar 
 views in Dollner vs. Oihson, above cited. Whether this doctrine is 
 sound, when carried to its full extent, is very doubtful. In a modified 
 sense, however, it is highly desirable that, whenever an allegation can 
 be positively made, that form of expression should be used. 
 
 Matter in mere mitigation of a recovery, and not constituting an 
 affirmative defence to the plaintiff 's case, is clearly redundant, and will 
 be stricken out, save only in cases of libel and slander, under the special 
 authority conferred by section 165. Smith vs. Waite, 7 How., 227 ; 
 jRoe vs. Rogers, 8 How., 356. See also, Barnes vs. Willett, 35 Barb., 
 514 ; 12 Abb., 448. 
 
 In ejectment, a detailed statement of the plaintiff's title is redundant, 
 and may be stricken out. Wa/rner vs. WelUga/r, 12 How., 402. 
 
 The motion in that case was, however, somewhat unwillingly 
 granted, on the ground that the prolixity complained of was trifiing, 
 and not calculated to be injurious to the defendant. See also, as to the 
 disregard of trifling redundancies, Carpenter vs. West, 5 How., 53 ; 
 WilUcims vs. Mayes, 5 How., 470 ; 1 0. E. (N. S.), 148 ; Clark vs. 
 JSarwood, 8 How., 470. 
 
 It has even been held that undue prolixity will not, of necessity, 
 render a pleading redundant. Warren vs. Strutter, 11 L. O., 94. See 
 also, collaterally, Johnson vs. Snyder, 7 How., 395. The doctrine in 
 the former case seems, however, to be strained too far, and the distinc- 
 tion between constitutive and probative facts to have been practically 
 lost sight of. 
 
 Where the answer, taken as a whole, contained no defence whatever, 
 a motion to impeach it, on the ground of redundancy, was held inad- 
 missible, the plaintiff's remedy being to attack it as a whole. HaHow 
 vs. Hamilton, 6 How., 475. 
 
654 COEEECTION OST ADVEE8E MOTION. — § 134. 
 
 Unnecessary allegations, as to the mode of an alleged conversion, 
 Avere stricken out as redundant, in Moffatt vs. Pratt^ 12 How., 48. 
 
 A party who has himself made distinct though immaterial allega- 
 tions, cannot impeach his adversary's pleadings in answer to them for 
 redundancy. King vs. Utica Insurance Compcmy, 6 How., 486. See 
 also, Parshall vs. Tillou, 13 How., 7. 
 
 Nor can he do so with reference to facts omitted to be averred by 
 himself, but necessary to be alleged by the adverse party. Lord vs. 
 Cheesebm-ough, 4 Sandf., 696 ; 1 C. E. (JST. S.), 322. 
 
 {d.) As TO BOTH Objeotiokts, Geneeallt Consideeed. 
 
 Motions of this description being, except in extreme cases, of a 
 strictly technical nature, the courts have generally shown a disposition 
 rather to discourage them than the reverse. See St. John vs. Griffith, 1 
 Abb., 39. Especially has this view been held, on the^ground that full 
 force must be given in the construction of the section to the word 
 " aggrieved," and that a party, before he can sustain a motion of this 
 description, must show that he is actually prejudiced, by the continu- 
 ance of the matter impeached in the adverse pleading. VideWhite vs. 
 Kidd, i How., 68 ; Hynds vs. Griswold, 4 How., 69 ; Bedell vs. Stechels, 
 4 How., 432 ; 3 C. R., 105 ; Burget vs. Bissell, 5 How., 193 ; 3 C. E., 
 215 ; TJie Rochester City Bank vs. Suydam, 5 How., 216 ; Denithorne 
 vs. Denithorne, 15 How., 232 ; Molony vs. Dows, 15 How., 261 ; Hol- 
 lenhech vs. Clow, 9 How., 289 (292) ; Ma/rtinYs,. Kanouse, 3 Abb., 390 ; 
 Brocklemcm vs. Brcmdt, 10 Abb., 141 ; Root vs. Foster, 9 How., 37. 
 
 In Bedell vs. Stechels it is held, further, that the rule to be acted 
 upon in these cases, should be in analogy to that of the old Supreme 
 Court, in relation to frivolous demurrers ; and that, therefore, in all 
 cases where there was any question, or ground for argument about the 
 matter being irrelevant or not, the application should be refused. See 
 also Littlejohn vs. Greeley, 22 How., 345 ; 13 Abb., 311. 
 
 In Follett vs. Jewett, 11 L. O., 193, the rule is also laid down that, 
 unless it is clear that no evidence can properly be received under the. 
 allegations objected to, they should be retained until the trial. See 
 also Blcdsdell vs. Raymond, 14 How., 265 ; 4 Abb., 446 ; and Deyo vs. 
 Bnmdage, 13 How., 221. 
 
 That the plaintifl" should be allowed full latitude in the mode of 
 stating his case, especially in equity, and even to the extent of antici- 
 pating a supposed defence, is maintained in Bracket vs. Wilkinson, 13 
 How., 102. 
 
 The tendency of the court, as regards these motions, was shown in 
 Whitney vs. Waterman, 4 How., 313, holding that an order leaving in 
 inamatOTial matter was not appealable, though an order striking it out 
 
0OBET3CTION ON ABVEESE MOTION. — § 134, 655 
 
 taight be so, if made to appear that such matter involved the merits. 
 See slso Otis vs. Boss, 8 How., 193 (195); 11 L. O., 343; Bedell vs. 
 StecMs, 4 How., 432 ; 3 C. K., 105. 
 
 The above doctrine has, however, been somewhat qualified in some 
 few cases. In Carpenter vs. West, 5 How., 53, thus : " My own impres- 
 sions are," says the learned judge, " that, as to scandalous and imperti- 
 nent, irrelevant, and redundant matter, the Code has not in any respect 
 changed the former practice in equity cases.'' " Its effect upon what, 
 before the Code, would have been cases at law, is not now under con- 
 sideration. If this view is correct, the adverse party may always be 
 considered! aggrieved by scandalous, irrelevant, impertinent, and redund- 
 ant matter, in a pleading. I think one may be considered aggrieved 
 by the interpolation o6 matter into the pleadings, in a cause in which 
 he is a party, foreign to the case ; and he always had a right to have 
 the record expurgated, for that reason, without reference to the question 
 of costs." 
 
 In Williams vs. Hayes, 5 How., 470 ; 1 C. E., (N. S.), 148, the above 
 views, and the qualification of the doctrine held in Hynds vs. Gris- 
 wold, which they involve, were assented to by the learned judge who 
 pronounced that decision. "It is not every unnecessary expression, or 
 redundant sentence which should be expunged on motion. But, where 
 entire statements are introduced, upon which no material issue can be 
 taken, the opposite party may be ' aggrieved' by allowing them to re- 
 main in the pleading. If not answered, it may be claimed that sUch 
 allegations are admitted, and, if denied, the record is embarrassed with 
 immaterial issues. In such cases, it is the right of the adverse party 
 to have the matter improperly inserted in the pleading removed, so 
 that the record, when complete, shall present nothing but the issuable 
 facts in the case. This I understand to be the true spirit and general 
 policy of the system of pleading prescribed by the Code." 
 
 In Isaac vs. VeUomaii also, 3 Abb., 464, a similar qualification is 
 made, and declared to be the view of the Court of Common Pleas. " A 
 party is aggrieved, if called upon to answer an irrelevant or redundant 
 statement, and thus to create issues which the rules of pleading do not 
 encourage or sustain. That imposes upon him a legal obligation, by a 
 system of pleading which does not otherwise exist, and he is aggrieved 
 by it. Every infraction of a legal right is a grievance, however made, 
 and unless the legislature intended by the word ' aggrieved' some bodily 
 or personal inconvenience, injury, or suffering, in addition thereto, 
 that grievance is enough to justify the courts in expunging the irrel- 
 evant matter." 
 
 There can be little doubt but that, to the extent to which they go, 
 these qualifications are sound. They leave the matter, however, sub- 
 
656 COEEECTION ON ADVEESE MOTIOK. — § 135, 
 
 stantially very much where it stood before, as regards the extended 
 discretion which the judiciary are entitled, and have been accustomed, 
 to exercise in such cases ; and as regards the necessity of an objection 
 of this description being substantial, and not merely formal or trifling 
 in its nature. 
 
 In Smith vs. Brown, 6 How., 383, a motion to strike out portions of 
 a demurrer, as irrelevant and redundant, was denied, and it was con- 
 sidered that the remedy under section 160 was not properly applicable 
 to that description of pleading. See also Smith vs. Oreerdn, 2 Sandf., 
 702. In connection with this view, it may be observed that " repe- 
 tition" is not prohibited by the Code, as regards the framing of a 
 demurrer, as in the case of other pleadings. All that is required is, on 
 the contrary, a distinct specification. See section 145. 
 
 In Wliite vs. Joy, 3 Kern., 83 (90), it was held that a reply was 
 impeachable by motion, in respect of a departure, by insertion of new 
 matter, " inconsistent with the complaint." See section 163. 
 
 § 135. Uncertamty. 
 
 A motion on this ground is admissible under section 160 — 
 
 "When the allegations in a pleading are so indefinite or uncertain 
 that the precise nature of the charge or defence is not apparent." 
 ■ The object of the application being " that the pleading so impeached 
 be made definite and certain by amendment." 
 
 This remedy has been granted in the following cases : 
 
 In BrodericJc vs. Poillon, 2 E. D. Smith, 554, reported as JBroderick 
 vs. Boyle, 1 Abb., 319, a subcontractor, seeking to enforce a mechanic's 
 lien, was required to show his subcontract to be in conformity with 
 that between the contractor and the owner. 
 
 A bare allegation of ownership of land, in a suit for an accounting 
 for its proceeds, was ordered to be made more definite, by the allegation 
 of some issuable fact showing such ownership, in Adams vs. Holley, 12 
 How., 326. 
 
 "Where a cause of action against several defendants, capable of sever- 
 ance as to their several liabilities, was stated in one single count, its 
 division into separate statements of the separate causes, according to 
 rule 19 (86), and section 167, was enforced by means of a motion of this 
 description, in Forsyth vs. Edminston, 11 How., 408. 
 
 A separation of this description, and a statement of how much the 
 plaintiff sought to recover on each cause, was thus enforced, in Clarh 
 vs. Fwrley, 3 Duer, 645. See also, generally, Ha/rsen vs. Bayaud, 5 
 Duer, 656 ; Blomchard vs. Strait, 8 How., 83 ; Wood vs. Anthony, 
 9 How., 78 ; Lijpipincott vs. Goodwin, 8 How., 242. 
 
COEEECTION OTST ADVERSE MOTION. — § 135. 657 
 
 Wliere, on a creditor's bill by several plaintiffs, they omitted to 
 allege, specifically, the nature and extent of their several claims, a 
 motion of this description was granted. Gray vs. Kendall^ 5 Bpsw., 
 666 ; 10 Abb., 66. So also where, in an action for use and occupation, 
 the plaintiff omitted to allege the time for which, and the rate at which, 
 rent was claimed, it was held that a motion would lie. Waters vs. 
 Clourk, 22 How., 104. 
 
 An amendment of alternative or inconsistent pleading may be com- 
 pelled in the same manner. Vide. Carhin vs. St. George^ 2 Abb., 465 ; 
 WiUett vs. The Metropolitan Insurance Company., 2 Bosw., 678 ; Smith 
 vs. HaUocJc, 8 How., 73. 
 
 A complaint for an account, not stating the nature and character of 
 the claim, and period within which it arose, was held deficient, and 
 ordered to be made more definite and certain in Farcy vs. Lee, 10 Abb., 
 143. See also Cheesebroughys, The Wew York and JErie Railroad Com- 
 pany, 26 Barb., 9 ; 13 How., 557. 
 
 A general statement, however, is all that is necessary for this purpose. 
 The statement of specific items and matters of detail cannot be so 
 enforced. The mode of obtaining that description of information, is by 
 means of an application for particulars under section 158. Farcy vs. 
 Lee, supra; McKinney vs. MoKinney, 12 How., 22; Cudlipp vs. 
 Whipple, 4 Duer, 610 ; 1 Abb., 106 ; Slomam, vs. Schmidt, 8 Abb., 5 ; 
 Adams vs. Holley, 12 How., 826 ; West vs. Brewster, 1 Duer, 647 ; 11 
 L. O., 157 ; see also, generally, Allen vs. Patterson, 3 Seld., 476. 
 
 The general principle that a party complaining of the uncertainty 
 of an adverse pleading, must seek his relief in this form, is laid down in 
 Richards vs. Edick, 17 Barb., 260 ; Graham vs. Camman, 5 Duer, 
 697 ; 13 How., 360. See also Atwell vs. Le Roy, 15 How., 227 ; 4 
 Abb., 438 ; The PeopU vs. Ryder, 2 Kern., 433 (440) ; Tillage of War- 
 ren vs. Phillips, 30 Barb., 646. 
 
 In Vanderhilt vs. The Accessory Transit Company, 9 How., 352, 
 defendants were allowed to amend their answer in this respect upon 
 their own motion. 
 
 In Wiggins vs. Gans, 3 Sandf., 738 ; 1 0. K. (K S), 117, two suc- 
 cessive answers, pleading a set-off, the first, by mere reference to the 
 complaint, without stating particulars, and the second, in the words of 
 a common count for work and labor, in assumpsit, under the old prac* 
 tice, were both held indefinite and uncertain ; and the former of them 
 was stricken out, with costs. 
 
 Where the defendant pleaded the breach of an agreement on the 
 part of the plaintiff, he was required to state that agreement, with suffi- 
 cient detail to make the breach apparent. Lynch vs. Murray, 21 How., 
 154. See also, as to the imperfect statement of matter in defence, 
 
 A^L. I.— 42 
 
658 COKEECTION ON ADVEESE MOTION. § 135. 
 
 Currie vs. Cowles, 6 Bosw., 452 ; Smith vs. Wells, 20 How., 158 ; 
 Farmers and Citizens' BanJc of Long Island vs. Sherman, 6 Bosw., 181. 
 
 The old common counts were held deficient in certainty, and the 
 plaintiff only relieved on condition of amending his complaint, in Blan- 
 cha/rd vs. Strait, 8 How., 83. See also Wood vs. Anthcmj, 9 How., 78. 
 
 On the other hand it has been considered that a motion on this 
 ground, does not apply to defences which consist in mere denials of the 
 plaintiff's allegations, but only to those consisting of new matter, in- 
 volving distinct affirmative grounds. Otis vs. Ross, 8 How., 193 ; 11 
 L. O., 343. 
 
 Where, too, the pleading is sufficient to raise an adequate issue, this 
 proceeding will not be appropriate ; as, where an answer merely alleged, 
 on information and belief, that the plaintiff had received something on 
 account of his demand, and was not entitled to the whole sum claimed, 
 a motion of this nature was denied. Smith vs. Shufelt, 3 0. R., 1T5. 
 
 Less definiteness will also be required in pleading matters within the 
 knowledge of the adverse party, than those more peculiarly within the 
 cognizance of the party pleading. Yide West vs. Brewster, supra. 
 
 An allegation that another action was pending between the same 
 parties for the same cause, was held sufficient, and a motion requiring 
 a fuller statement denied, in Ward vs. Dewey, 12 How., 193. 
 
 A motion, requiring the time and consideration of an assignment to 
 be stated, was denied in Kanouse vs. Martvn, 2 Abb., 330. So also a 
 motion asking the plaintiff, in a suit for contribution, to state legal con- 
 clusions, or matter of defence. Yan Demarh vs. Yan Demarh, 13 
 How., 372. And a motion requiring a plaintiff, alleging an assignment 
 to be fraudulent on its face, and in intent, to state his grounds of im- 
 peachment. Hastings vs. Thurston, 18 How., 531 ; 10 Abb., 418. 
 
 An answer to matter in the complaint which is itself objectionable, 
 and might have been stricken out, cannot be required to be made more 
 definite. Pa/rshall vs. Tillou, 13 How., 7. See also. King vs. The UUca 
 Insv/rance OoTivpany, 4 How., 485. 
 
 Nor can a motion of this nature be sustained, in respect of matters 
 not apparent upon the face of the pleading required to be amended. 
 Brown vs. The Southern Michigan Railroad Company, 6 Abb., 237. 
 
 Where the pleading is ambiguous, and the adverse party goes to trial, 
 without availing himself of the remedy prescribed by this section, that 
 pleading will be taken most strongly against him. TFaKvs. The Buffalo 
 Water Worhs Company, 18 IST. T., 119. 
 
 But where a pleading is radically defective, as in the case of an insuf- 
 ficient plea of usury, the adverse party will not be put to his motion on 
 this grourid of defect, but may proceed at once to impeach it, on others, to 
 the charge of which it may be open. See Manning vs. Tyler, 21 IST. Y, , 567. 
 
COEEEOTION Olf ADVEESE MOHOK. — 8 136. 659 
 
 § 136. Form and Incidents of . Motion. 
 
 It remains to consider, in the last place, the mode in which the dif- 
 ferent objections, for which a remedy is provided by section 160, may be 
 made available. 
 
 The motion being technical, and in fact in the nature of a partial plea 
 in abatement, must be made at once, or the objection will become im- 
 tenable. Eule 50 (4^^ris positive and express upon this subject. A 
 motion on either ground must be noticed, before demurring or answer- 
 ing the pleading ; and within twenty days from the service thereof. 
 
 Of course, when so noticed, it may be actually made, on a proper 
 adjournment, after the expiration of that period. 
 
 See the following decisions, to the same effect as the rule, with regard 
 to the necessity of an objection of this nature, being taken promptly and 
 at once. Corlies vs. Delaplaine, 2 Sandf., 680; 2 C. E., 117; Isham 
 vs. Williamson, Y L. O., 340. See also, under the rule, Rogers vs. 
 Sathhin, 6 How., 66 ; Hoosa vs. The Saugerties and Woodstooh Turn- 
 pihe Road Company, 8 How., 237 ; Bowman vs. Sheldon, 5 Sandf., 
 657 ; 10 L. 0., 838 ; Wew York Ice Company vs. North Western In- 
 surance Company, 21 How., 234 ; 12 Abb., 74. 
 
 As to express waiver, by demurring, or answering, or replying, see 
 Corlies vs. Delaplaine, supra / White vs. loy, 3 Kern., 83 (86) ; Sa/r- 
 low vs. Hamiilton, 6 How., 475 (478); Sedey vs. Engell, 3 Kern., 542 
 (548). 
 
 Any act, too, which admits the sufficiency of the pleading sought to 
 be impeached, will equally effect a waiver of the defect. Thus a waiver 
 has been held to be effected : By the service of an answer, pending a 
 motion for irrelevancy in the complaint, Qoch vs. Ma/rsh, 8 How., 439. 
 By an unconditional extension of the time to answer or reply, Bowma/n 
 vs. Sheldon, and Isham vs. Williamson, supra. See, however, lachey 
 vs. Yand&rlnlt, 10 How., 155, holding that a stipulation, extending the 
 time to answer, " and to make such application as he should be advised," 
 had the effect of saving this right to a defendant. 
 
 The same effect of a waiver, by implied admission of the sufficiency 
 of the adverse pleading, has also been ascribed to the service of a notice 
 of trial, in Esmoixd y&.Yan Benschoten, 5 How., 44. Or by demand- 
 ing a copy of the plaintiff's account, where the objection subsequently 
 taken was for uncertainty of statement. McKmney vs. MoKinney, 12 
 How., 22. 
 
 The principle of waiver, by a failure to take the objection in due 
 time, is also generally laid down in Yovm^gs vs. Seeley, 12 How., 395 ; 
 
660 COEEECTIOlf ON ABVEESE MOTION. — § 136. 
 
 Seeley vs. Engell, 3 Kern., 542 (548); Wood vs. Anthony, 9 How., 78 ; 
 Wall vs. The Bufalo Water Works Oompcmy, 18 N. T., 119. 
 
 The principle of this rule does not extend, however, to motions on the 
 ground of a total irrelevancy, or insufficiency of a pleading or ground of 
 defence. An objection of this nature may be taken at any time before 
 the trial. Stakes vs. Hagar, 1 0. K., 84 ; 7 L. O., 16 ; Miln vs. Vase, 
 4 Sandf., 660 ; Darrow vs. MiUer, 5 How., 247; 3 C. R, 241. 
 
 A party moving to strike out, must specify upon the face of his 
 notice of motion, the portions of the pleading which he objects to, and 
 also the grounds of his objection. Otherwise, his motion will not be 
 entertained. Benedict vs. Bake, 6 How., 353 ; Blake vs. Eldred, 18 
 How., 240 ; Bowman vs. Sheldon,, 5 Sandf., 660 ; 10 L. O., 338. This 
 view accords with the principle as to motions on the ground of irregu- 
 larity, laid down in rule 39. 
 
 Objections to a pleading must not be split up into different motions. 
 They should all be taken at once, or a second application will not be 
 granted, after the failure of the first. Desmond vs. Wool/, 6 L. 0., 389 ; 
 1 C. E., 49 ; Mills vs. Thursly, (No. 2.), 11 How., 114. As to the 
 power, jJeT- contra, of combining motions on different grounds in one 
 single application, vide the People vs. McCumber, 27 Barb., 632. 
 
 In Rogers vs. Eaihlmn, 6 How., QQ, it was held that, on a motion of 
 this description, the moving party is bound to show affirmatively, that 
 it was made in due time. This view seems, however, too strict. The 
 contrary, and that this objection, if tenable, is matter of defence, the 
 burden of showing which rests upon the opposing party, is maintained 
 in Barber vs. Bennett, 4 Sandf, 705 ; and Boosa vs. The Saugerties 
 and Woodstock Turnpike Road Company, 8 How., 237. See too, collat- 
 erally, Darrow vs. Miller, supra. 
 
 This description of motion being applied directly to defects, patent 
 upon the face of the pleading impeached, no affidavit need, as a gen- 
 eral rule, be served with the notice, but the latter may, and in most 
 cases should be grounded upon that pleading alone. Ford vs. Mattice, . 
 14 How., 91. See also Darrow vs. Miller, supra. In Lackey vs. 
 Vanderlilt, 10 How., 155, an affidavit was used, the singleness and 
 identity of ^he transaction, as stated in different counts, on which ground 
 the pleading was objected to, requiring some explanation to make it 
 clearly apparent. The motion was, however, in fact, decided upon the 
 pleading, in connection with the affidavit, which of itself was consid- 
 ered insufficient, and the opinion, as given, by no means bears out the 
 positive statement in the head-note, that this objection can only be 
 made to appear by affidavit. 
 
 On such a notice, the usual demand for further and other relief 
 should of course be inserted. It cannot be extended, however, so as to 
 
COEEECTION 0:S ADVEESE MOTION. — § 136. 661 
 
 effect a substantial change in the application, as by the striking out 
 the whole of the pleading, on motion for partial il-relevancy. Mott vs. 
 Burnett, 2 E. D. Smith, 50. 
 
 In Carpenter vs. West, 5 How., 53, it was considered competent for 
 any one, not even a party to the record, to move for the striking out of 
 scandalous matter, and the practice in these cases would appear not to 
 have been changed. Yide Bowman y&. Sheldon, 5 Sandf., 65Y (660) ; 
 10 L. O., 338. 
 
 In the Trustees of Pen Yan vs. Forbes, 8 How., 285, it was held 
 that an appeal from an order, striking out a defence as irrelevant, 
 effected, during its pendency, a stay of proceedings, so far as to prevent 
 the noticing of the cause for trial by the adverse party. 
 
 An order to strike out portions of a pleading would not seem to 
 involve, per se, any extension of the mover's time to answer or reply to 
 that pleading, when corrected. A definite extension had better there- 
 fore in all cases be applied for, either as part of the motion itself, by 
 additional demand in the notice, or by way of further relief on the 
 hearing, or separately in the usual manner. When, on the contrary, 
 the order directs an amendment by the adverse party, either generally, 
 or as the result of a motion for uncertainty, the usual incidents of 
 an amendment will follow, and the time to answer or reply will neces- 
 sarily not commence to run, until after service of the pleading as 
 amended. 
 
 The granting of such a motion works no prejudice to the right of 
 the adverse party to amend as of course, if exercised in due time. 
 Boss vs. Dinsmore, 20 How., 328 ; 12 Abb., 4; 
 
BOOK YII. 
 
 OF THE COMPLAINT AND ITS INCIDENTS. 
 CHAPTER I. 
 
 OF FIXING THE VENUE. 
 
 General Observations. 
 
 As section 142 specifically requires that " the name of the county 
 where the plaintiff desires the trial to be had," should be contained in 
 the complaint, the present appears to be the most convenient time for 
 considering the extent to which the designation of that county is either 
 imperative or optional. It is true that, when the summons is served 
 alone, the question, to a certain degree, comes up for consideration (see 
 section 130) ; but this only takes place collaterally ; nor is the designa- 
 tion so made imperative. Vide Merrill vs. Orinnell, 12 L. 0., 286. The 
 proper place for that designation is on the face of the complaint itself. 
 
 § 13*7. Statutory Provisions. 
 
 The portion of the Code which makes provision upon this subject is 
 title IV. of part II. It runs as follows : 
 
 TITLE IV. 
 
 Of the Place of Trial of Civil Actions. 
 
 § 123. (103.) Actions for the following causes, must be tried in the county 
 in which the subject of the action, or some part thereof, is situated, subject 
 to the power of the court to change the place of trial, m the cases provided 
 by statute. 
 
 1. For the recovery of real property, or of an estate or interest therein, or 
 for the determination, in any form, of such right or interest, and for injuries 
 to real property ; 
 
 2. For the partition of real property; 
 
OF rixrcfa the venue. — § 137. 663 
 
 3. For the foreclosure of a mortgage of real property. 
 
 4. For the recovery of personal property, distrained for any cause. 
 
 In 1848, this and the next following constituted only one section. 
 
 This portion of it differed thus : 
 
 In the commonoement, the words, "where the cause, or some part thereof, arose," stood 
 after "in the county," and before "in which, &c." 
 
 The four subdivisions, as they stand, followed. 
 
 After them stood a fifth, thus: 
 
 " 5. For injuries to the person or personal property." 
 
 The present subdivisions, 1 and 2, of section 124, next followed, by the designation of 
 subdivisions 6 and T. 
 
 In 1849, the section was amended as it now stands. Under this amendment, subdivision 5 
 was totally omitted, thus transferring that particular class from the category of local, to that 
 of transitory, actions. 
 
 § 124. (103.) Actions for the following causes, must be tried in the CQunty 
 where the cause or some part thereof arose, subject to the like power of the 
 court, to change the place of trial, in the cases provided by statute : 
 
 1. For the recovery of a penalty or forfeiture imposed by statute ; except, 
 that when it is imposed for an offence committed on a lake, river, or other 
 stream of water, situated in one or more counties, the action may be brought 
 in any county bordering on such lake, river, or stream, and opposite to the 
 place where the offence was committed ; 
 
 2. Against a public officer, or person specially appointed to execute his 
 duties, for an act done by him in virtue of his office, or against a person, 
 who, by his command or in his aid, shall do any thing touching the duties 
 of such officer. 
 
 Inserted as it stands in 1849, but formed by the transfer of subdivisions 6 and 7 of section 
 103, of 1848, to this separate clause, and by the addition of a preamble, substantially the same 
 as in the previous one, mutaiis mutandis. This section, in connection with section 126, seems 
 clearly to supersede the provision at 2 B. S., 409, section 3. 
 
 S 125. (104.) In all other cases, the action shall be tried in the county in 
 which the parties, or any of them, shall reside at the commencement of the 
 action • or if none of the parties shall reside in the State, the same may be 
 tried in any county which the plaintiff shall designate in his complaint; 
 subject, however, to the power of the court to change the place of trial, in 
 the cases provided by statute. 
 
 8 126. (106.) If the county designated for that purpose in the complaint, 
 be not the proper county, the action may, notwithstanding, be tried therein, 
 unless the defendant, before the time for answering expire, demand, in 
 writing, that the trial be had in the proper county, and the place of trial be 
 thereupon changed, by consent of parties, or by order of the court, as is 
 provided in this section. 
 
 The court may change the place of trial in the following cases : 
 
 1. When the county designated for that purpose in the complaint, is not 
 the proper county. 
 
664 OF FIXING THE VEIOTE. — § 138. 
 
 2. When there is reason to helieve that an impartial trial cannot be had 
 therein. 
 
 3. When the convenience of witnesses, and the ends of justice, would be 
 promoted by the change. 
 
 When the place of trial is changed, all other proceedings shall*e had in 
 the county to which the place of trial is changed, unless otherwise provided 
 by the consent of the parties, in writing, duly filed, or order of the court ; 
 and the papers shall be filed or transferred accordingly. 
 
 In 1848 aaid 1849, this section only consisted of part of the preamble, stopping at the words, 
 " that the trial be had in the proper county." The rest of it, as it stands, was added by 
 amendment in 1851. 
 
 In the present chapter, the subject of a change of veuue, as provided 
 for in the latter portion of section 126, will not be entered upon, but 
 reserved for separate consideration hereafter, at the stages of the suit to 
 which that proceeding is appropriate. 
 
 § 138. General Considerations. 
 
 To a certain extent, the former strict distinctions between local and 
 transitory actions are relaxed. ISTo action is strictly local, because a 
 mistake in the venue is no longer a fatal mistake. No action is strictly 
 transitory, because, in every case, except that of all the parties being 
 non-residents, there is some proper county in which the venue ought 
 to be fixed, and the uncontrolled discretion formerly vested in a plain- 
 tiff is no longer existent. See Souch vs. Lasher, 17 How., 520 (522). 
 
 In a minor sense, however, the difference still continues, inasmuch 
 as, in the cases provided for in sections 123 and 124, the fixing of the 
 venue on a principle of locality is, in terms, imperative, whilst, as 
 regards other controversies, the plaintiff has the privilege of selection. 
 In a modified degree, therefore, the former may be considered as local, 
 and the latter as transitory in their nature. 
 
 In one sense, all actions may now be looked upon as belonging to 
 the latter class, i. e., that it is in the power of the plaintiff to lay the 
 venue at the outset in any county he chooses, even although the con 
 troversy be strictly local. He does so, of course, at the peril of a 
 change being compelled ; and, if he lays it in a wrong county, that 
 change becomes, and may be enforced as a matter of right. This 
 enforcement rests, however, altogether with the defendant, by means 
 of a demand in due time, and a consequent motion, if it be not com- 
 plied with ; but, if the latter delays the demand, or, if resisted, neglects 
 to obtain the proper order, his otherwise existent right will be no longer 
 enforceable. His only remedy will then be an appeal to the discretion 
 of the court, under one of the other subdivisions of section 126, And, 
 
OF rixrisr& the venue. — § 138. 665 
 
 if he fail in obtaining that relief, or neglect to apply for it, the trial 
 may be had in the county of original designation. Yide Houck vs. 
 Lasher^ supra; Yermont Central Railroad Company vs. Northern 
 Railroad Company, 6 How., 106 ; 1 0. K. (N. S.), 401 ; Ma/rsK vs. 
 Zowry, 26 Barb., 19T; 16 How., 41. Any gross abuse of the plaintiff's 
 power in this respect may, however, be corrected. See Percy vs. Sew- 
 ard, 6 Abb., 326. 
 
 {a.) Local Actions. — As to Eeal Estate. 
 
 In a suit for foreclosure, the county in which the property, or some 
 part of it is situate, is the only proper county, without regard to that in 
 which the loan may actually have been made. Miller vs. Hull, 3 
 How., 325 ; 1 C. E., 113. See also Ring vs. MoCov/n, vnfra. 
 
 So also in a suit, of whatever nature, seeking to create or enforce a 
 charge on specific property. Wood vs. Hollister, 3 Abb., 14 ; MaA/rs vs. 
 Remsen, 3 C. E., 138 ; StarTcs vs. Bates, 12 How., 465. Or in a suit 
 to compel a conveyance, on the ground of trust in the defendant. Ring 
 vs. McCoun, 3 Sandf., 524. 
 
 If, in a case of this description, the suit be brought in a court of 
 limited powers, not extending over the county where the property is 
 situate, the defect will be jurisdictional, and the question may be raised 
 by demurrer. Ring vs. McCoun, supra. 
 
 In a suit for specific performance of a contract, the Superior Court 
 held, however, that this rule did not apply, and that the contract, and 
 the act demanded in performance, being personal in their nature, the 
 case did not come within the terms of section 123, and the court had 
 jurisdiction. AuoTvmdoss vs. Nott, 12 L. O., 119. This doctrine, 
 however, seems somewhat doubtful. See Ring vs. McCoun, supra; 
 and also Newton vs. Bronson, 3 Kern., 58Y (590), per Denio, C. J. 
 
 As to the local jurisdiction of the same tribunal, of a contro- 
 versy affecting property within its limits, see Nichols vs. Romaine, 9 
 How., 512. 
 
 When taken in due time, the objection on the above ground is a 
 matter of right. See the above C2i&ei,, passim. But, when omitted to 
 be so raised, it will be waived, and a subsequent judgment, wherever 
 obtained, cannot be impeached for irregularity. Ma/rsh vs. Lowry, 26 
 Barb., 197 ; 16 How., 41. 
 
 "Where lands situate out of the state are the subject of the suit, the 
 provisions of section 123 are wliolly inapplicable, and the venue may 
 be laid in any county, otherwise proper. Newton vs. Bronson, 3 Kern., 
 587 ; Mussina vs. Belden, 6 Abb., 165. 
 
666 of fixing the vehtte. — § 138. 
 
 (5.) Against Public Officers. 
 
 As to the absolute right of a public officer, sued for an act done by 
 virtue of his office, to demand a trial in the county where the cause of 
 action arose, and as to the extent of the term, see Porter vs. Pillsbv^y, 
 11 How., 240 ; Parh vs. Carnley, 7 How., 355 ; The People vs. Binyes, 
 7 How., 248. 
 
 In the last case, it was held that this rule is imperative, even as 
 against the right of the people to lay the venue in any county, in an 
 action to which they are a party. When closely examined, Th-e People 
 vs. Cooh, 6 How., 448, does not seem to conflict with this view, the 
 action there being in the nature of a quo warranto, to try the title to an 
 office itself, and not in respect of any act done by virtue of that office. 
 
 "Where the act of an officer is wholly unauthorized, he will not be 
 entitled to the protection of the statute. An error in judgment, or 
 even an abuse of confidence, will not, however, avail to deprive him of 
 it, when that act is within the scope of his authority. See Brown vs. 
 Smith, 24 Barb., 419. 
 
 Under the Code, this objection will be waived, and the trial may be 
 had in any county, unless it be taken at the outset, by demand under 
 section 126, and a consequent order, if requisite. Houck vs. Lasher, 
 iY How., 520 (622). 
 
 By section 124, as it now stands, when read in connection with section 
 126, the former provisions at 2 E.. S., 409, section 3, to the effect that, 
 if it shall not appear on the trial that the cause of action arose within 
 the county of venue, the jury shall be discharged, and judgment of dis- 
 continuance rendered, appear to be clearly superseded. See, as to 
 waiver, under the old practice, by omission to raise the objection on 
 that occasion, HovdandYs. Willetts, 5 Sandf., 219 ; affirmed, 5 Seld., ITO. 
 
 (e.) Tbansitoet Actions. 
 
 In actions not of a strictly local nature, residence is made the crite- 
 rion, and the venue should properly be fixed in some county, in which 
 some one of the parties resides, at the commencement. Any of these 
 counties may be selected, at the option of the plaintiff, and, when 
 selected, will be the proper county. See Smohman vs. BuUer, 7 
 How., 462. 
 
 In GoodHch vs. VanderMlt, 7 How., 467, it is laid down as a general, 
 though not an imperative rule, that the place of trial, in a transitory 
 action, should be in the county where the principal transactions between 
 the parties occurred. The convenience of this rule is obvious, and it 
 will be well for a plaintiff to bear it in mind, in making his original 
 
OF FIXING- THE VENUE. — § 138. 667 
 
 choice, as tending to diminisli tlie probability of subsequent motions 
 upon the subject. 
 
 When all the parties are non-residents, the plaintiff's choice will, as 
 under the old system, be perfectly- unfettered. 
 
 And, a fortiori, in cases of this description, an omission on the part 
 of the defendant to take the objection in due time, will be a complete 
 waiver, and any county which the plaintiff may fix upon, whether 
 strictly the proper county or not, will then be admissible as the place 
 of trial. Vide Milligan ts. Brqphy, 2 C. E., 118 ; Souoh vs. Lasher, 
 supra. 
 
 When invoked, however, in due time, by a defendant, the principle 
 of residence will be controlling, and a change will be compellable, with- 
 out regard to other considerations, a motion for which -depends upon 
 other principles, and, if admissible, must be made subsequently, and in- 
 dependently. Moon vs. Gard/iier, 5 How., 243 ; 3 0. E., 224. See also 
 Yermont Central liailroad Company vs. Northern Railroad Compa/ny, 
 6 How., 106 ; 1 C. E. (IST. S.), 401 ; Oonroe vs. The National Protection 
 Insurance Company, 10 How., 403; Hubbard vs. The Same, 11 How., 
 149 (153) ; Park vs. Carnley, 1 How., 355 ; Ashins vs. Hearns, 3 Abb., 
 184 (190) ; New Jersey Zinc Company vs. Blood, 8 Abb., 147. The 
 two motions may, however, it seems, be brought on together, if the de- 
 fendant delays his application till after issue joined, and then, the ground 
 of convenience may prevail. Yide Mason vs. Brown, 6 How., 481. 
 
 A gross abuse in fixing the venue may, too, be collaterally corrected. 
 Where, therefore, the plaintiff had brought sixty-two separate actions for 
 the same libel, one in every county of the state, all parties being resi- 
 dent in Albany, a motion for consolidation and trial of the whole in 
 that county was granted, and the objection that separate motions should 
 have be'en made in each of the eight judicial districts, overruled. Percy 
 vs. Seward, 6 Abb., 326. 
 
 In actions to which the people are a party, the rule is, that the venue 
 may be laid in any county, they being equally resident in each, and a 
 chance cannot be enforced, on the ground of the residence of the de- 
 fendant. The People vs. Cooh, 6 How., 448. 
 
 For the purposes of the fixing of venue, a corporation will be con- 
 sidered as a resident of the county in which its ofiice is located, and. its 
 o^eneral business is carried on. Conroe vs. The National Protection 
 Insurance Company, 10 How., 403. Nor does the fact that they have 
 another office elsewhere, where some of their business is transacted, 
 avail to change this rule. Hubbard vs. The Same, 11 How., 149. 
 Where however, the business of the defendants is general,, and carried 
 on in a principal manner in more counties than one, each place of busi- 
 ness must be deemed a place of residence, and the venue may be fixed 
 
668 OF THE OOMPLAIH-T. — § 138. 
 
 accordingly. Pond vs. The Hudson Svver Railroad Convpamy, 17 
 How., 543. In The Vermont Gentral Railroad Company vs. The North- 
 ern Railroad Company, 6 How., 106 ; 1 C. E. (N. S.), 401, the court 
 declined passing upon the point — ^the decision resting upon other 
 grounds. 
 
 The decision in Pond vs. The Hudson River Railroad Company, 
 agrees with the general principle, that, for the purposes of the jurisdic- 
 tion of justices' courts, a railroad company will be considered as an 
 inhabitant of every county where its track is laid. Vide Johnson vs. 
 The Cayuga and Susquehanna Railroad Company, 11 Barb., 621; Sher- 
 wood vs. The Saratoga and Washington Railroad Company, 15 Barb., 
 650 ; Belden vs. The New York and Harlem Rail/road Compa/ivy, 15 
 How., lY. 
 
 It has been held, however, that a foreign corporation is not a resident 
 in any county of the state, though it may have, in one of them, an 
 office for the transaction of its business ; and that the proper county, 
 under such circumstances, will be that of the residence of the adverse 
 party. International lAfe Assurance Company vs. Sweetland, 14 Abb., 
 240. 
 
 In actions for a limited divorce, the common-law maxim that the 
 domicile of the wife follows that of the husband, will not necessarily 
 govern ; and the wife, so suing, is entitled to lay the venue in the county 
 of her actual residence at the commencement of the action, without 
 regard to the actual residence of the defendant, and her own late resi- 
 dence in another. Vence vs. Vence, 15 How., 497 ; affirmed, ibid., 576 ; 
 Vide 2 R. S., 147, section 50, siibdivisiou 3. See also, as to a total 
 divorce, 2 R. S., 144, section 37. 
 
 CHAPTER n. 
 
 or THE COMPLAINT. 
 
 This pleading answers to the declaration at common law, or the bill 
 in chancery, under the old practice. It contains the statement of the 
 case of the plaintiff, under which he seeks relief, and a definition of the 
 relief sought by him. It is, therefore, the foundation of the action, and 
 the original source of all other proceedings, down to the period of its 
 final termination. 
 
OF THE COMPLAINT, — § 139. 669 
 
 § 139. Formal Requisites. 
 
 Before entering on the essentials of this pleading, a few words on its 
 formal requisites will be proper. It must contain : 
 
 The title of the cause, specifying — 
 
 The name of the court in which the action is brought ; 
 
 The name of the county in which the plaintiff desires the trial to be 
 had ; and 
 
 The names of the parties to the action, plaintiff and defendant. Sec- 
 tion 142, subdivision 1. 
 
 {a.) Name of Couet. 
 
 Where both the summons and complaint omitted to state the name of 
 any court, it was held there was no suit pending, and a motion to amend 
 was refused. Ward vs. Stringham, 1 C. E., 118. 
 
 Where the name of the court, though absent from the complaint, has 
 appeared upon the summons, the courts have considered it their duty to 
 disregard the defect. Yates vs. Blodgett, 8 How., 2T8 ; Yan Namee vs. 
 Pedble, 9 How., 198 ; Yan Benthuysen vs. Stevens, 14 How., 70. 
 
 These, like many other cases of a similar description, ought in no wise 
 to be taken as an excuse for omitting to comply with so plain and simple 
 a requisition as that in question. Although it may be disregarded, such 
 an omission is unquestionably loose and bad practice. 
 
 (b.) Designation of Yenue. 
 
 This subject has been dwelt upon in the preceding chapter. An omis- 
 sion in this respect will receive a less indulgent construction than that 
 of the name of the court, and the naming of a county in the summons 
 will not avail to cure it. An amendment may, however, be granted. 
 Merrill vs. OHnnell, 10 How., 31 ; 12 L. 0., 286 ; Ilotchhiss vs. Crocker, 
 16 How., 336. These cases, taken together, seem to overrule Davison 
 vs. Powell, 13 How., 287, holding that, for the purposes at least of a 
 motion, the venue is sufficiently indicated, by the naming of a county in 
 the summons. The remedy for this species of defect is by motion, not 
 by demurrer. Yide Dorman vs. Kellam, 14 How., 184 ; 4 Abb., 202. 
 
 In courts of special jurisdiction, such as the E"ew York Superior Court 
 and Court of Common Pleas, the name of the court itself supplies all 
 necessary information, without any further designation of the county. 
 
 (c.) Names of Paeties. 
 
 These should be correctly inserted with all proper designations, where 
 necessary. 
 
670 01' THE COMPLAUfT. — § 139. 
 
 It is decidedly loose practice, and might be held a defect, to omit a 
 statement of the names of all the parties, and to use the common for- 
 mula of naming one, and adding the words et al., to signify that there are 
 others. In subsequent papers this may be admissible, but, as regards 
 the complaint, the wording of the section is clearly adverse to it. 
 
 Where the plaintiff sues as an officer, or by virtue of any special 
 authority, it is usual and proper, in stating the title, to add to his name 
 a designation, stating the special character in which he intervenes. This 
 designation must, however, be accompanied by a proper averment of 
 that character, in the body of the complaint. Standing alone, in the 
 title, it is a mere descrvptio personm, and will of itself be unavailing. 
 Sheldon vs. Soy^ 11 How., 11 ; Merritt vs. Seaman, 2 Seld., 168 ; White 
 vs. Joy, 11 How., 36. (E. B. ISTot affected as to this by the reversal, 3 
 Kern., 83, which proceeded on the ground of subsequent waiver.) 
 Blanchard vs. Strait, 8 How., 83. See likewise, Bank of Havana vs. 
 WioTcham, 7 Abb., 134 ; 16 How., 9Y ; also 288 ; Bright vs. Currie, 5 
 Sandf , 433 ; 10 L. 0., 104 ; Boot vs. Price, 22 How., 372 ; Hallett^%. 
 Ha/rrower, 33 Barb., 537. 
 
 A very short and general averment, if clear in its terms, will, how- 
 ever, avail to support the designation, where the plaintiff sues simply as 
 an officer. Smith ^%. Levins, 4 Seld., 472; Root \b,. Price ; HaUett 
 vs. narrower, sujpra. A special authority must, on the contrary, be 
 averred with sufficient fulness, to make it clearly apparent. 
 
 An omission to make a proper designation and averment, in the case 
 of a party suing as trustee, may involve a personal liability for costs. 
 Murray vs. Hendrichson, 1 Bosw., 635 ; 6 Abb., 96. 
 
 In Hill vs. Thacter, 3 How., 407 ; 2 C. E., 3, a description in the 
 title, of " Emily Hill, &c.," an infant suing by guardian, was sustained, 
 inasmuch as the name and appointment of her guardian appeared in 
 the body of the complaint. This is another case of the description 
 above alluded to. In correct practice, the title would have been, 
 " Emily Hill, an infant, by Daniel Hill, her guardian." 
 
 A misnomer of defendants renders the plaintiff liable to a motion to 
 set aside the complaint for irregularity. Elliott vs. Ha/rt, 7 How., 25 ; 
 Dole vs. Manley, 11 How., 138. 
 
 The power of a plaintiff, under section 175, to designate by a ficti- 
 tious appellation, a defendant, of whose real name he is for the time 
 ignorant, has been before noticed, and the cases cited, under the head of 
 SumTnons. 
 
 (d.) Other Questions. — ^Yaeiance. 
 
 It is not necessary that any date whatever should be inserted on the 
 face of the complaint. Maynard vs. Tallcott, 11 Barb., 569. 
 
OP THE COMPLAINT. § 140. 671 
 
 Care must be taken to avoid a variance between the complaint and 
 the summons, by praying general relief in an action for a money 
 demand, under section 129, subdivision 1, or the converse. If this eiTor 
 be committed, the complaint will be irregular, and liable to be set aside 
 on motion. See heretofore, under the head of Summons, and cases 
 there cited. See, especially among others, 7\t<<Ze vs. xSm^^A, 14 How., 
 395 ; 6 Abb., 329 ; Allen vs. Allen, 14 How., 248 ; Boington vs. Lap- 
 ham, 14' How., 360; Johnson -v?,. Paul, 14 How., 4.54; 6 Abb., 335, 
 note ; Rider vs. Whitloclc, 12 How., 208 ; Shafer vs. Humphrey, 15 
 How., 564; Damis vs. Bates, 6 Abb., 15. 
 
 (e.) Other Foemalities. 
 
 Especial care should be taken aa to plainly numbering, as well as 
 separately stating, distinct causes of action, as prescribed by rule 19. 
 As to the penalty to which an omission may subject a party making it, 
 see heretofore, under the head of Motion for Bedundanoy, and especially 
 Benedict vs. Seymour, and Blancha/rd vs. Strait, there cited. 
 
 Attention must also be paid to the requisites as to legible writing, 
 marking of folios, indorsement with the title of the cause, &c., &c., 
 prescribed by rule 20. 
 
 The fact that defects of this nature are easily and promptly waived, 
 and are likely, in most cases, to be disregarded if objected to, should 
 not by any one, aspiring to the title of a correct practitioner, be allowed 
 to form a pretext for the disregard of regulations, so obvious and so 
 generally useful, and' even convenient, in their purport, as the above. 
 
 § 140. Joinder of Camses of Action. 
 
 Several causes of action may now, under section 167, be joined in the 
 same complaint. 
 
 And this joinder may be effected, whether they be of a legal or 
 an equitable nature, or of both. 
 
 But only under the following restrictions : 
 
 1. They must all belong to one of the seven classes specified in the 
 section. 
 
 3. They must affect all the parties to the action. 
 
 3. They must not require different places of trial. 
 
 4. They must be separately stated. 
 
 The classification established is as follows. Causes of action are 
 capable of joinder as above, where they all arise out of — 
 
 1. The same transaction, or transactions connected with the same 
 subject of action. 
 
 2. Contract, express or implied. 
 
672 OF THE COMPLAINT. — § 140. 
 
 3. Injuries, with or without force, to person or property, or either. 
 
 4. Injuries to character. 
 
 5. Claims to recover real property, with or without damages for its 
 withholding, and also its rents and profits. 
 
 6. Claims to recover personal property, with or without damages for 
 its withholding. 
 
 7. Claims against a trustee, by virtue of a contract, or by operation 
 of law. 
 
 It is proposed to enter upon the treatment of this subject in the 
 following order : 
 
 First, as to its bearing, in a general point of view. 
 
 Second, to cite any cases specially applicable to the different classes 
 established. 
 
 Thirdly, to consider the different restrictions imposed upon the privi- 
 lege accorded. 
 
 {a.) General Bearing. , 
 
 Since the special provision to that effect inserted in the opening 
 clause, on the amendment of 1851, there is now no doubt left, as to the 
 power of a plaintiff to join claims for legal and equitable relief in the 
 same complaint. It is distinctly recognized and asserted to its full 
 extent, in Getty vs. T/ie Hudson Rwer Railroad Company, 6 How., 
 269 ; N&io Yorh Ice Company vs. Worth Western Insurance Convpa/ny, 
 23 N. Y., 357 ; 21 How., 296 ; 12 Abb., 414. 
 
 And alternative relief of the latter description, may be alleged and 
 obtained now as heretofore. Young vs. E&wards, 11 How., 201. 
 
 But although, as a general rule, claims of both natures are now capa- 
 ble of joinder, they must not be inconsistent in their nature, so as to 
 be legally incapable of collateral assertion. Thus equitable relief can- 
 not be obtained, in connection with a judgment for a forfeiture. The two 
 are incapable of combination, without violating a principle of law, and 
 the Code is only a system of practice. See Linden vs. Hepburn, 2 
 Sandf , 668 ; 5 How., 188 ; 3 C. E., 65 ; 9 L. O., 80 ; Lamport vs. 
 Abbott, 12 How., 340. 
 
 Nor has the Code changed the former rules in the above respects, or 
 given a right of action, where none existed before. Frost vs. Duncan, 
 19 Barb., 560. 
 
 Causes of action not falling within any of the specified classes, remain 
 subject to the former rules. Where inconsistent, they cannot be joined. 
 So held, as to a bill in the nature of a creditor's suit, and also claiming 
 partition of the property, an interest in which was sought to be charged. 
 Dewey vs. Ward, 12 How., 419. But in a suit for partition, defendant's 
 accounts may be taken, or claims involving interests in or liens upon 
 
OV TSE COMPLAINT. — § 140. 673 
 
 the property may be litigated as between co-defendants. Bogardus vs. 
 Parher, 7 How., 305. 
 
 The power of joinder, as given, does not carry with it any ulterior or 
 collateral operation, as to other incidents in a suit. Thus, a plaintiff, by 
 uniting in the same complaint, claims against the same defendant, in 
 part as a delinquent fiduciary, and in part on ordinary contract, was 
 held to have waived a previous arrest for the former. Lambert vs. Snow, 
 17 How., 517 ; 9 Abb., 91 ; 2 Hilt, 501. 
 
 The nature of the relief demanded in the complaint will be held to 
 determine the class to which an action belongs. SpaldAng vs. Spalding, 
 3 How., 297 ; 1 C. E., 64 ; Dows vs. Oreen, 3 How., 377. See also 
 Rodgers vs. Hodgers, 11 Barb., 595, and Bishop vs. Houghton, 1 E. D. 
 Smith, 566. 
 
 The power to join in one proceeding, separate claims, divisible in 
 their nature, does not involve the duty to do so, but they may, if 
 thought fit, be separately asserted. Secor vs. Stwrgis, 2 Abb., 69 ; 
 Staples vs. Goodrich, 21 Barb., 317 ; Oashman vs. Bean, 2 Hilt., 340 ; 
 16 N. T., 348 ; affirming sa/me case. 
 
 But, where not properly divisible, as in the case of simultaneous 
 breaches of a single contract, such claims must all be joined, or a 
 recovery in one separate action will bar any other. Goggins vs. 
 Bullwinkle, 1 E. D. Smith, 434. 
 
 The objection of misjoinder is one which, to be available, must be 
 taken by way of demurrer, and will be waived, if not so raised. See 
 Code, section 144r-148 ; Wright vs. Starrs, 6 Bosw., 600. 
 
 (5.) CLASSmOATION. 
 
 1. Connected Claims. 
 
 The rule established by subdivision 1, is of the most extended nature 
 and operation. 
 
 As above stated, it was first inserted on the amendment of 1851, and 
 would seem as if passed- expressly to obviate the limited construction 
 put upon the section, as it before stood, by Barculo, J., in Alger vs. 
 Scoville, 6 How., 131 ; 1 C. E. (IST. S.), 303, in relation to the union in 
 the same complaint, of causes of action, practically inconsistent accord- 
 ing to the former rules of pleading, though all strictly sounding in 
 contract, and arising out of the same transaction. 
 
 The doctrine of that case is, therefore, now so far untenable. The 
 same may be said as to that in Cahoon vs. The Ba/nk of JJtica, 4 How., 
 423 ; 3 C. E., 110 ; Same case, 7 How., 134 ; reversed, 7 How., 401 ; 
 Cobb vs. Dows, 9 Barb., 230, and Furniss vs. Brown, 8 How., 59. 
 
 . The following are instances in which the joinder of claims, otherwise 
 YoL. I.— 43 
 
674 OF THE COMPLAINT. § 140. 
 
 falling under different classes, lias been sustained, as arising out of the 
 same transaction : 
 
 A claim against a carrier for loss of goods, and also to recover freight 
 overpaid. Adwms vs. Bissell, 28 Barb., 382. 
 
 A claim of damages, for false representations inducing to a contract, 
 and also for breach of such contract, when made. Robinson vs. Flinty 16 
 How., 240 ; Y Abb., 393, note. See, however, Waller vs. Baskau, 12 
 How., 28. 
 
 A claim for damages for violation of an agreement for printing and 
 binding a work, and another for injuries to stereotype plates, while in the 
 use of the defendant for the purposes of that agreement. Badger vs. 
 Benedict, 1 Hilt., 414 ; 4 Abb., 176. 
 
 Assault and slander, both committed on the same occasion. Brewer 
 vs. Temple, 15 How., 286. 
 
 Claims for sums due under a building contract ; others for damages 
 for delay ; and a demand to set aside an award, on disputes growing out 
 of the same contract. See vs. Pa/rtridge, 2 Duer, 463. 
 
 Claims by the same plaintiffs, for the assertion of different liens on the 
 same property, and for relief against fraud, by which their discharge had 
 been obtained, were held capable of joinder, as arising out of the same 
 transaction in Yerrrbeule vs. Beck, 15 How., 333. 
 
 A claim for reformation of a contract, and another for damages, 
 for breach of it, as it should stand. Bidwell vs. The Astor Mutual 
 Insurance C&nvpany, 16 iN". Y., 263. 
 
 Causes of action by the same plaintiff, as devisee, in respect of rent of 
 a farm leased by the testator, accrued after his decease, and as executrix, 
 for breaches of covenant under the same lease, during the testator's life- 
 time, 'were held properly joined in Armstrong vs. Hall, 17 How., 76. 
 
 So also as to causes of action against executors, for rent due from their 
 testator, and likewise for a continued occupation by them in their rep- 
 resentative capacity. Pugsley vs. Aiken, 1 Kern., 494 ; reversing 
 sa/me case, 14 Barb., 114. 
 
 See likewise, as to joinder of claims arising out of a tenancy, against the 
 
 same defendant in different capacities. Lord vs. Vreelamd, 13 Abb., 195. 
 
 In Van Name vs. Van Name, 23 How., 247, it was held that an 
 
 action for recovery or assignment of dower, may include the damages 
 
 for withholding, or mesne profits. 
 
 Causes of action for moneys received on account of the estate of a 
 testator, and also for a note, part of such estate, biit payable to the 
 executor individually, were held not improperly joined in Welles 
 vs. Webster, 9 How., 251. 
 
 Where the subject-matter of the suit is identical, and the same judg. 
 ment is prayed against all defendants ; claims arising out of the same 
 
OP THE COMPLAmx. § 140. 675 
 
 transaction are capable of joinder, thotigli the liabilities of those defend.- 
 ants maj' have arisen from different causes, or under several contracts. 
 
 Thus, causes of action against a constable for different breaches of 
 duty, and also against his surety in respect of his official liability so 
 incurred, were held capable of joinder in Moo-re vs. Smith,10 How., 361. 
 
 A general suit to cancel a spui-ious issue of certificates, was held 
 maintainable against all persons who held them. JVew Ywh cmd N'eio 
 Haven Railroad Company vs. Schuyler, 17 JST. Y., 592 ; 7 Abb., 41 ; 
 reversing same case, 1 Abb., 417, where such a complaint was held 
 multifarious. 
 
 And a suit was held maintainable, by a party standing in relation of 
 stockholder and judgment-creditor of a corporation, against the corpo- 
 ration itself, against its other stockholders, on their individual liability, 
 and against its other creditors, with a view to ascertain and provide for 
 the rights and interests of all parties. Oeery vs. New York and Liver- 
 pool Steamship Company, 12 Abb., 268. Nor does the demand of 
 multiplicity of relief make the pleading multifarious. 8am/e case. 
 
 So, too, all pai'ties to a bond, though severally liable, may join or be 
 joined in the same suit, under the authority of section 120 of the Code. 
 Brainard vs. Jones, 11 How., 569. And this, though their claims may 
 differ as to character and amount. Loomis vs. Brown, 16 Barb., 325. 
 
 On similar principles, a mechanics' lien may now be sought to be 
 enforced against the owner, and a personal judgment claimed against 
 the contractor, in the same proceeding. 
 
 A creditor's bill has been held maintainable by more than one judg- 
 ment-creditor, against the judgment-debtor, and also against his fraudu- 
 lent grantees, claiming under different grants, on the ground that, in 
 fact, it was only one cause of action, all being equally concerned, though 
 under distinct interests. Hammond vs. Hudson River Iron and 
 Machine Co7npany, 20 Barb., 378 ; Morton vs. Weil, 33 Barb., 30 ; 11 
 Abb., 421 ; Eeed vs. Stryher, 12 Abb., 47 ; Newbold vs. Wa/rrin^ 14 
 Abb., 80. See also, as to joinder of both fraudulent assignor and 
 fraudulent assignee in one suit, Mott vs. Dunn, 10 How., 225. 
 
 So likewise, a claim for a partnership accounting, and a claim against 
 a third party fi-audulently holding part of the partnership property, 
 were held capable of joinder, as being a single cause of action, for an 
 accounting and application of the joint property, in Wade vs. Rusher, 4 
 Bosw., 537. 
 
 A grantee was also held entitled to join his grantor with warranty, 
 and the holder of an incumbrance, alleged to be, in fact, paid off, in 
 the same proceeding, with a view to obtain satisfaction of such incum- 
 brance, and a recovery over against the grantor, for any amount found 
 due on it. Wandle vs. Turney, 5 Duer, 661. 
 
676 OF THE COMPLAINT. § 140. 
 
 As to the power to settle dependent questions, in a suit for partition, 
 vide Bogardus vs. Parker, 7 How., 305. 
 
 Assignor and assignee, having a common interest in having a fraud- 
 ulent judgment cancelled, were also held to be properly joined as 
 co-plaintiffs in Monroe vs. Delavan,, 26 Barb., 16. 
 
 Allegations of conversion, and prayer for specific delivery of a chattel, 
 were held no misjoinder, and to be, in fact, a statement of one caiise of 
 action in Vogel vs. Badcock, 1 Abb., 176. The doctrine that a plaintiff 
 cannot frame his complaint, so as to recover either the property itself 
 or damages for its conversion, as held in Maxwell vs. Farnam, 7 How., 
 236, seems no longer tenable, under subdivision 1, as it now stands. 
 
 As to the power of a party to allege matters of fraud, by way of 
 inducement or explanation, in stating a cause of action, ex contractu, 
 without incurring the objection of misjoinder, vide Both vs. Palmer, 
 27 Barb., 652. 
 
 Separate demands, under one and the same right, may properly be 
 joined in the same action, and may properly be stated in one single 
 count. Longworthy vs. Knapjp, i Abb., 115. 
 
 Claims for specific performance of a contract to convey land, and 
 also for intermediate use and occupation, were held capable of joinder 
 in Spier vs. Bobinson, 9 How., 325. 
 
 So also, as to a suit for reformation and simultaneous foreclosure of a 
 mortgage. Bepeyster vs. Hasbrouch, 1 Kerri., 582. 
 
 So likewise, as to a suit demanding a judgment for moneys had and 
 received, and a claim to deliver up satisfied promissory notes, arising 
 out of the same transaction. Cahoon vs. The Bank of Utica, 7 How., 
 401 ; reversing scmie case, 7 How., 134. 
 
 In Badgers vs. Badgers, 11 Barb., 595, it was- held that a reversioner 
 might combine, in the same proceeding against the tenant for life, a 
 cause of action for wrongfully cutting wood, and also one for conver- 
 sion of the wood, when cut, where such causes affect the same parties. 
 
 The stating the cause of action in two sepai'ate counts, on different 
 assumptions, was held not to be a misjoinder, in Bi/rdseye vs. Smith, 32 
 Barb., 217. 
 
 Liberal as the above rule is in its terms and application, that applica- 
 tion will not, however, in all cases be indiscriminately granted. 
 
 Where two causes of action, though arising out of the same transac- 
 tion, or connected with the same subject, are, in themselves, radically 
 and wholly inconsistent in their nature, their joinder in the same plead- 
 ins: will be inadmissible. 
 
 See, as to the inconsistency of a claim for a legal forfeiture, in connec- 
 tion with one for equitable relief, Linden vs. Hejpburn, and Lam.pert vs. 
 Abhott, cited at the commencement of this section. 
 
OF THE COMPLAINT. — § 140. 67*7 
 
 Also, as to the incompatibility of a claim for damages in respect of a 
 . fraudulent sale of land, with one against the purchaser, for a reconvey- 
 ance or accounting, see Oaj'dner vs. Ogden, 22 N. Y., 32Y. 
 
 A cause of action for money received, and another for misfeasance in 
 neglecting to collect it, were held wholly incompatible, m Hunter y&. 
 Powell, 15 How., 221. So also as to a claim in asswmpsit for warranty 
 of a horse, and a count in fraud for wrongfully concealing his defects. 
 Sweet vs. Ingerson, 12 How., 331 ; Springstead vs. Lawson, 23 How.. 
 302. So also as to a suit, seeking to recover the value of goods from a 
 party whose representations had induced a sale, and also the price of the 
 same goods from the same party, as guarantor of payment. Waller 
 vs. Raskan, 12 How., 28 ; or to claim on accounting and judgment for 
 money intrusted to a party to buy goods, and misapplied, and also de- 
 livery of goods purchased with that money. Bank of Beloit vs. Beale, 
 20 How., 331 ; 11 Abb., 375. ^ 
 
 So likewise, as to the joinder of a claim by one tenant in common 
 against another, for an accounting ; with one against the same party, 
 for injuries to the property, and damages in respect of an injunction 
 obtained by him, in derogation of the plaintiff's rights, and denying 
 his title as co-tenant. Hall vs. Fisher, 20 Barb., 441. 
 
 So further as to the joinder of claims against a railway company for 
 killing animals, through defect in keeping up a proper fence ; with 
 another for breach of a contract for carriage of cattle. Colwell vs. The 
 New York and Erie Railroad Company, 9 How., 311. 
 
 In Budd vs. Bingham, 18 How., 494, it was held that a plaintiff 
 could not join causes of action for trespass and ejectment, and also tres- 
 pass guare clausum, fregit, as to the same premises, in the same com- 
 plaint. See also Frost vs. Duncan, 19 Barb., 560. 
 
 A claim in ejectment, by way of forfeiture for breach of a condition, 
 has been held incompatible with onefor damages, for breach of covenants 
 contained in the same agreement. Underhill vs. Saratoga and Wash- 
 ington Railroad Company, 20 Barb., 455. 
 
 So also, a claim in ejectment against a vendor, and an equitablq claim 
 that such vendor execute a conveyance. Lattin vs. McCarty, 17 How., 
 239 • 8 Abb., 225. Or, a claim for enforcement of a specific equitable lien 
 upon property, in connection with a demand for its possession, in re- 
 plevin. Otis vs. Sill, 8 Barb., 102. See likewise generally, as to the 
 incompatibility of ejectment with a demand for equitable relief, Onder- 
 donk vs. Mott, 34 Barb., 106. 
 
 On like principles, it has been held that a claim in ejectment for a 
 piece of land, cannot be asserted, in connection with one in damages for 
 obstructing a right of way over part of it. Smith vs. Hallook, 8 
 How., 73. 
 
6Y8 OF THE COMPLAINT. — § 140. 
 
 Ill Hulce vs. Thompson, 9 How., 113, it was held that two causes of 
 action, the one in ejectment for a house and one part of a farnr), and the. 
 other for trespass on other portions of the same property, committed by 
 the same defendant, who occupied both, were not connected with the 
 same, subject of action, and, as such, were improperly united. 
 
 Claims for an absolute and also for a limited divorce, are incompatible 
 in the same proceeding. Mcintosh vs. Mcintosh, 12 How., 289. 
 
 A "cause of action to restrain part owners of a vessel from disposing of 
 her in derogation of the rights of others-, was held incapable of joinder 
 with a cause of action for her hire, in Goster vs. The New Y^orlc and 
 Erie Rail/road Company, 6 Duer, 43 ; 3 Abb., 332 ; also 5 Duer, 677. 
 
 A cause of action against a debtor, on a sealed contract, and one against 
 a guarantor, by another sealed instrument in the same paper, were held 
 incapable of joinder, in De Ridder vs. Schermerhom, 10 Barb., 638. 
 So also as to a separate guaranty for goods sold, in connection with an 
 action against the purchaser. le Roy vs. Shaw, 2 Duer, 626 ; Spencer 
 vs. Wheelock, 11 L. 0., 329. 
 
 The same is the case, as regards a promissory note with a guaranty 
 written upon it. Allen vs. Fosgate, 11 How., 218. Or as regards an 
 action against a lessee and his surety. Phalen vs. Dingee, 4 E. D. 
 Smith, 379 ; Tihletts vs. Perey, 24 Barb., 39. 
 
 These cases proceed upon the view that the original liability and the 
 guaranty are separate and distinct contracts. See the law upon this 
 question as settled by Brewster vs. Silence, 4 Seld., 207. They must 
 be considered as overruling Enos vs. Thomas, 4 How., 48, holding 
 that two such instruments, taken together, were to be regarded as one 
 transaction. 
 
 In Sage vs. Masher, 28 Barb., 287, it was held that a common-law 
 judgment for damages, could not be sustained, in a suit brought for 
 equitable relief by way of creditor's bill. 
 
 A complaint, stating divers circumstances in relation to a contract for 
 sale, and injurious acts of the defendant as to the property, then pro- 
 ceeding to allege assault and battery, and lastly praying a general 
 judgment for damages, was held bad in Ehle vs. Haller, 10 Abb., 287 ; 
 Ehle vs. Holler, same case, but diiferent opinion, 6 Bosw., 661. 
 
 Where, in any respect, inconsistent in their nature, claims of a plain- 
 tiff in his own right, cannot be joined with claims held by him as ad- 
 ministrator of another, though both he and his intestate were tenants in 
 common of the same estate. Rail vs. Fisher, 20 Barb. 441. 
 
 So also, it was held generally, that an individual and representative 
 claim cannot properly be joined in the same action, in Lucas vs. The 
 New York Central Railroad Company, 21 Barb., 245. 
 
 And that judgment against a defendant personally, and also as trus- 
 
OF THE COMPLAINT. — § 140. 679 
 
 tee, cannot properly be sought together. Landon vs. Levy, 1 Abb., 
 876. See also McMahon vs. Allen, 1 Hilt., 103 ; 3 Abb., 89 ; also, 12 
 How., 39. 
 
 Nor can an action be brought, against the executor of a deceased part- 
 ner, and also against the survivor of the firm, unless inability to pro- 
 cure satisfaction from the latter is expressly charged. Voorhis vs. 
 Child's Executor, 17 N. T., 354 ; affirming saine case, 18 Barb., 592 ; 
 1 Abb., 43 ; Higgins vs. Rockwell, 2 Duer, 650 ; Tracy vs. Suydami, 
 30 Barb., 110. See also, as to the representatives of a deceased joint 
 owner, Buchnam vs. Brett, 22 How., 233 ; 13 Abb., 119 ; 35 Barb., 596 ; 
 also, collaterally, Pinchney vs. Wallace, 1 Abb., 82. See, howevei-, as 
 to assertion of a joint and several demand of this nature, by proceed- 
 ings in equity, Parker vs. Jackson, 16 Barb., 33. 
 
 The same was held, where the same party stood in the capacity of 
 survivor, and also in that of one of the executors of the deceased part- 
 ner. Morehouse vs. Ballow, 16 Barb., 289. 
 
 The above cases clearly overrule Ricart vs. Townsend, 6 How., 460. 
 
 An action against the personal representatives, and also the devisees 
 and heirs of the same testator, to recover a debt due from his estate, 
 will clearly be bad, even though the same parties be entitled to the - 
 whole property, both real and personal. The statute is imperative, and 
 requires the creditor, in all cases, to resort, to the personalty in the first 
 instance, and to the descended real estate in the second, before resorting 
 to property in the hands of devisees. The joinder in the same plead- 
 ing of causes of action against parties standing in these three several, 
 and, as it were, successive capacities, is therefore clearly incompatible, 
 and cannot be effected. Stewart vs. Kissam, 11 Barb., 271. See like- 
 wise Roe vs. Swezey, 10 Barb., 247. And, as to a similar proceeding 
 by a legatee, Gridley vs. Oridley, 33 Barb., 250. 
 
 A complaint, setting forth a liability on the part of the defendant, 
 partly joint and partly several, was held fatally defective, in Lewis vs. 
 Acker, 11 How., 163. 
 
 The payee of a note cannot claim to recover against both maker and 
 indorser, in the same action. Nor can he resort to an original sale ta 
 one, upon the credit of the other. The contracts were several. Yovng 
 vs. Knajpf, 7 Abb., 399, note. 
 
 And, in Palen vs. Lent, 5 Bosw., 713, a claim for a personal judg- 
 ment against the husband, and for enforcement of a lien against the 
 wife's estate, in respect of the sam6 note, were held incompatible. See 
 also generally, as to the impropriety of the joinder of incompatible 
 causes of action, Alg^ vs. Scoville, 6 How., 131, 1 C. K. (N. S.), 303, 
 before noticed. 
 
 The statement of several grounds of liability against the same de- 
 
680 or THE COMPLAINT. — § 140. 
 
 fendant, arising out of the same transaction, does not constitute a mis- 
 joinder. They are in fact one cause of action. Durant vs. Gardner, 
 19 How., 94; 10 Abb., 445. Nor is it a misjoinder, to pray for differ- 
 ent classes of relief, in respect of a single cause, as stated. Moses vs. 
 Walker, 2 Hilt., 536. 
 
 (c.) Othee Sobdivisions. 
 
 The principles which enter into the consideration of subdivision 1, are 
 so extensive in their scope, that the citation of the cases applicable to that 
 class anticipates, almost entirely, those having reference to the others. 
 
 A few, however, are governed by independent considerations. 
 
 Several causes of action on several judgments, were held to be prop- 
 erly joined in one suit, in The JBanh of British North America vs. 
 Suydam, 1 C. E. (N. S.), 325 ; 6 How., 379. 
 
 Crim. con. has been held to be an injury to the person. DelamaUr 
 vs. Russell, 4 How., 234; 3 C. E., 147. 
 
 Claims for damages for personal injury, consequential upon injuries 
 to property, forming the main subject of the suit, have been held prop- 
 erly joined. Howe vs. Peckham, 6 How., 229 ; 10 Barb., 656 ; ICE. 
 , (N. S.), 381 ; Grogam, vs. Lindemmi, 1 C. E. (E. S.), 287. These decisions 
 proceed upon general views, antecedent to the present framing of subdi- 
 vision 3, which clears up all doubt upon the n^atter. 
 
 Slander, libel, and malicious prosecution, are all capable of joinder 
 in the same proceeding. All are injuries to character. Majrim, vs. 
 Matteson, 8 Abb., 3 ; Watson vs. Haza/rd, 3 C. E., 218. 
 
 A claim against parties standing in the character of trustees, for a 
 ii-audulent conversion of property, was held to fall strictly within sub- 
 division 6, and that the fact that a breach of trust was incidentally 
 alleged, and an account prayed, did not change the character of the 
 action, or bring it within the scope of subdivision 7, so as to create a 
 misjoinder. Dennis vs. Kennedy, 19 Barb., 517. 
 
 On the other hand, proof of a rightful sale of property, but a wrong- 
 ful detention of its surplus proceeds, will defeat a recovery in a suit 
 brought for conversion, and bring the case within subdivision 7, as a 
 claim against a trustee by operation of law, so as to eifect a misjoinder. 
 Pettit vs. King, 5 Seld. Notes (Dec. 31st, 1853), p. 36. 
 
 Claims against a defendant personally, and as trustee, cannot be joined. 
 Landon vs. Levy, 1 Abb., 376. 
 
 « 
 
 Eesteiotions. 
 {d.) 1. All must helong to o^ie Class. 
 The first restriction, *. e., that causes of action, to be capable of 
 joinder, must all belong to one of the seven classes above specified, has 
 
OF THE COMPLAINT.^ — § 140. ' 681 
 
 been substantially considered in the two preceding subdivisions, and 
 will not require, therefore, any separate observations. 
 
 Subdivision 1, as it now stands, is of so extended a scope, that few if 
 any cases where causes of action are not radically inconsistent, will fail to 
 be comprised within it, and the cases of radical inconsistency have been 
 ah'eady noticed. Before the insertion of that subdivision, the provision, 
 as it then stood, had received a stricter construction, and the incompati- 
 bility of xmiting causes, properly belonging to different subdivisions, 
 though all, in a wider sense, arising out of contract, was $rmly main- 
 tained in Alger vs. Sooville, 6 How., 131 ; ICE. (K S.), 303, before 
 cited. 
 
 (e.) 2. All Paeties must be Affected by the Causes Joined. 
 
 On this point, the decision in Alger vs. Scoville, although, in its wider 
 scope, its authoi'ity is impaired by the subsequent insertion of subdivis- 
 ion 1, is still of authority, and would be good law, under the section as 
 it now stands. 
 
 The old form of declaring in ejectment, by separate counts in the 
 names of different plaintiffs, is, under the Code, no longer admissible 
 St. John vs. Pierce, 22 Barb., 362. 
 
 So also is the statement of separate causes of action, in different counts, 
 some directed against a portion, others against the whole of the defend- 
 • ants. Wells vs. Jewett, 11 How., 242. So also, where one cause stated 
 would give an action to the plaintiff alone, and another to the plaintiff, in 
 common with others. Bell vs. Mali, 11 How., 254. A plaintiff, too, 
 cannot demand alternative relief, in two different capacities, one per- 
 sonal, and the other as a member of the public. Wa/rwiok vs. The Mayor' 
 of New York, 28 Barb., 210; 16 How., 357; 7 Abb., 265. 
 
 A claim for equitable relief against a corporation, and one for dam- 
 ages against individual directors, were held incapable of joinder, in 
 House vs. Cooper, 30 Barb., 167 ; 16 How., 292. 
 
 A complaint in the nature of a bill of peace and interpleader, filed by 
 a company, against all holders of a fraudulent issue of stock, is admis- 
 sible because, though the interests of the defendants are several, still 
 all' are equally affected by the relief sought. JSfew York amd New 
 Ha/ven Railroad Company vs. Schuyler, 17 N. Y., 592 ; 7 Abb., 41 ; 
 reversing same case, 1 Abb., 417, before cited. See also, as to similar 
 proceedings, Geery vs. New York and Liverpool Steam Ship Company, 
 12 Abb., 268. 
 
 Where all the parties are in some manner affected by the causes 
 
 ioined, though in unequal degrees, the joinder will be admissible. 
 
 Yermeide ts. Beck, 15 How., 333. See also, as to several claims for 
 
 rent against joint assignees of a lease, Yam, Rensselaer vs. La/ym,an, 10 
 
682 OF THE COMPLAINT. § 140. 
 
 How., 505. See likewise, generally, Wandle vs. Turney, 5 Duer, 661, 
 before cited. 
 
 But, where the interests of defendants are several, and not arising out 
 of one and the same subject, a plaintiif cannot join demands for relief 
 against them, though such relief be of the same nature as regards all. 
 
 So held, wliere the plaintiffs sought to annul different contracts for 
 sale of securities, made with different persons, by an agent, in violation 
 of his authority. It was held that separate suits must be brought 
 against the several purchasers, the agent being joined in each. Lexing- 
 ton and Big Sandy Railroad Company vs. Goodman, 25 Barb., 469 ; 
 15 How., 85 ; 5 Abb., 493. 
 
 So also, in a creditor's action, it was held that the plaintiff could not 
 join a claim against the assignor and assignee, in respect of a fraudulent 
 assignment, with others, seeking to set aside yarious other fraudulent 
 conveyances made by the debtor to other persons, at different times, no 
 connection between them, or privity among the different transferees 
 being shown. Reed vs. Stryker, 6 Abb., 109. In Jacot vs. Royle, 18 
 How., 106, it was held, on the contrary, that the plaintiff might include 
 in one suit, a claim to set aside two several conveyances, fraudulently 
 made by a judgment-debtor to several grantors, on the ground that the 
 cause of action, as regarded both, in connection with the judgment- 
 debtor, was single. 
 
 A suit by an infant, after his majority, seeking to avoid two separate 
 grants to different persons, and not only joining both, but also sub- 
 purchasers from one of them, was held to be badly brought. Yoorhies 
 vs. Voorhies, 24 Barb., 150. 
 
 Claims by the commissioners of highways, in two separate tovras, 
 for an encroachment, cannot be maintained in the same action. Brad- 
 ley vs. Blair, 17 Barb., 480. 
 
 A husband and wife cannot maintain a joint action for several 
 services. Avogadro vs. Bull, 4 E. D. Smith, 384. 
 
 So also held, as to a claim, seeking relief against a wife's estate, and a 
 separate money judgment against her husband, in Sexton vs. Fleet, 2 
 Hilt., 477 ; 15 How., 106 ; 6 Abb., 8. 
 
 A complaint, demanding a joint judgment, but only alleging facts 
 sufficient to show several liabilities, was held bad, in Hess vs.* The Buf- 
 falo and Niagara Falls Rail/road Company, 29 Barb., 391. 
 
 .The joinder of two claims in respect of the same premises, the one 
 against both defendants, for recovery of possession and damages, the 
 other against one only, for rents received, was held to be incompatible, 
 in Tompkvns vs. White, 8 How., 520. See also, as to a claim for damages 
 against a broker, and for a reconveyance and accounting against a 
 purchaser of property, Oa/rdm&r vs. Ogden, 'iH, N. Y., 327. 
 
OF THE COMPLAINT. — § 140. 683 
 
 (/".) 3. Separate Places oe Teial. 
 
 The third restriction, *. e., that tlie causes of action joined must not 
 require separate places of trial, has not been made the subject of any 
 specific decision. 
 
 The inconvenience would be too obvious, nor is the question likely 
 to be of frequent occurrence. 
 
 {g.) 4r. Sepaeate Statement. 
 
 The last requisition imposes the condition that, if separate causes of 
 action are sought to be asserted in the same proceeding, they must be 
 separately stated. 
 
 This subject has been, to a certain degree, anticipated in a previous 
 section (125), in considering the provision of rule 19, that distinct 
 causes of action, &c., shall not only be separately stated, but plainly 
 numbered. See that section and the cases there cited. 
 
 The separation to be so made, must be in a manner equivalent to that 
 adopted in framing separate counts in a declaration under the old 
 practice. Durhee vs. The Saratoga and Washington Railroad Com- 
 joany, 4 How., 226 ; Pihe vs. Van Wormer, 5 How., 171. 
 
 In Benedict vs. Seymour, 6 How., 298, the doctrine is rigidly laid 
 down, and it is held that a defect in this respect will render all alle- 
 gations, not tending to constitute a single cause of action, liable to be 
 stricken out as redundant. The words, " And for a further cause of 
 action the plaintiff complains," &c., are also suggested, though not 
 imperatively, as a proper mark of separation. , See similar views as to 
 separation of grounds of defence, in Lippincott vs. Goodwin, 8 How., 242. 
 
 Each separate cause of action must, as stated, be complete in itself, 
 and must stand by itself. Lattin vs. McCarty, 17 How., 239 ; 8 Abb., 
 225. Defects in one, cannot be supplied by reference to another. 
 Landon vs. Levy, 1 Abb., 376 ; Sinclair vs. Fitch, 3 E. D. Smith, 677. 
 Preliminary allegations may be made, however, applicable to different 
 counts if properly connected with them, so that each cause in itself, 
 and by reference to such general statements, will be perfect. Same 
 
 case. 
 
 Some discussion has arisen as to the mode of taking the objection, 
 some few decisions maintaining that it can be taken by demurrer, but 
 a controlling majority, that motion is the proper remedy. The necessity 
 of a proper separation being made, and the validity of an objection to the 
 complaint, on the ground of a neglect in this particular, is maintained 
 in the following series of decisions, in addition to those above referred 
 to : Getfiy vs. The Hudson Biver J^ailroad CompSiy, 8 How., 177 ; 
 Goodmg vs. McAllister, 9 How., 123 ; Van Namee vs. Peolle, 9 How., 
 
 t5 
 
684 OF THE COMPLAINT. § 141. 
 
 198 ; Wood vs. Anthotiy, 9 How., 78 ; Strauss vs. Parker, 9 How., 342 
 RoUnson vs. Judd, 9 How., 378 ; Woodbury vs. Saohrider, 2 Abb., 402 
 Harsen^s. Baymid, 5 Duer, 656 ; Pechham vs. SmMh, 9 How., 436 
 Moore vs. /Sro^iSA, 10 How., 361 ; Accome vs. The American Mmeral 
 Corwpany, 11 How., 24 ; Forsyth vs. JEdmiston, 11 How., 408 ; TTaZZe/- 
 vs. Baskan, 12 How., 28; Dorman ys. Kellam, 14 How., 184; 4 Abb., 
 202 ; Badg.er vs. Benediet, 1 Hilt., 414 ; 4 Abb., 176. See also, col- 
 laterally, White vs. Low, 7 Barb., 204, as to the assertion of several 
 liabilities in one action. 
 
 This provision, as to separation, does not, however, impose any 
 necessity of doing so, with reference to separate items under the same 
 right, and which, therefore, may be properly included in one state- 
 ment. Longworthy vs. Knajyp, 4 Abb., 115. 
 
 And, where there are numerous items of such a description, belonging 
 to distinct classes, a separation of them by classes, stating each class as a 
 distinct count, is the proper course. Adams vs. Holley, 12 How., 326. 
 
 The fact that the pleader has taken upon himself to separate and 
 state in different counts, different claims, which, in fact, only constitute 
 one single cause of action, will not render the pleading demurrable. 
 HillmanY&. Hillman, 14 How., 456. 
 
 § 141. Actions Sounding in Tort, OeneraUy Gonsid&red. 
 
 It is proposed to consider, in the first place, some matters of general 
 bearing, and then to consider in detail, the averments appropriate to 
 this class of actions. 
 
 (a.) General Consideeatioh's. — Jueisdiction. • 
 
 Where an action for a wrong, not redressable at common law, is 
 given by special statute, the operation of that statute is local, and the 
 courts cannot entertain jurisdiction, where the wrongful act complained 
 of has occurred within the limits of another state, unless the laws of 
 that state give similar redress. In this latter case, the action must be 
 brought under those laws, and they must be averred and proved as 
 facts. Vandeventer vs. The New York and New Haven Railroad Com- 
 jpamj, 27 Barb., 244 ; Beach vs. Tlie Bay State Company, 30 Barb., 
 433 ; 18 How., 335 ; reversing same case, 27 Barb., 248 ; 16 How., 
 1 ; 6 Abb., 416 ; Whitford vs. The Pamama Railroad Company, 23 
 ]Sr. Y., 465 ; affirming same case, 3 Bosw., 67; Crowley vs. The Sams, 
 30 Barb., 99. 
 
 In Molorvy vs. f)ows, 8 Abb., 33^, it was held that an action could 
 not be maintained, for assault and false imprisonment committed in 
 
OF THE COMPLAHiTT.- -§ 141, 685 
 
 California. The case seems, however, to have been hastily- decided, 
 (p. 326), the remedy not being statutory, but lying at common law. 
 
 (h.) Election. 
 
 In cases where the wrong complained of arises out of the violation 
 of a contract, express or implied, the plaintiff has, as formerly, his 
 election, whether; he will maintain his acti<m for the wrong, or, waiving 
 the tort, sue only for the breach of contract. Hinds vs. Tweedle, 7 
 How., 278 (281) ; MoKnight vs. JDunlop^ 4 Bai'b., 36 ; Bows vs. Green, 
 3 How., 377; Sellar vs. Sage, 12 How., 531 ; Fish vs. Ferris, 5 Duer, 
 49 ; Eider vs. Whitloch,^ 12 How., 208 ; Both vs. Palmer, 27 Barb., 
 652 ; CJiambers vs. Lewis, 2 Hilt., 591 ; 10 Abb., 206 ; Henry vs. Mar- 
 vin, 3 E. D. Smith, 71 ; Fowler vs. Abrams, 3 E. D. Smith, 1 ; Kayser 
 vs. Sichel, 34 Barb., 84. 
 
 Having made such election, the plaintiff will be bound to abide by 
 it, with all its consequences. If the suit be brought by him in tort, he 
 will be bound to full proof of his case in that form, and cannot take a 
 mere money judgment, should his proof fall short of what is requisite, 
 and only establish a liability ex contractu. Walter vs. Bennett, 16 
 N. T., 250; Slamson vs. Gonhey, 10 How., 57 ; 1 Abb., 228 ; Springstead 
 vs. Lawson, 23 How., 302. The form of summons will be material, 
 and may be controlling, in determining in which form the action is 
 brought. Rider vs. Whitlook, supra. See likewise next case, and At- 
 welly?,. LeBoy, 15 How., 227 ; 4 Abb., 438. 
 
 If the statement of facts shows the commission of a wrong, and the 
 prayer for relief is not inconsistent, the action will be considered as 
 sounding in tort. Ghambers vs. Lewis, 2 Hilt., 591 ; 10 Abb., 206 ; 
 affirmed, 11 Abb., 210. See also, generally, Atwell vs. Le Boy, supra. 
 But where the allegation of a wrong is simply by way of inducement, 
 and the action otherwise sounds in contract, it will not govern. Both 
 vs. Palmer, supra. See also Boedt vs. Wiswall, 15 How., 128. 
 
 On the other hand, a plaintiff, commencing his action in one form 
 and continuing it in another, will lose the benefit of an antecedent 
 provisional remedy. So held, as to a change from replevin to trover, 
 Seymour vs. Van Guren, 18 How., 94. As to the addition of a second 
 cause of action arising purely in contract, to one sounding in tort, and 
 on which a previous arrest had been granted. Vide Lambert vs. Snow, 
 2 Hilt., 601 ; 17 How., 517 ; 9 Abb., 91. 
 
 And, where the plaintiff took a money judgment, for funds intrusted 
 to an agent and misapplied, it was held that he thereby waived all 
 claim to property purchased with those funds. Banh of Beloit vs. 
 Beah, 20 How., 331 ; 11 Abb., 375. 
 
 Where the complaint merely stated a cause of action capable of 
 
686 OF THE COMPLAINT. — § 141. 
 
 either construction, but' vnthout any positive election, a judgment, just- 
 ified by the allegations, was sustained. Hudson River Railroad Com- 
 pa/ny vs. Lounsberry, 25 Barb., 597. See also Yertore vs. Wiswall, 16 
 How., 8. And causes of action, sounding both in tort and in contract, 
 have been held capable of joinder in the same complaint, when arising 
 out of the same transaction. Robinson vs. Flint, 16 How., 240 ; 7 
 Abb., 393, note. 
 
 By waiving the tort, or neglecting to allege it in proper form, a 
 plaintiff may be held as having elected to sue on contract, and may 
 thus let in a defence, which would otherwise be inadmissible. So held 
 as to the defence of infancy. Munger vs. Hess, 28 Barb., 75. 
 
 Retention of any part of the consideration on a fraudulent contract, 
 will waive the tort, and bar a suit for its rescission. Such consider- 
 ation must be restored, or restoration offered. Fisher vs. Conant, 3 
 E. D. Smith, 199. So likewise as to retention of any benefit derived 
 from such a contract. Rosenhaum vs. Gunter, 3 E. D. Smith, 203. 
 
 (c.) Relation of Employer and Employee. 
 
 The subject of this relation, and the responsibilities arising out of it, 
 enters largely into the consideration of actions for injuries to person or 
 property, and its preliminary and separate consideration may therefore 
 be the more convenient course. 
 
 The rule may be broadly and definitely laid down, that the master or 
 employer, whether a natural person or body corporate, is liable for any 
 negligent or wrongful act, committed by his or its servant or employee, in 
 the regular course, and within the scopfe cif his employment or authority. 
 Weed vs. The Panama Railroad Company, 17 N. Y., 362 ; Russell vs. 
 Livingston, 16 N. Y., 515 ; Ransom vs. The New York and Erie Rail- 
 road Company, 15 N. Y., 415 ; Smith vs. The New York and Harlem 
 Railroad Company, 19 K Y., 127; affirming same case, 6 Duer, 225; 
 Weynant vs. The New York and Harlem Railroad Company, 3 Duer, 
 360 ; Wright Ys. The New York Central Railroad Company, 28 Barb., 
 80 ; Russell vs. The Hudson River Railroad Company, 5 Duer, 39 ; but 
 see reversal, 17 ¥. Y., 134 ; Althof \%. Wolfe, 22 IST-Y., 355 ; affirming 
 same case, 2 Hilt., 344 ; Blackstock vs. The New York and Erie Rail- 
 road Company, 1 Bosw., 77 ; affirmed, 20 IST. Y., 48 ; Wolfe vs. Mer- 
 sereau, 4 Duer, 473 ; Chapman vs. The New York Central Railroad 
 Company, 31 Barb., 399; Hanveyvs. City of Rochester, 35 Barb., 177. 
 See also as to negligence, Rrown vs. New York Central Railroad Com- 
 pany, 31 Barb., 385 ; disapproving Knajjp vs. Bugg, 18 How., 165 ; 
 Porter vs. New York Central Railroad Company, 34 Barb., 853 ; San- 
 ford vs. Eighth Avenue Railroad Company, 23 N. Y. 343. 
 
 Where, however, injury is occasioned by reason of the act of a tliird 
 
OF THE COilPLAINT. — § 141, 687 
 
 person, not employed at the time in the service of the common em- 
 ployer, the latter will not be liable. Weldon vs. The Ha/rlem Bail/road 
 Compamy, 5 Bosvf., 576. 
 
 And the master will be liable for gross negligence of this nature, even 
 although the contract with the plaintiff provided that the latter is to 
 assume all ordinary risks. WeUs vs. The Steam Nomigation Company, 
 4 Seld., 375. 
 
 The fact that a party injured is carried gratuitously, will not discharge 
 the liability. Nolten, vs. The Western Railroad Corporation, 15 N. Y., 
 444 ; 10 How., 97. See however, as to a special contract for exemption 
 from liability in such cases, BosweU vs. Hudson River Railroad Com- 
 pany, 10 Abb., 44:2. l^or will the contract for carriage having been made 
 with another, and not with the party injured, be available as a defence. 
 
 So also as to wrongs committed by an agent, within the scope of his 
 authority. Hunter vs. Hudson River Iron a/nd Machine Company, 20 
 Barb., 193. And one partner is similarly liable for the torts of another, 
 or of that other's servant, committed in the course of the partnership 
 business. Cotter vs. Bettner, 1 Bosw., 490. 
 
 The common employer is not liable, however, to one of its servants 
 or employees, for injury occasioned by the negligence of another, in the 
 course of their common employment. JBoldt vs. The New York Cen- 
 tral Railroad Comparvy, 18 N. T., 432; Karl vs. MaiUa/rd, 3 Bosw., 
 591 ; Russell vs. The Hudson Rvver Rail/road Company, 17!N'.T., 134 ; 
 reversing same case, 5 Duer, 39 ; Sherman ys. The Rochester and Syra- 
 cuse Railroad Company, 17 IST. Y., 153 ; affirmingsasOT^ case, 15 Barb., 
 574 ; Coon^B. The Syracuse and TJtica Railroad Company, 1 Seld., 492. 
 
 There is, however, no privity between the corporation and the serv- 
 ants of its contractor, and it is under the same liability for injuries done 
 to the latter, as if they were not connected with the works. Yowng vs.. 
 The New Yorh Central Railroad Company, 30 Barb., 229. 
 
 But, generally, the rule is otherwise, where the injury complained of 
 results in any manner from negligence on the part of the common em- 
 ployer or principal. Wright vs. The New Yorh Central RaMroad Com- 
 pany, 28 Barb., 80; Keegam, vs. The Western Railroad Company,^ 
 Seld., 175 ; Byron vs. The New York State Printing Telegraph Com- 
 pany, 26 Barb., 39. 
 
 In order to make the employer liable to his servant, for injuries re- 
 ceived in the course of his employment, from defects of machinery, &c., 
 notice of such defect to the employer should be alleged and proved. 
 MoMellan vs. The Saratoga amd Washington Rail/road Company, 20 
 
 Barb., 449. 
 
 For the wilful torts of the servant or agent, committed beyond the 
 scope of his authority, or out of the regular course of his employment, 
 
688 OF THE coMPLArsrr. — § 141. 
 
 the principal or employer will not be liable. New York Life Insurance 
 and Trust Oompdrvy ts. Beebe, 3 Seld., 364 ; Mechanics' Banh vs. The 
 New Yorh and New Haven Railroad Company, 3 Kern., 599 ; 4Duer, 
 570 ; reversing same case, 4 Duer, 480 ; Steele vs. Smith, 3 E. D. Smith, 
 321 ; Wintersen vs. The Eighth Avenue Railroad Company, 2 Hilt., 389. 
 See also, as to the use of necessary force for a lawful purpose, Hihha/rd 
 vs. The New Yorh and Erie Railroad Company, 15 IST. Y., 455 (467), 
 per Brown, J. This rule does not apply, however, to the case of a strike 
 by the servants of a railroad company, in a suit, by one of the public 
 injured by its consequences. BlacTestocTc vs. The New Yorh and Erie 
 Railroad Company, 1 Bosw., 77 ; affirmed, 20 N. T., 48. 
 
 The liability of a master, only extends to his immediate servants 
 whose acts he can control. A lessor therefore is not responsible for 
 the acts of a servant of his lessee. Blackwell vs. Wiswall, 24 Barb., 
 355 ; 14 How., 257 ; Norton vs. Wiswall, 26 Barb., 618. Or the owner, 
 for those of a servant of a contractor. Vanderpool vs. Husson, 28 Barb., 
 196 ; Gilbert vs. Beach, 4 Duer, 423 ; Potter vs. Seymour, 4 Bosw., 
 140 ; Gilbert vs. Beach, 5 Bosw., 445. 
 
 Nor is a vendor answerable for the negligence of a servant of the 
 purchaser, in removing goods sold, though the injury arises in the use 
 of such vendor's appliances for moving such goods. Stevens vs. Arm- 
 strong, 2 Seld., 435. 
 
 But, if a servant employ a subagent, to do an act within the scope of 
 that servant's authoiity, the master will be liable for the subagent's 
 negligence. Simons vs. Momer, 29 Barb., 419. See also Althof vs. 
 Wolf, 2 Hilt., 344. 
 
 A municipal corporation is not liable for the negligence of a servant 
 of its contractor or grantee. Pach vs. The Mayor of New Yorh, 4 
 Seld., 222 ;, Blake vs. Ferris, 1 Seld., 48 ; Lockwood vs. The Mayor 
 of New York, 2 Hilt., 66 ; Eelly vs. The Mayor of New York, 1 Kern., 
 432 ; Same case, 4 E. D. Smith, 291. See, as to the liability of the 
 contractor himself in such a case, McCleary vs. Eent, 3 Duer, 27. 
 
 So also, where an obstruction was occasioned by the act of one of its 
 own citizens, and notice of such obstruction was not shown to have 
 been received by its officers, the corporation was held not liable. 
 Griffin vs. The Mayor of New York, 5 Seld., 456 ; McGinity vs. The 
 Same, 5 Duer, 674. 
 
 But, where any negligence in not repairing is imputable to the corpo- 
 ration itself, it will be liable. Wallace vs. The Mayor of New York 
 2 Hilt., 440 ; 18 How., 169 ; 9 Abb., 40 ; Butson vs. The Same, 5 
 Seld., 163. 
 
 So also, will it be held for the negligence of its subordinate officers, 
 or persons standing in that relation. Conrad vs. The Trustees of 
 
OF THE COMPLArNT. — § 141. 689 
 
 the Village of Ithaca, 16 N. Y., 158 ; EicTcoh vs. The Trustees of 
 the Village of Plattslurgh, 16 N. Y., 161, note; Storrs vs. The (My 
 of mica, 17 N. Y., 104. 
 
 And, where an injury is occasioned, not through any fault of the 
 contractor or his servants, but as the result of an act which the corpo- 
 ration by their contract direct to be done, it will be answerable, 
 Lockwood vs. The Mayor of New York, 2 Hilt., 66. 
 
 And the same rule is applicable to a contract by an individual owner. 
 Or, when an act of the contractor creates a nuisance, and he suffers it 
 to remain. GiCberi vs. Beach, 4 Duer, 42.3. See also Vanderjpool vs. 
 Susson, supra. 
 
 And especially, if a person interferes with .the rights of the public, by 
 excavation under a highway, without special authority, he does so at 
 his peril. Congreve vs. Morgan, 5 Duer, 495 ; affirmed, 18 IST. Y., Y9. 
 See previously in same case, 4 Duer, 439. As to the general respon- 
 sibility of a principal for the wrongs of his agent, see Thomas vs. WvAn 
 Chester, 2 Seld., 397 
 
 (<?.) Of the Atteibtjtion of Negligence. 
 
 Another general rule, applicable to most cases of actions for personal 
 injury from accident, and to many of those for injuries to property, is 
 this, that, in order to a recovery by a plaintiff, he must not merely 
 show negligence on the part of the defendant, but also that such acci- 
 dent occurred, without fault or negligence on his own part. 
 
 A large proportion of the cases by which this rule is established, 
 relate to accidents on railroads and other public conveyances. It is 
 proposed to cite some of the more recent and prominent of these in the 
 first instance, and those of other or more general application subse- 
 quently. 
 
 The burden of proof of carelessness rests, in the first instance, upon 
 the plaintiff. The mere fact of injury does not, per se, throw upon the 
 defendant that of disproving negligence. The presumption of a want 
 of proper care may, however, arise from circumstances attending the 
 injury ; in this case, the burden shifts, and the defendant must show 
 that the injury is not attributable to any fault on his part. HoWrook 
 vs. The Utica and Schenectady Rail/road Compamy, 2 Kern., 236 ; 
 Curtis vs. Rochester and Syracuse Mail/road Company, 18 N. Y., 534 ; 
 Brehon vs. Great Western Railroad Company, 34 Barb., 256. 
 
 But, when the presumption has once been established against a 
 carrier of passengers, he is then held to prove that the accident resulted 
 from circumstances, against which the utmost prudence and foresight 
 could not guard. Bowen vs. The New York Central Railroad Com- 
 parvy, 18 N. Y., 408. 
 Vol. I.— 44 
 
690 OF THE COMPLAINT. — § 141. 
 
 In Button vs. The Hudson River Railroad Company, 18 N. T., 348, 
 it is laid down that, in an action of this class, the plaintiff must show 
 affirmatively, that he is guiltless of any negligence, proximatively 
 contributing to the injury. It is not, however, to be presumed against 
 him, and, therefore, direct evidence is not required in the first instance ; 
 but, where there is conflicting testimony, the preponderance must be in 
 his favor. 
 
 The rule is thus laid down by Denio, J., in the later case of Johnson 
 vs. The Hudson Rimer Railroad Company, 20 E". Y., 65 (73) : " The 
 jury must eventually be satisfied that the plaintiff did not, by any 
 negligence of his own, contribute to the injury. The evidence to 
 establish this may consist in that ofi'ered to show the nature or cause 
 of the accident, or any otlier competent proo* To carry a case to the 
 jury, the evidence on the part of the plaintiff must be such' as, if 
 believed, would authorize them to find that the injury was occasioned 
 solely by the negligence of the defendant. It is not absolutely neces- 
 sary that the plaintiff should give any affirmati"^e proof, touching his 
 own conduct on the occasion of the accident. The character of the 
 defendant's delinquency may be such as" to y^oyb, prima facie, the 
 whole issue ; or the case may be such as to make it necessary for the 
 plaintiff to show, by independent evidence, that he did not bring 
 the misfortune upon himself. No more certain rule can be laid down." 
 Gross negligence on the part of the plaintiff will defeat his action, 
 though the defendants may have omitted some prescribed precau- 
 tion, or even been also guilty of negligence themselves. Steves vs. 
 Oswego am,d Syracuse Railroad Compamy, 18 N. Y., 422. See also 
 Brooks vs. TJie Buffalo and Niago^ra Falls Railroad Compamy, 25 
 Barb., 600 ; affirmed by Court of Appeals, vide 27 Barb., 532, note ; 
 Brendell vs. The Buffalo and State Line Railroad Company, 27 Barb., 
 534, note ; Dascomh vs. The Same, 27 Barb., 226 ; MacTcey vs. The 
 New YorTi Central Railroad Company, 27 Barb.. 528 ; Sheffield vs. 
 The Rochester and Syracuse Railroad Company, 21 Barb., 339 ; Ovien 
 vs. The Hudson River Railroad Company, 2 Bosw., 374. 
 
 As to the inability of the plaintiff to recover, when his own negli- 
 gence^ or that of the person in whose right he sues, concurred in 
 producing the injury complained of, vide Gilligam vs. The New York 
 aixd Harlem Railroad Company, 1 E. D. Smith, 453 ; Robertson vs. 
 I'he New York and Erie Railroad Company, 22 Barb., 91 ; Terry vs. 
 The New York Central Railroad Company, 22 Barb., 574 ; Bernhardt 
 vs. Renssdaer amd Saratoga Railroad Company, 18 How., 427 ; Samie 
 case, in reversal on another ground, 32 Barb., 165 ; 19 How., 199 ; 
 Sam^ case, final affirmance by Court of Appeals, 23 How., 166 ; also 
 noticed, 33 Barb., 509 ; Menlijes vs. The New York and Ha/rlem Rail- 
 
OF THE COMPLAIjST. — § 141. 691 
 
 road Company, 1 Hilt., 425 ; Mwnger vs. The Tonawanda Railroad' 
 Company, 4 Comst., 349 ; Spooner vs. Brooklyn City Railroad Com- 
 pany, 31 Barb., 419 ; Higgins vs. The New York and JSTa/rlem Rail- 
 road Company, 2 Bosw., 132 ; Dufy vs. The Same, 2 Plilt., 496 ; 
 Mmst vs. The Hudson River Railroad Company, 32 Barb., 1.59 ; 19 
 How., 205 ; McGraih vs. The Sam^, 32 Barb., 144 ; 19 How., 211 ; 
 Beisegal vs. New Yorh Central Railroad Company, 33 Barb., 429 ; 
 Carolus vs. Mayor of New Yorh, 6 Bosw., 15 ; Brown vs. Buffalo and 
 State Line Railroad Company, 22 N.-Y., 191. 
 
 But the principle, as thus laid down, is subject to a reasonable mod- 
 ification. Where the acts of the defendants are themselves in any 
 wise illegal or unreasonable, they cannot invoke it. Sanford vs. Eighth 
 Avenue Railroad Company, 23 IST. Y., 343. So, also, where the negli- 
 gence of the defendant is gross, and that of the plaintiff slight or 
 excusable, the question is one of fact, and cannot be taken from the 
 jury. Cox vs. President ofWestchester Turnpike Road, 33 BarTj., 414: 
 MoGrath vs. Hudson River Railroad Company, supra • Ernst vs. The 
 Same, supra; Bernhardt vs. Rensselaer and Saratoga Railroad Com- 
 pany, 32 Barb., 165 ; 19 How., 199, supra ; stated to be affirmed by 
 Court of Appeals, 33 Barb., 509 ; affirmed, 23 How., 166 ; Fero vs. 
 Buffalo and State Line Railroad Company, 22 IS.. Y., 209. See also, 
 gdberally, Colegrove vs. New York and New Haven and New York 
 and Harlem Railroad Companies, 20 N. Y., 492. 
 
 Nor will it apply, or the plaintiff be charged with negligence, where 
 the act complained of, on his part, has been occasioned by a neglect on 
 the part of the defendants to provide him with proper accommodation, 
 or to notify to him fully his obligation to comply with their regulations. 
 Willis vs. Long Island Railroad Company, 32 Barb., 398; Clark\s. 
 Eighth Avenue Railroad Company, 32 Barb., 657 ; Edgerton vs. New 
 York and Harlein Railroad Company, 35 Barb., 193 ; The Same vs. 
 rAe^ame,-35Barb., 389. 
 
 And a plaintiff may be unable to recover, where the injury has 
 resulted from the negligence of another, employed by him at the time. 
 So held in an action by a passenger, for injury occasioned by the 
 neo-ligence of a driver of a public carriage. Brown vs. New York 
 Central Railroad Company, 31 Barb., 385, disapproving decision at 
 circuit ; Knapp vs. Dagg, 18 How., 165. 
 
 Gross negligence on the part of the defendant, will entitle a plaintiff 
 to recover, even though a general stipulation of exemption may have 
 been made. Smith vs. The New, York Central Railroad Company, 29 
 Barb. 132. See also, as to an omission to restore a fence, within a 
 reasonable time, Munch vs. The Same, 29 Barb., 647. But a plaintiff 
 cannot recover upon a mere possibility, or even probability of negli- 
 
692 OF THE COMPLAINT. — § 141. 
 
 gencc. It must be positively proved. Sheldon vs. TKe Hudson Rmer 
 Railroad Company, 29 Barb., 226. 
 
 A railroad company is also responsible for a higher degree of care 
 arid skill, than an ordinary carrier of passengers, both generally, and 
 with regard to latent defects. Hegeman vs. The Western Railroad 
 Corporation, 3 Kern., 9 ; Bernhardt vs. Saratoga and Rensselaer Rail- 
 road Company, 19 How., 199 ; Johnson vs. Hudson River Rail/road 
 Company, 6 Duer, 633 ; also 6 Duer, 21, aiSrmed, 20 N. Y., 65 ; WilUs 
 ys. Long Island Railroad Company, 32 Barb., 398 ; ClarJc vs. Eighth 
 Avenue ■ Railroad Company, 32 'Barh., 657 ; Wilds ys. Hudson River 
 Railroad Company, 33 Barb., 603 ; JFero vs. Buffalo am,d State Line 
 Railroad Company, 22 JST. Y., 209 ; Edgerton vs. New YorTc and Har- 
 lem Railroad Company, 35 Barb., 193 ; The Same vs. The Sarnie, 35 
 Barb., 389. See likewise as to the responsibility of a commander of 
 troops while exercising. Castle vs. Duryea, 32 Barb., 480. 
 
 As to th« responsibilities of two companies, whose mutual negligence 
 has concurred in producing an injury, and the degree of caution which 
 a passenger is, under such circumstances, bound to exercise, vide Cole- 
 grove vs. Harlem amd New Hamen Railroad Company, 6 Duer, 382 ; 
 affirmed, 20 IST. Y., 492. 
 
 As to the peculiar liabilities of the ISTew York and Harlem Railroad 
 Company, and the New York and ITew Haven Railroad Company, for 
 ■ omission to repair fences on the line jointly used by them, see conflict- 
 ing decisions of Shanchan vs. The Same, 10 Abb., 398 ; Ldbussiere vs. 
 The Same, 10 Abb., 398, note. 
 
 Concurrent negligence on the part of another company, is no defence 
 • to an action brought by a passenger, injured without defa,ult on his 
 part. Chapman vs. New Ha/oen Railroad Company, 19 K". Y., 341. 
 
 As to the same principle, as regards injuries not immediately con- 
 nected with accidents of the above nature, see also the following, 
 a.mongst many other cases bearing upon the subject : 
 
 A father, suffering his infant child to be at large in the street, can- 
 not recover for its being run over. Kreig vs. Wells, 1 E. D. Smith, 74. 
 As to a collision between two vessels. Crary vs. Marshall, 1 E. D. 
 Smith, 530. As to injuries received by a party, passing after dark 
 through an unfinished building. Roulston vs. Cla/rh, 3 E. D. Smith, 
 366. As to the distinction between injuries received by driving against 
 an obstruction in the highway, before and after dark, vide Cla/rh vs. 
 Kvrwan, 4 E. D. Smith, 21. As to leaving a horse loose in the high- 
 way, after removing his bit, vide Morris vs. Phelps, 2 Hilt., 38. 
 
 Concurrent iiegligenee may, however, fail in constituting a defence, 
 as against the claim of a passenger injured by collision. Knapp vs. 
 Dagg, 18 How., 165. See also Brown vs. New York Central RojiVroad 
 
OF THE COMPLAINT. — § 142. 693 
 
 Oonkpany, 31 Barb., 385 ; Golegrove vs. Harlem and New Hcmen Rail- 
 road Companies, 6 Duer, 382 ; affirmed, 20 IST. T., 492, supra; Chap- 
 man vs. The Nev) Homen Rail/road Company, 19 IS". Y., 341, supra. 
 
 (e.) General Kemaek. 
 
 It is proposed to consider the subject of the specific averments, 
 appropriate to suits in the nature of a common-law action for damages, 
 in the following order, viz. : 
 
 1. Wrongs to the character or person; 
 
 2. Wrongs in respect of property ; and, 
 
 3. "Wrongs arising out of a breach of duty or contract ; 
 
 reserving the consideration of the redress of wrongs, either by way 
 of possessory action or equitable proceeding, for consideration in subse- 
 quent sections. 
 
 The subject of trespasses on real estate is also similarly reserved. 
 
 § 142. A-verments in Tort. — Wrongs to Character or Person. 
 
 (a.) Slander and Libel. 
 
 In connection with both these proceedings, the provisions of section 
 164, as above cited, must be borne in mind. 
 
 In neither is it any longer necessary to allege in the complaint, 
 extrinsic facts, for the pui'pose of showing the application to the plain- 
 tiff, of the defamatory matter complained of. It is now, in all cases, 
 sufficient to allege generally, that such matter was published or was 
 spoken of or concerning the plaintiff. If the allegation be controverted, 
 the plaintiff is then bound to establish that fact upon the trial. If not, 
 it stands admitted. 
 
 The above provision is not, however, obligatory, and is in one respect 
 limited in its nature. It relieves the plaintiff from the necessity of any 
 longer stating extrinsic facts, for the purpose of showing the special 
 application to the plaintiff', of defamatory matter spoken or published. 
 But there its operation seems to stop. If such defamatory matter 
 needs any special averment, by way of colloquium, to explain its mean- 
 ing, or to show the words iised to be slanderous or libellous in their 
 nature, the insertion of a special allegation for that purpose is still 
 equallv necessaiy. Pihe vs. Yan Wormer, 5 How., 171 ; Samie case, 6 
 How.,^; 1 C. il. (N. S.), 403. _ 
 
 Such extrinsic facts, although in the nature of an innuendo, must be 
 distinctly, and also directly and specifically averred, and it should be 
 shown likewise that the defendant had knowledge of them. Caldwell 
 vs. Bovymond, 2 Abb., 193 ; Fry vs. BenmHt, 6 Sandf., 54 ; 10. E. (N. 
 S.), 238 ; 9 L. 0., 330 ; CuVo&r vs. Van Anden, 4 Abb., 375 ; Dias vs. 
 
694 OF THE COMPLAINT. § 142. 
 
 SJioH, 16 How., 322 ; Blaisdell vs. Baymond, 14 How., 265 ; 4 Abb., 
 446 ; Carroll vs. White, 33 Barb., 615. But the effect of the words 
 complained of cannot be thns enlarged. Weed vs. BilUns, 32 Barb., 315. 
 
 For similar reasons, where the defamatory matter is in a foreign 
 language, the words themselves must be alleged in that language, with 
 an additional averment of their meaning in English, and that the par- 
 ties to whom they were used understood that meaning. Letfmcm vs. 
 Bits, 3 Sandf., Y34 ; Delaix vs. Behind, 1 C. E. (IST. S.), 235. 
 
 Where several causes of action are entitled in the same complaint, 
 they must be separately stated. Pihe vs. Van Wormer, supra. 
 
 (5.) Slandee, Separately Coksideeed. 
 
 The cases of Pihe vs. Van Warmer, Beas vs. Short, Bettmam, vs. Bits, 
 and Bebaix vs. Behind, although above cited as of general application, 
 bear directly upon the question of slander, and only incidentally npon 
 that of libel. 
 
 In actions of this description, it is not sufficient to state the tenor and 
 effect of what was said. The precise words must be alleged, or de- 
 murrer will lie. Forsyth vs. Edmiston, 2 Abb., 430 ; 5 Duer, 653 ; 
 Finnerty vs. Barlcer, 7 L. 0., 316. And, in the last case, it was con- 
 sidered better, though not essential, not to omit a statement of the time 
 and place of uttering. 
 
 The words used must be alleged as having been spoken in the presence 
 and hearing of some one, or the complaint will be defective. Wood vs. 
 Gilchrist, 1 C. E., 117 : Anonymous, 3 How., 406. An averment to this 
 effect will be the only really safe practice in all cases, though it has 
 been held that the word " published," if used, imports an uttering in 
 the presence and hearing of others, "ea; vi termini." See Buel vfe. 
 Agam, 1 C E., 134. See also Bettmian vs. Bitz, and Bebaix vs. Behind, 
 above cited, as to proper mode of averment of slander in a foreign 
 language. 
 
 Words not alleged in the pleadings caniiot be given in evidence. 
 B'undell vs. Butler, 7 Barb., 260. But insinuations, made in indirect 
 terms, may nevertheless be actionable. 
 
 In slander, allegations of a subsequent usage of the words com- 
 plained of, and likewise of other defamatory expressions not specifically 
 averred, ar6 inadmissible, and, on a proper application, they might be 
 stricken out as redundant. Gray vs. NelUs; 6 How., 290. A repeti- 
 tion may be proved in evidence, without special allegation. 
 
 The mere fact that the words jised impute to the plaintiff an act sub- 
 jecting him to a criminal prosecution, punishable by fine, is not neces- 
 sarily sufficient to constitute slander. They must also impute moral 
 turpitude, or something infamous or disgraceful, in a general sense, 
 
OF THE COMPLAINT. — § 142. 696 
 
 detracting from the character of the offender as a man of good morals. 
 Quin vs. O'Oara, 2 E. D. Smith, 388. 
 
 If they do not impute such a crime or misdemeanor, words so used 
 will not be actionable, per se, or without proof of special damage. I^ike 
 Ts. Van Wormer, 6 How., lYl, supra. 
 
 The mere use of a word capable of interpretation in a felonious sense, 
 does not necessarily constitute slander, unless its use in such a sense be 
 shown. Quin vs. O'Gara, supra. A mere allegation of passing coun- 
 terfeit money, has thus been held insuflSeent. T'ike vs. Van Wormer, 
 5 How., 171. But that of being "a dealer in counterfeit money," is, 
 on the contrary, actionable, p>er se. Same case, 6 How., 99 ; 1 C. E. 
 (N". S.), 408. See, as to a charge of being a receiver of stolen goods, 
 Dias vs. Short, 16 How., 322 ; and also, as to words not necessarily 
 imputing a criminal offence, being made to appear slanderous, by 
 means of an appropriate introductory averment. Weed vs. JBibbms, 
 32 Barb., 315. 
 
 The following imputations have been held to be slanderous, per se, 
 and to be sufficient to sustain an action, standing alone, and without 
 proof of special damage. 
 
 An allegation that a married woman has the venereal disease. Wil- 
 liams vs. Holdridge, 22 Barb., 396. (But such imputation must be 
 made in a present and not in a past sense). Pilie vs. Van Wormer, 5 
 How., ITl, supra.) An imputation of wilful perjury, in a suit pending. 
 Walrath vs. NellAs, 17 H»w., 72. A charge of being a receiver of 
 stolen goods. DiOjS vs; Short, 16 How., 322 (though a mere charge of 
 having received stolen goods, without an additional allegation of scien- 
 ter, might not have been so). The saying of a man that he is the 
 author of an already published libel. Viele vs. Oray, 10 Abb., 1 ; 18 
 How., 550. The imputation of gross ignorance, and a total want of 
 skill in his profession, as against a physician. Secor vs. Harris, 18 
 Barb., 425 ; Carroll vs. WhiU, 33 Barb., 615. 
 
 The imputation of want of chastity in an unmarried female is slan- 
 derous, special damage being averred. Fuller vs. Fenner, 16 Barb., 
 333. Such special damage must, however, result from injury to the 
 plaintiff's reputation, which affects the conduct of others, and not from 
 mental distress, physical illness, or inability to labor, occasioned by the 
 aspersion. So held, as to such an accusation, as against a man. Terwil- 
 Hger vs. Wam,ds, 17 IST. T., 54, or, as against a married woman, Wilson 
 vs. Goit) 17 ]Sr. Y., 442. See likewise Ohnstead vs. Brown, 12 Barb., 
 657. These last cases tend to overrule the conclusion come to in the 
 former under the special circumstances. 
 
 As to the distinction between an action for special damage, or for 
 words actionable ^e/" se, in the case of a married woman, as regards the 
 
696 OF THE COMPLAINT. § 142. 
 
 question of parties, see heretofoTe, under that head, and Klein vs. Hentz, 
 2 Duer, 633 ; and Williams vs. Hold/ridge, 22 Barb., 396, there cited. 
 See also Olmstead vs. Srown, 12 Barb., 657. 
 
 Although, when the occasion on which slanderous words were spoken 
 repels the presumption of malice, proof of it is necessary to sustain 
 the action, the facts and circumstances tending to show it need not be 
 alleged, but a bare averment that such words were spoken maliciously 
 will be sufficient. Viele vs. Gray, 10 Abb., 1 ; 18 How., 650. 
 
 The imputation of insolvency against a petty trader is actionable. 
 Carpenter vs. Dennis, 3 Sandf., 305. 
 
 In Phincle vs. Vaughan, 12 Barb., 215, it was held that the imputa- 
 tion of false swearing under oath, without any averment that the words 
 complained of were spoken in reference to a judicial proceeding, was 
 not slanderous joer se. It was held, however, that if an amendment had 
 been aiUowed, by inserting 'an allegation of words proved on the trial, 
 to the effect that, if the plaintiff " had had his deserts, he would have 
 been dealt with in the time of it," the action might then have been 
 maintained. See also, as to the necessity of an averment as above, 
 Bonner vs. MoPhail, 31 Barb., 106. 
 
 It was held in Baker vs. Williams, 12 Barb., 527, that slander would 
 lie for an imputation of perjury, on an affidavit made before a justice 
 of the peace, in order to obtain an attachment against a defaulting wit- 
 ness, though such oath was orally taken. 
 
 In an action for slander, on a charge of stealing the examination of a 
 witness, taken before a justice of the peace, an omission to allege that 
 such examination was taken in a legally pending proceeding, was held, 
 on demurrer, to render the complaint defective. Ayres vs. Oovell, 18 
 Barb., 260. 
 
 In Beyo vs. B7'undage,'13 How., 221, it was held competent to a 
 plaintiff to allege, if he thinks fit, all that took place at the time, with-, 
 out selecting from the whole conversation, the particular expressions 
 which involved the slanderous charge complained of. 
 
 (c.) LnJEL, Separately CoNsroEEED. 
 
 In a complaint of this description, it is not necessary to set out the 
 whole of -the obnoxious publication, but the pleader may extract the 
 particular passages complained of, provided their sense be clear and 
 distinct. Culver vs. Van Anden, 4 Abb., 375. 
 
 A statement that the defendant was proprietor of a newspaper, "and 
 that the libellous matter was published therein, was held a sufficient 
 averment of publication, in Hunt vs. Bennett, 4 E. D. Smith, 647; 
 affirmed, 19 N". T., 173. 
 
 Several actions for the same libel, in different counties, are improper, 
 
OF THE COMPLAINT. — § 142. 69 T 
 
 and a motion to consolidate will be granted. Percy vs. Seward, 6 
 Abb., 326. 
 
 A general averment of malice, was held insufficient, to ebarge a 
 defendant for the publication of a statement, not libellous, per se, but 
 entirely dependent on extrinsic facts, no actual knowledge of which 
 was alleged against him. Caldwell vs. Haymond, 2 Abb., 193. 
 
 But where the facts, constituting the injury, arcw^ithin the knowledge 
 of the defendant, or the statement involved is in itself libellous, a gen- 
 eral allegation of malice will be sufficient, without any statement of 
 facts and circumstances. Viele vs. Gray, 10 Abb., 1 ; Hunt vs. Ben- 
 nett, 19 N". T., 173 ; affirming same case, 4 E. D. Smith, 647. See also 
 Fi-y vs. Bennett, 5 Sandf., 64 ; 9 L. 0., 330 ; 1 0. E. (IST. S.), 238 ; 
 Howard vs. Sexton, 4 Comst., 157 ; Buddington vs. Davis, 6 How., 
 401. See also Purdyvs. Carpenter* 6 How, 361 ; Littlejohn vs. Greeley, 
 13 Abb., 41. 
 
 The responsibility of reporters in and editors of newspapers, is now 
 defined by special statute, cliapter 130 of 1854, p. 314, as follows : 
 
 § 1. No reporter, editor or proprietor of any newspaper, shall be liable to 
 any action or prosecution, civil or criminal, for a fair and true report in such 
 newspaper of any judicial, legislative, or other public official proceedings, of 
 any statement, speech, argument or debate in the course of the same, except 
 upon actual proof of malice in maldng such report, which shall in no case be 
 implied from the fact of the publication. 
 
 § 2. Nothing in the preceding section contained shall be so construed as 
 to protect any such reporter, editor, or proprietor, from an action or indict • 
 ment for any libellous comments or remarks superadded to, and interspersed, 
 or connected with such report. 
 
 § 3. This act shall take effect immediately. 
 
 Before the passage of this statute, doctrines in substantial accord- 
 ance with part of its provisions, had been held in Stanley vs. Wehh, 4 
 Sandf., 21 ; 3 C. E., 79, and Huff vs. Bennett, 4 Sandf. 120. 
 
 In Weed "vs. Foster, 11 Barb., 203, an imputation of the receipt of 
 money for procuring a public appointment, made against an influential 
 politician, was held to be libellous ^er se. 
 
 So also as to the imputation of insanity. Perliins vs. Mitchell, 
 31 Barb., 461. 
 
 So likewise as to a charge of corruption, against a member of the 
 leo-islature. Littlejohn vs. Greeley, 13 Abb., 41. 
 
 In Bennett vs. Williamson, 4 Sandf., 60, it was held that an impu- 
 tation of pleading the statute of limitations unfairly, was not libellous 
 per se, there being no charge that the plaintiff made that plea dis- 
 honestly. In the same case, a distinction is drawn between the speaking 
 
698 ' OF THE COMPLAINT. — § 142. 
 
 or wi-iting the same wordg, and it is held that libel in such cases may 
 lie, where slander will not. 
 
 A statement by the keeper of an intelligence office, reflecting upon 
 the business capacity of the partners in a mercantile firm, was held 
 libellous, though made honestly, and on seemingly reliable information. 
 Taylor vs. Church, 4 Seld., 452. See also in court below, same case, 
 1 E. D. Smith, 279. 
 
 The same case decided, that a partner-ship firm may sue for libel, 
 afi'ecting them in their partnership relations. But such is not the case 
 as to members of an association, not having a community of pecuni- 
 ary interest. They cannot sue jointly, Giraud vs. Beach, 4 E. D. 
 Smith, 337. 
 
 That a caricature may be libellous, is assumed in Viele vs. Gray, 18 
 How., 550 ; 10 Abb., 1. 
 
 Although, on the trial, the words alleged must be shown by proof 
 to bear a lil^ellous construction, on demurrer the rule is different, and, 
 if they are capable of bearing such a construction, the complaint will 
 stand. Wesley vs. Bennett, 6 Duer, 688 ; 5 Abb., 498. 
 
 In relation to privileged communications, the following decisions 
 have been made : 
 
 In Cooh vs. Hill, 3 Sandf., 341, it was held that no action would lie 
 in respect of a memorial to the postmaster-genpral, charging fraud 
 against a successful candidate for a government contract. The commu- 
 nication was held to be a privileged one, if the statements contained 
 in that memorial were true; but otherwise, ~ if they were false. See 
 likewise, Buddington vs. Davis, 6 How., 401. 
 
 As to the privilege of a physician, in granting a certificate of lunacy 
 in a proceeding pursuant to the statute, see PerTcins vs. Mitchell, 31 
 Barb., 461. 
 
 In Streety vs. Wood, 15 Barb., 105, the preferring of charges by one 
 member of a lodge against another, in due form, was held primd facie 
 to be a privileged communication, and, if made in good faith, no action 
 would lie. 
 
 Words spoken or written in a legal proceeding, pertinent and mate- 
 rial to the subject of the controversy, are privileged, and the truth of 
 the statement cannot be drawn in question, in an action for slander or 
 libel. Garr vs. Selden, 4 Comst., 91. Vide Perkins vs. Mitch- 
 ell, svpra. 
 
 Although an affidavit made in support of a regular legal proceeding 
 is privileged, one made in relation to an application wholly incompe- 
 tent for want of jurisdiction, is not so. Homner vs. Loveland 19 
 Barb., 111. ' 
 
 The report of a committee of the trustees of the College of Phar 
 
OF THE COMPLAINT. — ^§ 142. 699 
 
 macy, transmitted to tlie secretary of the treasury with a view to ob- 
 tain the removal of an inspector of drugs, was held privileged, in the 
 absence of proof of malice or bad faith. Van Wyoh vs. AspinwaU, 4 
 Duer, 268 ; affirmed, lY IST. Y., 190. 
 
 A written communication from a banker in 'the country to a mer- 
 cantile firm in New York, in respect to the pecuniary responsibility 
 of a party whose note had been forwarded for collection, was held priv- 
 ileged in Zevds vs. Chapman, 16 IST. Y., 369 ; reversing, same case, 19 
 Barb., 252. 
 
 An article in a newspaper, reflecting upon the character of a candi- 
 date for public office, is not privileged, and the editor will be respon- 
 sible. It does not stand upon the same footing, as when addressed to 
 the appointing power. Sunt vs. Bennett, 19 N. Y., 173 ; affirming 
 same case, 4 E. D. Smith, 64Y. 
 
 The imputation of personal corruption against a member of tlie legis- 
 lature was held not to be entitled to any privilege in Littlejohn vs. 
 Greeley, 13 Abb., 41. 
 
 As to the responsibility of an editor, in respect of comments upon the 
 manager of a theatre, and how far such comments may or may not be 
 . allowable, see JFry vs. Bennett, 3 Bosw., 200 ; Samie case, 5 Sandf., 54 ; 
 9 L. O., 330 ; 1 C. K. (N. S.), 238 ; Same case, 4 Duer, 247. 
 
 In IIu7it vs. Bennett, 4 E. D. Smith, 647, above cited, the rule is 
 generally laid down, that a publication is libellous, when its necessary 
 effect is to diminish the plaintiff's reputation for respectability, impair 
 his condition, and abridge his comforts, by exposing him to disgrace 
 and ridicule. 
 
 In Snyder vs. Andrews, 6 Barb., 43, it was held, that the reading 
 aloud of a letter containing libellous matter, amounted to a publication. 
 
 {d.) SEDircTioiir. 
 
 The fundamental basis of this species of action, is the loss of service, 
 and, unless the relation of master and servant exists between the plain- 
 tiff and the female seduced, either actually or constructively, the action - 
 will not be sustainable. In the case of parent and child, that relation 
 exists constructively, and so long as the child remains a minor, the for- 
 mer may sue. And it is not necessary that the child should be actually 
 in the service of or residing with the father, at the time of her seduc- 
 tion. It is sufficient that he was then legally entitled to her services, 
 and might have required them, if he chose to do so. Mulvelmll vs. 
 Millward, 1 Kern., 343. And, as regards a minor, it seems one stand- 
 ing " in loco parentis" has a similar right. Bartley vs. Eichtmeyer, 4 
 Comst., 38 (43) ; Bracy vs. Kible, 31 Barb., 273. 
 
 In Bartley vs. Eichtmeyer, it was, however, held that a stepfather 
 
700 OF THE COMPLABST. — § 142. 
 
 could not sue for seduction of his stepdaughter, while living in the 
 service of another. 
 
 But, whore the infant daughter had been bound out to service with 
 her seducer, so that the father was not entitled to her services, it was 
 held that the latter could not sue. He had, by the binding out, parted 
 with his legal right to reclaim the services of the daughter at his pleas- 
 ure. Dain vs. Wycoff, 3 Seld., 191. It appearing however, on a sub- 
 sequent trial, that the indenting had been procured by the defendant 
 by fraud, with a view to the seduction, that fact was held to be an 
 answer to the objection. Dain vs. Wycoff, 18 N. Y., 45. 
 
 To render the action maintainable, where pregnancy does not follow,. 
 the loss of service miist be the direct and immediate, and not a remote 
 consequence of the seduction. Knight vs. Wilcox, 4 Kern., 413 ; 
 reversing same case, 18 Barb., 212. See also 15 Barb., 279. See, to 
 the same efifect. White vs. Nellis, 31 Barb., 279. 
 
 The connivance of the father in the act of seduction, will wholly bar 
 his action ; but, where that- defence is omitted to be pleaded, it Vill be 
 waived. Travis vs. JBarger, 24 Barb., 614. 
 
 The female seduced,' cannot maintain an action for her own seduction 
 Hamilton vs. Lomax, 26 Barb., 615 ; 6 Abb., 142. 
 
 Where a rape had been committed, however, it was held that the 
 female ravished might maintain an -action of assaiilt and battery, for 
 the injury sustained by her. Koenig vs. Nott, 2 Hilt., 323 ; 8 Abb., 384. 
 
 With reference to an indictment for seduction under promise of 
 marriage, and the circumstances which will be necessary or sufficient 
 to support it, see People vs. Kane, 14 Abb., 15. 
 
 As to the analogous action for damages, for enticing away the wife 
 of the plaintiff, see Barnes vs. Allen, 30 Barb., 663 ; Scherpf vs. 
 Szadeczky, 4 E. D. Smith, 110 ; 1 Abb., 366. As to the rights of a 
 parent to receive back his child, in consequence of gross misconduct on 
 the part of her husband, see Barnett vs. Smith, 21 Barb., 439. 
 
 (e.) Beeach of Promise of Maebiage. 
 
 In this action, the form of the old declaration in such cases may be 
 substantially followed, with some few necessary abbreviations. See 
 Leopold vs. Foppenheimer, 1 C. R., 39. 
 , An action is maintainable, where the promise is sufficiently averred 
 and proved, though the defendant was, at the time, legally disqualified 
 from performing it, such disqualification being fraudulently concealed 
 by him from the plaintiff ; nor is it necessary to aver in terms, that he 
 knew his representations of being unmarried, to be untrue. Blattma- 
 cher vs. Saal, 29 Barb., 22 ; 7 Abb., 409. 
 
OF THE COMPLAINT. — § 142. 701 
 
 But, to be actionable, the promise must be express. Buzzard vs. 
 Knajop, 12 How., 504. 
 
 And mutual also, but, as regards a counter-promise from the plaintiff, 
 it may be inferred from the circumstances : see People vs. Kane, 14 
 Abb., 15. 
 
 As to a refusal by the plaintiff, of a subsequent offer of the defendant 
 to fulfil his promise, constituting a defence, see Liebmann vs. Solomon, 
 7 Abb., 409, note. 
 
 An infant is not competent to make a promise of this description, 
 and no action can be maintained in respect of it. Hamilton vs. JOomax, 
 26 Barb., 615 ; 6 Abb., 142. 
 
 If part of the injury claimed to arise from the breach of promise, 
 consist of the loss of health of the plaintiff, such fact must be specially 
 averred, and special damage claimed, or proof will be inadmissible. 
 Bedell vs. Powell, 13 Barb., 183. 
 
 As to the form of summons in these cases, vide Willicmis vs. Miller, 
 4 How., 94 ; 2 C. E., 55. And as to their clearly sounding in tort, see 
 Newman vs. GooTc, 11 L. O., 62, with reference to the homestead exemp- 
 tion act. 
 
 {f.) ASSATJLT AND BatTEET. 
 
 In an action of this nature, the old form of declaration may advan- 
 tageously be consulted, with a view to framing the complaint in concise 
 and legal language, pruning away, of course, all unnecessary repetitions. 
 
 In Boot vs. Foster, 9 How., 37, statements as to the intent of the 
 defendant, and the ridicule brought upon the plaintiff by his conduct, 
 were refused to be stricken out. Though not essential to entitle the 
 plaintiff to sustain his action, they were material on the question of 
 damages, and might be proved. 
 
 Averments in aggravation are not, however, traversable, and it is not 
 necessary to confute them in the answer. Gilbert vs. Rounds, 14 How., 46. 
 
 As to the power of a plaintiff to amend his complaint at the trial, 
 by inserting an additional charge, vide Uaquis vs. Be Hart, 12 
 How., 322. 
 
 And a plaintiff has, it would seem, the right to aver on the face of 
 his complaint, all that took place at the time, though part constituted 
 an assault, and part a slander. Brewer vs. Temple, 15 How., 286. 
 
 As to the right of self defence, and how far it may be justifiably exer- 
 cised or the reverse, see Keyes^^. BevUn, 3 E. D. Smith, 518. 
 
 As to the right of a ravished female, to maintain an action for the 
 assault and battery committed upon her, see Koenig vs. Nott, 2 Hilt,, 
 323 ; 8 Abb., 384, above cited. 
 
 An action for an assault upon a married woman can now be brought 
 
702 OF THE COMPLAINT. — § 142. 
 
 in her own name, and in hers only. Mann vs. Marshy 21 How., 372 ; 
 35 Barb., 68. 
 
 In this connection, it may be convenient to cite the cases bearing 
 npon the right of ejection from the cars of a railroad company, and of 
 employment of force for that purpose. 
 
 The necessity of complying with all reasonable regulations, and of 
 exhibiting a passenger's ticket, whenever requested, is distinctly estab- 
 lished by the following series of decisions, which also recognize the for- 
 feiture of the right of being carried further, by any person refusing to 
 comply with such regulations, and the right of ejection of such person 
 by the conductor: Sibbard vs. The New York and Erie Railroad 
 Company, 15 IST. Y., 455 ; TJie Northern Railroad Company vs. Paige, 
 22 Barb., 130. 
 
 So also, if the passenger, having passed the proper station for a 
 change, refuses to return to it, on an offer to convey him back without 
 charge, or to pay additional fare. Page vs. The New Yorh Central 
 Railroad Company, 6 Duer, 523. Or if, stopping at an intermediate 
 station, he omits to give notice to the conductor, and have the proper 
 indorsement made. Beebe vs. Ayres, 28 Barb., 275, 
 
 But the power of ejection must be reasonably, and not dangerously 
 exercised. It is unreasonable to do so, when the cars are in motion. 
 In that case the passenger will be justified in resistance, and the com- 
 pany liable for any injury he may sustain. Sanford vs. Eighth Avenue 
 .Railroad Company, 23 N. Y., 343. 
 
 In PUce vs. Finch, 24 Barb., 514, it was held that the indorsement, 
 " good for this trip only," did not limit the undertaking of the company 
 to carry the whole distance. If not used before, the ticket is available 
 for any subsequent day, and an ejection of the holder will be wrongful. 
 See however, jser contra, Barlcer vs. Coffin, 31 Barb., 556. 
 
 (^.) False Impeisonment. 
 
 In actions for false imprisonment, the complaint must be confined to 
 a simple pleading of the fact, according to the old practice ; and any 
 statements of the attendant circumstances, will, if objected to, be stricken 
 out as frivolous. Shann vs. Jayne, 4 How., 119 ; 2 C. E., 69 ; Eddy vs. 
 Beach, 7 Abb., 17. The old forms of declaration may therefore in this 
 case, as in the last, be consulted with special advantage. 
 
 A less strict view was, however, taken by the New York Common 
 Pleas in Moloney vs. Bows, 15 How., 261 ; and allegations of the circum- 
 stances in detail, t)u a charge of false imprisonment and assault, in con- 
 nection with an illegal combination and conspiracy, were allowed in a 
 great measure to stand. 
 
 No action of this nature, or for assault and battery, can be main- 
 
OF THE COMPLAIKT. — § 142. 703 
 
 tallied against the agent of a father, using no undxie force, in effecting 
 his directions respecting the custody of his minor child. Jlernandss 
 vs. GarnoMi, 4 Duer, 642 ; 10 How., 433. 
 
 In an action for arrest on fexecution, clearly unwarranted by the judg- 
 ment, both attorney and client will be liable. Sleight vs. Leavenworth, 
 5 Diier, 122. 
 
 Where the warrant is not valid on its face, it will be no protection, 
 either to the justice issuing or the officer executing it, and both will be 
 liable. Williams vs. Garrett, 12 How., 456. And this, even when issued 
 in good faith, and though there was sufficient proof to have sustained a 
 valid warrant, Blyihe vs. Tompkins, 2 Abb., 468 ; or in a case of mis- 
 nomer. Miller vs. Foley, 28 Barb., 630. And it has been held that a 
 sufficient accusation must be recited in the instrument itself, and that 
 a criminal offence must appear to the magistrate to have been commit- 
 ted, or his warrant will not protect. Wilson vs. liobinson, 6 How., 110. 
 It has been, however, decided on the other hand, that, where a criminal 
 offence was charged, the justice acquired jurisdiction, and, though he 
 grossly err in its exercise, and in deciding that such an offence had been 
 committed, his warrant was a protection. Camphell vs. Ewalt, 7 
 How., 399. 
 
 The principle that, when a judge has once acquired jurisdiction, error 
 in its exercise will not render process issued by him void, is maintained 
 in Landt vs. Hilts, 19 Barb., 283, and Stanton vs. Schell, 3 Sandf., 323, 
 both, decisions on arrest under the former non-imprisonment act. In the 
 latter case it is generally laid down that, where an inferior tribunal acts 
 without acquiring jurisdiction, its proceedings are void, and all con- 
 cerned are trespassers. But, where it has jurisdiction, and then errs in 
 the exercise of its powers, the act is only erroneous, and not void. 
 
 Where the plaintiff fails in an action, in which the defendant is arrest- 
 able, he is himself arrestable for the costs, and his imprisonment will be 
 legal. Merritt vs. Garpenter, 30 Barb., 61. 
 
 In an action of this nature for a malicious arrest on order, the com- 
 plaint must state that the process complained of has been vacated, or 
 else that judgment has been entered against the plaintiff in that action, 
 or it will be defective, unless it appears that the order was a nullity db 
 initio. Searll vs. MoGrackan, 16 How., 262. 
 
 Where the process is regular, an action for false imprisonment will 
 not lie, though it appear to have been maliciously issued. The remedy 
 is in a suit for a malicious prosecution. Sleight ^s. Ogle, 4E. D. Smitli, 
 445 ; Waldheim vs. Sichel, 1 Hilt., 45. 
 
 The existence of a cause of action is sufficient to justify an arrest, 
 though the damages, if established, would be nominal only. Gordon 
 vs. TTpham, 4 E. D. Smith, 9. 
 
'r04 OF THE COMPLAINT. — § 142. 
 
 (h.) Malicious Pboseoutiok. 
 
 In an action of this nature, the plaintiff must aver and must prove an 
 entire want of a probable cause for the accusation, and actual malice of 
 the defendant in preferring it, that is, malice in fact, as distinguished 
 from malice in law. BuUceley vs. Smith, 2 Duer, 261 ; 11 L. O., 200 ; 
 Besson vs. Southard, 6 Seld., 236. 
 
 In the complaint it is necessary to show, that the alleged malicious 
 prosecution has been legally and finally terminated by acquittal, or so 
 that no further proceedings can be had. Thomason vs. JDe Mott, 18 
 How., 529 ; 9 Abb., 242. A mere entry of nolle prosequi was accoixl 
 ingly held insufficient for that purpose. See also Bacon vs. Townsend, 
 2 C. K., 51 ; Hall vs. Fisher, 20 Barb., 441. Nor does suffering a default 
 have this effect, where probable cause existed at the first. Gordon vs. 
 Upham, 4 E. D. Smith, 9. An immediate dismissal by a magistrate, of 
 a prosecution when commenced, is, it would seem, prima facie proof 
 of the want of it. Gould vs. Sherman, 10 Abb., 441. 
 
 The necessity of the concurrence of all three of the above elements, 
 i. e., actual determination in favor of the plaintiff — want of probable 
 cause — and malice in fact, is maintained in Yanderbilt vs. Mathis, 5 
 Duer, 304. 
 
 In Mall vs. Suydami, 6 Barb., 83, it is held that proof of express 
 malice is not sufficient, without showing also a want of probable cause, 
 and that the latter does not turn on the actual guilt or innocence of the 
 accused, but on the belief of the prosecutor concerning such guilt or 
 innocence. Probable cause is there defined as, " a reasonable ground of 
 ■ suspicion, supported by circumstances sufficiently strong in themselves 
 to warrant a cautious man in the belief, that the accused is guilty of 
 the offence with which he is charged" (86). See same rule stated, in Gor- 
 don^s. Upham, 4:E. D. Smith, 9 ; and Scanlan vs. Cowley, 2 Hilt., 489. 
 
 The fact that the plaintiff was convicted by a jury is conclusive, 
 and, if apparent in the complaint, will be fatal to the suit. Miller vs. 
 Deere, 2 Abb., 1. Nor will a reversal, for error of law, prevent the 
 application of the rule. The only exception is, when fraud in obtain- 
 ing the conviction, by means which prevented the plaintiff from setting 
 up his defence, is set up and proved. 
 
 In a complaint of this nature, an averment of matter tending to 
 show the defendant's motive, was held not to be irrelevant, in BrooUe- 
 mam, vs. Bram,dt, 10 Abb., 141. 
 
 As to the class of cases in which an action for malicious prosecution 
 may be maintainable, though one for false imprisonment will not lie, 
 vide Sleight vs. Ogle, 4 E. D. Smith, 445 ; and Waldheim vs. Sichel, 1 
 Hilt., 45. 
 
OF THE COMPLAINT. — § 142. 705 
 
 When the facts of the case are established, the existence of probable 
 cause is a question of law, and, even when there is a conflict of evidence 
 as to fact, the judge, in submitting that question to the jury, is bound to 
 accompany that submission with an instruction as to what facts, if estab- 
 lished, will constitute probable cause, and to submit to them only the 
 question as to the existence of those facts. See this rule, as established 
 in JBulkeley vs. Keteltas, 2 Seld., 384 ; reversing sa/me case, 4 Sandf., 
 450 ; and followed in JBulkeley vs. Bmith, and several others of the 
 decisions above cited. 
 
 A strong case of want of probable cause was shown, and a judgment, 
 dismissing the plaintiff's complaint, reversed in GrinneU vs. Stewart, 20 
 How., 478 ; 12 Abb., 220 ; 3S Barb., 544. 
 
 (i) Statutoet Action fob Death by Weongful Injury. 
 
 This peculiar form of action is given to the representatives of a per- 
 son, killed by a wrongful act, neglect, or default, by special statute 
 passed on the 13th of December, 1847, chapter 450, p. 575, amended by 
 chapter 256 of 1849, p. 388. The remedy did not exist at common law, 
 and therefore dates only from the former of those periods. 
 
 By the statutes in question, the following requisites are imposed : 
 The death must be caused by a wrongful act, neglect, or default. 
 The act, neglect, or default complained of, must be such as would, if 
 death had not ensued, have entitled the party injured to maintain an 
 action, and recover damages in respect of it. 
 
 The action is to be brought in the name of the personal representa- 
 tives of the deceased person. 
 
 It is to be so brought, for the exclusive benefit of the widow and next 
 of kin, to be distributed among them according to the statute of 
 distribution. 
 
 The jury may give a fair and just compensation, with reference to 
 the pecuniary injury resulting from such death, to the parties bene- 
 ficially entitled. 
 
 But such damages are not to exceed $5,000. 
 And the period of limitation is two years. 
 
 Although pecuniary damage is the basis of the action, it is not 
 necessary either to aver or to prove any immediate pecuniary or special 
 damage, occasioned to the plaintiff", or to the next of kin. The compen- 
 sation is prospective in its nature. The statute assumes that every 
 person possesses some relative value to others. It is, however, strictly 
 pecuniary, and bodily suffering of the deceased, or mental distress to 
 the survivors, forms no part of its proper basis. The death of a minor 
 child though of an age at which its services are for the present value- 
 less is, accordingly, sufficient to ground the action, the compensation, 
 YoL. I.— 45 
 
70Q OF THE COMPLAESTT. — § 142, 
 
 having respect to their prospective value, in a pecuniary point of view, 
 Oldfield vs. The New York and Harlem Railroad Compam/, 4 Kern., 
 310 ; affirming same case, 3 E. D. Smith, 103 ; Green vs. Hudson Bvcer 
 Railroad Company, 32 Barb., 25 ; Quin vs. Moore, 15 N". Y., 432 ; 
 Boeder vs. Ormsby, 22 How., 270 ; 13 Abb., 334. That the right of 
 the deceased, had he survived, to have brought an action for the same 
 injury, forms, in fact, the test of the remedy of the representatives, is 
 maintained in the same cases. Lehman vs. The City of BrooTclyn, 29 
 Barb., 234, in so far as it holds that, in such a case, nominal damages 
 only should be given, seems inconsistent with, and must, therefore, be 
 taken as overruled by this class of decisions. 
 
 An averment that the deceased left a widow or next of kin, is essen- 
 tial, and without it an action cannot be sustained. Lucas vs. The New 
 York Central Railroad Company, 21 Barb., 245 ; Safford vs. Drew, 
 SDuer, 627; 12 L. O., 150. 
 
 It is not necessary that the complaint should directly refer to the 
 statute, but, to sustain it, there must be a positive averment, not only 
 of the acts, but also of the qualifications prescribed. See Brown vs. 
 Harmon, 21 Barb., 508 ; Yertore vs. Wiswall, 16 How., 8. E"or can 
 the plaintiff be required to specify, or give a particular of the items 
 entering into the computation of damages. Murphy vs. Ki/pp, 1 
 Duer, 659. 
 
 An action of this nature was held maintainable by the administra- 
 trix of a railroad engineer, killed by reason of negligence, imputable to 
 the company by which he was employed. Smith vs. The New YorTc 
 and Ha/rlem Railroad Company, 6 Duer, 225 ; affirmed, 19 N. Y., 
 127. See also, as to the higher degree of care which will be required 
 in a railroad company, for the purpose of guarding against accidents, 
 Johnson vs. The Hudson River Railroad Company, 6 Duer, 633 ; and 
 same case, 5 Duer, 21 ; affirmed, 20 N. Y., 65 ; also other decisions 
 above cited. 
 
 As to the liability of an individual, as well as a corporation, for 
 death caused by a wrongful injury, see Baker vs. Bailey, 16 Barb., 54, 
 holding it applicable to a cause of death, the result of an assault. 
 
 A master is liable, under this statute, for the negligence of his servant 
 in- the course of his employment. Althof vs. Wolf, 22 !N". Y., 355 ; 
 affirming soffne case, 2 Hilt., 344. See also samfis case, as to the measure 
 of damages. 
 
 In Lehman vs. The City of BrooTch/n, 29 Barb., 234, the rule that 
 negligence contributing to the injury will bar a recovery, is applied to 
 an action of this description. So also will accord and satisfaction with 
 the deceased, in his lifetime. DiJMe vs. The New York and Erie 
 Railroad Company, 25 Barb., 183. 
 
OF THE COMPLAINT. — § 142. 70T 
 
 A surviving husband may maintain such an action, as administrator, 
 provided it appear upon the face of the complaint that there are next 
 of kin. Oreen vs. The Hudson Svuer Rail/road Gompany, 16 How., 
 263 ; again reported, and also affirmed, 31 Barb., 260 ; Same case, 32 
 Barb., 25. Whether, in the absence of such an averment, he can sue 
 at all, seems doubtful. Vide Lucas vs. The New Yorh Oentral Ma/il- 
 road Company, above cited. In his own right he cannot, where death 
 is the immediate result of the injury. Oreen vs. The Hudson Mmer 
 Railroad Company, 28 Barb., 9 ; 16 How., 230. Nor can he recover 
 any thing for his own loss of services. Dickens vs. New Yorh Central 
 Railroad Company, infra. But, in an action under the statute, it is 
 immaterial whether the result of death from the injury be immediate 
 or consequential. Brown vs. Buffalo and State Line Railroad Com- 
 pany, 22 N. Y., 191. As to the measure of damages in a case of 
 death of a wife, carrying on a profitable business, and the interests of 
 her surviving husband and children, see Tilley vs. Hudson River Rail- 
 road Company, 23 How., 363. 
 
 That a cause of action of this nature survives,' against the executors 
 of the wrong-doer, is maintained in Doedt vs. Wiswall, 15 How., 128 ; 
 and Yertore vs. Wiswall, 16 How., 8. 
 
 It is not necessary that the next of kin should be dependent upon the 
 deceased for their support, or have a right to his services, in order to 
 maintain such an action. Where, therefore, the deceased only left two 
 brothers and a sister, an action was held maintainable by the husband, as 
 administrator, damage to next of kin being averred. Dickens vs. The 
 New Yorh Central Railroad Company, 28 Barb., 41. Eefer, as to 
 statement of questions in this case, to 16 How., 269. 
 
 But, in such a case, no account can be taken of the damage accruing 
 to the surviving husband for loss of service. The measure of damages 
 is to be strictly confined to the injury accruing to the next of kin, as 
 such, exclusive of his rights, The Sam\.e vs. The Same, 23 E". Y., 158, 
 reversing the foregoing and ordering a new trial. 
 
 As before stated, an action of this nature is not maintainable, for an 
 injury accruing out of the bounds of the state. Vandeventer vs. The 
 New Yorh amd New Hamen Rail/rood Company, 27 Barb., 244 ; 
 Whitford vs. The Panama Railroad Company, 23 N. Y., 465 ; 
 affirming, 3 Bosw., 67 ; Crowley vs. The Same, 39 Barb., 99 ; and 
 Beach vs. The Bay State Company, 30 Barb., 433 ; 18 How., 335 ; 
 reversing same case, 27 Barb., 248 ; 16 How., 1 ; 6 Abb., 415. ^ 
 
 As to what will be a sufficient statement of a cause of action, not 
 founded on the statute, see Boeder vs. Ormsby, 22 How., 270 ; 18 
 Abb., 334. 
 
708 OF THE COMPLAINT. — § 142. 
 
 (J.) Personal Injueies. 
 
 » 
 
 Several of the cases bearing upon the matter falling under this sub- 
 division, have been already anticipated in the preliminary section, No. 
 14:1, under the heads of the Relation of Employer cmd Employee, and 
 q{ the Attribution of JV^egligenoe. It will of course be unnecessary to 
 cite them a second time. 
 
 Where two railroad corporations assumed to carry passengers, beyond 
 the limits of the states to which their powers extended, they were held 
 jointly responsible to a party injured by negligence. They were liable 
 under their general duty to the public, and not on any contract for 
 carriage, so as to admit the defence that they were acting ultra vires. 
 Bissell vs. Michigan Southern a/nd Northern Indiana Railroad Com- 
 j>amies, 22 K Y., 258. 
 
 As to the power of a carrier of passengers, to limit his responsibility 
 in the above respect, by express contract with the party carried, see 
 Boswell vs. Hudson River Railroad Company, 5 Bosw., 699. 
 
 A dealer in medicine, who had carelessly labelled a deadly poison as 
 a harmless medicine, was held liable in damages, to any persons subse- 
 quently purchasing from others, and misled in the using by reason of 
 the false label. The liability in such case was held not to arise out of 
 any contract or privity between him and the party injured, but out 
 of the general duty imposed on him by law. Thomas vs. Winchester, 2 
 Seld., 397. See as to responsibility for death arising from a similar 
 cause, Quim. vs. Moore, 15 IST. Y., 432, cited under last subdivision. 
 Also, generally, as to what may be taken as sufficient averments in an 
 action for negligence causing death. Roeder vs. Ormsby, 22 How., 270 ; 
 13 Abb., 334. 
 
 As to the liability of the owner for injuries from the bite of a vicious 
 dog, and what is necessary to be proved, in order to hold him, see 
 Fairchild vs. Bentley, 30 Barb., 147. 
 
 Gross and wilful carelessness in an act, from which injury results, wiU 
 render it malicious, and its perpetrator liable in punitive damages. 
 EtcKberry vs. Levielle, 2 Hilt., 40. 
 
 The cars of railroad companies, running through the streets of a 
 city, are not subject to the ordinary rule of the road, as to turning to 
 the right, nor is a person meeting them bound to observe it. Hegam, 
 vs. The Eighth Avenue Railroad CompoMy, 15 N. Y., 380. 
 
 To be the subject of an action, the injury must be the direct and 
 immediate consequence of the act of the defendant, and, if that act 
 involve a breach of duty, that duty must be owing to the plaintiff. 
 Where, therefore, the plaintiff complained that, by reason of the omis- 
 sion of the defendants to maintain a proper fence between their land 
 
OF THE COMPLAINT. § 143. 709 
 
 and that of a third party, the horse of that party fell down a precipice 
 upon, and injured the plaintiff, his complaint was held demurrable. 
 Ryanvs,. The Boohester and Syracuse Railroad Gom/pany, 9 How., 453. 
 
 A carrier of passengers was held liable for injury, arising from the 
 explosion of a camphene lamp, and it was laid down that the onus of 
 showing that proper care could not have prevented the injury lay upon 
 him. WilUe vs. Bolster, 3 E. D. Smith, 327. 
 
 In an action against carriers, a general averment, that the accident 
 complained of occurred through the negligence and want of care of the 
 defendants, and not through any want of care, neglect, or default on 
 the part of the plaintiff, will raise a sufficient issue, for the admission , 
 of general evidence. Edgerton vs. New York and Harlem Bail/road 
 Company, 35 Barb., 389. 
 
 § 143. Averments in Tort. — Oontinued. , 
 
 (a.) Weongs as to Peopertt. 
 Injuries Wilful or Negligent. 
 
 As to the liability of the owner of a vicious dog, for injury to the 
 dog of another person, lawfully coming upon the premises where he 
 was, and as to what constitutes viciousness, and the duty of the owner 
 under-such circumstances, see TTAsefcr vs. Brant, 23 Barb., 324. But a 
 party so complaining, is bound to show that his own dog was not the 
 aggressor. Wiley vs. Slater, 22 Barb., 506. 
 
 Where injury to the plaintiff's horse was inflicted by that of the 
 defendant, whilst trespassing, it was held unnecessary to make any 
 averment of vicious habits. Dunkle vs. Koeker, 11 Barb., 387. 
 
 The owner of bees was held not liable for injury by them to the 
 plaintiff's horse, when they had been kept in the same place for several 
 years without previous injury. The owner of an animal is only liable 
 for injury committed by it, on the ground of actual or presumed 
 negligence on his part. Earl vs. Yan Alstyne, 8 Barb., 630. 
 
 The finder of a horse is liable to the owner, for injuries occasioned by 
 use, whilst in his possession. Murgoo vs. Cogswell, 1 E. D. Smith, 359. 
 So also is the bailee for hire, and the fact that the contract of hiring 
 was upon a Sunday will not be any defence. Harrison vs. Marshall, 
 4 E. D. Smith, 271. See also, as to the defence of infancy. Fish vs. 
 Ferris, 5 Duer, 49 ; Conkling vs. Thompson, 29 Barb., 218. 
 
 The proprietor of an omnibus line was held liable, for injury to the 
 horse and cart of the plaintiff, arising from negligence of his driver, 
 or defective construction of his stage. Harpell vs. Cv/rtis, 1 E. D. 
 Smith, 78. See also Wolfe vs. Mers&reom, 4 Duer, 473. 
 
710 OF THE COMPLAINT. — § 143. 
 
 In LooTcwood vs. The Mayor of New York, 2 Hilt., 66, the corpora- 
 tion of that city was held liable, for injuries occasioned to the plaintiff's 
 house, by work done by their contractor in pursuance of his contract. 
 See also Laoour ts. The Scmie, 3 Duer, 406. 
 
 ■ Where the property oi another is injured, in consequence of an act, 
 lawful in itself, misconduct or negligence must be proved, or the party 
 occasioning it will not be liable. Stuart vs. Sawley, 22 Barb., 619. 
 
 The owners of a steam-tug were held liable for injuries to a canal- 
 boat towed by them, occasioned by the gross negligence of their ser- 
 vants, although the contract for towing provided that it was to be at 
 the risk of the master and owners. The phrase was held only to extend 
 to the ordinary risks of navigation. Wells vs. The Steam Namgation 
 Company, 4 Seld., 375. And the liability of general charterers is the 
 same as that of owners, in the event of a collision. But otherwise, if 
 the contract is merely one of affreightment. ShermoM vs. Fream, 30 
 Barb., 478. 
 
 (' A complaint for injury by negligence, must show the defendant to be 
 in aatual default, or it will not be sustainable. Taylor vs. The Atlamtio 
 {Mutual Insurance CompoMy, 2 Bosw., 106. 
 
 "Where the purchaser from an alleged parol lessee, was suffered by 
 the owner to go into, and remain in possession, a tenancy was held to 
 be created, and that a subsequent bricking up of the door by the owner, 
 and a refusal to allow the removal of the goods on the premises, were 
 tortious acts, for which he was answerable- in damages. Marquha/rt ys. 
 Lafarge, 5 Duer, 559. 
 
 But consent or acquiescence, on the part of the lessee, to acts consti- 
 tuting a trespass, will operate as a license, and bar a recovery in dam- 
 ages. Walter vs. Post, 6 Duer, 363 ; 4 Abb., 382. 
 
 As to the liability of the city or county, to answer in damages for 
 property destroyed or injured, in consequence of mobs or riots, and the 
 maintenance of an action for that purpose, see Laws of 1855, chapter 
 428, p. 800. An averment of the facts, and of the damages sustained 
 by the plaintiff, will be sufficient to sustain the action, and it is unneces- 
 sary for the plaintiff to negative negligence or carelessness on his own 
 part. Wolfe vs. Supervisors of Biohmond County, 19 How., 370 ; 11 
 Abb., 270. 
 
 A railroad company are answerable in damages, to the owners of 
 adjoining property, for injuries resulting from their execution of their 
 works, or from not restoring a road or stream, crossed by them, to its 
 former condition. Bohinson vs. The New Yorh am,d Erie Bailroad 
 Gompamy, 27 Barb., 512. So also, as to the invasion by them of prop- 
 erty, without previous consent or appraisal of damages. Williams vs. 
 The New York Central Bailroad Corrvpany, 16 IST. Y., 87. 
 
OF THE COMPLAINT. — § 143. Til 
 
 As to the presumption that ordinary care was used, to wMch thG\\ 
 defendant is entitled, in a case where the injury complained of is the ;\„ 
 result of an act lawful in itself, see Lansing vs. Stone, 14 Abb., 199. 
 
 That class of injuries to property, where the act complained of results 
 from, or arises out of, a breach of duty or contract, on the part of the 
 defendant, will be considered in the succeeding section. 
 
 (5.) Breach of Waeeantt. 
 
 A purchaser on warranty, may sue or recoup for the difference in 
 value, nor is his right barred, by his omitting to notify the vendor, or 
 disposing of the goods. Muller vs. Eno, 4 Kern., 597 ; reversing same 
 case, 3 Duer, 421. See likewise, Burt vs. Dewey, 31 Barb., 540. 
 
 See, however, as to the mere exhibition of a sample, not being ^e?" se 
 sufficient to constitute a warranty, Hargous vs. Stone, 1 Seld., 73 ; 
 Beirne vs. Dord, 1 Seld., 95. 
 
 As to what will be sufficient to constitute a warranty, vide Blake- 
 mam, vs. Mackay, 1 Hilt., 266 ; Fiedler vs. Tucker, 13 IIow.j 9. 
 
 "When an action is brought for breach of an implied warranty, the 
 existence and terms of the warranty must be specifically alleged, as 
 traversable facts. Prentice vs. Dike, 6 Duer, 220. As to the extent 
 of the implied warranty, on sale of chattels by the manufacturer, see 
 Hoe vs. Sambom, 21 IST. Y., 552. 
 
 In an action upon a warranty, it is not necessary that all the repre- 
 sentations made by the defendant should be false or actionable. If any 
 part of them are so, it will suffice. A positive affirmation of a fact, in 
 trade negotiations, was held to be a sufficient warranty. Sweet vs. 
 Bradley, 24 Barb., 549. 
 
 An action on the case in the nature of deceit, will lie on a false war- 
 ranty on a sale of goods, if that warranty be express. Nor is it neces- 
 sary, in such case, to allege or prove fraud. It is enough to aver and 
 establish the warranty, and that it was false. ISTor is it necessary to 
 sue as in assumpsit, but the old form of action may be properly follow- 
 ed. Fowler vs. Ahrams, 3 E. D. Smith, 1— a horse case. 
 
 Where the purchaser of a horse, represented to be sound and kind, 
 had the option of returning it, if unsound, and retained it, knowing of 
 its unsoundness, it was held he could not defend, on the ground of breach 
 of the original warranty. Van Allen vs. Allen, 1 Hilt., 524. 
 
 As to the amount of liability for resulting injuries, and the measure 
 of damages against the defendant, in an action for a false warranty of 
 gentleness and kindness, see Sharon vs. Mosher, 17 Barb., 518. Also 
 as to the measure of damages, and rights of the purchaser, on breach of 
 a warranty of soundness. Fiernan vs. Roclieleau, 6 Bosw., 148. 
 And, in such a case, it is not sufficient that the vendor tells truth as 
 
712 OF THE COMPLAINT. § 143. 
 
 to the article sold. He should tell the whole truth, fully and fairly, or 
 he may be liable in damages for the concealment. Nichley vs. Thomas, 
 22 Barb., 652. 
 
 As to the principle that a general warranty of soundness will not 
 extend to defects, visible at the time of sale, and not requiring skill to 
 detect them, see Bvrdseye vs. Frost, 34 Barb., 367. 
 
 As to the power of an agent to warrant, and as to the extent to 
 which a purchaser will be warranted in relying on a warranty, when 
 given, as affecting the rule of damages, see Milhurn vs. Belloni, 34 
 Barb., 607; 22 How., 18 ; 12 Abb., 451. 
 
 (c.) False Eepeesentations. 
 
 An action on the case for damages, will lie against the vendor of land 
 for false representations as to the non-existence of an alleged incum- 
 brance, though he sold the land as trustee for others, and though the 
 purchaser had notice, but relied on his denial. Haight vs. Hayt, 19 N. 
 T., 464. So also, for fraudulent representations as to the boundaries of 
 land sold, and suppression of the fact of there being no title to part. 
 Cla/rh vs. Baird, 5 Seld., 183. So likewise as to a false representation 
 of the ownership of land in another state, inducing an exchange and 
 other outlays, on the part of, and damages incurred by the plaintiff". 
 McOovern vs. Payn, 32 Barb., 83. 
 
 As to the responsibility of a vendor of land, for false statements made 
 by his agent, and for any representations, made without knowledge of 
 their truth or falsity, see Bennett vs. Judson, 21 IST. Y., 238. 
 
 In White vs. Merntt, 3 Seld., 352, it is generally laid down that a 
 false representation, made with intent to injure another, and, in relying 
 on which he is injured, is a good cause of action, though no benefit 
 accrue to the party making it, from the falsehood. 
 
 In ZalrisMe vs. Smith, 3 Kern., 322, it is laid down that a party is 
 liable in damages who, in bad faith, and with a view of inducing others 
 to credit a merchant, represents that he has- examined into his aftairs, 
 and considers him solvent, when such merchant is in fact insolvent, 
 and the party has not investigated his afi'airs, and knows nothing of 
 his business condition, except that he is largely indebted. And also, 
 that the responsibility of the party making such representations, is not 
 necessarily confined to the credit immediately induced, but may be 
 continuing. 
 
 In the same case it is laid down that the complaint in such an action 
 should aver, and the plaintiff must prove, that the representations were 
 made, with intent to deceive and to defraud. 
 
 In Bobinson vs. Flimt, 16 How., 240 ; 7 Abb., 393, note, it is held that, 
 where the complaint shows a false representation, known by the party 
 
OF THE COMPLAINT. — § 143. 713 
 
 , making it to be false — made as the foundation of a contract with a per- 
 son deceived thereby, and damages in consequence of such deception, it 
 states a suiScient cause of action. 
 
 In White Ys. Seaver, 25 Barb., 235, it was held that false representa- 
 tions, as to the vendor being entitled to the benefit of a contract, were 
 actionable, but that, if the intended purchaser, having the means of 
 knowledge within his power, neglects to make inquiry, his right of 
 action will be lost. See also. Swift vs. The City of Willicmisburgh, 24 
 Barb., 427, as to the similar waiver of a right to sue for false represen- 
 tations inducing a contract, when their falsity might have been ascer- 
 tained, by examination of the records in the city clerk's office. 
 
 These two cases seem, however, to be mainly, if not entirely, over- 
 ruled by the contrary doctrine, as laid down in Haight vs. Hayt, above 
 cited. 
 
 In Sean vs. Wills, 28 Barb., 466 ; 17 How., 90, false representations 
 as to the solvency of another, inducing credit, and made with an express 
 view to secure a benefit to the party making them, were held actionable. 
 
 In Fa/rritigton vs. Fratikfort Bank, 24 Barb., 554, an indorsement of 
 bills of exchange, obtained by false representations of the drawer, was 
 held void, as against a bank, to which they were delivered by the 
 drawer, as additional security for his protested paper, and that the 
 indorser might have maintained an action against the bank to have such 
 indorsement cancelled. 
 
 In Beclcmann vs. Bormann, 3 E. D. Smith, 409, a person, selling per- 
 sonal property as his own, to which in fact he had no right, except as 
 tenant, was held answerable in damages for the failure of title. 
 
 A party retaining any part of the benefit of a contract induced by 
 fraiid, cannot sue for its rescission. Fisher vs. Gonant, 3 E. D. Smith, 
 199 ; Rosenhawm, vs. Ounter, 3 E. D. Smith, 203. 
 
 Directors or officers of a public company making false representations 
 as to its prospects, or the value of its shares, are jointly or severally 
 liable, and this not merely to persons directly dealing with them, but 
 also^to any members of the. public, who, relying upon such false informa- 
 tion may become purchasers of its shares in the market, or from a third 
 person, without any immediate communication soever. Cross vs. Sackett, 
 2 Bosw., 617 ; 16 How., 62 ; 6 Abb., 247 ; Oazeaux vs. Mali, 25 Barb., 
 578 ; 15 How., 347 ; Newbery vs. Garlmid, 31 Barb., 121 ; Morse vs. 
 Swits, 19 How., 275 ; also Wells vs. Jewett, 11 How., 242 ; and see 
 Bell vs. MaU, 11 How., 254, in part overruled by the above ; and 
 Seizer vs. Mali, 32 Barb., 76 ; which, though subsequent in date, seems 
 inconsistent in substance, so far as general liability to the public is con- 
 cerned. 
 
 But such an action is, of course, only maintainable, when it will 
 
714 OF THE COMPLAINT. — § 143. 
 
 otherwise lie. See, as to proceedings by a foreign corporation, not 
 brought within the jurisdictional purview of section 427, House vs. 
 Cocyper, 30 Barb., 157; 16 How., 292. 
 
 As to the necessity of alleging in terras, knowledge of falsity of rep- 
 resentations, on the part of the person making them, and also of a 
 fraudulent intent in such making, see Mdbey vs. Adams, 3 Bosw., 346. 
 In this case it was considered that directors, as such, are not liable for 
 false statements in the original articles of association, made before their 
 appointment, and that a purchaser from the association itself, cannot 
 sue its directors for violations of the statute, antecedent to his purchase. 
 
 As to a conspiracy to defraud, see lUon Bank vs. Carver, 31 Barb., 
 230. 
 
 (<?.) Teespass " De Bonis Aspoetatis ;" oe, Teovee and Coitveesion. 
 
 The action for damages, which now stands in the place of the above 
 forms of remedy, under the former system, affords redress, in cases of 
 the wrongful abstraction or obtaining of property. In many of the 
 cases in which it is applicable, the plaintiff has his election^ whether to 
 resort to it or to the closely allied remedy of replevin. The latter is in 
 the nature of a possessory action, and is of course only expedient, when 
 the property in question remains in specie, and can be reached by pro- 
 cess. Trover, or trespass, on the contrary, is more peculiarly appropriate 
 to those cases where that property has been either destroyed, removed 
 beyond reach of the plaintiff, or so injured, that a bare restoration, even 
 with damages for its detention, will not afford adequate redress. 
 
 Although replevin, as well as trover, has its basis in a wrongful 
 taking or detention of property, it has been thought better to devote 
 a separate section to the consideration of the former, and to confine 
 the observations and citations in the present, to the latter, separately 
 considered. 
 
 The two, though so closely allied, cannot be maintained in conjunc- 
 tion. In trover, the relief asked consists wholly and exclusively in 
 damages. The subject-matter of the action is abandoned, and compen- 
 sation is sought for its loss. In replevin, on the contrary, the restora- 
 tion of that subject-matter is the gist of the action, and any demand 
 for money damages is only dependent or alternative. 
 
 The governing principle by which the distinction is to be drawn is 
 the prayer far relief, which must, of course, be properly adapted to the 
 statement. That prayer determines the nature of the action. If a 
 mere judgment in damages is demanded, the action is trover, or trespass, 
 as above, and the provisional remedy of replevin cannot be obtained. 
 See Seymour vs. Yan Cur en,, 18 How., 94 ; Spalding vs. Spalding, 3 
 How., 297.; 1 0. K., 64 ; Dows vs. Oreen, 3 How., 377 ; MaxweU vs. 
 
OF THE COMPLAINT. — § 143. 715 
 
 Famam, 1 How., 236. See heretofore, section 139, under the head of 
 Joinder. 
 
 In cases where the wrongful taking of goods involves also a liahility 
 on contract, a plaintiff has his election, between this remedy, and an 
 ordinary action for debt ex contractu. But, having once made his elec- 
 tion, he must abide by it, and accept its consequences. As to the 
 stricter measure of proof in trover, and otherwise, see heretofore, sec- 
 tion 140, subdivision Median, and eases there cited. 
 
 In one respect, the election of trover may possibly prove a disadvan- 
 tage, inasmuch as it changes the nature of the claim; and a judgment 
 for the value of exempt property, is no longer the subject of exemption 
 from levy, as the property itself, if recovered, would have been. Mai- 
 lory vs. Norton, 21 Barb., 424. 
 
 On the other hand, a suit for the conversion of a chattel, may, in some 
 cases, head off a defence, which in a mere action for its value, soimding 
 in contract, would be available. Fish vs. Ferris, 5 Duer, 49. See, 
 as to the converse of this proposition, Munger vs. Hess, 28 Barb., Y5. 
 
 A right of action of this nature is assignable, and the assignee may 
 sue in his own name. See heretofore, section 32, under subdivision 
 Assignmsnts in Tort, and cases there cited. 
 
 An administrator may maintain trespass or trover, for an unlawful 
 taking of the goods of the deceased after his death, but before adminis- 
 tration granted. MocTcwell vs. Saunders, 19 Barb., 473 (480), or during 
 the intestate's lifetime. In this case, he must make special averments, 
 to show his representative character; but, for a conversion after the 
 intestate's death, and even before administration granted, this is not 
 •necessary. Sheldon vs. Soy, 11 How., 11. 
 
 A qualified or limited ownership in the plaintiff, accompanied by 
 the right to immediate possession, is sufiicient ground of action. Thus, 
 assignees under an assignment, invalid on its face, but not yet formally 
 set aside, and who had discharged the amount of a levy upon the 
 chattel claimed, were held entitled to recover, as against parties stand- 
 ing in the position of creditors at large of the assignors, though claim- 
 ing a right to possession in hostility to the latter. Andrews vs. Durant, 
 18 N. T., 496. The maker of a promissory note may maintain a suit 
 for its conversion, against a person wrongfully negotiating It, before it 
 has any legal inception. Decker vs. Mathews, 2 Kern., 313 ; affirming 
 same case, 5 Sandf., 439. Nor will the existence of a contract for sale 
 of goods, deprive the owner of a right to maintain trover for their con- 
 version, whilst that contract remains uncompleted. Minsesheimer vs. 
 Eei/ne, 4 E. D. Smith, 65. 
 
 The finder of goods may maintain an action^ against a wrongdoer 
 who subsequently converts them. Mathews vs. Harsell^ 1 E. D. Smith, 
 
T16 OF THE COMPLAIlirT. — § 143. 
 
 393. So may a factor, in charge of goods and responsible for tlieir 
 value. (rwwOT vs. Carey, 1 Abb., 285. A husband in joint possession 
 with his wife of chattels purchased by her, was held entitled to main- 
 tain trover against her mortgagee, on the ground that her contracts 
 were void, and he himself was liable for the price. Switzer vs. Valen- 
 tine, 10 How., 109. And a sheriff may also hold a party liable for 
 conversion, who wrongfully removes goods levied upon. Sark&r vs. 
 Bininger, 4 Kern., 270. But such action is only maintainable by 
 him, and not by his deputy. Terwilliger vs. Wheeler, 35 Barb., 620. 
 
 Either the owner of goods, or a bailee having a special property 
 therein, may sue for the conversion, but a recovery by the former, is a 
 bar to any subsequent suit by the latter. Green vs. Clarice, 2 Kern., 
 343. See also Alt vs. Weidenberg, 6 Bosw., 176. And possession, and 
 & prima facie title to property, suffice to ground the action as against a 
 wrongdoer. Beatty vs. Swarthout, 32 Barb., 293. So much so, that a 
 party in possession of estrays, was held entitled to maintain trespass or 
 trover, against any one, except the owner, or a party having a right to 
 their possession. Hendricks vs. Declcer, 35 Barb., 298. See, to the 
 same effect, Kissam vs. Roberts, 6 Bosw., 154. Likewise, as to the 
 effect of a delivery, under a contract for payment of a debt in specific 
 articles. Woodford'^?,. Patterson, 32 Barb., 630. 
 
 But a party not entitled to absolute and unqualified possession can- 
 not sue. Trover is, therefore, not maintainable, by one tenant in com- 
 mon of chattels against another, for an appropriation of his share 
 where capable of severance. Forbes vs. ShattucTc, 22 Barb., 568 ; Tripp 
 vs. Biley, 15 Barb., 333. See also Tinney vs. Stebbins, 28 Barb., 290. 
 But otherwise, when the conversion is in fact a destruction of the' 
 property. Benedict vs. Howard, 31 Barb., 569. JSTor can it be brought 
 by the vendee, under an executory contract, not fully performed. Chap- 
 man vs. Kent, 3 Duer, 224 ; Comfort vs. Kiersted, 26 Barb., 472. See 
 also Andrews vs. Durant, above cited. 
 
 The holder of goods wrongfully pledged is liable, in trover, for a 
 Musal to deliver them up after demand. Henry vs. Marvin, 3 E. D. 
 Smith, 71. So also is a third party, refusing to deliver goods in 
 his possession to their purchaser. McGinn vs. Worden, 3 E. D. Smith, 
 355 ; Hall vs. Bobimson, 2 Comst., 293. See likewise Tuttle vs. Glad- 
 ding, 2 E. D. Smith, 157, and, as to the consequences of assigning 
 a false pretence for such refusal. So also is a pledgee, delivering 
 over property to the original pledgor, after notice of an assignment. 
 DvAl vs. Cudlipp, 1 Hilt., 166. 
 
 A gratuitous bailee is responsible, for the loss of property occasioned 
 by his carelessness. Riva/ra vs. Ghio, 3 E. D. Smith, 264. See like- 
 wise Morris vs. Tlii/rd Avenue Railroad Company, 23 How., 345. 
 
OF THE COMPLAINT. — § 143. 717 
 
 A party hiring a horse for a specific distance, and going beyond it, is, 
 in the event of injury, liable for its conversion. Fiah vs. Fema, 5 
 Duer, 49 ; Disbrow vs. Tenbroeck, 4 E. D. Smith, 397. In such a case 
 infancy wilL be no defence. Fiah y?,. Ferris, swpra. 
 
 Trover will lie for goods unpaid for, the sale of which has been 
 obtained by fraud. Schmidt vs. Kattenhorn, 2 Hilt., 157. See also, as 
 to a fraudulent sale, Ludden vs. Hazen, 31 Barb., 650. Likewise, by 
 an execution creditor, against the purchaser of goods from trustees, 
 under circumstances showing the sale to be in bad faith. Pine vs. 
 Mhert, 21 Barb., 469. 
 
 Trover is maintainable, after demand and refusal to restore it, for 
 stock pledged as collateral security for payment of an usurious loan. 
 Cousland vs. Dcmis, 4 Bosw., 619. Also, for stock sold, without 
 authority of the real owner, even although a valuable consideration 
 have been given for it by the holder, in good faith, to a person whose 
 possession is wrongful. Anderson vs.- Nicholaa, 5 Bosw., 121. 
 
 Trover is maintainable, by the purchaser under a foreclosure sale, for 
 the severance of fixtures, annexed to the freehold by the mortgagor 
 subsequent to the mortgage. Gardner vs. Finley, 19 Barb., 317. By 
 the lessor of furniture in a building, against his lessee, for its wrongful 
 removal. Davison vs. Donadi, 2 E. D. Smith, 121. By the bailor of 
 personal property against an assignee of the bailee. Hyde vs. Coohson, 
 21 Barb., 92. Against an agent, omitting to account for a specific sum 
 of money received. Donohue vs. Henry, 4 E. D. Smith, 162. Against 
 a sheriff taking goods out of the possession of a vendee, on execution 
 against his vendor. Salmon vs. Orser, 5 Duer, 511. 
 
 An attachment, regular on its face, even though issued in bad faith, 
 protects all parties, and they will not be liable in trover for a levy 
 under it. The remedy is by action for the alleged fraud. Whitaker vs. 
 Merrill, 28 Barb., 526. Nor is a sheriff liable in trespass, for taking the 
 goods of the plaintiff out of the possession of a third person, under 
 process of replevin. The remedy lies against the persons who insti- 
 gated the taking. Foster vs. Pettihone, 20 Barb., 350. 
 
 Trover will not lie against the sheriff, or against an execution-creditor, 
 for selling chattels remaining in the possession of a mortgagor, under 
 stipulation to that effect in the mortgage. All that passes by the sale, 
 is the mortgagor's interest, such as it is, and the mortgagee, when he 
 becomes entitled to possession, may follow and reclaim the goods. 
 Goulet vs. Asseler, 22 N. T., 225 ; Hull vs. Ga/rnley, 1 Kern., 501 ; 
 TU Same vs. The Same, 17 N. Y., 202. 
 
 As to the right of the mortgagee, to maintain an action for the 
 damage to his reversionary interest, see Manning vs. Monaghan, 23 
 N. T., 539. See also Parish vs. Wheeler, 22 JST. Y., 494, as to the 
 
718 OP THE COMPIiAIIfT. — § 143. 
 
 measure of a mortgagee's recovery against the mortgagor, for conversion 
 of the goods mortgaged, after forfeiture. 
 
 A hand fide subpurchaser of goods, is not liable in trover, to an 
 owner vi^ho has delivered them to the original vendee, though such 
 delivery has been induced by fraud, which would authorize a disaf- 
 firmance of the contract. Caldwell vs. Barilett, 3 Duer, 341 ; Keyeer 
 vs. Sarbech, 3 Duer, 373. But any thing calculated to give such 
 subpurchaser notice, or to put him upon inquiry as to fraud in the 
 original sale, will deprive him of the benefit of this rule. Dcmforth 
 vs. Da/rt, 4 Duer, 101. 
 
 The holder of goods subject to a lien, is not liable for conversion, 
 until after demand and payment, or tender of the amount due, if any. 
 Coller vs. Shepa/rd, 19 Barb., 305. Refusal to deliver, however, upon 
 tender made, discharges the lien, and constitutes a conversion. La 
 Motte vs. Archer, 4 E. D. Smith, 46 ; Meserole vs. Archer, 3 Bosw. 
 376. Where, however, the holder claims a lien, his claim must be 
 specifically asserted at the time of demand, or his refusal to deliver 
 may be sufficient proof of conversion. Heine vs. Anderson, 2 Duer, 318. 
 
 An agent to whom goods had been sent for delivery to the vendee, 
 was held not liable in trover, for a refusal to deliver them without pay- 
 ment in cash, though a bill had been drawn against them by the vendee, 
 and accepted by the plaintiff. Ralph vs. Stuart, 4 E. D. Smith, 627. 
 
 If the value of goods, in the possession of a bailee for manufacturing 
 purposes, be enhanced by his labor, he or his assignee, though liable in 
 trover for their return, will be entitled to a deduction in respect of their 
 increased value. Hyde vs. CooTcson, 21 Barb., 92. But, where prop- 
 erty has been wrongfully converted, the reverse is the rule, and the 
 owner is entitled to recover the enhanced value, even though owing to 
 the labor and expense of the party illegally withholding. Waliher 
 vs. Wetmore, 1 E. D. Smith, 7. 
 
 An unconditional offer to return property claimed, before suit brought, 
 may defeat a recovery in replevin, but, where demand has been pre- 
 viously refused, trover may lie for damage occasioned by such original 
 refusal. Samage vs. Perkins, 11 How., 17. 
 
 ' Trover will not lie against a party not guilty of an actual conversion, 
 and who has never had possession of the property, but merely claims a 
 lien upon it as mortgagee. Matteawan Company vs. Bemtley, 13 Barb., 
 641. ISTor is a pledgee, who has returned property to the pledgor, before 
 the acquisition of title by the plaintiff as assignee, liable to him. Duell 
 vs. Cudlipp, 1 Hilt., 166. 
 
 Where the possession of the defendant has not been wrongfully 
 acquired, as against the plaintiff in the action, a previous demand and 
 refusal to deliver is essential to its maintenance. So held as to a party 
 
OF THE COMPLAINT. — § 143. 119 
 
 detaining property from a vendee, subsequent to his haying taken pos- 
 session. Davis vs. ICruger, 4 E. D. Smith, 350. As to an abstract 
 loaned. Power vs. Bas.sford, 19 How., 309. So also as to a personally 
 innocent holder of stolen goods. Ourney vs. Kenny, 2 E. D. Smith, 132. 
 
 Where, after goods have come to the possession of the defendant, an 
 assignment of them has been made, there must be a demand, subsequent 
 to that assignment. Hassell vs. Borden, 1 Hilt., 128 ; Duell vs. Cudr 
 lipp, swpra; Sherman vs. Elder, 1 Hilt., 1Y8 ; Cass vs. New York amd 
 New Hawen Railroad Company, 1 E. D. Smith, 522 ; Hall vs. Eob- 
 imon, 2 Comst., 293 ; Bliss vs. Cottle, 32 Barb., 322. After a reversal 
 of judgment, demand must be made upon an officer in possession of 
 property levied upon under it, before he will be liable for a refusal to 
 , restore it. Smith vs. Allen, 2 E. D. Smith, 259. 
 
 So also, a demand is proper before suit against the holder of goods 
 wrongfully pledged. Henry vs. Marvin, 3 E. D. Smith, 71. Or against 
 the holder of goods, purchased by the plaintiff from their owner. 
 McGinn vs. Warden, 3 E. D. Smith, 155. 
 
 But a demand of this nature must be specific, and the party upon 
 whom it is made is entitled to all proper information which he may 
 reasonably require, or it will be insufficient. Breese vs. Ba/ngs, 2 
 E. D. Smith, 474. If the party upon whom it is made, have any doubt 
 of the demandant's authority, he must inquire of it at the time, and may 
 require reasonable evidence. But if he omit to do so, or rest his refu- 
 sal upon a false pretence, he cannot afterwards object. Tuttle vs. Gladr 
 dvng, 2 E. D. Smith, 157. But the demand should be made by the 
 claimant in person, or some one duly authorized to make it. Bliss vs. 
 Cottle, 32 Barb., 322. 
 
 Demand will be sufficient, if made of one of several joint holders. 
 Ball vs. La/rhin, 3 E. D. Smith, 555. Or against an agent fully author- 
 ized, as the baggage master at a railroad station, in an action for loss 
 of baggage. Cass vs. The New YorTc and New Haven Railroad Com- 
 pany, 1 E. D. Smith, 522. 
 
 But, when demand is made, ability to comply with it at the time, 
 must be shown, or an action in this form will not be maintainable. 
 Whitney vs. Slauson, 28 Barb., 276 ; Bowman vs. Eaton, 24 Barb., 
 528 ; Andrews vs. Shattuok, 32 Barb., 396. 
 
 As to how far the acts of an officer of a corporation, may or may not 
 amount to a conversion by the corporation itself, and also as to the 
 effect of a qualified refusal to deliver on demand, and as to that of a 
 subsequent offer before suit brought, see Thomson vs. Sixpenny Sav- 
 ings Bank of City of New York, 5 Bosw., 296. 
 
 Where the taking by the defendant into his possession is wrongful, the 
 rule will be reversed, and an action is maintainable without any previ- 
 
720 or THE COMPLAmT. — § 143. 
 
 ous demand. Moses vs. Walker, 2 Hilt., 536 ; Pringle vs. Phillips, 5 
 Sandf., 157 ; Zachrisson vs. Ahman, 2 Sandf., 68 ; McKie vs. Judd, 2 
 Kern., 622 (626) ; Davison vs. Donadi, 2 E. D. Smith, 121 ; New 
 York Gar Oil Oompcmy vs. Richmond, 6 Bosw., 213. 
 
 Nor, where the possession of the defendants is of this nature, will 
 any previous tender of any lien which they might otherwise claim, be 
 requisite. Walther vs. Wetmore, 1 E. D. Smith, Y. 
 
 In a complaint of this nature, an actual fraudulent conversion by the 
 ii_ plaintiff must be both alleged and proved. Howell vs. Kroose, 4 E. D. 
 Smith, 357 ; 2 Abb., 167 ; Eall vs. Robinson, 2 Comst., 293. And 
 proof of a demand and refusal are on\j prima facie evidence, and will 
 jnot suffice, without further proof of actual fraud and negativing any 
 adverse implication. Boyle vs. Roche, 2 E. D. Smith, 335. 
 
 Where the title of the plaintiff to the subject-matter of the action is 
 dependent upon the construction of a written document, that document 
 should be set forth, or its purport siifficiently alleged. And if an objec- 
 tion to the plaintiff's recovery appears upon the face of the complaint, 
 it will, of course, be held defective. Fairbanks vs. Bloomfield, 2 
 Duer, 349. 
 
 But, under ordinary circumstances, a general allegation of ownership, 
 without stating details, will be both sufficient and proper, and a bill of 
 sale under which such ownership is derived, may be given in evidence 
 without special allegation. Heine vs. Anderson, 3 Duer, 318. An 
 issue joined on this allegation, admits any description of counter-evi- 
 dence on the part of the defendant. Da/ois vs. Hoppock, 6 Duer, 254. 
 
 In an action for the wrongful taking of goods, ownership in the 
 plaintiff need not be alleged, and even an allegation from which pos- 
 session may be implied, will suffice. EUssam' ys,. Roberts, 6 Bosw., 154. 
 
 And in an action on the ground of fraud, a general claim of owner- 
 ship will be sufficient, without any detailed allegation of the facts con ■ 
 stituting the plaintiff's title. Bliss vs. OoUle, 32 Barb., 322. 
 
 Any lengthened statement of details as to the nature of the owner- 
 ship of the plaintiff, or the mode of conversion by the defendant, will, 
 with the exception above noticed, be not only wholly unnecessary, but 
 may be stricken out as irrelevant and redundant. Moffatt vs Pratt 
 12 How., 48. . 
 
 A mere breach of duty, as that of an agent intrusted with property, 
 and selling it at an undervalue, contrary to instructions, will not be 
 sufficient to constitute a conversion, and a variance of this nature 
 between the allegation and the proof, will be fatal. Moore vs McKib- 
 bin, 33 Barb., 246. 
 
OT THE COMPLAINT. — § 144. 721 
 
 § 144. Averments in Tort. — Oontinued. 
 
 Breach ofDuiy or Contract, 
 {a.) Common Caueiees. 
 
 In a suit against a person or a corporation, standing in this relation 
 to the public, the liability to be enforced is of a mixed nature, arising 
 mainly in respect of breach of duty, and also, to some extent, in 
 respect of breach of the implied contract for safe carriage and delivery. 
 
 The former is however the dominant principle, and, as a general rule, 
 an action of this description sounds in tort. 
 
 It may be maintained, in fact, when there exists no direct contract 
 between the parties, as in the case of a party injured by a railroad 
 accident, when the contract for his carriage was made, not with himself 
 but with his employer. Nolton vs. The Western Railroad Corpora- 
 tion, 15 E". Y., iii ; affirming same case, 10 How., 97. See also as to 
 the liability of railroad companies, for injury to a passenger actually 
 carried by them, though the contract, under which he was carried 
 was invalid as a contract, being ultra vires. Bissell vs. Michigam, 
 Southern and Northern Indiana Railroad Companies, 23 E". Y., 258. 
 
 An action of this description, in respect of a miscarriage of property, 
 is maintainable by an assignee of the original demand. See heretofore, 
 section 32, under the subordinate head of Assignments in Tort. The 
 rule is otherwise as to a personal injury. See this subject heretofore 
 considered. 
 
 The old common-law doctrine, that a common carrier of goods stands 
 in the light of a quasi-msnrer, and is responsible for all accidents, save 
 such as arise from the act of .God, or of the public enemy, still governs, 
 though its strictness in application has been somewhat relaxed. See 
 generally as to this responsibility, and the averments necessary to sus- 
 tain a claim, Merritt vs. Earle, 31 Barb., 38. 
 
 But, although inevitable accident may excuse the carrier, the prin- 
 ciple does not apply in a case where he is anywise in fault himself. 
 Unreasonable delay on his part, will render him liable for a loss, occur- 
 ring under circumstances which, but for his laches, would have aflEbrded 
 a sufficient excuse. Read vs. Spaulding, 5 Bosw., 395. 
 
 As regards a carrier of passengers, the rule is less severe, and to hold 
 him answerable for a personal injury, negligence must be shown or 
 must be imputable, and negligence contributing to the injury must be 
 disproved. See above, under the subdivision of Personal Injuries. 
 
 A carrier of goods is permitted to limit his liability by special con- 
 ,tract ; he cannot, however, do so by mere notice, even if brought to 
 the knowledge of the owner. Dwr vs. The New Jersey Steam Navi- 
 YoL. I.— 46 
 
Y22 QP THE COMPLAINT. — § 144. 
 
 gation Company^ 1 Kern., 485 ; Mercantile Mutual Insurance Cotn- 
 pany vs. Chase, 1 E. D. Smith, 115 ; Nenmis vs. Bay State Steamboat 
 Company, 4 Bosw., 225 ; Newstadt vs. Adams, 5 Duer, 43 ; Parsons vs. 
 Monteath, 13 Barb., 353 ; Moore vs. Evans, 14 Barb., 524. So also as 
 to a carrier of passengers. TFeKs vs. The New Yorh Central Sail- 
 road Company, 26 Barb., 641 ; Smith vs. The Same, 29 Barb., 132 ; 
 Boswell vs. Hudson River Railroad Company, 10 Abb., 442. 
 
 But such a limitation will not excuse gross negligence, for which, not- 
 withstanding, he may still remain liable. See, as to a carrier of passen- 
 gers, Willes vs. The New York Central Railroad Compamy, and Smith 
 vs. The Same, supra; Bissell vs. The Same, 29 Barb., 602. As to injury 
 to property, Wells vs. The Steam Navigation Company, 4 Seld., 375. 
 
 A common carrier may, by stipulation, secure to himself the benefit of 
 any insurance effected by the owner, and, in such case, the insurers have 
 no right of action against him, in case of abandonment. Mercantile 
 Mutual Insurance Company vs. Calebs, 20 N. Y., 173. 
 
 A party standing in this relation, is liable for contracts made by his 
 servants, or agents authorized by him to receive goods for carriage, or 
 allowed by him to hold themselves out to the public, as possessing such 
 authority. Medhury vs. The New YorTc and Erie Rail/road Company, 
 26 Barb., 564 ; Sohroeder vs. The Hudson River Railroad Company, 5 
 Duer, 55 ; Fenn vs. Timpson, 4 E. D. Smith, 276. Also, for the wrong- 
 ful acts of his agents or servants. Weed vs. The Panama Rail/road Comr 
 pany, 5 Duer, 193 ; Nolton vs. Western Railroad Corporation, supra. 
 And likewise, in respect of their neglect of duty, see Freeman vs. New- 
 ton, 3 E. D. Smith, 246 ; Porter vs. New YorTc Centrpd Railroad Com- 
 pany, 34 Barb., 353 ; Morris vs. Third Avenue Railroad Company, 23 
 How., 345. 
 
 If a carrier undertakes to carry goods to a point beyond his route, he 
 is liable for their safe delivery, at the place to which they are so under- 
 taken to be carried, and for any injury occurring to them in the course 
 of their carriage to that place. And, where the carriage for the whole 
 distance is performed by several companies, employing a common agent 
 to make contracts for carriage, an action is maintainable against any one 
 of them. Hart vs. The Rensselaer and Saratoga Railroad Comparvy, 
 4 Seld., 37 ; Foxyb. The Troy and Boston Railroad Company, 24 Barb., 
 382 ; Schroeder YS,. The Hudson River Railroad Company, 5 Duer, 55 ; 
 Mallory vs. Burrett, 1 E. D. Smith, 234 ; Thomas vs. Mills, 4 E. D. 
 Smith, 75 ; McCormich vs. The Hudson River Railroad Company, 4 
 E. D. Smith, 181 ; Quirriby vs. VamderUlt, 17 N. Y., 306 ; Wing vs. 
 The New Yorh and Erie Railroad Company, 1 Hilt., 235 ; Krender vs. 
 Woolcott, 1 Hilt., 223. ISTor will a direction to deliver a parcel at a . 
 particular place, to an agent of the carriers', for further transmission, 
 
OF THE COMPLAINT. — § 144. V23 
 
 avail to discharge their liability and substitute that of the agent. Bus- 
 sell vs. Livingston, 16 IST. Y., 515 ; reversing same case, 19 Barb., 346. 
 
 As to the right of a carrier or forwarder to deviate from the mode of 
 transmission agreed upon, in a case of absolute necessity, vide Johnson 
 vs. New York Central Railroad Company, 31 Barb., 196. In doing so, 
 however, he acts at his peril. 
 
 Where no contract is made between the. plaintiff and the defendants, 
 or their authorized agents, for transportation for 'the whole distance, a 
 railroad company, receiving and carrying goods for only part of a 
 mixed route, will only be liable as forwarders, and a delivery, in good 
 order, to other carriers, for a further portion of the route, will discharge 
 them. Hempstead vs. The New York Central Railroad Compamy, 28 
 Barb., 485 ; Dillon vs. The New York and Erie Rail/road Company, 
 1 Hilt., 231. 
 
 Receipt, or a charge of freight for the whole distance, will reverse the 
 rule, and render parties so receiving goods liable, not as forwarders, but 
 as carriers. Krender vs. Woolcott, 1 Hilt., 223. But the mere receipt 
 of freight for the whole distance by the last carrier on arrival, merely as 
 agent for the others, his own demand being separate, will not render him 
 liable for previous injury to the goods, before they came into his posses- 
 sion. Hunt vs. The New York and Erie Rail/road Company, 1 Hilt., 228. 
 
 Express agents receiving goods to be carried on a mixed route, are 
 liable as common carriers for their safe delivery. Newstadt vs. Adams, 
 5 Duer, 43 ; Sherman vs. Wells, 28 Barb., 403 ; Russell vs. Lvoingston, 
 19 Barb., 346 ; Same case, 16 E". Y., 515, the reversal being on another 
 point, and the same doctrine being held in this. Place vs. The Union 
 Express Company, 2 Hilt., 19 ; ReadYS. Spaulding, 5 Bosw., 395. See 
 also, Holford vs. Adams, 2 Duer, 4T1. By these decisions, Hersfield 
 vs. Adams, 19 Barb., 577, is clearly overruled. See, however, as to 
 their not being liable, in respect of a fraud or a forgery committed by 
 a third party. Norwalk Bank vs. Adams'" Express Company, 19 
 How., 462. 
 
 The liability of a common carrier commences on the deposit of the 
 gooiis with him for transportation. Lakeman vs. Orinnell, 5 Bosw., 
 625; and the fact that he is also a warehouseman does not postpone 
 his liability. Blossom vs. Griffin, 3 Kern., 569. Nor will his giving 
 a receipt as forwarder have the effect of varying it, as against an oral 
 aoreement' to carry. Such liability continues, until actual delivery of the 
 goods according to the contract, and this, even after arrival at the place 
 of destination. Miller vs. The Steam Navigation Comparvy, 13 Barb., 
 361 affirmed, 6 Seld., 431. See as to the liability for a passenger's 
 baggage, Nevins vs. Bay State Steamboat Company, 4 Bosw., 225. , 
 And it only ceases on such actual delivery, or upon notice given to 
 
724 OF THE COMPLAINT. — § 144. 
 
 the consignee, and a reasonable time allowed for removal ; or, where 
 the direction is to a more distant point, on delivery in the usual course 
 of business to other carriers, to be forwarded by them. Barclay vs. 
 Clyde, 2 E. D. Smith, 95 ; Clendaniel vs. Tucherman, 17 Barb., 784 ; 
 Gould vs. Ohapin, 10 Barb., 612 ; Price vs. Powell, 3 Comst., 322. 
 "Where the consignee cannot be found, or neglects or refuses to receive 
 the goods, the carrier should put the goods in storage ; if he abandons 
 them, without protection, he may be held liable. Rowland vs. Miln, 
 2 Hilt., 150. And where his non-delivery is caused by the illegal act 
 of another, he has his remedy over against that other. Same case. 
 
 As to the carrier's power to terminate his responsibility, by storage 
 of an article, refused to be received by the consignee, and as to the 
 extent of liability of a warehouseman with whom it is so stored, see 
 Williams vs. Holland, 22 How., 137. 
 
 As to the discharge of the carrier's liability as such, by an arrange- 
 ment with the owner, substituting for it the character of bailee, or 
 agent, see Lahar vs. Taber, 35 Barb., 305. 
 
 The delivery to the party to whom a package is addressed must 
 be actual. The mere leaving it at the foot of a staircase of the 
 house in which such party occupies chambers, and notifying him of 
 such leaving, will not be sufficient. Unless such mode of delivery be 
 expressly assented to, nor will any allegation of custom in this respect 
 be permitted to control the strict rule of law. Haslam vs. Adams' 
 Express Company, 6 Bosw., 235. 
 
 If the carrier mixes up goods intrusted to him with others, he is 
 liable for delivery of the whole quantity. Wright vs. Baldwin,, 18 
 ]Sr. Y., 428. See also, generally, Wilson vs. Nason, 4 Bosw., 155. And 
 the carrier can only recover freight for the quantity actually delivered. 
 Allen vs. BaUs, 1 Hilt., 221. 
 
 His delivery must be made to the party legally entitled to receive 
 it, or to his agent possessing sufficient authority ; but, in the absence 
 of special instructions, delivery to the consignee, or his agent, will be 
 good against the consignor. Sweet vs. Ba/rney, 23 N. T., 335 ; affirming 
 same case, 24 Barb., 533. 
 
 If the carrier deliver goods by mistake to the wrong person, he may 
 recover them back. Hudson Rimer Railroad Gompomy vs. Lounsberry, 
 25 Barb., 597. But if they be taken out of his possession by authority 
 of law, exercised through regular and valid proceedings, it Will protect 
 him from responsibility. Blmen vs. Hudson Ri/uer Railroad Company, 
 35 Barb., 188. 
 
 And forwarders, who have advanced prior charges, have such a 
 special interest in the goods, as will sustain an action of this description. 
 Mtshuffh vs. Wimcm, 5 Seld., 559. 
 
OF THE COMPLALNT. — § 144. 725 
 
 Where shipping receipts had been stolen from the owners of property 
 shipped, the carriers were held responsible to the latter, for not return- 
 ing the property, though they had acted in good faith, and had 
 delivered bills of lading to the holder of the receipts. Brower vs. 
 Peaho&y, 11 How., 49^ ; reversing same case, 10 How., 135. 
 
 A carrier intrusted with the duly of collection, is liable if he deliver 
 the goods without payment. Toolcer vs. Qorner, 2 Hilt., 11. 
 
 He is answerable to the principal, for loss of the baggage of his agent 
 while travelling as a passenger. Grant vs. Newton^ 1 E. D. Smith, 95. 
 
 As to the liability of a telegraph company, for non-transmission of an 
 important dispatch, and the measure of damages under such circum- 
 stances, see Landsberger vs. MagneUc Telegrwph Company., 32 Barb., 530. 
 
 See generally, as to the liability of railroad companies for baggage 
 checked by them, Cass vs. The New York and New Haven RaAI/road 
 Company., 1 E. D. Smith, 522 ; McCormick vs. The Hudson Rvoer 
 Railroad. Company, 4 E. ~D. Smith, 181 ; Garvey vs. The Camden and 
 Amhoy Railroad Company, 1 Hilt., 280 ; 4 Abb., 171 ; Da/ois vs. The 
 Cayuga and Susquehanna Railroad Cmnpany, 10 How., 330; Cary 
 vs. The Cleveland and Toledo Railroad Company, 29 Barb., 35. But 
 if a party, taking a through ticket, retain his baggage in his own posses- 
 sion through part of the route, the carrier for that part will not be 
 liable, though he may subsequently check it. Straiton vs. The New 
 York and New Haven Railroad Company, 2 E. D. Smith, 184. 
 
 If a passenger deliver his baggage, demanding a check, but fails to 
 obtain it, through absence of the proper agent, the carrier is equally 
 liable. Freeman vs. Newton, 3 E. D. Smith, 246. 
 
 If goods, properly subjects of freight, are delivered to and received 
 by the carrier as baggage, his liability for it will be as such, and not as 
 for goods carried for hire. Berley vs. Newton, 10 How., 490. See 
 however, as to a package of this nature not delivered to the carrier as 
 baggage, Butler vs. The Hudson River RaMroad Company, 3 E. D. 
 Smith, 5Y1. A party, demanding a package of this description, must pay 
 or tender the freight on demand, or he cannot recover. Langworthy vs. 
 The New York and Harlem Railroad Company, 2 E. D. Smith, 195. 
 
 A carrier by land is not responsible for money placed by a passenger 
 in his trunk. Gramt vs. Newton, 1 E. D. Smith, 95. What is, or is 
 not, properly baggage, is usually a question of fact. 8ame case. Nor 
 is a carrier responsible for silver ware so placed. Bell vs. Drew, 4 
 E. D. Smith, 59. In McCormick vs. The Hudson River Railroad 
 Company, 4 E. D. Smith, 181, a decision that he was liable for a gold 
 watch, and articles of jewelry, usually worn on the person, but placed 
 in the passenger's trunk, on that occasion, was refused to be interfered 
 with on appeal. And, in Damis vs. The Cayuga and Susgue}mma 
 
726 OF THE COMPLAINT. § 144. 
 
 Rail/road Cornpcmy, 10 How., 330, the carriers were held similarly 
 liable for a set of tools apd a rifle. See also, several decisions cited in 
 report, as to different items of baggage. See likewise, generally, as to 
 what articles will or will not be included -^ithin the scope of the carrier's 
 liability in this respect, JVevms vs. Bay State Steamboat Company, 4 
 Bosw,, 225. 
 
 A carrier by sea is, however, responsible for the loss of money of the 
 passenger put up in his trunk ; and the rule is wider as to what articles 
 are properly included under that term. -Duffy vs. Thompson, 4 E. D. 
 Smith, 178 ; Van Horn vs. Kermit, 4 E. D. Smith, 453. See also, .the 
 last case generally, as to the responsibility of the carriers in such case ; 
 and when and to what extent it may be considered as ceasing, on the 
 neglect of the passenger to take his baggage away within a reasonable 
 time. 
 
 Where the baggage of an emigrant from Europe was lost, whilst in 
 charge of the agents of the railroad company, allowed to keep ticket 
 ofiices in Castle Garden during the period that the emigrant was requir- 
 ed to attend for the purpose of registering his name, it was held that 
 the commissioners were not liable. Semler vs. The Commissioners of 
 Emigration, 1 Hilt., 244. 
 
 A carrier of goods is responsible for all damages occasioned to goods 
 in his charge — occasioned by detention or delay in their delivery, attri- 
 butable to him, either by positive negligence, or misconduct on the part 
 of himself or his employees, or to improvidence on his part, in making 
 the contract for carriage within a limited time. Harmofvy vs. Bing- 
 ham., 2 Kern., 99 ; affirming same case, 1 Duer, 209 ; Scovill vs. Grif- 
 fith, 2 Kern., 509 ; Ha/rris vs. Northern Indiana Railroad Company, 
 20 N. Y., 232 ; MoCotter vs. Hooker, 4 Seld., 497 ; Kent vs. The Hud- 
 son River Railroad' Company, 22 Barb,, 278 ; Blackstoch vs. The New 
 Yorh and Erie Railroad Company, 1 Bosw., 77 ; Plaoe vs. Union 
 Express Company, 2 Hilt., 19 ; Briggs vs. The New TorTc Central 
 Railroad Company, 28 Barb., 515 ; Jones vs. The New York and 
 Erie Railroad Company, 29 Barb., 633. So also, as to damages occa- 
 sioned by want of care of the goods while in his possession. Wing vs. 
 The New York am,d Erie Railroad Company, 1 Hilt., 235. 
 
 As to the extent of responsibility of a carrier of animals, see Clarke 
 vs. The Rochester and Syracuse Railroad Company, 4 Kern. 570. 
 
 The question as to the rule of damages in such cases seems still to be 
 open. Vide Wihert vs. The New York and Erie Railroad Compamy, 2 
 Kern., 245 (252). 
 
 "Where no special limitation as to the time of delivery is made the 
 rule as to the' responsibility of the carrier, for injuries occasioned by 
 delay, is less strict, and he will not be held liable for detention not 
 
OF THE COMPLAINT. — § 144. T2T 
 
 occasioned by negligence, fault, or want of skill on his part, or which 
 is attributable to the wrongful act of a third party. Oonger vs. The 
 Hudson liiver Hail/road Company, 6 Duer, 3Y5 ; Wibert vs. The New 
 York and Erie Railroad Oom.pan,y, 2 Kern., 245 ; affirming same case, 
 19 Barb., 36. See also, as to the extent of a carrier's liability, on a con- 
 tract impossible at the time to be performed. Bi-iggs vs. VanderHlt, 
 19 Barb., 222. 
 
 The payment of the illegal demand of a carrier under protest, is no 
 bar to a subsequent action against him, for damages of the above descrip- 
 tion. Harmony vs. Bingham, 2 Kern., 99, supra. 
 
 A complaint against a common carrier must allege him in terms to 
 be such, and also that the carrying by him was for hire. Bristol vs. 
 The Rensselaer and Saratoga Railroad Company, 9 Barb., 158. 
 
 The first count of the former declaration in these cases, has been held 
 to be a proper form of averment in a suit of this nature. StocTchridge 
 Iron Company vs. Mellen, 5 How., 439. But the succeeding ones were 
 stricken out as redundant. See, generally, as to what will be sufficient 
 by way of averment, Merritt vs. Earle, 31 Barb., 38. As to the respon- 
 sibility of parties in this position, for the delivery of false or fraudulent 
 bills of lading, see chapter 326 of 1858, page 532, as amended by chap- 
 ter 353 of 1859, page 862. 
 
 In a case free from fraud, a carrier's receipt for a hpllow package 
 shown to contain goods, makes him liable for the contents. Harmon 
 vs. The New Yorlc and Erie Railroad Company, 28 Barb., 323. His 
 mere receipt does not operate to limit or exclude evidence of a parol 
 contract for carriage. McCotter vs. Hoolcer, 4-Seld., 497. His admis- 
 sion on a bill of lading, that goods are received in good order, does not 
 estop him, on the other hand, from showing the contrary by parol. 
 Ellis vs. Willard, 5 Seld., 529. 
 
 So far as a bill of lading operates as a receipt it may be so explained, 
 but not as to those portions of it which operate as a contract for car- 
 riage. On these it is conclusive, as to the extent of risk assumed. Eits- 
 hugh vs. Wiman, 5 Seld., 559 (566) ; Grery vs. Holly, 14 Wend., 26 ; 
 Dorr vs. New Jersey Steam Navigation Company, 1 Kern., 485 ; White 
 vs. Yan Kirh, 25 Barb., 16. See Brower vs. Brig Water Witch, 19 
 How., 241, as to general responsibility of carriers in the absence of 
 a written contract. 
 
 (5.) Innkeepers. 
 
 Closely analogous to the liability of a common carrier, is that of an 
 innkeeper, for damage or injury to the goods of a party, while his 
 o-uest. This liability arises at common law, and is of the most strin- 
 gent nature. 
 
728 OF THE COMPLAIWT. — § 144. 
 
 It attaches to any one who receives as guests all who choose to visit 
 his house, without pre^dous agreement, as to the duration of their stay 
 or the terms of their entertainment. It continues during the stay of 
 the guest, and ceases on his departure. Ifj after such departure, the 
 guest leaves his baggage behind him, he does so at his peril, or, if the 
 inn-keeper take charge of it by agreement, his responsibility changes, 
 and becomes that of a mere ordinary bailee. Wintermute Vs. GlarJc, 
 5 Sandf., 242. 
 
 The liability so accruing is of a more extended nature than that of 
 a common carrier, and extends not merely to personal baggage, but to 
 all property which the innkeeper consents to receive, and likewise to 
 money in a trunk, not exceeding the amount reasonably required by 
 such guest, if a traveller, to pay the expenses of his journey. Taylor 
 vs. Monnot, 4 Duer, 116 ; 1 Abb., 325 ; Needles vs. Howard, 1 E. D. 
 Smith, 54 ; Van Wyoh vs. Howard, 12 How., 147. See, however, as 
 to negligence on the part of the guest, discharging the innkeeper from 
 being answerable for a large sum in gold coin, Purvis vs. Coleman, 21 
 K Y., 111. 
 
 As to the liability of persons professing to be boarding-house keepers, 
 but being innkeepers in fact, see Willard vs. Bernhardt, 2 E. D. Smith, 
 148. 
 
 In ease of loss, the presumption of negligence is against the inn- 
 keeper, and he is bound to extraordinary vigilance. See Cheeseborough 
 vs. Taylor, 12 Abb., 227. He may, however, rebut that presumption, 
 by proof of negligence on the guest's part, and it' is incumbent on the 
 latter to comply with any reasonable regulations the former may make 
 for his security. Van Wyck vs. Howard, 12 How., 147 ; Fowle<r vs 
 Dorian, 24 Barb., 384. 
 
 In Stanton vs. Leland, 4 E. D. Smith, 88, it was held, that, where a 
 guest had actually packed his trunks with a view to departure, and 
 delivered the key of his room to the defendant's clerk, the latter was 
 liable for all the contents, notwithstanding a notice given by him 
 requiring money and valuables to be placed in a safe which he pro- 
 vided. 
 
 By chapter 421, of 1855, p. 774, this form of limitation of an inn- 
 keeper's liability is expressly sanctioned, and it is provided, that, when- 
 ever the proprietor of an hotel has provided a safe for the keeping of 
 money, jewels, and ornaments, and has notified his guests by posting a 
 notice in the rooms occupied by them, and the guest neglects to 
 deposit such articles accordingly, the proprietor's liability for their loss, 
 by theft or otherwise, will be discharged. 
 
 As to actual notice to the above effect being sufficient to discharge 
 the innkeeper from liability, even though the provisions of the statute 
 
OF THE COMPLAINT. — § 144. '729 
 
 may not have been strictly complied with, see Purvis vs. Coleman, 21 
 N. Y., Ill ; affirming same case, 1 Bosw., 321. 
 
 It is not necessary,- in order to the innkeeper's liability, that the guest 
 should keep his room locked during his absence. Buddenlni/rg vs. 
 Benner, 1 Hilt., 84. 
 
 A mere boarding house or restaurant, to which the plaintiff merely 
 went for the purpose of taking a meal, was, though styled an hotel, held 
 not to be an inn, so as to charge its proprietor, in Oarpenter vs. Taylor, 
 1 Hilt., 193. 
 
 PvhUo and other Officers. 
 (e.) Sheeiffs. 
 
 An action in damages lies against the sheriff for breach of official 
 duty by him or his deputies. 
 
 Several cases of this description have already been noticed in book I., 
 chapter YIL, section 28, under the head of Sheriffs. It may be con- 
 venient to mention also the following : 
 
 Since the Code, he is liable in trespass, for taking goods on process 
 of replevin, out of the possession of a third party claiming to be 
 owner. He can only take it from the defendant himself or his agent. 
 Ki/iog vs. Orser, 4 Duer, 431. 
 
 So also for levying upon goods exempt from execution. And, in 
 the complaint for that purpose, it is not necessary specially to aver 
 that fact. An allegation of unlawful taking is sufficient. Stevens 
 vs. Somerindyke, 4 E. D. Smith, 418. 
 
 He is bound to exercise more than ordinary diligence for the pre- 
 servation of property levied upon by him, but his liability is not that 
 of an insurer. See Moore vs. Westervelt, 21 IST. Y., 103. 
 
 In French vs. Willett, 4 Bosw., 649 ; 10 Abb., 99, it was held that 
 a sheriff who, on going out of office, neglected to deliver over, in due 
 form, to his successor a prisoner charged on execution, was liable for 
 an escape by reason of such neglect. The complaint is given in exten§o 
 in the report, and its allegations were decided by the court to be 
 sufficient. 
 
 See generally, as to the liability of a sheriff for escape, 2 K. S., 434, 
 section 4Y ; also, article IV., title VI., chapter VII., part III., 2 E. S., 
 437, 438. 
 
 . The action lies in all cases where, a prisoner on civil process is, at the 
 time of the commencement of the action, beyond the jail liberties. The 
 summons must, however, be actually served whilst the prisoner is so 
 absent. A return after the summons was issued and delivered to the 
 coroner, but before its actual service, was held a sufficient defence in 
 Wiggins vs. Orser, 5 Duer, 118. 
 
730 OF THE COlIPIArNT. — § 144. 
 
 As to what constitutes a voluntary or a negligent escape, and as to the 
 sheriff's power to retake, see Lookwood vs. Mersereau, 6 Abb., 206. 
 
 When, by failure of a defendant's bail to justify, the sheriff has himself 
 become liable as such, it seems that he possesses the same privileges as 
 other bail, and may discharge himself by rearresting the defendant, in 
 the same manner as ordinary bail may by surrender. Buckman vs. 
 Cwrnley, 9 How., 180. See also MoOregory vs. Willett, 17 How., 439. 
 
 And, as regards his ultimate liability, it is the same, as that of the bail 
 in whose place he virtually stands. Vide Oallarati vs. Orser, 4 Bosw., 
 94. See however, MoCreery vs. Willett, 22 How., 91. . 
 
 But, of course, this doctrine does not apply to a case where other bail 
 have been given, or where the defendant has remained in custody. In 
 such cases, the sheriff can claim no privilege whatever. 
 
 On an escape of a prisoner, where charged in execution or on mesne 
 process, the measure of damages is the amount due upon the judgment. 
 In the latter case, insolvency of the prisoner may be shown in defence, 
 or rather in mitigation of damages ; but, where the prisoner is charged 
 on execution, the liability is absolute. See int. al., Latham vs. Wester 
 velt, 26 Barb., 266 ; Barnes vs. Willett, 19 How., 564 ; 11 Abb., 225. 
 And the same measure prevails, even when his liability was originally 
 that of bail, owing to the failure of the defendant's sureties to justify. 
 Metcalf vs. Stryher, 31 Barb., 62 ; 10 Abb., 12 ; Oalla/rati vs. Orser, 
 swpra. 
 
 See generally, as to his liability for an escape, when the defendant 
 has been charged in execution, BenicTc vs. Orser, 4 Bosw., 384 ; 
 McCreery vs. Willett, 4 Bosw., 643 ; affirmed, 23 How., 129 ; Barnes vs. 
 WiUett, 36 Barb., 614 ; 12 Abb., 448. He will be liable, though the 
 process on which the defendant was held is irregular ; but not so where 
 it is not merely voidable, but void. Carpenter vs. Willett, 6 Bosw., 25. 
 JSTor will he be held for an escape, where the prisoner has been taken out 
 of his custody by authority of law. Wiokelhausen vs. Willett, 21 How., 
 40 ; 12 Abb., 319. 
 
 As to the distinction between a voluntary and a negligent escape — 
 the principle that the latter must be specially charged, and that a mere 
 general averment will be construed as meaning the former, and as to the 
 rule of damages in the case of a person committed for contempt of court, 
 see Loosey vs. Orser, 4 Bosw., 391. 
 
 (<Z.) Constables. 
 
 A constable, having taken property under a justice's attachment, may 
 be liable as a wrongdoer, if he refuse to restore it, on delivery of a bond 
 in double its value, pursuant to the statute. A bond in double the 
 amount of the plaintiff's claim will, however, be insufficient. Vide 
 
OF THE COMPLAINT. — § 144. 731 
 
 Kamena vs. Warner^ 6 Duer, 698 ; 6 Abb., 196 ; reversing same case, 
 15 How., 5 ; 6 Abb., 193. 
 
 A constable, failing to return, in person, an execution delivered to him, 
 is liable to the plaintiff, though his duty may have been substantially 
 performed by another. Downs vs. McGlynn, 2 Hilt., 14. 
 
 (e.) AssEssoES. 
 
 Assessors, entering on their roll the name of a party not subject to the 
 assessment, are liable to him for damages resulting from collection. 
 Mygatt vs. Washburn, 15 JST. Y., 316. So also is a corporation, for col- 
 lection of a wrongful assessment. Howell vs. The City of Buffalo, 15 
 N. Y., 512. As to the liability of a corporation to a contractor for neg- 
 lect to make an assessment for the purpose of paying his claim, and 
 when it will or will not attach, see Beard vs. City of Brooklyn, 31 Barb., 
 142; Richardson vs. TheSamie, 31 Barb., 152. 
 
 if.) SUNDEY OTHER EeSPONSIBILITIES . 
 
 The owner of a machine, hired out to others, is generally responsible 
 for any injury sustained by reason of defects in its construction. When- 
 ever the law imposes a duty on a person, a neglect of that duty renders 
 that person liable, to any one injured by that neglect. Oooh vs. The New 
 Yorh FloaUiig Dry Dock Company, 1 Hilt., 436. 
 
 A manufacturing chemist, who had wrongly labelled a poisonous 
 medicine, was held responsible to any purchaser of that medicine, though 
 from others, injured by the mistake. Thomas vs. Winchester, 2 Seld., 
 397. See afeo, as to death arising from a similar cause, Quin vs. Moore, 
 15 N. Y., 432. As to the liability of a surgeon for malpractice, see 
 Bellim,g vs. Craigue, 31 Barb., 534. 
 
 As to the analogous responsibility of directors or officers of a public 
 company, induced to purchase its stock, by reason of erroneous published 
 statements, see above, section 142, under the head of False Re^presenr 
 tations. 
 
 Under the manufacturing incorporation acts, directors neglecting to 
 make their annual report, may be held liable for the debts of the corpo- 
 ration. 
 
 An action of this description is an action for a penalty, with all the 
 usual incidents of that form of remedy. Merchants^ Bank of New 
 EoAyen vs. Bliss, 21 How., 365 ; 13 Abb., 220. The liability is per- 
 sonal in its natiire, and only extends, as to each trustee, to debts con- 
 tracted whilst he is in office, and before a report is made and published, 
 and not to debts contracted antecedent or subsequent to the period 
 during which he is in default. Boughton vs. Otis, 21 N. Y., 261 ; af- 
 firming saTne case, 29 Barb., 196 ; Quarry Company vs. BUss, 34 Barb., 
 
732 or THE COMPLAINT. — § 144. 
 
 309 ; 12 Abb., 470 ; The Same vs. The Same, 10 Abb., 211 ; Andrews vs. 
 Murray, 33 Barb., 354. A trustee may relieve himself from further lia- 
 bility, by a voluntary resignation. Squires vs. Brown, 22 Hovir., 35 ; and, 
 the liability being strictly personal, one trustee cannot claim contriba- 
 tion from his fellow defaiilters. Andrews vs. Murray, supra. 
 
 The complaint on a liability of this nature will be demurrable, unless 
 it shows on its face that the defendant was in office, and the plaintiff's 
 debt existent, at the time of the wrongful act complained of. OgdenYS,. 
 Eollo, 13 Abb., 300 ; reversing samie case, 9 Abb., 8, note. See, as to 
 what may constitute sufficient allegations in a complaint of this nature, 
 Andrews vs. Murray, 9 Abb., 8. 
 
 As to the liability of a landlord, for injuries occurring by reason of his 
 omission to make proper repairs, see Corey vs. Mann, 6 Duer, 679 ; 14 
 How., 163 ; 5 Abb., 91. The complaint in such a case must show clearly 
 that such duty is incumbent upon the landlord, or it will be demurra- 
 ble. See also, Howard vs. Doolittle, 3 Duer, 464. 
 
 See, however, as to the liability of a corporation, for injuries arising 
 from an omission to keep in repair a wharf, of which the mere right 
 of wharfage is leased to others, Taylor vs. The Mayor of New Yorlc, 
 4 E. D. Smith, 559. 
 
 In a case of this description, notice of the defect from which the acci- 
 dent has arisen, must, it has been held, be brought home to the defend- 
 ant. Oa/rrison vs. Mayor of New Yorlc, 5 Bosw., 497. And the 
 duty to repair must be shown to be absolute and imperative, and not 
 to rest in discretion. Peek vs. Village of Batavia,2)'-1 Barb.', 634; Cole 
 vs. Trustees of Village of Medina, 27 Barb., 218. * 
 
 To charge a public officer with damages for neglect, the nature of 
 his duty, and violation of it, must be clearly shown, or the complaint 
 will be demurrable. So held, in an action against commissioners of 
 highways for neglect to repair a bridge, when the means of repairing 
 it were not shown to be in their possession. Smith vs. Wright, 27 Barb., 
 621; reversing same case, 24 Barb., 170. But when they are in 
 possession of such means, they will be liable. See Hutson vs. The 
 Mayor of New YorTc, 5 Sandf , 289 ; affirmed, 5 Seld., 163. 
 
 Where the subject-matter of the controversy is the right to an office, 
 an action for breach of duty will not lie ; the question must be 
 brought up by guo warranto. Eartt vs. Ha/rvey, 21 How., 382 ; 13 
 Abb., 332. 
 
 A railroad corporation, omitting to fence off its road, as required by 
 the general railroad act, is liable in damages from any injuries occa- 
 sioned by its omission. Corwin vs. The New Torh and Erie Railroad 
 Com;pam.y, 3 Kern., 42 ; Duffy vs. The New Yorh and Harlem RaU. 
 road Company, 2 Hilt., 496. See also, as to the inability of a party to 
 
OF THE COMPLAINT. — § 144. 733 
 
 Bue for trespass on his property, where his own fences are not in con- 
 formity with established regulations, Hardsnhurgh vs. Lockwood, 25 
 Barb., 9. 
 
 As to how far a tenant or a landlord may both, or either, be respon- 
 sible for defect or misuse of water fixtures, and the duty which each 
 tenant owes to others, to avoid negligence in their use, see Eakvn vs. 
 Brown, 1 E. D. Smith, 36. 
 
 An United States officer unwarrantably taking possession of goods 
 may be held responsible by a carrier of them. See Eowla/nd vs. Milm,, 
 2 Hilt., 150. 
 
 A lessee in futuro may, on non-delivery of possession at the time 
 he becomes entitled, sue his lessor, either upon the implied contract 
 to give possession, or in tort for the violation of his duty, /arising from 
 the relation of landlord and tenant. Trull vs. Granger, 4 Seld., 115. 
 
 As to the liability of a municipal corporation for the acts of its 
 servants or agents, amounting to a breach of duty, see above, section 
 140, subdivision of Relations of Employer cmd Employee, and cases 
 there cited. 
 
 An action for breach of duty will lie, against a banking or other like 
 incorporation, for a refusal to permit a transfer of stock upon its books 
 or to issue certificates. The measure of damages will, however, be 
 the value of the stock, not the amount paid. Arnold vs. The Suffolk 
 Bamk, 2T Barb., 424. 
 
 A broker who has acted in good faith, is not liable to his employer 
 for a purchase by him of fraudulently over issued stock. Peokham vs. 
 Ketchum, 5 Bosw., 506. As to the allegations which will be sufiicient 
 to show a cause of action against a broker, who has sold his employer's 
 stock in violation of instructions, see Cla/rTce vs. Meigs, 22 How., 340 ; 
 13 Abb., 467 ; reversing same case, 21 How., 187 ; 12 Abb., 267. 
 
 As to the extent of the discretion of a factor, acting within the 
 spirit of his instructions, see Milhamlt vs. Denistoun, 21 N. Y., 386 ; 
 19 How., 126. 
 
 (g.) Beeaoh of Conteact. 
 
 In actions of this nature four different requisites must be carefully 
 observed in framing the complaint. 
 
 1. The existence of the contract sued upon, and its terms, must be 
 clearly shown upon the face of the pleading. 
 
 2. Performance, or a readiness to perform, and tender of performance, 
 must be shown on the part of the plaintiff, and it must not appear that 
 default is imputable to him. 
 
 3. The breach of contract complained of must be made clearly 
 apparent; and, 
 
734 OP THE COMPLAINT. — § 144. 
 
 4. Damage to the plaintiff, occasioned by that breach, must be alleged 
 and proved. 
 
 Tlie existence and terms of the contract must, as of course, be averred. 
 Vide Mils vs. Stillman, 18 How., 58. But it may be so according 
 to its legal effect ; nor is it necessary or admissible to set forth in the 
 complaint mere matters of evidence. Dibhlee vs. Oorbett, 9 Abb., 200. 
 Nor where, according to the legal effect of the transaction, purchases 
 had been made by an agent in his own name, on an agreement to pay 
 over the avails to his principal, was it requisite, in an action for an 
 unpaid balance, to allege that such agent has paid for the goods. Say 
 vs. Hall, 28 Barb., 378. 
 
 So also, where the action was for damages on non-performance of a 
 contract for purchase of stock, it was held unnecessary for the plaintiff 
 to aver, in terms, that he was owner of the stock at the time, or that 
 the contract was in writing. Wash'burn vs. Franhlin, 28 Barb., 2Y. 
 
 In like manner, where the plaintiff sued as assignee of an obligation, 
 it was held unnecessary to allege an assignment of the original claim. 
 Hosmer vs. True, 19 Barb., 106. 
 
 Where there has been an offer and acceptance between the parties 
 siilBScient to constitute a valid contract, an action will lie for damages 
 for its breach, notwithstanding the subsequent refusal of one of them 
 to execute a formal agreement according to the terms of it as fixed. 
 Pratt vs. Hudson River Railroad, 21 IST. Y., 305. 
 
 In an action for general damages for breach of a contract for sale of 
 real estate, an averment of special damage is unnecessary. Such aver- 
 ment is only requisite, where damage constitutes in part the cause of 
 action. Fagan vs. Davison, 2 Duer, 153. On a contract of indemnity, 
 however, special damage, to be recoverable, must be alleged and proved. 
 Low vs. Archer, 2 Kern, 277 (282). 
 
 The omission to allege an offer or tender of performance on the part 
 of the plaintiff, was held to render the complaint defective, in Smith vs. 
 Wright, 1 Abb., 243 ; Lester vs. Jewett, 1 Kern, 453 ; Frey vs. John- 
 son-, 22 How., 316. See also Hills vs. Stillman, 18 How., 58, as to an 
 omission to show full performance of a completed contract, on the part 
 of the plaintiff. 
 
 So also, in an action for damages on a broken contract, for labor and 
 service, it is necessary for the plaintiff to show that he was ready and 
 willing to perform such further services as might be required of him. 
 Wiseman vs. The Panama Railroad Company, 1 Hilt, 300. 
 
 See, likewise, as to a failure on the part of the plaintiff to perform 
 a mutual agreement, invalidating his own claim, and rendering him 
 liable to the defendant for counter-damages, Placide vs. Burton, 4 
 Bosw., 512. 
 
OF THE COMPLAINT. — § 144. Y35 
 
 Nor can a party sue another for breach of a mutual contract, whilst 
 he himself retains anybenefit derived under it. See Ooelth vs. White, 
 35 Barb., T6. 
 
 See also, as to the necessity of a tender of performance, Iloyt vs. 
 Hall, 3 Bosw., 42. See L'kewise, as to similar allegations on the part 
 of a defendant, Wa/rburg vs. Wilcox, 2 Hilt., 118 ; 7 Abb., 336. As to 
 what will be a sufBcient tender, on a contract for sale of merchandise, 
 see Bama vs. Fiedler, 1 E. D. Smith, 463 ; affirmed, 2 Kern., 40. 
 
 But a positive refusal to perform on the part of the defendant, will 
 relieve the plaintiff from the obligation of showing performance, or a 
 tender of performance on his part. Cornwell vs. Haight, 21 IST. T., 
 462 ; Crary vs. Smith, 2 Comst., 60 ; Shinner vs. Tinker, 34 Barb., 
 333. So also, where the defendant has voluntarily put it oiit of his 
 power, to perform on his part. Ovist vs. Armour, 34 Barb., 378. 
 
 As to the right of a vendor to resell goods, where the purchaser has 
 abandoned a contract, and to hold him liable for the deficiency, and as 
 to the circumstances under which this power may be exercised, see 
 McEaohron vs. Bandies, 34 Barb., 301. 
 
 Where, after breach of a contract for continued delivery of goods at 
 specified periods, the defendants accepted an irregular performance, it 
 was held that the plaintiff might maintain an action for the price of the 
 goods accepted, without tendering further delivery. Bailey vs. The 
 Western Vermont Railroad Company, 18 Barb., 112. 
 
 Where counter agreements between plaintiff and defendant are inde- 
 pendent in their nature, the former, on suing on one of them, need 
 not aver performance, or an offer to perform the other. Smith vs. Belts, 
 16 How., 251. 
 
 An agreement to pay purchase-money by instalments, after payment 
 of one of which a conveyance was to be executed by the plaintiff, at a 
 specified date, was held not to be of this nature, and that the seller, on 
 suing for the second, was bound to aver and prove a tender of the con- 
 veyance, on the day stated. Grant vs. Johnson, 1 Seld., 247. See also, 
 as to the necessity of tendering a fully sufficient deed, in order to sustain 
 an action for breach of a real estate contract. Smith vs. Smeltzer, 1 
 Hilt, 287. 
 
 As to the inability of a party to maintain an action, when liimself in 
 default on the contract sued upon, see Payton vs. Wight, 2 Hilt., 77 ; 
 Placide vs. Burton, above cited. 
 
 In Schenck vs. Baylor, 2'Duer, 675, it was held that, where a com- 
 plaint failed to show a breach of a covenant sued upon, either by express 
 words or necessary implication, it was bad upon demurrer. 
 
 And, where defendants are sued on a joint contract, the breach 
 alleged must affect them all, or the same result will follow. Lawrence 
 
736 OF THE COMPLAINT. — § 144. 
 
 VS. Kidder, 10 Barb., 641 ; Coster vs. The New York and Erie Railroad 
 Company, 6.Duer, 43 ; 3 Abb., 322. See also 5 Duer, 677. 
 
 Although a contract may be broken, it must be shown, by means 
 of proper allegations and proofs, that the plaintiff has been damnified by 
 the breach, or the complaint will be defective. Rider vs. Pond, 28 
 Barb., 447. See also Neary vs. Bostwick, 2 Hilt., 514. And no action 
 will lie, in respect of an act of the defendant, in accordance with the con- 
 tract itself, though damage may result from it to the plaintiff. New 
 Yorh Ice Company vs. Parker, 21 How., 302. 
 
 The followitig decisions do not fall specifically under any of the fore- 
 going heads, but are of general bearing. 
 
 Accord and satisfaction is, of course, a complete defence to an action 
 of this pature. Neary vs. JBostwick, supra. 
 
 As to the invalidity of a contract in restriction of trade, when too 
 large a territory is embraced, vide La/wrence vs. Kidder, 10 Barb., 641. 
 
 General damages for breach of contract, cannot be recovered by a 
 party who has rescinded, but special ones may, on proper allegations and 
 proof Coon vs. Reed, 1 Hilt., 511. See also Mallory vs. Lord, 29 
 Barb., 454, as to the general liability and rule of damages, on a contract 
 partly performed and then abandoned, As to the inability of founding 
 any recovery upon a rescinded contract, vide Hart vs. Larvman, 29 
 Barb., 410. 
 
 An action will lie, for breach of an agreement for a future delivery of 
 goods, in part payment of an existing debt. Fletcher vs. Derrickson, 3 
 Bosw., 181. 
 
 Where one contract is dependeat upon the execution of another, the 
 abandonment of the principal, puts an end to all further liability on the 
 accessory engagement. ' Hildreth vs. Buell, 18 Barb., 107. 
 
 "Where time was of the essence of the contract, defendants were held 
 responsible for damages, arising from a delay in performance, even 
 though only from the morning to the afternoon of the same day. Parm- 
 elee YS.Wilks, 22 Barb., 539. 
 
 As to an agreement for liquidation of damages, and when the amount 
 so fixed will not be construed, as a penalty, see Rosmer vs. True, 19 
 Barb., 106 ; Pettis vs. Bloomer, 21 How., 317 ; Lampmanm,, vs. Coch- 
 ran, 19 Barb., 388. In the last case, however, it was held that such 
 a stipulation only applied to a total failure of performance, and that 
 where the failure is only partial, an action for the liquidated amount 
 , will not lie. 
 
 As to what will or will not be considered as damages on a contract 
 of indemnity, and that a bonus paid for obtaining money to make a 
 payment indemnified against, cannot be recovered, see Low vs. Archer, 
 2 Kern., 277. 
 
OF THE COMPLAINT. — § 144. 737 
 
 A suit for specific performance will not lie, and an action for damages 
 is tlie only appropriate remedy, in a case where the rights-of a plaintiff 
 are imperfect, or performance would be oppressive. Clarke vs. Roches- 
 ter, LocTcjport, and' Niagara Falls- Railroad Company, 18 Barb., 350. 
 Or, where the parties have themselves provided a special measure of 
 damages. Barnes vs. MoAllister, 18 How., 534. Or, where the agree- 
 ment between the parties is not fair and equal. Same case. So like- 
 wise, in a case of failure of title to land, rendering actual performance 
 impossible. Mills vs. Van Voorhies, 23 Barb., 125. See reversal, 20 
 l!^. T., 412 ; 10 Abb., 152. See also Stevenson vs. Buxton, 8 Abb., 
 414, as to the possibility of taking an alternative judgment in such case. 
 
 Subsequent performance on the part of the defendant, does not debar 
 an action for special damages, occasioned by a neglect to complete in 
 due course, but not sufficient to enable; the aggrieved party to rescind. 
 See Dibblee vs. Corbett, 9 Abb., 200. 
 
 A lessor, failing to give possession to his lessee, according to the 
 terms of his lease, is liable to him in damages. Trull vs. Granger, 4 
 Seld., .115. 
 
 Where payment for a specified amount, to become due under a 
 contract, was agreed to be received in shares, no specific price at which 
 they were taken being named, it was held that a money recovery might 
 be had, performance having become impossible, owing to depreciation 
 of the stock, so that it bore no money value. Hart vs. Lanman, 29 
 Barb., 410. 
 
 Where the plaintiff had performed his part of a parol agreement, to 
 give up possession of leased property, a suit was held maintainable by 
 him against the defendant, to recover the stipulated consideration. 
 Ambler vs. Owen, 19 Barb., 145. 
 
 A partner who had engaged in other business, contrary to stipulation, 
 was held liable to his copartner, either in damages, or in action for an 
 accounting. Merits vs. Peebles, 4 E. D. Smith, 135. 
 
 In Stevenson vs. Buxton, 8 Abb., 414, a plaintiff, suing for specific 
 performance, was, on an apparent failure of title, allowed to take an 
 alternative judgment, either for the relief prayed, or for damages for 
 the breach of contract, without being put to a fresh action. 
 
 As to an action for damages for breach of covenant, see Tuller vs. 
 Davis, 4 Duer, 187. 
 
 As to the liability in damages, of a purchaser of goods to arrive, who 
 neglects to receive or pay for them when delivered. Dibble vs. Corbett, 
 5 Bosw., 202 ; Havemeyer vs. Cunningham, 35 Barb., 515 ; 22 
 How., 87. 
 
 ISTo recovery can be had, upon a contract void at law. Cassard vs. 
 Hinman, 6 Bosw., 8. But the subsequent repeal of a statute which 
 Vol. 1—47 
 
738 OF THE COMPLAINT. — § 145. 
 
 rendered a contract illegal at the time, gives it validity, and an action 
 may then be maintainable upon it. Washhurn vs. Frankl-m, 35 Barb., 
 599 ; 13 Abb., 140, and decisions referred to in Opinion. 
 
 As to the liability in damages, for breach of a contract for support of 
 the plaintiif, founded upon a valuable consideration, see Dresser vs. 
 Dresser, 35 Barb., 573 ; Loomis vs. Loomis, 35 Barb., 624. 
 
 As to that in respect of the partial non-performance of a building 
 contract, a power to rescind which has been waived, by omission to claim 
 it at the time, see Sinclair vs. Tallmadge, 35 Barb., 602. 
 
 § 145. Replevin. 
 
 This form of action presents itself for consideration in its natural 
 order, in connection with those treated of in the preceding sections. 
 Like tliem, it points to the redress of a wrong committed by the defend- 
 ant, by the wrongful taking or detention of personal property, but in a 
 different form. The relief sought does not, as in the other case, consist 
 in the recovery of compensation for the wrong committed : the plaintiff 
 seeks, on the contrary, restitution of the subject-matter of that wrong ; 
 and any damages resulting from its commission are merely acces- 
 sory, not a principal subject of the suit. See Savage vs. PerMns, 11 
 HoV., 17. 
 
 The analogous remedy of ejectment will be considered hereafter, under 
 the head of Real Estate. 
 
 The action itself is, in its essentials, the same as that provided for in 
 title XII., chapter VIIL, part III., of the Revised Statutes, 2 E. S., 
 522 to 534. It absorbs within itself the more ancient forms of replevin 
 in the cejjit, or in the detinet, or detinue. 
 
 As regards the mode of obtaining the concurrent provisional remedy, 
 and the forms of process and pleadings, proceedings in it are, of course, 
 governed by the new system, and the former provisions are so far 
 abolished. The subject of that provisional remedy has already been 
 considered, in chapter II., of book V. 
 
 The analogy, amounting in fact to substantial identity, which exists 
 between the former and the present action, is demonstrated in the fol- 
 lowing cases : Roberts vs. Randel, 3 Sandf , TOT ; 5 How., 327 ; 3 C. E., 
 190; 9 L. 0., 144; McCurdy vs. Brown, 1 Duer, 101; ChappellY&. 
 Skinner, 6 How., 338 ; Savage vs. Perkins, 11 How., 17. 
 
 A direct and issuable averment must always be inserted, that the 
 goods claimed are the property of the plaintiff. A mere allegation of a 
 right to their possession, and of probative facts tending to show owner- 
 ship, will not, standing alone, be sufficient. Yamdenhurgh vs. Yan Yalk- 
 enburgh, 8 Barb., 217. 
 
OF THE COMPLAII^'r. — § 145. 739 
 
 The plaintiff in sucli cases, can only, as a general rule, recover upon a 
 legal title ; he must show an absolute or special property, giving hitn an 
 immediate right to possession. The burden of proof falls upon him ; if he 
 fail, the defendants are entitled to a jiadgment for a return, without proof 
 on their part. McCurdy vs. Brow-n, 1 Duer, 101. An equitable lien 
 cannot be enforced in this manner. Same case ; Otis vs. Sill, 8 Barb., 
 102. "Where, however, the property had been taken out of the plain- 
 tiff 's possession, an equitable interest was held sufficient to maintain an 
 action for its return. Johnson vs. Oarnley, 6 SeM., 5Y0. 
 
 That the plaintiff, to maintain such an action, must have the general 
 or special property, and an immediate right to possession of the subject- 
 matter, is also maintained in Roohwell vs. Saunders, 19 Barb., 473. See 
 too, Bruce vs. Westervelt, 2 E. D. Smith, 440. Nor will a mere tender 
 of their price, unaccepted by the defendant, avail to change the title, 
 and confer iipon the plaintiff a right to sue in this form, for goods man- 
 ufactured, even under a contract. Dodworth vs. Jones, 4 Duer, 201. 
 
 The complaint must allege a wrongful taking, or a wrongful deten- 
 tion ; but such allegation may be made in general terms. Vide Childs 
 vs. Eart, 7 Barb., 370. 
 
 A mere allegation of wrongful possession and detention, in the old 
 form of replevin in the detinet, was held sufficient, in an action for goods 
 obtained by fraud, and that neither demand, nor speciiication of the facts 
 constituting the fraud complained of was necessary. Hunter vs. The 
 Hudson River Iron and Machine Company, 20 Barb., 493. 
 
 It is not necessary to the maintenance of the action, that the provis- 
 ional remedy should be previously or concurrently asserted. Vogel vs. 
 Badcock, 1 Abb., 176. In that case, allegations of conversion and deten- 
 tion, as in trover, accompanied by a prayer for specific delivery and 
 damages, were held good, as constituting a single cause of action, though 
 such was not the correct form of pleading, and the averment of conver- 
 sion wholly unnecessary. Where only part of the goods mentioned in 
 the original affidavit have been taken under the provisional remedy, the 
 remainder having been eloigned before action brought, it is both admis- 
 sible and proper to make the complaint apply only to the goods so taken, 
 and its discrepancy with the affidavit will be immaterial. KerriganYS. 
 Bay, 10 How., 213. 
 
 To sustain the action, the property must, in fact or in law, be in the 
 possession or control of the defendant. "Where he has parted with that 
 possession or control without fraud, before the action is brought, it will 
 not be maintainable. See, collaterally, as to the question of arrest, Rob- 
 erts vs. Bandel, 3 Sandf., 707 ; 5 How., 327 ; 3 C. E., 190 ; 9 L. 0., 144 ; 
 Merrick, vs. Suydam, 1 0. E. (IST. S.), 212 (but see as to right to sue, 
 20 Barb., 558) ; Bemin vs. Nagel, 1 E. D. Smith, 256 ; ICE. (N. S.), 
 
740 OF THE COMPIiAnSTT. — § 145. 
 
 219 ; Kerrigan vs. Ray^ 10 How., 213. See also directly, Brookwa/y 
 vs. Burnap, 12 Barb., 317 ; 8 How., 188 ; iVasA vs. Fredericks, 12 Abb., 
 147; Elwood vs. Smith, 9 How., 528. See likewise as to trover, The 
 Matteawan Company vs. Bentley, 13 Barb., 641. 
 
 The doctrine in question is carried somewhat farther in sorhe of the 
 above decisions, and substantially extended to all cases, where the de- 
 fendant wfis not in possession at the time of bringing suit. So far it is 
 clearly overruled. Brockway vs. Burnap was afterwards reversed (16 
 Barb., 309), the parting with possession by the defendant being clearly 
 fraudulent. In JEllwood vs. Smith, there did not appear to be any 
 actual withholding. See also Nichols vs. Michael, 23 N. Y., 264. 
 
 The action is equally maintainable upon a constructive, as upon an 
 actual possession. Latimer vs. Wheeler, 80 Barb., 485. 
 
 Where the taking had originally been wrongful, and demand had 
 been made of the .defendant, a subsequent parting with the property 
 was held to be wrongful, and the action maintainable. Brake vs. 
 Wakefield, 11 How., 106. So also, where the parting with the goods, 
 though before suit brought, was wrongful or fraudulent in its nature, 
 replevin is still maintainable. Brochway vs. Burnap, 16 Barb., 309 ; 
 Savage vs. Perkins, 11 How., 17 ; Nichols vs. Michael, 23 N. Y., 264. 
 So likewise, where the defendant took the goods of another, from a party 
 selling them without authority, such party not making any actual 
 delivery. Ely vs. Ehle, 3 Comst., 506. 
 
 The possession of a defendant has also been adjudged to be fraudu- 
 lent, and replevin maintainable in the following cases. Where, being in 
 possession of goods wrongfully taken, the defendant offered no proof of 
 good faith or of title in himself, as against the title proved by the 
 plaintiff. Tallman vs. Turok, 26 Barb., 167. Where the defendant 
 was chargeable with notice, even constructive, that the goods had been 
 obtained from the original owner by fraud. Pringle vs. Phillips, 5 
 Sandf., 157. Where a purchaser of goods from a seller, without 
 authority, took them himself, without dehvery. Ely vs. Ehle, supra. 
 Where the sale of goods to a company, actually insolvent, had been 
 procured by the fraudulent representations of their agent. Hunter vs. 
 The Hudson Elver Iron wnd Machine Company, 20 Barb., 493. Where 
 the defendant himself had so obtained them. Van Neste vs. Conover, 
 20 Barb., 547. See also same case, 8 Barb., 509 ; 5 How. 148. 
 
 A fraudulent vendee of goods, and his assignee in trust for creditors, 
 were both held liable to this form of action, i-n Nichols vs. Michael, 23 
 N. Y., 264. Nor will it be necessary for the vendor on such a sale, to 
 tender back the purchaser's note at the time of rescindino- • it will be 
 suflScient, if he produce and deliver it upon the trial. Smne case; Ste- 
 vens vs. Hyde, 32 Barb., 171. 
 
OP THE COMPLAINT. — § 145. 741 
 
 The mere possession of goods, by a factor or agent not intrusted with 
 the documentary evidence of title, or Avith the goods themselves, for the 
 purposes of sale, was considered insufficient to validate a fraudulent sale 
 by him, and replevin held to be maintainable by his principal, against 
 a purchaser, under such circumstances. So far from such a sale being 
 validated by the factor's act, the sixth section of that measure, by neces- 
 sary implication, declares it to be void. Cook vs. Adams, 1 Bosw., 497. 
 
 A purchaser of goods, for cash on delivery, who failed to pay in due 
 coiu'se, according to the custom, was held to have acquired no title, and 
 that replevin was maintainable by his vendor. Freeman vs. McKean, 
 25 Barb., 474. 
 
 A mere omission to disclose insolvency, is not per se a fraud sufficient 
 to invalidate a sale of goods, where no actual false representations are 
 made. It may be consistent with an honest but abortive purpose to 
 continue business, and to pay, and fraud is not, in the absence of direct 
 proof, to be presumed. Nichols vs. Pinner, 18 N. T., 295 ; Nichols 
 vs. Michael, 23 E". T., 264 ; Buckley vs. ArUher, 21 Barb., 585. The 
 true point of inquiry in such cases is, whether the defendant purchased 
 the goods with the intention not to pay for them ; if this be established, 
 the sale will be fraudulent, but not otherwise. See Hall vs. Naylor, 
 18 N. T., 588. By this decision, the same case, 6 Duer, 71, is reversed, 
 but only on points of error in the instructions to the jury. The prin- 
 ciple laid down is substantially the same. See also Buckley vs. Artcher, 
 supra. 
 
 Eepresentations made by an agent, actually false, but in belief of 
 their truth, and without instructions from his principal, were, in like 
 manner, held insufficient to inapeach a sale to him, in Ward vs. Wood- 
 lurn, 27 Barb., 346. 
 
 Where goods are delivered by the vendee unconaitionally, or without 
 notice to subpurchasers of any condition, or are sold by an agent hav- 
 ing power to sell, a sale of them, however fraudulently obtained, will 
 avail to pass the title, and a subpurchaser, in good faith, without notice 
 of any condition, will be protected. See Freeman vs. McKean, and 
 Cook vs. Adams, supra; Beavers vs. Lane, 6 Duer, 232; Blossom vs. 
 Champion, 28 Barb., 217 ; Wait vs. Green, 35 Barb., 585. 
 
 To constitute a hona fide purchase, the vendee must not merely be in 
 possession, but must have actually paid for the goods ; where he does 
 not stand in this position, and the contract for sale to him is merely 
 executory or collateral, he cannot claim protection. Beaver vs. Lane, 
 6 Duer, 232 ; Freeman vs. MoKeam, supra. See also Stevens vs. Hyde, 
 32 Barb., 171. 
 
 A bill of lading, obtained by fraud from the owners, when there has, 
 in fact, been no sale of the goods, confers no better title upon au 
 
742 , OF THE COMPIiAUra. — § 145. 
 
 indorsee, even in good faith and for value, than was possessed by the 
 indorser. The hmit of its effect is, to protect against the owner's right 
 of stoppage in transitu. It was also held, in the same case, that a 
 party, taking sudi a paper, when on its face it is signed by a clerk, is 
 bound to make inquiry as to the latter's authority, and, if he omit so to 
 do, he takes it at his peril. Dows vs. Perrin, 16 N. Y., 325. 
 
 On a subsequent trial, under the same controversy, the correctness 
 of the general principle, as laid down in Dows vs. Perrin, is doubted, 
 and it is claimed not to have been the point in judgment, and therefore 
 not to be a conclusive decision. The authority of the clerk to sign 
 bills of lading having there been proved, the defendants were held 
 estopped from denying their validity, and a verdict in favor of the 
 plaintiffs was sustained. Pows vs. Push, 28 Barb., 157. 
 
 In the same case, the assignees of the bill of lading were held entitled 
 to stand in the position of consignees, and, as such, to be entitled to a 
 •lien for the amount of their advances ; and that the existence of such 
 lien entitled them, as such, to maintain replevin, against a party claiming 
 the goods without right, or under an inferior title. See Pows vs. Greene, 
 32 Barb,, 490. 
 
 Indorsees of a bill of lading from a fraudulent vendee, in good faith 
 and for value, were held entitled to similar protection, and that goods 
 actually shipped, on a sale for cash on delivery, could not be claimed 
 from them, without previous payment, or offer to pay the amount of 
 their advance ; and also, that the master of a ship who had given such 
 bill of lading, was similarly entitled to indemnity against his liability 
 thereon, in Blossom vs. Champion, 28 Barb., 217. See also Williams 
 vs. Birch, 6 Bosw., 299 ; Stevens vs. Hyds, 32 Barb., 171. See, how- 
 ever, as to the right of stoppage in transitu, by a vendor, and his 
 right to maintain replevin for that purpose, where there has been no 
 iona fide transfer for value, before its exercise. HolbrooTc vs. Vose, 6 
 Bosw., 76. But such right may be defeated, by the intervention of 
 those of an innocent purchaser. Williams vs. Birch, supra. 
 
 In a suit against an agent, however, the mere existence of an alleged 
 Hen will form no bar to a recovery by the plaintiff, when the balance 
 of account between him and his principal is against him. Pno vs. 
 WehrTcamp, 3 Bosw., 398. 
 
 "Where the possession of the defendant has not been wrongfully 
 acquired, a demand of the goods from him, before suit brought, is 
 essential. A demand on the defendant's wife will be insufficient ; she 
 is not her husband's agent for such a purpose. Pivingston vs. Stoessel, 
 3 Bosw., 19. See also, as to the general principle, Howell vs. Kroose, A 
 E. D. Smith, 357 ; 2 Abb., 167 ; Fuller vs. Pewis, 13 How., 219 ; 3 Abb. 
 383 ; Ely vs. Elile, 3 Comst., 508 ; Monnot vs. Ihert, 33 Barb., 24. 
 
OF THE COMPLAINT. — § 145. 743 
 
 But, where tlie possession of the defendant is wrongful in its nature, 
 either originally, or by notice, a demand before suit is unnecessary, 
 and need not be averred or proved. Hunter vs. The Hudson River 
 Iron and Machine Company, 20 Barb., 493 ; Pringle vs. Phillips, 5 
 Sandf., 15T ; The New York Car Oil Compa/ny vs. Richmond, 19 How., 
 506 ; 10 Abb., 185 ; Tollman vs. Turclc, 26 Barb., 167 ; Pillhury vs. 
 Webb, 33 Barb., 213. Misuse of property by a bailee, will have the 
 same effect. Vincent vs. Conklin, 1 E. D. Smith, 203. 
 
 "Where the vendee of an engine and boiler, to be fixed in his steam- 
 boat, removed it from the state, before completion of the contract, and 
 on his return refused to comply with the terms of payment, it was 
 held that the vendor's right of property was not lost, and that replevin 
 was maintainable. Kidd vs. Belden, 19 Barb., 266. 
 
 Replevin will lie against a sheriff, for taking the goods of a third 
 person, under a warrant of attachment. KuKlman vs. Orser, 5 Duer, 
 242. Also, for exempt property taken by him. But, in such cases, it is 
 incumbent for the plaintiff to make demand, and, if necessary, his 
 election, between the property claimed, and other of the same nature, 
 at once, and before suit brought. Seaman vs. Luce, 23 Barb, 240. 
 
 Beplevin was held maintainable by the vendor, under an uncompleted 
 contract, the terms of which liad been changed ; and a misuse of the 
 property by the defendant, or a failure on his part to comply fully with 
 the altered terms, was held to render unavailable, a lien he might other- 
 wise have claimed. Vincent ys. Conhlin, 1 E. D. Smith, 203. 
 
 Replevin will lie for money, specifically deposited upon an executory 
 contract. Graves vs. Dudley, 20 IT. Y., 76. By a mortgagor of chattels 
 against his mortgagee, when the latter has taken premature possession. 
 Newsan vs. Finch, 25 Barb., 175. By a brewer, for barrels delivered 
 full of ale, on condition of their being returned, and that a price, named 
 as payable for each in the event of a non-return, merely fixed the rate 
 of damages, and did not operate to give an election to the vendee to 
 retain them. Westcott vs. Thompson, 18 IS.. Y., 363. 
 
 Replevin will not lie, at the suit of a lessor of personal property, before 
 the expiration of a lease granted by him, even as against a third person, 
 for a wrongful taking. Bruce vs. Westervelt, 2 E. D. Smith, 440. 
 
 Nor by one tenant in common of such property, against another, or 
 his bailee. Russell vs. Allen, 3 Kern., 173. Nor by one partner against 
 another. Koningsierg ys. Launitz, 1 E. D. Smith, 215 ; AzcIy^. Betz, 
 2 E. D. Smith, 188. ISTor by a pledgee of goods, as against a levy on his 
 interest on execution. Saul vs. Kruger, 9 How., 569. Nor against a 
 chattel mortgagee, possessing himself of the property charged, after dis- 
 covery that a cancellation of his mortgage had been obtained by fraud. 
 Lynch vs. TihUtts, 24 Barb., 51. 
 
744 OF THE coitPLAiirr. — § 146. 
 
 A suit of this nature wholly abates by the death of the defendant, a,nd 
 cannot be revived against his representative. Hopkins vs. Adams, 6 
 Duer, 685 ; 5 Abb., 351. 
 
 Where goods have already been taken in replevin, a third party can- 
 not assert his claim to them by action ; his remedy is to come in in the suit 
 already pending, by making his claim under section 216. Edgerton vs. 
 Ross, 6 Abb., 189. But, where the taking by the sheriif is wrongful, it 
 seems that this section does not apply. Vide King vs. Orser, 4 Duer, 431. 
 
 Keplevin will not lie at all, for property duly in custody of the law. 
 Willis vs. Warren, 1 Hilt, 590 ; lY How., 100. 
 
 An unconditional offer to restore the property, after demand and 
 refusal, but before suit brought, will have the effect of a tender, and 
 defeat the action. The plaintiff's remedy will then lie, in an action for 
 damages occasioned by the original refusal. Savage vs. PerTcins, 11 
 How., 17. 
 
 As to the right to maintain this form of action, to recover possession 
 of a vessel, assigned upon the high seas, and as to the operation of such 
 an assignment, executed in another state, as against the rights of a cred- 
 itor in this, see Moore vs. Willett, 35 Barb., 663. 
 
 § 146. Averments on Express Contract. 
 
 Common-Law Actions. 
 
 On proceeding to the subject of averments, in actions sounding in 
 contract, those on express or written, as contradistinguished from im- 
 plied or oral contracts, present themselves in the first instance for con- 
 sideration. The subject of proceedings of an equitable nature forms 
 the subject of a further section. 
 
 Bills, Notes amd Checks. 
 
 This forms one of the most important classes of actions of this des- 
 cription, and will accordingly be first entered upon. 
 
 (a.) AVEEMENTS UNDER SECTION 162. 
 
 The short mode of pleading provided for by this section, is peculiarly 
 applicable to actions of this nature. That section has been already 
 cited at the commencement of the last book. Its purport is, as will be 
 remembered, as follows : 
 
 " In pleading the performance of conditions precedent in a contract, 
 it shall not be necessary to state the facts showing such performance, 
 but it may be stated generally that the party duly performed all the 
 conditions on his part." 
 
 If such allegation be controverted, he is bound to establish such facts 
 
OF THE COMPLAINT. § 146. 745 
 
 on the trial ; otherwise he is relieved from proof of them. So far the 
 section is rather of general application. It proceeds : 
 
 " In an action or defence founded upon an instrument for the payment 
 of money only, it shall be sufficient for the party to give a copy of the 
 instrument, and to state that there is due to him thereon from the ad- 
 verse party, a specified sum which he claims." 
 
 This is the portion which more peculiarly applies to the subject 
 now under consideration : the section will, however, be generally con- 
 sidered in this subdivision, reference being made to it hereafter, where 
 necessary. 
 
 A resort to the facilities thus afforded, is voluntary and not impera- 
 tive, and a complaint is equally good, which, instead of setting out a 
 copy, alleges the contents of the instrument sued upon, according to 
 the former practice. Mayor of New Yorh vs. Doody, 4 Abb., 127. 
 That section was designed to facilitate "the pleader, not his adversary." 
 p. 129. 
 
 As before sh'own, it is only the former and general portion of the 
 section which forms part of the original Code. The latter sentence 
 was first inserted on the amendment of 1851, and its exact purport and 
 ' limits have been the subject of considerable discussion ; the earlier de- 
 cisions having rather a tendency to restrict, and the later to enlarge its 
 operation. 
 
 The law on the subject has now been substantially defined by the 
 Court of Appeals, in Prindle vs. Oarruthers, 15 IST. Y., 425 ; reversing 
 same case, 10 How., 33,, and Keteltas^s,. Myers, 19 IST. Y., 231 ; reversing 
 the same, 1 Abb., 403 ; also partially reported, 3 E. D. Smith, 83. 
 Both of the above decisions being unanimous, are therefore a fortiori 
 controlling. 
 
 The instrument sued upon in Prindle vs. Garuthers, was of a pecu- 
 liar nature, being a contingent contract, in the form of a promissory note. 
 It was signed by the defendant, and, for value received, promised to 
 make a specified annual payment to Henry Caruthers, or his wife, 
 Elizabeth, if called for, or needed. 
 
 The complaint set forth a copy of the instrument, and averred as 
 follows : property of this contract in the plaintiff by purchase ; sur- 
 vivorship, and life of one of the. payees ; demand made by the plaintiff 
 of a yearly payment ; non-payment, and indebtedness ; ending with a 
 demand of judgment. 
 
 The defendant demurred for insufficiency, by reason of the absence of 
 alleo'ations of consideration, delivery, ai)d of assignment to the plaintiff, 
 and for numerous other minor defects. The demurrer prevailed below 
 —it being laid down that the effect of the section, was merely to relieve 
 the party from the obligation of setting out the instrument relied on, 
 
746 OF THE COMPLAINT. — § 146. 
 
 according to its legal effect, and that a plaintiff, in addition to the copy 
 and demand, must sta.te his interest in, or title to, the instrument, and 
 such other facts outside of it, as are necessary to enable him to recover 
 upon it. That, in this respect, section 162 was subordinate to, and 
 must be controlled by section 142, and that it never could have been 
 intended by the former, to dispense with a statement of other facts 
 necessary to constitute the cause of action, and to connect the plain- 
 tiff formally and legally therewith. See Prindle, vs. Garruthers, 10 
 How., 33. 
 
 These views are overruled, and the decision reversed by the Court of 
 Appeals, which held the complaint to be a good pleading under section 
 162 ; that the case provided for by that section, was an exception to 
 the general rule of pleading prescribed by section 142 ( p. 428) ; that 
 that section was in effect a continuation and extension to other contracts 
 of the old system of declaring on the money counts, and giving a bill 
 or note in evidence ; and that, in effect, a sufficient issue was joined by 
 a general denial, on which the plaintiff was bound on the trial to prove 
 his case, as though every fact necessary to maintain his action had been 
 averred explicitly (pp. 428, 429). As to the old practice above referred 
 to, see Blach vs. Gaffe, 3 Seld., 281 ; Purdy vs. Vermilya, 4 Seld, 346. 
 It is lastly indicated (pp. 429, 430) that the operation of this clause will 
 not embrace contracts extending to other matters than the payment of 
 money, and, " thus limited, it will be confined almost exclusively to 
 ■ bills of exchange, promissory notes, and other written promises for 
 the payment of money, without any other stipulation." 
 
 In Keteltas vs. Myers, 19 JST. Y., 231, the complaint averred the making 
 and delivery of a promissory note, set forth a copy, alleged indebted- 
 ness, and demanded judgment. 
 
 The defendant demurred for insufficiency. 
 
 The court below held the complaint defective, as averring no breach 
 of contract, and that the plaintiff, not having availed himself of the pre- 
 cise form prescribed by section 162, could not sustain his complaint 
 under that section. See Keteltas vs. Myers, 1 Abb., 403, and partial 
 report, 3 E. D. Smith, 83. 
 
 The appellate court reversed the decision, overruled the views taken, 
 and decided that the allegation, being couched in words equivalent to 
 the form prescribed by the section, should be liberally construed, and, 
 being so construed, brought the case within the purview of the section. 
 See also Adams vs. Sherrill, 14 How., 297. 
 
 The views above taken by the appellate court, are in harmony with 
 the following previous decisions : A complaint framed strictly under 
 the section, without any averments of presentment, demand, dishonor, 
 protest, or notice, was held sufficient to charge an indorser. Soberts vs. 
 
OF THE OOMPLAniTT. — § 146. • 14:1 
 
 Morrison, 11 L. 0., 60 ; Y How., 396. See also generally, as to a com- 
 plaint by payee against maker, Ghajypell vs. Bissell, 10 How., 274 ; 
 Marshall vs. BogTcwoocI, 12 How., 452 ; Greenbury vs. Wilkins, 9 Abb., 
 206, note. By payee against acceptor, Andrews vs. The Astor Banh, 
 2 Duer, 629. And by indorsee against acceptor, tbe complaint being, 
 however, fuller than the section required. Le/vy vs. Ely, 6 Abb., 89 ; 
 15 How., 395. See similar holding as to action iipon a bond. La Fayette 
 Insurance Company of BrooMyn vs. Rogers, 30 Barb., 491. 
 
 These cases, as above cited, must be considered as overruling the 
 more restricted views of the powers conferred by the section, as con- 
 tained in Alder vs. Bloomingdale, 1 Duer, 601 ; 10 L. 0., 363 ; Lord 
 vs. Cheeselorough, 4 Sandf., 696. (See note, 5 Duer, 6T0) ; 1 C. R. (K. S.), 
 322 ; BanJc of Geneva vs. Gulich, 8 How., 51; Price vs. McOlave, 5 
 Duer, 670 ; 3 Abb., 253 ; affirmed, 6 Duer, 544 ; Eaiiney vs. Smith, 6 
 How., 420. See also dicta, in Marshall vs. RocT&wood, 12 How., 452, 
 (454) ; Adams vs. Sherrill, 14 How., 297 (298) and Cottrell vs. Oonk- 
 lin, 4 Duer, 45 (52). 
 
 The instrument set forth must, however, be complete in itself, or any 
 defect in it must be supplied by specific averment. Thus, where no con- 
 sideration appeared ;ipon the face of a paper in the form of a promissory 
 note, and none was specially averred, the complaint was held demurrable. 
 8pear vs. Downing, 34 Barb., 522 ; 22 How., 30 ; 12 Abb., 437. 
 
 The setting forth a copy of a foreign promissory note, in the language 
 in which it was made, was held to be sufficient, though not the better 
 practice, in Nourny vs. Dtibosty, 12 Abb., 128. 
 
 As to the import by implication, of the words " signed," and " in- 
 dorsed," in complaints of this nature, but containing allegations of a 
 wider scope, see Price vs. McCla/ve, 6 Duer, 644 ; N'ew Yorh Mariled 
 IronWorlis vs. Smith, 4 Duer, 362 ; Griswold vs. Laverty, 12 L. 0., 
 316 ; 3 Duer, 690 ; Bank of Geneva vs. Gulich, 8 How., 51. 
 
 "Whether, in cases in which the liability of the defendant depends on 
 facts extraneous to the terms of an instrument sued ugon, as apparent 
 upon a complaint drawn in this form, it may not be still the more pru- 
 dent course and the better mode of pleading, to aver them specifically, 
 instead of leaving them to a somewhat forced implication, seems at the 
 very least doubtful. It is clearly admissible, and is calculated to avoid 
 the raising of questions pregnant with difBculty, and by no means free 
 from doubt. See especially, Lord vs. Gheeseborough, and Price vs. 
 McGlame, at general term, above cited. 
 
 The subject of averments under section 162, in relation to the con- 
 tract of indorsement, will be separately considered in a subsequent sub- 
 division of the present section, under the head of Indorser's Liability. 
 
 Closely allied to the foregoing subject is that of — 
 
748 OF THE ooMPiAorr. — § 146. 
 
 (5.) Implications and Peesumptions. 
 
 On wliicli it may be desirable to draw attention to the following 
 recent decisions : 
 
 An averment of acceptance of a bill, implies acceptance in writing. 
 Banlc of Lowville vs. Ed/wards^ 11 How., 216. 
 
 One of acceptance by a corporation by their treasurer, includes an 
 averment of authority to him to accept. Partridge vs. Badger, 25 
 Barb., 146. One of indorsement by a similar body, implies a legal 
 indorsement. Mechanics' BamJcing Association vs. Spring Yalley Shot 
 and Lead Com>pany, 25 Barb., 419. One of acceptance by the presi- 
 dent of a bank, addressed to him as such, implies his authority, and 
 acceptance by the bank. Andrews vs. The Astor Bank, 2 Duer, 629. 
 But, where the draft is drawn upon him personally, the addition of a 
 statement of treasurership to his acceptance, does \\q\, prima facie dis- 
 charge a person standing in a similar position, or import his authority. 
 Bruce vs. Lord, 1 Hilt., 247. See as to inadmissibility of parol proof 
 of such authority, same case, and Knight vs. Lang, 2 Abb., 227. 
 
 An averment of lawful holding and ownership of a non-negotiable 
 note, implies an assignment, or a sale and delivery to the plaintiff. 
 Brown vs. Richardson, 20 iST. T., 4Y2. See sam,e case below, 1 Bosw., 
 402. So also, one that such an instrument is " the property of the plain- 
 tiff by purchase." Prindle vs. Oarruthers, 15 IST. Y., 425. 
 
 An averment of making a note, imports signature and delivery to the 
 payee. Chappell vs. Bissell, 10 How., 274 ; Burrall vs. Be Groot, 5 
 Duer, 379. 
 
 Averments of making and delivery, or of indorsement, to the plain- 
 tiffs, implies ownership and indebtedness. N'lhlo vs. Harrison, 7 Abb., 
 447 ; DeSantes vs. Searle, 11 How., 477 ; Taylor vs. Corbiere, 8 How., 
 385 (disapproving Beach vs. Gallup, 2 C. R., 66) ; Appleby vs. Elkins, 
 2 Sandf., 673 ; 2 C. E., 80 ; Giesson vs. Giesson, 1 C. E. (IST. S.), 414 ; 
 Connecticut Ba^k vs. Smith, 9 Abb., 168; Mitchell vs. ILyde, 12 
 How., 460. 
 
 Where indorsement of negotiable paper by the original payee is 
 alleged, the presumption lies, that the actual holder is. a bond fide owner, 
 and no allegation of any intermediate indorsement is necessary. Mitchell 
 vs. Eyde, 12 How., 460 ; James vs. Chalmers, 2 Seld., 209 ; affirming 
 same case, 5 Sandf., 52 ; Phelps vs. Ferguson, 9 Abb., 206 ; 19 How. 
 143 ; Holstein vs. Bice, 15 How., 1 ; Lee vs. Ainslie, 4 Abb., 463 ; 1 
 Hilt., 277. These eases clearly overrule Loomis vs. Borsheimer, 8 How., 
 9, and Park&r vs. Totten, 10 How., 233. The view takep in McKnight 
 vs. Hunt, 3 Duer, 615, seems also too strict, when viewed in the light 
 of the foregoing decisions, collectively considered. 
 
OF THE COMPLAmT. — § 146. 749 
 
 But, wliere no indorsement or delivery over by tlie payee of a note 
 payable to order was alleged, a mere averment of ownership by the 
 plaintiff was held insufficient, on demurrer, the complaint, on its face, 
 showing ownership in another. White vs. Brown, 14 How., 282. See 
 Vanderpoel vs. Tcurbox, 1 L. 0., 150. 
 
 Where no indorsement by the payee is shown, or where the paper is 
 non-negotiable, the title may nevertheless pass by assignment or delivery, 
 and the holder may then maintain an action. Wliite vs. Brown, mpra ; 
 Sedges vs. Sealey, 9 Barb., 214 ; but his right in this case is that of a 
 mere assignee, and he takes, subject to all existing defences. See also 
 Billings vs. Jane, 11 Barb., 620. 
 
 An allegation of indorsement imports delivery, ex vi termini, and, 
 coupled with one of ownership or possession, establishes &primci facie 
 title in the holder. Griswold vs. Lamerty, 12 L. 0., 316 ; 3 Duer, 690 ; 
 Lee vs. Ainslee, 1 Hilt., 277 ; 4 Abb., 463 ; BanTc of Lowville vs. Ed- 
 wards, 11 How., 216 ; New YorJc Ma/rMed Iron Works vs. Smith, 4 
 Dner, 362 ; Burrall vs. Be Oroot, 5 Duer, 379. See also. Price vs. 
 McClave, 6 Duer, 544 (546). 
 
 Possession of negotiable paper is prima facie evidence of good title, 
 and throws the burden on the defendants of showing want of considera- 
 tion. James YS:. Chalmers, supra; Seeley vs. Engell, 17 Barb., 530. 
 (N. B. — This portion of the decision is not affected by the reversal at 3 
 Kern., 542.) See also, Smith vs. SohancTc, 18 Barb., 344. 
 
 JSTor is it necessary to show consideration, upon the face of a complaint 
 on paper of this description. Hoxie vs. Cushman, 7 L. 0., 149. In 
 Benson vs. Coiichman, 1 C. E.., 119, it was also decided that the words 
 " for value received," import a consideration, as between indorser and 
 indorsee, and, coupled with the expression, "lawful holder," show a suf- 
 ficient cause of action. 
 
 The omission of the formula does not, however, alter the legal import 
 and effect of the note, or relieve the defendant from the burden of prov- 
 ing want of consideration, both as regards himself and another joint 
 maker, if such want be alleged by him in defence. Kinsman vs. Bird- 
 sail 2 E. D. Smith, 395. See likewise, as to the import of the words 
 " value received," as averring consideration on a non-negotiable instru- 
 ment Prindle vs. Carruthers, 15 N. Y., 425 ; reversing sarnie case, 10 
 How. 33 ; also on a guaranty, Cooper vs. Dedriok, 22 Barb., 516. 
 
 The following presumptions lie, and throw the burden of displacing 
 them, on the defendant : 
 
 That the acceptor of a bill has funds of the drawer in his hands, thus 
 constituting him the principal debtor. Atlantic Fire amd Marine Insur- 
 ance Company vs. Boies, 6 Duer, 683. See also, as to the shifting of 
 presumption in such a case, Thurman vs. Vam, Brunt, 19 Barb., 409. 
 
750 or THE COMPLAINT. — § 146. 
 
 That the note or draft of a corporation, made by their authority, is 
 legitimate bitsiness paper, and on valid consideration. Partridge vs. 
 Badger, 25 Barb., 146. So too as to the note of a corporation, made out 
 of the state by which it is created. New York Floating Derrick Com- 
 pany vs. New Jersey Oil Company, 3 Duer, 648. Also as to the bill of 
 exchange of such a company accepted by its president. Belmont vs. 
 Coleman, 1 Bosw., 188. So likewise that their indorsement was lawful, 
 and in the course of their legitimate business. Mechanics' Banking 
 Association vs. Spring Valley Shot and Lead Company, 25 Barb., 419. 
 So also as to a note discounted by a company. Central Bank of 
 Brooklyn vs. Lang, 1 Bosw., 202. 
 
 That the transfer of negotiable paper was in the usual course of busi- 
 ness, for valuable consideration, and before dishonor. Andrews vs. Chad- 
 houriie, 19 Barb., 147. See also Ervyin vs. Downs, 15 IST. T., 575. 
 
 But such presumption, to be admissible, must be consistent with the 
 pleading of the party (same case), and also with the other facts in evi- 
 dence. See Edxoards vs. Camplell, 23 Barb., 423. Peets vs. Bratt, 6 
 Barb., 662, may be cited as a case, in which the doctrine of sustaining a 
 " very loose " complaint by implication, was carried to its utmost limits, 
 but not, of course, as a precedent to be followed. 
 
 (c.) ISTegotiable and ]S"on-negotiable Papee. 
 
 Before passing on to the other branches of the question, it may be 
 well to take a glance at some of the recent decisions on this subject, 
 and as to the different classes of instruments which will, or will not, be 
 considered as constituting a promissory note, negotiable, as such, and 
 conferring upon its lond fide holder for value, without notice, an abso- 
 lute right to recover, without averment of consideration, or regard 
 to any antecedent controversies that may exist between the original 
 parties. 
 
 The statute law on the subject of negotiable paper will be found in 
 title II., chapter lY., part II. of the Eevised Statutes. 1 K S., 768 
 to 772. 
 
 To be a promissory note, negotiable within the statute, the instru- 
 ment must provide for the payment of a certain sum of money, abso- 
 lutely and at all events, at a certain and fixed time. 
 
 An instrument promising to pay money on an uncertain or contingent 
 event, is, though assignable, not negotiable, or a promissory note. 
 Prindle vs. Carruthers, 15 IST. T., 425 (430). See also sairte case in 
 court below, 10 How., 33 (35), the reversal not impairing the ruling 
 upon this point. See likewise Spear vs. Downing, 34 Barb., 522; 
 22 How., 30 ; 12 Abb., 437. 
 
 So also as to an order to pay part of an instalment on a buildhi-^ con- 
 
OS' THE COMPLAINT. — § 146. 751 
 
 tract, on tlie completion of work to which it was applicable, though 
 accepted in general terms by the drawee. Va/ii Wagner vs. Terrett, 
 27 Barb., 181 ; Shidivell vs. Terrett, i Bosw., 520 ; Wilson vs. Roberts, 
 5 Bosw., 100. So likewise, as to a promise to pay a seaman's advance 
 wages, provided he proceeds to sea. Loftus vs. Olarh, 1 Hilt., 310. 
 
 A note payable, not in money, but in merchandise, is lilcewise not 
 negotiable paper within the statute. Brown vs. Richardson, 20 1^. T., 
 472 ; reversing, but not on this point. Same case, 1 Bosw., 402. So 
 also^ as to a paper in the form of a bill of exchange, similarly payable. 
 Landau vs. Levy, 1 Abb., 376. Or, an order for payment in same 
 form. Lenx vs. Jansen, 18 How., 265. 
 
 An instrument, informal on its face as a promissory note, as an order 
 to pay for wheat in store at a certain price, may nevertheless be sued 
 upon, as a special agreement. Lent vs. Hodgman, 15 Barb., 274. 
 
 An instrument, stipulating on its face for the performance of other 
 things, independent of, and in addition to, the payment of money, was 
 held to be non-negotiable. The contents formed an entire contract, 
 and the clause of payment of money could not be detached. Austin 
 vs. Rums, 16 Barb., 643. 
 
 An instrument, in form a negotiable promissory note, but to which 
 was added a dependent statement, that the maker had deposited bonds, 
 as collateral security for the amount promised to be paid, accompanied 
 by a power to sell, and an agreement to pay any deficiency, was held, 
 however, not to have lost its negotiable character, and that indorsers 
 were chargeable accordingly, in Arnold vs. Roch River Valley Union 
 Railroad Company, 5 Duer, 207. 
 
 A note to pay a fixed sum on a certain day, for which the maker was 
 to receive stock, was held, on the contrary, not to be negotiable, as not 
 being payable absolutely, but upon a future condition, in ConsidSrant vs. 
 Brisbane, 6 Duer, 686 ; 14 How., 487. 
 
 A note, not payable to order or bearer, is not negotiable paper. Yide 
 Barrich vs. Austin, 21 Barb., 241. 
 
 Instruments issued by a banking association, in the form of bonds, 
 for the payment of money at a specified date, with coupons for interest 
 attached, and assignments for the obligees indorsed, but convertible at 
 any intermediate time, into shares, on giving a specified notice, and sur- 
 render of the obligation, were held to be special contracts, and not to be 
 negotiable in any legal sense of the term, or to be bills or notes, in 
 Leavitt vs. Blatchford, 17 N. Y., 521 (541). 
 
 But an instrument by which a railroad company promised to pay to 
 the payee, or order, a specific sum, at a specified time, with interest semi- 
 annually, as per warrants attached, or, upon surrender of the note and 
 warra,nts to the treasurer, at any time until six months of its maturity, 
 
752 OF THE COMPLAIIfT. § 146. 
 
 to issue stock in exchange therefor, was held to be a negotiable promis- 
 sory note in Hodges vs. Shuler, 22 JST. Y., 114 ; affirming saine oase, 24 
 Barb., 68. 
 
 Town improvement bonds, for a specific sum, payable at a specific 
 time to bearer, are, even when under corporate seal, negotiable instru- 
 ments. Bank of Rome \s. Village of ■Rome, 19 JST. T., 20. So also as 
 to similar instruments not under seal, Gould vs. Town of Venice, 29 
 Barb., 442 ; Finnegan vs. Lee, 18 Plow., 186. 
 
 A statement, upon the face of the warrant of a municipal corporation, 
 for payment of a fixed sum at a specified time, that it was payable " out 
 of any funds belonging to the city, not before specifically appropriated," 
 and " chargeable to general city fund," was held not to deprive it of 
 the character of a negotiable promissory note, but that it might be sued 
 upon as such, without the necessity of any collateral proof, as to the city 
 being in funds. Bull vs. Sims, 23 K Y., 570. 
 
 A bond, without seal, for payment of a fixed sum, on a day certain, 
 should be regarded as a promissory note. Woodward vs. GeneA, 2 
 Hilt., 526. So also an instrument, in which the word " guaranty" was 
 used instead of " promise," but otherwise in ordinary form. Bruce vs. 
 Westcott, 3 Barb., 3Y4. 
 
 A due-bill, payable to bearer, is a promissory note, within the statute ; 
 but, being payable immediately, and not at any specified time, the maker 
 is not entitled to any days of grace, nor is it transferable, so as to cut off 
 any defence by him. Sackett vs. Spencer, 29 Barb., 180. 
 
 An unconditional order to pay a certain amount, against goods con- 
 signed, is, if accepted, a bill of exchange ; and a verbal promise of the 
 drawees to the holder, in affirmance of a letter written by them to the 
 drawer, agreeing to accept, is sufficient to constitute an acceptance. 
 Lowery vs. Stewan-d, 3 Bosw., 505. A promise to accept must, however, 
 be unconditional, to have that effect, nor, if conditional, will a subse- 
 quent performance of the condition avail to render it binding. New 
 York, andVirginia State Stock Bank vs. Gibson, 5 Duer., 574. 
 
 An order by the president of a company, to its treasurer, to pay a spe- 
 cified sum to one of its contractors or bearer, is a promissory note, and 
 may be declared upon as such. It is not a bill of exchange, because it 
 lacks the essential element of two parties. Fairohild vs. The Ogdens- 
 lurg, Clayton, and Rome RaAlroad Company, 15 N. Y., 337. 
 
 But an order by a committee of the board of supervisors, upon the 
 county treasurer, to pay a sum due to a contractor, was held not to be 
 negotiable paper, but to be subject to all equities against the transferor, 
 in Supervisors of Rensselaer County vs. Weed, 35 Barb., 136. 
 
 A note, part of a series, given as security for a continuing loan, on 
 which one payment. had been made, was held to be business and not 
 
OF THE COllPLArNT. — § 146. 753 
 
 accommodation paper, in the hands of a transferee, though transfen-ed 
 to secure a previous indebtedness. Troy City Bank vs. MoSpedon; 33 
 Barbl, 81. 
 
 (c?.) Decisions of General Import. 
 
 Before entering upon the subject of specific averments, it may also be 
 convenient to notice some few recent decisions of this character. 
 
 Where, upon the face of a note, the promise of the makers is joint and 
 several, a several action may be maintained against either, at the option 
 of the plaintiff. Snoio vs. Howard, 35 Barb., 55. 
 
 Consideration is essential to the validity of a note. If not apparent 
 upon its face, it must be shown aliunde, or no recovery can be had. 
 Spear vs. Downing, 34 Barb., 522 ; 22 How., 30; 12 Abb., 437. 
 
 Acceptance of a bill imports consideration, at whatever time it may 
 take place, and the accepter then stands in the same position as the 
 maker of a note, and cannot question such import. Mechanics^ Bank 
 vs. Livingston, 33 Barb., 458. Bank of Louisville vs. Ellery, 34 Barb., 
 630. See also, as to the extent to which an acceptor is estopped, Ya/ii 
 Duzer vs. Llowe, 21 N. T., 531. 
 
 A note dated on a Sunday is not void, either at common law or by 
 statute. Q-reenbury vs.Wilkins, 9 Abb., 206, note. 
 
 A note, when given, iaprimd facie evidence of an accounting and set- 
 tlement between the parties, and of indebtedness on the part of the maker. 
 Lake vs. Tysen, 2 Seld., 461 ; TreadweWs Executors vs. Abrams, 15 
 How., 219 ; Buguid vs. Ogilvie, 1 Abb., 145, The taking of the ac- 
 ceptance of a third party in payment, discharges the debt, and the taker 
 cannot sue upon the original consideration, if he neglect to present and 
 enforce it. Francia vs. Del Borneo, 2 Duer, 133. 
 
 Any material alteration of a bill or note, by the holder without the 
 maker's knowledge or consent, avoids it, even though made in good faith, 
 and as against an innocent holder. GhappelvB. Spencer, 23, Barb., 584; 
 Bruce V8. Westcott, 3 Barb., 374. But a mere alteration of the date, un- 
 der supposition of authority, and without fraudulent intention, was held 
 not to render a note invalid, in Van Brunt vs. Eoff, 35 Barb., 501. 
 
 A note, made for the purpose of obtaining the maker's release from 
 an arrest improperly procured, is void for duress, both as against prin- 
 cipal and surety. Strong vs. Orannis, 26 Barb., 122. 
 
 Where a bill, drawn by a master upon shipowners, against a claim 
 
 ' satisfied out of its proceeds, was refused to be accepted, it Avas held that 
 
 a subsequent assignment of that claim to the holder, was a nullity, and 
 
 o-ave him no additional claim against the defendants. Cochra/n vs. 
 
 Sherman, 5 Duer, 13. 
 
 It is not essential, in order to the recovery of the plaintiff on a prom- 
 
 YoL. I— 48 
 
754 OF THE COMPLAINT. § 146. 
 
 issory note, that he should be in actual possession. He may recover^ 
 though it has been deposited with a third party, provided he shows an 
 absolute right to the money due. Selden vs. Pringle, 17 Barb., 458. 
 
 And the fact that the note has been cancelled by mistake, is no bar 
 to a subsequent suit upon it, on due notification of the error, when dis- 
 covered. Irving Banlc vs. Wetheraldy 34 Barb., 323. 
 
 It was held that a director, whose note had been given, in payment 
 of his subscription for capital stock in a banking association, could not, 
 by collateral arrangement with liis co-directors, diminish or withdraw 
 his, general liability, but that such note was, notwithstanding, enforcea- 
 ble in the hands of a receiver. Oowles vs. Gridley, 24 Barb., 301. See 
 likewise, as to the validity of a note for a subscription ' for preferred 
 stock, Magee vs. Badger, 80 Barb., 246. So also, where an insurer had 
 given his note for the premium on an open marine policy, on which 
 the risk had actually commenced, it was held that he could not with- 
 draw from his contract, so as to diminish his liability, by the mere 
 service of a notice of such intent. New York Fire and Marine 
 Insurance Company vs. Roberts, 4 Duer, 141. 
 
 The ratification of a note, originally void as against the party ratify- 
 ing, operates as an original authority, and does not require any inde- 
 pendent consideration to support it. Commercial Banh of Buffalo vs. 
 Warren, 15 IST. T., 577. See also, as to ratification by an infant, after 
 attaining his majority, Taft vs. Sergeant, 18 Barb., 320. 
 
 In Conro vs. The Port Henry Iron Company, 12 Barb., 27, it is held 
 that a corporation is liable upon a draft, drawn or accepted by a party 
 authorized for that purpose,. though the corporate name be not men- 
 tioned in such draft, if it be drawn or accepted under a name adopted 
 by the corporation : and that a subsequent ratification of the acts of 
 an agent of that description, will be equivalent to an original authority. 
 
 In Pratt vs. GulicTc, 13 Barb., 297, it was held that an independent 
 action could be maintained, on a promissory note, unconditional on its 
 face, though given originally as part of the terms of an uncompleted 
 contract. 
 
 But see, as to failure of title to an estate, for purchase-money of which 
 a note was given, constituting a defence, lewis vs. McMillan, 31 
 Barb., 395. 
 
 A note given to an executor, for a consideration, proceeding from the 
 estate of his testator, is enforceable by him as such. Eagle vs. Fox, 28 
 Barb., 473 ; 8 Abb., 40. See also Merritt vs. Seaman, 2 Seld., 168,' 
 and heretofore, under the head of Parties. 
 
 As to the rights of the payee, in respect of a note payable in mer- 
 chandise, and his power, in the event of any total or partial failure in 
 his contract on the part of the maker, to require a money payment, see 
 
OF THE COMPLAINT. — § 146. 755 
 
 Gilbert vs. Danforth, 2 Seld., 585. See, as to the right of selection in 
 such a case, jLena; vs. Jansen, 18 How., 265. Also, as to the duty 
 incumbent upon the payee to exercise such right reasonably, and the 
 extent of the maker's obligation, JiucJc vs. Burk, 18 N. Y., 357. 
 
 As to the amount, claimable on a bill expressed in tbreign currency, 
 see MoButt vs. Hoge, 2 Hilt., 81. 
 
 As to the right of a creditor to recover on the original indebtedness, 
 on a failure on the part of the debtor, to make and deliver notes, agreed 
 to be taken in composition, vide Bale vs. Fowler, 12 How., 462 ; or 
 on a note taken in conditional payment, proving worthless, Terry vs. 
 Hadleij, 27 Barb., 192. 
 
 As to the right of a creditor to sue on the original consideration, sur- 
 rendering notes, his taking of which, in extension of credit, had been 
 induced by fraud ; and as to the similar power of an assignee of such a 
 debt, see French vs. White, 5 Duer, 254. Where a note, given in 
 substitution for another, was subsequently held void, tlie holder was held 
 to be remitted to his original right, and entitled to enforce his original 
 security. Sliejppwrd vs. Hamilton, 29 Barb., 156. 
 
 But such right cannot be exercised by a mere indorsee. BatUe vs. 
 Coit, 19 Barb., '68. Or, where a note has been taken on account, " with- 
 out recourse." Grooves vs. Friend, 5 Sandf., 568. 
 
 Commercial paper, held as collateral security, cannot, it has been held, 
 be sold in the same manner as stocks or bonds so pledged, but the 
 pledgee must hold it till maturity, and collect and apply the amount to 
 payment. Brown vs. Ward, 3 Duer, 660 ; Wheeler vs. Newbould, 5 
 Duer, 29 ; Nelson vs. Wellington, 5 Bosw., 178. 
 
 Where, on the other hand, collateral securities have been given on 
 discount of a note, the holder is not bound to resort to those securities 
 in the first instance, but may sue on the note itself, without regard to 
 their existence. Butterworth vs. Kennedy, 5 Bosw., 143 ; The Lee 
 Bank vs. Kitohing, 11 Abb., 435. 
 
 A' note, payable with use, no time of payment being specified, cannot 
 be considered as payable immediately, and as being overdue, on an early 
 transfer for value, so as to let in claims against the maker, as a defence 
 in an action by a subsequent transferee. Weeks vs. Pryor, 27 Barb., 
 79. See also Merritt vs. Todd, 23 N". Y., 28. 
 
 In an action on a bill of exchange, drawn and indorsed in a foreign 
 country, but payable in this state, the law of this state controls the 
 interpretation and validity of tlie indorsement, as between the indorsee 
 and the drawer. Everettvs,. Vendryes, 19 N". Y., 436 ; affirming same 
 case 25 Barb., 383. But, as between iudorser and indorsee, the rule 
 will, it seems, be otherwise, and the law of the place of indorsement 
 will prevail. See also Lee vs. Selleck, 32 Barb., 522 ; 20 How., 275. 
 
756 OF THE COMPLAINT. — § 146. 
 
 The liability on instruments of this nature, made and payable in a 
 foreign state, is regulated by the laws of that state. Hodges vs. Shuler, 
 24 Barb., 68 ; Bowen vs. Newell, 3 Kern., 290 ; afi&rming same ease, 2 
 Duer, 584 ; 12 L. 0., 321. But, where made in one state, and payable 
 in another, the law of the place of payment governs. Berrien vs. 
 Wright, 26 Barb., 208. 
 
 A note, indorsed in another state, biit payable in this, is governed 
 by the' laws of ISTew York, in relation to the effect of the contract of 
 indorsement, and as to the form of protest, and notice of dishonor. 
 Vide Cooli vs. Litchfield, 5 Seld., 279 ; affirming scume case, 5 Saudf., 
 330 ; 10 L. 0., 330 : see also, generally. Smith vs. Gardner, 4 
 Bosw., 54. 
 
 Where no place of payment was expressed upon the face of a nego- 
 tiable note, made in one state, and indorsed to the plaintiff in another, 
 it was held that the law of the place of indorsement prevailed, in 
 an action by him against the maker, and excluded the setting up by 
 the latter, of the defence of a discharge in insolvency, within his own 
 state. Ballard vs. Webster, 9 Abb., 404. 
 
 And, where the particulars of a loan appear upon the face of an 
 instrument, signed by the parties, the law of the place where it was 
 made, will govern, and parol evidence, to show that it was intended to. 
 be performed elsewhere, will be inadmissible, in aid of the defence of 
 usury. Potter vs. Tallman, 35 Barb., 182. 
 
 A note given secretly to a creditor, as an inducement to sign a com- 
 position deed, on receipt of' an apparently lesser amount, is void. 
 Hughes vs. Alexander, 5 Duer, 488. See also Carroll vs. Shields, 4 E. 
 D. Smith, 466 ; Higgins vs. Mayer, 10 How., 363 ; and Pinneo vs. 
 Biggins, 12 Abb., 334. 
 
 As to the validity of the note of z,ferm covert, given since the statute 
 of 1860, empowering her to trade in her own name, see Barton vs. 
 Beer, 35 Barb., 78 ; 21 How., 309. 
 
 (e.) Bona Fide Holdbes. 
 
 The question as to whether the plaintiff, in an action of this descrip- 
 tion, is or is not entitled to claim the privilege of a lona fide holder 
 for value, and to an absolute recovery, in that character, is one of 
 importance, exercising considerable influence on the pleadings and 
 ulterior proceedings in an action, and, as such, presents itself next for 
 consideration. 
 
 To entitle the holder to this privilege, the paper on which he sues 
 must, in the first instance, be negotiable, and it must also be valid in 
 its inception. If either of these conditions fails, the privilege no longer 
 exists. 
 
OF THE COMPLAINT. — § 146. 757 
 
 A promissory note has no legal inception, nntil it is delivered to some 
 person, as evidence of a subsisting debt. Thus, when a note intended 
 to be given, on renewal, was stolen from the desk of the maker before 
 delJN'ery, it was held to have no inception, that every description of 
 defence was available, and that the plaintiff could not recover, although 
 a purchaser for value, in ignorance of the defect, the transaction being 
 tainted with usury in an intermediate stage. Hall vs. Wilaon, 16 Barb., 
 54.8. See also, as to the defence, that a note sued upon was usurious 
 in its inception, Truscott vs. Davis, 4 Barb., 495 ; Sweet vs. Sj)ence, 35 
 Barb., 44. 
 
 An accommodation acceptance, payable to the order of the drawer, 
 was held to be void for usury in the hands of the first indorsee, though 
 its true cliaracter was not. known to him, as it had no previous incep- 
 tion ; and a second bill, given on renewal of it, will be subject to the 
 same taint. Clark vs. Sisson, 32 N. Y., 312 ; afBrming saine case, 5 
 Duer, 408. See also same ease, 4 Duer, 408. See also Bossange vs. 
 Ross, IT How., 566. 
 
 A bill or note, fraudulently put into circulation, is also invalid in its 
 inception, and imposes upon an innocent holder, the burden of proving 
 a valuable consideration on his part. Hoss vs. Bedell, 5 Duer, 462 ; 
 CaMin vs. Ha/nsen, 1 Duer, 309. See also, as to an acceptance pro- 
 cured by fraud, New YorTc and Virginia State Stock Bank vs. Oibson, 
 5 Duer, 574 ; or, an indorsement so obtained, Holhrook vs. Mix, 1 E. 
 D. Smith, 154. 
 
 To entitle a holder to this privilege, the paper miist also have been 
 taken by him, in regular course of business, and for a fiiU and fair con- 
 sideration. IlaU vs. Wilson, 16 Barb., 548. 
 
 And such holder must be so in good faith, and without notice of any 
 defect or want of consideration, or knowledge of circumstances which 
 impose upon him the duty of inquiry. HoTbrook vs. Mix, 1 E. D. 
 Smith, 154. See, as to the holder or indorsee of accommodation paper 
 of a manufacturing corporation, accepted by their agent without 
 authority, Farmers'' and Mechanics' Bank vs. Einjpire Stone Dress- 
 ing Company, 5 Bosw., 275 ; 10 Abb., 47 ; The Central Bank vs. The 
 Sam-e, 26 Barb., 23 ; Bridgeport City Bank vs. The Same, 30 Barb., 
 421 ■ 19 How., 51 ; Morford vs. The Farmers' Bank of Saratoga 
 County, 26 Barb., 568. 
 
 But this rule will not be applied, where the corporation itself has 
 procured or had the benefit of a loan so contracted, or where such loan 
 is made, on representations of their authorized agent to that effect. 
 Central Bank vs. The Empire Stone Dressing Company y Bridgeport 
 City Bam,k vs. The Swme, supra / Bank of Genesee vs. The Patchin 
 Bank, 3 Kern., 309 ; Same case, 19 N. T., 312 ; Mechanics' Banking 
 
758 OF THE COMPLAINT. § 146. 
 
 Assodation vs. New York and Saugerties White Lead Com/pamy, 23 
 How., T4 ; also, 20 How., 509. 
 
 JSTotiee on the part of a plaintiff, who has not paid value, that the 
 original consideration for a note has wholly failed, will defeat his action. 
 Prall vs. HincJwnan, 6 Duer, 351. 
 
 Wliere the plaintiff, under similar circumstances, has been put to, 
 and has given, proof of. consideration, the burden of showing notice 
 sufficient to defeat his recovery, lies upon the defendant. Gatlin vs. 
 Hansen, supra. 
 
 A note, made on no consideration, as on the sale of a wholly void 
 agreement, is invalid. Shermam, vs. Ba/mard, 19 Barb., 291. So also, 
 as to a note, given in renewal of another, which was, in fact, paid at the 
 time. Pratt vs. Foote, 5 Seld., 463 ; reversing same case, 12 Barb., 
 209. So likewise, as to a note given as security for the performance of 
 an awai'd, afterwards abandoned, and never carried out. Moore vs. 
 Cockroft, 4 Duer, 133. Or, a note, without consideration, given by a 
 deceased parent to his child, when sought to be enforced against his 
 estate. Phelps vs. Phelps, 28 Barb., 121. See also, as to the inability 
 to sustain an action, where consideration is neither expressed upon the 
 face of the note, nor proved aliunde, Spear vs. Downing, above cited. 
 
 To make an indorsee a hona fide holder of accommodation paper 
 diverted from its original purpose, the indorsement to him must be for 
 valuei advanced or parted with, or indebtedness actually extinguished 
 at the time. If merely by way of collateral security, it will not so 
 avail him, or exclude an otherwise tenable defence. White vs. Spring- 
 field Bank, 3 Sandf , .222 ; Clark vs. Dearborn, 6 Duer, 309 ; Far- 
 rington vs. The Frankfort Bank, 24 Barb., 554 ; Same case, 31 Barb., 
 183 ; Nexo York Exchange Company vs. De Wolf, 3 Bosw., 86 ; Prm- 
 tiss vs. Graves, 33 Barb., 621 ; Scott vs. The Ocean Ba/)ik, 5 Bosw., 
 192. Otherwise, however, where such a note is made for the general 
 accommodation of the payee, and he uses it in this manner, without 
 fraud. De Zeng vs. Fyfe, 1 Bosw., 335 ; Lathrop vs. Morris, 5 
 Sandf., 7. A deposit, by way of security on a stock loan, was also held 
 good in Lysaght vs. Phillips, 5 Duer, 106. See likewise Moore vs. 
 Ward, 1 Hilt., 337. 
 
 "Where the transfer of a note, by indorsement of an insurance com- 
 pany, was made without previous resolution by the board of directors 
 the transferee was held not to be a lonafide holder. Ma;rsh vs. Brett 
 16 How., 95. See as to illegality of such a transfer, Gillet ys. Phillips, 
 3 Kern., 114. 
 
 But, as regards a really bond fide holder of negotiable paper, the rule 
 of law is most sweeping and indulgent. That rule is thus stated in 
 Hall vs. Wilson, 16 Barb., 548, above cited : 
 
OF THE COMPLAINT. — § 146. 759 
 
 " Upon grounds of public policy, growing out of the commercial 
 necessities and wants of the community, a holder of negotiable paper 
 may, under certain circumstances, recover upon it, notwithstanding 
 any defect or infii'mity in the title of the person from whom he derived 
 it, even though such person may have acquired it by fraud, theft, or 
 robbery. 
 
 " But, to entitle the holder of negotiable securities, which have been 
 obtained or put in circulation fraudulently, feloniously, or without 
 consideration, to the beneiit of this rule, he must have become the 
 holder in good faith, for a full and fair consideration, in the usual course 
 of business, and without notice of the defect or infirmity in the title." 
 See also the rule as generally stated in Fa/rrington vs. Th& Franhfort 
 Swnk, 24 Barb., 554, and same case, 31 Barb., 183J Also in Stemhart 
 vs. Boher, 34 Barb., 436. 
 
 In Oould vs. Segee, 5 Duer, 260, it is laid down, that the rule in 
 question applies to all negotiable paper, whether payable to bearer or 
 order, immediately, or at a future day ; and also, that its protection is 
 not confined to those, whose usual business it is to deal in negotiable 
 paper, but extends to every person, to whom such paper may be law- 
 fully transferred, and who, by payment of value, may acquire a title. 
 
 The mere fact that paper was accommodation paper between the orig- 
 inal parties, does not, per se, impose upon a subsequent holder the 
 necessity of showing consideration in the first instance, unless fraud, 
 either in the original negotiation, or in the transfer to the plaintiff, be 
 alleged and proved by his adversary. Vide Eoss vs. Bedell, 5 Duer, 
 462. And this, it has been held, even although the holder had knowl- 
 edge of such being its original character. Pettigrew vs. Chave, 2 Hilt., 646. 
 See also Pierson vs. Boyd, 2 Duer, 33 ; Bank of Vergennes vs. Ca7)ie- 
 ron, 1 Barb., 143 ; Bailey vs. Lane, 21 How., 475 (4Y7) ; 18 Abb., 354. 
 
 Afortim'i, will a iondfide holder of accommodation paper be protect- 
 ed, where there is nothing in the circumstances, to put him upon inquiry 
 as to its origin. Bamik of Genesee vs. The Patehin Ba/iik, 19 N. Y., 
 312. See also same case, 3 Kern., 309 (307). 
 
 The holder of an accommodation note, wrongfully made in his late 
 firm name, by a late partner, after actual dissolution, was held protect- 
 ed, it appearing that no regular notice of such dissolution had ever been 
 o-iven. Gity BamJc of Broohlyn vs. McOhesney, 20 E". T., 240 ; The 
 Same vs. Dearborn, 20 IST. Y., 244. See also, as to the iri-egular note 
 of a manufacturing incorporation, but given in a form which it had 
 before recognized, and for which consideration had been received, 
 Mead vs. Keeler, 24 Barb., 20. 
 
 Knowledge of the original consideration of a note, will not avail to 
 defeat the right of a lond fde holder, though such consideration have 
 
760 OF THE COMPLAINT. — § 146. 
 
 actually failed, unless notice of such failure be also brought home to 
 him. Dams vs. MoCready, 4 E. D. Smith, 565. 
 
 A subsequent eviction of a tenant by the superior landlord, is no 
 defence to an action on his note, given to his immediate lessor, for rent 
 in advance, in the hands of a honafide holder. Broohs vs. Christopher, 
 5 Duer, 216. 
 
 Diversion of its avails, from a special purpose for which a note was 
 originally made, is no defence to an action upon it, in the hands of a 
 hona fide holder, unless notice be brought home to him. Noble vs. 
 Coriiell, 1 Plilt., 98. And diversion of this nature will not be a defence, 
 where the party seeking to set it up, has in fact received consideration. 
 Moore vs. Ward, 1 Hilt., 337. 
 
 See generally as to the extent to which a holder for value will be 
 protected, notwithstanding the divei;sion of an accommodation note 
 from its original purpose. Ayrault vs. McQueen, 32 Barb., 305. Also, 
 as to the right of such a holder, to a presumption in favor of the regu- 
 larity of his title, and that a transfer to him, on behalf of a corporation, 
 was made with due authority. Wa/mer vs. Ghappell, 32 Barb., 309. 
 See also generally on this last point, Akin vs. Blanohard, 32 Barb., 
 527 ; Bridenheoker vs. Lowell, 32 Barb., 9 ; Houghton vs. Dodge, 5 
 Bosw., 326 ; Marine Ba/)ik of Gity of New York vs. Yail, 6 Bosw., 
 421 ; Merchants^ Bank of City of New York vs. McColl, 6 Bosw., 
 473 ; Elwell vs. Dodge, 33 Barb., 336. 
 
 See, however, as to the rule which will be applied, where a note 
 given to a corporation for a specific and apparent purpose, has been 
 perverted from that purpose. Bell vs. Shibley, 33 Barb., 610. 
 
 ISTor will a party, who has actual or constructive notice of the want of 
 authority, be entitled to claim the benefit of the rule. Smith .vs. Hall, 
 5 Bosw., 319. 
 
 And, where a defendant has himself received value, he cannot object, 
 as against a subsequent holder, that such holder has not given any, on 
 the transfer to him— the latter is equally entitled to recover. See the 
 two last decisions. 
 
 Acceptance of an accommodation draft imports consideration, even 
 in favor of a party who has discounted, the paper before it was accepted. 
 Its validity cannot afterwards be questioned by the acceptor, except in 
 those cases in which a guarantee, purporting on its face to be for value 
 received, could be questioned by the guarantor. Meclianic.s' Bank vs. 
 Liviiigston, 33 Barb., 458. See also Bank of Louisville vs. Ellery, Si 
 Barb., 630, both above cited. See also, as to the extent to which an 
 acceptor will be estopped, from questioning the validity of the paper 
 accepted by him. Yan Duzer vs. Howe, 21 IST. Y., 531. 
 
 The holder may, under certain circumstances, be entitled to recover 
 
OF THE COMPLAINT. — § 146. 761 
 
 against one, and not against another party to paper of this description. 
 Thus, a pa,rty discounting a bill before acceptance, may be a hoiia fide 
 holder against the drawer, but not against a subsequent acceptor, if the 
 acceptance be irregular or invalid. Fa/rmers' and Mechanics^ Bank vs. 
 The Empire Stmie Dressing Company, 10 Abb., 47 ; 5 Bosw., 275. So, 
 knowledge on the part of a holder for value, that the makers of a note 
 were married women, was held not to deprive him of the right to rely 
 upon the implied- guaranty of the indorser, nor of his character as 
 Tyona fide holder as against the latter. Erwin vs. Downs, 15 IST. T., 575. 
 See likewise Ogden vs. Blydenburgh, 1 Hilt., 182. So, the drawer 
 of a bill will still be liable, though the indorsement of the payee may 
 have been forged. Coggill vs. The American Exchange BanTc, 1 
 Comst., 113. 
 
 And the holder of business paper for value, may maintain a suit upon 
 it, notwithstanding a defect in his title as indorsee, according to the 
 rules of the common law. Houghton vs. Dodge, 5 Bosw., 326. 
 
 "Where the contract out of which a note originated is tainted with 
 illegality, a party to that illegality cannot recover upon it, though he 
 may have paid ofl', and otherwise acquired the rights of an innocent 
 holder for value. Devlin vs. Brady, 32 Barb., 518. 
 
 Although a bill or note may be in itself void for usury, yet, if it be 
 accompanied by a certificate of the maker, that it is given for value and 
 will be paid when due, such certificate will operate as an estoppel, 
 and its validity cannot be questioned, in the hands of a holder for value. 
 Mechanics' Banlc of Brooklyn vs. Townsend, 17 How., 569 ; 29 Barb., 
 569 ; Chamlerlain vs. Tlie Same, 26 Barb., 611 ; 7 Abb., 31. 
 
 Bepresentations of the payee, that an accommodation note is business 
 paper, if relied on by a purchaser for value, and made to induce such 
 purchase, will, in the absence of knowledge,' of grounds of suspicion by 
 him of its real character, have the same effect. Truscott vs." Davis,- 4 
 Barb., 495 ; Burrall Y&.DeGroot, 5 Duer, 379 ; Robbins vs. Richardson, 
 2 Bosw., 248 ; Benedict vs. Cafe, 5 Duer, 226 (237). See also, Bamk 
 of Genesee vs. Patchin Bank, 3 Kern.,- 309 (316) ; Ferguson vs. Hamil- 
 ton, 35 Barb., 427. 
 
 To warrant the application of this doctrine, there must, however, be 
 an actual representation, or at the least an inquiry on the part of the 
 purchaser ; a mere omission to disclose the true character of the bill 
 will not have that effect. Clark vs. Sisson, 4 Duer, 408 ; Samie case, 
 22 K T., 312 ; affirming 5 Duer, 468. 
 
 In the same manner as the right to a full recovery may exist against 
 one and not against another of the parties, so also as to the measure 
 of a recovery, if had. As against an accommodation indorser, the 
 holder, purchasing from that indorser, was held to be entitled to recover 
 
762 OF THE COMPLAINT. § 146. 
 
 only the amount actually paid, with interest and protest fees. As 
 against prior parties, makers or indorsers for value, his right to recover 
 as holder would, on the contrary, be perfect. Taylor vs. Beawew, 4 E. 
 D. Smith, 213. See also, as to an accommodation note deposited as 
 security for an antecedent debt, Rollins vs. Richardson, 2 Bosw., 248. 
 See likewise, Benedict vs. Gaffe, 5 Duer, 226 (237). 
 
 The following decisions bear upon the question as to what will or 
 will not be considered as value given by a plaintiff, sufficient to consti- 
 tute him a holder in good faith. 
 
 It may be remarked that, in all tliat class of cases, perfect good faith 
 on the part of such holder is an essential condition precedent to his 
 enjoyment of the privilege in question. Where that condition is absent, 
 he will stand in no better position than the original parties, with 
 regard to the exclusion of any defences, if existent. 
 
 In Farrington vs. Frankfort Bamlc, 24 Barb., 654, the rule, as to 
 value sufficient for that purpose, is generally stated thus : 
 
 " The valuable consideration must either be a new advance made at 
 the time, or some prior security must be parted with, or au existing 
 indebtedness actually discharged to complete the title of the holder." 
 See name case, 31 Barb., 183. 
 
 The taking of such paper, in satisfaction of an antecedent debt, is 
 sufficient to clothe the holder with this character. New York Marbled 
 Iron Works vs. Smith, 4 Duer, 362 ; White vs. Sjpringfield Bank, 3 
 Sandf., 222 ; Inglis vs. Kennedy, 6 Abb., 32. Nor is it any answer 'to 
 the action that such debt has not yet become due. Rollvns vs. Rich- 
 ardson, 2 Bosw., 248. 
 
 Not so, however, where the transaction is tainted with fraud, or want 
 of consideration. See Duncan vs. Gosche, 21 How., 344 ; or with Glark 
 vs. Gallagher, 20 How., 308. 
 
 That taking of a note in payment of an antecedent debt, is a valu- 
 able consideration, within the meaning of the rule, must be deemed the 
 settled law of the state, is laid down in Gould vs. Segee, 5 Duer, 260, 
 above cited ; Purchase vs. Mattison, 3 Bosw., 310 ; Same case, 6 Duer, 
 587. See, however, this doctrine questioned in Gardwell vs. Hicks, 23 
 How., 281. 
 
 Where the makers of a note, indorsed for their accommodation for 
 another specific purpose, handed it over to another party in exchange 
 for their note, not yet due, but surrendered up to be cancelled, it was 
 held that such party was entitled to the privileges of a holder for value, 
 and to recover for the amount of the note surrendered. Youngs vs. 
 Zee, 2 Kern., 551 ; affirming same case, 18 Barb., 187. See also Ste:t- 
 heimer vs. Meyer, 33 Barb., 215.' 
 
 But, to have the above effect, the note of a third party taken b >• a 
 
OF THE COMPLAINT. — § 146. YGS 
 
 creditor, on account of his debt, must be intended to w.ork an extinguish- 
 ment. See Noel vs. Mwn^ay, 3 Kern., 67. 
 
 The transfer of a note by a debtor to his creditor, in order tlaat he 
 might collect and apply it to the payment of his debt, was held to consti- 
 tute the latter a holder for value, so as to entitle him to repudiate a 
 subsequent compromise by the debtor, in fraud of his rights. Grant vs. 
 HoUen, 1 E. D. Smith, 545. 
 
 When a parting with value in the above manner is proved, the 
 amount of the consideration so paid is not otherwise important, than 
 as bearing upon the question of actual or constructive notice. Gcmld 
 vs. Segee, 5 Duer, 260, above cited. 
 
 Where a delivery of the above nature is made, in diversion from the 
 purposes for which the note was originally given, and is merely by way 
 of collateral security for, and not in payment or extinction of an indebt- 
 edness, the holder will not be a holder for value, in the full force of the 
 term. See White vs. Springfield fianTc, and other cases above cited. 
 See, however, LysagM vs. Phillips, 5 Duer, 106 ; and Moore vs. Ward', 
 1 Hilt., 33T. But, where the note has not been so diverted, but was 
 made for the general accommodation of the party who deposits it, the 
 rule will not apply, and a deposit of this nature will be a transfer for 
 value, in the full import of the term. De Zeng vs. Fyfe; and Lathrop 
 vs. Morris, above cited. 
 
 The delivery of an accommodation note to a judgment creditor of 
 the maker, in consideration of his discontinuing supplementary pro- 
 ceedings, was held sufficient to constitute him a holder for value, as 
 against the accommodation indorser. Boyd^s,. Cummings, 17 N. Y., 101. 
 
 Where an indorser of an accommodation bill, intrusted with it for 
 negotiation, for the benefit of the drawer, delivered it over, in bad faith, 
 as security for his own performance of a contract, it was held, that a 
 further indorsee could not recover, without proof of its having been 
 passed for some unsatisfied claim, or of value given by himself, in good 
 faith, before maturity. Woodruff vs. WicUer, 2 Bosw., 613. 
 
 An executory contract, made in good faith, may avail to constitute 
 value. Thus where an accommodation note, made payable to a cashier 
 of a bank, and delivered without restriction, was pledged, by way of 
 continuing guaranty for future loans by such bank to the principal 
 makers, the pledgees were held entitled to recover for the amount then 
 due, notwithstanding a prior payment of the amount originally loan- 
 ed, the sureties not having terminated their responsibility by notice. 
 Agawam Bank vs. Strever, 1%'E, T., 502. An executory agreement, 
 whether subsequently performed or not, was held to be sufficient con- 
 sideration for a note, in SoughtaUng vs. Randen, 25 Barb., 21. 
 
 So also, indorsers of notes for the accommodation of the makers, were 
 
764 OF THE OOMPLATNT. § 146. 
 
 held liable, on a deposit of them as collateral security for a credit grant- 
 ed to such makers, and that in their character of indorsees, and not as 
 sureties. Zellhiger vs. Gaffe, 5 Duer, 87. 
 
 Exchange notes are valid, and each constitutes sufficient considera- 
 tion to support the other in the hands of a holder, for value ; nor is the 
 transaction altered, by a promise by one of the makers to protect the 
 other on maturity. Odell vs. Greenly, 4 Duer, 358 ; Goburii vs. Baker, 
 6 Duer, 532 ; Baoon vs. Ilolloway, 2 E. D. Smith, 159 ; Gobh vs. Titus, 6 
 Seld., 198 ; Nantucket Paoifio Bank vs. StebUns, 6 Duer, 341 ; Elwell 
 vs. Ghcoiiiberlain, 2 Bosw., 230 ; Wiltsie vs. Norihayn, 5 Bosw., 421. 
 
 A subscription for preferred stock, was held a valid consideration for 
 the subscriber's note for the amount, in Magee vs. Badger, 30 Barb., 
 246. 
 
 An accommodation indorser, who had paid a note, in the hands of 
 liona fide holders for value, was held subrogated to their rights, and 
 entitled to the full protection of the rule as against the prior parties, in 
 Flint vs. Sohomherg, 1 Hilt., 532. 
 
 To entitle a holder to that protection, the value claimed by him 
 must be satisfied before the liability sought to be enforced has accrued. 
 Thus, the purchaser of a bill, before acceptance, was held not entitled 
 to claim that benefit, as against a subsequent acceptor. Farmers' am,d 
 Mechanics' Bank vs. Empire Stone Dressing Gonypany, 10 Abb., 47. 
 
 The maker of a note wrongfully taken from him, and negotiated for 
 value to a l)ona fide holder, may recover of the wrongdoer the value 
 of that note, though still outstanding when the action is brought. 
 Decker vs. Mathews, 5 Sandf , 439 ; affirmed, 2 Kern., 313. 
 
 In Spencer vs. Ballou, 18 JST. Y., 327, it was held that a subsisting 
 liability on the part of the holder, as indorser on previous notes of 
 the same maker, was sufficient consideration to support his interest 
 as such holder of paper, intended to be substituted for them, as against 
 an accommodation indorser of such paper. 
 
 Liabilities of Parties, Indorsement, Oua/ranty, dco. 
 
 To enter into a detailed, or even into a professedly complete disser- 
 tation on the nature of these contracts, and the extent of the liabilities 
 which they create, would of course be trenching far beyond the appro- 
 priate limits of a work of the nature of the present. A notice of a 
 few of the more recent cases may, however, be of assistance, with a 
 view to direct attention to some of the principal points, which, on the 
 framing a complaint of this description, force themselves upon the 
 attention of the student, or even of the pleader. 
 
OF THE COMPLAINT. — § 146. 765 
 
 (_/.) Indoesee's Liability. 
 
 Although it is in the power of a plaintiif to enforce his rights, as 
 against all the other parties to a note or bill of exchange, by means of 
 a single action, the result of that action is confined to his remedy 
 alone, and has no effect upon the promises of those parties, or their 
 rights or responsibilities as between each other, which remain enforce- 
 able as before, by means of other proceedings, irrespective of any 
 judgment or decision in that particular suit. Kelsey vs. Bradbury^ 
 21 Barb., 531 ; Gorey vs. White^ 3 Barb., 12 ; Barker vs. Oassidy, 16 
 Barb., 177. 
 
 Such rights may, however, be waived, as, where an indorser, after 
 judgment against all parties, and actual execution, and sufficient levy 
 thereon against the goods of the maker, took upon himself to pay the 
 note, it was held that he had lost his recourse against the others, 
 although he had taken an assignment of the judgment, on the under- 
 standing that it was to be enforced for his benefit. Perlee vs. Onder- 
 donh, 19 Barb., 562. 
 
 As to the contract of the maker of a note, payable to his own order, 
 and indorsed over, being absolute, as regards a subsequent holder for 
 value, whosoever and wheresoever he may be, see Smith vs. Gardner, 
 4 Bosw., 54. 
 
 The rule that the parties to a bill or note are liable in the order of 
 their signatures, and that each of those parties can only hold those who 
 precede, and not those who follow him in that order, remains of gene- 
 ral and almost universal acceptance. In one respect, however, it has 
 been' trenched upon by recent decisions, and that is, in the case of an 
 accommodation indorser, who, before delivery by the maker to the payee, 
 at the former's request, and to induce the latter to take it, has affixed his 
 indorsement to a note. It has been held that such a state of things 
 may be shown by extrinsic evidence, and that, when shown, the indorser 
 was liable to the payee, who had taken up the note, and this, in his 
 character as indorser and not as guarantor. The payee would have 
 been entitled, on the note first coming to his hands, to pass it without 
 indorsement, or to indorse it without recourse, and, this last being a 
 mere matter of form, might, it was held, be done at any time, or might 
 be reckoned as done at any stage of the action. Moore vs. Gross, 19 IST. 
 T. 227* 17 How., 385; affirming same ease, 23 Barb., 534. See also. 
 Spies vs. Oihnore, 1 Oomst., 321 ; Gottrell vs. Conklin, 4 Duer, 45 ; 
 Waterbury vs. Sinclair, 26 Barb., 455 ; 6 Abb., 20 ; 16 How., 332. 
 The reversal of this last decision, Waterljury vs. Sinclair, 16 How., 
 329 (339); 7 Abb., 399; the eases of Young-vs. Knapp, 7 Abb., 399, 
 note and Hanch vs. Hund, 1 Bosw., 431, and the doubts entertained 
 
766 OF THE COMPLAINT. — § 146, 
 
 upon the subject in Murphy vs. Merchant, 14- How., 189 ; 6 Duer, 
 679, and Rahn vs. EuU, i E. D. Smith, 664 ; 2 Abb., 352, seem, by 
 the above cited decision of the Court of Appeals, to be overruled or 
 deprived of their foundation. 
 
 See generally, as to the rule that the parties to a bill of exchange are 
 liable to the holder in the manner and order, and to such extent as is 
 primd fade the legal import of their several positions on the bill, and 
 as to such holder's right to release or discharge one of such parties, 
 without prejiidice to his remedies against another, Howard Banking 
 Company vs. Wdohmam.., 6 Bosw., 280. As to what will constitute a 
 sufficient consideration for a discharge of this nature, see Eocleston vs. 
 Ogden, 34 Barb., 444. 
 
 But, as a general principle, the character of an indorsement, or the 
 nature of the liability thereon, cannot be explained. The undertaking 
 of the indorser may be either limited or enlarged at the time it is en- 
 tered into, by express terms, at his pleasure. But, if no such terms are 
 expressed, the law iixes the character of the undertaking, and it cannot 
 be varied by parol. So held as to an indorsement in blank. Bank of 
 Albion vs. Smith, 27 Barb., 489. See also cases of Spies vs. Gilmore ; Oot- 
 trell vs. Conklin ; Hanck vs. Ilund, and Murphy vs. Merchants' Bank, 
 above cited. See likewise, as to a parol promise being merged in the 
 contract of indorsement, Montgomery ■ County Bank vs. Albany City 
 Bank, 8 Barb., 396 ; affirmed, 3 Seld., 459. 
 
 The principle that, at the time of his signature, any party to a note 
 or bill of exchange has the power of restricting or qualifying his 
 liability, has been carried out in numerous recent decisions. 
 
 Thus in Hicks vs. Hinde, 9 Barb., 528 ; 6 How., 1, the drawer, 
 having signed as agent, was heldnot to be personally bound, and that 
 the draft was that of his principal. So also as to the case of the indorse- 
 ment of a bank cashier. Bank of Genesee vs. Patchin Ba,nk, 19 JST. Y., 
 312. A note, payable to a party as executive agent of a company, was 
 held to be the property of the company itself, and not of the nominated 
 payee, in Considerant vs. Brisbane, 2 Bosw., 471. The drawer or 
 acceptor of a draft on behalf of a corporation, under a name adopted by 
 it, is not liable, but the company is bound. Conro vs. The Port Henry 
 Iron Company, 12 Barb., 27. Affirmed by Court of Appeals, see 
 Selden's Notes, April 18th, 1854. See, however, as to the nullity, so far 
 as regards the corporation itself, of an acceptance of this nature, made 
 without proper authority. Walker vs: The Bank of the State of New 
 Yor-k, 5 Seld., 582 ; affirming same case, 13 Barb., 636 ; also, Mxon 
 vs. Palmer, 4 Seld., 398 ; Moss vs. Livingston, 4 Comst., 208 ; and, ag 
 to the proof of such authority. Knight vs. Lang, 2 Abb., 227. 
 
 See, likewise, as to the freedom from personal responsibility, and the 
 
OF THE COMPLAINT. — § 146. - 767 
 
 validity of the indorsement of the treasurer of a corporation, indorsing 
 over and passing a note, payable to his order as such, Baboock vs. JBeman, 
 1 Kern., 200 ; affirming same case, 1 E. D. Smith, 593 ; and, as to the 
 making a promissory note tinder special authority, as by the trustees of a 
 school district for a teacher'.s wages, Horton vs. Garrison, 23 Barb., 
 1T6. A mere acceptance, as treasurer, on a draft drawn personally, does 
 not, prima facie, absolve the acceptor from personal responsibility, but 
 he may discharge himself by proof of the fact, and knowledge of it on 
 the part of the plaintiff. Such proof, however, must be sufficient to 
 establish the liability of the principal. Bruce vs. Lord, 1 Hilt., 24T. ' 
 
 A stricter view was taken in Bolles vs. Walton, 2 E. D. Smith, 164, 
 where it was held that a defendant, who, in fact, was the proprietor of a 
 paper, could not be charged upon a promissory note signed by his 
 agent, as chairman of an executive committee, for conducting such 
 paper, but wherein his name did not appear, and nothing indicated 
 ■upon the face of such note, that it was made on his behalf, or by his 
 authority. See to the same effect, in the same controversy. Be Witt vs. 
 Walton, 5 Seld., 571. 
 
 A party, taking a note, signed by an agent as such, takes it at the 
 risk of being obliged to show affirmatively, in a suit against the princi- 
 pal, that the authority of the agent was not merely apparent but real, 
 and was exercised for such principal's benefit. Exchange Bank ' vs. 
 Monteath, 24 Barb., 371. 
 
 Under certain circumstances, the signature of the holder of a note 
 may have the effect of binding him as a principal debtor. So held, 
 where, on a note payable to him, or bearer, the payee added his signa- 
 ture' to that of the maker, in passing it to a third party. Pdtridge vs. 
 Colhy, 19 Barb., 248. So also, in the case of a party intending to 
 become surety, but signing as principal. Casey vs. Brabason, 10 Abb., 
 368. 
 
 An administrator, professedly indorsing as such, but in fact for the . 
 private debt of the widow of the deceased, was held to be personally 
 liable as indorser. Siechnan vs. Allen, 3 E. D. Smith, 561. 
 
 The indorsement of a party having no title, is a nullity, and does not 
 avail as a transfer. So held, as to that of the widow, upon a note paya- 
 ble to an indebted intestate, without administration granted. Louns- 
 lury vs. Dejpew, 28 Barb., 44. 
 
 The indorsement of paper by a wrong person, but bearing the same 
 name, is a nullity, and may, as regards t}ie indorser, constitute a forgery. 
 , Grames vs. The American Exchange Bank, 17 N. Y., 205. A note pay- 
 able to the order of a fictitious payee, is transferable by delivery, and not 
 by indorsement. Maniort vs. Roberts, 4 E. D. Siiiith, 83. A bill put 
 in circulation by the drawer, with a forged indorsement upon ;t, is, in 
 
768 OF THE COMPLAINT. — § 146. 
 
 judgment of law, payable to bearer, and a lond fide holder may so 
 treat it. Ooggill vs. American Exchange Bmik, 1 Comst., 113. 
 
 The delivery over of a note to order, by the payee, without indorse- 
 ment, but for valuable consideration, transfers the title, and makes it 
 the same in legal effect, as if payable to bearer. Central Bank of 
 Brooklyn vs. Lang^ 1 Bosw., 203. See as to this, and the two preced- 
 ing cases, 1 R. S., 768, section 5. 
 
 A person advancing money, with consent of an indorser, on security 
 of, and in order to take up a note lying in bank under protest, was held 
 entitled to hold it as a subsisting obligation against all parties, and that 
 the validity of the transfer to him could not be questioned, in Harts- 
 horne vs. Brace, 25 Barb., 126. 
 
 By affixing his name, an indorser guarantees the genuineness of the 
 signature, and the capacity to contract, of the prior parties, and will be 
 estopped from denying either. Erwin vs. Downs, 15 N. Y., 575 ; Troy 
 City Bank vs. La/)iman, 19 JST. Y., 477 ; Ogden vs. Blydenbv/rgh, 1 
 Hilt., 182. 
 
 The indorsement of non-negotiable paper, though insufficient to con- 
 stitute the signer legally liable, operates as an equitable assignment. 
 Lenx vs. Jansen, 18 How., 265. 
 
 Indorsers for a commission, to enable the holders of a note to dis- 
 count it, were, on their subsequently taking it up, held subrogated to 
 all the rights of the holder, and entitled to the position of hona fide 
 owners against all parties. Flint vs. Schomherg, 1 Hilt., 532. 
 
 Where two parties had successively indorsed a bill as siireties, both 
 were held to be liable, to acceptors who had paid without funds ; and 
 that the second of such indorsers was entitled to recover against the 
 first, a sum paid by him to such acceptors. Wright vs. Qa/rlingJiouse, 
 27 Barb., 474. 
 
 A mere auction sale of a note, without reference to the indorsements 
 at the time of sale, was held to be a transfer of the liability of the 
 maker only, and not to entitle the purchaser to any remedy against 
 indorsers, in St. John vs. Roberts, 6 Bosw., 593. 
 
 A party, securing the payment of a promissory note by a collateral 
 bond of indemnity, is not entitled to the privileges of an indorser. 
 His liabihty accrues immediately, upon its maturity and non-payment. 
 Bacon vs. Hiokok, 21 How., 440. 
 
 ig.) Guaeantoe's LiABiLrrT. 
 
 The point, that an indorser in blank contracts as such, and not as 
 guarantor, has been already adverted to, and the cases of Cottrell vs. 
 Gonklin, 4 Duer, 45, and Bank of Albion ys. Smith, 27 Barb., 489, 
 cited, as laying down that principle. The effect of a voluntary signature 
 
OF THE COMPLAIira. — § 146. 769 
 
 by the payee, or of a signature by a surety as principal, having, in 
 either case, the effect of rendering the signer liable as principal debtor, 
 as laid down in Patridge vs. Colby, 19 Barb., 248, and Casey vs. Bral- 
 ason, 10 How., 368, has been likewise considered. 
 
 A signature by a party expressly signing as guarantor is, however, 
 subject to different rules from a mere indorsement, or an indorsement 
 as surety. It falls within the statute of frauds, and, whether affixed to 
 the paper itself, or on a separate instrument, consideration must be 
 expressed upon its face, or it will be void. The words, " for value 
 received," will, however, form a sufficient expression of that consider- 
 ation. See this rule, as established by Miller vs. Cook, 23 E". Y., 495 ; 
 22 How., 66 ; and Brewster vs. Silence, 4 Seld., 207 ; affirming same 
 case, 11 Barb., 144. See also Glen Cove Mutual Insuramce Company 
 vs. HarroJd, 20 Barb., 298 ; Wood vs. Wheelock, 25 Barb., 625 ; Allen 
 vs. Fosgate, 11 How., 218. See likewise the indecisive case oi HaU 
 vs. Farmer, 2 Comst., 553. By the decision in Brewster vs. Silence, 
 those of Brown vs. Curtiss, 2 Comst., 225, and Durliain vs. Manrow, 
 2 Comst., 53'3, are clearly overruled, so far as they hold to the contrary, 
 and the dissenting opinion sustained. See, however, as to a guaranty 
 upon future consideration not falling within this rule. Union BamJc vs. 
 Coster's Executors, 3 Comst., 203, and other cases below cited. 
 
 A parol promise of the above nature was also held to be void, in 
 Underhill vs. Crawford, 18 How., 112 ; 29 Barb., 664. 
 
 The benefit of a valid guaranty, indorsed upon a note, passes with the 
 note itself by delivery, and the holder may enforce it, even though given 
 after maturity. Smith vs. Schanck, 18 Barb., 344 ; Cooper vs. Bedriok, 
 22 Barb., 516. See, however, as to the power of the court to entertain 
 and adjudicate upon evidence, showing that the contrary was intended, 
 Gallagher vs. White, 31 Barb., 92. 
 
 An instrument, purporting to be a guaranty in terms, but founded on 
 a consideration proceeding to the guarantor, constitutes him a principal 
 debtor, and he may be sued independently. So held as to a guaranty 
 that a -note was good, on sale thereof by the holder. CooTce vs. Nathan, 
 16 Barb., 342. See also. Fowler vs. Clearwater, 35 Barb., 143, and 
 Brown vs. Curtiss, 2 Comst., 225, and Cardell vs. McNiel, 21 JST. T., 
 336, there referred to. The decision to the contrary effect in Satoyer vs. 
 Haskell, 18 How., 282, seems clearly overruled by the above. 
 
 An open letter of credit, acts as a continuing guaranty until the power 
 is withdrawn, and extends to all bills, drawn and negotiated against it 
 before actual withdrawal, Monroe vs. Pilkington, 14 How., 250. So 
 also where the letter, though limited in amount, is general in its terms. 
 Union Bamk vs. Coster's Executors, 3 Comst., 203. 
 
 But where a letter of credit is given, on a counter-agreement to cover 
 
 Vol. I— 49 
 
770 OF THE COMPIiATDirT. — § 146, 
 
 the drafts drawn, the contracts are mutual and dependent, and, on breach 
 by one party, the other is at liberty to decline further performance, and 
 will not be liable for any damages occasioned by his revocation. Dion- 
 canvB. Edgerton^ 6 Bosw., 36. 
 
 K the contract of a surety imports any thing more than a collateral 
 or accessory liability, he becomes a principal debtor. A guarantor of 
 future drafts may be sued accordingly, on mere proof of their non-pay- 
 ment. Qrant vs. HotchUss, 15 How., 292 ; affirmed, 26 Barb., 63. See 
 also, Union Bank vs. Coster's Exemtors, 3 Comst., 203. So likewise, 
 where the guarantor obtains property by means of giving it. CaUleux 
 vs. Hall, 1 E. D. Smith, 5. See generally, as to the question of a guar- 
 antor's liability, Burton vs. Baher, 31 Barb., 241. 
 
 The above citations are entirely confined to the question of the lia- 
 bility of a guarantor of mercantile paper. The contract of guaranty, 
 as applicable to other cases, and in its other aspects, will be furtlier con- 
 sidered in the succeeding section. 
 
 Where a party has signed a note as surety, the fact should be SDecially 
 averred. Vide Balcom vs. Woodruff, 7 Barb., 13. 
 
 (A.) DiSCHAEGE OF LIABILITY. 
 
 The liability of an indorser or guarantor, to the holder of commercial 
 paper, is, however, capable of being lost or discharged by laches, or by 
 indulgence to the principal debtor, amounting to a variation of the 
 contract. 
 
 Before a party standing in the position of a mere surety can be sued, 
 the creditor must exhaust his remedy against the principal. If, at the 
 time the indebtedness matures, that principalis solvent, and the creditor 
 neglects to proceed against him with due diligence, he takes upon him- 
 self the risk, and discharges the surety. Ha/rt vs. Hudson, 6 Duer, 294. 
 See also, Gallagher vs. White, 31 Barb., 93. It has been held, however, 
 that if, at such time, the principal is insolvent, the creditor is not bound 
 so to pursue him, and may proceed against the surety. Merritt vs, Lin- 
 coln, 21 Barb., 249. 
 
 The granting of an extension of credit, of whatever nature, to the 
 principal debtor, without the assent of the surety, will have the effect of 
 discharging the latter, be he either guarantor or indorser, and this, even 
 though such extension be granted on a payment on account, or the 
 giving of collateral security for such principal, in actual diminution or 
 relief of the sureties' liability. Piatt vs. Stark, 2 Hilt., 399 ; Newsam 
 vs. Finch, 25 Barb., 175 ; Hart vs. Hudson, 6 Duer, 294 ; Bangs vs. 
 Mosher, 23 Barb., 478 ; Kelty vs. Jenkins, 1 Hilt., 73. Any alteration of 
 the terms of the engagement, or diminution of the value of the evidence 
 of it without' the surety's consent, even though without fraud, will 
 
OF THE COMPLAINT. — § 146. VTl 
 
 have tLe same effect. Mc Williams vs. Mason, 6 Duer, 276. So like- 
 wise, as to an extension of time granted in an award, on submission be- 
 tween the principal and the creditor. Coleman vs. Wade, 2 Seld., 44. 
 
 But an extension of time, with consent of the surety, does not operate 
 to discharge his liability. Wright vs. Storrs, 6 Bosw., 600. 
 
 And the mere taking of collateral security will not have such an effect, 
 unless adcompanied by a positive and binding extension of the credit. 
 Williams vs. Townsend, 1 Bosw., 411. It is also there laid down, that 
 mere delay to sue the principal, however long continued, does not, 
 per se, discharge the surety. See, however, as to the obligation to pros- 
 ecute within a reasonable time, and what will be so considered, Galla- 
 gker vs. White, 31 Barb., 92, supra. 
 
 A mere gratuitous promise to extend does not have this effect, unless 
 it be made in a form which imports a legal obligation, and can be en- 
 forced. Draper vs. Romeyn, 18 Barb., 166, 
 
 The mere suffering collateral securities to be taken away, on a mis- 
 taken supposition that a loan v^as discharged, and which, on discovery 
 of that mistake, were immediately returned, was held not to operate as 
 discharging an indorser, in Williamson vs. Mills, 2 Hilt., 84. 
 
 The receipt of a dividend from the estate of an insolvent acceptor, in 
 discharge of his liability, was held to exonerate the drawer, in Gardner 
 vs. Oliver Leeh Bank, 11 Barb., 558. But where, in an English com- 
 position deed, executed by the acceptors, there was an express reserva- 
 tion of the rights of creditors coming in, as against all other parties, it 
 was held that this reservation was operative, and saved the rights of an 
 executing creditor as against the drawer, who, if he has to pay the bill, 
 mio-ht still recover over against the acceptance. Lysaght vs. Phillips, 
 5 Duer, 106. 
 
 The giving of time, as between indorsers, does not affect the liability 
 of the maker, even though he have paid the amount to one of them. 
 Ca/fr vs. Lewis, 20 N". Y., 138. 
 
 A note obtained from the principal by duress, is equally void as against 
 the surety. Strong vs. Grannis, 26 Barb., 122. 
 
 The cases in which a party to commercial paper has been held dis- 
 charo-ed, by reason of the neglect or omission of the holder to present or 
 protest it, or give due notice of its dishonor, will be considered below, in 
 the next subdivision. 
 
 Tlie drawers and indorsers of a bill of exchange, addressed to the 
 drawee, merely at a city named, will not be discharged by his making 
 his acceptance payable at a particular place within that city. Troy City 
 Bank vs. Lauman, 19 N. Y., 477. 
 
 But, if the acceptance be made payable at a different place, it will be 
 a departure from the tenor of the bill, and presentation at that place 
 
772 OF THE COMPLAINT. § 146. 
 
 will not be sufficient to charge the drawers. Niagara Disti'iot Bank 
 vs. Fairman, dec, Tool Manufaoturviig Oompcmy, 31 Barb., 403. 
 
 (i.) Peeseotmeiit and Pbotbst. 
 
 In order to charge any parties to commercial paper, other than the 
 maker of a promissory note, or the acceptor of a bill of exchange, its 
 presentment in due course, and notice of its dishonor, if unpaid, are 
 essential. In an action for that purpose, an omission to make a proper 
 averment to this effect, vdll constitute a demurrable defect. Turner 
 vs. Co^Tistock, 1 0. E., 102 ; 7 L. 0., 23 ; Ferner vs. WilUams, 14 
 A'bb., 215. 
 
 If any place of payment is mentioned on the face of the instrument, 
 presentation must be made at that place. If none, presentation must 
 be made to the maker or acceptor, at his place of business, if he has 
 one, if not, at his place of residence, at the time. See as to the holder's 
 duty in this respect, where a bill, addressed to parties at one place, is, 
 by their acceptance, made payable at another. Niagara District Ba/rik 
 vs. Fairman and 'Willa/rd Tool Manufacturing Company, 31 Barb., 
 403, cited at the close of last subdivision. 
 
 The proper date of presentation, as to paper payable at a future day, 
 is at the expiration of the usual three days of grace, i. e., on the third 
 day after that on which, by its terms, the paper would be due. If the 
 last day of grace fall on a Sunday, it must be made on the day before. 
 The same is the case as regards New Year's Day, the Fourth of July, 
 Christmas day, and Thanksgiving day, which are established as per- 
 manent holidays, by chapter 261 of 1849, p. 392. As to presentation 
 in time of public pestilence, see 1 K. S., 769, 770, §§ 12 to 17. 
 
 But days of grace are not now allowed on the following, which are 
 payable at once, viz. : Bills or drafts payable at sight, checks, bills or 
 drafts upon any banking association, or banker, payable on any specific 
 day, or in any number of days after date, or sight thereof. See chap- 
 ter 416 of 1857, volume I., p. 838. 
 
 Presentation of a bill of exchange for acceptance is discretionary, 
 though advisable, but presentation for payment is essential, and must 
 be made the day the bill is due, or all parties, not primarily liable, will 
 be discharged. Montgomery Gownty Bank vs. Albany City Bank, 8 
 Barb., 396 ; affirmed, ^^to tanto, 3 Seld., 459. 
 
 If, on presentation for acceptance, a bill is not properly accepted, 
 according to its form and tenor, it should be treated as a refusal to 
 accept, and the bill should be protested for non-acceptance, and notice 
 given accordingly. If neglected, and the acceptance treated as suffi- 
 cient, the indorsees will be discharged, and agents for presentation 
 
OF THE COMPLAINT. — § 146. 773 
 
 liable. Walker vs. The Bamk of the State of New York, 13 Barb., 636 ; 
 affirmed, 5 Seld., 582. 
 
 Presentation of paper payable at a bank, ought to be made within 
 ordinary business hours. Tide Bank of Syracuse vs. Hollister, infra. 
 If delayed till after such hours, the presenter may be held as taking 
 the risk of his omission. But, if the bank be open after the regular 
 time, presentation then will' be sufficient. Newark India Rubber Man- 
 ufactxiring Company vs. Bishop, 3 E. D. Smith, 48. 
 
 And in The Bank of Syracuse vs. Hollister, 17 N. Y., 46, where, 
 after the bank was shut, a note payable there was delivered to the 
 teller, also a notary, at his dwelling-house, and such teller went back 
 to the bank, and, being unable to get in, demanded payment of him- 
 self at the back door, the presentation was held sufficient. 
 
 Presentation at the place of business of the maker, or of a person 
 designated on the note to be such, will be, prima faoie, sufficient. 
 Hunt vs. Mayhee, 3 Seld., 266. And an address stated on the note of 
 a firm, will be presumed to be its place of business. Otsego County 
 Bank vs. Warren, 18 Barb., 290. 
 
 Presentation to one copartner, at the firm place of business, will avail 
 to charge all parties liable. Erwin vs. Downs, 16 JST. Y., 675. Or, if 
 made at the residence of either partner. Otsego County Bank vs. War- 
 ren, supra. 
 
 On presentment, the drawee is bound to ascertain that the party pre- 
 senting, is the genuine payee, or authorized by him to receive it, or he 
 may be held liable for his omission, even though the payment, and its 
 receipt by the actual holder, be in perfect good faith. Grames vs. 
 American Exchange Bank, Yl IST. Y., 205. 
 
 Presentment and demand of an accepted bill, as well as due notice 
 of nonpayment, are conditions precedent to the liability of the drawer 
 and indorser. The acceptor has a right to see the bill, before he deter- 
 mines whether he will pay -it or not, and, if he pays it, he has a right 
 to have it delivered to him, as a voucher in his settlement with the 
 drawer. Bank of Vergennes vs. Cameron, 7 Barb., 143. 
 
 As regards non-negotiable paper, however, neither presentment nor 
 demand is necessary. Fairchild vs. Ogdensburgh, Cla/yton, and Borne 
 Railroad Company, 15 N. Y., 357. 
 
 The holder is boimd to exercise his utmost diligence, and to make 
 inquiries in all proper quarters, to ascertain the residence of the maker, 
 in order to a due presentment. If he omits to do so, indorsers will be 
 discharged. Packard vs. Lyon, 5 Duer, 82. 
 
 Where, between the making and maturity of a note, the maker has 
 ceased to have a regular place of business, presentment must be made 
 to him personally, or at his residence, and due diligence must be 
 
"774 OF THE COMPLAINT. § 146. 
 
 exerted to find the latter. Presentation to liis assignee, winding up the 
 estate, at the former place of business, will not avail. Benedict vs. 
 Goffe, 5 Duer, 226. When the maker has abandoned his residence and 
 place of business, and cannot be found after diligent inquiry, the note 
 may be protested. But, in such a case, it is proper, yet not indispens- 
 able, that presentment should be made at such former residence or 
 office. Paton vs. Lent, 4 Duer, 231 (2B3); S;pies vs. Gillmore, 1 
 Comst., 321 (326). 
 
 As to what will or will not be considered as sufficient diligence, in 
 attempting to find out the residence of indorsers, who have left their 
 place of business, for the purpose of attempting to serve them with 
 notice in due course, see Lil)by vs. Adams, 33 Barb., 542 ; Adams vs. 
 Leland, 5 Bosw., 411 ; Bandall vs. Smith, 34 Ba'rb., 452. 
 
 The mere leaving of notice at a place, originally designated by the 
 indorser as his place of business, will not be sufficient ; nnless it be 
 proved that it was his place of business at the time, and that it was 
 either left with him. or with some proper person in charge, or else that 
 no such delivery could be made. Damenjport vs. Gilbert, 4 Bosw., 532. 
 
 When a bill of exchange is payable on demand, presentment for 
 payment must be made within a reasonable time ; or, if the drawer 
 sustain injury by the delay, he will be discharged. Vantrot vs. MoGul- 
 loch, 2 Hilt., 2Y2. 
 
 But a note payable on demand with interest, is a continuing security, 
 and the holder will not be chargeable with laches, in not making 
 demand within any particular time. Merritt vs. Todd, 23 IST. Y., 28. 
 
 On non-payment of a bill or note on presentation, if the same be 
 drawn on any person non-resident in this state, a formal notarial 
 protest for non-payment will be necessary, in order to the recovery of 
 the damages allowed by statute. Vide 1 K. S., 770, 771, sections 18 to 
 23. See, as to the form, effect, and authentication of such a protest, 
 Boss vs. Bedell, 5 Duer, 462. See also, as to the certificate of a foreign 
 notary, being only available as regards a bill of exchange, and not as to 
 a promissory note, payable in a foreign place, Ktrtland vs. Warner, 2 
 Duer, 278. 
 
 The fact of presentment need not appear in the protest, in verbo, but 
 the statement must, ex vi termini, import, that when the notary made 
 the demand of payment, he had the draft with him, ready to be delivered 
 up on payment. Banh qfVergennesya. Gameron, 7 Barb., 143. 
 
 As regards domestic paper, a demand of payment from the maker or 
 acceptor, and notice to the indorser and drawer of a bill, will be suffi- 
 cient to charge them, without a technical and formal protest. Vide 
 Goddington vs. Da/ois, 1 Comst., 186. 
 
 In all cases, whether the bill, note, or draft be foreign or domestic in 
 
OF THiE COMPLAINT. — § 146.v 775 
 
 its nature, notice of its dishonor must be immediately given to all 
 parties secondarily liable, viz., to the drawer and to all indorsers. 
 
 The maker of a note, or the accepter for value of a bill, being primarily 
 liable, the giving of a notice to them is good as to the drawer, in certain 
 cases, as in that of a mere accommodation acceptance, not drawn 
 against value in the hands of the accepters. Morely vs. Clark, 28 
 Barb., 390 ; or where, in the case of two firms having a common 
 partner, the drawers may also stand in the position of accepters. Yide 
 Woodbury vs. Saokrider, 2 Abb., 402. 
 
 Such notice had better, when feasible, be given the day of dishonor, 
 or of receipt of notice of dishonor, when given by one indorser to 
 another, and, at furthest, it should be given the day next succeeding. 
 If, however, that day be a legal holiday, a further delay of one day will 
 be excusable. Yide Troy City Barik vs. Lauma/n, 19 IT. Y., 47Y; 
 Farmers' Bank of Bridgeport vs. Yail, 21 IST. Y., 485. See also the 
 effect of laches in this respect, Clarke vs. Ward, 4 Duer, 206. 
 
 Although a notary is usually employed for that purpose, his employ- 
 ment is not essential. Any person authorized by the holder, is compe- 
 tent to demand payment, and to give the notice so required. Cole vs. 
 Jessujp, 6 Seld., 96 ; 10 How., 515. The employment of a notary will, ' 
 however, be, in almost all instances, the more convenient course, on 
 account of the facility of proof, incident to the production of his official 
 certificate. See below. 
 
 Nor, though the practice is almost universal, is it essential that such 
 notice should be in writing. If sufficiently explicit, a verbal communi- 
 cation will be sufficient. Wooden vs. Foster, 16 Barb., 146 ; MoButt 
 vs. JSoge, 2 Hilt., 81. See also Cayuga County Bank vs. Warden, 1 
 Oomst., 413 (417). But, to be available, such notice must be given by 
 the holder, or by some person representing him. Sa/uage vs. Bevier, 12 
 How., 166. Yerbal information by the indorser himself, of the maker's 
 inability to pay, will, also, avail to dispense with the obligation to serve 
 any notice at all. It would be an idle ceremony to give it, to a party 
 already in possession of the information, which it is its object to com- 
 municate. Taylor vs. French, 4 E. D. Smith, 458. 
 
 The notice must give all necessary particulars, so as fully to apprize the 
 person addressed, what bill or note is referred to. A material omission 
 or misdescription will be fatal to its validity, and will discharge the 
 party. So held as to the omission of the name of the maker. Home 
 Insurance Company vs. Green, 19 N. Y., 618 ; as to a mistake in 
 dating the notice one day before maturity. Da La Hunt vs. Higgins, 
 9 Abb., 422. See however, cases below cited, as to a notice, where the 
 requisite information is substantially given. 
 
 The indorser was also held, in Kmgsley vs. Yernon, 4 Sandf., 861, to 
 
I^Q ' OF THE COMPLAINT. § 146. 
 
 be discharged, by "false information given to him by the holder of the 
 bill, as to its having been paid, though such information proved to be 
 erroneous, and was honestly given. 
 
 Mere notice of nonpayment will not be sufficient ; the fact that the 
 note was presented, or demand made, must also appear upon the 
 notice, or it will be insufficient. Pahquioque Bank vs. Martin, 11 
 Abb., 291. 
 
 If all necessary information be given in substance, mere formal omis- 
 sions in the notice will not vitiate it. The test will be, whether that 
 notice contains all necessary information, to enable the indorser to 
 ascertain the identity of the note referred to, and to communicate the 
 fact of dishonor. Yide Cook vs. Litchfield, below cited. 
 
 Thus, a statement in such notice, that a note was " duly protested for 
 nonpayment," necessarily implies the fact of a demand and refusal of 
 payment, and is so far sufficient. Cooh vs. Litchfield, 6 Seld., 2T9 (291) ; 
 Same case, 5 Sandf , 330 ; 10 L. 0., 330 ; Ooddington vs. Davis, 1 
 Comst., 186 (190) ; Oa/yuga Bank^s. Warden, 1 Comst., 413 ; Youngs 
 vs. Lee, 2 Kern., 551 ; affirming same case, 18 Barb., 18Y ; Beats vs. 
 Feck, 12 Barb., 245. 
 
 Even a misdescription of the note will not avail to vitiate the notice, 
 provided it be shown that there was no other in existence, to which the 
 description contained in it could be applied. So held, as to a misstate- 
 ment of the amount, in the body of the document, the right figures 
 appearing on the margin. Cayuga Bank vs. Warden, 1 Comst., 413 ; 
 Same case, 2 Seld., 19. So also, when the notice, though otherwise 
 given correctly and at the proper time, misdescribed the note, as to the 
 number of months after date at which it was made payable. Knc/ppel 
 vs. Senfert, 11 L. O., 184 ; Davenport vs. Gilbert, 4 Bosw., 532 ; The 
 Same vs. The Same, 6 Bosw., 179. 
 
 In Cooh vs. Litchfield, above cited, the same principle was specially 
 applied, where notice of non-payment of four difi"erent notes, payable 
 at different dates, but otherwise precisely similar, had been given in the 
 same form, omitting any statement as to the times for which they ran, 
 or at which they became due. The form of notice was held good as to 
 the first of such notes, there being no other, payable at the time, to which 
 it could refer. As to those payable subsequently, it was held, to be 
 void for uncertainty, there being, at the time of each notice, more notes 
 than one in existence, to which it could apply. The decision of the 
 Superior Court that all were sufficient, was accordingly partly affirmed 
 as to the first, and reversed as to the other notes in question. See 5 
 Seld., 379. 
 
 On a subsequent trial of the same case, as to the last three notes, 
 extrinsic evidence was held admissible on the part of the plaintiff, in 
 
OB" THE COMPLAIKT. — § 146. '777 
 
 rebuttal of that tendered by the defendant, and to show that the 
 latter could not in fact have been misled, and the jury having found in 
 favor of the plaintiff on this special question, judgment was awarded 
 to him, on a verdict subject to the opinion of the court. Cooh vs. Litch- 
 field, 2 Bosw., 137. This decision is mainly based on the opinions in 
 The Cayuga County Bank vs. Warden, and the principle is claimed 
 to be substantially admitted in those in the report in 5 Seld., above 
 cited. 
 
 The same principle was applied to a notice, given on the correct day, 
 but merely stating the amount and the names of the drawers (so 
 called), of a promissory note, and the fact of its being protested for 
 non-payment. Youngs vs. Lee, 2 Kern., 551 ; affirming same case, 18' 
 Barb., 187. See likewise. Beats vs. Pech, 12 Barb., 215. Also to one 
 omitting the distinguishing number of a note, constituting one of a series 
 in precisely the same form, all other particulars being correctly given, 
 the number being held to be no part of the note. Hodges vs. Shuler, 
 22 IS". Y., 114 ; affirming same case, 24 Barb., 68. See also, as to notice 
 of dishonor, verbally given by producing to the indorser the bill itself, 
 and a notary's certificate of protest, McButt vs. Hoge, 2 Hilt., 81. 
 See likewise Beals vs. PecTc, 12 Barb., 245 (253). 
 
 Notice directed to a deceased indorser, in ignorance of the fact of his 
 decease, and proved to be actually received by his administrators, was 
 held sufficieht, in Beals vs. Pech, 12 Barb., 246 (262). 
 
 Notice to the agent of a corporation, authorized to draw drafts on its 
 account, was held to be notice to the corporation itself, in Conro vs. 
 Fort ILenry Iron Compamy, 12 Barb., 27, before referred to. 
 
 A notice addressed to three joint indorsers collectively, but forwarded 
 to each of them individually, was held sufficient, in Troy City Bank 
 vs. Lauman, 19 N. Y., 477. So also, e converse, individual notices ad- 
 dressed to each (without mentioning the other) of two joint payees, 
 but whose indorsements were several. Cayuga County Bank vs. War- 
 den, above cited. 
 
 When a party to a bill or note, by the mode of his signature, indi- 
 cates a particular- manner or place of presentment or service, present- 
 ment and notice according to that indication, will be sufficient and 
 proper, as regards his interest. 2roy City Bank vs. Laiwnan, above 
 cited. Otsego County Bank vs. Warren, 18 Barb., 290 ; Morris vs. 
 Hussan, 4 Sandf., 93 ; affirmed, 4 Seld., 204. And this, even although 
 the mode of service thus indicated, be otherwise insufficient. Baker vs. 
 Morris, 25 Barb., 138. See however, as to a subsequent change of the 
 indorser's designated place of business, Da/oenjport vs. Gilbert, above 
 
 cited. 
 
 By statute, chapter 416 of 1857, vol. I., p. 838 (§ 3, p. 839), service 
 
778 OF THE COMPLAINT. — § 146. 
 
 of notice of noa-payment, or non-acceptance, may now be made by 
 mail in all cases, even when the party to be notified resides, or has a 
 place of business, in the same city or town in which presentation for 
 payment or acceptance is legally made. 
 
 Service is to be so made by depositing the notice, with the postage 
 thereon prepaid, in the post-ofiice of such city or town, " directed to 
 the indorser or drawer at such city or town." See previous general 
 provision to this last effect, chapter lil of 1835, section 1. H. B. — The 
 giving of this facility can, however, hardly be construed to exclude a 
 more detailed direction, where the specific address of the party address- 
 ed is indicated or known. 
 
 This provision has, of course, the efiect of abrogating the former rule, 
 that where the party addressed and the party addressing reside in the 
 same place, service on the latter can only be made by a personal deliv- 
 ery, or leaving at the place of residence or business, and not by a mere 
 mailing, as always admissible where the residences were difiierent. See 
 Van Yeohten vs. Pruyn, 3 Kern., 549 ; Eddy vs. Jump, 6 Duer, 492 ; 
 Clarice vs. Ward, 4 Duer, 206. The principle carried out in the statute 
 had been before expressly recognized, in a case where the residence of 
 the indorser, though in the same town, was several miles distant, and 
 there was a post-office in that part where he resided. Paton vs. Lent, 4 
 Duer, 231 ; and also in general terms, in Eddy vs. Ju7n/p, above cited. 
 
 The provisions of this act will not, however, avail to excuse want of 
 diligence in endeavoring to find out the correct residence of the indorser. 
 If omitted, the notice, though otherwise given according to the statute, 
 will be insufficient. Randall vs. Smith, 34 Barb., 452. ISTor has the 
 statute any retrospective effect. Davenport vs. Oiliert, 4 Bosw., 532, 
 supra. 
 
 Service at the office of the party addressed, within business hours, 
 was held sufficient, when made to a person in possession of such office, 
 and apparently representing the defendant, though proof was offered 
 that he did not so represent him in fact, and that the notice had not 
 been actually received. Mechanics' Banking Association vs. Place, i 
 Duer, 212. And the mere leaving of such a notice in the Office, in the 
 absence of any person to receive it, would also, as conceded in the same 
 case, have been sufficient. 
 
 The mailing of notice to an indorser, addressed to him at his place of 
 business, where he was in the habit of receiving letters, Avas held suffi- 
 cient, though his residence, where he also occasionally received letters, 
 was in another town. Montgomery County Bank vs. Marsh, 3 Sold., 
 481. See also Morris vs. Russon, 4 Sandf , 93 ; affirmed, 4 Seld., 204. 
 But this rule does not apply, where such indorser has specified in his 
 indorsement the place to which such notice is to be addressed. Laws 
 
OF THE COMPLAINT. — § 146. 779 
 
 of 1835, chapter 141. (See report, p. 484.) See also Maker rs. Morris, 
 above cited. 
 
 "Where the residence of the indorser is unknown, due diligence must 
 be used to discover it, and service at a presumed, but not actual, place 
 of business, will be inefiective, and, if the holder possess information on 
 the subject, he is bound to communicate it to his agent, or the omission 
 to make service in due course vfill be fatal. Lawrence vs. Miller, 16 
 N. Y., 235. 
 
 Where a note was payable "in another state, but the maker and in- 
 dorser both resided in New York, and the maker, on transmitting it for 
 collection, did not instruct his agents to give notice of dishonor, if pro- 
 tested, it was held that he took upon himself the risk of transmission, 
 and notice, though mailed by such agents, not having been actually re- 
 ceived, the indorsers were held discharged, and that a subsequent notice, 
 given by the holder a long time after, on making inquiry and receiving 
 information, was too late. Clarice vs. Ward, 4 Duer, 206. 
 
 The fact that an indorser has taken security from the maker, does not 
 alter the conditions of his liability, or relieve the holder from his obU- 
 gation to notify him in due course. Seoord vs. Miller, 3 Kern., 55. 
 And this, even although such security be taken after dishonor, on sup- 
 position of a liability to pay. Otsego County BanTc vs. Warren, 18 Barb., 
 290. See also, Taylor vs. French, 4 E. D. Smith, 458. 
 
 The order of notice is thus : the holder is bound to give notice to the 
 drawers or indorsers, against whom he proposes to make any claim, 
 immediately upon dishonor, or, at the latest, on the day succeeding. 
 Each party receiving notice, is similarly bound to notify in due course 
 all parties whom he claims to hold liable to him, in case of his taking 
 up or being compelled to pay the paper in question. The duty of each 
 party towards each is, however, several, and not general, as regards any 
 others, although when given by the holder, such notice inures to the 
 benefit of all other parties. See Beale vs. Parrish, 20 N. Y., 407. The 
 omission to give notice to an indorser was held therefore to be no defence, 
 in an action by the holder against another. It belongs to each indorser 
 to see that the others are charged, and the holder owes no duty to tliem 
 in that respect. Spencer vs. Bailout,, 18 N. Y., 327 ; Baker vs. Morris, 
 25 Barb., 138. 
 
 And ignorance of the residence of one indorser, though available to 
 the holder, as an excuse for the giving of an imperfect notice, was held 
 to be no defence, in an action by one indorser against another, where, 
 with knowledge of such residence, be had omitted to give notice on his own 
 behalf. Beale vs. Parrish, 20 N. Y., 407 ; reversing same case, 24 Barb., 
 243. But, where undeniably established, ignorance of the indorser's 
 address, will, after due inquiry made, be a sufficient excuse, and re- 
 
'780 •OP THE COMPLAINT. § 146. 
 
 lieve the holder from the burden of giving notice. Hunt vs. Maybee, 3 
 Seld., 266. 
 
 The giving of notice may be waived, and a waiver of protest will 
 have such effect. Yide CoddingtonYS. Davis, 1 Oomst., 186. But, to be 
 binding, such waiver must be made a person competent to contract. A 
 paper to this effect, signed by an habitual drunkard, after inquisition 
 found, though sober at the time, and though before a committee had 
 been appointed, was accordingly held to be a nullity. Wcbdsworth vs. 
 Sharpstem, 4 Seld., 388. 
 
 As to what will be considered a sufficient waiver on the part of an 
 indorser, to excuse the giving him formal notice of presentment and 
 non-payment, see Mussell vs. Oronkhite, 32 Barb., 382. See however 
 as to the necessity of a formal presentment, in order to satisfy the con- 
 dition in a composition deed, notwithstanding notice that a note would 
 not be paid. Green vs. MoArthur, 34 Barb., 450. 
 
 Where a bill payable in ITew York, was sent by a country bank, 
 to its correspondents in Albany, for collection, it was held that the latter 
 were alone liable to the former, for the omission of its own correspon- 
 dents in New York, by which the indorsers had been discharged, and 
 that the sub-agents could not be. jointly charged, though responsible to 
 thei,r immediate principals. Montgomery CovMty Banh vs. Albany City 
 Banh, 3 Seld., 459 ; reversing, ^to towto, same case, 8 Barb., 396. 
 
 In some few cases, notice need not be given. Thus where the indor- 
 ser had himself informed the holder that- the maker could not pay, and 
 had made an assignment and preferred him, the latter was held excused 
 from giving him a formal notification. Taylor vs. French, 4 E. D. 
 Smith, 458. 
 
 "Where payment of a draft has been stopped by the drawer, notice to 
 him of its dislTonor is not requisite. Jacks vs. Barrin, 3 E. D. Smith, 
 65Y ; Purchase vs. Mattison, 6 Duer., 587. So also, where the drawer 
 had not sufficient funds at the bank. Goyle vs. Smith, 1 E. D. Smith, 400. 
 
 Where the drawer of a bill had no funds in the hands of the drawee, 
 even at the time when the bill was drawn, it was held that neither 
 presentment, protest, nor notice, was requisite in order to charge him. 
 Morley vs. OlarTc, 28 Barb., 390. 
 
 Presentment or demand is unnecessary, where the paper is non-ne- 
 gotiable. Fairchild vs. Ogdensburgh, Clayton, and Rome Railroad 
 Company, 15 N. Y., 337. 
 
 ISTor is it requisite, where the defendant's liability is not that of a 
 party to the note only, but arises under a special contract, as in the case 
 of a guarantor. Sterni vs. Marks, 35 Barb., 565. Or an Indemnitor 
 by bond. Bacon vs. Hickok, 21. How., 440. 
 
 It may be convenient to notice at this point, the provision of law, 
 
OF THE COMPLAINT. — § 146. 781 
 
 cliapter 271, of 1833, section 8 (2 R. S. 382, 3d edition), that tlie 
 certificate of a notary, under his hand and seal of office, is presumpti\'e 
 evidence of presentation, and of the giving of notice, unless the defendant 
 shall annex to his plea an affidavit denying its receipt. 
 
 As to the reasonable presumptions which will be indulged in support 
 of such a certificate, when tendered in evidence, see Burhanh vs. 
 Beach, 15 Barb., 326 ; Bank of Yergennea vs. Cameron, Y Barb., Ii3 ; 
 Toung vs. Gatlett, 6 Buer, 4-37 ; Ross vs. Bedell, 5 Duer, 462. The 
 service must be performed by the notary himself, or his certificate will 
 not avail. If performed by his deputy, the facts must be proved in the 
 ordinary manner. Hunt vs. Maybee, 3 Seld., 267. The same must 
 be done as respects the presentation of a promissory note in a foreign 
 state, the certificate of a foreign notary not being evidence. Kirtland 
 vs. Wa/rner, 2 Duer, 278. See, however, as to a bill of exchange, 
 Bank of Vergennes vs. Cameron, 7 Barb., 143 (148). 
 
 With regard to the provision (2 E. S., 283, 284, §§ 46, 47) that in 
 the case of the death, insanity, absence, or removal of a notary, his 
 original certificate of protest may be read, as presumptive evidence of 
 demand, and any note or memorandum in his own handwriting, or 
 signed by him at the foot of any protest, or in a regular register of 
 official acts kept by him, may be also offered as presumptive evidence 
 of the giving of notice, it has been held that these provisions must be 
 strictly construed, that a memorandum in his register is not evidence 
 of either presentment or demand, and that, to be available, the demand 
 must be fully stated on the face of his certificate, and, if the certificate 
 specifies a demand which is not sufficient in law, it will not avail as 
 evidence. A certificate of a demand made upon one of a firm, without 
 specifying which member, was therefore held to be inadmissible. 
 Otsego County Bank vs. Warren, 18 Barb., 290. See also, as to an 
 insufficient memorandum, Taylor vs. Stringer, 1 Hilt., 377. 
 
 A memorandum made at the foot of the draft itself, by the notary, 
 and signed with his initials, stating the protest, and mailing of notices, 
 was held to constitute no part" of his official certificate, and not to be 
 legal evidence, in The Bank of Vergennes vs. Cameron, 7 Barb., 143. 
 
 It has been held that a verified answer is not an affidavit within the 
 meaning of the statute, so as to exclude a notary's certificate as pre- 
 sumptive evidence according to the statute. Young vs. Catlett, 6 
 Duer, 437 ;' Arnold vs. Book River Valley Union Railroad Company, 
 6 Duer, 207 ; Pierson vs. Boyd, 2 Duer, 33. 
 
 And, in the last case, it was held that, 6ven taking the answer as an 
 affidavit, the defendant's denial was insufficient, being merely " of 
 the want of sufficient knowledge to form a belief whether or not he 
 received due notice of such protest." 
 
782 OF THE COMPLAINT. — § 146. 
 
 A separate affidavit by indorsers, denying, according to knowledge, 
 information, recollection, and belief, the receipt of any notice, was, 
 however, held to be sufficient under the statute, and to exclude the 
 certificate, in Barker vs. Cassidy, 16 Barb., 177. 
 
 {j.) Peemium E"otes. 
 
 Before passing on to the subject of averments in general, one class 
 of promissory notes seems to require a special notice, *. e., notes given 
 for their premiums, by subscribers to a mutual insurance company. 
 
 As regards this peculiar class of paper, the liability of the maker is 
 not absolute, or for the sum named on the face of the note, but is 
 dependent, and conditional upon the amount of losses incurred by the 
 company from time to time, and, upon an assessment imposed on 
 account of such losses, his due proportion upon which, and no more, 
 is, from time to time, the measure of his liability. 
 
 An assessment and demand, after dne notice, are conditions pre- 
 cedent to any suit upon a note of this description, and the averments 
 in the complaint must be framed accordingly. Savage vs. Mediury, 
 19 ]Sr. Y., 32 ; Deveridorf vs. Beardsley, 23 Barb., 656 ; Williams vs. 
 Babcoolc, 25 Barb., 109 ; Williams vs. Zakey, 15 How., 2"06 ; Toll vs. 
 Whitney, 18 How., 161; Shaughnessy vs. The Rensselaer Insurance 
 Company, 21 Barb., 605. See likewise, generally, as to the liability 
 upon notes belonging to this class. Bell vs. Shibley, 33 Barb., 610 ; 
 Lawrence vs. McOready, 6 Bosw., 329 ; Elwell vs. Crocker, 4 Bosw., 
 22 ; Dana vs. Munson, 28 E". Y., 564. The liability of a party under 
 such a note continues, notwithstanding the destruction of the subject- 
 matter of his insurance. Bangs vs. Skidmore, 21 N. Y., 136. Nor 
 can he set off against his indebtedness, claims due to him from the 
 company ; he unites the characters both of debtor and of creditor, and 
 can only claim a pro rata dividend. Lawrence vs. Nelsoix, 21 IST. Y., 
 158 ; affirming same case, 4 Bosw., 240. And, as regards the statute 
 of limitations, it has been held that such a note is a continuing security, 
 not payable until demand. Howland vs. Edmonds, 33 Barb., 433. See, 
 however, j?er contra. Bell vs. Yates, 33 Barb., 627. 
 
 And such assessment, to be binding, must be complete, and carried 
 out in all respects, and notice of it, if published before-, will be pre- 
 mature and not binding. Bangs vs. Mcintosh, 23 Barb., 591. 
 
 A receiver of such a company, duly appointed, pursuant to statute, 
 has the same powers in respect to the making and collection of such 
 assessment, as the directors before insolvency. See the cases above 
 cited in this subdivision, passim. As to the receiver's duty and com- 
 pensation, see Van Buren vs. Chenango County Mutual Insurance 
 Company, 12 Barb., 671. See also generally, as to his power in this 
 
OF THE COMPLAINT. — § 146. 783 
 
 respect, and the constitutionality of the statute which confers it, Hyatt 
 vs. MoMahm, 25 Barb., 457 ; Thomas vs. WJiallon, 31 Barb., 172. 
 
 Such power is, however, confined to a receiver appointed as above. 
 An assignee for creditors, though lawfully invested with all the assets 
 of the corporation, has no such power. Hurlhut vs. Carter, 21 Barb., 
 221 ; HurUut vs. Root, 12 How., 511. — K B. This distinction does not 
 appear to have been brought to the notice of the court, in Toll vs. Whit- 
 ney, 18 How., 161, in which the complaints were held bad on the gen- 
 eral ground of non-assessment. 
 
 In making such an assessment, a receiver acts as a mere delegate, 
 and cannot go in any respect beyond the powers of the directors, in 
 whose stead he acts ; nor will a special order of the court confer upon 
 him any additional authority. See Williams vs. Lakey, 15 How., 206 ; 
 Bell vs. Shihley, 33 Barb., 610. He must, therefore, strictly comply 
 with the exact letter of the statutes, or his assessment will be void. 
 He cannot make any distinction between different classes of notes, 
 where such distinction is not expressly authorized by the charter of the 
 company ; and, where the liabilities in respect of losses have accrued 
 separately, he must make separate assessments. Shaughnessy vs. The 
 Rensselaer Tusuranoe Oompahy, 21 Barb., 605. As to the similar duties 
 of directors in these latter respects, see Herkimer County Mutual 
 Insurance Company vs. Fuller, 14 Barb., 373. A member is liable to 
 a further assessment, to meet a deficiency from the inability of his 
 fellow-members to pay their proportions of one originally imposed. 
 Bam,gs vs. Cray, 2 Kern., 477 ; reversing same case, 15 Barb., 264. 
 
 The power of a receiver to make separate assessments,' against notes 
 belonging to different classes of insurers, when such classification is 
 expressly provided for by the charter of the company, is recognized and 
 acted upon mWhite vs. Coventry, 29 Barb., 305. See also other deci- 
 sions referred to— page 309, in text and note. 
 
 A receiver, on making such an assessment, acts like directors, nainis- 
 terially and not judicially, and his action is not conclusive on the 
 makers. 
 
 Where the notice is inoperative on its face, as by establishing a dis- 
 tinction between different classes of notes, without showing special 
 authority to do so, the latter may impeach it as such. The notice is, 
 however, sufficient, if it furnish them with data, from which they may 
 compute the amount due from each. Bangs vs. Duckinfield, 18 
 K Y., 592. 
 
 An assessment may be made after the expiration of a company's 
 charter, for the purpose of winding up its affairs, and the fact of 
 such expiration, pending a policy, will not avoid or discharge the insurer 
 from his proportionate liability. 
 
784 OP THE COMPLAINT.— § 146. 
 
 The maker of a premium note cannot, however, be charged, after 
 alienation by him of the subject-matter of the insurance, with consent 
 of the directors, either express, or implied from a resolution passed by 
 them. Otherwise, if such alienation be without notice or assent. Munir 
 leyYB. Beecher, 30 Barb., 580. See also Hyde vs. I/ynde, 4 Comst., 38T. 
 
 But when the vote is void, db initio, as when made in respect of an in- 
 surance, effected before the inception of the company's charter, the fact of a 
 formal assessment being made upon it, does not tend to give it any valid- 
 ity, or render it enforceable. Williams vs. Bdboock, 25. Barb., 109, before 
 cited. A company of this description, cannot combine two systems of 
 business, and accept premium notes from a portion of its customers, and 
 cash from the remainder, and then assess the premium notes to pay 
 losses occurring in either department. Hart vs. Aohilles, 28 Barb., 576. 
 
 In the Union Insurance Oo. vs. Hoge, however (17 How., 127), it is 
 decided by the Supreme Court of the United States, that policies issued 
 by a company of this description, for cash premiums, are valid, and that 
 such premiums represent, equally with premium notes, an interest in a 
 common fund, which common fund is devoted to the payment of losses 
 that may occur. And it has been decided by the Court of Appeals, 
 that premium notes are liable to pay losses under cash policies, issued 
 by the company. White y&. Havens, 20 How., 177 ; Mygatt vs. National 
 Protection Insurance Company, 21 JST. Y., 62; 19 How., 61. 
 
 Although a mutual insurance company is authorized to take notes for 
 premiums due from those who deal with it, it cannot take, in respect of 
 such premiums, the notes of third parties. If taken, such a note will 
 not be enforceable in its hands. Mutual Benefit life Insurance Company 
 vs. Davis, 2 Kern., 569. 
 
 Notes given on a subscription, taken up by a mutual insurance com- 
 pany for premiums in advance, were held to be negotiable, and valid in 
 the hands of a londfide holder, although delivery of such notes could 
 not have been required by the company, from the makers, until the 
 subscription-list was full. Holhrooh vs. Bassett, 5 Bosw., 147. See 
 also, generally, as to the right of such a holder, of notes of this or of a sim- 
 ilar description, Scott vs. Johnson, 5 Bosw., 213 ; Nelson vs. Wellington, 5 
 Bosw., 178 ; Broolmnam, vs. Metcalf, 5 Bosw., 429 ; Holhrooh vs. Wilson, 
 4 Bosw., 64; New Torlc Exchange Comjpany vs. Be Wolf, 5 Bosw., 
 593 ; Ogden vs. Andre, 4 Bosw., 583. 
 
 There is, however, another class of notes, competent to be taken by a 
 mutual insurance company, to which the above conditions do not apply, 
 and the liability on which is absolute, for the a,mount due upon their 
 face. This class consists of stock notes, given upon the organization of 
 the company, and forming part of its capital, pursuant to the provisions 
 of section 5 of the statute, chapter 308 of 1849, p. 441 ; or ordinary 
 
OF THE OOMPLArNT. — § 146/ 785 
 
 premium notes, when, by their charter, the company is especially author- 
 ized to negotiate them, for the purpose of paying claims in the course 
 of its business. No assessment is necessary on a note of either descrip- 
 tion, and it may be indorsed or transferred by the company, and sued . 
 for in the ordinary manner, either by the company itself, or its receiver, 
 or by a third party as holder. WJiite vs. Eaight, 16 IS". T., 310 ; Brmt-^ 
 wer vs. Appleby, 1 Sandf., 158 ; Hone vs. Allen, 1 Sandf., 171, note ; 
 Hone vs. Folger, 1 Sandf., 177 ; Brmwer vs. Hill, 1 Sandf, 629 ; Oarijl 
 vs. McElrath, 3 Sandf, 176 ; Devraismes vs. Merchants' Mutual Insu- 
 rance Company, 1 Oomst., 371 ; Howland vs. Myer, 3 Oomst., 290 
 Brown vs. Groohe, 4 Comst., 51 ; Bell vs. McElwain, 18 How., 150 
 White vs. Foster, 18 How., 151; Hart vs. Achiles, 28 Barb., 576 
 Tuckerman vs. B/'own, 11 Abb., 389. See also same principle, as to a 
 note of this description, actually satisfied by the maker, by the procure- 
 ment of insurance on his own account, and that of others, Emmst vs. 
 Reed, 4 Seld., 312. 
 
 In relation to averments, in an action of this description, the follow- 
 ing decisions have been made. 
 
 A receiver suing, must aver, in the complaint, that he has been duly 
 appointed. If controverted, he must establish the validity of such alle- 
 gation by strict proof in detail ; and, the proceeding being statutory, 
 the courts have no power of amendment. Bangs vs. Mcintosh, 23 
 Barb., 691. 
 
 And, where any doubt can be raised as to the title of the company 
 which he represents, to the note sued upon, he must show that title, by 
 proper averments. Hyatt vs. McMahon, 25 Barb., 457. 
 
 Qc.) Averments, Genbeallt Consideeed. 
 
 It remains to notice, in the last place, a few decisions, in relation to 
 averments in a complaint of this nature, trearted of in the different sub- 
 divisions of this section, considered in a general point of view, and irre- 
 spective of any of the peculiar branches of the subject previously 
 adverted to. 
 
 The doctrine of averments by implication, and of the presumptions, 
 to the benefit of which the party pleading is entitled, has been already 
 dealt with in the present section, and that of sufficiency of averment, in 
 the previous book, section 122. 
 
 It will also be needless to draw attention, a second time, to the pecu- 
 liar mode of framing a complaint, as authorized by section 162 — that 
 subject having been already dwelt upon at the commencement of this 
 section. 
 
 Where the pleader does not avail himself of its provisions, a com- 
 plaint, in its essentials, will be closely' analogous to a declaration under 
 
 YoL. I.— 50 ' 
 
786 OF THE COMPLAINT. — § 146, 
 
 the former practice. The interests of all the parties sought to he 
 charged must be carefully considered, and every allegation, essential to 
 the due charging of every party, whether conjunctively or individually, 
 must be inserted. Gottrdl vs. OonTclin, 4 Duer, 45. See also Price vs. 
 McCla/ue, 6 Duer, 544. And, where maker and indorser are included 
 in one action, the statement of fiicts must be sufficient to show the lia- 
 bility of both. SpeUman vs. Welder, 5 How., 5. If omitted, demurrer 
 will, of course, lie by the party whose liability is insufficiently averred. 
 The question, however, must be separately raised by such party, and 
 cannot be so by joint demurrer. Woodhury vs. Saakrider, 2 Abb,, 402, 
 
 In a note, payable to order, indorsement or assignment by the payee 
 should be averred ; otherwise the presumption may lie that he is still 
 the owner. White vs. Brown, 14 How., 282. 
 
 In an action by the assignee of non-negotiable paper, assignment to 
 the plaintiff, and consideration for that assignment, ought to be formally 
 alleged. Brown vs. Richardson, 20 N. Y,, 472 ; Landau vs. Levy, 1 
 Abb., 376. 
 
 In an action upon a foreign bill of exchange, drawn or negotiated 
 within this state, care must be taken, in framing the complaint, to bring 
 it within the letter of the statute, as regards the supplementary claim 
 for damages, upon protest for non-payment. See 1 R. S., 770, 771, §§ 
 18-23. The following essentials must be attended to, in addition to 
 the ordinary averments on domestic paper of that description. 
 
 It must be averred that such bill was drawn, or was negotiated, as 
 the case may be, within the State of New York. Section 10. 
 
 The place of residence, and the state, territory, or country of the 
 drawee, must be stated, in conformity with the address in the bill, 
 attention being paid to framing such averment according to the word- 
 ing of the statute. Section 18. Demand and protest for non-payment 
 or non-acceptance, as the <;ase may be, should be averred specifically. 
 Sections 19-22. 
 
 Interest should be demanded, not merely on the face of the note, but 
 upon the aggregate of the note and statutory damages, running from 
 the time of protest and demand, or protest for non-acceptance. Section 
 19-22. 
 
 If the contents of the bill be expressed in foreign' currency, an aver- 
 ment should be made of its rate of exchange or value, at the time of 
 demand of payment, and a demand of judgment made accordingly. 
 Section 21. 
 
 It must be specifically averred, that the plaintiff purchased the bill, 
 or some interest therein, for a valuable consideration (§ 23), and, if an 
 interest, such interest should be shown. 
 
 Considerable discussion has arisen upon the point, as to whetliev the 
 
OF THE COMPLAINT. — § 146. 787 
 
 details of presentation and demand of payment are necessary to be set 
 forth, in order to charge an indorser. 
 
 In the following cases, it has been decided that presentment and no- 
 tice are conditions precedent, within the scope of section 162, and all 
 that is necessary to be stated, is, that a note was " duly" presented and 
 payment " duly" demanded, and that notice of protest was " duly" 
 given to the indorsers or other parties sought to be charged. Gay vs. 
 Paine, 5 How., 107 ; 3 C. E., 162 ; Woodbury vs. Saclcrider^ 2 Abb., 
 402 (referring to Goddington vs. Davis); Adams vs. SheriU, 14 How., 
 297 ; Ferner vs. Williams, 14 Abb., 215. 
 
 A similar implication is attributed to the word " protested" in the 
 following cases : Goddington vs. Davis, 1 Comst., 186. The word must 
 be construed in its popular sense, and, in that sense, it includes all the 
 steps necessary to charge an indorser. See also GooTc vs. Litchfield, 5 
 Seld., 279 (291) ; Seals vs. Pech, 12 Barb., 245 (249). 
 
 A stricter rule was laid down, and an averment in the above form 
 decided to be bad, in Graham vs. Machado, 5 Duer, 514: the view taken 
 is, that, to fall within the purview of section 162, a condition precedent, 
 must be one expressed on the face of the contract sued upon, and not 
 of an extraneous nature. See also this view indicated in Adams vs. 
 S/ierill, stipra. The decisions in Gay vs. Paine and Woodbury vs. 
 Sackrider, are expressly dissented from, and Goddington vs. Davis 
 maintained not to be in point, as claimed in Woodbury vs. Sackrider. 
 It was therefore held, that all facts as to presentment, demand, and no- 
 tice, must be averred in detail, and an order overruling the demurrer 
 of the defendants to the complaint was reversed. See also decision of 
 the same court in Price vs. McClave, 6 Duer, 544 (549) ; affirming same 
 case, 5 Duer, 670 ; 3 Abb., 253. 
 
 But in view of the general principles laid down in the different deci- 
 sions above referred to, under the heads.of averments under section 162, 
 and implications and presumptions, this rule seems too strict, and will 
 probably not be maintainable in the other tribunals. In a prior deci- 
 sion, Alder vs. Dloo?ningdale, 1 Duer, 601 (603), the authority of Gay 
 vs. Paine, seems to be admitted by Duer, J., and that generally, and 
 not specially with reference to 162, which it in fact preceded. 
 
 In Garvey vs. Fowler, 4 Sandf , 665 ; 10 L. 0., 16, it was held that 
 an averment in a complaint, of due notice being given to an indorser, 
 will be construed to mean notice in fact, and not notice by construction 
 of law. When the plaintiff relies upon facts excusing notice in fact, he 
 must set forth those facts in his complaint. 
 
 Tlie same rule is laid down in Graham vs. Machado, above cited. 
 See also Shults vs. Depuy, 3 Abb., 252, a decision in the same court. 
 In Purchase vs. Mattison, however, 6 Duer, 587, the same tribunal 
 
788 OF THE COMPLAINT. — § 146, 
 
 somewhat departed from the above principle, and where facts excusing 
 notice appeared in the answer, and were preved on the trial without ob- 
 jection, refused, on appeal, to entertain the objection, that they were 
 inadmissible, under an averment of actual notice, as contained in the 
 complaint. It seems questionable, too, whether the rule, in this respect, 
 may not also be considered in other tribunals, as too strictly laid down. 
 
 The usual averment of presentation and demand, vi^as held proper by 
 the Superior Court itself, in a case where such presentation was merely 
 made at the last place of business of the maker, who could not be found. 
 Paton vs. Lent, 4 Duer, 231. 
 
 An averment of the giving notice of non-payment, without stating 
 the fact of presentation, was held insufficient, on demurrer : vide Pah- 
 quioque Bank vs. Martin, 11 Abb., 291. 
 
 A very bald form of complaint, not stating the fact of indorsement 
 by the payee, but resting simply on the averment, that the plaintiff was 
 lawful owner and holder, was sustained in Genet vs. Sayre, 12 Abb., 347. 
 
 See, however, objection stated to the employment of those terms, in 
 iJhadwick vs. Booth, 22 How., 23 ; 13 Abb., 249. 
 
 (Z.) Checks ok Deapts. 
 
 Actions on instruments of this nature, present a close analogy to those 
 upon a bill or promissory note, and present themselves, in the last 
 instance, for consideration. 
 
 That a direct action may be maintained by the holder against the 
 drawee, when the latter has actually funds in hand applicable to its 
 payment, though there is no direct promise passing between the parties 
 to such action, is laid down in Mittenheyer vs. Atwood, 18 How., 330. 
 See also Judson vs. Gray, 17 How., 289, and other cases there re- 
 ferred to. 
 
 A bank is entitled to continue paying the notes of its customer, even 
 after a general assignment by him, until it has received notice, of such 
 assignment. Griffin, vs. Bice, 1 Hilt., 184. 
 
 But the drawee is bound, before payment, to ascertain the genuine- 
 ness of the draft upon him. If he pays it to the wrong party, as in the 
 case of a forged indorsement, he will not be protected, and the payment 
 will not avail him, in a subsequent action by the depositor. Morgan 
 vs. T7i6 Bamk of the State of New York, 1 Kern., 404 ; affirming same 
 case, 1 Duer, 484 ; CoggiU vs. American Exchange Bamk, 1 Comst., 
 113 ; Weisser vs. Dennison, 6 Seld., 68. 
 
 The payment of a post-dated check before its date, is, in like manner, 
 a payment in the drawee's own wrong. The money remains in the 
 hands of the drawee, and his assignee in good faith may recover it. 
 Godin vs. Bank of Qommonwealth, 6 Duer, 76. 
 
OF THE COMPLAnsTT. — § 146. 789 
 
 A check drawn upon and paid by a bank is not, -per se, evidence of 
 indebtedness by the drawer. The legal presumption is that it was 
 drawn against funds. WhiU vs. AmUer, 4 Seld., 170. See also, 
 Ilealey vs. Oilman, 1 Bosw., 235. 
 
 A draft or bill of exchange, before acceptance by the draWee, does not 
 operate as an assignment of the funds in his hands, or give the holder 
 any preferable lien ; a check, in judgment of law, is a bill of exchange 
 payable on demand. Chapman vs. White, 2 Seld., 412 ; Gowper- 
 thwaite vs. Sheffield, 3 Comst., 243 ; and Wintet vs. Drury, 1 Seld., 
 525, there cited. See also Willetts vs. Fvnlay, 11 How., 468 ; Butter- 
 worth vs. Peck, 5 Bosw., 341 ; and Ketchum vs. Bement, 6 Duer, 463. 
 See likewise the last case, as to the right of a drawee, to set off against 
 a check upon him, when drawn and presented, the amount of a note 
 of the drawer, then in his hands and payable on demand, though actual 
 payment had not then been demanded. 
 
 By certifying to a check, the drawee creates a new obligation, bind- 
 ing upon himself, and which is thereafter enforceable by the holder, in 
 his own time, and at his own discretion, without regard to any state of 
 accounts between the drawer and drawee. When certified, a check 
 stands on the same footing as an ordinary bank note, and laches in 
 making the demand, will no longer be imputable. Willetts vs. The 
 Phmnix BanJc, 2 Duer, 121 ; 11 L. 0., 211. And this, by a hondfide 
 holder for value, even when certified by the teller without funds, in 
 violation of his duty, and for the accommodation of the drawer. Far- 
 mers' and Mechanics'' Banh of Kent Comity vs. Butchers a/nd Drovers' 
 Bank, 16 IST. Y., 125, finally decided on re-argument. See prior opinion 
 reported, 4 Kern., 623 ; and affirming same case, 4 Duer, 219. See, 
 however. East River Bank vs. Gedney, 4 E. D. Smith, 582, as regards 
 the liability of the drawer, on a case where actual damage was shown 
 to have accrued, from not giving notice of non-payment of sucli a 
 check. 
 
 In Willetts vs. The Phoerdx Bank, above cited, it is also decided 
 that a check to the order of bills payable, is, in judgment of law, pay- 
 able to bearer. The production of a check payable to bearer, is suffi- 
 cient pyrima facie evidence of the right of the holder to recover. 
 Townsend vs. Billinge, 1 Hilt., 353. 
 
 A lost check may be siied upon, the indemnity provided for hj stat- 
 ute in the case of a bill of exchange being tendered upon the trial, and 
 this whether the loss has occurred, before or after action brought. 
 Jacks vs. Darrin, 3 E. D. Smith, 548 ; 1 Abb., 148. The Same vs. The 
 Same, 3 E. D. Smith, 55Y. 
 
 Although, as above shown, a bank paying a post-dated check before 
 maturity, pays it in its own wrong, still an obligation of this nature is 
 
790 OF THE COMPLAINT. § 146. 
 
 valid. Godin vs. Banh of Commonwealth, above cited. It must be 
 looked upon as intended by the maker, and any indorsers, to be either 
 put into circulation, or retained until maturity, by a l)ond fide holder 
 for value. Middletown Banh vs. Morris, 28 Barb., 616. And such an 
 holder is entitled to recover against the drawer, irrespective of any 
 equities between the original parties. Jacks vs. Da/rri/n, 3 E. D. 
 Smith, 557. 
 
 A check, payable on demand, given in consideration of an executory 
 agreement, is valid, and can be collected by a honafide transferee, with- 
 out proof of performance of that agreement. Purchase vs. Mattison, 6 
 Duer, 587. 
 
 The stopping of a check by the drawee, relieves the holder from the 
 burden of showing notice of non-payment. Same case y Jacks vs. 
 Barrin, 3 E. D. Smith, 557. 
 
 Payment of a stopped check, when obtained by means of a fraud, 
 cannot be enfoi-ced. JElwell vs. Gharriberlam, 2 Bosw., 230. See, 
 however, qualification as regards that particular case. The Same vs. 
 The Same, 4 Bosw., 320. 
 
 The holder of an uncertified check must exercise due diligence in 
 its presentation, or he may lose his right to recover. A defendant, on 
 the ground of negligence, in this respect, must, however, raise the 
 question by a distinct issue in his answer, and must also show that the 
 delay has worked actnal loss or injury to him. Prim,d facie, delay is 
 not unreasonable, and the rules on the subject are far less stringent 
 than those ■ which apply to the relation of a drawer and indorser. 
 Harlech vs. Craft, 4 Duer, 122 (129). See, however. East River Bank 
 vs. Gedney, 4 E. D. Smith, 582. And, generally, as to laches in this 
 respect, discharging the drawer. Brady vs. Little Miami Mailroad 
 Company, 34 Barb., 249. A draft, payable on a given day, must be 
 presented on that day, in order to charge the drawer for non-payment, 
 unless it be afiirmatively shown that he had no funds to meet it. 
 Hansom vs. Wheeler, 12 Abb., 139. 
 
 Where the holder of a post-dated check resides, or such check has 
 been negotiated, at a different place from that where it is payable, h« 
 is entitled to a reasonable time for the purpose of its transmission for 
 presentation ; and a reasonable delay, equivalent to the regular course 
 of the mail, after maturity, will not operate to discharge either drawer 
 or indorsers, in case of intermediate insolvency of the drawee, or other 
 failure in payment. See Stephens vs. McNiel, 26 Barb., 651 ; Middle- 
 town Bank vs. Morris, 28 Barb., 616. 
 
 A bank is entitled, as against its customer, to present a check paid 
 in and credited to his account in the usual course of business, and a 
 presentation of such a check on the succeeding day, according to that 
 
OF THE COMPLATNT. — § 146. 791 
 
 course, will not be laches, or debar a recovery from him of the amount 
 so credited, on the eventual dishonor or stoppage of such check. 
 Hooker vs. FramMin, 2 Bosw., 500. 
 
 , Where, however, a draft had been retained nine or ten days before 
 being sent on for presentment, and the drawers failed in the mean time, 
 the delay was held unreasonable, and that the drawers were discharged. 
 Yantrot vs. McCullooh, 2 Hilt., 272. See also as to an omission to 
 give notice of non-payment, East Bwer BamJc vs. Oidney, 4 E. D. 
 Smith, 582. 
 
 The fact that the drawer of a check has no funds in the bank at 
 ■ the time, and has sustained no actual damage, discharges the holder 
 from the necessity of showing presentment and refusal. Sealey vs. 
 Oilman, 1 Bosw., 235 ; Ooyle ys. Srmth, 1 E. D. Smith, 400. See also 
 Garvey vs. Fowler, 4 Sandf., 665 ; Shultz vs. Depuy, 3 Abb., 252. 
 See however, above, as to the restricted views, on the subject of aver- 
 ment as entertained in last two cases. 
 
 To constitute an indorsee of a check a holder for value, he must 
 have taken it before dishonor. If after, and with knowledge of the 
 fact, he takes it, subject to every defence, legal or equitable,' which 
 could have been made against his indorser. Anderson vs. Busteed, 5 
 Duer, 485; 
 
 And, in an action by the payee of a cheek against the drawer, the 
 latter is entitled to go into evidence of the original transaction, with a 
 view to show that the plaintiff has in fact no right to recover. Bern- 
 hard vs. Brunner, 4 Bosw., 528. 
 
 The fraudulent or unauthorized negotiation of a check may be 
 restrained by injunction, even in the hands of a transferee. Clarh vs. 
 Gallagher, 20 How., 308. 
 
 But, where value has been given, transactions between the payee and 
 drawer cannot be inquired into. Fish vs. Jacobsohn, 5 Bosw., 614. 
 
 Since 1st of July, 1857, no days of grace are allowed on drafts pay- 
 able at sight, within the state, or upon those drawn upon a bank or 
 banking association, payable upon any specified day, or number of 
 days, after date or sight. See chapter 416 of 1857, vol. 1, p. 838, 
 sections 1, 2. 
 
 Before that date it had been held that a bill, payable at sight, was 
 not entitled to days of grace, but that, when payable after sight, after 
 date, or at a future day, the privilege obtained. Bills payable in terms 
 on demand, bills having no time of payment specified, and bank 
 checks were, it was held well settled, to be payable immediately on 
 presentment. Evidence of a local custom to the contrary, however, 
 might, it was considered, be admissible. Frash vs. Martin, 1 E. D. 
 Smith, 505. 
 
Y92 OF THE COMPLAINT. — § 147. 
 
 It was also held that a check on a bank, payable at a day subse- 
 quent to its date, was entitled to days of grace. Taylor vs. French, i 
 E. i). Smith, 458. This case, however, is expressly founded on the 
 authority of Bowen vs. Newell, 4 Seld., 190, below adverted to. The 
 statute now provides the contrary. 
 
 In JBowen vs. Newell, 5 Sandf., 326, it was held that a draft, dated in 
 I^ew York and drawn on a bank in Connecticut, payable on a day 
 specified, was not a bill of exchange, but a check, and, as such, was not 
 entitled to days of grace. In Bowen vs. Newell, 4 Seld., <490, this 
 decision was reversed, and it was held that such a draft was a bill of 
 exchange, and was so entitled. See also, 12 L. 0., 230. 
 
 On a second trial, however, the Superior Court adhered to its former 
 conclusion, that evidence of usage in the State of Connecticut was 
 admissible, and that, by such usage, days of grace were not allowed. 
 Bowen vs. Newell, 2 Duer, 584 ; 12 L. 0., 231 ; and this decision was 
 finally affirmed by the Court of Appeals. Bowen vs. Newell, 3 
 Kern., 290. 
 
 The point there , in controversy is, however, now settled by the 
 statute of 1867, as above referred to. 
 
 § 147. Express Contract. — Continued. 
 
 Comnion-Law Actions, 
 {a.) Genkeal Observations. 
 
 Before passing on to consider the liability in, or the averments appro- 
 priate to other actions of this nature, a few remarks and citations, on 
 the subject of express contracts in general, claim a preliminary place. 
 
 As to the general construction of a contract of this description, and 
 the extent to which its terms may be supplied by necessary implica- 
 tion, where the wording is loose or general, see Eowlamd vs. Phalen, 
 1 Bosw., 43. 
 
 In the same case it is laid down that, in the complaint, upon an 
 agreement, by which a party, though contracting upon behalf of others, 
 assumes actual liability, it is not essential for him to make special 
 averment of his authority. The personal obligation which he has 
 assumed, is sufficient consideration to uphold his contract. See also, 
 as to what will, under section 162, be a sufficient averment of perform- 
 ance of conditions precedent under such a contract, by himself and 
 those for whom he has so contracted. ISTor where several breaches of 
 such an agreement, are subsequently alleged in separate clauses, will it 
 necessitate, in each case, a repetition of the above general averment ; 
 and such separate breaches, when so assigned, do not, though so desig- 
 
OF THE COMPLAINT. — § 14Y. Y93 
 
 nated, constitute, in fact, further or separate causes of action, so as to 
 render any one or more of them, standing alone, demurrable for insuffi- 
 ciency. 
 
 Wliere non-performance of a condition precedent was occasioned by 
 the act of the defendant, it was held sufficient for the plaintiff to aver 
 the facts constituting his excuse, instead of averring performance or 
 readiness to perform. Clarice vs. Grandall, 2Y Barb., 73. 
 
 Where a plaintiff sues for work and labor, performed under a written 
 contract containing special conditions, the contract, and compliance 
 with such conditions must be specially averred. Adams vs. The Mayor 
 of New Torh, 4 Duer, 295 . 
 
 See also, as to the necessity of alleging performance, or an offer of 
 performance, in suing upon a written promise to pay money on a spe- 
 cific day, for specific stock to be then delivered, Considerant vs. Bris- 
 lane, 14 How., 487 ; 6 Duer, 686. 
 
 As to the mode of averment of breach of a covenant containing vari- 
 ous specific terms, but entire, and not continuing in its nature ; and as to 
 when one single general averment will suffice to render the action one 
 for an entire breach. Vide Atwood vs. Norton, 27 Barb., 638. 
 
 A recovery of this natm-e, will embrace all damages, prospective as 
 well as actually incurred at the time. Upon an entire covenant, only 
 one action can be brought, unless it be of a continuing nature, so as to 
 take it out of the general rule. See same case. 
 
 On a contract of this description, such as, for instance, one for the 
 erection of a house, to be paid for on completion, the contractor cannot 
 abandon, and then recover upon a quantum meruit, for such work as he 
 has already done. To enable him to maintain his action, performance 
 on his part, or facts excusing and relieving him from such performance, 
 must be averred. Nor will even occupation by the other party, con- 
 stitute, per se, a waiver, the question of waiver being one of intention. 
 Smith vs. Brady, 17 IST. Y., 173 ; Cunningham vs. Jones, 20 N. Y., 486. 
 
 See also, as to a personal contract for services in relation to procuring 
 a return of duty from the treasury, subsequently obtained, -in fact, by 
 means of an action, but not in consequence of the services of the plain- 
 tiff, which were discontinued upon a preliminary refusal by the secre- 
 tary, Satterlee vs. Jones, 3 Duer, 102. 
 
 An entire contract void or illegal in part, is void in toto, and no re- 
 covery can be had upon it. Hose vs. Truax, 21 Barb., 361. 
 
 In Goggins vs. Bullwinhle, 1 E. D. Smith, 434, it was held that 
 where a single covenant was broken in four particulars at the same 
 time, only one single action was maintainable, and that, if severed, a 
 recovery in one suit will bar all others. See also Bendernagle vs. 
 Cocks, 19 "Wend., 207, there referred to. 
 
194: OF THE COMPLAINT. § 147. 
 
 So also, as to a separate judgment, obtained against one of several 
 joint debtors. Benson vs. Paine, 2 Hilt., 552 ; 17 How., 407 ; 9 
 Abb., 28. 
 
 This principle will not apply, where ftiU performance by the plaintiff 
 has been rendered impossible by the act or default of the defendant. 
 Under such circumstances, the former may sue on a quantum meruit, 
 for such portion as has been performed by him ; but, if he elects to 
 abandon this remedy, he will remain answerable for any consequences 
 of the delay. MoConihe vs. The New Yorh and Erie Railroad Oom- 
 pam,y, 20 N. Y., 495. 
 
 The fact that two separate agreements are carried into effect by the 
 same instrument, will not necessarily constitute that instrument an 
 entire contract. If distinct in their nature, several suits upon them are 
 maintainable. So held as to a contract for sale and delivery of dressed, 
 hogs forthwith, and also of live hogs then in transitu upon their arrival, 
 there being no stipulations as to credit. The plaintiff might, it was 
 held, recover on the former, subject to recoupment by the defendant of 
 damages occasioned by breach of the latter part of the agreement. 
 Tipton vs. Feitner, 20 N. T., 423. 
 
 Where two payments under a contract for services during a stipulat- 
 ed period, were due at different dates, it was held that the contract was 
 divisible, and that, on disability to continue, owing to sickness of the 
 party, his representative was entitled to recover on a quantu/m mjeruit 
 for such as he had actually performed. Wolfe vs. Howes, 20 JST. Y., 197. 
 
 So likewise, where performance of a contract of this description, 
 though entire in its terms, was rendered impossible by a!ct of the legis- 
 ■ lature, without default of the contracting parties, Jones vs. Judd, 4 
 Comst., 411 : though the affirmance was one on equal division of the ap- 
 pellate court, that division of opinion arose upon another branch of the 
 case, and not upon that above referred to. 
 
 "Where non-completion of such a contract was occasioned by the act 
 of the defendant in discharging the plaintiff, a prior recovery for salary 
 was held no bar to a subsequent action by the latter, for damages occa- 
 sioned by such breach ; readiness and tender of performance being 
 averred. Thompson vs. Wood, 1 Hilt., 93. 
 
 A chattel mortgage, though entire in its terms, might, it was held, 
 stand good for part of the property included, and void as to the rest. 
 Gardner vs. McEwen, 19 N. Y., 123. See also, Van Heusen vs. Bad- 
 cliff, 17 N. Y., 580, there referred to. 
 
 An agreement for compromise, upon condition that all other creditors 
 should come in, and an actual payment under such agreement, was held, 
 on a subsequent failure to accomplish the arrangement, to be no satis- 
 faction of the debt, and that a suit might still be entertained for the 
 
OF THE COMPLAUfT. — § 147. 795 
 
 balance, the payment made only effecting a discharge ^w tanto. Dur- 
 gin vs. Ireland, 4 Kern., 322. See also Williams vs. Garrington, 1 
 Hilt., 515. 
 
 As to a binding contract for sale of goods being effected, by means of 
 a proposal and acceptance by letter, immediately on the posting of the 
 acceptance, and that a mere inquiry as to mode of remittance did not 
 avail as a qualification of such acceptance, vide Olark vs. Dales, 20 
 Barb., 42. 
 
 The mere acceptance of a parol proposition, according to its supposed 
 terms, will not, however, have that effect, where, on the face of such 
 acceptance, a reply is specifically demanded. It is not a contract, but 
 a proposition. Hough vs. Brown, 19 N. Y., 111. 
 
 Where a written contract embodies the substance of previous or col- 
 lateral negotiations, or a deed is executed in pursuance of the stipula- 
 tions of a previous contract, such contract or deed extinguishes and 
 supersedes, as a general rule, all such prior negotiations or stipulations, 
 nor can parol evidence be. admitted to contradict or explain the written 
 instrument. Menard vs. Sampson, 2 Kern., 561 ; Durgin vs. Ireland, 
 4 Kern., 322 ; Warders. Westfall, 21 Barb., 111. So also a prior agree- 
 ment is merged in one subsequent, relating to the same matter. Hart 
 vs. Lanman, 29 Barb., 410. 
 
 A contract to execute a formal instrument containing specific terms, 
 is enforceable from the first, whether such instrument be or be not 
 executed, actual performance being shown. Rowland- vs. Phalen, 1 
 Bosw., 43. 
 
 The recitals in a contract, made with express reference to another, or 
 to the provisions of a statute, constitute part of it, and the recited in- 
 strument or law is to be.taken as part of its substance. Hunt vs. The 
 City of mica, 23 Barb., 390. 
 
 An executory agreement, verbal or written, is not, however, necessa- 
 rily merged in a subsequent written contract, in execution of part only 
 of its provisions, without other evidence of an intention that the omitted 
 portion should be extinguished. And this, even in the case of a deed 
 executed under such circumstances. Wiibeoh vs. Waine, 16 N. Y., 632. 
 See also, reservation in Menard vs. Sampson, above cited. See likewise, 
 Morris vs. Whitcher, 20 E". Y., 41 ; Atwood vs. Norton, 27 Barb., 638. 
 
 To support an express parol promise, consideration must be shown. 
 Tide State Bank at New Brunswick vs. Metfler, 2 Bosw., 392. 
 
 To constitute a sufficient consideration for an express promise, whether 
 verbal or written, it is not essential that it should be pecuniary ; if 
 valuable in any shape, or as constituting any concession to the promisor, 
 it will be sufiicient to support it. "When not ipso facto apparent, it 
 otight,' however, to be always specifically alleged. See Fraser vs. Child, 
 
"796 or THE COMPLAINT. — § 147. 
 
 4 E. D. Smith, 243 ; Warfield vs. Wathlns, 30 Barb., 395 ; Jerome vs. 
 Jerome, 18 Barb., 24; Ambler vs. 6>Me«., 19 Barb., 145; Forward yb. 
 Harris, 30 Barb., 338 ; or if the promise sued on be mutual in its 
 natm-e, Billings vs. YanderheoJc, 23 Barb. J 546. 
 
 A moral obligation may also constitute sufficient consideration, 
 Houghton vs. Adams, 18 Barb., 545 ; Stearns vs. Tajppin, 5 Duer, 294. 
 A promise of this last nature, is, however, in the nature of a new 
 promise of payment, and it must be specifically alleged as such ; nor 
 does it extend to other parties interested, but only to the immediate 
 promisee. Stearns vs. Tappi/n, supra. 
 
 A subsequent promise, in affirmance of a previous liability, must be 
 shown to have been given, in full knowledge of the rights of the 
 promisor sought to be barred by it, or it may not be available. Savage 
 vs. Bevier, 12 How., 166. 
 
 The promise of a widow to pay a debt, incurred by her as a trader, 
 during her coverture, in concealment of the fact, has been held to be void, 
 and that a moral obligation does not constitute a sufficient considera- 
 tion, unless founded on some previous legal liability. Yide Q-oulding vs. 
 Hamison, 28 Barb., 438 ; Watkvns vs. Halstead, 2 Sandf , 311. Whether, 
 under the recent amendment of the law, this doctrine would now be 
 tenable,, seems questionable. 
 
 No action can, as a general rule, be maintained upon an agreement, 
 which is in its nature illegal, immoral, or contrary to public policy. 
 Under such circumstances, the courts will not interfere. So held as to a 
 contract to advertise, in a paper published upon Sunday. Smith vs. 
 Wilcox, 25 Barb., 341 ; affirming same case, 19 Barb., 581. As to an 
 agreement in the nature of a wager on a horse-race. Hall vs. Bergen, 
 19 Barb., 122. A party depositing the amount of his bet, may recover 
 it back from the stakeholder, though he may have directed its payment, 
 or even after it has actually been paid over to the winner. Buokman vs. 
 Pitcher, 1 Comst., 392 ; Storey vs. Brennan, 15 IST. Y., 524. 
 
 An action has been held unsustainable upon a wager contract for the 
 sale of pork deliverable infuturo, though valid upon its face, the inten- 
 tion of the parties being to pay only the difference in value. Cassard 
 vs. Hvnman, 14 How., 84 ; affirmed, 1 Bosw., 20Y. 
 
 A contract for lobby services is illegal, and contrary to public policy, 
 and no action can be maintained upon it. Eose vs. Truax, 21 Barb., 
 361. Nor can such a contract be sifted, and a legal portion of it sus- 
 tained. See also, as to a similar contract for the use of secret influence 
 with directors. Davison vs. Seymour, 1 Bosw., 88. And as to services 
 rendered by a custom-house clerk in order to procure a return of duties. 
 Satterlee vs. Jones, 3 Duer, 102. See, however, as to an agreement to 
 carry a claim to a pre-emption right through the office of the land com- 
 
OF THE COMPLAINT. § 147. ' 797 
 
 missioners, and to procure tlie necessary evidence, in consideration of a 
 conveyance of one-half of the land, when obtained, which was held to be 
 good, and that it could not be impeached for champerty. Sedgwicle vs. 
 Stanton, 4 Kern., 289 ; affirming same case, 18 Barb., 473. 
 
 A bank, discounting paper in violation of a statute, cannot recover 
 upon it. The court will leave the parties to such a contract where it 
 finds them, and will withhold its aid from both. Seneca County Bank 
 vs. Lamb, 26 Barb., 595. 
 
 The repeal of a statute, invalidating a transaction, on grounds of 
 public policy, takes away the defence of illegality, even on a contract 
 made before its repeal. So held as to a stock-jobbing agreement, sued 
 on after the repeal of the provisions of the Revised Statutes on the sub- 
 ject, by chapter 134 of 1858, page 251. Washlurn vs. Franklin, 35 
 Barb., 599 ; 13 Abb., 140 ; reversing same case, 11 Abb., 93. 
 
 Prior to that repeal, neither party could sue another upon or in respect 
 of matter arising out of such a contract. Staples vs. Gould, 5 Seld., 520 ; 
 affirming saTne case, 6 Sandf., 411. 
 
 ISTor will the court interfere on behalf of either party to an executory 
 transaction, fraudulent or immoral in its nature, or of the assignee of 
 such a party, in any manner or for any purpose. Westfall vs. Jones, 23 
 Barb., 9 ; Morgan^?,. Chamberlain, 26 Barb., 163. 
 
 A contract made in assumed exercise of official duties, but beyond 
 the authority of the official contracting, is void and incapable of enforce- 
 ment. Overseers of Norwich vs. Overseers of PharsaUa, 15 N. T., 341 ; 
 Brady vs. Mayor of New York, 18 How., 343 (Court of Appeals) ; 
 affirming same case, 16 How., 432 ; 7 Abb., 234. 
 
 Where, however, both parties to an illegal contract are not m pa/ri 
 delicto, the courts may sometimes interfere in behalf of the less culpable. 
 Usury is a case of this description, for which express provision is indeed 
 made by statute, nor will a party seeking relief in this respect be de- 
 prived of his remedy, because the transaction sought to have been im- 
 peached may also have been in violation of the banking laws. Soher- 
 merhorn vs. Talman, A Kern., 93. See also, as to extending relief to 
 the less guilty party to a transaction prohibited by statute, but not 
 malum in se, Tracy vs. Tallmage, 4 Kern., 162. Nor will mere 
 knowledge on the part of a vendor that goods sold by him are intended 
 to be used for an illegal purpose, falling short of an actual crime, or debar 
 his recovery of the price, unless he himself does some act on his own 
 part, tending to make him a participant in such purpose, and which 
 forms a part of the contract of sale. In this latter case he cannot 
 recover. 
 
 A contract in mere breach of a prohibitory law, but of which the con- 
 sideration is morally good, may be enforced, after the repeal of the pro- 
 
798 or THE COMPLAINT. — § 147. 
 
 hihition, though made during its continuance. Central Bcmk vs. Em- 
 pire, Stone Dressing Corrvpa/iiy, 26 Barb., 23. See also, WasJiburn vs. 
 Franldin, above cited. See likev^ise, Leavitt vs. Curtis, 15 N. T., 9, 
 establishing the converse of the proposition, as to a subsequent statute, 
 rendering unavailable a defence sustainable at the time it was pleaded, 
 and even established by proof, on a trial, before the passage of such 
 statute. 
 
 Although, in the case of an illegal executory agreement, the courts will 
 refuse any interference, they will not relieve against an executed con- 
 tract of this nature. Oiles vs. Halbert, 2 Kern., 32. See, however, 
 Seneca County Bamk vs. Lamh, 26 Barb., 595, above cited. 
 
 As to the right of a party who has prosecuted a general claim for the 
 benefit of himself and others, to recover a compensation stipulated to be 
 given by the latter in the event of success, and as to the measure of such 
 compensation, when recoverable, see Ogden vs. Des Arts, 4 Duer, 275. 
 
 (5.) Bonds. 
 
 In framing a complaint on an ordinary money bond, in an action by 
 obligee, against obligor, resort may be advantageously had to the fa- 
 cilities aiforded by section 162. If that section be strictly followed, the 
 complaint will be sufficient. Lafayette Insurance Company of Brooh- 
 lyn vs. Rogers, 30 Barb., 491. , 
 
 A resort to this section, is not however in any case obligatory, and 
 where the condition of the bond is special, a special and distinct aver' 
 ment of the breach of that condition should be made. Mayor of New 
 Ywh vs. Doody, 4 Abb., 127. See also Dimon vs. Bunn, 15 IST. Y., 498. 
 
 In an action upon a penal bond, the terms of the condition, and the 
 breach sued upon, must in like manner, be distinctly averred, and such 
 averment will not affect the plaintiff's right to a judgment in form for 
 the penalty. In such an . action, an equitable defence is however ad- 
 missible, and the court may protect the obligee's rights by controlling 
 the execution. Western Bank vs. Sherwood, 29 Barb., 383. 
 
 All or any of the parties to an instrument of -this nature, may be 
 ' included in the same action, under the power given by section 120. 
 Bravnard vs. Jones, 11 How., 569 ; De Bidder vs. Schermerhorn, 10 
 Barb., 638. 
 
 In an action against sureties, upon breach of a mere contract of in- 
 demnity, the complaint must aver actual damage. Not so however, 
 upon a contract to indemnify from legal liability, which gives a right of 
 action immediately upon the commencement of a suit upon that liability. 
 McGee vs. Roen, 4 Abb., 8. See also Oilhert vs. Wim,an, 1 Comst., 550, 
 there referred to ; as to the liability of indemnitors against the non-pay- 
 ment of negotiable paper, see Ba^con vs. HichoTc, 21 How., 440. 
 
OF THE COMPLAINT. — § 147. T99 
 
 In an action upon the bond of a railroad company, issued prior to the 
 statute of 1850, a general averment of the purpose for which it was 
 issued, was held sufficient. But, in an action on a bond issued since 
 that statute, it would seem that an averment of compliance with its 
 terms will be essential. Miller vs. Wew York and Erie Bail/road Com- 
 pany, 8 Abb., 431. 
 
 In suing upon a lost bond, no averment of such loss will be either 
 necessary or appropriate. Swpervisors of Livingston vs. White^ 30 Barb., 
 72. The former doctrine of profert and oyer has no place under the 
 provisions of the Code. 
 
 A bond without seal has the effect of a promissory note, and may be 
 sued upon as such. Woodwa/rd vs. Genet, 2 Hilt., 526. 
 
 A bond, given in connection with a mortgage, may be enforced sepa- 
 rately, either against the obligor or his heirs, nor is the holder under 
 any obligation to exhaust his remedy against the bond in the first in- 
 stance. Hoos&oelt vs. Carpenter, 28 Barb., 426. 
 
 Money payable under an instrument, which omits to make any men- 
 tion of interest, or to specify any date, draws interest from its date. 
 Purdy vs. Philips, 1 Kern., 406 ; affirming same case, 1 Buer, 369. 
 
 "Where a specific sum has been fixed, by the parties to a contract, by 
 way of liquidated damages, in respect of an indefinite liability for 
 breach of stipulations, the provision will be enforced by the court, 
 unless the amount be grossly disproportionate. Cotheal vs. Talmage, 
 5 Seld., 551. See also Dunlop vs. Gregory, 6 Seld., 241. And this, 
 even although the damages for an actual breach of parts of such an 
 agreement, may be ascertainable. Bagley vs. Peddie, 16 N. Y., 469 ; 
 reversing same case, 5 Sandf., 192. See also Clement vs. Cush, 21 
 N. T., 253 ; Pettis vs. Bloomer, 21 How., 317 ; Brincherhoff vs. Alp, 
 35 Barb., 27. 
 
 "Where, however, upon the face of the instrument sued upon, and 
 without reference to extrinsic evidence, it appears, either that a sum 
 named as liquidated damages, for breach of an entire agreement, will 
 necessarily be inadequate as to breach of some provisions, and more 
 than enough for others, or that the agreement has been partially per- 
 formed, it will be construed as a penalty. Lampman vs. Cochran, 16 
 N. Y., 275. 
 
 A security for future advances, to a specific amount, though good in 
 the first instance, will be satisfied by the making of the advances stipu- 
 lated and their subsequent repayment, and cannot stand as a continu- 
 ing security in respect of further transactions. Trusoott vs. King, 2 
 Seld., 147. 
 
 The principal on a bond for indemnity against a money payment, 
 was held liable for an amount exceeding the sum named in the condi- 
 
800 OF THE C03IPLA.rNT. § 147, 
 
 tion, wliere the excess consisted of interest, accrued after breacli com- 
 mitted. Ltjon vs. Glark, 1 E. D. Smith, 250. 
 
 In that case, it was doubted whether a surety was liable beyond the 
 penalty, even upon a money bond. In Bramard vs. Jones, however, 
 18 ]Sr. Y., 35, it is laid down, that a surety is also liable for such an 
 excess, under the same circumstances. The penalty is the limit of the 
 obligee's liability in respect of the original breach, but, from the time 
 of that breach, he is in default, and liable for subsequent interest, the 
 same as in any other case. 
 
 But, on a strictly penal bond, the recovery against a surety will be 
 confined to the penalty, and cannot exceed it. JRaynor vs. Clark, 7 
 Barb., 581 ; 3 C. E., 230. 
 
 • ' The responsibility of a surety will be strictly confined to the terms 
 of the bond itself. A surety for an officer, whose term of office is one 
 year, cannot therefore be held for a default occurring after its expira- 
 tion, though the principal be continued in office by a reappointment, 
 without fresh security being required. Kingston Mutual Insuram^e 
 Convpany vs. Glark, 33 Barb., 196. 
 
 And sureties for the payment of a sum, on completion of work, to be 
 done according to a specific contract, will be discharged by a subse- 
 quent variation of that contract, without their assent. Giles vs. Groshy, 
 5 Bosw., 389. 
 
 The liability of the obligees for the penalty of a bond, for the appear- 
 ance of a person, charged in a case of bastardy, is complete on default 
 made by their principal to appear and continue in attendance, and, 
 once incurred, it will not be discharged by his subsequent return, after 
 order of filiation made. People vs. Jayne, 27 Barb., 58. See also, as 
 to the duty of the principal, under an insolvency bond, to comply 
 strictly with all the provisions of the statute, and the liability of the 
 sureties in case of his omission, GoUb vs. Hm-mon, 23 N. Y., 148 ; 
 affirming same ease, 29 Barb., 472. 
 
 A bond for maintenance in the house of the obligor, is only enforce- 
 able according to its terms, and the obligee, seeking another home, 
 without sufficient cause shown, cannot recover. Hawley vs. MoHon 
 23 Barb., 255. ' 
 
 A bond given to a foreign state, for the benefit of third parties, 
 under the provisions of a statute, cannot be enforced, unless the statute 
 has been strictly pursued. See Commonwealth of Kentucky vs Bass- 
 ford, 1 E. D. Smith, 218. 
 
 In case of the death of a sherifi", a bond given by an imprisoned 
 debtor for the jail liberties, must be assigned within the statutory 
 period of ten days. If omitted, the assignee's right of recovery upon it, 
 will be forfeited. Eidgway vs. Barna/rd, 28 Barb., 613. 
 
OF THE COMPLAINT. — § 147. 801 
 
 A deputy's bond to the sheriff, conditioned for faithful performance 
 of his duty, and for general indemnity, is an agreement to indemnify 
 against legal liability. If the deputy has notice of an action against 
 the sheriff, in respect of his default, and an opportunity to defend, his 
 surety, though not notiiied, will be liable for the amount of the judg- 
 ment. Westervelt vs. Smith, 2 Duer, 449. When, however, the condition 
 of such a bond merely ran that the deputy should so demean himself 
 that the sheriff should not suffer damage or molestation by reason of 
 his acts, or liability by or tlirough him, it was held not to fall within 
 the above rule, and that actual damage must be shown by the latter. 
 Oilbert vs. Wiman, 1 Comst., 550. 
 
 As to the sheriff's power to require an indemnity bond, before seizing 
 goods claimed by a 'third party, and as to his right of recovery thereon 
 for the costs of a successful proceeding, see Ckcmiherlain vs. JBeller, 18 
 N. Y., 115. And a bond so given to him is not invalidated by the fact 
 that it was given after levy and sale. Westervelt vs. Frost, 1 Abb., 74. 
 As to the right of the sureties on the ofScial bond of the sheriff", to be 
 subrogated to the benefit of an indemnity so taken, vide People vs. 
 Schuyler, 4 Comst., 173. • 
 
 A surety on such a bond is liable as a trespasser, to the party whose 
 goods are taken, without evidence of any other interference on .his part. 
 Herring vs. Hoppock, 3 Duer, 20 ; 12 L. O., 167. 
 
 The sureties of the sheriff himself are liable o'n his official bond, for 
 his own illegal acts, or for the misconduct of his deputies. People vs. 
 Schuyler, 4 Comst., 173. See similar liability of the sureties on a consta- 
 ble's official bond, Mayor of New Yorh vs. Doody, 4 Abb., 127 ; The 
 Same vs. Brett, 2 Hilt., 560 ; Carpenter vs. Doody, 1 Hilt., 465 ; Broum, 
 vs. Jones, 1 Hilt., 204 ; 3 Abb., 80. But see the last two cases, as to the bare 
 neglect to return process within the required time, not being a default, ren- 
 dering a constable positively liable for the amount of the judgment, as re- 
 gards the city and county of New York, though, as to all other parts of the 
 state, the provisions of the Revised Statutes to that effect are still in force. 
 
 A bond of the latter nature can only be prosecuted against the sure- 
 ties of a con&table of the city of New York, after judgment rendered 
 against the latter, and leave of the Court of Common Pleas first obtained. 
 Dams vs. Kruger, 4 E. D. Smith, 350. See, however, as to the latter 
 objection, and the necessity of its being taken by motion, and not being 
 deferred till the trial. Mayor of New Torh vs. Brett, 2 Hilt., 560. 
 
 As to the necessity of a suit upon an official bond being brought in 
 
 the name of the actual obligee, as trustee of an express trust for the 
 
 party damnified, see Mayor of New Yorlc vs. Doody ; and The Samte 
 
 vs. Brett, above cited ; also People vs. Norton, 5 Seld., 176. 
 
 As to the liability upon a canal contractor's bond to the state,. 
 
 Vol. I.— 51 
 
802 or THE COMPLAINT. — § 147. 
 
 extending only to the payment of laborers employed by such con- 
 tractor, and not to that of subcontractors or jobbers, or of laborers 
 employed by them, see Sw^ft vs. Kingsley, 24 Barb., 541 ; McCVashey 
 vs. OromweU, 1 Kern., 593. 
 
 The sureties of a county treasurer remain generally liable to the 
 supervisors, on his oflBcial bond, for any defalcation, notwithstanding 
 his imprisonment, at the suit of the state, so far as the state tax is con- 
 cerned. Supervisors of Li/vvngston vs. White, 30 Barb., 72. 
 
 Nor does the collateral remedy, by warrant, against the property of a 
 town or village collector, affect the right to maintain an action against 
 his sureties, whose liability attaches immediately on his default. JLoo- 
 ney vs. Hughes, 30 Barb., 605 ; Village of Warren vs. Philips, 30 
 Barb., 646. 
 
 An administration bond is not a mere bond of indemnity, and a 
 breach of duty on the part of the administrator, gives an immediate 
 right of action against the sureties. Baggott vs. Boulger, 2 Duer, 160. 
 And such an action is a personal action, and lies therefore, within the 
 jurisdiction of a justice's court. G'Neil vs. Martin, 1 E. D. Smith, 
 404. See, however, case next cited. SChe complaint on such a bond 
 must aver unconditionally that the surrogate taking it had jurisdiction. 
 Mahoney vs. GunteT, 10 Abb., 431. 
 
 As to when it is or is not necessary that an action of this description 
 should be brought in the name of the people, or in that of the party 
 damnified, see heretofore, under the head of Parties, and Baggott vs. 
 Boulger, 2 Duer, 160 ; and People vs. Laws, 4 Abb., 292 ; affirming 
 same case, 3 Abb., 450, there cited. 
 
 As to the responsibility of sureties for an administrator ad colligen- 
 dum,, extending to moneys collected by him, as agent, before his appoint- 
 ment, see Gottsberger vs. Smith, 5 Duer, 566 ; affirmed, 19 N. Y., 150. 
 See also, as to those for a general administrator. People vs. Hasoall, 22 
 K Y., 188. 
 
 As to the measure of liability, and also the nature of evidence admis- 
 sible against a surety, in an action brought upon the official bond of a 
 general guardian, see Clark vs. Montgomery, 23 Barb., 464. 
 
 A surety for the faithful discharge of his principal's duty to an 
 employer, will be held generally responsible for all violations of that 
 duty, though in matters not pertinent to the immediate scope of his 
 employment. Rochester City Bank vs. Elwood, 21 IS". Y., 88. 
 
 As to the measure of liability of the assignor of a mortgage, and his 
 surety, covenanting to be answerable to the assignee, for any defi- 
 ciency on a future foreclosure and sale, see Ooldsrmth vs. Brown 35 
 Barb., 484. ' 
 
OF THE COMPLAmT. — § 14T. 803 
 
 (o.) Recognizances. 
 
 By chapter 301 of 1855, p. 305, the provisions of the Code are 
 expressly extended to proceedings upon forfeited recognizances. As to 
 the entry of judgment upon an instrument of this nature, and the dis- 
 cretion vested in the court, with respect to its remission or discharge, 
 see People vs. Petry, 2 Hilt., 523. 
 
 {d.) Undertakings. 
 
 The next subject that presents itself for consideration is the liability 
 of the obligees, in undertakings taken pursuant to the provisions of the 
 Code itself, or of any other statute, and the averments necessary to 
 establish that liability. 
 
 With reference to actions of this description, in general, it may be 
 remarked, that it is not essential that the complaint should contain an 
 averment, in direct terras, that the instrument sued upon was taken 
 pursuant to the statute immediately in question. It is enough, if that 
 instrument, as set forth, is in accordance with its provisions. Shaw vs. 
 ToUas, 3 Comst., 188. 
 
 Nor is any averment of consideration necessary, though the instru- 
 ment be, as usually the case, without seal. When given in pursuance 
 of a statute requirement, in a form prescribed thereby, and in a case 
 within the statute, these facts constitute of themselves sufficient consid- 
 eration to support it. And, when the instrument is set forth in the 
 complaint, and in form purports to be the undertaking required by the 
 statute, it is sufficient to aver that it was taken in an action, without 
 describing that action, or making specific allegations of compliance 
 with the above requisites. The recitals in the instrument itself will 
 suffice in lieu of such averments. Slaok vs. Heath, 4 E. D. Smith, 95 ; 
 1 Abb., 331. See also Loomis vs. Brown, 16 Barb., 325 ; Seacord vs. 
 Morgan, 17 How., 394 ; Gibbons vs. Berhard, 3 Bosw., 635 ; Thompson 
 vs. Blanchard, 3 Oomst., 335. But, in a case not provided for by stat- 
 ute, consideration must be expressed upon the face of the instrument, or 
 it will be void. Robert vs. Ponnell, 10 Abb., 454. 
 
 The fact that a statutory undertaking is taken in the form of a penal 
 bond, or vice versa, will not affect the validity of the instrament so 
 taken, provided, in all other respects, the statute under which it is 
 taken be duly complied with. See above, section 69, last subdivision, 
 and cases there cited. 
 
 As to the extent to which mere formal irregularities may, after trial, 
 be disregarded, in order to support an instrument of this description, 
 sought to be impeached upon appeal, vide Teall vs. Yam, Wych, 10 
 Barb., 376. 
 
804 OF THE COMPLAESTT. — § 147. 
 
 And the sureties, in such an instrument, will be estopped from con- 
 tradicting its recitals, in order to defeat it. See Colemcm vs. Bean, 14 
 Abb., 38. 
 
 The better form of averment, in actions upon instruments of this class, 
 would seem to be as follows : 
 
 Allege, first, the pendency of the action in which, and the purposes 
 for which, the security was given. 
 
 Aver the making and delivery of the instrument itself, and its terms, 
 either by way of copy, or distinct and sufficient allegation. 
 
 Aver the breach committed or occurred. 
 
 N. B. — In framing all these averments, the statute should be consult- 
 ed, and the closer its wording and requirements be followed, the less 
 likelihood will there be of the pleading being impeachable. 
 
 And the plaintiff must be connected with the instrument sued upon 
 by him, as the aggrieved party thereon, by all necessary averments. 
 See Eaynor vs. Cla/rh, 1 Barb., 581 ; 3 C. E., 230. 
 
 It now remains to notice some decisions, bearing upon the liability 
 or form of averment in specific cases. 
 
 (e.) On AppeAjl. 
 
 In actions of this nature, on undertakings given on appeal from a 
 judgment to the general term, the recent amendment in section 348 
 (1862), must be borne in mind. Ten days' notice of the order or judg- 
 ment of affirmance, must be given to the adverse party, before com- 
 mencing the action, and, if an ulterior appeal be taken to the court of 
 appeals, and full secin-ity given, so as to stay execution, such an action 
 cannot then be commenced or a recovery had, until after the final 
 determination of such appeal. 
 
 This change has not yet been made the subject of judicial interpreta- 
 tion. Till then, it may be prudent, in an action of this nature, to insert 
 a specific averment of notice given, or final determination had, as the 
 case may require. 
 
 Subject to the above qualifications, the right of action of the respond- 
 ent on an undertaking of this nature, becomes absolute, on affirmance 
 of the judgment appealed from, and nothing short of payment will dis- 
 charge it. The issuing of execution against the principal debtor is not a 
 prerequisite, nor will the fact that he has sufficient property, or even an 
 actual levy on that property, avail as a defence. Nor, before the amend- 
 ment, would the giving of security on an ulterior appeal so avail, though 
 it might possibly form ground for a stay of proceedings. See Burrall 
 vs. Vanderbilt, 1 Bosw., 63T ; 6 Abb., YO ; Seebner vs. Townsend, 8 
 Abb., 234. 
 
 The liability of the sureties is fixed immediately on affirmance, and 
 
OF THE COMPLAnSTT. — § 147. 805 
 
 default in payment by the judgment-debtor, and the plaintiff is not 
 bound to exhaust his other remedies. Wood vs. Derriohson, 1 Hilt., 
 410 ; Hubner vs. Townsend, supra. Nor is any preliminary applica- 
 tion for leave to sue, necessary for the maintenance of the action. New 
 Yorli Central Insurcmoe Company vs. Safford, 10 How., 344. 
 
 And, where the undertaking is on behalf of several defendants, affirm- 
 ance as to any one of them is sufficient to charge the sureties. A rever- 
 sal as to other defendants, or an abandonment of the appeal on their 
 part, will be wholly unavailing as a defence. ISTor will the discharge 
 of the real estate of the debtor, by entry of the words " secured on 
 appeal " on the docket, pursuant to section 282, though made without 
 their consent, or notice to them, have any effect in diminishing their 
 liability. Burrall vs. Yanderhilt, supra; Seaoord vs. Morgan, 17 
 How", 394. 
 
 In order to maintain an action on such a security, on appeal to the 
 court of appeals, the mere filing of the remittitur and adjustment of 
 the costs is not sufficient. There must be an actual and formal entry 
 of judgment, before the court will take notice of it, so as to render the 
 action maintainable. Seacord vs. Morgan, svpra. 
 
 If a positive undertaking be given, on an appeal by executors, with- 
 out a special application to the court to limit the amount or nature of 
 the security, it will be regarded, on demurrer, as an admission of assets, 
 and the liability of the sureties, primarily considered, will be imme- 
 diate and absolute, though the judgment rendered, be only against the 
 assets of the testator in due course of administration. See Mills vs. 
 Thursby, 12 How., 386. It was considered, however, that, on a hear- 
 ing on the merits, a compliance with the judgment, in manner and form 
 expressed, if averred and proved, might avail to discharge the sureties 
 from their obligation. MiUs vs. Forbes, 12 How., 466. 
 
 The liability of the sureties under an undertaking, given on appeal 
 from a justice's decision, under section 356, extends, not merely to pay- 
 ment of the judgment and costs of the primary appeal to the county court, 
 but, also, to those of the ultimate appeal to the general term, in case 
 the original respondent shall finally prevail. Simth vs. Grouse, 24 
 Barb., 433. 
 
 But, under the special security provided for by section 354, as 
 amended in 1858, with reference to New York cases only, the liability 
 of the sureties is confined to costs, and does not extend to the principal 
 amount originally recovered. That amount does not constitute 
 "damages" within the meaning of the section, as there amended. 
 Onderdonh vs. Emmons, 2 Hilt., 504 ; 9 Abb., 187 ; 17 How., 545. 
 
 The sureties on an appeal to the Court of Appeals, are not liable, on 
 a dismissal of that appeal for want of prosecution. Such a dismissal is 
 
806 OF THE COMPIiAINT. § 14Y. 
 
 not in law an affirmance of the judgment. Watson vs. Eusson, 1 Duer, 
 242 ; Drumnbond vs. Husson {same case), 4 Kern., 60. 
 
 As to the sufficiency of an averment of such an undertaking in 
 general terms, without detail in minute particulars of regularity, and of 
 the presumption which will exist in its favor, see Gibbons vs. Berhard, 
 3 Bosw., 635. 
 
 As to the right of a surety on a primary appeal, who has paid the 
 amount of the judgment, to recover back the amount so paid, on an 
 ultimate reversal, see Qarr vs. Martim,, 1 Hilt., 358. 
 
 (/".) On Aeeest. 
 
 As to the measure of the sheriff's liability, in a case where the 
 original sureties have failed to justify, and he has, in consequence, 
 become liable as bail, seeMetcalfys. SiryJcer, 31 Barb., 62; 10 Abb., 12. 
 
 As to the right of an attorney to bring an action against bail in the 
 name of his client, in order to enforce his lien for costs, accrued upon 
 recovery of judgment, see ShacMeton vs. Eart, 20 How., 39 ; 12 Abb., 
 325, note. 
 
 {g.) In Eeplevot. 
 
 As to the averments in a suit on a replevin bond, under the former 
 practice, and the extent to which mere formal points of regularity will 
 be held implied within the scope of a general averment, see Shaw vs. 
 Tobias, 3 Comst., 188. 
 
 The liability of the obligors, on an undertaking, given by a defend- 
 ant, seeking a return of the property under section 211, is immediate 
 and absolute, on the render of judgment in favor of the plaintiff, nor is 
 the latter bouad to issue execution, or exhaust his remedies against the 
 defendant. No allegation need be made that the property was in fact 
 returned, nor is the plaintiff required to aver, or to prove the regularity 
 of the proceedings in the action. Slaoh vs. Heath, 4 E. D. Smith, 95 ; 
 1 Abb., 331. 
 
 In Morange vs. Mvdge, 6 Abb., 243, a complaint, containing an aver- 
 ment of the execution of the undertaking, giving a copy, alleging the 
 recovery of judgment for costs, the issuing and return of execution, 
 and an assignment of the undertaking to the plaintiff, was held sufficient 
 on an action on a plaintiff's security, without further statements in detail. 
 It was also decided that the liability of the sureties on such an instru- 
 ment was several, and that a separate action might be maintained 
 against either ; and, likewise, that an assignment of the judgment itself 
 was not necessary, to enable the plaintiff to sue as assignee. 
 
 On the other hand, an assignment of a judgment, and of all moneys 
 to be recovered under it, has been held sufficient to pass the right to an 
 
OF THE COMPLAIHT. — § 147. 807 
 
 undertaking of this description, and to enable assignees, holders of the 
 document itself, to maintain an action in their own names. Bowdoiii 
 vs. OoUman, 6 Daer, 182 ; 3 Abb., 431. But, if such an undertaking 
 be given to several promisees, all must be represented, or the objection, 
 if taken in due time, will be fatal. 
 
 A sheriff is bound to prosecute an undertaking given to him, on 
 taking property out of his possession by way of replevin, on breach of 
 the condition, nor can he claim an indemnity from the execution plain- 
 tiff. Swezey vs. Lott, 21 N. Y., 481. 
 
 See long discussion, as to the liability of the plaintiff's sureties, on 
 property being successfully claimed by a third person, not a party to 
 the action, in HoVyrooTc vs. Yose, 6 Bosw., T6. 
 
 (A.) In Injunotion. 
 
 The questions which have arisen as to the nature and extent of the 
 liability of sureties on an undertaking of this description, have been 
 already entered upon, the decisions in point referred to, and the considera- 
 tion of this branch of the subject anticipated, in section 106, chapter III., 
 book v., of the present work. See that section and the cases there cited. 
 
 In LoomAs vs. Urown, 16 Barb., 325, a general form of allegation, 
 averring the granting of an injunction in a suit, by a justice of the 
 court ; service on the defendants ; the execution of the undertaking sued 
 upon ; that issues were joined in that suit, and that a judgment had 
 been rendered therein, was held sufficient, on demurrer, in an action on 
 that undertaking, without entering into any fuller detail. 
 
 An undertaking of this nature, in the form of a penal bond, is good. 
 If a party to such an undertaking being, in fact, an official trustee, sign 
 it in that character only, he will not be personally bound. Efiscopal 
 Churoh of St. Peter vs. Varian., 28 Barb., 644. 
 
 If an injunction be dissolved, and the suit be subsequently discon- 
 tinued, the liability of the sureties attaches immediately on discontin- 
 uance. The order becomes, thereupon, a final decision, that the plain- 
 tiff" was not entitled to the injunction. Oa/rf enter vs. Wright, 4 Bosw., 655. 
 
 (*.) On Attachment. 
 
 In an action upon an undertaking of this nature, the only averment 
 necessary in relation to the regularity of the attachment, will be, that 
 it was issued in a then pending action. If in a court of limited juris- 
 diction, an allegation of jurisdiction in that court must in such case be 
 added, but not otherwise. Orwyt vs. Phillips, 16 How., 120 ; 7 Abb., 
 206. 
 
 Where work had been done upon a vessel, by two connected firms, at 
 different periods, and a maritime attachment had been levied in respect 
 
808 OF THE COMPLATN-T. § 14Y. 
 
 of a separate portion of such work, it was held that the accounts, even 
 assuming they would hare formed a single demand, were severed, and 
 that a separate action was maintainable in respect of part of such work, 
 on a bond given for discharge of such attachment, notwithstanding the 
 obtaining and satisfaction of judgment in respect of the other portion. 
 8ecor vs. /Stur^is, 16 IST. T., 548. 
 
 But a security of this nature is not available to a party, himself a part 
 owner of the vessel. He cannot acquire the necessary lien. Atkins vs. 
 Stanton, 6 Bosw., 648. 
 
 As to the averments proper to be made, in an action on a bond of this 
 description, and as to the necessity of distinctly alleging all facts neces- 
 sary to confer jurisdiction, and to show a duty on the part of the officer 
 applied to, to grant a discharge of the warrant, and also as to the extent 
 to which, when such averment is distinctly made, the further regularity 
 of the proceedings may be implied, see Clark vs. Thorp, 2 Bosw., 
 680. The bond sued upon in that case, was, however, sustained upon 
 another ground, viz. : that the instrument constituted of itself a valid 
 security, the seal importing consideration, and was, as such, enforcea- 
 ble, notwithstanding that a strict compliance with the statute was not 
 shown. 
 
 As to the validity of the proceedings on an attachment issued under 
 the Revised Statutes, and the extent of the liability of the sureties upon 
 a bond of this nature, see Renard vs. Hargous, 2 Duer, 540 ; affirmed, 
 3 Kem., 259. 
 
 As to the extent of liability of the sureties on a bond, given on attach- 
 ment for contempt of court, see Davis vs. Sturtevant, 4 Duer, 148. 
 
 As to the necessity of the plaintiff, on an attachment bond, showing 
 by specific averment, his connection with the attachment proceedings, 
 and how he has been aggrieved by the acts of the defendant, see Bay- 
 ner vs. Glarlc, 1 Barb., 581 ; 3 C. R, 230. 
 
 Sureties on a bond given for discharge of an attachment, are not ex- 
 onerated from their liability, by a failure on the part of their principal 
 to furnish further security when ordered. Their liability still continues. 
 Jewett vs. Crane, 35 Barb., 208 ; 13 Abb., 97. See same case, as to the 
 power of allowing sureties to defend in place of their principal, on a 
 suitable application 
 
 The following decisions relate to bonds given on attachments, issued 
 by a justice's court : 
 
 Such a bond, once given, creates a subsisting liability, though after- 
 wards destroyed on a mistaken supposition of its being unnecessary, 
 and the liability upon it will include the costs of a certiorari, upon which 
 an originally favorable judgment has been reversed. Bennett vs. 
 Brown, 20 K T., 99. 
 
OF THE COMPLAINT. — § 147. 809 
 
 A bond to obtain the discharge of such an attachment, must be given 
 in strict accordance witli the statute, and if, instead of providing, for 
 the appearance of the defendant, and for the production of the attached 
 property to answer an execution, it provides instead, for payment of any 
 judgment to be recovered, it will be void, as unauthorized by law. 
 Morange vs. Edwards, 1 E. D. Smith, 414. 
 
 In like manner, such a bond niust be given for double the value of the 
 property attached, whatever that value may be. If only given for 
 double the amount of the plaintiff's claim, it will be insufficient. 
 Kamena vs. Warner, 6 Abb., 193, 196 ; 6 Duer, 698 ; reversing same 
 case, 15 How., 5 ; 6 Abb., 193. 
 
 In an action upon a bond, given for the appearance of a judgment 
 debtor, under attachment in supplementary proceedings, a general 
 averment of the recovery of judgment, and consequent issuing of attach- 
 ment on supplementary proceedings had, was held sufficient, without 
 going on to specify the issuing and return of execution, or the order for 
 such attachment, in Kelly vs. McCarmich, 2 E. D. Smith, 503. It was 
 also held, that in such an action, the defendant could not go behind the 
 instrument, and impeach the attachment, in respect of' any matter of 
 irregularity, merely tending to render it voidable, but not absolutely 
 void. Likewise, that though the instrument, being without seal, might 
 be irregular, as respected the sheriff, under the statute as to contempts, 
 the objection was not available, as against the party for whose benefit 
 it was taken, suing as assignee. Being taken in good faith, it is not 
 an instrument taken colore officii, within the meaning of the statute. 
 See also, Winter vs. Kinney, 1 Comst., 365. 
 
 Actions upon other Specialties. 
 
 (J. ) Awards. 
 
 "Where the submission to arbitration, merely provided that judgment 
 upon the award might be entered in the county court, it was" held that 
 an action might be brought upon such award immediately, without 
 entering any such judgment, or waiting for a term of the court to be held. 
 Bv/mside vs. Whitney, 21 N. Y., 148 ; affirming same case, 24 Barb., 632. 
 
 The authority of the arbitrator or umpire must however be strictly 
 pursued, or no action will lie. If exceeded, even unconsciously, or 
 through mistake, the award will be equally void. B&rrowe vs. Mil- 
 lan'k,5Khh.,2^; 6 Duer, 680. 
 
 And, even where a stipulated time for extension had been transcended, 
 and counsel heard for one party after its expiration, it was held that the 
 award, however just in principle, must be set aside. Cole vs. Bhmt, 2 
 Bosw., 116. 
 
810 OF THE COMPLAINT. — § 147. 
 
 "Where, too, tlie award prescribes the execution and delivery of releases 
 on payment of the amount awarded, the complaint upon it must aver, 
 and the plaintiff must prove, delivery or tender of such a release, by the 
 party suing, in addition to demand of payment and refusal, or it will be 
 insufficient. Same case. 
 
 (A;.) Special Agreements. 
 
 An action was held maintainable for a specific sum of money, prom- 
 ised to be paid by the beneficiary under a will, to next of kin of the 
 testator, in consideration of their admitting service of a citation, and 
 promising not to contest its validity. Palmer vs. North, 35 Barb., 282. 
 
 Where the price of property was, by agreement, to be fixed by valua- 
 tion, and such valuation was perfected in form, an action was sustained 
 for the amount so fixed. Saffys. Blossom, 5 Bosw., 559. 
 
 (Z.) Judgment. 
 
 In an action upon an assigned judgment, proof of demand of pay- 
 ment by the plaintiff, as assignee, is not necessary. Moss vs. Shannon, 
 1 Hilt., 1Y5. 
 
 As to the right of an executor or administrator, to sue upon final 
 judgment, where the plaintiff dies before the issuing of execution, see 
 Ireland vs. Litchfield, 22 How., 178. 
 
 A complaint iipon the judgment of a foreign court, of inferior jurisdic- 
 tion, must state facts, showing that such court had jurisdiction, both of 
 the person and of the subject-matter, or it will be demurrable. Mc- 
 Laughlvn-YB. Nichols, 13 Abb., 244. 
 
 ijn) Policies of Insueance. 
 
 Analogous to the foregoing, are actions upon a policy of insurance. 
 
 The precise form of complaint in these cases has not been made the 
 subject of much controversy. A few cases, bearing upon this specific 
 point, will, however, be noticed below, and the appropriate mode of 
 averment may be easily deduced from general principles. 
 
 The making and dehvery of the policy, and payment of the premium, 
 should, in the first place, be averred. 
 
 The substance of the policy itself should then be clearly and succinctly 
 stated ; and, if the question be one in which the proper construction of 
 the general terms of the instrument, or of any particular clauses in it, 
 are likely to be drawn into question, a copy of the whole document, or 
 of the particular clauses in it, in respect of which the controversy arises, 
 should be given ; or, which will often be found a very convenient mode 
 of averment, a copy of the policy may be annexed to the complaint, and 
 referred to as forming part of it, the substance of it being shortly 
 
or THE COMPLAINT. — § 147. 811 
 
 averred in the body. If the policy have been renewed, payment of the 
 renewal premiums should be averred ; and, in all cases, a general aver- 
 ment that the plaintiff has performed all conditions and agreements on 
 his part, is usual and appropriate. If the plaintiff claims as assignee, 
 assignment to him must be regularly alleged, so as to tender an issue on 
 his title. 
 
 In marine cases, the facts of the voyage insured upon being in actual 
 progress at the time of the loss, and, where the policy is an open policy, 
 those necessary to show that the goods claimed upon were covered by 
 the risk, must appear. If abandonment has been made, that abandon- 
 ment should be alleged; and all other averments necessary to show 
 the exact nature and extent of the plaintiff's claim should be inserted. 
 
 In every instance, the occurrence and nature of the loss must be 
 distinctly and clearly, though succinctly, alleged. 
 
 If it be ambiguously stated, and unless that loss be shown to have 
 accrued to the plaintiff^ in respect of the very subject-matter of the 
 insurance, the complaint will be demurrable. Rodi vs. President, c&g., 
 of Rutger' s Fire Insurance Company, 6 Bosw., 23. 
 
 The giving due notice of claim, and due proof of such loss, and of 
 the plaintiff's interest, and the date of such proof, so as to show 
 distinctly that the time allowed to the company for the payment of the 
 risk has fully elapsed, must, in the last instance, be clearly pleaded, the 
 exact wording of the provisions of the policy, or conditions, being in 
 these and all other respects strictly followed, in framing the necessary 
 averments. 
 
 In White vs. The Hudson Ri/oer Inswrance Company, 7 How., 341, 
 it was held that, though a policy of insurance must state correctly what 
 is insured, it is not necessary that the particular interest in the property, 
 or the reason why the party insures, should also be expressed. See 
 also Fowler vs. New York Indemnity Insurance Company, 23 
 Barb., 143. 
 
 This rule, however, only applies to those cases, in which the fact that 
 the plaintiff is himself entitled to the benefit of the policy, appears upon 
 the face of that document. If left in doubt by its wording, a specific 
 averment of the interest of the plaintiff and its nature, must be inserted, 
 and this, even though the policy itself provides that it shall be proof of 
 interest. Williams vs. Insv/rance Company of North America, 9 
 How., 365, 
 
 And the averment must correspond with the actual facts, in relation 
 to such interest and itg nature, or the pleading will be defective for 
 variance. Burgher vs. The Cohmibian Insurance Company of Phila- 
 delphia, 17 Barb., 274. 
 If, on the face of the policy, the insurance be payable to a third 
 
812 OF THE COMPLAINT. — § 14Y. 
 
 party, that party should either sue in his own name, or shotild, at the 
 least, be joined as co-plaintiff, or as defendant, in case of his refusal. 
 The insurer cannot sue in his own name only, unless he show by specific 
 allegation that the interest of such third party has ceased, and that he 
 is now solely entitled. Ennis vs. The Earmowy Fire' Insurance Com- 
 pany, 3 Bosw., 516. 
 
 ' It is not necessary for the plaintiff to negative on the face of his 
 complaint, the breach by him, of conditions inserted in the policy. 
 Such breach, if it have occurred, is matter of defence, to be set up in 
 the answer. Hunt vs. Hudson River Fire Insuranee Convpa/ny, 2 
 Duer, 481. 
 
 An averment, in general terms, of the right of a plaintiff, suing as 
 assignee, both as regards assignment to him and the title of his assignee, 
 will be sufficient, without stating details as to either. Fowler vs. New 
 York Indemnity Insurance Company, 23 Barb., 143. 
 
 If reformation of the policy, be part of the relief sought by the plain- 
 tiff, a hypothetical prayer to that effect must be supported by specific 
 averments, and be specifically framed, or it will be defective. Lamo- 
 reux vs. Atlantic Mutual Insurance Oormpamy, 3 Duer, 680. And the 
 reformation asked for, must be within the scope of the original agree- 
 ment of the parties. Unless this clearly appear, the court will not 
 interfere to make, what, in fact, would be a new contract. New York 
 Ice Company vs. Northwestern Insurance Compa^iy, 31 Barb., 72 ; 20 
 How., 424 ; 10 Abb., 34. 
 
 Money becomes due on a policy, on the claims being allowed, though 
 it may be payable thereafter, according to the terms, and reckoning 
 from the date of such allowance. An action may, therefore, be brought 
 at once, on the expiration of the time so fixed for payment, nor does the 
 general incorporation act of 10th of April, 1849, section 16, authorizing 
 such action, if payment be withheld more than two months after a 
 loss becomes due, operate to give any extension of credit. TItica 
 Insurance Company vs. American Mutual Insurance Company, 16 
 Barb., 171. The only effect of that statute is, to fix a time for payment, 
 where parties have omitted to make special provision. Allen vs. Hud- 
 son Ri/oer Mutual Insurance Company, 19 Barb., 442. 
 
 The following may be noticed, as some of the recent decisions in 
 relation to the question of liability in actions of this description, useful 
 to be borne in mind in framing the complaint, though, as on previous 
 occasions, it is not professed to give any thing in the nature of a com- 
 plete digest or analysis of all cases bearing upon the subject. 
 
 The written portions of a policy control those which are printed, and 
 it will be construed accordingly. Harper vs. Albany Mutual Insur 
 ance Compamy, 17 N. Y., 194 ; Leeds vs. Mechanics' Insurance Com- 
 
OF THE COMPLAINT,— § 147/ 813 
 
 pany, 4 Seld., 351 ; JBargett vs. Orient Mutual Insurance Compcmy, 
 3 Bosw., 385 ; Woodruff yb. Commercial Mutual Insurance Company, 
 2 Hilt., 122. 
 
 Conditions inserted in the policy itself, will control any statements in 
 a prospectus issued by the company, however inconsistent with that 
 prospectus in their terms. Buse vs. Mutual Benefit Life Insurance 
 Company., 23 N. Y., 516 ; reversing samie case., 26 Barb., 556. 
 
 As to the effect of payment of the premium on a life policy, after the 
 day when it was actually due, but according to the usual course of 
 dealing between the parties,^ see Buckbee vs. United States Insurance 
 and Trust Company, 18 Barb., 541. 
 
 See also, as to the tender of the premium after the regular day of 
 payment, being sufficient to hold the company to their contract, when 
 made in accordance with the terms of a special notice given to the 
 insurer. Campbell vs. .International Life Assurance Society of Lon- 
 don, 4 Bosw., 298. 
 
 An insurance of stock in trade, operates as a written license to the 
 party insured, to use and keep on hand all such articles as are necessarily 
 and ordinarily employed in the trade or manufacture carried on by 
 him, notwithstanding a prohibition of use and keeping of the same 
 articles, contained in the printed terms, which portion will be con- 
 trolled by it. Bryant vs. PougKkeepsie Mutual Insurance Company, 
 17 N. Y., 200 ; affirming same case, 21 Barb,, 154 ; Harper vs. Albany 
 Mutual Insurance Company, IT JST. Y., 194 ; Harper vs. City Insur- 
 ance Company, 1 Bosw., 520 ; affirmed, 22 IT. Y., 441. 
 
 To sustain an insurance, of whatever nature, there must be some 
 interest of the party insured, in the subject-matter of insurance, existent 
 at the time of the contract. If otherwise, the policy will be a wager 
 policy, and void under the prohibitory statute, 1 E. S., 662, sections 
 8-10. See WilUams vs. Insv/ram,ce Company of North America, 9 
 How., 365. And, if a policy do not show interest upon its face, 
 interest in the plaintiff must be specifically alleged and shown {%bid., 
 p. 373, where the rule of pleading, in relation to statutes of this 
 description, is stated and explained). See also Ruse vs. Mutual Benefit 
 Life Insv/rance Company, 23 N. Y., 516, above cited. 
 
 But the prohibition does not apply to the case of an insurance, effected 
 by a party upon his own life. Such a policy is always good, and, once valid 
 . in its inception, is enforceable in tiie hands of an assignee. St. John 
 Ts. American Mulmal Life Insurance Company, 3 Kern., 31 ; affirming 
 srnne case, 2 Duer, 419 ; 12 L. 0., 265 ; Valton vs. National Loan Fund 
 Life Assurance Society, 22 Barb., 9 ; so far approved, though reversed 
 on another ground, same case, 20 E". Y., 32. Where, however, an 
 insurance of this description is obtained formally in the name of the 
 
814 OF THE COKPLAINT. — § 147. 
 
 party assured, but, in fact for the actual benefit of tbe assignee only, 
 it seems the policy would be clearly void under the statute. See Valton 
 vs. National Loan. Fund Life Assurance Society, 20 IST. T., 33 (38), over- 
 ruling sanie case, 22 Barb., 9, above cited. 
 
 But, when the assured has any original interest at the time of making 
 the contract, it will be sufficient to sustain the policy, however slight 
 that interest may be. 
 
 An equity of redemption is sufficient for that purpose, whether the 
 subject of the mortgage be real or personal property. Allen vs. 
 Franklin Lnsurwnce Gomjpany, 9 How., 601. So also, as to an equitable 
 interest in property, contracted to be sold and paid for, but not con- 
 veyed to the assured. Chase vs. Hmnilton Mutual Insurance Com- 
 pany, 22 Barb., 527; Shotwell vs. Jefferson Inswranoe Company, 5 
 Bosw., 247. 
 
 A purchaser of goods, at a sheriff's sale, who had, subsequently, 
 taken an assignment of a policy upon them, with consent of the 
 insurers, was held entitled to recover, in Hooper vs. Hudson River 
 Fire Insurance CompoAiy, 17 N. Y., 424. 
 
 A free policy upon goods, the property of the insured, or held by 
 him in trust, covers goods in his possession as bailee, and the bailor may 
 recover against him. "Where, however, such insurance is effected by 
 him as a mere volunteer, he may modify or abandon it at his pleasure, 
 until his principal has ratified or adopted it. Stillwell vs. Staples, 19 
 ]Sr. Y., 401 ; reversing same case, 6 Duer, 63. 
 
 An equitable interest in goods will sustain a policy upon them, as, 
 where a partner in a firm insures firm property in his own name only. 
 Irving vs. Excelsior Fire Insurance Company, 1 Bosw., 507 ; Sharp 
 vs. Whipple, 1 Bosw., 557. See also Burgher vs. Columbian Insurance 
 Company of Philadelphia, 17 Barb., 274. 
 
 To sustain a policy on the life of another, it is not essential that the 
 party obtaining it should be a creditor of the person whose life is 
 insured. It is enough that, according to the ordinary course of events, 
 pecuniary loss or disadvantage will naturally and probably result to 
 him from the death of that person. Parties who had advanced money 
 to another as an outfit for California, upon agreement that they were 
 to receive a share of the profits of his employments there, were held 
 to have an insurable interest, and the sum fixed in the policy was held 
 to be, prima facie, the measure of recovery. Miller vs. Eagle Life 
 and Health Insurance Company, 2 E. D. Smith, 268 ; Hoyt vs. New 
 York Life Insurance Company, 3 Bosw., 440. 
 
 A wife has, in like manner, an insurable interest in the life of her 
 husband, and a trustee for her stands in the same position. St. John 
 vs. American Mutual Life Insurance Company, 2 Duer, 419 (429) • 
 
OF THE COMPLAINT. — § 147. 815 
 
 12 L. O., 265 ; affirmed, 3 Kern., 31. See also special statute, empowering 
 snch an insurance, chapter 187 of 1853, p. 306. 
 
 A policy assigned by way of collateral security only (the property in 
 the goods assured remaining in the mortgagor), should be sued upon by 
 the latter ; the assignee has no sufficient interest in it to enable him to 
 maintain an action. Peahody vs. Washington County Muinial Insv/r- 
 ance Company, 20 Barb., 339. 
 
 But, where the property itself is mortgaged, and the loss, if any, is 
 made payable to the mortgagee, or where, upon the face of a policy of 
 whatever nature, the loss is made payable to another party ; the latter 
 is the only person who, whilst the mortgage remains unsatisfied, or the 
 contract unchanged, is competent to recover. Ifor can the original 
 insurer assign, so as to give any right of action to his assignee. Ripley 
 vs. Astor Insurance Company, 17 How., 44:4 ; The Same vs. y£Jlm,a 
 In^urari'Ce Compamy, 29 Barb., 552 ; [same case), JEnnis vs. Ha/rmony 
 Fire Insurance Company, 3 Bosw., 516. So also, where the property 
 is insured in the name of the mortgagee, he is the proper party to recover 
 to the full extent of his debt. Kernocham vs. New York Bowery Fi/re 
 Insurance Company, 17 IS. T., 428. See also previous decision in sam,e 
 case, 5 Duer, 1. 
 
 Although, as above stated, the right of recovery passes to the mort- 
 gagee in the cases above mentioned, still it does not affect the original 
 contract between the parties, and any default or breach of condition on 
 the part of the mortgagor, as original insurer, will have the effect of 
 avoiding the policy. And this, whether the mortgagee's rights be 
 acquired, by a direction as to payment of the loss, or by way of assign- 
 ment of the policy by way of collateral security. See, as to a direction 
 to pay, Grosvenor vs. Atlantic Fire Insurance Company of BrooTdyn, 
 17 N. Y., 391 ; reversing same case, 5 Duer, 517 ; and overruling, 
 Rohert vs. Traders' Insurance Company, 9 "Wend., 404 ; 17 "Wend., 
 631 ; and Tillou vs. Kingston Mutual Insurance Company, 1 Seld., 
 405, there cited and followed : the decision in the same case, 1 Bosw., 
 469, so far as it follows the case in 5 Duer, is also necessarily over- 
 ruled. See likewise, as to a policy assigned as above, Buffalo Steam En- 
 gine Worhs vs. Sun Mutual Insurance Company, 17 N. Y., 401. This 
 case similarly overrules Allen vs. Hudson River Muinial Insurance 
 Company. 
 
 Where an insurance is made in the name of the mortgagee, it seems 
 doubtful whether, after payment of the debt secured, it is enforceable. 
 Bradford vs. Greenwich Insurance Company, 8 Abb., 261. But if, at 
 the time of loss, the amount due to the mortgagee exceed the sum 
 insured, he recovers the whole ; the mortgagor being entitled to a pro- 
 portional credit. Kemochcm vs. New Torh Bowery Fire Insurance 
 
816 OF THE COMPLAINT.— '§ 147. 
 
 Company, 5 Duer, 1 ; same case, 17 N. Y., 428. See also, as to an 
 assigned policy, under similar circumstances, Beach vs. Bowery Fire 
 Insurance Company, 8 Abb., 261, note. 
 
 Life policies are valued policies, and the wbole amount named on the 
 face is recoverable, without regard to the value of the interest of the 
 party insuring, provided sufficient interest to sustain the policy be 
 established. Vide Miller vs. Eagle Life amd Health Insurance Com,- 
 pany, 2 E. D. Smith, 268 (305) ; Hoyt vs. New TorJc Life Insurance 
 Company, 3 Bosw., 440 ; and St. John vs. American Mutual Life 
 Insurance Company, 2 Duer, 419 ; 12 L. O., 265 ; affirmed, 3 Kern., 31, 
 above cited. 
 
 A land fide assignee, for value, of a policy of this nature, may recover 
 the amount .insured, without regard to the nature of his interest, or 
 the amount of consideration paid by him. St. John vs. American 
 Mutual Life Lnsurance Compamy, supra ; Valton vs. National 
 Loan Fund Life Assurance. Company, 20 N. T., 32 ; Same case, 
 22 Barb., 9. 
 
 As to the power of a domestic incorporation to take foreign risks, and 
 as to the liability thereon, when taken, being governed by the laws of 
 the state of New York, see Western vs. Genesee Mutual Insu/ram,ce 
 Company, 2 Kern., 258 ; Huntley vs. Merrill, 32 Barb., 626. 
 
 As to the right, per contra, to recover in this state, upon a policy 
 issued by the resident agent of a foreign company, see Burns vs. Pro- 
 vincial Insurance Company, 35 Barb., 525 ; 13 Abb., 425. 
 
 Contracts for insurance with an intended mutual insurance company, 
 though lawful, and in fact necessary with a view to its organization, are 
 contingent only, until that organization is regularly effected. Williams 
 vs. Bdbcoch, 25 Barb., 109. 
 
 Such a company has power to issue policies, on payment of a fixed 
 preminm, without provision for any contingent liability of the assured. 
 Mygatt vs. National Protection Insurance Company, 21 N. Y., 52 ; 
 19 How., 61. 
 
 And, even if a policy granted by it exceed the term limited by its char- 
 ter, it may be held valid. Huntley vs. Merrill, 32 Barb., 626. 
 
 An agreement to insure, perfected by acceptance of the risk and pay- 
 ment of the premium to the agent of the company, is binding from the 
 time of such payment, and the company is responsible, even though a 
 loss occurs before the actual delivery of a policy. So held in a suit for 
 specific performance and damages. Whitaker vs. Fa/ryners' Union Insur- 
 ance Company, 29 Barb., 312 ; Chase vs. Hamilton Mutual InsuframM 
 Company, 22 Barb., 527. N. B.— The reversal of this case at 20 N. Y., 
 52, does not affect this part of the decision. So held also collaterally in 
 an action brought directly for recovery of the amount insured, without 
 
OF THE COMPLAINT. — § 147. 817 
 
 any prayer for previous delivery of the policy." EochweU vs. Hartford 
 Fire Insurance Company^ 4 Abb., 179. 
 
 The making of necessary repairs, when executed without unnecessary 
 delay, does not avail to impair the insurer's liability, even although the 
 policy contain an express condition that the premises shall not be occu- 
 pied in such a manner as to increase the risk, and the effect of the works 
 whilst in progress has that tendency. Making of repairs is not a way 
 of occupying. Townsend vs. North Western Insurance Company, 18 
 K T., 168. 
 
 Reinsurers are not liable, in a suit by the owner of the property, nor 
 has he any lien, notwithstanding the insolvency of the original insurers. 
 Their contract is not with him, bxit with them, and they alone can en- 
 force it. CarT'lngton vs. Commercial Fire and Manne Insurance Com- 
 pany of Jersey City, 1 Bosw., 152. As to the measure of liability on 
 such a contract, see New YorTc Central Insurance Company vs. Na- 
 tional Protection Insurance Company, 20 Barb., 468 (478). The judg- 
 ment in this case is, however, reversed, but upon a different point. 4 
 Kern., 85. 
 
 See likewise, generally, on the subject of reinsurance, and as to the 
 liability for premiums being governed by the actual terms of the policy, 
 without regard to any collateral verbal stipulations or custom in such 
 cases. St. Nicholas Insurance Compa/ny vs. Mercantile Mutual Insur- 
 ance Conpany, 5 Bosw., 238. 
 
 In White vs. Hudson River Insurance Compam,y, 15 How., 288, it is 
 laid down, in strong general terms, that instruments of this nature 
 should be construed liberally, alike for the interest of both parties. 
 
 Statements contained in an application for insurance, where material 
 to the risk or any portion of it, constitute a warranty ; and, if untrue, the 
 policy issued upon them will be wholly void. Smith vs. Empire Insur- 
 ance Company, 25 Barb., 497; Chaffee yb. Cattaraugus County Mutual 
 Insurance Company, 18 N. Y., 376 ; Brown vs. The Same, 18 N. Y., 
 384 ; Murdoch vs. Chenango County Mutual Insurance Company, 2 
 Comst., 210 ; Wilson vs. Herhimer Covmiy Mutual Insurance Com- 
 pany, 2 Seld., 53. 
 
 So also, any statement] or description in the policy itself, which re- 
 lates to the risk, is a warranty, and, if untrue, will have the same effect. 
 Wall vs. East River Mutual Insuromce Company, 3 Seld., 370. See 
 subsequent decision in same case, 3 Duer, 264. 
 
 Though storage of prohibited articles will be a breach of a condition, 
 a temporary or casual deposit of them within the insm-ed building, will 
 not have that effect. Hynds vs. Schenectady County Mutual Insuram/^e 
 Company, 1 Kern., 554. 
 
 Where the loss fell within an exception created by a special condition, 
 YoL. I.— 52 
 
818 OF THE COMPLAINT. § 147. 
 
 restricting the liability of the insurer, it was held that no recovery coiild 
 be had. St. John vs. American Mutual Fire and Marine Insurance 
 Oompamy, 1 Kern., 516. See, as to a case where the insurers had not 
 received aill the protection which, by the contract, it was stipulated' 
 they should have, MoComher vs. Granite Insurance Company, 15 
 KY.,495. 
 
 Conditions annexed to a policy are part of the contract, and have the 
 same effect, as if written in the body of it. Jube vs. Broohlyn Fire In- 
 sv/rance Company, 28 Barb., 412. 
 
 The use of camphene for the purpose of lighting,- without a compli- 
 ance with a special provision upon the subject, contained in the policy 
 sued upon, was held to avoid it. West/all vs. Hudson- River Fire In- 
 surance Compamy, 2 Kern., 289 ; reversing same case, 2 Duer, 490. 
 
 In Mead vs. The North Western Insurance Company, 3 Seld., 530, 
 the same conclusion was come to, and it was also held, that, if a warranty 
 is violated, whether the breach of warranty affected the risk or not, the 
 policy is avoided, and it is immaterial whether the subject of the breach 
 continues up to 'the time of loss or not. A subsequent removal of the 
 articles in question, could not, therefore, without the consent of the in- 
 surers, restore its validity. See also Murdoch vs. Chenango Country 
 Mutual Insurance Company, 2 Comst., 210 ; above referred to. See 
 likewise, as to the use of camphene or spirit-gas, in violation of a con- 
 dition, 'effecting an avoidance, Stettiner vs. Granite Insurance Compa/ny, 
 5 Duer, 594 ; though in that case, the jury found that the particular 
 article in question, i. e., burning-fluid, did not fall within the letter of 
 the condition, and their verdict on the question of fact was sustained. 
 As to the use of camphene for trade purposes, and not for lighting, not 
 constituting a violation of a condition of this description, see hereto- 
 fore, and decisions above cited. 
 
 A forfeited policy is wholly void, and cannot be revived by parol. 
 This can only be effected by a written instrument, regularly executed. 
 Spitzer vs. St. MarTch Insurance Company, 6 Duer, 6. 
 
 A clause involving a forfeiture, will, however, be strictly construed, 
 and slight evidence of waiver, will, as in other cases, be sufBcient to 
 defeat its application.. Ripley vs. ^tna Fire Insurance Company, 29 
 Barb., 552 ; Ripley vs. Astor Insurance Compam,y, lY How, 444 {same 
 case). An assessment upon a premium note of the assured, subsequent 
 to, and with knowledge of a forfeiture committed by him, was held to 
 have this effect in Viall vs. Genesee Mutual Insurance Company, 19 
 Barb., 440. So also as to the acceptance of a renewal premium, after a 
 verbal notice of matters increasing the risk insured against. liddle vs. 
 Market Fire Irmi,ram,ce Company, 4 Bosw., 179. Where too the sec- 
 retary of the defendants had, by a parol promise that the loss should 
 
OF THE COMPLAINT. — § 147. 819 
 
 be J)aid. on a specific day, induced the plaintiif to defer proceedings, it 
 was held that they could not avail themselves of the objection that his 
 suit had not been, commenced within six months (the day named being 
 the last day of that period), and that an action, subsequently com- 
 menced, was maintainable. Ames vs. Wew York Union Insurance 
 CoTnpany, 4 Kern., 253. 
 
 "Where certain- bounds were prescribed in a life policy, but license 
 was given to the assured to travel beyond them, for a limited period, 
 and, during that license, he was disabled from returning by fatal illness, 
 it was held that strict performance of the condition was excused, and 
 that his representative could recover. Baldwin vs. Mew York Life 
 Insurance and Trust CompoMy, 3 Bosw., 530. « 
 
 As to the extent of the terms, " settled limits of the United States," 
 when inserted in a condition of this nature, and that they refer to the 
 geographical boundaries of the Union, including the territories, and not 
 merely to the region of actual settlements, see Gasler vs. The Connect- 
 icut Mutual Life Insurance Comjaany, 22 IST. Y., 427. 
 
 In like manner. Suicide by the assured, whilst insane, has been held 
 not to be an act of " dying by his own hand," within a condition of 
 avoidance in that event. That condition has reference to an act of 
 criminal, not of irrational self-destrUction. Breasted vs. Farmers' Loan 
 and Trust Company, 4 Seld., 299. 
 
 Misrepresentations, of whatever description, if material to the nature 
 or extent of the, risk, will render a policy impeachable. Kernochan vs. 
 New York Bowery Fire Insurance Company, 5 Duer, 1. 
 
 As to the nature of a promissory representation, as importing an 
 engagement to perform or omit the act promised, and its effect, if 
 violated, see Bilhrough vs. Metropolis Insurance Company, 5 Duer, 587. 
 See Murdoch vs. CJienango Mutual Insurance Company, 2 Comst., 210, 
 there referred to (p. 592). 
 
 And a fraudulent representation, even if upon a fact not m-aterial to 
 the risk, may, if relied upon by the insurer, and tending to his accept- 
 ance of the proposal, have the effect of invalidating the policy. Val- 
 t<m vs. National Loan Fund Life Assurance Company, 20 IST. Y., 32 ; 
 reversing pame case, 22 Barb., 9. 
 
 The mere suppression of information not material to the risk, will not 
 necessarily invalidate the contract. Gates vs. Madison County Mutual 
 Insurance Company, 2 Comst., 43 ; Same case, 1 Seld., 469. 
 
 It is, liowever, also laid down, in the first of these decisions, that if 
 any statement made amounts to a warranty, and such warranty be fal- 
 sified, it avoids the policy, whether the fact stated be material to the 
 risk or not. 
 
 The supi)resriiou of a material fact, will invalidate the contract. Chusi 
 
820 OF THE COMPLAINT.: — § 147. 
 
 VS. Hamilton Mutual Insurance Compamy, 20 N. Y., 52 ; reversing 
 same case, 22 Barb., 527. 
 
 A statement of good health of the assured, upon renewal of a life 
 policy, was held to have relation to the declarations, as to his condition, 
 contained it the original application, and to be construed by the stan- 
 dard then existent. Peacock vs. Jfew York Life Insiorance Com- 
 pany, 20 E". Y., '293 ; affirming samie case, 1 Bosw., 338. 
 
 Where, after default in payment of the premium on a life policy, the 
 insurers accepted subsequent payment, without objection or inquiry as, 
 to the state of health of thq insured party, it was h'eld that the benefit 
 of a condition, that such policy should be void, unless satisfactory evi- 
 dence was^roduced of his health at the time of renewal, was waived, . 
 and that the loss was recoverable, though the insured was sick at the 
 time, and soon after died of the disease under which he was then la- 
 boring. BucTibee vs. Tim United States Insurance, Annuity, and Trust 
 Company, 18 Barb., 541. 
 
 An insurance company is bound by the acts of its regular officers, and 
 a parol agreement on their part, to continue an insurance upon credit, will 
 be a waiver of a general stipulation to the contrary. Trustees of 
 First Baptist Church vs. Broohlyn Fi/re Insurance Company, 19 N. 
 Y., 305 ; same case, 18 Barb., 69. A general agent, empowered to make 
 contracts, was held to possess a similar power, and that his receipt for 
 the premium, after a loss actually incurred, bound his principal. Qoit 
 vs. National Protection Insurance Company, 25 Barb., 189. See also 
 Whitdker vs. Farmers' Union Insurance Coirvpany, 29 Barb., 312. And 
 verbal statements made to such an agent, will bind the company, and 
 will prevent them from setting up the defence of misstatement or con- 
 cealment, notwithstanding they may vary from the written application 
 for insurance. Hodgkins vs. Montgomery County Mutual Insurance 
 Company, ^ 34 Barb., 213. 
 
 In Bentley vs. Columbia Insuramoe Company, 17 N. Y., 421, it was 
 held however, that the authority of an agent of this description did not 
 extend to insuring property, which had been actually consumed, before 
 the receipt by him, from the owner, of a written application for insu- 
 rance upon it. 
 
 Where an application was prepared by the authorized agent of the 
 insurers, and merely signed by the applicant, the former were held 
 bound by the statements on such application, and precluded from con- 
 troverting them. Plumb vs. Cattaraugus County Mutual Insura/nce 
 Company, 18 N. Y., 392. 
 
 But, where the agent has no such authority, his mere knowledge of 
 fact, not stated in the application, is imraaterial, in the absence of fraud, 
 or of his having prevented their statement by the applicant. Chas/s vs. 
 
OF THE COMPLAniTT. — § 147. 821 
 
 Hmn,ilton Mutual Insurance Company, 20 IST. T., 52 ; reversing same 
 case, 22 Barb., 527. . As to the non-iiability of a company, for acts of an 
 agent beyond the scope of his authority, Yide JeUinghaus ys. New 
 York Insurance Company, 6 Duer, 1. 
 
 The applicant will, on the contrary, be bound by any erroneous state- 
 ments, inserted in the application by the agent of the insurers, if he 
 employ him as his own agent to prepare it. Smith vs. Empire Insura/nce 
 Company, 25 Barb., 497. And such misstatement was, in that case, held 
 to avoid the whole insurance, though the misrepresentation only extend- 
 ed to part of the property covered by the risk. 
 
 The same person cannot act as agent for both parties in the making 
 of a policy. If he do so, the contract will be voidable by either. New 
 ITorlc Central Insurance Company vs. National Protection Insurance 
 Company, 4 Kern., 85 ; reversing samie case, 20 Barb., 468, on other 
 points, but not on the above pi'inciple. 
 
 A general agent, having power to receive and accept applications 
 until disapproved, has power to extend a policy, in a similar manner ; 
 and his action, if not disapproved, will be binding. Leeds vs. Mechanics^ 
 Insurance Company, 4 Seld., 351. 
 
 But the action of an agent, merely empowered to receive and trans- 
 mit applications, does not extend so as to bind the company to accept 
 them, and to issue a policy. Any assent by them, such as fixing the 
 rate to be paid, will, however, validate the arrangement, and payment 
 of the premium to the agent will then bind the company, without 
 regard to the fact of its not being subsequently accounted for, or the 
 disregard of any private directions to the agent, upon the subject of its 
 remittance, not known to the applicant. Chase vs. Hamilton Mutual 
 Insurance Company, 22 Barb., 527 ; the reversal at 20 N. Y., 52, does 
 not afi'ect this part of the decision. 
 
 An agentj authorized to take applications for insurance, is not empow- 
 ered to approve of a subsequent insurance in another company. His 
 authority is limited to that conferred by his appointment. Wilson vs. 
 Oenesee Mutual Insurance Company, 4 Kern., 418 ; reversing same case, 
 16 Barb., 511, and overruling Sexton vs. Montgomery County Mutual 
 Insurance Company, 9 Barb., 191. 
 
 Nor does knowledge, on the part of a broker, not regularly employed 
 by the insurers, but merely acting on both occasions for a commission, 
 avail to charge prior insurers with notice of a subsequent policy. MeUeni 
 vs. Hamilton Fire Insurance Company, 17 N. T., 609 ; affirming same 
 case, 5 Duer, 101. 
 
 As to the validity of an insurance' made or renewed on credit given for 
 the premium by the company, or its authorized officers, see Trustees 
 of First Baptist Church vs. Brooklyn Fire Insurance Company ; 
 
822 OF THE COMPLAINT. § 147. 
 
 WTiiiaker vs. Farmers' Insurance Company, and Qoii vs. National 
 Protection Insurance Company, above cited. See, likewise, as to 
 waiver of a condition, by acceptance of a premium, wlien overdue, 
 Buclibee vs. United States Insurance, Annuity, am,d Trust Company, 1% 
 Barb., 541. 
 
 Consent to the continuance of a risk in the name of original owners, 
 for the benefit of a mortgagee, after foreclosure, with no'tice of an intend- 
 ed further sale, is equivalent to issuing a new policy in the name of such 
 original mortgagee as owner, and the insurers, on the. subsequent pay- 
 ment of a loss to him, pay it in respect of his interest, and have no 
 right of subrogation to any security he may have, or may afterwards 
 take from his vendee, for unpaid purchase-money. Benjamin vs. Sara- 
 toga County Mutual Fire Insurance Company, lY N. T., 415. 
 
 As to the obligation of the insured party, to give notice of loss to the 
 insurers forthwith, and what will be a sufficient compliance with this 
 condition, see Hovey vs. American Mutual Insura/rice Company, 2 Duer, 
 554 ; Savage vs. Corn Exchange Fire and Inland Na/oigation Insv/r- 
 anoe Company, 4 Bosw., 1. 
 
 On the occm-rence of a loss, the delivery of a just and true account 
 of the loss, as part of the preliminary proof of the party insured, is a 
 cotadition precedent to the maintenance of an action. Irving vs. Ex- 
 celsior Fire Insurance Company, 1 Bosw., 50T. And if, on a condition 
 requiring him to exhibit his books and vouchers, he' decline or evade 
 its performance, he cannot recover. Juhe vs. BrookVyn Fire Insura/nce 
 Company, 28 Barb., 412. 
 
 Where, however, specific performance of a condition of this latter 
 nature is impossible, and the party has given as full and fair a state- 
 ment as, under the circumstances, he is able to furnish, a literal comph- 
 ance will be excused. Bumstead vs. The Dividend Mutual Insurance 
 Company, 2 Kern., 81. 
 
 "Where a specific mode of furnishing proofs of loss is prescribed by the 
 policy, the assured will be held to strict performance, and any variation 
 from that mode, even though in accordance with collateral stipulations, 
 as to ordinary notices and communications, will be ineffectual. Hodg- 
 Tcins vs. Montgomery County Mutual Insurance Company, 34 Barb., 213. 
 
 Objections to the proofs furnished by the insured, must be made at 
 the time, so as to give him an opportunity of supplying the defect com- 
 plained of. If omitted to be done, or if a refusal to pay be placed upon 
 another ground, it will be a waiver, and the formal objection cannot 
 afterward be taken. See last case. See also CNiel vs. Buffalo Fire 
 Insurance Company, 3 Comst., 122 ; Bodle vs. Chenango Mutual 
 Insurance Company, 2 Comst., 53 ; Bilbrough vs. Metropolis Insu- 
 rance Company, 5 Duer, 587 ; Peacock vs. New York Life Insurwnoe 
 
OF THE , COMPLAINT. — § 147. 823 
 
 Company, 1 Bosw., 338 ; affirmed, 20 N. Y., 293 ; Miller vs. Eagle lAfe 
 and Health Insurance Company, 2 E. D. Smith, 268 ; Savage vs. Corn 
 Exchange Fire and Inland Navigation Insurance Company, 4 Bosw., 1. 
 
 A condition prohibiting assignment of a policy, without leave of the 
 company, is only binding during the continuance of the risk. After 
 loss incurred, the claim becomes an ordinary chose in action, and may 
 be assigned as such, without license or consent. Mellen vs. Hamilton 
 Fire Insurance Company, 17 IST. Y., 609 ; affirming same case, 5 Duer, 
 101 ; Goit vs. National Protection Insuromce Company, 25 Barb., 189 ; 
 Courtney vs. New YorJc City Insurance Company, 28 Barb., 116. 
 These decisions seem to overrule the contrary conclusion, that the 
 courts will recognize and execute a condition of this description, as 
 come to in Dey vs. PougKkeepsie Mutual Insurance Compa/ny, 23 
 Barb., 623. 
 
 An omission to notify insurers of a subsequent insurance upon the" 
 same property, in violation of a condition to that effect, is a fatal breach, 
 and will avoid the policy ; nor will actual notice to an unauthorized 
 agent avail. Wilson vs. Oenesee Mutual Insurance Company, 4 Kern., 
 418 ; reversing same case, 16 Barb., 511 ; and overruling Sexton vs. 
 Montgomeinj County Mutual Insurance Company, 9 Barb., 191. 
 
 And the obligation to give this notice remains the same, though the 
 subsequent policy be voidable by the insurers, at their election. JBigler 
 vs. New YorTc Cent/ral Insurance Company, 20 Barb., 635 ; affirmed, 
 22 N. Y., 402. 
 
 An unexplained delay in notifying a further insurance, may have 
 the same effect as a total neglect, nor will knowledge of the fact by 
 a broker effecting both insurances, but not in the regular employ- 
 ment of the insurers, avail to waive the default. Mellen yb. Hamilton 
 Fire Insurance Company, 17 JST. Y., 609 ; affirming same case, 5 
 Dner, 101. 
 
 A mere renewal of a policy, previously mentioned, is not, however, 
 anotlier insurance, within the meaning of a condition of this nature. 
 Brown vs. Cattaraugus County Mutual Insurance Company, 18 
 K Y., 384. 
 
 Nor, if the amount of other insurances be correctly stated, will an 
 error in giving the names of the companies, in which they are effected, 
 constitute a breach of the condition. Benjamin vs. Saratoga County 
 MutxMl Fire Insurance Company, 17 IST. Y., 415. 
 
 In Mussey vs. The Atlas Insurance Company, 4 Kern., 79, it was 
 held that a condition in a marine policy, avoiding it, " if any other 
 insurance be made," exceeding a specified amount, was not broken by 
 the existence of a prior policy, containing a similar condition, the clause 
 referrino- only to subsequent insurance ; and that, under these circum- 
 
824 OF THE COMPLAINT. § 147. 
 
 stances, the second policy was good, but the first forfeited. See also, as 
 to an over-insurance being a fatal defect on a policy of this nature, even 
 in the hands of a mortgagee, Buffalo Steam Engine Works vs. Sufi 
 Mutual Insurance Company, 17 N. Y., 401. 
 
 Where the insurers received the premium, and issued a policy, upon 
 an unsigned application, filled in by their own agent, it was held that, 
 notwithstanding the terms of a condition to the contrary, they could 
 not object that other insurances were not noticed on that paper, such 
 insurances being, in fact, stated on the face of the policy itself, or that 
 an incumbrance was not disclosed, of which they had verbal notice. 
 Ames vs. JVew YorTc Union Insurance Company, 4 Kern., 253. 
 
 The description in a policy is explainable in respect of a latent 
 ambiguity ; and if, in rejecting an error or falsity in it, sufficient par- 
 ticulars remain, to designate with certainty the object intended to be 
 described, the insurance will stand good. Burr vs. Broadway Insu- 
 rance Company, 16 N. Y., 267. 
 
 A policy on a " steam saw-mill" was held to cover not merely the 
 building itself, but all the machinery necessary to make it perfect in all 
 its parts, in Bigler vs. The New Yorh Central Insurance Company, 20 
 Barb., 635. 
 
 A policy upon goods in a public store, according to their cash value 
 at the time of loss, was held to cover the whole of such value, notwith- 
 standing the non-payment, or giving security for payment, of the duties 
 upon thedi. Wolfe vs. The Howard Insurance Company, 3 Seld., 583. 
 
 The claim on a fire policy includes the value of goods stolen during 
 the fire. The loss is consequential, and is included in the risk. Tilton 
 vs. Hamilton Fire Insurance Company, 1 Bosw., 367 ; 14 How., 363. 
 
 A policy upon a ship upon the stocks in course of building, covers the 
 structure from time to time, but not timbers, not actually united to that 
 structure, thoagh prepared and lying ready for use, and valueless for 
 any other vessel. Hood vs. Manhattan Fire Inswromce Company, 1 
 Kern., 532; reversing same case, 2 Duer, 191. 
 
 The following recent decisions relative to the subject of marine insur- 
 ance, may also be shortly noticed : 
 
 As to the right of the insured to abandon, on receiving information 
 of the probability of a constructive total loss. McCmwahie vs. Sun, 
 Mutual Insurance Company, 3 Bosw., 99. , But a common carrier can- 
 not, it seems, abandon goods, insured by him for the general benefit of 
 himself and the owners. Savage vs. Com Exchange Fire and Inlcmd 
 Namigation Insurance Compomy, 4 Bosw., 1. 
 
 As to what will or will not be a loss of this description, entitling the 
 assured to abandon, see Ruchmmi vs. Merchants^ Louisville Insurance. 
 Company, 5 Duer, 342 ; Fiedler vs. New York Inswamce Compam,y, 
 
OF THE COMPLAINT. — § 147, 825 
 
 6 Duer, 282. See also, as to when abandonment will or will not be 
 necessary, Crosby vs. New Yoi'Tc Mutual Insurance Gompany, 19 
 How., 313. Likewise as to the period at which the interest of the 
 assured attaches, so as not to be affected by a subsequent transfer of 
 his interest. Croshy vs. New York Mutual Insurance Gompany, 5 
 Bosw., 369. 
 
 Perishable memorandum articles, included in a maritime policy, are 
 to be deemed totally lost, when, though not actually destroyed, but 
 existing in specie, they are so injured, in the course of the voyage, as to 
 be incapable of transportation to the port of destination. De Peyster 
 vs. Sun Mutual Insurance Gompany, 19 N. Y., 272. This decision 
 overrules that in the same case, reported 17 Barb., 306. 
 
 As to what will or will not constitute a deviation, exonerating the 
 insurers, see De Peyster vs. Sun Mutual Insurance Gompany, 19 
 N. Y., 272, above cited; Stevens vs. Goinmercial Mutual Insurance 
 Gompany, 6'Duer, 594; Mallory vs. The Same, 18 Hoay., 395. 
 
 As to the principles of gener&,l average, and their application, see Nel- 
 son vs. Belmont, 5 Duer, 310 ; Lee vs. Grinnell, 5 Duer, 400; Powers 
 vs. Murray, 3 Bosw., 357. See also Bargett vs. Orient Mutual Insur- 
 ance Gompany, 3 Bosw., 385, as to the exemption of underwriters in 
 this respect, by the terms of the policy. See likewise the converse, of 
 this proposition, as to the written contract controlling any printed con- 
 ditions, Woodruff vs. Gommercial Mutual Insurance Gompa/ng, 2 
 Hilt., 122. 
 
 As to unseaworthiness, and the consequent exemption of the under- 
 writers from liability, see Van Valkenburgh vs. Astor Mutual Insur- 
 ance Gompany, 1 Bosw., 61 ; Wright vs. Orient Mutual Insurance 
 Gompany, 6 Bosw., 269. See, however, as to the technical appoint- 
 ment of an incompetent master not constituting unseaworthiness, where 
 there is a competent person in actual command. Draper vs. Go')nmer- 
 cial Insurance Gompany • z-e versing sams case, 4 Duer, 234. 
 
 As to the rule of causa proxima, and its application, see Mathews 
 vs. Howard Insurance Gompany, 1 Kern., 9 ; Neilson vs. Gommercial 
 Mutual Insurance Gompany, 3 Duer, 455 ; Woodruff vs. The Same, 2 
 Hilt., 122. But the operation of that rule may be ousted by special 
 contract between the parties. Savage vs. Gorn ExchoMge Fire OMd 
 Inland Navigation Insv/rance Gompany, 4 Bosw., 1. 
 
 In relation to barratry, and the extent of a qualifying clause, fixing 
 the risk upon the assurers, "unless the assured be owners, or part 
 owners, of the vessel," see Harris vs. Merca/ntile Insurance Gompany 
 of Philadelphia, 17 How., 188. 
 
 As to underwriters being, as a general rule, liable for such a loss of 
 soluble articles, as would exempt the shippers from fi-eight, vide 
 
826 OF THE COMPLAINT. §- 147. 
 
 De Wolf vs. StaU Muinial Fi/re and Ma/rim Insurance Gompa/iiy, 6 
 Duer, 191. 
 
 As to the effect of a limitation of risk on reinsurance, wlien couched 
 in general terms, see Mercantile Mutual Insurance Company vs.. State 
 Mutual Fire and Marine Insurance Company of PenmyVvania, 25 
 Barb., 319. 
 
 As to the rights or liabiUties of underwriters, in respect of the sub- 
 ject-matter of the insurance, after abandonment, see Taylor vs. Atlantic 
 Mutual Insurance Company, 2 Bosw., 106 ; Atlantic Mutual Insur- 
 ance Company vs. Bird, 2 Bosw., 195. 
 
 Although the assured, on a policy of this description, may put an 
 end to the contract, and entitle himself to a return of the premium, by 
 electing not to commence the risk at all ; yet, when once commenced, 
 he cannot afterwards withdraw, and the underwriters are then entitled 
 to retain or recover the premium. New Yorh Fire and Marine 
 Insurance Company vs. Roberts, 4 Duer, 141. 
 
 As to the liability of assurers, under certificates, issued from time to 
 time, under a general cargo policy, see Hartshorne vs. Union Mutual 
 Insurance Company, 5 Bosw., 638. See also, as to general insurance 
 by a' common carrier, on goods carried, and the distinction between the 
 ' liability binder it, on goods insured by him, merely for his own protec- 
 tion, and others insured on account of himself and the owners, Savage 
 vs. Com Excliange Fire and Inland Wa/vigation Insurance Cmnpany, 
 4 Bosw., 1. 
 
 As to the liability of the underwriters on an insurance of passage- 
 money, and the proof necessary to establish it, see Ogden vs. New 
 YorJp Mutual Insurance Company, 4 Bosw., 447 ; Howa/rd vs. Astor 
 Mutual Insurance Company, 5 Bosw., 38. 
 
 (w.) Rent. 
 
 In an action of this description, the ordinary and most expedient form 
 of averment is, to state the nature and contents of the lease or agree- 
 ment ,sued upon, so far as the demise and reservation of rent are con- 
 cerned, and then to allege, in terms, the specific default made by the 
 tenant, praying judgment for the amount due, with interest from the 
 day of payment. 
 
 In Ten Eyck vs. Iloughtaling, 12 How., 523, it was held that a plain- 
 tiff may, if he chooses, bring his action for rent due on a lease under 
 seal, in the nature of an action in debt, for use and occupation, tender- 
 ing the lease to show the amount, instead of suing directly upon the 
 covenant for payment. 
 
 In Peckham vs. leary, 6 Duer, 494, this form of action was adopted, 
 as applicable to a case where the ownership had changed, and the 
 
OP THE COMPLAINT. § 147. 827 . 
 
 tenants had continued to occnpy, with notice of that change. It was 
 held that a claim for nse and opcupation was sufficient, but that only 
 the amount mentioned in the lease, under which the defendants entered, 
 could be recovered. 
 
 In an action of this description for rent, the recovery can only be for 
 the amount due upon the lease, up to its termination. Damages for 
 holding over, after forfeiture, cannot be recovered. They form a dif- 
 ferent cause of action, and must be separately asserted. Where, there- 
 fore, the landlords, on the 28th of December, dispossessed their tenants 
 for non-payment of rent due on the first of, that month, it was held 
 that, although the intermediate holding was wrongful, yet the tenancy 
 was determined by the issuing of the dispossession warrant; and. that 
 no recovery could be had, in respect of rent for the intermediate period. 
 Crane vs. Mardman^ 4 E. D. Smith, 339. 
 
 The enforcement of a forfeiture does not, however, invalidate the 
 claim of the landord for the rent, by non-payment of which that forfei- 
 ture is incurred, the claim for which is assertable still by action. 
 Mattice vs. Lord, 30 Barb., 382. See also Academy of Music vs. 
 HacJcett, 2 Hilt., 217. 
 
 A subsequent contract for surrender of a lease, and payment of the 
 consideration under that contract, does no"t, per se, extinguish the claim 
 of the lessor for rent then previously due, or create a presumption of 
 payment. Sperry vs. Miller, 16 E". Y., 407. 
 
 A covenant to pay rent, runs with the land, and, if broken after the ■ 
 acceptance of an assignment and entry into possession, the assignee is 
 liable, precisely as the lessee would have been, for the quarter's rent then 
 falling due, though his entry may have been in the middle of the 
 quarter. Holsman vs. De Gray, 6 Abb., 79. 
 
 And, where a lease was made to the agent of an association, which 
 subsequently transferred all its property to a corporation, as its succes- 
 sor, it was held that the lessor could recover rent against the latter, for 
 the whole term. Vam, Schaiclc\s.Third Avenue Railroad Company, 30 
 Barb., 189 ; 8 Abb., 380. 
 
 But, on a claim of this description against any person other than the 
 original lessee, possession is the basis of the liability, and each succes- 
 sive assignee is, only liable for rent accrued due, on breach of covenant, 
 occurring during the period of his assignment. A subsequent assign- 
 ment discharges him from further liability, but, whilst he remains 
 assignee, the possession of his under-tenants is his possession. Carter vs. 
 Hammett, 18 Barb., 608. 
 
 And an equitable assignee, entering into actual possession, will be 
 liable for rent, accruing during the period of such possession. Astor 
 vs. Lent, 6 Bosw., 612 
 
,828 OF THE COMPLAXNT.^ — § 147. 
 
 To have this effect, however, the assignment relied on must be 
 specific, and for the whole term ; a general assignee for creditors does 
 not, jper se, become assignee of a lease, and he may even rebut the 
 presumption arising from his use of the premises, by proving his refusal 
 to take such an assignment. Bagley vs. Freeman, 1 Hilt., 196. But 
 if such an assignee enters into possession, he will be liable, until his 
 occupancy ceases. Astor vs. Lent, supra. 
 
 An action of this kind cannot be maintained, by the superior landlord 
 against an under-tenant, not standing in the position of assignee. 
 Jennings vs. Alexander, 1 Hilt., 154. 
 
 As to the general doctrine that a covenant for payment of rent, runs 
 with, the .land, and is enforceable accordingly, see FixTi Rensselaer y%_ 
 Bonesteel, 24 Barb., 365 ; Van Rensselaer vs. Hays, 19 IST. Y., 68. 
 
 'In Hay vs. Cumberland, 25 Barb., 594, it was held that lessees, who 
 had been unable to obtain possession of the whole of premises leased 
 to thena, were justified in abandoning the holding, and that, after such 
 abandonment, rent could not be recovered of them. In Mechanics'' and 
 Traders^ Fire Insurance Company vs. Scott, however, 2 Hilt., 550, the 
 contrary was held, and that inability to obtain possession was no 
 defence. The latter decision is one of the special, the former of the 
 general term. "Where lessees have never entered into possession at 
 all, by reason of. the failures of the lessor to perform repairs agreed 
 upon, their liability is then only upon an executory contract, and 
 the landlord cannot recover, without showing performance on his 
 part. La Farge vs. Mansfield, 31 Barb., 345.' If they had taken 
 possession, the rule would be reversed, and their only right woidd be 
 to a recoupment of damages. See, as to the right to maintain a 
 counter-claim, in respect of damages of this nature, Myers vs. Burns, 
 33 Barb., 401. 
 
 Eent cannot, of course, be recovered, upon a lease void for illegality. 
 Mere knowledge, however, that premises are likely to be used illegally, 
 does not, per se, have that effect ; the lease itself, to be void, must be 
 made with express reference to, or in furtherance of, the contemplated 
 illegal purpose, or with express intention that the premises should 
 be so occupied. Updike vs. Campbell, 4 E. D. Smith, 570 ; Gibson vs. 
 Pearsall, 1 E. D. Smith, 90. 
 
 An action is maintainable for rent payable in advance, immediately 
 on breach of the covenant for its payment. Healy vs. McManus 23 
 How., 238. 
 
 The effect of an eviction, as working atotal or partial suspension of 
 rent, according to the circumstances, and the question, as to what will or 
 will not be considered a sufficient interference with the possession of the 
 tenant, to have that effect, will be considered hereafter, in the chapter 
 
OF THE COMPLAINT. § 147. 829 
 
 relative to answei-. See book YII., chapter III., section 178, under the 
 snbdivisional head of Bent. 
 
 An executor cannot recover, for rent which becomes due after the 
 death of his testator. It goes to the heir, as incident to the reversion. 
 Fay vs. Ralloran, 35 Barb., 295. See also Marshall vs. Moseley, 21 
 N. Y., 280. 
 
 An action of forfeiture for non-payment of rent is not favored, and 
 to maintain one, a demand of such rent must be shown, with strict 
 legal particularity. Academy of Music vs. Hachett, supra. 
 
 (o.) GUAEAISTTT. 
 
 The next and the last that presents itself for consideration, as falling 
 under the . class of expressed contracts, is that of guaranty of the debt 
 of another. 
 
 An instrument of this nature falls, especially, within the purview 
 of the provision of the Revised Statutes, in substitution for the ancient 
 statute of frauds. See 2 E. S., part II., chapter YII., title II., section 2 ; 
 2 E". S., 135. 
 
 Being under subdivision 2, a " special promise to answer for the 
 debt, default, or miscarriage of another person," the instrument will be 
 void, 
 
 " Unless such agreement, or some note, or memorandum thereof, 
 expressing the consideration, be in writing, and subscribed by the 
 party to be charged therewith." 
 
 Consideration must be so expressed upon the face of the guaranty, 
 and not left to implication, however unavoidable. Thus, a written 
 guaranty, though indorsed upon, or subjoined to a note or agreement, 
 and expressly referring to it, cannot be aided by that instrument, or by 
 the consideration there apparent, but will be void under the statute, 
 lanless consideration be expressed upon the face of the guaranty itself. 
 Br&mster vs. Silence, 4 Seld., 207 ; affirming same case, 11 Barb., 144 ; 
 De Bidder vs. Schermerhorn, 10 Barb., 638 ; Glen Cove Mutiial 
 Insxt/rance Company ^r?,. Harrold, 20 Barb., 298 ; Wood^s. Wheeloch, 25 
 Barb., 625 ; Spicer vs. Norton, 13 Barb., 542, said to be affirmed by the 
 Court of Appeals, 25 Barb., 626 ; Oould vs. Moring, 28 Barb., 444 ; 
 Wilson vs. Boherts, 5 Bosw., 100 ; Baker vs. Dillman, 21 How., 444 ; 
 12 Abb., 313 ; Clarke vs. Bichardson, 4 E. D. Smith, 173. See also 
 indecisive case of Hall vs. Farmer, 2 Comst., 553. See, likewise, 
 collaterally, on the question of joinder, Allen vs. Fosgate, ll How., 
 218 ; and, lastly, Draper vs. Snow, 20 N". Y., 331 ; affirming same case, 
 6 Duer, 662. See also, as to the invalidity of an undertaking of this 
 description, when not made in writing, and therefore falling, in that 
 respect, within the prohibitions of the statute, Mallory vs. Oillett, 21 
 
830 OF THE COMPLAINT. § 14'7. 
 
 N. T., 412 ; affirming same case, 23 Earb., 618 ; Zoonie vs. JIoga»,, 5 
 Seld., 436. 
 
 By tins series of decisions, the following are clearly overruled : JSnos 
 vs. T/wmas, 4 How., i8 ; Hanford vs. Rogers, 11 Barb., 18. They 
 support the views expressed by Jewett, Gardiner, and Hoyt, J. J., 
 against the opinions of Strong, Buggies, Cady, and Shankland, J. J., 
 in the indecisive ease of Durham vs. Manrow, 2 Comst., 533. 
 
 And, where a party, having a chattel in his possession on which he 
 had a lien, delivered over that chattel to the owner, on the promise of 
 the defendant to pay the amount due, the promise was held void under 
 the statute, there being no consideration moving to the defendant. 
 Mallory vs. Gillett, 21 In". Y., 412 ; affirming same case, 23 Barb., 618. 
 
 The doctrine as laid down in Brewster vs. Silence, and the other 
 decisions which follow it, is, however, strictissimi juris y and, where 
 any distinction can be drawn, the courts will incline to support the 
 validity of a paper, if consideration exists in fact, and the very doctrine 
 itself is, to a certain extent, drawn into question, by ComStock, J., in 
 Church vs. Brown, 21 N. Y., 315. 
 
 The whole subject is most elaborately examined, and the following 
 classification made, of cases not within the operation of the statute, 
 though the promise relates to the existing debt of a third party, by 
 the same learned judge, in Mallory vs. Gillett, 21 N. Y., 412. 
 
 1. "Where there is no original debt, to which the promise is collateral. 
 
 2. Where the original debt is extinguished, and the creditor has no 
 remedy but on the new promise. 
 
 3. "Where, though the original debt remains, the new promise is 
 founded on a consideration which moves to the promisor. 
 
 The third principle laid down in this classification is fully carried 
 out in the following decisions : Brown vs. Curtiss, 2 Comst., 225 ; 
 Cooke vs. Nathan, 16 Barb., 342 ; Fowler vs. Clearwater, 35 Barb., 
 143 ; Talmam vs. Rochester City Bank, 18 Barb., 123. And even a 
 parol promise, falling within this class, does not fall within the statute, 
 and will be enforced. Carddl vs. McNiel, 21 N. Y., 336 ; Pennell vs. 
 Pentz, 4 E. D. Smith, 639. 
 
 And the statute does not- apply to cases, in which the responsibility 
 incurred on behalf of another, is in respect of a future, and not of an 
 existent debt. A guaranty of drafts to be thereafter drawn, has been 
 held to fall within this principle, and that the instrument, and the drafts 
 drawn under it, being > taken together, consideration was sufficiently 
 expressed. Union Bank vs. Coster's Executors, 3 Comst., 203 ; Gi'ant 
 vs. HotchMss, 15 How., 292 ; affirmed, 26 Barb., 63. So also, where 
 the guaranty is for goods, to be delivered to a third party, on the credit 
 of the guarantors. Gates vs. McKee, 3 Kern., 232 ; Church vs. Brown, 
 
OF THE COMPLAINT. § 147. 831 
 
 21 N. T., 315 ; reversing sam.e case, 29 Barb., 486 ; Dunning vs. 
 Roberts, 35 Barb., 463. 
 
 So likewise, as to a guaranty to purchase a telegraph bond on a future 
 day, and at a price specified. .Howard vs. Ilolbrooh, 23 How., 64. Or 
 one of a specific future salary. Douglass vs. Jones, 3 E. D. Smith, 
 551. See also generally, Hosiner vs. True, 19 Bai'b., 106. 
 
 It is not necessary, in order to satisfy the requirements of the statute, 
 that the consideration should be expressed in detail ; the mere inser- 
 tion of the words " for value received," are suiiicient to support the 
 .instrument. Cooj>er vs. Dedrich, 22 Barb., 516; Smith vs. Soha/nd:, 
 18 Barb., MA:-,- Miller vs. Goolc, 23 K Y., 496 ; 22 How., 66; How- 
 ard vs. Holbrooh, 23 How., 64. See also Brewster vs. Silence, 4 Seld., 
 207 (215). 
 
 And, where the instrument is under seal, the seal imports consider- 
 ation. Rosenbaum vs. Ounter, 2 E. D. Smith, 415 ; McKensie vs. 
 Farrell, 4 Bosw., 192. 
 
 For a guaranty to be effectual, the party must be competent to con- 
 tract in that form. The guaranty of a feme covert is accordingly 
 void. Sexton vs. Fleet,,2 BLilt., ^7 ; 15 How., 106 ; 6 Abb., 8 ; Yale 
 vs. Dederer, 18 E". Y., 265 ; 17 How., 165 ; reversing saTne case, 21 
 Barb;, 286. Tliis principle is solemnly reafiirmed in Yale vs. Dederer, 
 
 22 N. Y., 450 ; 20 How., 242 ; reversing decision on retrial, reported 
 31 Barb., 525 ; 19 How., 146, seeking to establish the contract, on the 
 ground of intention to effect a charge. 
 
 A guarantor for the debt of another, and not upon an independent 
 undertaking on his own part, has the ordinary privileges of a surety, 
 and the creditor must, in the first place, exhaust his remedies against 
 the principal, before he can be held liable. Baxter y&. SmacJc, 17 How., 
 183 ; Samyer vs. Haskell, 18 How., 282. So also, in the ease of a gua- 
 ranty of collection, Newell vs. Fowler, 23 Barb., 628 ; Hart vs. Hud- 
 son, 6 Duer, 294. But, before bringing suit, it is not requisite that he 
 should give notice to the guarantor of his failure to collect. Sterns vs. 
 Ma/rks, 35 Barb., 565. As in other cases, any extension of time to 
 the principal debtor, or any alteration of the contract, without the gua- 
 rantor's express -assent, will discharge him. Colemanrs. Wade, 2 Seld., 
 44. In Mc Williams vs. Mason, 6 Duer, 276 ; Hart vs. Hudson, 6 Duer, 
 294 ; Leeds vs. Dunn, 6 Seld., 469 ; Henderson vs. Marvin, 31 Barb., 
 297; 11 Abb., 142; Bigelow vs. Bento-n, 14 Barb., 123. See, how- 
 ever, as to notes given for an average of purchases guaranteed, Stewart 
 vs. Ranney, 23 How., 205, below cited. 
 
 In Mains vs. Haight, 14 Barb., 76, it was, in like manner, decided, 
 with reference to a guaranty of a judgment being collectable, that due 
 diligence in tlie attempt to collect it, was a condition precedent to the 
 
832 OF THE COMPLAINT. § 147. 
 
 guarantor's liability. As to what is or is not due diligence, see Gal- 
 lagher vs. White, 31 Barb., 92. 
 
 The holder of a guaranty of collection, is not, howeyer, bound to 
 follow an absconding principal, out of the state, before enforcing the 
 guarantor's liability. CooJce vs. Nathan, 16 Barb., 343. As to the 
 distinction between a guarantor of collection, and a guarantor of pay- 
 ment, and the mode of enforcement of their respective liabilities, see 
 CanUl vs. McNeil, 21 N. Y., 336. 
 
 A guarantor of payment of a certificate of deposit, transferred by him 
 for value, was held responsible upon his guaranty, notwithstanding the. 
 invalidity of the certificate so transferred, for matters dehors it face. 
 Purdy vs. Peters, 35 Barb., 239. So also, if at the time of giving his 
 guaranty, he has himself notice of any matter of invalidity. Sterns vs. 
 Marhs, 35 Barb., 565. 
 
 And it has been held, that a surety for quarterly payments of rent, 
 is not discharged by an arrangement between his principal and the 
 lessor, for payment of the same- rent monthly ; ■ the change is in ease of 
 his obligation. Ogden vs. Rome, 8 E. D. Smith, 312. Nor is he or 
 his principal, discharged from their' responsibility, by the landlord's 
 acceptance of prior rent from an assignee. Darnb vs. Hoffman, 3 E. D. 
 Smith, 361. 
 
 As to the nature and extent of the liability of a guarantor for the 
 payment of rent, see McLaughlin vs. McOovern, 34 Barb., 208 ; Car- 
 manys. Plass, 23 JST. Y., 286; McKenzie vs. Farrell, 4 Bosw., 192; 
 Baher vs. Billman, 21 How., 444 ; 12 Abb., 313. 
 
 A mere ineffectual levy, afterwards abandoned, will not avail to 
 satisfy the debt of the principal, or discharge a surety of this descrip- 
 tion. Radde vs. Whitney, 4 E. D. Smith, 378. See also, as to what will 
 be held sufficient diligence in attempting to collect. Pollock vs. Hoag, 
 4 E. D. Smith, 473. 
 
 In framing the complaint upon a liability upon a guaranty, express 
 \attention should be paid to the requirements of the statute, and, where 
 the instrument is in writing, it is better that such fact, and the specific 
 terms of the instrument should be averred. Le Roy vs. Shaw, 2 Duer, 
 626. See also Thurman vs. Stevens, 2 Duer, 609. 
 
 If the guaranty be of the performance of an executory agreement, 
 the breach of that agreement must be specifically alleged, and, if it be 
 mutual, the facts, showing a readiness to perform, and offer of perform- 
 ance on the part of the plaintiff, must be averred as facts, and not by 
 way of mere general statement. Van Schaiclc vs. Winne, 16 Barb., 89. 
 
 A valid guaranty, indorsed upon a promissory note, passes by 
 delivery with the note itself, and possession is, prima fa&ie evidence of 
 ownership, though it appear by the date of such guaranty, that the 
 
OF THE COMPLAINT. — § 148. 833 
 
 note was not received till after it was due.' S7nith vs. SGha/tich, 18 
 Barb., 3il; Cooper vs. Dedrich, 22 Barb., 516. 
 
 As to the liability of a guarantor for payment of goods upon a six 
 months credit, for notes given on an average of diiferent purchases, 
 extending the specified credit as to some, and diminishing it as to 
 others, see Stewart vs. Eanney^ 23 How., 205. 
 
 § 148. Implied Promises. 
 
 {a.) Assumpsit; oe, Pa,bol Peomise. 
 
 The theory of this numerous and important class of proceedings, 
 resting under the ancient classification of ass'imipsit, is, that wherever 
 the facts of the case create a duty to pay, the law will imply a promise 
 of payment according to that duty, on which implied promise an action 
 is maintainable. 
 
 In pleadings under the new system, it is no longer necessary to aver 
 such promise in express terms. A statement of the facts creating the 
 duty, is all that is sufiicient ; the law itself supplies the consequent im- 
 plication, without the necessity of any express averndent. See B'arron 
 vs. Sherwood, IT N. Y., 22Y (230) ; Allen vs. Patterson, 3 Seld., 476 ; 
 Glenny vs. Hitchings, 4 How., 98 ; 2 C. E., 56 ; Tucker vs. Rushton, 
 2 C. K., 59 ; 7 L. 0., 315 ; Buffalo and New York City Railroad 
 Company vs. Dudley, 4 Kern., 336 (343) ; Jordan a/nd Skaneateles 
 Plank Poad Compamy vs. Morley, 23 I^.T., 552 ; Neas vs. Mercer, 15 
 Barb., 318. But, to sustain the action, facts sufficient to warrant the 
 implication must be alleged. Cropsey vs. Sweeny, 27 Barb., 310 ; 7 
 Abb., 129. 
 
 As a general rule, assiimpsit is not maintainable, when there exists 
 an actual contract. Where there is an express promise, the law will 
 not create one by implication, in respect of the same transaction. Hii- 
 derhill vs. Crawford, 29 Barb., 664 ; 18 How., 112 ; Adams vs. The 
 Mayor of New York, 4 Duer, 295. See likewise Buffalo and New 
 York City Pailroad Company vs. Dudley, 4 Kern., 336 (343) ; SoroMton 
 vs. Booth, 29 Barb., 171 (174). 
 
 But, where a special contract has been rescinded, or abandoned, or 
 put an end to by the wrongful act of the defendant, assumpsit may be 
 maintained. Adams vs. Mayor of New York, supra (p. 305). 
 
 Or, where work has been completely executed- {same case, p. 205), the 
 plaintiff may then exercise his election. The law raises a duty upon 
 the part of the defendant to pay the price agreed upon, and the plaintiff 
 may count, either upon the implied assumpsit, or on the express agree- 
 ment. Farron vs. Sherwood, 17 N. T., 227. See likewise Atkinson vs. 
 Collins, 18 How., 235 ; 9 Abb., 353 ; 30 Barb., 430. 
 
 Vol. L— 53 
 
834 01" THE COMPLAINT. — § 148. 
 
 Before consideration of the subject, in connection with the principal 
 classes into which actions of this nature may be divided, a few isolated 
 instances of application of the rule in particular cases, may be consid- 
 ered. 
 
 The duty, in respect of which a promise will be implied, must be one 
 legally enforceable, at the time of action. A person, accepting office^ 
 under a chartered corporation, cannot, accordingly, claim payment for 
 his services, otherwise than in the iTianner prescribed by its charter. If 
 the expense of such service is to be included in an assessment, he must 
 wait until such assessment is collected, or until the corporation is in 
 default for not proceeding to do so with due diligence, before he can 
 maintain an action. Baker vs. City of Utica, 19 N. Y., 326. 
 
 Assumpsit lies on the part of a plank road company, as against one 
 who, under claim of right, has passed without payment of tolls. The 
 remedy of closing the gate is cumulative. Jordan <md Shaneatelea 
 Plank Road Compamy vs. Morley, 23 IST. Y., 552. 
 
 Where there is no legal duty to pay, but the remedy of the plaintiff 
 lies in equity, or by means of a suit under a special statute, as in the 
 case of the claim by a legatee for payment outof real estate devised, 
 no action will lie as against the devisee in such a case, on ordinary as- 
 sumpsit, express or implied. GridUy vs. Oridley, 33 Barb., 250. 
 
 Assumpsit is not maintainable, where the plaintiff himself is guilty 
 of violation of duty. Where, therefore, a broker, employed to purchase 
 in his own name, had subsequently sold the stock of his customer, with- 
 out warrant, or demand and offer of transfer to the principal, it was 
 held that he could not maintain an action for its price. Merwin vs. 
 Hamilton, 6 Duer, 244. See also cases cited p. 250. 
 
 Assumpsit will lie, on a promise to be responsible for expenses occa- 
 sioned by a delay in payment for goods purchased. Orguerre vs. JJuling, 
 1 Hilt., 383. For a reward offered for detection of a thief, on proof of 
 information given and consequent arrest. Brennan vs. JIaff, 1 Hilt., 
 151. Against his parent, for clothing furnished to a minor, previous 
 payments without objection being shown. Henry vs. Belts, 1 Hilt., 
 156. For the price of land, conveyed by plaintiff to defendant, in pur- 
 suance of an oral contract for sale. Thomas vs. Dickinson, 2 Kern., 364. 
 By a tenant, for repairs done, under a promise of the landlord to pay 
 for them. Oettinger vs. Zevy,4c Smith, 288. By a tenant, for damages 
 resulting from violation of the implied agreement of his landlord, to give 
 possession upon the commencement of his term. Trull vs. Granger, 4 
 Seld., 116. (See above, under head of Damages for Breach of Con- 
 tract.) 
 
 Assumpsit will also lie, for breach of an implied warranty, on transfer 
 of a chose in action, that there is no legal defence to its collection, aris- 
 
OP THE COMPLAINT. — § 148. 835 
 
 ing out of the transferror's own connection with it. Dela/ware Ba/rik vs. 
 Jarvis, 20 N. Y., 226. Against consignees, for a sale of property con- 
 signed, at an undervalue, contrary to instructions. Milbcmh vs. D.en- 
 nistoun, 1 Bosw., 246. 
 
 As to the sufficiency of mutual promises, to constitute consideration, 
 see Nellis vs. De Forest, 16 Barb., 61. But, to be binding, a promise 
 of this kind must be concurrent, and obligatory upon both parties, and 
 at the same time. See Macedon and Bristol Plank Road Company 
 vs. Snediker, 18 Barb., 317. 
 
 A promise, though made in terms to a third person, inures to the 
 benefit of the party entitled in fact, Tredwell vs. Bruder, 3 E. D. 
 Smith, 596 ; and this, even although the consideration proceeds, in fact, 
 from such third person, and not from the plaintiff. Judson vs. Or ay, 
 17 How., 289 ; Cailleux vs. Hall, 1 E. D. Smith, 5 ; Lawrence vs. Fox, 
 20 N. Y., 268. 
 
 See, however, as to the invalidity of a parol promise, by a vendor of 
 real estate, to pay for building materials supplied to the purchaser, as 
 being within the statute of frauds. Boonie vs. Hogan, 5 Seld., 435. 
 
 A principal, ratifying or accepting the benefit of an act of his agent, 
 is liable for it, though such act be originally without authority. Corn 
 Exchange Bank vs. Cumberland Coal Company, 1 Bosw., 436. 
 
 But not so, where such adoption has not taken place in fact. Samie 
 case. Nor will a member of a committee be liable for the orders of 
 others without his assent, in matters exceeding the scope of their origi- 
 nal agreement. Downing vs. Mann, 3 E. D. Smith, 36 ; 9 How., 204. 
 
 Where the whole consideration of an accommodation note is received 
 by a third party, the law implies a promise on his part, to save the par- 
 ties to it harmless. Neass vs. Mercer, 15 Barb., 318. 
 
 As to the right to waive the tort, and to sue in assumpsit, in respect 
 of a sale of goods induced by fraud, see Kayser vs. Sichel, 34 Barb., 84. 
 
 (5.) SuBSOEirTIONS. 
 
 The liability of a defendant, on a contract of this nature, is of a 
 somewhat mixed and transitionary nature, between the subjects of the 
 present and the preceding section. It arises, out of a signature of the 
 defendant himself, or from his taking an interest, under an agreement, 
 originally evidenced by signature, and, so far, the contract sued upon, 
 may be considered as express ; in its incidents and details, however, tlie 
 liability rests equally and more peculiarly in assumpsit, and therefore 
 falls more naturally under the present head. See Northern Railroad 
 Company vs. Miller / and Ogdensburgh, Rome and Clayton Railroad 
 Company vs. Frost, below cited. 
 
 Where no counter benefit accrues to the subscriber, and no act is done 
 
836 OF THE COHPLAIHT. — § 148. 
 
 upon the faith of his engagement, an action will not lie upon a mere vol- 
 nntary subscription-paper. It is " nudum pactum^^ with no considera- 
 tion to uphold the promise. Stoddard vs. Cleveland, 4 How., 148 ; see 
 also Trustees of Hamilton College vs. Stewart, 1 Oomst., 581. 
 
 Where, however, such subscription is for the purpose of paying for 
 work to be done, and work is done accordingly upon the faith of it, and 
 in reliance upon payment by that means, such work will constitute a 
 sufficient consideration for, and will sustain the promise. So held as 
 to a subscription paper, for erection of a church. Barnss vs. Ferine, 2 
 Kern., 18 ; affirming decisions in savie case, at general term, 15 Barb., 
 349 ; and at special term, 9 Barb., 202 ; Trustees of First Bapt/lst 
 Society in Syracuse vs. Rohinson, 21 N. Y., 234. See, likewise. Trus- 
 tees of Hamilton College ys. Stewart, 1 Comst., 581 (586); and this, 
 even when a promise of this nature was made, antecedent to the actual 
 incorporation of the plaintiffs. Reformed Frotestant Dutch Church of 
 Westfield vs. Brown, 29 Barb., 335 ; 17 How., 287. 
 
 So, where the subscriber hiinself derives any benefit from his sub- 
 scription, that benefit will be a sufficient consideration to sustain the 
 promise. A subscription to the stock of a company, formed for a profit- 
 able purpose, and entitling the sixbscriber to shares in the undertaking, 
 is accordingly enforceable. And a simple allegation of such subscrip- 
 tion will be sufficient, as implying a right to the shares subscribed for, 
 and consideration flowing out of that right. Oswego and Syracuse 
 Flanh Road Company vs. Rust, 5 How., 390. Nor does the power of 
 the company to forfeit the shares for non-payment, interfere with their 
 right to enforce the subscription at their election. Fort Edward and 
 Fo^'t Miller Flanh Road Company vs. Fayne, 17 Barb., 567. (IST. B. 
 JSTot aftected on this point, by the reversal, 15 IS.. Y., 583 ;) Northern 
 Railroad Company vs. Miller, 10 Barb., 260 ; Troy amd Rutland Rail- 
 road Company vs. Kerr, 17 Barb., 581 ; Foughkeepsie and Salt Foint 
 Flanlt Road Company vs. Griffin, 'iA. Barb., 454 ; Qgdensburgh, Rame, 
 and Clayton Railroad Company vs. Frost, 21 Barb., 541 ; Tr&y and 
 Boston Railroad Company vs. Fillets, 18 Barb., 297 ; Rensselaer amd 
 Washingtmi Flank Road Company vs. Wetsel, 21 Barb., 56 ; The 
 Same vs. Barton, 16 N. Y., 457 (note) ; Eastern Flank Road Company 
 vs. Vaughan, 20 Barb., 155 ; affirmed, 4 Kern., 646 ; Lake Onta/rio, 
 Aulurn and New York Railroad Company vs. Mason, 16 IST. Y., 451 ; 
 Buffalo and New York City Railroad Company vs. Dudley, 4 Kern., 
 336 ; Buttershall vs. Davis, 31 Barb., 323. 
 
 But, when stock has once been forfeited, an action for calls upon it 
 cannot be maintained, and such forfeiture may be pleaded in bar of a 
 pending action. Small yb. Herkimer Manufacturing and Hydraulic 
 Company, 2 Comst., 330. 
 
OP THE COMPLAINT.— § 148. 837 
 
 And it is not necessary, in order to maintain such an action, that the 
 company should be actually incorporated, at the time of the sub- 
 sci'iption. If made with a view to a future incorporation, it is sufficient, 
 and the company, when organized, may sue upon it, nor is it a condi- 
 tion precedent to its validity, that all the stock of the company should 
 be taken, provided subscriptions have been obtained, to a sufficient 
 amount to render that organization valid, under the statutes of incor- 
 poration. Hamilton and Deansville Plank Road Ooinpany vs. Mice, 
 1 Barb., 157 ; Schenectady and Saratoga Plank Road Company vs. 
 Thatcher, 1 Kern., 103 ; Rensselaer and Washington Plank Road 
 Company vs. Wetsel, 21 Barb., 56. See likewise ^asfern Plank Road 
 Co7npany vs. Vaughan, i Kern., 546, affirming same case, 20 Barb., 155. 
 
 An agreement to take stock in a plank road company, executed be- 
 fore its organization, has been held binding, though the subscriber 
 never signed the subsequent articles of association. Poughkeepsie and 
 Salt Poi?it Plank Road Company vs. Griffin, 21 Barb., 454. So also 
 where, by an agreement of this nature, the subscribers promised to pay 
 to individual members, the amount of subscriptions for building such a 
 road, with authority to transfer such subscriptions to a company, when 
 organized, and such transfer was made accordingly. Eastern Plank 
 Road Company vs. Yaughan, 4 Kern., 546 ; affirming same case, 20 
 Barb.,. 155. 
 
 Under the railroad acts, it has been held, on the contrary, that signa- 
 ture of the preliminary subscription paper, is insufficient to create a 
 liability for calls, and that, to be enforceable, the subscriber' must have 
 signed the subsequent articles of association, or taken up his certificate. 
 Troy and Boston Railroad Company vs. Tibbets, 18 Barb., 297 ; The 
 same vs. Warr^en, 18 Barb., 310. 
 
 And, until such articles of association have been actually filed, and 
 the organization complete, it has been held that the obligation of a sub- 
 scriber is merely inchoate, and he is at .liberty to erase or modify his 
 subscription. Burt vs. Phrrer, 24 Barb., 518. If or will such an 
 erasure, where made in good faith, invalidate the articles, as to other 
 members. Rensselaer and Washington Plank Road Company vs. Wet- 
 sel, 21 Barb., 56. 
 
 The above views, as to subscriptions being revocable, are, however, 
 overruled, and it is now held that a subscription for stock, made before 
 the incorporation of the company, is obligatory upon the subscriber, and 
 cannot be revoked. Lake Ontario, Auburn, amd New York Railroad 
 Company vs. Mason, 16 N. Y., 451 ; Rensselaer and Washvngton Plank 
 Eoad Compariy vs. Barton, 16 N. Y., 457, note ; Buffalo and Neto 
 York City Railroad Company vs. Dudley, 4 Kern., 336. 
 To be enforceable, the responsibility of a subscriber must be per- 
 
838 OF THE COMPLAINT. — § 148. 
 
 fected. WLere, therefore, duplicate lists were used, and that signed by 
 the defendant was not duly filed in the secretary of state's office, it was 
 held that an action against him could not be maintained. Erie and 
 New York City Railroad Company vs. Owen, 32 Barb., 616. 
 
 A conditional subscription is void, as contrary to public policy, and 
 cannot be enforced. Fort Edward and Fort Miller Company vs. Payne, 
 15 1^. Y., 583 ; reversing same case, 17 Barb., 567 ; Troy and Boston 
 Railroad Company vs. Tihhets, supra. See also, as to a subscription 
 void on this account, and also for want of a mutual engagement on the 
 part of the company, Macedon and Bristol Plank Road Company vs. 
 Snediker, 18 Barb., 317. 
 
 An unauthorized extension of the undertaking, and increase of 
 capital, will exonerate original subscribers from liability. Macedon 
 and Bristol Plank Road Company vs. Lapham,, 18 Barb., 312. 
 
 The mere conferring of additional privileges upon the company will 
 not, however, have that effect. Poughkeepsie and Salt Point Plank 
 Road Company vs. OrijjUn, 21 Barb., 454. Nor will an increase of 
 capital, and extension, by authority of the legislature. Schenectady and 
 Saratoga Plank Road Company vs. Thatcher, 1 Kern., 102 ; Buffalo 
 and New York City Railroad Company vs. Dudley, 4 Kern., 336 ; 
 Northern Railroad Company vs. Miller, 10 Barb., 260. See also 
 White vs. Syracuse and Utica Railroad Company, 14 Barb., 559. See 
 likewise, as to the power to make a AeYiaXioia, Hamilton and Beamsville 
 Plank Road Company vs. Rice, 7 Barb., 157. Nor will the mere 
 existence of an illegal power in the articles of association, invalidate 
 them, when that power has never been exercised. Eastern Plank 
 Road Company vs. Vaughan, 4 Kern., 546 ; affirming same ease, 20 
 Barb., 155. 
 
 A payment of money, eo nomine, is not an indispensable condition 
 precedent to the validity of a subscription. If the subscriber have 
 credit for the amount, in another form, it will be a sufficient payment, 
 and he cannot afterward question its validity. Beach vs. Smith, 28 
 Barb., 254. 
 
 An original subscriber still remains liable for his subscription, 
 though, after a call made, and before it becomes payable, he has trans- 
 ferred his stock to a responsible party. Schenectady and Saratoga 
 Plank Road Company vs. Thatcher, 1 Kern., 102. 
 
 But where, before payment, stock agreed to be taken in a banking 
 association, was transferred, in good faith, and with the assent of the 
 company, the assignee was held to be substituted, and the original 
 subscriber exonerated from liability. Cowles vs. Crmnwell, 25 Barb., 413. 
 
 It is not necessary, as a condition precedent to the liability of an 
 individual subscriber, that a statutory deposit, if required, should be 
 
OF THE COMPLAINT, — § 148. 839 
 
 paid on his individual share. It is sufiScient, if the cash payments, by 
 whomsoever made, amount in -the aggregate to the sum required. Lake 
 Ontario, Auburn, and New York Railroad Company vs. Mason, 16 
 N. Y., 451 ; Rensselaer and Washington Plank Road CoTnpany vs. 
 Barton, 16 IST. Y., 457, note. 
 
 Nor is it essential, that the subscriptions to the articles of association 
 should all be on the same paper. If made at different places, on sepa- 
 rate sheets, they will, if filed together, be equally valid. Same pases. 
 See also, on the above points, Hamilton and Deansville Plank Road 
 Company vs. Rice ; and other decisions, above cited. 
 
 As to the form of a complaint, upon a subscription agreement of the 
 above natm-e, and the nature of proof which may be requisite, see Buf- 
 falo and New York City Railroad Compamy vs. Dudley, 16. 
 K Y., 336. 
 
 As to the power of a corporation, which has entered upon its func- 
 tions, and been recognized as such, to sue for calls, and the inability of 
 a defendant, under such circumstances, to resist payment, on the ground 
 of alleged defects in its organization, vide Black River and JJtica 
 Railroad Company vs. Barnard, 81 Barb., 258. 
 
 ( c. ) Shaeeholdees and Teustees. 
 
 Analogous to the above, is the responsibility of shareholders and 
 stockholders in incorporated companies, to the extent of any calls due 
 upon their shares, enforceable in an action by and for the benefit of a 
 creditor or creditors of such body ; and also the similar right of such 
 creditors, to resort to the accountability of trustees or directors, in the 
 event of their neglect or malfeasance in office. 
 
 It is not of course proposed to enter into the detail of the statutes 
 giving these remedies. A reference to some of the principal of them, 
 and to the cases immediately bearing upon the question of averment, will 
 be sufficient, leaving the matter for further and deeper research, in the 
 preparation of a pleading for this purpose. 
 
 The principal statute in relation to corporations for mining, mechan- 
 ical, or chemical purposes, was passed on the 11th of February, 1848. 
 It will be found at 3 E. S. (3d edition), p. 613. See especially sections ] 0, 
 12, 13, 14, 15, 18, and 24. As to banking corporations and associations, 
 vids chapter 236 of 1849, p. 340, amended by chapter 153 of 1853, p. 283 ; 
 and chapter 365, of 1859, p. 880. The general railroad act, will be 
 found in chapter 140, of 1850, p. 211. See especially section 10, as 
 amended by chapter 282, of 1854, p. 68 ; section 16, p. 614. And the 
 act for the incorporation of ocean steamship companies, chapter 228, of 
 1852, p. 302 ; sections 5, 6, 8, and 9. 
 
840 OF THE COMPLAINT. — § 148. 
 
 In relation to the special liability of railroad shareholders, for debts 
 owing to servants and contractors, under, the sections last referred to, 
 and the distinction between the liability under the original, and under 
 the amended measure, see Conant vs. Yan Sohaielc, 24 Barb., 87; and 
 Corning vs. McCullough, 1 Comst., 47, thei-e referred to. This peculiar 
 liability, only extends to laborers employed by the company itself, not 
 to those in the service of a contractor. A person in the latter category, 
 cannot recover for his services, against a stockholder who has paid his 
 calls in full. Gallagher vs. Ashhy, 26 Barb., 143. 
 
 As to the liability of a shareholder in an ocean steamship company, ■- 
 see Abbott vs. Aspinwall, 26 Barb., 202. The same case decided that 
 the liability of stockholders, under statutes of this description, is 
 several, and not joint ; each creditor has a separate remedy against 
 each stockholder. See also Eaton vs. Aspinwall, 6 Duer, 176. 
 
 And such liability will not be discharged under that statute, by pay- 
 ment of calls to the company itself, unless and until tt proper certificate 
 of payment of all calls, shall have been filed as required by the statute. 
 Same oases. 
 
 A fame covert, holding stock in a banking corporation, is liable, in 
 common with other stockholders, to an assessment for its debts. Matter 
 of Reciprocity Bank, 22 IST. T., 1. 
 
 Payment of debts of the company, to the amount of calls due from the 
 party sued, will, however, be a complete defence, in an action of this 
 nature. Garrison vs. Howe, 17 IST. T., 458. See also generally, as to 
 the measure of liability of stockholders in this respect. Remington vs. 
 King, 11 Abb., 278; Woodruff and-- Beach Iron WorltSNi,. Chittenden, 
 4 Bosw., 406. 
 
 An action of this nature is not maintainable, by a creditor, under a 
 mere executory contract, but only in respect of a debt actually due. 
 Garrison vs. Howe, supra. 
 
 In relation to the liability of stockholders, being rather that of part- 
 ners than of sureties, or guarantors, see Moss vs. Averell, 6 Seld., 449. 
 
 An action of this nature is maintainable, against a party holding a 
 mere equitable interest in the stock in respect of which it is brought. 
 Burr vs. Wilcox, 22 1^. Y., 551 ; affirming same case, 6 Bosw., 198. 
 
 As long as the company continues in business, several actions of this 
 nature are maintainable, and the most diligent will obtain priority. 
 The granting of a sequestration and appointing of a receiver, however, 
 on the insolvency of the company, in a general creditor's action, will put 
 a stop to all further proceedings of this nature ; and the further prose- 
 cution of one already commenced, after order for sequestration, though 
 before the actual appointment of a receiver, will be enjoined. Ramkine, 
 Receiver, vs. Elliott, 16 N. Y., 377 ; affirming same case, 14 How., 339. 
 
OF THE COMPLArNT. — § 148. 841 
 
 See also, as to stay of supplementary proceedings, in favor of a general 
 creditor's proceeding, Hammond vs. Hudson River Iron and Machine 
 Company, 11 IIow., 29. 
 
 As to the similar effect of the dissolution of a manufacturing corpora- 
 tion, under the special law relative to Herkimer county (chapter 361 of 
 1852, p. 5Y2), see Herkimer County Banlc vs. FurmoM, 17 Barb., 116 ; 
 Walker vs. Crain, 17 Barb., 119. 
 
 In order to sustain a suit of this nature, against shareholders in ^ 
 foreign corporation, the plaintiff must allege and show that, by the laws 
 of the state where such corporation was created, the corporation itself 
 would be competent to obtain the judgment or relief sought to be 
 obtained, and also that a several, instead of a general action is maintain- 
 able. McJDonottgh vs. Phelps, 15 How., 372. 
 
 To charge trustees with individual liability, by reason of an omission 
 to file and publish the annual report required by law, the debt sought 
 to be enforced must be contracted during, or must have existed at the 
 time of a subsequent default. Ga/rrison vs. Howe, 17 1^. T., 458 ; 
 Shaler and Hall Quarry Company vs. Brewster, 10 Abb., 464. 
 
 As to the averments which may be admissible or proper, in actions 
 of this last description, see Andrews vs. Murray, 9 Abb., 8 ; Ogden vs. 
 Bollo, 9 Abb., 8, note. 
 
 As to the inability of directors, to effect a valid sale of the whole 
 corporate property, as against any recusant stockholder, see Abhott vs. 
 The Hard Rubber Company, 20 How., 199 ; 11 Abb., 204; affirmed, 
 21 How., 193. 
 
 In Peckham vs. Smith, 9 How., 436, it was held sufficient, in an action 
 against a stockholder, to allege the recovery of a judgment against the 
 company, and the other facts on which the liability of the defendant 
 attached, without alleging the consideration or circumstances of the 
 original indebtedness to the plaintiff. 
 
 See also same case, as to the right of stockholders, or their assignees, 
 to recover back from the company, subscriptions paid by them for carry- 
 ing out a purpose which has subsequently failed. 
 
 The complaint must also show that the parties sought to be held re- 
 sponsible, were stockholders at the time the plaintiff's debt .was in- 
 curred. Young vs. I^ew York and Liverpool Steamship Company, 10 
 Abb., 229. 
 
 As to the sufficiency of a complaint, averring that the defendants were 
 shareholders, together with the contracting of the plaintiff's debt, pro- 
 ceedings taken by him, recovery of judgment thereon, and the issuing 
 and return of an execution unsatisfied, whilst they remained such, 
 see Witherhead vs. Allen, 28 Barb., 661. 
 
 In an action against a stockholder, it is not necessary to aver insol- 
 
842 OF THE COMPLAINT. — § 148. 
 
 vency of the coi-poratiou, except iu those cases where the liability de- 
 pends upon such insolvency, or the creditor is required to exhaust his 
 remedy against the corporation in the first instance. In other cases, the 
 latter has his election to sue either. Perkins vs. Church, 31 Barb., 84. 
 
 {d.) Contribution and Subrogation. 
 
 One of several sureties, who has paid the debt of the principal, may 
 maintain an action against the others, for their proportional parts of the 
 total amount, nor is parol proof admissible, to qualify such liability. 
 Norton vs. Coons, 2 Seld., 33. 
 
 A discharge of one surety, from the legal liability to answer for the 
 demand against the principal, will however be a bar to an action of this 
 nature. Tobias vs. Rogers, 3 Kern., 59. 
 
 So also will be an agreement, between the sureties themselves, that 
 one should indemnify the other. Barry vs. Ransom, 2 Kern., 462. 
 
 In the analogous action against his principal, the surety, though 
 entitled to indemnity against ordinary costs, cannot recover those of 
 putting in a manifestly untenable defence. Holmes vs. Weed, 24 
 Barb., 646. 
 
 As to the right of the part owner of a vessel, to maintain an action 
 for contribution by other part owners, toward a demand paid by him, 
 see Wood vs. Merritt, 2 Bosw., 368. 
 
 As to the right of the owner in fee, to compel contribution on the 
 part of a dowress, of her share of taxes and assessments, chargeable upon 
 real estate, see Linden vs. Graham, 34 Barb., 316. 
 
 See also as to the right of a stockholder in a railroad corporation, when 
 sued by a laborer or servant, to enforce payment by the others of their^TO 
 rata proportion of the recovery against him. Laws of 1854, p. 614, chap- 
 ter 282, section 14, annulling the general act of the 2d of April, 1860, 
 above referred to in last subdivision. 
 
 As between wrongdoers, no claim for contribution can be made ; each 
 must bear his own burden. So held, with reference to a claim made by 
 a dehnquent trustee of a manufacturing corporation, held liable by one 
 of its creditors, as against, his cotrustees, similarly liable. Andrews vs. 
 Murray, 33 Barb., 354. 
 
 As to the right of the parties to an accommodation note, to look for 
 indemnity to a third person, who has received the whole benefit of it, 
 see Neass vs. Mercer, 16 Barb., 318. 
 
 In a complaint for relief of this nature, allegations of the making of 
 the original obligation, and the payment of it by the plaintiff, are Suffi- 
 cient to establish a ease against the defendant. He is not bound to 
 state what proportion the defendant ought to pay ; the law settles that : ■ 
 nor is be bpund to state whether any thing has been repaid to him, that 
 
OF THE COMPLAINT. — § 148. 843 
 
 being matter of defence. Van Demarh vs. Vaji DemarJc, 13 How., 
 372. 
 
 A surety, -who pays the debt of bis principal, is entitled to a full sub- 
 rogation to every remedy wbicb tlie creditor so paid off possessed, and, 
 for this purpose, to an assignment of the original debt, and the secu- 
 rities for it ; and also to the benefi;t of any judgment which may have 
 been recovered. Goodyear vs. Watson, 14 Barb., 481. 
 
 Where one of several joint debtors paid a judgment, partly out of his 
 own money, and partly by the indorsement of a third party, an assign- 
 ment of the judgment for the benefit of that party was sustained, and 
 held enforceable, as an indemnity to the indorser. HarbeoTc vs. Vander- 
 bilt, 20 N. Y., 395. So also a surety, paying a joint judgment, may take 
 an assignment of it to himself, and enforce it, as against his principal. 
 Alden vs. Clark., 11 How., 209. Or an assignment for his benefit to a 
 third person will, in like manner, be valid. Eno vs. Crooke, 6 Seld., 60. 
 
 In The People vs. Schuyler, 4 Comst., 173, the sureties of the sheriff, 
 on payment of a judgment against him for a wrongful seizure, were held 
 entitled to be subrogated to an indemnity which he had taken. 
 
 Where the creditor had, by agreement, rendered valueless a security, 
 to which the surety was entitled to be subrogated, the latter, who had 
 paid the judgment in ignorance of such agreement, was held entitled to 
 recover against the former, the amount of the defeated security. Chester 
 vs. Bank of Kingston, 16 IST. Y., 336. 
 
 The discharge of security for the liability, taken by one surety for his 
 own indemnity, will defeat his right to claim contribution from others. 
 All have an equitable interest in a security so taken, and, to the extent 
 to which they are injured by .such relinquishment, the fact of it will be 
 a defence. Ramsey vs. Lewis, 30 Barb., 403. 
 
 Where an indorser gave his renewal notes, on separate discontinuance 
 of an actiort brought against him and the maker, but omitted to pay 
 them in full, he was held not to be entitled to demand an assignment 
 of a judgment subsequently taken against the maker, though such was 
 the agreement, at the time the notes were given. Payton vs. Wight, 2 
 Hilt., 77. 
 
 An accommodation acceptor is entitled to be subrogated to the ben- 
 efit of an action by the holder against the drawer, on payment of the 
 amount due to the plaintiff in such action. Bank of Toronto vs. Hvm,ter, 
 4 Bosw., 646 ; 20 How., 292. 
 
 A person damnified by the acts of a wrongdoer, cannot claim to be 
 subrogated to an indemnity, which such wrongdoer may nave takeu, 
 ao-ainst liability in respect of his wrongful act. McGay vs. Keilhacle, 
 14 Abb., 142. 
 
844 OP THE COMPLAINT. — § 149. 
 
 (a.) Geneeal Obseetations as to Pleading. 
 
 Geneeal Obseevations as to Pleading. 
 
 In relation to the remaining actions wliicli fall under this class, a few 
 general observations as to the structure of the complaint, as applicable 
 to all without distinction, will be useful, before entering into the details 
 belonging to each specific branch. 
 
 In actions of this description, the statement of the cause of action, when 
 arising out of numerous items, may be made briefly, according to the old 
 practice, and considerable latitude of implication will be allowed. As 
 a general rule, the old form of count in indebitatus assumpsit, may be 
 substantially followed, and the complaint will be good, provided it con- 
 tains, either by way of express averment or necessary implication, a 
 statement of all the substantial facts necessary to constitute a cause of 
 action. See Allen vs. Patterson, 3 Seld., 476. See also, Moffatt vs. 
 Sackett, 18 IST. Y., 522 (525). The specific items need not be set out, 
 the remedy of the defendant being, if he requires more detailed infor- 
 mation, to move for a bill of particulars. Oudlipp vs. Whi^le, 4 Duer, 
 610 ; 1 Abb., 106 ; Graham vs. Oammann, 5 Duer, 697 ; 13 How., 360 ; 
 Beehman vs. Plainer, 15 Barb., 550. So far as Neefus vs. Kloppen- 
 hurgh, 2 C. P., 76, seems to prescribe a stricter rule than the above, it is, 
 of course, overruled. 
 
 But, when difi'erent classes of items have accrued to the plaintiff, in 
 respect of different interests, each class of items should be stated by way 
 of a separate cause of action, with the appropriate averments. With 
 this restriction, any number of items may, however, be properly inserted 
 in a single count. Adams vs. Solley, 12 How., 326. 
 
 Nor must the plaintiff's demands, when stated in a single count, leave 
 it indefinite or uncertain, whether he seeks to recover upon one or more 
 separate causes of action. If so, it will be obnoxious to a. motion under 
 section 160. Clarh vs. Farley, 3 Duer, 645. As to the necessity of a 
 definite statement, with a view to show an indebtedness actually accrued, 
 see Chamberlain vs. Kaylor, 2 E. D. Smith, 134. See also, as to the 
 necessity of some legal liability being shown, on which to sustain an im- 
 plied promise, Orojpsey vs. Sweeny, 27 Barb., 310 ; 7 Abb., 129. 
 
 And, where the indebtedness has accrued under different contracts, 
 it is admissible, and may be better, to divide the complaint into sepa- 
 rate counts, one applicable to each contract. See Accome vs. American 
 Mineral Company, 11 How., 24 ; Staples vs. Ooodrich, 21 Barb., 317. 
 And each statement must be complete in itself, and also sufficiently 
 definite, or -it will be impeachable, by motion in the latter, and by demur- 
 rer, in the former category. Chesbrov^h vs. New York and Erie 
 
OF THE COMPLAINT. — § 149. 845 
 
 Railroad Coimpa/)iy, 26 Barb., 9 ; 13 How., 557 ; Faray vs. Lee, 10 
 Abb., 143. 
 
 But tbe old system of stating the same cause of action several times 
 over, in diiferent counts, is, under the Code, wholly inadmissible. See 
 OhurchiU vs. Churchill, 9 How., 562, and numerous other cases here- 
 tofore cited in book YI. 
 
 (b.) Balance of Account. 
 
 In a complaint for an indebtedness of this description, a general alle- 
 gation, in the nature of the old vndehitatus count, will be sufficient, 
 without any statement of details. Yide Cudlvpp vs. Whijpjple, above 
 referred to. 
 
 But, on the face of that complaint, the demand must be single in its 
 nature; or, if stated , in one count, it will be objectionable for uncer- 
 tainty. Clark vs. Farley, su^a. 
 
 In Orahnm vs. Camman, 13 How., 860 ; 5 Duer, 69T, also above 
 noticed, a short form of .complaint upon an account stated, was sus- 
 tained by the court. 
 
 As to what will be suiEcient to constitute a settled account, the bal- 
 ance on which will be recoverable as admitted, and the account not 
 allowed to be opened, see Powell vs. Noye, 23 Barb., 184. 
 
 The same principle was applied, and, where an account had been 
 delivered and was not objected to, but the balance claimed thereon was 
 paid at the time, it was held to be conclusive as an account stated, and 
 that it could , not be afterwards reopened, without affirmative proof of 
 mistake or fraud, in JLockwood vs. Thome, 1 Kern., 170 ; reversing same 
 case, 12 Barb., 487. 
 
 On a subsequent trial of the same case, the above strict doctrine was 
 qualified, and it was held that a mere omission to object, is only suffi- 
 cient to raise ,a presumption of correctness, and that even an adjust- 
 ment and payment of the balance, is repellable, by evidence of the 
 course of dealing between the parties, or other circumstances, explaining 
 or qualifying the implied admission, the impeachments being made 
 within a reasonable time, to be determined from all the attending cir- 
 cumstances. Lockwood vs. Thorne, 18 IST. Y., 285 ; reversing same 
 case, 24 Barb., 391. 
 
 See definitions in same case, as to what will, or will not, be sufficient 
 to constitute an account delivered, a stated, or a settled account respect- 
 ively, as given by Pratt and Selden, J. J., 18 IsT. Y., 288 to 290, and 292. 
 As ta the insufficiency of a mere delay in adjustment, to constitute 
 an account stated or settled, see also Porter vs. Ldbach, 2 Bosw., 188. 
 [pie giving of a promissory note 'is prima facie evidence of an 
 
846 OF THE COMPLAINT. — § 149. 
 
 accounting, and settlement of all demands between the parties, but 
 subject to explanation. Lake vs. Tyson, 2 Seld., 461. 
 
 (c.) Monet Lent oe Advajjiced. 
 
 A firm is not responsible for an advance to its mere agent, though 
 having a partial interest in the profits of particular transactions, unless 
 it is shown to be on the account, or for the benefit of the partnership. 
 Porter vs. Lohack, 2 Bosw., 188. 
 
 A commission merchant, making advances on the faith of goods con- 
 signed to him, must rely, in the first place, upon the proceeds of those 
 goods, and must show that fund to be insufiicient, before he can recover 
 against the consignor personally. Gihon vs. Stanton, 5 Seld., 476. 
 See also Mottram vs. Mills, 2 Sandf , 189. 
 
 Where a note, given as security on a loan of money, was surrendered 
 by the holder, on a promise to substitute another for it, he was held 
 entitled to recover on the original consideration, on a refusal to perform 
 the promise. Westcott vs. Keeler, 4 Bosw., 664. 
 
 Money loaned in contemplation of a contract prohibited by statute, 
 but not malum in se, may be recovered back, in an action founded on 
 the original consideration, or in One for money had and received. 
 Oneida Bank vs. Ontario Bank, 21 N. Y., 490. 
 
 {d.) Money Paid. 
 
 One class of cases falling strictly within the scope of this division, 
 has been, to a certain extent, anticipated in a previous section, under the 
 head of Contribution. 
 
 The real cause of action by a subsequent indorser, in respect of moneys 
 paid on taking up a promissory note, falls under this class, and is, as 
 against each prior indorser, a separate liability, dating from the time of 
 payment. Barker vs. Cassidy, 16 Barb., 177. 
 
 An action in this form on a note remaining unpaid, will be wholly 
 unavailing to charge indorsers as such. Cottrell vs. ConUin, 4 Duer, 45. 
 
 A corporation cannot recover back money paid by it on an usurious 
 transaction. The prohibition of the statute (Laws of 1850, chapter 172) 
 extends equally to the assertion of such a claim, as to setting up usury 
 as a defence, by a body of this description. Butterworth vs. 0''Brien, 
 23 K Y., 275. ; affirming same case, 28 Barb., 187 ; 16 How., 503 ; 
 7 Abb., 456. See also dicta, in the case of Curtis vs. Leavitt, 15 
 N. Y., 9, referred to at close of opinion of Comstock, J. 
 
 But, as regards natural persons, a right of action to recover back money 
 so paid, is expressly given by statute. Tide 1 K. S., 772, sections 3, 4. 
 
 Where an accommodation note had been loaned to a third party, who 
 had received the exclusive benefit, and promised, to save the'otliers 
 
OF THE COMPLAINT. — § 149. 847 
 
 harmless, tlie accommodation indorser, on subsequent payment to the 
 holder, was held entitled to recover back the amount against such 
 third party, as being in fact the principal debtor. Neass vs. Mercer, 15 
 Barb., 318. 
 
 Money paid, either by the party, or by his surety, in satisfaction of a 
 judgment, subsequently reversed, may, on such reversal, be recovered 
 back. Lott vs. Swezey, 29 Barb., 87 ; Garr vs. Martin, 1 Hilt., 358. In 
 strictness however, the action is more properly for " money had and 
 received." See next head. 
 
 When, by agreement, one party had subscribed for stock and paid the 
 deposit, for the benefit of another, the former was held entitled to re- 
 cover back, as against the latter, the amount of a subsequent instalment, 
 which he had been compelled to pay, notwithstanding a repudiation of 
 the bargain, and a refusal to accept a transfer of the stock, when ten- 
 dered. Orr vs. Bigelow, 4 Kern., 556. 
 
 Payments made by the vendee on a contract void in law, cannot be 
 recovered back by him, when the vendor is ready and offers to perform. 
 Collier vs. Coates, 17 Barb., 471. But otherwise, where a payment of 
 this description has been induced by false representations on the part of 
 the vendor. HiUman vs. Strauss, 2 Hilt., 9. Nor is the defence of 
 illegality available, as against an innocent party. Merritt vs. Millard, 
 5 Bosw., 645. 
 
 No recovery can be had by parties to an illegal contract, in respect 
 of moneys paid, as between themselves. Sharp vs. Wright, 35 Barb., 236. 
 
 Money paid on a policy of insurance, may be recovered back by the 
 insurers, if paid in entire ignorance of circumstances, which, if known, 
 would have enabled them to resist the claim ; but not so, if such insur- 
 ers knew, or by inquiry, could have ascertained, the grounds on which 
 they could have so resisted. Mutual Life Insurance Gompany of New 
 Torh vs. Wager, 27 Barb., 354. 
 
 In relation to voluntary payments, the general rule is that, if one 
 person pays the debt of another, without request or compulsion, or cir- 
 cumstances which amount to compulsion, such payment is voluntary, 
 and, if made, is made in the payer's own wrpng, and cannot be recover- 
 ed back, ^eelngraham vs. Gilbert, 20 Barb., 151 ; Ogden vs. Des Arts, 
 4 Duer, 275 (284) ; Lowber vs. Selden, 11 How., 526 ; Nixon vs. 
 Jenkins, 1 Hilt., 318 ; Hearne vs. Keene, 5 Bosw., 579. But any 
 request of the defendant, or any authority, express or implied, to make 
 the payment, will take the case out of the operation of the rule. See 
 last case. 
 
 So as to moneys paid voluntarily, to a person authorized to receive 
 them, if collectable, upon an unfounded claim of right, but without 
 misrepresentation or mistake, or objection or protest on the part of the 
 
848 OF THE COMPLAIKT. — § 149. 
 
 payer. New Yorlc and Harlem Bailroad Oortvpcmy vs. Marshy 2 
 Kem., 308. The payment there in question was to a tax collector, in 
 respect of an actually void assessment. So also, as to money paid for 
 redemption of taxes, "on property sold by the vendor, with a covenant 
 for quiet enjoyment, such payment being made, without request or 
 eviction. McCoy vs. Lord, 19 Barb., 18. 
 
 And a party, having paid an assessment on his property, cannot after 
 wards maintain an action to recover back the amount, on the ground 
 of irregularity or error in making it. He should have objected at the 
 time. Sandford vs. Mayor of New York, 33 Barb., 147; 20 How., 
 198 ; 12 Abb., 23. E"or will a misapplication of the amount paid, by 
 crediting it to another lot, be ground for the action. Perdue vs. Mayor 
 of New Torh, 12 Abb., 31. 
 
 So likewise, as to money incautiously paid, under a mistake not 
 clearly made out. Taylor vs. Bsavers, 4 E. D. Smith, 215. See also 
 Mutual Life Insurance Company of New Torh vs. Wager, 27 Barb., 
 354, above cited. 
 
 And money voluntarily paid upon a claim of nght, without mistake 
 or ignorance of the facts, cannot be recovered back. Forrest vs. Mayor 
 of New Torh, 13 Abb., 350. I^or will the fact that the payment was 
 made under protest, nullify its legal effect. See also Fleetwood vs. 
 City of New Torh, 2 Sandf., 475. 
 
 But where a payment, though in fact of the debt of another, is 
 made under circumstances of duress, or of imminent risk or damage 
 to the party paying, the rule will not apply, and he may maintain an 
 action. 
 
 So held, as to payment of taxes, by a person whose property is sub- 
 ject to distress, or who is also personally liable. Lageman vs. Klop- 
 penburg, 2 E. D. Smith, 126. As to payment of the entire taxes on 
 real property, by a life tenant, in order to protect her estate from the* 
 neglect of the owner of the fee to contribute his fair proportion. 
 Graha/m vs. Dunnigan, 4 Abb., 426 ; 6 Duer, 629. 
 
 As to payment of an assessment by mistake, under threat of imme- 
 diate enforcement. Allen vs. The Mayor of New Torh, 4 E. D. Smith, 
 404 (Ingraham, J., dissenting). As to payment of official fees, illegally 
 exacted, but upon denial to afford required information, without their 
 payment. Townsend vs. Dyckman, 2 E. D. Smith, 224. 
 
 The mere liability to ouster, on the suit of a superior landlord, is suf- 
 ficient to protect an under-tenant, in paying rent to him, without suit 
 or even demand, and to render it a valid payment, to the use of his 
 irameaiate lessor. Pech vs. Ingersoll, 3 Seld., 528. The same is the 
 case as to money paid on a subsequently reversed judgment, though 
 paid at once, and not under actual duress. It is sufficient, if the "pay- 
 
OF THE COMPLAINT. — § 149. 849 
 
 ment, when made, could be compelled by law. Lott vs. S^oee,2y, 29 
 Bavb., 87 ; Oarr vs. Martin, 1 Hilt., 358. 
 
 As to an over-payment of freight, made under protest, by the owner 
 of goods to a carrier, in order to obtain possession of them. Har7nony 
 vs. Bingham, 2 Kern., 99 ; affirming same case, 1 Duer, 209. See 
 also, as to the recovery of an overcharge of duties, allowed in account 
 by mistake, Eenard vs. Fiedler, 3 Duer, 318. 
 
 Tlie rule denying a recovery in respect of a voluntary payment, being 
 in its natm-e harsh, will not be applied, in cases where a subsequent 
 pi'oinise of repayment has been made. Such a promise is sufficiently 
 supported by the actual payment, and may be enforced, against the act- 
 ual maker, though not against another person jointly interested. Nixon 
 Ys. JenJcins, 1 Hilt., 318. 
 
 Moneys paid by the purchaser, on account of a contract subsequently 
 rescinded by the vendor, may be recovered back. Main vs. King, 8 
 How., 535 ; Fancher vs. Ooodman, 29 Barb., 315. See also next sub- 
 division. 
 
 So also, as to money paid by mistake, by the owner of lands, for pur- 
 chase of a non-existent tax title. Martin vs. MoCormick, 4 Seld., 331 ; 
 reversing same case, 4 Sandf , 366 ; Gardner vs. The Mayor, die, of 
 Troy, 26 Barb., 423. 
 
 "Where the vendee is ready, and the' vendor fails to perform a con- 
 tract, deposit-money paid by the former may be recovered back by 
 him. Flynn vs. McKeon, 6 Duer, 203. 
 
 Money paid at the request of a corporation, may be recovered back 
 on the ordinary assumpsit, even although the contract on which such 
 payment was made, was not binding on the corporation, as being ultra 
 ' vires. Parish vs. Wheeler, 22 E". Y., 494. 
 
 See also cases cited in next subdivision, as to an action for money 
 had and received, under circumstances analogous to those above stated. 
 
 {e.) Monet Had and Eeceived. 
 
 Many of the cases falling under this head are scarcely distinguishable 
 from those coming under the last head, especially as regards those in 
 relation to a reversed judgment, or an unperformed contract. 
 
 In Hoss vs. Curtis, 30 Barb., 238, it is stated as an elementary prin- 
 ciple that, where one, person receives money for another, and the law 
 makes it the duty of the receiver to pay it to the person for whom or 
 for whose use it is received, a promise to pay it in accordance with the 
 duty is always presumed, and a privity established, as matter of law, 
 between the parties. See likewise general principle, as stated in Colh 
 vs. Dow, 6 Seld., 335 (341). 
 
 Money received by the supervisor of a town, to be applied in pay- 
 VoL. I.— 54 
 
850 OF THE COMPLALNT. § 149. 
 
 ment of certain bonds, was therefore held, in that ease, to be recover- 
 able from him, in a suit by the bondholders, for whom he so held it as 
 depositary. 
 
 A bare averment, according to the old forms, will not be sufficient in 
 a complaint of this nature ; the facts which show the receipt of the 
 money by the defendant, and that such receipt was not on his own 
 account, but for the use of the plaintiff, should be expressly alleged, 
 or demurrer will lie. Lienan vs. Lincoln, 2 Duer, 670 ; 12 L. 0., 29. 
 See also CushingJiam vs. Phillips, 1 E. D. Smith, 416.' 
 
 Money paid by the vendee, under an uncompleted contract, subse- 
 quently rescinded by the vendor, may be recovered back by the vendor, 
 as money had and received. Utter vs. Stuart, 30 Barb., 20. See 
 sundry cases cited in last subdivision. See likewise, as to a contract 
 rescinded for fraud, /iSeamoOT. vs. Low, 4 Bosw., 337. 
 
 A deposit paid on a sale, induced by misrepresentations, may be 
 recovered back, on a refusal to complete. Huicheon vs. Johnson, 33 
 Barb., 392. So also, as to moneys paid in contemplation of a future 
 contract, never in fact procured. Phelps vs. Bostwick, 22 N. T., 242. 
 
 But if the purchaser retain any benefit under the contract, he cannot, 
 whilst so retaining it, maintain an action of this description. Ooelth 
 vs. White, 35 Barb., 76. 
 
 Money loaned in contemplation of a contract, prohibited by statute, 
 but not •malnim in se, may be recovered back, either as money advanced, 
 or, on a disaffirmance of such contract, as money had/ and received. 
 Oneida Bcmh vs. Onta/rio Bank, 21 IST. Y., 490. 
 
 Money paid in violation of the statute against betting and gaming, 
 may be recovered back, by an action in this form. Betts vs. Bache, 
 14 Abb., 297 ; affirming same case, 23 How., 197 ; 14 Abb., 297. 
 
 The defence of illegality is not available, as against a party who has 
 paid money, in ignorance of its existence. Merritt vs. Millard, 5 
 Bosw., 645. ■ 
 
 An action is maintainable for money paid on a contract, which, at 
 the time of its making, was in fact impossible of performance. Briggs 
 vs. VanderUlt, 19 Barb., 222. See also Bonesteel vs. The Same, 21 
 Barb., 26. In the former of these cases, it is held that this is the only 
 proper form of action under such circumstances, and that a complaint 
 for money advanced, or money paid, will not lie. 
 
 An action of this description has been held to lie in the following 
 cases : 
 
 By a donee, inter vivos, against the representative of the donor, who 
 had, subsequently, collected the fund given. Penfield vs. Thayer 2 
 E. D. Smith, 305. ' 
 
 By continuing partners, entitled to the assets of a dissolved firm, 
 
OF THE COMPLAINT. — § 149. 851 
 
 against the outgoing partner, for moneys collected by him, contrary to 
 such understanding. jRoss vs. West, 2 Bosw., 360. 
 
 By a retiring member of a building association, for past subscriptions, 
 to the return of which he is entitled under its articles. Wetterwulgh 
 vs. Knickerbocker Building Association, 2 Bosw., 381. 
 
 Against the supervisors of a county, for the return of a tax illegally 
 levied. Hill v^. Board of Supervisors of Livingston, 2 Kern., 52 (62, 
 per Allen, J.). A municipal corporation is not responsible, for money 
 received by its collector for redemption of taxes. The latter acts in such 
 capacity as a public officer, and not as agent. Onderdonk vs. City 
 of Brooklyn, 31 Barb., 505. 
 
 Against a stakeholder of moneys, deposited on an illegal wager, even 
 though he have paid the amount over, by direction of the plaintiff. 
 B^ickmanv?,. Pitcher, 1 Comst., 392; Storey \s. Brennan,16'H.Y., 
 624 ; 0''Maley vs. Eeess, 6 Barb., 658 ; Ilendrickson vs. Beers, 6 
 Bosw., 639. 
 
 Contractors, using the bills of the plaintiff for supplies furnished, by 
 way of deduction, on a settlement with their laborers, were held liable 
 for the amount of which they had thus obtained the benefit, as for 
 money collected on account of the plaintiff. Beach vs. Hungerford, 
 19 Barb., 258. 
 
 "Where wheat in store, belonging to one party, had been sold, and its 
 avails received by another, through mistake, all parties concerned 
 were held to be liable, in an action of this nature. Cobb vs. Dow, 6 
 Seld., 335. 
 
 An action is maintainable against a defaulting agent, in respect of 
 moneys collected, and not paid over by him, without previous demand. 
 Hickok vs. Eickok, 13 Barb., 632. 
 
 So also, as to moneys received by an ageilt, under a positive duty to 
 remit at once, and not remitted accordingly. Stacy ys. Graham, 4: 
 Kern., 492 ; affirming same case, 3 Duer, 444. 
 
 An agent, who has received money for sale of citj' bonds, is liable to 
 pay the same over to his principals, though the issue and sale of such 
 bonds was, in fact, unauthorized. Mayor, cjfec, of Auburn vs. Draper, 
 23 Barb., 425. 
 
 The duty of a treasurer is to pay over the moneys of his principal on 
 demand. On demurrer, the service of a summons was held to be 
 sufficient demand upon him. But, where no other -is made previous 
 to action, he should not, it seems, pay .the costs. Second Avenue Rail- 
 road Company vs. Coleman, 24 Barb., 300. Of course he can only 
 entitle himself to the benefit of this latter rule, by immediate payment 
 or tender of the debt itself, when so demanded. Delay may be construed 
 as a refusal. 
 
852 OF THE COMPLAINT.- — ^§ 149. 
 
 A mere depositary of money cannot be sued fur it, without previous 
 demand and refusal. Phelps ys. Bostwick, 22 Barb., 314. 
 
 Nor can an action be maintained against a foreign factor or agent, 
 until after default made by him on demand-, or receipt of positive 
 instructions to remit. Halden vs. Crafts^ 4 E. D. Smith, 490 ; 2 Abb., 
 301. So also, as to goods delivered to, or left Avith factors, for sale on 
 commission. Baird vs. Walher, 12 Barb., 298 ; 1 C. E. (IST. S.), 329 ; 
 Brink vs. Dolsen, 8 Barb., 337. 
 
 And if a foreign factor takes upon himself to make a remittance, 
 without receipt of directions from his principals, he does. so at his own 
 risk. Ueubach vs. Bother, 2 Duer, 227. 
 
 Where a particular course of dealing is prescribed between bailor 
 and bailee, the former cannot recover without compliance with it. So 
 held, as to a demand against a savings bank, without production of the 
 deposit-book, according to regulation, or proof of its loss or destruc- 
 tion. Wwrhus vs. Bowery Savings Bank, 5 Duer, 67. 
 
 A disputed claim to real estate and its profits, cannot be asserted by 
 means of an action of this nature. Carpenter vs. Stillwdl, 3 Abb., 459. 
 
 The outgoing member of a law partnership, retaining no interest, 
 was held not to be responsible for moneys come to the hands of the con- 
 tinuing partner after dissolution, received in a suit in which sucn con- 
 tinuing partner was originally, and remained tlie sole attorney of 
 record. Ayrault vs. Ohamherlavn, 26 Barb., 83. 
 
 ISTor will an action of this nature lie, for a subscription paid in for 
 shares subsequently refused to be delivered ; the remedy lies in an action 
 on the implied promise to deliver. Arnold vs. The Suffolk Bank, 27 
 Barb., 424. 
 
 Nor can such an action be brought for moneys received under a 
 contract, which does not bihd the party who has received it. It must be 
 founded on some duty incumbent on the defendant. Neville vs. Ne- 
 ville, 22 How., 500. 
 
 ") 
 
 (/.) WOEK AND LaBOE. 
 
 As to a complaint of this nature, and as to the power of a plaintiff, 
 ,on the one hand, to frame his complaint in general terms, without spe- 
 cification of items, and the necessity, on the other, of his so framing it 
 with sufficient precision and certainty, to indicate the real nature of his 
 cause of action, and the period within which it arose, see the com- 
 mencement of this section, and the cases there cited. 
 
 It may be convenient to divide this subdivision under two heads. 
 
 1. Work and labor performed, and materials furnished, in and about 
 a building or manufacturing contract. 
 
OF THE COMPLAINT. § 149. 853 
 
 3. "Work and labor performed, or services rendered, irrespective of 
 any claim for materials furnished. 
 
 ig.) 1. WoEK, Laboe, and Materials. 
 
 Under a contract for the manufacture and delivery of a specific article, 
 a complaint in this form is proper, rather than one for goods sold and 
 delivered. Prince vs. Down, 2 E. D. Smith, 525. The claim is not one 
 of the latter nature, or within the statute of frauds. Oourtright vs. 
 Stewart, 19 Barb., 455. 
 
 If the work has been done in pursuance of a contract, and that contract 
 has not been fully performed .in all its parts, and fulfy complied with in 
 all its requisitions, the action must be brought specially upon the con- 
 tract itself, and not on the ordinary assumpsit. Athmson vs. Collins, 30 
 Barb., 430 ; 18 How., 236 ; 9 Abb., 353. See especially, as to the necessity 
 of furnishing an architect's certificate when, and in the form called for 
 by the contract, Adams vs. The Mayor of New York,' 4 Duer, 295 ; 
 Martin vs. Leggett, 4 E. D. Smith, 255 ; Smith vs. Brady, 17 IST. Y., 
 173. As to the forjn and conclusiveness of such a certificate, when 
 granted, see Bloodgood vs. Ingoldsby, 1 Hilt., 388 ; and as to the con- 
 clusiveness of the architect's, testimony, see Tucker vs. Williaons, 2 Hilt., 
 562. And, in a complaint of this nature, performance, or facts excusing 
 a strict performance, must be fully and distinctly averred. Sm,ith vs. 
 Brown, 17 Barb., 431. 
 
 But, upon a special contract executed in all its parts, assumpsit may 
 be maintained, and the plaintiif has his election, either to sue in this 
 form, or upon the contract itself Farron vs. Sherwood, 17 IST. Y., 227. 
 This case settles this question, and removes the doubts expressed in 
 AtJcinson vs. Collins, 30 Barb., 430 ; 18 How., 235 ; 9 Abb., 353. 
 
 On an entire contract, full performance must, as a general rule, be 
 both averred and proved, before any recovery can be had, and, if the 
 complaint falls short in this particular, demurrer will lie, or the objec- 
 tion, whenever taken, will be fatal. And, under such circumstances, ac- 
 tual occupation by the party with whom the contract i& made, will not 
 necessarily be a waiver of strict performance. " A party is entitled to 
 retain, without compensation, the benefit of a partial performance, 
 where, from the nature of the contract, he naust receive such benefit, in 
 advance of a full performance, and is, by the contract, under no obliga- 
 tion to pay,, until the performance is complete." Smith vs. Brady, 17 N. 
 Y., 173 ; Cunningham vs. Jones, 20 IST. Y., 486 ; McConihe vs. New York 
 and Erie Bailroad Company, 20 ]^. Y., 495. As to unfinished work, see 
 White vs. Hewett, 1 E. D. Smith, 396. And work unskilfully performed, 
 or not performed according to contract, cannot, if not accepted, be recov- 
 ered for. Pullman vs. Corning, 5 Seld.,93 ; affirming same case, 14 Barb., 
 
854 OF THE COMPLAINT. § 149. 
 
 174 ; Ptke vs. B-utUr, 4 Comst., 360. See also, on demurrer, Smith vs. 
 Brown, 17 Barb., 431. And, as to the rule generally, Tuaker vs. Wil- 
 liams, 2 Hilt., 562 ; JSreville vs. Frost, 2 E. D. Smith, 62 ; Smith vs. 
 Coe, 2 Hilt., 365 ; Bohesteel vs. Mayor of New York, 22 K Y., 162 ; 
 affirming sa^ne case, 6 Bosw., 550. 
 
 Where a contract has been performed, the fact that the contractor 
 has done work in excess, does not affect his right to recover, if that 
 excess is not detrimental to the employer. Turner vs. Ilaight, 16 
 K T., 465. 
 
 Where, on the balance of conflicting testimony, it appeared that a con- 
 tract had been substantially performed, it was held, that a recovery 
 might be had. See Tucker vs. Williams, 2 Hilt., 562. See also White 
 vs. Hewett, 1 E. D. Smith, 395. A departure from the strict terms of 
 the contract, by the direction or assent of the employer, will also excuse 
 a strict "performance, as regards the period limited, and substitute per- 
 formance within a reasonable time. Green vs. Haines, 1 Hilt., 254. 
 
 Where, on a contract for manufacture and delivery of a large quan- 
 tity of bricks, payment was to be made for them per thousand, as burnt, 
 it was held, that, though the manufacturer himself abandoned the work, 
 he might recover for what he had actually done, and that the employ- 
 er's remedy lay in damages for the breach. Snook vs. Fries, 19 
 Barb., 313. 
 
 A right of election on the part of the employer, to have additions 
 made to a contract during its progress, must also be reasonably exer- 
 cised by him, or he will lose it. But, when exercised within a period 
 limited by the contract, the contractor will be bound to complete with- 
 in the time originally specified. Lauer vs. Brown, 30 Barb., 416. 
 
 When the terms of a contract are so uncertain, or have been so alter- 
 ed by the employer, that a strict performance is rendered virtually im- 
 possible, the contractor is entitled to recover for the work actually done 
 upon a quamtum meruit. Smith vs. Goe, 2 Hilt., 305. 
 
 When performance of a contract has been commenced, and is stop- 
 ped, without fault on the part of the contractor, he is also entitled to re- 
 cover upon a quantum meruit, for the work actually done. Jonss vs. 
 Judd, 4 Comst., 411. 
 
 So also, where the employer elects to albandon the contract, after 
 commencement, but before full performance, the contractor may recover 
 for work done, down to the receipt of notice of such abandonment. He 
 cannot, however, do so, for work continued after such notice. His further 
 remedy lies in damages for the breach. Goodwin vs. Kirker, 2 Hilt., 401. 
 
 As to the measure of recovery in such cases, being, for work and 
 labor, quantum meruit, for materials, qiumtum valebant, see Hauptman 
 vs. Catlin, 1 E. D. Smith, 729. 
 
OF THE COMPLAINT. — § 149. 855 
 
 A party suing in this form, cannot claim or enforce a mechanic's lien 
 for the amount ; the complaint for that purpose must be special, and 
 founded upon the statute. Foster vs. Poillon, 2 E. D. Smith, 556 ; 
 1 Abb., 321. 
 
 And a mechanic, making repairs on a specific article, under an agree- 
 ment to give credit for tlie price, has no lien, and cannot retain it, in 
 the event of the intervening insolvency of the employer. Fieldings vs. 
 Mills, 2 Bosw., 489. 
 
 Although work done under a special contract, may fail in strict com- 
 pliance with its terms, yet if actually accepted, or even impliedly, by 
 omission to object at the time, it may be recovered for. See Pullma?i vs. 
 Ccyr-ning, 5 Seld., 93 (98), per Taggart, J.; and Jewell vs. Schroepjpel, 4 
 Cow., 564, there cited. See also Greenes. Haines, 1 Hilt., 254. In such 
 a case, the remedy of the employer forany deficiencies, is by way of recoup- 
 ment, not resistance to the plaintiff's claim. See Bloodgood vs. Ingoldsby, 
 1 Hilt., 388 ( 392 ). But in a case of this description, the acceptance of 
 the work, or the waiver of strict performance, must be directly, and not 
 inferentially pleaded ; if not, the complaint will be defective. Smith vs. 
 Brown, 17 Barb., 431. 
 
 A party sending in a claim of this nature, must give all due credits, 
 or a judgment by default against the employer, will not avail him in a 
 subsequent action by the latter, to recover for the error, when discovered. 
 Smith vs. Weehs, 26 Barb., 463. 
 
 Work done under a contract, entered into on behalf of a municipal 
 corporation, without complying with the provisions of the statute in 
 such cases, cannot be recovered for, in a suit under the contract ; nor 
 will even an assessment, in respect of such work, and confirmation of 
 such assessment by the Common Council, avail to give it validity. 
 Brady Y?.. The Mayor of New Torh, 20 K Y., 312; 18 How., 343; 
 affirming same case, 2 Bosw., 173 ; 16 How., 432 ; 7 Abb., 234. But 
 see, as to the possibility of a recovery under such circumstances, on a 
 quantum meruit, where the work has been accepted, and gone into use 
 for public purposes, 20 IST. Y. ( 319 ), per Denio, J. In McSpedon vs. 
 The Mayor of New YorTc, 20 How., 395, it was held, however, that 
 where the contract under which printing had been done for the corpo- 
 ration of New York, was invalid, for non-compliance with the prescribed 
 statutory formalities, the work bo done could not be recovered for 
 on assumpsit, even though actually made use of The defendants could 
 make no contract,- or promise, express or implied, except as provided 
 by the statute. See also Bonesteel vs. The Mayor of New Ym% 22 
 N. Y., 162; afiirming same! cas<3, 6 Bosw., 550. 
 
 Au action for work and services, in putting up and taking down a 
 tent, used for meetings, during the canvass preceding a presidential 
 
856 OF THE COMPLAEfT. § 149. 
 
 election, is not illegal in its nature, and may be maintamea. Hwley vs. 
 Van Wagner, 28 Barb., 109. 
 
 As to the right of the master of a vessel, as general agent for the 
 owners, to bind them by his contract for necessary repairs, see Pro- 
 vost vs. Patchin, 5 Seld., 235. 
 
 (A.) WoKK, Labor, and Seevioes. 
 
 Where the claim arises under a special contract, not fully performed 
 at t\\e time of suit, the contract should be declared upon accordingly. 
 As a general rule, however, an action of this nature will rest in the 
 ordinary form of assumpsit, either specifically on a contract fully 
 completed, or on a quantum, mer-uit, in respect of a contract, abandoned 
 or unperformed. 
 
 "Where performance of a contract of this nature is rendered impossi- 
 ble, by sickness or death, or other unavoidable canse, without faxxlt on 
 the part of the employee, he, or his representatives, may recover on a 
 quantum meruit, for what he has done, though, in its origin, the contract 
 was entire in its nature, and for a specific period. Wolfed?,. Howes, 20 
 JS". Y., 197 ; affirming same case, 24 Barb., 174 ; Fahy vs. North, 19 
 Barb., 341. See generally Jones vs. Judd, 4 Oomst., 411. 
 
 But, in such -a case, the party can only recover for what his services 
 were reasonably worth, and the contract price will not govern. Cla/rh 
 vs. Gilbert, 32 Barb., 576. 
 
 On the other hand, where a party, engaged for a specific j)eriod, con- 
 tinues to render the same services after its expiration, he will be entitled 
 to further compensation at the same rate. The continuance is equiva- 
 lent to a fresh hiring. Yail vs. Jersey Little Falls Manufacturing 
 Company, 32 Barb., 564. 
 
 So likewise, if the employer, after making a contract for a specified 
 period, fails to employ for the entire time, he is liable for what has 
 been done, and in damages for the failure to continue. Nomieiibocker 
 vs. Hooper, 4 E. D. Smith, 401. 
 
 So also, if the employer discharge the employee, without just cause. 
 Heim vs. Wolf, 1 E. D. Smith, 70 ; Thompson vs. Wood, 1 Hilt., 93. 
 On an employment for a specified period, on a monthly compensation, 
 the payments of salary become due at the end of each month. Heim 
 vs. Wolf. And, in the event of a discharge, as above, the employee 
 may either sue for his salary, as it becomes due from time to time, or 
 bring an action for damages for breach of contract. Thompson vs. 
 Wood, supra, 1 Hilt. (96), per Ingraham, J. The same is the rule, 
 where the employee leaves the service of the employer on sufficient 
 cause, or in exercise of a right to rescind the employment, under the 
 contract of hiring. Gates vs. Davenport, 29 Barb., 160. 
 
OF THE COMPLAnSTT. § 149. 857 
 
 A party, under contract for a term, for compensation, payable at spe- 
 cific periods, if discharged by his employer, has three remedies, either 
 of which he may pursue, at his election. 1. Pie may, at the moment 
 the contract is broken, bring a special action to recover damages for the 
 breach ; 2. He may treat the contract as rescinded, and immediately 
 sue on the quantiim meruit for the work actually performed ; or, 3. He 
 may wait till the termination of the period for which lie was hired, and 
 claim, as damages, the wages agreed to be paid. He must, however, 
 make such election, and a suit in one form will be a bar to any other. 
 CdUyurn, vs. Woodworth, 31 Barb., 381. 
 
 Where laborers had been employed generally, to work under a for- 
 eign contract, it was held that, after their discharge, they could not 
 recover in an action of this nature, in respect of the perio^, after their 
 discharge, until they could return and obtain fresh employment, but 
 that their remedy, if any, lay in damages. Wiseman vs. Pa/naina Rail- 
 road Company, 1 Hilt., 300. 
 
 See generally, as to an action for work and labor performed for 
 another, without any special contract, and as to the measure of com- 
 pensation in such cases, Lewis vs. Triokey, 20 Barb., 387. See like- 
 wise, as to the rule of compensation for services actually rendered, but 
 in expectation of a specific compensation, under a contract, void under 
 the statute of frauds, Lish vs. Sfoerman, 25 Barb., 433. 
 
 An agreement for one year's services, to commence at a fature date, 
 is void under that statute, and, unless the performance of service be 
 commenced under it, no recovery can be had. Amhurger vs. Jfa/j-vin, 
 4 E. D. Smith, 393. 
 
 But when, under such an agreement, such performance has com- 
 menced, and the employer-has derived benefit from the services of the 
 employee, the latter, though the contract is terminable at any time by 
 either, is entitled to recover, on a quantum meruit, for the value* of 
 such services, and, in the absence of other evidence, the agreement may 
 be referred to as the measure of damages. Nones vs. Horner, 2 Hilt., 
 116 ; Little vs. Wilson, 4 E. D. Smith, 422. 
 
 An illegal contract cannot be recovered upon, and, if entire in its na-_ 
 ture, illegality in any portion of it will vitiate the whole ; nor can the 
 valid portion be sifted from the invalid. So held as to a contract em- 
 bracing lobby services. B,ose vs. Truax, 21 Barb., 361 ; Bigelow vs. 
 Law, 5 Abb., 455 ; Brown vs. Brown, 34 Barb., 533 ; Harris vs. 
 Roofs Executors, 10 Barb., 489. So also, as to a contract in relation to 
 convict labor, rescinded by the attorney-general as being unauthorized 
 by the statute. ' Nor, in such case, can a recovery be had on a quantum 
 m^cruit, for services actually performed before such rescission. Peck vs. 
 Burr, 6 Seld., 294. 
 
858 OF THE COMPLAINT. § 149. 
 
 But, if not illegal, and not tainted by actual fraud, the fact that a con- 
 tract of this nature is discreditable, will not prevent a recovery upon it. 
 Moore vs. Remington^ 34 Barb., 427. 
 
 Assistance in enforcing a claim against the state, by supplying proofs 
 and arguments, is not illegal, and a recovery may be had for services of 
 this nature. Sedgwick vs. Stanton, 4 Kern., 2S9 ; affirming same case, 
 18 Barb., 473 ; Brown vs. Brown, 34 Barb., 533. So also, as to the 
 rendering of assistance, in soliciting the increase of a revolutionary sol- 
 dier's pension, pursuant to the United States' statute of June, 1832. 
 Jenkins vs. Soaker, 19 Barb., 435. 
 
 In Oropscy vs. Sweeney, 27 Barb., 810 ; 7 Abb., 129, it was held that 
 services rendered by a wife, as such, could not be recovered for, though 
 her marriage was in fact invalid. And, in Moore vs. Moore, 21 How., 
 211, a claim for medical services rendered by a son to his father was 
 disallowed, on the ground that, at the time of render, the intention was 
 that they should be gratuitous. 
 
 A claim for necessary attendance in sickness upon a minor, absent 
 from home, and self-supporting, was refused to be allowed as against 
 the parent, and declared enfoi-eeable against the minor himself, in JbAw- 
 son vs. Gibson, 4 E. D. Smith, 231. 
 
 An architect, jointly employed by parties having several interests in a 
 building to be erected, may maintain an action against them jointly. 
 Beach vs. Raymond, 2 E. D. Smith, 496. 
 
 To entitle himself to his compensation for superintendence, he must, 
 however, bestow the necessary care and attention, and, if he fail to do 
 so, and give unwarranted certificates for defective work, to the damage 
 of his employer, he cannot recover. Peterson vs. Ranoson, 2 Bosw., 234. 
 
 In relation to an action by an attorney or counsellor, for professional 
 services rendered to his client, there is no longer any fixed standard or 
 provision, regulating the amount of compensation recoverable by him. 
 Under section 303 of the Code, that compensation is wholly left to the 
 agreement, express or implied, of the parties. 
 
 "Where an express agreement exists, the courts will execute that agree- 
 ment, though in cases of gross oppression, they have, in some few in- 
 stances, exerted their right to interfere, by means of their power over 
 parties standing in the above relation, as being officers of the court. See 
 this subject, heretofore considered, and decisions cited, in Book I., 
 chapter VII., section 30. 
 
 Where such a party sues on the ordinary assumpsit, the implied agree- 
 ment between him and the client stands on the ordinary footing,- and, 
 to entitle himself to recover, he must allege and prove the actual render 
 of services under an employment by his client, and the value of those 
 services. It seems that, where nothing is proved to have been done by 
 
OF THE COMPLAINT. — § 149. 859 
 
 him in a matter, he cannot recover a retainer fee, though actually re- 
 tained. Slow vs. Hamlin, 11 How., 452. 
 
 The allowances granted by the Code by way of costs, are allowances 
 to the party, and not to the attorney, nor do they furnish any standard 
 for regulating the measure of his compensation. Slow vs. Hamlm, 
 supra. That compensation, be it greater or less, is to be assessed 
 according to the actual value of his services. Moore vs. Westervelt, 3 
 Sandf., Y62 ; 1 C. E. (N. S.), 131 ; Garr vs. Mairet, 1 Hilt., 498. 
 
 In relation to the mode of proof of such services, and their value, see 
 Ghvssman vs. Merlcel, 3 Bosw., 402. 
 
 It is sufficient, in a complaint of this nature, to allege the indebted- 
 ness in general terms, nor need the items of account, or even the specific 
 suit in which services were rendered, be specified. The defendant's 
 remedy is to apply for a bill of particulars, or move on the ground of 
 uncertainty. And the complaint, being on an open account, embraces 
 any number of items, which may be proved. Beekman vs. Plainer, 15 
 Barb., 550. 
 
 Nor is an account actually delivered before suit, concliisive upon the 
 attorney, but it is competent for him to show that his charge on such 
 account was insufficient, and the services rendered, worth a larger sum. 
 Williams vs. Glenny, 16 E". Y., 389. 
 
 An agreement with his client in relation to his counsel fee for a spe- 
 cific service, is no bar to his general right to recover on assumpsit, for 
 other services in the same suit, rendered in his capacity of attorney'. 
 Easton vs. Smith, 1 E. D. Smith, 318. 
 
 But he cannot recover for sums paid by him to associate counsel, 
 unless by the express authority of his client. Goolc vs. Sitter, 4 E. D. 
 Smith, 253. 
 
 In relation to an agreement for specific and contingent compensation, 
 in respect of claims placed in an attorney's hands for collection, see 
 Mills vs. Fox, 4 E. D. Smith, 220. 
 
 Where, by the written terms of sale, a purchaser was bound to pay 
 the fees of the auctioneer, it was held that the latter might maintain an 
 immediate action for them, in his own name. Muller vs. Maxwell, 2 
 Bosw., 355 ; Bleecker vs. Franklin, 2 E. D. Smith, 93. 
 
 An auctioneer, employed to sell property, is entitled to be paid for 
 his expenses and services in bringing the property into notice, though 
 it be afterwards disposed of by private sale. He cannot, however, 
 charge commission, in a case where he has not himself introduced the 
 purchaser. Chilton vs. Butler, 1 E. D* Smith, 150. 
 
 A physician is entitled to recover, as against the party who actually 
 employs him, his fees for attendance upon, a third person at the request 
 of such party. The promisor has, however, a right to retract at any 
 
860 OP THE COMPLAINT. § 149. 
 
 time, and such retraction will bar any further claim. Homford vs. 
 Biggins, 1 Bosw., 441. 
 
 As to the claim of a clergyman for his salary as against a religious 
 corporation, on a contract made with its trustees de facto, without 
 notice of any illegality in their election, and before such illegality is 
 judicially determined, see Ehaugh vs. The German Reformed Church, 
 3 E. D. Smith, 60. 
 
 A public officer suing for salary without actual proof 'of service ren- 
 dered, is bound to prove that he has duly qualified, or he cannot 
 recover. JSalbecJc vs. Mayor of New York, 10 Abb., 439. See also, 
 as to an officer holding over, Tlie People vs. Tiemarin, 8 Abb., 359. 
 
 A party performing services under a licensed employment, cannot 
 recover without proof of his license. So held as to a public carman. 
 Ferdon vs. Cunningham, 20 How., 154. 
 
 And, since the recent revenue acts of the United States, a party exer- 
 cising any of the professions, on the license to practise which a stamp 
 duty is imposed, will doubtless be held to proof of his license, and pay- 
 ment of the duty. An averment of the fact on the faoe of his com- 
 plaint will certainly be expedient, and may probably be held necessary. 
 
 The decisions in relation to the commissions of brokers are 
 numerous. 
 
 To entitle him to recover, a person suing in this capacity, must allege 
 and prove an actual employment, and actual render of services, and 
 procurement of benefit to the employer pursuant to that employment. 
 See Chilton vs. Butler, 1 E. D. Smith, 150. 
 
 To sustain a recovery, the broker must obtain a contract which his 
 employer accepts, or such a contract as his employment authorizes him 
 to negotiate, made with some person, which that third person is able 
 and ready, or can be compelled, to perform. Barnes vs. Eobe7'ts, 5 
 Bosw., 73. 
 
 The mere introduction of a purchaser, from which introduction a sale 
 afterwards results, as between the parties themselves, will not enable 
 the introducer, when not a broker or agent by profession, to recover a 
 broker's commission. Lyon vs. Valentine, 33 Barb., 271. 
 
 One who deals with a regular broker, will be presumed to contract 
 with reference to the customs of brokers, whether known to him or not, 
 nor will it be necessary to aver in the complaint, the knowledge of the 
 defendant, or the details of the customs. Whitehouse vs. Moore, 13 
 .Abb., 142. 
 
 In Goodspeed vs. Rolvnson, l.Hilt., 423, a broker, who had actually 
 negotiated a sale, was held not entitled to recover commissions from the 
 vendors, though the agreement was drawn up by him, and the transac- 
 tion completed at his office, there being no evidence to prove his 
 
OF THE COMPLAIWT. § 149. 861 
 
 einployment by them ; but, what was given, tending rather to show 
 that his employment was for the purchaser. Where, too, the vendor 
 expressly refused to employ the broker, the mere fact that the latter 
 sent a purchaser ta him, with whom a sale was actually negotiated, 
 was held insufficient to entitle him to his commissions. Pierce vs. 
 Thomas, 4 E. D. Smith, 354. 
 
 Service, too, must be actually rendered under such employment. 
 The mere fact, that a broker, originally employed, had, after the ter- 
 mination of the employment, informed another that the defendant's 
 property was for sale, which information ultimately led to a purchase 
 through such second broker, was held wholly insufficient to entitle the 
 plaintiff to recover. liolley vs. Townsend, 2 Hilt., 34 ; 16 Plow., 125. 
 So also, where a broker had undertaken to sell" without authority, and 
 the purchaser, before any further negotiation, effected his purchase 
 directly from the vendor. Cushman vs. Gori, 1 Hilt., 356. So like- 
 wise, where the vendor first employed, then dismissed, and afterwards 
 re-employed his original broker, who finally effected a sale, it was held 
 that another, who had conducted intermediate negotiations, could not 
 recover. Ludlow vs. Carman, 2 Hilt., 107. So again, where, pend- 
 ing negotiations by one broker, to obtain an advance on an offer 
 already made, so as to approximate to a fixed price demanded by his 
 principal, another stepped in on behalf of the same purchasers, and 
 effected a sale, it was held the former could not recover. The contract 
 was special, and, unless a sale was effected according to its terms, an 
 action was not maintainable. Jacobs vs. Kolff, 2 Hilt., 133. 
 
 But, when a broker has actually introduced the parties, and actually 
 negotiated a loan or sale, he has earned his commissions, and is entitled 
 to recover them, even although the transaction may be subsequently 
 broken off, and his employer may ultimately derive no actual benefit 
 from it. Glentwoi'th vs. Luther, 21 Barb., 145 ; Van Lien vs. Byrnes, 
 1 Hilt., 133 ; Corning vs. Calvert, 2 Hilt., 56 ; Goldsmith vs. Oher- 
 rmier, 3 E. D. Smith, 121 ; Holley vs. Gosling, 3 E. D. Smith, 262. 
 And, if one broker be originally employed, but delegates his employ- 
 ment to another, and such other goes on and performs the service, with 
 the assent of the employer, such assent is equivalent to an original 
 employment. Holley vs. Gosling, supra. 
 
 But, to entitle the broker to recover, the service rendered must be 
 complete, and an agreement entered into, by which the parties are 
 legally bound. Barnard vs. Monnot, 34 Barb., 90. In that case, 
 negotiations, having been broken off by the parties, and a new contract 
 subsequently made between th-em as principals, for sale of part only of 
 the property originally contemplated, the broker was held not to be 
 entitled to any commission. 
 
862 OP THE COMPLAINT. — § 149. 
 
 Where the negotiation results in a pui-chase, it is immaterial whether, 
 after introduction, the principal goes on and completes the transaction 
 in person ; he cannot, by doing so, evade the payment, and the original 
 introduction will be sufficient ground for a recovery. Chilton vs. 
 ButUr, 1 E. D. Smith, 150 ; Morgan vs. Mason, 4 E. D. Smith, 636 ; 
 Ludlow vs. Carman, 2 Hilt., 107 (112). 
 
 But, pending any negotiations, the parties are at perfect liberty to 
 take the matter into their own hands, and, if a sale be effected in good 
 faith, to a person not originally introduced by the broker, he will not be 
 entitled to any commission whatever. Chilton vs. Butler, 1 E. D. 
 Smith, 150. 
 
 As to the liability of one broker to another, for a commission agreed 
 to be divided, see McLaughlin vs. Barnard, 2 E. D. Smith, 372. 
 
 See also, as to the apportionment of a specified rate of compen., 
 sation amongst parties who have concurred in rendering the services 
 by which that compensation has been earned. JEly vs. Stafford, 36 
 Barb., 251. 
 
 On sales, there is no special regulation in relation to the rate of bro- 
 kerages ; express provision is made,- as to loans, by statute. 1 E.. S., 
 part I., chapter XX., title XIX., article I. ; IK. S., 709. By section 1, 
 of that title, there is a statutory prohibition against taking more than 
 one-half per cent (fifty cents on one hundred dollars) for procuring a 
 loan for one year, or more than thirty-eight cents per one hundred dol- 
 lars, for making or renewing any security, or counter-security, therefor. 
 The case of a loan, for more than one year, is left unprovided for, and 
 the custom is to charge a higher commission on loans of this nature, 
 probably without illegality. 
 
 In cases unprovided for by the statute, evidence of usage may be 
 introduced to fix the amount of compensation. Morgan vs. Mason, 4 
 E. D. Smith, 636. And, although the plaintiff had declared upon, and 
 failed to prove a special agreement, the variance, and others of a similar 
 nature were disregarded. Nor will an attempted overcharge for effect- 
 ing a loan, affect ■ the broker's right to recover the legal commission* 
 Variderpool vs. Kearns, 2 E. D. Smith, 170. 
 
 But, to be entitled to recover brokerage, according to the custom- 
 ary rate, or to vary an actual agreement between the parties, on the 
 ground of custom, the plaintiff must show, not merely that he has con- 
 formed to the usual rules, but that he is himself a broker. Main vs. 
 Eagle, 1 E. D. Smith, 619. 
 
 A broker can recover upon a quantum meruit, on an express proffer 
 of compensation for services admitted to have been rendered, though 
 it be not proved distinctly that such services have proved effectual. 
 Goldsmith vs. Olermkr, 3 E. D. Smith, 121. He may also sue on the 
 
or THE COMPLAINT. — § 149. 863 
 
 admission itself, for a commission admitted to have been earned. Seebe 
 vs. Roberts, 3 E. D. Smith, 194. 
 
 In regard to brokerage on procuring a charter party, the mere hold- 
 ing of a legal interest in the vessel, does not, per se, render the holders 
 liable. It was accordingly held, that, in the absence of any express 
 agreement, or acknowledgment of the render of services, mortgagees 
 of a vessel, not in possession, could not be held liable for a service of 
 this nature. Weier vs. Sampson, 6 Duer., 358. 
 
 A broker who has acted for both parties in the same transaction, 
 cannot demand double commissions ; his claim is against the party who 
 originally employed him, and, in such case, or where he has received 
 compensation from one, he cannot recover against the other. Watkins 
 vs. Cousall, 1 E. D. Smith, 65 ; Yanderpool vs. Kea/rns, 2 E. D. Smith, 
 ITO ; Goodspeed vs. Bohinson, 1 Hilt., 423. And if, having agreed with 
 another to share the profits of negotiating a contemplated purchase, he 
 receive for his own use a private commission from the seller, it will be 
 a fraud upon his associate, which the court will redress. Dunlop vs. 
 Riohards, 2 E. D. Smith, 181. 
 
 The same rule was maintained in Pugsley vs. Murray, 4 E. D, 
 Smith, 245 ; but it was doubted, obiter, whether, if a special agreement 
 be made by both parties under such circumstances, with full knowledge 
 of the double employment, a recovery might not be had upon the express 
 promise. See also Gatlin vs. Orote, 4 E. D. Smith, 296, where a dou- 
 ble commission was substantially allowed by the same court. 
 
 {i.) Use and Occupatioit. 
 
 An action of this nature is expressly given, by statute, to a landlord, 
 as against parties in occupation of his premises, under any agreement 
 not made by deed ; and, if any parol demise or agreement, reserving 
 a certain rent, be put in evidence, it will not debar his recovery, but 
 may be made use of, as settling the quantum of damages to be recovered. 
 Vide 1 R. S., Y48, section 26. 
 
 An action of this nature will, however, only lie, where the relation of 
 landlord and tenant subsists between the parties, by agreement express 
 or implied. Where the occupier has never admitted, but, on the con- 
 trary denies the title of the plaintiflF, it will not be maintainable. 
 Oroswell vs. Crane, 7 Barb., 191 ; Sail vs. Southmaijd, 15 Barb., 32 ; 
 Jmrdngs vs. Alexander, 1 Hilt., 154 ; Hurd vs. Miller, 2 Hilt., 540 ; 
 Sylvester vs. Ralston, dl Barb., 286. The existence of an outstanding 
 leasehold interest in a third party, will be sufficient of itself to rebut 
 anv implication of tenancy. Journeay vs. Braokley, 1 Hilt., 447. Nor 
 
864 OF THE COMPLAINT. § 149. 
 
 will the fact of an agreement having been made, render an action in 
 this form maintainable, when the intended lessee has never entered into 
 actual possession. Croswell vs. Crane, supra. 
 
 Where a party has entered under license, he will not be permitted to 
 dispute the title of his licenser. An intended purchaser under a parol 
 contract, but who had been allowed to take and keep possession, was 
 therefore held liable to the owner for use and occupation, and the agree- 
 ment, though invalid as one for purchase, was held admissible, in proof 
 of the measure of damages. Pieroe vs. Pierce, 25 Barb., 243. See 
 also Morris vs. Miles, 12 Abb., 103. 
 
 So likewise, an actual occupant of wharfage, under contract to take a 
 lease, but who had refused to fulfil such contract, was held liable to 
 account for receipts during such occupation. Mayor, c&c, of New York 
 vs. Hill, 13 How., 280. The rule is otherwise, however, when an in- 
 tended purchaser has entered under an actual contract, and subsequently 
 abandons possession, on account of the vendor's inability to perform. 
 Sylvester vs. Ralston, 31 Barb., 286. 
 
 Such au action lies against lessees, in possession under an unsealed 
 lease, but permitted by a purchaser of the lessor's interest to continue, 
 with knowledge on their part of such purchase ; but the sum specified in 
 such lease will be the measure of recovery. Peckharri vs. Lea/ry, 6 
 Duer, 494. 
 
 An action of this nature will not lie by a landlord, against a tenant 
 partially evicted from his holding, in respect of his use and occupation 
 of the remainder. Christopher vs. Austin, 1 Kern., 216 ; unless, in- 
 deed, such eviction have taken place, under a title paramount to that of 
 such landlord, 1 Kern. (218). 
 
 Where there has been no express or concluded agreement between 
 the parties, as to the amount to be paid, the measure of compensation 
 for use and occupation will rest on a quantum meruit. SoroMon vs. 
 Booth, 29 Barb., lYl. 
 
 Where the plaiutifi' declares generally for use and occupation, and 
 introduces in evidence a special contract, which shows that there has 
 been in fact a misjoinder of parties, the objection may, under such cir-^ 
 cumstances, be raised at the trial, though omitted to be taken by way 
 of demurrer. Phalen vs. Dingee, 4 E. D. Smith, 379. 
 
 An action of this nature was held maintainable, by a surviving hus- 
 band, for use and occupation of the lands of his deceased wife, in respect 
 of his rights art common law, in a case prior to the recent statutes, in 
 relation to the property of married women. Jones vs. Patterson, 11 
 Barb., 572. 
 
 Although a married woman may not be liable on her covenant for 
 rent, an action will lie against her, for use and occupation of premises 
 
OF THE COMPLAINT. § 149. 865 
 
 of wliicli she lias taken a lease, and the amount will be a charge upon 
 her separate estate. Taylor vs. Glenny, 22 How., 240. 
 
 As to the liability of one, who uses the chattels of another, with his 
 assent, to a fair compensation for the value of such use, see Rider vs. 
 Union India Rubier Company, 4 Bosw., 169 ; The Same vs. The Same, 
 5 Bosw., 85. 
 
 In an action of this nature, it is not necessary to aver upon the face 
 of the complaint, how the relation of landlord and tenant arose between 
 the parties, and minor defects in particularity of statement will not 
 render the pleading obnoxious to a demurrer, but only to a motion for 
 uncertainty. Waters vs. ClarTc, 22 How., 104. 
 
 (J.) Feeight. 
 
 An action of this description is of a somewhat mixed nature. It is 
 maintainable under all circumstances, where goods have been carried, 
 whether on express or implied contract. "Where, by a chartered vessel, 
 and the terms of carriage are fixed by the charter party, the action will 
 of course lie upon the express contract, and will fall under that class, 
 and >not that of ordinary asswmpsit. For carriage in a general ship, the 
 action lies, on the contrary, substantially upon the implied promise ; 
 but, under these circumstances, the measure of compensation is usually 
 regulated b}^ the terms of a bill of lading. 
 
 As regards the condition of the goods at the time of shipment, and 
 the quantity contained in the packages, this instrument partakes of 
 the ordinary character of a receipt, and is explainable. As regards 
 the contract for carriage, the liability of the parties, and the compen- 
 sation to be paid under the contract, the contrary is the case. On 
 these sxibjects, the bill of lading merges all previous transactions, and 
 is, as a general rule, conclusive, and cannot be explained. Yide White^ 
 vs. Van KirTi, 25 Barb., 16 ; and Crery vs. Holley, 14 Wend., 26 ; and 
 Niles vs. Culver, 8 Barb., 205, there cited. See also Fitzhugh vs. 
 Wima/)i, 5 Seld., 559 (566) ; Dorr-YS. New Jersey Steam, IfavigaUo7i 
 Company, 1 Kern., 485 ; Meyer vs. Peck, 33 Barb., 532 ; and, as to the 
 similar effect of a charter party, Renard vs. Sampson, 2 Kern., 561. 
 As to the right of the shipowner to recover freight, for all goods actually 
 delivered, vide Meyer vs. Peoh, supra. 
 
 As to the effect of an unqualified bill of lading, in throwing all 
 responsibility upon the carrier, and the counter effect of a qualification 
 upon its face, in transferring that responsibility to the shippers, in 
 respect of leakage of the goods carried, see Nelson vs. Stephenson, 5 
 Duer, 538. 
 
 A hondfide assignment of a clean bill of lading to a purchaser for 
 value, is equivalent to an unconditional delivery of the goods them- 
 YoL. 1.— 55 
 
866 OF THE COMPLAIKT. — § 149. 
 
 selves, and supersedes any conditional contract, between the, owner or 
 consignor and tlae consignee. Wa/rdweU vs. Patrick, 1 Bosw., 406. 
 See also Dows vs. Bush, 28 Barb., 157, and cases cited by Hogeboom, J., 
 page 183. 
 
 But, where such bill of lading has been obtained by fraud from the 
 owners, a purchaser, though lona fide, will not be protected by the 
 transfer. Dows vs. Perrin, 16 N. Y., 325, and cases cited by Denio, 
 Oh. J. (332 to 335). 
 
 An intermediate consignee, who accepts a delivery of goods, is hable 
 thereupon to the carrier for the full freight, and, unless under special 
 authority, in the bill of lading, has no power to adjust any claim for 
 damage. Canfield vs. The Northern Railroad Company, 18 Barb., 
 586. See also New York and Erie Railroad Company vs. Gilchrist, 
 16 How., 564. 
 
 An assignee of a bill of lading, who receives the goods, is, in like 
 manner, liable, though the assignment was not made, until after the 
 goods had been sent to the public warehouse, under a general- order to 
 discharge. New York and Havre Steam Namigation Convpany vs. 
 Young, 3 E. D. Smith, 187. See also Burton vs. Strachan, 3 E. D. 
 Smith, 192, note. 
 
 As to the right of an equitable assignee of freight to recover from 
 the shippers, see Trask vs. Jones, 5 Bosw., 62. 
 
 "With respect to the mutual rights of the carrier and the owner, in 
 relation to the delivery of goods, on arrival at the port of destination ; 
 and as to the principle that delivery and payment of freight are in 
 the nature of simultaneous and concurrent acts, see Clark vs. Masters, 
 1 Bosw., 177. See also Gaughran vs. One Hundred and Fifty-one 
 Tons of Coal, 18 How.,, 25 (United States Courts). It is also there held 
 that the contract of affreightment is entire, and that the master has no 
 right to divide it into lots or parcels, and demand a proportionate 
 freight on each. 
 
 The existence of a charter party, which does not give the charterer 
 entire control of the vessel, or postpone the payment of the charter 
 money beyond the delivery of the cargo, does not deprive the general 
 owner of his lien for freight, or his right to collect it ; and payment to 
 him, or to the master or his agent, will bar an action by the charterers. 
 Maotaggart vs. Henry, 3 E. D. Smith, 390 ; Holmes vs. Pavenstedt, 
 5 Sandf., 97. 
 
 In relation to the right and duty of the master, to sell unclaimed 
 goods, for the payment of freight, at the expiration of the regular lay 
 days, or within a reasonable time thereafter, see Pdbbins vs. Godman, 
 4 E. D. Smith, 315. 
 
 As regards pro rata freight, and when it will or will not be claima- 
 
OF THE COMPLAINT. — § 149. 867 
 
 ble by the shipper, against the owner of goods, in the event of the ves- 
 sel becoming disabled during the voyage, see Atlantic Mutual Insur- 
 ance Company vs. Bii-d, 2 Bosw., 195 ; Khisman vs. Ifew York Mutual 
 Insuratice Company, 5 Bosw., 460. 
 
 The charterer of a vessel is liable for demurrage, although the delay 
 may be occasioned without his fault, and by the laws of a foreign 
 country. Bupp vs. Lolach, 4 E. D. Smith, 69. So also, in respect of 
 the time, between the termination of lay days allowed, and the actual 
 delivery of the cargo. Rollins vs. Oodman, 4 E. D. Smith, 315. But 
 demurrage will not be claimable, in respect of goods transported in 
 bond, for detention occurring, before the vendor can obtain from the 
 custom house, a permit for their delivery. Gillespie vs. Durand, 3 E. 
 D. Smith, 531. See, as to demurrage, in a case of delay occasioned by 
 collision, Brady vs. TJie Steamboat New Philadelphia, 19 How., 315. 
 
 • {Jc.) Goods Sold and Deliveeed. 
 
 In relation to the framing of a complaint of this description, see 
 general observations at the commencement of the present section, and 
 references there made. 
 
 The old form of count in indebitat'us assumpsit may be, substantially 
 followed, nor is it necessary to make any statement of items in detail, 
 provided the transaction is set out, with sufficient certainty as to dates 
 and general particulars. 
 
 Where the liability arises in respect to different contracts c!f sale 
 made at different periods, it is, however, admissible, and will be better 
 to state them as separate causes of action. In such a case, separate 
 actions will also be maintainable. See Staples vs. Goodrich, 21 Barb., 317. 
 See especially, among the cases above alluded to, in relation to the 
 form of statement, and the extent to which express averments will be 
 supplied by necessary implication, Aocome vs. The American Mineral 
 Company, 11 How., 24, and the leading case of Allen vs. Patterson, 3 
 Seld., 476 ; both bearing directly upon this particular description of 
 action. 
 
 A general averment of the above nature, if traversed by the defend- 
 ant, tenders a general issue, and evidence of a general nature tending to 
 reduce the amount of the recovery, will be admissible. Moffatt vs. 
 SacTcett, 18 N. Y., 522. 
 
 Where goods have been sold upon credit, it should appear upon the 
 face of the complaint, that, before bringing the action, that credit has 
 expired. Where, howeverj a credit transaction has been induced by 
 fraud, the fraud avoids the express contract, and the vendor may sue at 
 once, as in a sale and. delivery on the ordinary assumpsit. And, although 
 admissible, it seems it will not be necessary to allege the circumstances, 
 
868 OF THE COMPLAINT. § 149. 
 
 and the action may be so maintained, leaving the facts to come out as 
 matters of evidence, if the express contract be pleaded by the defendant.^ 
 ■Roth vs. Palm,er, 27 Barb., 652. Nor will it be necessary for the 
 vendor, tinder such circumstances, to v^ait until the expiration of a term 
 of credit agreed to be given. Kayser vs. Siohel, 34 Barb., 84. 
 
 An action is maintainable upon an unqualified promise to pay, nor 
 will the meTe allegation of a consent to give credit defeat, it, unless 
 positively proved. WhitlocJe vs. Bueno, 1 Hilt., 72. 
 
 The price or value of the goods sued for ought properly to appear 
 upon the face of the complaint, and must, of course, be proved. See 
 Lambert vs. Seely, 2 Hilt., 429. 
 
 The averment must substantially correspond vrith the actual contract 
 or liability, or the complaint cannot be sustained. Smith vs. Lelcmd, 
 2 Duer, 497. See, however, as to the disregard of immaterial vari- 
 ances, and the granting, without imposing terms, of an amendment to 
 conform, Barth vs. Walther, 4 Duer, 228. 
 
 A complaint, averring a sale by several plaintiffs, was held sufficient 
 on demurrer, without any specific averment that they made such sale as 
 partners, in Lojper vs. TFefeA, 3 Duer, 644. 
 
 In suing for the price of goods, or for their non-delivery, under an 
 executory contract, an allegation of performance, or a tender of perform- 
 ance, on the part of the plaintifi", according to the terms of such 
 contract, is indispensable. Olarh vs. Bales, 20 Barb., 42 ; Dunham, vs. 
 Pettee, 4 E. D. Smith, 500 ; Same case, 4 Seld.,'508. See also McDon- 
 ald vs. Williams, 1 Hilt., 365. See on the same subject, and, also, as 
 to the extent to which an omission to state the time of performance will 
 be supplied by implication, Fickett vs. Brice, 22 How., 194. 
 
 See also,' as to the performance, or a readiness and offer to perform 
 the entirety of a contract of this nature, being a condition precedent to 
 the right to require payment on the part of the vendor, and as to his 
 inability to maintain an action, in respect qf a partial delivery, 
 wliere the contract is entire' in its nature. Baker vs. Higgins, 21 
 K Y., 397. 
 
 See, per contra, as to the right of the vendor of articles, to be deliv- 
 ered from time to time in parcels, to suspend deliveries, on the pur- 
 chaser's failure to pay for any specific parcel, when offered to be deliv- 
 ered ; and as to a prior delivery without payment, not efi'ecting a waiver 
 of the condition, Gardner vs. Clark, 21 N. T., 399. See also Pa/r- 
 tridge vs. Gildermeister, 6 Bosw., 57. 
 
 On an agreement for a sale of goods to be paid for by delivery of 
 others, default on the part of one party must be shown by the other, before 
 he can entitle himself to recover the price of those delivered by him. 
 Hunt vs. Westervelt, 4 E. D. Smith, 225. See also Chapin vs. Potter, 
 
OF THE COMPLAmi. — § 149. 869 
 
 1 Hilt., 366. See, however, as to the principles of averment, Moth vs. 
 Palmer, above cited. i 
 
 In respect to the liability of a parent, for goods delivered to a minor, 
 and alleged to be necessaries, and where it does or does not accrue, see 
 Clinton vs. Rowland, 24 Barb., 634. 
 
 A contract for sale of articles, designed for the commission of a fraud 
 upon the public, was held void, as contrary to public policy, and that 
 no recovery could be had upon it. Bloss vs. Bloomer, 23 Barb., 604. 
 
 Wliere, however, a contract is declared void by statute, the transac- 
 tion must be brought strictly within its terms. A contract 'made on 
 Sunday was, therefore, declared not to be void, and an action upon it 
 to be maintainable, there being no evidence of public exposition on sale. 
 Miller vs. Roessler, 4 E. D. Smith, 234. See also, as to the subsequent 
 adoption and ratification of a technically illegal demand against a 
 public body, enabling a recovery upon it. Smith vs. Mayor of New 
 YorTc, 21 How., 1. 
 
 When a custom is shown to exist in any particular trade or business, 
 parties are presumed to contract with reference to it, in the absence of 
 an express agreement, or of contravention of an established rule of law. 
 Dalton vs. Daniels, 2 Hilt., 472 ; Lees vs. Richardson, 2 Hilt., 164. 
 
 To enable the plaintiff to recover upon a contract for manufacture 
 and delivery, the order on the part of the defendant must be positive 
 and direct.- An implied liability will not be sufficient to sustain the 
 action. Murphy vs. Winchester, 35 Barb., 616. 
 
 Where, under an arrangement for allowing one party to purchase 
 goods in the name of another, the former had the possession and full 
 benefit of goods so purchased, it was held that the latter and his 
 assignee could maintain an action against him for their price, without 
 proof that he had himself paid for them. Hay vs. Hall, 28 Barb., 378. 
 
 A sale to an agent should be averred as a sale to his principal. 
 Dollner vs. Gibson, 3 C. E., 163 ; 9 L. 0., 77. But, where the agent pur- 
 chases in his own name, without disclosing his principal at the time, he 
 is and will remain liable ; a subsequent disclosure will not discharge 
 him • its only effect will be to give the seller the option of suing either 
 at his election. Nason vs. Gochroft, 3 Duer, 366. But where, at the 
 time the agent discloses his principal, and the vendors elect to take 
 and accept the agent's own credit, they cannot afterwards hold the 
 principal liable. Manhen vs. De Forest, 18 Barb., 143. 
 
 As to the right of a purchaser to pay or settle with an agent, who 
 sells goods as such, without disclosing the name of his principal, see 
 Henry vs. Marvin, 3 E. D. Smith, 71. Such payment, to bind the 
 principal, must however be actual, and the mere giving of credit to the 
 agent, against a pre-existing indebtedness, will not prevail. 
 
870 OP THE COMPLAINT. § 149. 
 
 Where the sale of goods has been induced by false representations, the 
 point as to its validity or invalidity, will turn upon the question of 
 fraudulent intent, and "knowledge of such falsity. Mere concealment 
 M-ill not,j?er se, have that effect' Jlall vs. Naylor, 6 Duer, 71 ; Arm- 
 strong vs. Tuffts, 6 Barb., 432. N. B.— The reversal of the former case, 
 reported, 18 N. Y., 588, does not turn upon this specific .point, but 
 rather tends in affirmation of the general doctrine. 
 
 And where a contract of sale is sought to be avoided by the vendor 
 for fraud, a return or tender of the consideration must be shown, and 
 prompt action must be taken, or delay will be held a confirmation of 
 the contract. Fisher vs. Fredenhall, 21 Barb., 82. 
 
 Although, as a general rule, a purchaser of goods from a fraudulent 
 vendor will be protected, still, to claim the benefit of the rule, he must 
 show the sale to be strictly hondfide. Where, therefore, a sale was made 
 by an assignor, allowed to remain in possession of his whole stock, for 
 a price to be thereafter ascertained, but on the basis of a large reduction, 
 and that, not for cash, but for notes of the purchaser, the transaction was 
 held void, as against execution creditors. Pine vs. Sikert, 21 Barb., 
 469. See likewise Adams vs. Davidson, 6 Seld., 309; and Ludden vs. 
 Hazen, 31 Barb., 650. So also, as to a purchase of goods from a fraud- 
 ulent vendor, without inquiry, and with notice of suspicious circum- 
 stances; Danforth vs. Dart, 4 Duer, 101; Pringle vs. Phillips, 5 
 Sandf , 157. A hona fide purchaser, from a person who has no. actual 
 title, cannot maintain his rights, against one who represents the real 
 owner. So held, in the case of a sale by a husband, of his wife's separate 
 property, as against her mortgagee. Talman vs. Hawxhurst, 4 Duer, 
 221. 
 
 As to the right of a purchaser to return and recover back the price 
 paid for part of goods, sold to him at different times, and not by way 
 of entire sale, as not corresponding with his contract, retaining the 
 remainder, see Manning vs. Humphreys, 3 E. D. Smith,. 218. 
 
 A parol promise to pay for goods, to be delivered to a third party, 
 but on the credit of the promisor, when made before, and inducing such 
 delivei'y, is not a collateral, but an original undertaking, and may be 
 sued upon as such. Briggs vs. Evans, 1 E. D. Smith, 192; PhiUips 
 vs. Gray, 3 E. D. Smith, 69 ; Griffin vs. Keith, 1 Hilt., 58. See also, 
 as to the liability of a principal, for a promise of this nature made by 
 his authorized agent, even though in error. Dunning vs. Roberts, 35 
 Barb., 463. See likewise, generally, Quintard vs. De Wolf, 34 Barb., 
 97 ; Devlin vs. Woodgate, 34 Barb., 252. 
 
 But, to constitute it such, the credit must be exclusively given to the 
 promisor ; if otherwise, the undertaking will be collateral, and within 
 the statute of frauds. ISlor will a promise of this nature be held as con- / 
 
 / 
 
OP THE COMPLAINT. — § 149. 871 
 
 tinuing, tinless sueli intention be clearly apparent. Didoon vs. Frasee, 
 1 E. D. Smith, 32 ; Brady vs. SaoTcrider, 1 Sandf., 514. 
 
 See also, as to a transaction of this nature, on which the guarantor 
 received a separate consideration, being held to be an original under- 
 taking, Pennell vs. Pe7itz, 4 E. D. Smith, 639. 
 
 But the mere charging against one person, of the price of goods 
 delivered to another, for that other's use, will not constitute him a 
 debtor, unless the evidence to show his assent is free from' any suspicion, 
 and the complaint contains proper and issuable averments of the author- 
 ity to make such charge. Smith vs. Leland, 2 Duer, 49T. Where, 
 however, the defendant himself has given the direction for such deliv- 
 ery, he will be liable, under a complaint in the ordinary form. Rogers 
 vs. Yerona, 1 Bosw., 417. 
 
 To maintain an action in the ordinary form, actual or constructive 
 delivery of the goods sold, must be both averred and proved. To sus- 
 tain a general count in assumpsit, on transactions arising out of a spe- 
 cial agreement, that agreement must have been so performed, as to leave 
 a mere simple debt or duty between the parties. Eva/ns vs. Harris, 19 
 Barb., 416. See also Chopin vs. Potter, 1 Hilt., 366. 
 
 If, under such a contract, not being entire in its nature, a partial 
 delivery be made and accepted, and the contract be then abandoned, 
 the seller may recover, pro tanto. Terwilliger- vs. Knapp, 2 E. D. 
 Smith, 86. See also Shields vs. Pettie, 4 Comst., 122 ; affirming same 
 case, 2 Sandf., 262. 
 
 And if, after the delivery of goods, the plaintiff repossess himself of 
 them, it will be a disaifirmance of the sale, and will bar an action by 
 him for their price. So held, as to goods retaken under process of 
 replevin, Morris vs. Pexford, 18 N. Y., 562. 
 
 An admission by the defendant, of delivery to him, will suffice to sup- 
 port the action, though such delivery have been actually made to a 
 third person. Griffin vs. Keith,.! Hilt., 68. See, as to an implied 
 admission of the delivery of the residue, by a denial of the receipt of 
 part of goods stated upon a bill. Power vs. Boot, 3 E. D. Smith, 70. 
 
 On retail sales, the question of delivery rarely presents any difficulty. 
 In wholesale or executory transactions, it is attended with more com- 
 plication, as regards the question as to when title to the goods will or 
 will not pass, by reason of the acts of the parties. 
 
 The general rule may be stated thuS : where all that is necessary to 
 be done by the vendor in order to place the goods in the possession or 
 power of the purchaser has been accomplished, so that nothing remains 
 to hinder or delay the latter from assuming such possession ; the deliv- 
 ery is complete. Where, however, any thing remains to be done on . 
 the part of the vendor, either by way of conferring title or right upon 
 
872 OF THE COMPLAINT. § 149. 
 
 the purchaser, or in order to ascertain the quantity of the goods, or the 
 price to be paid for' them, the delivery is still .imperfect, and title has 
 not passed. See OerardYS. Prouty, 34 Barb., 454. 
 
 A mere agreement to sell, advice of shipment, and acceptance of a 
 draft drawn against goods, was held not to constitute such a delivery 
 to the intended purchaser, as to entitle him to demand their possession, 
 on his refusing to comply with conditions as to payment, imposed by the 
 agent of the sellers. Balph vs. Stuart, 4 E. D. Smith, 627. 
 
 Nor is the delivery of foreign goods complete, until the seller has per- 
 fected the necessary custom house entries, and conferred iipon the pur- 
 chaser the power to control them. Till then, and till the property is 
 placed in the actual, and also in the legal control of the purchaser, the 
 seller cannot maintain an action for its price. ZacTirisson vs. Pojype, 3 
 Bosw., 171. And this was so held, although, notwithstanding such 
 omission on the part of the seller, actual delivery of part had been 
 made, and the rest, for aught that appeared, might have been actually 
 taken. In Gillespie vs. Durcmd, 3 E. D. Smith, 531, the same rule 
 was applied on a collateral question of demurrage, though the actual 
 delivery was complete, and the goods, originally in bond, had left the 
 port, by arrangement with the custom house authorities, before the reg- 
 ular entries had been, or in fact could have been perfected. Delivery 
 of goods sold in bond at New York for exportation, to a carrier selected 
 by the vendee, was held to pass the property in them ; although they 
 still remained subject to a lien for duties, and to the custody of the offi- 
 cers of the customs, until authority to pass them was received, which 
 authority the vendor volunteered to take the necessary steps for obtain- 
 ing. Waldron vs. Eommne, 22 N. T., 368. See, however, as to the, 
 right of stoppage in transitu, under similar circumstances, Ilolhrook vs. 
 Yose, 6 Bosw., 76. 
 
 Something more than mere words, is necessary to constitute a deliv- 
 ery of cumbrous articles. Superadded to the language of the contract, 
 there must be some act of the parties, amounting to a transfer of the 
 possession, and an acceptance thereof by the buyer. ShindUr vs. Hous- 
 ton, 1 Comst., 261. And such transfer must be complete. Ghapin vs. 
 Potter, 1 Hilt, 366. 
 
 The' mere taking away of a sample by the purchaser, will not effect 
 a delivery of part, so as to bring the case within the statute. To con- 
 stitute a symbolical delivery, the act must show that the vendor relin- 
 quishes his control of the property, and places it within the power of 
 the purchaser. Gg,rver vs. Lane, 4 E. D. Smith, 168. See also, as to a 
 symbolical delivery. Gray vs. PaA)is, 6 Seld., 285. 
 
 The handing to an agent of tlie purchaser, of an order on the store- 
 keeper of a public store in New York, for delivery of grain in store the / 
 
OF THE COMPLAINT. — § 149. 873 
 
 quantity having been previously ascertained by a measurer, appointed 
 by the board of measurers, was held to constitute a complete delivery 
 on the part of the seller, and to entitle him to recover for the whole, 
 though the quantity received by the purchaser fell short. MoCready 
 vs. Wright, 5 Duer, 571. See also, as to the tender of a permit, by 
 which the possession of goods in bond may be obtained^ being a suffi- 
 cient tender of performance under an executory contract, Dunham vs. 
 Pettee, 4 Seld., 508 ; Same case, 4 E. D. Smith, 500. See likewise, as 
 to the sufficiency of an offer to deliver bulky articles, without an actual 
 manual tender, Myers vs. Davis, 26 Barb., 367. 
 
 The sale of a specified quantity of grain, included in a larger mass in 
 store, and the delivery to the purchaser of an acknowledgment that such 
 quantity was subject to his order, was held to pass title in such portion, 
 without actual separation. Kimberley vs. Patchin, 19 N. T., 330. 
 The rule that the quantity of articles sold in bulk, must be ascertained 
 before title passes, was considered not to be applicable to a contract of 
 this description. 
 
 "Where delivery is to be made by the seller at a distant place, the 
 contract is ambulatory, till it is actually made at the place so agreed 
 upon, and the price of any portion which does not arrive, is not recover- 
 able, nor will the measuring or marking of part of the goods by the pur- 
 chaser, at the place of sale, be such an acceptance, as will relieve the 
 seller from the duty of transporting them to the place agreed upon. 
 Evans vs. Harris, 19 Barb., 416. 
 
 "Where the vendor has done his utmost towards effecting a delivery 
 to the purchaser, and fails, through no fault of his own, he will not be 
 liable to the latter in damages for the omission, nor will the giving of 
 the purchaser's note effect a change in the principle, where such note 
 has never been paid, and is produced for cancellation. Hophins vs. 
 Orinnell, 28 Barb., 583. 
 
 The subject of a conditional delivery has been partially treated above, 
 under the head of Replevin. A sale for cash on delivery, according to 
 the custom, is of this description, and, although actual possession be 
 given, still title to the goods will not pass, until payment in pursuance 
 of the condition. ' See Freeman vs. MoKean, 25 Barb., 474 ; Van NesU 
 vs. Conover, 20 Barb., 547 ; Same case, 8 Barb., 509 ; 5 How., 148 ; 
 Schmidt vs. Kattenhom, 2 Hilt., 157. 
 
 But where, on a sale originally made for cash or notes on delivery, 
 delivery is made unconditionally at the time, without demand of the 
 agreed consideration, and without attaching any other condition, the 
 presumption will be that the original condition has been waived, sub- 
 ject, however, to rebuttal. Smith vs. Lynes, 1 Seld., 41 ; reversing 
 some case, 3 Sandf., 203. See likewise Wait vs. Green, 35 Barb., 585. 
 
 to 
 
874 OF THE C03IPLAINT. — § 149. 
 
 So also, if cash be not promptly demanded, or if a postponement be 
 assented to, or part payment accepted. Lees vs. Richardson, 2 Hilt., 
 164 ; Ives vs. Huirvphreys, 1 E. D. Smith, 196. But see, as to a con- 
 ditional delivery, on notes to be made satisfactory to the sellers, Bra/per 
 vs. Jones, 11 Barb., 263. 
 
 See these last cases, as to the rule, that delivery and payment on a 
 cash sale are simultaneous acts, not being applicable to the sale of a 
 large quantity of merchandise, the delivery of which must of necessity 
 occupy a considerable time ; and as to the power of the buyer to 
 require a reasonable time for inspection, on the one hand, and of the 
 seller, on the other, to defer the demand of cash pursuant to condition, 
 till such delivery is fully completed, without losing his rights. 
 
 See, as to what will constitute a delivery under a sale of the above 
 nature, sufficient to let in the rights of a party making a hona fide 
 advance to the buyer, in prejudice to those of the seller to demand 
 payment, Durlrow vs. McDonald, 5 Bosw., 130. 
 
 "Where the bill of lading of coals then at sea, was handed to a steam- 
 ship company, and forwarded to their agents at the port of destination, 
 with instructions to receive them, if quality approved by their' engineer, 
 it was held that, such approval being withheld, the company were not 
 bound to receive or pay for them. Heron vs. Davis, 3 Bosw., 336. 
 
 Under a manufacturing contract, property in the obj^t to be man- 
 ufactured, does not pass to the purchaser, until its full completion and 
 actual delivery, notwithstanding the existence of payments on account, 
 or of default on the part of such purchaser, productive of delay. 
 McOonihe vs. JS'ew Yorh and Erie Railroad Company, 20 E". Y., 495 ; 
 Andrews vs. Durant, 1 Kern., 35 ; Same case, on subsequent trial, 18 
 ]!^. Y., 496 ; Brown vs. Morgan, 2 Bosw., 485 ; Low vs. Austin, 25 
 Barb., 26 ; Phillips vs. Wright, 5 Sandf , 342 ; Comfort vs. Kiersted, 
 26 Barb., 472. 
 
 So also, where a manufactured article is actually delivered, but upon 
 condition that the property therein is not to pass to the piirchaser, until 
 full payment of the price, the law will execute the contract, and recog- 
 nize the vendor's title, as against a creditor of the purchaser. Herring 
 vs. Hoppock, 15 N. Y., 409 ; affirming same case, 3 Duer, 20 ; or, as 
 against a lona fide purchaser at a sheriff's sale, Piser vs. Steams, 1 
 Hilt., 86. 
 
 A lona fide purchaser from the vendee, without notice of the condi- 
 tion, will, however, be protected. Steelyards vs. Singer, 2 Hilt., 96. 
 See also Smith vs. Lynes, 1 Seld., 41,- above cited. 
 
 In relation to the rule, that, so long as any thing remains to be done, 
 to ascertain the quantity or value, or complete the transfer of goods 
 sold in bulk, the delivery of them will not be complete, see Vincent 
 
OF THE COMPLAINT. — § 149. 875 
 
 VS. Conklvn, 1 E. D. Smith, 203 ; Ohwpin vs. Potter, 1 Hilt., 366 (371) ; 
 IJvans vs. Harris, 19 Barb., 416.' 
 
 As to what will be suflBcient to constitute an actual delivery, under a 
 contract of this nature, see Woodford vs. PatUrson, 33 Barb., 630. 
 
 After actual delivery made and accepted, the purchaser will never- 
 theless be entitled to recoup, for damages occasioned by deficient 
 quality in the goods, as called for by the contract. Davidson vs. 
 Hutchins, 1 Hilt., 123. So also, in respect of work unskilfully per- 
 formed. Norris vs. La Farge, 3 E. D. Smith, 375. But, if the pur- 
 chaser accepts and uses the goods, without an offer to return them, he 
 will be precluded from raising the objection. Warren vs. Van Pelt, 4 
 E. D. Smith, 202. 
 
 To make a tender of a permit to remove goods in bond, equivalent 
 to an actual delivery or tender of delivery, the power to remove must 
 be unconditional. The existence of a lien for storage, will render it 
 insufficient. Dunham vs. Pettee, 4 E. D. Smith, 500. As to a manual 
 tender of bulky articles being unnecessary, and an offer to deliver them 
 being sufficient, see Myers vs. Davis, 26 Barb., 367. 
 
 A contract for delivery of goods, not in the control of the seller, and 
 at a future day, is valid, if the sale is intended to be an actiial sale ; but, 
 though valid on its face, it will be void, if the real understanding be a 
 mere payment of differences, rendering it, in fact, a speculation, and 
 not a sale. Oassard vs. Hinman, 1 Bosw., 207. 
 
 As to the liability of the vendee, under a contract for purchase of 
 goods to arrive, and its measure and extent, and when the sale will be 
 held to be absolute, or conditional, see Havemeyer vs. Cunningham, 35 
 Barb., 515 ; 22 How., 87 ; DibUe vs. Gorbett, 5 Bosw., 202. 
 
 An action is maintainable, on the failure to perform a promise to 
 deliver goods, in payment of a prior indebtedness of the vendor, and in 
 consideration of forbearance. Fletcher vs. Derrickson, 3 Bosw., 181. 
 See also, as to the right to set off the price of goods manufactured 
 under an executory contract, for parties becoming insolvent after order, 
 as against an indebtedness due to the estate of such insolvents. Myers 
 vs. Dams, 26 Barb., 367. 
 
 In relation to what will be sufficient to constitute an executory con- 
 tract for sale, effected by way of correspondence, see Clarh vs. Dales, 
 20 Barb., 42. 
 
 As to when such a contract w:ill be considered in the light of one for 
 work and labor, rather than of sale and delivery, as regards the opera- 
 tion of the statute of frauds, see Donovan vs. Wilsan, 26 Barb., 138 ; 
 Pa/rker vs. Sohenok, 28 Barb., 38. 
 
 As to the validity and power of enforcement of a contract, for the 
 purchase of articles manufactured from the produce of a specified piece 
 
876 OF THE COMPLAINT. § 149. 
 
 of land, for a specific period, embracing restraints upon sale to others 
 during that period, see Van Ma/rUr vs. Bahooch, 23 Barb., 633. / • 
 
 Vendors, under an executory contract, are not bound to deliver, as 
 against the notes of a third party originally agreed to be taken, when, 
 at the time of tender, such party has become insolvent, even though 
 such notes be not actually worthless. Benedict vs. Field, 16 N. Y., 
 595 ; affirming sa/me case, 4 Duer, 154. See also, as to an executory 
 contract for the purchase of stock certificates, Kipp vs. Munroe, 18 
 How., 383. 
 
 And, where a sale of goods had been contracted for, to be paid for in 
 notes of a third party, and, after delivery of a portion, the defendant 
 refused to perform, denying his liability, it was held that, by such 
 denial, he relieved the plaintiff from' the necessity of tendering more 
 goods, and enabled him to sue at once for those actually delivered. 
 Pa/rtridge vs. Gildermeister, 6 Bosw., 5T. 
 
 As in the case of other contracts, the terms of a written order,, will' 
 control any oral directions of the vendee, not shown to be communi- 
 cated to the vendor. Hooper vs. Taylor, 4 E. D. Smith, 486. 
 
 In relation to the liability of partners, the following decisions require 
 attention : A third person selling goods to one partner, in the usual 
 course of business, and without notice, will be entitled to recover, as 
 against the firm, though the articles of copartnership contain a prohibi- 
 tion against such partner contracting debts, without the consent of the 
 other. Frost vs. Hanford, 1 E. D. Smith, 540. 
 
 After the dissolution of a partnership, no liability can be incurred 
 upon its credit, unless the name of the firm was used in making the 
 purchase. "Where the partnership name is not altered, dealers who trust 
 the supposed firm, without notice of dissolution, will be protected ; but 
 where the name has been changed, they cannot claim the benefit of the 
 rule, without showing that notice of dissolution has not been given. 
 Kirby vs. Hewitt, 26 Barb., 607. 
 
 Where, on the sale of goods, the vendor had taken the note of a sup- 
 posed but non-existent firm, it was held that, upon its non-payment, he 
 might maintain his action upon the original sale, against the persons 
 to whom it was made. Heroy vs. Van Pelt, 4 Bosw., 60. 
 
 Credit actually given, though the transaction be nominally for cash, 
 entitles the dealers with a firm to actual notice of its dissolution; and, 
 if such notice be not given, a retiring member of a partnership, con- 
 tinued under the same name, will still continue liable. Glapp vs. 
 BooErs, 2 Kern, 283; affirming same case, 1 E. D. Smith, 549. 
 
 The rule of caveat emptor, does not apply to a delivery of goods under 
 an executory contract, and even after delivery and incorporation into 
 a building, a suitable deduction in respect of imperfections may be 
 
OF THE COMPLAIKT. — § 150. 877 
 
 claimed. Norris vs. La Farge, 3 E. D. Smith, 375 ; Renaud vs. Peck, 2 
 Hilt., 137 (142); Muller vs. Eno, i Kern., 597 (610). See also the 
 doctrine of implied warranty, on the sale of a chattel by its manufac- 
 turer, fully considered in Jloe vs. Sanborn, 21 N. T., 552 ; and, generally 
 with reference to executory sales, Ramilton vs. Gaynard, 34 Barb., 
 i^04 ; Passenger vs. Thorburn, 35 Barb., 17. 
 
 And, in a contract of this nature, for delivery of goods to arrive, the 
 vendor impliedly warrants that they shall be of merchantable quality. 
 Gleu vs. MoPherson, 1 Bosw., 480 ; Shields vs. Pettie, 4 Comst., 122 ; 
 affirming sams case, 2 Sandf., 262. See also Hargous vs. Stone, 1 SeJd., 
 73(86), per Paige, J. 
 
 But, in the case of an executed sale, the rule will be enforced in all 
 its strictness, unless ^here be an express warranty, or false representa- 
 tions on the part of the vendor. Mere silence will not render the latter 
 responsible for latent defects, even though known to him, and unknown 
 to the purchaser. Paul vs. Hadley, 23 Barb., 521 ; Hotohkiss vs. Gage, 
 26 Barb., 141 ; Hyland vs. Sherman, 2 E. D. Smith, 234 ; Goldrich 
 vs. Eyan, 3 E. D. Smith, 324 ; Fiedler vs. Tucker, 13 How., 9. 
 
 IS^or does the mere exhibition of a sample at the time of sale, create an 
 implied warranty that the goods correspond. To have that effect, the 
 sale must be expressly and in.tei-ms a sale by sample, without power or 
 opportunity of inspection by the purchaser. And if, after delivery on 
 an executory contract, the purchaser neglect to inspect the goods, and 
 return such as are deficient, the rule will equally apply. Ha/rgous vs. 
 Stone, 1 Sold., 73; Beirne vs. Pord, 1 Seld., 95 ; reversing same case, 2 
 Sandf, 89. 
 
 If the representations of a vendor on the sale of goods, amount to an 
 express or actual warranty, the purchaser is under no obligation to return 
 them, but may, in an action for their price, recoup the damages sustained 
 by him. Wa^'ren vs. Van Pelt, 4 E. D. Smith, 202 ; Renaud vs. Peck, 
 2 Hilt., 137 ; Muller vs. Eno, 4 Kern., 597 ; reversing same case, 3 Duer, 
 421. As to therufe of damages, on breach of a written warranty, see 
 Fates vs. McKeon, 2 Hilt., 53. 
 
 As to the right of a vendee, to recover back the price of an article 
 returned by him to the vendor, for breach of warranty, see Collins vs. 
 Brooks, 20 How., 327. 
 
 § 150. Of Actions in Relation to Meal Estate, 
 (a.) Geneeai. Eemakks. — Eeeeebnce to Statutokt Peovisions. 
 
 Kemedies of this description may be divided into two grand classes, 
 i. e., legal and equitable in their nature. The former will be treated of 
 in the present, the latter in the succeeding section. 
 
878 OF THE COMPL AIN'T. — § 150. 
 
 The first of these two classes was, on the framing of the Eevised 
 Statutes, the subject of special regulations. 
 
 The following reservation in respect to these regulations is made by 
 the Code, section 455 : 
 
 The general provisions of the Revised Statutes relating to actions con- 
 cerning real property, shall apply to actions brought under this act, accord- 
 ing to the subject-matter of the action, and without regard to its form. 
 
 This section forms chapter Y., title XIII. of the measure. 
 
 It was, as were also the whole of the other chapters, comprised in that 
 title, inserted for the first time, on the amendment of 1849. The Code 
 of 1848 contained no provisions upon the subject. 
 
 The whole of that title has come down from 1849 to the present time, 
 without amendment or alteration. 
 
 Chapters III. and TV. of the same title also relate to real estate pro- 
 ceedings. The former, having reference to partition, will be noticed in 
 the next section, the latter, in the succeeding subdivisions of the present. 
 
 The provisions of .the Eevised Statutes, saved, by section 455, are con- 
 tained in chapter Y. of part III. (2 K. S., pp. 303 to 347, inclusive). 
 That chapter consists of eight titles. The last is strictly a special pro- 
 ceeding, regulating proceedings to discover the death of persons upon 
 whose lives any particular estate may depend. As such, it is beyond 
 the scope of the present work. The other seven refer to proceedings in 
 actions, and are as follows : 
 
 1. Ejectment. 
 
 2. Proceedings to compel determination of claims to real property. 
 
 3. Partition. 
 
 4. Nuisance. 
 
 5. Waste. 
 
 6. Trespass. 
 
 T. General provisions concerning actions of this nature ; which sub- 
 jects, so far as the enactments remain unrepealed, -^ill be noticed below 
 under their several heads. 
 
 . By the Eevised Statutes (2 E. S., 342, 343, section 23), the practice 
 in real actions had been assimilated to that in personal actions, except 
 where special provision was made to ,the contrary. The same intention 
 is carried out by the Code to its utmost limits, all distinction as to mere 
 matters of form being now wholly abolished by the section above cited. 
 
 Although that section is of itself full and explicit on that head, the 
 following may be cited as decisions in which the above principle is 
 clearly recognized. 
 
 As regards the essentials of an action, and the rights of parties, the 
 provisions of the Eevised Statutes above cited are wholly saved. 
 
or THE COMPLAINT. — § 150. 8*79 
 
 As regards mere formalities, as contradistinguished from matters of 
 substance, they are as wlioUy abolished. See Lawrence vs. Williams, 
 
 1 Duer, 585 (587) ; Langy%. Eoj>ke, 1 Duer, YOl ; Zangya. Wilhraham, 
 
 2 Duer, 171 ; Howard vs. Howard, 11 How., 80 ; Budd vs. Bingham, 
 18 Barb., 494 (498, 499) ; 8t. John vs. Pierce, 22 Barb., 362 ; PaUn vs. 
 Reynolds, 22 How., 353 ; HolmesN%. Davis, 21 Barb., 265. N. B.— The 
 reversal of this last case at 19 IST. T., 488, in no wise impairs this por- 
 tion of the decision. See also a long essay on this subject, at 1 C. E., 
 19. The doubts entertained in Traver vs. Traver, 3 How., 351 ; 1 C. E., 
 112, as to the applicabihty of the Code to this class of proceedings, were 
 expressed prior to the amendment of 1849. Since that amendment, 
 there can be no doubt upon the subject. 
 
 Proceeding to the specific consideration of this class of proceedings, 
 the first which presents itself is — 
 
 (5.) Ejectment. 
 
 The provisions of the Ee vised Statutes on this subject are numerous 
 and specific, and a large portion of them are retained. They form title 
 I. of chapter Y. (2 E. S., pp. 303 to 312), and consist of fifty-eight 
 sections. 
 
 It will be necessary to cite in detail, those which more immediately 
 relate to the framing of the complaint, and convenient to notice some 
 others — reserving their more detailed consideration for a future and 
 more appropriate stage. 
 
 By section 1 of the chapter in question, the ancient action of eject- 
 ment is retained, subject to the specific regulations then imposed. 
 
 Under section 2, ejectment may be brought in the same cases in 
 which a writ of right might then be- brought by law to recover land, 
 and by any person claiming an interest therein, in fee or for life, either 
 as heir, devisee, or purchaser. 
 
 By any widow entitled to dower, at any time after the expiration of 
 six months from the accruer of her right to recover such dower. 
 
 Section 3 limits the right of a plaintiff as follows: 
 
 § 3. No person can recover in ejectment, unless he has, at the time of 
 commencing the action, a valid subsisting interest in the premises claimecl, 
 and a right to recover the same, or to recover the possession thereof, or of 
 some share, interest, or portion thereof, to be proved and established at the 
 trial. 
 
 Section 4 provides thus as to the defendant : 
 
 § 4. If the premises for which the action is brought, are actually occupied 
 by any person, such actual occupant shall be named defendant in the declar 
 ration ; if they are not so occupied, the action must be brought against some 
 
880 OF THE COMPLAIKT. — § 150. 
 
 person exercising acts of ownership on the premises claimed, or claiming 
 title thereto, or some interest therein, at the commencement of the suit. 
 
 Section 5 provides that the action shall be commenced in the name 
 of the real plaintiffs, to whom all provisions of law concerning the les- 
 sors of a plaintiff shall apply ; and section 6 abolishes all the ancient 
 fictions. 
 
 Section 7 provides thus as to the contents of the declaration, i. e., the 
 complaint under the present system : 
 
 § 7. It shall be sufficient for the plaintiff to aver in his declaration, that, 
 on some day to be therein specified, and which shall be after his title accrued, 
 he was possessed of the premises in question, describing them as hereinafter 
 provided ; and, being so possessed thereof, that the defendant afterwards, ,on 
 some day to be stated, entered into such premises, and that he unlawfully 
 withholds from the plaintiff the possession thereof, to his damage, any nomi- 
 nal sum which the plaintiff shall think proper to state. 
 
 Section 8 thus, as to the description : 
 
 § 8. In such declaration, the premises claimed shall be described with con- 
 venient certainty, designating the number of the lot or township (if any) 
 in which they shall be situated ; if none, stating the names of the last occu- 
 pants of lands adjoining the same, if any ; if there be none, stating the natu- 
 ral boundaries, if any ; and if none, describing the premises by metes and 
 bounds ; or in some other way, so that from such description, possession of 
 the premises claimed may be delivered. 
 
 Section 9, as to statement of the plaintiff's interest, if undivided : 
 
 § 9. If such plaintiff claims any undivided share or interest in any premi- 
 ses, he shall state the same particularly in his declaration. 
 
 Section 10, generally as to statement, and especially as to dower : 
 
 § 10. If the action be brought for the recovery of dower, the declaration 
 shall state that the plaintiff was possessed of the one undivided third part of 
 the premises, as her reasonable dower, as widow of her husband, naming 
 him. In every other case, the plaintiff shall state whether he claims in fee, 
 or whether he claims for his own life, or for the life of another, or for a term 
 of years, specifying such lives, or the duration of such term. 
 
 Section 11, providing for the joinder of different parties, in different 
 courts, is now abolished by the code, as are also sections 12 to 16, as 
 to notice, service, etc. 
 
 Sections 17 to 24 inclusive, enable the defendant to enforce the pro- 
 duction of the authority of the plaintiff's attorney to sue. See on this 
 subject, Howard vs. Howard, 11 How., 80. 
 
 The remaining sections relate to the practice in a suit, when com- 
 menced. A large portion of them are obsolete, being superseded by pro- 
 
OF THE COMPLAINT. § 150. • 881 
 
 visions of tlie Code ; the remainder will be adverted to in due course, 
 hereafter. 
 
 The following may however be specially noticed : 
 
 Section 29, provides that, in an action against several defendants, if 
 it shall appear iipon the trial that their occupations are distinct,, the 
 plaintiff may be put to his election at the trial, against which he will 
 pi'oeeed. This rule does not apply however to several tenants, occupy- 
 ing different floors in the same building, the entirety of which is sought 
 to be recovered. See Pcarce vs. Ferris' JExecutors, 6 Seld., 280, be- 
 low cited. 
 
 The case of a plaintiff whose interest expires ^e^icZiSJifo lite, is provided 
 for by section 31. In tliis case he recovers his damages only, being non- 
 suited as to the possession. 
 
 Sections 43 to 54 inclusive, provide for the assessment of the plain- 
 tiff's consequent demand against the defendant, after recovery, of the 
 possession, by means of a suggestion on the record, instead of a" separate 
 action of trespass for mesne profits ; such suggestion to be filed and 
 issue joined upon it, and tried, as in the case of an action, and to be sub- 
 stantially in the same form as a declaration, in assumpsit for use and 
 occupation. See also, as to assessment of such damages at the circuit, 
 2 E. S., 342, sections 20, 21. See below, as to the present practice in this 
 respect. 
 
 And, lastly, by section 57, it is provided that 
 
 No action of ejectment shall hereafter be maintained by a mortgagee, 
 or his assignees, or representatives, for the recovery of possession of the 
 mortgaged premises. 
 
 His remedy lies in equity, by way of foreclosure. 
 
 The cases cited at the close of the remarks introductory to the 
 present section, have all of them peculiar application to this specific 
 remedy. 
 
 A provision is also made in section 17, title YII., of the portion of 
 the Kevised Statutes above referred to (2 E. S., 341, 342. section 17), 
 that 
 
 Whenever any action shall be brought against any tenant to recover 
 the land held by him, or the possession of such land, the landlord of such 
 tenant, and any person having any privity of estate with such tenant, or 
 Avith such landlord, in the premises in question, or in any part thereof, may 
 be made defendant with such tenant, in case he shall appear, or may, at his 
 election, appear without such tenant. 
 
 As to the liability for costs, of a landlord, defending in the name of 
 his tenant without such formal substitution, see Farmers^ Loan and 
 Trvcst Company vs. Kursch, 1 Seld., 558, 
 
 You I.— 56 
 
882 • OF THE COMPLAINT. — § 150. 
 
 Of course, an appearance of this nature may, probably, involve some 
 change in the framing of the complaint as originally contemplated. 
 
 Under the Code, as under the previous statutes and practice, the 
 plaintiff in ejectment is bound to make strict proof of his title. He 
 can only recover on the strength of that title, and not on any mere 
 defect or weakness in that of his adversary ; nor can he rest his case 
 upon any mere presumption, unsupported by proof; the presumption 
 lies, on the contrary, in favor of a defendant in possession. Fosgate 
 vs. Herkimer Manufacturing and Hydraulic Corwpany, 13 Barb., 352; 
 affirmed, 2 Kern., 580 ; Hill vs. Draper, 10 Barb., 454 ; Layman vs. 
 Whiting, 20 Barb., 659 ; Barton vs. Draper, 5 Duer, 130 ; Munro vs. 
 Merchant, 26 Barb., 383 (396). And this principle holds equally good 
 as against the people, as well as against an individual, both standing on 
 the same footing. The People vs. The Rector of Trinity Church, 30 
 Barb., 537. 
 
 A defendant, who has come into possession, under title derived from 
 the plaintiff, cannot, however, claim the benefit of this rule, or con- 
 trovert the right of the latter. Spencer vs. Tdbey, 22 Barb., 260 ; 
 Glen vs. Qibson, 9 Barb., 634. Spe also Glute vs. Voris, 31 Barb., 511. 
 
 In fencer vs. Tdbey, supra, actual possession on the part of the 
 plaintiff, at the time of making the contract, under which the defendant 
 had entered, was held sufficient to support the action, as against the 
 latter, though, as between the plaintiff and another, his title was in 
 dispute. Possession is prima facie evidence of title, and that of the 
 highest estate, to wit, of a seisin in fee. Hill vs. Draper, 10 Barb., 
 454. See as to the presumption of a conveyance, Munro vs. Merchant, 
 26 Barb., 383 (408). And, where nothing but possession is shoAvn on 
 either side, priority of possession will be sufficient to authorize a 
 recovery. Brewster vs. Striker, 1 E. D. Smith, 321. 
 
 Such proof will not avail, where the title, and the right to immediate 
 possession appear, by other portions of the evidence, to be in another 
 party. Same case, stated in note, p. 335, to have been affirmed in 
 tihe Court of Appeals. 
 
 To enable a plaintiff to recover, the interest claimed by him must 
 be visible and tangible, and capable of ascertainment and delivery by 
 the sheriff on execution ; and a right of entry must exist, at the com- 
 mencement of the action. When these requisites concur, the action 
 will be maintainable. Eowan vs. Kdsey, 18 Barb., 484. 
 
 Ejectment will not, therefore, lie in respect of an incorporeal heredit- 
 ament, such as an easement, or tlie like. Child vs. Chappell, 5 Seld., 
 246 ; Adams vs. Saratoga a,nd Washington Railroad Company, 11 
 Barb., 414. (IST. B.— The reversal, 6 Seld., 328, was wholly technical 
 and does not touch this ground.) Redfield vs. Utica and Syracuse Rail- 
 
OF THE COMPLAINT. § 150. 883 
 
 road Company^ 25 Barb., 54 ; Northern turnpike Road vs. Smith, 15 
 Barb., 355. 
 
 It will lie, however, for land under water. Champlavn and St. Zavj- 
 rence Bailroad Company vs. Valentine, 19 Barb., 484. Also, for an 
 entry upon unoccupied lands, the title to which is shown to be in the 
 plaintiff. Munro vs. Merchwnt, 26 Barb., 383. 
 
 A mere agreement, as to the boundary lines of adjacent properties,' 
 is not, per se, any bar to an ejectment. Terry vs. Chandler, 16 N. T., 
 354. But lengthened acquiescence in such an arrangement, sufficient 
 to bring the case within the statute of limitations, will of course have 
 that effect. Baldwin vs. Brown, 16 IS". Y., 359. 
 
 In relation to what Avill constitute a dedication to the public, 
 sufficient to preclude the owner of the soil from maintaining eject- 
 ment, as against parties making use of the easement thus conferred, see 
 Child vs'. Campbell ; Adam^ vs. Saratoga and Washington Railroad 
 Company ; and Redfield vs. Utica and Syracuse Railroad Company, 
 above cited. 
 
 Such a dedication, when intended, may be revoked before actual 
 accomplishment, and, in such case, ejectment may be maintained by the 
 owner. To render it complete, there must be either an acceptance by 
 the public authorities, or an actual user by the public. Bissell vs. New 
 York Central Railroad Company, 26 Barb., 630. See also City of 
 Oswego vs. Oswego Canal Company, 2 Seld., 257. And, to render such 
 a dedication complete, and available to the public, as such, as against 
 the rights of the owner of the soil, a street, when laid out, and even 
 opened, must be a thoroughfare. Holdane vs. Trustees of Coldspring, 
 23 Barb., 103. See, as to what will be sufficient to constitute an accept- 
 ance on the part of the public, of a dedication when made, Clements ys. 
 Village of West Troy, 10 How., 199, overruling the stricter doctrine 
 maintained on a previous hearing of the same case, 16 Barb., 251. 
 
 Nor does such a dedication impair the rights of the owner of the soil, 
 to recover damages, as against parties using the property so dedicated, 
 in a manner inconsistent with the public easement. Williams vs. New 
 York Central Railroad Company, 16 N. Y., 8Y ; reversing same case, 
 
 18 Barb., 223. 
 
 In an action of this nature, the plaintiff may impeach a deed under 
 whieli the defendant claims title, both on legal and also on equitable 
 oTounds both being now capable of joinder in the same proceeding. 
 Iphillips vs. Gorham, 17 N. Y., 270. 
 
 The plaintiff must, however, show either an immediate right to posses- 
 sion or a leo-al title in himself. He cannot recover on a mere inchoate 
 right. So held as to a party entitled as purchaser under an execution sale, 
 after the expiration of the time for redemption, but who brought eject- 
 
884 OF THE COMPLAINT. — § 150. 
 
 ment, before obtaining bis deed from the sheriff. Smith vs. Colvin, 17 
 Barb., 157. 
 
 Ejectment will not lie against a partj, legally in possession, and 
 
 against whom the plaintiff has a remedy in equity. So held, as to the 
 
 assignee of a mortgagee in possession. St. John vs. BuTnpstead, 17 
 
 _Barb., 100 ; and, as to such a mortgagee, Randall vs. Haab, 2 Abb., 307. 
 
 Nor can a plaintiff, though he has substantially acquired a legal right 
 to the property, maintain his action, whilst any step remains to be taken 
 by him, in order to perfect that right. So held, as to tlae case of a pur- 
 chaser under a statutory foreclosure, who brought ejectment, before 
 filing the affidavits and other proofs, as required by the statute. Bryan 
 vs. Butts, 37 Barb., 503. So also, if there be this or any other imper- 
 fection in the proceedings. Layman vs. Whiting, 20 Barb., 559. 
 
 Though, on the contrary, a plaintiff may produce a deed otherwise 
 valid at law, he cannot recover, if the proofs disclose an adverse equita- 
 ble title. Garfisld vs. Hatmalcer, 15 IS". Y., 475. See also Thurmojn vs. 
 Anderson, 30 Barb., 621. 
 
 It is no longer necessary, in order to the validity of an action in eject- 
 ment, for the non-payment of rent, or breach of covenant, that an actual 
 entry should be made, or attempted by the plaintiff before suit brought, 
 ■nor need the notice, required by section 3 of chapter 274 of 1846, 
 abolishing distress for rent, be given, in a case where it is clear there 
 are no goods upon the premises. Mayor of New Yorh vs. Campbell, 
 18 Barb., 156. See also, as to entry, Lavjrence vs. Williams, 1 Duer, 
 585 ; or, when the stipulations of the lease specifically provide for re- 
 entry, without imposing notice, or an insufiiciency of goods upon the 
 premises, as a condition, Keeler vs. Davis, 5 Duer, 507. 
 
 Woris the last mentioned provision applicable, where the breach arises 
 in respect of any other covenant than that for payment of rent. Garner 
 vs. Hannah, 6 Duer, 262. As to what will be a sufiicient notice of the 
 above nature, see Van Rensselaer vs. Sinith, 27 Barb., 104. A notice 
 nnder the statute in question, supplies the place of, and renders any 
 formal demand of rent, or proof of insufiiciency of goods unnecessary. 
 Van Rensselaer vs. Ball, 19 IST. Y., 100 (108) ; The Same vs. Snyder, 
 3 Kern., 299. 
 
 As a general rule, however, a court, in exercise of its equitable juris- 
 diction, will relieve against a forfeiture of this description. See Garner 
 vs. Hannah, above cited. ISTor can equitable relief be sought in an 
 action of this nature. Linden vs. Hepburn, 3 Sandf., 668 ; 5 How., 188 • 
 3 C. E., 65 ; 9 L. 0., 80, in which case the plaintiff was put to his 
 election. See also, as to the incompatibility of joining a claim for forfeit- 
 ure, and also for damages for breach of covenant, in the same proceeding, 
 UnderMll vs. Saratoga atid Washington Railroad Company, 20 Barb.^ 
 
OF THE COMPLAINT, — § 150. 885 
 
 455. See likewise, as to the incompatibility of the joinder of eject- 
 ment and trespass, BuM vs. Bingham, 18 Barb., 491. 
 
 A forfeiture cannot be created by implication, or by mere words. 
 Be Lanceij vs. Oanong, 5 Seld., 9 ; affirming satne case, 12 Barb., 120. 
 Nor can ejectment for non-payment of rent be ever maintainable, unless 
 the demise contains a positive proviso for re-entry, in that event. Same 
 case ; Van Eemselaer vs. Jewett, 2 Comst., 141 (148). See also last 
 case, as to the strict regularity which the courts will require, in relation 
 to tlie making of a demand for rent, when requisite, in order to sustain 
 a subsequent ejectment. 
 
 A forfeiture, when incurred, will not be waived by an act of the 
 landlord, done in ignorance of its existence. Keeler vs. Bavis, 5 
 Duer, 607. 
 
 Ejectment in respect of forfeiture for non-payment is maintainable, 
 not merely as between landlord and tenant, strictly considered, but, 
 also, in respect of a perpetual rent-charge, reserved upon an absolute 
 conveyance or demise. Van Renssdaer vs. Ball, 19 N". T., 100 ; The 
 Same vs. Snyder, 3 Kern., 299. 
 
 As to the rule in relation to heirship, in a case where there is a con- 
 currence of illegitimacy and alienage, in the course of tracing the 
 plaintiff's title, see St. John vs. Northrup, 23 Barb., 25. But, as 
 regards resident aliens, mere alienage in the jDlaintiff or his ancestor, 
 is no bar to the action, until office found. Ford vs. Harrington, 16 
 N. Y., 286 (294). See also, as to protection of the treaty rights of an 
 alien in unoccupied lands, Munro vs. Merchant, 26 Barb., 383. 
 
 As to the right of a ferns covert, to maintain ejectment in her own 
 sole name, or in conjunction with her husband, in respect of lands held 
 to her separate use, see Barhy vs. Callagham,, 16 N. Y., 71 ; Ingraham 
 vs. Baldwin, 12 Barb., 9 ; affirmed, 5 Seld., 45. See also Hippie vs. 
 Gilborn, 8 How., 456, below cited, under Partition. 
 
 Transfer by the defendant to a third party, pending the action, abates 
 the proceedings, and creates, in fact, a new cause of action against the 
 transferree. Mosley\s. Albany Northern Railroad Company, 14 How., 
 71 ; Putnam vs. Van Buren, 7 How., 31. 
 
 As to proceedings in ejectment being absolutely abated, by the 
 death of a party before verdict or report, see Kissam vs. Hamilton, 20 
 How., 369. 
 
 The only judgment that can be taken by a plaintiff, after abatement 
 by alienation, is for damages under section 31 of the portion of the Ee- 
 vised Statutes as above cited. His right to possession must be asserted 
 in a fresh action. Lang vs. Wilh-aham, 2 Duer, 171. 
 
 In the ordinary action of ejectment, for lands held in common, it is 
 not necessary that all the tenants in common should unite as coplain- 
 
886 OF THE COMPLAINT.— § 150. 
 
 tiffs. Such joinder is only necessary, wlien the action is brought as a 
 substitute for a writ of right, and to establish a common title to the 
 whole of the premises. Kellogg vs. Kellogg, 6 Barb., 116. 
 
 As to the inexpediency of submitting a controversy of this nature 
 under section 372, instead of going through the ordinary forms of an 
 action, especially with regard to the statutory right to a new trial, see 
 Lang vs. Ropke, 1 Duer, 701. 
 
 It is not essential that the title of a plaintiff in ejectment, should be 
 immediate, at the time of its original acquisition. A lessee of the prem- 
 ises, for a term to commence on a future day, was accordingly held en- 
 titled to maintain ejectment against occupants of the demised premises, 
 in a suit, brought after such term had actually commenced. TruU vs. 
 Granger, 4 Seld., 115. 
 
 As regards the defendants in such cases, the primary defendant is the 
 actual occupant of the premises. It is not, in strictness, necessary at the 
 outset of the action to join any other, and, where there is such an occu- 
 pant, he must be joined in all cases, the action being strictly possessory 
 in its nature. Tliis part of the practice is still regulated by section 3 of 
 the portion of the Revised Statutes above cited. Where there exists no 
 such occupant, the action must be brought against the otlier parties in 
 that section mentioned, and in the order there prescribed. See Taylor 
 vs. Grane, 16 How,, 359 ; People vs. The Mayor of New Yorh, 28 
 Barb., 240 ; 17 How., 56; 8 Abb., 7 (15). See, however, as to the case 
 of a mere occupant, not holding any interest, but in charge under supe- 
 rior oflBcers, People vs. Amireoht, 11 Abb., 97. 
 
 Ejectment for dower is maintainable by a doweress, against the actual 
 occupant alone, and this, before assessment or admeasurement (though 
 provision for that purpose should be made in the judgment), and also 
 without previous demand. ElliooU vs. Hosier, 3 Seld., 201 ; affirming 
 same case, 11 Barb., 574. 
 
 As to property of a religious incorporation, the corporation is the 
 proper party to be sued as occupant, and not its trustees. The former 
 is the actual owner, the latter mere temporary fiduciaries. Zwcas vs. 
 Johnson, 8 Barb., 244. 
 
 Ejectment will not lie, against parties who are not and never have been 
 in possession, or receipt of the rents or profits of the property claimed. 
 Van Home vs. Everson, 13 Barb., 526 ; Putnam vs. Van Buren, 7 
 How., 31. See also Van Buren vs. CooMurn, 14 Barb., 118 ; Palen 
 vs. Reynolds, 22 How., 353. 
 
 jSTor, as a general rule, and unless he shall elect to appear under the 
 provision of the statute, will it lie, in the first instance, against a lessor 
 not in possession. Champlain and St. Lawrence Railroad Gompany 
 vs. Valentine, 19 Barb., 484 ; People vs. The Mayor of New York 
 
OF THE COMPLAINT. — § 150. 887 
 
 supra ; ElUcott vs. Mosier, swpra. See, liowever, Fosgate vs. Herkimer 
 Manufacturing and Hydraulic Company, below cited. 
 
 In an action brought for the recovery of an entire building, separate 
 tenants of different rooms, or stories, may all be joined as defendants, 
 and a recovery may be had against all. They are joint trespassers ; nor 
 will the plaintiff be bound to elect, under the provisions of the statute 
 (§ 29), as to the holders of several interests. Pea/rce vs. Ferris's Fxeou- 
 tors, 6 Seld., 280 ; affirming same case, reported as Pea/rce vs. Golden, 
 8 Barb., 522. In Fosgate yb. Herkimer Manufaaturvng and Hydraulic 
 Company, 9 Barb., 287, the possession of the defendants, as to the land, 
 forming part of the premises sought to be recovered, was clearly several. 
 
 The objection as to parties must, in order to be available, be taken 
 at the outset of the suit, by demurrer ; if not, it cannot be f aised at the 
 hearing. Fosgate vs. Herkimer Manufacturing and Hydraulic Com- 
 fany (on further trial), 12 Barb., 352 ; affirmed, 2 Kern., 580. 
 
 In the same case it is held that, where a landlord, or where parties 
 other t"han the actual occupant, claim an interest in the premises sought 
 to be recovered, it may be admissible, and even proper to join them as 
 additional parties defendant in the first instance, under the authority 
 conferred by section 118, and in order to a complete determination df 
 the controversy, inserting the necessary averments, without waiting 
 the signification of their election to be so brought in^ under the provi- 
 sion of the Revised Statutes above referred ^to. See per Crippen, J., 2 
 Kern., 583. An appearance and answer by the party so joined will 
 clearly amount to an election, and will make the pleading regular. 
 This view was acted upon, and an abated action, continued against the 
 heirs at law of a deceased defendant, in Waldorph vs. Bortle, 4 How., 
 358, it being held, moreover, that if there existed an actual occupant, 
 he ought also to be joined (p. 359). See likewise, as to ejectment for 
 dowerj Ellicott vs. Mosier, above cited, 3.Seld., 201 (207, 208). 
 
 In regard to the framing of the complaint in this action, the requisi- 
 tions of the Eevised Statutes (see sections 7 to 10, above cited), should 
 be kept strictly in view, and the complaint framed in accordance witli 
 their spirit. 
 
 In Wai'ner vs. Nelligar, 12 How., 402, the court went so far as to 
 strike out a statement of the conveyance under which the plaintiff's 
 title was derived, on the ground that all beyond what was required by 
 the Kevised Statutes, was redundant. See also Ensign vs. Sherman, 
 13 How., 35 ; reversed, 14 How., 439, as below stated. 
 
 This case seems, however, to carry the doctrine a little too far, and 
 to establish too strict a rule, the reservation of the former statutory 
 provisions effected by section 455, being substantial, and uotforinaliu 
 its nature. (See 28 Barb., 235, per Balcom, J.). 
 
888 OF THE COMPLAINT. § 150. 
 
 Those portions of the form of allegation, prescribed by the provisions 
 above referred to, whicli are strictly formal in their nature, and are 
 not necessary to be sustained by actual proof on the trial, are not, it 
 would clearly seem, essential, under the Code, the spirit of which is to 
 exclude all merely formal, and, a fortiori, all fictitious allegations. 
 Of this nature is the allegation of actual possession, and of the date of 
 that possession, and of his actual ejection from the premises by the 
 defendant, in a case^ where those specific facts do not really exist, as 
 between the plaintiff and the defendant. In such a case, it will be suf- 
 ficient to aver in the complaint that the plaintiff has lawful title as 
 owner, &c. (describing the nature of his ownership), and that the defend- 
 ant is in possession of the premises, and unlawfully withholds such pos- 
 session. So far, the strict letter of the section 7 may, and should be 
 departed from. As regards the statement of the facts which constitute 
 the plaintiff's title or right to possession, they are, however, in full 
 operation, and relieve him from the necessity of any detailed allegation 
 on the subject, those facts being merely probative, not constitutive in 
 their nature. See Ensign vs. Sherman, 1-1 How., 4:39 ; reversing same 
 case, 13 How., 35, which held that, when the statutory form is not 
 strictly followed, the facts, showing the defendant's possession to be 
 unlawful, must be specifically averred. See also, Sanders vs. Leavy, 
 16 How., 308 ; ^¥aUer vs. Lockwood, 23 Barb., 228 ; 4 Abb., 307; The 
 People Ys. The Mayor of New York, '2.% Barb., 240 (248); 17 How., 
 56 ; 8 Abb., 7 (15). See likewise. Garner vs. Manhattan Bwilding 
 Association, 6 Duer, 539, where a complaint, alleging seizure and pos- 
 session in the ancestor of the plaintiffs, title in the plaintiff's as his 
 heirs, and wrongful possession on the part of the defendants, was held 
 sufficient. 
 
 By this series of decisions, Lawrence vs. Wright, 2 Duer, 673, holding 
 that the facts showing that the plaintiff has a legal title must be spe- 
 cifically averred, may be considered as overruled. 
 
 The old practice of stating a cause of action against the defendant, in 
 different counts, as applicable to the rights of different plaintiffs, per- 
 mitted by the Revised Statutes, is wholly abolished by the Code. St 
 John vs. Pierce, 22 Barb., 362. 
 
 A total omission to describe the premises sought to be recovered, in 
 a manner sufiicient for their identification, will be a fatal objection to 
 the complaint. Budd vs. Bingham, 18 Barb., 494. A slight uncer- 
 tainty may, however, be disregarded or amended. See St. John vs. 
 Iforthrup, 23 Barb., 25. 
 
 To^sustain an action of ejectment by one tenant in common, against 
 another, actual ouster, or some act amounting to a total denial of the 
 plaintiff's right, must be alleged. Edwards vs. Bishop, 4 Comst., 61. 
 
OF THE COMPLAINT. — § 150. 889 
 
 A mere assertion of right, or claim of title, on the part of the defend- 
 ant, will not be sufficient to maintain the action, if not followed np by 
 acts amounting to a positive or virtual dispossession. Same case. Where, 
 by the complaint, it appears that he is not deprived of actual possession, 
 his remedy for acts of mere disturbance of, or interference with that 
 possession, lies in trespass instead of ejectment, and, if he desires to 
 obtain the determination of an adverse claim of title, that remedy lies 
 by proceedings under the statute for that purpose. Taylor vs. Grane, 
 15 How., 359. See also Peck vs. Hiler, 31 Barb., 117. 
 
 As to what acts will amount to an actual disseisin, so as to create a 
 freehold by wrong, see McGregor vs. Gomstock, 16 Barb., 427. 
 
 As to the power of the court to disregard or amend immaterial 
 variances, and this, even prior to the Code, and irrespective of the addi- 
 tional facilities which it gives, see Kellogg vs. Kellogg, 6 Barb., 116 
 (131, and cases cited). 
 
 Since the passage of the Code, the remedy of a plaintiff, recovering in 
 ejectment, in respect of mesne profits of the land recovered, is by action, 
 and not by suggestion on the record, according to the former practice, 
 and the sections of the Eevised Statutes before referred to. • The action 
 so brought will, however, still be governed by the latter provisions, so far 
 as regards the principle upon which a recovery is to be had, and the 
 measure of that recovery. Holmes vs. Davis, 19 IST. Y., 488. See also 
 same case, in the court below, 21 Barb., 265 ; the reversal of that deci- 
 sion only going to the measure of damages, and not affecting the gen- 
 eral pi-inciple laid down. See, as to a similar action brought by a 
 defendant, originally ejected, but subsequently restored to his possession 
 by a writ of restitution, SJieldon vs. Van Slyhe, 16 Barb., 26. 
 . In Livingston vs. Tanner, 12 Barb., 481, it is held that a plaintiff 
 may elect either to bring a separate action for this purpose, consequent 
 upon his recovery in ejectment, or to assert both claims in one and the 
 same suit. In the latter case, he must, however, include, in his com- 
 plaint, separate allegations, the same in substance as those required by 
 the Eevised Statutes to be inserted in a suggestion, or he cannot recover 
 in this respect. He must, in fact, insert the ordinary statements in a 
 complaint for use and occupation. See likewise Holmes vs. Davis, 21 
 Barb., 265 (274) ; The People vs. The Mayor of New York, 28 Barb., 
 240 (250) ; 17 How., 56 (64) ; 8 Abb., 7 (15). 
 
 The Code itself (section 167, subdivision 5) seems, in fact, clearly to 
 admit and to provide for this species of joinder. See Tompkins vs. 
 'White, 8 How., 520 (521). 
 
 But this principle must not be carried too far, and, in strictness, it 
 would seem to be confined to those cases, in which the demand for 
 recovery of possession, and the claim* in respect of mesne profits, are 
 
890 OF THE COMPLAINT. — § 150. 
 
 made against one and the same person. In ejectment brought against 
 a mere occupant, without joinder of his landlord, a claim in respect of 
 mesne profits is clearly inconsistent with the ordinary principles of an 
 action for use and occupation. And, even when the landlord and ten- 
 ant are both defendants, the latter might have a right to object for mis- 
 joinder, under the last clause of section 16T, to the claim for mesne 
 profits extending to a period beyond that of his own occupation. See 
 The People vs. Mayor of New Yorh, above cited. 
 
 ITor can a claim of this nature be asserted against one only of two 
 joint defendants, on a mere allegation of the receipt of rents by him. 
 Such a claim is several, and can only be recovered in a several action, 
 for money had and received. To authorize a recovery for mesne profits, 
 in the same action in which ejectment is sought, some connection must 
 be shown between the alleged withholding of possession, and that of 
 the rents and profits sought to be also recovered. Tornphins vs. White, 
 8 How., 520, above cited. 
 
 Nor can a claim to real property be asserted, under the 'form of an 
 action for money had and received. Carpenter vs. Stiilwdl, 3 Abb., 459. 
 
 {e.) Teespass on Lands. 
 
 Under title VI., chapter V., part III., of the Kevised Statutes before 
 referred to (2 E. S., 338, 339), treble damages are recoverable, in an 
 action of this nature. 
 
 1. For the wilful taking away, or destruction of growing timber. 
 Sections 1, 2, 3. 
 
 2. In respect of a forcible ejectment, or exclusion from real pro- 
 perty. 
 
 See also, chapter 234 of 1841, sections 8 and 9, as to the remedy for a 
 trespass on Indian lands. 
 
 An injury to the plaintiff's possession being the gist of the action, 
 an allegation and proof of such possession is sufficient to enable him to 
 maintain it. Vide Althause vs. Rioe, 4 E. D. Smith, 847. 
 
 But, for such purpose, the plaintiff must either show actual possession, 
 or title in himself, at the time the injury was committed. A mere alle- 
 gation of a conveyance to him, prior to that injury, will be insufficient, 
 unless it be shown that his grantor was in possession, or had title., 
 Gardner vs. Heart, 1 Comst., 528. 
 
 Where no paper title is shown, actual possession will, of itself, be 
 sufficient to maintain the action, and, where there is a conflict as to the 
 facts, the party proving the oldest possession will prevail. Kellogg vs. 
 Vollentme, 21 How., 226. 
 
 If out of possession himself, the plaintiff cannot recover in this de- 
 scription of action, against parties in actual possession, under claim of 
 
OF THE COMPLAINT. — § 150. 891 
 
 title. Frost vs. Duncan^ 19 Barb., 560. Nor can lie unite a claim of 
 this nature, in the same complaint with one for ejectment. Budd vs. 
 Bingham, 18 Barb., 494. 
 
 A landlord is, however, entitled to recover, as against his tenant, for 
 an injury to the freehold, though committed before the expiration of 
 his term. Ray vs. Ayers, 5 Duer, 494. 
 
 Trespass will not lie in this state, for injury to lands situate in another. 
 Surd vs. Miller, 2 Hilt., 540. 
 
 An administrator is entitled to maintain a suit, in respect of a tres- 
 pass, committed on the lands of his intestate, during the latter's lifetime. 
 Rockwell vs. Saunders, 19 Barb., 473 (481). See 2 K. S., 114, §§ 4, 5 ; 
 ibid., 447, § 1. 
 
 J!^or does a dedication of land to the public use, preclude the owner 
 from maintaining trespass, for an user of such land, inconsistent with the 
 public easement. Williams vs. JV^ew ITork Central Railroad Oompa/ny, 
 16 ]Sr. Y., 87, before cited. 
 
 As to acts on the part of a landlord towards his tenant, which will 
 constitute a trespass, though falling short of an eviction, see Vatel vs. 
 Herner, 1 Hilt., 149 ; Randall vs. Alhurtis, 1 Hilt., 285 ; Gamjabell 
 vs. Shields, 11 How., 565 ; Peck vs. Siler, 31 Barb., 117. 
 
 Where, on a geneiral complaint of this nature, the defendant sought 
 to justify, a new and specific assignment of the trespass complained of, 
 was held to be neither necessary nor allowable. Stewart vs. WalUs, 30 
 Barb., 344. Sed query, whether the same object might not have been 
 attained, by amendment on the answer coming in. 
 
 As to the right of an owner of lands to recover damages, in respect 
 of the diversion of a running stream, and the circumstances under which 
 it may be asserted, see Bellinger vs. New York Central Railroad Com- 
 pany, 23 N. T., 42 ; Eaight vs. Prioe, 21 JST. Y., 241 ; Lampmam, vs. 
 Milks, 21 N. Y., 505 ; Pimley vs. Clark, 32 Barb., 268. 
 
 As to the right of one adjoining proprietor of lands, to maintain tres- 
 pass against another, for cutting trees standing on their boundary line, 
 see Relyea vs. Beaver, 34 Barb., 547. 
 
 It has been held, that a remainder-man may maintain an action, for 
 injury to the inheritance by acts of this nature. Also, that such an 
 action would lie against an intended purchaser, whilst actually in pos- 
 session. Tan Deusen vs. Toung, 29 Barb., 9. 
 
 As to the liability in damages, for an adjoining owner interfering 
 with a party-wall, without consent, see Potter vs. WUU, 6 Bosw., 644. 
 
 ((^.) Slandeb or Title. 
 Another injury in connection with real estate, for which redress is 
 obtainable by action, is that of slander of title. 
 
892 OF THE COMPLAINT. — § 150. 
 
 To sustain it, there must be want of probable cause, and special 
 damages must be alleged, and that circumstantially. A general allega- 
 tion of loss will not be sufficient. Nor will a defendant be responsible 
 for what he says or does, in pursuance' of a claim of title in himself, 
 provided there be any ground for such claim. Bailey vs. Dean, 5 
 Barb., 297. 
 
 In Kendall vs. Stone, 1 Seld., 14 ; reversing same case, 2 Sandf., 269, 
 the I'ule is laid down thus : to maintain an action for slander of title to 
 lands, the words spoken must not only be false, but they must be 
 uttered maliciously, and be followed, as a natural and legal conse- 
 quence, by a pecuniary damage to the plaintiff, which must be specially 
 alleged and proved. Nor can a plaintiff recover damages, by reason of 
 the breaking off of a contract, occasioned by words spoken by the 
 defendant, when such breaking off is by his own voluntary act. 
 
 Where the damages arise from the plaintiff's being precluded from 
 selling or mortgaging the property which is the subject of the slander, 
 it is essential, in stating a cause of action, to name the person or persons 
 who refused, from that cause, to loan or purchase. An omission to do 
 so will render the complaint demurrable. Irniden vs. OraJiam, 1 Duer, 
 670 ; 11 L. 0., 185. 
 
 (e.) DETEEMrN"ATio]sr OF Claims. 
 
 This, and the two following heads, form the subject of a special chap- 
 ter in the Code, chapter lY., title XIII., of part II. 
 
 The provision on this particular subject is contained in section 449 
 (dating from 1849), which runs as follows : 
 
 § 449. Proceedings to compel the determination of claims to real property, 
 pursuant to the provisions of the Revised Statutes, may be prosecuted by 
 action under this act, without regard to the forms of the proceedings, as 
 they are prescribed by those statutes. 
 
 The statutory provisions on the subject, are contained in title II., 
 chapter Y., part III., of the Eevised Statutes, 2 E. S., 312 to 316. They 
 have, however, been extensively amended ; first, in part by chapter 50, 
 of 1848— see 3 E. S., 711 (3d edition) ; and latterly, by chapter 511, of 
 1855, p. 943, which substantially remodels the whole title, absolutely 
 repealing sections 4, 8, 9, 10, 11, 12, and adding, by section 11 of that 
 measure, a right of appeal, as in other actions under the Code. 
 
 By chapter 116, of 1854, p. 276, the provisions in question, as they 
 then stood, were extended to corporations, who were enabled to proceed 
 under them, in the same manner as individuals, with certain modi- 
 fications in form as there prescribed. 
 
 Section 1 (amended in 1848) provides thus : 
 
OF THE COMPLAINT. — § 150. 893 
 
 Where any person singly, or he and those whose estate he has, shall have 
 been for three years in the actual possession of any lands or tenements, 
 claiming the same in fee or for life, or for a term of years not less than ten, 
 he may compel a determination upon any claim, which any other person 
 may make, to any estate in fee or for life, or for any term of years not less 
 than ten, in possession, reversion, or remainder, to such lands or tenements, 
 in the inanner and by the proceedings hereinafter specified. 
 
 Section 2 (amended in the same year) runs thus : 
 
 § 2. He shall serve a notice, subscribed with his name and place of resi- 
 dence, on such claimant, stating, 
 
 1. His right to the premises demanded, in a brief manner, and whether 
 his estate therein is for fee or for life, or for a term of years not less than 
 ten, and whether he holds the same as heir, devisee, or purchaser, with the 
 source or means by which his right immediately accrued to him. 
 
 2. The premises claimed, with the same certainty as hereinbefore required 
 in a declaration in ejectment. - 
 
 3. That such premises then are, and for the three years preceding such 
 notice have been, in his actual possession, or in the actual possession of him- 
 self and those from whom he derives his title ; and, 
 
 4. That the person to whom such notice is directed, unjustly claims title 
 to such premises, and that, unless such person appear in the Supreme Court 
 %rithin the time, and assert his claim, in the manner provided by law, he 
 and all persons daiming under him, will be forever barredfrom all claim to 
 any estate of inheritance or freehold, or for a term of years not less than ten, 
 in possession, reversion, or remainder, to the premises described in such 
 notice. 
 
 Section 3 proceeds as follows : 
 
 § 3. Such notice can be directed to and served, only upon a person being 
 at the time of full age and not insane, nor imprisoned on any criminal charge 
 or conviction, and not being a married woman ; and it shall be served, by 
 delivering a copy thereof personally to the individual to whom it is directed. 
 
 The remainder of the statiite, as amended and remodelled in 1855, 
 goes on to provide as to the appearance and answer of the defendant, if 
 he contests, and for the adjudication \ipon, and final and conclusive dis- 
 position of the controversy thus created ; or for a perpetual bar to the 
 assertion of sucb claim, as against the plaintiff, should the defendant 
 neglect to appear, or fail to establish the claim thus sought to be deter- 
 mined. 
 
 Prior to the amendments of 1855, it was doubted whether, notwith- 
 standing the express provision in section 449, the very nature of these 
 proceecMngs did not render it impossible for them to be carried on, in con- 
 formity with the forms of the Code, or otherwise than as a strictly statu- 
 tory proceeding. See Crane vs. Sawyer, 5 How., 372 ; 1 0. B. (N. S.), 
 
894 OF THE COMPLAINT. — § 150. 
 
 30. See, howevei-, obiter dictum in Stryher vs. Lynch, 11 L. O., 116 
 (118). This view was, however, controverted in Hammond vs. Tillot- 
 son, 18 Barb., 332, in which case, it was considered that an action in the 
 ordinary form under the Code is the proper mode of assertion of this 
 remedy, and that a complaint, drawn out and subscribed in the ordinary 
 manner, and which stated substantially all that was required to be sta- 
 ted, and demanding the like relief, as was directed to be specified in the 
 notice prescribed by section 2 (jf this portion of the Revised Statutes, as 
 above cited, was a sufiicient and proper form of bringing the plaintiff's 
 case before the court. 
 
 The amendments of 1865 give additional weight to this view, which 
 is doubtless correct. The authority of Hammond vs. Tillotson is ac- 
 knowledged, and its principles carried out in Mann vs. Provost, 3 Abb., 
 446, in which a judgment by default, obtained by the plaintiff in pro- 
 ceedings of this nature, was opened upon terms, under the general au- 
 thority conferred by section 174. 
 
 To authorize a proceeding of this nature, the claim of the defendant 
 must be adverse to that of the party in possession. A tenant for life 
 cannot maintain it, against devisees in remainder. Nor can it be insti- 
 tuted by on-e who is not in possession himself. Onderdonh vs. Mott, 34 
 Barb., 106. 
 
 (/.) Waste. 
 
 This form of action is thus provided for, by sections 450 to 452 of 
 the Code, first passed in 1849, and which have come down without 
 amendment. 
 
 § 450. The action of waste is abolished, but any proceeding heretofore 
 commenced, or judgment rendered, or right acquired, shall not be affected 
 thereby. Wrongs heretofore remediable by action of waste, are subjects of 
 action as other wrongs, in which action there may be judgment for dama- 
 ges, forfeiture of the estate of the party offending, and eviction from the 
 premises. 
 
 § 451. The provisions of the Revised Statutes relating to the action of 
 waste, shall apply to an action for waste, brought under this act, without 
 regard to the form of the action, so far as the same can be so applied. 
 
 § 452. Judgment of forfeiture and eviction shall only be given in favor of 
 the person entitled tO the reversion, against the tenant in possession, when 
 the injury to the estate in reversion, shall be adjudged in the action, to be 
 equal to the value of the tenant's estate, or unexpired term, or to have been 
 done in malice. 
 
 The provisions of the Revised Statutes in relation to this action; as 
 above referred to, will be found in title Y., chapter V. of part III., 2 
 R. S., pp. 384 to 338. 
 
OF THE OOMPIAIKT. § 150. 895 
 
 The provisions requiring citation on the present occasion, are as 
 follows : 
 
 The rights of plaintiffs are thus provided for, by sections 1 to 4 inclu- 
 sive, and also by section 20 : 
 
 § 1 . If any guardian, or any tenant by the courtesy, tenant in dower, or for 
 term of life or years, or the assigns of any such tenant, shall commit waste 
 during their several estates or terms, of the houses, gardens, orchards, lands 
 or woods, or of any other thing belonging to the tenements so held, without 
 a special and lawful license in writing so to do, they shall be respectively 
 subject to an action of waste. 
 
 See, as to waste occasioned by cutting timber, McGregor vs. Brown, 
 6 Seld., 114. 
 
 •) 
 
 § 2. In case any such tenant shalllet or grant his estate, and still retain 
 possession of the same, and commit waste, the party entitled to the reversion 
 of the tenements, may maintain his action of waste against such tenant. 
 
 § 3. If one joint tenant, or tenants in common, shall commit waste of the 
 estate held in joint tenancy or in common, he shall be subject to an action of 
 waste, at the suit of his cotenant or tenants. 
 
 § 4. An heir, whether he be within or of full age, may maintain an action, 
 for waste done in the time of his ancestor, as well as in his own time. 
 
 § 20. Whenever any lands or tenements shall be sold by virtue of an exe- 
 cution issued upon any judgment or decree, the person to whom a convey- 
 ance may be executed by the sheriff, pursuant to such sale, may piaintain an 
 action for waste, against any person who may have been in possession of the 
 premises so conveyed, after the sale thereof, for any waste committed on 
 such premises after such sale. 
 
 But, by sections 21 and 22 a number of specific acts are exempted from 
 the scope of section 20, and licensed on the part of the intermediate 
 occupant, during the fifteen months, between such sale and the execution 
 of the sheriff's deed. 
 
 Although superseded by the usual process under the Code, the sec- 
 tion prescribing the form of summons under the Revised Statutes seems 
 to require citation, inasmuch as it seems beyond a question, that all the 
 particulars required to be inserted in that summons must also be in- 
 cluded in a complaint under the present form of action. 
 
 That section (section 5) prescribes thus : 
 
 Such summons should require the defendant (styled A. B. in the section) 
 to show wherefore he has committed waste, to the injury of C. D. (the plain- 
 tiff), of a certain dwelling-house and garden, situate in the town of , 
 in the county of [describing the premises, according to their actual 
 situation, and with the same certainty, as in this chapter before required in 
 declaration in ejectment], and which premises the said A. B. holds in dower, 
 
 i 
 
896 O'P THE COMPLAIiSTT. — § 150. 
 
 of the inheritance of the said C. D. [or, which the said A. B. holds as ten- 
 ant, for years, or otherwise, as the case may be]. 
 
 The remainder of the sections in the title prescribe the practice in 
 such proceeding, when commenced, and are either superseded by the 
 Code, or will be noticed hereafter. Treble damages are recoverable in 
 all actions, except those brought by joint tenants er tenants in common. 
 Section 10. In this latter class, the plaintiff may elect either to recover 
 such damages, or to have partition made of the premises, for effecting 
 which, in such case, the necessary machinery is provided. 
 
 The following decisions have reference to the form of action under 
 the Code, thus authorized : 
 
 In Harder vs. Harder, 26 Barb., 409, the evidence necessary on a 
 writ of inquiry, on a default taken in an action of this nature, is dis- 
 cussed, and the principle laid down in section 452 carried out, that the 
 plaintiff cannot have judgment to recover the place wasted, where he 
 fails to prove affirmatively, that the injury to his inheritance is ecLual to 
 the value of the defendant's estate. 
 
 As to the extent to which a tenant of land, leased in an uncultivated 
 state,' may cut timber, without being guilty of waste, see Kidd vs. Den- 
 nison, 6 Barb., 9. 
 
 The right of the party redeeming under a sale on execution, and who 
 subsequently takes out the usual sheriff's deed, to recover damages for 
 intermediate waste, between the sale and the delivery of such deed, is 
 recognized and enforced in Thamas vs. Grofut, 4 Kern., 474. The 
 decision is based, however, on the rights of the grantee, under 3.E.. S., 
 3Y3, section 61, and the specific provision in section 20 of the title 
 above cited is not adverted to. 
 
 In framing the complaint in an action of this nature, care must be 
 taken to comply with all the requisites, prescribed as constitutive parts 
 of the former statutory summons : see section 5 of the title of the 
 Eevised Statutes, as above cited ; and also to lay ground for the taking 
 of judgment of forfeiture and eviction, under section 452, by a specific 
 allegation that the injury complained of is equal to the value of the 
 tenant's estate, or that such injury has been done in malice, when 
 either is the case. The nature of the alleged waste, of the title of the 
 plaintiff", and of the tenancy or occupation of the defendant, should also 
 be clearly shown, attention being paid to the phraseology of the stat- 
 ute, as above cited, in framing the allegations for these purposes; and 
 the specific relief to which the plaintiff is entitled, under any of the 
 different provisions above cited, according to the nature of the action, 
 should be specifically demanded. 
 
OF THE COMPLAINT. — § 150. 891 
 
 (y.) Nuisance. 
 
 The Code makes provision on the subject of this cause of action, as 
 follows ; both sections having been passed in 1849, and having come 
 down unaltered : 
 
 § 453. The writ of nuisance is abolished ; but any proceeding heretofore 
 commenced, or any judgment rendered, or right acquired, shall not be 
 affected thereby. 
 
 § 454. Injuries heretofore remediable by writ of nuisance, are subjects of 
 action, as other injuries, and, in such action, there may be judgment for dam- 
 ages, or for the removal of the nuisance, or both. 
 
 The provisions of the Eevised Statutes, in relation to this remedy, are 
 contained in title IV., chapter Y., part III., 2 R. S., 332, 333. 
 
 It may be convenient to cite the following sections, the substan(S' ^of 
 which may be considered as retained. As to matters of form, they and 
 the other sections which constitute the title in question, are either 
 repealed, or superseded. 
 
 § 2. In cases of nuisance, the plaintiff shall not go without remedy, 
 because the land is transferred to another ; but, in such case, the party by 
 whom the nuisance was erected, and he to whom it was transferred, shall 
 both be named as defendants in the writ. 
 
 Section 3, relates to the form of writ, and, in framing the complaint, 
 care should be taken to combine all the requisites there imposed. 
 
 That section prescribes the following form of statement : 
 
 Whereas, A. B. has complained to ns, that C. D. unjustly has raised a 
 
 certain dam [or a certain pool, or a certain house, or thrown down a 
 
 certain hedge, &c., as the case may be], iu the town of , in your 
 
 county, to the nuisance of the freehold of the said A. B. ; we do, therefore, 
 
 ' command, &c. 
 
 The other sections provide as to the service, joinder of issue, trial, and 
 judgment upon such writ, when issued, and are repealed or superseded 
 as above. 
 
 In fi-aming the complaint, attention should be paid to the requisites 
 imposed by section 3, as above cited. The seizin of the plaintiff should 
 be positively stated, and the nature and extent of the act complained 
 of and of the injury resulting therefrom to the plaintiffs, must also be 
 clearly and positively averred ; in order, at once, to ground a claim for 
 adequate damages, and also for the guidance of the court, in making a 
 proper order for its cessation or removal. 
 
 In Ellswrn-th vs. Putnam, 16 Barb., 565, it is distinctly laid down 
 that, in a complaint of this nature, the plaintiff must aver all that was 
 necessary to sustain a writ of nuisance under the former practice. 
 
 Vol. I. —57 
 
898 OF THE COMPLAINT. § 150. 
 
 Where the injury complained of, is in respect to the erection of a nui- 
 sance on land of the plaintiff, in possession of the defendants, the former 
 must allege ownership of the freehold in himself, and tenancy of such 
 freehold by the defendants, at the time when the acts complained of 
 were committed. 
 
 The action in this form is not favored, and mere possession is not 
 sufficient to sustain it. Ownership of the freehold on the one hand, 
 and injury to such freehold on the other, are essential to its main- 
 tenance, and the substance of the statute must be strictly pursued. Judg • 
 ment of abatement must be against the owner in fee, and, where the 
 land has been aliened, both the original erector and the continuer of 
 the nuisance complained of, must be joined, or the action cannot be 
 maintained. It will not lie for a bare continuance of a previous injury. 
 Safne case. Brown vs. Woodworth, 5 Barb., 650. 
 
 It has been held, that, as against the continuator of a previously 
 existent nuisance, notice to abate, before suit brought, should necessarily 
 be proved. Hubbard va. Russell, 24^ 'Q&xb., 4:Qi:. Unt see, jier C07itra, 
 Brown vs. Gayuga and Susquehanna Railroad Company, 4 Kern., 
 486. 
 
 As against a party continuing, every act of continuance is a fresh 
 nuisance, and entitles the party injured to maintain a fresh action for 
 damages. Nor will a prior recovery bar a fresh action ; and, in framing 
 the complaint, it is not necessary, though advisable, to refer to such 
 prior proceeding. Beckwiih vs. Griswold, 29 Barb., 291. See also 
 Brown vs. Cayuga and Susqtiehanna Railroad Company, 2 Kern., 486, 
 above cited. 
 
 A suit of this description is subject to all the incidents of an ordinary 
 suit under the Code, including the power of amendment, or disregard 
 of formal objections. Beckwith -vs. Oriswold ; Huhba/rd \s. Russell, 
 supra. * 
 
 In relation to the personal right of a party injured, to abate a nuisance, 
 and the restrictions under which it may be exercised, see Northrup 
 vs. Burrows, 10 Abb., 365. 
 
 The equitable remedy for abatement of a nuisance by injunction, has 
 been above adverted to, under the head of Provisional Remedies, and will 
 be more fully considered in the succeeding section. 
 
 In relation to what will or will not constitute a nuisance at law, the 
 following decisions may be adverted to : 
 
 As to when noise will or will not constitute a nuisance, see the con- 
 flicting cases of First Baptist Church in Schenectady vs. Schenectady 
 and Troy Railroad Company, 5 Barb., 79 ; and The Same vs. Utica and 
 Schenectady Railroad Compamy, 6 Barb., 313. 
 
 A railroad is not per se a nuisance, BraJie vs. Hudson River Rail- 
 
OF THE COMPLArNT. — § 151. 899 
 
 road Comfany^ 7 Barb., 508 ; Heniz vs. Long Island Railroad Com- 
 pany, 13 Barb., 646. See also heretofore, under the head of the pro- 
 visional remedy of Injunction. 
 
 As to the effect of noisome smells, and the principle that any thing 
 done to the hurt or annoyance of the lands of another, is a private 
 nuisance, remediable by action, see Cro2)sey vs. Murphy, 1 Hilt., 126. 
 
 In relation to such acts, in connection with the erection of a building, 
 as will or will not constitute a nuisance to the property of another, and 
 the general principles of law in this respect, see Pickard vs. Collins, 23 
 Barb., M4, and the cases there cited or referred to. 
 
 As to the unauthorized setting up of a monopoly, being held to con- 
 stitute a nuisance at law, see Hecker vs. New York Balance Dock 
 Company, 13 How., 549. 
 
 The erection of a dam, or the collection of water in a reservoir, is not 
 per se a nuisance, unless extraneous facts, or circumstances rendering it 
 such, be proved. Their existence is a question for a jury, and the powers 
 of a board of health do not extend to order an abatement in such a 
 case. Rogers vs. Barker, 31 Barb., 447. 
 
 § 151. Suits in Equity Generally Considered. 
 
 Tlie above remarks, though embracing many, do not, of course, pro 
 fess to include, still less to give, forms for every species of complaint, 
 which will be necessary in practice. The same general principles, how- 
 ever, apply to all, and all must now be framed upon the same model, 
 m,utatis mutandis. 
 
 The foregoing observations have more peculiar reference to actions, 
 where the relief demanded would, under the old system, have been 
 more peculiarly of common law cognizance. The class of equitable 
 actions, if they may so be termed, remains to be noticed. 
 
 The consideration of this branch of the subject, in its more general 
 aspects, has been already anticipated in the preceding book, especially 
 in section 121. The safest guide which can be taken with reference to 
 the averments in a complaint of this nature, will, perhaps, be a well- 
 drawn bill in chancery under the old practice ; carefully retrenching, 
 in the process of adapting that form to the present requisites, every ver- 
 bal surplusage, and every merely probative allegation. 
 
 Some discussion has heretofore arisen, as to the extent of the jurisdic- 
 tion of the courts over controversies of this nature, arising out of the 
 following provision at 2 E. S., 173, section 37, in relation to the former 
 Court of Cliancery, grounded on tlie theory that cognizance of contro- 
 versies of trifling pecuniary value was beneath its dignity, if attempted 
 to be brouo'lit before it, in accordance with that view. 
 
900 OF THE COMPLAINT. § 151. 
 
 § 37. The Court of Chancery shall dismiss every suit concerning property^ 
 where the matter in dispute, exclusive of costs, does not exceed the value 
 of one hundred dollars, with costs to the defendant. 
 
 This section is now repealed by chapter 460 of 1862 (the last ameutl- 
 inent of the Code), section 39. 
 
 There is, therefore, no longer any limitation on the powers of the 
 courts in this respect. However small may be the value of the subject- 
 matter, they have now jurisdiction of the controversy. 
 
 Before this settlement of the question, it was contended, in one class 
 of cases, that this restriction was still operative, and that the court was 
 bound, on the objection being brought to its notice, to give it full 
 weight, and carry out the statutory direction. See Shepcurd vs. WalTcer, 
 7 How., 46 ; Woolsey vs. Judd, 4 Duer, 596 (a dissenting opinion), and 
 Marsh vs. Benson, 19 How., 415 ; 11 Abb., 241. 
 
 On the other hand, it was held that the restriction was abolished, by 
 means of the changes in the organization of the courts, under the con- 
 stitution of 1846, and the consequent measures, in the following cases : 
 Gdbine vs. St. John, 12 How., 333 ; Marsh vs. Benson, 19 How., 425 ; 
 11 Abb., 250 (dissenting opinion) ; Mallory vs. Norton, 21 Barb., 424 ; 
 Woolsey vs. Judd, 4 Duer, 379 ; 11 How., 49 (majority opinion). See 
 likewise, Quick vs. Keeler, 2 Sandf , 231 (233). 
 
 And suits, in which the demand for equitable relief was not of a 
 nature to be represented by any specific value, were also considered not 
 to be within the restriction, if existent. See note, 4 Duer, 600, also 19 
 How., 424. 
 
 A party suing, as in equity, will not merely be debarred from relief 
 of that nature, in a case where his right to a common law remedy is 
 clear (see before, section 121, and cases there cited) ; but, in a case 
 which draws near to the limits formerly existent between the concur- 
 rent jurisdictions, he should, on the face, of his complaint, establish by 
 proper allegation, that he is, in fact, remediless in the premises, unless 
 relief be administered in the case upon equitable principles. See 
 Marsh vs. Benson (supra), 19 How., 415 (421) ; 11 Abb., 241 ; Mills 
 vs. Block, 30 Barb., 549 ; Williams vs. Ayrault, 31 Barb., 364 ; Wilson 
 vs. Forsyth, 24 Barb., 105. 
 
 In Heywood vs. City of Buffalo, 4 Kern., 534 (540), the same rule 
 is thus stated in terms : " It is still the law, that a party who brings an 
 equitable action, must maintain it on some equitable ground ; and if 
 his cause of action is of a legal, and not an equitable, nature, he must 
 bring a legal action, or pursue a legal remedy. Where a matter is 
 clearly or frima facie one of legal cognizance, a party must, in order 
 to maintain an equitable action upon it, state clearly facts sufficient to 
 
OF THE COMPLAINT. — § 151. 901 
 
 entitle him to eqiiitable relief, and to show that a perfect remedy can- 
 not be obtained at law." 
 
 See likewise, to the same effect as the above, Coster vs. New York 
 and Erie Railroad Company, 6 Duer, 43 ; 3 Abb., 332 ; also noticed, 
 5 Dner, 677 ; VanderliU vs. Garrison, 5 Duer, 689 ; 3 Abb., 361. 
 
 Whei-e, too, fraud on the part of the defendant is the gravamen of 
 the plaintiff's title to relief, it should, according to the former practice 
 in equity, be expressly charged. The People vs. Lowber, 7 Abb., 158 
 (181), per lugraham, J. 
 
 A mere legal presumption in favor of the plaintiff, tho^igh fully 
 available as a defence, will, standing alone, be insufficient to support a 
 suit. To obtain equitable relief, a party must lay ground for it, by the 
 assertion of substantial facts. Morey vs. Farmers' Loan and Trust 
 Company, 4 Kern., 302. See also, Lawrence vs. Ball, 4 Kern., 477. 
 
 Where, in a proceeding already commenced, a j)arty has an affimi- 
 ative equitable defence, he ought, it seems, to set it up in that form, 
 and a cross-suit, in order to obtain the same relief, will not, as a gen- 
 eral rule, be proper. Winfield vs. Bacon, 24 Barb., 154. To war- 
 rant the application of this rule, it must, of course, be clear that the 
 relief which a party so situated can obtain by way of defence and coun- 
 ter-claim, will be coincident, or equally efficient with that which lie 
 could seek in an affirmative proceeding. 
 
 In the absence of any allegation of injurious consequences, or of any 
 attempt to enforce them within their jurisdiction, the courts of this state 
 will not interfere to set aside the proceedings of those of a sister sover- 
 eignty, even though confessedly illegal. Hill vs. Hill, 28 Barb., 23. 
 See also general principle, as stated in Williams vs. Ayrault, 31 
 Barb., 364. 
 
 Where, however, the parties are regularly brought within the juris- 
 diction, and the case is one in which the plaintiff is entitled to equita- 
 ble relief, the courts of this state will assume cognizance of a contro- 
 versy brought before them, though the subject-matter of that contro- 
 versy be within another state, and will enforce obedience to their 
 decree, by exercise of their personal control over the parties. See 
 Oa/rdner vs. Ogden, 22 IST. Y., 327 ; Field vs. HollrooTc, 3 Abb., 377 ; 
 Williams vs. Ayrault, 31 Barb., 364 ; Newton vs. Bronson, 3 Kern., 
 687 ; Bailey vs. Ryder, 6 Seld., 363 (370) ; Cleveland vs. Burrill, 25 
 Barb. 532 ; D''Ivernois vs. Leavitt, 23 Barb., 63 ; Mussifia vs. Belden, 
 6 Abb. 165. See also, as to their power, under similar circumstances, 
 to detain and appropriate a fund existent in this state, though the par- 
 ties holding it may be amenable in respect of it to a foreign jurisdic- 
 tion, Tinkham vs. Borst, 31 Barb., 407. 
 It wouWbe idle to attempt, and far beyond the limits of the present 
 
902 OF THE COMPLAINT. § 132. 
 
 ■Nvork, to seek to embrace every description of controversy properly falling 
 within the general classification of a suit in equity. Such an attempt 
 would involve the composition of an extended treatise, rather than that 
 of a chapter in a work on practice. Some few of the principal heads 
 will, however, be touched upon, according to the plan hitherto pursued 
 in this division of the work, the general principles of averment adverted 
 to, and the recent decisions bearing upon the most prominent points 
 shortly noticed. 
 
 § 152. Suits in Relation to Oontracts mid Instruments. 
 
 This extended and important branch of the jurisdiction formerly ex- 
 ercised by courts of equity, presents itself for consideration at the out- 
 set. It may be convenient to subdivide it into the following deriva- 
 tive heads : 
 
 1. The specific performance. 
 
 2. The reformation. 
 
 3. The rescinding or vacating of contracts, instruments, or incum- 
 brances ; leaving the consideration of the proceeding by way of creditor's 
 bill, and those relating to the enforcement of liens, for the next section ; 
 and prefacing the above heads by a preliminary notice of a few recent 
 decisions of general bearing, on the subject of the contracts to which 
 this class of remedies is more peculiarly applicable.' 
 
 (a) I^OTicE OF Decisions. 
 
 Among the primitive and elementary principles which require con- 
 stant attention in instituting proceedings of this nature, is the general 
 rule that, where a treaty between parties has resulted in a written con- 
 tract, or where an executory agreement has been carried into effect, by 
 means of a conveyance or other paper of the like nature, all prior nego- 
 tiations or circumstances which may have led to the former, or preceded 
 the latter, are merged in the written stipulation, or the executed instru- 
 ment, and are to be wholly rejected, for the purposes of explanation or 
 giving construction to such contract, on the one hand, or of restricting 
 or controlling the operation of such executed document, on the other. 
 See statement of general principle, in Witheok vs. Waijie, 16 IST. Y., 532 
 (535) ; Benard vs. Sampson, 2 Kern., 561 ; afiirming same oase, 2 Duer, 
 285 ; 8pecJcels vs. Saij, 1 E. D. Smith, 253. See also, Barry vs. Ban- 
 som, 2 Kern., 462 (464) ; Wright vs. Weeks, 3 Bosw., 3T2. 
 
 In cases which coincide with this rule, it may be looked upon as 
 inflexible. It has, however, been so far relaxed, as to authorize the 
 admission and consideration of collateral proof, of stipulations actually 
 made, and material to the actual contract between the parties but 
 
01- THE COMPLATNT. — § 152. 903 
 
 which, iu the reduction of the understanding into writing, or of the 
 executory into an executed instrument, have been omitted to be adverted 
 to or carried out. See Moi-ris vs. Whitoher, 20 N. Y., 41 ; Wi-Oyech vs. 
 Waine, supra, 16 JST. Y., 532 (536) ; Renard vs. Sampson, supra, 2 
 Kern., 561 (567) ; Wood vs. Jlubbell, 6 Seld., 479. 
 
 And, although parol evidence be inadmissible, for the purpose of 
 explaining or giving construction to the terms of a written contract or 
 deed, where neither mistake nor fraud is shown, parol proof of a dis- 
 tinct and subsequent agreement to vary or rescind the terms of such 
 written instrument, has been held allowable. Mynn vs. McKeon, 6 
 Duer, 203 ; Townsend vs. Empire Stone Dressing Company, 6 Duer, 
 208 (213, 214). But such an agreement cannot affect a lien for further 
 advances, on the property comprised in a mortgage for a speciiic sum. 
 See last case, pp. 219, 220. 
 
 So likewise, a parol agreement between sm-eties, under a written obli- 
 gation by which one engaged to indemnify the others, was held capable 
 of being proved and enforced, in discharge of a claim for contribution. 
 Barry vs. Hansom, 2 Kern., 462. 
 
 A deed or contract arising out of fraud, is incapable of enforcement 
 on the one hand, or impeachment on the other, in equity, as between 
 the original parties or their privies, such as a transferree with notice, 
 express, or implied from neglect to make the proper inquiries. Cham- 
 herlain vs. Barnes, 26 Barb., 160 ; Morgan vs. Ghamberlain, 26 Barb., 
 163 ; Moseley vs. Mosely, 15 N. Y., 334 ; Westfall vs. Jones, 23 Barb., 9. 
 
 The same is the rule as to transactions, either directly illegal, or of a 
 nature not recognized by law. See Austin vs. Searing, 16 N. Y., 112, 
 as to the exercise of ^'was^-judicial functions, by a self constituted body, 
 to carry out which the court refused to interfere. 
 
 See, as to a contract void by the laws of this state, but enforceable by 
 those of the place where it was made, Thatclier vs. Morris, 1 Kern., 437. 
 
 In relation to contracts effected by correspondence, and as to the 
 rule that they become binding, from the moment that the acceptance of 
 a proposition so made is actually mailed, but that if any counter- 
 communication is required, the matter still rests in proposition, but not 
 in contract : see Hough vs. Brown, 19 IS". Y., Ill ; Vassar vs. Camp, 1 
 Kern., 441 ; affirming sa'ine case, 14 Barb., 341 ; Cla/rh vs. Dales, 20 
 Barb., 42. 
 
 (5.) Speoifio Perfokmance, oe Enfoecement. 
 
 It may be safely assumed, that a majority of suits of this description, 
 arise out of transactions I'elating to, or connected with the purchase of 
 land. The treatment in this subdivision will not, however, be coU' 
 
904 OP THE COMPLAINT. § 152. 
 
 fined to tlie subject in this especial relation, but will embrace it, also, 
 in its more general bearings. 
 
 A court of this state will entertain this species of controversy, as to 
 property territorially situate within the limits of another, in cases where 
 the parties have been brought, by service, within its own jurisdiction, 
 and will enforce its decree on that controversy, by means of the power 
 which it possesses over the persons of such parties. See Owrdner vs. 
 Ogden, 22 IST. Y., 327 ; Newton vs. Bronson, 3 Kern., 587 ; Bailey vs. 
 Eyder, 6 Seld., 363 (370) ; Cleveland vs. Burrill, 25 Barb., 532. See 
 analogous principles as to jurisdiction, laid down in Auohincloss vs. Nott^ 
 12 L. 0., 119. 
 
 In contracts for the sale of land, the courts will, as a general rule, 
 and in the absence of express stipulation, compel the vendor to give to 
 the purchaser a good title, free from incumbrances, and a deed with 
 full covenants. Burwell vs. Jackson, 5 Seld., 535 ; FletcJier vs. Button, 
 i Comst., 396 ; Hill vs. Ressegieu, 17 Barb., 162 (164) ; Earl vs. Camj)- 
 hell, 14 How., 330 ; Eigney vs. Coles, 6 Bosw., 479. 
 
 Where however the defect is of such a nature that it may be made the 
 subject of compensation, the purchaser substantially obtaining that for 
 which he contracted, the court will decree a specific performance, pro- 
 viding for the assessment of the compensation to be so made. Ouynet 
 vs. Mantel, 4 Duer, 86. 
 
 And, in Stevenson vs. Buxton, 8 Abb., 414, the court made a decree 
 in the alternative, i. e., that the defendant do either specifically perform, 
 or, in default, pay damages for non-performance, assessed in the same 
 suit. See likewise Clarice vs. Rochester, Lochport, and Niagara Falls 
 Railroad Company, 18 Barb., 350 (356). 
 
 An objection, otherwise tenable, and which would have brought the 
 case within the operation of the general principle above referred to, is 
 capable of waiver. See, as to the effect of an unconditional entry into 
 possession, witii notice of the defect, Guynet vs. Mantel, 4 Duer, 86, 
 s^ipra ; of an election to take a decree for a substituted equivalent, 
 even though such equivalent may fail, from the subsequent insolvency 
 of the vendor, Weler vs. Fowler, 11 How., 458. (See, however, reser- 
 vation, p. 462.) 
 
 Where the plaintiff, seeking specific performance of a contract for 
 exchange, had omitted to specify, before suit, an objection to the 
 defendant's title, it was held that he could not resist a claim of the latter for 
 relief, by a rescission of the contract, on the ground that such objection 
 was capable of being removed by further proceedings. Benson vs. 
 Croinwell, 26 Barb., 218 ; 6 Abb., 83. 
 
 Conjectural defects, resting on a mere possibility, and not having any 
 actual existence or reasonable probability at the time will not form 
 
OF THE COMPLAINT. § 152. 905 
 
 ground for resisting a specific performance. ScharmerJwrn vs. Niblo, 
 2 Bos^\-., 161. 
 
 In Viele vs. The Troy and Boston Railroad Company, 21 Barb., 381, 
 the following general principles are laid down, in relation to suits of 
 this description. In equity, on a bill for speciiic performance, the 
 leading inquiry is, whether in conscience, the contract should be en- 
 forced, and mere technical objections, that would defeat an action at 
 law for damages, are not allowed to produce inequitable or oppressive 
 results. If it be conscientious that an agreement should be performed, 
 performance will be decreed, though the plaintiff's right of action be 
 lost at law. 
 
 Further, thus : " Whether a court of equity shall decree the specific 
 performance of an agreement, is a matter resting in its discretion, but 
 this is a sound legal discretion. The court will not lend its aid to en- 
 force an unconscientious contract. The case presented must be fair, 
 just, and reasonable, the contract free from fraud, misrepresentation, or 
 surprise, and not hard, unconscionable, or unequal. It must also be 
 entered into upon adequate consideration, and when the inadequacy 
 of price in a contract to sell, is so great, as to be conclusive evidence of 
 fraud, as where it would shock the moral sense of an indifferent man, a 
 court of equity should not carry it into effect. But inadequacy of price 
 merely, without being such as to prove fraud conclusively, the contract 
 being entered into deliberately, and fair in all its parts, is not an ob- 
 jection to its being executed." 
 
 The same case lays down the rule thatj where there is nothing to show 
 that the parties have made time of the essence of the contract, it will not 
 be so considered, and a suit will lie for specific performance, though the 
 remedy of the plaintiff at law be gone, especially where the defendant 
 is in possession, or will lose nothing by the delay. See also Stone vs. 
 Sprague, 20 Barb., 509 ; Beebe vs. i)owd, 22 Barb., 255. Where, how- 
 ever, a specific time for pajanent had been fixed, and, on default in 
 payment on the part of the purchaser, the vendor had acted upon 
 such default, and sold to another, it was held that the former could not 
 claim a specific performance. Drew vs. Buncan, 11 How., 279. See 
 also as to the effect of a lengthened delay, on the part of a plaintiff 
 applying for relief, without any fault in the adverse party, Tompkins 
 vs. Seeley, 29 Barb., 212 ; IloWilliamis vs. Long, 32 Barb., 194. 
 
 Where the default of one party in a strict performance, is in any 
 manner induced by the acts of the other, the latter cannot take 
 advantao-e of his own wrong, and will forfeit all title to relief in respect 
 of it. Stone vs. Spragiie, 20 Barb., 509, above cited. 
 
 The rule that an action for a specific performance is an appeal to 
 the equitable jurisdiction ; that the relief is matter, not of absolute 
 
906 OF THE COMPLAINT. § 152. 
 
 right' in the party, but of sound discretion in the court ; that, to sustain 
 such an action, the granting of the relief must appear to be entirely 
 equitable; and that the court will never compel a performance spe- 
 cifically, Avhen, looking at all the circumstances on both sides, it is 
 apparent that injustice would thereby be done ; is laid down distinctly 
 in Clarke vs. Rochester, LooJi'/port, cmd Niagara Falls Railroad Com- 
 pany, 18 Earb., 350. 
 
 Although, however, the power of the court to grant relief be dis- 
 cretionary, still, when, by settled practice, the plaintiff is clearly entitled 
 to the relief he seeks for, it may not be capriciously withheld. JBowen 
 vs. Irish Presbyterian Congregation of the City of New York, 6 
 Bosw., 245. 
 
 A suit of this nature is not maintainable, on a mere presumption of 
 law in favor of the plaintiff. Such a presumption is matter of defence 
 only, and cannot be made the basis of an aggressive proceeding. Morey 
 vs. Farmers' Loan a/ad Trust Company, 4 Kern., 302 ; reversing same 
 case, 18 Barb. ,"401. See also Lawrence ys. Ball, 4 Kern., 477, as to 
 such a presumption being ineflBcient, as the basis of a claim for equi- 
 table relief on the part of a defendant. 
 
 A party, himself in default, cannot maintain a suit of this description. 
 Payton vs. Wight, 2 Hilt., 77 ; Watt vs. Rogers, 2 Abb., 261 ; Tomp- 
 Tcins vs. Seely, 29 Barb., 212 ; Chase vs. Hogan, 6 Bosw., 431. 
 
 A parol contract, void by the statute of frauds, cannot be enforced 
 by means of a direct action for that purpose. It is true that money 
 paid under such circumstances may be recovered back, or the balance 
 of unpaid purchase-money recovered in assumpsit, by a vendor who 
 has fully performed his part ; but such remedy can only be had, in a 
 proceeding in disaffirmance, and not by means of one in affirmance of 
 the invalid arrangement. Baldwin ys. Palmer, 6 Seld., 232, ; Tho7nas 
 vs. .Dickinson, 14 Barb., 90. See also Ilaight vs. Child, 34 Barb., 186. 
 
 Still less will an action lie, to recover a specific sum as the price 
 of land taken possession of, when, in fact, there has been no real agree- 
 ment ever come to between the parties, as to the amount. Reynolds 
 vs. Punkirh and State Line Railroad Company, 17 Barb., 613. 
 
 As to the invalidity of a parol contract of this nature, and the extent 
 of that invalidity, see Pay vs. New York Central Railroad Company, 
 31 Barb., 548 ; Walker vs. Paine, 2 E. D. Smith, 662. 
 
 It seems, however, that, in a case where there has been a nmtnal 
 part performance, and delivery over of possession, under a parol agree- 
 ment for exchange, the case is taken out of the statute, and relief may 
 be had in equity. Beebe vs. Dowd, 22 Barb., 255. 
 
 A contract, which is in itself incomplete, by an omission to state the 
 consideration, in compliance with the statute of frauds, cannot be 
 
OF THE COMPLAINT. — § 152. 907 
 
 enforced, nor can the defect in it be supplied by collateral evidence. 
 Wright vs. Weeks, 3 Bosw., 3Y2. 
 
 Where a contract was, after default made, superseded by another, 
 conditionally entered into, it was held that, though the condition of 
 the second failed, neither could be enforced. J'rice vs. MoGown, 6 
 Seld., 465. 
 
 A suit of this description will only lie, as between the parties to the 
 conti'act itself, nor can a stranger to the original arrangement be joined, 
 for the purpose of asserting independent equities. Chapman vs. West, 
 IT N. Y., 125. 
 
 Nor will it lie by an individual, for the purpose of enforcing a piiblic 
 duty. Getty vs. Hudson Biver JRailroad Company, 21 Barb., 617. 
 
 Before commencing such a suit, it is, as a general rule, the duty of 
 the party seeking relief, to make a formal tender of performance on his 
 part to the adverse party. See, as to the duty of a vendor to prepare 
 and tender a conveyance under such circumstances, and the extent of 
 that duty, Carmam, vs. Pultz, 21 IST. Y., 547 ; Flynn vs. McKeon, 6 
 Duer, 203. The necessity of a strictty legal tender, or demand, may, 
 however, be waived, by an absolute refusal on the part of the adverse 
 party. Cornwell vs. Haight, 21 N. Y., 462 ; Stons vs. Sprague, 20 
 Barb., 509. Or, by a clear failure of title in such party, rendering a 
 formal tender nugatory in fact. Burwell vs. Jackson, 5 Seld., 535. 
 
 And, in a case where possession of exchanged lands had been mutu- 
 ally delivered, it was held that a tender of a deed by the defendant, 
 after suit brought and before answer, was valid, and that a bare offer of 
 performance in the answer would have been sufficient. Beebe vs. Dowd, 
 22 Barb., 255. 
 
 As to the duty of a purchaser, who has taken and retains possession, 
 to keep and pay for the estate, or give it up, and account for the rents 
 and profits ; and, if he himself seeks a specific performance, to make 
 payment of all that is due from him, together with all costs which his 
 non-paj'ment may have rendered necessary, before he can claim a deed, 
 see Wright vs. Delafield, 23 Barb., 498. 
 
 "Where one partner to a joint enterprise held property in trust for 
 himself and the other, it was held that, on its termination, he could not 
 be compelled to convey the share of the latter, unless or until he was 
 repaid his due share of advances, made for the joint benefit of both. 
 ClieeseTuan vs. Sturgis, 6 Bosw., 520. See also same case, as to the 
 extent to which the cestui qxie trust, under such circumstances, will be 
 entitled to charge the trustee, with the value of shares taken by him, on 
 an unauthorized but londfide sale of the property. 
 
 See likewise, as to the power of an attorney to demand payment of 
 any advances, and also of a debt due to him for professional services, 
 
908 OF THE COMPLAINT. — § 152. 
 
 before he can be compelled to convey over property, purchased by him 
 on his client's behalf, Currie vs. Cowles, 6 Bosw., 452. 
 
 See also Wright vs. Delafield, above cited, as to the liability of a pur- 
 cliaser, who has entered into possession under a contract, and when the 
 vendor is not in fault for the delay, to pay interest on his purchase- 
 money, from the time he shall have been placed in default, or, if he 
 give up the estate, to account for intermediate rents and profits. See 
 also Cleveland vs. Burrill, 25 Barb., 532 ; Yiele vs. Troy and Boston 
 Railroad Company, 21 Barb., 381. 
 
 In Mills vs. Van Voorhis, 23 Barb., 125, it was held that where the 
 state of the title is fully known to both parties at the time of the con- 
 tract, and the vendor offers to the purchaser all the title that he has, the 
 latter, if he declines accepting it, cannot maintain a suit to compel the 
 giving of one more complete and perfect. If the title, as given, fails, 
 his remedy lies in damages. By Mills vs. Van Voorhis, 20 jN". Y., 412 ; 
 10 Abb., 152, this judgment was reversed, and a new trial granted, on 
 various considerations arising out of the general ground that, in pro- 
 ceedings by a purchaser to enforce a partial performance and compensa- 
 tion for defects, in a case where a complete title cannot be had, by rea- 
 son of the inability of the vendor to give it, great caution is to be exer- 
 cised before granting relief. The result of the deliberation of the court 
 is, however, indecisive, and the new trial was granted, for the express 
 purpose of having the facts bearing upon the plaintiff's title to some 
 relief more fully investigated, and more deliberately passed upon. See 
 20 K Y., 423. 
 
 As to the enforcement of a specific performance, against the heirs of 
 a deceased vendor, and the nature of the covenants which may be 
 required on a conveyance from them to the purchaser, see Hill vs. 
 Bessegieu, 17 Barb., 162 ; Moore vs. Burrows, 34 Barb., 173 ; Adams 
 vs. Green, 34 Barb., 176. 
 
 See, per contra, as to the right of the heirs of a deceased vendor, to 
 compel performance of his contract, by his executor, for their benefit, 
 Lamport vs. Beeman, 34 Barb., 239. 
 
 As to the right of a principal, to compel specific performance of a 
 contract, made in the name of an agent, where he has himself performed 
 such contract on his own part, see St. John vs. Griffith, 13 How., 59 ; 
 2 Abb., 198. 
 
 In cases, however, where an agent has exceeded his authority, iu 
 making a sale or purchase, the principal will not be bound, and per- 
 formance cannot be enforced against him ; nor will even a partial pay- 
 ment, made in ignorance of the facts, and, when known, immediately 
 retracted, amount to a ratification. Roach vs. Coe, 1 E. D. Smith 
 175 ; Coleman vs. Garrigues, 18 Barb., 60. Nor can the agent him-. 
 
OS" THE COMPLAINT. — § 152. 909 
 
 self be held, in I'e^pect of a purchase made by liiin in excess of his 
 authority. Ilegeinan vs. JohnsoTi, 35 Barb., 200. 
 
 And the mere giving of authority to an agent to contract with a 
 third person, vfill not enable that person to compel a specific perform- 
 ance, where the principal withdraws his authority, before an actual con- 
 tract is effected. McOotter vs. Mayor of New York, 35 Barb., 609. 
 
 A. fortion, will such be the case, where one party has assumed to 
 act for or to bind another, without any actual authority. Williams vs. 
 . Christie, 4 Dtier, 29 ; Gomstoch vs. White, 31 Barb., 301. 
 
 The following recent cases may be adverted to : 
 
 Specific performance of a covenant by a landlord to repair, may, in 
 a proper case, be granted, but only when it is apparent that the tenaiit 
 will otherwise be irreparably injured, and cannot be sufficiently com- 
 pensated by damages. Yallotton vs. Seignett, 2 Abb., 121. 
 
 A covenant for renewal of a lease, made by trustees, may be enforced 
 as against their successors. Newoomhe vs. Ketteltas, 19 Barb., 608. 
 
 See, as to the power of a lessor to enforce the performance of a cove- 
 nant, under which the lessee is bound to submit to a valuation, and to 
 accept payment of the value of his improvements, in lieu of a removal, 
 Reformed Protestant Dutch Church, of New Yorh, vs. Parhhurst, 4 
 Bosw., 491. See also Johnson vs. Conger, 14 Abb., 195. 
 
 A contract for sale, under which the purchaser has entered into pos- 
 session, may be enforced, as against the grantee in a sheriff's deed, on a 
 subsequent sale in execution against the vendor ; and payments made 
 by the purchaser to the vendor himself, without notice of the judgment, 
 will be allowed to him in taking the account. Moyer vs. Hinrnan, 3 
 Kern., 180 ; modifying decision in same case, 17 Barb., 137. 
 
 An agreement to convey a portion of an estate, when recovered, in 
 compensation for services rendered in its recovery, is not illegal and 
 may be enforced. Sedgwick vs. Stanton, 4 Kern., 289 ; affirming same 
 case, 18 Barb., 473. 
 
 A sale of property, under the provisions of an agreement for dissolu- 
 tion of partnership, maybe compelled, by means of proper proceedings 
 for tliat purpose, though, if made previously, and without the consent 
 of all the parties, it will be invalid, Comstoclc vs. White, 31 Barb., 301. 
 
 As to proceedings under chapter 327 of the Laws of 1855, to compel 
 payment of a proportionate share of an assessment on premises, in 
 which several parties are interested, see Jachson vs. Babcoch, 16 N. Y., 
 
 246. 
 
 The performance of a condition may be compelled by suit for that 
 purpose. Ailcen vs. Albam.y, Vermont, and Canada Railroad Company, 
 
 26 Barb., 289. ^ ^ .^^ 
 
 i:erformauce of a resulting trust, in premises purchased with money 
 
910 OF THE COMPLADfT. — § 152. 
 
 obtained by means of the fraud of the grantee, was enforced in Day vs. 
 Roth, 16 K Y., 448 ; and the plaintiff declared entitled to a lien for 
 the amount thus obtained from her. 
 
 See also, as to the enforcement of such a trust, for the benefit of the 
 creditors of a party advancing the consideration for a conveyance made 
 to another, Wood vs. Rohinson, 22 N. Y., 664. 
 
 Where, too, the defendant, standing in relation of trustee of a fund, 
 and also in that of successor to it, in the event of the intestacy of the 
 cestui que trust, had, by a promise to hold such fund for the benefit of . 
 an intended legatee, prevented a formal bequest of it, and had subse- 
 quently acted in such arrangement, his representative was held to be a 
 trustee according to such promise, and that payment of the fund was 
 compellable. Williams vs. Fitch, 18 N. Y., 546. 
 
 In Richards vs. EdioTc, 17 Barb., 260, a contract, partly express, and 
 partly supplied by necessary implication, was held on demurrer to be 
 enforceable. 
 
 As to the efiect of an auctioneer's memorandum of sale, effecting an 
 enforceable contract, see TallmanyB. Franklin, 4 Kern., 584 ; reversing 
 same case, 3 Duer, 395 ; Pinckney vs. Hagadorn, 1 Duer, 89 ; Earl vs. 
 Campbell. 14 How., 330. In McQuade vs. Warren, however, 12 L. 0., 
 260, such a receipt, signed by a mere clerk, and not on the occasion of 
 the sale itself^ or .in the auctioneers presence, was held insufficient to 
 constitute a binding engagement. 
 
 As a general rule, the specific performance of the contract of an adult 
 for personal services, will not be enforced, Haight vs. Badgeley, 15 
 Barb., 499 ; the remedy lies in damages. 
 
 The contract of a married woman, having power to dispose of prop- 
 erty, under an ante-nuptial contract, made prior to the law of 1848, is 
 binding, and may be enforced against a purchaser, by her assignee. 
 Van Allen vs. Humphrey, 15 Barb., 565. 
 
 The rule with regard to the extent of the vendor's duty to disclose 
 material facts in relation to the subject-matter of the contract, will be 
 found fully considered in Bench vs. Sheldon, 14 Barb., 66. 
 
 As to the enforcement of a provision in an ante-nuptial contract, con- 
 templating a future provision to be made, by the parents of one of the 
 parties contracting matrimony, see De Pierres vs. Thorn, 4 Bosw., 266. 
 
 As to the enforcement of a contract, made by the trustees of a 
 religious corporation, under authority of an order of the Supreme 
 Court, and as to what will, or will not, constitute an excuse for non- 
 performance, see Bowen vs. Irish Presbyterian Congregation of City 
 of New Tm-k, 6 Bosw., 245. 
 
 As to the power to compel performance of a contract, on the part of a 
 purchaser of property, to resell for a specific price, if realizable, and to 
 
OF THE COMPLAnSTT. § 152^ 911 
 
 aecoiiut for a certain proportion of the profits to the vendor, see Zoril- 
 lard vs. Silvm-, 35 Barb., 132. 
 
 Jn relation to the averments in a suit of this description, the follow- 
 ing cases require citation, and the principles laid down in them must be 
 strictly attended to, in framing a complaint for such purpose. 
 
 An allegation of performance, or of a readiness and consequent offer 
 or tender to perform, on the part of the plaintiff, and proof in support 
 of such allegation, is indispensable in all cases, with the single exception 
 below noticed. Lester vs. Jewett, 1 Kern., 453 ; Dunham vs. Pettee, 
 i Seld., 508 ; Beecher vs. Conradt, 3 Kern., 108 ; Van Schaich vs. 
 Winne, 16 Barb., 89 ; Kelley vs. Upton, 5 Duer, 336 ; Warburg 
 vs. Wilcox, 2 Hilt., 118 ; 7 Abb., 336 ; Raight vs. Child,U Barb., 186. 
 See also, generally, as to the necessity of averments of this description, 
 Fickett vs. Brice, 22 How., 194 ; Frey vs. Johnson, 22 How., 316. And, 
 in a case where special terms are fixed by the contract, the offer of per- 
 formance must be alleged, in exact accordance with those terms. See 
 Clarh vs. Dales, 20 Barb., 42 ; Considerant vs. Brisbane, 14 How., 487 ; 
 6 Duer, 686. 
 
 But, where the plaintiff relies on facts, which excuse the making of 
 an actual tender of performance, an allegation of those facts may be 
 substituted, and will be sufficient. Smith vs. Betts, 16 How., 251 ; 
 Clarke vs. Cramdall, 27 Barb., 73. See also Stone vs. Sprague, 20 
 Barb., 509 ; Cornwell vs. HaigU, 21 E". Y., 462. 
 
 And such an averment may, under certain circumstances, be not 
 merely advisal3le, but indispensable, inasmuch as evidence of facts in 
 exciise, cannot properly be received, under an averment of actual per- 
 formance. Oakley vs. Morton, 1 Kern., 25. 
 
 In a complaint of this nature, it is necessary to supply a description 
 of the property, sufficiently certain to form the ground of a decree. 
 The same absolute precision which is required in a deed, is not, how- 
 ever, absolutely indispensable (though never unadvisable). It is suffi- 
 cient, for the purposes of the pleading, that the description shoiild be 
 sufficiently accurate to enable the identification of the property. 
 Richards vs. Edick, 17 Barb., 260. And extrinsic evidence is admis- 
 sible, for the purpose of ascertaining and locating the property. Tall- 
 man vs. Franklin, 4 Kern., 584 ; Pinokney vs. Hagadorn, 1 Duer, 89. 
 
 In suing upon a foreign contract, illegal here, but valid by the laAvs 
 of the place where it was made, the provisions and circumstances which 
 give it such validity, and the fact that it was made at such place, must 
 be expressly and distinctly averred. Thatcher ys. Morris, 1 Kern., 437. 
 
 Where an agreement sued upon is in writing, the better course will 
 be to aver it to be so, in all cases. It has, it is true, been held, that this 
 is not absolutely necessary, and that an affirmative allegation of the 
 
912 OF THE COMPLAINT. § 152. 
 
 existence of an agreement, implies every circumstance necessary to gix'C 
 it validity. Livingston vs. Smith, 14 How., 490 ; Stern vs. Drinher, 2 
 E. D. Smith, 401 ; Washburn vs. Franklin, 1 Abb., 8. See,2)er cantra, 
 Thurman vs. Stevens, 2 Duer, 609 ; Le Boy vs. Shaw, 2 Duei-, 626. In 
 view of this conflict of decisions, there can be little question that the 
 former is the more advisable course. 
 
 (c.) Eefoemation, oe Ookeection. 
 
 Kelief of this nature is not unfrequently sought and obtained collat- 
 erally, and in connection with proceedings for other purposes. A direct 
 suit for this object is, however, maintainable, in a case where mistake 
 or inadvertence is clearly established, to an extent suflicient to call for 
 the interference of the court. A clear and sufficient case must, however, 
 be shown, before such interference can be invoked with effect, the pre- 
 sumption being strongly in favor of a written contract, as containing 
 the true expression of the meaning of the parties, especially where, in its 
 terms, it is clear and unambiguous. See Isles vs. Tucker, 5 Duer, 393. 
 
 The principles by which the courts are guided, in dealing with con- 
 troversies of this description, are laid down very fully in Kent vs. Man- 
 chester, 29 Barb., 595. 
 
 After stating the fact that the rule by which the sound common-law 
 principle as to the exclusion of evidence tending to add to, or vary the 
 terms of a written contract, had been progressively extended to cases of 
 innocent accident, inadvertence, or mistake, as well as those of which 
 fraud might be predicated, the learned judge added that, in such exten- 
 sion, it was found necessary to qualify that extension with conditions, 
 among which were the following : 
 
 1. Kelief will be granted in the case of written instruments, only 
 where there is a plain mistake, clearly made out by satisfactoi-y proofs. 
 
 2. The mistake must not only be established to the satisfaction of the 
 court, but it must be a mutual mistake. It is not sufficient for the 
 plaintiff to allege inadvertence and mistake on his part only ; he must 
 allege and prove it to be mutual. 
 
 3. Ignorance of the law is no ground of relief Where the party acts 
 with full knowledge of the facts, the court, where neither surprise nor 
 fraud exists, will not release him, though he act under a mistake as to 
 the law. 
 
 4. "Where a contract, whose terms ai-e manifested by writing, is sought 
 to be changed and reformed, it should be made clearly to appear what 
 the real contract was. Its terms should be definite and precise ; and it 
 will never answer for the party to call upon a court to spell out a con- 
 tract, or for the court to impose upon the parties, one which neither of 
 them has really made. 
 
OF THE COMPLAINT. — § 152. 913 
 
 Of course, where either surprise or fraud exists, it will tend to take 
 the case out of the strict operation of the rules, as above stated, and fur- 
 nish ground for a wider scope of relief. 
 
 The principle that the court will not interfere to make a contract foi 
 the parties, into which they have never in fact entered, and that relief, 
 by way of reformation, will not be granted, unless it clearly appear that 
 both parties agreed together and intended to make a contract, in the 
 manner to which that existent is sought to be conformed, is clearly laid 
 down in The New York Ice Gonvpany vs. The North Western Insurcmca 
 Company, 31 Barb., 72. See also Stoddard vs. JSart, 23 IT. Y., 556. 
 
 And, in reformation of deed, in a case of clear mistake, the court will 
 only carry into effect the expressed, and not the silent, intent of tlie 
 party executing it. Smith vs. Howard, 20 How., 151. 
 
 The courts will not go behind and reform a consummated contract, 
 unless fraud be established. Faure vs. Martin, 3 Seld., 210 ; Van De 
 Sande vs. Hall, 13 How., 458. 
 
 Nor will the court interfere in this manner, except in relation to an 
 agreement, between actually and mutually contracting parties. An offi- 
 cial deed, executed in the form prescribed by the court, or by a judicial 
 officer, cannot be reformed by means of a suit of this description. Ryan 
 vs. Dox, 25 Barb., 440 ; Laub vs. Buckmiller, 17 IST. Y., 620. 
 
 In Newcomb vs. Ketteltas, 19 Barb., 608, relief was granted by way 
 of reformation, according to the original agreement between the parties, 
 on directing the execution of a renewal of a lease according to covenant. 
 
 In a suit for this purpose, length of time, without assertion of a mis- 
 take having been committed, short of such as would bring the case 
 within the scope of the statute of limitations, is no bar to the applica- 
 tion for relief, and is only important, as evidence bearing upon the prob- 
 ability of a mistake having been actually made. BidweU vs. The Astar 
 Mutual Insurance Company, 16 IST. Y., 263. 
 
 The same case is also authority, that relief by way of damages for 
 breach of the contract as established by the judgment, may be sought 
 for and obtained, in the same action in which such reformation is sought, 
 if demanded in the complaint. 
 
 In Wemple vs. Stewart, 22 Barb., 154, the following principles are 
 laid down : 
 
 A written contract, in the absence of fraud, can only be reformed, 
 when it is shown by satisfactory proof that there is a plain mistake in 
 the contract, by the accidental omission or insertion of a material stipu- 
 lation, contrary to the intention of both parties, or by expressing some- 
 thing different in substance from the truth of that intent, and under a 
 mutual mistake. To show that a written contract does not conform to 
 the actual agreement, made and intended to have been reduced into 
 
 YoL. I.— 58 
 
914 OF THE COMPLATNT. — § 152. 
 
 ■s\Titing, the actual agreement should be stated, and the mistake in re- 
 ducing it into writing alleged. 
 
 In Grafton, vs. Bemsen, 16 How., 32, a voluntary settlement, as to 
 which the grantor had acted under the evident assumption that she 
 possessed authority to revoke it, was reformed by the insertion of a 
 power for that purpose, under the prayer for further relief, though the 
 principal relief sought, i. e., that it should be declared null and void, 
 was denied. 
 
 {d.) EEScrNDiNG, OE Yacating. 
 
 The rules in this respect are substantially the same as those stated in 
 the last subdivision, where this description of relief is sought on the 
 ground of mistake, except that the remedy sought, being more complete 
 and extensive, the standard as to the prerequisites for obtaining that 
 relief, will necessarily be higher. See JSaggerty vs. Simpson, 1 E. D. 
 Smith, 67. 
 
 Failure of consideration will afford another and independent ground 
 for an application for relief of this description. Where fraud is estab- 
 lished, the remedy will be especially appropriate. 
 
 The rule is thus generally expressed in Ketohum vs. JBanh of Com- 
 merce, 19 N. Y., 4:99 (502) ; affirming same case, 6 Duer, 463 : " "Where 
 there is a common mistake in respect to the existence of a thing under- 
 taken to be sold, and it does not in fact exist, the contract for the sale is 
 void, and any money which the purchaser has paid on account of it, may 
 be recovered back in the equitable action for money had and received." 
 See also Gardner vs., The Mayor of Troy, 26 Barb., 423 ; Renard vs. 
 Fiedler, 3 Duer, 318. 
 
 In Belknajp vs. Sealey, 4 'Kern., 143 ; affirming sa7ne case, 2 Duer, 
 5T0, it was held that a court of equity would, on the application of the 
 vendee, rescind an executory contract for the purchase of land, in a 
 case of an important misdescription as to quantity, where the mistake 
 on the part of the purchaser was caused by the misrepresentation of 
 the vendor, though not fraudulently made, and where such mistake so 
 materially affected the value of the premises, that the contract would 
 not have been made had it not existed. See also, Martin vs. McCor- 
 micl, 4 Seld., 331. 
 
 In Field vs. Rolbrook, 6 Duer, 597 ; 14 How., 103, the rule is thus 
 generally stated by Duer, J. : 
 
 The exercise of the jurisdiction of a court of equity to order instru- 
 ments in writing to be delivered up and cancelled, is confined to the 
 following classes of cases : 
 
 1. When the plaintiff alleges that the instrument which he prays 
 may be surrendered up or cancelled, is void, upon grounds of which a 
 
OF THE COMPLAINT. — § 152. 915 
 
 court of equity alone can take cognizance ; in other words, when he sets 
 up a purely equitable defence. 
 
 2. When the instrument is a deed or other document, concerning 
 real estate; which, though inoperative, would, if uncancelled, be a 
 cloud upon the title. 
 
 3. Where the instrument is of a negotiable character, and the putting 
 it into circulation by the holder would be a fraudulent act. 
 
 4. Where the plaintiff claims to have a defence valid in law, but 
 which rests upon evidence which he is in danger of losing, if the adverse 
 party is suffered to delay the prosecution of his claims. 
 
 All these classes rest substantially upon the same grounds, i. e., that 
 the plaintiff will either sustain a present, or will be exposed to the 
 hazard of a future injury and loss, should the defendant be suffered to 
 retain the possession of the instrument, of which the delivery and can- 
 cellation are demanded ; and all point to the prevention of an injury, that 
 might otherwise prove irreparable, and which a court of equity is alone 
 competent to prevent. 
 
 But, if the instrument is, on its face, plainly illegal and void, the 
 court will not interfere. 
 
 The same case lays down, in relation to the subject of averments, 
 that, when application of this nature is made to the discretionary power 
 of a court of equity, the special circumstances which can alone justify 
 its exercise, must be set forth in the complaint, since these are emphat- 
 ically the facts which constitute the cause of action. 
 
 In Drew vs. Duncan^ 11 How., 279, where a purchaser had entirely 
 failed to perform his contract, a rescission of it was granted at the suit 
 of the vendor, by Roosevelt, J. 
 
 See also as to the vendor's right to rescind a contract for sale of 
 goods, under similar circumstances, MoJEachron vs. Handles, Si Barb., 
 301. 
 
 As to the rescinding of a contract, on the ground of the infancy of 
 the maker, the burden of proof in such a case, and the terms which 
 will be imposed on a rescission, if granted, see Gray vs. Lessington, 
 
 2 Bosw., 257. 
 
 An instrument, inchoate in its nature, is not binding, until it is actually 
 completed by delivery, although it may have been even executed by 
 one party, conditionally, and in connection with a proposition; it is 
 competent for such party to withdraw or rescind it, any time before 
 it is actually accepted by the other. Stephens vs. Buffalo and New 
 YwTi City Railroad Company, 20 Barb., 332. See also Vassar vs. 
 Camp, 1 Kern., 441. But, if a delivery be made, it can no longer be 
 revoked, even though a counterpart be not signed. Worrall vs. Mvm,n, 
 1 Seld., 229. 
 
9l6 OF THE COMPLAINT. — § 152, 
 
 A notice of rescinding, if given by one party to the other, is binding 
 on the giver, and, if accepted and acted upon by the receiver, cannot 
 be revoked. Terwilliger vs. Knajyp, 2 E. D. Smith, 86. 
 
 When a contract is rescinded by mutual agreement, and without 
 fault of either party, each is at once remitted to his former legal rights 
 in the premises. Vide Battle vs. Rochester Gity Bcmk, 3 Comst., 88 ; 
 see also Stevens vs. Hyde, 32 Barb., 171. 
 
 The rule of law that, where one party designs to rescind a contract, 
 he must do whatever is necessary to restore the other to his original 
 condition, in respect to the thing sold, and the consideration paid, and 
 that, before suit ; and, also, that he cannot affirm in part and rescind in 
 part, will be found fully considered in The MatteoAoan Company vs. 
 Bentley, 13 Barb., 641. See also Rosenbaum vs. Gunter, infra. This rule 
 is, however, inapplicable to a case where the vendor has performed his 
 part of an invalid contract, and sues for the balance of purchase-money. 
 It holds good in relation to valid contracts only ; to the exclusion of 
 such as are in themselves incapable of enforcement. See Thomas vs. 
 Dickinson, 14 Barb., 90, before cited. 
 
 The same rule that a party, seeking to rescind a contract, must, in all 
 cases, return in full the consideration which he has received, is further 
 laid down in Utter vs. Stewart, 30 Barb., 20 ; Magee vs. Badger, 30 
 Barb., 246 ; Stevens vs. Ryde, 32 Barb., 171. 
 
 And such return, or a tender of it, must in all cases be made promptly. 
 Delay will be held to amount to a confirmation of the contract. Fisher 
 vs. Fredenhall, 21 Barb., 82 ; Lowber vs. Selden, 11 How., 526 ; Rosen- 
 iaum vs. G\mter, 3 E. D. Smith, 203. 
 
 ITor will a suit lie for the purpose of rescission, while any part of 
 the consideration is retained by the plaintiff. Fisher vs. Gonant, 3 E. 
 D. Smith, 199 ; Rosenbaum vs. Gunter, supra ; Goelth vs. Wliite, 35 
 Barb., 76. 
 
 The preceding cases have rather had in view the rescission of execu- 
 tory, those following belong more peculiarly to that of executed contracts. 
 
 In Farrrington vs. Frankfort Bank, 24 Barb., 554, a suit for the 
 cancellation of indorsements, obtained by means of fraud and misrepre- 
 sentation, and for an injtmction against the holders, was declared main- 
 tainable. See sam^ case, 31 Barb., 183. 
 
 In Ford vs. Harrmgton, 16 IST. Y., 285, an assignment, fraudulently 
 obtained by a party standing in the relation of attorney, was set aside, 
 on the ground of that relation, though his client had in fact been a 
 participant in the fraud ; and but for that relation, the court would not 
 have interfered. 
 
 As to an action to obtain the due cancellation, and suspension of 
 proceedings upon a satisfied judgment, in respect of which the plain- 
 
OF THE COMPLAINT. § 152. 917 
 
 tiff would otherwise be without remedy, see Mallory vs. Norton. 21 
 Barb., 424. 
 
 In a case where an arbitrator has clearly exceeded liis authority, 
 whether consciously or through mistake, the court will entertain a suit 
 to set his award aside. Borrowey&. Millbank, 6 Duer, 680 ; 6 Abb., 28. 
 
 As to the power of the courts to entertain a suit to set aside a judg- 
 ment, entered upon an insufficient confession, see heretofore, book III., 
 section 48, concluding subdivision, and cases there cited. 
 
 In relation to the subject of mental incapacity and undue iniiuence, 
 and what will, or will not, be so considered, see Davis vs. Culver, 13 
 How., 62 ; Lee vs. Dill, 11 Abb., 214. See, however, Bergen y&. TTdall, 
 31 Barb., 9, as to the jealous scrutiny, with which the courts were dis- 
 posed to view a voluntary conveyance, obtained by a father from his 
 daughter, immediately upon her coming of age. 
 
 The power of the courts of this state to entertain a controversy in 
 relation to a fraudulent instrument aiiecting property in another, has 
 been already considered, and the cases in point cited in the preceding 
 section of this work. 
 
 As to the setting aside of deeds, obtained by means of a fraudulent 
 conspiracy, and the principles upon which such relief will be granted, 
 see Oale vs. GaU, 19 Barb., 249. But see, as to the refusal of such 
 relief, when applied for by a participant in such fraud, or by a sub- 
 sequent purchaser, with notice, Chamlerlain vs. Barnes, 26 Barb., 160 ; 
 Morgan vs. Chamberlain, 26 Barb., 163. 
 
 A cancellation of a chattel mortgage, fraudulently procured, was set 
 aside, and the mortgagee restored to the benefit of his former lien, in 
 Lynch vs. TiMits, 24 Barb., 51. See also, as to setting aside a mort- 
 gage, grounded on an illegal consideration, for money advanced by a 
 party to the illegality. Fellows vs. Van Hyring, 23 How., 230. 
 
 A mortgage, professing to secure further advances, without limit, 
 will be held void as against subsequent creditors, in respect of its 
 vagueness and uncertainty. Youngs vs. Wilson, 24 Barb., 510. If 
 limited to a specific amount, it will be sustainable, pro tanto, in respect 
 of such advances. See same case, p. 512 ; Truscott vs. King, 2 Seld., 
 14T ; same caie, 6 Barb., 346. The condition of such a mortgage 
 cannot be extended by parol, so as to cover advances not originally in 
 contemplation of the parties. Townsend vs. Empire Stone Dressing 
 Cornpany, 6 Duer, 208. ~Sor, when advances have been once made to 
 the amount stipulated, and, subsequently, repaid, can the lien of the 
 mortgage be further kept alive, so as to include subsequent transaction. 
 Truscott vs. E^ng, 2 Seld., 14Y ; reversing same case, 6 Barb., 346, 
 
 above cited. 
 Where a mortgage is executed for a specific time, in consideration of 
 
918 or THE coMPLAmr. — § 152. 
 
 advances to be made, and the mortgagee refused to fulfil his agreement, 
 the court will set aside the security, so far as regards the unperformed 
 portion, and, on a total refusal to perform, would order it to be can- 
 celled. Dart vs. MoAdam, 27 Barb., 187. 
 
 As to relief against an usurious transaction, and the extent to which, 
 and terms on which it will be granted, see Sahermerhorn vs. Tollman, 
 4 Kern., 93. 
 
 As to the right of a purchaser'to rescind a contract, induced by mis- 
 representations on the part of the vendor, see Hutcheon vs. Johnson, 33 
 Barb., 392 ; Elwell vs. Chamberlain, 4 Bosw., 230 ; Seamam, vs. Low, 
 4 Bosw., 337. Or, where the vendor is chargeable with technical 
 misconduct, rendering the contract invalid. Conhey vs. Bond, 34 
 Barb., 276. 
 
 A party, entitled to rescind a contract, on the ground of a partial 
 non-performance, must exercise that right promptly, or it will be 
 waived. See Sinclair vs. Tallmadge, 35 Barb., 602. 
 
 As to the averments in a suit for relief of this description, see Williams 
 vs. AyroAJblt, 31 Barb., 364. If there are any circumstances tending to 
 show that the plaintiff cannot obtain perfect relief at law, he should 
 state them on the face of his complaint. But, in the case of a mort- 
 gage upon real estate, the necessity of coming into a court of equity 
 for relief, will be sufficiently apparent, without showing any other 
 reason, than the fact that the instrument has been executed and 
 recorded, if it be claimed to be void, from any cause not apparent upon 
 its face. See Ward vs. Dewey, 16 JST. Y., 519, there referi-ed to 
 (p. 525). Of course, that cause must be made patent, by proper and 
 sufficient averment. 
 
 A party seeking to set aside a transaction, or judicial action on the 
 ground of fraud, must disprove laohes in the assertion of his remedy. 
 He should also show due diligence, and ignorance or fraud practised 
 upon him at the time, by proper averments for that purpose. Hamel 
 vs. Grimm, 10 Abb., 150 ; Munn vs. WorralZ, 16 Barb., 221 ; Car- 
 withe vs. Griffing, 21 Barb., 9. 
 
 The mere presumption of negligence in such assertion, arising from 
 implied notice, is, however, repellable, by direct proof to the contrary. 
 Williamson vs. Brown, 15 IST. T., 354. 
 
 It remains to notice suits for relief of this description, in the nature 
 of the removal of a cloud upon the applicant's title. 
 
 An instrument or record, absolutely void upon its face, does not 
 constitute a cloud, nor can relief of this nature be obtained in respect 
 of it. Ward vs. Dewey, 16 IST. Y., 519 ; Field vs. Hollyrooh, 6 Duer, 
 597 ; 14 How., 103. 
 
 Nor can such relief be asked for where, from an inspection of the 
 
OF THE COMPLAINT. — § 152. 919 
 
 document, it is apparent, that no clanger to the title or interest of the 
 applicant is to be apprehended. Cox vs. Clift, 2 Comst, 118. 
 
 Or, where the plaintiff, at the time of the commencement of the 
 action, has parted with, and no longer retains any interest in the 
 premises affected. Tmvnsend vs. Goelet, 11 Abb., 18T. 
 
 But, in any case, where the circumstances attending upon the exe- 
 cution of an instrument, are sufficient to create a presumption, however 
 slight, in favor of its validity, as in the case of one made by a party in 
 possession, during title, the facts will be sufficient to constitute a 
 cloud, and a suit of this nature will be maintainable. Ward vs. Dewey, 
 supra. 
 
 So, also, where, by statute, the instrument in question is made pre- 
 sumptive evidence of its own validity, as in the case of a sale by a 
 municipal corporation, under an illegal assessment. Scott vs. Onderdonk, 
 4 Kern., 9. See also Johnson vs. Stevens, 13 How., 132, where similar 
 relief was granted, by cancelling the certificate of such a sale. 
 
 As to the right of a grantee of this description to repair his fraud, ana 
 make a conveyance of the legal title to the true owner, without 
 impediment, on the part of such of his own creditors as have not 
 obtained actiial liens prior to such conveyance, see Davis vs. Graves, . 
 29 Barb., 480. 
 
 A suit for this purpose will not, however, lie, in a case where the 
 assessment is upon its face illegal. To sustain the proceeding, it must 
 appear upon the face of the complaint, that such assessment is a lien 
 upon land, and that extrinsic evidence is necessary to show its invalidity. 
 Heywood vs. The City of Buffalo, 4 Kern., 534. 
 
 In Lounsbury vs. Purdy, 18 E". Y., 515, a resulting trust was 
 established, in favor of the party who had furnished the money to pay 
 for an estate, her agent wrongfully taking the deed in his own name. 
 Such party was held entitled to bring a suit, to cancel a sheriff's certi- 
 ficate of sale, on execution against the wrongful grantee, as a cloud 
 upon her title, without waiting for the expiration of the period for 
 redemption. 
 
 As to tlie setting aside of stock certificates, fraudulently issued by an 
 officer of a public company, as constituting a cloud upon the title of 
 the general stockholders, see New Toric and New Haven Railroad 
 Company vs. Schuyler, 17 JST. Y., 592 ; 7 Abb., 41 ; reversing same 
 case, 1 Abb., 417. 
 
 In Monroe vs. Delavan, 26 Barb., 16, a suit for cancelling the record 
 
 of a judgment, adjudged in another proceeding to be fraudulent, was 
 
 declared maintainable by any party interested. See likewise Mallory 
 
 vs. Norton, 21 Barb., 424. 
 
 An invalid assignment, executed by part of the members of a partner- 
 
920 OF THE COMPLATNT. § 153. 
 
 ship firm, without the consent of the renaainder, was set aside, as a 
 cloud, in a suit instituted by judgment-creditors, in Ilaggerty vs. 
 Granger, 15 How., 243. See also, as to setting aside such an assign- 
 ment, whilst in an inchoate state, and before actual delivery, Oasper vs. 
 Bennett, 12 How., 307. 
 
 In a suit for this purpose, it is sufficient if the facts, which constitute 
 a cloud, be distinctly and specifically averred. The mere non-user of 
 the term itself, will not form a valid ground of objection. Williams vs. 
 Ayrault, 31 Barb., 364 (371). 
 
 § 153. Miforoement of Equitable Liens. 
 
 (a.) Ceeditoes' Bills. 
 
 By this important description of remedy, creditors are enabled to 
 leach equitable assets of their debtor, not attainable by the ordinary 
 process of execution. 
 
 Suits of this nature may be classified under three distinct heads : 
 
 1. The ordinary creditors' bill, existent under the old practice, and 
 the subject of special statutory regulation, by which personal assets 
 of the debtor are sought to be reached, for the individual benefit of the 
 plaintiff in that suit. 
 
 2. The analogous proceeding, by which an individual plaintifl^ seeks 
 for his own benefit, to enforce the lien, created by the docketing of his 
 judgment, as against real estate or leviable personal assets of the 
 debtor, or to remove any obstructions in the way of enforcement of that 
 lien. 
 
 3. The proceeding, by way of general creditors' bill, in which the 
 relief sought is not individual but general, and for the benefit of the 
 whole class of which the plaintiff is a member, or such of them as shall 
 come in and contribute to the expenses. 
 
 The two first of these classes bear, as before remarked, a close anal- 
 ogy to each other, and are susceptible of combination, and not unfre- 
 quently combined in one and the same proceeding. See Cooper vs. 
 Glason, 1 C. K. (IST. S.), 347 ; Parshall vs. Tilloii,, 13 How., 7. The 
 third is of a distinct and separate nature, and is capable of being made 
 to embrace a larger class of suitors, and a somewhat wider scope of 
 relief 
 
 A large proportion of the difficulties which have been raised, and of 
 the seeming contradictions and confusion which occasionally occur, in 
 the numerous decisions bearing generally upon the above remedies, 
 will be found, upon a closer examination, to have arisen from an omis- 
 sion to advert to these different distinctions, and may be greatly, if not 
 entirely obviated, by a closer attention being paid to them. 
 
OF THE COMPLAINT. — § 153. 921 
 
 The regulations by which proceedings under the first of the above 
 classes, were governed under the former practice, will be found at 2 
 E. S., 11B, 174, sections 38, 39. 
 
 § 38. Whenever an execution against the property of a defendant shall 
 bave been issued on a judgment at law, and shall have been returned un- 
 satisfied, in whole, or in part, the party suing out such execution may file a 
 bill in Chancery, against such defendant, and any other person, to cofhpel 
 the discovery of any property, or thing in action, belonging to the defend- 
 ant, and of any property, money, or thing in action due to him, or held in 
 trust for him ; and to prevent the transfer of any such property, money, or 
 thing in action, and for the payment and delivery thereof to the defendant ; 
 except where such trust has been created by, or the fund so held in trust, 
 has proceeded from some person other than the defendant himself. 
 
 § 39. The court shall have power to compel such discovery, and to prevent 
 such transfer, payment, or delivery, and to decree satisfaction of the sum 
 remaining due on such judgment, out of any personal property, money or 
 thing in action belonging to the defendant, or held in trust for him, with 
 the exception above stated, which shall be discovered by the proceedings 
 in Chancery, whether the same were originally liable to be taken in execu- 
 tion or not. 
 
 So far as regards the obtaining of a discovery by means of this form 
 of proceeding, the above provisions are entirely superseded, and in fact 
 repealed by section 389 of the Code. The other relief, for which the 
 sections provide is, however, still obtainable by means of this form of 
 procedure, and, therefore, with the above exception, they may be looked 
 upon as still existent, and unrepealed in matters of substance, though 
 abolished, as regards pure matters of form, inconsistent with the mode 
 of procedure prescribed by the Code. See Rogers vs. Hern, 2 C. E., 79. 
 See also, as regards the similar abolition of the former rules of court, as 
 to the matters to be stated in the bill. Quick vs. Keeler, 2 Sandf., 231. 
 
 That these remedies are still existent, and the provisions above cited 
 substantially unrepealed — that a proceeding of this nature is not an 
 action upon a judgment, falling within the prohibition imposed by sec- 
 tion 71 of the Code ; and that the remedy provided by that measure, by 
 way of proceedings supplementary to execution, is not a substitute for 
 a suit of this description, which may, on the contrary, be carried on 
 independently, is abundantly established by judicial decision. Goodyecvr 
 vs. Belts, 7 How., 187 ; CatUn vs. Doughty, 12 How., 457 ; Hammond 
 vs. Hudson Bwer Iron and Machine Company, 20 Barb., 378 ; Dunham 
 vs. Nicholson, 2 Sandf., 636 ; Rogers vs. Hern, 2 C. E., 79 ; Quick vs. 
 Keeler, 2 Sandf., 231. See, however, Taylor vs. P&rsse, 15 How., 417, 
 to the effect that the ordinary creditors' bill, for the mere discovery and 
 prevention of the transfer of equitable assets, may possibly be looked 
 
922 OF THE COMPLAINT. — § 153, 
 
 upon as superseded by the present supplementary proceedings, but that, 
 if any collateral relief is sought, those proceedings do not provide a 
 remedy, and the suit is maintainable. The learned judge, however, 
 declined to put the plaintiff to his election between the two forms of 
 proceeding, both of which were then pending. 
 
 The principle that such a suit is maintainable, even after the appoint- 
 me»t of a receiver on supplementary proceedings, where the lien of the 
 plaintiffs accrued prior to such appointment ; and that such receiver, if 
 he neglects to act in the premises, may be even made a defendant, is 
 laid down in Gere vs. DMle, 17 How., 31. And, in a contest between 
 the two proceedings, that by creditors' bill, commenced before the ap- 
 pointment of a receiver was perfected, was held to have effected a prior 
 lien, in VoorhiesYs. Seymour, 26 Barb., 569. 
 
 To maintain the ordinary creditors' bill, the recovery of a judgment, 
 and the issuing and return of an unsatisfied execution against the prop- 
 erty of the defendants, are indispensable statutory prerequisites. An 
 averment to the above effect must be inserted, or the suit will be unsus- 
 tainable. A mere creditor at large cannot maintain it. Reubens vs. 
 Joel, 3 Kern., 488 ; affirming same case, 2 Duer, 530 ; 12 L. O., 148, 
 disapproving Mott vs. Dunn, 10 How., 225. See also, Parshall vs. 
 Tillou, 13 How., 7 ; Crojysey vs. McKinney, 30 Barb., 47 ; Sage vs. 
 Chollar, 21 Barb., 596 ; MoGartney y^.Bostwiok, 31 Barb., 390 ; Bishop 
 vs. Halsey, 13 How., 154 ; 3 Abb., 400 ; Willetts vs. Vandenbu7'gh, 34 
 Barb., 424; MoCullough vs. Golly, 5 Bosw., 477 ; The Same yb. The 
 Same, 4 Bosw., 603. Wor can a mere creditor at large, defend his pos- 
 session against others holding executions. Andrews vs. Durant, 18 
 E". Y., 496. See likewise, Hazzard vs. McFarland, Selden's Notes, 
 of April 18th, 1854. 
 
 It has been also held that, before such a bill can be filed, it is essen- 
 tial that execution should have been issued into every county in which 
 any one of the defendants resides, and returned unsatisfied ; and also 
 into every county in which they, or any of them, own real estate ; a 
 transcript of the plaintiff's judgment being previously filed in each 
 such county, in order to render the execution effectual : and the facts 
 should be alleged accordingly {Millard vs. Shaw, 4 How., 137) ; but, 
 if the defendant have consented to waive any of the above prerequisites, 
 a simple allegation of that consent will be sufficient, without giving all 
 the details. , 
 
 See also, as to the rule that the plaintiff must show that he has ex- 
 hausted his legal remedies against all parties, Fieldys. Hunt, 22 How., 
 329 ; Field vs. Chapman, 13 Abb., 320 {same ease). 
 
 See, however, subsequent decision in same case. Field vs. Hunt, 23 
 How., 80 ; Field Y^. Chaprrmi, 14 Abb., 133, to the effect that, where a 
 
OF THE COMPLAINT. § 153. 923 
 
 joint debtor's judgment lias been entered, a creditor's bill may be main- 
 tained upon it, without exhausting the plaintiff 's remedies, against de- 
 fendants not served with the original process. 
 
 The point as to whether it is necessary, in order to the validity of such 
 a suit, that the sheriff should wait the whole period of sixty days, before 
 returning the execution, has been much discussed. In Field vs. Hunt^ 
 also reported as Field vs. Chapman, above cited, a strict view is taken 
 upon this subject. In the following cases, however, it has been held 
 that the proceeding is maintainable after the actual return of the execu- 
 tion, though made before the regular return day. Field vs. Hunt, 23 
 How., 80 ; Fories vs. Logan, 4 Bosw., 475 (Bosworth, Ch. J., dissent- 
 ing) ; Knaxith vs. Bassett, 34 Barb., 31. See also, same subject here- 
 after considered, in connection with proceedings supplementary to 
 execution. 
 
 Nor has an attaching creditor, before judgment, a suflScient lien for 
 that purpose. Mills vs. Block, 30 Barb., 549 ; Hall vs. Stryker, 29 
 Barb., 105 ; Brooks vs. Stone, 19 How., 395 ; 11 Abb., 220. See, how- 
 ever, as to the lien acquired by attachment, and the possibility of its 
 enforcement, after the recovery of judgment and the mere issuing of 
 execution. Skinner vs. Stuart, 13 Abb., 442 ; Schlussel vs. Willett, 22 
 How., 15 ; 12 Abb., 397. See likewise, generally, Jacobs vs. Eemsen, 
 35 Barb., 384; 12 Abb., 390. 
 
 In cases where an obstruction in the way of the realization of levi- 
 able property is sought to be removed, in aid of an execution already 
 issued, and a specific lien has been actually acquired on such property, 
 the rule, it would seem, is not quite so strict, and allegation of the 
 recovery of judgment, and issuing of execution, will be sufficient to 
 sustain the suit, without showing a return. See Orippen vs. Hudson, 3 
 Kern., 161 (166) ; Hall vs. Stryker, 29 Barb., 105 (110) ; Bishop vs. 
 Halsey, 13 How., 154 (160) ; 3 Abb., 400 ; McGullough vs. Golhy, 6 
 Bosw., 477 ; Skinner vs. Stewart, and Schlussel vs. Willet, above cited. 
 
 The above distinction proceeds evidently upon the .theory of an 
 actually acquired lien. A fortiori, is this the case as regards real estate, 
 on which a lien is acquired by the creditor, not as an incident to execu- 
 tion issued, but prior to, and independent of that procedure, and by 
 the mere docketing of his judgment, in the county in which the lands 
 sought to be reached are situate. 
 
 In this latter class of cases, and so far as regards the application for 
 removal of obstructions impeding the plaintiff's remedy on the lien so 
 acquired, or the assertion of that lien, separately considered, all that is 
 fetrictly indispensable is, an allegation of the docketing of the judgment, 
 and those as to the issuing and return of execution may be unnecessary. 
 
 In all cases, however, it is better to insert, whenever practicable, all 
 
924 01" THE COMPLAINT. — § 153. 
 
 tlie usual averments, and that in full detail. The complaint will then 
 be good in all its aspects, and will lay ground for every description of 
 relief that may, under the proofs, appear to be obtainable. See Par- 
 shMl vs. Tillou ; Cooper vs. Clason, above cited ; Neusbamn vs. Keim, 
 1 Hilt., 520; 7 Abb., 23; Orippen vs. Hudson, 3 Kern., 161 (166); 
 North ATnerican Fire Insurance Company vs. Oraham, 5 Sandf., 197; 
 McCullough vs. Colby, 6 Bosw., 477. 
 
 The classification above noticed is recognized in Greenwood vs. 
 JBrodhead, 8 Earb., 693, where it is laid down, that a creditor must 
 obtain a specific lien in the property, either legal or equitable, or be in 
 a situation to assert one, before he can interfere to control it : if the 
 property be real estate, by judgment ; if personal, by levy under execu- 
 tion ; and, if it be choses in action, by the return of an execution unsat- 
 isfied, and the filing of a complaint. 
 
 Till one or other of these conditions is satisfied, the defendant's power 
 of dealing with the estate cannot be interfered with. Same case. See 
 also Dcmis vs. Craves, 29 Barb., 480. 
 
 But, to enable a suit of this nature, the lien must be completed and 
 valid. If imperfect, it will not be maintainable. Such an action can- 
 not be brought upon a justice's judgment, or the return of a justice's 
 execution, tmless and until it has been docketed in the county clerk's 
 ofiice, and an execution issued accordingly, against both real and per- 
 sonal estate. Crippen vs. Hudson, 3 Kern., 161. ISTor is such a suit 
 maintainable upon a foreign judgment. Before it can be brought, the 
 plaintiif must show the recovery of one in this state, and execution 
 thereon. McCartney vs. Bostwick, 31 Barb., 390. 
 
 As to the power of assertion of such a lien, when complete, and the 
 removal of obstructions in the way of that assertion, by way of fraudu- 
 lent assignment, or otherwise, see Hammond vs. Hudson River Iron 
 and Machine Company, 20 Barb., 378 (383) ; Barney vs. Griffin, 2 
 Comst., 365 ; leitch vs. HoUiste.r, 4 Comst., 211 ; Baton vs. Wright, 15 
 How., 481; Gasper vs. Bennett, 12 How., 307 ; Carpenter vs. Roe, 6 
 Seld., 227 ; Adams vs. Bamidson. 6 Seld., 309 ; Rolinson vs. Stewart, 
 6 Seld., 189. 
 
 On the assertion of a similar remedy, against the estate of a deceased 
 partner, by the holder of a partnership debt, an additional prerequisite 
 is necessary, and the plaintiff, before he can maintain his suit, must 
 show that he has exhausted his remedy against the partnership assets, and 
 the separate estate of the survivors. Voorhies vs. Child's E'oaecutors, 18 
 Barb., 592 ; 1 Abb., 43 ; affirmed, 17 N. Y., 354. See also Dubois case, 
 3 Abb., 177. As to the marshalling of claims, between conflicting cred- 
 itors in such cases, see Meech vs. Allan, 17 N. Y., 300. As to the 
 invalidity of an assignment, giving preference to individual over part- 
 
OF THE COMPLAmT. — § 153, 926 
 
 nership creditors, see Wilson vs. Robertson, 19 How., 350 ; overruling, 
 ^0 ianto, Cox vs. Piatt, 19 How., 121 ; 32 Barb., 126. 
 
 The rule as to a siiit to interfere with the administration of the assets 
 of an insolvent general partnership, is the same as in ordinary cases. 
 The creditor must have reduced his debt to a specific lien, before he 
 can have a standing in court. A creditor at large cannot invoke its 
 equitable powers. Crippen vs. Hudson, 3 Kern., 161 ; Oreenvwod vs. 
 Brodhead, 8 Barb., 593. These cases overrule Dillon vs. Horn, 5 
 How., 35, and Matt vs. Dunn, 10 How., 225 ; disapproved also in Bev^ 
 lens vs. Joel, 3 Kern., 488 (492). 
 
 In the case of a limited partnership, the rights of creditors are some- 
 what wider, the statute, 1 E. S., 7QQ, 767, sections 20, 21, forbidding 
 the giving of any preferences, on the occasion of insolvency, actual or 
 contemplated, thus giving the creditors in general, without distinction, 
 the right to an equal distribution. A creditor at large may, under 
 these circumstances, assert his remedy, even against others who have 
 previously reduced their debts into judgment. Jackson vs. Sheldon, 9 
 Abb., 127 ; Hayes vs. Heyer, 3 Sandf., 284 (293) ; James vs. Lansing, 
 7 Paige, 583 ; Gray vs. Kendall, 10 Abb., 66 ; 5 Bosw., 666. 
 
 It has been held, that, in these cases, a creditor cannot maintain the 
 ordinary suit for his own exclusive benefit. He must bring a general 
 bill, for the benefit of himself and all others. Greene vs. Breclc, 10 
 Abb., 42 ; Lachaise vs. Lord, 4 E. D. Smith, 612 ; 10 How., 461 ; 1 
 Abb., 213. The same would be the case, where an assignment, giving 
 preferences and attacked on that ground, is invalid in part only, and 
 not impeachable as a whole. See Cox vs. Piatt, 32 Barb., 126 ; 19 
 How., 121. Greene vs. Breck stands, however, reversed, so far as regards 
 a suit, commenced in the absence of any proceeding for the general 
 administraiion of the partnership estate. Greene vs. Breck, 32 
 
 Barb., 73. 
 
 It is competent for more than one judgment creditor, to unite in the 
 same proceeding, for the common assertion of their rights, and their bill 
 will not be open to objection as multifarious. They cannot, however, 
 take several common-law judgments ; in that aspect, the proceeding 
 would be bad for misjoinder. Sage vs. Kosher, 28 Barb.,. 287. See 
 also Conro vs. Port Henry Iron Company, 12 Barb., 27. 
 
 It is competent for a party, standing in the position of a judgment- 
 creditor, to sue, either in the ordinary fonn, for his own sole behalf, or 
 for himself and his class, whichever he may elect to do. Hammond vs. 
 Hudson River Iron and Machine Company, 20 Barb., 378 ; Cox vs. 
 Piatt, 32 Barb., 126 ; 19 How., 121. _ , 
 
 A receiver, under supplementary proceedings, may institute a suit ot 
 this description. His authority is derived under a judgment, and he 
 
926 OF THE COMPLATNt — § 153. 
 
 stands in the place of, and represents, the judgment-creditors. Porter 
 vs. Williams, 5 Seld., 142 ; 12 How., 107 ; Chatauque County Banlc 
 vs. White, 2 Seld., 236 ; Seymour vs. Wilson, 16 Barb., 294; 16 How., 
 35.5 ; Shaver vs. JBrainard, 29 Barb., 25. 
 
 A general assignee does not, as has been decided, stand in this posi- 
 tion, his standing in court being merely, as the nominee of the debtor, 
 on the one hand, and a trustee for creditors at large, on the other, 
 Beekman vs. KirTc, 15 How., 228 ; JETwmmond vs. Hudson River Iron 
 and Machine Company, 20 Barb., 378. See also BanTc of British 
 North America vs. Suydam, 6 How., 379 ; ICE. (IST. S.), 326. 
 
 By the recent statute, however, chapter 314 ©f 1858, page 606, the 
 powers of parties, standing in a representative capacity, are defined and 
 extended, and a general authority is given to them to bring suits of 
 this nature. 
 
 A suit of this description must stand alone. A claim for other and 
 independent relief, cannot be joined in the same proceeding. Dewey va. 
 Wa/rd, 12 How., 419. ISTor can relief against several defendants, hold- 
 ing independent conveyances, be so asserted, without the risk of an 
 objection for misjoinder, lieed vs. Stryher, 6 Abb., 109. 
 
 In a contest between conflicting suits, preference was given to one 
 ■which contested, over one which assiimed, the validity of an assignment 
 alleged to be fraudulent. Wheeler vs. Wheedon, 9 How., 293. 
 
 The execution of a power has been held to be compellable for the 
 benefit of creditors, in a proceeding of this description. Tallmage vs. 
 Sill, 21 Barb., 34. But a trust, provided for the maintenance of the 
 cestui que trust, cannot be reached, unless the existence of a surplus is 
 made evident. Bramhall vs. Ferris, 4 Kern., 41. 
 
 The proceeding does not, however, extend to control the debtor in 
 the management of a suit, instituted by him for an analogous purpose, 
 or to restrain him from settling or compromising that suit, should he 
 think fit. Boughtmx vs. Smith, 26 Barb., 635. 
 
 The filing of a complaint of this description was held, under the 
 former practice, to effect, per se, a specific lien on the property sought 
 to be reached, and the same seems still to be the case. To make that 
 lien available against third persons, the precaution of filing a notice of 
 lis pendens at the outset should, however, always be observed. Wheeler 
 vs. Wheedon, 9 How., 293 (298) ; Roberts vs. Albany and West Stock- 
 bridge Railroad Company, 25 Barb., 662 ; Yoorhies vs. Seymour, 26 
 Barb., 669 ; Tallmage vs. Sill, 21 Barb., 34 (55) ; Gere vs. DibUe, 17 
 How., 31. 
 
 Although a creditor, under supplementary proceedings, obtains an 
 inchoate lien of a similar nature, Avhich, on the appointment of a receiver, 
 will become perfected, still, if he abandon those proceedings, and insti- 
 
OF THE COMPLAINT. § 153. 927 
 
 tute a creditor's suit, he cannot any longer claim the benefit of them. 
 His only lien will then date from the commencement of the latter pro- 
 ceeding. Edmonston vs. MeLoud, 16 N. Y., 543. In Tripp vs. Ohilds, 
 14 Barb., 85, it was held that this remedy was extendable over future 
 earnings of the judgment-debtor, and with a view to avoid a fraudulent 
 disposition of them. See, however, Campbell vs. Foster, 16 How., 
 275, holding the contrary, as to future revenue derivable under a trust 
 fund. 
 
 In relation to the averments in a suit of this description, the follow- 
 ing cases demand citation : 
 
 The old forms and the provisions of the former rules upon the subject 
 are now swept away, and need no longer be observed. See QuicJc 
 vs. Keeler, 2 Sandf., 231, before cited. But all that was made requisite 
 by the Kevised Statutes remains equally essential, and must still be 
 stated. Same case. See also Hammond vs. Hudson River Iron and 
 3fachine Company, 20 Barb., 378 (386) ; and Rogers vs. Hern, 2 
 0. E., 79, also above cited. 
 
 Especially it is necessary, in order to sustain the ordinary proceed- 
 ing, to aver, as under the old practice, the issuing and return of an 
 execution unsatisfied. Campbell vs. Foster, 16 How., 275. See gen- 
 erally, as to averments, Gatlin vs. Doughty, 12 How., 457. 
 
 In a suit to set aside an instrument on the ground of fraud, it is suf- 
 ficient to charge the fraud relied on, in general terms, in connection 
 with a full allegation of the provisions alleged to be void, or the other 
 facts out of which that fraud arises. It is not necessary to enter into 
 any detailed specification of the reasons for impeaching it, or to point 
 out the peculiar objections taken. Jessiip vs. Hulse, 29 Barb., 539 ; 
 HoMtings vs. Thurston, 18 How., 530 ; 10 Abb., 418. 
 
 In a suit to remove a fraudulent obstruction on real estate, the plain- 
 tiff must show in his complaint : 1. That there is such real estate. 2. 
 That the judgment would have been a lien thereon, had not the frau- 
 dulent obstruction been interposed. 3. That, by reason of such inter- 
 position, his execution cannot reach it, and that therefore his remedy 
 at law is not sufficient. If it fail in any of these respects, the suit will 
 not be maintainable. Wilson vs. Forsyth, 24 Barb., 105. 
 
 In a general creditors' bill to reach and distribute the assets of a limited 
 partnership, the allegations of the complaint, as to the claim of the 
 plaintiffs, must be so definite and certain, as to inform the defendants 
 when in what manner, to what amount, and by what contracts it is 
 claimed that they have become entitled. Gray vs. Kendall, 10 Abb., QQ. 
 The principle of secundum allegata, applies equally to this as to other 
 pleadings, and, unless the proofs given accord with the averments, the 
 proceeding cannot stand. Bailey vs. Ryder, 6 Seld., 363. 
 
928 OF THE COMPLAINT. § 153. 
 
 (J.) Othee Special Liens. 
 
 The following may be referred to, as a few of the many decisions in 
 relation to the enforcement of equitable liens, generally considered, and 
 applicable to the special circumstances of each individual case. 
 
 As to the lien of a vendor on property conveyed by him, in respect of 
 an unpaid note given for purchase-money, and its availability, as against 
 the holder of a mere voluntary conveyance, though taken under circum- 
 stances which would have discharged a hond fide purchaser, see JBur- 
 lingam.e vs. Robhvns, 21 Barb., 32Y ; Warren vs. Fenn, 28 Barb., 333. 
 See also, as to a similar lien, for reimbursement for instalments paid on ac- 
 count of a contract for purchase, incapable of being afterwards fulfilled, 
 Tompkins vs. Seeley, 29 Barb., 212. 
 
 The equitable lien for unpaid purchase-money, is only raised by law, 
 in the absence of express agreement between the parties. It will be 
 waived by the taking of any security, other than the personal obliga- 
 tion of the vendee, or by the making of express provision for its pay- 
 ment. Mare vs. Van Deusen, 32 Barb., 92. 
 
 As to the charge effected upon an estate, by its devise, subject to the 
 payment of debts, and the means of enforcement of that charge, by an 
 action in rem, for the benefit of creditors of the testator, see Wood vs. 
 Wood, 26 Barb., 356. 
 
 As to the mode of enforcement of debts, against real estate of a foreign 
 intestate, having effects within this state, on which administration 
 cannot be obtained, and the necessity of negativing the possibility of 
 obtaining such administration, by special averment, on the face of the 
 complaint for that purpose, see Hollister vs. Hollister, 10 How., 632. 
 
 An administrator, who voluntarily pays a debt of his intestate, cannot 
 subsequently proceed to collect it out of the real estate. The statute 
 gives that right to creditors, and to them only. Where, however, such 
 a debt is caused by the application of moneys of the estate to the pay- 
 ment of debts due from the intestate in his lifetime, the administrator 
 may be regarded as equitable assignee of such claims, and may in that 
 character obtain his remedy. Ball vs. Miller, 17 How., 300. 
 
 As to the right of a doweress, in possession of part, to obtain contribu- 
 tion from heirs, of their proportion of taxes on the whole property of 
 the deceased paid by her, see Graham vs. Dunigan, 2 Bosw., 516. 
 
 In relation to the marshalling of claims, as between two funds affected 
 by the same lien, and the principles on which an apportionment of liabil- 
 ity may be made, in a case calling for that mode of interposition, see 
 Ingalls vs. Morgan, 6 Seld., 178 ; affirming same case, 12 Barb., 578. 
 
 An agreement to create a lien, affects a lien in equity, available against 
 the claims of subsequent judgment-creditors. To have this effect, how- 
 
OF THE COMPLAINT. — § 153. 929 
 
 ever, the agreement must be clear, and its object, and the property 
 affected by it, definitely expressed. If it fall short of these conditions, 
 the agreement will be regarded as merely executory. If it satisfies them, 
 however, the lien so created will be valid and enforceable, even against 
 future acquired property agreed to be charged, so soon as that prop- 
 erty is acquired. Seymour vs. Canandaigua and Niagara Falls Rail- 
 road Company, 25 Barb., 284; 14 How., 531. 
 
 (c.) Lien tjpon Estate of Feme Covert. 
 
 The consideration of this subject has been in a great measure antici- 
 pated, and the decisions and statutes bearing upon it cited, under the 
 head of Parties, in Book II., section 34. 
 
 The following decisions have reference to the law on this subject, as 
 it stood prior to the last amendment, effected by chapter 172 of 1862, 
 p. 343. 
 
 Where the separate estate of a married woman, which is sought to 
 be charged, arises imder a specific deed or instrument, such deed or 
 instrument should, it would seem, be set forth, that the court may 
 determine, whether its provisions are consistent with the defendant's 
 attempt to charge that estate. Yale vs. Dederer, 18 N. Y., 265 (268) ; 17 
 How., 165. 
 
 In order to create a charge upon such separate estate, the intention 
 to do so must be declared, in the very contract which is the foundation 
 of the charge, or the consideration must be obtained for the direct 
 benefit of the estate itself. Yale vs. Dederer, 22 IST. T., 450 ; 20 How., 
 242. ; see also, Taylor vs. Glenny, 22 How., 240. 
 
 The complaint, therefore, of a party who seeks to enforce such a 
 charge, must show that the consideration of the promise relied on, was 
 some benefit to the separate estate, or that there was a distinct intention 
 iipon her part to charge it. If not, such complaint will be demurrable. 
 Palen vs. Lent, 5 Bosw., 713. 
 
 In all cases, the averments should be full, and must show by unmis- 
 takable allegation the following facts : 
 
 That the defendant has property, describing it with suflicient cer- 
 tainty to enable its identification, and specific apjjlication to payment of 
 the lien as claimed, and that she owned such property, at the time the 
 debt was contracted, a bare allegation, without specification, will not 
 avail • that such property is held by her to her separate use ; and, if 
 the general provisions of the statutes of 1848, 1849, 1860, and 1862, 
 are relied on, as creating such separate property, the case must be 
 brouo-ht within their scope by special averment, as, for instance, by an 
 allegation that the defendant was married within this state, at a date 
 subsequent to the passage of the first of those statutes. 
 
 Vol. t— 59 
 
930 OF THE COMPLAINT. — § 154. 
 
 The nature and consideration of the plaintiff's debt sought to be 
 enforced, and that snch debt was incurred, upon the express credit, or 
 for the express benefit of the specific property sought to be charged, 
 and that the defendant made, or intended to make, such debt a charge 
 or lien upon her separate estate, at the time she contracted it. 
 
 And the demand for judgment should be, that such separate estate 
 be charged with, and applied to the payment of the debt in question, and 
 that a receiver be appointed to take charge of that estate, and dispose 
 of it, or of so much as may be necessary for such payment. See Cobine 
 vs. St. John, 12 How., 333 ; Goodall vs. MeAdam, 14 How., 385 ; Sexton 
 vs. Meet, 2 Hilt., 4T7 ; 15 How., 106 ; 6 Abb., 8 ; Bass vs. Bean, 16 
 How., 93 ; Arnold vs. Ringold, 16 How., 158 ; Dicherman vs. Ahra- 
 ham,s, 21 Barb., 551. 
 
 As to the covenant of a married woman being effective to bind sepa- 
 rate property, of which she has power to dispose, under an ante-nuptial 
 contract, see Yan Allen vs. Hurnphrey, 15 Barb., 555. 
 
 But the recent amendment of the law seems to have swept away 
 most, if not all, of these distinctions, and to enable a suit to be brought 
 upon the contract of a feme covert in the ordinary form, the judgment, 
 if obtained against her, being enforceable against her separate estate, in 
 the same manner as if she were sole. See chapter 172 of 1862, p. 343, 
 section 7. See also chapter 460 of 1862 (the amended Code), p. 846, 
 section 12. 
 
 § 154. Foreclosv/re, or JRedenvption. 
 
 (a.) FOBECLOSUEE OF MoETGAGE. 
 
 The bill of complaint in this proceeding, was made the subject of spe- 
 cial regulation, under the former practice, by section 1 of chapter 342 
 of 1840, making it the duty of the chancellor to frame a short and con- 
 venient form, containing so much only as was necessary to enable the 
 court to frame a proper decree. This form was framed accordingly, and 
 has come into general use ; and although, in strictness, it stands formally 
 abolished by the preamble, and by sections 69 and 140 of the Code, the 
 use of it is, in substance, still continued. 
 
 The substance of that form may be shortly stated thus : 
 
 The making and terms of the bond and mortgage must be averred 
 fully and specifically, the description of the property being given in 
 extenso ; especially is it material to set out fully the condition of the 
 bond, and the power of sale in the mortgage. 
 
 The recording of the mortgage must be also specially shown ; and if 
 any assignments have been made, they must be averred on the same 
 ])rinciples, s© as to show actual title in the plaintiff. 
 
or THE COMPLAINT. — § 154. 931 
 
 The breach of the condition which gives the right to foreclose, and 
 the existence and amount of tlie plaintiff's debt, must be alleged with 
 the same particularity. As to the effect of an omission to make a suf- 
 ficient averment in this respect, see Second American Building Asso- 
 ciation vs. Plat% 5 Duer, 675. 
 
 It should be stated that no other proceedings have been taken, for the 
 recovery of the same amount. 
 
 And, if parties, other than those directly liable, are sought to be fore- 
 closed upon, it must be alleged that they claim some lien or interest in 
 the premises, subsequent to the plaintiff's mortgage. 
 
 The complaint winds up, by a prayer that the defendants be fore- 
 closed ; that the property be sold, and the proceeds brought into court ; 
 that the plaintiff be paid his debt, interest, and costs, out of such 
 moneys ; and that the mortgagor, or any other party liable to its pay- 
 ment, be adjudged to pay any deficiency, if any. As to the necessity 
 of inserting a demand for this relief in all cases, see Simonson vs. Blake, 
 20 How., 484; 12 Abb., 331. 
 
 The question as to the parties necessary to be joined, has been already 
 anticipated in book II., section 88, where it will be found fully dis- 
 cussed. The rule may be shortly stated thus : The mortgagor is, of 
 course, a necessary party, where the property remains in him. He is 
 also a proper party, even after alienation, as remaining still liable for 
 any deficiency. His alienee, seized of the property, must, of course, be 
 joined. Intermediate alienees, retaining no interest, need not be so. 
 But any alienee, who has assumed payment of the mortgage, under his 
 conveyance, or otherwise, may be brought in, and payment of any defi- 
 ciency claimed as against him ; and, where this is the ease, and the 
 plaintiff chooses to rely upon the solvency of such assuming alienee, it 
 is no longer necessary for him, though admissible, to join the original 
 mortgagor. See Drury vs. Clark, 16 How., 424. See, as to what will 
 or will not be sufficient to constitute an assumption of this nature, 
 Stebbins vs. EaU, 29 Barb., 524 ; Trotter vs. Hughes, 2 Kern., T4 ; Bel- 
 mont vs. Coleman, 2'2i N. Y., 438. See likewise, as to the plaintiff being 
 bound by equities in this respect, as between the parties, of which he 
 lias actual notice, Flagg vs. Munger, 5 Seld., 483. 
 
 Every wife or widow of a mortgagor, or of any subsequent grantee, or 
 owner of the equity of redemption, must be joined, or the decree will be 
 void, pro tanto. Denton vs. Nanny, 8 Barb., 618. "Where, too, a 
 widow had actually been made a party in another capacity, no issue 
 being raised as to her right of dower, and, in that capacity, suffered 
 judgment to be taken against \\&x pro confesso, her right to dower was 
 held not to be affected. Her claim, in that respect, was paramount to 
 the mortgage, and therefore she had no right to suppose that that claim 
 
933 OF THE COMPLAINT. § 154. 
 
 would be called into question, whatever might be the case as regarded 
 her subsequent interest. Lewis vs. Smith, 11 Barb., 152 ; 7 L. O., 292 ; 
 affirmed, 6 Seld., 502 ; 12 L. 0., 193 ; Wheeler vs. Morris, 2 Bosw., 524. 
 
 And, although the wife or widow of a mortgagor cannot, under the 
 statute (1 K. S., 740, section 5), claim dower adversely to a mortgagee 
 for unpaid purchase-money, it is, nevertheless, necessary to join her, in 
 all cases, in respect of the interest which she retains in the surplus, if 
 any. Wheeler vs. Montis, supra; Mills vs. Yan Voorhis, 23 Barb., 125; 
 Same case, 20 JST. Y., 412 ; 10 Abb., 152 (the reversal not being in 
 derogation, but in affirmance of this doctrine) ; Blydeiiburgh vs. Wor- 
 throf, 13 How., 289. As to the validity of a mortgage of tliis descrip- 
 tion, even though it bears a date subsequent to that of the conveyance 
 of the property, provided both are clearly parts of the same contract, 
 see South Baptist Society of Alhany vs. Clapp, 18 Barb., 35. 
 
 And, where subsequent encumbrances, whether by way of mortgage, 
 judgment, or lien exist, such encumbrancers, and every other party sub- 
 sequently interested, must be brought in, or the foreclosure will be 
 defective, ^0 tanto, and any party omitted to be joined will retain a 
 right of redemption. See Brainard vs. Cooper, 6 Seld., 356. 
 
 As to the effect of omitting to join a party standing in this position, 
 and as to the power of such party to maintain foreclosure on his own 
 behalf, and the position of mortgagee in possession in which the original 
 first mortgagee will then stand, in a ease where he has himself .bought 
 in the property, see Walsh vs. Rutgers Fire Insurance Company, 13 
 Abb., 33. 
 
 "Where the rights of the parties so joined are of a general nature, as, 
 for instance, in the case of judgment-creditors, the general allegation 
 that they claim some lien or interest, will suffice, and it will not bo 
 necessary or proper to make a more specific averment. N"or can any 
 equities between such defendants be brought in issue, for the purpose 
 of delaying the plaintiff's remedy, or encumbering the proof or decision 
 of his suit. The proper time for raising such questions, is on the coming 
 in of claims to the surplus, if any. Drury vs. Clarlc, 16 How., 424. 
 
 ISTor is a mortgagee bound to notice the equitable rights of subsequent 
 grantees, as between themselves, unless specifically brought to his atten- 
 tion, by actual notice. But, where such-notice is brought home to him 
 such equitable rights may be provided for. Howard Insurance Coitv- 
 pany vs. Halsey, 4 Seld., 271 ; affirming 4 Sandf., 565. See also, on 
 the same subject, Flagg vs. Munger, 5 Seld., 483. 
 
 But, where the claim of an encumbrancer or party interested is of 
 a specific nature, or arises under a specific instrument, it should be 
 averred accordingly, so as to make it clearly appear what is the 
 interest sought to be foreclosed. See, as to a claim for dower, Lewis 
 
or THE COMPLAINT. § 154, 933 
 
 vs. Smith, supra. And, where any party is interested in more than one 
 capacity, care must be taken to frame the statements' so comprehen- 
 sively, as to include every possible interest which such party may 
 possess. 
 
 Where infants are interested in the estate sought to be foreclosed, the 
 nature of their interest, and whether it is paramount or subordinate to 
 that of the plaintiff, must be shown by specific allegation. The ordi- 
 nary allegation, that such infants claim some interest in the premises, 
 is not sufficient, as the facts cannot be taken as admitted, as against 
 them, and there must be some averment to sustain the requisite proof. 
 Aldrich vs. Lapham, 6 How., 129 ; 1 C. E. (N. S.), 408. 
 
 Of course, too, any peculiar circumstances connected with the secu- 
 rity, as, for instance, if the mortgagee have been in possession, must be 
 distinctly averred ; and, in the latter case, the results of any accounts 
 between the parties, which will tend to show the exact sum then due 
 in respect of the security, must be correctly stated ; and it may be ex- 
 pedient to annex copies of the accounts themselves to tlie complaint, 
 with a view to obtain an admission or non-denial of their correctness. 
 The observation made in a previous chapter, with regard to fixing 
 the venue in these cases, will have been noticed. It must be in the 
 county, or one of the counties, where the premises are situate, irre- 
 spective of that in which the loan itself may have been actually trans- 
 acted. 
 
 A prior encumbrancer need not, and ought not properly to be joined. 
 He cannot be affected, or his rights reached by the decree. The sanio 
 is the case as to any party claiming a right, prior or in hostility to the 
 mortgage sought to be foreclosed. The question as to the rights of 
 suclr party cannot be litigated in the suit, but must be made the subject 
 of a separate proceeding. Lewis vs. Smith, supra; Corning vs. Smith, 
 2" Seld., 82. N. B. — Both these decisions were in cases arising prior to 
 the amendments of 1852. It may now be questionable, whether causes 
 of action of this description, may not be capable of joinder, in a com- 
 plaint, properly framed under subdivision 1 of section 167, as added 
 in that year. See also ^imcw^ vs. ^awcot'A;, 22 N. Y., 568. 
 
 Tlie decision in Depeyster vs. Haslrouch, 1 Kern., 582, where a suit 
 for the purpose of reforming a mortgage, so as to include premises 
 omitted through fraud, and for foreclosure of it, when reformed, was 
 held to be maintainable, would seem to tell in favor of the above con- 
 clusion. . „ .^1 1 
 
 Encumbrancers, junior to the plaintiff, cannot interfere with, or seek 
 to control, the proceedings in his suit. See Bedell vs. McClellan, 11 
 
 How., 1Y2. 
 If the plaintiff have actual notice of a pnor encumbrance, even 
 
934 OF THE COMPIAINT. § 154, 
 
 though unrecorded, he will be bound by it, and the court will provide 
 for securing its priority. Haywood vs. Shaw, 16 How., 11&. 
 
 The usual mode of framing the complaint, is to state the condition of 
 the mortgage, by reference to, and as being the same as that in the 
 bond previously alleged. This mode is, however, subject to this incon- 
 venience, that it leaves the defendant at liberty to raise the question, as 
 to whether the conditions do or do not accord, for the purpose of delay. 
 See Dimon vs. Bridges, 8 How., 16. A more specific allegation of 
 the condition of the. mortgage, according to its actual wording, would 
 tend to obviate this difficulty. 
 
 The condition in the mortgage is, in fact, what really governs the 
 proceeding, and a' suit will still be maintainable, even under circum- 
 stances where one on the collateral instrument would be barred. Pratt 
 vs. Huggins, 29 Barb., 277. 
 
 Foreclosure is maintainable on the mortgage alone, without any col- 
 lateral instrument. Unless, however, such mortgage contain a positive 
 covenant for payment of the sum secured, the plaintiff, in the absence 
 of a collateral bond or note, will be confined to his remedy on the land, 
 and cannot recover against the mortgagor for any deficiency. Vide 1 
 R. &., 738, section 138 ; Vrooman vs. Bunlap, 30 Barb., 202. 
 
 The terms of the security itself cannot, as a general rule, be varied 
 by extraneous evidence, and it may be foreclosable, notwithstanding 
 the tender of proof of a parol agreement for extension of the period of 
 payment. Hunt vs. Blooirier, 5 Duer, 202. 
 
 A proceeding of this nature does not in any manner affect the inde- 
 pendent rights of the parties. Any equities of those parties, as between 
 themselves, remain unaffected, and may be raised in another proceed- 
 ing. Hoyt vs. Martense, 16 IST. Y., 231 ; reversing same case, 8 
 How., 196. 
 
 Nor is it necessary, upon the face of the complaint, to show the de- 
 tails of the interest of the plaintiffs, provided & prima facie title is made 
 apparent. See Pinckney vs. Wallace, 1 Abb., 82. 
 
 It seems, too, that a plaintiff is not required to allege, or to establish 
 beforehand, and in the first instance, any claims he may have upon the 
 mortgaged premises, independent of the mortgage he seeks to enforce. 
 He has the same right as any other person, to present and establish a 
 claim to the surplus moneys, after sale ; and, if necessary, his complaint 
 may then be amended, on an application made, after that surplus has 
 been ascertained. Field vs. Ha/wxJiurst, 9 How., 75. 
 
 A mortgage executed for an amount to be advanced, is foreclosable 
 but only to the extent of the advance actually made. Part vs. McAdam 
 27 Barb., 187 ; RoUnson vs. Williams, 22 IST. Y., 380. 
 
 In Seymov/rv?,. Oanamdaigua and Niaga/ra Falls PaAlroad ConvpamAj 
 
OF THE JOOMPLAOTT. § 154. 935 
 
 25 Barb., 284 ; 14 How, 531, a mortgage, comprising in part property 
 to be acquired in future, was held to be a lien in equity from the date 
 of its original record, and to be foreclosable against such property, when 
 acquired. 
 
 A mortgagee may maintain his suit, unaffected by any collateral 
 claims of the defendants, and even although a collateral proceeding for 
 the purpose of setting aside his security be actually pending. Tarramt 
 vs. Quackenhos, 10 How., 244. 
 
 A strict foreclosure, according to the practice in England and several 
 of the sister states, is, though unusual, maintainable in a proper case, 
 as, for instance, for the removal of doubts as to the validity of a previ- 
 ous decree. See, as to this proceeding, and the proper form of decree 
 in such a case, Kendall vs. Treadwell, 14 How., 165 ; 5 Abb., 16. 
 
 As to the right of a female mortgagee to maintain foreclosure, 
 notwithstanding her subsequent marriage with the mortgagor, see 
 Power vs. Lester, 17 How., 413 ; affirmed, 23 IST. Y., 52Y. 
 
 'Eor will a bequest of the mortagee's interest to the mortgagor, prevent 
 the holder of an intermediate outstanding interest in the debt, from 
 maintaining foreclosure. Hancock vs. Hancock, 22 N. T., 568. 
 
 The comptroller of the state has the same rights as any other 
 person, of foreclosing a mortgage, assigned to him as security, by a 
 banking or other incorporation, pursuant to the statute. Flagg vs. 
 Munger, 5 Seld., 483. 
 
 As to the right to maintain foreclosure, in respect of a nioi-tgage 
 wrongfully satisfied of record, and the effect of such wrongful satis- 
 faction upon the rights of the different parties interested, see JEly vs. 
 Scofield, 35 Barb., 330. 
 
 In the city of New York, a mortgagee acquires a right to redeem the 
 premises, as soon as they are assessed for city purposes. By such pay- 
 ment he acquires a lien on the premises, which he may add to his 
 mortgage debt, and collect by foreclosure. Brevoort vs. Randolph, 1 
 
 How., 398. 
 
 And, in the same city, the corporation acquires a lien upon the prem- 
 ises, in default of payment of such an assessment, which is enforceable 
 by a proceeding in the nature of foreclosure. Mayor of New York vs. 
 Colgate, 2 Kern., 140 ; affirming same case, 2 Duer, 1. 
 
 As to a mortgage to a building or other similar association, and the 
 extent to which the lien upon it is, or is not enforceable, see Ham.ilton 
 Building Association vs. Reynolds, 5 Duer, 671 ; Second American 
 Building Association vs. Piatt, 5 Duer, 675 / Citizens'' Mutual Loan 
 Association vs. Webster, 25 Barb., 263. 
 
 As a general rule, the usual interest clause will receive a strict con- 
 Btruction, and, if the mortgagor fail to make his payments regularly, 
 
936 OF THE COMPLAINT.-;— § 154. 
 
 within the stipulated thiie, he cannot be relieved ; and the rights of the 
 mortgagee to foreclose will be absolute, notwithstanding a subsequent 
 tender.^ Ferris vs. Ferris, 28 Barb., 29 ; 16 How., 102 ; Hunt vs. Eeecli, 
 3 Abb., 204. See also DwigU vs. Webster, 33 Barb., 47 ; 19 How., 
 349 ; 10 Abb., 128. 
 
 But where, under such circumstances, the conduct of the mortgagee 
 has been either fraudulent or oppressive, the court has, in some instances, 
 interfered to prevent his taking advantage of the forfeiture created by 
 his own wrong. Broderick vs. Smith, 26 Barb., 539 ; 15 How, 434. 
 See also, similar relief granted, on the ground of accident or mistake, 
 Lynch vs. Cunningham, 6 Abb., 94. 
 
 So also, when a mortgagor had made a remittance to his mortgagee, in 
 order to obtain an extension of time, the latter was held bound to grant 
 the extension, or return the amount. Grinnan vs. Piatt, 31 Barb., 328. 
 
 As to the mortgagor's right to stay proceedings, at any time before sale, 
 on tender to the mortgagee of his principal, interest, and costs, though 
 his law day for redemption be past ; and that such a tender, when made, 
 at once discharges the lien, ,see Kort/right vs. Cady, 21 !N". T., 343 ; 
 reversing sam6 case, 23 Barb., 490 ; 5 Abb., 358 ; and also at special term, 
 12 How., 424. See also, as to a charge on personal property, Pratt 
 vs. Stiles, 17 How., 211 ; 9 Abb., 150. 
 
 As to the necessity of such a tender being made in strict legal form, 
 to be available for the purpose of discharging the lien, see Harris vs. 
 Muloch, 9 How., 402. 
 
 After land, the subject of a mortgage, has been legally converted into 
 money, payable to the mortgagee, proceedings by way of foreclosure 
 will no longer lie. His remedy is by an application for the amount. 
 Shephard vs. Mayor of New York, 13 How., 286. 
 
 To be enforceable in the hands of an assignee, the mortgage must be 
 valid, and the assignment good in itself, and made in good faith, and 
 without notice of any fraud or defect in the security. If deficient in 
 any of these particulars, the plaintiff's right to sue will be gone. See 
 Bewitt vs. Brisbane, 16 IS. Y., 508 ; Talmage vs. Pell, 3 Seld., 328 ; 
 LeoAiitt vs. Palmer, 3 Comst., 19 ; Chamberlain vs. Barnes, 26 Barb., 
 160. See also, as to the limitation of the claim of a plaintiff, under simi- 
 lar circumstances. Wood vs. Chew, 13 How., 86. 
 
 Althoiigh the power in a mortgage, authorize a private sale, a public 
 sale must, under the statute, be had in a proceeding of this description, 
 or the right of redemption will not be barred. Lawrence vs. Farmers' 
 Loam, and Trust Company, 3 Kern., 200. 
 
 As to a suit not being maintainable, for the purpose of recovering a 
 deficiency, after foreclosure completed, in a case where a mortgage had 
 been given alone, without any covenant for payment, or any collateral 
 
OP THE COMPLAINT. § 154. 937 
 
 bond ; on tlie ground that the plaintiff's remedy in snch a case is eon- 
 fined only to the land, under 1 E. S., T38, section 138, see Vroovicm vs. 
 Dunlap, 30 Barb., 202. 
 
 In relation to the mortgagee's right to intercept the rents and profits, 
 after default and before sale, in certain cases, and when it will, or will 
 not, be recognized and provided for by the court, see Syracuse City 
 Banh vs. Tollman, 31 Barb., 201. 
 
 As to the plaintiff's measure of recovery, on an instrument providing 
 for future advances of a specific nature, and as to the evidence necessary 
 to support it, see Walker vs. Paine, 31 Barb., 213. 
 
 {b.) FoBECLOSUEE OF MecHAUICs' LiEN. 
 
 As before noticed in book III., section 61, it is not proposed to enter, 
 in the present work, into the details of this remedy, in so far as it con- 
 stitutes a special statutory proceeding. The mode in which such lien 
 is acquired, its nature and extent when obtained, and its incidents, so 
 far as regards the rights of the claimant, and the liability of the defend- 
 ant, or I'ather of the defendant's property, will accordingly be passed 
 over, referring the reader to the special treatises which have been pub- 
 lished upon the subject. 
 
 But, inasmuch as the proceedings to enforce it, when acquired, par- 
 take closely of the characteristics of an ordinary suit for foreclosure, it 
 will be convenient to notice, at this juncture, some of the principal de- 
 cisions which bear upon the structure of the complaint, by which relief 
 in respect of it is sought. 
 
 The present statutes applicable, and under which that relief is obtain- 
 able, are as follows : 
 
 As regards the city and county of ISTew York. Chapter 513 of 1851, 
 p. 953.; amended by chapter 401 of 1855, p. 760 
 
 As regards the counties of Kings and Queens. Chapter 478 of 1862, 
 
 p. 947. 
 
 As regards all the counties in the state, except those of New Tork, 
 Kings, Queens, and 'Erie, chapter 402 of 1854, p. 1086; originally 
 passed for a smaller district, but extended and made generally applica- 
 ble as above, by chapter 204 of 1858, p. 324. 
 
 As regards the city of Buffalo, the old law, chapter 305 of 1844, still 
 subsists, except in so far as it has been amended by chapter 517 of 
 
 1861, p. 960. 
 
 The statute of 1858, extending that of 1854, has an extensive repeal- 
 ing operation. It sweeps away and nullifies the following special laws, 
 applicable to particular places : 
 
 The original law of 1844, except as regards the county of Erie : Chap- 
 ter 184 of 1846 ; amended by chapter 160 of 1850, p. 326, relative 
 
938 OP THE COMPLAINT. § 154. 
 
 to the county of Eichmond : Chapter 169 of 1851, p. 319, chapter 384 
 of 1852, p. 611, and chapter 413 of 1853, p. 809, as to Westchester and 
 other neighboring counties : Chaptef 663 of 185T, vol. 2, p. 477, as to 
 Saratoga Springs. 
 
 Its apparent effect would also seem to have extended to a repeal of 
 the special statute as to Kings county, chapter 335 of 1853, page 708. 
 This conclusion is however denied, and that statute held to be still in 
 force, in Rafter vs. Sullivan, 13 Abb., 262. The special statute of 
 1862, above cited, has however put an end to the question. 
 
 For the purpose of pleading, it is not necessary to notice the distinc- 
 tions which exist in detail between the present subsisting statutes ; all 
 substantially provide for the acquisition of a lien, as against the owner, 
 in favor of a party doing work or labor, or furnishing materials, towards 
 the erection or repairing of any house or building, to be acquired by 
 the filing of a notice in the county clerk's office, within a specified time, 
 and to be enforced by means of a consequent notice to such owner, fol- 
 lowed up by proceedings in the nature of a suit for foreclosure. 
 
 The New York statute is, however, imperative in requiring that for 
 such purposes the claim should be for work, &c., done or furnished by 
 virtue of a contract, either entered into directly with the owner or his 
 agent, or done by the claimant for such a contractor, in pursuance 
 of an agreement, and in conformity with the tei'ms of his original 
 contract with the owner. The general act is less stringent in its terms, 
 and enables the acquisition of such a lien, in respect of any work done 
 or performed as above, and likewise for any materials furnished by a 
 resident of the counties enumerated. 
 
 The following decisions bear upon the structure of a complaint framed 
 for assertion of the relief in question. They all bear, with little if any 
 exception, upon the New York statute, that being the one chiefly drawn 
 into controversy. They are however, as a general rule, equally appli- 
 cable to the others, on the general principles established. 
 
 In any case, and under whatever description of contract the remedy 
 in question is sought, the complaint must contain fuU and specific aver- 
 ments, showing the acquisition of the lien, by filing the requisite notice, 
 and also that the claim, in respect of which the lien arises, is a claim 
 within the terms of the statute invoked. The proceeding is m retn, not 
 in personam, and every fact necessary to show a strict compliance with 
 those terms, must be specifically averred. Yide OronJcright vs. TJwmson 
 1 E. D. Smith, 661 ; Randolph vs. Leary, 3 E. D. Smith, 637 ; 4 Abb., 
 305 ; Quimby vs. Sloam, 2 E. D. Smith, 594 ; 2 Abb., 93, and most of 
 the other cases below cited. 
 
 In Duffy vs. McManus, 3 E. D. Smith, 657, reported as Duffy vs. 
 Brady, 4 Abb., 432, a case under the New York statute, the principles; 
 
OF THE COMPLAINT. § 154. 939 
 
 are laid down thus : A eomplaint, predicated solely on the notice, and 
 its object and intent, without separate or independent averments of 
 the facts alleged in the notice, was held bad on demuiTer. It was held 
 that such complaint must be subjected to the rules of law in other 
 actions, and that it should aver, that notice was filed, that the defendant 
 is the owner, that the work was done in pursuance of a contract, and 
 in conformity therewith. The premises should be described with suffi- 
 cient certainty, and both the street and number should be given, or the 
 reason why the plaintiff cannot give the latter averred. 
 
 In every case, the complaint must be framed as for a foreclosure, and 
 the mere ordinary averments of work and labor done, will be insufficient 
 to support a claim. The plaintiff must show the peculiar nature of his 
 claim, to lay ground for his application for this species of relief Foster 
 vs. Pmllon, 2 E. D. Smith 556 ; 1 Abb., 321. 
 
 It must appear, in all cases, that the materials were furnished, and 
 the labor performed, at or before the time that the notice was filed. 
 Jaques vs. Morris, 2 E. D. Smith, 639. 
 
 "Where the contractor is himself the plaintiff, under a contract made 
 between him and the owner, he must show, on the face of his complaint, 
 that the owner is indebted to him, and, before there can be an actual 
 recovery of the money, it must appear that the debt has become payable. 
 Doughty vs. Devlin, 1 E. D. Smith, 625. A lien is sustainable under 
 these circumstances, in respect of work done under a general employ- 
 ment, with a specifi:C agreement as to price, as to part, and for the residue 
 on a quantum meruit. Smith vs. Coe, 2 Hilt., 365. 
 
 "Where, in such a case, the contractor has given a specific credit 
 to the owner, it does not interfere with the acquisition of his lien by the 
 filing of notice, unless the credit be so long as to extend beyond the 
 statutory period ; but such lien cannot be enforced, till the money is 
 payable" MiUer vs. Moore, 1 E. D. Smith, Y39 ; Althause vs. Ludlum, 
 2 E. D. Smith, 657. 
 
 In a complaint by a subcontractor, laborer, or material man, it is not 
 necessary to aver, that a payment was due from the owner to the con- 
 tractor at the time of filing the notice. To sustain a recovery, how- 
 ever, he must prove the fact that such a payment is then due, and the 
 owner will be allowed for intermediate payments made in good faith, and 
 cannot be compelled to pay more than the contract price due from him 
 to the contractor. Doughty vs. Devlin, supra ; Cronh vs. Whittaher, 1 
 E D Smith, 647; Sullvvan vs. Brewster, 1 E. D. Smith, 681; 8 
 How., 209; PejiMeburg vs. Meade, 1 E. D. Smith, 728; Cannam,rs. 
 
 Mclnrow, 3 Kern., 70. ■,- • i. 
 
 The complaint in such a case must aver, however, m addition to the 
 ordinary requisites above noticed, that the work, &c., was done or fur- 
 
94:0 OF THE OaMPLAEST. § 154. 
 
 uislied for the contractor for tlie biiildiug ; that the defendant, or one 
 of the defendants, is the owner, within the terms of the statute ; that 
 such work was so done, or materials furnished, in conformity with the 
 terms of the contract between such contractor and the owner ; and that 
 the money claimed was, at the time of acquiring the lien, due frojn the ' 
 contractor to the claimant. Doughty vs. DevUn, 1 E. D. Smith, 625 ; 
 Dixon vs. La Forge, 1 E. D. Smith, 722 ; Oay vs. Brown, ibid., T25 ; 
 Pendleburg vs. Meade, ibid., 728 ; Broder-icky%. Poillon, 2 E. D. Smith, 
 554, reported as Broderick vs. Doyle, 1 Abb., 319 ; Quinn vs. The 
 Mayor of New Yorh, 2 E. D. Smith, 558, reported as Quhm vs. 
 MoOleff, 1 Abb., 322 ; Grogan vs. The Mayor of New York, 2 E. D, 
 Smith, 693. 
 
 When the complaint is against a grantee or assignee of the original 
 owner, under an instrument executed before notice filed, it should show 
 that such grant or assignment of the property was made, subject to the 
 lien of the claimant. Jackson vs. Sloan, 2 E. D. Smith, 616 ; Quimhy 
 vs. Tlie Same, ibid., 594 ; 2 Abb., 93. As a general rule, a lien can 
 only be acquired against the party with whom, as owner legal or equi- 
 table, the contract was made, and an intermediate alienation may defeat 
 the plaintiff's claim to this peculiar remedy. See Sinclair vs. Fitch, 3 
 E. D. Smith, 677, and several others of the cases above cited. In this 
 as in other cases, evidence of work done on employment of the owner, 
 is therefore inadmissible, under an averment of such work being done 
 for the contractor. Hauptman vs. Halsey, 1 E. D. Smith, 668. See 
 also, as to a recovery inconsistent with the original notice, Hauptman 
 vs. Catlin, 1 E. D. Smith, 729. See, however, same case. 3 E. D. Smith, 
 666 ; 4 Abb., 472. 
 
 The same general principles as to averment will also be applied 
 in these as in other cases. Where, therefore, several claims are asserted 
 in one complaint, the allegation of each must be complete in itself, and 
 the deficiencies in one cannot be supplied from others. A general aver- 
 ment, applicable to all in common, is, however, admissible p't'o tanto. 
 Sinclair vs. Fitch, 3 E. D. Smith, 677. 
 
 One general lien is, however, enforceable, in respect of work done upon 
 several buildings, standing upon contiguous lots, though the court, upon 
 a sufficient equity being shown, and the proper parties all being brought 
 before it, may apportion the burthen. Paine vs. Bonney, 4 E. D. 
 Smith, 734. 
 
 If a contractor abandons his work undei an entire contract, before 
 completion, the rule being that he can maintain no action, no lien can 
 be maintainable in such case, by his subcontractors. See Tucker vs. 
 Williams, 2 Hilt., 562 ; Bandolph vs. Oarvey, 10 Abb., 179 ; Smith vs. 
 Brady, 17 N. Y., 173. 
 
OF THE OOMPLAOTT.-— § 154. 941 
 
 (c.) Eedemptiost. 
 
 The right of the owner of property affected by a charge, to redeem it 
 at any time before his ownership is absolutely foreclosed upon, presents 
 itself naturally, in connection with the subject of foreclosure. 
 
 Such right is exercisable of course, by the owner himself, or by any 
 of the owners of the equity of redemption of the property affected by 
 such charge, or their heirs or representatives respectively ; likewise, 
 by any junior encumbrancer, or any holder of a junior lien upon such 
 property, whether specific or general. See Jenkvns vs. Coniinental Insur- 
 cmoe Company, 12 How., 66 (67). 
 
 And, even after actual foreclosure, such right may still be exercisable 
 by a party standing in any of the above positions, who has been omitted 
 to be joined as a party in the proceedings, by which such foreclosure 
 was effected, whether by suit or by advertisement, or who has been im- 
 perfectly or inefficiently so joined, so that such foreclosure does not, in 
 fact, effect a bar to the right in question. See Bogert vs. Ooburn, 27 
 Barb., 230. 
 
 As to such right on the part of a doweress or inchoate doweress, 
 omitted to be joined, or against whom the allegations of the complaint 
 are insufficient to effect a bar of this particular interest, see Lewis vs. 
 Smith ; Denton vs. Nanny ; and Wheeler vs. Morris, cited in the first 
 division of the present section. 
 
 As to the similar right of the wife or widow of a mortgagor for 
 unpaid purchase-money, in respect of her interest in the surplus fund, 
 though barred by the statute from asserting her claim adversely to the 
 immediate security of the mortgagee, see also Wheeler vs. Morris, Mills 
 vs. Van Voorhis, and Blydenburgh vs. Northrop, there cited. 
 
 As to the similar right on the part of a junior encumbrancer, or 
 judgment-creditor, omitted to be joined, see Brainard vs. Cooper, there 
 noticed • Wetmore vs. Roberts, 10 How., 51 ; Jenkins vs. Continental 
 Inmrance Company, 12 How., 66. 
 
 And such right is exercisable by a tenant for years of the land 
 charged, or by any other person, standing in the relation of surety for 
 the debt as charged upon land in which he has an interest, in order to 
 the protection of that interest. Averill vs. Taylor, 4 Seld., 44. 
 
 A party standing in such a position, has a right of subrogation to 
 the remedies of the encumbrancer redeemed by him, and to the per- 
 formance of all acts necessary to a complete transfer of that encum- 
 brance Same case. In a biU for such purpose, however, the junior 
 encumbrancer must show a present interest in himself, and a present 
 necessity for subrogation in order to protect thai interest, or he cannot 
 compel it whilst liis interest remains unattacked. If sought to be fore- 
 
942 OP THE COMPLAINT. — § 154. 
 
 closed upon, he might then invoke the powers of the court for that pur- 
 pose. Jenkins vs. Continental Insurcmce Company^ supra. 
 
 The owner, or his grantee, or any person standing in the relation of 
 a principal debtor, cannot claim a subrogation, or any thing more than 
 a satisfaction of the encumbrance; to this he is of course entitled. 
 See two last cited cases. 
 
 ■ A party still entitled to exercise this right, after foreclosure by the 
 senior encumbrancer, must, nevertheless, pay to the latter his costs of 
 such foreclosure, as well as the principal and interest due. Gage vs. 
 Brewster, 30 Barb., 387. See also Bogert vs. Ooburn, 27 Barb., 230. 
 
 An assignee of the mortgagor's interest, after the filing of notice of 
 Us pendens, or a subsequent alienee, will be barred by a subsequent 
 decree, and cannot afterwards claim to redeem. He should have come 
 in, and asked to be made a party at the time. Cleaveland vs. Boerum, 
 23 Barb., 201 ; affirmed, 27 Barb., 252. 
 
 An invalid proceeding, such as a private sale under an express 
 authority inserted in the mortgage, in disregard of the provisions of 
 the statute that all sales on foreclosure shall be public, constitutes no 
 bar to the right of redemption. Law-rence vs. Farmeri Loom a/nd 
 Trust Company, 3 Kern., 200. 
 
 The right of redemption does not extend as against the holder of 
 a sheriff's deed, regularly obtained, under a sale on execution. Buck 
 vs. Fox, 23 Barb., 259. 
 
 A mortgagee in possession may assert a claim to be compensated for 
 improvements made by him, under circumstances raising an equity on 
 his behalf, though in derogation from the general rule to the contrary, 
 as against the right of the mortgagor to redeem. See Micklos vs. 
 Dillaye, 17 N. T., 80 ; Wetmore vs. Eolerts, 10 How., 51. See, how. 
 ever, as to the application of the ordinary rule, Bogert vs. Ooburn, 27 
 Barb., 230. 
 
 A suit of this description will not lie in respect of a mortgage to the 
 United States Loan Commissioners. The statute prescribes a specific 
 mode of redemption in such cases, and the general equitable powers of 
 the court do not attach. Pell vs. Ulmar, 18 IST. Y., 139. 
 
 The owner of an equity of redemption of a portion of property, 
 subject to a general mortgage, must, unless the holder of that mortgage 
 elect to waive his rights, redeem the whole encumbrance. Bogert vs. 
 Coburn, 27 Barb., 230 ; Averill vs. Tarjlor, 4 Seld., 44 (54). See, how- 
 ever, as to the peculiar statute rights of a railroad corporation to effect 
 a partial redemption, on payment of due compensation to a general 
 mortgagee, Dows vs. Congdon, 16 How., 571. 
 
 The right of redemption exists, in personal property, at any time 
 before absolute foreclosure and sale, under a chattel mortgage affecting 
 
OF THE COMPLAINT. § 155. ' 943 
 
 it. Pratt vs. Stiles, 9 Abb., 150 ; 17 How., 211. So also, as to a 
 pledge, vide Roberts vs. Sylces, 30 Barb., 1T3 ; Lewis vs. Graham, i 
 Abb., 106. 
 
 As to the right of the owner, or his alienee, to redeem, as against an 
 equitable mortgagee, and to have an accounting for that purpose, if 
 necessary, see Chase vs. Peck, 21 N. Y., 581. 
 
 A suit to cancel a mortgage, on the ground of usury, can only be 
 brought by the mortgagor himself; but he will be in a position to 
 maintain it, even after a general assignment by him in trust for 
 creditors. 'Strong vs. Sir'ickland, 32 Barb., 284. 
 
 § 155. Real Estate — Equitable Proceedings. 
 
 {a.) Geneeal Remarks. 
 
 As before stated, in connection with the subject of ejectment, as con- 
 sidered in section 150, the provisions of the Revised Statutes, in relation 
 to proceedings of this nature, so far as regards matters of substance, as 
 distinguished from matters of form, are specially reserved by section 
 455 of the Code, passed in 1849. 
 
 Before the passage of that section, doubts had been entertained, as to 
 whether this class of actions could be brought at all iinder the Code. 
 See Traver vs. Traver, 3 How., 351 ; 1 C. E., 112. The contrary, how- 
 ever, had been settled by the following series of decisions : Watson vs. 
 Brigham, 3 How., 290 ; 1 C. E., 67 ; Backus vs. Stilwell, 3 How., 318 ; 
 1 C. E., 70 ; Myers vs. Raslack, 4 How., 83 ; 2 C. E., 13 ; Bow vs. 
 Bow, 4 How., 133 ; Townsend vs. Townsend, 2 Sandf., 711 ; Beed vs. 
 Child, 4 How., 125 ; 2 C. E., 69 ; Hammersley vs. Hammersley, 7 
 L. O., 127 ; Vanderwerlcer vs. Yanderwerher, 7 Barb., 221. These 
 authorities established beyond a doubt, that, in all cases where, under 
 the old practice, a party was at liberty to proceed, either at equity, or 
 by petition, or otherwise, under the special provisions of the Eevised 
 Statutes, he had still the same option ; an action under the regular 
 forms of the Code being substituted for the former bill in equity in 
 such cases. Since the passage of section 455, there can be no doubt at 
 all upon the subject. See AUhause vs. Badde, 3 Bosw,, 410. 
 
 The proceedings which present themselves for consideration upon the 
 present occasion are two: 1. Partition. 2. Proceedings for admeas- 
 urement of dower. Both present the same general feature of having 
 been, from the outset, obtainable through the medium of a suit in 
 equity, or by special proceeding under the Eevised Statutes, at tlie 
 option of the applicant. 
 
944 ' OF THE COMPLAINT. — § 155. 
 
 (&.) Paetition. 
 Statutory and other Provisions. 
 In addition to the above, the Code contains a special reservation on 
 this subject, as follows : 
 
 § 448. The provisions of the Revised Statutes relating to the partition of 
 lands, tenements, and hereditaments, held or possessed by joint-tenants or 
 tenants in common, shall apply to actions for such partition brought under 
 this act, so far as the same can be so apphed to the substance -and subject- 
 matter of the action, without regard to its form. 
 
 Passed in 1849, and has come down unaltered. 
 
 The provisions thus saved will be found in title III., chapter V., 
 part III., 2 E. S., 316 to 333 ; amended by chapter 430 of 1847. By 
 chapter 679 of 1857, vol. II., p. 504, the facilities of amendment granted 
 by section 173 of the Code, are specially extended to this class of pro- 
 ceedings. See also chapter 430 of 1847, section 3. 
 
 The following portion of those provisions presents itself for notice on 
 the present occasion. 
 
 Section 1 of the title in question, prescribes the class of applicants 
 by whom the remedy is obtainable : 
 
 § 1. When several persons shall hold, and be in possession of any lands, 
 tenements, or hereditaments, as joint-tenants, or as tenants in common, in 
 which one or more of them shall have estates of inheritance, or for life or 
 lives, or years, any one or more of such persons, being of full age, may apply 
 by petition, &c., for a division or partition of such premises, according to 
 the respective rights of the parties interested therein ; and for a sale of such 
 premises, if it shall appear that a partition thereof cannot be made, without 
 great prejudice to the owners. 
 
 ]Sr. B. — By chapter 277 of 1852, p. 411, provisions are made, 
 enabling the application to be made on behalf of an infant interested 
 as above, on its being made apparent to the court that it is required 
 for his interests. See, as to the proper form of report, on an appli- 
 cation of this description. In re Marsac, 15 How., 383 ; also, as to the 
 necessity of due diligence in a proceeding of this nature, when author- 
 ized, see Lyle vs. Smyth, 13 How., 104. 
 
 By section 5 of the title of the Revised Statutes now in question, pro- 
 vision is thus made as to the contents of the petition for such relief : 
 
 § 5. The petition for the partition or sale of any such real estate, shall 
 contain the following matters : 
 
 1. It shall particularly describe the premises sought to be divided or sold. 
 
 2. It shall set forth the rights or titles of all persons interested thei-eiu, 
 so far as the same are known to the petitioner, including the interest of any 
 
OF THE OOMPLAHSTT. § 155. 945 
 
 tenant for years, for life, by the courtesy, or in dower, and the persoas 
 entitled to the reversion, remainder, or inheritance, after the termination of 
 any particular estate therein ; and every person who, by any contingency 
 contained in any devise, grant, or otherwise, may be, or become entitled to 
 any beneficial interest in the premises ; and, 
 3. It shall be verified by aflidavit. 
 
 Section 7 prescribes that, in case the names or interests of any of the 
 parties be unknown to the petitioner, or be uncertain or contingent, so 
 that the parties cannot be named, it shall be set forth in the 
 petition. 
 
 Sections 8 and 9 provided, that it shall not be necessary to make any 
 creditors or lien-holders parties ; but, by section 10, a power is given 
 for that purpose, at the election of the parties, in which case the petition 
 shall set forth the nature of such lien or encumbrance. 
 
 By section 79, and those which follow, special provision is made, for 
 tlie continuance of the former powers of the Court of Chancery, in like 
 cases. 
 
 By chapter 430 of 1847, above noticed, powers are given to the 
 court to enable the combination of partial or total partition, and 
 of sale, as to different shares, by means of the same proceeding. 
 
 By chapter 238 of 1853, p. 526, special provision is made, enabling 
 the combination of proceedings, by an heir disputing a devise in the 
 will of his ancestor, and, w^hether in possession or not, with an appli- 
 cation for partition of the subject-matter of such proceedings, if 
 snccessful. 
 
 Judgment for a partition may also be obtainable, in connection with 
 proceedings in respect of waste, as provided for by title Y. of the same 
 chapter of the Kevised Statutes. See 2 K. S., 335, 336, sections 11 
 
 to 17. 
 
 By rule 77 (72), provision is made in restraint of the maintenance of 
 separate suits, for partition of different portions of estates within this 
 state, owned by the same persons in common. And it is expressly pro- 
 vided, that "when infants are interested, the petition shall state whether 
 or not the parties own any other lands in common." 
 
 There can be no doubt, whatever, but that all the above statutory 
 requisitions in relation to a petition, ought to be equally complied with 
 in the framing of a complaint under the new practice, and that the 
 practitioner who omits to take this necessary precaution, makes such 
 omission at the peril of his pleading being impeached, or, at the least, 
 impeachable in the course of the proceeding. 
 
 It may be convenient, before passing on to the subject in its more 
 gengral aspect, to make a short summary of the requisites thus imposed. 
 
 1. It must appear upon the face of the complaint, that tlie plaintiff 
 Vol. I.— 60 
 
946 OF THE COMPLAINT. — § 155. 
 
 belongs to the class of persons defined in section 1 ; and, unless in the 
 excepted cases hereafter stated, that he is in possession. 
 
 2. It must appear that such plaintiff is of full age, unless the appli- 
 cation be made in behalf of an infant, under the statute of 1852. If so, 
 the fact that such application is made by leave of the court, should ap- 
 pear by specific allegation, 
 
 3. The rights of all parties interested in the inheritance, as defined 
 by section 5, must be shown, by full and specific allegation, and all 
 such parties must be joined. The better mode will be, where such rights 
 depend upon the terms of any written instrument, and those terms are 
 in any manner peculiar or doubtful, to allege such instrument, or the 
 relevant portions of it, in the very words employed ; and, as regards 
 every instrument, or interest, the averment of it must be made with 
 sufiicient detail, to make its exact import or extent indisputably appa- 
 rent. 
 
 4. A particular and specific description of the property must be 
 given. 
 
 5. In case the names or interests of any of the parties be unknown, 
 or such interests be contingent or uncertain, that fact must be specially 
 averred. All that the plaintiff knows upon the subject should appear, 
 and it should be shown why he cannot give a more certain specification. 
 
 6. If, by the election of the plaintiff, any creditors or lien-holders are 
 made parties, with a view to the adjustment or apportionment of their 
 charges, or otherwise, the nature of their liens or encumbrances should 
 be specifically set forth. As to the expediency of obtaining the general 
 consent of the parties interested, before introducing parties of this de- 
 scription, see JSainmersley vs. Hammersley, 7 L. 0., 127. 
 
 7. If the suit is brought by an heir, under the special statute of 1838, 
 an allegation must be made that the apparent devise made by his an- 
 cestor, and impeached in the combined proceeding, is void. 
 
 8. Relief should be prayed for, to the effect defined in section 1 ; and, 
 
 9. The complaint had better in all cases be verified. The third subdivi- 
 sion of section 5, is in its terms imperative on the subject, and although a 
 question might possibly be raised as to whether this is not a question 
 of form, it will be far better not to omit the precaution. 
 
 (c.) Partition, Geneeailt Consideeed. 
 
 The questions as to the necessary parties in a proceeding of this na- 
 ture, have been already considered, and the decisions in point cited, in 
 book II., section 38, to which the reader is accordingly referred. 
 
 Parties wlio have parted with their title before the action is com- 
 menced, need not, and cannot be properly joined. Ywnd&rwerheft vs. 
 Yamderwmkesr, 7 Barb., 221. 
 
OF THE COMPLAINT. § 155. 947 
 
 Partition between tenants in common, is a matter of right by common 
 law, as well as by statute, but the mode in which that right is to be 
 carried out, rests in the discretion of the court. Haywood vs. Judson, 
 4 Barb., 228 But, to enable the court to act, jurisdiction over all the 
 parties, mu st be fully and regularly acquired. See Rogers vs. McLean, 
 31 Barb., 301. But the right is not so far absolute, as to enable a suit 
 to be carried on, to the prejudice of another, already commenced, involv- 
 ing the same object. See Danvers vs. Dorrity^ 14 Abb., 206. 
 
 The powers of the court in this respect, do not aifect the right of parties 
 to make partition by deed, or even by agreement, without its interfer- 
 ence, and, if such partition be actually made, and followed up by per- 
 formance of such agreement and possession of the property in conformity, 
 the courts will recognize and enforce the arrangement. Mount vs. 
 Morton, 20 Barb., 128 ; Bilsborow vs. Titus, 15 How., 95. 
 
 And, after a lengthened acquiescence in a partition once made by a 
 regular proceeding, the court refused to interfere, and order a repar- 
 tition, even though the basis of the former proceeding was not strictly 
 correct. G'Donnell vs. Kelsey, 6 Seld., 412. 
 
 The last decision recognizes a partition of lands formed by alluvion • 
 that of an interest under a grant of mining rights, is also carried out by 
 Canfield vs. Ford, 28 Barb., 336 ; afBrming same case, 16 How., 473. 
 An interest in government lands, for the purpose of working salt springs, 
 under 1. E. S., 267, section 93, is not however inheritable, or a subject of 
 partition. Newcomb vs. Newcomh, 2 Kern., 603. A partition of per- 
 sonalty was held to be enforceable on equitable principles, in Tinney 
 vs. StebUns, 28 Barb., 290. 
 
 "When the legal title to the premises is disputed or doubtful, the 
 court, sitting in equity, will not interfere. It will, however, entertain 
 and decide upon a collateral controversy, in relation to the equitable 
 rights of the parties. Hosford vs. Merwvn, 5 Barb., 51. 
 
 ln.£ogardus vs. Pother, 1 How., 305, it was also held, that a ques- 
 tion as to the claim of a defendant to a specific lien on the estate itself, 
 might properly be raised by the complaint in a suit of this nature, and 
 an account prayed for and taken in respect of such claim. 
 
 But inconsistent or independent equitable claims, cannot be combined ; 
 as for instance, a prayer for partition, in connection with an ordinary 
 creditor's bill, against one of the parties interested. Dewey vs. Waa^d, 
 12 How., 419. 
 
 The plaintiff in this form of suit must be in actual or constructive 
 possession of his undivided share ; and, therefore, when the complaint 
 shows that the legal title is in a third person, as trustee, the defect will 
 be fatal. Stryker vs. ZyncA, 11 L. O., 116. In the same case it was 
 held, that it is not sufficient, in this proceeding, to allege that a defend- 
 
948 OF THE COMPLAINT. § 155. 
 
 ant claims some adverse interest, and is therefore a proper party. The 
 rule that adverse titles are not to be tried in partition is not changed by 
 the Code, and the nature of every claim against the estate must, of 
 necessity, be stated. 
 
 The statute of 1853, recognizes, however, a proceeding of this de- 
 scription, by a contesting heir, though the devisee's possession be 
 adverse. 
 
 As regards unoccupied lands, an allegation or proof of possession is 
 not indispensable, and the suit may be maintained v?ithout it. Beebee 
 vs. Griffing, 4 Kern., 235. 
 
 Where suit had been brought by a tenant in common of a vested 
 remainder, and had been prosecuted to judgment, all parties being 
 joined, the court decided, on the objection of a purchaser, that, under 
 its general jurisdiction, all parties vi^ere concluded, and a good title 
 passed. Blakely vs. Colder, 15 N. Y., 617; affirming same case, 13 
 How., 476. 
 
 This decision, however, only goes to the point, that, under the circum- 
 stances, all parties were concluded, and the purchaser had no ground 
 for refusing to complete. It is more than implied in the opinions, that, 
 if taken by a party in the course of the suit, the objection would have 
 been valid. Vide 15 IST. Y., 622 ; and Brewster vs. Striker, 2 Comst., 
 19. See also Fleet vs. Borland, 11 How., 489, deciding that partition 
 cannot be granted at the suit of a mere reversioner ; and that, where 
 infants are interested, the court are bound to take notice of and give 
 effect to the objection, whether taken or not by the parties. 
 
 Where all parties directly interested are before the court, and all 
 existent interests are represented, the proceeding will be perfect, and 
 all parties claiming derivatively will be barred, such as persons not in 
 being, contingently interested, and cestui que trusts, under a legal trust, 
 where the trustee is a party. Mead vs. Mitchell, 17 IST. T., 210 ; affirm- 
 ing same case, 5 Abb., 92. 
 
 Indebtedness, however great, on the part of one of the parties inter- 
 ested, will form no bar to the proceeding. Wa/ring vs. Waring, 7 
 Abb., 472. 
 
 The proceeding being m rem, an erroneous inclusion of property 
 will be fatal to it, not merely as to the erroneous portion, but as to the 
 whole. A partition is an unity, and cannot be severed. The whole 
 must stand or fall together. Corwithe vs. Griffing, 21 Barb., 9. 
 
 In Oroghan vs. Livingston, 17 I>r. Y., 218 ; 6 Abb., 350 ; affirming 
 sariie case, 25 Barb., 336, it was considered by Pratt, J. (17 IS". Y., 225), 
 that the proceeding \)y petition under the Kevised Statutes, is repealed, 
 and that a suit, conducted according to the forms of the Code, is now 
 the only remedy. See also Matter of Gavanagh, 14 Abb., 258 ; 23 
 
OF THE COMPLAINX. § 156. 949 
 
 How., 358. In DmMeday vs. Heath, 16 IST. Y., 80 (83, 83), the pro- 
 (teeding hj petition appears to be recognized by the same court. This 
 seems, however; to be obiter dictum,, the suit having been actually 
 brought under the forms of the Code, by summons and complaint (p. 
 80). There can be no question, but that a proceeding in the ordinary 
 mode, is in all cases preferable, as being more elastic in its nature, and 
 less embarrassed by statutory requisitions as to form. 
 
 (t?.) Admeasurement of Dowee. 
 
 This proceeding is of a nature analogous to that of partition, and has, in 
 like manner, been made the subject of statutory regulation. See title YII., 
 chapter VIIL, part III. of the Kevised Statutes ; 2 E. S., '488 to 493. 
 
 By section 1, it is prescribed, that the petition of a party claiming 
 this relief, should specify the lands in which she claims dower, but the 
 form of the application is not otherwise prescribed. The remedy is given 
 to her, in default of an assignment of such dower, within forty days 
 after her husband's decease. 
 
 In default of her making such claim in due course, a counter-remedy 
 is given to the heirs, or the owners of any lands subject to her claim, 
 by petition, under section 7, for the purpose of compelling such admeas- 
 urement. Ninety days notice to her, given after the expiration of the 
 forty days period above referred to, is a necessary preliminarj', unless 
 she has made default for one year after such decease. Her power to 
 proceed by suit instead of petition, is acknowledged in the same section. 
 
 Eelief of this nature was granted by the Superior Court, in Town- 
 send vs. Totonsend, 2 Sandf., 711, and, objections having been taken 
 that the defendants were not then in actual possession of the lands 
 there in question, and also that the action was brought within six 
 months after the husband's death, those objections were overruled. 
 
 The widow's right to this peculiar remedy does not, however, pre- 
 clude her from maintaining ejectment against a tenant, before her 
 dower has been assigned or admeasured, though, in a judgment taken 
 by her under such circumstances, provision will be made for the latter 
 purpose. See EUioott vs. Mosier, 3 Seld., 201 ; afErming same case, 11 
 
 Barb., 574. 
 
 The complaint in this case, should contain a full description of the 
 land on which the dower attaches, with definite and positive averments 
 of the husband's seizin and death, and of the widow's right to dower ; 
 and also, that such right has not been barred, either by express provi- 
 sion made for her, or release or consent on her part ; or, if she have 
 ^ercised her election between her dower and a provision made for her, 
 that election should be specially pleaded. 
 
 Under section 307 of the Code, a previous demand and refusal is 
 
950 or THE COMPLAINT. — § 156. 
 
 made a necessary condition precedent to an action of this nature, 
 as far as regards the recovery of costs, which cannot otherwise be 
 claimed. 
 
 As to the power to join, with proceedings of this nature, a claim for 
 damages for withholding, or for mesne profits, and as to the proper 
 parties to the proceeding, see Van Ncrnia vs. Yan Nomie, 23 How., 247. 
 
 § 156. Other Suits in Equity. 
 
 It would, as before noticed, be beyond the limits, and inconsistent 
 with the object of a work like the present, to proceed to the separate 
 consideration' of every class of controversies comprised within this gen- 
 eral division. All fall substantially within the same general principles 
 of averment. The cause of action must be made equally apparent as 
 in a common-law proceeding, but, as a general rule, a somewhat greater 
 latitude is admissible in the averment of details. The pleader is not 
 so rigorously confined to the statement of facts bearing directly upon 
 the right of action, strictly considered ; those which bear or have a ten- 
 dency to bear upon the nature or extent of the remedy sought to be 
 invoked are, on the contrary, further admissible, and the prayer of the 
 complaint is special and detailed, instead of merely claiming the recov- 
 ery of a specific amount, or specific damages. 
 
 See general remarks on above subject, ante, section 123, under the 
 head of Adaptation of Averments to Case, whether legal or equitable. 
 
 It may not be out of place, however, before quitting the subject, to 
 notice shortly, some two or three of the more prominent descriptions of 
 controversy which fall within this general classification. 
 
 (a.) Injunction. 
 
 This subject has been, in a great measure, anticipated in a former 
 chapter, under the head of Provisional Hemedies. The proceeding 
 presents this peculiar feature that, in a large average of cases, the con- 
 troversy is substantially decided, on the preliminary motions for the 
 granting or dissolution of the provisional remedy, in anticipation of the 
 ultimate judgment prayed for. 
 
 "Where an injunction is asked for, by an individual, to restrain a 
 public act, on the ground of special injury to himself, the nature and 
 extent of the grievance complained of should be specified, and a mere 
 general charge, without details, will be insufficient. Wetm&re vs. Story, 
 22 Barb., 414; 3 Abb., 262. 
 
 That the provisions of the Code tend rather to the extension, than 
 the limitation of the previous powers of the court, in relation to this 
 remedy, is laid down in Merritt vs. Thornpson, 3 E. D. Smith, 283. 
 
OF THE OOMPlAIira. — § 156. 951 
 
 The right of any party entitled to the benefit of an easement in proper- 
 ty, arising out of an original covenant against nuisances, to maintain 
 injunction in respect of a breach of that covenant, though remediless 
 at law, for want of privity of estate, is recognized and protected in 
 JBrouwer vs. Jones, 23 Barb., 153. See also, as to an injunction for pro- 
 tection of a party entitled to the benefit of a covenant of this nature, 
 Schench vs. Gcmvpbell, 11 Abb., 292. 
 
 As to the qualified nature of a grant of right of burial, and the right 
 to make such changes, as altered circumstances may require, without 
 being restrained by the court, see liichards vs. Norihxoest Protestcmt 
 Dutch Church, 32 Barb., 42 ; 20 How., 317; 11 Abb., 30. 
 
 In relation to the power of the court to grant, what substantially 
 
 amounts to afiirmative relief, by means of an injunction, restraining the 
 
 discontinuance of an existent state of circumstances, see The People vs. 
 
 The Albany cmd Yermont Railroad Oom/pOAiy, 19 How., 523 ; 11 Abb., 
 
 136 ; Ifew Yorh and New Ha/ven Railroad Comjpamy vs. Pixley, 23 
 
 Barb., 428. 
 
 (5.) Inteepleadee. 
 
 This subject presents one point of analogy with that immediately 
 preceding, i. e., that the relief sought for is substantially obtainable, by 
 means of a special remedy provided by the Code. There is, however, 
 this material difference, that, in injunction, the special remedy is merely 
 in aid of the proceeding in which it is granted. In interpleader, the 
 remedy provided by section 122, is not in aid of, but in substitution for 
 a suit for the same purpose. 
 
 Its exercise is, however, purely optional, and does not deprive the 
 applicant of his power to institute a suit in equity, according to the 
 former chancery practice. In many cases, his remedy can be only so 
 obtained, the special proceeding being statutory, and therefore confined 
 to the strict terms of the sectipn ; whereas, in a suit, the general juris- 
 diction of the court is invoked, and its general powers are exercisable. 
 See Winjield vs. Bacon, 24 Barb., 154, below cited. 
 
 As to the power of the court to entertain such a suit, notwithstanding 
 the provisions of section 122, which are merely concurrent, see Beclc vs. 
 SUjphani, 9 How., 193 ; WinfieU vs. Bacon, 24 Barb., 154 ; Mayor of 
 New York vs. Flagg, 6 Abb., 296 ; Willetts vs. Finlay, 11 How., 468 ; 
 Zeavitt vs. Fisher, 4 Duer, 1. 
 
 The questions in relation to the right of interpleader in general, have 
 been already partially considered, in connection with the subject of the 
 special remedy by motion, under section 123, in book II., section 40. ^ 
 
 The proper averments in a suit are referred to in Beck vs. Stephani, 
 9 How., 193, above cited. A person who owes a debt, or has incurred 
 a liability, and is unable to determine, without serious risk, to which of 
 
952 OF THE COMPLAINT. § 156. 
 
 several adverse claimants it should be rendered, may maintain tlie pro- 
 ceeding, and a mere claim is ground for it. But the plaintiff must show 
 he does not collude with any of the claimants ; that the claims are what, 
 under the old distinctions, would be denominated legal ; that privity 
 subsists between him and the defendants; that he is in possession, act- 
 ually or constructively ; that he does not claim any interest in the prop- 
 ertj in dispute ; and that he can in no other way be protected from an 
 oppressive or vexatious litigation, in which he has no personal interest. 
 And, to maintain the proceeding, the amount of the fund should be as- 
 certained, or ascertainable, with sufficient certainty to enable it to be 
 brought into court. Willetts vs. Finlay, 11 How.,' 468, above cited. 
 
 To be tried in this form, whether by suit or motion, the question 
 must be perfectly simple, and the party seeking to be discharged a 
 mere stakeholder. If there be any other possible ground of claim 
 against such holder by any of the parties, the ordinary course of proce- 
 dure will not be interfered with. Sheiincm vs. Partridge, 4 Duer, 646 ; 
 11 How., 154 ; 1 Abb., 256. Nor can interpleader be maintainable, 
 unless the plaintiff be ignorant as to the right balance between the con- 
 tending claimants, or in a case, where there can be no doubt that the 
 claim of one is untenable. See Wilson vs. Dunccm, 11 Abb., 3 (Y). 
 
 When the question raised, was merely as to the rights of two claim- 
 ants to a municipal office, and to the salary attached to it, and the suit 
 was not strictly in the form, though in the nature of interpleader, it was 
 held unnecessary to have the fund brought into court. Mayor of Nev) 
 York vs. Flagg, 6 Abb., 296. 
 
 The proceeding not being one favored by the court {vide Beck vs. 
 Stephani, supra), the averments should be full and specific, and show a 
 clear case for its interference. The circumstances under Avhich the fund 
 is held should be set forth in full detail, and, where the controversy 
 arises under a written instrument, its exact provisions should be given. 
 The nature and extent of the demands of the contending claimants 
 should also be set forth, with the utmost accuracy and precision of which 
 the case is capable, and the other different conditions, above noticed, 
 clearly fulfilled. The plaintiff's readiness to pay into court, or other- 
 wise dispose of the fund, as the court may direct, should also appear. 
 
 As to a suit in the nature of interpleader, with respect to coutendinw 
 claims upon real estate, see Woodgate vs. Fleet, 9 Abb., 222. 
 
 (c.) Suit foe an AccoucmNG. 
 
 In an application of this description, the plaintiff should show clearly 
 on the face of his complaint, the fact of the accountability of the defend- 
 ant, the circumstances under which he became so, and the nature and 
 extent of the fund, in respect of which an accounting is sought. 
 
OF THE COMPLAINT. — § 156. 953 
 
 He slionld also aver that no accounting, or no complete accounting, 
 has been had ; that, on such an accounting, the defendant will be 
 indebted, and that a request to account has been made and refused. 
 The prayer should be for an accounting, under the direction of the 
 court, and for the payment of the balance to be found due. Where 
 the relation of partnership, trusteeship, or any other of an analogous 
 nature, has subsisted between the parties, and the relief sought 
 consists, not merely in the recovery of a money balance, but also in 
 insuring the protection or administration of existent property in which 
 the plaintiff is interested, a prayer for an injunction and receiver is 
 usually, and will be properly, added. 
 
 A complaint of this nature, setting forth a partnership, a dissolution, 
 the existence of unsettled accounts, and a balance in favor of the 
 plaintiff is, prima facie, good, as showing a sufficient cause of action. 
 Lvdington vs. Taft, 10 Barb., 44Y. 
 
 A general averment, showing the nature of the liability, in respect of 
 whicli an accounting is sought, will be sufficient, without going into 
 the circumstances in detail. See Bates vs. Cobb, 5 Bosw., 29. 
 
 Although, in a suit of this nature, items accruing subsequent to the 
 commencement of the action, may be included, the plaintiff is not 
 bound so to bring them in, but may, if he chooses, make them the sub- 
 ject of a new suit. Tyler vs. Willis, 35 Barb., 213 ; 13 Abb., 369. 
 
 As to a receivership in such cases, and as to the duties of the party 
 appointed being merely to wind up, and not to carry on the business of 
 a dissolved partnership, except under the special direction of the 
 court ; and as to the inability of a plaintiff, who has framed the prayer 
 for the former only, to move for the latter description of relief in a 
 suit for this purpose, when instituted, see Jachson vs. De Forest, 
 14 How., 81. 
 
 As to the right of one partner, to maintain a suit for an accounting 
 and receivership, notwithstanding an assignment for creditors, executed 
 by others without his consent, and in disaffirmance of that assign- 
 ment, see Wetter vs. Sohlieper, 4 E. D. Smith, 707 ; 15 How., 268 ; 
 G Abb., 123. 
 
 In a suit by one partner against another, for an accounting, and 
 relief for misconduct, a stranger, who has fraudulently obtained posses- 
 sion of partnership property, may be brought in, and relief obtained, as 
 against the property in his hands. Wade vs. Rusher, 4 Bosw., 537. 
 
 A suit of this nature is maintainable in respect of a special partner- 
 ship, as well after, as before the dissolution of that relation. Bogg vs. 
 Ellis 8 How., 473. See also the case next cited. 
 
 And such a partner, who has neglected to pay in his proper contribu- 
 tion, may be compelled to do so, even after dissolution, in a suit by a 
 
954 OF THE COMPLAINT. § 156. 
 
 trustee of the partnership assets for the benefit of creditors. Robi^h- 
 son vs. McLitosh, 3 E. D. Smith, 221. 
 
 As to the right of one partner, in case of breach by the other of a stip- 
 ulation in the partnership articles against carrying on other business, 
 either to sue in damages for that breach, or to assent to the act, and 
 claim the proceeds on an accounting, see Moritz vs. Peebles, 4 E. D. 
 Smith, 135. 
 
 As to a suit, originally brought for a balance of account stated, being 
 convertible into one for an accounting, by amendment to conform to the 
 facts proved, see Emery vs. Pease, 20 IST. Y., 62. 
 
 A decree, upon a final accounting between partners, will not be opened 
 in respect of matters subsequently accruing, by means of a fresh action 
 for that purpose. The only remedy is by bill of review, or supplemental 
 bill in the nature of a bill of review. See Hays vs. Reese, 34 Barb., 151 . 
 
 ( <^. ) Divorce. 
 
 Proceedings for this remedy are made the subject of special statutory 
 regulation. The provisions on the subject will be foimd in articles II. 
 to y. of title I. of chapter VIII., part III. of the Eevised Statutes, 2 
 R. S., 142 to 149, inclusive. See also chapter 246 of 1862, p. 446, 
 amending sections 31 and 38 of that title. 
 
 The remedy is obtainable under three different categories : 
 
 1. ITullity of the marriage. Article II. 
 
 2. Adultery. Article III. 
 
 3. Cruelty or abandonment. Article IV. of those above cited ; article 
 V. being of general application. 
 
 ( e. ) Foe Nullttt. 
 
 Divorce, on the ground of nullity, may be granted for the following 
 causes, existent at the time of the marriage sought to be dissolved. 
 
 1. That the parties, or one of them, had not attained the age of legal 
 consent. 
 
 2. That the former husband or wife of one of the parties was living, 
 and the marriage with such former husband or wife was then in force. 
 
 3. That one of the parties was an idiot or lunatic. 
 
 4. That the consent of one of the parties was obtained by force or 
 fraud ; or, 
 
 5. That one of the parties was physically incapable of enterino- into 
 the marriage state. Article 11., section 19. A suit for this purpose is 
 only maintainable by the party injured against the other, whose incapa- 
 city is alleged. Section 33. 
 
 By section 20, chapter 257 of 1841, power is also given to declare a 
 divorce, upon the application of the wife, when, at the time of the mar- 
 
OE THE COMPLAINT.^! 156. 955 
 
 riage, such female was under fourteen, and.sucTi marriage was without the 
 consent of her parent or guardian ; was an offence on the part of the 
 husband, punisliable under the statxite ; was not followed up by consum- 
 mation or cohabitation ; ajid has not been ratified by mutual consent 
 after the female had attained fourteen years. 
 
 The principles of averment in these cases are as follows : 
 
 The marriage must in the first instance be averred. 
 
 A sufiicient allegation of facts must then be made, to bring the case 
 clearly within one of the different categories above stated, such category 
 being alleged in the exact words of the statute, in connection with the 
 averment of the facts necessary to make it appear. 
 
 It must be specifically stated that the cause of dissolution was exist- 
 ent at the time of the marriage. 
 
 In a proceeding under subdivision 2 of section 19, brought by one 
 of the parties, it should be shown that the other is living (§ 22), and, 
 if such marriage was contracted in good faith, and there be issue, 
 such facts, and the names of such issue should be stated. See section 23. 
 
 K the suit be brought under subdivision 3, the existence of the idiocy 
 or lunacy complained of, at the time of the institution of the suit, and 
 also, that, at least, one of the parties is living, must be averred. See 
 sections 21, 25. If brought by a lunatic after restoration of reason, 
 the complaint should negative cohabitation after such restoration. 
 Section 27. 
 
 If the marriage be impeached for want of legal consent, voluntary 
 cohabitation, after the legal consent, must also be specifically ignored 
 (§ 21) ; and, in case of a suit by the party aggrieved, it must specifically 
 appear, that such party was not of legal age at the time. 
 
 When the proceeding is by a female, under section 20, consummation, 
 cohabitation, or ratification, by mutual consent, after such female has 
 attained fourteen, must be all negatived ; and the fact that such female 
 was under fourteen at the time specifically stated. 
 
 So also, in the case of a marriage impeached on the ground of force, 
 or duress, voluntary cohabitation at any time, and, where impeached on 
 the ground of fraud, voluntary cohabitation, with full knowledge of 
 the facts constituting the fraud, must be specifically ignored. See section 
 31, as amended by chapter 246 of 1862, p. 446, section 2. 
 
 And, where physical incapacity is the ground, the complaint should 
 show upon its face, that the suit is brought within two years after the 
 solemnization of the marriage. Section 33. It would be as well, also, 
 to aver continuance, as well as existence, of such incapacity. 
 
 In relation to the annulment of the marriage of a minor, procured 
 by fraud, on the application of a relative, see Sloane vs. Kcme, 10 
 How., 66. 
 
956 O'F THE COMPLAINT.— § 156. 
 
 But, as to the inability of a party to maintain a suit of this descrip- 
 tion, after vohintarj' cohabitation, even although the existence of the 
 fraud Avas not discovered till some time after the marriage, see Glins- 
 'rnann vs. OUnsmann, 12 How., 32. 
 
 Where the husband had represented his former wife to be dead, 
 whereas, in fact, he was divorced from her, and she was living, the 
 representation, though false, was held insufficient as a cause of dissolu- 
 tion of the marriage. Clarh vs. Clark, 11 Abb., 238. As to the jjower 
 of interference of a relative in a case of physical incapacity on the part 
 of an infant, and the extent to which such interference will, or will 
 not, be practically recognized, see E. B. vs. O. B., 28 Barb., 299 \ 
 8 Abb., 44. 
 
 (y.) Foe Adultebt. 
 
 The following statutory requisitions are imposed with respect to 
 this proceeding, by article III. of the title of the Bevised Statutes in 
 question. 
 
 Under section 38, a divorce is obtainable in the following cases : 
 
 1. "Where both husband and wife were inhabitants of this state, at 
 the time of the commission of the offence. 
 
 2. "Where the marriage has been solemnized, or has taken place 
 within this state, or where the injured party, at the time of the com- 
 mission of the offence, and at the time of the exhibiting the bill of com- 
 plaint, shall be an actual inhabitant of this state. See, as to what 
 constitutes inhabitancy on the part of a female plaintiff, article Y., 
 section 57. 
 
 JSr. B. — Prior to the amendment of this section by chapter 246 of 
 1862, p. 446, section 1, both marriage and inhabitancy within the state 
 were cumulatively necessary to the acquisition of jurisdiction, instead 
 of the provision being framed, as at present, in the alternative. 
 
 3. Where the offence has been committed in this state, and the injured 
 party, at the time of exhibiting the bill of complaint, is an actual 
 inhabitant of this state. 
 
 Facts must be specifically averred, so as clearly to bring the case 
 within one or other of the three jurisdictional categories above pre- 
 scribed, in all the parts of that category, and the precise words of that 
 portion of the statute which is invoked, should be inserted in the aver- 
 ment, in connection with the necessary statement of facts, the only 
 exception being, that the terms, " time of commencement of this action," 
 may now be substituted for the terms, " time of exhibitincr the bill of 
 complaint," employed in the section. As the defendant is excused 
 from verifying the answer (section 39), there is no necessity for verifica- 
 tion of the complaint in any case. 
 
OF THE COMPLAINT, — § 156. 957 
 
 The date at which, or the period within which, the offence took place, 
 the place where, and the person or persons with whom it was commit- 
 ted, must, in all cases, be specifically averred, with all practicable detail, 
 and, where more than one offence is charged, each should form the sub- 
 ject of a separate statement. If practicable, the name of the party 
 with whom such offence was committed should be given. If impracti- 
 cable, the charge may be made of commission with a male or female 
 (as the case may be), xmknown to the plaintiff, and, whose name, after 
 diligent inquiry, cannot be ascertained. 
 
 "Where more than five years have elapsed since the act complained 
 of, discovery of that act within five years must be specifically averred. 
 Section 42, subdivision 3. 
 
 The complaint had better also be made to include the following 
 negative allegations (see same section) : 
 
 1. That the offence charged was not committed by the procurement, 
 or with the connivance of the plaintiff. 
 
 2. That such offence has not been forgiven by the plaintiff, and that, 
 since its commission, there has been no voluntary cohabitation on his 
 or her part, with knowledge of the fact. 
 
 4. That the plaintiff has not, on his or her part, been guilty of adul- 
 tery. (Number 3 has been before noticed.) 
 
 If there be children of the marriage, their names and the dates of 
 their births should be averred. See sections 43 and 44. If the suit be 
 that of the husband, and he wishes to question the legitimacy of any of 
 such children, an allegation that they are, or that he believes them to 
 be illegitimate, must also be distinctly made. See rule 90 (68). 
 
 And, if the wife have property, its nature, and her interest therein, 
 should be stated, with a view to the proper decree upon the subject 
 being pronounced. Sections 46, 47. 
 
 The amendment of section 114 of the Code in 1857, has now dis- 
 pensed with the necessity, which before existed, of the wife being rep- 
 resented by a next friend in all cases. See, as to the antecedent prac- 
 tice, Thomas vs. Thomas, 18 Barb., 149 ; and, as to a wife defendant, 
 Meldora vs. Meldora, 4 Sandf., 721. 
 
 Causes of action, for a total and for a limited divorce, are wholly inca- 
 pable of joinder in the same proceeding. Mcintosh vs. Molntosh, 12 
 How., 289. The same is also the case as regards defences, see McNa- 
 mara vs. MoWamara, 2 Hilt., 547. And, where the defendant does 
 not answer, the relief obtainable by the plaintiff will be strictly limited 
 to that prayed for, and cannot be granted on any other ground, though, 
 if properly sought, the facts might warrant such a decree. Walton 
 vs. Walto^; 32 Barb.. 203 ; 20 How., 347. Also, after the plaintiff has 
 obtained a divorce on one ground, in the courts of another state, he or 
 
958 OF THE COMPLAINT. § 156. 
 
 she cannot bring a second suit in this, on the other, whilst such former 
 decree remains unimpeached. Coddvngton vs. Coddington, 10 Abb., 450. 
 
 But a divorce, previously obtained in another state, by the adverse 
 party, without notice to the applicant in this, is void, and is no bar to 
 a suit by such applicant. Yisscher vs. Visscher, 12 Barb., 640 ; McGif- 
 fert vs. McOiffert, 31 Barb., 69 ; 17 How., 18. 
 
 A complaint for divorce, on the ground of adultery, will be insuf- 
 ficient, where it contains no specification of the person with whom, or 
 the place where the offence was committed. If the former be unknown, 
 the latter should be specifically stated, Heyde vs. Ileyde, 4 Sandf , 692. 
 The same principle as to the necessity of giving a full and definite state- 
 ment in relation to the acts complained of, is equally applicable to cases 
 where separation only is sought ; the elements of time, place, and cir- 
 cumstances, must be equally borne in mind, in framing allegations 
 directed to the latter relief 
 
 Allegations simply directed to the question of alimony are irrelevant, 
 and, if objected to, are liable to be stricken out of the complaint. They 
 form no part of the original issues between the parties. Forrest vs. 
 Forrest, 3 Abb., 144 (156) ; 6 Duer, 102. 
 
 As to the positive necessity of the fullest proof being given, before 
 the allowance of a divorce, especially when the plaintiff is himself not 
 free from fault, see Trust vs. Trust, 11 How., 523. 
 
 With regard to the custody of children, and the obligations of the 
 parties, in relation to their support, see Burritt vs. Burritt, 29 Barb., 
 124, and cases cited. In re Holmes, 19 How., 329 ; People vs. BrooTcs, 
 35 Barb., 85. 
 
 {g) Separation. 
 
 The provisions of the statute, in relation to Kmited divorces, as con- 
 tained in article IV., are as follows : 
 
 Under section 51, a separation from bed and board forever, or for 
 a limited time, may be decreed, on the complaint of a married woman 
 in the following cases : 
 
 1. Between any husband and wife, inhabitants of this state. 
 
 2. Where the marriage shall have been solemnized, or shall have 
 taken place, within this state, and the wife shall be an actual resident 
 at the time of exhibiting her complaint. 
 
 3. Where the marriage shall have taken place out of this state, and 
 the parties have become and remained inhabitants of this state at 
 least one year, and the wife shall be an actual inhabitant, at the time 
 of exhibiting her complaint. 
 
 As to the force of the term inhabitant, see article Y., section 57. 
 Section 52 thus provides : 
 
OF THE COMPLAINT. § lo*?. 959 
 
 Such separation may be decreed for the following causes : 
 
 1. The cruel and inhuman treatment by the husband of his wife. 
 
 2. Such conduct on the part of the husband toward his wife, as may 
 render it unsafe and improper for her to cohabit with him. 
 
 3. The abandonment of the wife by the husband, and his refusal, 
 or neglect, to provide for her. 
 
 And, by section 52, the following special provisions are made on the 
 subject of averment. 
 
 The bill of the complainant, in every such case, shall specify par- 
 ticularly, the nature and circumstances of the complaint on which she 
 relies, and shall set forth times and places with reasonable certainty. 
 
 The same remedy is obtainable by a husband for misconduct on the 
 part of his wife, under section 12, chapter 205 of the laws of 1824. 
 See Perry vs. Perry, 2 Paige, 506 ; McNamara vs. McNcuma/ra, 2 
 Hilt., 547. 
 
 Misconduct of the adverse party is a defence (see section 53), and 
 such defence may be made the subject of affirmative relief. The mis- 
 conduct must, however, be within the limits of the present article. 
 Adultery cannot be so pleaded or proved. See McNamara vs. McNa- 
 mara, 2 Hilt., 547. 
 
 Under section 52, the principles of averment, under this, are even 
 more strict than in the case of the major divorce. Substantially, how- 
 ever, they are the same. The case must be clearly brought within 
 the purview of one of the subdivisions of section 50, as to the juris- 
 diction, and of section 51, as to the remedy. Every fact necessary for 
 those purposes must be distinctly and specifically averred, and the 
 precise wording of the statute, so far as it is applicable, inserted in the 
 substance of the averment so made. See last subdivision of the present 
 section, and decisions there referred to. The existence and ages of 
 the children, if any, should also be specifically stated, to lay ground 
 for the exercise of the powers of the court, under sections 54 and 55. 
 As to a complaint, deficient in the above particulars, being demurrable, 
 see Anotiymous, 11 Abb., 231. 
 
 If a separation only be prayed for, relief on any other ground cannot 
 be granted, where the defendant does not answer; though, if originally 
 prayed for, the facts found might warrant such relief. Walton\s. 
 Waltmi, 32 Barb., 203 ; 20 How., 347. 
 
 § 15Y. Prayer for Relief . 
 
 . Having considered the different modes of averment applicable to 
 different classes of action, it remains to notice, in the last place, the 
 demand of, or prayer for relief, the main object, in short, of the action, 
 
960 OF PfCE COMPLAINT. — § 157. 
 
 and to the establisliment of which all the preliminary statements are 
 directed. 
 
 "When the action is one for the recovery of money only, under a 
 common-law contract, or liability, no difficulty can arise ; the demand 
 will simpl}' be for the sums ought to be recovered, interest, and costs, 
 in conformity with the summons. 
 
 In actions, in which pecuniary damages alone are sought, the formula 
 is even simpler, judgment being merely demanded for damages, and 
 costs. 
 
 In real estatq and equitable actions, however, the consideratioiiB 
 which present themselves are more numerous and important. They 
 have been, in a great measure, anticipated, in the different subdivisions 
 of this chapter, devoted to particular forms of action ; but there remain 
 a few general considerations, which may be adverted to before quitting 
 the subject. 
 
 It is this class of actions which demand the special attention of the 
 pleader in this respect. Every possible remedy which the court may 
 have in its power to grant, under the peculiar circumstances, should, 
 therefore, be carefully pondered over, and every one of those remedies 
 should be distinctly and in terras asked for ; unless, under the circum- 
 stances of the case, it be thought better to waive them in any respect. 
 Injunction, in particular, cannot be granted at all, in respect of facts 
 existent at the date of the complaint, unless that remedj^ be specially 
 prayed for; and, where the appointment of a receiver is part of the 
 relief sought, before or as part of the judgment, a demand to that effect 
 must also be inserted. In actions for the recovery of real or specific 
 personal property, it must not be forgotten, that a claim for damages 
 for withholding, and also, in the former case, a claim for mesne profits 
 is, in all cases, compatible with a claim for the recovery of the property 
 itself; and a prayer to this effect should always, as a general rule, be 
 subjoined to the main relief demanded. In cases of waste and nuisance, 
 special relief is obtainable, in connection with an action for damages, 
 under the provisions of the statute on those subjects. And after 
 asking all the different forms of relief, which may be obtainable, par- 
 ticular care should be taken, in the whole class of equitable actions, 
 never, on any account, to omit the usual concluding clause, praying 
 for such further and other relief as may be just, and as the court may 
 direct. As to the importance and extent of this clause, see Grafton 
 vs. Bemsen, 16 How., 32 ; also, Marquat vs. Marquat, 2 Kern., 336 ; 
 reversing same case, 7 How., 417. 
 
 The powers of the court in respect to granting relief of this kind, 
 are in fact of the widest nature, in cases where the controversy is liti- 
 gated, as appears by section 275, providing, that 
 
or THE COMPLAINT. §i 157- 961 
 
 " The relief granted to the plaintiff, if there he no answer, cannot 
 exceed that which he shall have demanded in his complaint ; but, in 
 any other case, the court may grant him any relief, consistent within 
 the case made by the complaint, and embraced within the issue." See 
 Cheesehorough vs. House, 5 Duer, 125; Bidwell vs. Astf/r Mutual 
 Insurance Ccnnpamj, 16 IST. Y., 263 ; Anon., 11 Abb., 231 ; Jones vs. 
 Butler, 30 Barb., 641 ; 20 How., 189. 
 
 But this latitude is only exercisable, where ground is legitimately laid 
 for it, and where a trial is had. It furnishes no legitiinate reason for 
 • dispensing with the exercise of caution and forethought at the outset of 
 the suit, and it may be remarked, in addition, that being confined to 
 contested cases, it furnishes no help where the defendant demurs instead 
 of answering, or where, designedly or otherwise, he allows judgment 
 to go by default. In such a case, relief omitted to be asked for cannot 
 he granted, or, if granted, cannot be sustained. See Simoihsoii vs. 
 Blake, 20 How., 484 ; 12 Abb., 331 ; Walton vs. Walton, 32 Barb., 
 203 ; 20 How., 347. 
 
 Besides this, the powers of the court in this respect, are confined to 
 cases where an actual trial has been had, on answer. The section does 
 not reach the case of demurrer, or motion on the ground of non- 
 conformity with the summons ; and, in those stages of the proceeding, 
 an insufficient or improper demand of relief may lay ground for serious 
 objection. 
 
 The relief demanded, determines the nature of the complaint, and 
 may he conclusive, as far as regards questions in relation to misjoinder, 
 or discrepancy between the summons and complaint. See also gene- 
 rally, Pollock vs. The National Bank, 3 Seld., 274. 
 
 Alternative relief may be prayed, in respect to matters legitimately 
 witln'n the issue between the parties, and such relief may be legal or 
 equitable, or both. Getty vs. Hudson Biver Railroad Company, 6 
 How., 269 ; 10 -L. O., 85 ; Lvnden vs. Hepburn, 3 Sandf., 668 ; 5 
 How., 188 ; 9 L. O., 80 ; 8 0. K., 65 ; Redmond vs. Dana, 3 Bosw., 
 615 ; Gaimm vs. TheBa/nk of Utica, 3 Seld., 486 ; Young vs. Edwards, 
 11 How., 201 ; Corning vs. Troy Iron amd Nail Factory, 34 Barb., 
 485 ; 22 How., 217 ; Relyea vs. Beamer, 34 Barb., 547 ; Van Rensselaer 
 vs. Layman, 10 How., 505. A demand for judgment, alternative as to 
 parties plaintiff, niay, however, be bad. Warwick vs. Mayor of New 
 York, 28 Barb., 210 ; 16 How., 357 ; 7 Abb., 265. 
 
 Belief cannot, however, be asked purely upon hypothesis, without 
 some ground being laid for the demand. Lamoreux vs. Atlantic Mu- 
 tual Insurance Gompamy, 3 Duer, 680 ; Dv/rant vs. Gardner, 19 How., 
 94 ; 10 Abb., 445. 
 Nor can grossly inconsistent demands be made, as for instance, a 
 
 Vol. I.— 61 
 
962 OF T^E COMPLAINT, § 158. 
 
 prayer for equitable relief, in connection with a claim for a forfeiture. 
 Linden vs. Hepburn, supra ; Lanvport vs. AVbott, 12 How., 340 ; Du- 
 rant vs. Gardiner, supra. 
 
 Within the above limits, almost any description of relief may be 
 asked ; nor will even a superfluous demand afl^brd ground for demurrer. 
 See Moses vs. Walher, 2 Hilt., 536 ; Andrews vs. Sohaffer, 12 How., 
 441; PeopU vs. The Mayor of New York, 28 Barb., 240; 17 How., 
 56 ; 8 Abb., 7 (15) ; Beale vs. Hayes, 5 Sandf , 640 ; 10 L. O., 246. 
 Nor will the mere demand of multiplicity of relief, of itself render the 
 complaint liable to the objection of multifariousness. Geery vs. New 
 Yorh and Liverpool Steamship Company, 12 Abb., 268. 
 
 Bat, of course, this observation is not to be taken as an encourage- 
 ment to laxity or irrelevancy, as, although no ground for demurrer, a 
 case of gross mispleader in this respect, may be reached by a motion to 
 strike out or elect. 
 
 § 158. Service and Other Formalities. 
 
 It will not be necessary to go over in detail, the proceedings neces- 
 sary to be taken with respect to the complaint, when prepared, as the 
 same subjects have been already treated of in a general point of view 
 in preceding chapters. A mere general notice of them will be 
 sufiicient. 
 
 It mnst be fairly and legibly copied out, the folios being marked in 
 the margin of the original, and of every copy required for service. 
 
 Where it contains more than one cause of action, each must be 
 separately stated and plainly numbered. The insertion, in the title of 
 the name of the court, and the venue, if in the Supreme Court, are indis- 
 pensable. 
 
 If verified, and, as a general rule, it should be verified, the verifica- 
 tion must be added, and properly sworn to, and every copy made to 
 conform to the original as completed. 
 
 If served with the summons, which is usually advisable, a copy must 
 be annexed to each copy of the summons served, except in those eases 
 where a notice of object of action is admissible. 
 
 If served after the summons, on demand of the party or his attorney, 
 the copy is served in the same manner as an ordinary paper, and no 
 summons need be annexed. 
 
 If demanded, that copy must be served within due time after demand, 
 i. e., within twenty days, or the defendant's attorney will not be bound 
 io accept it, and may move to dismiss. Baker vs. Cv/rtis, 7 How., 478 ; 
 Mandeville vs. Winne, 5 How., 461 ; 1 C. E. (N. S.), 161. If there be 
 any difficulty, an extension of time must be obtained. 
 
OF THE COMPLAINT. § 158. 963 
 
 Wliere service by mail is admissible the complaint may be so served. 
 It should be mailed, however, within twenty days unless the demand 
 for it be served in that marmer. But, as a general rule, this mode of 
 service, or delay in mailing it, will be equally unadvisable, as the effect 
 of either is necessarily to extend the defendant's time to answer. 
 
 In Travis vs. Tobias^ 7 How., 90, it was considered that, in actions 
 founded on contract, though several defendants be named in the 
 summons, the plaintiff, on demand by one of them, may deliver to the 
 latter a copj, with his name only inserted as defendant, omitting the 
 others. This view seems very questionable, and the ease is certainly 
 one that ought not to be followed as a precedent, when a few additional 
 words will remove all question on the subject. 
 
 (J.) Filing. 
 
 As before noticed, the filing of the complaint is, at one time or 
 other, essential. In strictness, it ought, in all cases, to be filed within 
 ten daj's after service (Code, section 416) ; and this was held to be obli- 
 gatory in Tuomey vs. Shields, 9 L. O., 66. In practice, however, the 
 complaint is seldom, if ever, filed before the entry of judgment ; nor 
 does it seem necessary to do so, unless upon order obtained by the 
 adverse parties, under the same section (416). The terms of the section 
 itself clearly show that an omission to file the complaint before the 
 service of such an order, will not be a serious, or even an impeachable 
 irregularity! Such an order once obtained, however, the filing then 
 becomes imperative, and an omission to comply with the direction will, 
 as a general rule, be fatal ; although, where the omission is uninten- 
 tional and explained, the court may allow it to be rectified. See Short 
 vs. May, 2 Sandf., 639. The mere filing will be a sufficient compHance 
 with the order, and it will not be necessary to serve the opposite parties 
 with notice of that compliance. Douoy vs. Eoyt, 1 C. K. (N. S.), 286. 
 In practice, however, this is generally done, and ought to be, as a matter 
 of fairness and courtesy. 
 
 Where service takes place by publication, it is, however, necessary 
 that the complaint should be filed at once, and before the issuing of 
 the summons, or the proceeding will be irregular. In real actions, 
 also, it is now necessary, under the recent amendment of section 132, 
 that the complaint should be filed at the outset of the suit, inasmuch as, 
 until that is the case, the notice of pendency of action cannot be placed 
 on record. Under the Code of 1849, this was otherwise, and it was 
 there provided that the notice in question might be given at "the time 
 of commencing the action," without reference to the complaint bemg 
 or not being previously filed. 
 
964 OF THE COMPLAIMT. § 158. 
 
 The collateral proceedings of filing notice of Us pendens, and serving 
 notice of object of action, where applicable, have been noticed at an 
 earlier stage of the work. 
 
 (c.) Concluding Obseevations. 
 
 Stamping, as it does, its distinctive character upon all the subsequent 
 proceedings in the suit, the complaint is a pleading of peculiar impor- 
 tance, and the recent decisions bearing upon the subject of its prepara- 
 tion are so numerous, that the necessary consideration of them has 
 swelled the present chapter to an unusual bulk. This circumstance 
 has compelled the author to abandon his original intention of including 
 in his first volume, all proceedings • down to the final joinder of the 
 issues to be tried between the parties ; ' reserving for the second, 
 those connected with such trial, the immediate preparations for it, and 
 its ulterior results. Between two altei'natives, he has chosen that of 
 sacrificing, to some extent, the technical symmetry, in preference to 
 curtailing an essential portion of his woi-k. 
 
 As regards one subject treated in the next general division, an antici- 
 patory observation may not be misplaced, i. e., the subject of Cou7iter- 
 claim. Though technically responsive, so much of an answer as sets 
 up a counterclaim, is, in fact, pro tanto, an affirmative pleading, 
 presenting all the essential features of a counter-complaint. Being, in 
 effect, a cross-suit, the same statement of facts will be requisite to 
 demonstrate the existence of a cause of action, as when that cause of 
 action is separately asserted ; the same precision and sufiiciency will 
 be indispensable in framing the allegations by which that cause of 
 action is sustained ;"and the same necessity of framing a proper demand 
 for the relief or judgment sought to be obtained, will be imposed upon 
 the pleader. 
 
 End of "Vol. I, 
 
INDEX TO VOLUME I. 
 
 A. SEO. PAQB 
 
 Abatement. (See Parties.) 
 AccouDting, siiit for. (See Complaint) 
 
 Acknowledgments, taking of. 2'7 115 
 
 Actions, limitation of (See Limitations) 
 
 " preliminaries to commencement of, in certain cases 45 242 
 
 " on judgments, application for leave to bring 45 (/) 246 
 
 " as to judgments in courts of record 45 (y) 247 
 
 " as to justices' judgments 45 (A) 249 
 
 •' preliminary notice and demand in. certain cases 45 (i) 249 
 
 " commencement of. (See Summon^,) 
 
 Admission of service of summons 58 (/) 306 
 
 Admissions, generally considered 68 336 
 
 Affidavits, generally considered "70 338 
 
 Amendment, of summons 51 282 
 
 " of pleading, as of course 128 611 
 
 " right to amend ; 128 (a) 611 
 
 " time allowed 128 (6) 615 
 
 " restrictions on power 128 (c) 616 
 
 " of pleading, on special motion 129 617 
 
 " in names of parties 129 (a) 618 
 
 " correction of mistake 129 (ft) 619 
 
 '■ insertion of material allegations 129 (c) 622 
 
 " general considerations 129 (d) 623 
 
 " on or after trial 131 626 
 
 " at the trial 131 (a) 627 
 
 " aitertrial 131(6) 632 
 
 Appeals, Court of (See Court of Appeals.) 
 
 Appearance, notice and effect of 59 (ft) 307 
 
 Arrest, statutory and other provisions concerning 80 390 
 
 " general remarks 81 396 
 
 " privileged persons 81 (a) 
 
 " non-imprisonment act of 1831 81 (ft) 
 
 " proceedings for contempt 81 (c) 
 
 " writ of ne exeat 81 (d) 
 
 '• when defendant arrestable '• 82 
 
 " preliminary remarks 82(a) 400 
 
 " subdivision 1 of section 179. When action sounds in tort 82 (ft) 402 
 
 2 " Agents, &c 82(c) 403 
 
 3 " Eeplevin 82(d) 406 
 
 II II 4. " Praud in contracting debt 82 (e) 407 
 
 396 
 397 
 399 
 
 400 
 400 
 
 5 " Fraudulent disposal of property 82 (/) 
 
 409 
 
966 INDEX. 
 
 SBO. PAOE 
 
 ArreBt, of female 82 (?) 410 
 
 " for usurpation of ofBce ^2 (ft) 411 
 
 " application for ^^ 
 
 " affidavit on 83(a) 411 
 
 " security on 83 (6) 414 
 
 " order 83(c) 415 
 
 " mode and incidents of 84 416 
 
 " defendant's course on 35 417 
 
 " motion to vacate, generally considered 85 (a) 411 
 
 " " " on plaintiff's papers 85(6) 419 
 
 " on affidavits 86(c) 420 
 
 " " " course on hearing 85(d) 423 
 
 " bail by defendant 86 425 
 
 " deposit in lieu of. 86 (a) 425 
 
 " bail, nature of 86 (J) 425 
 
 " quaUfications of 86 (c) 426 
 
 " undertaking of, its incidents and form 86 (d) 427 
 
 " exception and justification 87 427 
 
 " exception to, notice of 87 (a) 427 
 
 " justification, notice of ' 87 (b) 428 
 
 " justification by 87(c) 428 
 
 " surrender by 88 430 
 
 " exoneration of 89 431 
 
 " exonereiwr. 89 (a) 432 
 
 " sheriff's liability as bail in certam cases 90 433 
 
 " remedies against 91 434 
 
 " discharge from arrest 92 434 
 
 " discharge by operation of law 92 (a) 435 
 
 Assault and battery. (See Oomplaint.) 
 
 Assumpsit (See Oomplaint.) 
 
 Attachment, statutory provisions concerning 107 485 
 
 " general observations 108 494 
 
 " when and from whom obtainable 109 497 
 
 " only in an action 109 (a) 497 
 
 " at what time obtainable 109 (6) 498 
 
 " from whom, question of jurisdiction 109 (c) 499 
 
 " in what oases ; against foreign corporations 109 (d) 500 
 
 " , " non-resident debtors 1 09 (e) 500 
 
 " " absconding or concealed defendants 109 (/) 501 
 
 " in respect of fraudulent removal, &o., of property 109 (?) 602 
 
 " how obtained 110 503 
 
 " affidavit for 110 (o) 503 
 
 " security on 110 (6) 506 
 
 " notice of lis pendens 110 (c) 506 
 
 " warrant of 110 (d) 507 
 
 " application to judge, &c 110 (e) 508 
 
 " sheriff's proceedings on warrant Ill 509 
 
 " seizure and its incidents Ill (a) 612 
 
 " attachments on vessels HI (*) 515 
 
 " service of notice under attachment Ill (li) 516 
 
 " certificate on HI (e) 517 
 
 " discharge of 112 517 
 
 " " upon motion 112(a) B17 
 
INDEX. 967 
 
 SSO. PAGE 
 
 Attachment, discharge of. 
 
 " " for irregularity, &a 112(6) 518 
 
 " " on affidavit 112(c) 518 
 
 " " on giving security 112 (d) 521 
 
 " " result of 112 (e) 522 
 
 " questions as to rights of other creditors " 113 522 
 
 " effect of judgment 114 523 
 
 " • rights of defendant thereon 114 (a) 524 
 
 " sheriff's return and fees 115 525 
 
 Attorney-general, preHminaries to action by, in certain cases 45 (e) 24G 
 
 Attorneys, their powers and duties 30 126 
 
 " verification by. (See Pleading.) 
 
 Averments in pleading. (See Pleading.) 
 
 B. 
 
 Bail. (See Arrest.) 
 
 Balance of account. (See Complaint.) 
 
 BiBs. (See Complaint.) 
 
 Bonds. (See Complaint.) 
 
 Breach of promise of marriage. (See Complaint.) 
 
 0. 
 
 Calendar of motions '''?(«) 371 
 
 Certificate of service of summons. (See Summons.) 
 
 Chambers, power of judge at 15 45 
 
 " power of county judge at 16 48 
 
 Chamber business 16 48 
 
 Checks or drafts. (See Complaint.) 
 
 Circuit, powers of judges at 14 40 
 
 City Court of Brooklyn 19 (r) 85 
 
 Claim and delivery of personal property. (See Replevin.) 
 
 Clerk of court, his powers and duties 26 113 
 
 Code, origin and modifications of 2 2 
 
 t' provisions, of general application 3 5 
 
 " statutory provisions reserved by § 47 1 4 
 
 Commissioners of deeds, their powers and duties 27 115 
 
 Common carriers. (See Complaint) 
 
 Common Pleas, New York. 
 
 " For provisions of general application, see Courts of Cities. 
 
 " special provisions of Code concerning 19 (d) 68 
 
 " " in common with Superior Court . .' 19 W 69 
 
 " provisions of other statutes, in common with Superior Court 19 (/) ''1 
 
 " " " apphcable to Common Pleas alone 19 (A) 74 
 
 Complaint, service of, with summons 52 28t 
 
 " formal requisites of 1^9 
 
 nameof court 139(a) 6G;. 
 
 " designation of venue 139 (S) 669 
 
 names of parties 139(c) 669 
 
 " other questions concerning 139 (d) 670 
 
 other formalities '-'9 (e) 671 
 
 " joinder of causes of action in ^'^'^ t \ ^-^ 
 
 " subject generally considered 1" W ' 
 
 9 
 
968 INDEX. 
 
 BEO. FAOE 
 
 Complaint, subject generally considered. 
 
 " classification. 
 
 " connected claims 140 (*) 673 
 
 " under other subdivisions of § 167 140 (c) 680 
 
 " restrictions on joinder. 
 
 " all to belong to one class ' 140 (d) 680" 
 
 " all parties must be affected by causes joined 140 (e) 681 
 
 " not separate places of trial r 140 (/) 683 
 
 " separate statement of causes of action 140 (g) 683 
 
 " in actions sounding in tort. 
 
 " general view 141 684 
 
 " general considerations. Jurisdiction ' 141 (a) 684 
 
 election 141 (6) 685 
 
 " relation of employer and employee 141 (c) 686 
 
 " attribution of negligence 141 (d) 689 
 
 " general remarks concerning 141 (e) 693 
 
 " averments in tort, wrongs to character or person 142 693 
 
 " Blander and libel 142 (a) 693 
 
 " slander, separately considered 142 (t) 694 
 
 libel, " " 142 (c) 696 
 
 seduction, " " 142(d) 699 
 
 " breach of promise of marriage 142 (e) 700 
 
 " assault and battery 142 (/) 701 
 
 " false imprisonment 142 (g) 702 
 
 " malicious prosecution 142 (h) 704 
 
 " in statutory action for death by injury 142 (i) 705 
 
 " for personal injuries 142 (j) 708 
 
 " averments in tort, continued. 
 
 " wrongs as to property 143 709 
 
 " injuries, wilful or negligent 143 (a) 709 
 
 " breach of warranty 143(6) 711 
 
 " false representations 143 (c) 712 
 
 " trespass de honis asporlatis or trover 143 (d) 714 
 
 " breach of duty or contract .^ 144 721 
 
 " common carriers 144 (a) 721 
 
 " innkeepers .■ 144 (6) 727 
 
 " public and other officers. 
 
 " sheriffs 144 (c) 729 
 
 " constables ., 144 (d) 730 
 
 " assessors 144 (e) 731 
 
 " other responsibiUties 144 (/) isi 
 
 " breach of contract 144 (o) 733 
 
 " m replevin 145 738 
 
 " averments on express contract. 
 
 " in common law actions 146 744 
 
 " hUls, notes, and checks. 
 
 " averments under § 162 146 (o) 744 
 
 " implications and presumptions 14g (M 748 
 
 " negotiable and non-negotiable paper 146 (A 750 
 
 " decisions of general import concerning 146 (d) 753 
 
 " bond fide holders 146 (g) 756 
 
 " liabilities of parties. 
 
 " indorser's liability •. 146 (/) 765 
 
iKDEX. 969 
 
 BEO. PAGE 
 
 CJomplaint, bills, notes, and checks — ^liabilities of parties. 
 
 " guarantor's liability 146 (g) 76S 
 
 " discharge of liability 146 (ft) 770 
 
 " presentment and protest 146 (i) 772 
 
 " premium notes 146 (y) 782 
 
 " averments on, generally considered 146 (/j-) 785 
 
 " checks or drafts 146 (t) 788 
 
 " averments on express contract, continued. 
 
 " common law actions on other contracts 147 792 
 
 " general observations 147 (a) 792 
 
 " bonds 147 (6) 798 
 
 " recognizances 147 (c) 803 
 
 " undertakings 147 (d) 803 
 
 " on appeal. . '. 147 (e) 804 
 
 " on arrest 147 (/) 806 
 
 " in replevin 147 (g) 806 
 
 " on injunction 147 (ft) 807 
 
 " on attachment 147 (i) 807 
 
 " upon other specialties. 
 
 " ' on awards ; 147 (y) 809 
 
 " special agreements 147 {k) 810 
 
 " judgments 147 (?) 810 
 
 " policies of insurance 147 (m) 810 
 
 " for rent 147 (») 826 
 
 " on guaranty 147 (o) 829 
 
 " on implied promises 148 
 
 " assumpsit, or parol promise 148 (a) 833 
 
 " subscriptions 148 (b) 835 
 
 " against shareholders and trustees 148 (c) 839 
 
 " contribution and subrogation 148 (d) 842 
 
 " in assumpsit, continued 149 
 
 " general observations as to pleading 149 (a) 844 
 
 " balance of account 149 (5) 845 
 
 " money lent. 149 (c) 846 
 
 " paid 149 ((J) 846 
 
 " had and received 149 (c) 849 
 
 " work and labor 149 (/) 852 
 
 " and materials 149 (jr) 853 
 
 and services 149 (ft) B5G 
 
 " use and occupation 149 (i) 863 
 
 freight 149 (i) 865 
 
 " goods sold and delivered 149 {k) 867 
 
 " on actions in relation to real estate 150 
 
 " general remarks and statutory provisions 150 (a) 877 
 
 " ejectment 150(6) 879 
 
 " trespass on lands 150 (c) 89(1 
 
 " slander of title '. 150 (d) 891 
 
 " determination of claims 150 (e) 892 
 
 waste 150(/) 89' 
 
 " nuisance 150 (?) 897 
 
 " suits in equity, generally considered 151 
 
 " suits in relation to contracts or instruments 152 
 
 " notice of general decisions 152 (a) 
 
 899 
 902 
 
970 INDEX. 
 
 SEC. PAGB 
 
 Complaint, suits in relation to contracts or instruments. 
 
 " specific performance or enforcement 152 (J) 903 
 
 " reformation or correction 152 (c) 912 
 
 " rescinding or vacating 152 (d) 914 
 
 " enforcement of equitable liens 153 
 
 " creditor's bill 153 (a) 920 
 
 " other special liens ■ 153 (6) 928 
 
 " lien on estate of /erne covert 1 53 (c) 929 
 
 " foreclosure or redemption 154 
 
 " foreclosure of mortgage 154 (a) 930 
 
 " of mechanic's lien 154 (6) 937 
 
 " redemption of mortgage 154 (c) 911 
 
 " real estate, equitable proceedings concerning 155 
 
 " general remarks 155 (a) 943 
 
 " partition, statutory and other provisions 1 55 (6) 944 
 
 " generally considered 1 55 (c) 946 
 
 " admeasurement of dower 155 (d) 949 
 
 " in other suits in equity 15G 950 
 
 " for injunction 156 (a) 950 
 
 " interpleader 156 (6) 951 
 
 " for accounting 156 (c) 952 
 
 " fordivorce 156(d) 954 
 
 " on ground of nullity 156 (e) 954 
 
 " for adultery 156 (/) 956 
 
 " for separation 156 (ff) 958 
 
 " prayer for relief 157 959 
 
 " service and other formalities 158 (o) 962 
 
 " filing 158(6) 963 
 
 " concluding observations 158 (c) 964 
 
 Computation of time '^^ {"■) 340 
 
 " as to publication 71 (b) 342 
 
 Confession of judgment, statutory provisions 47 252 
 
 " law as to, generally considered 48 253 
 
 " form of 48 (a) 257 
 
 " for debt on promissory note i8 (6) 258 
 
 " for goods sold 48 (c) 263 
 
 " for balance of account 48 (d) 263 
 
 " for moneys lent 48 (e) 263 
 
 " on judgment or written instrument 48 (/) 263 
 
 " for contingent liabiUty 48 (?) 261 
 
 " entry of judgment on 48 (A) 264 
 
 " vacating of judgment on 48 (i) 265 
 
 Consents, giving of 68 336 
 
 Contempt, proceedings for, noticed 81 (c) 399 
 
 Contract, breach of. (See Complaint.) 
 
 " specific performance of. (See Complaint.) 
 Contribution. (See Complaint.) 
 
 Controversy, submission of, without action 46 250 
 
 Counsel, their powers and duties 30 126 
 
 County courts, statutory provisions concerning 17 54 
 
 " jui'isdJction generally considered 18 61 
 
 County judge, powers of, in Supreme Court at chambers 16 48 
 
 Court of Appeals, statutory provisions concerning 9 18 
 
rwDEx. 971 
 
 SEO. PAGE 
 21 
 
 oourt of Appeals, juriadiotion and powers generally considered 10 
 
 Courts, rules of, generally considered 5 n 
 
 general statutory provisions concerning Y 14 
 
 (See the title of each court.) 
 
 " general terms of -[3 33 
 
 " circuits and special terms 14 40 
 
 " chambers 15 45 
 
 " chamber business 16 48 
 
 " of cities, jurisdiction and powers , 19 65 
 
 " constitutional provisions concerning 19 (a) 65 
 
 " provisions of Code of general application 19 (&) 66 
 
 " distinction between New York and other local tribunals 19 (c) 67 
 
 " organized since Constitution of 1846 19 (i^) 84 
 
 (See further, under heads of different courts.) 
 
 Courts, officers of, general observations concerning 25 112 
 
 (See under designation of specific officers.) 
 
 " others not specifically designated 29 126 
 
 Creditors' bills. (See Complaint) 
 
 D. 
 
 Death by injury. (See Gomplaint.) 
 
 Default on motion ''8 (6) 372 
 
 Defendants, joinder of. (See Parties) 38 190 
 
 " appearance of 59 (6) 307 
 
 " when arrestable, and course on arrest. (See Arrest) 
 
 " course of in replevin. (See Replevin) 
 
 Demand preliminary to action in certain cases ' 45 (t) 249 
 
 Deposit in lieu of bail 86 (a) 425 
 
 Depositions on motion 77 367 
 
 Determination of claims. (See Complaint) 
 
 Discontinuance, course on, in replevin 96 (i) 448 
 
 District courts New York, jurisdiction of 22 103 
 
 (See Justices' Courts) 
 Divorce. (See Complaint) 
 Dower, admeasurement of. (See Complaint) 
 Duty, breach of. (See Complaint) 
 
 B. 
 
 Ejectment, parties in. (See Parties) 
 
 " complaint in. (See Complaint) 
 Equity, suits in. (See Complaint) 
 Exceptions to bail. (See Arrest.) 
 Exoneration of baU. {See Arrest) 
 Ex parte applications. (See Motions) 
 
 F. 
 
 False imprisonment. (See Complaint) 
 False representations. (See Complaint) 
 
 Federal courts, jurisdiction and powers of. 8 15 
 
 Filing of complaint 168(B) 963 
 
 Foreclosure, parties in. (See Parties) 
 " complaint in. (See ComplairU) 
 
972 INDEX 
 
 SEO. PAGE 
 
 Former practice, how far existent 6 12 
 
 Freight. (See Gomplaint.) 
 
 G. 
 
 General term, powers of. 13 38 
 
 Goods sold, &C. (See Complaint.) 
 
 Guaranty. (See Complaint.) 
 
 Guardian ad litem 4 62 312 
 
 " statutory and other provisions concerning 63 313 
 
 " appointment of, generally considered 64 311 
 
 " in partition 64(a) 321 
 
 H. 
 Husband and wife. (See Parties.) 
 
 " sundry decisions concerning law of 34 (c) 176 
 
 I. 
 
 Infants, law of, sundry decisions concerning 35 181 
 
 " preliminaries to action by or against 45 (a) 242 
 
 Injunction. (See Complaint.) 
 
 " statutory and other provisions concerning 91 448 
 
 " prehminary remarlfs as to ,. •...,■ 98 450 
 
 " from whom obtainable 98 (a) 450 
 
 " in what cases, general classification 98 (6) 451 
 
 " preliminary 99 452 
 
 " plaintiff's title to relief by way of 99 (i) 453 
 
 " subsidiary 100 463 
 
 " extraneous 101 464 
 
 " application for 102 
 
 " when entertainable 102 (a) 465 
 
 " affidavit for 102 (6) 465 
 
 " security on 102(c) 467 
 
 " statutory security in certain cases 102 (d) 467 
 
 " ordinary security 102 (e) 469 
 
 " security on restraining corporation 102 (/) 470 
 
 " disposal of undertakings > 102 (g) 470 
 
 " manner of ajiplication for 102 (h) 471 
 
 " disposal of affidavits 102 (j) 472 
 
 " service of 103 472 
 
 " violation of 104 474 
 
 " defendant's course to oppose or vacate 105 
 
 " opposition to original motion 105 (o) 476 
 
 " motion to vacate or modify 105 (b) 477 
 
 " on plaintiff's papers 105 (c) 478 
 
 " on pleadings without affidavits 105 (d) 479 
 
 " on affidavits 105 (e) 479 
 
 " generally as to motion 105 (/) 482 
 
 " dissolution of, hability of sureties 106 483 
 
 Injuries, death by. (See Complaint.) 
 " personal.- (See Complaint.) 
 " to property. (See Complaint.) 
 
 Innkeepers. (See Complaint.) 
 
 Insurance. (See Complaint.) 
 
INDEX. 973 
 
 interlocutory proceedings, general observations 65 323 
 
 applications, statntory and other provisions oonoerning 12 343 
 
 Interpleader. (See Complaint.) 
 
 law concerning 40 208 
 
 Irrelevancy. (See Pleading.) 
 
 J. 
 
 Joinder. (See Parties.) 
 
 Joint-debtors, service on. (See Service.) 
 
 Judges, powers at general term 13 38 
 
 " at circuit and special term 14 40 
 
 " at chambers 15 45 
 
 Judgment, action on, preliminaiies to commencement of 45 (/) 246 
 
 " " in courts of record 4,5 (g) 247 
 
 " " in justices' courts 45 (A) 24!) 
 
 " confession of. (See Confession.) 
 
 " entry of^ on confession 48 (A) 264 
 
 " vacating of, on confession 48 (i) 265 
 
 " effect of, where attachment issued 114 52;j 
 
 " complaint on. (See Complaint.) 
 
 Jurisdiction and powers of courts. (See various courts.) 
 
 " of action, when acquired 59 (a) 307 
 
 Justices' courts, general statutory provisions concerning 21 92 
 
 " in cities " " 22 101 
 
 " various points as to jurisdiction 23 106 
 
 " removal of causes from, where real estate in question 24 109 
 
 Justification of bail. (See Arrest) 
 
 L. 
 
 Libel. (See Complaint.) 
 
 Liens, enforcement of. (See Complaint.) 
 
 Limitation of actions, provisions of Code 41 (o) 212 
 
 " other statutory provisions. 
 
 " in suits by or against representatives 41 (6) 219 
 
 " " heirs or devisees 41(c) 219 
 
 " as to proceedings for dower 41 ((i) 220 
 
 " in ejectment 41(e) 220 
 
 astousury 41 (/) 220 
 
 " where service by publication 41 (</) 220 
 
 as to justices' judgments 41 (ft) 220 
 
 as to writs of error 41 (t) 220 
 
 " as to suits against stockholders 41 (i) 220 
 
 " as to real estate actions 42 
 
 actions by the people 42(a) 221 
 
 11 by private parties, adverse possession 42(6) 222 
 
 special limitations 42(c) 22G 
 
 disabilities 42(4 226 
 
 1. as to personal actions 43 
 
 20 years' limitation 43(a) 227 
 
 ^•' 1. 43(6) 228 
 
 <. 43(c) 231 
 
 u 43 (d) 232 
 
 " ,. << "" ' 43(e) 232 
 
 II 10 
 
9*74 IWDEX. 
 
 BEO. PAGD 
 
 Limitation as to personal actions. 
 
 " disabiUtiea 43 (/) 23i 
 
 " account current, effect of 43 (?) 234 
 
 " acknowledgment or part payment 43 (A) 235 
 
 " general provisions 44 
 
 " oomraencement of action 44 (a) 238 
 
 " suspension of limitations. 
 
 " by absence 44 (i) 289 
 
 " by death of party 44(c) 240 
 
 " by injunction or prohibition ii (d) 241 
 
 " concluding remarks 44 (e) 241 
 
 Lis pendens, notice of. (See Notice.) 
 
 Lunatics, preliminaries to action by or against 46 (J) 243 
 
 M. 
 
 Malicious prosecution. (See Complaint.) 
 
 Marine Court, jurisdiction of 22 101 
 
 " (See Justices' Courts.) 
 
 Mayors' Courts 19 (i) 81 
 
 " of Albany 19 (/;) 82 
 
 " ofHudson 19(0 82 
 
 " ofTroy 19 (m) 82 
 
 " of Eochester 19 (») 83 
 
 Mechanics' liens 61 312 
 
 " verification of (See Pleading.) 
 " enforcement of. (See Complaint.) 
 
 Money lent, &c. (See Complaint.) 
 
 Motions, statutory and other provisions relative to 12 343 
 
 " general classification of "73 351 
 
 " ex parte. 
 
 " by whom and where cognizable ''4 (a) 351 
 
 " general characteristics of ^4 (6) 352 
 
 " for extension of time '4 (c) 35.'i 
 
 " for stay of proceedings 1i (d) .^54 
 
 " opposed, where cognizable 15 
 
 " in first district 15 (a) 357 
 
 " in other districts ''5 (6) 358 
 
 " notice of , 16(a) 360-1 
 
 " order to show cause '6 (6) 365 
 
 " other papers and proceedings on '77 367 
 
 " depositions on "JV (a) 367 
 
 " petitions 77(6) 369 
 
 " service of papers on 'Hi") 370 
 
 " calendar of 77 (d) 371 
 
 " course on hearing, &o 78 (o) 371 
 
 " default on 78(6) 372 
 
 " hearing, where both parties appear IS {») 374 
 
 " incidental points on hearing , 18 (d) 377 
 
 " renewal of 78(e) 379 
 
 " orders on. (See Orders.) 79 380 
 
 " to vacate provisional remedies. (See Arrest, dbc.) 
 " to correct pleadings. (See Pleadings.) 
 
rPTDBX 975 
 
 N. 
 
 SEO. PAGE 
 
 Ne exeat. (See Arrest.) 
 
 Notice preliminary to action in certain cases 45 (i) 249 
 
 " of no personal claim 53 285 
 
 " of lis pendens 60 309 
 
 " of motion t6 (o) 369 
 
 " on attachment 110 (c) ~ 506 
 
 " of exception to bail 81(a) 421 
 
 " of justification of bail 87(6) 428 
 
 Notices, statutory provisions concerning 66 (a) 323 
 
 Nuisance. (See Complaint.) 
 
 0. 
 
 Oaths, taking of St 115 
 
 Officers, breach of duty by. (See Complaint.) 
 
 " of courts. General observations concerning 25 112 
 
 (See under designation of specific officers.) 
 
 '' others not designated 29 12G 
 
 Order for publication. (See Publication^) 
 
 " to show cause '^^ (P) 36^^ 
 
 Orders, general remarks on 19 (a) 380 ^ 
 
 " ■ form of 1 9 (6) 381 
 
 " entry of 'J9 W 383 
 
 " certified copy 79(0!) 380 
 
 " serrice of f 9 (e) 386 
 
 " performance of conditions '9 (/) 381 
 
 " enforcement of. '9 (3) 381 
 
 " review or vacating of 19 (A) 381 
 
 " on provisional remedies. (See Arrest, &c.) 
 
 ♦ P. 
 
 Papers, service of. (See Service.) 
 
 " preparation of • 61(a) 332 
 
 " filing of, statutory provisions 61(6) 333 
 
 •' general observations ^'' {<') 335 
 
 " service of, on motion "Jl («) 310 
 
 Parties, statutory provisions concerning 31 134 
 
 " real party in interest 32 139 
 
 " competency to sue or be sued 32(a) 139 
 
 " ovyner of property 32(6) 139 
 
 " tenants in common 32(c) 
 
 32(d) i44 
 
 " partners ;/ 
 
 " joint and several contractors 32 W 146 
 
 " joint tortfeasors l^y) 
 
 .. Ucipal and agent.. 3 g 4 
 
 " parents, husbands, and masters 32 ^ H9 
 
 ' corporations 
 
 u directors and stockholders 3 W 4 
 
 .. states and governments 32*) 5o 
 
 " assignee in contract ! ^ ! ! i! ! ! i! ! ! ! H^) Ho 
 
 '■■ assignee m tort ^' 
 
 >^ representatives and trustees, nght to sue 3d IM 
 
 » executors and administrators 3d (i) 164 
 
976 INDEX, 
 
 SBC. PAGE 
 
 Parties, trustees of express trust 33 (2) 166 
 
 " persons authorized by statute 33 (3) 169 
 
 " committees 33 (3 a) 169 
 
 " public officers 33 (3 6) 169 
 
 " officers of the court 33 (3 c) 170 
 
 " husband and wife -^^ ^'^ 
 
 " " joinder of, as plaintiffs , 34 (a) 172 
 
 defendants --i (6) 174 
 
 " " sundry decisions concerning 34 (c) 176 
 
 " infants 35 181 
 
 " joinder of plaintiffs 36 184 
 
 " suit by one of a class * 37 187 
 
 " joinder of defendants 38 190 
 
 " necessary defendants 38 (a) 191 
 
 " proper defendants 38 (6) 194 
 
 " defendants in specific cases. 
 
 " " foreclosure ■•• 38(c) 198 
 
 partition ' 38 (a!) 201 
 
 ejectment 38(e) 202 
 
 " unknown defendants 38 (/) 204 
 
 " privileged defendants 38 (j) 205 
 
 " abatement. Bringing in of defendants 39 206 
 
 " " " in regular course of action 39(a) 206 
 
 " " " on application of third party 39(6) 207 
 
 " interpleader 40 208 
 
 ' verification by. (See JPleading.) 
 
 Partition, complaint in. (See Complaint.) 
 " parties in. (See Parties.) 
 
 Pauper, application to sue in forma pauperis i5 (d) 245 
 
 Personal property. (See Replevin.) 
 
 Petitions 11 (h) 369 
 
 Plaintiffs, joinder of. (See Parties.) 
 
 Pleading, generally considered, statutory provisions concerning 120 542 
 
 " system of, estabhshed by Code 121 553 
 
 " uniformity of that system 121 (a) 555 
 
 " but previous distinctions subsist 121 (&) 557 
 
 " other parts of former system not abolished 121 (c) 559 
 
 " former modes of, when admissible 121 [d) 561 
 
 " averments in, generally considered, 122 563 
 
 " " facts only to be stated 122(a) 564 
 
 " " constitutive facts 1 22 (S) 564 
 
 " " probative facts 122(c) 567 
 
 " " conclusions of law 122(d) 569 
 
 " " arguments and inferences 122 (e) 571 
 
 " " sufficiency 122 (/) 571 
 
 " " principle of secundmn allegata 122 (i;) 575 
 
 " mode of averment 123 
 
 " general considerations 123 (a) 578 
 
 narrative 123(6) 578 
 
 " statement of conclusions 123 (c) 578 
 
 " statements to be positive 123 (d) 579 
 
 " hypothetical and alternative pleading 123 (e) 579 
 
 " inconsistency 123 (/) 580 
 
INDEX. 977 
 
 _, ,. SBO. PAGE 
 
 Pleading, mode of avennent. 
 
 certeanty 123 (j) 581 
 
 f^c's according to legal effect 123 (A) 581 
 
 looseness and superfluity 123 (») 581 
 
 anticipation 123 0') ^82 
 
 " adaptation to case, whether legal or equitable 123 (ft) 582 
 
 old forms, how far available 123 (i) 585 
 
 general observations as to 123 (to) 581 
 
 averments under statutory provision , . . 123 (n) 587 
 
 averments by or against incorporations 123 (o) 688 
 
 " averments by, implication 124 
 
 " " by special provision 124 (o) 591 
 
 " " by general operation 124 (6) 594 
 
 " construction of. 124 (c) 596 
 
 " formal requisites of 125 
 
 " numbering folios, (fee 126(a) 697 
 
 " numbering causes of action, Ac 125 (6) 598 
 
 " subscription of 126 (a) 598 
 
 " verification of, when and when not imperative 126 (J) 599 
 
 " mode of 126 (c) 600 
 
 " " of mechanics' lien 126 (d) 600 
 
 " " privilege to omit 126 («) 601 
 
 " " form of, by party 126 (/) 603 
 
 " " by attorney or agent 126 (g) 604 
 
 " " points asto 126(A) 60S 
 
 " course of adverse party on service of 127 
 
 " return of, when defective 127 (a) 608 
 
 " disregard of, when defective 127 (i) 610 
 
 " amendments of. (See Amendments.) 
 
 " amended, service of 130 625 
 
 " variances in, when, and when not disregarded 132 634 
 
 " disregardof 132 (o) 635 
 
 " when fatal 132 (ft) 640 
 
 " correction of, on adverse motion. 
 
 " general observations concerning 133 643 
 
 " when motion admissible and when not 133 (a) 644 
 
 " irrelevancy or redundancy 134 (a) 646 
 
 " irrelevancy 134 (ft) 647 
 
 " redundancy : . 134 (c) 650 
 
 " both objections, generally considered 134 (d) 654 
 
 " uncertainty 135 
 
 " form and incidents of motion to correct 136 
 
 Practice, former, how far existing 6 
 
 Prayer of Complaint. (See Complaint.) 
 
 Preliminary observations ^ 
 
 Proceedings, stay of ' ■' 
 
 Promissory notes. (See Complaint.) 
 
 Provisional remedies. General observations 
 
 (See Arrest, dkc.) 
 
 " others, besides those specifically treated of 11^ 
 
 Publication, service by, generally considered ^6 
 
 656 
 
 659 
 
 12 
 
 354 
 390 
 
 540 
 293 
 
 " prerequisites to ••■••• ^ 
 
 » mode of apphcation ^ ' 
 
 Vol. I.— 62 
 
 56 (a) 294 
 
 295 
 
978 iwDEx. 
 
 SEO. PAGE 
 
 Publication, service hj affidavit 56 (c) 296 
 
 " form of order 66(d) 298 
 
 " proceedings under order 56 (e) 298 
 
 " rights reserved to defendant 56 (/) 302 
 
 " computation of time as to 11(6) 342 
 
 R. 
 
 Keal estate. (See Justices' Cowts, Limitations, Complaint.) 
 
 Koooiver, preliminaries to action by or against ' 45 (c) 244 
 
 " statutory and other provisions concerning 116 526 
 
 " appointment of and its incidents 117 529 
 
 " .application for, mode of IIT (a) 529 
 
 " proceedings on decision of motion 117 (6) 533 
 
 " duties and powers of 118 536 
 
 " " of insolvent corporation 118 (o) 539 
 
 Recorders' Courts 19 W 81 
 
 " of mica, 19 (o) 83 
 
 " of Os-wego 19 (?) 84 
 
 Redemption. (See Oomplaint.) 
 
 Redundancy. (See Pleading.) 
 
 Rent. (See Ckmiplaint.) 
 
 Replevin. 
 
 " statutory and other provisions concerning 93 435 
 
 " general remarks. Right to remedy. 94 438 
 
 " provisional remedy of, how obtained 95 440 
 
 ■' time of obtaining 95 (a) 440 
 
 " affidavit 95(6) 440 
 
 " requisition to sheriff 95 (J, 1) 442 
 
 " undertaking 95(c) 442 
 
 " sheriff's course of proceeding 95 (d!) 443 
 
 " defendant's course 96 444 
 
 " motion to set aside 96 (a) 444 
 
 " justification by plaintiff's sureties 96 (6) 445 
 
 " counter security by defendant 96 (c) 446 
 
 " delivery to plaintiff 96(d) 446 
 
 " delivery to defendant 96(e) 446 
 
 " sheriff's fees 96 (/) 447 
 
 " claim by third party 96 (?) 447 
 
 " disposal of papers 96 (A) 447 
 
 " course on discontinuance 96 (i) 448 
 
 " complaint in. (See Complaint.) 
 
 Rules, generally considered 5 11 
 
 S. 
 
 Seduction. (See Complaint.) 
 
 Service, of summons 54 285 
 
 " substituted, against resident defendants 65 292 
 
 " by pubhcation 56 293 
 
 " on joint-debtors 57 304 
 
 " of summons. (See Summons.) 
 
 " of papers, statutory provisions concerning 66 (a) 323 
 
 " on party or attorney, and its proof 66 (6) 325 
 
 " on attorney 66(c) 327 
 
INDEX. 9Y9 
 
 SEO. PAGE 
 
 a29 
 
 Semce, on party 66 (d) 
 
 by mail 66 («) 329 
 
 on absent party 66 (/) 331 
 
 " of order 79(e) 3^6 
 
 " of injunction IO3 472 
 
 " of amended pleading 130 025 
 
 " of complaint 158 9G2 
 
 Shareholders. (See Complaint.) 
 
 Sheriffs, their powers and duties 28 120 
 
 " certificate of service by. (See Summons.) 
 
 " liability of, as bail in certain cases 94 433 
 
 " course o^ in replevin 95 (d) 444 
 
 " fees of, in replevin 98 (/) 447 
 
 " proceedings of, on warrant of attachment. Ill 509 
 
 " return, and fees thereon 115 525 
 
 Slander. ■ (See Com.plaint.) 
 
 Special term, power of judges at 14 50 
 
 Specialties. (See Complaint) 
 
 Stay of proceedings '^^(d) 354 
 
 Submission of controversy without action 46 250 
 
 Subrogation. (See Complaint.) 
 
 Subscription of pleading. (See Pleading.) 
 
 Summons, statutory provisions concerning 49 
 
 •" provisions of Code 49 267 
 
 " of act of 1853 49(6) 272 
 
 " as to unknown defendants 49 (c) 273 
 
 " as to special indorsement in certain oases 49 (d) 273 
 
 " generally considered 50 
 
 nature of 50(a) 273 
 
 " form of 50(6) 276 
 
 subscription to 50(c) 276 
 
 " direction to defendant 50 (d) 276 
 
 " requisition to answer complaint 50 (e) 277 
 
 " place of service of answer 50 (/) 278 
 
 " time of service of answer 50 (g) 278 
 
 notice of taking judgment 50 {h) 278 
 
 " cases as to subdivision 1 of section 129 50 (i) 279 
 
 " " 2 of section 129 50 (/) 281 
 
 " special indorsement 50 (k) 282 
 
 " amendment of • 51 282 
 
 " service of complaint with 52 282 
 
 " notice accompanying, in certain cases 53 285 
 
 " service of 54 285 
 
 " substituted service of, against resident defendants 55 292 
 
 » service of by publication 56 293 
 
 (See also Publication.) 
 
 " service of on joint debtors 57 
 
 " proof of service of 58 
 
 u lay sheriff's certificate or affidavit 58(a) 
 
 11 by admission 58 (5) 
 
 Superior Court, Buffalo. 
 
 For provisions of general application, see Courts of Cities. 
 
 « Special statutory provisions concerning 19 (0 
 
 304 
 
 304 
 306 
 
 76 
 
980 INDEX. 
 
 SEO. PAOB 
 
 Superior Court, New York. 
 
 For provisions of general application, see Covrts of Cities. 
 
 " Special provisions of Code concerning, in common with Common Pleas. 19 (e) 69 
 
 " " other statutes iu common with Common Pleas 19 (/) '^ 
 
 " " " applioahle to Superior Court alone. . 19 (?) 13 
 
 " Decisions as to jurisdiction 20 SI 
 
 Supreme Court, general constitution and powers of judges 11 26 
 
 " provisions of Code concerning 12 34 
 
 " general term 13 38 
 
 " circuit and special term 14 40 
 
 " judge at chambers 15 45 
 
 " chamber business 16 48 
 
 " removal of cases into, from justices'^ courts 24 109 
 
 " Commissioners 16 48 
 
 Surrender by bail (See Arrest.) 
 
 T. 
 
 Time, computation of ''1 (<*) 340 
 
 " " as to pubUcation 71(6) 341 
 
 " extension of U (c) 353 
 
 Tort, averments in. (See Complaint.) 
 Trespass, de bonis asportatis. (See Complaint.) 
 
 " on lands. (See Complaint) 
 Trial, amendment on 131 626 
 
 " " during trial 131 (o) 627 
 
 " " aftertrial 131(6) 632 
 
 " place of (See Venue.) 
 Trover. (See Complaint.) 
 Trustees. (See Complaint.) 
 
 JJ. 
 Uncertainty. (See Pleading.) 
 
 Undertakings, notice preliminary to action on, in certain cases 45 (e) 249 
 
 " generally considered 69 337 
 
 " on provisional remedies. (See Arrest, &c.) 
 
 " complaint on. (See Complaint.) 
 United States Courts. (See Federal Courts.) 
 Use and occupation. (See Complaint.) 
 
 V. 
 
 Variance. (See Pleading.) 
 
 Venue, statutory provisions concerning 137 662 
 
 " general considerations 138 664 
 
 " in local actions. 
 
 " as to real estate 138(a) 665 
 
 " against pubUo officers 138 (b) 666 
 
 " in transitory actions 138 (c) 666 
 
 " designation of, in complaint 139 (6) 669 
 
 Verification. (See Pleading.) 
 
 "W. 
 
 Warranty, breach of. (See Complaint.) 
 
 Waste. (See Complaint.) 
 
 Work, labor, &o. (See Complaint) 
 

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