(5omFU IGaui ^rlinoJ Slibtary 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924022791077 
 
THE PRACTICE 
 
 IN 
 
 CIVIL ACTIONS 
 
 COURTS OF RECORD 
 
 OF THE SXATE OP NEW TOBK 
 
 UNDER THE CODE OF CIVII. 
 PROCEDURE 
 
 BY W^ILLIAM RJJMSEY 
 
 JUSTIOB OF THra SUPRBMD COUBT 
 
 SECON"I> EDITION", HEVISED A.TSrj) EDITED BY 
 
 WILLIAM RUMSEY and JOHN S. SHEPPARD, JR. 
 
 OF THE NEW XOHK BAR 
 
 VOLUME I. 
 
 1902 
 BANKS & COMPANY 
 
 ALBANT. NEW^ YOHK 
 
COPYRIGHT 1887 
 
 BY 
 
 BANKS & BROTHERS. 
 COPYRIGHT 1902 
 
 BY 
 
 BANKS & COMPANY. 
 
PREFACE TO SECOND EDITION. 
 
 It is now fifteen years since the first volume of the 
 first edition of this treatise appeared. During this time 
 I think the author's wish, expressed in the preface to 
 the first edition, that the book might lighten the labors 
 of the profession, has been amply gratified. Indeed, this 
 new edition is the result of many requests to the author 
 and publisher that the book should be made to conform 
 to present conditions. 
 
 I should have been reluctant to undertake the task if 
 the author had not assured me the benefit of his advice 
 and help, and I have, accordingly, turned to him when 
 the path was not plain. I hope I have been able to incor- 
 porate in the work a part, at least, of his wealth of 
 experience and suggestion. 
 
 I have adhered to the plan of the original treatise as 
 closely as possible. The number of citations has been 
 increased, but I trust not out of proportion to the mass 
 of decisions; the effort has been to cite no more cases 
 than were necessary to make the discussion of sub- 
 jects comprehensive and authoritative. Despite such 
 endeavor, this edition is materially larger than the first. 
 The tendency of recent legal works seems to be, how- 
 ever, toward increasing bulk, and I fancy their authors 
 and editors have found themselves as unable to with- 
 stand the fiood of decisions as I have in this instance. If 
 my inability in this respect has not rendered the book 
 too cumbersome for convenient reference, the increase 
 may not be disadvantageous. 
 
 My wish and endeavor have been simply to bring 
 Judge Kumsey's work up to date. If I have been in any 
 degree successful, I shall deem well-spent the many 
 hours of labor. 
 
 There are many indications of the author's assist- 
 ance in the preparation of this second edition, but the 
 task never could have been accomplished without the 
 unfailing inspiration and help of his daughter — my wife. 
 
 New York, 1902. J. S. S. Jr. 
 
PREFACE TO FIRST EDITION. 
 
 Sir Henry Maine has said, in his book on Ancient Law, 
 that it is the theory of the common law that every case 
 which arises for judgment is decided by some rule which 
 already exists; and yet, the moment the judgment is 
 made, we admit that it has to some extent modified the 
 law. Very much the same thing may be said of the code 
 of civil procedure. Nominally, it was, so far as the 
 two coincided, a revision of the code of procedure, with 
 such changes only as made that code conform to the 
 construction which had been given to it by the courts. 
 Practically, there is no doubt that it affected many and 
 great changes in the law of procedure. It resulted from 
 this change that the books on practice, in use when the 
 code of civil procedure was adopted, are almost obsolete 
 and of little assistance to the profession. There is now 
 no complete work on practice under the code of civil 
 procedure, and the want of such a work is very generally 
 felt. To supply that want is the object of this book. In 
 attempting to do so, I have not felt it to be my duty to 
 say what the law ought to be, but only, so far as it could 
 be gathered from the decided cases, to state what the 
 courts had said that it was. An effort has been made to 
 state fully, clearly, succinctly and with accuracy, what 
 the courts had decided upon that portion of the law of 
 procedure contained in this book, at the time it was 
 written. If that has been done, my aim has been accom- 
 plished. I hope that it may be a substantial help to my 
 brethren of the profession ; may lighten their labor, the 
 weight of which I know ; and may tend to settle the law 
 
PREFACE. V 
 
 of practice. If I have succeeded in doing these things 
 I shall be satisfied. 
 
 In the arrangement of topics, the code of civil pro- 
 cedure has been followed as closely as was consistent 
 with convenience. Only such departures have been made 
 from the arrangement adopted in that statute, as would 
 enable the practitioner to follow, step by step in the 
 book, the usual proceedings of a law suit, in the order 
 in which they were most likely to occur. 
 
 Every effort has been made,- consistent with accuracy, 
 to make the book as brief as possible. To this end, while 
 all the cases in this state have been examined, by no 
 means all have been cited. If a principle had been 
 decided by the court of appeals, it was not thought 
 necessary to cite decisions of subordinate courts to 
 establish the same thing, and such decisions have not 
 been cited, except in a few cases where they explained 
 the case decided by the higher court. If a principle has 
 not been disputed, one or two leading cases were thought 
 to establish it sufficiently. If any principle had been 
 decided by special terms only, several cases have been 
 cited to it if they exist, especially where they were 
 decided by different courts. Where, after dispute, a 
 principle seems to be laid down finally, the case thus 
 deciding it has been cited, the fact of dispute being 
 stated or not, according to the importance of the ques- 
 tion. No attempt has been made to cite the decisions of 
 inferior courts of limited jurisdiction; neither has it 
 been thought necessary to cite many cases from the 
 reports of other states; a well considered dictum by a 
 court of this state being regarded as of equal authority 
 here with a decision of a court of some other jurisdiction. 
 By adhering to these rules, the number of citations has 
 been considerably diminished. Yet over three thousand 
 cases have been cited in this one volume, and it is 
 believed that the practitioner will find ample authority 
 in the volume for the propositions stated in it. It has 
 been decided to omit any forms, although that course is 
 a departure from the usual custom. But there are so 
 recent, and so good books of forms, that I thought the 
 
Vl PREFACE. 
 
 space which would be taken up by them in this work 
 might be more usefully filled. 
 
 In some cases recent decisions, made after the book 
 was printed, have changed the rule laid down in it. As 
 an instance of this may be cited the case of Smith v. 
 Laird (44 Hun, 530), which holds that the defendant 
 cannot, on amending as of course, substitute an answer 
 for a demurrer, and thus overrules the case of Carpenter 
 V. Adams (34 Hun. 429), cited to the contrary proposi- 
 tion on page 282. But such cases are few, and, in several 
 of them, as in the one cited, I venture to suggest that 
 the old rule may be the correct one. 
 
 The sections of the code have been cited at length, 
 because where it speaks, the code is the rule, and it was 
 thought safer to use the precise \\'ords, than to run the 
 risk of misleading by an attempt to paraphrase them. 
 One or two of the sections have been printed more than 
 once, where they refer to matters which were treated of 
 in different parts of the book. This was done, although 
 it involved a repetition, to avoid confusion, or a clumsy 
 reference from one place to another. 
 
 The work will be completed in two more volumes. The 
 second will complete the account of the progress of a 
 civil action, and the third will treat of special actions, 
 and will contain a complete index of the whole work. 
 
 I have been much assisted in the preparation of the 
 work by H. A. Corell, Esq., who prepared the chapters 
 on the complaint, on arrest and bail, and on receivers, 
 and the table of cases. 
 
 W. R. 
 
 Bath, Nov., 1887. 
 
TABLE OF CONTENTS. 
 
 CHAPTER I. 
 
 THE COURTS OF THE STATE OF NEW YORK. 
 
 Pagb. 
 
 Aeticle I. The Courts, their Judges and OfiSecrs 1 
 
 Sec. 1. The Rules, and how made 1 
 
 2. The Courts of Record 3 
 
 3. When and how open 4 
 
 4. The Terms of the Courts, and their Appointment 6 
 
 The Court of Appeals 6 
 
 The Supreme Court 7 
 
 The City Court of the City of New York 10 
 
 The County Courts 10 
 
 The Court of Claims 11 
 
 Adjournments 11 
 
 5. Judges 12 
 
 6. The Clerks of the Courts 16 
 
 7. Sheriffs 20 
 
 8. Coroners 26 
 
 9. Elisors 29 
 
 10. Attorneys and Counselors 29 
 
 Abticle II. The Jurisdiction of the Courts 55 
 
 Sec. 1. Their Jurisdiction generally 55 
 
 2. The Court of Appeals 60 
 
 3. The Supreme Court 63 
 
 4. Courts which have been abolished 68 
 
 5. The City Court of the City of New York 68 
 
 6. The County Courts 71 
 
 7. Power of Judges out of Court 77 
 
 CHAPTER II. 
 
 ACTIONS AND THE TIME OF COMMENCING THEM. 
 
 Abticle I. Of Actions 80 
 
 Article II. The Limitation of Actions 82 
 
 Sec. 1. Actions for the Recovery of Real Property 82 
 
Vlll TABLE OF CONTENTS. 
 
 PAGE. 
 
 Sec. 2. Actions other than for the Recovery of Real Property.. 90 
 
 Subd. 1. Within twenty Years 90 
 
 Subd. 2. Within six Years 93 
 
 Subd. 3. Within five Years 97 
 
 Subd. 4. Within three Years 97 
 
 Subd. 5. Within two Years 99 
 
 Subd. 6. Within one Year 100 
 
 Subd. 7. Within ten Years 101 
 
 Subd. 8. Actions by the People 102 
 
 3. Non-residence, or Absence from the State 103 
 
 4. What Prevents the Running of the Statute 105 
 
 5. What Actions are not Within the Statute Ill 
 
 6. Mode of Computing Time Ill 
 
 7. Defense and Counterclaim 114 
 
 8. What takes a Case out of the Statute 114 
 
 9. How Objections taken 117 
 
 10. Cases not within the General Statute 118 
 
 11. When Action deemed begun 118 
 
 CHAPTEE III. 
 
 LEAVE TO SUB. 
 
 Article I. Judgments 121 
 
 Article II. Mortgages 123 
 
 Article III. Official bonds '. 125 
 
 Article IV. Actions to Dissolve a. Corporation 128 
 
 Article V. Actions by and against Receivers 130 
 
 Sec. 1. Actions by Receivers 130 
 
 2. Actions against Receivers 131 
 
 Article VI. Actions by or against the Committee of Incompetent 
 
 Person 132 
 
 Article VII. Partition by an Infant 133 
 
 Article VIII. Leave to sue as a Poor Person 134 
 
 CHAPTEE IV. 
 
 THE PARTIES TO AN ACTION. 
 
 Article I. General Rules as to Parties 139 
 
 Article II. Agents and Principals 143 
 
 Article III. Assignees 144 
 
 Article IV. Unincorporated Associations 145 
 
 Article V. Corporations, Directors and Stockholders 147 
 
 Article VI. Estates of Deceased Persons 149 
 
 Article VII. Public Officers 152 
 
 Article VIII. Trustees of an Express Trust.. 157 
 
 Article IX. Where one may sue or be sued for all 159 
 
 Article X. Joint and Several Parties 161 
 
 Article XI. Proceedings against Defendants Severally Liable. . . . 164 
 
tABLE OF CONTENTS. IX 
 
 Page. 
 
 Article XII. Parties in Actions respecting Real Estate 166 
 
 Sec. 1. Actions of Ejectment 166 
 
 2. Actions for Partition 170 
 
 3. Actions for Dower 174 
 
 4. Actions to foreclose Mortgage 175 
 
 5. Actions to compel Determination of Claim to Eeai 
 
 Property : 178 
 
 6. Actions for Waste 179 
 
 7. Actions for Nuisance 180 
 
 Article XIII. Where the Defendant or his Name is unknown. ... 181 
 
 Article XIV. Infant Plaintiffs and Defendants 182 
 
 CHAPTER V. 
 
 COMMENCEMENT OF THE ACTION. 
 
 Article I. The Summons 189 
 
 Sec. 1. When Jurisdiction is acquired 189 
 
 2. Contents of the Summons 190 
 
 3. Service of Complaint, or Notice, with the Summons. . . . 193 
 
 Subd. 1. Actions on Contract 193 
 
 Subd. 2. Actions for a Penalty and Forfeiture 195 
 
 Subd. 3. Notice of no Personal Claim 197 
 
 Article II. Personal Service of the Summons 197 
 
 Sec. 1. By whom made . . ; 197 
 
 2. How made upon a Natural Person . 198 
 
 Subds. 1, 2. Upon an Infant or Incompetent Person. . 198 
 
 Subd. 3. On the Sheriff 199 
 
 Subd. 4. On other Persons 200 
 
 3. Service on a Domestic Corporation 205 
 
 4. On a Foreign Corporation 207 
 
 5. Service of Process to commence Special Proceedings 211 
 
 6. Proof of Personal Service 211 
 
 Subd. 1. Sheriff's Certificate of Service 211 
 
 Subd. 2. Affidavits of service 212 
 
 Subd. 3. Admission of service 213 
 
 Article III. Service other than Personal 214 
 
 Sec. 1. Siibstituted Service 214 
 
 2. Service by Publication 217 
 
 Subd. 1. When it may be made 217 
 
 Subd. 2. What must be shown to obtain the Order. ... 219 
 
 Subd. 3. Order, by whom made and what to contain . . 223 
 
 Subd. 4. Piling papers. Notice 225 
 
 Subd. 5. Publication and Service 227 
 
 Subd. 6. Proof of Service 228 
 
 Subd. 7. When Defendant allowed to defend 228 
 
 Article IV. General Appearance 230 
 
 Sec. 1. How and when made 230 
 
 2. Effect of General Appearance 231 
 
X TABLE OF CONTENTS. 
 
 Page. 
 
 Sec. 3. When the Defendant may appear 234 
 
 4. When the Defendant must answer 235 
 
 CHAPTER VI. 
 
 NOTICE OF PENDENCY OF ACTION. 
 
 Article 1. When to be filed by Plaintiff 237 
 
 Article II. Contents of the Notice 240 
 
 Article III. Kecording 240 
 
 Article IV. When filed by the Defendant 240 
 
 Article V. Efi'ect of Notice 241 
 
 Artice VI. Amendments and Cancellation 242 
 
 Sec. 1. Amendment 242 
 
 2. Cancellation 243 
 
 CHAPTER VII. 
 
 MOTIONS AND ORDEES. 
 
 Article I. Motions 245 
 
 Sec. 1. Motions defined 245 
 
 2. When and where made 246 
 
 3. Motion Papers, how prepared 250 
 
 Article II. Affidavits and Petitions 252 
 
 Sec. 1. Form and Contents of Affidavit 252 
 
 2. Special Requirements in certain Affidavits 256 
 
 3. Before whom Affidavits may be taken 258 
 
 Subd. 1. Within the State 258 
 
 • Subd. 2. Without the State to be used within it 259 
 
 4. Petitions 260 
 
 5. Depositions to be used on Motion 260 
 
 6. Opposing Affidavits 263 
 
 7. Replying Affidavits 263 
 
 Article III. Notice of Motion 263 
 
 Article IV. Orders to show cause 265 
 
 Article V. Stay of Proceedings 266 
 
 Article VI. Practice after the Notice 268 
 
 Sec. 1. Countermanding 268 
 
 2. Hearing 269 
 
 3. New Proofs , 269 
 
 4. Default 270 
 
 5. Re-hearing 271 
 
 Subd. 1. Renewal of Contested Motions 271 
 
 Subd. 2. Renewal of ex parte Applications 272 
 
 6. Re-argument : 273 
 
 Article VII. Orders 274 
 
 Sec. 1. What are Orders 274 
 
 2. How Drawn 274 
 
 3. Form and Contents 275 
 
 4. Filing and Entering 277 
 
TABLE OF CONTENTS. Xl 
 
 Page. 
 
 Sec. 5. When the Order takes Effect 278 
 
 6. Notice of Entry and Service 279 
 
 7. Conditions 279 
 
 8. Vacating and Modifying 280 
 
 Aeticle VIII. Costs of Motion 281 
 
 CHAPTER VIII. 
 
 MISCELLANEOUS PRACTICE REGULATIONS. 
 
 Article I. Notices and Papers 283 
 
 Article II. Service and Filing of Papers 285 
 
 Sec. 1. On whom Service to be made 285 
 
 2. Mode of Service 286 
 
 3. Proof of Service 289 
 
 4. Filing Papers 290 
 
 Article III. Regulations respecting Time 292 
 
 Sec. 1. When Service must be made 292 
 
 2. How Time computed 292 
 
 3. Extension of Time 294 
 
 Article IV. Bonds and Undertakings 297 
 
 Article V. Consolidation of Actions 304 
 
 Article VI. Interpleader 308 
 
 Article VII. Dismissal for Neglect to Proceed 314 
 
 Sec. 1. For Failure to serve the Summons 314 
 
 2. For unreasonable Neglect to Proceed 314 
 
 Article VIII. Publication and Notice 317 
 
 CHAPTER IX. 
 
 GENERAL REGULATIONS IN REGARD TO PLEADING. 
 
 Article I. General Rules of Pleading 318 
 
 Sec. 1. Form 318 
 
 2. What to be Stated 320 
 
 3. What Pacts to be Pleaded 322 
 
 4. How Facts to be Pleaded 323 
 
 Sut>d. 1. Certainty 323 
 
 Subd. 2. Time 324 
 
 Subd. 3. Place 325 
 
 Subd. 4. Positiveness 325 
 
 5. Exceptions to the General Rules 326 
 
 Subd. 1. Private Statutes 326 
 
 Subd. 2. Account 326 
 
 Subd. 3. Judgments 327 
 
 Subd. 4. Conditions Precedent 328 
 
 Subd. 5. Instruments for the Payment of Money only. 329 
 
 Subd. 6. Slander and Libel 330 
 
 Article II. Formal Rules concerning Pleadings 331 
 
 Sec. 1. How to be Written and Endorsed 331 
 
 2. Statement of Facts 331 
 
Xii TABLE OF CONTENTS. 
 
 Page. 
 
 Sec. 3. Subscription 333 
 
 4. Service and Filing 333 
 
 Subd. 1. Service generally 333 
 
 Subd. 2. Service on Co-defendant 334 
 
 Article III. Verification of Pleadings 335 
 
 Sec. 1. Wlien required 335 
 
 2. When omitted 337 
 
 3. By w'hom made 339 
 
 Subd. 1. By a Party 339 
 
 Subd. 2. Where Party is a Domestic Corporation ... 339 
 Subd. 3. When the People or a Public Officer are a 
 
 Party 340 
 
 Subd. 4. When Verification may be made by Agent or 
 
 Attorney 340 
 
 4. Form of Verification 342 
 
 5. Remedy for Defective Verification 345 
 
 Article IV. Construction of Pleadings 346 
 
 Sec. 1. Rules of Construction 346 
 
 2. What deemed admitted 349 
 
 Article V. Copy of Account 351 
 
 Article VI. Bill of Particulars 353 
 
 See. 1. In Vfhat cases granted 353 
 
 2. Application for the Order 355 
 
 3. The Order 357 
 
 4. What the Bill should contain 358 
 
 5. A further Bill 359 
 
 ■SfEffect ot. the Bill 359 
 
 7. Penalty for Disobedience 360 
 
 Article VII. Amendments of Pleadings 361 
 
 Sec. 1. Amendments of Course 361 
 
 2. Amendments by leave of the Court 364 
 
 Subd. 1. Before Trial 364 
 
 Subd. 2. At the Trial or Hearing 368 
 
 Subd. 3. After Trial 371 
 
 3. Supplemental Pleadings 372 
 
 4. Terms of Amendment .> 376 
 
 Article VIII. Frivolous Pleadings 379 
 
 Article IX. Sham Pleadings 381 
 
 Article X. Irrelevant, Redundant and Scandalous Matter 385 
 
 Article XI. Indefinite and Uncertain Allegations 388 
 
 CHAPTER X. 
 
 THE COMPLAINT. 
 
 Article I. What Complaint must contain 391 
 
 Sec. 1. In general 391 
 
 2. Caption, — Court and County 392 
 
 3. Caption, — ^Names of Parties 394 
 
TABLE OF CONTENTS. xiii 
 
 Page. 
 
 Abticle II. statement of Facts 396 
 
 Sec. 1. What Pacts to be stated 39(i 
 
 2. What should not be stated 398 
 
 3. How Facts to be stated 398 
 
 4. How Facts to be stated in Certain Cases 400 
 
 Article III. Joinder of Causes of Action 402 
 
 See. 1. What is a Single Cause of Action 402 
 
 2. What Causes of Action may be Joined 405 
 
 3. What Causes of Action may not be Joined 415 
 
 4. How Objection of Misjoinder Taken 417 
 
 Article IV. Demand of Judgment 417 
 
 Sec. I. For Final Judgment 417 
 
 2. Interlocutory and Final Judgment 421 
 
 Article V. Service of the Complaint 422 
 
 Sec. 1. When and how to be Served 422 
 
 2. Consequence of Failure to Serve 423 
 
 CHAPTER XI. 
 
 THE ANSWER. 
 
 Article I. When required 425 
 
 Article II. Form, and what to Contain 426 
 
 Sec. 1. Form 426 
 
 2. What to contain 426 
 
 Article III. Denials 428 
 
 Sec. 1. General Denials 428 
 
 2. Specific Denials 430 
 
 3. Denials except as Admitted 430 
 
 4. What is not a Denial 432 
 
 5. What may be Proved under a General Denial 432 
 
 Article IV. New Matter .^. . 434 
 
 Sec. 1. What it is 434 
 
 2. Defenses 436 
 
 3. Partial Defenses 437 
 
 Article V. Counterclaim 439 
 
 Sec. 1. What it is 439 
 
 2. Rules for the Allowance of Counterclaims. 449 
 
 Subd. 1. Against Assignees of Contracts 449 
 
 Subd. 2. Against Transferee of past due Note 451 
 
 Subd. 3. Where a Party sues or defends in a Repre- 
 sentative Capacity 451 
 
 Subd. 4. In Actions for Divorce or Separation 453 
 
 Subd. 5. In Actions by the People 453 
 
 3. When should be Pleaded 453 
 
 Subd. 1. When to be Pleaded 453 
 
 Subd. 2. How Pleaded 454 
 
 Subd. 3. Effect of Pleading Counterclaim 455 
 
 4. Judgments on the Counterclaim 455 
 
 Article VI. Demand of Relief 456 
 
XlV TABLE OF CONTKNTS. 
 
 CHAPTEK XII. 
 
 THE REPLY. 
 
 PAGB. 
 
 Article I. When to be Served 457 
 
 Article II. What to Contain 459 
 
 Article III. Judgment on Failure to Reply 460 
 
 CHAPTER XIII. 
 
 DEMURRER. 
 
 Article I. When it lies 462 
 
 Article II. Form and Effect of the Demurrer 465 
 
 See. 1. Form 465 
 
 2. When Joined with Answer 467 
 
 3. Effect 467 
 
 Article III. Grounds of Demurrer to the Complaint 468 
 
 Sec. 1. That the Court has no Jurisdiction 468 
 
 2. That the Plaintiff has not Capacity to sue 469 
 
 3. Another Action pending 469 
 
 4. Misjoinder of Parties Plaintiff 470 
 
 5. Defect of Parties 471 
 
 6. Misjoinder of Causes of Action 472 
 
 7. No Cause of Action 474 
 
 Article IV. Grounds of Demurrer to Pleadings after Complaint. . 476 
 
 Sec. 1. To the Ansyver 476 
 
 2. To the Counterclaim 477 
 
 3. To the Reply 478 
 
 Article V. Amendments after Demurrer 479 
 
 Article VI. When Objection taken by Answer 481 
 
 Article VII. When Objection is Waived 481 
 
 CHAPTER XIV. 
 
 ARREST AXD BAIL. 
 
 Article I. Cases where Order of Arrest may be Granted 482 
 
 Sec. 1. Where Right depends on Nature of Action 482 
 
 2. Where Right depends partly upon Extrinsic Facts 495' 
 
 Article II. Persons Liable to Arrest 498 
 
 Sec. 1. Who may be Arrested 498 
 
 2. Who are Privileged from Arrest 499 
 
 Article III. Order of Arrest 505 
 
 Sec. 1. Papers Necessary to obtain the Order 505 
 
 Subd. 1. The Afhdavit 505 
 
 Subd. 2. The Undertaking 509 
 
 2. When and by Whom granted 511 
 
 3. Contents of the Order 514 
 
TABLE OF CONTENTS. XV 
 
 Page. 
 See. 4. How order Vacated or Modified 515 
 
 Subd. 1. Time within wliich Defendant may apply.. 515 
 
 Subd. 2. How Application is made 517 
 
 Subd. 3. Where Defendant may apply 520 
 
 Subd. 4. Stipulation not to Sue 521 
 
 Subd. 5. Supersedeas 521 
 
 Article IV. Arrest, when and how made 524 
 
 Article V. Discharge on Bail or Deposit 525 
 
 Sec. 1. W'hen Defendant May be Discharged 525 
 
 2. Defendant's Undertaking, and Justification 526 
 
 3. Deposit 529 
 
 4. Liability of Sheriff 531 
 
 Article VI. Charging and Discharging Bail 532 
 
 See. 1. When and how Defendant surrendered 532 
 
 2. Rights and Liabilities of Bail 534 
 
 3. Defenses in Actions against Bail 536 
 
 CHAPTER XY. 
 
 INJUNCTIONS. 
 
 Article I. Deflnition and'Nature 539 
 
 Sec. 1. Definition 539 
 
 2. Nature and Object of the Remedy 540 
 
 Article II. When Injunction will be granted 541 
 
 See. 1. General Principles 541 
 
 2. Where Right depends upon Nature of the Action 544 
 
 3. Where Eight depends upon Extrinsic Facts 546 
 
 4. Various Cases in which it will be Granted 547 
 
 Subd. 1. Contracts ".548 
 
 Subd. 2. Copyright 548 
 
 Subd. 3. Corporations 549 
 
 Subd. 4. Covenants 554 
 
 Subd. 5. Easements 555 
 
 Subd. 6. Franchises 556 
 
 Subd. 7. Highways 557 
 
 Subd. 8. Judicial Proceedings 558 
 
 Subd. 9. Nuisances 564 
 
 Subd. 10. Oifice and Official Acts 566 
 
 Subd. 11. Personal Services 570 
 
 Subd. 12. Publications 571 
 
 Subd. 13. Patents 572 
 
 Subd. 14. Taxes and Assessments 572 
 
 Subd. 15. Trade Marks ." 573 
 
 Subd. 16. Trespasses 576 
 
 Svthd. 17. Torts 577 
 
 Subd. 18. Waste 578 
 
 Subd. 19. Water Rights 579 
 
XVl TAiiLE OF CONTENTS. 
 
 Page. 
 
 Article III. Proceedings to Obtain the Order 581 
 
 Sec. 1. Wlien Application may be made 581 
 
 2. By whom granted 581 
 
 Subd. 1. General Rule 581 
 
 Subd. 2. Against State Officers 583 
 
 3. Notice of Application 583 
 
 4. Papers on which Granted 585 
 
 5. When an Injunction may be granted to Defendant 587 
 
 6. Filing Papers 587 
 
 Article IV. The Order 588 
 
 Sec. 1. Contents of the Order 588 
 
 2. Service 589 
 
 3. Effect of the Order 590 
 
 4. Violation of the Order 591 
 
 5. Punishment for Violation 592 
 
 Article V. Security 593 
 
 Sec. 1. On staying Proceedings in an Action 593 
 
 2. Security in other Cases 597 
 
 3. Security in special Cases 598 
 
 4. New Undertaking on Motion to Vacate 598 
 
 Article VI. Damages Sustained by the Injunction 599 
 
 Sec. 1. Liability 599 
 
 2. When the right Accrues 600 
 
 3. How the Damages are Ascertained 601 
 
 4. What Damages allowed 603 
 
 5. Action on the Undertaking 605 
 
 Aeticle VII. Vacating or Modifying the Order 606 
 
 Sec. 1. Without Notice 606 
 
 2. Upon Notice 607 
 
 3. Vacating Injunction upon Undertaking by Defendant. . . . 610 
 Article VIII. Effect of subsequent Proceedings in the Action. . . 611 
 
 CHAPTER XVI. 
 
 ATTACHMENT. 
 
 Article I. When and by Whom it may be granted 612 
 
 Sec. 1. Who may Sue out an Attachment 612 
 
 2. In what Actions it may be granted 613 
 
 3. Against whom it may be Granted 618 
 
 Subd. 1. Against a Non-resident 618 
 
 Subd. 2. Against n Foreign Corporation 619 
 
 Subd. 3. Against Absconding or Concealed Debtors.. 619 
 Subd. 4. Against one Removing, Assigning, or Secret- 
 ing Property 621 
 
 Subd. 5. Against one Making False Statement in 
 
 Writing as to His Financial Responsibility 623 
 
 Subd. 6. Against an Adult Resident, Continuously 
 
 Without the State for More than Six Months, etc . . 624 
 Subd. 7. Against Public Officers 625 
 
TABLE OF CONTENTS. XVil 
 
 Page. 
 
 Sec. 4. When an Attachment will be Granted 626 
 
 5. By whom Granted 629 
 
 Aeticle II. Papers on which it may be Granted 630 
 
 S^e. 1. The Affidavit 630 
 
 2. Security on Obtaining Warrant 640 
 
 3. Contents of the Warrant 642 
 
 Akticle III. Execution of the Warrant 644 
 
 Sec. 1. By whom, and 'how made 644 
 
 2. What Property may be Attached 646 
 
 Subd. 1. Real Property. 646 
 
 Subd. 2. Personal Property 646 
 
 :3. How Property to be Attached .• 650 
 
 Subd. 1. Real Property 650 
 
 Subd. 2. Personal Property capable of Manual Deliv- 
 ery 651 
 
 Subd. 3. Other Personal Property 652 
 
 Subd. 4. Upon Property Discovered in an Action 
 
 under Subdivision 2 of Section 655 655 
 
 Subd. 5. Effect of the Attachment 655 
 
 Subd. 6. Certificate and Examination 657 
 
 4. Eights of Master or Owner of Vessel 660 
 
 5. Inventory 660 
 
 6. Action by Sheriff and Attaching Creditor 661 
 
 7. Care of the Property 666 
 
 8. Claim of Property 668 
 
 9. Proceedings on Claim of Vessel 670 
 
 Aeticle IV. Vacating and Modifying Warrant 673 
 
 Sec. 1. Who may move and when 673 
 
 2. How Motion may be made 676 
 
 3. New Proof 678 
 
 4. When more than one Motion Allowed 680 
 
 5. Grounds upon which the Attachment will be Vacated. . 681 
 
 6. Effect of Vacating the Attachment 682 
 
 7. Application for Discharge of Property 683 
 
 Subd. 1. Who may make it 683 
 
 Subd. 2. Undertaking 684 
 
 Subd. 3. Discharge of Vessel under the Attachment.. 686 
 Subd. 4. Application by Partners to Discharge At- 
 tachment 687 
 
 Article V. Regulations where there are two or more Warrants 
 
 against the same Defendant 688 
 
 Sec. 1. Levy under a Junior Warrant 688 
 
 " 2. Attachment of Foreign Vessel under Junior Warrant . . . 689 
 
 3. Eights of Junior Plaintiff as to Actions 690 
 
 4. Rights of Third and other Attaching Creditors 690 
 
 Article VI. Proceedings after Judgment 691 
 
 Sec. 1. Execution 691 
 
 2. Judgment, how enforced 692 
 
XVlll TABLE OF CONTENTS. 
 
 PAGE. 
 
 Article VII. Proceedings after .Warrant has Deen vacated, or 
 
 Attachment Discharged 694 
 
 CHAPTER XVII. 
 
 RECEIVERS, AND OTHER PROVISIONAL REMEDIES. 
 
 Article I. Receiver 697 
 
 Sec. 1. Who may be Receiver 697 
 
 2. Double Receiver . 699 
 
 3. Appointment' 701 
 
 Article II. When and in what cases Appointed 703 
 
 See. 1. Before final Judgment 703 
 
 Subd. 1. In what cases 703 
 
 Subd. 2. Application and notice 710 
 
 2. By or after final Judgment 711 
 
 Article III. Rights and Liabilities of Receivers 713 
 
 Sec. 1. Security 713 
 
 2. What passes to Receiver 7 14 
 
 3. Powers of Receiver 717 
 
 4. How controlled 721 
 
 5. Liabilities 722 
 
 6. Compensation 724 
 
 7. How discharged or removed 725 
 
 Article IV. Receivers of Corporations 727 
 
 Sec. 1. In w'hat cases Appointed 727 
 
 Subd. 1. Under the Code .'. 727 
 
 Subd. 2. Under special Statute 731 
 
 Subd. 3. Application, where made 734 
 
 Subd. 4. Who may be Receiver of a- Corporation 736 
 
 Subd. 5. Security 7,37 
 
 2. General Powers and Duties 738 
 
 3. Changing and discharging Receivers 747 
 
 4. Commissions 749 
 
 Article V. Deposit, Delivery or Conveyance 751 
 
 Article VI. General Provisions 752 
 
 Sec. 1. Electing between provisional Remedies 752 
 
 2. Time for deciding Motions, limited •. 752 
 
 3. Defendant's Right to provisional Remedies 753 
 
 CHAPTER XYIII. 
 
 TENDERS AND OTHER OFFERS. 
 
 Article I. Tender after Suit 754 
 
 Sec. 1. When it may be made 754 
 
 2. How to be made 755 
 
 3. Effect of Tender 758 
 
 4. When to be deducted from Recovery 759 
 
TABLE OF CONTENTS. xix 
 
 Page. 
 
 Sec. 5. Payment into Court 760 
 
 6. Care and Disposition of Money paid into Court 672 
 
 Article II. Satisfaction of Part of Plaintiff's Claim 764 
 
 Article III. Offer to liquidate Damages 767 
 
 Sec. 1. When it may be made 767 
 
 2. Effect of Acceptance or Refusal 767 
 
 Article IV. Offer to compromise 768 
 
 Sec. 1. When made by Defendant 768 
 
 2. ^Vhen made by Plaintiff 772 
 
 3. Acceptance 772 
 
 4. Effect of Refusal 773 
 
 CHAPTER XIX. 
 
 MISTAKES. OMISSIONS AND lEEEGDLARITIES. 
 
 Article I. Amendments 776 
 
 Sec. 1. What may be amended 776 
 
 Subd. 1. General Principles 776 
 
 Subd. 2. Amendment of Sximmons 779 
 
 Subd. 3. Processes other than Summons 781 
 
 Subd. 4. Judgments and Judgment rolls 782 
 
 Subd. 5. Amendments of Miscellaneous Proceedings . . 787 
 
 Acknowledgments 787 
 
 Affidavits . ." 787 
 
 Attachment 788 
 
 Bonds and Undertakings 788 
 
 Cases 790 
 
 Commissions 791 
 
 Notices of Appeal 791 
 
 Orders 791 
 
 Petitions 792 
 
 Remittiturs 792 
 
 Returns , 792 
 
 Sheriff's Certificates and Deeds 792 
 
 Verdicts 793. 
 
 2. Application for Amendment 794 
 
 3. Mode of Amendment 794 
 
 4. Effect of Amendment 795 
 
 Articlk II. Relief against Omissions and Mistakes 796 
 
 Article III. Irregularities 798 
 
 Sec. 1 . What are Irregularities 798 
 
 2. Who may take Advantage of Irregularity 800 
 
 3. Remedy for Irregularity 801 
 
 4. Waiver of Irregularities 804 
 
 Article IV. Defects cured by Verdict or Judgment 805 
 
XX TABLE OF CONTENTS. 
 
 CHAPTER XX. 
 
 ABATEMENT AND REVIVAL. 
 
 PAGE. 
 
 Article I. When Actions Abate 807 
 
 Sec. 1. General Rule 807 
 
 2. Rules Applicable to particular Actions 809 
 
 Subd. 1. Wliat does not abate 809 
 
 Subd. 2. What actions do abate 812 
 
 Article II. Continuance upon death of Party 814 
 
 Sec. 1. When sole Party dies 814 
 
 2. Where one of several Parties dies 819 
 
 Subd. 1. If the entire Cause of Action survives.... 819 
 
 Subd. 2. If Part of the Cause of Action survives. . . . 821 
 
 Subd. 3. In other Cases 821 
 
 Article III. Transfer of Interest, or Devolution of Liability.... 822 
 
 Sec. 1. Actions in General 822 
 
 2. Actions by and against Public Officers 824 
 
 3. Special Cases 825 
 
 Article IV. How new Parties brought in 827 
 
 Article V. When Court may order Action abated 82.) 
 
 Article VI. EiTect of Verdict, Report or Decision 829 
 
 Sec. 1. Death of Party after Verdict, etc. 829 
 
 2. No Verdict to be taken after Party's death 831 
 
 CHAPTER XXI. 
 
 DISCOVERY OF BOOKS AND PAPERS. 
 
 Article I. When ordered 832 
 
 Sec. 1. What Courts may make Order 832 
 
 2. When granted fi "2 
 
 Subd. 1. Rules applicable to all Cases 832 
 
 Subd. 2. Before Issue 837 
 
 Subd. 3. After Issue ■. 840 
 
 Article II. Petition and Order 842 
 
 See. 1. What Petition shall contain 842 
 
 2. Order to show Cause 845 
 
 3. Order for Discovery, what to contain 845 
 
 4. When Order may be Vacated 846 
 
 5. Proceedings on Return of the Order 847 
 
 6. Proceedings under the Order 848 
 
 7. Effect of Papers, etc.. Produced 849 
 
 8. Penalty for Disobedience 849 
 
TABLE OF CASES. 
 
 A. 
 
 Aaron v. Lee 191 
 
 Abbet V. Blohm 43, 232 
 
 Abbott V. Am. Hard Rub. Co. 549 
 
 Abbott V. Curran 192 
 
 Abbott V. Jewett 780 
 
 Abbott V. Meinken 370 
 
 Abeel v. Conhyser 235 
 
 Abeel v. Van Gelder 169 
 
 Abell V. N. Y., L. E. & W. R. 
 
 R. Co 591 
 
 Abrams v. Levine 633 
 
 Acker v. Jackson 636, 639 
 
 Acker v. Leland 393 
 
 Aekerman v. Ackerman 51 
 
 Ackroyd v. Ackroyd 279 
 
 Adams v. Bissell 412 
 
 Adams v. Bowe 23 
 
 Adams v. Fassett 109 
 
 Adams v. Gilbert 43 
 
 Adams v. Green 151 
 
 Adams v. Henry 189 
 
 Adams v. McPartlin 381 
 
 Adams v. Nellis 43 
 
 Adams v. Olin Ill, 112, 116 
 
 Adams v. Roberts 458, 461 
 
 Adams v. Sherrill 328 
 
 Adams v. Speelman 652 
 
 Adams v. Supervisors 70 
 
 Adrianee v. Lagrave 504 
 
 Adriance v. Sanders 837 
 
 Agate V. Lowenbein 555 
 
 Agt. State Prison v. Rikeman 157 
 
 Ahoyke v. Walcott 849 
 
 Aikins v. Colton 760, 761 
 
 Akin V. Alb. & Northern R. R. 
 
 Co 190 
 
 Alamango v. Superv's Albany 
 
 Co 349 
 
 Albany & N. R. R. Co. v. 
 
 Brownell 569 
 
 Albany Brass etc. Co. v. Hoif- 
 
 man 840 
 
 Albany City Ins. Co. v. Van 
 
 Vranken •. 719 
 
 Albany City Sav. Bank v. 
 
 Burdick 334 
 
 Albany Co. Bk. v. Rider 383 
 
 Albert Palmer Co. v. Shaw. . 362 
 
 Aldrich v. Reynolds 603 
 
 Alexander v. Bennett 66 
 
 Alexander v. Myers 135, 136 
 
 Alford V. Berkele 711 
 
 Alford V. Cobb 616, 636 
 
 Allaire v. Kalfon 511 
 
 Allen V. Addingtons 793 
 
 Allen V. Allen 396 
 
 Allen V. Brown 145 
 
 Allen V. Fosgate 163 
 
 Allen V. Fowler & Wells Co . . 794 
 
 Allen V. Godfrey 5, 800 
 
 Allen V. Herschorn 623 
 
 Allen V. Hyde 496 
 
 Allen V. Malcolm 218, 219 
 
 Allen V. Meyer 261, 614, 639 
 
 Allen V. Mille 114 
 
 Allen V. N. J. South. R. R. Co 148 
 Allen V. Patterson. .319, 321, 397 
 
 Allen V. Stone 43 
 
 Allen V. Webster 115 
 
 Allen V. Wharton 201 
 
 Allentown F. & JI. Works v. 
 
 Loretz 559 
 
 Alliance Ins. Co. v. Cleveland 491 
 Allis V. Leonard 431 
 
XXll 
 
 TABLE OF CASES. 
 
 Almy V. Tlmrber 657, 
 
 Altman v. Hofeller 
 
 Am. Distrib. Co. v. Distilling, 
 
 etc. Co 
 
 Am. D. & I. Co. V. Staley.454, 
 Am. Grocery Co. v. Flint. . . . 
 Am. Insulator Co. v. B. & M. 
 
 Tel. Co 
 
 Am. Ins. Co. v. Oakley 
 
 American U. Tel. Co. v. Mid- 
 
 dleton 58, 
 
 Amnion v. Kellar 
 
 Amoskeag Manufacturing Co. 
 
 V. Spear 573, 
 
 Amsinck v. Nortlirup 
 
 Anderson v. Doty 337, 542, 
 
 Anderson v. Hill 
 
 Anderson v. Hitchcock 
 
 Anderson v. Roberts 
 
 Anderson v. Sibley 
 
 Anderson v. Spears 
 
 Anderson v. Treadwell 
 
 Anderton v. Wolf 471, 
 
 Andrews v. Artisans' Bank . . 
 
 Andrews v. Astor Bk 
 
 Andrews v. Cleveland 
 
 Andrews v. Harrington 
 
 Andrews v. Schofield 
 
 Androvette v. Bowne 
 
 Annin v. Wren 
 
 Annis v. Upton 
 
 Anon 40, 264, 287, 288, 
 
 Anonymous 23, 135, 
 
 Anonymous (Eoebling v. Dun- 
 can) 
 
 Ansley v. Patterson 
 
 Ansorge v. Kaiser . . ■ 
 
 Anthony v. Day 
 
 Anthony v. Fox 
 
 Anthony v. Stype 
 
 Anthony v. Wood 
 
 649, 656, 604, 
 
 Appleby v. Robinson 
 
 Appleton V. Casey 
 
 Apollinaris Co. v. Venable .... 
 
 Archer v. Knglish 
 
 Arctic F. I. Co. v. Hicks 
 
 665 Argall v. Bachrach 222 
 
 787 Argall v. Jacobs 458 
 
 Argotsinger v. Vines 458 
 
 659 Argus Co., Matter of 249 
 
 458 Armitage v. Hoyle 560 
 
 307 Armstrong v. Danahy 428 
 
 Armstrong v. Hall 414 
 
 340 Armstrong v. People 52 
 
 43 Armstrong v. Phillips 302, 385 
 
 Arnal v. Ralilff 316 
 
 518 Arnold v. 'Diiiion 437 
 
 507 Arnold v. Downing 91 
 
 Arnold v. Shapiro 495 
 
 574 Arrex v. Brodhead 24 
 
 192 Arrow S. S. Co. v. Bennett.. 359 
 
 578 Artaega v. Conner 527, 531 
 
 408 Arthur v. Brooks 477 
 
 125 Arthur v. Griswold 818 
 
 800 Arthur v. Homestead F. Ins. 
 
 110 Co 458 
 
 332 Ash V. Cook 817, 826 
 
 706 Astor v. Pelache 768 
 
 473 Atkins v. Saxton 647 
 
 448 Atkinson v. Manks 310, 311 
 
 329 A. & P. Tel. Co. v. B. & 0. 
 
 355 R. R. Co 201, 588, 590, 592 
 
 196 Atlantic Dock Co. v. Leavitt. 554 
 
 633 Attorney, Matter of 30, 31, 32 
 
 584 Attorney, Matter of H . . 33, 45, 47 
 
 58 Atty. Gen. v. Bk. of Columbia 698 
 
 456 Atty. Gen. v. Cohoes Co 563 
 
 420 Atty. Gen. v. Cont'l L. Ins. Co. 282 
 
 427 Atty. Gen. v. Guardian Mut. 
 
 L. Ins. Co 231, .552, 728, 736 
 
 495 Atty. Gen. v. Life & F. Ins. 
 
 56 Co 745, 740 
 
 459 Atty. Gen. v. Mayor, etc 553 
 
 302 Atty. Gen., Matter of 129 
 
 032 Atty. Gen. v. North America 
 
 022 L. Ins. Co 131,552,724 
 
 Attrill V. Rockaway 748 
 
 005 Auburn & Cato Plank Road 
 
 538 Co. V. Douglas 556 
 
 720 Auerbach v. D. L. & W. R. R. 
 
 600 Co 834 
 
 761 Aligner v. Mayor 615, 616 
 
 5 Augrich v. McOwen 590, 790 
 
TABLE OP CASES. 
 
 XXlll 
 
 August V. 4tli Nat. Bank 275 
 
 Aultman & Taylor Co. v. 
 
 Syme 293, 294 
 
 Austin V. Monroe 43 
 
 Averell v. Barber 272 
 
 Averill v. Williams 40 
 
 Avery v. Slack 19G 
 
 Avery v. Willis 74 
 
 Ayers v. O'Farrel 458 
 
 Ayres v. Covill 332 
 
 Ayres v. Lawrence .....' 
 
 464, 554, 567, 573 
 
 A3Tes V. Valentine 795 
 
 B. 
 
 Babbitt v. Crampton 833 
 
 Babcock v. Clark 78 
 
 Babcock v. Clarke 583 
 
 Babcock v. Kuntzsch . . . . 252, 787 
 
 Bach V. Pacific Mail S. S. Co.. 550 
 
 Bache v. Purcell 175 
 
 Bachmann v. Wagner 239 
 
 Bacon v. Cropsey 800 
 
 Bacon v. Frisbie 53 
 
 Bacon v. Kendall 494 
 
 Bacon v. Magee 261 
 
 Badger v. Benedict 412 
 
 Badger v.Gilroy. 251, 351, 352, 353 
 
 Baere v. Armstrong 641 
 
 Bagaley v. Vanderbilt 542 
 
 Bagg V. Robinson 545, 586 
 
 Bailey v. Belmont 701 
 
 Bailey v. Co. of Buchanan .... 755 
 
 Bailey v. Inglee 140 
 
 Bailey v. Murphy 49, 51 
 
 Bailey v. Prince 519 
 
 Bailey v. Warden 23 
 
 Bain v. Globe Ins. Co 205 
 
 Baird v. Sheehan 435 
 
 Baird v. Walker 113 
 
 Baker v. Bailey 427 
 
 Baker v. Brown 312 
 
 Baker v. Curtis 538 
 
 Baker v. Curtiss.315, 333, 423, 424 
 
 Baker v. Hunt 760 
 
 Baker v. Nussbaum 766 
 
 Baker v. Stephens 216 
 
 Baker v. Sutton 358 
 
 Baker v. Wales 200 
 
 Bakeman v. Pooler 756 
 
 Baldwin v. Eazler 725 
 
 Baldwin v. Latson 36 
 
 Baldwin v. Roberts 123 
 
 Balestier v. Metropolitan Nat. 
 
 Bank 751 
 
 Ball V. Evening Post Pub. Co . 
 
 354, 355 
 
 Ball V. Mandor 293 
 
 Ballard v. Fuller 519 
 
 Ballou V. Parsons 284, 350 
 
 Balson v. Meggatt 22 
 
 Baltimore & 0. R. R. Co. v. 
 
 Arthur 310, 312 
 
 Bamberger v. Kahn 510, 511 
 
 Bangs V. Duekinfield 729, 736 
 
 Bangs V. Selden 77, 248, 267 
 
 Bank Com'rs v. Bk. of Buffalo 41 
 Bank of Com. v. R. & W..R. R. 
 
 Co 209 
 
 Bank of Cumberland v. Soutli- 
 
 erland 761 
 
 Bank of Genesee v. Spencer . . 266 
 Bank of Geneva v. Reynolds. . 538 
 Bank of Havana v. Magee. . . . 396 
 Bank of Havana v. Moore .... 525 
 Bank of Kinderhook v. Gifford 779 
 Bank of Lowville v. Edwards 
 
 381, 391, 469 
 Bank of Mut. Redenip. v. Stur- 
 
 gis 657, 701 
 
 Bank of Ogdensburgh v. Ar- 
 nold 707 
 
 Bank of Rochester v. Emerson 778 
 
 Bank of V. S. v. Strong 306 
 
 Bank v. Suydam 52 
 
 Bank of Utica v. Mersereau . . 53 
 Banks v. Am. Tract Society. . 611 
 Bannerman v. Quackepbush . . 780 
 
 Bannister, Matter of 262 
 
 Banque Agrieole v. Ungureau 507 
 
 Banyer v. Empire 169 
 
 Baptist Soc. V. Tabernacle . . . 284 
 
 Barber v. Bennett 387 
 
 Barber v. Goodell 212 
 
 Barbour v. Boas 314 
 
XXIV 
 
 TABLE OP CASES. 
 
 Barclay v. Bi'own 795 
 
 Barclay v. Quicksilver Min. 
 
 Co 719 
 
 Bard v. Poole 177 
 
 Barhyte v. Hughes 443 
 
 Barker v. Burton 177 
 
 Barker v. Cassidy 113 
 
 Barker v. Cook 252, 525 
 
 Barkley, Matter of.. 248, 582, 607 
 Barkley v. N. Y. C, etc. R. Co. 44 
 Barkley v. Kens. & Saratoga 
 
 R. R. Co 351 
 
 Barkley v. Wilcox 580 
 
 Barnard v. Heydrick 
 
 188, 192, 224, 780, 791 
 
 Barnard v. Onderdonk 174 
 
 Barnes v. Blake 173 
 
 Barnes v. Gilmore 447 
 
 Barnes v. Henshaw 300 
 
 Barnes v. Mobile, etc., R. R. 
 
 Co 208 
 
 Barnes v. Ferine 396 
 
 Barnes v. Sraitli 416 
 
 Barnett v. Mej'er 366, 778, 779 
 
 Barnett v. Selling 489 
 
 Barnum, Matter of 244 
 
 Baron v. Biaren 628 
 
 Baron v. Cohen 42 
 
 Barr v. N. Y., L. E. & W. R. 
 
 R. Co 149 
 
 Barr v. Shaw 407 
 
 Barrett v. Am. T. & T. Co. 205, 206 
 
 Barrett, Matter of 59 
 
 Barrett v. Palmer 58 
 
 Barrett v. Third Ave. R. R. 
 
 Co 40 
 
 Barrington Appr't Ass'n v. 
 
 Watson 554 
 
 Barron v. Martense 179 
 
 Barron v. So. Brooklyn Saw 
 
 Mill Co 190, 628, 818 
 
 Barry v. Coville 53 
 
 Barry v. Fisher 650 
 
 Barry v. Mat. Life Ins. Co. 
 
 of N. Y 285, 559 
 
 Bartlett v. Judd 102 
 
 Bartlett v. Spicer 60 
 
 Barton v. Barton 778 
 
 Barton v. Fisk 604 
 
 Barton v. Griflfen 380, 431 
 
 Barton v. Hosner 151 
 
 Barton v. Speis 423 
 
 Bartow v. Sidway 352 
 
 Bass V. Comstock 464, 472 
 
 Bassett v. Leslie 310 
 
 Bate v. Fellowes 378 
 
 Bate v. McDowell 641 
 
 Bates V. Jaines 268 
 
 Bates V. N. Orleans R. R. Co. 208 
 
 Bates V. Plonsky 664 
 
 Bates V. Rosenkrans 348 
 
 Bates V. Salt Springs Nat. 
 
 Bank 377 
 
 Bathgate v. Haskin 
 
 113, 405, 442, 768, 774 
 
 Bathmann v. Bathmann 707 
 
 Batlett V. Halligan 21 
 
 Batterman v. Finn 590 
 
 Batterson, Matter of 34 
 
 Bauer v. Schevitcli 510 
 
 Baum, Matter of 30 
 
 Baumgarten, Matter of 76 
 
 Baum's Castorine Co. v. 
 
 Thomas 382, 455 
 
 Bayard v. Smith 323 
 
 Baylis v. Stimson 430 
 
 Baxter v. Drake 498 
 
 Baxter v. McDonnell 468 
 
 Baxter v. Mo. Kan. & T. R. 
 
 R. Co 659 
 
 Baxter v. Seaman 252 
 
 Beach v. Bay State Co 348 
 
 Beach v. Cooke 419 
 
 Beacom v. Rogers 201 
 
 Real V. Union Paper Box Co . . 380 
 
 Bean v. Tonnelle 256, 508 
 
 Bear v. Am. Rapid Tel. Co . . 472 
 
 Beards v. Wheeler 768, 769 
 
 Beardsley v. Root 41 
 
 Beardsley v. Stover 366 
 
 Bech V. Ruggles 306 
 
 Bechtle v. Man. Ry. Co 136 
 
 Beck V. Allison 365 
 
 Beck V. Stephani 310 
 
 Becker v. Boon 435, 758, 761 
 
 Becker v. Cherry Creek 247 
 
TABLE OF CASES. 
 
 XXV 
 
 Becker v. Hager 285, 584 
 
 Becker v. Howard 242 
 
 Becker v. Van Valkenburgh . . 
 
 84, 87, 88 
 
 Beckley v. Chaniberlin 339 
 
 Beekraan v. Cutler 200 
 
 Bedell v. Shaw 88, 89 
 
 Bedford v. Am. Alum. Co 549 
 
 Bedlow v.. Stillwell 379 
 
 Beebe v. Robert 143 
 
 Beers v. Chelsea Bank 748 
 
 Beers v. Hendriekson 40 
 
 Beers v. Shannon 395 
 
 Beitz V. Fuller 784 
 
 Belden v. Wilkinson 57 
 
 Bell V. Gittere 74 
 
 Bell V. Good 230 
 
 Bell V. Merrifield 418 
 
 Bell V. Tilden 143 
 
 Bell V. Vernooy 14 
 
 Bell V. Yates 434' 
 
 Bellamy v. Guhl 199, 784 
 
 Bellinger v. Gardiner 510, 790 
 
 Bell Telephone Co. v. Home 
 
 Tel. Co 795 
 
 Belmont v. Cornen. .... . .221, 222 
 
 Belmont v. Erie R'y Co 
 
 271, 272, 550, 732 
 
 Beman v. Todd 239, 243 
 
 Bender v. Sherwood 311, 766 
 
 Bender v. Terwilliger 173 
 
 Bendit v. Annesley 437 
 
 Benedict v. Arnoux 230 
 
 Benedict v. Benedict GOO 
 
 Benedict v. Guardian Tr. Co. 016 
 
 Benedict v. Seymour 332 
 
 Benedict, etc., Mf'g Co. v. 
 
 Thayer 24, 782 
 
 Benjamin v. E. J. & C. R. R. 
 
 Co 175 
 
 Bennett v. American Art Un. 548 
 
 Bennett v. Brown 042 
 
 Bennett v. Chapin 725 
 
 Bennett v. Complete Elec. 
 
 Cons. Co 655 
 
 Bennett v. Cook 105 
 
 Bennett v. Edwards 633 
 
 Bennett v. Gray 167 
 
 Bennett v. Leach 108 
 
 Bennett v. Leeds ilfg. Co . . . 429 
 
 Bennett v. Jiatthews 439 
 
 ilennett v. Mulry 298 
 
 Bennett v. Pratt 251 
 
 Bennett v. Whitney 305 
 
 Benninghoflf v. Os^vell 504 
 
 Bensel v. Lynch 531 
 
 Benson v. Sayre 238 
 
 Bentley v. Smith 394 
 
 Benton v. Sheldon 19 
 
 Berdan v. Greenwood 760 
 
 Berdell v. Berdell 107 
 
 Bergen v. Boerum 251 
 
 Bergen v. Wyckoff 181 
 
 Berks v. Hotchkiss 34 
 
 Bernard v. Morrison 467 
 
 Berney v. Brexel 348, 470 
 
 Berrian v. Methodist Soc . . . 206 
 
 Berrien v. Wright 108 
 
 Bertha Zinc, etc. Co. v. Clute 580 
 
 Berthold v. Wallaeh 6 
 
 Best V. Palmer 7S« 
 
 Best V. Vedder 813 
 
 Best V. Zeh 173 
 
 Bettis V. Goodwill 769 
 
 Betts V. Betts 780 
 
 Betzemann v. Brooks 026 
 
 Bewley v. Equitable Life Ins. 
 
 Co 307, 778, 794 
 
 Beyer v. Clark 135 
 
 Beyer v. Wilson 344 
 
 Bidwell V. Aslor Mut. Ins. Co. 397 
 
 Bien v. Ereund 450 
 
 Bierce v. Smith 798 
 
 Bigelow V. Bush 176 
 
 Bigelow V. The Whitehall 
 
 Mfg. Co 340 
 
 Bilas V. Butler 232 
 
 Bildersee v. Aden 083, 685 
 
 Billhofer v. Herbaeh 164 
 
 Billings V. Baker 363 
 
 Billings V. Carver 591 
 
 Bills V. Nat. Park Bk 656 
 
 Binney v. LeGal 770 
 
 Birdsall v. Fuller 12 
 
 Bird V. Hayden 59 
 
 Bird V. Lanphear 700 
 
TABLE OF CASES. 
 
 Bishop V. Sullivan 363 
 
 Bissell V. N. Y. C. & H. R. 
 
 R. R. Co 196, 264, 796 
 
 Black V. Rodger 682 
 
 Blackwell, Matter of 796 
 
 Blaisdell v. Raymond 338 
 
 Blake v. Bannes 389 
 
 Blake v. City of Brooklyn. . . 554 
 
 Blake v. Eldred 387 
 
 Blake v. Griswold 808 
 
 Blake v. Mich. So. R. R. Co. 306 
 
 Blakelee v. Buchanan 485 
 
 Blakemore v. Glamorganshire, 
 
 etc., Co 541 
 
 Blanc V. Blanc 375 
 
 Blanoliard v. Strait 191 
 
 Blank v. Hartshorn 332, 397 
 
 Blatchf ord v. Ross 550 
 
 Bleakley, Matter of 33, 41 
 
 Blewett V. Baker 756 
 
 Bliss V. Bliss 791 
 
 Bliss V. Molter 302, 685 
 
 Bliss V. Winters 334 
 
 Blodget V. Conklin 771 
 
 Bloete V. Simon 160 
 
 Bloodgood V. Ayres 580 
 
 Bloodgood V. Bruen 115, 117 
 
 Bloodgood V. Slaybaek. . .833, 835 
 Bloom V. Pond's Extract Co. 835 
 Bloomingdale v. Barnard . . . 562 
 
 Blossom V. Estes 615, 627 
 
 Bhimberg v. Linderaan 839 
 
 B. M. G. L. Co., Matter of . . . 75 
 Board of Education v. King. . 839 
 Board of Supervisors v. 
 
 Walter 100 
 
 Boardman v. Lake Shore & 
 
 M. S. R. R. Co 104 
 
 Bockover v. Harris 442 
 
 Bogardus v. N. Y. Life Ins. 
 
 Co 349, 467 
 
 Bogart V. Dart 616, 018, 620 
 
 Bogart V. Sweezy 62t, 628 
 
 Bogert V. Vermilya. 105 
 
 Bohanan v. Petersen 34 
 
 Boker v. Curtis 595 
 
 Bolles V. Duff 273. 274 
 
 Bolton V. Shriver 86 
 
 Bomberger v. Turner 428 
 
 Bomeisler v. Forster 558 
 
 Bonadoa v. Third Ave. R. Co. 136 
 
 Bond v. Smith 810, 821 
 
 Bondy v. Collier 510 
 
 Bonnell v. Griswold. 149, 349, 411 
 Bonnell v. R. W. & 0. R. R. 
 
 Co .' 814 
 
 Bonnell v. Wheeler 411 
 
 Bonynge v. Field 42 
 
 Bonyjige v. Waterbury 42 
 
 Bookhout, Matter of 68, 260 
 
 Boorman v. A. & P. R. R. Co. 835 
 
 Booth V. Clark 131, 719 
 
 Booth V. Kingslandj etc 213 
 
 Booth V. Smith 705 
 
 Borneman, Matter of.. 6, 34, 203 
 
 Borst V. Corey 94 
 
 Bort V. Snell 157 
 
 Boscher v. Roullier 682 
 
 Bosley v. N. M. Co 95 
 
 Bossert v. Poerschke .... 370, 372 
 Boston Loco. Wks. v. Wright 342 
 Boston Nat. Bk. v. Armour. . 264 
 Boston Silk & W. Mills v. 
 
 Eull 440 
 
 Bostwiek v. Dry Goods Bk . . . 464 
 
 Bostwick V. Elton 586 
 
 Bostwiek v. Menck 374 
 
 Boucieault v. Boucicault . 497, 513 
 
 Boughton V. Flint 112 
 
 Bourdon v. Martin 722 
 
 Bowdoin v. Coleman 371 
 
 Bowe V. Arnold 664 
 
 Bowe V. Wilkins 683 
 
 Bowen v. First Nat'l Bank . . 675 
 
 Bowen v. Stilwell 506 
 
 Bowers v. Durant 58, 707 
 
 Bowery Bank, In Re . 698, 699, 725 
 Bowery Sav. Bk. v. Malher. . . 312 
 
 Bowie V. Brahe 24 
 
 Bowles V. Van Home 316 
 
 Bowling Green Sav. Bk. v. 
 
 Todd 33, 34 
 
 Bowman v. Bowe 517 
 
 Bowman v. Earl 359 
 
 Bowman v. Gates 514 
 
 Bowman v. Sheldon. .2r)2, 386, 788 
 
TABLE OP CASES. 
 
 XXVll 
 
 Boyce v. Brown 320, 321 
 
 Boyd V. Murray ; . 706, 707 
 
 Boyd V. Vanderkemp 5, 781 
 
 Boyle V. City of Brooklyn 399 
 
 Boyle V. S. I. L. Co 305 
 
 Boyle V. Thurber 813 
 
 Boylen v. ilcAvoy 187 
 
 Boylston v. Wheeler 179 
 
 Boynton v. Squires 165 
 
 Bracken v. Atlantic Trust Co. 158 
 
 Brackett v. Griswold 813. 
 
 Bradbury v. Winterbottom . . 
 
 764, 766, 767 
 
 Bradley v. Aldrich 419 
 
 Bradley v. Fisher 32 
 
 Bradley v. Parker 682 
 
 Bradley v. Sheeliy 367 
 
 Bradner v. Holland 406, 473 
 
 Bradner, Matter of 297, 521 
 
 Bradstreet v. Bailey 847 
 
 Bradt v. Church 89, 168 
 
 Brady v. Brundage 501 
 
 Brady v. Waldron '. 579 
 
 Brady v. Weeks 565 
 
 Brainard v. Jones 163, 471 
 
 Brainerd v. White 238, 244 
 
 Brake, Matter of 280 
 
 Brandon v. Brandon 102 
 
 Brandon Mfg. Co. v. Pettin- 
 
 gill 190 
 
 Brandreth v. Lance 571 
 
 Branth v. Branth 51 
 
 Brash v. Wielarsky 640, 682 
 
 Bray v. Farwell 146 
 
 Bray v. Poillon 604 
 
 Brayton v. N. Y., L. E. & W. 
 
 E. E. Co 206 
 
 Breen v. Lennon 243 
 
 Brehm v. Mayor 109 
 
 Breiman v. Paasch 485 
 
 Brett V. First Universalist 
 
 Society 162 
 
 Bretz V. Mayor, etc 323 
 
 Breunich v. Weselman 436 
 
 Brewer v. Knapp 209 
 
 Brewer v. Temple 408 
 
 Brewer v. Tucker 675, 677 
 
 Brewster v. Hodges 547 
 
 Brewster v. Sackett 3,57 
 
 Brewster v. Stewart 305 
 
 Brewster, Matter of 30 
 
 Bridenbacker v. Hoard 146 
 
 Bridenbecker v. Mason 
 
 768, 770, 771, 800 
 
 Bridge v. P'ayson 436 
 
 Bridges v. Wyckoff 88 
 
 Brien v. Casey 212 
 
 Briggs V. Freedman 382 
 
 Briggs V. Gaunt 304 
 
 Briggs V. Partridge 143 
 
 Briggs V. Vick 571 
 
 Brinckerhoff v. Bostwick .... 
 
 56, 119, 160, 720 
 
 Brinkerhoflf v. Perry 389 
 
 Brittan v. Peabody 257, 258 
 
 Broadhead v. Broadhead 296 
 
 Brodie v. Cronley 589 
 
 Broiestedt v. South Side E. E. 
 
 of Long Island 527 
 
 Bronk v. Eiley 546 
 
 Brooke v. Foster 666 
 
 Brooklyn Trust Co. v. Bulmer 227 
 Brooks V. Hanchett. .247, 296, 387 
 
 Brooks V. Mortimer 772 
 
 Brooks V. N. Y. & Greenwood 
 
 L. E. E. Co 232 
 
 Brooks V. Patterson 39 
 
 Brooks V. Schultz 261 
 
 Broome v. Taylor 329 
 
 Broosington v. Eohrs 481 
 
 Brotherson v. Consalus 40 
 
 Brower v. Williams 544 
 
 Brown v. Aslibough 488 
 
 Brown v. Babcock." 152 
 
 Brown v. Beckmann 785 
 
 Brown v. Brown 150, 229 
 
 Brown v. Buckingham 446 
 
 Brown v. Cook 290 
 
 Brown v. Crabb 17p 
 
 Brown v. Delafleld 105 
 
 Brown v. Feeter 350 
 
 Bro\vB V. Ferguson .. 754, 755, 757 
 
 Brown v. Gallaudet 454 
 
 Brown v. Guthrie 665 
 
 Brown v. Haff 497 
 
 Brown v. Harman 323 
 
xxvm 
 
 TABLE OF CASES. 
 
 Brown v. Leigh 361 
 
 Brown v. Marrigold 213 
 
 Brown v. Mayor 47, 51 
 
 Brown v. McCune 500 
 
 Brown v. Mehols 43, 232, 706 
 
 Brown v. O'Brien 98 
 
 Brown v. Richardson .' 375 
 
 Brown v. Ryckman 321 
 
 Brown v. Saratoga K. R. Co. 480 
 
 Brown v. Story 137 
 
 Brown v. Traveller's Ins. Co. 42 
 
 Brown v. Volkening 178 
 
 Brownell v. Akin 497 
 
 Brownell v. Bk. Gloversville 
 
 388, 390, 839 
 
 Brownell v. Marsh 257 
 
 Browning v. Abrams 504 
 
 Brox V. Riber 244 
 
 Bruce v. D. & H. Canal Co. 544 
 
 Bruce v. Kelly 406, 487 
 
 Bruce v. Tilson 102 
 
 Brummer v. Cohen 838 
 
 Brumskill v. James 165 
 
 Brush V. Barrett . 113 
 
 Brush V. Hoar 122 
 
 Brush V. Lee 35 
 
 Buchan . v. Sumner 777 
 
 Buchholz V. N. Y., L. E. & 
 
 W. R. R. Co 564, 565 
 
 Buckbee v. Brown 143 
 
 Buckingham v. Swezy...620, 682 
 
 Buckingham v. White 659 
 
 Buckley v. Buckley 43 
 
 Buckley v. Eckert 650 
 
 Bucklin v. Chapin 119 
 
 Bucknam v. Brett 820 
 
 Budd V. Bingham 415 
 
 Budd V. Walker 117 
 
 Buell V. B. & 0. S. W. R. R. 
 
 Co 209 
 
 Buell V. VanCamp . . . 253, 620, 633 
 
 Buhl V. Ball 623, 635, fi77 
 
 Buhler v. Wentworth 437 
 
 Bulkley v. Bulkley 203 
 
 Bullock V. Bemis...367, 368, 371 
 
 Bullock V. Bullock 355 
 
 BuUymore v. Seward 334 
 
 Bunce v. Reed 294 
 
 Bunker v. Langs 232 
 
 Burbank v. Beach 158 
 
 Burbank v. Fay 83 
 
 Buroh V. Cavanaugh. . . .422, 577 
 
 Burehard, Matter of 29, 30 
 
 Burd, Matter of 32 
 
 Burden v. Burdell 712 
 
 Burden v. Burden 835 
 
 Burdick v. Freeman 56, 57 
 
 Burger v. Baker 803 
 
 Burgess v. House 765 
 
 Burham v. Brennan 792 
 
 Burhans v. Casey 492, 766 
 
 Burhans v. Tibbitts 793 
 
 Burke v. Ashley 329 
 
 Burkhardt v. McClellan 055 
 
 Burkhardt v. Sanford 655 
 
 Burlew v. Hunter 434 
 
 Burlingame v. Parce 707 
 
 Burnett v. Bookstaver 166 
 
 Burnett v. Westfall 769 
 
 Burnham v. Acton 540 
 
 Burns v. O'Neil 324 
 
 Burns v. Bobbins 528 
 
 Burr V. Burr 101 
 
 Burrall v. Moore 363, 381 
 
 Burrell v. Hollands 21 
 
 Burrill v. Preston 98 
 
 Burritt v. Press Pub. Co ... . 
 
 309, 310, 311 
 
 Burstall v. Horner 760, 761 
 
 Burtis V. Dickinson 674 
 
 Burton v. Burton 822 
 
 Burton v. Sherman 232 
 
 Burton Co. v. Cowan 190 
 
 Buseh Brewing Co., Matter of 700 
 
 Bush V. Abrahams 70 
 
 Bush V. Hicks 560 
 
 Bush V. O'Brien 40 
 
 Bush V. Prosser 319, 438 
 
 Bush V. Shaw 94 
 
 Butcher v. Pearson 665 
 
 Butchers' & Drov. Banli v. 
 
 Jaeobson 330 
 
 Butler V. Payerweather 52, 53 
 
 Butler V. Johnson 96 
 
 Butler V. Kelsey 5 
 
 Butler V. Mason 398 
 
TABLE OF CASES. 
 
 XXIX 
 
 Butts V. Sehieffelin 800 
 
 Butts V. Wood 160 
 
 Byrnes v. Dunn 365 
 
 Byxbie v. Wood 145 
 
 C. & R. Plank Road Co. v. 
 
 Parker 74 
 
 Cadwell v. Goodenough 359 
 
 Cafiero v. Dematrino 528 
 
 Cagger v. Lansing 167 
 
 Cahill V. Manhattan R. R. Co. 
 
 135, 136 
 
 Calhoun v. Hallen 431 
 
 Calkin v. Seattle 315 
 
 Calkins v. Isbell 116 
 
 Callanal v. Oilman 557 
 
 Calvo V. Davies 475 
 
 Camp V. Barney 722, 723 
 
 Camp V. Hallen 91 
 
 Camp, Matter of 96, 807 
 
 Camp Y. Niagara Bank 746 
 
 Campbell v. Am. Zylonite Co. 295 
 
 Campbell v. Bristol 43 
 
 Campbell v. Carter 577 
 
 Campbell v. Conner 660 
 
 Campbell v. Ernest 546 
 
 Campbell \ . Grove 251 
 
 Campbell v. Hoge 833, 841 
 
 Campbell v. Hughes 101 
 
 Campbell v. Seaman 564 
 
 Campbell v. Spencer 290 
 
 Campbell v. Stokes 173 
 
 Campbell v. Spratt 726 
 
 Campbell v. Taylor 222 
 
 Campbell v. Wright 407 
 
 Campion Card & Paper Co. v. 
 
 Searing 616 
 
 Canal & Walker Sts., Matter 
 
 o* 65 
 
 Candee v. Doying 352 
 
 Candee v. Wilson 511 
 
 Canfield v. Ford 174 
 
 Carey v. Reilly 6 
 
 Carlton v. Carlton 221 
 
 Carman v. Plass 414 
 
 Carpenter v. Adams 379, 381 
 
 Carpenter v. Danf orth 609 
 
 Carpenter v. Fisher 611 
 
 Carpenter v. Keating 595 
 
 Carpenter v. Manhattan L. 
 
 Ins. Co 447 
 
 Carpenter v. N. Y. & N. H. R. 
 
 R. Co 549 
 
 Carpenter v. O'Dougherty. . . . 175 
 
 Carpenter v. Stillwell 23 
 
 Carpenter v. West 386 
 
 Carpenter v. Willett 531 
 
 Carr v. Carr 167 
 
 Carr v. Corcoran 650 
 
 Carr v. Risoher 829, 830 
 
 Carrier v. Dellay 377 
 
 Carstens v. Barnstorf 42 
 
 Carter v. DeCamp 466, 473 
 
 Carter v. Koezley 328 
 
 Carter v. Sully 306 
 
 Carter v. Youngs 215 
 
 Casola V. Vasques 623 
 
 Casper v. Wallace 649 
 
 Cass V. Higenbotam 755, 757 
 
 Cassidy v. Daly 413 
 
 Castle, Matter of 130 
 
 Castoriano v. Dupe 542 
 
 Cassucci V. A. & K. R. R. Co.48, 49 
 
 Castree v. Kirby 48b 
 
 Catlin V. Doughty 1'2"3 
 
 Catlin v. Gunter 371, 778 
 
 Catlin V. Ricketts 627 
 
 Cattus, Matter of 34 
 
 .Cauchois v. Proctor 458 
 
 Cayuga Co. Bk. v. Warden. . . 794 
 
 Cemetery B'd. v. Teller 195 
 
 Center v. Billinghurst 782 
 
 Central Bank v. Thein 384 
 
 Central Cross T. R. R. Co. v. 
 
 Bleeker St., etc., R. R. Co . . 
 
 585, 608 
 Central Crosstown R. R. Co. v. 
 
 Met. St. Ry. Co 565 
 
 Central Cross Town R. R. Co. 
 
 V. Twenty-third St. R. R. 
 
 Co 835 
 
 Central Nat. Bk. v. White. . . 
 
 835, 847 
 
XXX 
 
 TABLE OF CASES. 
 
 Cercle Franeais de L'har- 
 
 monie v. French 569 
 
 Chadbourne v. D. L. & W. R. 
 
 R. Co 359 
 
 Chadwick v. Chase 203 
 
 Chadwick v. Manning 41 
 
 Chadwick v. Spargur 563 
 
 Chaffee v. Jones 202 
 
 Chamberlain v. B., N. Y. & P. 
 
 R. R. Co 599, 610 
 
 Chamberlain v. Dempsey 422 
 
 Chamberlain v. Greenleaf .... 698 
 
 Chamberlain, Matter of 125 
 
 Chamberlain v. Roch. Seam- 
 less P. V. Co 731 
 
 Chamberlin v. Seller 645 
 
 Chambers v. Appleton 19 
 
 Chambers v. Clearwater ... 1 3, 800 
 
 Chambers v. Durand 518 
 
 Chambers v. Lewis 443 
 
 Chamboret v. Cagney 445 
 
 Champion v. Webster 316 
 
 Champlin v. Deitz 194 
 
 Chandler v. City of Fon du 
 
 Lac 693 
 
 Chandler v. Stevens 352, 358 
 
 Chapin v. Foster 521 
 
 Chapin v. Pratt 435 
 
 Chapin v. Seeley 519 
 
 Chapin v. Thompson 723 
 
 Chapin v. Townsend 130 
 
 Chapman v. City of Rochester 579 
 
 Chapman v. Douglas 731 
 
 Chapman v. Fonda 107 
 
 Chapman v. Forbes 142 
 
 Chapman v. Lynch 98 
 
 Chapman v. Wilber 323 
 
 Chappell V. Potter 560 
 
 Chase v. Behrman 329 
 
 Chase v. Edwards 255 
 
 Chase v. Lawson 222 
 
 Chase v. Lord 94, 810 
 
 Chase v. Vanderbilt 50, 147 
 
 Chatham Natl. Bk. v. Mer- 
 chant's Natl. Bk 252 
 
 Chauncey "\ . Lawrence 379 
 
 Chautauqua Co. Bk, v. Risley. 716 
 Chautauqua Co. Bk. v. White. 707 
 
 Chawviteau v. Fay 459 
 
 Cheetham v. Tillotson 794, 795 
 
 Chem. Natl. Bk. v. Carpentier 
 
 328, 379 
 
 Cheney v. Rankin 811 
 
 Chester, ex parte 125 
 
 Chester v. Jumel 46 
 
 Chillcott V. Waddingham. . . . 315 
 
 Chilson V. Howe 38 
 
 Chipman v. Montgomery 151 
 
 Chittenden, Matter of 33 
 
 Christal v. Kelly 364, 777 
 
 Christian Jensen Co., Matter 
 
 of 715, 730 
 
 Christie v. Bogardus 595, 596 
 
 Christie v. Gage 84 
 
 Christie v. Herrick 177 
 
 Christiensen v. Eno 101 
 
 Christy v. Perkins 375 
 
 Chryslin, ex parte 788 
 
 Chubbuck v. Morrison 513 
 
 Church V. Van Buren 122 
 
 Church V. United Ins. Co 278 
 
 Churchill v. Onderdonk 179 
 
 Cianeimono &c. Co. v. Cian- 
 
 cimono 592 
 
 Citizens' Bk. v. Wilder. 711 
 
 Citizens' Nat. Bk. v. Shaw .... 
 
 721, 783 
 Citizens' Natl. Bk. v. Vorhis . . 484 
 City of Buffalo, Matter of. 797, 802 
 City of Rochester v. Bronson. 736 
 City of Schenectady v. Fur- 
 man 440 
 
 City Natl. Bk. v. Natl. Park 
 
 Bk 449 
 
 Clady V. Wood 236 
 
 Claflin V. Du Bois 289 
 
 Claflin V. Frenkel 488 
 
 Claflin V. Gordon 160, 161 
 
 Claflin V. Houseman 55 
 
 Clapp V. C'lapp 725 
 
 Clapp V. Graves 278, 778 
 
 Clapp V. McCabe 419 
 
 Clapp V. Schutt 535 
 
 Clapp V. Town of Ellington . . 164 
 Clare v. Lockard. . . .120, 216, 628 
 Clare v. National City Bank. . 348 
 
TABLE OP OASES. 
 
 XXXI 
 
 Clark V. Binninger 725 
 
 Clark V. Brooks 2G3 
 
 Clark V. Clark .' 383 
 
 Clark V. Coles 414 
 
 Clark V. Dillon. .320, 347, 425, 430 
 
 Clark V. Goodridge 652 
 
 Clark V. Grant 202, 503 
 
 Clark V. Gray 76-1 
 
 Clark V. Hall 786 
 
 Clark V. Havens 243 
 
 Clark V. King & Bro. Pub. Co. 
 
 585, 586 
 
 Clark V. Lynch 656 
 
 Clark, Matter of 96, 830 
 
 Clark V. McFarland 287 
 
 Clark V. Mosher 313 
 
 Clark V. Poor 477 
 
 Clark V. Titcomb 159 
 
 Clark V. Van Amburgh 115 
 
 Clark V. Van Deusen 467 
 
 Clark V. Village of Dunkirk. . 573 
 
 Clark V. Warren 652 
 
 Clarke v. Boreel 222 
 
 Clarke v. Gibbons St 
 
 Clarke v. Miller 777, 782 
 
 Clason V. Baldwin 108 
 
 Claud V. McKenzie 801 
 
 Clay V. Baker 339 
 
 Cleaurant v. Maillard 418 
 
 Clegg V. Am. Newspaper Union 355 
 
 Clement v. Beale 370 
 
 Clerk's Fees, Matter of 19 
 
 Cleveland v. Barrows 409 
 
 Cleveland v. Hatch 350 
 
 Clews V. Eockford, R. I. & St. 
 
 L. R. K. Co 209, 015 
 
 Clickman v. Clickman . . 264, 787 
 
 Clifford V. Dam 435 
 
 Clifton V. Brown 362, 364 
 
 Climax Specialty Co. v. Smith 342 
 Clinch V. Southside E. E. Co. 729 
 
 Clinton v. Eddy 117, 440, 400 
 
 Clinton v. King 234 
 
 Clinton Liberal Inst. v. 
 
 Fletcher 550 
 
 Close V. Gillespie 18, 778 
 
 Clussman v. Markel 40 
 
 Clute V. Voris 166 
 
 Clyde V. Rogers 833, 840, 847 
 
 Coates V. Coates 604 
 
 Coates V. Goddard 773 
 
 Coatsworth v. Lehigh Val. E. 
 
 R. Co 348 
 
 Cockerill v. Loonam 454 
 
 Coekey v. Hurd 262 
 
 Coffin V. Lester 786 
 
 Coffin V. Pros. Park & C. I. R. 
 
 R. Co 606 
 
 Coffin V. Stitt 680 
 
 Cohen v. Hymes 106 
 
 Cohen, Matter of 45 
 
 Cohen v. Ratkowsky 244 
 
 Cohn v. Baldwin 356 
 
 Cohn V. Bonst 147 
 
 Coit V. Beard 316 
 
 Coit V. Campbell 814, 815 
 
 Coit V. Stewart 448 
 
 Cole V. McClellan 38, 503 
 
 Cole V. McGarvey 186 
 
 Cole V. Reynolds 143 
 
 Coleman v. Bean 642, 686 
 
 Coleman, Matter of 52 
 
 Coleman v. Phelps 409 
 
 Coleman v. Second Ave. R. R. 
 
 Co 94 
 
 Collins V. Campfield 215 
 
 Collins V. Coggill 382 
 
 Collins V. Collins 485 
 
 Collins V. Jewell 815 
 
 Collins, Matter of 124 
 
 Collins V. Robinson 54 
 
 Collins V. Ryan 216 
 
 Colorado St. Bk. v. Gallagher . 59 
 Colrick V. Swinbrirne . . . . 359, 421 
 
 Colton V. Jones 408 
 
 Columbian Ins. Co. v. Stevens 723 
 
 Col. Ins. Co. V. Force 212, 517 
 
 Colwell V. Cudlam 352 
 
 Colt V. Davis 307 
 
 Com'l. Bk. V. Foltz 38 
 
 Com'l. Bk., ]\Iatter of 132 
 
 Com'l. Bk. V. Pfeiffcr 332 
 
 Com. Bk. of Albany v. Dun- 
 ham 835 
 
 Com'l. Tel. Co. v. Smith 49 
 
 Com. Warehouse Co. v. Graber 529 
 
XXXll 
 
 TABLE OF CASES. 
 
 Compton V. Bowns IIG 
 
 Compton V. "The Chelsea" ... 408 
 
 Comstock V. Hoeft 397 
 
 Conaughty v. Nichols 320 
 
 Conklin v. Butcher 510 
 
 'Conklin v. Woodbury Institute 436 
 
 'Conkling v. Gandall 329 
 
 Conn. Nat. Bk. v. Bayles 293 
 
 Conn. Tr. Co. v. Wead 105 
 
 Connelly v. Krets 726 
 
 Connolly v. Hyams 774 
 
 Consalus, Matter of 151 
 
 Considerant v. Brisbane 159 
 
 Continental Nat. Bk. v. Myer 
 
 Co 841 
 
 Continental Nat. Bk. v. Thur- 
 
 ber 215 
 
 Continental Nat. Bk. v. U. S. 
 
 Book Co 215 
 
 Continental Store S. Co. v. 
 
 Clark 58, 546, 572, 585 
 
 Cook V. Chase 408 
 
 Cook V. Dickerson 596 
 
 Cook V. Litchfield 470 
 
 Cook V. Ritter 41 
 
 Cook V. Staats 252 
 
 Cook V. State Nat'l. Bank 56 
 
 Cook V. Thurston 122 
 
 Cook V. Warren 321, 348, 379 
 
 Cook V. Whipple 55, 56 
 
 Cooke V. Appleton 613 
 
 Cooke V. Lalance Grojean 
 
 Mfg. Co 834 
 
 Coon V. Knapp 797 
 
 Cooney v. Whitfield 639 
 
 Cooper V. Bissell 793 
 
 Cooper V. Burr 394 
 
 Cooper V. First Pres. Ch 552 
 
 Cooper V. Fiske 390 
 
 Cooper V. Jones 361 
 
 Cooper V. Kipp 445 
 
 Cooper, Matter of 804 
 
 Cooper V. Newland 175 
 
 Corbet v. Brown 22 
 
 Corbett v. De Comean 39 
 
 Corbett v. Gibson 39 
 
 Corbett v. 23d St. Ry. Co 813 
 
 ^Corbin v. Casina Land Co. . . . 281 
 
 Corbin v. Knapp 375 
 
 Corcoran v. Mannering 413 
 
 Cordier v. Thompson 395 
 
 Corey v. Long. . .704, 717, 719, 721 
 
 Corkings v. State... 103, 112, 110 
 
 Cormier v. Hawkins 484 
 
 Cornell v. Dakin 435 
 
 Cornell v. Funk 650 
 
 Cornell v. King 543 
 
 Cornell v. Woolsey 841 
 
 Corn Ex. Bk. v. Blye 
 
 510, 799, 801, 802 
 
 Corning v. McCuUough 94 
 
 Corning v. Roosevelt 468 
 
 Corning v. Slosson 14 
 
 Corning v. Southland 40 
 
 Corning v. Troy Iron & Nail 
 
 Factory 539, 580 
 
 Cornwall v. Cornwall .... 367, 375 
 
 Corson v. Ball 615 
 
 Corwin v. Freeland 505 
 
 Cosgrove v. Bowe 531 
 
 Cossitt V. Winchell 626, 627 
 
 Costello V. Downer 105 
 
 Coster V. Greenpoint Ferry Co. 48 
 
 Coster V. Phoenix 794 
 
 Cothran v. Hanover Nat'l. Bk. 374 
 
 Cottrell V. Finlayson 34 
 
 Couch V. Mulhane 232 
 
 Coughlin V. N. Y. C. & H. R. 
 
 R. R. Co 37, 45, 46 
 
 Coulter V. Murray 566 
 
 Coursen v. Hamlin 764, 765 
 
 Courtney v. Eighth Ward Bk. 654 
 
 Covell V. Hart 40 
 
 Coveney v. Tannahill 54 
 
 Cowdin V. Cram 497 
 
 Cowenhoven v. City of Brook- 
 lyn 419 
 
 Cowper V. Theall 561 
 
 Cox. V. N. Y. C. & H. R. R. 
 
 R. Co 40, 813 
 
 Cox V. Parry 760 
 
 Coykendall v. Hood 568 
 
 Cozine v. Walter 536 
 
 Cragin v. Lovell. .58, 332, 441, 472 
 Craig v. Roch. City & Brigh- 
 ton R. R. Co 550 
 
TABLE OF CASES. 
 
 XXXUl 
 
 Ciam V. Moore S34 
 
 Ci-andall v. Beach 181 
 
 Crandall v. Bryan 488. 507 
 
 Crandall v. Moston 115 
 
 Crane v. Crofoot 264 
 
 Crane v. McDonald 310 
 
 Crane, flatter of 274 
 
 Crane v. Powell 435 
 
 Cranford v. Tyrrell 505, 578 
 
 Crary v. Goodman 88 
 
 Crary, Matter of 658, 659 
 
 Crawford v. Castner 563 
 
 Cream City Furniture Co. v. 
 
 Sqnier 200, 787 
 
 Creed v. Hartman 164 
 
 Cregin v. Brooklyn C. T. E. R. 
 
 Co 13, 818 
 
 Cridler v. Curry 163 
 
 Crippin v. Culver 133 
 
 Crocker v. Baker 586 
 
 Crocker v. Manhattan Life 
 
 Ins. Co 577 
 
 Croghan v. Livingston. . . .187, 789 
 Cromwell v. Van Eensselaer. . 257 
 Cronin v. Croolcs.514, 621, 638, 043 
 
 Cronin v. O'Reilly ', . 20 
 
 Cronin v. Tebo 764 
 
 Cronkhite v. Cronkhite. . .555, 556 
 
 Crook V. Crook 288 
 
 Crook V. Jewett 488 
 
 Crooke v. Anderson 180 
 
 Crosier v. Cornell St. Bt. Co. 259 
 Croton Ins. Co., Matter of . . . 745 
 
 Croty V. McKenzie 47 
 
 Crounse v. Syr. Chen. & N. Y. 
 
 R. R. Co 005 
 
 Crouch V. Hoyt 87 
 
 Crouse v. Paddock 536 
 
 Crouter v. Crouter 
 
 184, 187, 222, 231 
 
 Crow V. Gleason IIO 
 
 Crowns v. Vail 637 
 
 Cruger v. Hudson R. R. R. Co. 347 
 Cruikshank v. Cruikshank. . . 793 
 
 Cruek.shanlt v. Goodwin 43 
 
 Gumming v. Brown 100 
 
 Gumming v. Egerton.130, 718, 722 
 Cummings v. Morris 145 
 
 C 
 
 Cummings v. Wooley 507 
 
 Cummins v. Barkalow 159 
 
 Cunard S. S. Co. v. Voorhis. . 544 
 
 Cunningham v. Pell 147, 148 
 
 Cunningham v. Von Pustran. 616 
 
 Cunningham v. Widing 44 
 
 Currey v. Bowker 801 
 
 Currie v. Currie 440 
 
 Currie v. Reilly 641 
 
 Curtis V. Green 248 
 
 Curtis V. Hitchcock 242, 243 
 
 Curtis V. Kimball 25 
 
 Gushing v. Family Fund Soc. 70 
 
 Gushing v. Ruslander 586 
 
 Gushman v. Reynolds 363 
 
 Cutler V. James Gould Co. 640, 755 
 
 Cutler V. Wright 407, 480 
 
 Gutter V. Pool 832, 842 
 
 Gutter V. Rathbone 781, 789 
 
 Gutting V. Damerel 719 
 
 Cutting, Matter of 183 
 
 D. 
 
 Dainese v. Allen 559 
 
 Dailey v. Dailey 768 
 
 Dakin, Matter of 34 
 
 Dakin v. Dunning. . .759, 761, 702 
 
 Dake v. Miller 232 
 
 Dale V. Gilbert 789 
 
 Dalrymple v. Williams 794 
 
 Dalton v. Sandland 816 
 
 Daly v. Burchell 176 
 
 Daly V. Smith 570 
 
 Dalzell V. Fahys Watch Case 
 
 Go 841 
 
 Dambman v. Schulting 470 
 
 Danaher v. City of Brooklyn. 416 
 
 Danforth v. Culver 114 
 
 Daniel v. Daniel 355 
 
 Dannenbaum v. Mandelbaum. 509 
 
 Darragh v. McKim 247 
 
 Darling v. Pierce 13 
 
 Darrow v. Calkins 184 
 
 Darrow v. Miller 380 
 
 Davidson v. Chatham Nat. Bk. 663 
 
 Davidson v. Seligman 390 
 
 Davies v. Davies 171 
 
XXXIV 
 
 TABLE OF CASES. 
 
 Davis V. American Soc, etc . . 
 
 568, 577 
 
 Davis V. Ainsworth 668 
 
 Davis V. Bowe 41 
 
 Davis V. Brooks 639 
 
 Davis V. Cornue 559 
 
 Davis V. Duffie 203 
 
 Davis V. Dunham 834 
 
 Davis V. Hoppock 321, 427 
 
 Davis v. Mayor, etc. .155, 553, 590 
 
 Davis v. Noyes 115 
 
 Davis V. N. Y., L. E. & W, 
 
 R. R. Co 369 
 
 Davis V. Rich 253 
 
 Davis V. Richards 827 
 
 Davis V. Rosenstein 611 
 
 Davis V. Solomon 43 
 
 Davis V. Stover 452 
 
 Davis V. Zimmerman .... 577, 608 
 
 Davison v. Baker 200 
 
 Davison v. Powell 393 
 
 Dauehy v. Miller 262, 263 
 
 Daus V. Nussberger 135 
 
 Dawley v. Brown 470 
 
 Dawson v. American Surety 
 
 Co 562 
 
 Dawson v. Bogart 362 
 
 Day V. Bach 683 
 
 Day V. Mayor, etc 25 
 
 Dayton v. Wilkes 572 
 
 Dean v. Biggs 744 
 
 Dean v. Eldridge 123 
 
 Dean v. Gilbert 366 
 
 Dean v. Hewitt 117 
 
 Dean v. Roseboom 151 
 
 DeBemer v. Drew 210 
 
 DeBerard v. Price 600 
 
 DeBost V. Albert Palmer Co. . 823 
 
 DeCaters v. DeOhaumont 795 
 
 Decatur v. Goodrich 492 
 
 Decaumont v. Morgan 116 
 
 Decker v. Gardner. . .704, 716, 727 
 
 Decker v. Kitchen 
 
 277, 379, 480, 799, 802, 803 
 
 Decker v. Mathews 322 
 
 De Crano v. Moore 414 
 
 Deering v. Riley 167 
 
 DeForest v. Baker 384 
 
 DeFreest v. Warner 115 
 
 Degener v. Stiles 707 
 
 DeGraw v. Elmore 370 
 
 DeGroot v. Jay 131 
 
 Dehn v. Mandeville 338 
 
 Delafield v. Illinois 55, 56 
 
 Delafield v. Ormsby Co 636 
 
 Delahunty, Matter of 133, 199 
 
 DeLancy v. Piepgros 281 
 
 DeLancy v. Murphy 309 
 
 Delaney v. Miller 450 
 
 DeLavalette v. Wendt 441 
 
 Delisser v. N. Y., N. H. & H. 
 
 R. R. Co 197 
 
 DeLisle v. Hunt 812 
 
 DeMelt v. Leonard 283 
 
 Deming v. N. Y. Marble Co. . 715 
 
 Dempsey v. Lapp 485 
 
 Denman v. McGuire 656 
 
 Denike v. Denike 301 
 
 Denike v. N. Y. &c. Lime Co . . 
 
 702, 732 
 
 Denise v. Swett 58 
 
 Dennison v. Dennison 428, 430 
 
 Dennison v. Plumb 100 
 
 Denniston v. Trimmer 448 
 
 Denny %■. Smith 105 
 
 DeNobele v. Lee 328 
 
 Denton v. Noyes 42 
 
 Depeyster v. Warns 257, 803 
 
 DePuy V. Strong 162, 462 
 
 Derby v. Yale 161 
 
 Derham v. Lee 334 
 
 DeRidder v. Sehermerhorn . . . 163 
 
 DeSilver v. Holden 409, 523 
 
 Deutermann v. Pollock 251 
 
 Devlin v. Hope 271, 457, 702 
 
 Devlin v. Mayor 41 
 
 Devlin v. Roussel 220" 
 
 Devoe v. Ithaca & Owego R. 
 
 R. Co 736 
 
 Deyo V. Morss 365, 367 
 
 De\Veerth v. Feldner 508 
 
 DeWick v. Dobson 577 
 
 Dewey v. Hoag 456 
 
 DeWitt V. Chandler 147 
 
 DeWitt V. Van Schoyk 557 
 
 De Wolfe v. Abraham 407, 411 
 
TABLE OF CASES. 
 
 XXXV 
 
 Dezengremel v. Dezengremel. 434 
 Diamond v. Williamsburg Ins. 
 
 Co 305, 300 
 
 Diamond Match Co. v. Roeber 548 
 
 Dias V. Merle 848 
 
 Diblee v. Mason 194, 781 
 
 Dick V. Phillips 833, 842, 845 
 
 Dickinson v. Benham 675 
 
 Dickinson v. Mayor 09 
 
 Didier v. Warner 426 
 
 Didsbury v. Van Tassell 6, 203 
 
 Diederieh v. Richley 802 
 
 DieckerhoflF v. Ahlborn 532 
 
 Diefendorf v. Diefendorf 179 
 
 Diefendorf v. House 38 
 
 Dief enthaler v. Mayor 94 
 
 Diefl'enbach v. Rooh 91 
 
 Dietz V. Parish 797 
 
 Dillingham v. Varron 233 
 
 Dillon V. Sixth Ave. R. R. Co. 457 
 
 Dimick v. Cooley 49 
 
 Dinan v. Allen 043 
 
 Dinan v. Coneys . 442, 449, 459, 478 
 
 Dinkespiel v. Levy 792 
 
 Dinsmore v. A. & P. R. Co. . . 148 
 
 Dinsmore v. Adams 803 
 
 Dinsmore v. The Board of 
 
 Police 5GS 
 
 Dinsmore v. Neresheimer 559 
 
 Disbro v. Disbro 582, 599 
 
 Divine v. Duncan 375 
 
 Dixon V. Beach 519 
 
 Dodge V. Colby 58, 407, 415 
 
 Dodge V. Lambert 554 
 
 Dodge v. Porter 606 
 
 Dodge V. St. John 303 
 
 Dodge & Stevenson Mfg. Co., 
 
 Matter of 13, 14 
 
 Dodge v. Weil 359 
 
 Doellner v. Tynan 565 
 
 Doheney v. Lacy 54 
 
 Doherty v. Matsell 817 
 
 Doherty v. Shields 320 
 
 Dolan V. Petty 764, 765 
 
 Dolbeer v. Stout 459 
 
 Dollfus v. Prosch 271 
 
 Dominy v. Miller 86 
 
 Donadi v. N. Y. S. Mut. Ins. 
 
 Co 200 
 
 Donnell v. Williams. .■ 627 
 
 Donnelly v. City of Brooklyn 91 
 
 Donnelly v. Woolsey 73 
 
 Donohoe v. Hungerford 43 
 
 Donohoe v. Pomeioy 358 
 
 Donzone & Co. v. Caneppa .... 700 
 
 Doolittle V. Doolittle 24 
 
 Doolittle V. Supervisors 553 
 
 Doolittle V. Tioe 88 
 
 Doolittle V. Ward 289 
 
 Dorlon v. Lewis 44 
 
 Doty V. Mich. Cen. R. R. Co. . 206 
 
 Doty V. Russell 246, 802 
 
 Douglas V. Delano 834, 847 
 
 Douglas V. Douglas 777 
 
 Douglas V. Haberstro 
 
 232, 534, 538, 781 
 
 Douglas V. Seiferd 293 
 
 Douglass V. Wiggins 578 
 
 Douoy V. Hoyt 290 
 
 Dovan v. Dinsmore 321, 385 
 
 Dowdney v. Volkening 352 
 
 Downs V. Parley 135, 136 
 
 Dows V. Green 305 
 
 Doyle V. Man. El. R. R. Co. , 85 
 
 Doyle V. O'Parrell 316 
 
 Drake v. Hud. R. R. R. Co. . . 582 
 Drake v. N. Y. Iron Mine Co . . 
 
 39, 780, 790 
 
 Drake v. Satterlee 465 
 
 Drake v. Weinman & Co.... 835 
 
 Draper v. Beers 506 
 
 Dreyfus v. Otis 506, 507 
 
 Drevert v. Appsert 341 
 
 Dry Dock E. B'way. & Batt. R. 
 
 R. Co. V. Cunningham 598 
 
 Dubois V. Beaver 324 
 
 Dubois V. Cassidy 171 
 
 Dubois V. D. & H. C. Co 359 
 
 Dubois V. Hermance 435 
 
 Dubois V. Thompson 492 
 
 DuBois V. Un. Dime Sav. Inst. 312 
 Dudley v. Broadway Ins. Co. . . 
 
 367, 308 
 Dudley v. Mayhew 38 
 
XXXVl 
 
 TABLE OP CASES. 
 
 Duff V. Hutdiiiison . .830, 838, 841 
 
 Duff V. Russell 570 
 
 Duffy V. Brady 343 
 
 Duffy V. Casey 720 
 
 Duffy V. O'Donovan 756 
 
 Duke of Brunswick v. King of 
 
 Hanover 57 
 
 Dumond v. Church 178 
 
 Duncan v. Ainslie 767 
 
 Duncan v. Berlin 654 
 
 Duncan v. Guest 752 
 
 Duncan v. Katen 499 
 
 Duncan \'. Ray 360 
 
 Dunford v. Weaver 200 
 
 Dunham v. Bower 445 
 
 Dunham v. Cressy 201 
 
 Dunham v. Dodge 116 
 
 Dunham v. Fitch 133 
 
 Dunham v. Hastings Pave- 
 ment Co 435 
 
 Dunkirk v. L. S. & M. S. R. 
 
 E. Co 385 
 
 Dunlap V. Commercial Ins. Co. 760 
 Dunlop V. Patterson F. Ins. Co. 
 
 647, 648, 657, 716 
 
 Dunn V. Acker, etc 664 
 
 Dunn V. Arkenburgh 661, 664 
 
 Dunn V. Dunn 200 
 
 Dunn V. Mason 305 
 
 Dunne v: Am. Surety Co ... . 127 
 Dunning v. Bank of Auburn . . 306 
 
 Dunning v. Humphrey 755 
 
 Dupigniac v. Van Buskirk .... 307 
 
 Duprat V. Havemeyer 386 
 
 Durant v. Gardner 420 
 
 Duryea, Watts & Co. v. Eayner 632 
 Dusenbury v. Dusenbury. .418, 710 
 
 Dusenbury v. Keiley 114 
 
 Duyckinck v. N. Y. Elev. R. R. 
 
 Co 362 
 
 Dwight V. Germania L. Ins. 
 
 Co 353, 356, 358, 360 
 
 Dwinelle v. Eddy 83 
 
 Dyett v. Seymour 355 
 
 E. 
 
 E, Matter of 31 
 
 Eads V. Wynne 782 
 
 Eagan v. Moore 771, 783 
 
 Eagle v. Underbill 124 
 
 Eagle Iron Works, In Re . . 698, 702 
 
 Eagleston v. Son 394 
 
 Earl V. David 124, 476 
 
 Earle v. Beman 839, 840 
 
 Earle v. Earle 158, 291, 301 
 
 Earle v. Scott 406, 472 
 
 Easterbrook v. Easterbrook. . . 221 
 
 Eastman v. Kelly 53 
 
 Eastman v. Starr 595 
 
 East River Bk. v. Cutting 139 
 
 Easton v. Cassidy 484 
 
 Easton v. Malavazi 620, 640 
 
 Eaton V. Alger 163 
 
 Eaton V. Balcam 471 
 
 Ebbinghousen v. Worth Club. 146 
 
 Eberhart v. Schuster 50 
 
 Eberle v. Krebs 261 
 
 Eckerson v. Village of Haver- 
 straw 162 
 
 Eekert v. Belden 487 
 
 Eckert v. Gallien 449, 473 
 
 Eckstein v. Frank 500 
 
 Edick V. Green 631, 635 
 
 Edison Elec. Ilium. Co., Mat- 
 ter of 76 
 
 Edmonston v. McLoud 591 
 
 Edmunds v. Barton 22 
 
 Edwards v. Downs 334 
 
 Egan V. Rooney 43 
 
 Egan V. Walsh 706 
 
 Ehle V. Haller 333 
 
 Eidlitz V. Rothschild 460 
 
 Eighmie v. Taylor. 365 
 
 Elder v. Bogardus 152, 847 
 
 Elder v. Morrison 23 
 
 Eldridge v. Howell 789 
 
 Eldridge, Matter of 30, 31, 32 
 
 Electrical Power Storage Co. 
 
 V. Whiting 542 
 
 Eleventh Ward Bk. v. Powers 
 
 225, 235, 2.30 
 Eleventh Ward Sav. Bk. v. 
 
 Hay 306 
 
 Elliott V. Kennedy 288, 294 
 
 Ellis V. Van Ness 295 
 
 EUson V. Hance 489 
 
TABLE OP CASES. 
 
 xxxvu 
 
 Ellsworth V. Brown 315 
 
 Ellsworth V. Scott. 684 
 
 Ehvell V. Russell 494 
 
 Elwood V. Diefendorf 113 
 
 Ely V. Mumf ord 508 
 
 Emerson v. A. & O. L. R. R. 
 
 Co 205, 206 
 
 Emery v. Baltz 427 
 
 Emigrant Ind. Sav. Bk. v. 
 
 Goldman 176 
 
 Emmeleuth v. H. B. Assoc. . . 162 
 
 Emmons v. McMillan Co 386 
 
 Empire Peed Co. v. Chatham 
 
 Nat'l. Bk 444 
 
 Engel V. Kuche 543 
 
 Engelhardt Co. v. Benjamin. . 
 
 494, 506 
 
 English V. Eurniss 371 
 
 Ennis v. Curry 50 
 
 Enos V. Leach 471 
 
 Enos V. Thomas 406 
 
 Equitable L. Ass. Soc. v. Cuy- 
 
 ler 350, 454, 458 
 
 Equitable L. Ins. Co. v. Stev- 
 ens 124 
 
 Erickson v. Poey 136 
 
 Erickson v. Quinn 96 
 
 Erie Ry. Co. v. Gould 262 
 
 Erie Ry. Co. v. Ramsey. . .558, 590 
 
 Erisman v. Pidoock 248 
 
 Ervin v. Oregon Ry. & Nav. 
 
 Co 231, 835 
 
 Ervin v. Oregon Steam Nav. 
 
 Co 20S 
 
 Erwin v. Hurd 552, 555 
 
 Evans v. Backer 283, 284 
 
 Evans v. Harris 37 
 
 Evans v. Holmes 518 
 
 Evansville Nat'l. Bk. v. Kauf- 
 
 mann 145 
 
 Everett v. Everett 220 
 
 Everitt v. Park 637, 639 
 
 Everson v. Gehrman 770 
 
 Ewart V. Schwartz 484 
 
 B. W. Bliss Co. V. Opera Glass 
 
 Supply Co 635 
 
 Ewing V. Johnson 591 
 
 Excelsior Co. v. Cosmopolitan 
 
 Co (m 
 
 Exchange F. Ins. Co. v. Norris 757 
 
 F. 
 
 Fairbanks v. Blaut 430 
 
 Pairchild v. O. C. & R. Ry. Co. 427 
 
 Fairweather v. Satterly 188 
 
 Falconer v. Ucoppell 289 
 
 Fales V. Hicks 381 
 
 Fallon V. Durant.429, 460, 478, 479 
 Fallon V. Egberts Woolen Mill 
 
 Co 723 
 
 Fanning v. Osborne 556 
 
 Fargo v. Owen 159 
 
 Parish v. Austin 122 
 
 Farmer v. Nat. Life Assn. of 
 
 Hartford 210, 231, 234 
 
 Farmer v. Robbins. .203, 504, 515 
 
 Farmers' Bank v. Blair 164 
 
 Farmers' L. & T. Co. v. Dick- 
 son 211. 524, 780 
 
 Farmers' L. & T. Co. v. Hotel 
 
 Brunswick Co 700 
 
 Farmers' L. & T. Co. v. Mer. 
 
 Tel. Co 7.38 
 
 Farmers' L. & T. Co. v. Reid. . 
 
 188, 805 
 Farmers' Nat'l. Bk. v. Wil- 
 liams 182 
 
 Farmers' & Cts.' Bk. v. Sher- 
 man 390 
 
 Farnam v. Barnum 160 
 
 Farnsworth v. Wilson 389 
 
 Farnsworth v. Wood.". 149 
 
 Farquhar v. Wise. Cond. Milk 
 
 Co 612 
 
 Farrand v. Marshall 556 
 
 Farrell v. Amberg 347, 458 
 
 Farrington v. Birdsall. . . .589, 590 
 
 Farrington v. Freeman 595 
 
 Fassett v. Tallmadge 725 
 
 Faulk V. Kamp 389 
 
 Pawcett V. Vary ....260, 783 
 
 Pay V. Hebbard 35, 42 
 
 Pellerman v. Dolan 443 
 
XXXVIU 
 
 TABLE OF CASES. 
 
 Fellows V. Fellows 589 
 
 Fellows V. Heermans.541, 702, 712 
 
 Fenn v. Bolles 699 
 
 Fera v. Wickham 450 
 
 Ferdon v. Ferdon 34 
 
 Ferguson v. C. Rubber Co 263 
 
 Ferguson v. Crawford. 43, 232, 800 
 
 Ferguson, Matter of 34 
 
 Ferguson v. Neilson 57 
 
 Fern v. Vanderbilt 390 
 
 Ferrin v. Myrick 152 
 
 Ferriss v. N. A. F. Ins. Co. . . . 472 
 
 Ferris v. Plummer. . .216, 238, 629 
 
 Fetes V. Volmer 222 
 
 Fetridge v. Merchant 575 
 
 Fetridge v. Wells 575 
 
 Fettretch v. McKay 379, 455 
 
 Field V. Gibson 150 
 
 Field, Matter of 224 
 
 Field V. Ripley 704 
 
 Field V. Van Cott 163 
 
 Fielden v. Carelli 480 
 
 Fielding v. Lueas 558 
 
 Fields V. Bland 487 
 
 Filer, ilatter of 298 
 
 Filer v. N^. Y. C. R. R. Co.. . . 404 
 
 Finch V. Carpenter 122, 123 
 
 Finch V. Galligher 202 
 
 Fjnek v. Police Com'rs 543 
 
 Fincke v. Funke 716 
 
 Finelite v. Finelite 280 
 
 Fink V. Jetter 354 
 
 Fink V. Justh 439 
 
 Finlay v. Castroverde 507 
 
 Finlay v. Chapman 833, 837 
 
 Finlay v. Leary 45 
 
 Finnegan v. Carraher 169 
 
 First Nat. Bk. v. Bushwick, 
 
 etc 629 
 
 First Nat. Bk. v. Heaton 797 
 
 First Nat. Bk. v. Ranger 295 
 
 First Nat. Bk. v. Shuler 142 
 
 I'irst Nat. Bk. v. Washburn . . 723 
 First Nat. Bk. of Jersey City 
 
 V. Lenk 811, 820 
 
 First Nat. Bk. of Utica v. Bal- 
 
 lou 116 
 
 First Ref! Pr. Ch. v. Bowden 
 
 161, 552 
 Fischer-Hansen v. Bklyn. Hgts. 
 
 R. R. Co 49 
 
 Fish V. Hose 464, 475 
 
 Fish V. Ferris 399 
 
 Fisher v. Charter Oak L. Ins. 
 
 Co 469, 475 
 
 Fisher v. Dougherty 678 
 
 Fisher v. Gould 276, 480 
 
 Fisher v. Lyon 187 
 
 Fisher v. Nash 626 
 
 Fisk V. Chicago, etc., R. R. Co. 262 
 
 Fisk V. Spring 668 
 
 Fiske V. Anderson 227 
 
 Fiske V. Bennett 216 
 
 Fiske V. Hibbard 115 
 
 I'itch V. Bigelow 344 
 
 Fitzgerald v. Blake 240, 666 
 
 Fitzsimons v. Drought 244 
 
 Flandrow v. Hammond 150 
 
 Flandrow, Matter of 648, 653 
 
 Fleet V. Cronin 841 
 
 Fleischmann v. Bennett 
 
 330, 373, 464 
 
 Fleischmann v. Stern 349, 43S; 
 
 Fletcher v. Daniels 115 
 
 Fletcher v. Krupp 707, 711 
 
 Flood V. Van Wormer 56S 
 
 Florence v. Bulkley 136 
 
 Flynn v. Hudson R. R. R. Co. 20b 
 
 Flynn v. Taylor 180 
 
 Fogg V. Edwards 363 
 
 Foley, Matter of 647 
 
 Follett V. Jewett 385 
 
 Folsom V. Marsh 571 
 
 Foot V. Bronson 162 
 
 Foot V. Farrington 95 
 
 Foot V. Harris 213 
 
 Foot V. Morgan 13 
 
 Foot V. Stiles 12, 13 
 
 Foote V. Lathrop 203 
 
 Forbell v. City of N. Y 580 
 
 Forbes v. Garfield 117 
 
 Forbes v. Whitlock 147 
 
 Ford V. Belmont 17.S 
 
 Ford V.Ford 7a 
 
TABLE OF CASES. 
 
 XXXIX 
 
 Ford V. Leohe 22 
 
 Forrest v. Forrest 497, 569 
 
 Forster, Matter of 33, 34 
 
 Forsyth v. Edmiston 408 
 
 Fort Plain Bldg. Co. v. Smith • 
 
 180, 556 
 Forty-second St. R. E. Co. v. 
 
 Thirty-fourth St. R. R. Co. 
 
 564, 56.T 
 
 Fosdiok V. Groff 432 
 
 Foster v. Townsend 130, 131 
 
 Foster v. Townshend. .30, 716, 720 
 Fosgate v. Herkimer Mfg. Co. 169 
 
 Foster v. City of Buflfalo 556 
 
 Foster v. Devlin 765 
 
 Foster v. Foster 171 
 
 Foster v. Moore 222 
 
 Foster v. Wilkinson 54 
 
 Fowler v. Burns 580 
 
 Fowler v. Callan 36, 37, 45 
 
 Fowler v. Huber 272 
 
 Fowler v. Van Surdam 93 
 
 Fowler's Petition 830 
 
 Fox V. Davidson, 329 
 
 Fox V. Fee 187 
 
 Fox V. Fitzsimons 576 
 
 Fox V. Fox 47 
 
 Fox V. Mays 677 
 
 Francis v. Shoellkopf 130 
 
 Francis v. Sitts 290 
 
 Frank Brewing Co. v. Ham- 
 
 mersen 460 
 
 Frankel v. Elias 98 
 
 Frankel v. Hays 634 
 
 Franklin Bank Note Co. v. 
 
 Mackay 792 
 
 Frazer v. Phelps 845 
 
 Fredericks v. Mayer 570 
 
 Fredericks v. Taylor. .337, 338, 340 
 Freeman v. Dutcher. .122, 123, 470 
 
 Freeman v. Falconer 145 
 
 Freeman v. Frank 437 
 
 Freer v. Denton 332, 407 
 
 Frees v. Ford 397, 469 
 
 French v. Board of Education 569 
 
 French v. Dauohy 714 
 
 French v. Merril 64 
 
 French v. Salter 410 
 
 Frets v. Frets 397 
 
 Freund v. Washburn 184 
 
 Frick V. White 450 
 
 Friedsman, Matter of 33 
 
 Friend v. Michaelis 623 
 
 Frisbie v. Young 203, 502 
 
 Fromme v. Lisner 845 
 
 Frothingham v. Broadway, 
 
 etc., R. R. Co 835, 839 
 
 Fruin-Bambrick Cons. Co. v. 
 
 Marks 354 
 
 Fry V. Bennett 
 
 319, 330, 350, 427, 438, 470 
 
 Pullan V. Hooper 502 
 
 Fuller, Matter of 800 
 
 Fuller V. Roosevelt 359 
 
 Fuller V. Scribner 241 
 
 Fuller V. Sweet 310 
 
 Furber v. McCarthy 450 
 
 Furbush v. Nye 57 
 
 Furman v. Walter 614, 640 
 
 Fulton F. Ins. Co. v. Baldwin 466 
 
 G. 
 
 G. V. R. R. Co. V. Slaight 83 
 
 Gabriel v. Schillinger Co 34 
 
 Gadsden v. Woodward 338 
 
 (iaffney v. Bigelow 228, 288 
 
 Gailliard v. Smart 40 
 
 Gale, Matter of 32 
 
 Gale V. Vernon 280 
 
 Gallagher v. Karns 705 
 
 Gallagher v. Merrill .* . 429 
 
 Gallatin v. Oriental Bk 544 
 
 Galle v. Tode 54 
 
 Gallie v. Eagle 170, 622 
 
 Galloway, Matter of 618 
 
 Gallt V. Finch 278, 293 
 
 Gallup V. Bernd 101 
 
 Galusha v. Flower City Nat. 
 
 Bk 608 
 
 Galway v. Metro. Ele., Co 85 
 
 Galway v. U. S. Steam Sugar 
 
 Ref. Co 560, 732 
 
 Gannon v. Myars 464 
 
 Gansevoort v. Gilliland 793 
 
 Garbutt v. Hanff 675 
 
xl 
 
 TABLE OF CASES. 
 
 Garden v. Garden 720 
 
 Garden v. Sabey 606 
 
 Gardiner v. Gardiner 485 
 
 Gardinier v. Knox 355 
 
 Gardner v. Clarl< 436 
 
 Gardner v. Gardner 116, 611 
 
 Gardner v. Kraft 181, 395 
 
 Gardner v. Locke 389 
 
 Gardner v. Ogden 57 
 
 Gardner v. Walker 820 
 
 Garland, Ex parte 29, 131 
 
 Garner v. Harmony Mills. . . . 410 
 
 Garner v. Wright 159 
 
 Garr v. Bright 155 
 
 Garretson v. Weaver 707 
 
 Garrison v. Garrison 770 
 
 Garson v. Brumberg 638, 643 
 
 Garvey v. L. I. E. E. Co 576 
 
 Garvey v. Union Trust Co. . . . 172 
 Garwood v. N. Y. C. & H. R. 
 
 R. R. Co 579 
 
 Gasherie v. Appel 622 
 
 Gasper v. Adams 320, 778 
 
 Gastine v. Stoddard 113 
 
 Gates V. Andrews 95 
 
 Gates V. Guthrie 288 
 
 Gates, Matter of 47 
 
 Gay V. Cary 358 
 
 Gearon v. Bk. for Savings ... 42 
 
 Gebhard v. Parker 352 
 
 Gedney v. Haas 510 
 
 Gee v. Chase Mfg. Co 354 
 
 Geery v. Webster 470 
 
 Geib V. leard 257 
 
 Genin v. Sehwenk 493 
 
 Genin v. Tompkins 
 
 620, 621, 642, 788 
 
 Gentil v. Arnaud 577 
 
 George v. Fitzpatriek 192 
 
 Georgia Lumber Co. v. Bissell 
 
 234, 235 
 Georgia Lumber Co. v. Strong 290 
 
 Gere v. Gundlaeh 800 
 
 Gere v. N. Y. C. & H. R. R. R. 
 
 Co 607 
 
 Gerrity v. Seeger 274 
 
 German Bk. of London v. Dash 622 
 
 German Sav. Bk. v. Carring- 
 
 ton 122 
 
 German Sav. Bk. v. MuIIer. . . 176 
 
 Gerstein v. Fischer 373 
 
 Getty V. Hud. River R. R. 
 
 Co 361, 406 
 
 Getty v. Spaulding 822 
 
 Gibbs V. Hichborn 492 
 
 Gibbs V. Queen Ins. Co 208 
 
 Gibson v. Gibson 387 
 
 Gibson v. Nat. Park Bk 
 
 649, 654, 655, 656 
 
 Gilbert v. Morrison 115 
 
 Gilbert v. Pritehard 404 
 
 Gilbert v. Rounds 427 
 
 Gilbert v. York 469 
 
 Gilchrist v. Gilchrist. 306, 376, 778 
 
 Gildersleeve v. Landon 350 
 
 Giles V. Caines 801 
 
 Gill V. ^tna Live Stock Co. . 372 
 
 Gillen v. Canary 71, 300 
 
 Gillespie v. Forrest 162 
 
 Gillespie, Matter of v. Mulhol- 
 
 land \ 34 
 
 Gillet V. Borden 474 
 
 Gillet V. Pairchild 744 
 
 Gillet V. Moody 744 
 
 Gillian v. Norton 555 
 
 Gillig V. Treadwell Co 656, 689 
 
 Gilman v. Prentice 596 
 
 Gilmore v. Ham 113 
 
 Gilmore v. Hempstead .... 345, 340 
 
 Glaoius v. Fogel 177 
 
 Glaeken v. Brown 81, 166 
 
 Gladke v. Masehke 616 
 
 Glaubensklee v. H. & A. Packet 
 
 Co 342 
 
 Gleason v. Bisby 496 
 
 Gleason v. Moen 440 
 
 Glen & Hall Mfg. Co. v. Hall 
 
 446, 447, 546 
 Glen Cove Starch Mfg. Co. v. 
 
 Gotthold 059 
 
 Glens Falls Paper Co. v. White 484 
 G lines v. Binghamton Trust 
 
 Co 701 
 
 Glines v. Supreme, etc 276 
 
TABLE OF CASES. 
 
 Xli 
 
 Glover v. Manhaitan Ry. Co. 556 
 Goddard v. Prance & Bates . . 53 
 
 Goddard v. Medicine Co 353 
 
 Godfrey v. Godfrey 679 
 
 Godfrey v. Pell 2S2 
 
 Gcff V. Star Printing Co 338 
 
 Gold V. Bissell 524 
 
 Gold & Stock Tel. Co. v. Todd 
 
 548, 572 
 
 Golberg v. Utley 417 
 
 Golden Gate Con. Co. v. Jack- 
 son 636 
 
 Goldmark v. Magnolia Metal 
 
 Co 298 
 
 Goodale v. Central Nat'l. Bk. 433 
 
 Goodard v. Trenbatli 49 
 
 Gooding v. Richards 86 
 
 Gooding v. McAlister 406 
 
 Goodman v. Robb..385, 464, 476 
 
 Goodrich v. James 358 
 
 Goodrich v. McDonald 51 
 
 Goodwin v. Conklin 442 
 
 Goodwin v. Wertheimer. .405, 436 
 
 Goodyear v. Betts 704 
 
 Goodyear v. Com. F. Ins. Co. 682 
 Goodyear Dental Co. v. 
 
 Friselle 123 
 
 Goosen v. Goosen 460 
 
 Gopsill V. Decker 302 
 
 Gordon v. Fox 497 
 
 Gordon v. Strong 810 
 
 Gotendorf v. Goldsehmidt. . . 184 
 
 Gould V. Glass 347, 474 
 
 Gould V. Mortimer 800 
 
 Gould V. Root 267, 279 
 
 Gould V. Sherman 508 
 
 Gould V. Spencer 5 
 
 Goulding v. Bain 705 
 
 Govin V. Miranda 355 
 
 Gowdy V. Poullain 367, 778 
 
 Gowtry v. Doane 336 
 
 Graeffe v. Currie 491 
 
 Grafton v. Weeks 201 
 
 Graham v. Ackley 315 
 
 Graham v. Dunnigan 478 
 
 Graham v. Harrower 435 
 
 Graham v. Livingston 84 
 
 Graham v. People 790 
 
 Graham v. Pinekney 257 
 
 Graham v. Powers 290 
 
 Graham v. Read 4] 9 
 
 Graham v. Scripture 122 
 
 Grange v. Gilbert 441 
 
 Grant v. Birdsall 192 
 
 Grant v. Chester 34 
 
 Grant v. Griswold 830 
 
 Graves v. Graham 201 
 
 Graves v. Waite 34s 
 
 Graves v. Spier 349 
 
 Gray v. Kendall 339, 833 
 
 Gray v. N. Y. & Va. atp. Co. 148 
 
 Gray v. Rothschild 143, 518 
 
 Gray v. Solis 653 
 
 Gray v. Thomas 593 
 
 Grazebrook v. MeCreedie 43 
 
 Greaves v. Gouge 148 
 
 Grell V. Globe, etc., Co 31] 
 
 Green v. Odell 722 
 
 Green v. Martine 816, 817 
 
 Green v. Squires 224 
 
 Green v. U. S. Dealers' Pro. 
 
 Assn 571 
 
 Green v. Warren 28S 
 
 Greenbaum v. Dwyer 221 
 
 Greenfield v. Mass. Mut. L. 
 
 Ins. Co 158, 390 
 
 Greenleaf v. Mumford. . . .642, 661 
 Greentree v. Eosenstock . . 653, 654 
 
 Greenwood v. Marvin 801 
 
 Gregory v. Gregory. .543, 704, 710 
 
 Gregory v. Levy 536 
 
 Grevell v. Whiteman 616 
 
 Gribbon v. Freel 628, 779 
 
 Gridley v. Gridley 356, 406 
 
 Griffin v. Barton 255 
 
 Griffin v. Griffin 97 
 
 Griffin v. Long I. R. R. Co. 431, 433 
 
 Griffin v. Winne 579 
 
 Griffiths V. DeForest 770 
 
 Griffiths V. Williams 760 
 
 Grimes v. Davison 508 
 
 Grimm v. Grimm 593 
 
 Grissler v. Stuyvesant 563 
 
 Griswold, Matter of 673 
 
 Griswold v. Stoughton 804 
 
 Griswold v. Sweet. . .484, 506, 514 
 
xlii 
 
 TABLE OF CASES. 
 
 Groesbeeck v. Bunsoomb 729 
 
 Groshon v. Lyon 470 
 
 Gross V. Clark 279, 360 
 
 Gross V. Graves 492 
 
 Groth V. Washburn 99 
 
 Grover v. Morris 98, 413 
 
 Groenstein v. Jablonsky . . . . 429 
 
 Grussy v. Schneider 756 
 
 Guarantee Trust, etc., Co. v. 
 
 P. R. & N. E. E. E. Co. .777, 784 
 Guardian Mut. L. Ins. Co., 
 
 Matter of 745 
 
 Guardian Sav. Inst. v. Bowl- 
 ing Green Sav. Bank 721 
 
 Guilleman v. Rowe 40 
 
 Guman v. Allen 659 
 
 Gunn V. Fellows 332 
 
 Gurnee v. Beach 322 
 
 Gurney v. Sharp 791 
 
 Gurnsey v. Powers 705 
 
 Gutbrecht v. Prospect Park & 
 
 C. I. E. R. Co 791 
 
 Gutta Percha Mfg. Co. v. 
 Mayor, etc 615 
 
 H. 
 
 Haberstro v. Bedford 528, 534 
 
 Habieht v. Pemberton 158 
 
 Hackett v. Belden 819 
 
 Hackett v. Richards 427 
 
 Hackley v. Draper 
 
 132, 465, 466, 746 
 
 Hackley v. Ogmun 437 
 
 Hadley v. Boehm 375 
 
 Haebler v. Bernharth. .615, 616 
 
 Haight V. Avery 110 
 
 Haight V. Child 397 
 
 Haight V. Hayt 810 
 
 Haight V. Moore 45, 288, 290 
 
 Haight V. Webster 407 
 
 Hailey v. Ano 239 
 
 Haines v. Herrick 431 
 
 Haines v. Hollister 471 
 
 Haines v. Jeroloman 486 
 
 Halben v. Reilly 651 
 
 Halden v. Craft 113 
 
 Hale V. Omaha Nat'l. Bk... 
 
 464, 466, 474 
 
 Hale V. Prote 621, 638 
 
 Hall V. Bartlett 36 
 
 Hall V. Brennan Ill 
 
 Hall V. Brooks 660, 666 
 
 Hall V. Fisher 416 
 
 Hall V. Hall 418, 421 
 
 Hall V. Holt 764 
 
 Hall V. Huntley 393 
 
 Hall V. Ledlie 667 
 
 Hall V. Olney 374 
 
 Hall V. Sampson 646 
 
 Hallen v. Jones 511 
 
 Hallenback v. Whitaker 258 
 
 Hallenbarten, Matter of 124 
 
 Hallett V. Hallett 849 
 
 Hallett V. narrower 395 
 
 Hallett V. Righters 777 
 
 Hallgarten v. Eckert 280 
 
 Hallock V. Scheyer 557 
 
 Hallock V. Smith 177 
 
 Halpin v. Phenix Ins. Co. 755, 757 
 
 Halstead v. Black 327, 328 
 
 Halstead v. Cockroft 811, 820 
 
 Halstead v. Dodge 149 
 
 Halstead v. Halstead 375 
 
 Hamburger v. Baker 233 
 
 Hamilton v. Gorman 825 
 
 Hamilton Park Co., Matter of 552 
 
 Hamilton v. Penney 635 
 
 Hamilton v. Eoyal Ins. Co . . 
 
 109, 118, 120 
 Hamilton v. Wright. . .'. .29, 39, 43 
 Hammerschlag v. Cathoseope 
 
 Elec. Co 674 
 
 Hammond v. Earle 387, 431 
 
 Hampton v. Baylan 54 
 
 Hancock v. Hancock 820 
 
 Hand v. Burrows 794 
 
 Handley v. Quick 222 
 
 Hanlon v. Supervisors of West- 
 chester 572 
 
 Hann v. Culver 101 
 
 Hanover F. Ins. Co. v. Ger- 
 
 mania F. Ins. Co 540, 698 
 
 Hanover F. Ins. Co. v. Tomlin- 
 
 son 122 
 
 Hannover Nat. Bk. v. Stebbins 618 
 Hansee v. Mead 434 
 
TABLE OF CASES. 
 
 xliii 
 
 Harlilnson v. Von VolKenburgh 841 
 
 Hardenbrook's Case 503 
 
 Harding v. Eliott 665 
 
 Harding v. Holden 22 
 
 Hargous v. Lahens 750 
 
 Harker v. Mayor 323 
 
 Harmon v. Vanderbilt Hotel 
 
 Co 400, 404 
 
 Harold v. Hefferman 584 
 
 Harrington v. Slade 367, 738 
 
 Harris v. Bennett 302 
 
 Harris v. Brown 272 
 
 Harris v. Clark 267 
 
 Harris v. Durkee 506, 777, 783 
 
 Harris v. Elliott 50, 465 
 
 Harris v. Ensign 284, 285 
 
 Harris v. Larkin 171 
 
 Harris v. Muloek 750 
 
 Harris v. Mutual L. Ins. Co. . 135 
 
 Harris v. Norvell 149 
 
 Harris v. Tumbridge 369, 371 
 
 Harris v. Warren 802 
 
 narrower v. Heath 371 
 
 Harrison v. Neher 272 
 
 Harrison v. Newton 564 
 
 Harry v. Hilton 42 
 
 Hart V. Hart 60 
 
 Hart V. Kennedy 503 
 
 Hart V. Kip 104 
 
 Hart V. Mayor 49 
 
 Hart V. 0. & L. C. R. R. Co. 837 
 
 Hart V. Ten Eyck 849 
 
 Harter V. Wescott 602, 003 
 
 Hartley v. James 339 
 
 Hartt V. Harvey 552, 506 
 
 Hartwell v. Armstrong 567 
 
 Hartwell v. Riley 242 
 
 Harvey v. The Provident Sav. 
 
 Soo 362 
 
 Harwood v. LaGrange 48, 51 
 
 Hasbrouck v. Bunce. .167, 818, 820 
 
 Haskin, Matter of 34 
 
 Hassan v. City of Rochester. . 573 
 
 Haswell v. Lincks 210 
 
 Hastings v. McKinley 2, 145 
 
 Hatch V. Baez 57, 504 
 
 Hatch V. Central Nat'I. Bk.. 
 
 305, 786, 797 
 
 Hatch V. Ransom 
 
 
 506 
 
 Hatch V. W. U. Tel. Co. 
 
 
 611 
 
 Hatfield V. Secor 
 
 .777, 
 
 , 778 
 
 Hatfield v. Todd 
 
 
 400 
 
 Hathaway v. Brayman . . 
 
 
 046 
 
 Hathaway v. Howell .... 
 
 
 291 
 
 Hathaway v. Johnson . . . 
 
 .489 
 
 , 498 
 
 Hathaway v. Scott 
 
 
 254 
 
 Hatheway v. Am. Min. 
 
 Stock 
 
 
 Ex 
 
 
 206 
 
 Hathorn v. Hall 
 
 
 518 
 
 Hatzel V. Hoffman House. . . . 
 
 458 
 
 Haulenbeck v. Heac^oek. 
 
 
 714 
 
 Haulenbeck v. McGibbon 
 
 
 52 
 
 Hauseman v. Sterling. . . 
 
 .835, 
 
 , 843 
 
 Havana City E. E. Co. v. 
 
 
 Ceballos 39, 335, 
 
 350, 
 
 470 
 
 Havemeyer v. Havemeyer . . . . 
 
 ^78 
 
 Hawkins v. Governor . . . 
 
 
 567 
 
 Hawkins v. Pakas 
 
 .272, 
 
 080 
 
 Hawksley v. Bradshaw. 
 
 
 700 
 
 Hawley v. Bates 
 
 
 789 
 
 Hawley v. Davis 
 
 
 709 
 
 Hawley v. Maneius 
 
 
 561 
 
 Hawley v. Whalen 
 
 ..74, 
 
 111 
 
 Hayes v. Beard 
 
 
 519 
 
 Hay V. Hay 
 
 
 413 
 
 Hayden v. Hayden .:.... 
 
 
 137 
 
 I-layden v. Nat. Bk., etc. 
 
 .652, 
 
 654 
 
 Hayden v. Pierce 
 
 .108, 
 
 118 
 
 Hayden v. Van Cortlanat 
 
 
 834 
 
 Haynes v. Onderdonk .... 
 
 .190, 
 
 241 
 
 Hays V. Berryman 
 
 
 43S 
 
 Hays V. Hathorn 
 
 
 145 
 
 Hayward v. Hood 
 
 .376, 
 
 560 
 
 Hayward v. McDonald . . . 
 
 
 416 
 
 liaywood v. Thayer 
 
 
 296 
 
 Hazard v. Birdsall 
 
 
 336 
 
 Hazard v. Caswell 
 
 
 575 
 
 Hazard v. Israel 
 
 
 21 
 
 Head v. Wollner 
 
 
 020 
 
 Healey, Matter of 
 
 ,202, 
 
 203 
 
 Health Dept. v. Dassori . . 
 
 
 780 
 
 Health Dept. of N. Y. v. 
 
 Pur- 
 
 
 
 
 564 
 
 Health Dept. of N. Y. v. Police 
 
 
 Dept 
 
 ,570, 
 
 584 
 
 Heath v. N. Y. B. L. B. 
 
 Co. 
 
 784 
 
xliv 
 
 TADLE OF CASES. 
 
 Hebard v. Haughian 53 
 
 Hecht V. Levy 491: 
 
 Heckemami v. Young 770 
 
 Heoker v. Mayor, etc 580 
 
 Hecker v. ilitchell 380 
 
 Hecker v. Sexton 182 
 
 Hedges v. Conger 122 
 
 Hedges v. Payne 523 
 
 Hees V. Nellis 162, 471 
 
 Hees V. Snell 787 
 
 Hegeman v. Wilson 593 
 
 Hegerich v. Keddie 
 
 802, 808, 809, 813 
 Hegewiseh v. Silver. .130, 720, 825 
 
 Heidelbach v. Kilpatriek 453 
 
 Heinmuller v. Gray. .809, 811, 820 
 
 Heli, Matter of 710 
 
 Heller v. Heller 199 
 
 Heller, Matter of 132, 133 
 
 Helmprecht v. Bowen 135 
 
 Hemmingway v. Poueher.321, 421 
 Hempstead v. Hempstead. . . . 335 
 Hempstead v. N. Y. C. R. R. 
 
 Co 369 
 
 Hemson v. Decker 420 
 
 Henderson v. Jackson 399 
 
 Henderson v. Savage 793 
 
 Henricus v. Englert 143 
 
 Henriques v. Trowbridge .... 380 
 Henriques v. Yale Univ.... 479 
 
 Henry v. Bow 251 
 
 Henry v. Randall 785 
 
 Henry v. Salisbury 695 
 
 Hentz V. L. I. R. R. Co 545 
 
 Hepburn v. Arclier 841, 848 
 
 Herbert v. Day 442 
 
 Herbert v. Lawrence 42 
 
 Herbert v. Smith 784 
 
 Hergman v. Dettlebach . . 647, 666 
 
 Herman v. Lyons 769 
 
 Hermann v. Aaronson 529 
 
 Herron v. Stokes 202 
 
 Hersberg v. Murray 794 
 
 Hertz V. Stuart 619, 621, 637 
 
 Hess V. Allen 37 
 
 Hess V. Buff. & Niagara F. 
 
 R. R. Co 473 
 
 Hess V. Hess 047 
 
 Hetzel V. Tannehill Sil. Min. 
 
 Co 306 
 
 Heyman v. Mittlestaedt 520 
 
 Heywood Boot, etc., Co. v. 
 
 Ralph 757 
 
 Hibbard v. Randolph 772 
 
 Plibernia Nat'l. Bk. v. La- 
 combe 612 
 
 Hickey v. Yvelin 213 
 
 Hickok V. Bliss 105 
 
 Hickox V. Weaver 38 
 
 Hicks V. Charlick 848 
 
 Hicksville & C. R. R. Co. v. 
 
 L. I. R. R. Co 440 
 
 Hier V. Abrahams 574 
 
 Hier v. N. Y., West. Shore & 
 
 Buf . R. R. Co 557 
 
 Higenbotam v. Green 354 
 
 Higgins V. Bishop 847 
 
 Higgins V. Crichton 406, 47. 'J 
 
 Higgins V. Crouse 95 
 
 Higgins V. Freeman 234 
 
 Higgins V. Healy 686 
 
 Higgins V. Higgins 101 
 
 Higgins V. Higgins Soap Co . . 575 
 
 Higgins V. Mayor 816 
 
 Higgins V. McConnell 640 
 
 High Rock, rttc, Co. v. Bron- 
 
 ner 342 
 
 Hildreth v. Carpenter 765 
 
 Hill v. Burke 302 
 
 Hill V. Gibbs 162 
 
 Hill V. Northrop 773 
 
 Hill V. Schneider 565 
 
 Hill V. Supervisors 108 
 
 Hill V. Thacter 333, 339, 394 
 
 Hill V. Warner 429 
 
 Hillebrandt, Matter of 34 
 
 Hiller v. B. & M. R. R. Co. 208, 209 
 
 Hillis V. Bleckert 493 
 
 Hills V. Miller 555 
 
 Hilsen v. Libby 325 
 
 Hilton V. Carr 386 
 
 Hilton V. Sinsheimer 785 
 
 Hinck V. Desser 51S 
 
 Hinckley v. Miles 561 
 
TABLE OF CASES. 
 
 xlv 
 
 Hinman v. Borden 23 
 
 Hinman v. Bi-ees 24 
 
 Hirschfeld v. Bopp 43 
 
 Hirschfeld v. Fitzgerald. .161, 822 
 Hhschfeld v. Kalischer. . .132, 722 
 
 Hitchcock V. Peterson 507 
 
 Hitehings v. Van Brunt 45 
 
 Hitchman v. Baxter 195 
 
 Hoag V. Lamont 149 
 
 Hobart v. Hobart 275 
 
 Hobart College v. Pitzhugh.. 158 
 
 Hobbs V. Bashford 523 
 
 Hoohstetter v. Isaacs 371 
 
 Hodge V. Perinc 578 
 
 Hodges V. Webber 810, 816 
 
 Hodgkin v. Mead 793 
 
 Hoff V. Pentz 352 
 
 HofiFenbruth v. Miller 40 
 
 Hoffman v. Hoffman 367 
 
 Hoffman v. N. Y., L. E. & W. 
 
 E. R. Co 431 
 
 Hoffman v. Tredwell . 280, 821, 826 
 
 Hoffman v. Seixas 846 
 
 Hoffman v. Susemihl 430 
 
 Hoffman v. Rowley 38 
 
 Hoffman v. Van Nostrandt. . . 44 
 
 Hogan V. Wolf 94 
 
 Hoghtaling v. Osborn 5 
 
 Holcomb V. Rice 603 
 
 Holland Tr. Co. v. Cons. Gas, 
 
 etc., Co 700, 710 
 
 Hollenbeck v. Clow 430 
 
 Hollenbeck v. Donnell 704, 70S 
 
 Hollender v. Hall 201 
 
 Holliday v. Parker 812 
 
 Hollingsworth v. Spectator 
 
 Co 465, 476 
 
 Hollins V. St. L. & C. R. R. Co. 39 
 
 Hollister v. Hollister 327 
 
 Holly Mfg. Co. V. Venner ... 848 
 
 Holmes v. Honie 828 
 
 Holmes v. McDowell 714 
 
 Holmes v. Rogers 274 
 
 Holmes v. Seely 167 
 
 Holmes v. Williams 782 
 
 Holsman v. St. John. 809, 814, 815 
 
 Holt V. Streeter 164 
 
 Holthausin v. Pondir 54 
 
 Holtz V. Schmidt 843 
 
 Holyoke v. Adams.. 373, 374, 375 
 Home Ins. Co. v. Penn. R. R. 
 
 Co 56 
 
 Home Provident, etc.. Matter 
 
 of 721 
 
 Hone V. Woolsey 800 
 
 Hooker v. Martin 176 
 
 Hoorman v. Climax Cycle Co. 
 
 254, 631, 032 
 
 Hope V. Acker 609 
 
 Hopkins v. Flynn 791 
 
 Hopkins v. Hopkins 388, 812 
 
 Hopkins v. Lane 13, 342, 401 
 
 Hopper V. Hopper 150 
 
 Hopper, Matter of 14, 133 
 
 Hoppough V. Struble 81 
 
 Hopson, Matter of 59 
 
 Home V. Montgomery 343 
 
 Hornfager v. Hornfager 823 
 
 Horowitz V. Olenick 527 
 
 Horst V. Yuengling Brew. Co. 835 
 
 Horton v. Horton 435 
 
 Hotchkiss V. Crocker 248, 393 
 
 Hotchkiss V. Hotchkiss 588 
 
 Hotehkiss v. Piatt 003, 004 
 
 Hotaling v. McKenzie 136 
 
 Hough V. Solmsbee 490 
 
 Hovey v. Rubber Tip Pencil Co. 604 
 
 Howard v. Howard 88 
 
 Howard v. Mich. South. R. R. 
 
 Co 467 
 
 Howard v. Park 601 
 
 Howard v. Prudential Ins. Co. 210 
 
 Howard v. Raymond 439 
 
 Howard v. Taylor 822, 827 
 
 Howd V. Cole 438 
 
 Howe V. Deuel 550 
 
 Howe V. Elwell 382, 429 
 
 Howe V. Howe Mach. Co 574 
 
 Howe V. Peckham 412 
 
 Howe V. Roch. Iron. Mfg. Co. 576 
 Howe Mach. Co. v. Gifford.. 310 
 Howe Mach. Co. v. Pettibone 
 
 221, 225 
 
 Howell V. Adams 112 
 
 Howell V. Denniston 257, 803 
 
 H:owell V. Leavitt 90, 167 
 
xlvi 
 
 TABLE OF CASES. 
 
 Howell V. Ripley. 697, 698, 699, 700 
 Hewlett V. N. Y., West Sh. & 
 
 Buf. R. R. Co 5oO 
 
 Hoyt V. Am. Exchange Bk. . 849 
 
 Hoyt V. Campbell 269, 270 
 
 Hoyt V. Carter 786 
 
 Hoyt V. Continental Ins. Co . . 747 
 
 Hoyt V. Godfrey 494 
 
 Hoyt V. Jackson 52 
 
 Hoyt, Matter of 46 
 
 Hoyt V. McKenzie 571 
 
 Hoyt V. Mead 163 
 
 Hoyt V. Putnam 102 
 
 Hoyt V. Sheldon 374 
 
 Hoyt V. Thompson 747 
 
 Hoyt V. Tuthill 101 
 
 Hubbard, Matter of 67 
 
 Hubbard v. Otis 358 
 
 Hubbell V. Lerch 168, 416 
 
 Hubbell V. Livingston 333 
 
 Hubbell V. Medbury. .102, 113, 157 
 Hubbell V. Merchants' Nat. Bk. 148 
 
 Hubbell V. Sibley 84, 92 
 
 Hughes V. Chicago, M. & St. P. 
 
 R. R. Co 389 
 
 Hughes V. Rathbone 825 
 
 Hughes V. Wood 803 
 
 Hulbert v. Clark 92 
 
 Hulbert Bros. Co. v. Hohman . 360 
 
 Hulce V. Thompson 545 
 
 Hull V. Ball 339, 345 
 
 Hull v. Canandaigua Elec. Co. 198 
 
 Hull V. Hart 520 
 
 Hull V. Spratt 242 
 
 Hull V. Thomas 591 
 
 Hultslander v. Thompson.... 119 
 
 Humbert v. Trinity Ch 84, 88 
 
 Humble v. McDonough 429 
 
 Humphrey v. Hayes 512 
 
 Humphreys v. Hurtt 560 
 
 Humphry v. Cottleyou 359 
 
 Hunt Y. Bennett 323 
 
 Hunt V. Brennan 233 
 
 Hunt V. Burrel 524 
 
 Hunt V. Chapman 448 
 
 Hunt V. Dutcher 328 
 
 Hunt V. Grant 795 
 
 Hunt V. Robinson 633 
 
 Hunt V. Wallis 275, 801 
 
 Hunter v. H. R. I. & M. Co. . 370 
 
 Hunter v. LeConte 255 
 
 Hunter v. Lester 198, 799 
 
 Jluntington v. American Bk. . 761 
 
 Hurd V. Davis 288 
 
 Hurd, Matter of 618 
 
 Hurlburt v. Banks 554 
 
 Hurlburt v. Hurlburt 54 
 
 Husson V. Fox 843 
 
 Husson, Matter of 33 
 
 Hutchins v. Smith 159 
 
 Hutchinson v. N. Y. C. Mills. . 595 
 
 Hyatt V. Bates 569 
 
 Hyatt V. Dusenbury 790 
 
 Hyatt V. Ingalls 58 
 
 Hyatt V. Swivel 222 
 
 Hyman v. Kapp 623 
 
 Hyde v. Lynde 744 
 
 Hyde v. Salg 344 
 
 Hygeia, etc., Co. v. N. Y. Hy- 
 
 geia, etc., Co 575 
 
 Hynes v. F. L. & T. Co 143 
 
 I. 
 
 I. P. & C. R. R. Co. V. Tyng. . 143 
 India Rubber Co. v. Rubber 
 
 Comb, &c., Co 575 
 
 Industrial, etc.. Trust Co. v. 
 
 Tod 298 
 
 Ingersoll v. Mangam.184, 199, 231 
 
 Inslee v. Hampton 454, 455 
 
 Ireland v. Met. Elec. Ry. Co. 377 
 
 Ireland v. Nichols 701 
 
 Irwin V. Judd 510, 788 
 
 Isaacs v. Beth Hamedash Sec. 5 
 
 Iselin V. Port Royal R. R. Co. 681 
 
 Iselin V. Rowland 143, 14.> 
 
 Isham V. Davison 818 
 
 Isnard v. Caseaux 135', 136 
 
 Israel v. Voight 315 
 
 Ives V. Holden 679 
 
 Ives V. Ives 2, 41 
 
 Ives V. Lockwood 658 
 
 Ives V. Metro. L. I. Co 205 
 
TABLE OP CASES. 
 
 xlvii 
 
 J. & S. P. R. Co. V. Morley. . 320 
 
 Jack V. Martin 323 
 
 Jackling v. Edmonds 844 
 
 Jackson v. Anderson -23 
 
 Jackson v. Brown 413 
 
 Jackson v. Bunnell 540, 581 
 
 Jackson v. Cains 90 
 
 Jackson v. City of N. Y 475 
 
 Jackson v. Collins 23 
 
 Jackson v. Giles 270 
 
 Jackson v. Howd 289 
 
 Jackson v. Johnson 84 
 
 Jackson v. Moore 90 
 
 Jackson v. Parker 34 
 
 Jackson v. Robins 90 
 
 Jackson v. Schauber 307 
 
 Jackson v. Schoonmaker 8 / 
 
 Jackson v. Sellick 84 
 
 Jackson v. Smith 803 
 
 Jackson v. Stiles 255 
 
 Jackson v. Virgil 254 
 
 Jackson v. Wilson 279 
 
 Jackson v. Woodruff 86, 87 
 
 Jacobs V. Hogan 634, 673 
 
 Jacobs V. Miller 252, 269 
 
 Jacquerson v. Van Erben 229 
 
 Jacques v. Greenwood 333 
 
 Jaeger v. Bowery Bk 453 
 
 Jafi'ray v. Brown 240 
 
 Jaffray v. Nast 631 
 
 Jaillard v. Tomes 342 
 
 James v. Bennett 812 
 
 James v. Richardson. 254, 631, 639 
 
 James v. Shea 316 
 
 Jarvis v. Palmer 466 
 
 Jarvis v. Pike 459 
 
 Jay's Case 722 
 
 Jeffras v. McKillop & Sprague 
 
 Co 385 
 
 Jenkins v. Adams 48 
 
 Jenkins v. Fahey 228, 378 
 
 Jenkins v. Jenkins 709 
 
 Jerome v. Flagg 221 
 
 Jessurun v. Mackie 563 
 
 Jetter, Matter of 245 
 
 Jewett V. Crane 536, 537 
 
 Jewell V. Schouten 38, 286 
 
 Jeweller's Merc. Agency v. 
 
 Jeweller's W. P. Co 549 
 
 Jewett V. Pickersgill 315 
 
 Jex V. Jacobs 796 
 
 Jex V. Mayor 94 
 
 John Church Co. v. Clarice. . 443 
 
 John S. Way Mfg. Co. v. Corn 842 
 .Johnson v. Buekel. . .621, 638, 643 
 
 Johnson v. Casey... 251, 597, 609 
 
 Johnson v. City of Rochester 576 
 
 Johnson v. Cochrane 705 
 
 Johnson v. Columbia Ins. Co. 761 
 Johnson v. Con. Silver Min. 
 
 Co 842 
 
 Johnson v. El wood 600, 813 
 
 Johnson v. Mallory 351 
 
 Johnson v. Mickle 178 
 
 Johnson v. Wallace 150 
 
 Johnson v. Whitman 492 
 
 Johnston v. Catlin 774 
 
 Johnston Harvester Co. v. 
 
 Meinhardt 542, 577 
 
 Johnston v. Stimmel 66 
 
 Johnston v. Winter 192 
 
 Jones V. Blum 737 
 
 Jones V. Brooks 234 
 
 Jones V. Butler 419 
 
 Jones V. Cook 270 
 
 Jones V. Easton 282 
 
 Jones V. Ludlam 429 
 
 Jones V. McGee 455 
 
 Jones V. Newton 778 
 
 Jones V. Palmer 397 
 
 Jones V. U. S. Slate Co 213 
 
 Jordan v. Garrison 257 
 
 Jordan v. Harrison 520 
 
 Jordan v. Nat'l. Shoe & L. 
 
 Bk 451, 452, 461 
 
 Jorgensen v. Minister of Ref. 
 
 Ch 94 
 
 Joyce V. Cooper 136 
 
 Judd V. Fulton 293, 294 
 
 Judd V. Smith 329 
 
 Judd Linseed Oil, etc., Co. v. 
 
 Hubbell 799 
 
 Judson V. Cent. Vt. R. R. Co. 786 
 Juliano Ware Co. v. Sands. 41 6, 471 
 
xlviii 
 
 TABLE OF CASES. 
 
 Julien V. Lalor 176 
 
 Julio V. Ingalls 844, 846 
 
 Jurgens v. Turn Suden 621 
 
 Justum V. Bricklayers' Union 
 
 355, 356 
 
 z. 
 
 Kabell v. Hudson 760 
 
 Kaiser v. Kaiser 97 
 
 Kain v. Dickel 382 
 
 Kain v. Larkin 464 
 
 Kamp V. Kamp 280, 801 
 
 Kane v. Prentice 124 
 
 Kane v. Vanderburgh 579 
 
 Kanouse v. Martin 66 
 
 Kapp V. Barthan 709 
 
 Kastner v. Durant 235 
 
 Kattenstroth v. Aator Bk .... 702 
 
 Kaufman v. Keenan 46 
 
 Kaufman v. Lee 169 
 
 Kautz V. Vandenburgh 
 
 771, 772, 774 
 
 Kay V. Whittaker 384 
 
 Keeler v. Brooklyn Ele. R. R. 
 
 Co 748 
 
 Keeler t. Vanderpool 791 
 
 Keeney v. Home Ins. Co 716 
 
 Keep V. Kaufman 412 
 
 Keep V. Lord 450 
 
 Keifer v. Thomass 384 
 
 Keilty v. Traynor 843 
 
 Kelley v. McMahon 601. 
 
 Kellogg V. Baker 
 
 324, 384, 387, 436 
 
 Kellogg V. Howell 800 
 
 Kellogg V. Paine 352, 358, 359 
 
 Kelly V. Babcock 648 
 
 Kelly V. Barnett 380 
 
 Kelly V. Countryman 628 
 
 Kelly V. Downing 419 
 
 Kelly V. Jeroloman 585, 591 
 
 Kelly V. McCormick 781 
 
 Kelly V. Potter 102 
 
 Kelly V. Roberts 649 
 
 Kelly V. Scripture 491 
 
 Kelly V. Sheehan 283, 797 
 
 Kelly V. West 758, 759 
 
 Kelly V. Woman Pub. Co 340 
 
 Kelsey v. Bradbury 16i 
 
 Kelsey v. Griswold 113 
 
 Kelsey v. Jewett 831 
 
 Kelsey v. Sargent 353 
 
 Kendall y. Washburn. 219, 226, 777 
 
 Kendriek, Matter of 107, 115 
 
 Kennedy v. N. Y. Life Ins. & 
 
 T. Co 221, 222 
 
 Kennedy v. Simmons. .. .513, 583 
 Kennedy v. Twenty-third St. 
 
 R. R. Co 136 
 
 Kent V. Church of St. Michael 141 
 
 Kent V. West 133 
 
 Kenyon v. N. Y. C. & H. R. 
 
 R. R. Co 786 
 
 Kern v. Rackow 516, 513 
 
 Kerr v. Blodgett 161, 317 
 
 Kerr v. Hays 389 
 
 Kerr v. McGuire 283 
 
 Kerr v. Mount 189, 682 
 
 Kerr v. Un. Mut. L. Ins. Co . . 153 
 
 Kessler v. Levy 495 
 
 Ketehum, Matter of 34 
 
 Keteltas v. Myers 329, 330 
 
 Keyes v. EUensohn 184 
 
 Key West Bldg. Asso. v. Bank 
 
 of Key West 674 
 
 Kibbe v. Wetmore 
 
 623, 678, 680, 783 
 
 Kidd V. Dennison 579 
 
 Kidder v. Horrobin 55, 56 
 
 Kieley v. Mfg. Co 628, 629 
 
 Kiernan v. Manhattan Quo. 
 
 Tel. Co 572 
 
 Kilbourne v. B'd. of Super- 
 visors 94 
 
 Kilbourne v. St. John 573 
 
 Killmer v. Hobart 613 
 
 Kilts v. Seeber 769 
 
 Kincaid v. Archibald 115 
 
 Kineaid v. Richardson 91 
 
 Kindberg v. Freeman 242 
 
 Kingham v. Robbins 761 
 
 King V. Barnes 264 
 
 King V. King. . .643, 6Y8, 707, 788 
 
 King V. Leighton 261 
 
 King, Matter of 51 
 
TABLE OF CASES. 
 
 xlis 
 
 King V. Townshend 179 
 
 King V. Utica Ins. Co 427 
 
 Kingsley v. Kingsley 437 
 
 Kip V. N. Y. & Harlem R. R. 
 
 Co 467 
 
 Kirby v. Colwell 682 
 
 Kirkland v. Aikin 345 
 
 Kissam v. Marshall . 642, 782, 790 
 
 Kissock V. Grant 640 
 
 Kittle V. Kittle 558, 559 
 
 Kittle V. Van Dyck 177 
 
 Kloh V. N. Y. Fertilizer Co.. 681 
 
 Klump V. Gardner 271 
 
 Knapp V. City of Brooklyn.. 321 
 
 Knapp, Matter of 33, 34, 47 
 
 Knapp V. Roche 370, 433 
 
 Knapp V. Valentine 122 
 
 Knauer v. Knauer 823 
 
 Kneeland v. Martin 794 
 
 Kniekerbacker v. DeFreest . . 183 
 Knickerbocker Ice Co. v. 
 
 Shultz 180, 556 
 
 Knickerboclier L. Ins. Co. v. 
 
 Eeelesine 484, 485, 508 
 
 Knight V. Beach 758 
 
 Knoch V. Funke 815 
 
 Knox V. Baldwin 94 
 
 Knox V. McDonald 503 
 
 Knox V. Metro. Ele. R. Co 85 
 
 Koehler v. Adler 433 
 
 Koehler v. F. & D. Bk 591 
 
 Koepke v. Bradley 166, 171 
 
 Kokomo Strawboard Co. v. In- 
 
 man 782 
 
 Korn V. Met. Ele. R. R. Co. . . 141 
 Kostar v. Board of Excise. . . 569 
 Kranse v. Rutherford. . . .510, 511 
 
 Kreiss v. Seligman 359 
 
 Kramer v. Police Dept 577 
 
 Krower v. Reynolds 404 
 
 Kuhlman v. Orser 645 
 
 Krumbeck v. Clancy 811 
 
 Kuh V. Barnett 258 
 
 Kuhne v. Daily 33 
 
 Kuntzv. The C.C.White Co.. 603 
 Kursheedt v. W. D. S. Inst. . . 242 
 
 Kunz V. Bachman 238 
 
 D 
 
 Lachenmeyer v. Lachenmeyer 513 
 
 Lacker v. Dresler 254, C31 
 
 Lacustrine, &c., Co. v. Lake 
 
 Guano Co 576 
 
 Lacy V. Wilkinson. . .■ 335 
 
 I;add V. Stevenson 797 
 
 Ladd V. Terre Haute C. & M. 
 
 Co 220 
 
 Ladenburg v. Coml. Bk 777 
 
 Ladew v. Hart 561 
 
 Ladow V. Groome 255 
 
 LaFarge v. Mitchell 226 
 
 LaFarge v. Van Wagenen .... 274 
 
 I.aForg* V. Chilson 770 
 
 LaFrombois v. Jackson 88 
 
 Laimbeer v. Allen 254 
 
 Laing v. Morse 252 
 
 Lambert v. Perry 355 
 
 Lamldn v. Douglass. .614, 636, 641 
 
 Lamkin v. Oppenheim 506 
 
 Lamkin v. Starkey 504 
 
 Lammer v. Stoddard 113 
 
 Lamming v. Galusha. . . .412, 417 
 Lamson Store Ser. Co. v. 
 
 Conyngham 336, 432 
 
 Lament v. Cheshire 242 
 
 Landers v. Fisher 607 
 
 Landon v. Van Etten 775 
 
 Lane v. Gary 283 
 
 Lane v. IST. Y. L. Ins. Co. 309, 313 
 
 Lane v. Hayward 795 
 
 Langdon v. Brown 359 
 
 Langdon v. Townshend. . . .141, 176 
 
 Langley v. Hawk 709 
 
 Langley v. Warner 789 
 
 Lanslow, Matter of 50 
 
 Lanpher v. Clark 371 
 
 Lansing v. Bliss 162 
 
 Lansing v. Easton 593 
 
 Lansing v. Eddy 562 
 
 Lansing v. Ensign 48 
 
 Lansing v. Hadsall 334 
 
 Lansing v. Lansing 782 
 
 Lansing v. McKillup 283 
 
 Lansingh v. Parker 437 
 
1 
 
 TABLE OF CASES. 
 
 Lapaugh v. Wilson 784 
 
 Lapeous v. Hart 51 3 
 
 Larned v. Hudson 408 
 
 Lasher v. Williamson 443 
 
 Lasson v. Aronson 196 
 
 Latham v. Richards 373, 374 
 
 Lattin v. McCarthy. .403, 409, 473 
 
 Latourette v. Latourette 640 
 
 Lauf er v. Sayles 94 
 
 Laurie v. Laurie 588 
 
 Lavalle v. Skelly. . . .297, 777, 797 
 
 Lavery v. Hannigan 557 
 
 Lawlor v. Magnolia Metal Co. 
 
 675. 695 
 Lawrence v. Bk. of Republic 647 
 
 Lawrence v. Foxwell ■ . . 506 
 
 Lawrence v. Hopkins 114 
 
 Lawrence v. Jones . . . 246, 676, 801 
 
 Lawrence v. Mayor, etc 553 
 
 Lawrence v. Miller 756 
 
 Lawi'enee v. Saratoga L. R. 
 
 R. Co 548 
 
 Lawrence v. Wright 320, 397 
 
 Lawton v. Green 
 
 600, 601, 602, 603, 605 
 
 Lawton v. Kiel 260, 639, 787 
 
 Lawton v. Lawton 142 
 
 Lawton v. Shepherd 766 
 
 Lazier v. Westeott 323 
 
 Leach v. Cook 620 
 
 Leavenworth v. Packer 440 
 
 Leavitt v. Dabney 602 
 
 Lee V. Hunter 646 
 
 Lee V. Jacob 381 
 
 Lee V. LaCompagnie Univer- 
 
 selle, etc 638, 639 
 
 Lee V. Vacuum Oil Co 48 
 
 Lee V. Valley Paper Mill 637 
 
 Lee V. Whallon 180 
 
 Leef V. Nassau Elee. Co 49 
 
 Leetch v. Atlantic Mut. Ins. 
 
 Co 791 
 
 Lefevre v. Laraway 188 
 
 Leflferts v. Brampton 833, 844 
 
 LefBngwell v. Chave 
 
 581, 587, 589, 790 
 Leggett V. Dubois 821, 828 
 
 Leggett V. Mut. L. Ins. Co. . . . 176 
 Lehigh Coal Co. v. Central R. 
 
 R. of New Jersey 728 
 
 Lehmaier v. Buchner 632 
 
 Lehman v. Williams 657 
 
 Lemon v. Smith 820 
 
 Lennon v. Stiles 244 
 
 Lennox Corporation, Matter of 730 
 
 Lent V. McQueen.... 712 
 
 Leon V. Bernheimer 397 
 
 Leonard v. Columbia S. Nav. 
 
 Co 55 
 
 Leonard v. Morris 178 
 
 Leonard v. Pitney 114 
 
 Leopold V. Poppenheimer 393 
 
 Lerche v. Brasher 446 
 
 LeRoy v. Bedell 305 
 
 LeRoy v. Mayor, etc 66, 567 
 
 Leroy v. Shaw 163 
 
 Leslie v. Leslie 457 
 
 Levey v. N. Y. C. & H. R. R. 
 
 R. Co 837, 842 
 
 Levy v. Bernhard 514, 519 
 
 Levy V. Levy i'lQ 
 
 Lewin v. Wright 365, 779 
 
 Lewis V. Acker 429, 437 
 
 Lewis V. Day 48 
 
 Lewis V. Duane 42 
 
 Lewis & Fowler Mfg. Co., 
 
 Matter of 715 
 
 Lewis V. Graham 264 
 
 Lexington Ave., Matter of . . •^ 6 
 
 Liddell v. Paton 491 
 
 Lightf oot V. Cameron 202 
 
 Lignat v. Redding 448 
 
 Linden v. Fritz 420 
 
 Linden v. Hepburn 540 
 
 Link V. Mack 757 
 
 Linton v. W. F. Co 427 
 
 Lintz V. Howard 773 
 
 Lintzenich v. Stevens 362 
 
 Lipman v. J. A. I. Works. . . . 478 
 
 Lipman v. Shapiro 490 
 
 Lisher v. Parnelee 268 
 
 Lister v. Wright 56 
 
 Litchfield v. Burwell 
 
 188, 211, 213, 290 
 
TABLE OF CASES. 
 
 Littell V. Sayre 411, 47-3 
 
 Littlefield v. Albany Co. Bk . . 450 
 
 Littlefield v. Littlefield 110 
 
 Littlefield v. Murin 290, 423 
 
 Littlejohn v. Attrill 577 
 
 Littlejohn v. Leffingwell .... 
 
 25, 225, 578, 609 
 
 Littlejohn v. Munn 333 
 
 Livermore v. Rhodes 022 
 
 Livermore v. Bainbridge.795, 810 
 
 Livingston v. Bank of N. Y. 587 
 
 livingston v. Curtis 830 
 
 Livingston v. Hammer .... 379, 427 
 
 Livingston v. Harrison 437 
 
 Livingston v. Livingston 570 
 
 Livingston v. Mclntyre 28S 
 
 Livingston v. N. Y. Ele. R. R. 
 
 Co , 289 
 
 Livingston v. Peru Iron Co. . 88 
 
 Livingston v. Radcliff 41 
 
 Livingston v. Reynolds 579 
 
 Livingston v. Van Ingen 556 
 
 Llorens v. Costa 707 
 
 Lloyd V. Burns 429 
 
 Lobb V. Hundson 525 
 
 Locke V. Covert 746 
 
 Lockmen v. Reilly 177 
 
 Lockwood V. Brantly 222 
 
 Loekwood v. House 52 
 
 Loder v. Hatfield 92 
 
 Loder v. Whelpley 52 
 
 Loew, Matter of 31 
 
 Loftus, Matter of 282 
 
 Londriggan v. N. Y. & N. H. 
 
 R. R. Co 103 
 
 Long V. Greville 700 
 
 Long V. Mayor, etc 740 
 
 Longuemare v. Nichols 523 
 
 Longyear v. Carter 47 
 
 Looniis V. Decker 115 
 
 Loomis V. Thirty-fourth St. R. 
 
 R. Co 589 
 
 Lord V. Cheesborough . . . .230, 380 
 
 Lord V. Lord 158 
 
 Lord V. Spielman 833 
 
 Lord V. Vandenburgh 289 
 
 Lord V. Vreeland 465 
 
 Lorillard v. Clyde 321, 46S 
 
 Lorillard, Matter of 47 
 
 Loring v. Binney 227 
 
 Loring v. Morrison 709 
 
 Losee v. Bullard 98, 114 
 
 Losee v. Stanley 193 
 
 Lottimer v. Lord 
 
 697, 699, 716, 721, 726 
 
 Lough V. Outerbridge 436 
 
 Love V. Deiskes 151 
 
 Love V. Humphrey 504 
 
 Lovell V. Martin 516, 518 
 
 Loveridge v. Hill 52 
 
 Lovett V. Pell '. 408 
 
 Low V. Graydon 801, 835, 844 
 
 Low V. Hart 575 
 
 Lowber v. Mayor, etc 269 
 
 Lowerre v. Ovrens 244 
 
 Lowman v. E. C. & N. R. R. 
 
 Co 41 
 
 Lowry v. Inman 480 
 
 Lucas V. Albee 504 
 
 Lucas V. East Stroudsburgh 
 
 Glass Co 450 
 
 Lucas V. Johnson 168 
 
 Lucas V. Trustees of Bap. Ch. 802 
 
 Ludlow V. McCarthy 446 
 
 Ludvigh V. Dusseldorf 541 
 
 Ludwig V. Blum 190, 628, 8 IS 
 
 Ludwig V. Gillispie 159 
 
 Lugar V. Byrnes 386 
 
 Lukens Iron, etc., Co. v. Payne 
 
 022, 634 
 Lumbard v. S. B. & N. Y. R. R. 
 
 Co 775 
 
 Lunney v. Mayor 367, 778 
 
 Lust V. Hastings 43 
 
 Lutz V. Third Ave. R. R. Co. . . 830 
 
 Lyle V. Smith 800 
 
 Lynch v. Crary 042, 049 
 
 Lynch v. Livingston 18 
 
 Lynch v. Todd 338 
 
 Lynde v. Montgomery 620 
 
 Lyon V. Baxter 637 
 
 Lyon V. Botchford 588, 593 
 
 Lyon V. Cahill 43 
 
 Lyon V. Park 
 
 809, 810, 815, 821, 822 
 Lyon V. Yates 682 
 
lii 
 
 TABLE OF CASES. 
 
 Lyons v. Murat 137, 342 
 
 Lyster v. Pearson 204 
 
 Lyth V. Green 430 
 
 M. 
 
 Matter of, See name of party. 
 
 McAlexander v. Wright 39 
 
 MeAUen, Petition of 135 
 
 McAllister v. Pond 834 
 
 McArdell v. Olcott 161 
 
 McBride v. Am. Surety Co.. 470 
 
 McBride, Matter of 34 
 
 MeBride v. Farmers' Bk. .613, 667 
 
 McCabe v. Goodfellow 147 
 
 McCaflfery v. Smith 557 
 
 McCallum v. Barnard 533 
 
 McCarthy v. McCarthy. . 190, 215 
 
 McCarthy v. Peake 702 
 
 McCarty v. O'Donnell 383 
 
 McCaulay v. Palmer 279 
 
 McClave v. Thompson 149 
 
 McClellan v. Buncombe 355 
 
 McCIure v. Wilson 412 
 
 McCombs V. Allen 641 
 
 McCool V. Boiler 225 
 
 McCormick v. Penn. R. R. Co. 59 
 McCoun V. N. Y. C. & H. R. 
 
 R. R.'Co 194 
 
 McCracken v. Flannagan 222 
 
 McCrane v. Moulton 781 
 
 McCrea v. Hopper 454 
 
 McCreery v. Ghormley 848 
 
 McCue, Matter of, v. Super- 
 visors 76 
 
 McCue V. Tribune Assn.. 261, 262 
 
 McCulIoch V. Norwood 823 
 
 McCulloh V. Paillard Watch 
 
 Co 208 
 
 McCullough V. Carrigan 650 
 
 McCullough V. Pence 480 
 
 McCully V. Heller 220, 227 
 
 McDonald v. Brass Goods Mfg. 
 
 Co. 185 
 
 McDonald v. James 604 
 
 McDonald v. Davis 373, 458 
 
 McElvey v. Lewis 705 
 
 McElwain v. Corning 785 
 
 McEIwee Mfg. Co. v. Trow- 
 bridge 456 
 
 McEncroe v. Decker 431, 608 
 
 McEwen v. Mont. Co. Mut. 
 
 Ins. Co 283 
 
 McFarland v. Delaney 590 
 
 McGarry v. Smith 721 
 
 McGean v. Met. Ele. R. R. Co. 822 
 
 McGinn v. Ross 654, 661 
 
 McGown V. Leavenworth . . 235, 296 
 
 McGrath v. Maxwell 122 
 
 McGregor v. McGregor 150 
 
 McGuffin V. Dinsmore 147, 833 
 
 McGuire v. Bausher 494 
 
 ]\TcGuire v. Bloomingdale .... 540 
 McGuire v. N. Y. C. & H. R. 
 
 R. R. Co 813 
 
 McHeneh v. McHench 724 
 
 McHenry v. Jewett. .542, 545, 546 
 McHugh V. B. H. & E. R. R. 
 
 Co 542 
 
 Mclllhanney v. Magie 838 
 
 Mclntire v. Rowan 781 
 
 Mcintosh V. Ensign 165 
 
 Mcintosh V. Mcintosh 485 
 
 Mclntyre v. Bank 282 
 
 Jlelntyre v. Carrier 74 
 
 Mclntyre v. Sanford 22 
 
 Mclntyre v. Trumbull 21 
 
 McKay v. Harrower 691 
 
 McKee v. Flaherty 278 
 
 McKeen v. Fish 812 
 
 McKenzie v. Farrell 427 
 
 MeKenzie v. L'Amoureaux . . . 159 
 
 McKenzie v. Rhodes 51 
 
 McKenzie v. Smith 533 
 
 McKeon v. See 565 
 
 McKernan v. Robinson. . 123, 124 
 
 McKinlay v. Fowler 618, 682 
 
 McKinney v. Collins 221, 800 
 
 McKinney v. McKinney 352 
 
 McKnight v. Baker 235 
 
 McKoney v. Glen 781 
 
 McKyring v. Bull... 322, 433, 435 
 
 McLachlin v. Brett 791, 810 
 
 McLaren v. McMartin 116 
 
 jMcLaughlin v. Bieber 234 
 
 McLaughlin v. Nichols 327 
 
TABLE OF CASES. 
 
 liii 
 
 McLean v. Stewart 784, 780 
 
 McLoughlin v. Crawford 187 
 
 McLoughlin v. Mayor 827 
 
 McMahon v. Brooklyn City R. 
 
 R. Co 280 
 
 McMahon v. Rauhr 70 
 
 McManus v. Western Assoc. 
 
 Co 426, 432 
 
 McMaster v. Davidson 149 
 
 McMullen v. Rafferty 112, 116 
 
 McMurray v. McMurray. .187, 188 
 
 McNamee v. Tenny 115 
 
 McNamara v. Nolan 135 
 
 McNulta V. Huntington 816 
 
 McParland v. Bain 744 
 
 McPherson v. Cox 41 
 
 McQuigan v. D., L. & W. R. R. 
 
 Co 837 
 
 McRobert v. Harrison 563 
 
 McSobert v. Pooly 376 
 
 McSorley v. Gombreoht 577 
 
 McTeague v. Coulter 409 
 
 McVey v. Contrell 387 
 
 McViekar v. Keating 722, 783 
 
 Mabie v. Adams 378 
 
 Macaulay, Matter of 343 
 
 Mackay v. Lewis 503, 504 
 
 Mackey v. Auer 464 
 
 Mackey v. Daniel 517 
 
 Mackinnon v. Barnes 323 
 
 Madders v. Whallon 369 
 
 Madison Av. Bap. Ch. v. Bap. 
 
 Ch. in Oliver Street 67 
 
 Magee v. Cutler 162, 569 
 
 Magnin v. Dinsmore 774 
 
 Magnolia Metal Co. v. Ster- 
 
 lingsworth 44 
 
 Mahr v. N. W. F. Ins. Soc. . . 142 
 
 Malcolm v. Fullerton 760 
 
 Malcomb v. Miller 547 
 
 Malcomb v. Jennings 19 
 
 Mallory v. Norton 561 
 
 Malone v. Sherman 347 
 
 Manchester v. Braedner 115 
 
 Manchester v. Herrington . 824, 831 
 
 Manda v. Etienne 641 
 
 Mandeville v. Reynolds 81 
 
 Mandeville v. Winne 235, 333 
 
 Mang, Matter of 183 
 
 Manhattan Iron Works v. 
 
 French 563 
 
 Manhat. R. R. Co. v. Taber . . 276 
 
 Manice v. Gould 675 
 
 Manley v. Bonnel 836 
 
 Manley v. Leggett 589, 595 
 
 Manley v. Rassiga 720 
 
 Man. & Mer. Bk. v. Cowden . . 259 
 
 Mann v. Fairchild 102 
 
 Mann v. Marsh 475 
 
 Mann v. Milne 464, 476 
 
 Mann v. Pentz 744 
 
 Manne v. Carlson 379 
 
 Manneck Mfg. Co. v. Manneck 
 
 542, 560 
 
 Manning v. Benedict 357 
 
 Manning v. Cassidy 600 
 
 Manning v. Gould 302 
 
 Manning v. Pratt 81.3 
 
 Manning v. Stern 700 
 
 Manning v. Winter 434 
 
 Manton v. Poole 615 
 
 Mapes V. Brown 193, 361 
 
 Mapes V. Snyder 812 
 
 Maples V. Mackey 214 
 
 Mapleson v. Del Puente 570 
 
 Marble v. Lewis 770 
 
 Marcele v. Satlzman 266 
 
 March v. Davison 840 
 
 March v. Ludlum 52 
 
 Margraf v. Muir 409 
 
 Marie v. Garrison 
 
 325, 348, 462, 467, 474 
 Mark v. City of Buffalo ... 40, 285 
 
 Mark v. Hyatt 600, 603 
 
 Markell v. Nester 815 
 
 Market Nat. Bk. v. Pacific 
 
 Nat. Bk 227,294 
 
 Marks v. La Soc. Anonyme . . . 
 
 201, 202 
 
 Marks v. Townsend 40 7 
 
 Marquat v. Marquat 419 
 
 Mars V. Albany Sav. Bk 311 
 
 Marselis v. Seaman 196 
 
 Marsh v. Benson 66 
 
 Marsh v. Berry 785 
 
 Marsh v. Hussy 723 
 
liv 
 
 TABLE OF CASES. 
 
 Marsh v. McNair : 377 
 
 Marsh v. Woolsey 282 
 
 Marshall v. Bresler 395, 404 
 
 Marshall v. Meech. .46, 47, 48, 270 
 
 Marshall v. Peters 577 
 
 Marshall v. Rockwood 330 
 
 Marstaller v. Mills 809 
 
 Marten v. Van Schaiek '706 
 
 Martin v. Aluminum Co. .254, 632 
 
 Martin v. Gross 507, 516 
 
 Martin v. Home Bank 368 
 
 Martin v. Kanouse 381 
 
 Martin v. Kunzmuller 450 
 
 Martin v. Lynch 491 
 
 Martin v. Piatt 53 
 
 Martin v. Rector 107 
 
 Martin v. Spofford 833 
 
 Martine v. Albro 830 
 
 Marvin v. Brandy 229 
 
 Marvin v. Ellwood 310, 312 
 
 Marvin v. Levris 267 
 
 Marvin v. Marvin 293 
 
 Marvin Safe Co. v. Mayor, etc. 553 
 
 Marx V. Cianeimino 674, 675 
 
 Mason v. Bidleman 257 
 
 Mason v. Hand 194 
 
 Mason v. Henry 96, 745 
 
 Mason v. Libbey 203 
 
 Mason v. N. Y. Silk Mfg. Co. 740 
 
 Masten v. Blaekwell 819 
 
 Masten v. Olcott 103 
 
 Masters v. De Zavala 458 
 
 Masterton v. Bolts 147 
 
 Mather v. Hannaur 514, 525 
 
 Mathez v. Neidig 149 
 
 Matthews v. Cook 793 
 
 Matthews v. D. & H. C. Co . . 
 
 809, 812 
 
 Matthews v Matthews 435 
 
 Matthews v. Murchison . . 602, 604 
 
 Matthews v. Xoble 12 
 
 Matthews v. Smith 344 
 
 Matthews v. Tufts 201, 202 
 
 Matter of, See name of party. 
 
 Mattiee v. Gifford 585 
 
 JMattison v. Demarest 161 
 
 Mattison v. Smith 389, 428 
 
 Mattlage v. N. Y. El. R. R. Co. 543 
 
 Maxfield v. Taylor 664 
 
 Maxon v. Cain 33 
 
 Maxson v. D., L. & W. R. R. 
 
 Co 99 
 
 Maxwell, Matter of 39 
 
 May V. Cooper 278 
 
 Mayer v. Frankfeld 163 
 
 Mayer v. Friedman 104 
 
 Mayer v. Gilligan 562 
 
 Mayer v. Mayer 356 
 
 Mayer v. Mayor, etc 573 
 
 Mayor v. Coffin 306 
 
 Mayor, etc. v. Conover 279, 566 
 
 Mayor, etc. v. Doody 328 
 
 Mayor, etc. v. East Bay L. & 
 
 Imp. Co 795 
 
 Mayor, etc. v. Eisler 192, 195 
 
 Mayor, etc. v. Genet 637, 643 
 
 Mayor, etc. v. Keteham 4.55 
 
 Mayor, etc. v. Longstreet 557 
 
 Mayor, etc. v. Lyons 805 
 
 Mayor, etc. v. N. Y. & S. I. 
 
 Perry Co 549, 589, 591, 592 
 
 Mayor, etc. v. Smith 232 
 
 Mayor of Albany v. Cunliflf. . 349 
 Mayor of Rochester v. Curtiss 564 
 
 Mayne v. Griswold 148 
 
 M. E. Ch. in Pultney v. Stew- 
 art 143 
 
 Mead v. Jenkins 174 
 
 Meade v. Langf ord 74 
 
 Meager v. Smith 760 
 
 Mechanics' Bk. v. Levy 325 
 
 Mechanics' Bk. V. Minthorne . . 778 
 Mechanics' & Tr. Bk. v. Dakin 614 
 
 Meech v. Calkins 257 
 
 Meekin v. Brooklyn H'gts.809, 810 
 
 Mehesy v. Kahn 838 
 
 Meldon v. Devlin 786, 790 
 
 Meneely v. Meneely 575 
 
 Mensac, In Re 134 
 
 Merchants' Nat. Bk. v. Com. 
 
 Ex. Bk 4.58 
 
 Merchants' Tr. Co. v. Kings 
 
 Co. El. R. R. Co 738 
 
 Meueci v. Raudnitz 484 
 
TABLE OF CASES. 
 
 Iv 
 
 Merchant v. N. Y. L. Ins. Co. 421 
 Merchants' Bk. of New Haven 
 
 V. Bliss 08 
 
 Merchants' Nat. Bk. v. Colum- 
 bia Co 632, 634 
 
 Merguelle v. Continental 
 
 Bank-Note Co 844 
 
 Merkee v. City of Rochester . . 231 
 Merriam v. Wood & Parker 
 
 Co 638, 674 
 
 Merrick v. Van Santvoord .... 50 
 
 Merrill v. George 201 
 
 Merrill v. Grinnell 393 
 
 Merritt v. Baker 2C9 
 
 Merritt v. Bartholick 175 
 
 Merritt v. Carpenter. .. .105, 486 
 
 Merritt v. Lyon 130 
 
 Merritt v. Lyons 722 
 
 Merritt v. Sparling 721 
 
 Merritt v. Thompson 
 
 276, 537, 541, 765, 767 
 
 Mertz V. Fenouillet 626 
 
 Metealf v. Clark 200 
 
 Meth. Ch., etc. v. Barker 603 
 
 Meton, etc. v. Isham Wagon 
 
 Co 340 
 
 Met. El. E. E,. Co. v. Manhat. 
 
 El. R. E. Co 610 
 
 Met. Trust Co. v. T. V. & C. 
 
 E. E. Co 721 
 
 Meyer v. Belden 486, 507 
 
 Meyer v. City of Louisville . . 786 
 
 Meyer v. Feigel 370 
 
 Meyer v. Lent 270 
 
 Meyer v. Lexow 747 
 
 Meyer v. Phillips 576 
 
 Meyer v. Seebald 705 
 
 Meyer v. Van Collem 404 
 
 Michaelis v. Towne 490 
 
 Michaels v. Hain 201 
 
 Michigan v. Phoenix Bank .... 56 
 
 Mickles v. Hart 21 
 
 Middleton v. Dodswell 709 
 
 Middletown v. R. & O. R. R. 
 
 Co 279, 550 
 
 Milburn v. Fovrler 556 
 
 Miles v. Brown 652 
 
 Milhau V. Sharp 553, 564 
 
 Millady v. Stein 812 
 
 Millbank v. Broadway Bk 790 
 
 Millbank v. Jones 435 
 
 Miller v. Brenham 103, 212 
 
 Miller v. Bush 157 
 
 Miller v. Downing 88 
 
 Miller v. Freeborn 455 
 
 Miller v. Heath 479 
 
 Miller v. Johnson 374 
 
 Miller v. Jones 208, 220 
 
 Miller v. Levy 171 
 
 Miller v. Losee 460 
 
 Miller v. McClosky 430, 431 
 
 Miller v. Miller 427 
 
 Miller v. Parks 519 
 
 Miller v. Ring 315 
 
 Miller v. Eogers 815 
 
 Miller v. Schall 44, 288 
 
 Miller v. Wood 95 
 
 Milliken v. Dart 622 
 
 Millius V. Shafer 254 
 
 Mills V. Bliss 238, 239, 244 
 
 Mills V. Corbett 626 
 
 Mills V. Davis 112 
 
 Mills v. Hildreth 533 
 
 Mills V. Mills 92 
 
 Mills V. Thursby 264, 789 
 
 Mills V. Van Voorhies 177 
 
 Mills V. Young 23 
 
 Millville Mfg. Co. v. Salter.. 430 
 
 Miner v. Beekman 84, 92 
 
 Miner v. Gardiner 837 
 
 Minier, ex parte 25 
 
 Minturn v. Main 144 
 
 Mitchell V. Allen 
 
 271, 367, 373, 375, 795 
 
 Mitchell V. Barnes 705 
 
 Mitchell V. Bettman 547 
 
 Mitchell V. Volgar 296 
 
 Moffat V. Fulton 493 
 
 Moifit V. McLaughlin 464 
 
 Mohawk Bridge Co. v. Utica & 
 
 Schenectady R. R. Co 564 
 
 Mojarrieta v. Saenz 
 
 252, 629, 639, 791 
 
 Moloney v. Dows 338 
 
 Molloy V. Lennon 217 
 
 Moloughney v. Kavanagh. .51, 316 
 
Ivi 
 
 TABLE OP CASES. 
 
 Montegriffo v. Musti 194 
 
 Montgomery v. Ellis 797 
 
 Montgomery v. Montgomery. . 95 
 
 Montralt v. Hutchins 264, 799 
 
 Mooney v. La Follette 494 
 
 Moore v. Appleby 173 
 
 Moore v. Belloni 351 
 
 Moore v. Board of Pilots .... 569 
 
 Moore v. Brink 152 
 
 Moore v. Calvert 50" 
 
 Moore v. Cooley 136 
 
 Moore v. City of Troy 137 
 
 Moore v. Hamilton 824 
 
 Moore v. McKinstry 810 
 
 Moore, Matter of 2 
 
 Moore v. Smith 413 
 
 Moore v. Taylor 698 
 
 Mora V. McCredy 838 
 
 Mora V. Sun Mut. Ins. Co . . . 422 
 
 Moran v. Helf 344 
 
 Moran v. Lydeeker 162 
 
 Moran v. Sturgess 655 
 
 Moran v. Vreeland 833 
 
 More V. Deyoe 166, 167, 169 
 
 More V. Rand 442 
 
 More V. Thayer 190, 817 
 
 Moreland v. Sandford 801 
 
 Morey v. Safe Deposit Co 383 
 
 Morf ord v. Davis 434 
 
 Morgan v. A^ery 619, 638 
 
 Morgan v. City of Bingham- 
 
 ton 553 
 
 Morgan v. Fillmore 311 
 
 Morgan v. Morgan 835 
 
 Morgan, Matter of 582 
 
 Mori v. Pearsall 16 
 
 Moriarty v. Bartlett 813 
 
 Morrell v. Kimball 211 
 
 Morris v. Crawford 314 
 
 Morris v. Morange 288 
 
 Morris v. Talcott 495 
 
 Morris v. Van Voast 100 
 
 Morris v. Wheeler 176 
 
 Morris v. Whelan 566 
 
 Morrison v. L'Hommodieu .... 359 
 
 Morrison v. Metro. Kl. E. Co. 784 
 
 Morrison v. Watson- 616 
 
 Morrow v. Morrow 115 
 
 Morse v. Cloyes 558 
 
 Morse v. Morse 171 
 
 Mortimer v. Chambers 102 
 
 Morton v. Chesley 490 
 
 Mosher v. Campbell 74 
 
 Mosher v. Yost 166 
 
 Moseley v. Alb. & N. E. R. Co. 823 
 
 Moses V. McDivitt 35 
 
 Moser v. Polhamus 609 
 
 Moses V. Waterbury Button 
 
 Co 535, 536, 680 
 
 Moss V. Cohen 404 
 
 Mott V. Burnett 436 
 
 Mott V. Consumers' Ice Co. 536, 837 
 Mott V. Union Bk. of N. Y. .. 512 
 
 Moulton V. Beecher 364, 394 
 
 Moulton V. Carty 799 
 
 Moulton V. Cornish 472 
 
 MuUer v. Earle 374 
 
 Muller V. Muller 367, 368 
 
 MuUer v. Perrin 508 
 
 Mullins V. Metro. L. I. Co ... . 205 
 
 Mulry V. Norton 576 
 
 Mumford y. Murray 43 
 
 Mundt V. Glokner 151, 816 
 
 Munger v. Shannon 349, 380 
 
 Munn V. Bamum 284, 467 
 
 Munroe v. Merchant 87 
 
 Munzinger v. Courier Co. .366, 781 
 Murdock v. International T. 
 
 & T. Co 14, 15 
 
 Murdock v. Waterman 116 
 
 Murphy v. Baldwin 618 
 
 Murphy v. Hall 618, 787 
 
 Murphy v. Jack 633 
 
 Murphy v. Shea 213 
 
 Murr V. Western Ass. Co. . . . 756 
 
 Murray v. Bethune 760, 761 
 
 Murray v. Blatchford 787 
 
 Murray v. Hankin 636 
 
 Murray v. Hay 141 
 
 Murray v. Jibson 49 
 
 Murray, Matter of 32 
 
 Murray v. N. Y. Life Ins. Co. 432 
 
 Murray v. Vanderbilt 209 
 
 Murray Hill Bk., Matter of . . 731 
 
 Murtha v. Curley 419, 421 
 
 Muser v. Miller 499 
 
TABLE OF CASES. 
 
 Ivii 
 
 Musgrave v. Sherwood 601 
 
 Musgrove v. Nash 72i: 
 
 Mussina v. Stillman 38 4 
 
 Mut. Life Ins. Co. v. Bigler.2, 579 
 Mut. Life Ins. Co. v. Carey. 52, 53 
 Mut. Life Ins. Co. v. Dake. . . 170 
 Mut. Life Ins Co. v. O'Donnell 285 
 Mut. Life Ins. Co. v. Smith.. 123 
 
 Myers" v. Dorman 485 
 
 Myers v. Gerrits 341 
 
 Myers v. Machado 158 
 
 Myers v. Overton 19S 
 
 Mygatt V. Wilcox 113 
 
 Mynderse v. Snook 442 
 
 N. 
 
 N. H. W. Co. V. Ferris. . , 517 
 
 Nagle V. Junker 785 
 
 Nagle V. Taggert 203, 210 
 
 Nanetty v. Naylor 377 
 
 Nason Mfg. Co. v. Garden. ... 738 
 
 Nash V. Hall Signal Co 417 
 
 Nash V. McCauley 396 
 
 Nash V. Weidenfeld 448 
 
 Nash V. White's Bk. of Buflf. . 448 
 
 Nassau Bank v. Yandez 311 
 
 Nathans v. Hope 405 
 
 Nat. Bank v. Levy 151 
 
 Nat. Bk. of Auburn v. Lewis 448 
 IJat. Bk. of Port Jervis v. 
 
 Hansee 282 
 
 Nat. City Bk. v. N. Y. Gold 
 
 Ex. Bk 786 
 
 Nat. Exhib. Co. v. Crane. .47, 49 
 Nat. Mich. B'k'g. Ass'n v. 
 
 Usher 122 
 
 Nat. Park Bk. v. Whitmore. . . 
 
 622, 635 
 
 Nat. Pipe Co. v. Fisher 350 
 
 Nat. Shoe & Leather Bk. v. 
 
 Mechanics' Nat. Bk.'...764, 765 
 Nat. Union Bk. v. Riger. . .704, 706 
 
 Naylor v. Lane 50 
 
 Neal V. Sachs 633, 637 
 
 Neale v. Osborne 590, 592 
 
 Nealis v. Am. Tube & Iron Co. 738 
 Nebenzahl v. Townsend 407 
 
 Neele v. Berryhill 18, 778 
 
 Negus V. City of Brooklyn. 568, 721 
 
 Nehresheimer v. Bowe 386 
 
 Neiberg v. Neiberg 3(5 
 
 Keilly, Matter of U3 
 
 Neilly v. Neilly 143 
 
 Nellis V. DePorest 400 
 
 Nellis V. Nellis 173 
 
 Nelson V. Brown 178 
 
 Nelson v. Eaton 321 
 
 Nelson V. Loder 757 
 
 Nelson v. Nixon 144 
 
 Nelson v. Plimpton F. P. El. 
 
 Co 756 
 
 Nemetty v. Naylor 454 
 
 Meuberger v. Webb.. 341, 344, 382 
 Neudecker v. Kohlberg. .347, 399 
 
 Neugent v. Swan 601 
 
 Neustadt v. Joel 540, 541 
 
 Neville v. Neville 499 
 
 New V. Aland 367 
 
 Newberger v. Campbell 38 
 
 Newbury v. Furnival 805 
 
 Newbury v. Newbury. .. ^251, 607 
 
 Newcomb v. Reed 248 
 
 Newell V. Doran 509 
 
 Newell V. Newell 373 
 
 New England Iron Co. v. N. 
 
 Y. Loan & Imp. Co 843 
 
 N. J. Steel & Iron Co. v. Rob- 
 inson 465 
 
 Ncwland v, Wiilett 789 
 
 Newman v. Newman 839 
 
 Newton v. Lee 440 
 
 Newton v. Russell 603, 604 
 
 N. Y. & Harlem R. R. Co. v. 
 
 Haws 561, 563 
 
 N. Y. & Harlem R. R. Co. v. 
 
 Mayor, etc 265 
 
 N. Y. & N. H. R. R. Co. v. 
 
 Schuyler 472, 558, 560, 583 
 
 N. Y. & W. U. Tel. Co. v. 
 
 Jewett, Matter of. .723, 726, 749 
 N. Y. Att. Pulv. Co. V. Van 
 
 Tuyl 597 
 
 N. Y. Bank Note Co. v. Hamil- 
 ton Bank Note Co 833 
 
 N. Y. Cab Co. v. Mooney .574 
 
Iviii 
 
 TABLE OF CASES. 
 
 N. Y. Card Co. v. Union PI. 
 Card Co 575 
 
 N. Y. C. & H. E. R. R. Co. v. 
 Pettit 831 
 
 N. Y. C. & H. R. R. E. Co. v. 
 Shepherd 523 
 
 N. Y. C. & H. R. R. R. Co. v. 
 Village of Hastings 600 
 
 N. Y. Fire & M. Ins. Co. v. 
 Burrell 753 
 
 >?. Y. Ice Co. V. N. W. Ins. Co. 
 
 420, 785 
 
 N Y. Infant Asylum v. Super- 
 visors of Westchester Co.. . 572 
 
 N. Y. Ins. Co. V. N. W. Ins. Co. 
 of Oswego 81 
 
 N. Y. Juv. Guardian Soc. v. 
 Roosevelt 571 
 
 N. Y. Life Ins. Co. v. Aitkin. . 
 
 92, 123 
 
 N. Y. Life Ins. Co. v. Super- 
 visors of N. Y 540 
 
 N. Y. Life Ins. & T. Co. v. 
 Cuthbert 334 
 
 N. Y. Life Ins. & T. Co. v. 
 Rand 14 
 
 N. Y. Mar. Iron Wks. v. Smith 326 
 
 N. Y. Oxygen Co., Matter of. 809 
 
 N. Y. Sec. & T. Co. v. Lipmar 
 
 595, 601 
 
 N. Y. State Milk Pan Ass'n. v. 
 Remington Ag'r. Works . 366, 780 
 
 TV . Y. Sub. Water Co. v. Bissell 600 
 
 X. Y., W. Shore & B. R. E. Co., 
 Matter of 805 
 
 N. Y. Wire Co. v. Westing- 
 house, etc., Co 363, 773 
 
 Niagara Falls Int. B. Co. v. 
 Gr't. Western R. R. Co 544 
 
 Niagara Grape Market Co. v. 
 Wyant 644 
 
 Nichols V. Drew 417, 473 
 
 Nichols V. Jones 432 
 
 Nichols V. Lumpkin 465, 476 
 
 Nichols V. Nichols 801 
 
 Nichols V. Voorhis 573 
 
 Nickerson v. Canton Marble 
 Co 336, 432 
 
 Nicoll V. Boyd 726, 727 
 
 Nicoll V. Spowers 716 
 
 Niggli V. Froehry 435 
 
 Niles V. Vanderzee 200 
 
 Ninety Pl'ffs. V. Vanderbilt... 39 
 Ninth Ave. R. R. Co. v. N. Y. 
 
 El. R. R. Co.. .543, 557, 564, 601 
 
 Niver v. Niver 487 
 
 Noble, ex parte 125 
 
 Noe V. Christie 159 
 
 Noe V. Gibson 718 
 
 Nones v. Hope Mut. L. Ins. Co. 
 
 204, 468 
 
 Noonan v. Grace 542 
 
 Noonan v. N. Y., L. E. & W. R. 
 
 R. Co 272 
 
 Nordlinger v. De Mier 232 
 
 Northampton Nat. Bk. v. 
 
 Wylie 641 
 
 Northrop v. Hill 114 
 
 Morthrup v. Van Deusen.... 
 
 264, 270, 271 
 
 Norton v. Dreyfuss 448 
 
 Norton v. Hayes 139 
 
 Norton v. Snyder 576 
 
 Nosser v. Corwin 190 
 
 Nourny v. Dubosty 329 
 
 Noyes v. Wernberg 160 
 
 Noyes v. Wyckoff 755 
 
 0. 
 
 Oakes v. Howell 102 
 
 Oakley v. Aspinwall 13, 14 
 
 Oakley v. Bend 143 
 
 Oakley v. Morton 329 
 
 Oakley v. Tugwell 466 
 
 Obergon v. DeMier 537 
 
 O'Beirne v. Lloyd 405 
 
 O'Brien v. Blaut 810 
 
 O'Brien v. Browning 161 
 
 O'Brien v. Meeh. & Traders 
 
 P. Ins. Co 653, 654, 658 
 
 O'Callaghan v. Prazer 710 
 
 Ochs V. Prey 400 
 
 Ocean Nat. Bk. v. Pant 755 
 
 O'Connor v. Garrigan 175 
 
 O'Connor, Matter of 59 
 
TABLE OF, CASES. 
 
 lix 
 
 O'Connor v. N. Y. & Yonkers 
 
 Land Imp. Co 603 
 
 O'Donnell v. McMurn 597 
 
 O'Dougherty v. Remington 
 
 P'pr Co 441 
 
 Oechs V. Cook 427 
 
 Oelberman v. N. Y. & N. R. R. 
 
 Co 374 
 
 Oertel v. Wood 549 
 
 Oestrich v. Gilbert 42 
 
 Ogden St., Matter of 12 
 
 Ogden V. Devlin 43, 44 
 
 Ogden V. Prentice 153 
 
 0. & L. C. R. R. Co. V. Vt. & 
 
 Canada R. R. Co 
 
 204, 210, 232, 468 
 Ogdensburgh Bk. v. Paige. . . . 466 
 
 O'Keefe V. Shepard 41 
 
 Olcott V. Carroll 347, 388, 475 
 
 Olcott V. McLean 56, 231 
 
 Olcott V. Tioga R. R. Co. .103, 104 
 Olean R. Co. v. Pairmount Co. 210 
 
 Olery v. Brown 140 
 
 Oliver v. French 264 
 
 Oliwell V. Verdenhalven 48 
 
 Olpherts v. Smith 747 
 
 Olssen V. Smith 545 
 
 O'Mahoney v. Belmont 
 
 699, 701, 708 
 
 Oneida Nat. Bk. v. Paldi 66S 
 
 O'Neil V. Bender 225 
 
 O'Neil V. Durkee 529 
 
 O'Neil V. Hoover 796 
 
 O'Neil, In Re 52 
 
 O'Neill, Matter of 29 
 
 Oothout V. Thompson 116 
 
 Opdyke v. Marble 833 
 
 Oppenheimer v. Hirsch 603 
 
 Oregon S. S. Co. v. Otis 371 
 
 O'Reilly v. Freel 082 
 
 O'Reilly v. Kingston 12 
 
 Orient Mut. Ins. Co., Matter of 
 
 749, 750 
 Orleans Co. Nat. Bk. v. Spen- 
 cer 803 
 
 Ormsbee v. Brown 375 
 
 Orr V. Currie 222 
 
 Orr V. McEwen 217 
 
 Orser v. Glenville Woolen Co. 824 
 
 Orvis V. Dana 357 
 
 Orvis V. Goldschmidt 343, 627 
 
 Osborn v. McCloskey 191 
 
 Osborne v. U. S. Bank 40 
 
 Osgood V. Maguire 728, 745 
 
 Osgood V. Ogden 452 
 
 Osgood V. Whittelsey 479 
 
 Ostell V. Broiigh 491 
 
 Osterhoudt v. Supervisors of 
 
 Ulster Co 157 
 
 Osterman v. Goldstein 757 
 
 Ostrander v. Conkey 364 
 
 Ostrander v. Harper 135, 130 
 
 Ostrom V. Bixby. . 436 
 
 O'Sullivan v. Connors 789 
 
 Oswego Falls Br. Co. v. Fish. 567 
 
 Otis V. Gray 316 
 
 Otis V. Ross 437 
 
 Owens V. Hudnut's Pharmacy 
 
 380, 413 
 
 P. 
 
 Pacific Mail S. S. Co. v. Toel 
 
 600, 603 
 
 Packard v. Wood 822 
 
 Paddock v. Palmer 339 
 
 Paddock v. Beebee 289 
 
 Paff Exr. v. Kinney 91 
 
 Page V. Boyd 347 
 
 Page V. Willett 3.50 
 
 Paget V. Stevens 219, 220 
 
 Paine Lumber Co. v. Galbraith 230 
 
 Pallen v. Johnson 840 
 
 Palmer v. Bennett 104 
 
 Palmer v. Board of Ed 566 
 
 Palmer v. Chicago Eve. Post 
 
 Co 209 
 
 Palmer v. Davis 481 
 
 Palmer v. DeWitt 548 
 
 Palmer v. Foley 566, 597, 600 
 
 Palmer v. Hussey. . . .' 505 
 
 Palmer v. Lawrence 787 
 
 Palmer v. Penn. R. R. Co 209 
 
 Palmer, Matter of 813 
 
 Pardee v. Leitch 653 
 
 Pardi v. Conde 341, 344, 382 
 
Ix 
 
 TABLE OF CASES. 
 
 Park V. Nat. Druggists 
 
 Association 321, 385 
 
 Parke v. Heath 781 
 
 Parker v. Jackson 104 
 
 Parker v. Marco 201, 503 
 
 Parker v. Pullman & Co 421 
 
 Parker v. Stroud 112 
 
 Parker v. Williamsburgh 44 
 
 Parkhurst v. Rochester L. M. 
 
 Co 74 
 
 Parkhurst v. Wolf 323 
 
 Parks V. Parks 187 
 
 Parmenter v. Roth 78, 279 
 
 Parshall v. Tillou 390, 430 
 
 Parsons v. City of Rochester. . 95 
 
 Parsons v. Hayes 332, 477 
 
 Parsons v. Sprague 675, 683 
 
 Parsons v. Sutton 359 
 
 Parsons v. Travis 530 
 
 Partridge v. Haley 389 
 
 Partridge v. Menck 574 
 
 Patch V. Tribune Ass'n 475 
 
 Patten v. Access. Trans. Co . . . 708 
 
 Patterson v. Bloomer 602 
 
 Patterson v. Copeland 811 
 
 Patterson v. Delaney 254, 631 
 
 Patterson v. Hare 373 
 
 Patterson v. Patterson . . . 450, 452 
 
 Patterson v. Perry 646 
 
 Pattison v. O'Conner 296 
 
 Paulsen v. Van Steenbergh. . 473 
 Paulson V. N. J. & N. Y. R. R. 
 
 Co 310 
 
 Payne v. Becker 171 
 
 Payne v. Smith 360 
 
 Payne v. Young 253 
 
 Peabody v. Washington Co. 
 
 Mut. Ins. Co 466 
 
 Pearce v. Ferris 169 
 
 Pearsall v. Elmer 53 
 
 Peart v. Peart 247 
 
 Peck V. Elder 565 
 
 Peck V. Hulburt 100 
 
 Pack V. Lombard 519 
 
 Peck V. Newton 166 
 
 Peck V. N. Y. & N. J. R. R. Co. 419 
 
 Peck V. Randall 89 
 
 Peck V. Richardson 141, 214 
 
 Peck V. Yorks 606 
 
 Peekamoose Fishing Club, 
 
 Matter of , 271 
 
 Peetseh v. Sommers 064, 692 
 
 Pelo V. Clukey 515 
 
 Pendergast v. Greenfield 452 
 
 Penfield v. White 590 
 
 Penoyer v. Kelsey..615, 624, 681 
 
 Pennoyer v. Neff 60, 094 
 
 People V. Albany Mayor's Ct. 781 
 People V. Alb. Med. College.. 290 
 People V. Albany & S. R. R. 
 
 Co 155 
 
 People V. Ambrecht 60 
 
 People V. Ames 792 
 
 People ex rel Andrus v. B'd. 
 
 Town Ad'ts Zi 
 
 People V. Arnold S3 
 
 People V. Bank of Dansville. . 721 
 
 People V. Bissell 567 
 
 People V. Blakeley 53 
 
 People V. Board of Supervisors 266 
 
 People V. Booth 477 
 
 People V. Boston, A. T. & 
 
 West. R. Co 128 
 
 People ex rel Broderick v. 
 
 Morton 567 
 
 People ex rel Boylston v. Tar- 
 bell 789 
 
 People V. Brower 591 
 
 People V. Brundage 16 
 
 People V. Buchanan 54 
 
 I^eople V. Cady 259 
 
 People V. Campbell 255, 502 
 
 People V. Canal Board 567, 569 
 
 People V. Carr 16 
 
 People ex rel Cauffman v. Van 
 
 Buren 547, 581, 590, 664, 665 
 
 People V. Central City Bk . 278, 701 
 
 People V. Clark 83, 492 
 
 People V. Coffin 543 
 
 People V. Compton 592, 593 
 
 People V. Conklin 566 
 
 People V. Conner 12, 125 
 
 People V. Cooper 273 
 
 People ea reZ Crane V. Grant . . 523 
 
 People V. Crooks 470 
 
 People V. Dennison 57, 453 
 
TABLE OF CASES. 
 
 Ixi 
 
 People V. Dikeman 532 
 
 People V. Draper 566 
 
 People V. Dunning 21 
 
 People V. Dwyer 553 
 
 People V. Edson 582 
 
 People V. Farley 566 
 
 People V. Faulkner 155 
 
 People V. Globe Mut. L. Ins. 
 
 Co 729 
 
 People V. Green 155 
 
 People ex rel Grogan v. York 
 
 781, 782 
 People ex rel Hoffman v. B'd. 
 
 Board of Supervisors 781 
 
 People V. Hermann 8, G5 
 
 People V. Hess 54 
 
 People ex rel Hoffman v. B'd. 
 
 of Education 44 
 
 People ex rel Ireland v. Dono- 
 
 hoe 513, 582 
 
 People V. Kearney 6 
 
 People V. Knickerbocker L. 
 
 Ins. Co 824 
 
 People V. Livingston S3 
 
 People V. Lowe 128 
 
 People ex rel Lower v. Dono- 
 van 77 
 
 People ex rel Mailbach v. 
 
 Dunn 182 
 
 People V. MeCumber. .379, 383, 396 
 
 People V. Mayor, etc 
 
 12, 155, 553, 586, 705 
 People ex rel v. Mayor, etc. . . 712 
 People ex rel McNeary v. Mac- 
 Lean 117 
 
 People v. Met. Telephone Co. 
 
 155, 180 
 People V. Mut. Benefit Ass'ts . 750 
 People V. Mut. U. Tel. Co. . . . 123 
 People V. National Trust Co. 
 
 272, 281 
 People ea; reZ Negus V. Dwyer . 583 
 People ex rel N. Y. C, etc., R. 
 
 E. Co. V. Cook 781 
 
 People V. Nichols 65, 66, 266 
 
 People V. North Am. Bank. . . 155 
 
 People V. Norton 66, 704 
 
 People V. Nostrand 264 
 
 People V. N. Y. Juvenile Guar- 
 dian Soe 389 
 
 People V. N. Y. Manhattan 
 
 Beach Ry. Co 167 
 
 People V. O'Neil 195 
 
 People V. Oswego Ct. of Ses. . . 825 
 
 People V. Phillips 493 
 
 People ex rel Post v. Grant. . 65 
 
 People V. Powers 155 
 
 People V. Pustolha 8, 65 
 
 People V. Rector Trinity Ch . . 83 
 People e® reZ Roberts V. Bowe . 517 
 People ex rel Roosevelt v. Ed- 
 son 590 
 
 People V. Ryder . 320, 322, 324, 388 
 People V. St. Nicholas Bank . . 
 
 613, 631, 634 
 
 People V. Sampson 566 
 
 People V. Sehoonmaker 541 
 
 People V. Schuyler 669 
 
 People V. Scott 528 
 
 People V. Security Mut. L. A. 
 
 Co 746 
 
 People V. Shaw 14 
 
 People V. Smith 278, 279 
 
 People V. Snyder 323 
 
 People V. Starkweather 810 
 
 People ex rel Steingretter v. 
 
 County Canvassers 142 
 
 People ex rel Strait v. Steuben 
 
 Com. PI 781 
 
 People V. Sturtevant 553, 590 
 
 People V. Superior Court.... 777 
 
 People V. Sullivan 11 
 
 People V. Supervisors of Mon- 
 roe 19 
 
 People V. Sutherland 253 
 
 People V. Tweed 484, 493, 526 
 
 People V. Tioga C. P 252 
 
 People V. Trinity Ch 89 
 
 People V. Troy Steel & Iron Co. 719 
 People V. Universal L. Ins. Co. 823 
 People ex rel Updyke v. Gillon 53 
 
 People V. Vanderbilt 180 
 
 People V. Van Rensselaer .... 83 
 People ex rel Waring v. Mon- 
 roe Com. Pleas 358 
 
 People V. Wasson. . . . , . .543, 560 
 
Ixii 
 
 TABLE OF CASES. 
 
 People V. Welch 55, 5G 
 
 People V. Wells 406, 415 
 
 People V. Wilson 33 
 
 People V. Young 8 
 
 People V. Youngs 8 
 
 Peppoon V. Jenkins 781 
 
 Perault v. Rand 561 
 
 Percy, Matter of 30, 31 
 
 Perkins v. Merchants' Lith. 
 
 Co 305 
 
 Peri V. N. Y. C. & H. R. R. R. 
 
 Co 48, 49 
 
 Perren v. Monmouthshire R. 
 
 R. Co 761 
 
 Perrotean v. Johnson 407 
 
 Perry v. Dickerson 405 
 
 Perry v. Kent 532, 801 
 
 Perry v. Tynen 196 
 
 Person v. Civer 487 
 
 Person v. Grier .' . . .201, 502 
 
 Persons v. Buffalo City Mills . 206 
 
 Peters v. Delaplaine 92, 102 
 
 Peters v. Foster 56 
 
 Petersen, Matter of 32 
 
 Peterson v. Chemical Bank . . . 150 
 
 Petree v. Lansing 160 
 
 Petrie v. Fitzgerald 296, 504 
 
 Petrie v. Petrie 410 
 
 Petrie v. Williams 45 
 
 Pettibone v. Drakef ord 282 
 
 Pettigrew v. Foshay 558 
 
 Pettit V. Pettit 786, 791 
 
 Peyman v. Bowery Bank 453 
 
 Peyser v. McCormaek 341 
 
 Pfeffer v. Kling 721 
 
 Pfister V. Stumm 771 
 
 Pfluger V. Lescke 485 
 
 Pfohl V. Sampson 541, 560 
 
 Pfohl V. Simpson 160 
 
 Phalen v. Dingee 163 
 
 Pharis v. Gere 372 
 
 Phelps V. Nowlen 580 
 
 Phelps V. Phelps 221, 345 
 
 Phelps V. Piatt 834, 844 
 
 Phila. V. Postal Tel. Cable Co. 44 
 
 Phillips V. Gorham 81, 166, 319 
 
 Phillips V. Stagg 51 
 
 Phillips V. Therrasson 94 
 
 Phillips V. Wheeler 247, 248 
 
 Philips V. Wickham 567 
 
 Phillips V. Winne 215 
 
 Phinney v. Broschell . 223, 224, 275 
 
 Phipps V. Carman 246, 282 
 
 Phoenix v. Com'rs of Emig'n . . 564 
 
 Phoenix Bank v. Donnell 469 
 
 Phoenix Bridge Co. v. Key- 
 stone B. Co 604 
 
 Phoenix Foundry Co. v. North 
 
 R. Constr. Co 609 
 
 Phoenix Ins. Co. v. Continental 
 
 Ins. Co 554, 555 
 
 Phoenix Warehousing Co. v. 
 
 Badger 746 
 
 Pickett V. Leonard 117 
 
 Pidgeon v. Oatman 587 
 
 Pierce v. Waters 44 
 
 Pierson v. Freeman. .254, 508, 631 
 
 Pierson v. McCurdy 94 
 
 Pierson v. Morgan 816 
 
 Pierson v. Safford 442 
 
 Pignolet V. Bushe 707 
 
 Pilkington v. B'klyn Heights 
 
 R. R. Co 50 
 
 Pinckney v. Childs 769 
 
 Pinckney v. Hagerman. .248, 801 
 
 Pindar v. Black 181 
 
 Pindar v. Seaman 834 
 
 Pinkerton v. Bailey 117 
 
 Pitney v. Glens Falls Ins. Co. 158 
 
 Pitt V. Coombes 202 
 
 Pitt V. Freed 498 
 
 Pittenger v. S. T. Masonic, etc. 431 
 
 Pittsfleld Bk. v. Tailer 390 
 
 Place V. Minster 371 
 
 Place V. Riley 692 
 
 Platner v. Lehman. .... .757, 761 
 
 Piatt V. Ashman 823 
 
 Piatt V. Crowford 323 
 
 Piatt V. Jones 56 
 
 Piatt V. Piatt 836 
 
 Piatt V. Townsend 296 
 
 Piatt, In Re 131 
 
 Plimpton V. Bigelow. . . .648, 682 
 
 Plympton v. Bigelow 260 
 
 Policy V. Wilkisson 405, 412 
 
 Pomeroy v. Hindmarsh 547 
 
TABLE OF CASES. 
 
 Ixiii 
 
 Pond V. Leman 21 
 
 Poole V. Belcha 48 
 
 Pope V. Hanmer 88 
 
 Pope V. Terre Haute Car Co ... 
 
 206, 20S 
 
 Popham V. Cole 574 
 
 Porous Plaster Co. v. Seabury 592 
 
 Porter v. MeGrath 168 
 
 Porter v. Viner 22 
 
 Porter v. Williams 716, 720 
 
 Post V. Blazewitz 247, 290 
 
 Post V. Charlesworth 43 
 
 Post V. Cobb 275 
 
 Post, Matter of 33, 34 
 
 Post V. Seheider 30 
 
 Potter V. Baker 789 
 
 Potter T. Carreras 384 
 
 Potter V. McPherson 549 
 
 Potter V. Merchants' Bank. . . 214 
 
 Potter V. Potter 563 
 
 Potter V. Smith 350 
 
 Potter & French, Matter of . . 501 
 
 Powell V. Clark 252 
 
 Powell V. Kane 253 
 
 Powell V. Waldron 702, 703 
 
 Powelson v. Reeve 171 
 
 Power V. Alger 547 
 
 Power V. Hathaway 89, 103 
 
 Power V. Village of Athens . . 
 
 266, 544, 592, 593 
 
 Powers V. Hughes 353 
 
 Pratt V. Bray 256 
 
 Pratt V. Hud. River R. R. Co. 372 
 
 Pratt V. Ramsdell 755 
 
 Pratt V. Seeley 825 
 
 Pratt V. Stevens 255 
 
 Prentice v. Janssen 173, 409 
 
 Price v. Bro-svn 369, 410 
 
 Price V. Evers 786 
 
 Price V. McCIave 325 
 
 Price V. Mulford 95 
 
 Price v. Price 281, 812 
 
 Priest V. H. R. R. R. Co 99 
 
 Prince v. Cujas 123 
 
 Prindle v. Carruthers 
 
 321, 322, 324, 330, 427 
 
 Pringle v. L. I. R. R. Co 813 
 
 Proctor V. Soulier 286 
 
 Produce Bank of N. Y. v. 
 
 Morton 785 
 
 Prospect Ave., Matter of ... . 44 
 Prospect Park R. R. Co. v. 
 
 Williamson 568 
 
 Prouty v. L. S. & M. S. R. R. 
 
 Co 824 
 
 Prouty V. Mich. South. R. R. 
 
 Co 160, 161 
 
 Prouty V. Whipple 347, 474 
 
 Prussia v. Guenther 195 
 
 Pruyn v. Black 164 
 
 Pugsley V. Aiken 411 
 
 Pugsley V. Van Allen 280 
 
 Pumpelly V. Village of Owego . 573 
 
 Purdy V. Peters 19 
 
 Purdy V. Pui-dy 117 
 
 Purdy V. Sistare 113 
 
 Purton V. Watson 179 
 
 Pustet V. Flannelly 312 
 
 Putnam v. Henderson, etc .... 700 
 
 Putnam v. Van Buren 812. 
 
 Pye, Matter of 6.5 
 
 ft. 
 
 Quail v. Nelson 514 
 
 Quick V. Keeler 123 
 
 Quigley v. Walter 162 
 
 Quimby v. Claflin 371 
 
 Quin V. Astor 360 
 
 Quinlan v. Birge 46, 48, 49 
 
 Quinn v. Brittain 708 
 
 Quinn v. Lloyd 41 
 
 Quinn v. Royal Ins. Co 210 
 
 Quinn v. Tilton 345 
 
 Quinnan v. Clapx^ 51 
 
 Quintard v. Secor 764, 766 
 
 R. 
 
 Eadde v. Ruckgaber 434 
 
 Radway v. Mather 326, 343 
 
 RaflF V. Koster 360 
 
 Rafferty v. Williams 334, 838 
 
 Rafferty v. Palmer 841 
 
 Railway Age Pub. Co. v. Gar- 
 
 nett 572 
 
Ixiv 
 
 TABLE OP CASES. 
 
 Halpli V. Husson 3i6 
 
 Ramsey v. Childs 789 
 
 Hamsey v. Gould 261 
 
 Randall v. Carpenter 604, 605 
 
 Randall v. Packard 45 
 
 :Randall v. Sackett 811 
 
 Randall v. Van Wagenen. . . .46, 49 
 
 Randel, Matter of 31, 32 
 
 Randolph v. Mayor, etc 466 
 
 Randolph v. Susquehanna 
 
 Watch Co 639 
 
 Rank v. Levinus 170, 408 
 
 Ranney v. Peyser 699 
 
 Ranney v. Russell 769 
 
 Ransom v. Halcott 645 
 
 Raphael v. Mencke 91 
 
 Rapp V. Williams 563 
 
 Rappaport v. Werner 165 
 
 Rathbun v. Markham 387, 383 
 
 Rathburn v. N. Y. C. R. R. Co. 104 
 
 Raven v. Smith 75 
 
 Raymond v. Hinman 781 
 
 Raymond, Matter of 75 
 
 Rea V. Washington Mut. Ins. 
 
 Co 380 
 
 Read v. French 40, 213, 214 
 
 Ready v. Stewart 612, 614 
 
 Reck V. Phoenix Ins. Co 481 
 
 Rector v. Ridgewood Ice Co . . 364 
 Rector of Ch. of Holy Inno- 
 cents V. Keech 542 
 
 Redfield v. Middletown 584 
 
 Redney v. Jewett 523 
 
 Reed v. Butler 831 
 
 Reed v. Chilson 231, 233, 234 
 
 Reed v. Hayt 426, 434 
 
 Reed v. Latson 379 
 
 Reed v. Mayor 365 
 
 Reed v. Reed 171, 187 
 
 Reeder v. Sayre 309, 371 
 
 Reese v. Walworth 380 
 
 Ref'd Ch. of Gallupville v. 
 
 Schoolcraft 84 
 
 Regar, Matter of 46 
 
 Regina v. Bloxham 255 
 
 Reid V. Stegman 23 
 
 Reid V. Stenton 760 
 
 Reid V. The Evergreens 159 
 
 Reilly v. Hart 228 
 
 Reilly v. Sisson 637 
 
 Reiners v. Brandhorst 332 
 
 Reinitz, Matter of 504 
 
 Reis V. Rohde 552 
 
 Remington v. Wackel 435 
 
 Remington Paper Co. v. 
 
 O'Dougherty 14, 615, 616 
 
 Renard v. Hargous 613 
 
 Renihan v. Dennin 52 
 
 Renwick, Matter of 720 
 
 Rep. of Mexico v. Arrangois . . 
 
 39, 56, 301 
 Rep of Mexico v. Ockenhausen 56 
 
 Rep. of Peru v. Reeves 816 
 
 Requa v. Holmes 826 
 
 Reubens v. Joel 420, 544, 547 
 
 Reynolds v. Fisher 658 
 
 Rhoads v. Woods 666 
 
 Rhodes v. Wheeler 584 
 
 Rice V. Coutant 434 
 
 Rice V. Ehele 2, 248 
 
 Rice V. O'Conner 443 
 
 Rich V. Beekman 789 
 
 Richards v. Edick 474 
 
 Richards v. Goldberg 588, 595 
 
 Richards v. Porter 526 
 
 Richards v. Varnum 712 
 
 Richardson v. Draper 811, 820 
 
 Ricetti v. Mapleson 637 
 
 Richters v. Littell 70, 507 
 
 Richtmyer v. Richtmyer 466 
 
 Rider v. Bagley 708 
 
 Rider v. Bates 363 
 
 Rider, Matter of 75 
 
 Ridgway v. Bacon 145 
 
 Riggs V. Pursell 271, 272 
 
 Riggs V. Waydell. . .771, 782, 785 
 Riggs V. C. y. & P. R. R. Co.. . 641 
 
 Riley v. Riley 120 
 
 Rinna v. R. I. Works 187 
 
 Rinchey v. Stryker 664 
 
 Rindge v. Baker 42] 
 
 Rinn v. Astor F. Ins. Co. 729, 731 
 
 Ripley v. Burgess 290 
 
 Ripley v. McCann..' 196 
 
 'Risley V. Brown 811 
 
 Risley v. Carll 459 
 
TABLE OP CASES. 
 
 Ixv 
 
 PJsley V. Wightman 117 
 
 Kitten v. Griffith 225 
 
 Eitterman v. Ropes 48(3 
 
 Eoache v. Kivlin 337 
 
 Kobbins v. Palmer 385 
 
 Eobert v. Sadler 55S 
 
 Kobert Gere Bk. v. Inman. ... 382 
 
 Eaberti v. Carlton 135 
 
 Roberts v. Baumgarten 86 
 
 Roberts v. Berdell 113 
 
 Eoberts v. Bower 
 
 Eoberts v. Buckley ^.. 75 
 
 Eoberts v. Doty <t8 
 
 Roberts v. Law 765 
 
 Eoberts v. Leslie 322, 306 
 
 Eoberts v. Mayor, etc 553 
 
 Eoberts v. O. & L. 0. R. R. Co. 837 
 Roberts v. Safety Buggy Co. . 354: 
 
 Roberts v. Sykes 102 
 
 Roberts v. White 601, 602 
 
 Robertson v. Robertson 
 
 135, 182, 364 
 Eoberson v. Central E. E. of 
 
 N. J 104 
 
 Robinson v. Bank 619 
 
 Robinson v. Brisbane 818 
 
 Robinson v. Ecuador Devel. 
 
 Co 344 
 
 Robinson v. Hint 412 
 
 Robinson v. Frost 130 
 
 Robinson v. Govers 278, 812 
 
 Robinson, Matter of 811 
 
 Robinson v. Moran 789 
 
 Robinson v. Nat. Bk. of New- 
 
 bern 55, 56 
 
 Robinson v. Oceanic Steam 
 
 Nav. Co 59 
 
 Robinson v. Phillips 88 
 
 Robinson v. Preswiek 579, 705 
 
 Robinson v. Smith 148 
 
 Eobie V. Sedgwick 84 
 
 Eoby V. Hallock 382 
 
 Eoche V. Ward 229 
 
 Rochester Bar Assoc, v. Dorthy 31 
 Eochester Distil. Co. v. O'Brien 446 
 Eochfort V. Met. St. Ey. Co. .. 50 
 Eock River Bk. v. Hoffman ... 57 
 Rockwell V. Carpenter 784 
 
 E 
 
 Rockwell V. Merwin 131, 720 
 
 Rodgers v. Bonner. . .645, 651, 655 
 
 Rodgers v, Rodgers 598 
 
 Rodkinson v. Gantz 363 
 
 Rodman v. Devlin. . 102 
 
 Hodman v. Hedden 113 
 
 Ixoehr v. Liebman 414 
 
 Roemer v. Stryker . . .■ 434 
 
 Rogers v. Durant 262 
 
 Rogers v. McElhone 520 
 
 Rogers, Matter of 06 
 
 Rogers v. McGuire 150 
 
 Rogers v. .McLean 184, 792 
 
 Rogers v. M. S. & N. I. R. R. 
 
 Co 547 
 
 Rogers v. N. Y. & Texas Land 
 
 Co 101 
 
 Rogers v. Rockwood 289, 290 
 
 Rogers v. Rogers 260 
 
 Rogers V. Sehmersahl 214 
 
 Rogers v. Vosburgh 384 
 
 Rogers Loco. Wks. v. Kelly . . C50 
 
 Rohman v. Blust 234 
 
 Rollins V. Barnes 774 
 
 Romaine v. Brewster 440 
 
 Rome, W. & 0. R. R. Co. v. 
 
 City of Rochester 587, 60S 
 
 Rome, W. & 0. R. R. Co. v. 
 
 Smith 572 
 
 Roome v. Nicholson 384 
 
 Roosen v. Carlson 548, 570 
 
 Roosevelt v. Bull's Head Bk . . 
 
 755, 757 
 
 Roosevelt v. Dean 26S 
 
 Roosevelt v.. Pulton 266, 267 
 
 Roosevelt v. Gardinier 355 
 
 Roosevelt v. N. Y. & Har. R. R. 
 
 Co 765 
 
 Roosevelt v. Schermerhorn . . . 429 
 
 Root V. Price. . 395 
 
 Root V. Wright 54 
 
 Ropes V. Arnold... 786, 790 
 
 Rorke v. Russell 590, 591 
 
 Rose V. Meyer 329 
 
 Rosenberg v. Block 442 
 
 Rosenberg v. Rosenberg. , 53 
 
 Rosenberg, v. Salomon ■ 142 
 
 Rosenberg v. Stat. I. Ry. Co . . 303 
 
Ixvi 
 
 TABLE OF CASES. 
 
 Rosenwald v. Hammerstein. . 371 
 
 Koss V. Bridge 72G, 769 
 
 lioss V. Ingersoll 665 
 
 Ross V. Longmuir 343 
 
 Eoss V. Robs 115, 381 
 
 Ross V. Vernam 707 
 
 Ross V. Wigg 259, 506 
 
 Rossner v. N. Y. Museum 
 
 Ass'n 285, 845, 850 
 
 Rossow V. Bk. of Commerce . . . 595 
 
 Roth V. Schloss 782 
 
 Rothschild v. Whitman 448 
 
 Rouge V. Rouge 617 
 
 Rouget V. Haight 388 
 
 Rosensteil v. Van Cott 429 
 
 Rosenthall v. Rosenthall 388 
 
 Roup V. Bradner 94 
 
 Roussel V. St. Nicholas Ins. Co. 
 
 348, 464 
 
 Rowell V. Moeller 365 
 
 Rowland v. Phalen 328 
 
 Royal Ins. Co. v. Noble 683 
 
 Royer Wheel Co. v. Fielding. . 413 
 
 Rozell V. Andrews 557 
 
 Ruberry v. Binns 839 
 
 Ruck V. Lange 238 
 
 Euckman v. Pitcher 144 
 
 Ruggles V. Keeler 104 
 
 Rumsey, Matter of 150 
 
 Ruppert V. Haug 635, 674, 677 
 
 Ruser v. Union Distil. Co 626 
 
 Russel V. Somerville 51 
 
 Russell V. Clapp 320 
 
 Russell V. Meacham 764 
 
 Russell V. Popham 565 
 
 Rutherford v. Hewey 171 
 
 Rutherford v. Krause 338 
 
 Rutter V. Boyd 659 
 
 Rutter V. Puokhofer 187 
 
 Ryall V. Kennedy 486 
 
 Ryan v. Cochran 298 
 
 Ryan v. Mayor 480 
 
 Ryckman v. Coleman 597 
 
 Ryle V. Harrington 347 
 
 R. & C. R. R. Co., Matter of. . 277 
 R. H. & L. R. R. Co. V. N. Y., 
 
 L. E. & W. R. R. Co 205 
 
 Sabin v. Johnson 280 
 
 Sabin v. Kendriek 224, 627 
 
 Saddlesvene v. Arms 617 
 
 Safety Steam Co. v. Dickson 
 
 Mfg. Co 773 
 
 SaflFord v. Snedecker 478 
 
 Sage V. Culver 464 
 
 Sage V. Quay 589 
 
 Sage V. Stafford 256 
 
 Sager Mfg. Co. v. Smith 747 
 
 St. Amant v. De Beixcedon. . . 632 
 St. John V. American Mut. L. 
 
 Ins. Co 158 
 
 St. John V. Beers 326 
 
 St. John V. Croel 816, 821, 827 
 
 St John V. Denison 723 
 
 St. John V. Northrup 347 
 
 St. L. & A. R. R. Co., Matter 
 
 of 340 
 
 Sales V. Woodin 267 
 
 Salhinger v. Adler 202, 503 
 
 Salisbury v. Morse 101 
 
 Salmon v. Gedney 65 
 
 Saltsman v. Shults 146 
 
 Salters v. Bedford 540 
 
 Salzberg v. Mandlebaum. .621, 638 
 
 Sanders v. Ader 544, 585 
 
 Sanders v. Soutter 322 
 
 Sanders V. Village of Yonkers . 471 
 
 Sanders v. Warren 238 
 
 Sand V. Church 168 
 
 Sandford v. Sinclair 702, 711 
 
 Sandland v. Adams 253 
 
 Sands v. Calkins 362, 363 
 
 Sands v. Gelston 114 
 
 Sands v. Hughes 88, 89 
 
 Sands v. St. John 349, 398, 464 
 
 Sanford v. Chase 201, 503 
 
 Sandford v. Sandford 90 
 
 Sandford v. White 174 
 
 Stackhouse v. Stobenbur. . . . 179 
 
 Sanger v. Seymour 834 
 
 Sanquirico v. Benedetti 570 
 
 Sares v. Matthews 769 
 
 Saril V. Payne 252 
 
TABLE OF CASES. 
 
 Ixvii 
 
 Sartos V. Merceques 531 
 
 Siirtwell V. Field 615 
 
 Savage v. Allen 542, 543, 560 
 
 Savage v. City of Buffalo 445 
 
 Savage v. Neeley 83.5 
 
 Savage v. Eelyea 274, 277, 278 
 
 Sawyer Lumber Co. v. Bissell 63'4 
 
 Saxton V. Dodge 38 
 
 Schaekleton v. Hart 47, 51 
 
 Sehaefer v. Henkel. -^. 143 
 
 Schell v. Lowe 300 
 
 Sehell, Matter of 33, 34 
 
 Schenck v. MeKie 287 
 
 Schenke v. Eowell 302 
 
 Schermerhorn v. Van Voast. . 251 
 
 Sohieb v. Baldwin 657 
 
 Schlessinger, Matter of 108 
 
 Sohlichter v. South Brooklyn 
 
 Saw M. Co 810 
 
 Schmidt v. Gunther 140 
 
 Schmidt v. Sellinger 845 
 
 Schoener v. Lissauer 96 
 
 Schofield y. Doscher 124 
 
 Schoonmaker v. Brooks.. 195, 196 
 
 Schoonmaker v. Spencer 620 
 
 Schriver v. Schriver 185 
 
 Schroeder v. Gurney 178 
 
 Sehroeder v. Lear 221, 224 
 
 Schuehle v. Reiman 317, 560 
 
 Schuhardt v. Roth 296 
 
 Schulhoff V. Co-operative Dress 
 
 Association 353 
 
 Schulten v. Lord 609 
 
 Schultz V. Cookingham 151 
 
 Schultz V. Mead 124 
 
 Schultz V. Schultz 485 
 
 Schultz V. Third Ave. R. R. Co. 
 
 372, 420 
 
 Schumaker v. Grossman 223 
 
 Schumann v. Davis 608 
 
 Schunemann v. Paradise 500 
 
 Schuyler's Steam, etc., Co., 
 
 Matter of 855, 715, 722 
 
 Schwab V. Wehrle 362 
 
 Schwartz v. Livingston 288 
 
 Schwartz v. Oppold 363 
 
 Schweizer v. Raymond 798 
 
 Scofield V. Van Syckle 471 
 
 Seott Shoe, etc., Co. v. Dancel 5 
 
 Scovill V. New 338 
 
 Scoville V. Canfield 59 
 
 Scott V. Beaudet 633 
 
 Seott V. Brown 810 
 
 Scott V. Elmendorf 41 
 
 Scott V. Reid 489, 494 
 
 Seaman v. Lee 579 
 
 Seaman v. Low 359 
 
 Seaver v. Hodgkin 466 
 
 Seaver v. Robinson 201 
 
 Secor v. Sturgis 403, 404, 405 
 
 Secor V. Weed 609 
 
 Segelken v. Meyer 492 
 
 Seifert v. Caverly 288 
 
 Seller v. Wilson 221 
 
 Seiser v. Mali 148 
 
 Selby V. Hills 202 
 
 Selden v. Mann 579 
 
 Selden v. Vermilya 796 
 
 Seiser Bros. v. Potter & Co. . 
 
 633, 634, 637 
 
 Selye v. Zimmer 471 
 
 Seneca Nat. etc. v. John . . 550, 551 
 
 Seward v. Miller 428 
 
 Seward v. Torrence 435 
 
 Sewell V. Ives 147 
 
 Sexauer v. Bowen 343 
 
 Seymour v. Dunham 450 
 
 Seymour v. Lake Shore, etc., 
 
 R. R. Co 315 
 
 Seymour v. Lorillard 415 
 
 Seymour v. McDonald 555 
 
 Seymour v. Mercer 513 
 
 Shaffer v. Holm 356 
 
 Shale V. Schantz 811, 819 
 
 Shanks v. Magnolia Metal Co. 638 
 
 Shanks v. Rae 377 
 
 Shapiro v. Burns 136 
 
 Shattman v. Am. Credit 
 
 Indem. Co 53 
 
 Shattman v. Bascom 167 
 
 Shaver v. McGraw 169 
 
 Shaw V. Cock 120, 366 
 
 Shaw V. Coleman 766 
 
 Shaw V. Coster 311 
 
 Shaw V. Dwight 561 
 
 Shaw V. Lawrence 789 
 
Ixviii 
 
 TABLE OF CASES. 
 
 Shaw V. McNish 175 
 
 Shaw V. Tobias 323 
 
 Shayne v. Evening Post Co . . 809 
 
 Shearman v. Hart 269 
 
 Shearman- v; Hope 136 
 
 Shearman V. N. Y. C. Mills. . . 609 
 Sheehan v. Bradford, etc., R. 
 
 E. Go. 202 
 
 Sheehan v. <jarvalho 271 
 
 Sheehan v. Hamilton 166 
 
 Sheehan v. Pierce 443 
 
 Sheldon v. Adams 365, 778 
 
 Sheldon v. Heaton 429 
 
 Sheldon v. Lake 404 
 
 Sheldon v. Mirick 91 
 
 Sheldon v. Payne 21, 22 
 
 Sheldon v. Wood 145 
 
 Shepherd, Matter of 523 
 
 Shepherd v. Moodhe 772 
 
 Sheridan v. Andrews 239 
 
 Sheridan v. Houghton 52 
 
 Sheridan v. Jackson 712 
 
 Sheridan v. Mayor, etc 145 
 
 Sherman v. Boehm 382 
 
 Sherman v. Felt 06 
 
 Sherman v. Gregory 164 
 
 Sherman v. Inman S. S. Co . . 474 
 
 Sherman v. Kane 85 
 
 Sherman v. McNitt 307 
 
 Sherman v. Partridge 310 
 
 Sherman v. Wells 791 
 
 Sherwood v. Barton 143 
 
 Shiland v. Loeb 755 
 
 Shoe & L. Eep. Ass'n. v. Bailey 834 
 
 Shoemaker v. Benedict 116 
 
 Shook V. Daly 549 
 
 Short V. Barry 420 
 
 Short V. May 291 
 
 Shotwell V. Smith 707 
 
 Shriver v. Shriver 84, 92 
 
 Slmbart v. Harteau 448 
 
 Shufelt V. Watrous 52 
 
 Shuler v. Birdsall Mfg. Co . . . 
 
 254, 631 
 
 Shuler v. Maxwell 44 
 
 Shultz V. Hoagland 792 
 
 Shultz V. Rodewald 382 
 
 Shulz V. City of Albany 573 
 
 Shute V. Hamilton 456 
 
 Sibley v. Waffle 52 
 
 Sickles V. New Rochelle B'd. of 
 
 Health 553, 569 
 
 Sickles V. Richardson 650 
 
 Siebrecht v. Siegel-Cooper Co. 447 
 
 Siefke v. Tappey 487 
 
 Siegrist v. Halloway 275 
 
 Silleck V. Heydrick 226 
 
 Sill Stove Works v. Scott... 674 
 Silver v. Western Assur. Co. . . 
 
 209, 210 
 
 Silverman v. Baruth 315 
 
 Silvernail, Matter of 33 
 
 Simar v. Cassidy 471 
 
 Simmons v. Craig 263 
 
 Simmons v. Kayser 454 
 
 Simmons v. Vanderbilt 830 
 
 Simmons "v. Wood 726 
 
 Simonds Mfg. Co., Matter of . . 
 
 739, 742 
 
 Simons v. DeBare 469 
 
 Simonson v. Blake 419, 802 
 
 Simonson v. Nobis 1 05 
 
 Simpson v. Burch 215 
 
 Simpson v. The Jersey City 
 
 Con. Co 648, 652 
 
 Simpson v. McKay 803 
 
 Simpson v. Simpson 150 
 
 Simpson, ex parte 386 
 
 Sims V. N. Y. Col. Dentistry. 187 
 
 Simson v. Satterlee 175 
 
 Sinclair v. Fitch 332 
 
 Siney v. N. Y. Con. Stage Co. 
 
 703, 726 
 
 Singer v. Webber 383 
 
 Singleton v. Home Ins. Co. . . . 768 
 Sinnott v. First Nat. Bk. .277, 291 
 
 Sisson V. Lawrence 295 
 
 Sixth Ave. R. R. Co. v. Gilbert 
 
 El. R. R. Co 265, 611 
 
 Sixth Ave. Ry. Co. v. Kerr. . . 570 
 Sizer v. H. & B. R. R. Co. 202, 210 
 
 Skidmore v. Post 113 
 
 Skinner v. Noyes 265 
 
 Skinner v. Steele 256 
 
 Skinner v. Stuart 014 
 
 Skinner v. Tibbetts 160 
 
TABLE OF CASES. 
 
 Ixix 
 
 Skinnion v. Kelley 640 
 
 Slack V. Brown 755 
 
 Slack V. Heath 325 
 
 Slade V. Joseph 203 
 
 Slade V. Montgomery 447, 44S 
 
 Slater v. Wood 24 
 
 Slaiison V. Conkey 766 
 
 Slocum V. Barry 159 
 
 Sloman v. Schmidt 398 
 
 Sluyter v. Smith 780, 794 
 
 Smadbeck v. Sisson 637 
 
 Smart v. Bement 175 
 
 Smart v. Haring 187 
 
 Smiley v. Fry 112 
 
 Smith V. American Coal Co. . . 648 
 
 Smith V. Arnold 634, 635 
 
 Smith V. Barnes 41 
 
 Smith V. Bowers 774 
 
 Smith V. Button 122 
 
 Smith V. City of Brooklyn. . . 580 
 
 Smith V. Camp 115 
 
 Smith V. City of Rochester. . 42 
 
 Smith V. Countryman 387 
 
 Smith V. Crocker 57 
 
 Smith V. Danzig 735 
 
 Smith V. Davis 178, 364 
 
 Smith V. Douglass 397 
 
 Smith V. Emigrant, etc., Bk. . 70 
 
 Smith V. Pleischmann 271 
 
 Smith V. Geortner 410 
 
 Smith V. Gold & Stock Tel Co. 550 
 
 Smith V. Hall 434, 459 
 
 Smith V. Heermance 789 
 
 Smith V.Holt 630 
 
 Smith V. Howard 419 
 
 Smith V. Hudson 792 
 
 Smith V. Joyce 830 
 
 Smith V. Kelley 70S 
 
 Smith V. Kerr 768 
 
 Smith V. Keteltas 199 
 
 Smith V. Levinus 395 
 
 Smith V. Long 1C7 
 
 Smith V. Lpwry 562 
 
 Smith y. Meyers 504 
 
 Smith V. N. Y. Con. Stage Co. 699 
 
 Smith V. Orser 410, 646 
 
 Smith V. Randall 452 
 
 Smith V, Rathbun 
 
 148, 160, 370, 378 
 
 Smith V. Reid 92, 186 
 
 Smith V. Rockwell 755 
 
 Smith V. Ryan 116 
 
 Smith V. Schulting 473 
 
 Smith V. Tiffany 150, 175 
 
 Smith V. Town of Greenwich. 94 
 
 Smith V. Tracy 489 
 
 Smith V. Wells 704 
 
 Smith, etc. v. Wilson 643 
 
 Smith V. Woodruff 130, 722 
 
 Smith V. Zalinski 817, 823, 827 
 
 Smith Co., Matter of. 725, 749, 750 
 
 Smoot V. Heim 658 
 
 Smyth V. Rowe 226 
 
 Snape v. Gilbert 345 
 
 Snedecker v. Bernard 381 
 
 Snow V. Fourth Nat. Bk 480 
 
 Snow V. Williams 565 
 
 Snyder v. Olmsted 253, 848 
 
 Snyder v. Snyder 145 
 
 Snyder v. White 362, 363 
 
 Soc. of 1812 V. Soc. of 1812 in 
 
 N. Y 575 
 
 Solomon v. Belden 305, 306 
 
 Solomon v. Bennett 103 
 
 Somers v. Torrey 386 
 
 Somerset & W. Sav. Bk. v. 
 
 Huyck 523 
 
 South In'l. Nav. & Imp. Co. v. 
 
 Sherwin 484, 518, 779 
 
 South- Pub. Co. V. Fire Assoc. 
 
 of Phila 210 
 
 Southwick V. First Nat. Bk. . 
 
 347, 370, 372 
 
 Soverhill v. Dickson 133 
 
 Spalding v. Vandercook . . 758, 760 
 
 Spaulding v. Lyon 213 
 
 Spang V. Patterson 511 
 
 Spawn V. Veeder 359 
 
 Spear v. Cutter 578, 579 
 
 Spears v. Matthews 581, 611 
 
 Spears v. Mayor 37,3 
 
 Spellman v. Weider 467 
 
 Spenee v. Baldwin 491 
 
 Spencer v. Babcock 332 
 
Ixx 
 
 TABLE OF CASES. 
 
 Spencer v. Barber 267, 801 
 
 Spencer v. Rogers Loco. Wks. 683 
 
 Spencer v. Tooker 437 
 
 Spencer v. Wheelock 163 
 
 Sperry v. Hellmac 511 
 
 Speyers v. Torstritch 844 
 
 Sperry v. Reynolds 43 
 
 Spier V. Robinson 161 
 
 Spies V. Munroe 320, 321, 322 
 
 Spliess V. Meyer 173 
 
 SpoflFord V. Rowan 442 
 
 Spooner v. Keeler 812, 831 
 
 Spotts V. Dumesnig 788 
 
 Sprague v. Irwin 195 
 
 Spratt V. Huntington 202 
 
 Spring V. Gourlay 519 
 
 Springer v. Dwyer 442 
 
 Sproull V. Star Co 284 
 
 Spxiyten Duyvil R. M. Co. v. 
 
 Williams 363 
 
 Squire v. McDonald 44, 511 
 
 S. S. Circassin, Matter of 24 
 
 Staats, ex parte 33 
 
 Stackliouse v. Stobenbur 179 
 
 Stafford v. Ambs 277, 752 
 
 Stafford v. Bryan 115 
 
 Stage V. Stevens 488 
 
 Stage Horse Cases 576 
 
 Stamm v. Bostwiek 394 
 
 Stanton v. Friedman 838 
 
 Stanton v. Swann 374 
 
 Stanton v. Mo. Pac. R. R. Co. 
 
 417, 473 
 
 Staples V. Fairchild 253 
 
 Staples V. Parker 284 
 
 Star F. Ins. Co. v. Godet 278 
 
 Starks v. Starks 783 
 
 Starr v. Ratbbone 706 
 
 State Bank v. Gill 257, 701 
 
 State Bank v. Shaw 404 
 
 Stat. Is. Elee. Ry. Co. v. King 542 
 
 Staub V. Meyers 484, 487, 510 
 
 Staunton v. Swann 378 
 
 Steamship Richmond Hill Co. 
 
 V. Seager 195, 493, 523 
 
 Stedeker v. Bernard . . 165, 344, 307 
 
 Stedeker v. Taft 342 
 
 Steel -v. Raphael 637 
 
 Steele v. Sturgis 71.5 
 
 Stegman v. HoUingsworth . ... 457 
 
 Steinback v. Diepenbrock 429 
 
 Steinberg v. Lasker 485 
 
 Steiner v. East Riv. Sav. Inst. 313 
 
 Steinert, Matter of 606 
 
 Steinhardt v. Balcer 215 
 
 Steinle v. Bell 228 
 
 Stemmler v. The Mayor, etc. . 778 
 
 Sterman v. Kennedy 569 
 
 Stern v. Knapp 307, 794 
 
 Sternberger v. McGovern 81 
 
 Sterne v. Bentley 771 
 
 Sterne v. Herman 411 
 
 Steuben Co. Bk. v. Alberger . . 
 
 254, 272, 607, 633, 638, 674, 675, 
 
 676, 681 
 
 Stevenbergh v. Schoolcraft. . . 133 
 
 Stevens v. Browning 782 
 
 Stevens v. Cent. Nat. Bk 559 
 
 Stevens v. Hauser 35 
 
 Stevens v. Lockwood 404 
 
 Stevens v. Mayor, etc 419 
 
 Stevens v. Middleton.613, 634, 630 
 
 Stevens v. Orton 478 
 
 Stevens v. Union Tr. Co 161 
 
 Stevens v. Veriane 70S 
 
 Stevenson v. N. Y. L. Ins. 
 
 Assoc 311 
 
 Stevenson v. York"? 700, 76] 
 
 Steward v. Winters 554 
 
 Stewart v. Berge 280 
 
 Stewart v. Howard 504, oOS 
 
 Stewart v. Lyman 617, 643, 677 
 
 Stewart v. Patrick 168 
 
 Stewart v. Steck 45 
 
 Stewart v. Stewart 39 
 
 Stewart v. Wallis 460 
 
 Stichter v. Tillinghast. . .833, 840 
 
 Still V. Holbrook 101 
 
 Stilwell V. Carpenter 395 
 
 Stilwell V. Kelly 302 
 
 Stilwell V. Priest 839 
 
 Stilwell V. Stilwell 722 
 
 Stinerville, etc., Co. v. White. 41 
 
 Stoker v. Watters 115 
 
 Stokes v. Hagar 381 
 
 Stokes v. Hoffman House. . . . 724 
 
TABLE OF CASES. 
 
 Ixxi 
 
 Stokes V. Stickney 813 
 
 Stone V. Pratt 643 
 
 Storingham v. Stewart 37 
 
 Stowell V. Otis 433 
 
 Stow V. Betts 849 
 
 Stow V. Stacy 220 
 
 Stowits V. Bk. of Troy 35S 
 
 Strang v. Cook 92 
 
 Strasser v. Moonelis 160 
 
 Straus V. Hoadley 414 
 
 Straus V. Tradesmen's Nat. 
 
 Bk 471 
 
 Straus V. Trotter 479 
 
 Strauss v. Vogt 074 
 
 Straut, Matter of 158 
 
 Striker, Matter of 102 
 
 Stringliam v. Hilton 829 
 
 Strong V. Blake 756 
 
 Strong V. City of Brooklyn.. 168 
 
 Strong V. Dickenson 202 
 
 Strong V. Eighme 74 
 
 Strong V. Jones 279 
 
 Strong V. Sproul 380, 381 
 
 Strong V. Strong 375, 844 
 
 Strong V. Wheaton..l62, 163, 471 
 
 Struppman v. Muller 134, 170 
 
 Struver v. Ocean Ins. Co . . 384, 467 
 Stryker v. N. Y. Exchange 
 
 Bk 361, 362 
 
 Stuart V. Blatchley 477 
 
 Stubbs V. Ripley 270, 591, 592 
 
 Stubbs V. Stubbs 261, 797 
 
 Stull V. Westfall 545, 548, 585 
 
 Sturges V. Vanderbilt 824 
 
 Sturgess v. Parkhurst 88 
 
 Sturgis V. SpoflFord 775 
 
 Stuyvesant v. Bowran 485 
 
 Stuyvesant v. Weil 190, 780 
 
 Sullivan v. Frazee 233 
 
 Sullivan v. N. Y. & E. Co. . . . 471 
 Sullivan v. N. Y. El. R. R. Co. 810 
 Sullivan v. Spring Garden Ins. 
 
 Co 329 
 
 Sullivan v. Sullivan 170 
 
 Sulzbacher v. Cowthra. .678, 788 
 
 Summerville v. Metcalf 409 
 
 Supreme Council of Chosen 
 
 Friends v. Fairman 567 
 
 Supervisors v. Brodhead 44 
 
 Supervisors of Tompkins Co. 
 
 V. Bristol 156 
 
 Sutherland v. Bradner 678 
 
 Sutorius V. North 511 
 
 Sutton v. Sabey 520 
 
 Swart V. Boughton. . .421, 474, 475 
 
 Swartwout v. Hoage 257 
 
 Sweet V. Norris 523 
 
 Sweet V. Tuttle 436 
 
 Swezey v. Bartlett 246, 676 
 
 Swift V. Smith 395 
 
 Swinnerton v. Columbian Ins. 
 
 Co 323 
 
 Symson v. Silheimer 783 
 
 Syracuse Sav. Bk. v. Porter . . . 334 
 Syracuse Sav. Bk. v. S. C. & N. 
 
 Y. R. R. Co 65 
 
 Taaks v. Schmidt 19, 602, 652 
 
 Taber v. Gardner 339 
 
 Taber v. Taber 315 
 
 Tabor v. Hoffman 548 
 
 Taggart v. Rogers 235 
 
 Taggart v. Wade 203 
 
 Talbot V. Chamberlin 579 
 
 Taleott V. Burnstine 272 
 
 Talcott V. City of Buffalo 568 
 
 Taleott V. Rosenberg 790 
 
 Talcott V. Van Veehten 399 
 
 Tallmadge v. Lounsbury 147 
 
 Tallman v. Hinman 191 
 
 Talman v. Barnes 290 
 
 Tasker v. Wallace 784 
 
 T. A. Vulcan v. Myers 574 
 
 Taylor v. Am. Ribbon Co 833 
 
 Taylor v. Baldwin 131, 722 
 
 Taylor v. Bogert 795 
 
 Taylor v. Brooklyn El. R. R. 
 
 Co 758, 759 
 
 Taylor v. Carpenter 574 
 
 Taylor v. Church 408, 819 
 
 Taylor v. Corbier 219 
 
 Taylor v. Granite State Prov. 
 
 Assoc 206, 209 
 
 Taylor v. Hutton 609 
 
Ixxii 
 
 TABLE OF CASES. 
 
 Taylor V. L. I. R. R. Co 34 
 
 Taylor v. Mayor, etc 449 
 
 Taylor v. Mayor of N. Y 284 
 
 Taylor, Matter of 533 
 
 Taylor v. Metropolitan Elev. 
 
 E. R. Co 465 
 
 Taylor v. Richards 464 
 
 Taylor v. Root 448 
 
 Taylor v. Troncoso 627 
 
 Taylor v. Van Keuren 500 
 
 Teall V. City of Syracuse 413 
 
 Teall V. Feltcn : 55 
 
 Tebo V. Robinson 115 
 
 Teets V. Throckmorton 457 
 
 Ten Eick v. Simpson 779 
 
 Ter Kuile v. Marsland 445 
 
 Terry v. Rubel 834 
 
 Thames & Mersey Mar. Ins. 
 
 Co. V. Dimick 620, 637 
 
 T. H. E. Co. V. D. L. I. Co. . 446 
 
 Thalheimer v. Hays 680 
 
 Tharp v. Heyman 779 
 
 Thayer v. Eoch. City & B. R. 
 
 R. Co 565, 599 
 
 Thayer v. Eoch. Co. &c. R. R. 
 
 Co 610 
 
 Third Ave. R. R. Co. v. Mayor, 
 
 etc 559 
 
 Thoesen & Bro., Matter of... 317 
 
 Thomas v. Bennett 159 
 
 Thomas v. Harmon 74 
 
 Thomas v. Jones 233 
 
 Thomas v. Loaners' Bank .... 458 
 
 Thomas v. Nelson 372 
 
 Thomas v. Utica &c. E. E. Co. 415 
 
 Thomas v. Wilson 134 
 
 Thompkius v. Smith 521 
 
 Thompson v. Burhans 
 
 86, 87, 88, 252 
 
 Thompson v. Cla^k 242 
 
 Thompson v. Denner 737 
 
 Thompson v. Erie Ry. Co ... . 
 
 , 265, 271, 428, 839, 843 
 Thompson v. Friedberg. . .509, 514 
 
 Thompson v. Halbert 476 
 
 Thompson v. Hickey 576 
 
 Thompson v. Hodgkin 577 
 
 Thompson v. McGregor 714 
 
 Thompson V. Sherrard 712 
 
 Thompson v. Smith 151 
 
 Thompson v. Tammany Soc. 550 
 Thompson v. Whitmarsh. . 152, 452 
 
 Thompson v. Sanders 445 
 
 Thorington v. Merrick. . .617, 630 
 
 Thome v. Newby 178 
 
 Thorp V. Adams 201 
 
 Thorp V. Carvalho 407 
 
 Throop V. Hatch 323 
 
 Throop Grain Cleaner Co. v. 
 
 Smith 664 
 
 Thurber, Matter of 301 
 
 Thursby v. Mills 581 
 
 Thwing V. Thvving 824 
 
 Tibbetts v. Blood 147 
 
 Tiffany v. Bowerman 374 
 
 Tiffany v. Lord 41 
 
 Tiffany v. U. S. lUum'g. Co. 
 
 556, 565 
 
 Tift V. Bloomberg 373 
 
 Tighe V. Pope 780 
 
 Tilden v. Aitkin 36 
 
 Tillspaugh v. Dick 791 
 
 Tilman v. Keane 775 
 
 Tilton V. Beecher 276, 354, 388 
 
 Tilton, Matter of 644 
 
 Tilton V. Vail 171 
 
 Tioga E. R. Co. v. B. & C. R. 
 
 R. Co 103 
 
 Titus V. Cortelyou 849 
 
 Titus V. Poole , 118 
 
 Tobin V. Gary 787 
 
 Toll V. Alvord 535 
 
 Toll V. Cromwell 394 
 
 Tom V. Methodist Ep. Ch 206 
 
 Tompkins v. Ives 771 
 
 Tompkins v. Smith 487 
 
 Tooker v. Arnoux 329, 369 
 
 Toomey v, Andrews 362 
 
 Toplitz v. Raymond 790 
 
 Town of Essex v. N. Y. & 
 
 Canada R. R. Co 386 
 
 Town of Gravesend v. Curtiss . 569 
 Town of Guilford v. Cornell. . 599 
 Town of Hancock v. First Nat. 
 
 Bank igi 
 
 Town of Thompson v. Norris. 559 
 
TABLE OF CASES. 
 
 Ixxiii 
 
 Town of Venice v. Breed. ... 94 
 
 Tovvnsend v. Auld 330 
 
 Townsend v. Coon 415 
 
 Townsend v. Frommer 30 
 
 Townsend v. Lawrence 833 
 
 Townsend v. Nebenzahl 19 
 
 Townsend v. Piatt 437 
 
 Townshend v. Norris 324 
 
 Townshend v. Townshend.... 174 
 
 Towsley v. McDonald 219, 22/5 
 
 Tracy v. Baker 431 
 
 Tracy v. First Nat. Bk. of 
 
 Selma 673 
 
 Tracy v. Reynolds 235, 423 
 
 Tracy v. Veeder 514 
 
 Tradesman's Nat. Bk. v. Mc- 
 
 Feely 783 
 
 Tradesman's Nat. Bk. v. U. S. 
 
 Trust Co 380 
 
 Traver v. Eighth Ave. E. R. 
 
 Co 348, 39G 
 
 Travis v. Myers 160, 296 
 
 Travis v. Tobias 314, 424 
 
 Travis v. Travis 301 
 
 Tread well v. Fassett 344, 345 
 
 Treadwell v. Lawlor 189, 623 
 
 Treadwell v. United Verde C. 
 
 Co 549 
 
 Temper v. Wright 280 
 
 Trepagnier, etc. v. Rose 651 
 
 Tribune Asso. v. Eisner, etc., 
 
 Co 684 
 
 Tribune Asso. v. Sun Print. 
 
 Asso 567 
 
 Trier v. Hermann 769 
 
 Trigg V. Hitz 311 
 
 Trimmer v. Rochester 95 
 
 Tripp v. Saunders 770 
 
 Trolan v. Fagan 213 
 
 Trowbridge v. Didier. . . . . . . 333 
 
 Trow's Printing Co. v. Hart . . 
 
 674, 677 
 Troy & Boston R. R. Co. v. B. 
 
 H. T. & W. R. R. Co 
 
 544, 545, 577 
 Troy & B. R. R. Co. v. Tib- 
 
 bitts 366, 377 
 
 Troy Sav. Bk. v. Morrison. ... 719 
 
 Troxell v. Haynes 605 
 
 Trubee v. Alden 667 
 
 Trumbell v. Ashley 429 
 
 Truscott V. Dole 325 
 
 Trustees v. Cowen 555 
 
 Trustees, etc. v. Matteson .... 578 
 Trustees of Columbia Col. v. 
 
 Lynch 554 
 
 Tiustees of Columbia Col. v. 
 
 Thaeher 555 
 
 Trustees of Delhi v. Youmans 580 
 Trustees of East Hampton v. 
 
 Kirk 86 
 
 Trustees of Watertown v. 
 
 Cowen 180 
 
 Tuchband v. C. & A. R. R. Co. 208 
 
 Tuck V. Manning 45, 645 
 
 Tucker v. Goodsell Co 254, 632 
 
 Tucker v. Manhattan R. Co . . 436 
 
 Tuers v. Tuers 404 
 
 Tuft V. Braisted 122 
 
 Tuller V. Beck 627, 628 
 
 Tullis V. Runkle 45, 50 
 
 Tunstall v. Winton 495 
 
 Tuomy v. Dunn 787 
 
 Turner v. Davis 39 
 
 Turner v. Fire Ins. Co. of 
 
 Phila 208 
 
 Turner v. Honsinger 774 
 
 Turner v. Thompson 607 
 
 Turtle V. Turtle 259, 260 
 
 Tuthill, Matter of 76 
 
 Tuttle V. Smith 390 
 
 Tyack v. Bromley 567 
 
 Tylee v. M'Lean 162 
 
 Tyng V. American Surety Co. 642 
 
 V. 
 
 Uhl V. Loughran 180 
 
 Uhlf elder v. Tamsen 142 
 
 Ulner v. Butterfield 105 
 
 Underbill v. Dennis 14 
 
 Underbill v. Phillips 123 
 
 Underwood v. Sutcliff 797 
 
 Union Con. Mining Co. v. Raht 
 
 517, 681 
 
Ixxiv 
 
 TABLE OF CASES. 
 
 Union Dime Sav. Inst. v. An- 
 derson 26 
 
 Union Ferry Co., Matter of.. 809 
 Union Hardware Co. v. 
 
 Flagler 352 
 
 Union Nat. Bk. v. Bassett.366, 773 
 Union Paper Collar Co. v. 
 
 Metropolitan Collar Co 843 
 
 Union Tr. Co. v. Driggs . . 285, 845 
 United States v. Graff. 56, 615, 645 
 
 United States v. Kirby 501 
 
 United States v. Reid 484 
 
 United States v. Reynes 323 
 
 United States v. Dodge 56 
 
 United States v. Lee 57, 60 
 
 United States v. Lathrop .... 59 
 U. S. Life Ins. Co. v. Poillon. 124 
 U. S. Mort. & Tr. Co. v. Hodg- 
 son 771 
 
 United States Trust Co v. N. 
 Y., West Sh. & Buff. R. R. 
 Co. .733, 734, 735, 737, 744, 750 
 
 Upton V. Elec. Const. Co 695 
 
 Utiea Ins. Co. v. Lynch 724 
 
 V. 
 
 V, Matter of 32 
 
 Vail V. Knapp 558 
 
 Vail V. Lane 28S 
 
 Valentine v. MeCue 785 
 
 Valentine v. Myers Sanitary 
 
 Depot 230, 2.33 
 
 Valerino v. Thompson 57 
 
 Van Aernara v. MeCune 146 
 
 Van Allen v. Glass. .■ 769 
 
 Van Allen, Matter of 721 
 
 Van Allen v. Sampson 682 
 
 Van Alstyne v. Erwine 621, 638 
 
 Van Arsdale v. Drake 171 
 
 Van Arsdale v. King 15 
 
 Van Benschoten v. Yaple .... 438 
 Van Benthuysen v. Stevens . . . 251 
 
 Van Beuren, Matter of 122 
 
 Van Buren v. Chenango Co. 
 
 Mut. Ins. Co 751 
 
 VanBuskirk v. Roy 313 
 
 Van Camp v. Searle 655 
 
 Vandenburgh v. Van Rens- 
 selaer 802 
 
 Vanderbilt v. Bleeker 304 
 
 Vanderbilt v. Sohreyer. . .177, 797 
 Vanderheyden v. Gary... 242, 661 
 
 Van Der Zee, Matter of 96 
 
 Van Deusen v. Brower 782 
 
 Van Deusen v. Young 180 
 
 Van Deventer v. Van De venter 406 
 
 A'an Slyck, Matter of 96 
 
 Van Dyck v. McQuade 745 
 
 Van Horn v. Kithitas Co ... . 650 
 
 Van Home, Matter of 709 
 
 Van Ingen v. Snyder 114 
 
 Van Kleek v. Nichols 520 
 
 Van Leuven v. Lyke 399 
 
 Van Liew v. Johnson 474 
 
 Van Name v. Van Name. . 175, 408 
 
 Van Namee v. People 392 
 
 Van Olinda v. Hall 354 
 
 Van Pelt v. Boyer 423 
 
 Van Ranst v. N. Y. College of 
 
 Vet. Surgeons 543 
 
 Van Reed v. People's Nat. Bk. 619 
 
 Van Rensselaer v. Brice 385 
 
 Van Rensselaer v. Chadwiek . . 290 
 Van Rensselaer v. Dunbar. . . 219 
 Van Rensselaer v. Hopkins . . . 538 
 Van Rensselaer v. Layman. . . 420 
 Van Rensselaer v. Sheriff of 
 
 Onondaga Co 36 
 
 Van Rensselaer v. Wright. ... 90 
 
 Van Schaick v. Siegel 488 
 
 Van Slyke v. Schmeck 788 
 
 Van Syckels v. Perry 365 
 
 Van Valen v. Lapham 443 
 
 Van Veghten v. Howland . . 540, 544 
 
 Van Vleck v. Enos 167 
 
 Van Wagenen v. Botsford. . . . 179 
 Van Wagenen v. LaFarge .... 561 
 Van Wagonen, Matter of . . . 12, 183 
 
 Van Wyck v. Hardy 221, 792 
 
 Van Wyck v. Horowitz 575 
 
 Varick v. Edwards 102 
 
 Vassar v. Livingston . 439, 440, 441 
 Varick v. Smith 155 
 
TABLE OF CASES. 
 
 Ixxv 
 
 Veeder v. Baker 272 
 
 Vieller v. Oppenheim 886, 839 
 
 Velic V. Newark City Ins. Co. 399 
 
 Vellerman v. King 771 
 
 Vermilyea v. Vermilyea 547 
 
 Vernon v. Palmer 196 
 
 Vernum v. Wheeler 579 
 
 Verplanck v. Kendall 282 
 
 Verplanck v. Mercantile Ins. 
 
 Co 718, 744 
 
 Versann v. McGregor 428 
 
 Vessett V. Marx 31G 
 
 Victor V. Lewis 545 
 
 Victory v. Krauss 812, 813 
 
 Vietor v. Henlein 623, 679 
 
 Viets V. Union Nat. Bank... 113 
 Vilas V. P. & M. R. E. Co. 43, 232 
 Village of Brockport v. John- 
 son 553, 573 
 
 Village of Little Falls v. 
 
 Cobb 478 
 
 Vincent v. King 365 
 
 Vincent v. Parl^er 721 
 
 Volkening v. DeGraaf 370, 371 
 
 Von Moppes v. Leimbach 638 
 
 Voh Rhade v. Von Rhade 228 
 
 Von Sachs v. Kietz 108 
 
 Von Schoening v. Buchanan. . 793 
 
 Vorhis V. Childs 152 
 
 Vosburgh v. Huntington 311 
 
 Vrooman v. Stimson 151 
 
 w. 
 
 Wade V. Delayer 798 
 
 Wade V. Kalbfleisch 812 
 
 Wadley, Matter of 9, 249 
 
 W'adsworth v. Georger 191 
 
 Waeber v. Rosenstein 704 
 
 Waffle V. Gobble 221, 626 
 
 Waffle V. Vanderheyden 234 
 
 Wait V. Ferguson 476 
 
 Wait V. Getman 379, 381 
 
 Waite V. Kaldenberg Co 767 
 
 Waite V. Saybel 332 
 
 Wager v. Troy Union R. R. Co. 168 
 
 Waggoner v. Brown 34.S 
 
 Wagner v. Hodge 176 
 
 Wagner v. Perry 244 
 
 Wakeman v. Sherman. . . .115, 117 
 
 Walden v. Davison 21 
 
 Walkenshaw v. Perzel. . . .361, 781 
 
 Wacker v. A. C. Ins. Co 440 
 
 Walker v. Devereaux 545 
 
 Walker v. Fowler 385 
 
 Walker v. Granite Bank 
 
 843, 844, 846 
 Walker v. Hubbard. .191, 392, 779 
 
 Walker v. Isaacs 782 
 
 Walker v. Johnson 771 
 
 Walker v. Reiff 225 
 
 Walker v. Wainwright 502 
 
 Wall V. Beach 142 
 
 Wall V. Buffalo Water Wks.. . 
 
 347, 348 
 
 Wall, ex parte 31, 32 
 
 Wallabout Banlc v. Military 
 
 Club 022 
 
 Wallace v. Amer. Lin. Thread 
 
 Co 774 
 
 Wallace v. Baring 263 
 
 Wallace v. Bennett 330 
 
 Wallace v. Castle. .490, 491, 618 
 Wallace v. Dimmick. .191, 192, 779 
 
 Wallace v. Eaton 472 
 
 Wallace v. Morss 500 
 
 Wallace v. Murphy 488 
 
 Wallack v. Society for Relief 
 
 of Juv. Delinquents 500 
 
 Waller v. Lyon 332 
 
 Wallis V. Lott 212, 213 
 
 Walmsley v. Horton & Co. 270, 814 
 Walmsley v. Nelson. 833, 841, 847 
 
 Walradt v. Maynard 40 
 
 Walrath v. Killer 263 
 
 Walsh V. Press Co 843 
 
 Walsh V. Washington Ins. Co. 158 
 
 Walter v. Bennett 390 
 
 Walter v. DeGraef 42 
 
 Walter v. Lockwood 321 
 
 Walther v. Regnault 171 
 
 Walton V. Daly 685 
 
 Walton V. Fairchild 39 
 
 Walton V. James 176 
 
 Walts V. Nichols 
 
 276, 617, 634, 674 
 
Ixxvi 
 
 TABLE OF CASES. 
 
 Wandell v. Edwards 433, 438 
 
 Wannemacher v. Davis 507 
 
 Ward V. Arredondo 57 
 
 Ward V. Barber 795 
 
 Ward V. Comegys 453 
 
 Ward V. Kalbfleisch 363 
 
 Ward V. N. Y. Life Ins. Co. . 838 
 
 Ward V. Petrie 469 
 
 Ward V. Reynolds 817 
 
 Ward V. Roy 40 
 
 Ward V. Sands 43, 192 
 
 Ward V. Smith 102 
 
 Ward V. Stringham 393, 779 
 
 Ward V. Ward 464 
 
 Ward V. Whitney 670 
 
 Waring v. Indemnity F. Ins. 
 
 Co ; 158 
 
 Waring v. Waring. . .238, 243, 827 
 
 Waring v. Yale 266 
 
 Warner v. Babcoek 769 
 
 Warner v. Fourth Nat. Bk. . . 652 
 
 Warner v. Schweiter 827 
 
 Warner v. Warner 189 
 
 Warren v. Sprague 718 
 
 Warren v. Tiffany 218 
 
 Warsaw Water Works Co. v. 
 
 Warsaw 608 
 
 Washburn v. Carthage Nat. 
 
 Bk 535, 536 
 
 Washburn v. Cope 43, 232 
 
 Waterbury v. Delafield 307 
 
 Waterbury v. Eldridge 33, 34 
 
 Waterbury v. Merch. Un. Ex. 
 
 Co 711 
 
 Waterbury v. Mut. U. Ex. Co. 146 
 
 Waterbury v. Westervelt 21 
 
 Waters v. Waters 227 
 
 Watertown Paper Co. v. West 355 
 
 Watson V. Church 203 
 
 Watson V. Cowdrey 455 
 
 Watson V. McGuire 489 
 
 Watt V. Healy 524 
 
 Watts V. Nichols 251 
 
 Watts Admr. v. Kinney 58 
 
 Waverly Water Works, Mat- 
 ter of 279 
 
 Way Mfg. Co. v. Corn 358 
 
 Wayland v. Tysen. . .381, 382, 383 
 
 Weatherby v. Wood 578 
 
 Weaver v. Barden 432 
 
 Weaver v. Haviland 95 
 
 Webb V. Bailey 513, 629 
 
 Webb V. Groom 274 
 
 Webb V. Overmann 712 
 
 Webb v. Vanderbilt 467, 474 
 
 Webb V. Van Zandt 705 
 
 ^Veber v. Boyer 202 
 
 Weber v. Fowler 240 
 
 Weber v. H. M. S. R. R. Co. . 98 
 
 Weed V. Calkins 124 
 
 Weed V. Hornby 176 
 
 Weed V. H. B. F. Ins. Co 158 
 
 Weed V. Saratoga & S. R. R. 
 
 Co 777 
 
 Weeks v. Keteltas 347 
 
 Weeks v. Love 149 
 
 Weeks v. Tomes 238, 790 
 
 Wehle V. Bowery Sav. Bk.310, 311 
 
 Wehle V. Conner 645, 646, 652 
 
 Wehle V. Loewe 386 
 
 Weiehnell v. Spear 279 
 
 Weidman v. Sibley 
 
 73, 232, 233, 804 
 
 Weil V. Martin 
 
 181, 191, 192, 193, 780 
 
 AYeill V. Weill 51 
 
 Weir V. Sloeum 780 
 
 Weitkamp v. Loehr 618 
 
 Welch v. Cochran 42 
 
 Welch V. Piatt 403 
 
 Welch V. Winterburn 486, 519 
 
 Welford v. Oakley 805 
 
 Wellington v. Claason. . . .165, 234 
 
 Wells V. Chapman 554 
 
 Wells V. Henshaw 122 
 
 Wells V. Nat. City Bk 311 
 
 Wells V. Van Aken 351, 352 
 
 Wendell v. Van Rensselaer. . . 140 
 
 Wendling v. Pierce 332 
 
 Wendt V. Peyser 335, 339 
 
 Wenzell v. Morrissey 615 
 
 Wertheim v. Clergue 57 
 
 Wesley v. Bennett 381 
 
 Wessels t. Boettcher 282 
 
 West V. Amer. Ex. Bk 
 
 427, 428, 432 
 
TABLE OF CASES. 
 
 Ixxvii 
 
 West V. Kurtz 36 
 
 Westcott V. Fargo 146 
 
 Western E,. R. Co. v. Nolan . . 
 
 567, 569, 572 
 
 Westervelt v. Aekley 435 
 
 Westervelt v. Ag., etc., Soc . . 
 
 615, 617, 636 
 
 Westheimer v. Schultz 584 
 
 West Point Iron Co. v. Eey- 
 
 mert 576 
 
 West Side Bk. v. Meehan 679 
 
 West Side Bk. v. Pugsley 281 
 
 Weston V. Cits. Nat. Bk. .202, 210 
 Wetmore v. Hegeman .... 36, 375 
 
 Wetmore v. Jennys 360 
 
 Wetmore v. Porter 151, 399 
 
 Wetmore v. Scovell 571 
 
 Wetter v. Schlieper 702 
 
 Weyh V. Boylan 817 
 
 Wharton v. Barry 257 
 
 Wheaton v. Fay 536 
 
 Wheeler v. Brady 517 
 
 Wheeler v. Dixon 338 
 
 Wheeler v. Gillsey 592 
 
 Wheeler v. Hall 370 
 
 Wheeler v. N. Y. & Har. R. R. 
 
 Co 212, 213 
 
 Wheeler v. Spinola 88 
 
 Wheeler v. Warner . 112 
 
 Wheeloek v. Lee 233, 480, 804 
 
 Wheeloek v. Stewart 491 
 
 Wheeloek v. Tanner 755 
 
 Whelan v. Whelan 137 
 
 Whelpley v. Van Epps 343 
 
 Whipple V. Williams 801 
 
 Whitcomb v. Salsman 480 
 
 White V. Bo^art 
 
 214, 770, 773, 784 
 
 White V. Buloid 821 
 
 White V. Caxton Book Bd'g 
 
 Co 559 
 
 White V. Coulter 242, 803 
 
 White V. Munroe 271 
 
 White V. Reiehert 631 
 
 Whitehead v. Kennedy 45 
 
 Whitelegge V. DeWitt 675 
 
 Whiteside v. Prendergast .... 727 
 Whitewright v. Stimpson .... 706 
 
 Whiting V. Barney 54 
 
 Whiting V. Mayor, etc 480 
 
 Whitlake v. Fidelity Co. 426, 427 
 
 Whitman v. Haines 21 
 
 Whitney v. Belden 275 
 
 Whitney v. Coapman 151 
 
 Whitney v. Davis 664 
 
 Whitney v. De La Rionda 91 
 
 Whitney v. Denniston 641 
 
 Whitney v. Hirsch. . .616, 634, 680 
 
 ' Whitney v. Hoffstadt 509 
 
 Whitney v. Hoggarty 287 
 
 Whitney v. Mayor, etc 553 
 
 Whitney v. N. Y. & Atlantic 
 
 R. R. Co 736 
 
 Whitney v. Townsend 297 
 
 Whiten V. Morning Journal 
 
 Association 226, 800 
 
 Whittlesey v. Delaney 746 
 
 Whitworth v. Erie R. E. Co . . 843 
 
 Wice V. Com'l. Ins. Co 183 
 
 Wicker v. Harmon 506 
 
 Wicker v. Village of Elmira 
 
 Heights 254, 631 
 
 Wicks V. Monihan 147 
 
 Widmer v. Greene 549 
 
 Wier V. Slocum 192, 286 
 
 Wigand v. Dejonge 12, 354 
 
 Wiggins V. Richmond 192,780 
 
 Wilcox V. Daggett 374 
 
 Wilcox & Gibbs, etc., Co. v. 
 
 Kruse & Murphy Mfg. Co . . .58 
 
 Wilcox V. Wilcox 67, 68 
 
 Wilder v. Ballou 108 
 
 Wilder v. Guernsey 521 
 
 Wildman v. Gelder 623 
 
 Wiles V. Suydam 411, 472 
 
 Wiley V. L. I. R. R. Co 269 
 
 Wilkes V. Hotchkiss 257 
 
 Wilkie V. Roch. & St. Line R. 
 
 R. Co 609 
 
 Wilkin V. Raplee 459 
 
 Wilkins v. Williams 74 
 
 Wilkinson v. First Nat. F. Ins. 103 
 
 Wilkinson v. Johnson 305 
 
 Wilkinson v. Parish 817 
 
 Willard v. Judd 258 
 
 Willet V. Equitable Ins. Co. . . 650 
 
Ixxviii 
 
 TABLE OF CASES. 
 
 Willet V. Fayerweather 271 
 
 Willett V. Slinger 598 
 
 Williams v. Allen 360 
 
 Williams v. Aryault 558 
 
 Williams v. Davis 359 
 
 Williams v. Estate of Cameron 
 
 132, 133 
 
 Williams v. Fitch 52 
 
 Williams v. Hayes. . .319, 373, 393 
 
 Williams v. Hogeboom 781 _ 
 
 Williams v. Ingersoll 47 
 
 Williams v. Johnson 791 
 
 Williams v. Lakey 74G 
 
 Williams v. Lindblom 430 
 
 Williams v. Matthews 35 
 
 Williams v. Murray 275 
 
 Williams v. Rightmyer 633 
 
 Williams v. Rogers 781 
 
 Williams v. Shaw 358 
 
 Williams v. Van Valkenburgh 200 
 
 Williams v. Willis 117 
 
 Williams v. W. U. Tel. Co. 262, 549 
 Williamson v. Williamson. . . . 221 
 
 Williamson v. Moore 819 
 
 Willink V. Renwiek 280 
 
 Willis V. Chipp 437 
 
 Willis V. Corlies 732 
 
 Willover v. First Nat. Bk. of 
 
 Clean 452 
 
 Willson V. Belts 00 
 
 Wilmont v. Meserole. .30, 33, 238 
 
 Wilmore v. Flack 777, 791 
 
 Wilson V. Allen 715 
 
 Wilson V. Barney 737 
 
 Wilson V. Bennett 338, 345 
 
 Wilson V. Blanco 203 
 
 Wilson V. Britton 622 
 
 Wilson V. Doran 
 
 755, 757, 758, 759, 760, 762 
 
 Wilson V. Duncan 311 
 
 Wilson V. Fowler 300 
 
 Wilson V. Harter 827 
 
 Wilson V. Harvey 617 
 
 Wilson V. Lawrence 370 
 
 Wilson, Matter of 47 
 
 Wiltsie V. Northam '454 
 
 Winchell v. Hicks 115 
 
 Winchell v. Martin 356 
 
 Winchester v. Browne 57 
 
 Windecker v. Mut. Life Ins. 
 
 Co 313, 460 
 
 Winfield v. Bacon. . . .131, 720, 722 
 
 Wing v. Bull 472 
 
 Wing V. Ketcham 818, 827 
 
 Wing, Matter of 133 
 
 Wingrove v. Ger. Sav. Bk... 792 
 Winnebrenner v. Edgerton. . 
 
 802, 803 
 
 Winslow V. Ferguson 382, 383 
 
 Winslow V. S. I. R. T. R. E. 
 
 Co 205 
 
 Winter v. Baker 59 
 
 Winterton v. Winterton 117 
 
 Wireman v. Remington S. M. 
 
 Co 764, 766 
 
 Wisner v. Cons. Fruit Jar. Co. 
 
 421, 475 
 
 Witherbee v. Witherbee 719 
 
 Witherhead v. Allen 474 
 
 Witkowski v. Paramore 353 
 
 Wittner v. Von Minden 610 
 
 W. J. Johnson Co. v. Hunt. . 570 
 WoerishofTer v. North Riv. 
 
 Con. Co '. 728 
 
 Wolfe v. Burke 561, 576 
 
 Wolfe V. Goulard 574 
 
 Wolford V. Oakley 187, 779 
 
 Wolff V. Kaufman 257, 357 
 
 Wood V. Furtick 230 
 
 Wood V. Holmes 286 
 
 Wood V. Marvine 572 
 
 Wood V. Mayor 379 
 
 Wood V. St. Louis B. & I. Co.. 222 
 
 Wood V. Wood 102, 167 
 
 Wood V. Young 113 
 
 Woodbury v. Deloss 413 
 
 Wooden v. Strew 386 
 
 Woodhouse v. Woodhouse. ... 453 
 
 Woodmansee v. Rogers 676 
 
 Woods V. DeFiganiere 
 
 139, 147, 847 
 
 Woolsey v. Judd 55, 571 
 
 Woodward v. Frost 305, 561 
 
 Woodward v. Musgrave 270 
 
 Woodward v. Schatzell 496 
 
 Woodward v. Stearns 640 
 
TABLE OF CASES. 
 
 Ixxix 
 
 Woodworth v. Van Buskerk. . 5R2 
 
 Wooley V. Newcombe 321 
 
 Wooster v. Bateman 256, 206 
 
 Wooster v. Case 306 
 
 Wooster v. 42d St. R. R. Co. . 108 
 
 Wortman v. \Vortman 22.'5 
 
 Woven Tape Skirt Co., Matter 
 
 of 750 
 
 Wright V. Bennett 200 
 
 WrigM V. Hooker 306 
 
 Wright V. Marshall 162 
 
 Wright V. Robinson & Co. .756, 757 
 
 Wright V. Rowland 684 
 
 Wurtz V. Jenkins 150 
 
 Wyekoff v. Anthony 756 
 
 WyekoflF v. Bevlin 124 
 
 Wyckoflf V. Scofield. .708, 717, 720 
 
 Yellow Pine Co. v. Atlantic 
 
 Lumber Co 787 
 
 Yenney v. Yenney 223 
 
 ^'orks V. Peck 35 
 
 Younger v. DuflSe 380 
 
 Young V. Campbell 541 
 
 Young & Fletcher Co. v. Wels- 
 
 bach Light Co 208 
 
 Y'oung V. Fowler 221, 227 
 
 Y'oung V. Nassau Elee. R. Co. 135 
 
 Y'oungs V. Carter 66 
 
 Youngs V. Kent 379, 380 
 
 Y''oungs V. Perry 328 
 
 Y'oungs V. Ransom 566 
 
 Youngs V. Seeley 339 
 
 z. 
 
 Xenia Branch Bk. v. Lee . . 332, 444 
 Y. 
 
 Y'ate V. Willan 761 
 
 Y'^ates V. Bigelow 352 
 
 Yates V. Blodgett 191, 488 
 
 Yates V. Burch 464 
 
 Yates V. North 679 
 
 Y'ates V. Olmstead 53 
 
 Zabriskie v. N. Y. Sav. Bk.. 312 
 
 Zabriskie v. Smith.. 322, 471, 481 
 
 Zacharias v. French 439 
 
 Zellenkoff v. Collins 578 
 
 Zerega v. Benoist 631 
 
 Ziegler v. Hoagland 316 
 
 Zimm V. Ritterman 527 
 
 Zimmerman v. Meyrowitz .... 389 
 
 Zinn V. Ritterman 487 
 
 Zoellner v. Newberger 339 
 
 Zorn V. Zorn 416, 472 
 
 Zweigle v. Hohman 95, 101 
 
Ixxx 
 
 TABLE OF CASES. 
 
 CODE OF CIVIL PROCEDURE. 
 
 lEC. PAGE. 
 
 2 2 
 
 4 60, 703 
 
 5 4 
 
 6 4, 15 
 
 14 24, 27 
 
 17 2 
 
 18... 2 
 
 22 331 
 
 27 16 
 
 34 10 
 
 35 11 
 
 36 12 
 
 37 9 
 
 46 12, T4 
 
 47 15 
 
 48 15 
 
 49 15 
 
 56 29, .30 " 
 
 59 29 
 
 60 29 
 
 61 20 
 
 62 22 
 
 63 .'J7 
 
 65 38, 280 
 
 66 45, 46, 50 
 
 67 30, 31 
 
 68 30 
 
 69 33 
 
 70 25 
 
 71 35 
 
 72 35 
 
 73 33, 35, 36, 37 
 
 74 33, 36, 37 
 
 75 33, 37 
 
 76 37 
 
 77 37 
 
 89 16, 20 
 
 90 698 
 
 92 25 
 
 97 25 
 
 98 25 
 
 99 25 
 
 100 23 
 
 .101 24 
 
 PAGE. 
 
 . .. 24 
 .23, 24 
 . . . 23 
 . . . 663 
 
 SEC. 
 
 102 
 
 103 
 
 104 
 
 108 
 
 Ill 523, 524 
 
 116 184 
 
 119 503 
 
 158 199 
 
 172 27 
 
 173 28 
 
 174 28 
 
 175 28 
 
 176 28 
 
 179 28 
 
 180 28, 513 
 
 181 28 
 
 182 25 
 
 183 25 
 
 184 25, 26 
 
 185 26 
 
 186 25 
 
 190 62, 313, 353 
 
 191 63 
 
 196 7 
 
 197 7 
 
 217 66 
 
 218 67 
 
 220 7, 05 
 
 221 16 
 
 225 7 
 
 226 7 
 
 232 8, 16 
 
 234 8 
 
 235 65, 77 
 
 237 9 
 
 238 9 
 
 239 9, 249 
 
 241 77 
 
 242 25 
 
 263 4 
 
 266 16 
 
 268 11 
 
 270 87 
 
 281 4 
 
TABLE OF CASES. Ixxxi 
 
 SEC. PAGE. SEC. PAGE. 
 
 315 69 393 Ill 
 
 i-16 70 394 98 
 
 317 70 395 114 
 
 318 70 396 110 
 
 319 07 397 114 
 
 324 10 398 119 
 
 327 71 399 25,106,119,120,628,629 
 
 338 71 400 120 
 
 340 72 401 104 
 
 341 67,73 402 106 
 
 343 67 403 107 
 
 347 73 404 105 
 
 348 73 405 108 
 
 349 77 406 108 
 
 350 75 407 112 
 
 354 78 408 89,110 
 
 355 10,77 409 110 
 
 362 82 410 112 
 
 363 83 411 109 
 
 365 83,84 412 109 
 
 366 84 413 117,434,460 
 
 367 85 414 108,118 
 
 368 85 415 Ill 
 
 369 85 416 189,614,626,827 
 
 370 86, S7 417 191, 230, 392 
 
 371 37 418 193 
 
 372 S7 419 193,422,423 
 
 373 89 420... 194 
 
 374 89 421 230,232 
 
 375 89 422 235 
 
 376 90,91,107 423 197 
 
 377 91 424 231,629 
 
 378 91 425 ;... 198 
 
 379 84, 92 426 198, 199, 200 
 
 380 107 427 199 
 
 381 02 428 . 199 
 
 ■ .382 92, 93, 114 430 104, 204, 630 
 
 383 98 431 205 
 
 384 99 432 104,207,208,210 
 
 385 100 433 211 
 
 .S86 : 111 434 211,213 
 
 387 101 435 214,215,237,628 
 
 388 101 436 216 
 
 389 103 437 217,629 
 
 390 103 438 217,218 
 
 391 105 439 219 
 
 392 106 440 223 
 
Ixxxii 
 
 TABLE OK CASES. 
 
 SEC. PAGE. 
 
 441 227 
 
 442 225, 226, 800 
 
 443 225, 220 
 
 444 228 
 
 445 228, 229 
 
 446 139 
 
 447 139, 140, 15.5 
 
 448 139, 140, 159 
 
 449 139, 140, 157, 158 
 
 451 181, 191 
 
 452 140, 142, 16S 
 
 453 193 
 
 454 165, 414 
 
 455 164, 165 
 
 456 164, 165 
 
 457 . 105 
 
 458 134 
 
 459 134, 182 
 
 460 135 
 
 461 137 
 
 462 137 
 
 463 137 
 
 464 137 
 
 465 137 
 
 466 137 
 
 467 51, 138 
 
 469 182 
 
 470 183, 185, 180 
 
 471 182, 184, 185 
 
 472 18, 183, 185 
 
 473 184, 1S6 
 
 474 187 
 
 475 187 
 
 477 183 
 
 478 391 
 
 479. ! 422 
 
 480 423 
 
 481 320, 324, 391, 392, 
 
 396, 398, 417, 418 
 
 482 421 
 
 483 331, 390 
 
 484 402, 406, 407, 408, 
 
 409, 410, 411, 415 
 
 487 425 
 
 488 417, 435, 462, 463, 
 
 468, 469, 470, 471, 472 
 490 465, 468, 469, 474 
 
 SEC. PAGE. 
 
 492 425, 463, 466, 467 
 
 493 463, 466, 478 
 
 494 449, 463, 466, 476 
 
 495 459, 463, 477, 478 
 
 496 465, 466, 478 
 
 497 470 
 
 498 417, 425, 436, 460, 481 
 
 499 417, 436, 406, 
 
 471, 474, 479, 481 
 
 500 320, 324, 426 
 
 501 4.39 
 
 502 449, 451 
 
 503 455 
 
 505 451 
 
 506 451, 452 
 
 507 331, 436, 454 
 
 508 437, 438, 476 
 
 509 450 
 
 511 764 
 
 512 455 
 
 513 338 
 
 514 457, 459 
 
 51P 437, 460 
 
 516 457 
 
 517 459 
 
 518 319 
 
 519 346 
 
 520 333 
 
 521 334, 425, 456, 477 
 
 522 335, 349 
 
 523 335, 3.37 
 
 524 326, 337 
 
 525 337, 339, 340, 341 
 
 526 337, 342 
 
 527 337 
 
 528 345 
 
 529 337, 338 
 
 530 320 
 
 531.. 326, 327, 341, 351, 3-52, 353 
 
 532 327 
 
 533 328 
 
 534 329 
 
 535 330, 437 
 
 536 433 
 
 537 379 
 
 538 381 
 
 539 368, 370, 371 
 
TABLE OF CASES. IxXxiu 
 
 SEC. PAGE. SEC. PAGE. 
 
 540 368 590 532 
 
 541 368, 370 591 532, 533 
 
 542 361, 303 592 533 
 
 543 363 593 533, 534 
 
 544 372,373,370,378 594 534 
 
 545 52,385 595 . 534 
 
 546 324,388 590 535 
 
 548 483 597 535 
 
 549. .482, 483, 484, 487, 488, 489, 598 530 
 
 490, 492, 493, 408. 513, 517 599 536 
 
 550. .483, 495, 496, 497, 498, 513 600 536, 537 
 
 551 496, 512, 513 601 537 
 
 552 498 602 539 
 
 553 487, 496, 499 603 422, 544, 581, 586 
 
 554 499 604 546, 581 
 
 555 500 605 583, 584 
 
 556 512, 513 000 581, 582 
 
 557 505 ,007 545, 585, 580 
 
 558 512, 517 008 581 
 
 559 509 009 78, 583, 584 
 
 560 511 610 578, 588, 589 
 
 561 514, 524 611. 503, 594, 595 
 
 562 525 012 594,596 
 
 563 524 613 594, 596 
 
 564 500, 519 614 596, 597 
 
 565 38, 503 615 597 
 
 566 236,517 610 595 
 
 567 508,515,516,517 617 604 
 
 568 516, 518, 519, 520 618 596 
 
 572 522,523,524 619 596 
 
 573 520 620 563, 596, 597 
 
 574 520 621 598 
 
 575 527 623 601, 003 
 
 570 515, 527 024 005 
 
 577 527 625 605 
 
 578 523 626 006 
 
 579 52S 027 007 
 
 580 528 028 008 
 
 581 529 629 598, 599 
 
 582 529, 530 630 603 
 
 583 529, 530 635 613, 616, 617 
 
 584 530, 531 630 013, 018, 619, 021, 
 
 585 530 623, 024, 030, 031 
 
 586 530 637 023, 024, 625, 640 
 
 587 531 638 626, 629 
 
 588 532 639 040 
 
 589 528, 5.34 640 641 
 
Ixxxiv 
 
 TABLE OF CASKS. 
 
 SEC. PAGE. 
 
 641 642 
 
 042 642 
 
 644 644, 647, 650 
 
 645 646 
 
 646 647 
 
 647 647, 643 
 
 648 643 
 
 649 239, 240, 650, 651, 
 
 652, 655, 656 
 
 650 657 
 
 651 657, 658 
 
 652 660 
 
 653 660 
 
 654 645, 660 
 
 655 655, 661, 662, 824 
 
 656 667, 668 
 
 657 668 
 
 658 668, 669 
 
 659 669, 670 
 
 660 670 
 
 661 670 
 
 662 670, 688 
 
 663 670, 671 
 
 664 671 
 
 665 • 671 
 
 666 671 
 
 667 671 
 
 668 671, 672 
 
 669 672 
 
 670 672 
 
 671 672 
 
 672 672 
 
 673 672, 673 
 
 674 666 
 
 675 660 
 
 676 667 
 
 677 662, 663, 665 
 
 678 663 
 
 679 603 
 
 680 663 
 
 681 645; 661 
 
 682 673, 67,5, 800 
 
 683 676, 677, 678, 679 
 
 686 680 
 
 687 683, 685 
 
 688 . 675, 684, 685 
 
 689 683, 684, 685 
 
 SEC. XAflE. 
 
 690 685, 680 
 
 691 686 
 
 692 686 
 
 693 687 
 
 694 687, 688 
 
 695 687 
 
 696 684, 687 
 
 697 656, 688, 689 
 
 698 683 
 
 ^01 689 
 
 702 689 
 
 703 690 
 
 704 690 
 
 705 691 
 
 706 691 
 
 707 694 
 
 708 692, 693 
 
 709 694 
 
 710 695, 696 
 
 711 244, 690 
 
 712 645, 696 
 
 713.. 701, 703, 704, 710, 711, 712 
 
 714 711 
 
 715 713, 714 
 
 716 714, 715, 716, 739 
 
 717 751 
 
 718 751 
 
 719 =- 7.52 
 
 720 587, 753 
 
 721 805, 806 
 
 722 806 
 
 723 140, 193, 364, 369, 776 
 
 724 796, 802 
 
 725 792 
 
 727 794 
 
 728 252. 787 
 
 729 303, 788 
 
 730 304, 510, 783 
 
 731 754, 756 
 
 732 756,757 
 
 733 759 
 
 734 759 
 
 736 767 
 
 737 767, 768 
 
 738 768, 770, 772, 773 
 
 739 772, 773 
 
 740 767, 768, 771 
 
TABLE OF CASES. IXXXV 
 
 SEC. PAGE. SEC. PAGE. 
 
 743 751 805 842, 845, 846 
 
 744 762 806 846, 847 
 
 745 757, 762 807 846, 848, 849 
 
 746 762 808 849,8.50 
 
 747 762 809 849 
 
 751 76-3 810 302 
 
 755 376, 807, 809, 813, 821 811 297, 298, 670 
 
 756 376, 822, 823 812 298, 301, 509' 
 
 757. .376, 809, 814, 816, 821, 827 813 302, 303 
 
 758 376, 809, 811, 819, 821 814 304, giO 
 
 759 ..376, 809, 821 815 303 
 
 760 376, 828, 829 816 291, 303 
 
 761 829 817 70,304 
 
 762 825 818 304 
 
 763 830 819 307 
 
 764 830 820 70,308,313,376 
 
 765 831 821 314 
 
 766 720, 824 822 314, 315 
 
 767 245, 274 824 290, 291 
 
 768 245, 246, 249, 583, 584 825 290, 291 
 
 769 247, 249, 250, 520 826 317 
 
 770 78, 249, 513, 520 827 301, 702 
 
 771 250 835 52 
 
 772 78, 280, 520 836 ,52 
 
 773 78, 520 842 258 
 
 775 267, 295 844 220, 259 
 
 776 272, 273 860 502 
 
 777 273 864 502 
 
 778 273 870 147 
 
 779 281, 282 872 835 
 
 780... 78, 185, 264, 265, 266, 292 873 835, 837 
 
 781..'. 294, 295 885 260, 261, 633, 639 
 
 782 295 886 262 
 
 783 296 904 18 
 
 784 297 905... 18 
 
 785 297 906 18 
 
 786 317 907 18 
 
 787 294 927 289 
 
 • 796 250, 251, 280 923 336 
 
 797 286,287 961 18 
 
 798 185, 265, 292, 294, 333 985 39.3 
 
 799 285, 584 989 394 
 
 800 286 1015 270 
 
 801 " 287 1018 368 
 
 802 285 1205 165 
 
 803 832 1207 413 
 
 804 833 1213 17 
 
Ixxxvi 
 
 TABLE OF CASES. 
 
 SEC. PAGE. 
 
 1217 220 
 
 1236 17 
 
 1237 18 
 
 1239 18 
 
 1260 40 
 
 1203 717 
 
 1281 544 
 
 1282 246, 247, 802 
 
 1304 278 
 
 1347 313, 702 
 
 >351 270 
 
 1353 275, 276 
 
 1355 17 
 
 1362 27 
 
 1363 23 
 
 1370 664, 691 
 
 1387 22 
 
 1406 656, 689 
 
 1407 656 
 
 1996 408 
 
 1498 167 
 
 1499 100, 101, 167 
 
 1500 162, 167 
 
 1501 167 
 
 1502 168, 160 
 
 1503 169 
 
 1511 401 
 
 1512 39 
 
 1513 39 
 
 1514 40 
 
 1521 812, 825 
 
 1522 812, 825 
 
 1523 812, 825 
 
 1524 239, 241 
 
 1526 239, 241 
 
 1531 96 
 
 1532 170 
 
 1533 170 
 
 1534 ;.134, 170 
 
 1535 185 
 
 1536 187 
 
 1537 172 
 
 1538 172 
 
 1539 173 
 
 loiO 174 
 
 1541 174, 226 
 
 1542 401 
 
 SEC. PAGE. 
 
 1543 74 
 
 1557 241 
 
 1588 826 
 
 1590 76 
 
 1594 155 
 
 1596 84, 110 
 
 1597 174, 175 
 
 1598 175 
 
 1599 175 
 
 1600 96 
 
 1606 • 401 
 
 1619 241 
 
 1627 : 177 
 
 1628 123, 125 
 
 1629 401 
 
 1631 237, 240 
 
 1632 241 
 
 1638 178 
 
 1639 400 
 
 1646 ; 241 
 
 1651 180 
 
 1G52 179 
 
 1653 179 
 
 1654 179 
 
 1656 180 
 
 1661 ISO 
 
 1670.. 237, 239, 240, 241, 628, 620 
 
 1671 241 
 
 1672 240, 241 
 
 1673 240, 241 
 
 1674. . .'. 243, 244 
 
 1681 578, 598 
 
 1686 166 
 
 1689 410 
 
 1693 190 
 
 1720 401 
 
 1721 401 
 
 1722 410. 
 
 1736 812 
 
 1752 97 
 
 1757 338 
 
 1758 97 
 
 1764 401 
 
 1770 4.53 
 
 1772 712, 716, 720 
 
 1774 226 
 
 1775 400, 464 
 
TABLE OP CASES. IxXXVii 
 
 SI^O. PAGE. SEC. PAGE. 
 
 1776 336, 4.32 1823 146 
 
 1780 59, 231 1925 157 
 
 1781 67, 152, 153 1926 150, 157 
 
 1'82 152, 153 1927 150 
 
 1785 67, 129, 153 1928 150,157 
 
 1786 130, 153 1929 156 
 
 1787 551,582 1932 770 
 
 1788 729, 736, 7-38 1937 123, 336 
 
 1789 7.39 1938 3.36 
 
 1790 148, 376 1845 394 
 
 1791 148 1948 153 
 
 1796 149 1955 545 
 
 1797 183 1902 67, 153 
 
 1798 67, 128, 153 1969 154, 810 
 
 1799 128 1972 102 
 
 1801 729 1977... 154 
 
 1802 551 1982...' 154 
 
 1806 551, 582 1990 598 
 
 1809 ; 550,582 1991 67 
 
 1810 727, 728, 729, 735 1994 154 
 
 1812 728 2017 67 
 
 1814 150 2030 23 
 
 1815 414 2067 67 
 
 1817 150 2091 07 
 
 1818 150 2103 07 
 
 1822 108 2104 67 
 
 1845 401 2120 67 
 
 1851 401 2150 76 
 
 1809 709, 714, 715, 716, 719 2153 719 
 
 1876 545 2188 76 
 
 1877 700 2201 70 
 
 ■1880 125 2219 76 
 
 1881 '. 125 2265 563 
 
 1882 126 2270 24 
 
 1886 126 2284 592 
 
 1887 126 2290 154 
 
 1888 127 2320 67 
 
 1890 127 2339 132 
 
 1892 127 2340 132, 166, 171 
 
 1897 19,5 2345 67 
 
 1902 99,151,808,810 2348 67 
 
 1903 ; 808 2410 76 
 
 1904 808 2419 67,730 
 
 1909 144 2423 551, 552, 729, 730 
 
 1913 122 2429 729,730,731,730 
 
 1914 832 2507 16 
 
 1919. 146, 147, 625, 781 2653a 705 
 
IXXXVlll 
 
 TABLE OF CASES. 
 
 SEC. PAGE. 
 
 2668 150 
 
 2672 150 
 
 2718 107 
 
 2863 759 
 
 2953 74 
 
 3017 91, 93, 123 
 
 3045 77 
 
 3107 100 
 
 3158 23 
 
 3160 219, 595 
 
 3229 759 
 
 3236 281, 603 
 
 3246 . 
 3247. 
 3251. 
 3262. 
 3265. 
 3280. 
 3281. 
 3282. 
 3300. 
 3301 . 
 
 .19 
 
 723 
 
 615 
 
 603 
 
 IS 
 
 18 
 
 , 20 
 
 19 
 
 20 
 
 18 
 
 18 
 
 SEC. PAGE. 
 
 3302 18 
 
 3303 18 
 
 3304 18 
 
 3305 18 
 
 3306 IS 
 
 3307 26 
 
 3310 29 
 
 3320 724, 725, 749 
 
 3333 80 
 
 3334 80 
 
 3335 80 
 
 3336 80 
 
 3337 80 
 
 3338 139 
 
 3339 80, 392 
 
 3343 ,.258, 485, 
 
 486, 494, 505, 539, 586, 616, 
 
 617, 619, 631, 640, 694, 69.5 
 
 3347 538 
 
 3399 705 
 
 3400 703 
 
 SEC. 
 
 42. 
 
 PENAL CODE. 
 
 PAGE. SEC. 
 
 ...21,27 268 
 
 PAGE. 
 
 .5, 203 
 
 Rule 3. 
 
 COURT OF APPEALS RULES. 
 
 PAGE. 
 44, 
 
 GENERAL RULES. 
 
 RULE. PAGE. 
 
 2 17, 291 
 
 3 17, 275, 277 
 
 4 17, 291, 303, 587, 
 
 5 .37, 298, 299, 301, 
 
 7 
 
 8 
 
 10 
 
 n 
 
 13 514, 578, 
 
 14 834, 837, 838, 840 30 . 
 
 597 
 
 302 
 
 24 
 
 17 
 
 20 
 
 43 
 
 284 
 
 588 
 
 liULE. PAGE. 
 
 15 842, 843, 844 
 
 16 845, 846 
 
 IS 198, 212, 213 
 
 19 250, 284, 331, 333 
 
 21 251, 263, 264, 266 
 
 22 247, .387 
 
 23 2.57, 2.5S 
 
 24 256, 294, 295 423 
 
 25 256, 273, 503 
 
 27 277 
 
 602 
 
TABLE OF CASiiS. Ixxxix 
 
 "UI-E. PAGE. RULE. PAGE. 
 
 31-.. 247 51 187 
 
 32 295 77 130, 713 
 
 36 314, 315 78 ^r^ 
 
 37 78, 185, 264, 265, 268, 270 79 725 
 
 38 246, 248, 582 80 725, 734, 74S 
 
 47 269 81 718 
 
 48 ' 247,268 83 2 
 
 49 182, 183, 185 85 247 
 
 50 183, 188 
 
 SESSION LAWS. 
 
 PAGE. PAGE. 
 
 1847 ch. 240 6 1890 eh. 568 76 
 
 1868 eh. 720 19 1892 ch. 418, Sec. 1, Sub. 2. . 734 
 
 1871 ch. 374 19 1895 ch. 282 734 
 
 1877 eh. 11 513 1895 ch. 384 76 
 
 1877 ch. 466 716 1896 ch. 139 743, 744 
 
 1878 ch. 354 1896 eh. 282 735, 748 
 
 1880 ch. 245 19, 731 1896 eh. 322 740, 745 
 
 1880 ch. 269 67 1896 eh. 665 104 
 
 1883 eh. 36 C9 1897 ch. 378 192 
 
 1883 ch. 378 733, 734, 735, 1897 ch. 415 721 
 
 744, 747, 748, 749 1897 ch. 417 720 
 
 1?84 ch. 285 739, 740, 741 1897 ch. 418 705 
 
 1884 ch. 366 18 1897 ch. 419 705 
 
 1885 ch. 342, Sec. 4 19 1898 ch. 165 29 
 
 1885 ch. 380 67 1898 ch. 334 26 
 
 1886 eh. 235 19 1898 eh. 522 741 
 
 1886 ch. 275 749 1899 ch. 61 46, 50 
 
 1886 eh. 310 1899 eh. 225 29 
 
 733, 736, 737, 740, 741, 750 1901 ch. 506 749 
 
 1886 ch. 672 502, 523, 524 1902 ch. 60 731 
 
 N. Y. REVISED STATUTES, 9TH EDITION. , 
 
 PAGE. PAGE. 
 
 2 E. S. pp.1014-5 § 31 99 2 R. S. pp. 1910, 1914.731, 741, 742 
 
 2 R. S. p. 1026 § 55 99 2 R. S. p. 1912 742,743,750 
 
 2 R. S. pp. 1274-5 § 39 101 2 R. S. p. 1913 742, 743, 747 
 
 2 R. S. p. 1438 § 11 100 2 R. S. p. 1925 75 
 
 2 R. S. p. 1802 66 3 R. S. pp. 2196, et seq 67 
 
 2 R. S. p. 1855 § 3 100 3 R. S. pp. 2126, 2127 743 
 
 2 R. 8. p. 1882 151 3 R. S. p. 2407 75 
 
 2 R. S. pp. 1907-8 731,741 3 R. S. p. 2409 § 4 75 
 
 2 R. S. p. 1910 730, 737, 741 3 R. S. pp. 2429-2439 75 
 
XC TABLE OF CASES. 
 
 PAGE. PAGE. 
 
 3 R. S. p. 2435 75 3 E. S. p. 2686 101 
 
 3R. S. p. 2465 127 3 R. S. p. 2871 § 7 99 
 
 3 R. S. p. 2483 75 
 
 N. Y. CONSTITUTION. 
 
 PAGE. PAGE. 
 
 Alt. VI. § 1 64, 65 Art. VI. § 14. ... 4, 68, 71 
 
 Art. VI. § 2 64,65 Art. VI. § 19 16 
 
 Art. VI. § 3 15 Art. VI. § 20 15 
 
 Art. VI. § 5 3, 122 Art. VI. § 24 64 
 
 Art. VI. § 6 4, 68 Art. VII. § 6 103 
 
 Art. VI. § 7 16, 60 Art. X. § 1 21 
 
 Art. VI. § 9 61 Art. VIII. §1 21,27 
 
 Art. VI. § 12 16, 68 
 
 U. S. CONSTITUTION. 
 
 PAGE. 
 
 Art. I. § 6 501 
 
 U. S. REVISED STATUTES. 
 
 SEC. PAGE. SEC. PAGE. 
 
 446 611 1610 502 
 
 687 57 4063 502 
 
 863 503 4065 502 
 
 1237 502 5242 619 
 
 GEEATER N. Y. CHARTER. 
 
 SEC. PAGE. SEC. PAGE. 
 
 341 503 1288 180 
 
 1260 582, 584, 598 1570 27 
 
TABLE OF CASES. XCl 
 
 GENEEAL LAWS. 
 
 BANKING LAW. 
 
 SEC. PAGE. SEC. PAfiE. 
 
 17 730 115 312 
 
 18 730 156, Sub. 6 698,714 
 
 33 67,732 158 698 
 
 36 67 
 
 CANAL LAW. 
 
 SEC. PAGE. 
 31 501 
 
 COUNTY LAW. 
 
 SEC. PAGE. SEC. PAGE. 
 
 3 156 184 22,24 
 
 16 75 187 27 
 
 165 20 188 27 
 
 180 21,27 189 29 
 
 181 21,26 190 27 
 
 182- : . . 21 234 156 
 
 183 22 
 
 GENERAL CORPORATION LAW. 
 
 SEC. PAGE. SEC. PAGE. 
 
 15 , 634 27 67 
 
 MANUFACTURING CORPORATION LAW. 
 
 SEC. PAGE, 
 
 12 .. 114 
 
 MEMBERSHIP CORPORATION LAW. 
 
 SEC. PAGE. 
 
 13 67 
 
 RELIGIOUS CORPORATION LAW. 
 
 SEC. PAGE. SEC. PAGE. 
 
 5 552 110 552 
 
 11 ; 67 
 
XCll TABLE OF CASES. 
 
 STOCK CORPORATION LAW. 
 
 SEC. PAGE. 
 
 24 307 
 
 ELECTION LAW. 
 
 SEC. PAGE. 
 
 1.S3 67 
 
 HIGHWAY LAW. 
 
 SEC. PAGE. 
 
 83 76 
 
 INSURANCE LAW. 
 
 SEC. PAGE. SEC. PAGE. 
 
 23 745 77 745 
 
 30 209 20V 733 
 
 76 733,745 208 733 
 
 LABOR LAW. 
 
 SEC. PAGE. SEC. PAGE. 
 
 8 721 8 742 
 
 LEGISLATIVE LAW. 
 
 SEC. PAGE. 
 
 2 501 
 
 LIEN LAW. 
 
 PAGE. 
 
 .705, 721 
 
 MILITARY CODE. 
 
 SEC. PAGD. 
 T48 501 
 
 PERSONAL PROPERTY LAW. 
 
 SEC. PAGE. SEC. PAGE. 
 
 7 317 25 720 
 
TABLE OF CASES. XCIU 
 
 PUBLIC OFFICEKS' LAW. 
 
 BEO. PAGE. SEC. PASE. 
 
 2 27 13 21,27 
 
 3 22, 27 15 21, 27 
 
 5 21, .'7 20 21, 27 
 
 10 21,27 41 fi 
 
 REAL PROPERTY LAW. 
 
 SEC. PAGE. 
 
 260 259 
 
 STATUTORY CONSTRUCTION LAW. 
 
 'sec. page. sec. page. 
 
 25 Ill, 292 27 / 292, 293 
 
 26 292 28 -, 293 
 
 TOWN LAW. 
 
 SEC. PAGE. 
 
 182 157 
 
PRACTICE, 
 
 UNDEH 
 
 Xh£ Oode of Oivil, Jtrocedure. 
 
 chapter i. 
 
 THE COURTS OF THE STATE OF NEW YORK. 
 
 ARTICLE I. — The courts, their judges and officers. 
 ARTICLE II.— The jurisdiction of the courts. 
 
 ARTICLE I. 
 
 THE COURTS, THEIR JUDGES AND OFFICERS. 
 
 BBCTION. 
 
 1. The rules and how made. 
 
 2. The courts of record. 
 
 3. When and how open. 
 
 4. The terms of the courts and their appointment. 
 
 5. The judges. 
 
 6. Clerks of the courts. 
 
 7. Sheriffs. 
 
 8. Coroners. 
 
 9. Elisors. 
 
 10. Attorneys and counsellors. 
 
 Sec. I. The Rules, and How Made. 
 
 The practice treated of in this book will be that exclusively 
 of the courts of record of this state. No principles of law 
 will be discussed or stated, except as they bear upon the prac- 
 tice of those courts. These principles are chiefly to be found 
 in the Code of Civil Procedure and in the general rules of 
 practice which are adopted from time to time by a convention 
 
2 PRACTICE. 
 
 of judges. The members of this convention are the justices 
 assigned to the appellate division of the Supreme Court, who 
 are required to meet in convention at the Capitol, in the city 
 of Albany, on the fourth Tuesday of October, 1S95, and at 
 least every second year thereafter, for the purpose of es- 
 tabhshing rules of practice. (Co. Civ. Proc, § 17). The 
 rules thus established are called the "General Rules of 
 Practice." They are binding upon all the courts in this 
 state, and the judges and justices thereof; except the court 
 for the trial of impeachments and the court of appeals. 
 These rules must be consistent with the provisions of the 
 Code, and the convention has no power to alter, modify or 
 annul any rule established by the Code, but only to make 
 such rules as may be necessary, and are in harmony with its 
 provisions. (Gormerly v. McGlynn, 84 N. Y., 284). If one 
 of the rules is inconsistent with the statute it is void. (Rice 
 v. Ehele, 55 N. Y., 518: French v. Powers, 80 N. Y., 146). 
 The rules have the force and effect of statutes. They are 
 binding upon the courts, as well as the citizens, £md the 
 courts have no more right to disregard them than they 
 would have to disregard the statute. (Matter of Moore, 
 108 N. Y., 280; Ives v. Ives, 80 Hun, 136). 
 
 The general rules of practice thus made do not take effect 
 until they have been published, once in each week, for three 
 successive weeks, in the newspaper published at Albany in 
 which legal notices are required by law to be published. 
 (Co. Civ. Proc, § 18). Subject to the Code, .and the general 
 rules of practice, the different courts of record and the appel- 
 late division in each department are authorized to make such 
 other and further rules in regard to the transaction of 
 business before them, as may be necessary. (General Rule 
 83). It is not designed in this work to collect the rules thus 
 made. 
 
 In cases where no provision is made by statute, or by 
 the general rules of practice, the proceedings of the courts 
 must be according to the practice which formerly existed in 
 the court of chancery or supreme court. (General Rule 
 84). In the court of appeals, where the statutes are silent, 
 the former practice in tlie court of errors will be followed. 
 (Hastings v. McKinly, 8 How. Pr., 175; Mm. L. I. Co. v. 
 Bigler, 79 N. Y., 568, 571). 
 
THE COURTS OF THE STATE OF NEW YORK. 3 
 
 Sec. 2. The Courts of Record. 
 The Courts of Record in the State, are : — 
 
 1. The court for the trial of impeachments. 
 
 2. The court of appeals. 
 
 3. The appellate division of the supreme court, in each department. 
 
 4. The supreme court. 
 
 5. The court of general sessions of the peace in and for the city and 
 county of New York. 
 
 6. The city court of Long Island City. 
 
 7. The city court of Yonkers. 
 
 8. A county court in each county, except New York. 
 
 9. The city court of the city of New York. 
 
 10. The mayor's court of the city of Hudson. 
 
 11. The recorder's court of the city of Utica. 
 
 12. The recorder's court of the city of Cswego. 
 
 13. The justices' court of the city of Albany. 
 
 14. A surrogate's court in each county. 
 
 15. The court of claims. 
 
 (Co. of Civ. Proc. § 2.) 
 
 Down to the first day of January 1896, there were also in 
 existence, in the state, courts of general jurisdiction in the 
 cities of New York, Brooklyn and Buffalo, which were called 
 the superior city courts. They consisted of the Superior 
 Court of the City of New York ; the Court of Common Pleas 
 for the City and County of New York, the City Court of 
 Brooklyn, and the Superior Court of Buffalo. These courts 
 were abolished by Article 6, "§ 5, of the Constitution, which 
 went into effect on the first day of January 189.5, but the 
 abohtibn of the courts was not to take effect until the first of 
 January 1896. The jurisdiction exercised b}' these courts 
 is now vested in the Supreme Court. (Constitution, Article 
 6, § .5.). After the first of January, 1896, the judges of these 
 courts became justices of the Supreme Court, with power 
 to sit only in the counties in which they were elected. As 
 their terms of office expire, however, their successors are to 
 be elected as justices of the Supreme Court, having the same 
 power and authority as other justices of that court. (Con- 
 stitution, Article 6, § 5). At the same time, the circuit 
 courts and the courts of Oyer and Terriiner, which had 
 existed from the earliest history of the province of New York, 
 and had been continued as courts of the State, were also 
 
i PRACTICE. 
 
 abolished, and all their jurisdiction and authority were vested 
 in the Supreme Court, to be exercised at a trial term of that 
 court. (Const., Art. 6, § 6). 
 
 At the same revision of the Constitution, the courts of 
 sessions, theretofore existing, were abolished in every county 
 of the State, except the county of New York, and their juris- 
 diction was vested in the county court. (Const., Art. 6,§ 14). 
 
 The Board of Claims was continued and its name changed 
 to the Court of Claims by Chapter 36 of the laws of 1897. 
 It was also made a court of record. (Co. Civ. Pi'oc. §"^ 
 263-281). 
 
 The courts mentioned in section three of the Code of 
 Civil Procedure are not courts of record, and the practice 
 in those courts will not be treated of in this work. 
 
 Sec. 3. When and How Open. 
 
 The sittings of every court in the State shall be public, 
 and every citizen may freely attend the same, except that 
 in all proceedings and trials, in cases for divorce on account 
 of adultery, seduction, abortion, rape, assault with intent to 
 commit rape, criminal conversation and bastardy, the court, 
 may, in its discretion, exclude therefrom all persons who are 
 not directly interested therein, excepting jurors, witnesses 
 and officers of the court. (Co. Civ. Proc. § 5). If the 
 court order the court room to be cleared during the progress 
 of a trial, it is not error and a new trial will not be granted 
 therefor, in the absence of proof that the party complaining' 
 was injured hj such action. {Marshall v. Rochester Printing 
 Company, 35 Hun, 667) . No court shall be open or transact 
 any business on Sunday, except to receive a verdict or dis- 
 charge a jury. An adjournment of court on Saturday, un- 
 less made after a cause has been submitted to a jury, must 
 be to some other day than Sunday, but this section does not 
 prevent the granting of an injunction order by a justice of 
 the supreme court when in his judgment it is necessary to 
 prevent irremediable injury, or the service of a summons 
 Adth or without a complaint if accompanied by an in- 
 junction order and an order of such justice permitting 
 service on that day. (Co. Civ. Proc. § 6). Process in a civil 
 case can neither issue, nor be returned, nor be served 
 
THE COURTS OF THE STATE OF NEW YORK. 5 
 
 on Sunday, and service of any process on that day, except 
 as allowed by statute, is absolutely void for any and every 
 purpose. (Scott Shoe Machinery Co. v. Dancel, 63 App. Div. 
 172; Van Vechten v. Paddock, 12 Johns. 178; Penal Code, 
 § 268). But if a process is made returnable on Sunday, and 
 the defendant against whom it is addressed gives bail, or 
 makes a general appearance in the action, the defect is waived 
 (Wright v. Jeffrey, 5 Cowen, 15). No court can enter any 
 judgment on Sunday (Hoghtaling v. Osborn, 15 Johns. 119), 
 and if a judgment is entered on Sunday it is void and it does 
 not prevent a valid entry of judgment on a subsequent day. 
 (Allen V. Godfrey, 44 N. Y. 433). A writ of inquiry to assess 
 damages cannot be issued on Sunday, nor can a jury, sum- 
 moned to execute such a writ, although they were empanelled 
 and heard the case on Saturday, assess the damages and 
 deliver their verdict on Sunday. (Butler v. Kelsey, 15 Johns. 
 177). A notice of motion cannot be served on Sunday. 
 (Field V. Park, 20 Johns. 140). Process made returnable on 
 Sunday is irregular. (Gould v. Spencer, 5 Paige, 541). It is 
 not void, but may be amended by the court. (Boyd v. 
 Vanderkemp, 1 Barb. Ch. 273). The General Term of the 
 Supreme Court for the First District has intimated, how- 
 ever, that an order for the examination of a debtor in sup- 
 plementary proceedings, returnable on Sunday, is a 
 nullity. (Arctic. F.I. Co. v. Hicks, 7. Abb. Pr. 204). An 
 award cannot be made and published on Sunday (Story v. 
 Elliott, 8 Cow. 27) ; although subsequent acts founded on 
 such an award may be binding (Ibid.) ; and where the parties, 
 witnesses, and arbitrators were all Jews, and the trial was 
 had on Sunday, and the award made and signed on that 
 day, but dated on Monday, and not delivered until Monday, 
 it was held valid, because the meeting of the Jews on Sunday 
 was not unlawful, and the award was deemed to have been 
 published on Monday. (Isaac v. Beth Hamedrash Soc. 1 
 Hilt. 469). Sunday extends from midnight to midnight. 
 (Pulling V. People. 8 Barb. 384). A writ of habeas corpus 
 may be issued and served on Sunday, but it cannot be made 
 returnable on that day. (Co. Civ. Proc. § 2015). The 
 court may be held open to receive a verdict on Sunday, 
 where the case was submitted to the jury before that day 
 (Co. Civ. Proc. § 6); and a cause may be continued from 
 
b PRACTICE. 
 
 Saturday until Monday. (Vanderwerter v. The People, 5 
 Wend. 530). No instructions can be given on Sunday to 
 the jury, in a cause which has been previously submitted to 
 them {Roberts v. Bower, 5 Hun 558) ; although if this is done, 
 the irregularity is waived if the parties do not object. (Ibid.). 
 Formerly it was provided by statute, that no court should 
 be open or transact any business in any city, or town, on 
 the day of general election, or town meeting (laws of 1878, 
 chap. 354), was held therein, unless it were for the purpose 
 of receiving a verdict, or discharging a jury; and every ad- 
 journment of the court in any such city or town, on the day 
 next preceding the day on which any such election was to 
 be held therein, should always be to some day other than 
 the day of such election, except such adjournment as might 
 be made after a cause had been submitted to a jury (laws 
 of 1847, chap. 240). This, however, seems to have been 
 repealed by the Election Law, section 198, and not to have 
 been re-enacted. By section 24 of the Statutory Construc- 
 tion law. certain days therein mentioned were declared to 
 be holidays. Among them was the period of noon to mid- 
 night of each Saturday, which was declared to be a half- 
 holiday. It is provided that holidays and half-holidays 
 shall be considered as Sunday, for all purposes relating to 
 the transaction of business in the public offices of the State, 
 and of each county. (Pub. Off. Law, Sec. 41). But this 
 statute does not invalidate the service, of process made on 
 any holiday, except Sunday. {Didsbury v. Van Tassell, 
 56 Hun 423; Matter of Bornemann, 6 App. Div. 524). It has 
 been held also that the courts were not public offices, within 
 the terms of the act, prescribing that holidays and half holi- 
 days shall be considered as Sunday, and that those acts did 
 not prohibit the holding of courts on holidays, or on the 
 afternoon of Saturdays. (People v. Kearney, 47 Hun, 129; 
 Berthold v. Wallach, 14 Misc., 55; Carey v. Reilly, 20 Misc., 
 610). 
 
 Sec, 4. The Terms of the Courts and their Appointment. 
 
 The Court of Appeals. 
 
 The terms of the court of appeals must be appointed to be 
 held at such times and places as the court thinks proper, and 
 
THE COURTS OF THE STATE OF NEW VGEK. 7 
 
 they must continue so long as the pubUc interest requires. 
 (Co. Civ. Proc. § 196). They may be appointed to be held 
 in a building, other than that designated by law for holding 
 courts. (Co. Civ. Proc. § 197). They are usually held at 
 Albany, but sometimes they have been held in the city of 
 New York, or at Saratoga. 
 
 The Supreme Court. 
 
 Terms of the appellate divisions of the supreme court are 
 to be appointed by the appellate division in each depart- 
 ment. (Co. Civ. Proc. § 225). They are to be held in the 
 first department, in the city of New York; in the second 
 department, in the city of Brookljni; in the third depart- 
 ment, in the city of Albany ; and in the fourth department 
 in the city of Rochester; but terms of the court may be 
 held elsewhere in the respective departments, whenever, in 
 the discretion of the justices thereof respectively, the public 
 interest may require. (Co. Civ. Proc. § 220). The places 
 of such terms are to be appointed by the appellate division 
 in each department, and each term shall continue so long as 
 the appellate division deems proper. (Co. Civ. Proc. § 225). 
 The appointments of these terms must be made and filed in 
 the office of the Secretary of State, at least thirty days before 
 the commencement of the terms. (Co. Civ. Proc. § 226). 
 The justices of the appellate division, in each department, 
 are authorized to fix the times and places for holding special 
 and trial terms for the supreme court therein, and to assign 
 the justices of the departments to hold such terms, or make 
 rules therefor; and may from time to time make additional 
 appointments and designations, or change or alter those 
 already made. If the justices of the appellate divisions shall 
 not have fixed the times and places for holding these courts, 
 or made rules therefor, before the first day of December, 
 1895, and every second year thereafter, the justices of the 
 supreme court for each judicial district, or a majority of 
 them, not designated as justices of the appellate division, 
 must, between the first and fifteenth days of December of 
 each of said years, appoint the times and places for holding 
 the trial and special terms of the supreme court within their 
 
PRACTICE. 
 
 judicial district, for two years from the first day of January 
 of the year next following. If, for any reason, such an ap- 
 pointment is not made before the expiration of the time so 
 specified, it must be made at the earliest convenient time 
 thereafter. At least one special term and two trial terms 
 must be appointed to be held in each year, in each county 
 separately organized. Fulton and Hamilton counties are, 
 however, deemed one county, for the purposes of this section. 
 Two or more trial terms may be appointed to be held, and 
 may be held, at the same time in any county. A trial term 
 in any county may be held in two or more parts, and a 
 jury panel may be summoned to serve in each part or 
 jurors may be drawn from one panel. (Co. Civ. Proc. § 
 232). This section of the code is not simply directory, but 
 the courts must be held at the times and places so appointed, 
 and if courts have been appointed to be held at a particular 
 time and place, the judge assigned to hold it has no authority 
 to adjourn the court to be held at another place within the 
 district (Northrup v. The People, 37 N. Y. 203), except as 
 provided by sections 37 and 239 of the Code of Civil Pro- 
 cedure. Although the justices of the appellate division do 
 not make such designations until after the first day of Decem- 
 ber, the designations are vaUd. {People v. Youngs, 151 N. Y. 
 210). A term, held by a justice of another department, 
 duly assigned by the justices of an appellate division to hold 
 such term in their department, is valid, provided such 
 justice is not a member of an appellate division. {People v. 
 Hermann, 149 N. Y. 190; People v. Pustolha, 149 N. Y. 570). 
 The governor may, when, in his opinion the public interest 
 so requires, appoint one or more extraordinary terms of the 
 appellate division of the supreme court in any department, 
 or of the special or trial terms of the supreme court. He 
 must designate the time and place of holding the same, and 
 name the justice who shall hold, or preside at such term, 
 except of the appellate division; and he must give notice 
 of the appointment in such manner as, in his judgment, the 
 public interest requires. (Co. Civ. Proc. § 234). The pro- 
 visions of this section do not conflict with § 2, Art. 6 of the 
 Constitution, giving the justices of the appellate division 
 power to fix the times and places for holding special and 
 trial terms. {People v. Young, 18 App. Div. 162). If it 
 
THE CO CRTS OF THE STATE OF NEW YORK. 9 
 
 appear to the satisfaction of the presiding justice of the 
 appellate division in any department that a special or trial 
 term of the supreme court, duly appointed therein, is in 
 danger of failing, he may designate a justice who resides in 
 that department to hold such term in the absence of the 
 justice assigned thereto. If in the opinion of such presiding 
 justice it is not practicable to make a designation from his 
 department, he shall so inform the governor who may there- 
 upon designate for such term a justice from any department. 
 (Co. Civ. Proc. § 237) . The place appointed within each county 
 for holding a special term of the supreme court, at which 
 issues of fact are triable, or a trial term must be that desig- 
 nated by the statute for holding the county court (Co. Civ. 
 Proc. § 238) ; but the parties to an action pending in any 
 court of record may with the consent of the judge who is to 
 try or hear it, without a jury, stipulate in writing, that it 
 may be heard, or tried and determined, elsewhere than at the 
 court house; the stipulation must specify the place of trial 
 or hearing, and must be filed in the office -of the clerk, and 
 the trial or hearing must be brought on, on the usual notice, 
 unless otherwise specified in the stipulation. (Co. Civ. Proc, 
 § 37). A special term of the supreme court may be ad- 
 journed to a future day, and to the chambers of any justice 
 of the court, residing within the judicial district, by an entry 
 in the minutes, and may then be adjourned from time to 
 time as the justice holding the same directs. An action 
 triable by the court, without a jury, which was upon the 
 calendar of the term before it was adjourned, may be tried 
 at a term so adjourned to be held at chambers, by consent of 
 both parties, but not otherwise. (Co. Civ. Proc. § 239). 
 This, however, does not authorize the transfer of the trial 
 of a local action to another county, but it is intended 
 simply to facilitate the transaction of such business as may 
 be done in the county to which the term is adjourned, and 
 where a localaction, triable in one county, is upon the calen- 
 dar of the special term, which was adjourned to the chambers 
 of the judge in another county, it is error to try that action 
 at the adjourned term. (Gould v. Bennett, 59 N. Y. 124). 
 Ex parte matters may be heard at such adjourned terms, 
 but contested motions cannot be heard there, unless by 
 consent of both parties. (Matter of Wadley, 29 Hun, 12). 
 
10 practice. 
 
 The City Court of the City of New York. 
 
 The city court of the city of New York is always open for 
 the transaction of any business, for which notice is not re- 
 quired to be given to the adverse party. The justices of the 
 court must appoint, and may alter the times for holding 
 general, special and trial terms of the court; they must 
 prescribe the duration of the terms, designate the trial terms 
 at which jurors are required to attend, and assign the justice 
 or justices to preside and attend at each of the terms so 
 appointed. Each trial and special term must be held 
 by one justice, and each general term by at least two 
 justices. Two or more general, special, or trial terms may 
 be appointed to be held at the same time. (Co. Civ. 
 Proc, § 324) 
 
 The County Courts. 
 
 The county court is always open for the transaction of 
 any business, for which notice is not required to be given to 
 the adverse party, except where it is specially prescribed by 
 law, that the business must be done at a stated term. The 
 county judge must, from time to time, appoint the times and 
 places for holding terms of his courts. At least two terms 
 for the trial of issues of law or of fact must be appointed to 
 be held in each year. Each term may continue as long as 
 the county judge deems necessary. The county judge may, 
 by a new appointment, change the day appointed for holding 
 a, term, or appoint one or more additional terms, or dispense 
 with the holding of a term, without affecting any other term 
 or terms theretofore appointed to be held. Each term must 
 be held at the place designated by statute for that purpose, 
 except that the county judge may, from time to time, ad- 
 journ a term to any place within the county, for the hearing 
 and decision of motions and appeals and trials, and any other 
 proceedings without a jury ; and may appoint as many terms 
 as he thinks proper to be held, either at the court house, or 
 elsewhere in the coimty, for the same purpose. (Co. Civ. 
 Proc. §355). 
 
the courts of the state of new york. 11 
 
 The Court of Claims. 
 
 The court of claims shall hold at least four sessions in each 
 year at the capitol in the city of Albany, and it may also hold 
 adjourned or special sessions at such other times and places in 
 the state as it may determine. It may also hold a session, 
 and take testimony where the claimant resides or where the 
 claim is alleged to have arisen, or in the vicinity, and may 
 view any premises affected by the proceeding. (Co. Civ. 
 Proc. § 268). 
 
 Adjournments. 
 
 Any term of a court of record may be adjourned from day 
 to day, or to a specified future day, by an entry in the minutes. 
 Jurors may be drawn for and notified to attend a term so 
 adjourned, and causes may be noticed for trial thereat, as if 
 it was held by original appointment. An}^ judge of the court 
 may so adjourn a term thereof, in the absence of a sufficient 
 number of judges to hold the term. (Co. Civ. Proc. § 34). 
 This provision of the Code does not limit the power of the 
 courts in regard to adjournments, but a court has inherent 
 power to adjourn its proceedings from day to day, so long 
 as it is necessary to finish the business brought before it, 
 unless, by the existence of some statute, its existence is 
 sooner brought to a close. (People v. Sullivan, 115 N. Y. 
 185). If the court has adjourned to a day certain, and by 
 some unforeseen event, the meeting of the court on that day 
 is rendered impossible, but the sitting begins as soon as 
 possible after the obstruction is removed, the court has not 
 lost jurisdiction and its sitting is valid. {People v. Sullivan, 
 supra). If a judge, authorized to hold a term of a court of 
 record, does not come to the place where the term is ap- 
 pointed to be held, before four o'clock in the afternoon of 
 the day so appointed, the sheriff or clerk must then open the 
 term, and forwith adjourn it to nine o'clock in the morning 
 of the next day. If the judge attend before four o'clock in 
 the afternoon of the second day, he must open the term; 
 otherwise, the sheriff or the clerk must adjourn it without 
 day. (Co. Civ. Proc. § 35). If before four o'clock of the 
 second day, the sheriff or the clerk receives from a judge 
 authorized to hold the term, a written direction to adjourn 
 the term to a future day certain, he must adjourn it 
 
12 PRACTICE. 
 
 accordingly, instead of adjourning it as prescribed in the last 
 section, and the direction must be entered in the minutes 
 as an order. (Co. Civ. Proc. § 36). 
 
 Section 5. Judges. 
 
 A judge shall not sit as such in, or take any part in the 
 decision of, a cause or matter to which he is a party, or in 
 which he has been attorney or counsel, or in which he is in- 
 terested, or if he is related by consanguinity or affinity to 
 any party to the controversy within the sixth degree. The 
 degree shall be ascertained by ascending from the judge to 
 the common ancestor, and descending to the party, counting 
 a degree for each person in both lines, including the judge and 
 party, and excluding the common ancestor. But a judge of 
 the court of appeals shall not be disqualified from taking part 
 in the decision of an action or special proceeding in which an 
 insurance company is a party or is interested, by reason of 
 his being a policyholder therein. (Code Civ. Proc. § 46). 
 The prohibition contained in this • section applies only to a 
 judge or justice holding a court eo nomine. {O'Reilly v. City 
 of Kingston, 114 N. Y. 439). It includes justices of the peace, 
 (Birdsall v. Fuller, 11 Hun, 204), but it has no application 
 to commissioners of highways, (Foot v. Stiles, .57 N. Y. 399) ; 
 nor a commissioner to award damages, {People v. The Mayor, 
 63 N. Y. 291); nor to assessors, {O'Reilly v. Kingston, supra.) 
 Neither does it include commissioners appointed soleh^ for 
 the purpose of looking into the general necessity of a proposed 
 street extension, whose decision is subject to the subsequent 
 scrutiny and oversight of a court. {Matter of Ogden St., 
 63 Hun , 188) . A trial and conviction before a court, composed of 
 the county judge and two justices of thepeace, oneofwhomwas 
 related to the defendant within the sixth degree is void. 
 {People V. Connor, 142 N. Y. 130). A guardian ad litem is 
 not a party within the meaning of the section and a surro- 
 gate is not disqualified by the fact that his brother has been 
 appointed such guardian. {Matter of Van Wagonen, 69 Hun, 
 365). A party to an action of partition who has been served 
 with the pleadings of other parties, but has not answered and 
 who is pecuniarily interested respecting the extent of her 
 title, is a party within the section. {Matthews v.. Noble, 
 25 Misc. 674; affd. as to this point, 39 App. Div. 655). 
 
THE CO CRTS OF THE STATE OF NEW YORK. 13 
 
 A surrogate, who before his election had advised the ex- 
 ecutor and who had acted as attorney for the estate in fore- 
 closure suits thereafter, is disqualified to settle the executor's 
 accounts. (Wigand v. Dejonge, 8 Abb. N. C. 260; Darling 
 V. Pierce, 18 Hun, 542). A surrogate is competent, 
 however, to entertain an application for the probate of a 
 will, although related by affinity within the sixth degree to 
 one designated as a legatee therein. (Hopkins v. Lane, 6 
 Demarest, 12). Where the interest of the judge is minute, 
 or where it is not so direct that the result must necessarily 
 affect him, to his personal or pecuniary loss or gain, and 
 where he has so exclusive jurisdiction of the cause or matter 
 by law, as that his refusal to act will prevent any proceeding 
 in it, then he may act, so far as that there may not be a fail- 
 ure of remedy. (Matter of Ryers, 72 N. Y. 1). Consan- 
 guinity or affinity of a judge was not a disqualification at 
 common law, but it rests only on the statute, and cannot be 
 extended beyond the terms of the statute. (Matter of the 
 Dodge and Stevenson Manufacturing Company, 77 N. Y. 101). 
 Consanguinity is the relation of persons descended from the 
 same common ancestor ; affinity is the relationship which exists 
 between the husband and the blood relatives of the wife, or 
 the wife and blood relatives of the husband. (Carman v. 
 Newell, 1 Denio, 25; Paddock v. Wells, 2 Barb. Ch. 331). 
 Death of either without issue severs the relationship. (Ibid.). 
 A judge who is related to the real party, is disqualified on 
 that account. (Foot v. Morgan, 1 Hill, 654).. The co- 
 executor of an estate which holds stock in a railway com- 
 pany is disquaHfied to try an action against the company. 
 (Cregin v. The Brooklyn Cross Town Rail Road Co. 8 
 Abb. Dig. 79). The disquahfication exists, although the 
 party to whom the judge is related is merely surety, 
 and is fully indemnified. (Oakley v. Aspinwall, 3 N. Y. 
 547). At common law, although the judge was disquahfied, 
 his acts were not void, and the only remedy was by pro- 
 ceedings to set them aside. (Foot v. Stiles, 57 N. Y. 399). 
 But since the passage of the statute, any act taken by him 
 in the cause, or order or judgment entered by his direction, 
 is void, (Chambers v. Clearwater, 1 Abb. Ct. App. Dec. 341 ; 
 Foot V. Morgan, 1 HiU 654), and the express consent of all 
 parties that he sit and their waiver of his disqualification 
 
14 PRACTICE. 
 
 cannot make a judgment rendered by him valid. {Oakley v. 
 Aspinwall, 3 N. Y. 547 ; Murdoch v. Internal 'I Tile & Trim Co. 14 
 Misc. 225). Taking an acknowledgment is not a judicial act 
 within this statute. {The Remington PaperCo.v.O'Dougherty, 
 81 N. Y. 474). A judge is not disquahfied in an action in 
 which a corporation is a party, because he is a relative of 
 one of the stockholders of the corporation. {Matter of the 
 Dodge and Stevenson Co. 77 N. Y. 101). The disquahfica- 
 tion does not extend to a case where the judge is only inter- 
 ested in the questions of law involved {People v. Edmunds, 
 
 15 Barb. 529); nor where the relation of the judge has no 
 interest in the subject matter, or in the decision, as in the 
 appointment of a relative of the judge to be the committee of 
 a lunatic {Matter of Hopper, 5 Paige, 489) , or to be the guard- 
 ian of an infant. {Underhill v. Dennis, 9 Paige, 202). In 
 either of these cases, the judge has authority to appoint his 
 own relative, if he desire. The judge, who is a relative to 
 one defendant, not in possession of lands that have been sold 
 on the foreclosure of a mortgage, is not disqualified from 
 granting a writ of assistance against another defendant, who 
 is in possession. {New York Life Insurance and Trust Co. 
 V. Rand, 8 How. Pr. 35, 352). Although a judge is disqual- 
 ified, an order appointing a referee, entered by consent of 
 parties, before him, is not void or irregular, because it might 
 have been entered on their written consent, without his 
 approval. {Bell v. Vernooy, 18 Hun, 125). A judge, other 
 than a judge of the court of appeals, or of the appellate 
 division of the supreme court, shall not decide or take part 
 in the decision of a question, which was argued orally in the 
 court, when he was not present and sitting therein as a judge. 
 fCo. Civ. Proc. § 46). This section does not, however, for- 
 bid a judge who has not heard the argument, from sitting 
 with two judges who did hear it, to constitute an appellate 
 court, and a decision made by a court thus constituted, 
 where the judge who did not hear the argument, took no 
 part in deciding it, is valid. {Corning v. Slosson, 16 N. Y. 
 294). But where one of the judges, necessary to constitute 
 a trial court, is absent during part of the trial and then sits, 
 with his associates to receive the verdict, the judgment 
 entered on said verdict will be reversed. {People v. Shaw, 
 63 N Y. 36), No judge shall, directly or indirectly, be 
 
THE COURTS OF THE STATE OF NEW YORK. 15 
 
 interested in the costs of an action or special proceeding, 
 brought before him, or in a court of which he is, or is entitled 
 to act as, a member, except an action or special proceeding 
 to which he is a party, or in which he is interested. (Co. 
 Civ. Proc. § 47). A judge of a court of record is not dis- 
 qualified from hearing or deciding an action, or special pro- 
 ceeding, or any matter, or question, by reason of his being 
 a resident or taxpayer of a town, village, city, or county, in- 
 terested therein. (Co. Civ. Proc. § 48). No judge shall 
 practice or act as attorney or counsel, in a court of which he 
 is, or is entitled to act as, a member, or in a cause 
 originating in that court. Nor shall a law partner of, or 
 person connected in the law business with a judge, practice 
 or act as a"n attorney or counsel, in a court of which the j udge is, 
 or is entitled to act as, a member, or in a cause originating 
 in that court; except where the latter is a member of a 
 court, ex-officio, and does not officiate or take part as, a 
 member of that court, or in any of the proceedings therein. 
 An ex-officio judge shall not, directly or indirectly, be inter- 
 ested in the costs, or the compensation of an attorney or 
 counselor, in the court of which he is ex-officio a judge. (Co. 
 Civ. Proc. § 49). No judge of the court of appeals, or a 
 justice of the supreme court, or any county judge or surro- 
 gate, hereafter elected in a county having a population ex- 
 ceeding one hundred and twenty thousand, shall practice as 
 an attorney or counselor in any court of record in this state, 
 or act as referee. (Const. Art. 6, § 20) . By the same section 
 the Legislature has power to impose a similar prohibition 
 upon the county judges and surrogates, in other counties 
 than those mentioned above, but no such action has yet been 
 taken. 
 
 No judge or justice shall sit in the appellate division, or in 
 the court of appeals, in review of a decision made by him, 
 or any court of which he was at the time a sitting member. 
 (Const. Art. 6, § 3; Van Arsdale v. King, 152 N. Y. 69). A 
 judge has been held to be disqualified, under this section, 
 from sitting on an appeal from a judgment entered on a 
 referee's report, where the form of the judgment was settled 
 by the judge and an extra allowance granted by him. (Mur- 
 dockv. International &c. Co., 14 Misc. 225). But a judge is not 
 disquaUfied from taking part in the determination of an 
 
16 PRACTICE. 
 
 appeal from an order by the mere fact that he signed the 
 order, where the decision was made by another judge and 
 the signing of the order was merely pro forma. {Mori v. 
 Pearsall, 14 Misc. 251). No person shall hold the office of 
 judge or justice of any court longer than until and including 
 the last day of December next after he shall be seventy 
 years of age: (Const. Art. 6, § 12). This provision of the 
 Constitution applies to county judges, {People v. Brundage, 
 78 N. Y. 403), but not to justices of the peace, {Pf-ovle v. 
 Mann, 97 N. Y. 530) ; nor to surrogates, {People v. Carr, 
 100 N. Y. 236). 
 
 Sec. 6. The Clerks of the Courts. 
 
 The clerk of the court of appeals is appointed by that 
 court, (Const. Art. 6, § 7), and he is required to keep his 
 office at the seat of government. (Const. Art. 6, § 19) . The 
 clerk of the appellate division of the supreme court, in each 
 department, is appointed by that court, and he is required 
 to keep his office at a place to be designated by them. (Const. 
 Art. 6, § 19; Co. Civ. Proc. §§ 89, 221). The surrogate's 
 clerk is appointed by that officer. The constitution pro- 
 vides that the clerks of the several counties are clerks of the 
 supreme court, with such power and duties as shall be pre- 
 scribed by law. (Const. Art. 6, § 19). They are also clerks 
 of their respective county courts. The clerk of the court of 
 claims is appointed by that court. (Co. Civ. Proc. § 266). 
 
 Each court of record has a seal. The seal of the county 
 is the seal of the supreme court in that county, and, except 
 in the city and county of New York, of the county court of 
 that county. (Co. Civ. Proc. § 27). The seal of the surro- 
 gate of each county is the seal of the surrogate's court of 
 that county, and is to be used as such by the officer who 
 discharges the duties of surrogate. (Co. Civ. Proc. § 27). 
 The justices of the appellate division of each department 
 are required to adopt and procure an official seal for that 
 department, which is to be used for th© seal of that court in 
 the department. (Co. Civ. Proc. § 232). The seal of each 
 court is in charge of the clerk, except that of the surrogate's 
 court, of which the surrogate has charge. (Co. Civ. Proc. 
 § 2507). The clerk of each court, except the surrogate's 
 
THE COURTS OP THE STATE OF NEW YORK. 17 
 
 court, has charge of the records and papers of the courts. 
 He signs and enters orders and judgments, made by the 
 court, and files all papers which are deposited in his office. 
 (General Rules, 2, 3, 4). He certifies all copies of such 
 judgments, orders or papers. The clerk of the appellate 
 division in each department is directed to keep these books: 
 1st. A book properly indexed in which shall be entered the 
 title of all actions and proceeedings which are pending in 
 that court, and all actions or special proceedings commenced 
 in the appellate division with entries under each, showing 
 the proceedings taken therein and the final disposition there- 
 of. 2d. A minute book, showing the proceedings of the 
 court from day to day. 3d. A remiiiitur book, containing 
 the final order made upon the decision of each case, a certified 
 copy of which shall be transmitted to the proper clerk as 
 required by the Code of Civil Procedure [the clerk of the 
 county where the judgment or order appealed from was 
 entered. (Co. Civ. Proc. § 1355)]. 4th. A book properly 
 indexed, in which shall be recorded at large all bonds or 
 undertakings filed in his office, with a statement of the action 
 or special proceeding in which it was given, and a statement 
 of any disposition made of or order concerning it. The 
 clerk of each court other than the appellate division is, in 
 addition to the judgment book directed to be kept by the Code 
 of Civil Procedure (§ 1236) to keep the following: 1st. 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 tak§n therein, with the dates of the several 
 proceedings. 2d. A book in which shall be entered at 
 large each bond and undertaking filed in his office, with a 
 statement showing when filed and a statement of any dis- 
 position or order made of, or concerning it. 3rd. Such 
 other books properly indexed, as may be necessary to enter 
 the minutes of the court, docket judgments, enter orders, 
 and all other necessary matters and proceedings, and such 
 other books as the appellate division in each department 
 shall direct. (General Rule, 7). It is the duty of the clerk 
 of the court to assess the amount due on the entry of judg- 
 ments, which may be entered without application to the, 
 court, if an assessment is necessary. (Co. Civ. Proc. § 1213)., 
 
IS PRACTICE. 
 
 The clerk must also file judgment rolls, and make a 
 minute on the back of each of the year, month, day, hour 
 and minute of filing the same. (Co. Civ. Proc. §§ 1237, 
 1239). He must tax all costs awarded to any party, either 
 by statute, or by order of the court, unless the court directs 
 otherwise (Co. Civ. Proc. § 3262) ; but such taxation may 
 be reviewed by the court. (Co. Civ. Proc. § 3265). The 
 clerk must act as guardian ad litem for an infant defendant 
 where the court or judge appoints him. (Co. Civ. Proc. § 
 472) . Commissions executed without the state may be opened 
 by the clerk, and are filed in his office. (Co. Civ. Proc. §§ 
 904, 905, 906, 907). He must also, on request and offer to 
 pay the proper fees, search the records, etc., in his office and 
 make and certify transcripts therefrom, or certify that a 
 paper, of which the custody legally belongs to him cannot 
 be found. (Co. Civ. Proc. § 961). The court will correct 
 any irregularities or mistakes of the clerk, or any other officer, 
 and will not allow any party to suffer by such mistake. 
 {Neele v. Berryhill, 4 How. Pr. 16 ; Close v. Gillespie, 3 Johns. 
 526). The clerk has power to take affidavits (Co. Civ. Proc. 
 § 842), and such power is purely ministerial, and not judicial, . 
 and may be done by one so related to the party as to be 
 disqualified as a judge. {Lynch v. Livingston, 6 N. Y. 422). 
 Each clerk is entitled to fees for certain services, which are 
 fixed by statute. The fees of the clerk of the court of ap- 
 peals are fixed by § 3300 of the Code of Civil Procedure. The 
 fees of the clerks of courts of record for their services, in an ac- 
 tion or special proceeding pending in those courts, are fixed 
 by sections 3301 and 3303 of the Code of Civil Procedure, but 
 section 3301 does not apply to the clerk of the surrogate's 
 court, or of the city court of the city of New York, or the city 
 court of Yonkers, or the justices' court of the city of Albany, 
 or of a mayor's, or recorder's court. (Co. Civ. Proc. § 3302). 
 The fees of the county clerk for services out of court are 
 established by section 3304 o? the Code of Civil Procedure, and 
 the register of any county, or the clerk of any court of record, 
 is entitled, for the services specified in that section, to the 
 fees specified therein, subject to the qualifications contained 
 in that section. (Co. Civ. Proc. § 3306) . By special statutes 
 different fees are given to the county clerk of the county of 
 New York (Co. Civ. Proc. § 3305; Laws of 1884, chap. 366, 
 
THE COURTS OF THE STATE OF NEW YORK. 19 
 
 § 4; Laws of 1886, chap. 235; Laws of 1885, chap. 342, § 4; 
 Laws of 1880, chap. 245, § 3, subd. 14), and to the 
 county clerk in Kings county. (Laws of 1868, chap. 720; 
 Laws of 1871, chap. 374). The clerk must perform 
 all services required of him, without fee, except as the law 
 prescribes, and he cannot receive any greater fee or compen- 
 sation than that allowed by law for any particular services. 
 (Co. Civ. Proc. § 3280). He may demand his fees in advance 
 (Co. Civ. Proc. § 3281), but he cannot insist, before perform- 
 ing some service required of him, that he shall be paid for 
 some previous services, for which he has given credit. {Purdy 
 V. Peters, 15 Abb. Pr. 160; 23 How. Pr. 328). The trial fee, 
 allowed by subdivision one of section 3301, is not payable 
 until the cause is moved for trial. {Malcomb v. Jennings, 1 
 Co. Rep. 4). It is intended to pay the clerk for the or- 
 dinary miscellaneous services required of him, during the 
 progress of the action, including putting the cause on the 
 calendar, and services rendered in court at the trial. (People 
 V. Supervisors of Monroe, 15 How. Pr. 225). It includes the 
 trial of an issue of law, as well as an issue of fact. The clerk 
 is allowed a trial fee if the cause is tried, whether the jury 
 agree or not. He cannot charge a trial fee for a reference to 
 take an account, or to assess damages (Taaks v. Schmidt, 25 
 How. Pr. 340) ; although where an inquest is taken at the 
 circuit the trial fee is chargeable. Where the cause, being 
 on the circuit calendar, is referred, a trial fee to the clerk is 
 not allowed. (Benton v. Sheldon, 1 Co. Rep. 134). The trial 
 fee is allowed, not only on the trial of an action at the cir- 
 cuit, or trial term, or special term, but also upon the argu- 
 ment, at general term, of. an appeal from a judgment, or 
 where a judgment is affirmed or reversed by default. But 
 it is not allowed upon the argument of an appeal from an 
 order; nor upon a motion for a new trial at the general term; 
 nor where a cause is put upon the calendar, but not argued. 
 (Matter of Clerk's fees, 5 How. Pr. 13). The clerk may 
 charge five cents a folio, for the return to the court of appeals. 
 (Chambers v. Appleton, 47 Super. Ct. 524). He cannot be 
 required to adopt a return prepared by parties or counsel, 
 although he may do so if he chooses, but if he does, he can 
 only charge the fee allowed for a certificate. (Tovmsend v. 
 Nebenzahl, 2 McC. Civ. Proc. Rep. 342, note). Each county 
 
20 PRACTICE. 
 
 clerk, subject to the approval of the justices of the 
 supreme court, residing within the judicial dictrict of the 
 appointee, may appoint, from time to time, one or more 
 special deput}^ clerks, to attend upon any or all of the sittings 
 of the court of which he is clerk. (Co. Civ. Proc. § 89). 
 No clerk, deputy clerk, or special deputy clerk shall, dur- 
 ing his continuance in office, practice as attorney or counselor 
 of the court of which he is clerk. (Co. Civ. Proc. § 61). 
 But this section does not preclude a member of a firm, the 
 other partner of which has been appointed clerk of a county, 
 from carrying on the firm's causes in that court even before 
 a substitution. (Cronin v. O'Reilly, 26 N. Y. St. Rep. 249). 
 The clerk of each court must keep his office open for the 
 transaction of business, every day in the year, except Sun- 
 days and public holidays, from nine o'clock in the forenoon 
 until four o'clock in the afternoon, in the county of New 
 York (except during the months of July and August the 
 hours shall be from nine to two), and in each of the other 
 counties of the state, between the thirty-first day of March 
 and the first day of October, from eight o'clock in the fore- 
 noon to five o'clock in the afternoon, and between the thir- 
 tieth day of September and the first day of April, from nine 
 o'clock in the forenoon to five o'clock in the afternoon. 
 (County Law § 165). Judgments shall be entered or docketed 
 in the office of the clerks of the courts, within the hours 
 during which by law they are required to keep open their 
 respective offices for the transaction of business, and at no 
 other time. (General Rule, 8). 
 
 Sec. 7. Sheriffs. 
 
 Sheriffs may be considered as officers of the court of record, 
 inasmuch as they are required to execute the process of all 
 the courts of record, and many of the other mandates of the 
 court are directed to them, or are usually served by them. 
 The sheriff is elected once in three years, except in the coun- 
 ties of New York and Kings, and counties whose boundaries 
 are the same as those of a city, where he is elected every two 
 or four yea.rs as the Legislature shall direct, and can hold no 
 other office during his term, and he is not eligible for the 
 next term after the termination of his office. (Const. Art. 
 
THE COURTS OF THE STATE OF NEW YORK. 21 . 
 
 10 § 1). He cannot hold over, as his term is fixed by the 
 Constitution. (Public Officers Law, § 5; Const. Art. 10, § 1). 
 He must file his official oath with the county clerk within 
 fifteen days after the commencement of his term, or he 
 forfeits his office. (Public Officers Law, §§ 10, 13, 20; Const. 
 Art. XIII, § 1). Although he has not filed his oath, his acts 
 are valid. (Public Officers Law, § 15), but he is guilty of a 
 misdemeanor for entering upon the performance of his duties 
 without filing the oath. (Penal Code, § 42) . He must give 
 an undertaking, appoint an under-sherifT and such deputies 
 as may be necessary, not exceeding one for every three 
 thousand inhabitants of the county (County Law, §§ 180, 
 181, 182) ; all these persons constitute in law but one officer. 
 {Pond V. Leman, 45 Barb. 152, 154; Whitman v. Haines, 21 
 N. Y. St. Rep. 41; affd. 119 N. Y. 639; Batlett v. Halligan, 
 30 N. Y. St. Rep. 449; People ex rel. Andrus v. Board of Town 
 Auditors, 33 App. Div. 277, 279). The sheriff is liable 
 for the acts of each deputy done under color of office {Mc- 
 Intyre v. Trumbull, 7 Johns. 35; Waterbury v. Westervelt, 
 9 N. Y. 598) ; although the deputy may be a trespasser (Haz- 
 ard V. Israel, 1 Binney, 240; 2 Am. Dec. 438); and although 
 the acts were not justified by the process and the sheriff did 
 not know that the deputy had the process in his possession. 
 (Pond V. Leman, supra) . He is also responsible for all moneys 
 received by a deputy upon process in his hands, although 
 the process was erroneous {People v. Dunning, 1 Wend. 16) ; 
 or although the process was directed to the sheriff of another 
 county, if the deputy has received it and collected money 
 under it. {Walden v. Davison, 15 Wend. 575). Delivery of 
 an execution to a deputy sheriff is in contemplation of law 
 a delivery to the sheriff, but leaving it in the place of business 
 of the deputy is not a dehvery to the sheriff. {Burrell v. 
 Hollands, 78 Hun, 583). The deputy's return endorsed upon 
 the process is conclusive against the sheriff, in any action 
 or proceeding between him and the party issuing the process. 
 (Sheldon v. Payne, 7 N. Y. 453). If the person issuing the 
 process gives instruction to the deputy to depart from 
 his duty, the deputy, in obeying that instruction, ceases to . 
 be a servant of the sheriff, and becomes the agent of the party, 
 and the sheriff is not liable for his acts done under those 
 instructions (Mickles v. Hart, 1 Denio, 548) ; but the sheriff- 
 
2Z PRACTICE. 
 
 does not cease to be liable as to acts for which no instructions 
 were given, or where the deputy does not follow or undertake to 
 follow the instructions which were given to him. (Sheldon v. 
 Payne, 10 N. Y. 398). If the party issuing process request the 
 appointment of a particular person as special deputy to execute 
 it, the sheriff is not liable to the party for the acts of such per- 
 son {Ford V. Lec/ie,6 A. & E. 699; Porter v. Viner, 1 Chitty,613, 
 note) ; and the sheriff cannot be compelled to return process 
 issued to such special deputy (Harding v. Holden, 2 M. & G. 
 914) ; but a request that a sheriff will select a particular 
 deputy, does not make that person such a special deputy, as to 
 relieve the sheriff from liability for his acts. (Corbet v. 
 Brovm, 6 D. Pr. C. 794; Balson v. Meggatt, 4 D. Pr. C. 557). 
 The authority of the deputy to act or to charge the sheriff 
 with his acts ceases with written notice from the sheriff 
 revoking his appointment (Edmunds v. Barton, 31 N. Y. 
 495) ; and such notice need not be under seal. (Ibid.). The 
 sheriff must reside in the county. (Pub. Off. Law, § 3). 
 He has custody of the jails. (County Law, § 183). He is 
 also required to keep an office in the city or village where 
 the county courts of his county are held and, except in the 
 counties of Kings and New York, he is required to keep his 
 office open every day, except Sundays, and public hoHdays 
 or half holidays, from nine o'clock in the morning until five 
 in the afternoon during November, December, January, 
 February and March of each year, and from eight to six 
 during the rest of the year. In New York and Kings coun- 
 ties the hours are from nine to four the entire year. (County 
 Law, § 184). He must file with the county clerk notice of 
 the place where his office is kept. (Ibid.). A sheriff, under- 
 sheriff, deputy sheriff, or sheriff's clerk, shall not, during his 
 continuance in office, practice as attorney or counsel in any 
 court. (Co. Civ. Proc. § 62). The sheriff to whom an exe- 
 cution is issued, or the under-sheriff or deputy sheriff holding 
 an execution and conducting a sale of property by virtue 
 thereof, shall not, directly or indirectly, purchase any of the 
 property at the sale. A purchase made by him or to his use 
 is void. (Co. Civ. Proc. § 1387). The mere fact that the 
 purchaser at the sale (one of the defendants in the action) is 
 the attorney for the sheriff in other matters, will not render 
 the sale void. (Mclntyre v. Sanford, 2 Civ. Proc. Rep. 306, 
 
THE COURTS OF THE STATE OF NEW YORK. 23 
 
 310). But this section does not apply where the sheriff 
 is plaintiff in an action {Jackson v. Collins, 3 Cowen, 89); 
 nor does it apply to a turnkey or assistant jailer. {Jackson 
 V. Anderson, 4 Wend. 481). Neither the sheriff, under- 
 sheriff, nor deputy sheriff can execute process in his own 
 favor, or for his own benefit. {Mills v. Young, 23 Wend. 
 315; Carpenter V. Stillwell, 11 N. Y. 61). Sheriffs or other 
 officers cannot be bail for any person. {Bailey v. Warden, 
 20 Johns. 129). A sheriff to whom a mandate is delivered to 
 be executed, must, without compensation, give to the person 
 delivering the same, if required, a minute in writing signed 
 by him, specifjdng the names of the parties, and the general 
 nature of the mandate, and the day and hour of receiving the 
 same. (Co. Civ. Proc. § 100). He must also indorse upon 
 an execution, directed and delivered to him, a memorandum 
 of the day, hour and minute when he received it; this must 
 be done upon its receipt. (Co. Civ. Proc. § 1363). If he 
 wilfully neglects to serve or execute a mandate authorized 
 by law to be issued in a specified proceeding, he may be 
 fined not to exceed twenty-five dollars, and is liable to the 
 party aggrieved for his damages sustained thereby. (Co. 
 Civ. Proc. § 103). The sheriff has a reasonable time to serve 
 a summons delivered to him. {Anonymous, 10 Wend. 572). 
 He must use all reasonable efforts to execute process. {Hin- 
 man v. Borden, 10 Wend. 367). Although an execution is 
 regular on its face, if it be in fact unauthorized and void, the 
 sheriff may refuse to execute it and the proof of its invalidity 
 establishes a good defense in an action against him for such 
 refusal. {Reid v. Stegman, 99 N. Y. 646). The sheriff can- 
 not take security from the judgment debtor; any money, 
 or property tantamount thereto, he receives from the debtor, 
 becomes the plaintiff's property. {Adams v. Bowe, 3 Civ. 
 Proc. Rep. 191). He may command the power of the county 
 to overcome any resistance to the execution of process which 
 he finds, or which he has reasonable ground to believe, will 
 be made. (Co. Civ. Proc. §§ 104, 2030, 3158). If the officer 
 has no authority to do the act, for the accomplishment of 
 which he summons the aid of a bystander, the latter is not 
 bound to obey and, if he does, he is a trespasser. {Elder 
 V. Morrison, 10 Wend. 128).' But where the officer has a 
 warrant valid on its face, he and those who assist him, at 
 
^i PRACTICE. 
 
 his request, in the proper execution thereof, are protected. 
 (DooUttle V. Doolittle, 31 Barb. 312; Arrex v. Brodhead, 19 
 Hun, 269; Slater v. Wood, 9 Bosw. 15). When serving a 
 process, the sheriff must, upon request of the person served, 
 deliver to him a copy thereof without compensation. (Co. 
 Civ. Proc. § 101). When he has executed process, a sheriff 
 must make a return thereof of his proceedings, under his 
 hand. (Co. Civ. Proc. § 102). Such return may be made 
 by depositing the mandate in a post office, properly inclosed 
 in a post-paid wrapper, addressed to the clerk at the place 
 where his post office is situated. (Co. Civ. Proc. § 102). 
 It is the duty of the sheriff to return process without order 
 of the court. (Hinman v. Brees, 13 Johns. 529). At any 
 time after the day when it is the duty of the sheriff to return, 
 deliver, or file any process or other paper, by the provisions 
 of the Code of Civil Procedure or by the rules of the courts, 
 any party entitled to have such act done, may serve on the 
 officer a notice to return, deliver, or file such process, or 
 other paper, as the case may be, within ten days, or show 
 cause, at a special term to be designated in said notice, why 
 an attachment should not issue against him. (General Rule, 
 6 ; Co. Civ. Proc. § 2270) . The court may by an order compel 
 the sheriff to return the process. {Bowie v. Brake, 4 Duer, 
 676). But the court will only direct that process shall be 
 returned, and will not instruct the sheriff what return shall 
 be made thereon. {Matter of Steamship Circassian, 50 Barb. 
 490). The court has power to punish a sheriff, as for con- 
 tempt, for disobedience of such order, or for a wiKul neglect 
 to execute the process. (Co. Civ. Proc. §§ 14, 103). Where 
 a return is made by the sheriff, in pursuance of an order 
 from which an appeal has been taken, it should be cancelled, 
 if the order be reversed on the appeal. {The Benedict &c. 
 Man'fct. Co. v. Thayer, 21 Hun, 614). Every notice or 
 other paper which is required to be served on any 
 sheriff, may be served by leaving the same at the office 
 designated by him in such notice, during the hours for 
 which it is required to be kept open, but if there be any person 
 belonging to such office therein, such notice or paper shall 
 be delivered to such person; and every such service shall be 
 deemed equivalent to a personal service on such sheriff. 
 (County Law, § 184). The sheriff, or his under-sheriff, or 
 
THE COURTS OF THE STATE OF NEW YORK. 25 
 
 one of his deputies, must attend every term of the appellate 
 division of the supreme court, (Co. Civ. Proc. § 242), and the 
 trial and special terms of that court, and every term of the 
 county court held in his county {Ex parte Minier, 2 HiU, 
 411); and, except in New York and Kings counties, he must 
 within a reasonable time, before the sitting in his county, of 
 any term of court, notify, in writing and personally, a suffi- 
 cient number of constables to attend upon said court. (Co. 
 Civ. Proc. §§ 97, 98). Every constable so notified must 
 attend accordingly, and for each day's neglect he may be 
 fined by the court, at the term which he was notified to attend, 
 a sum not exceeding five dollars. (Co. Civ. Proc. § 99). The 
 sheriff is authorized to notify only constables to attend upon 
 the courts, and no person can be paid for such attendance, 
 unless he is a constable. (Day v. Mayor, etc., 66 N. Y. 592). 
 The sheriff must act as crier of the court if required to do so. 
 (Co. Civ. Proc. § 92). The county clerk must furnish to a 
 sheriff, newly elected or appointed and who has qualified and 
 given the security required by law, a certificate stating that 
 the person so elected or appointed has so qualified and given 
 security. (Co. Civ. Proc. § 182). "Qualified" means only 
 taking the oath of office. (Curtis v. Kimball, 12 Wend. 275). 
 Upon the commencement of the new sheriff's term of office, 
 and the service of the certificate, on the former sheriff, the 
 latter 's powers as sheriff cease, except as otherwise expressly 
 prescribed by law. (Co. Civ. Proc. § 183). The mailing 
 on December 30, 1897, of a summons to the outgoing sheriff, 
 and his receipt of it on January 1, 1898, having had no certifi- 
 cate served on him by the person elected to succeed him, 
 as required by sections 182 and 183, constitute a valid at- 
 tempt to commence an action within the meaning of section 
 399 of the Code of Civil Procedure. (Littlejohn v. Leffing- 
 well, 34 App. Div. 185). Until the certificate of the county 
 clerk is served upon the old sheriff, he has authority to execute 
 process. (Ibid.; Curtis v. Kimball, 12 Wend. 275). The 
 exception in section 183 seems to refer to section 186, which 
 provides that the old sheriff must return in his own name 
 each mandate which he has fully executed and must proceed 
 with and complete the execution of each mandate which he 
 has begun to execute in the manner specified in subdivision 
 four of section 184. This subdivision specifies the manner 
 
26 PRACTICE. 
 
 of such execution or the beginning thereof, as being the 
 collection of money on executions, or the seizure of, or 
 levy on, money or other property in pursuance thereof. The 
 advertisement by the sheriff of mortgaged premises, directed 
 by a judgment of foreclosure to be sold, is a " seizure " within 
 the meaning of this provision and the outgoing sheriff, whose 
 term expired the day before the sale, properly conducted and 
 completed the sale. (Union Dime Savings Institution v. 
 Anderson, 83 N. Y. 174). All other mandates, the jails, all 
 prisoners and papers relating to their confinement, and a 
 statement in writing of the contents of all processes, orders, 
 or commitments which have been returned and which 
 relate to, or authorize, the custody of prisoners, are required 
 to be delivered to his successor by the old sheriff within ten 
 days after the service of the certificate. (Co. Civ. Proc. § 
 184). At the time of such delivery the outgoing sheriff 
 must execute an instrument reciting the property, documents 
 and prisoners delivered, and is entitled to a receipt therefor. 
 (Co. Civ. Proc. § 185). In case there is a vacancy in the 
 office of sheriff, the under-sheriff executes the duties of the 
 office until a sheriff is elected or appointed. (County Law, 
 § 181). The sheriff is paid for his services by fees, which 
 are prescribed in section 3307 of the Code of Civil Procedure. 
 He must perform the duties imposed on him by law, with- 
 out fee or reward, except where a fee, or other compensa- 
 tion, is expressly allowed by law. And he shall not re- 
 ceive or charge a greater fee or reward for any services 
 than is allowed by law. (Co. Civ. Proc. § 3280). And for 
 any violation of that provision of the statute he is liable, in 
 addition to the punishment prescribed by law for extortion, 
 to an action in behalf of the person aggrieved, in which the 
 plaintiff is entitled to treble damages. (Co. Civ. Proc. 
 § 3282). 
 
 Sec. 8. Coroners. 
 
 There are four coroners in each of the counties containing^ 
 a population of one hundred thousand and over and in all other 
 counties such number, not exceeding four, as shall be fixed 
 by the board of supervisors (Laws of 1898, Chap. 334) ; and 
 they hold office for three years from and including the first 
 
THE COURTS OF THE STATE OF NEW Y.ORK. 27 
 
 day of January succeeding their election. (County Law, § 180). 
 They also hold over until their successors are chosen and 
 qualified. (Pubhc Officers' Law, § 5). In Greater New 
 York there are four coroners in the borough of Manhattan, 
 two in the borough of the Bronx, two in the borough of 
 Brooklyn, one in the borough of Queens and one in the borough 
 of Richmond; they are elected at the same general elections 
 as are sheriffs in the several counties in which such boroughs 
 are situated and hold office for four years. (Greater New 
 York Charter, § 1570). A coroner is a local officer, and to 
 be eligible he must be a resident of the county. (Public 
 Officers' Law, §§ 2, 3). If his official oath is not filed 
 in the office of the County Clerk within fifteen days after the 
 commencement of his term, he forfeits the office. (Public 
 Officers' Law, §§ 10, 13, 20; Const. Art. XIII., § 1). If 
 he enters upon the performance of his duties without having 
 filed the oath, his acts are valid (Pubhc Officers' Law, § 15), 
 but he is guilty of a misdemeanor. (Penal Code, § 42). 
 
 If the sheriff's office is vacant and there is no under-sheriff, 
 capable of executing the duties of the office, the county 
 judge designates one coroner to act as sheriff; the coroner 
 so appointed must give a bond like a sheriff's undertaking. 
 (County Law, § 187.). Until the county judge so desig- 
 nates, any coroner may act as sheriff. (County Law, § 190) . 
 If there is but one coroner he is entitled to execute the duties 
 of the office of sheriff upon giving the proper undertaking. 
 (County Law, § 188). A coroner may be punished by 
 fine and imprisonment, or either, for misbehavior in office, 
 for a wilful neglect or violation of duty or for disobedience 
 to a lawful mandate of the court or a judge thereof. (Co. 
 Civ. Proc. § 14). 
 
 If the sheriff of the county is a party to an action, or special 
 proceeding, the coroner of the county has all the power, and 
 is subject to all the duties, of a sheriff, in a case to which he 
 is not a party. (Co. Civ. Proc. §§ 172, 1362). A mandate 
 in a civil action, or special proceeding, which must, or may, be 
 executed by the coroners, or by a coroner of a county, must 
 be directed either to a particular coroner, or, generally, 
 to the coroners of that county. Where such a mandate is 
 directed generally to the coroners of a county, or requires 
 them to do any act, it may be executed, and a return thereto 
 
28 PRACTICE. 
 
 may be made and signed by one of them, but such an act or 
 return does not affect the others. (Co. Civ. Proc. § 173). 
 Where a mandate, requiring the arrest of the sheriff of the 
 county, is directed to the coroner, he must execute the same, 
 in the manner prescribed by law in respect to the execution 
 of a similar mandate by a sheriff. And he is authorized 
 to take an undertaking on the arrest or an undertaking 
 for the jail liberties, to himself, in his name of office, in a like 
 case and in like manner, and with like effect, as where such an 
 undertaking may be taken by the sheriff. (Co. Civ. Proc. 
 § 174). Where the actual confinement of a sheriff, by a 
 coroner, on a mandate, is required or authorized by law, he 
 must be confined by the coroner, in a house situated within 
 the liberties of the jail of the county, other than the sheriff's 
 house or the jail, in the same manner, as a sheriff is required 
 by law to confine a prisoner in the jail (Co. Civ. Proc. § 175) ; 
 and that house thereupon becomes the jail of the county, 
 for the use of the coroner, and each provision of law re- 
 lating to the jail, or to an escape from the jail, applies thereto, 
 while the sheriff is confined therein. (Co. Civ. Proc. § 176). 
 A person arrested by a coroner, in an action or special pro- 
 ceeding in which the sheriff of the county is plaintiff, must 
 be confined in the jail of the county, in a case where such 
 confinement is required or authorized by law ; but the coro- 
 ner is not liable for an escape of the prisoner from the jail 
 after he has been confined therein. A person so confined 
 must be kept and treated in all respects, like a prisoner 
 confined by the sheriff. (Co. Civ. Proc. § 179). A person 
 arrested by a coroner is entitled to be discharged, or to the 
 liberties of the jail, as the case requires, upon giving an 
 undertaking to the coroner, in the like manner and in a 
 like case, in which a person arrested by the sheriff would 
 be entitled to be so discharged, or to the liberties. The 
 undertaking so given must be, in all respects, similar to that 
 required to be given to a sheriff, and it has the like effect, 
 and may be assigned and proceeded upon in like manner. 
 (Co. Civ. Proc. § 180). A coroner is answerable for an 
 escape of a prisoner, admitted by him to the liberties of 
 the jail, in the same manner, and to the same extent, as 
 a sheriff, and may interpose a like defense. (Co. Civ. Proc. 
 § 181). A coroner is entitled, for performing any duty 
 
THE COURTS OF THE STATE OF NEW YORK. 29 
 
 of a sheriff, in an action or special proceeding, in which the 
 sheriff is for any reason disqualified, to the same fee to which 
 a sheriff is entitled for the same services; and for confining 
 a sheriff in a house by virtue of a mandate, and maintaining 
 him while there, two dollars for each day, to be paid by the 
 sheriff, before he is entitled to be discharged. (Co. Civ. 
 Proc. § 3310). 
 
 Sec 9. Elisors. 
 
 If the sheriff is disqualified and all the coroners succes- 
 sively neglect or refuse to execute the undertaking within 
 the time required, the county judge shall appoint some 
 suitable person to execute the duties of the office of sheriff 
 until a sheriff shall be elected or appointed. (County 
 Law, § 189). 
 
 Sec. 10. Attorneys and Counsellors. 
 
 Attorneys are admitted to practice by the appellate division 
 of the supreme court, in the department in which they reside, 
 after an examination by a board of examiners appointed by 
 the court of appeals, and subject to the rules established by 
 that court. (Co. Civ. Proc. § 56). An attorney must be 
 twenty-one years of age, and a citizen of the United States, 
 (Matter of O'Neill, 90 N. Y. 584), but he need not be a citizen 
 of the State of New York, provided he has a law office in the 
 State. (Co. Civ. Proc. § 60). Upon admission, each person 
 admitted to practice as an attorney must take the constitu- 
 tional oath of office, in open court, and subscribe the same 
 in a roll to be kept in the office of the clerk of the appellate 
 division of the supreme court (Co. Civ. Proc. § 59) ; he must 
 also file in the office of the clferk of the court of appeals an 
 oath, or affirmation, prescribed by the statute, showing his 
 admission, before he begins to practice. (Laws of 1898, 
 chap. 165, as amended by Laws of 1899, chap. 225). At- 
 torneys are officers of the court, (Hamilton v. Wright, 37 N. 
 Y. 502), but they are not officers of the State. (Ex parte 
 Garland, 4 Wal. 333; Matter of Burchard, 27 Hun, 429). An 
 attorney holds office during life, subject, however, to removal 
 or suspension for cause, by the appellate division of the 
 
30 PRACTICE. 
 
 supreme court. While that court alone has the power to 
 suspend or remove an attorney for misconduct, every other 
 court of record has control over him so far as relates to his 
 conduct in cases in that court, when he appears therein. (Will- 
 mont V. Meserole, 16 Abb. Pr. 308). The Code of Civil Pro- 
 cedure provides, that an attorney who is guilty of any deceit, 
 malpractice, crime or misdemeanor, or who is guilty of any 
 fraud or deceit in the proceedings, by which he was admitted 
 to practice, as an attorney and counsellor of the courts of this 
 State, ma}' be suspended from practice, or removed from 
 office, by the appellate division of the supreme court. 
 (Co. Civ. Proc. §§ 56, 67). Malpractice as a lawyer means 
 evil practice in a professional capacity, and the resort to 
 methods and practices unsanctioned and prohibited by law. 
 {Matter of Baum, 30 St. Rep. 174). It is the duty of the 
 supreme court in exercising the power thus granted to it, to 
 cause charges to be preferred against the attorney, whenever 
 it is satisfied from what has occurred in its presence, or from 
 any satisfactory proof, that a cause exists where the pubhc 
 good and the ends of justice require that to be done. (In 
 re Percy, 36 N. Y. 651). Such proceedings must be insti- 
 tuted either by presentation of an affidavit, or other au- 
 thenticated papers containing the charge to be investigated 
 to the appellate division, or by an order of some court, al- 
 leging the misconduct (Matter of Brewster, 12 Hun, 109) ; 
 but they cannot be commenced by notice of motion, founded 
 upon affidavits ; the proceeding must originate in the action 
 of the appellate division itself. (Ibid.). The proceeding 
 to punish an attorney for misconduct is a summary proceeding 
 and not an action. (Foster v. Townshend, 68 N. Y. 203; 
 Matter of Burchard, 27 Hun, 429) . A copy of the charges 
 must be delivered to the attorney, before he is removed, and 
 he must be allowed an opportunity of being heard in his 
 defense. (Co. Civ. Proc. § 68). Where the papers, being 
 verified, substantially show the charges against the attorney, 
 and the proofs which will be offered to sustain them, it is 
 no objection to them that they are not formally correct. 
 (Matter of an Attorney, 86 N. Y. 563). On the hearing the 
 attorney is not entitled to trial by jury. {Matter of Eld- 
 ridge, 82 N. Y. 161, 167). If a trial of the charges against 
 him is necessary, he is entitled to confront the witnesses, 
 
THE COURTS OF THE STATE OF NEW YORK. 31 
 
 and he can only be convicted by evidence given in accordance 
 with the common law rules, in his presence, by witnesses 
 subject to cross examination, {Matter of Eldridge, supra; 
 Matter of an Attorney, 83 N. Y. 164), and a commission to 
 take testimony against him in a foreign state cannot be 
 issued without his consent. (Ibid.). These rules, however, 
 are for the protection of the attornej^ If evidence against 
 him is given by affidavit, or deposition, without his objection, 
 he is deemed to have consented to it, and he can not object 
 on appeal, that he had a right to some other mode of trial. 
 (Matter of an Attorney, 86 N. Y. 563). Refusal of an attorney 
 to testify in a proceeding to disbar him raises a presumption 
 of the truth of such contradicted facts as must have been 
 known to him. {Matter of Randel, 158 N. Y. 216). An 
 attorney may be removed from his office for general bad 
 character, or bad conduct. (Matter of Percy, 36 N. Y. 651). 
 An attorney upon conviction for felony ceases to be an at- 
 torney and counsellor, or to be competent to practice law as 
 such. (Co. Civ. Proc. § 67). Whenever he is convicted of a 
 felony, there may be presented to the appellate division of 
 the supreme court, a certified or exemplified copy of the 
 judgment of such conviction, and thereupon -his name shall, 
 by order of the court, be stricken from the roll of attorneys. 
 (Ibid.). His right to act as attorney is not restored after 
 such conviction, by a pardon, (Matter of an A ttorney, 86 N. 
 Y. 563, 569, 573; Matter of E. 65 How. Pr. 171), but upon a 
 reversal of a conviction or a pardon, the appellate division 
 has power to vacate or modify the order disbarring him. 
 (Co. Civ. Proc. § 67). Although where an attorney commits 
 an indictable offense, he will not ordinarily be removed from 
 office before conviction, yet the court, if it sees fit, may, in 
 its discretion, try him by summary proceedings and disbar 
 him before he has been tried, upon the indictment. (Ex 
 parte Wall, 107 U. S. 265; Rochester Bar Assoc, v. Dorthy, 
 152 N. Y. 596). In the latter case the court said, however, 
 that where the charge involved a felony or misdemeanor 
 entirely distinct from the defendant's professional action, the 
 court would stay its hand until the criminal trial had been 
 had. (p. 598). Among the offences for which attorneys 
 have been removed are the altering of a verification (Matter 
 of Loew, 50 How. Pr. 373; 5 Hun, 462); manufacturing 
 
32 PRACTICE. 
 
 evidence (Matter of Gale, 75 N. Y. 526) ; forging a fictitious 
 certificate of divorce (Matter of Petersen, 3 Paige 510); 
 charging a judge in liis own court with corruption and per- 
 sisting in the charge (Matter of Murray, 33 N. Y. St. Rep. 
 831) ; and the conversion of money dehvered to him by his 
 client. (Matter of Burd, 9 Weekly Dig. 562). Where, in a 
 proceeding for the probate of a will, an attorney introduced 
 the deposition of a witness, and it appeared that he prepared 
 and caused to be written out all the answers to be given by 
 the witness to the interrogatories and cross-interrogatories, 
 that he was present when the testimony was taken, and him- 
 self read to the commissioners the answers he had prepared to 
 the interrogatories, and left with the witness the answers so pre- 
 pared to the cross-interrogatories, which the latter read to the 
 commissioner, and that he paid money to the witness both 
 before and after the taking of the testimony, and that he after- 
 wards wrote to the witness, suggesting a destruction of their 
 correspondence, and asking for a return of the memoranda so 
 used at the taking of the deposition, it was held that the 
 attorney was properly convicted of professional misconduct, 
 and suspended from practice. (Matter of Eldridge, 82 N. Y. 
 181). Where it appeared that an attorney assisted at the 
 lynching of a man, his name was stricken from the roll (Ex 
 parte Wall, 107 U. S. 265) ; and a threat of chastisement out 
 of court, to a judge, for his conduct during the trial of a cause 
 then pending, was held to be good ground for disbarring the 
 attorney from practice in that court. (Bradley v. Fisher, 13 
 Wal. 335). Where it appeared that an attorney prosecuted 
 a pension for a client, and received the arrears of pension and 
 the monthly allowance, for some months, amoimting to about 
 11,700, out of which he retained $1,200, and he alleged that 
 it was agreed with his client, that he was to retain all over 
 $8 per month of the amount paid, and it did not appear that 
 the client was informed how much over that sum he was 
 entitled to, it was held that the agreement was unconscion- 
 able, and justified the general term in holding that the trans- 
 action indicated a depraved professional morality, and in 
 removing the attorney from office. (Matter of an Attorney, 
 
 86 N. Y. 563; see also. Matter of V , 10 App. Div. 491; 
 
 Matter of Randel, 158 N. Y. 216). It has been held that an 
 attorney can not be disbarred for acts committed by him as 
 
THE COURTS OF THE STATE OF NEW YORK. 3S 
 
 a party to an action, and not as an attorney, though the 
 acts show that he was engaged in a fraudulent conspiracy of 
 unparalleled enormity {Matter of Post, 26 St. Rep. 641); 
 but in view of the cases cited above, it would seem that such 
 conduct indicated general bad character, or was misconduct, 
 for which an attorney might properly be disbarred. (See 
 also Matter of Forster, 49 Hun, 114). An attorney who 
 violates section 73 or 74 of the Code of Civil Procedure must 
 be disbarred. (Co. Civ. Proc. § 75 ; see infra, pp. 35, 36) . The 
 suspension or removal of an attorney by the supreme court 
 operates as a suspension or removal in every court of the 
 state. (Co. Civ. Proc. § 69). 
 
 The court will also proceed in a summary manner 
 to control an attorney in his relations with his client, 
 as to compel him to paj^ money received in his capacity 
 as attorney {Ex parte Statts, 4 Cow. 76; Matter of Bleckley, 
 5 Paige 311; People v. Wilson, 5 Johns. 368; Bowling' 
 Green Savings Bank v. Todd, 52 N. Y. 489; Matter of 
 Knapp, 85 N. Y. 284; Matter of Chittenden, 4 N. Y. St, 
 Rep. 606; affd. 105 N. Y. 679; Matter of Silvemail, 45 Hun, 
 575; Waterbury v. Eldridge, 5 N. Y. Supp. 324); or to return 
 a paper received by him as such {Matter of H., an attorney, 
 87 N. Y. 521) ; or to settle his accounts with his client and 
 turn over property to which he may be entitled. {Kuhne 
 V. Daily, 23 Hun, 282; appeal dismissed, 89 N. Y. 631). An 
 attorney who purchases at his client's execution sale, and sella 
 the property- at an advance, may be compelled to account 
 for and pay over the profits derived, in a summary proceeding. 
 {Matter of Friedman, 21 Hun, 301) ; but the court will only 
 permit these summary proceedings in case the money sought 
 to be recovered was received by the attorney in his profes- 
 sional capacity. {Matter of Husson, 26 Hun, 130; affd. 89' 
 N. Y. 618). It is within the discretion of the court whether 
 it will proceed by attachment to compel the payment by an 
 attorney to his client, of money received in that capacity, or 
 leave the client to his action. {Matter of Schell, 128 N. Y. 
 67). The discretion of the supreme court will not be re- 
 viewed by the court of appeals. (Ibid.). Where an attorney 
 becomes surety for costs, he cannot be proceeded against- 
 summarily, as an officer of the court, but must be pursued. 
 in the same manner as any other surety. {Willmont v. 
 
34 PRACTICI5. 
 
 Meserole, 16 Abb. Pr. N. S. 308). The remedy by summary 
 proceedings is usually sought where a dispute has arisen as to 
 the attorney's fees and, if he claims a lien for such fees, the 
 usual course is to order a reference. {Matter of Gillespie v. 
 Mulholland, 12 Misc. 40; Matter of Knapp, 85 N. Y. 284, and 
 cases cited supra) ; but where the court can readily determine 
 the extent and value of the services, the matter will not be 
 sent to a referee. (Waterhury v. Eldridge, 5 N. Y. Supp. 
 324; Ferdon v. Ferdan, 1 App. Div. 629). The court en- 
 forces its orders in such summarj^ proceedings by attachment. 
 (Bowling Green Savings Bank v. Todd, 52 N. Y. 489, and cases 
 cited supra). The court will not order summary proceed- 
 ings in favor of one retained as counsel {Matter of Haskin, 
 18 Hun, 43) ; nor in favor of one attorney, as against an- 
 other {Matter of Cattus, 42 App. Div. 134; Taylor v. L. /. 
 R. R, 38 App. Div. 595) ; nor in favor of an attorney 
 who acts solely as an agent or attorney in fact for the 
 collection of money {Matter of Hillebrandt, 33 App. Div. 
 191; but see Matter of Dakin, 4 Hill, 42; Grant v. Chester, 
 17 How. Pr. 260) ; nor in favor of an assignee of a claim 
 (Matter of Schell, 58 Hun, 440; but see remarks of O'B'rien, J., 
 on appeal to court of appeals, 128 N. Y. 67, 69, 70„ and 
 Matter of Gillespie v. Mulholland, 12 Misc. 40) ; qucere as to 
 moneys collected by virtue of a retainer in another court 
 '{Matter of Ketchum, 4 Hill, 564, and Matter of Forsfer, 49 
 Hun, 114, holding in the negative. Matter of Batterstm, 4A 
 N. Y. St. Rep. 839 in the affirmative) ; nor to compel an at- 
 torney to carry out a stipulation {Berks v. Hotchkiss, 82 
 Hun, 27) ; nor unless the petitioner's claim is free from any 
 reasonable doubt (Matter of Post, 31 N. Y. St. Rep. 123) ; 
 nor after suit brought by the client (Cottrell v. Finlaysmi, 4 
 How. Pr. 242; Bohanan v. Peterson, 9 Wend. 503; Gabriel 
 V. Schillinger Co. 24 Misc. 33, contra) ; nor without a demand. 
 (Matter of Ferguson, 6 Cow. 596). The court will punish 
 disobedience of its order directing payment by an attorney 
 as a contempt. (Matter of McBride, 6 App. Div. 376 ; Matter of 
 Bornemann, 6 App. Div. 524) ; and the order cannot be at- 
 tacked collaterally. (Matter of Bornemann, supra). 
 
 An attorney or counsellor who is guilty of any deceit or 
 collusion, or consents to any deceit or collusion, with intent 
 to deceive the court or a party, or who wilfully delays his 
 
THE COURTS OF THE STATE OF NEW YORK. 35 
 
 client's cause, with a view to his own gain, or wilfully re- 
 ceives money, or an allowance for or on account of money, 
 which he has not laid out, or becomes answerable for, forfeits 
 to the party injured treble damages. (Co. Civ. Proc. §§ 
 70, 71). These sections relate to a case where the attorney 
 intends to deceive the court or his client by some improper 
 practice; they do not include a transaction before proceed- 
 ings have been commenced, as the court could have no 
 connection with any such proceeding. The ' ' party ' ' referred 
 to in these sections is the party to an action pending in a 
 court, in reference to which the deceit is practiced, and not 
 a person outside, not connected with the same at the time, 
 or with the court. {Looff v. Lawton, 97 N. Y. 478). If an 
 attorney knowingly permits a person, not being his general 
 law partner, or a clerk in his office, to sue out a mandate, 
 or to prosecute or defend an action, in his name, he and the 
 person who so uses his name, each forfeit to the party, against 
 whom the mandate has been sued out, or the action prose- 
 cuted or defended, the sum of fifty dollars to be recovered 
 in an action. (Co. Civ. Proc. § 72). An attorney may, 
 however, emplo}'' one who is such, as his clerk to represent 
 him, and use the name of the attorney. {Brush v. Lee, 
 36 N. Y. 49). The issuing of a subpoena is within the 
 prohibition of this statute; a subpoena being held to be 
 process. (Yorks v. Peck, 31 Barb.- 350). An attorney or 
 counsellor shall not directly or indirectly buy, or be in any 
 manner interested in buying, a bond, promissory note, bill 
 of exchange, book debt, or other thing in action, with the 
 intent and for the purpose of bringing an action thereon. 
 (Co. Civ. Proc. § 73). To bring the case within the prohibi- 
 tion of this section, the direct and specific purpose of the pur- 
 chase, exclusive of any other, must have been to enable 
 the attorney to bring an action ; the section does not embrace 
 a case where some other purpose induced the purchase 
 and the intent to sue was merely incidental and contingent. 
 (Moses V. McDivitt, 88 N. Y. 62; Fay v. Hebbard, 42 Hun, 
 490). The mere fact of the purchase does not warrant a 
 conclusion that there was an intent to violate the statute. 
 (Williams v. Matthews, 3 Cow. 252). The statute was not 
 intended to prevent a purchase for the purpose of protecting 
 some other right of the assignee; as to protect an interest 
 
3f) PRACTICE. 
 
 in real estate covered by a mortgage; (Balduii v. Latson, 
 2 Barb. Chan. 306); nor the buying by an attorney who is 
 a junior judgment creditor, of the senior judgment for the 
 purpose of collecting his own {Van Rensselaer v. Sher. of 
 Onondaga Co., 1 Cow. 443); nor the taking of property from 
 the cUent, as compensation for services. {Fowler v. Callan, 
 102 N. Y. 395). It does not prohibit an attorney from 
 buying a mortgage with the intent to foreclose it by ad- 
 vertisement, this mode of foreclosure not being a suit in 
 any court, within the meaning of the statute. {Hall v. 
 Bartlett, 9 Barb. 297). Within this statute it is lawful 
 for an attorney to buy a judgment for the purpose of en- 
 forcing it by execution, {Fay v. Hebbard, 42 Hun, 490), or 
 to buy a claim upon which suit has been commenced. {Wet- 
 more V. Hegeman, 88 N. Y. 69). Neither is it a violation 
 of the statute for an attorney to buy the fee of land for 
 the purpose and with the intent of getting possession of it 
 by an action. {Tovmsend v. Frommer, 16 N. Y. St. Rep. 892). 
 The section does not prohibit an attorney from taking a 
 bond, as collateral security, with the intent of suing on it, 
 if necessary to collect it. {West v. Kurtz, 15 Daly, 99). 
 Where an attorney purchased a bond and mortgage, paying 
 for them with his note due in two and a half months, within 
 an hour made search against the premises, and immediately 
 began a foreclosure action, the purchase was held to be 
 forbidden by section 73, in the absence of some satisfactory 
 explanation {Maxon v. Cain, 22 App. Div. 270). The 
 purchase by an attorney of a claim against a decedent's estate, 
 at the request, and for the accommodation, of the claimant 
 without any intent to derive a benefit therefrom personally, is 
 not within the section. {Tilden v. Aitkin, 37 App. Div. 28). 
 An attorney or counsellor shall not by himself or in the name 
 of another person, either before or after action brought, 
 promise or give or procure to be promised or given, a valuable 
 consideration to any person as an inducement to placing or 
 in consideration of having placed in his hands, or in the hands 
 of another person, a demand of any kind for the purpose of 
 bringing an action thereon. (Co. Civ. Proc. § 74). This 
 section and section 73 above cited are a substantial reenact- 
 ment of the revised statutes. They forbid, first, the pur- 
 chase by an attorney, for the purpose, and with the intent of 
 
THE COURTS OF THE STATE OF NEW YORK. 37 
 
 bringing a suit thereon, and, second, any loan or advance, or 
 agreement to loan or advance "as an inducement to the 
 placing or in consideration of having placed in the hands of 
 an attorney" any demand for collection. (Fowler v. Callan, 
 102 N. Y. 395; Hess v. Allen, 24 Misc. 393). The section 
 forbids an agreement whereby an attorney, taking a case on 
 a contingent fee, agrees to advance money necessary to carry 
 on the case. {Coughlin v. A^. Y.C. & H.R.R.R.Co., 71 N. Y. 
 443). The violation of section 74, however, does not con- 
 stitute a defence to the action on the principal claim. {Story 
 V. Satterlee, 13 Daly 169) . This section does not apply to an 
 agreement between attorneys and counsellors, or either, to 
 divide between themselves the compensation to be received 
 (Co. Civ. Proc. § 74). An attorney who violates section 73 
 ■or 74 is guilty of a misdemeanor, and on conviction must be 
 removed from office by the supreme court. (Co. Civ. Proc. 
 § 75). But the two sections last cited do not prohibit the 
 receipt by an attorney or counsellor of a bond, promissory 
 note, bill of exchange, book debt, or any thing in action, in 
 payment for property sold, or for services actually rendered, 
 or for a debt antecedently contracted; or from buying or 
 receiving a bill of exchange, draft or other thing in action, 
 for the purpose of remittance, and without intent to violate 
 either of those sections. (Co. Civ. Proc. § 76). Sections 
 73, 74, 75 and 76 do not apply to a person prosecuting an action 
 in person. (Co. Civ. Proc. § 77). No attorney or counsellor 
 shall be surety on any undertaking or bond required by law, 
 or by the rules, or by any order of a court, or judge, in any 
 action or proceeding, nor shall he be bail in any case, civil or 
 criminal. (General Rule 5). Although an attorney's name 
 still appears on the roll, he can become a surety if he has 
 abandoned the practice of law. (Evans v. Harris, 47 N. Y. 
 Super. 336; Storingham v. Stewart, 8 N. Y. Civ. Proc. Rep. 
 420). No person shall ask or receive, directly or indirectly, 
 compensation for appearing as an attorney in court or before 
 any magistrate in the city of New York, or make it a business 
 to practise as an attorney, in a court or before a magistrate, 
 in said city, unless he has been regularly admitted to practise 
 as an attorney and counsellor, in the courts of record of this 
 state. (Co. Civ. Proc. § 63). Where any person conducts 
 a cause to the end in violation of this section, the judgment 
 
38 PRACTICE. 
 
 rendered is void and must be reversed. {Newberger v. Camp- 
 bell, 58 How. Pr. 313). If an attorney dies, is removed, or 
 suspended, or otherwise becomes disabled to act, at any time 
 before judgment in an action, no further proceedings shall 
 be taken in the action, against the party for whom he ap- 
 peared, until thirty days after notice to appoint another 
 attorney has been given to that party, either personally, or 
 in such other manner as the court directs. (Co. Civ. Proc. 
 § 65). This section has no appHcation to a case where the 
 attorney died after the entry of judgment, and so notice of 
 motion to set aside a judgment rendered before the death of 
 an attorney is properly served after his death upon the party 
 personally. (CMlson v. Howe, 17 Civ. Proc. Rep. 86). The 
 notice required by section 65 must be given to all the parties 
 to the action, if there is more than one for whom the attorney 
 has appeared. (Hickox v. Weaver, 15 Hun, 375). After 
 the notice required by this section, the proceedings are stayed 
 for thirty days, and a motion to dismiss an appeal for failure 
 to appoint an attorney, made within that time, is premature, 
 and notice of the argument on appeal can not be given until 
 after that time. (Ibid.). If a party, after notice, fails to 
 appoint a new attorney, notice of any subsequent proceed- 
 ings may be given to him personally, after the thirty days 
 have expired. {Hoffman v. Rowley, 13 Abb. Pr. 399 ; Jewell v. 
 Schouten, 1 N. Y. 241). If one of a firm of attorneys, who 
 has appeared for a party, dies, the service of a notice of trial 
 upon surviving partners is regular and sufficient. {Saxton 
 V. Dodge, 46 How. Pr. 467) ; but where an attorney has become 
 a non-resident of the state, papers cannot be served on his 
 former partner. (Diefendorf v. House, 9 How. Pr. 243). 
 Where a verdict has been rendered in a foreclosure suit and 
 the judge had under consideration the issues in the case 
 when the defendant's attorney was disbarred, a judgment 
 subsequently rendered, without notice to the defendant, 
 under this section and the sale and all proceedings thereunder 
 were set aside. (Com'l Bk. v. Foltz, 13 App. Div. 603). An 
 attorney or counsellor is privileged from arrest during the 
 actual sitting of a court, provided he is employed in a cause 
 to be heard at that term of court. (Co. Civ. Proc. § 565). 
 Attorneys, however, are not privileged while appearing be- 
 fore a judge out of court. {Cole v. McClellan, 4 Hill, 59). 
 
THE COURTS OP THE STATE OF NEW YORK. 39 
 
 This privilege is lost by ceasing to practice for one year, not 
 in consequence of any temporary absence or avocation, but 
 if the attorney betake himself to a practice or business, in- 
 compatible with his practice as an attorney. {Brooks v. 
 Patterson, 2 Johns. Cas. 102). The authority of any attorney 
 to appear for any party is presumed. (Hamilton v. Wright, 
 37 N. Y. 502; Matter of Maxwell, 66 Hun, 151). But the 
 court may at all times inquire into his right, and the attorney 
 may be compelled to show under what authority he practices. 
 (Ninety Plaintiffs v. Vanderhilt, 1 Abb. Pr. 193). Ordinarily, 
 however, this will not be done Unless the circumstances are 
 such as raise a suspicion of fraud. (Hollins v. St. Louis & 
 Chicago Ry. Co. 57 Hun, 139; Stewart v. Steioart, 56 How. 
 Pr. 256; Rep. of Mexico v. Arrangois, 5 Duer, 643). The code, 
 however, provides that, in an action to recover real property, 
 or the possession thereof, the defendant, at any time before 
 answering, upon affidavit that evidence of the authority of 
 the plaintiff's attorney to commence the action has not been 
 served upon him, may apply, upon notice, to the court or a j udge 
 thereof, for an order directing the attorney to produce such 
 evidence (Co. Civ. Proc. § 1512), and upon such application, 
 the court or judge must make an order, requiring the plain- 
 tiff's attorney to produce evidence of his authority to com- 
 mence the action, and staying all proceedings therein on the 
 part of the plaintiff, until the evidence is produced. (Co. 
 Civ. Proc. § 1513). This order must state the place at which 
 the authority is required to be presented. (Turner v. Davis, 
 2 Denio, 187). 
 
 The court has power, in its discretion, to make an order 
 requiring the plaintiff's attorney to disclose his client's ad- 
 dress, and when it is made to appear that such knowledge 
 is necessary to enable the opposite party to take some step 
 in the cause, the order is promptly granted. (Drake v. 
 JV. Y. Iron Mine, 75 Hun, 539; Havana City R. Co. v. Cebal- 
 los, 25 Misc. 660; Post v. Scheider, 36 St. Rep. 324); but the 
 court will not exercise this power, after a litigation is ended. 
 (Walton V. Fairchild, 24 N. Y. St. Rep. 314) ; and in a proper 
 case the court will stay all proceedings until the address 
 is furnished. (Corhett v. Gibson, 18 Hun, 49; Corbett v. De 
 Comean, 45 N. Y. Super. 637). A parol retainer is sufficient 
 to entitle an attorney to appear. (Mc Alexander v. Wright, 
 
40 PKACTICE. 
 
 3 T. B. Monroe, 189; 16 Am. Dec. 93 and note on page 98; 
 Osborne v. U. S. Bank, 9 Wheat. 738), except in an action 
 of ejectment, in which it is required that an attorney should 
 produce a written request of the plaintiff or his agent, or a 
 written recognition of his authority to appear, properly 
 verified. (Co. Civ. Proc. § 1514). By virtue of his retainer, 
 the attornej'^ becomes the authorized agent of the party, in 
 all matters necessary to the conduct of the case. {Barrett 
 V. Third Avenue R. R. Co. 45 N. Y. 628; Mark v. The City 
 of Buffalo, 87 N. Y. 184). Within this authority, he may 
 discontinue a suit, although he cannot release a cause of 
 action. {Barrett v. Third Avenue R.R. Co., supra; Gailliird 
 V. Smart, 6 Cow. 383). He cannot, therefore, make a valid 
 confession of judgment unless he is authorized so to do. 
 {Bush V. O'Brien, 164 N. Y. 205, and cases there cited). He 
 may extend the time to appeal {Hoffenbruth v. Miller, 12 
 Abb. N. S. 282) ; or to open a default {Read v. French, 28 N. 
 Y. 285), if it is plain the court would order it opened, in 
 accordance with well-settled rules of practice. {Anon. 1 
 Wend. 108; Clussman v. Market, 3 Bosw. 402). He may 
 stipulate as to the referee's fees in an action {Mark v. City 
 of Buffalo, 87 N. Y. 184), or incur the necessary expenses 
 for preparing for trial; such as employing an accountant to 
 examine books as an expert. {Covell v. Hart, 14 Hun, 252). 
 In an action against a railroad company for damages for 
 negligence, the attorney for the defendant may stipulate, as 
 a condition of recei^'ing a fa\'or, that if the plaintiff die be- 
 fore judgment, the cause of action shall survive. {Cox v. 
 N. Y.C. & H. R. R'. R. Co. 63 N. Y. 413). The attorney, after 
 judgment, may issue an execution against property {Wal- 
 radt V. Maynard, 3 Barb. 584), or against the person {Guille- 
 man v. Rowe, 94 N. Y. 268) ; or he may withdraw an execu- 
 tion. {Read v. French, 28 N. Y. 285; Corning v. Southland, 
 3 Hill, 552). He may give instructions to the sheriff as to 
 his proceedings under the execution. • {Corning v. South- 
 land, supra; Averill v. Williams, 4 Denio, 295). After judg- 
 ment, the attorney employed to collect a claim has authority 
 to institute supplementary proceedings. {Ward v. Roy, 69 
 N. Y. 96). He may satisfy a judgment within two years 
 (Co. Civ. Proc. § 1260), on payment of full amount {Beers 
 V. Hendrickson, 45 N. Y. 665) ; and only on payment of the 
 
THE COURTS OF THE STATE OP NEW YOKK. 41 
 
 -full amount. {Lowman v. E. C. & N. R. R. Co., 85 Hun, 188; 
 affd. 154 N. Y. 765). He may also direct the sheriff to 
 discharge a debtor held on an execution against the person. 
 (Davis V. Bowe, 118 N. Y. 55). Under a general authority to 
 collect a note, an attorney is authorized to receive a pay- 
 ment of part in money and the residue in the note of a person 
 of undoubted responsibility for a short period. (Livingston v. 
 Radcliff et al. 6 Barb. 201; appeal dismissed, 2 N. Y. 189). 
 Where several persons join in a suit by one attorney, the 
 court will not inquire whether the same is authorized by 
 such parties, unless some of them object to the proceeding, 
 or the adverse party show affirmatively that the suit has 
 been improperly instituted without authority. (Bank Com'rs. 
 V. Bank of Buffalo, 6 Paige, 497, 504). An attorney, by 
 virtue of his general retainer, is authorized to bring a second 
 suit on a note, after being non-suited in the former one. 
 (Scott V. Elmendorf, 12 Johns. 317). Counsel have authority 
 to amend at the trial, regardless of the attorney of record. 
 (DevliriY. Mayor, etc. ,15 Abb. Pr. N. S. 31, 37). A counsel 
 retained to argue a motion to change the place of trial can 
 consent to a reference of the cause, on the suggestion of the 
 court. (Tiffany v. Lord, 40 How. Pr. 481). An attorney 
 may, also, bind his client by a stipulation not to appeal. 
 (Smith V. Barnes, 9 Misc. 368). If an attorney does an act 
 not binding on his client and the client accept the benefit 
 thereof, he cannot be heard to object that the attorney had 
 no authority. (Chadwick v. Manning, 27 N. Y. St. Rep. 
 31; Ives v. Ives, 80 Hun, 136). But the attorney has not, 
 under his original retainer, authority to employ counsel. 
 (Matter of Bleakley, 5 Paige, 312; Cook v. Ritter, 4 E. D. 
 Smith 253). Nor can he bid, in the name of his chent, 
 on the sale of real estate under an execution, issued upon his 
 client's judgment. (Beardsley v. Root, 11 Johns. 464). He 
 cannot stipulate, upon an appeal to the general term, to 
 vacate the judgment, and permit a new trial to be had. 
 (Quinn v. Lloyd, 5 Abb. Pr. N. S. 281; 7 Robt. 538). The 
 attorney cannot bind his chent by submission to arbitration. 
 (McPherson v. Cox, 86 N. Y. 472; Stinerville &c. Co. v. White, 
 25 Misc. 314). He cannot, by stipulation, permit the taxa- 
 tion of a greater amount of costs than are allowed by law. 
 (O'Keefe v. Shepard, 21 Hun, 171). Nor can counsel, 
 
42 PRACTICE. 
 
 employed to argue a demurrer, consent, where his default has 
 been taken, as a condition of opening the default, that a 
 decision of the demurrer should be final. (Baron v. Cohen, 
 62 How. Pr. 367). The power of an attorney to bind his 
 client in an action, against the instructions of the client is^ 
 limited to acts which conduce, or tend to conduce, to the 
 success of his client. He cannot withdraw the answer, 
 when such an act amounts to a confession of judgment, and 
 leave it to a sheriff's jury to assess the damages. (Herbert v. 
 Lawrence, 42 St. Rep. 406; 18 Supp. 95). An attorney's: 
 admissions in conversation with third persons do not bind 
 his client. (Lewis v. Duane, 141 N. Y. 302; Fay v. Hebbard, 
 4 N. Y. St. Rep. 485). If the attorney directs the sheriff to 
 arrest the wrong person, his client is not liable, such direction 
 being beyond his authority (Gearon v. Bank for Savings, 
 6 Civ. Proc. Rep. 207) ; nor does he subject his client to 
 liability in directing a levy upon final process (Welsh v. 
 Cochran, 63 N. Y. 181) ; but the attorney has power to direct 
 the officer in making an attachment issued during the progress 
 of the action and his mistake renders the client liable. (Oe- 
 strich V. Gilbert, 9 Hun, 242) . An attorney is not answerable 
 for the stenographer's fees iii an action, in the absence of a 
 special agreement, the employment of a stenographer being 
 within his authority (Bonynge v. Field, 81 N. Y. 159; 
 Bonynge v. Waterbury, 12 Hun, 534) ; the client is liable. 
 (Harry v. Hilton, 64 How. Pr. 199). As to an attorney's 
 authority to employ experts, see Brown v. Travellers Ins: Co. 
 (21 App. Div. 42). An attorney of a party in a partition 
 suit has no power under his original employment, more than 
 a year after judgment, to consent to the entry of orders 
 nunc pro tune. (Walter v. De Graef, 19 Abb. N. C. 406). 
 The attorney has no right, without the consent of his client, 
 to appeal from an order denjdng an allowance in addition 
 to costs. (Smith v. City of Rochester, 4 Alb. L. J. 12). An 
 attorney cannot stipulate to release one of several defendants, 
 after judgment, without payment. (Carstens v. Barnstorf, 
 11 Abb. Pr. N. S. 442). Relief against a judgment rendered 
 against a party upon the unauthorized appearance of an at- 
 torney is to be sought in a direct apphcation to the court 
 by motion in the action in which the unauthorized appear- 
 ance was entered. (Denton v. Noyes, 6 Johns. 297; 
 
THE COURTS OF THE STATE OF NEW YORK. 43 
 
 Grazebrook v. M'Creedie, 9 Wend. 437; Adams v. Gilbert, 9 
 Wend. 499; Campbell v. Bristol, 19 Wend. 101 ; American Ins. 
 Co. V. Oakley, 9 Paige, M6; Allen v. Stone, 10 Barb. 547; Ham- 
 ilton V. Frigf^i, 37 N. Y. 302; Vilas v. P. & M. R. R. Co., 123 
 N. Y. 441) . The cases last cited showthat a judgment entered 
 upon an unauthorized appearance is neither void nor irregu- 
 lar. The court has power in its discretion to set aside the 
 judgment, but it will not do so unless the application is 
 made promptly. (Abbet v. Blohm, 54 App. Div. 422). The 
 authority of the attorney cannot be questioned collaterally. 
 (Brown v. Nichols, 42 N. Y. 31; Ferguson v. Crawford, 70 
 N. Y. 256; Sp&rry v. Reynolds, 65 N. Y. 183; Washburn v. 
 Cope, 144 N. Y. 287; Donahue v. Hungerford, 1 App. Div. 
 528). Where a judgment is entered on an unauthorized 
 appearance, the attorney, so appearing, may be required 
 to pay the judgment. (Post v. Charlesworth, 66 Hun, 256). 
 The relation of attorney and client is ended by the entry 
 of judgment against the client (Lust v. Hastings, 1 Hill, 656), 
 or in his favor (Ward v. Sands, 10 Abb., Pr., N. S. 60; Lyon v. 
 Cahill, 13 Civ. Proc. Rep. 314) ; except that the attorney may 
 issue execution and take the necessary steps to collect the 
 judgment and in the absence of a revocation of his authority, 
 may execute a satisfaction of the judgment within two years 
 after its entry. (Cruikshank v. Goodwin, 49 St. Rep. 603, 
 20 Supp. 757). After the entry of judgment, a new at- 
 torney can be employed without an order of substitution. 
 (Davis V. Solomon, 25 Misc. 695; Egan v. Rooney, 38 How. 
 Pr. 121) . This relation also ends by the death of the client. 
 (Austin V. Monroe, 4 Lans. 69; Adams v. Nellis, 59 How. Pr. 
 385; 39 Am. Dec. 91, note). The' client has the right to 
 change his attorney at pleasure (Mumford v. Murray, Hopk. 
 369; Ogden v. Devlin, 45 Super. 631) ; except where the effect 
 of the change will be to bargain away the rights of other persons 
 who are interested in the action, and for whose benefit, as 
 well as for that of the plaintiff, the action is brought (Hirsch- 
 feld V. Bopp, 5 App. Div. 202) ; but the change can only b& 
 made by an order of the judge or the court, and upon such 
 terms as may be just (General Rule 10), and in no case can 
 such a change be made simply by the consent of the attorney 
 himself, but the fact that the client has agreed to it must 
 be made to appear, (Buckley v. Buckley, 45 St. Rep. 827; 
 
44 PRACTICE. , 
 
 18 Supp. 607) . Both the order and a notice of substitution 
 must be served; if either is lacking, the opposite party may 
 disregard the notice and return a paper received from the 
 attorney sought to be substituted. {Parker v. Williams- 
 lurgh, 13 How. Pr. 250; Miller v. Schall, 67 Barb. 446; contra, 
 Dorlon v. Lewis, 7 How. Pr. 132, that notice of substitution 
 is sufficient alone). An appeal to the appellate division 
 from a judgment cannot be taken by a new attorney, until 
 he has been properly substituted, and service of a notice 
 of appeal by the new attorney, before such substitution is 
 ineffectual. (Shuler v. Maxwell, 38 Hun, 240; appeal dis- 
 missed, 108 N. Y. 636; Pensa v. Pensa, 3 Misc. 417). But 
 on an appeal to the court of appeals, from a judgment of 
 the appellate division, a party may retain a new attorney, 
 without obtaining an order of substitution, and on such re- 
 tainer the authority of the old attorney ceases. (Rule 3, 
 Court of Appeals Rules ; Magnolia Metal Co. v. Sterlingworth, 
 &c. Co., 37 App. Div. 366; but see Squire v. McDonald et al. 
 138 N. Y. 554). Where a substitution of attorneys has been 
 made, after an appeal to the Court of Appeals, a motion to 
 direct the former attorney to deliver the papers to the sub- 
 stituted attorney should not be made in the Court of Appeals, 
 but to the court below. (Peo. ex rel. Hoffman v. Board of 
 Education, 141 N. Y. 86). The attorney has a lien on the 
 papers in his hands for his reasonable charges, and a transfer 
 of such papers will not be ordered until the charges are paid 
 {Ogden v. Devlin, supra; Supervisors v. Brodhead, 44 How. 
 Pr. 411; Hoffman v. Van Nostrand, 14 Abb. Pr. 336), or 
 securuy given for the pa)TT3ent. (Cunningham v. Widing, 
 5 Abb. Pr. 314). The order should provide for a reference 
 to ascertain the amount of the fees, if they are in dispute. (Og- 
 den v. Devlin, supra; Phila. v. Postal Telegraph Cable Co., 
 1 App. Div. 387). Where, however, the attorney has been 
 guilty of misconduct, the court will direct a substitution, 
 and leave the attorney to an action for his fees. (Pierce v. 
 Waters, 10 Wk. Dig. 432; Matter of Prospect Ave., 85 Hun, 
 257 ; Barkley v. N. Y. C. & H. R. R. R. Co., 35 App. Div. 167). 
 So if the attorney refuse to continue his services, without 
 pa5Tnent for services already rendered, the court will permit 
 the client to substitute another attorney, and the first at- 
 torney has no lien which the court is required to protect, 
 
THE COURTS OF THE STATE OP NEW YORK. 45 
 
 before directing a substitution. {Tuck v. Manning, 53 Hun, 
 
 455; Matt&r of H , an Attorney, 93 N. Y. 381). Where 
 
 an attorney has agreed to wait for his compensation until 
 a fund is recovered, and the chent desires to change his at- 
 torney in the midst of the proceeding, the court will order 
 the substitution and direct that the original attorney retain 
 a lien on the fund, to be paid when the fund is recovered. 
 (Stewart v. Steck, 6 N. Y. St. Rep. 524). The compensation 
 of an attorney and counsellor, for his services, is governed by 
 agreement, expressed or implied, which is not restrained by 
 law. (Co. Civ. Proc. § 66). In estimating the value of the 
 services, it was said by Mr. Lincoln, that there should be 
 considered, the amount of labor; the doubtfulness and diffi- 
 culty of the question ; the degree of success in the result, and 
 the amount of pecuniary interest involved, not merely in the 
 particular case, but covered by the principles decided and 
 thereby secured to the client. (10 Am. Law. Reg. New 
 Ser. 553, note). It is said by the Court of Appeals that an 
 attorney in the absence of an agreement is entitled to com- 
 pensation according to the reasonable worth of his services, 
 and in fixing that value, there must be considered, the nature 
 of the services rendered; the standing of the attorney in his 
 profession, for learning, skill and proficiency.; the amount 
 involved; the importance to his client of the result, and the 
 result itself. {Randall v. Packard, 142 N. Y. 47, 56). An 
 attorney may stipulate with his client for any rate of pay- 
 ment {Coughlin v. N. Y. C. & H. R. R. R. Co., 71 N. Y. 443), 
 or for a share in the proceeds of the suit, which share may 
 be made contingent upon success {Fowler v. Callan, 102 
 N. Y. 395) ; but in case of a dispute between an attorney and 
 client, the burden of proof is upon the attorney to show that 
 the agreement was fair in all respects and was made by the 
 client with the full knowledge of all the material circum- 
 stances, and the presxmiptions are always against the pro- 
 priety of the transaction. {Whitehead v. Kennedy, 69 N. Y. 
 462, 466; Haight v. Moore, 37 Super. 161; Hitchings v. Van 
 Brunt, 38 N. Y. 335, 342; Petrie v. Williams, 68 Hun, 589; 
 Matter of Cohen, 84 Hun, 586; Finlay v. Leary, 87 Hun, 8). 
 The court still retains the right to examine such contracts 
 and set them aside in a proper case {Haight v. Moore, and 
 other cases cited), and although an attorney may stipulate 
 
46 PRACTICE. 
 
 that his compensation may be absolute, or contingent upon 
 success, he cannot advance or agree to advance the money 
 needed to carry on a suit as an inducement for placing a 
 claim in his hands for prosecution {Coughlin v. N. Y. C. & 
 H. R. R. R. Co., 71 N. Y. 443), and any such agreement will 
 be void and the attorney making it will be held responsible 
 for the costs. {Brotherson v. Consalus, 26 How. Pr. 213). 
 From the commencement of an action, or special proceeding, 
 or the service of an answer containing a counterclaim, the 
 attorney who appears for a party has a lien upon his client's 
 cause of action, claim or counterclaim, which attaches to a 
 verdict, report, decision, judgment or final order in his client's 
 favor, and the proceeds thereof, in whosesoever hands they 
 may come; and the lien cannot be affected by any settle- 
 ments between the parties, before or after judgment, or final 
 order. The court, upon the petition of the client or attorney, 
 may determine and enforce the lien. (Co. Civ. Proc. § 66). 
 At common law, the attorney had a lien simply upon the 
 judgment which he might have recovered in favor of his cUent, 
 and the basis of his lien was the right of the attorney to 
 resort to the fruits of judgment in compensation for his ser- 
 vices, in obtaining it. (Matter of Hoyt, 12 Civ. Proc. Rep. 
 208; Randall v. Van Wagenen, 17 Civ. Proc. Rep. 403; S. C. 
 115 N. Y. 527). The lien existed for the costs or the agreed 
 compensation, and to the extent of the lien the attorney was 
 held to be an equitable assignee of the judgment. (Marshall 
 V. Meech, 51 N. Y. 140). Since the enactment of section 66 
 of the Code above cited, the lien of the attorney has been 
 extended to the cause of action. The section was amended 
 by Chapter 61, of the Laws of 1899, so that it should apply 
 to a special proceeding ; this set aside the ruling of the courts, 
 that the section did not cover special proceedings. See 
 Matter of Lexington Av., (30 App. Div. 602, affd. 157 N. Y. 678) . 
 The provision for the manner of determination and enforce- 
 ment of the lien was also added by the same act. The 
 section is now appUcable to proceedings in the Surrogate's 
 Court. (Matter of Regan, 167 N. Y. 338). The statutory 
 lien exists from the beginning of an action, or the service 
 of an answer containing a counterclaim. (Quintan v. Birge, 
 43 Hun, 483; Kaufman v. Keenan, 18 N. Y. St. Rep. 933; 
 Chester v. Jumel, 24 N. Y. St. Rep. 214). The attorney 
 
THE COURTS OL' THE STATE OF NEW YORK. 47 
 
 for the defendant has no Hen, unless the answer sets up a 
 counterclaim (Longyear v. Carter, 88 Hun, 513) ; but the court 
 will not allow, against the objection of defendant's attorney, 
 a discontinuance without costs, after issue joined in an action 
 in which no counterclaim is interposed, upon a stipulation 
 of the defendant himself, where such stipulation was made 
 without the knowledge or consent of the attorney, without 
 paying, or providing for the payment of, costs, and for the pur- 
 pose of depriving the attorney of any possible costs- he might 
 obtain. (National Exhibition Co. v. Crane, 167 N. Y. 505). 
 The lien given to the attorney for his services, by this 
 statute, attaches, not only to the judgment, but to all secur- 
 ities for its payment or satisfaction, such as an undertaking 
 on appeal {Shackelton v. Hart, 12 Abb. Pr. 235, note; 20 
 How. Pr. 39), and also to all provisional remedies granted 
 in the action {Crouch v. Hoyt, 30 N. Y. Supp. 406), and these 
 securities can no more be released or discharged to the prej- 
 udice of the attorney's lien than can the judgment itself. 
 (Ibid.). Where an attorney has recovered judgments for 
 clients, who subsequently make a general assignment for the 
 benefit of their creditors, and those judgments are sold by 
 the assignee for a sum smaller than the amount of the at- 
 torney's lien for costs, the amount thus realized is "the 
 proceeds" of the judgment within the meaning of section 
 66. {Matter of Gates, etc., 51 App. Div. 350). The lien 
 extends to the agreed compensation, or if no agreement has 
 been made, to the reasonable value of the services. {Croty 
 V. McKenzie, 42 Super, 192; Fox v. Fox, 24 How. Pr. 409, 
 Brovm v. Mayor, 9 Hun, 587 ; Marshall v. Meech, 51 N. Y. ; 
 140); but it does not cover amounts due for services in 
 other proceedings. {Matter of Wilson, 2 Civ. Proc. Rep. 
 343; Williams v. Ingersoll, 89 N. Y. 508, 517; Brovm v. 
 Mayor, 11 Hun, 21). An attorney has, it seems, a general 
 lien for moneys due him for services, on property of a cUent 
 in his hands. {Matter of Lorillard, 42 Hun, 545; Matter of 
 
 H , an Attorney, 87 N. Y. 521; Schwartz v. Jenny, 10 
 
 Wk. Dig. 67). It is not affected by the fact that the 
 cUent is an executor or trustee, or that the services were 
 rendered and the money received on behalf of an estate. 
 (Matter of Knapp, 85 N. Y. 284). The hen is an equitable 
 one, and is superior to that acquired by a subsequent 
 
48 PRACTICE. 
 
 attachment or judgment against the client. To the 
 extent of the lien the attorney is an equitable assignee 
 of the cause of action. {Harioood v. LaGrange, 137 N. 
 Y. 538). If the judgment was for costs only, no notice 
 of the lien was required at common law. {Marshall v, 
 Meech, 51 N. Y. 140). If the judgment was for dam- 
 ages and costs, or if the attorney claimed by way of 
 compensation a greater sum than the taxable costs 
 amounted to, it was doubtful whether notice of lien 
 was required to prevent a settlement to the prejudice 
 of the attorney. In the cases of Jenkins v. Adams (11 
 Weekly Dig. 630; 11 Hun, 600) ; Tullis v. Bunkle (3 
 Law. Bui. 62), and Marshall v. Meech (supra), it was 
 held that notice was required if the judgment was for 
 damages and costs. But, as the lien given by section 66 
 is an absolute one (Lansing v. Ensign, 62 How. Pr. 
 363), and is created by statute in all cases, the better 
 opinion would seem to be that no notice of it is re- 
 quired to be given to the opposite party, and so it has 
 been held in the latest cases. (Lewis v. Day, 10 Wk. 
 Dig. 49 ; Quinlan v. Birge, 43 Hun, 483 ; Coster v. Qreen- 
 point Ferry Co., 5 Civ. Proc. Rep. 146; affd. 98 N. Y. 
 660 ; Peri v. N. Y. G. & H. R. R. R. Go., 152 N. Y. 521, 
 527; Gasucci y. A. d E. R. R. Go., 65 Hun, 45). But 
 the existence of the lien does not prevent a settlement 
 between the parties and a release of the judgment, 
 which is made in good faith and without an intent 
 to defraud the attorney, or which does not have the 
 effect to defraud him. (Lee v. Vacuum Oil Go., 126 
 N. Y. 579; Poole v. Belcha, 131 N. Y. 200; Roberts 
 V. Doty, 31 Hun, 128; OUwell v. Verdenhalven, 17 
 Civ. Proc. Rep. 362). A judgment will not be kept 
 alive after the release between the parties, unless that 
 course is necessary for the protection of the attorney. 
 When such claim is made by the attorney, in order to 
 warrant the court in disregarding the settlement and 
 release, it must be shown that to give full effect to them, 
 will operate as a fraud upon the attorney, or at least 
 to his prejudice by depriving him of his costs, or turning 
 him over to an irresponsible client. (Poole v. Belcha, 
 131 N. Y. 200; Peri v. N. Y. C. d H. R. R. R. Go., 152 
 
THIO COURTS OP THE STATE OF NEW YORK. 49 
 
 N. Y. 221 ; Hart v. Mayor etc., 69 Hun, 237 ; afPd. 139 N. 
 Y. 610; National Exhih. Co. v. Grane, 167 N. Y. 505). 
 iWhen that has been made to appear, an order setting aside 
 the satisfaction of the judgment, may be properly made. 
 (Bailey v. Murphy, 136 N. Y. 50; Com'l Telegram Go. 
 V. Smith, 57 Hun, 176). An attorney cannot bring an 
 equitable action to enforce his inchoate right as an 
 attorney where there has been a fraudulent settlement. 
 {Randall v. VanWagenen, 115 N. Y. 527; Fischer-Han- 
 sen V. Brooklyn Heights R. R. Go., 63 App. Div. 356). 
 Nor can he proceed in the principal action itself after 
 a settlement between the parties, without leave of the 
 court {Goodard v. Trenhath, 24 Hun, 182; DimicJc v. 
 Cooley, 3 Civ. Proc. Rep. 141, 146 ; Quinlan v. Birge, 43 
 Hun, 483; Randall v. VanWagenen, 115 N. Y. 527, 532; 
 Leef V. Nassau Electric Go., 40 App. Div. 619), upon a 
 motion made in the name of the attorney and for his 
 benefit {Murray v. Jibson, 22 Hun, 386), and the court 
 will set aside or modify such a settlement only so far 
 as may be necessary to protect the rights of the attorney. 
 {Peri V. N. T. G. & H. R. R. R. Go., 152 N. Y. 521) . If 
 the defendant, in making the settlement, acted in good 
 faith, the attorney will be required before setting it aside 
 to endeavor to obtain payment from his client, unless 
 some reason is shoAvn why that cannot be done. {Quin- 
 lan V. Birge, supra). If leave to proceed in the action 
 is granted, it is the duty of the court to direct as to the 
 time and manner of the further prosecution of the action, 
 and to watch the proceedings and doings of the attorney, 
 so as to fully protect the rights of both parties, and not 
 unnecessarily to annoy or embarrass the defendant, 
 when he has acted in good faith {Quinlan v. Birge, 
 supra), and the settlement is not an admission of liabil- 
 ity. {Cosucci V. A. & K. R. R. Go., 65 Hun, 452). Where 
 there has been a settlement of a negligence case, by a pay- 
 ment to the plaintiff himself, without the knowledge of 
 the attorney for the plaintiff, who was to receive one- 
 third of the recovery, the attorney cannot recover of 
 the defendant one-third of the amount paid but must 
 prove the plaintiff's case. (Ibid.) If the parties have 
 agreed upon a settlement and notice of the lien is given, 
 
50 PRACTICE, 
 
 before it is carried into effect, the party paying will be 
 liable for the money in his hands, at the time of the 
 receipt of the notice. {Tullis v. Runlde, 3 Law. Bui. 62) . 
 The defendant should notify the plaintiff's attorney of 
 the intended settlement with the plaintiff, or protect 
 the rights of the attorney, or take the consequences of 
 the settlement without his knowledge. {Eberhart v. 
 Shuster, 10 Abb. New Cas. 374). In case there is a 
 settlement and an agreement by the defendant to pay the 
 plaintiff's attorneys the one-third they were to have by 
 contract with the plaintiff, the court cannot enforce 
 that agreement of the defendant by summary order. 
 The court, in such cases, will order that unless the 
 defendant carries out his agreement, the plaintiff's 
 attorneys shall have leave to continue the action for 
 the enforcement of their lien. {Harris v. Elliott, 19 
 App. Div. 60 ; PiUdngton v. Brooklyn Heights B. R. Co., 
 48 App. Div. 22) . The addition to section 66 of the Code 
 of Civil Procedure made by chapter 61 of the Laws of 
 1899, of the provision that "the court, upon the petition 
 of the client or attorney, may determine and enforce the 
 lien," does not empower the court to direct a defendant, 
 who has settled a case without the knowledge of the 
 plaintiff's attorney, to pay an amount fixed in such sum- 
 mary proceeding, to the plaintiff's attorney in satisfac- 
 tion of his lien. That amendment is confined to the 
 adjustment" of differences between attorney and client. 
 The defendant is entitled to have his day in court, so 
 the attorney must be given leave to prosecute the action 
 to enforce his lien, in case the defendant should not pay 
 a certain amount within a fixed time. {Rochfort v. Met. 
 St. Ry., 50 App. Div. 261). Even the consent of the 
 client and attorney does not give the court jurisdiction 
 to adjust, by summary proceedings, differences arising 
 out of any but professional relations. {Matter of 
 Langslow, 167 N. Y. 314). The attorney's lien being 
 regarded as an equitable assignment of the judgment for 
 costs, such a judgment in favor of one will not be set 
 off against a judgment recovered against him, by the 
 other party, to the prejudice of the attorney. {Ennis v. 
 Gurrey, 22 Hun, 584; Naylor v. Lane, 50 Super, 97; 
 
THE COURTS OF THE STATE OF NEW YORK. 51 
 
 'Moloughney v. Kavanagh, 3 Civ. Proc. Rep. 253). The 
 attorney may enforce his lien by supplementary proceed- 
 ings on the judgment (Russell v. SummerviUe, 10 Abb. 
 N. C. 395, note), or he may, without the consent of 
 his client, sue in the client's name on an undertaking 
 given on the appeal. (Shackelton v. Hart, 20 How. Pr. 
 39 ) . Where the judgment has been paid after execution 
 returned unsatisfied, the attorney can not enforce his 
 lien by supplementary proceedings, until the satisfac- 
 tion has been vacated. (Acker man v. Acker man, 14 
 Abb. Pr. 229 ; McKenzie v. Rhodes, 13 Abb. Pr. 337) . If 
 the amount of the compensation to be paid to the attor- 
 ney is in dispute, it can not be determined by the court 
 upon the motion made against the judgment debtor to 
 set aside the release, but the amount must be liquidated 
 in some proper proceeding against the client, who has 
 the right to be heard, and to have the amount estab- 
 lished against him by competent evidence. (Bailey v. 
 Murphy, 136 N. Y. 50;Harwood v. LaGrange, 137 N. Y. 
 538). The amount of the lien can be established in 
 summary proceedings under section 66 (as amended in 
 1899), instituted by the attorney against the client, 
 and in such a proceeding the court has power, either with 
 or without a reference, to fix the amount of the lien. 
 ( Matter of King, 168 N. Y. 53) . Counsel employed to try 
 a cause simply, has no lien under this section. (Phillips 
 V. Stagg, 2 Edw. Ch. 108; Brown v. Mayor, 9 Hun, 587). 
 An attorney has not a lien on alimony. ( 'Weill v. Weill, 
 3 Civ. Proc. Eep. 241; Branth v. Branth, 32 N. Y. St. 
 Rep. 979 ) . An attorney suing for the plaintiff in forma 
 pauperis can have no lien upon the costs. (Quinnan v. 
 Clapp, 10 Abb. N. 0. 394) . The attorney may, of course, 
 waive his lien. (Goodrich v. McDonald, 112 N. Y. 157). 
 But whenever costs are awarded in favor of one suing 
 or defending as a poor person, they must be paid over 
 to the attorney when collected, and distributed among 
 the attorney and counsel assigned to the poor person, as 
 the court directs. (Co. Oiv. Proc. § 467). If an attor- 
 ney subscribes a pleading containing scandalous matter 
 which is stricken out on the motion of the aggrieved 
 party, the costs of the motion may be directed to be 
 
52 PRACTICE. 
 
 paid by the attorney. (Co. Civ. Proc. § 545). His 
 failure to pay such costs may be punislied as a con- 
 tempt. (Ibid.). An attorney or counselor-at-law shall 
 not be allowed to disclose a communication made by 
 his client to him, or his advice given thereon, in the 
 course of his professional employment. ( Co. Civ. Proc. 
 § 835). The privilege is that of the client, {Hoyt v. 
 Jackson, 3 Den. 388) ; when the client is dead, there- 
 fore, the attorney's mouth is closed. {Butler v. Fayer- 
 toeather, 91 Fed. Rep. 458). While the contract rela- 
 tion of attorney and client must exist (Benihan v. 
 Dennin, 103 N. Y. 573, 579), the communication is 
 privileged, although no compensation is to be paid for 
 the attorney's services. {March v. Ludlum, 3 Sand. Ch. 
 38 ) . Counsel, as well as attorneys, are included within 
 the prohibition. {Loveridge Y.Hill, 96 N. Y. 222) . The 
 lawyer must be acting as the attorney, not as a notary, 
 {Mut. Life Ins. Co. v. Carey, 54 Hun, 493; Shufelt v. 
 Watrous, 16 Wk. Dig. 198) ; nor as a mutual friend 
 ( Eaulenbeek v. McGibbon, 60 Hun, 26) ; nor as a general 
 agent {Bank v. Suydam, 5 How. Pr. 254). When the 
 attorney is a subscribing witness to a will, he may testify 
 as to its preparation and execution. (Co. Civ. Proc. 
 § 836). Where an attorney, who drew a will, is em- 
 ployed to contest it, there is no privilege. {Sheridan v. 
 Houghton, 16 Hun, 628; affd. on another point, 84 
 N. Y. 643). Communications made by a client to an 
 attorney to enable him to draw a complaint are privi- 
 leged {Armstrong v. People, 10 N. Y. 38) ; or to the clerk 
 of the attorney {Sibley y. Waffle, 16 N. Y. 180). In- 
 structions given by a client to his attorney for the 
 preparation of bankruptcy papers are privileged. 
 {Lockioood V. House, 49 N. Y. Super. 500; affd. 101 N. 
 Y. 647). A communication to an attorney, in reference 
 to his client's personal estate, made upon retaining him 
 to draw an affidavit for the purpose of procuring a 
 reduction of an assessment on such estate is privileged. 
 {Williams v. Fitch, 18 N. Y. 546). Instructions of the 
 client to the attorney for the draft of a will are privi- 
 leged {Matter of Coleman, 111 N. Y. 220; Loder v. 
 Whelpley, 111 N. Y. 239; In re O'Neil, 26 N. Y. 
 
THE COURTS OF THE STATE OP NEW YORK. 53 
 
 St. Rep. 242) ; so also conversations relating to a codicil 
 not executed (Pearsall v. Elmer, 5 Redf. 181), or 
 executed and destroyed. ( Butler v. Fayerioeather, 
 91 Fed. Rep. 458). Communications to an attorney by 
 his client with reference to the draft of a deed are 
 privileged. {Barry v. Goville, 53 Hun, 620 ; afEd. 129 N. 
 Y. 302). If the communications and directions for 
 drawing the deed are from both parties there is no 
 privilege. {Hebard v. Haughian, 70 N. Y. 54). Belief 
 in an attorney's mind, formed from information obtained 
 from his client is inadmissible. {Eastman v. Kelly, 16 K 
 Y. St. Rep, 894). Advice of the corporation counsel to 
 a board of assessors is privileged. {Peo. ex rel Updyke 
 V. G-illon, 18 Civ. Proc. Rep. 109). Communications by 
 the client to his attorney as to the disposition of prop- 
 erty, even if such disposition is in defraud of creditors, 
 are privileged. {The Bank of Utica v. Mersereau, 3 
 Barb. Chanc. 528, 593-600). The privilege is not con- 
 fined to cases where the client is a party, but extends to 
 all persons between whom the relation exists ( Goddard 
 v. France & Bates, 19 Law. Rep. 218) ; though the state- 
 ments do not relate to any litigation, commenced or 
 anticipated. {Yates v. Olmsted, 56 N. Y. 632). A' 
 simple consultation between lawyer and client although 
 no fee is paid, or no suit was pending, is privileged 
 {Bacon v. Frisbie, 80 N. Y. 394), and even though the 
 lawyer disclaims that he was acting in a professional 
 capacity. ( Id. ) . Where an attorney has acquired knowl- 
 edge of a malum in se through professional relations 
 with his client, such communications are not privileged. 
 {Bk. of Utica v. Mersereau, 3 Barb. Chanc. 528, 598-600, 
 semhle; Peo. v. Plakeley, 4 Parker's Cr. C. 176). A 
 direction given by a client to his attorney, to employ 
 an accountant is not privileged. {Martin v. Piatt, 51 
 Hun, 429). An attorney may testify to the place where 
 a deed, prepared by him for his client, was executed by 
 the client {Mutual L. I. Go. v. Gorey, 54 Hun, 493; 
 reversed on another point in 135 N. Y. 326) ; or to the 
 delivery of the deed {Rosenhurg v. Bosenburg, 40 Hun, 
 91) ; or, generally, as to the facts of delivery and execu- 
 tion. {Shattman v. American Credit Indemnity Go., 
 
54 PRACTICE. 
 
 34 App. Div. 392). An attorney may testify as to the 
 handwriting of a former client. {Holthausen v. Pondir, 
 
 55 N. Y. Super. Kep. 73; affd. without opinion, 120 
 N. Y. 622). He may also testify as to the fact of his 
 employment. {Hampton v. Boylan, 46 Hun, 151). 
 When the communication is made in the presence of 
 another person or where two or more persons consult 
 an attorney for their mutual benefit, there is no privi- 
 lege. {Covencij v. Tannahill, 1 Hill, 33; WJdting v. Bar- 
 ney, 30 N. Y. 330; Hurlhitrt v. Hurlhurt, 128 N. Y. 420; 
 Peo. V. Buchanan, 145 N. Y. 1; Dolieny v. Lacy, 42 App. 
 Div. 218). Where, however, parties having diverse or 
 hostile interests, or claims, submit the matter to a 
 common attorney for his advice, the communication is 
 privileged. (Root v. Wright, 84 N. Y. 72) . An attorney 
 must testify concerning a contract made with his client, 
 when asked concerning it. {Foster v. Wilkinson, 37 Hun, 
 242 ) . In case the client refers a person to the attorney, 
 for the purpose of having him make a statement of the 
 client's position with reference to a certain matter 
 communicated by the client to the attorney, there is 
 no privilege { Galle v. Tode, 74 Hun, 542 ; affd. on other 
 points, 148 N. Y. 270) ; or where the statement is made 
 by the client with an intent that it should be imparted 
 to another. {Collins y. Rohinson, 72 Biun, A95). Com- 
 munications made after the cessation of the relation of 
 attorney and client are not privileged. {Pea. v. Hess, 
 8 App. Div. 143). 
 
THE COURTS OF THE STATE OF NEW YORK. 55 
 
 AKTICLE II. 
 
 THE JURISDICTION OF THE COURTS. 
 
 SECTION. 
 
 1. Their Jurisdiction generally. 
 
 2. The Court of Appeals. 
 
 3. The Supreme Court. 
 
 4. Courts which have been abolished. 
 
 5. The City Court of the City of New York. 
 
 6. The County Courts. 
 
 7. Power of Judges out of Court. 
 
 Sec. 1. Their Jurisdiction Generally. 
 
 Speaking generally, it may be said that the courts of 
 the state have jurisdiction to redress every wrong suf- 
 fered by any citizen, and to enforce every right belong- 
 ing to him, either existing at common law, or arising by 
 statute (Delafield v. Illinois, 2 Hill, 159; 26 Wend. 192; 
 Teall V. Felton, 1 N. Y. 537 ; Cook v. Whipple, 55 N. Y. 
 150), whether of this state, or of the United States 
 (Robinson, v. Xational Bank of Ncn^hciiie, 81 N. Y. 335, 
 391; Claflin v. Houseman, 93 U. S. 136), or of any other 
 state. {Leonard v. Columhia Steam Nav. Co., 81 N. Y. 
 48). But this general jurisdiction cannot be exercised 
 over persons or property not within the territorial limits 
 of the state, and it is restricted in some respects, by the 
 constitution and laws of the United States. There are 
 two classes of cases, arising under the constitution and 
 laws of the United States, in which the jurisdiction of 
 the courts of the United States may justly be regarded as 
 exclusive; the first being, where the jurisdiction is made 
 exclusive, by the express terms, or by the necessary 
 construction, of the provisions of the United States 
 constitution; the second, where an act of congress con- 
 fers a jurisdiction that, before its passage, could not 
 have been exercised at all, that is, when the act not mere- 
 ly confers, but creates the jurisdiction. (Woolseij v. 
 Judd, 4 Duer, 379, 382; Kidder v. HorroUn, 72 N. Y. 159, 
 165) . But the jurisdiction granted by the national con- 
 stitution, is not exclusive, unless it is made so in terms, 
 or prohibited to the states or incompatible with the exer- 
 cise of concurrent jurisdiction. {People v. Welch, 141 
 
56 PRACTICE. 
 
 N. Y. 266). The intention to deprive the courts of the 
 state of jurisdiction, is never presumed, nor will the 
 words of any statute be extended beyond the strict mean- 
 ing, to accomplish that result. To do that, the intention 
 of congress must be distinctly manifested, and the legis- 
 lation relied upon must be clear and unambiguous. No 
 presumption that the jurisdiction of the state courts is 
 excluded, arises from the mere fact that congress has 
 legislated ; there must be express words of exclusion, or a 
 manifest repugnancy in the exercise of the state author- 
 ity over the subject. {People v. Welch, 141 N. Y. 266; 
 Kidder v. Horrobin, 72 N. Y. 159). The courts of the 
 state have jurisdiction of an action brought by the 
 United States {United States v. Dodge, 14 Johns. 95; 
 United States v. Graff, 4 Hun, 634), or in an action 
 against them, where they appear. {Jolmston v. Stimmel, 
 89 N. Y. 117). A foreign government may sue in the 
 courts of the state. {Republic of Mexico v. De Arran- 
 gois, 5 Duer, 634; Same v. Ockenshausen, 37 Hun, 533). 
 So may another state. {Michigan v. Phoenix Bank, 33 
 N. Y. 9;Delafield v. Illinois, 2 Hill, 159). The courts of 
 the state have jurisdiction of all actions, legal or equita- 
 ble, brought by the assignee in bankruptcy to recover the 
 estate of the bankrupt, or to determine the rights of 
 property, claimed by him as such assignee, or in any way 
 affecting the same. {Cook v. Whipple, 55 N. Y. 150; 
 Kidder v. Horrobin, 72 N. Y. 159; Olcott v. McLean, 73 
 N. Y. 223; Ansley v. Patterson, 77 N. Y. 156; Piatt v. 
 Jones, 96 N. Y. 24). They also have jurisdiction in ac- 
 tions by and against national banks {Cook v. State Na- 
 tional Bank, 52 N. Y. 96; Brinckerhoff v. Bostwick, 88 
 N. Y. 52 ) , although they may be located in another state. 
 {Robinson v. The National Bank of Newberne, 81 N. Y. 
 385). They also have jurisdiction of an action brought 
 by the receiver of a national bank of another state, to re- 
 cover the amount of an assessment upon the stockhold- 
 ers. {Peters v. Foster, 56 Hun, 607) . The courts of this 
 state have jurisdiction in actions for tort or on contract, 
 although they arose outside of the state. {Home Ins. Go. 
 V. Penn. R. R. Go., 11 Hun, 182 ; Lister v. Wright, 2 Hill, 
 320; Burdick v. Freeman, 120 N. Y. 420). They have 
 
THE COURTS OF THE STATE OF NEW YORK. 57 
 
 this jurisdiction, although both parties resided in an- 
 other state, when the wrong was committed and when 
 tlie action was commenced. (Burdick v. Freeman, 
 supra). But unless special reasons are shown, the 
 courts will not retain jurisdiction of such an action of 
 tort. {Ferguson v. Neilson, 33 St. Kep. 814; 11 Supp. 
 525). The recent case of Wertheim v. Clergue (53 App. 
 Div. 122) has made a distinction between actions 
 founded on different torts. In actions based on purely 
 personal wrongs jurisdiction will not be retained, while 
 in causes founded on a tort arising out of commercial 
 transactions the courts will not be closed to non-resi- 
 dents. The particular tort in the Wertheim case was 
 deceit. The refusal of a court, in such cases, to entertain 
 jurisdiction between non-residents for a tort, committed 
 out of the state, does not depend upon the motion of the 
 parties, but it is entirely in the discretion of the court, 
 whether it will retain jurisdiction of a cause already 
 begun. {Winchester v. Browne, 37 St. Eep. 542; 13 
 Supp. 655; Burdick v. Freeman, supra). The courts of 
 this state will not refuse, however, to entertain jurisdic- 
 tion of a cause of action arising out of contract. ( Smith 
 V. Crocker, 14 App. Div. 245; affd. without op., 162 N. 
 Y. 600; Furhush v. Nye, 17 App. Div. 325; Belden v. 
 Wilkinson, 44 App. Div. 420). An action for specific 
 performance of a contract, made in this state, to convey 
 lands in another state, or in a foreign country, may be 
 maintained in the courts of this state. {Ward v. Arre- 
 dondo, Hopk. Chan., 213 ; Gardner v. Ogden, 22 N. Y. 
 327). 
 
 But the courts of this state have no jurisdiction of 
 actions against the United States ( U. 8. v Lee, 106 U. S. 
 196, 207), nor against the state, unless by express statute 
 {People V. Dennison, 84 N. Y. 272), nor against the sov- 
 ereign of a foreign state {Hatch v. Baez, 7 Hun, 596; 
 Duke of Brunswick v. The King of Hanover, 2 House of 
 Lords Cases, 1 ) , nor against the ministers or consuls of 
 a foreign state. (U. S. R. S. § 687; Valerino v. Thomp- 
 son, 7 N. Y. 676 ; Bock Biv. Bank v. Hoffman, 14 Abb. 
 Pr. 72) . An action can not be maintained in the courts 
 of the state, to restrain the refringement of a patent 
 
58 PRACTICE. 
 
 {Dudley v. Mayheio, 3 N. Y. 9; Denise v. Swett, 142 N. 
 Y. 602) , nor to restrain the infringement of a trade mark 
 upon a patented article. {Wilcox & Gihhs Setoing Macli. 
 Co., V. Kruse & Murphy Mfg. Co., 3 St. Rep. 590). But 
 the jurisdiction of the state courts in actions on contract, 
 is not limited because of the fact that the subject of the 
 jurisdiction is a patented article. The interpretation of 
 the contract, the effect to be given to its various parts, 
 and even the right to the patent, may be the subject of 
 consideration, within the courts of the state, while any 
 interference beyond this is in contravention of the gen- 
 eral rule, that in such an action the jurisdiction rests ex- 
 clusively within the courts of the United States. ( Con- 
 tinental Store Service Co., v. Clark, 100 N. Y. 365). 
 Within the rule laid down in this case, it has been held 
 that an action may be maintained in the courts of this 
 state to recover royalties which one has agreed to pay to 
 the patentee of an article {Hyatt v. Ingalls, 124 N. Y. 
 93 ) , or to compel the assignment of a patent taken out 
 by an employe in his own name, in violation of the terms 
 of his employment, according to which the invention was 
 to be the property of the employer. {Ann in v. Wren, 44 
 Hun, 352 ) . So the courts of this state may decide ques- 
 tions as to the title to letters patent, granted by the 
 United States, where no question is made as to the valid- 
 ity of the patent. {Continental Store Service Co., v. 
 Clark, supra ) . No action can be maintained in this state 
 to recover lands out of this state, nor for any waste or 
 trespass upon such lands. {Watts v. Kinney, 23 Wend. 
 484; A?»,. Un. Tel. Co., v. Middleton, 80 N. Y. 408; Cragin 
 V. Lovell, 88 N. Y. 258; Dodge v. Colby, 108 N. Y. 445). 
 But where the parties have agreed that an action for 
 partition of lands, situate in another state, may be 
 brought in this state, and that they will consent to the 
 jurisdiction, and will execute deeds in accordance with 
 the judgment, such an action may be maintained. 
 {Bowers v. Durant, 43 Hun, 348; 104 N. Y. 661). So, 
 although the state has ceded political jurisdiction to the 
 United States, of lands within the boundaries of this 
 state, the state courts still retain jurisdiction over such 
 lands, and of wrongs committed upon them. {Barrett 
 
THE COURTS OF THE STATE OF NEW YORK. 59 
 
 V. Palmer, 135 N. Y. 336). The courts of New York 
 state have no jurisdiction or control of the business of a 
 foreign corporation, nor can they interfere with its fran- 
 chise. {Chase v. Vanderhilt, 37 Super. 334; Merrick y. 
 Van Santvoorcl, 34 N. Y. 208). The supreme court, 
 being' a court of general jurisdiction, could independ- 
 ently of any statute, entertain actions against foreign 
 corporations, although brought by a non-resident, for a 
 cause of action which arose without the state, if the de- 
 fendant appeared generally in the action, and submitted 
 itself to the jurisdiction of the court. {McCormick v. 
 Penn. R. R. Co., 49 N. Y. 303) . But since the enactment 
 of section 1780, of the Code of Civil Procedure, the courts 
 of this state have jurisdiction of an action by a non-resi- 
 dent plaintiff, against a foreign corporation, only in the 
 cases therein specified, and not at all for a cause of ac- 
 tion which arose outside of the state. (Robinson v. 
 Oceanic Steam Nav. Co., 112 N. Y. 315). A resident of 
 the state, however, or a domestic corporation, can main- 
 tain an action in the courts of this state, against a for- 
 eign corporation, for any cause of action (Id.), and a 
 foreign corporation may maintain any action against a 
 non-resident within the courts of this state, which any 
 other person may maintain. (Colorado Si. Bk. v. Oal- 
 lagher, 76 Hun, 310 ) . An action cannot be maintained 
 in them, to enforce the penal laAVS of another state ( /S'co- 
 ville V. Can-field, 14 Johns. 338 ; Bird v. Hai/den , 2 Abb. 
 N. S. 61; Winter v. Baker, 50 Barb. 432), nor of the 
 United States. (['. 8. v. Lathrop, 17 Johns. 4). It is 
 doubtful whether they have authority to release, upon 
 habeas corpus, a soldier enlisted in the United States 
 army; but the better opinion is, that such jurisdiction is 
 concurrent with the courts of the United States, unless 
 congress has prohibited the state courts from exercising 
 it. (Matter of Barrett, 42 Barb. 479 ; Matter of Hopson, 
 40 Barb. 34=; Matter of O'Connor, 48 Barb. 258; 1 Kent's 
 Com. 400-401 ) . The courts of this state have no jurisdic- 
 tion against a non-resident on a money demand, unless 
 upon personal service within the state, or voluntary ap- 
 pearance, but a judgment is valid against property at- 
 tached within the state, in an action against a non-resi- 
 
60 PRACTICE. 
 
 dent, and substituted service, pursuant to the laws of the 
 state, is sufficient to sustain such a judgment. {Pennoyer 
 V. Isfef, 95 U. S. 714; Bartlett v. Spicer, 75 N. Y. 528). 
 it has been lield that ejectment cannot be maintained 
 against a person claiming to hold land by authority of 
 the United States, as an officer or agent of the general 
 government {People v. AmbrecM, 11 Abb. Pr. 97), but 
 this holding is adverse to the case of the United States 
 V. Lee (106 U. S. 196), which holds that a person, claim- 
 ing to be the owner of land, may maintain an ^.ction in 
 any court of competent jurisdiction, against a person in 
 possession as an officer or agent of the United States, 
 and the lawfulness of that possession, and the right or 
 title of the United States, may be the subject matter of 
 inquiry, and may be adjudged. This jurisdiction, vested 
 in the courts of the state, is, however, divided among the 
 several courts, and each court exercises the jurisdiction 
 and power, which may be vested in it by law, according 
 to its course and practice. (Co. Civ. Proc. § 4). 
 
 Sec. 2. Court of Appeals. 
 
 The court of appeals is established by the constitution, 
 article 6, section 7, and is composed of a chief judge and 
 six associate judges, five of whom are a quorum, and the 
 concurrence of four is necessary to a decision. When- 
 ever, and as often as, a majority of the judges of the 
 court shall certify to the governor that the court is un- 
 able to hear and dispose of causes pending there with 
 reasonable speed, on account of accumulation, the gov- 
 ernor shall designate not more than four justices of the 
 supreme court to serve as associate judges. Those justices 
 are relieved of their duties as supreme court justices and 
 sit as associate judges until the number of causes undis- 
 posed of on the court of appeals calendar is reduced to 
 two hundred. No more than seven judges shall sit in any 
 case. It has no original, but only appellate jurisdiction. 
 Before the amendments to the constitution of 1894, the 
 jurisdiction of the court of appeals was established solely 
 by acts of the legislature. As fixed by those acts, ap- 
 peals lay to that court, not only from final judgments in 
 actions, and final orders in supplementary proceedings, 
 but from a large number of orders made during the 
 
THE COURTS OP THE STATE OP NEW YORK. 61 
 
 progress of an action, or a special proceeding, and also 
 from interlocutory judgments. It was enacted also by 
 the legislature that no appeal could be taken to the court 
 of appeals, if the matter in controversy, excluding costs, 
 was less than five hundred dollars, except in an action 
 or special proceeding affecting the title to real property ; 
 unless the court below, by order, permitted such an ap- 
 peal to be taken. The amendment of 1894, however, pro- 
 vided that, except where the judgment was of death, the 
 jurisdiction of the court of appeals shall be limited to 
 the review of questions of law (Constitution, Art. 6, § 9) . 
 It also provided further that no unanimous decision of 
 the appellate division that there is evidence supporting 
 or tending to sustain a finding of fact, or a verdict not 
 directed by the court, shall be reviewed by the court of 
 appeals. The right of appeal was further defined. The 
 amendment provided that, except where the judgment is 
 of death, appeals may be taken, as of right, to said court 
 only from judgments or orders entered upon decisions of 
 the appellate division, finally determining actions or 
 special proceedings and from orders granting new trials 
 on exceptions, where the appellants stipulate that upon 
 affirmance judgment absolute shall be rendered against 
 them. The appellate division is given the power to allow 
 appeals upon questions of law. After defining the juris- 
 diction of the court of appeals in this general way, the 
 legislature is given the power to further restrict that 
 jurisdiction and the right of appeal to that court; the 
 right of appeal, however, shall not depend upon the 
 amount involved. (Const. Art. 6, § 9). In accord- 
 ance with the provisions of that constitution, the legis- 
 lature has enacted that from and after the last day of 
 December, eighteen hundred and ninety-five, the juris- 
 diction of the court of appeals shall, in civil actions and 
 proceedings, be confined to the review upon appeal of the 
 actual determination made by the appellate division of 
 the supreme court in either of the following cases, and 
 no others : 
 
 1. Appeals may be taken as of right to said court, 
 from judgments or orders finally determining actions or 
 special proceedings, and from orders granting new trials 
 
62 PRACTICE. 
 
 on exceptions, \Yhere the appellants stipulate that upon 
 affirmance, judgment absolute shall be rendered against 
 them. 
 
 2. Appeals may also be taken from determinations 
 of the appellate division of the supreme court in any de- 
 partment where the appellate division allows the same, 
 and certifies that one or more questions of law have 
 arisen which, in its opinion, ought to be reviewed by the 
 court of appeals, in which case the appeal brings up for 
 review the question or questions so certified, and no 
 other ; and the court of appeals shall certify to the appel- 
 late division its determination upon such questions. (Co. 
 Civ. Proc. § 190). The jurisdiction conferred by 
 the last section, is subject to the following limitations, 
 exceptions and conditions : 
 
 1. No appeal shall be taken to said court, in any civil 
 action or proceeding commenced in any court other than 
 the supreme court, court of claims, county court or a 
 surrogate's court, unless the appellate division of the 
 supreme court allows the appeal by an order made at the 
 term which rendered the determination, or at the next 
 term after judgment is entered thereupon, and shall cer- 
 tify that in its opinion a question of law is involved 
 which ought to be reviewed by the court of appeals. 
 
 2. No appeal shall be taken to said court from a judg- 
 ment of affirmance hereafter rendered in an action to 
 recover damages for a personal injury, or to recover 
 damages for injuries resulting in death, or in an action 
 to set aside a judgment, sale, transfer, conveyance, as- 
 signment or written instrument, as in fraud of the rights 
 of creditors, or in an action to recover wages, salary, or 
 compensation for services, including expenses incidental 
 thereto, or damages for breach of any contract therefor, 
 or in an action upon an individual bond or individual 
 undertaking upon appeal, when the decision of the appel- 
 late division of the supreme court is unanimous, unless 
 such appellate division shall certify that in its opinion 
 a question of law is involved which ought to be reviewed 
 by the court of appeals, or unless in case of its refusal to 
 so certify, an appeal is allowed by a judge of the court 
 of appeals. 
 
THE COURTS OP THE STATE OF NEW YOKK. 63 
 
 3. The jurisdiction of the court is limited to the re- 
 view of questions of law. 
 
 4. No unanimous decision of the appellate division 
 of the supreme court that there is evidence supporting 
 or tending to sustain a finding of fact or a verdict not 
 directed by the court, shall be reviewed by the court of 
 appeals. (Co. Civ. Proc. § 191). 
 
 The subject of the jurisdiction of the court of appeals 
 is more fully dealt with in the second volume of this 
 work. 
 
 Sec. 3. The Supreme Court. 
 
 This court was created by an act of the colonial assem- 
 bly passed in 1691, which continued for but two years. 
 In 1692, it was extended for one year longer, and by suc- 
 cessive re-enactments of one or two years each, until 
 1698. After that time, owing to a disagreement between 
 the colonial assembly and the governor, an act passed for 
 its continuance failed to become a law, and on the 15th 
 of May, 1699, the then governor published an ordinance, 
 re-establishing all the courts as they had existed under 
 the mandatory act of 1692. There was no subsequent 
 act of the colonial assembly, establishing this court, but 
 it was recognized as existing by the first constitution 
 of the state, which was adopted on the 20th of April, 
 1777. The present supreme court was established by the 
 constitution of 1846, and its organization was largely 
 changed by the amendments which were adopted by the 
 vote of the people in 1894, and which took effect as to 
 the supreme court, on the 1st of January, 1896. By that 
 constitution, the state is divided into eight judicial dis- 
 tricts and the court consists of seventy-six justices, a 
 certain number of whom are elected in each district. 
 Among these seventy-six justices are those who were for- 
 merly judges of the superior court of the city of New 
 York; the court of common pleas for the city and county 
 of New York ; the superior court of Buffalo, and the city 
 court of Brooklyn. These justices are justices of the su- 
 preme court for the remainder of the terms for which 
 they were elected, but they have authority to sit as such 
 only in the counties in which they were elected. Their 
 
 6 
 
64 PRACTICE. 
 
 successors, however, are to be elected as justices of the 
 supreme court, by the electors of the judicial district in 
 which they reside. ( Const. Art. 6, § 1 ) . By an amend- 
 ment to article 6 of the constitution (§ 24), adopted 
 in 1900, this number of justices was increased by seven — 
 four in the fii'st judicial district, and three in the second. 
 The state is divided into four judicial departments, in 
 each of which there is an appellate division of the su- 
 preme court. The judges of the appellate division are 
 selected by the governor, from the justices elected to the 
 supreme court. In the first department, which is com- 
 posed of the county of New York, the appellate division 
 consists of a presiding justice and six associate justices. 
 In each of the other departments the appellate division 
 consists of a presiding justice and four associate justices. 
 Pour judges constitute a quorum, and the concurrence of 
 three shall be necessary to a decision. No more than 
 five justices can sit in any department in any case. 
 (Const. Art. 6, § 2) . The presiding justice and a major- 
 ity of the justices designated to sit in the appellate 
 division in each department shall be residents of the de- 
 partment. (Const. Art. 6, § 2). Whenever the appel- 
 late division in any department shall be unable to dis- 
 pose of its business within a reasonable time, a majority 
 of the presiding justices, at a meeting called by the pre- 
 siding justice of the department in arrears, may transfer 
 any pending appeals from such department to any other 
 department for hearing and determination. (Ibid.). 
 This power has been exercised several times by the trans- 
 fer of causes from the first to the second department. No 
 justice of the appellate division shall exercise any of the 
 powers of a justice of the supreme court other than those 
 of a justice out of court, and those pertaining to the 
 appellate division, or to the hearing and decision of mo- 
 tions submitted by consent of counsel. Under this inhi- 
 bition an appellate division justice cannot receive a ver- 
 dict of a jury at a trial term of the supreme court, even 
 though counsel consent to such a course. (French v. 
 ■MerriJ, 27 App. Div. 612; appeal dismissed, 157 N. Y. 
 704) . Any other justice of the supreme court has power 
 to hold a trial term or special term of the supreme court, 
 
THE COURTS OP THE STATE OF NEW YORK. tJO 
 
 for the whole oi* any portion of the term, and to act upon 
 any business which regularly comes before the term in 
 which he is sitting, except where he is personally dis- 
 qualified from sitting in a particular action or special 
 proceeding. (Co. Civ. Proc. § 235). A justice of the 
 supreme court not assigned to the appellate division has 
 jurisdiction to hold a trial or special term in a depart- 
 ment other than that in which he was elected. (People 
 V. Herniian, 149 N. Y. IdO; People v. Piistolka, 149 N. Y. 
 570). The court whether sitting in the appellate divi- 
 sion or at the trial or special term, is one court and 
 the clerks and officers of record all belong to the same 
 court {Salmon v. Oedney, 75 N. Y. 479), and the juris- 
 diction of the court may be exercised, either at a term of 
 the appellate division, or at a trial or special term, unless 
 there is some statute expressly restricting the manner 
 of its exercise. The appellate divisions are not courts 
 of record distinct from the supreme court, but are a con- 
 tinuance of the former general terms, exercising the 
 same appellate jurisdiction. {Matter of Pye, 21 App. 
 Div. 266). The court at a term held by one judge, may 
 hear all questions that may come before the appellate 
 division, except upon appeal {People v. Nichols, 79 N. Y. 
 582; flatter of Canal and Walker Street, 12 N. Y. 406), 
 and the appellate division, except as limited by statute, 
 has all the power and jurisdiction of the court. {Syra- 
 cuse Sav. Bk. V. S. C. & N. Y. R. R. Co., 88 N. Y. 110). 
 A justice holding court in any part of the state may 
 make an order of the supreme court in any action, no 
 matter where the venue is laid, unless the order is one 
 required to be made upon notice, except in certain cases, 
 regulated by special statutes. {People ex rel. Post v. 
 Orant, 50 Hun, 243 ) . The appellate division of the su- 
 preme court has not only the jurisdiction which was exer- 
 cised by the former general terms of that court, but in 
 addition, the jurisdiction which belonged to the superior 
 ,city courts, so called. (Const, Art. 6, § 2; Co. Civ. Proc. 
 § 220). The constitution provides that the supreme 
 court shall have general jurisdiction in law and equity, 
 subject to such appellate jurisdiction of the court of 
 appeals, as now is or may be prescribed by law. (Art. 6„ 
 
66 
 
 PRACTICE. 
 
 § 1). This jurisdiction, given by the constitution, can- 
 not be limited by the legislature {People v. Nichols, 79 
 N. Y. 582; Hart v. Hart, 3 Hun, 375), and the court, or 
 the justices of the court ai-e bound to exercise it, when 
 called upon in proper form. {Alexander v. Bennett, 60 
 N. Y. 204). The statute provides that the general juris- 
 diction in law and equity, which the supreme court of the 
 state possesses, under the provisions of the constitution, 
 includes all the jurisdiction which was possessed and 
 exercised by the supreme court of the colony of New 
 York, at any time, and by the court of chancery in Eng- 
 land, on the 4th day of July, 1776, with the exceptions, 
 conditions and limitations, created and imposed by the 
 constitution, and laws of the state; subject to those ex- 
 ceptions and limitations, the supreme court of the state 
 has all the powers and authority of each of those courts, 
 and exercises the same in like manner. (Co. Civ. Proc. 
 § 217). The jurisdiction of the supreme court of the 
 colony, as defined by the act of the colonial assembly, and 
 by various ordinances of the governor and council, ex- 
 tended to all pleas and causes, civil, criminal and mixed, 
 with the like power as the court of king's bench, and 
 common pleas, and exchequer of England. (2 Revised 
 Laws, 1813, appendix 5 and 6; Graham's Pr. 1; Kanouse 
 V. Martin, 3 Sanf. S. C. 653). All this jurisdiction, as it 
 existed in 1846, is vested in the present supreme court. 
 It also has succeeded to all of the jurisdiction of the 
 court of chancery, as it existed in 1846. {Sherman v. 
 Felt, 2 N. Y. 186). The equity jurisdiction thus vested 
 in it, includes all cases, which may be properly compre- 
 hended within established and existing equitable prin- 
 ciples. {Youngs v. Carter, 10 Hun, 194). The rule of 
 the court of chancery, by which that court refused to 
 take jurisdiction where the amount involved was less 
 than a hundred dollars, no longer exists. {Marsh v. 
 Benson, 34 N. Y. 358). The court has general super- 
 vision over inferior tribunals, and persons acting judi- 
 cially {LeRoy v. The Mayor, 20 Johns. 429; People v. 
 Nichols, 79 N. Y. 582, 589) ; over trusts and trustees 
 ( People V. Norton, 9 N. Y. 176 ; 2 Rev. Stat. 9 Ed. 1802) ; 
 of the person and estates of lunatics, infants and habit- 
 
THE COURTS OF THE STATE OF NEW YORK. 67 
 
 ual drunkards (Co. Civ. Proc. §§ 2320, 2345, 2348; Wil- 
 cox V. Wilcox, 14 N. Y. 575; Matter of Huhhard, 82 N. 
 Y. 90) ; to permit the sale, mortgage or leasing for more 
 than three years of the real estate of any membership 
 corporation (Membership Corporation Law, § 13) ; or 
 of any religious corporation {Madison Av. Bap. Ch. v. 
 Bap. Ch. in Oliver St., 46 N. Y. 131, 137; Religious Cor- 
 poration Law, § 11) ; over corporations, and their di- 
 rectors, managers or trustees (Co. Civ. Proc. § 1781, 
 1785, 1798) ; upon petition for the voluntary dissolution 
 of corporations (Co. Civ. Proc. § 2419) ; to enforce the 
 remedies of stockholders of banking corporations ( Bank- 
 ing Law, §§ 33, 36) ; and to review proceedings had at 
 the election of officers of corporations (Gen. Corpora- 
 tion Law, § 27) ; to correct errors in the determinations 
 of county canvassers (Election Law, § 133) ; to review 
 illegal, or erroneous, or unequal assessments (Laws of 
 1880, Chap. 269) ; of claims against the estates of de- 
 ceased persons (Co. Civ. Proc, § 2718) ; of all proceed- 
 ings for the collection of demands against ships or ves- 
 sels (3 R. S. 9th Ed., 2196 et seq) ; to enforce penalties 
 and forfeitures to the people of the state ( Co. Civ. Proc. 
 § 1962) ; of all proceedings under the general assignment 
 act (Laws of 1885, Chap. 380) ; of the following writs: 
 habeas corpus to bring up persons to testify or answer ; 
 habeas corpus or certiorari to inquire into the cause of 
 detention; mandamus; prohibition; the writ of assess- 
 ment of damages ; and the writ of certiorari ; which are 
 now called state writs. (Co. Civ. Proc. §§ 1991, 2017, 
 2067, 2091,2103,2104,2120). The supreme court also 
 has power to make an order directing that an issue of 
 fact, in an action pending in any other court of record 
 except the city court of the city of New York, or a county 
 court, be tried at a term of the supreme court in another 
 county. (Co. Civ. Proc. § 218). It also has power to 
 remove to itself an action brought and pending in the 
 city court of the city of New York, or in any county 
 court, for the purpose of changing the place of trial 
 thereof. (Co. Civ. Proc. §§ 319, 342, 343). The court 
 is always open for the transaction of such equity busi- 
 ness as might be done by the chancellor out of term. 
 
68 PRACTICE. 
 
 ( Wilcox V. Wilcox, 14 N. Y. 575 ; Matter of Bookhout, 21 
 Barb. 348). 
 
 Sec. 4. Courts Which Have Been Abolished. 
 
 By section 12 of article 6 of the constitution adopted 
 in 1869; there were recognized as existing, the superior 
 court of the city of New York, the court of common pleas 
 of the city and county of New York, the superior court 
 of Buffalo, and the city court of Brooklyn, and those 
 courts, speaking generally, had, within the limits of 
 their respective cities and counties, the same general 
 jurisdiction as was possessed by the supreme court. In 
 addition to that, the court of common pleas of the city 
 of New York, had extensive jurisdiction of a peculiar 
 kind, based upon the fact that it was substantially the 
 county court of the" county of New York. This court 
 was the oldest court in the state, having been the first 
 court organized by the Dutch, after the settlement of the 
 province of New Amsterdam. By the provisions of the 
 constitution which took effect on the first day of Jan- 
 uary, 1895, these courts were abolished, from and after 
 the first day of January, 1896, and all the jurisdiction 
 exercised by them was vested in the supreme court. 
 
 Besides these courts, the constitution abolished . the 
 circuit courts, which had been created in 1786, and 
 which had existed uninterruptedly from that time. The 
 business which had been done in the circuit court was, 
 after the first day of January, 1896, to be transacted at 
 the trial term of the supreme court. The same provisions 
 of the constitution also abolished the courts of oyer and 
 terminer, and the courts of sessions, which were practi- 
 cally the criminal parts of the circuit courts, and the 
 county courts, respectively. The jurisdiction of the 
 oyer and terminer was vested in the supreme court, and 
 that of the court of sessions, in the county court. ( Const. 
 Art. 6, §§ 6, 14). 
 
 See. 5. The City Court of the City of New York. 
 
 This court consists of six judges, one of whom is the 
 chief judge of the court. It was formerly known as the 
 marine court of the city of New York, but its name was 
 
THE COURTS OF THE STATE OF NEW YORK. 69 
 
 changed to the city court of the city of New York, by 
 chapter 36 of the laws of 1883. It has jurisdiction in : 
 
 1. An action against a natural person, or against a 
 foreign or domestic corporation, wherein the complaint 
 demands judgment for a sum of money only, or to re- 
 cover one or more chattels with or without damages for 
 the taking or the detention thereof. 
 
 2. An action to foreclose or enforce a lien upon real 
 property in the city of New York, created as prescribed 
 by statute, in favor of a person who has performed labor 
 upon or furnished materials to be used in the construc- 
 tion, alteration or repair of a building, vault, wharf, 
 fence or other structure ; or w^ho has graded, filled in or 
 otherwise improved, a lot of land, or the sidewalk or 
 street in front of or adjoining a lot of land. 
 
 3. An action to foreclose or enclose a lien, for a sum 
 not exceeding two thousand dollars, exclusive of interest, 
 upon one or more chattels. 
 
 4. The taking and entry of a judgment, upon the con- 
 fession of one or more defendants, where the sum, for 
 which, judgment is confessed, does not exceed two thou- 
 sand dollars, exclusive of interest from the time of 
 making the statement upon which the judgment is en- 
 tered. (Co. Civ. Proc. § 315). 
 
 But that jurisdiction is subject to the following limi- 
 tations : 
 
 1. In an action wherein the complaint demands judg- 
 ment for a sum of money only, the sum, for which 
 judgment is rendered in favor of the plaintiff, cannot 
 exceed tw^o thousand dollars, exclusive of interest and 
 costs as taxed ; except where it is brought upon a bond 
 or undertaking, given in an action or special proceeding 
 in the same court, or before a justice thereof; or to re- 
 cover damages for a breach of promise of marriage; or 
 where it is a marine cause as that expression is defined 
 in the next section. Where the action is brought upon a 
 bond or other contract, the judgment must be for the sum 
 actually due, without regard to a penalty therein con- 
 tained ; and, where the money is payable in installments, 
 successive actions may be brought for the installments, 
 as they become due. 
 
70 PKACTICE. 
 
 2. In an action to recover one or more chattels, a 
 judgment cannot be rendered in favor of tlie plaintiff, 
 for a chattel or chattels, the aggregate value of which 
 exceeds two thousand dollars. (Co. Civ. Proc. § 316). 
 Several actions between the same parties may be con- 
 solidated in the city court of the city of New York under 
 section 817, of the code of civil procedure, and a judg- 
 ment rendered for the aggregate amount of the claims, 
 provided the sum sued for in each action does not exceed 
 two thousand dollars. {Bush v. Abrahams, 18 N. Y. St. 
 Eep. 919). 
 
 It also has jurisdiction of what are known as marine 
 causes, and in such causes it has the same jurisdiction 
 as the supreme court, that is to say : 
 
 1. An action in favor of a person, belonging to a ves- 
 sel in the merchant service, against the owner, master, 
 or commander thereof, for the reasonable value of serv- 
 ices, or for the breach of a contract to pay for services 
 rendered or to be rendered on board of the vessel, during 
 a voyage, wholly or partly performed, or intended to be 
 performed by it. 
 
 2. An action in favor of or against a person, belong- 
 ing to or on board of a vessel in the merchant service, to 
 recover damages for an assault, battery, or false impris- 
 onment committed on board the vessel, upon the high 
 seas, or in a place without the United States. But this 
 section does not confer upon the city court authority 
 to proceed, as a court of admiralty or maritime juris- 
 diction. (Co. Civ. Proc. § 317). Neither this court nor 
 any of the justices of it have power to naturalize an 
 alien. (Co. Civ. Proc. § 318). The court has no equita- 
 ble jurisdiction. {McMahon v. Rauhr, 3 Daly, 116; 47 
 N. Y. 67, 71 ; Cushing v. Family Fund Soc, 28 N. Y. 
 St. Eep. 757). Equitable defenses may be pleaded, how- 
 ever (Mack V. Kitsell, 20 Abb. N. C. 293) ; but not as 
 counter-claims. [Richards \. Littell, IQ Misc. SS9). It 
 has also been held that this court must grant an order of 
 interpleader, under section 820 of the code of civil pro- 
 cedure, in an appropriate case, and the action then be- 
 comes one in equity. {Smith v. Emigrant Industrial 
 
THE COURTS OF THE STATE OF NEW YOUK. ,71 
 
 Savings Bk., IT N. Y. St. Eep. 852) . An order of consoli- 
 dation under section 817 of the code of civil procedure 
 will not be granted where the aggregate amount carries 
 the court beyond its monetary limitation. ( GiUin v. Gan- 
 iirij, 19 Misc. 594). In an action brought in the city court 
 an order cannot be made or a warrant of attachment 
 granted by an officer other than a justice of the court, 
 and each provision of the code of civil procedure which 
 empowers an officer other than a judge of the court in 
 which an action is brought, to make an order therein, 
 must be construed as being exclusive of an action 
 brought in the city court. (Co. Civ. Proc. § 327). 
 
 The mandate of the court can be executed only within 
 the city of New York, generally speaking, but there are 
 several exceptions to this general rule. (Co. Civ. Proc. 
 § 338). 
 
 The practice in the city court of the city of New York 
 differs in many details from that in the Supreme Court. 
 (Co. Civ. Proc, Chapter XX, Title I). 
 
 See. 6. County Courts. 
 
 There is a county court in each county of the state, 
 except the county of New York. These courts are con- 
 tinued in existence by the constitution of 1894. ( Const. 
 Art. 6, § 14). It is provided in that article, that the 
 county courts shall have the power and jurisdiction they 
 then possessed, and also original jurisdiction in actions 
 for the recovery of money only where the defendants re- 
 side in the county, and in which the complaint demands 
 judgment for a sum not exceeding two thousand dol- 
 lars. The constitution gives to the legislature power 
 to reform, enlarge or restrict the jurisdiction of the 
 county courts, provided however, that their jurisdiction 
 shall not be so extended as to authorize an action therein 
 for the recovery of money only, in which the sum 
 demanded exceeds two thousand dollars, or in which 
 any person, not a resident of the county, is defendant. 
 The jurisdiction of the court extends to the following 
 actions and special proceedings, in addition to the juris- 
 diction, power and authority, conferred upon a county 
 court, in a particular case, by special statutory provi- 
 sions : 
 
72 PRACTICE. 
 
 1. To an action for the partition of real property; 
 for dower; for the foreclosure, redemption or satisfac- 
 tion of a mortgage upon real property; or to procure a 
 judgment requiring a specific performance of a contract, 
 relating to real property; where the real property, to 
 which the action relates, is situated within the county; 
 or to foreclose a lien upon a chattel, in a case specified 
 in section seventeen hundred and thirty-seven of this 
 act, where the lien does not exceed one thousand dollars 
 in amount and the chattel is found within the county. 
 
 2. To an action in favor of the executor, adminis- 
 trator or assignee of a judgment creditor, or in a proper 
 case, in favor of the judgment-creditor, to recover a 
 judgment for money remaining due upon a judgment 
 rendered in the same court. 
 
 3. To an action for any other cause, where the defend- 
 ant is, or, if there are two or more defendants, where 
 all of them are, at the time of the commencement of the 
 action, residents of the county, and wherein the com- 
 plaint demands judgment for a sum of money only, not 
 exceeding two thousand dollars; or to recover one 
 or more chattels, the aggregate value of which does not 
 exceed one thousand dollars, with or without damages 
 for the taking or detention thereof. 
 
 4. To the custody of the person and the care of the 
 property, concurrently with the supreme court, of a 
 resident of the county, who is incompetent to manage 
 his affairs, by reason of lunacy, idiocy or habitual drunk- 
 enness; and to every special proceeding which the su- 
 preme court has jurisdiction to entertain, for the ap- 
 pointment of a committee of the person or of the prop- 
 erty of such an incompetent person or for the sale or 
 other disposition of the real property situated within the 
 county of a person, wherever resident, who is so incom- 
 petent for either of the reasons aforesaid, or who is an 
 infant; or for the sale or other disposition of the real 
 property situated within the county of a domestic 
 religious corporation. (Co. Civ. Proc. § 340). For 
 the purpose of determining the jurisdiction of the 
 county court, in either of the cases specified in the 
 last section, a domestic corporation or joint stock asso- 
 
THE COURTS OF THE STATE OF NEW YOKK. 73 
 
 elation, whose principal place of business is established 
 by, or pursuant to a statute, or by its articles of asso- 
 ciation, or is actually located within the county, or in 
 case of a railroad corporation where any portion of the 
 road operated by it is within the county, it is deemed 
 a resident of the county; and personal service of the 
 summons, made within the county as prescribed in this 
 act, or personal service of a mandate, whereby a special 
 proceeding is commenced, made within the county, as 
 prescribed in the code of civil procedure for personal 
 service of a summons, is sufficient service thereof upon 
 a domestic corporation wherever it is located. ( Co. Oiv. 
 Proc. § 341). Wherever a county court has jurisdiction 
 of an action or special proceeding, it possesses the same 
 jurisdiction, power and authority in it and in the pro- 
 ceedings therein, which the supreme court possesses in a 
 like case, and it may render any judgment, or grant either 
 party any relief, which the supreme court may render or 
 grant in a like case, and may enforce its mandates in like 
 manner as the supreme court. County judges possess the 
 same power and authority, which a justice of the su- 
 preme court possesses, in a like action or special pro- 
 ceeding, brought in that court. (Co. Civ. Proc. § 348). 
 In any action or special proceeding in which the county 
 court has jurisdiction, it has power to send its process 
 or other mandates into any county of the state, for 
 service or execution, and to enforce obedience thereto, 
 with like power and authority as the supreme court. 
 (Co. Civ. Proc. § 347). The county court is not a court 
 of general, but of limited jurisdiction, and all the facts 
 necessary to give it jurisdiction must appear in the 
 record. (Ford v. Ford, 6 N. Y. 176). But a general 
 appearance, and demand of a copy of the complaint in 
 an action in the county court, is a waiver of any objec- 
 tion to the jurisdiction, although neither of the parties 
 to the action is a resident of the county. (Donnelly v. 
 Woolsey, 38 Bt. Eep. 39; 13 Supp. 433; 39 St. Eep. 748; 
 15 Supp. 490; see, however, Weidman v. Sibley, 16 App. 
 Div. 616) . The court can not obtain jurisdiction against 
 
74 PEACTICE. 
 
 a foreign corporation however, even by its consent and 
 general appearance in the action. {Parlchurst v. Roches- 
 ter L. M. Co., 65 Hun, 489) . In an action commenced in 
 that court, if it appears by the summons and complaint, 
 which are served together, that judgment is asked for a 
 greater sum than the court has power to grant, the 
 court has no jurisdiction. {Mclntyre v. Carriere, 17 
 Hun, 64). In an action of partition, brought in that 
 court, it has jurisdiction to try the title of the parties 
 (Co. Oiv. Proc. § 1543), but, it would seem, in no other 
 case. (Wt^fcwis V. IFt^ZiaHi-s, 15 Civ. Pro. Eep. 168). It 
 also has jurisdiction to direct a judgment canceling a 
 deed, if necessary to enable it to make partition. {Bell 
 V. Gittere, 30 St. Rep. 219). It has jurisdiction of an 
 action for strict foreclosure of a mortgage, if part of the 
 mortgaged premises are within the county, although the 
 mortgage embraces other premises, not within the county 
 {Strong v. Eighme, 41 How. Pr. 117) ; it also has juris- 
 diction of an action to compel the satisfaction of a 
 mortgage, of which the defendant after agreeing to pay, 
 has taken an assignment, and seeks to enforce. {Masher 
 V. Campbell, 30 Hun, 230). In an action to foreclose a 
 mortgage it may reform the conditions of the bond in 
 relation to the time for which interest is to be com- 
 puted {Meade v. Lang ford, 56 Hun, 279), and may also 
 grant a judgment for deficiency for any amount. {Haw- 
 ley v. Whalen, 64 Hun, 551). It can not, however, in 
 such an action, grant equitable relief by reforming the 
 mortgage, although the relief asked may be that the 
 mortgage, after being reformed, may be foreclosed. The 
 two remedies are entirely independent, and the refor- 
 mation is not a necessary incident to the foreclosure. 
 {Avery v. Willis, 24 Hun, 548; Thomas v. Harmon, 122 
 N. Y. 84) . Actions which have begun in a court of a jus- 
 tice of the peace, and discontinued therein on plea of 
 title, may be brought in a county court pursuant to an 
 undertaking given upon such discontinuance (Co. Civ. 
 Proc. § 2953) , and in such a case it is no objection to the 
 jurisdiction that the defendant is a non-resident of the 
 county. (C <& B. Plank Road Co. v. Parker, 22 Barb. 
 
THE COURTS OF THE STATE OF NEW YORK. 75 
 
 223). It has jurisdiction of proceedings under tlie 
 general assignment act. (3 R. S. 9 Ed. 2429-2439). 
 The powers of the court in such proceeding are specified 
 in section 20 of that act (3 R. S. 9 Ed. 2435) , but in such 
 proceeding, it has no power to set aside a sale made by 
 the assignee, because the price is insufficient {Matter of 
 Rider, 23 Hun, 191), or to examine into an alleged 
 fraudulent transfer by the assignor, to a former assignee, 
 who has been cited to account before it. {Matter of 
 Raymond, 27 Hun, 508). The court has power to make 
 an order, amending the inventory of an assignee nunc, 
 pro tunc, so as to conform to the statement of the debt 
 in the assignment. {Roberts v. Bitcldey, 145 N. Y. 215) . 
 The court also has jurisdiction, upon the application of 
 a person who has been fined by a court, or of a person 
 whose recognizance has become forfeited, or of his 
 surety, to remit the fine, or the forfeiture of the recog- 
 nizance, or part of the penalty thereof, or it may dis- 
 charge the recognizance. (Co. Civ. Proc. § 350). It 
 has, also, jurisdiction of the foreclosure of certain 
 mechanics' liens, or liens of laborers within the county 
 (3 R. S. 9 Ed. 2409, § 4, 2483, § 5) ; and of proceedings 
 for drainage of swamps, marshes, and other low lands. 
 (2 R. S. 9 Ed. 1925, § 20). In an action for the fore- 
 closure of a mechanic's lien, the court may take juris- 
 diction, although the defendant be not a resident of the 
 county. {Raven v. Smith, 71 Hun, 197). Jurisdiction 
 has also been given the court to correct assessments, 
 where the premises of one person shall have been wrong- 
 fully assessed and taxed in with the premises of another 
 (3 R. S. 9 Ed. 2407) ; and to order that the board of 
 supervisors cause to be refunded to any person the 
 amount collected from him of any tax illegally or im- 
 properly assessed, or levied. (County Law § 16). This 
 power of the county court is limited to a direction that 
 the tax be refunded ; it has no power to order a tax to be 
 canceled before payment or restrain its collection. 
 {Matter of B. M. G. L. Go., 144 N. Y. 228). The court 
 cannot, by virtue of its power derived from this pro- 
 vision, direct part of a tax to be refunded on the ground 
 
76 PRACTICE. 
 
 that the tax was excessive. {Matter of Baumgarten, 
 39 App. Div. 174) . The court may, however, in a proper 
 case, make an order requiring taxes illegally or im- 
 properly assessed and collected within the period of the 
 six years prescribed by the statute of limitations, to be 
 refunded. {Matter of Edison El. Ilium. Co., 22 App, 
 Div. 371; affd. on opinion below, 155 N. Y. 699). This 
 provision, of the county law applies only to a pay- 
 ment under compulsion and when the taxes were 
 voluntarily paid, the board of supervisors cannot 
 be ordered by the court to repay them. {Matter 
 of McCue V. Supervisors, 162 N. Y. 235 ; Matter of Adams 
 V. Supervisors, 154 N. Y. 619) . The procedure is informal 
 and not governed by any established rules of procedure. 
 (Id., semble). It also has authority to permit a general 
 guardian of an infant, or the committee of an idiot, 
 lunatic, or habitual drunkard, who is the owner of real 
 property, in joint tenancy or tenancy in common to 
 agree to a partition of the same. (Co. Civ. Proc. § 1590 
 ct seq.). It has exclusive jurisdiction, outside of the 
 city of New York, of applications by an insolvent debtor 
 to be discharged from his debts (Co. Civ. Proc. § 2150) ; 
 or to be exempt from arrest, or discharged from impris- 
 onment (Co. Civ. Proc. § 2188) ; or of an imprisoned 
 debtor to be discharged from imprisonment (Co. Civ. 
 Proc. § 2201) ; with the supreme court, it has jurisdic- 
 tion of the appointment of trustee of a person confined 
 for crime. (Co. Civ. Proc. § 2219). It also has power 
 to allow any person of full age to change his name. (Co. 
 Civ. Proc. § 2410) . By chapter 384 of the Laws of 1895. 
 the county court was given jurisdiction of a proceed- 
 ing by the owner of agricultural lands to drain his 
 lands through the lands of others, the cost of the work to 
 be assessed upon the various land owners in proportion 
 to benefits received. This legislation has been held, 
 however, to contravene the provisions of the fourteenth 
 amendment of the federal constitution. {Matter of 
 TutlilU, 163 N. Y. 133). The county court has, also, 
 jurisdiction to appoint commissioners to lay out a 
 highway. (Highway Law [Chap. 568, L. 1890] § 83). 
 
THE COURTS OP THE STATE OP NEW YORK. 77 
 
 Appeals are taken to this court from judgments of 
 the court of a justice of the peace. (Co. Civ. Proc. 
 § 3045). The county court is always open for the 
 transaction of any business, for which notice is 
 not required to be given to the adverse party, ex- 
 cept where it is especially prescribed by law that the 
 business must be done at a stated term. ( Co. Civ. Proc. 
 §355). 
 
 Sec. 7. Power of Judges out of Court. 
 
 For the convenience of suitors, and the dispatch of 
 business, judges, out of court, are empowered to make 
 orders in many cases where notice is not required to 
 be given to the adverse party, or where such notice is 
 discretionary, or Avhich only have regard to the routine 
 of an action or special proceeding. Section 235 of the 
 code of civil procedure, directs that each justice of the 
 supreme court must, at all reasonable times, when not 
 holding court, transact such judicial business as may be 
 done out of court. But a judge out of court has only a 
 limited jurisdiction. He may do what the statute 
 authorizes, and he can do nothing more. (Bangs v. 
 Selden, 13 How. Pr. 374, 376). He has no jurisdiction, 
 even in the first judicial district, to issue a writ of man- 
 damus out of court, nor to issue any other writ, which 
 the law expressly provides must be done by the court. 
 [Peo. ex rel. Lower v. Donovan, 135 N. Y. 75). A judge 
 of a county court within his county possesses, and is 
 required to exercise, the power which is conferred by 
 law in general language, upon a justice of the supreme 
 court, out of court. (Co. Civ. Proc. § 241). He also 
 possesses the same power and authority in a special 
 proceeding which can be lawfully instituted before him 
 out of court, which a justice of the supreme court 
 possesses in a like proceeding instituted in the same 
 manner before him. (Qo. Civ. Proc. § 349). In any 
 action or special proceeding, pending in a county court, 
 an order may be made, without notice, or an order to 
 stay proceedings may be made upon notice, by a justice 
 of the supreme court, or by the county judge of the 
 
78 PEACTICE. 
 
 county where the attorney resides, in an action where 
 the county judge in whose court the action or proceeding 
 is pending, may make the same out of court. (Co. Civ. 
 Proc. § 354). In the first judicial district, a motion 
 which elsewliere must be made in court, may be made to 
 a judge out of court, except for a new trial on the merits. 
 (Co. Civ. Proc. § 770). Where an order, in an action, 
 may be made by a judge of the court, out of court, and 
 without notice, and the particular judge is not specially 
 deisignated by law, it may be made by any judge of the 
 court, in any part of the state; or except to stay pro- 
 ceedings after verdict, report, or decision, by a justice 
 of the supreme court, or by the county judge of the court 
 where the action is triable, or in which the attorney for 
 the applicant resides. Where such an order grants a 
 provisional remedy, it can be vacated only in the mode 
 specially prescribed by law; in any other case, it may 
 be vacated or modified, without notice, by the judge who 
 made it, upon notice, by him, or by the court. ( Co. Civ. 
 Proc. § 772). The limitation contained in section 772, of 
 the county judges who may make an order, does not apply 
 to a case A\'herc it is prescribed in general words that a 
 particular order may be made by a county judge, or by 
 any county judge. (Co. Civ. Proc. § 773). A judge of 
 any court can make an order to show cause, returnable 
 l)efore himself, or at special term (General Rule, 37) , and 
 an order to show cause, returnable at special term, in 
 an action in the supreme court, may be made by a county 
 judge of the county where the action is triable, or in 
 which the attorney for the applicant resides. (Co. Civ. 
 Proc. § 780). But in such an action a county judge can 
 not make an order to show cause, returnable before him- 
 self. {Parmenter v. Roth, 9 Abb. Pr. N. S. 385). But 
 in Bahcock v. Clark, (23 Hun, 391), it was held that 
 a county judge might make an order, in an action pend- 
 ing in the supreme court, to show cause returnable before 
 himself, why a temporary injunction should not be 
 granted; the reason for this holding was, that by section 
 609 of the code of civil procedure, the judge could 
 require notice of the application or not, at his discretion, 
 
THE COURTS OP THE STATE OF NEW YORK. 79 
 
 and the order to show cause was equivalent to requiring 
 notice. It is not necessary in this article to specify the 
 particular acts, which may be done by a judge out of 
 court. Careful provisions are made in the code as to 
 who may make the various orders, or grant the different 
 remedies, which may be required during the progress of 
 an action, and as each one is treated of, attention will 
 be called to the regulations made upon that subject. 
 6 
 
CHAPTER II. 
 
 ACTIONS AND THE TIMES OF COMMENCING THEM. 
 
 ARTICLE I. . .Of actions. 
 
 ARTICLE II. .The limitation of actions. 
 
 ARTICLE I. 
 
 OF ACTIONS. 
 
 The word "action," when applied to judicial proceed- 
 ings signifies an ordinary prosecution in a court of 
 justice, by a party against another party, for the en- 
 forcement or protection of a right, the redress or pre- 
 vention of a wrong, or the punishment of a public 
 offense. (Co. Civ. Proc. § 3333). Every other prose- 
 cution by a party, for either of the purposes specified in 
 the last section, is a special proceeding. (Co. Civ. 
 Proc. § 3334). There are two kinds of actions, civil 
 and criminal. (Co. Civ. Proc. § 3335). A criminal 
 action is prosecuted by the people of the state as a 
 party, against a person charged with a public offense 
 for the punishment thereof. (Co. Civ. Proc. § 3336). 
 Every other action is a civil action. (Co. Civ. Proc. § 
 3337). Criminal actions will not be treated of in this 
 book, but it is confined solely to the practice of civil 
 actions and special proceedings. There is only one 
 form of civil action. The distinction between actions 
 at law and suits in equity, and the forms of those actions 
 and suits have been abolished. (Co. Civ. Proc. § 3339). 
 The intention of the legislature, in adopting this section, 
 was expressed in the preamble to the code of procedure, 
 which was passed in April, 1848, that the then existing 
 forms of action and pleadings, in cases at common law, 
 
ACTIOXS AND THE TIMES OF COilJIENCIiNG THEM. 81 
 
 should be abolished, that the distinction between legal 
 and equitable remedies should no longer continue, and 
 that a uniform course of procedure, in all cases, should 
 be established. The object of this was, that all contro- 
 versies respecting the matter involved in litigation, 
 should be determined in one action (Maiidcville v. Rey- 
 nolds, 68 N. Y. 528, 545) ; and the legislature intended 
 to abolish, and has abolished, all the features Avhich dis- 
 tinguished legal and equitable actions from each other, 
 and has established a single action for the pursuit of all 
 remedies. A mistake or misconception in respect to the 
 action being called legal or equitable, does not defeat 
 the plaintiff, but, at most, may require a trial before 
 a properly constituted court. The object of every action 
 is to obtain a judgment finally determining the rights of 
 the parties in regard to the controversy involved, and 
 the question which is intended to be presented in each 
 case is, whether the plaintiff is entitled to any relief 
 whatever, upon the facts which he has presented to the 
 court, or c coii verso, whether any facts which the defend- 
 ant presents to the court, are sufficient to defeat the 
 recovery which the plaintiff seeks ; and so the courts 
 have held that in every case, the plaintiff may state all 
 the facts from which arise the right which he claims, 
 and also all the facts tending to show that his right 
 has been violated, and upon that statement the court is 
 to grant him whatever relief he is entitled. {Phillips v. 
 Oorham, 17 N. Y. 270; The New York Ins. Co. v. The 
 N. W. Ins. Co. of Osivego, 23 N. Y. 357 ; Sternherr/er v. 
 McOoveni, 56 N. Y. 12; Hoppough v. StruUe, 60 N. Y. 
 430; Manderille v. Reynolds, 68 N. Y. 528; Glacken v. 
 Brown, 39 Hun, 294). It is not intended by these pro- 
 visions of the code to abolish the distinction between 
 what was formerly known as legal and equitable relief. 
 These exist in the nature of things, and the distinction 
 between the manner of obtaining them, is, to some extent, 
 preserved by the provision of the constitution, which 
 preserves the right of trial by jury, in all cases in which 
 it had been used before 1846. Therefore, when the judg- 
 ment to which the plaintiff is entitled, was that which 
 
82 PRACTICE. 
 
 was formerly obtained in an action at law, the consti- 
 tution requires a different mode of trial, from that which 
 is to be had when equitable relief only is sought, but it 
 does not follow from this, that the plaintiff should be 
 turned out of court because the facts, which he alleges, 
 did not entitled him to relief of the kind which he asks. 
 If he asks for equitable relief in an action which he 
 has brought, and the facts proved upon the trial fail to 
 establish his right to the relief which he asks, but do 
 show that he is entitled to a judgment at law, it is the 
 duty of the court not to dismiss the complaint, but to 
 retain the case, that his action may be tried in the man- 
 ner in which an action at law is required to be tried, 
 and that his claim may be finally disposed of. (Oases 
 cited supra). 
 
 ARTICLE II. 
 
 THE LIMITATION OF ACTIONS. 
 
 SECTION. 
 
 1. Actions for the Recovery of Real Property. 
 
 2. Actions other than for the Recovery of Real Property, 
 
 3. Non-residence or absence from the State. 
 
 4. What prevents the running of the Statute. 
 
 5. What actions are not within the Statute. 
 
 6. Mode of computing time. 
 
 7. Defense and counter-claim. 
 
 8. What takes a, case out of the Statute. 
 
 9. How objection taken. 
 
 10. Cases not within the Statute. 
 
 11. When action deemed begun. 
 
 Sec. 1. Actions for the Recovery of Real Property. 
 
 The people of the state will not sue a person for or 
 with respect to real property, or the issues or profits 
 thereof, by reason of the right or title of the people to 
 the same, unless either : 
 
 1. The cause of action accrued within forty years 
 before the action is commenced ; or 
 
 2. The people, or those from whom they claim, have 
 received the rents and profits of the real property, or of 
 some part thereof, within the same period of time. (Co. 
 Civ. Proc. § 362). An action shall not be brought for 
 
ACTIONS AXD THE TIMES OF COMMENCING THEM. 83 
 
 or with respect to real property by a person claiming 
 by virtue of letters patent or a grant from the people of 
 the state, unless it might have been maintained by the 
 people as prescribed in this title, if the patent or gran* 
 had not been issued or made. (Co. Civ. Proc. § 363). 
 An action by the people to repeal letters patent is an 
 action in respect to lands within this statute. [People 
 V. Clark, 9 N. Y. 349). The people are barred only by 
 an adverse possession of forty years. (People v. Clark, 
 supra; People v. Arnold, 4 N. Y. 508). To bar the title 
 of the people within this statute, there must have been 
 actual possession ; constructive possession is not suffi- 
 cient [People V. Livingston, 8 Barb. 253) ; but in People 
 \.Van Rensselaer, (9 N. Y. 291), it was held, that where 
 lands had been granted by royal letters patent, and a 
 portion of them had been occupied, and as to the re- 
 mainder, the grantee had regularly paid the taxes there- 
 for, and had paid quit rents to the state, in pursuance 
 of the grant, until commuted in accordance with the 
 statute, and had maintained men to protect the timber 
 from trespass, that such possession was sufficient to bar 
 an action by the people within this statute. Title is not 
 presumed in favor of the people, until it is shown that 
 the premises have been vacant for twenty years. [Peo- 
 ple X. Rector of Trinity Church, 22 N. Y. 44). No ease- 
 ment can be acquired in the public waters of the state, 
 by forty years' use adverse to the people. [Burbank v. 
 Fay, 65 N. Y. 57) . Unless the claimant against the state 
 actually has hostile possession of the land, the people 
 will be deemed to have received the rents and profits in 
 applying this statute. [G. V. R. R. Go. v. 8laight, 49 
 Hun, 35). 
 
 An action to recover real property, or the posses- 
 sion thereof, cannot be maintained by a party, other 
 than the people, unless the plaintiff, his ancestor, 
 predecessor or grantor, was seized or possessed of the 
 premises in question, within twenty years before the 
 commencement of the action. (Co. Civ. Proc. § 365). 
 A defense or counter-claim, founded upon title to real 
 property, or to rents or services out of the same, is not 
 
84 PRACTICE. 
 
 effectual, unless the person making it or under whose 
 title it is made, or his ancestor, predecessor or grantor, 
 was seized or possessed of the premises in question with- 
 in twenty years before the committing of the act 
 with respect to which it is made. (Co. Civ. Proc. § 
 366). An action for dower must be commenced by a 
 widow, within twenty years after the death of her hus- 
 band. (Co. Civ. Proc. § 1596). The limitation begins 
 to run from the time the holding begins to be adverse. 
 {Jackson v. PurJccr^S Johns. Cases, 124). As against a 
 remainder man, the statute begins to run from the 
 determination of the particular estate. {Jackson v. 
 Johnson, 5 Cow. 74; Graham v. Livingston, 19 How. 
 246; Christie v. Gage, 71 N. Y. 189). If when the par- 
 ticular estate ceases, the remainder man is under dis- 
 ability, the statute does not begin to run until the dis- 
 ability ceases. {Jackson v. Sellick, 8 Johns. 62). 
 Where an adverse possession begins during the life of 
 the ancestor, it continues to run against the heir, although 
 he is an infant when the title descends to him. {Becker 
 V. Van Valkenburgh, 29 Barb. 319). Twenty years 
 adverse possession is a good defense ■ in an action of 
 ejectment brought by a married woman. {Clarke v. 
 Gibbons, 83 N. Y. 107). The statute applies against a 
 religious corporation {Refd. Ch. of GalhipviUe v. School- 
 craft, 65 N. Y. 134), and in its favor. {Humbert v. 
 Rector Trinity Ch., 24 Wend. 587). The trustees of 
 a school district may obtain title by adverse possession. 
 {Robie V. Sedgicick, 35 Barb. 319; affd. 4 Abb. Dec. 73). 
 An action of ejectment by an OAvner, against a purchaser 
 in possession under a void sale on foreclosure, is not 
 barred until twenty years after the. sale {Shriver v. 
 Shriver, 86 N. Y. 575) ; but an action by one claiming 
 to be the owner of land of which the mortgagee is in 
 possession, for an accounting, is not within section 365 
 of the statute (Miner v. Beekman, 50 N. Y. 337; Hub- 
 bell V. Sibley, Id. 468), but is within section 379. An 
 action to restrain the maintenance of a nuisance on real 
 property, or for a continuous trespass, is not barred 
 until the expiration of twenty years from which a grant 
 
ACTIONS AND THE TIMES OF COMMENCING THEM. 85 
 
 is presumed {Knox v. Metro. Etc. li. Co. 58 Huu, 517; 
 aft'd. 128 N. Y. 625), but in such an action no damages 
 can be recovered for more than six years before the 
 commencement of the action. {Doyle v. Man. Ele. R. 
 Co., 35 St. Rep. 373 ; 128 N. Y. 488 ; Guhouij v. Metro. 
 Ele. B. Co., 128 N. Y. 132). ■ A title acquired by twenty 
 years adverse possession, is not forfeited by an interrup- 
 tion of the actual possession, after that time. {Bhernian 
 V. Kane, 86 N. Y. 57). An entry upon real estate is not 
 sufficient or valid as a claim, unless an action is com- 
 menced thereupon, within one year after the making 
 thereof, and within twenty years after the time, when 
 the right to make it descended or accrued. (Co. Civ. 
 Proc. § 367). In an action to recover real property, or 
 the possession thereof, the person who establishes a legal 
 title to the premises, is presumed to have been possessed 
 thereof within the time required by law; and the occu- 
 pation of the premises by another person, is deemed to 
 have been under, and in subordination to the legal 
 title, unless the premises have been held and possessed, 
 adversely to the legal title, for twenty years before the 
 commencement of the action. (Co. Civ. Proc. § 368). 
 The burden of establishing adverse possession is on 
 the person who alleges it. {Stevens v. Hauser, 39 N. Y. 
 302). Where the occupant, or those under whom he 
 claims, entered into possession of the premises, under 
 the claim of title, exclusive of any other right, founding 
 the claim upon a written instrument, as being a con- 
 veyance of the premises in question, or upon the decree or 
 judgment of a competent court; and there has been a 
 continued occupation and possession of the premises, 
 included in the instrument, decree, or judgment, or of 
 some part thereof, for twenty years under the same 
 claim ; the premises so included are deemed to have been 
 held adversely; except that where they consist of a 
 tract, divided into lots, the possession of one lot is not 
 deemed a possession of any other lot. (Co. Civ. Proc. 
 § 369). For the purpose of constituting an adverse 
 possession, by a person claiming a title, founded upon 
 a written instrument, or a judgment or decree, land is 
 
86 I'KACTICE. 
 
 deemed to have been possessed or occupied in either of 
 the following cases : 
 
 1. Wliere it has been usually cultivated and im- 
 proved. 
 
 2. Where it has been protected by a substantial in- 
 closure. 
 
 3. Where, although not inclosed, it has been used for 
 the supply of fuel, or of fencing timber, either for the 
 purposes of husbandry, or for the ordinary use of the 
 occupant. 
 
 Where a known farm or a single lot has been partly 
 improved, the portion of the farm or lot that has been 
 left not cleared, or not inclosed, according to the usual 
 course and custom of the adjoining country, is deemed 
 to have been occupied for the same length of time, as 
 the part improved and cultivated. (Co. Civ. Proc. § 
 370). To bring the case within these two sections of 
 the statute, the deed under which the claim is made must 
 include the premises. {Jackson v. Woodraff, 1 Cow. 
 286). The inclosure must be such as to give notice that 
 the land is claimed. {Bolton v. Shrievcr, 49 Super. 
 168). If the fences are generally maintained, 
 and removed in the winter, leaving the posts standing, 
 and replaced in the spring, that is a sufficient incosure 
 to satisfy the statute. {Trustees of East Hampton v. 
 Kirk, 68 N. Y. 459) . To constitute a sufficient construct- 
 ive possession under this statute, the part not actually 
 occupied must be used with, or in subservience to, that 
 which is actually occupied. {Gooding v. Richards, 20 
 Wk. Dig. 543). Going on part of unoccupied lands, 
 and cutting timber from time to time is not a sufficient 
 constructive possession. ( Thompson v. Burhans, 79 N. 
 y. 93). It is sufficient if the part not occupied is used 
 to pile wood, and for other purposes, for the benefit of 
 any part which is occupied. {Domini/ v. Miller, 33 Barb. 
 386). The occupation of the upland, under a deed ex- 
 tending to low water mark, and cutting grass upon that 
 part, between high and low water mark, is not sufficient 
 constructive possession of the land between high and low 
 water mark. {Roberts v. Baiimgarten, 110 N. Y. 380). 
 
ACTIONS AXD THE TIMES OF COMMENCING THEM. 87 
 
 Sub-division 2 of section 270, does not apply when the 
 tract of land, included within the deed, is too large to 
 be used as one body. An occupation of 400 acres, in a 
 tract of twenty-five thousand, has been held not suffi- 
 cient. {Thompson V. Burhans, 61 N. Y. 52). The occu- 
 pation of two acres, in a tract of seven hundred and 
 eighty-three, was held not sufficient {Jackson v. Wood- 
 ruff, 1 Cow. 276), but in Miniro v. Merchant, (28 N. Y. 
 9), where the grantee of a large tract of uncultivated 
 land, entered upon it under his deed, and made extensive 
 valuable and permanent improvements, and erected 
 buildings, and paid taxes thereon, and the cleared portion 
 was continuously occupied by him, under claim of title 
 to the whole tract, and the uncleared portion was ex- 
 tensively used, for cutting timber for the market, and for 
 fences and fire wood, it was held that that was a suffi- 
 cient constructive possession, to bring the case within 
 section 370. Where there has been an actual continued 
 occupation of premises, under 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 others, are deemed to have 
 been held adversely. (Co. Civ. Proc. § 371). For the 
 purpose of constituting an adverse possession, by a per- 
 son claiming title, not founded upon a written instru- 
 ment, or a judgment or decree, land is deemed to have 
 • been possessed or occupied in either of the following 
 cases, and no others : 
 
 1. Where it has been protected by a substantial in- 
 closure. 
 
 2. Where it has been usually cultivated or improved. 
 (Co. Civ. Proc. § 372). The adverse possession under 
 these two sections, can extend only to the lands which 
 are actually fenced, cultivated or improved {Becker v. 
 Van Valkenbiirgh, 29 Barb. 319), and the inclosure 
 must be a substantial one; a possession fence, so called, 
 made by falling trees in such a way that they lapped 
 over one another, is not sufficient. {Jackson v. Schoon- 
 maker, 2 Johns. 230). Where it was fenced on two 
 sides, and the other two sides were inclosed by a natural 
 barrier of rock, that was held to be a sufficient inclosure 
 
88 
 
 PRACTICE. 
 
 to satisfy the requirements of the statute. {Becker v. 
 Van Valkcnhiirgh, supra). A lot is not protected by a 
 substantial inclosure, when it is inclosed on one side 
 by the highway, on two sides by fences, and on the 
 remaining side by a line of marked trees. (Pope v. 
 Haiuiier, 74 N. Y. 240). The cultivation or improve- 
 ment must be actual and substantial. (Doolittle v. Tice, 
 41 Barb. 181). Cutting grass or logs, or piling wood 
 upon it are not enough, or occasionally using it for 
 pasture. {Pope v. Huniner, supra; Wheeler v. Spiiwla, 
 54 N. Y. 377; Miller v. Downing, 54 N. Y. 631; Thomp- 
 son V. Burhans, 79 N. Y. 93). To be the foundation of 
 an adverse possession the claim must be of a title. (Rob- 
 inson V. PhUJips, 56 N. Y. 634). Mere possession with- 
 out a claim of title is not adverse. {Bridges v. Wyclcoff, 
 67 N. Y. 130; Sturgess v. ParJchvrst, 50 Super. 306). 
 And to be adverse to the owner of the fee, it must be of 
 the whole title, and not of a lease for years. {Bedell v. 
 Shaic, 59 N. Y. 46; Howard v. Howard, 17 Barb. 663). 
 It is not necessary that the deed under wliich possession 
 is claimed, should be valid. A deed given without right 
 in the grantor is sufficient to sustain the claim {Sands 
 V. Hughes, 53 N. Y. 287), and after possession is taken 
 under color of title, it becomes adverse, although the 
 claim is groundless. {LaFrombois v. Jackson, 8 Cow. 
 589) . It is not material that the claim is fraudulent, or 
 that the occupant knows that it is groundless. {Hum- 
 bert V. Trinitji Ch., 24 Wend. 587) . The case of Livings- 
 ton V. Tlie Peru Iron Co., (9 Wend. 512), which holds 
 that the possession is not adverse if the deed is fraudu- 
 lently obtained, arose under the champerty act, and 
 does not apply to an adverse claim under these sections. 
 {Crarij v. Goodman, 22 N. Y. 177). Nor is it material 
 that the owner is ignorant of the claim made, if it is 
 open and notorious. {Humbert v. Trinity Ch., 24 Wend. 
 587). Where the relation of landlord and tenant has 
 existed between any persons, the possession of the tenant 
 is deemed the possession of the landlord, until the expira- 
 tion of twenty years after the termination of the ten- 
 ancy ; or, Avhere there has been no written lease, until the 
 expiration of twenty years after the last payment of 
 
ACTIONS AND THE TIMES OF CO.MilENCIXG THKM. 89 
 
 rent; notwithstanding tliat the tenant has acquired 
 another title, or has claimed to hold adversely to his 
 landlord. But this presumption shall not be made, after 
 the periods prescribed in this section. (Co. Civ. Proc. 
 § 373). This section does not apply to a grant in fee, 
 subject to a quit rent reserved. {People v. Tr'uiiiij Ch., 
 22 N. Y. 44). The tenant under an assessment lease, 
 cannot hold adversely to the owner of the fee {Bedell v. 
 8iiaa\ 59 N. Y. 46), but it is otherwise, as to one who 
 has taken a grant in fee from the tenant, and who enters 
 and holds under the grant. {Sands v. Hiif/hes, 53 N. Y. 
 287) . If the tenant has entered under a perpetual lease, 
 the presumption is that it still exists, and that he is in 
 under it. ( Bradt v. Church, 110 N. Y. 537) . The right 
 of a person to the possession of real property is not 
 impaired or affected, by a descent being cast, in con- 
 sequence of the death of a person in possession of the 
 property. (Co. Civ. Proc. § 374). If a person who 
 might maintain an action to recover real property, or the 
 possession thereof, or make an entry, or interpose a 
 defense or counter-claim, founded on the title to real 
 property, or to rents or services out of the same, is, when 
 his title first descends, or his cause of action, or right of 
 entry first accrues, 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 offense, for a term less 
 than for life, 
 
 The time of such a disability is not a part of the time, 
 limited in this title, for commencing the action, or 
 making the entry, or interposing the defense or counter- 
 claim; except that the time so limited cannot be ex- 
 tended more than ten years, after the disability ceases, 
 or after the death of the person so disabled. (Co. Civ. 
 Proc. § 375). The statute begins to run, although the 
 plaintiff is out of the state, at the time when his right 
 accrues. {Poicer v. Hathaway, 43 Barb. 214). When 
 the statute once begins to run, it continues notwithstand- 
 ing a siibsequent disability. {Peck v. Randall, 1 Johns. 
 165; Co. Civ. Proc. § 408). If an adverse possession be- 
 
90 PRACTICE. 
 
 gins in the lifetime of the ancestor, it continues although 
 the land descends to his infant heir. {.Jackson v. Moore, 
 13 Johns. 513; Jackson, v. Robins, 15 Johns. 169). A 
 party has in any event, twenty years to bring suit ; if he 
 is under disability when his right accrues, he may, not- 
 withstanding the twenty years have expired, sue within 
 ten years after the disability is removed. {Jackson v. 
 Gains, 20 Johns. 301; WUlson v. Betts, 4 Den. 201). He 
 is always entitled to twenty years, and to so much 
 more as the disability would add, but such addition can- 
 not be more than ten years after the determination of 
 the disability. {HoweU y. Leavitt, 95 l<i. Y. Q17). The 
 insanity of the defendant does not suspend the running 
 of the statute against the true owner. {Sanford v. /San- 
 fon?, 62N. Y. 553). 
 
 Sec. 3. Actions Other Than Recovery of Real Property. 
 
 Subdivision 1. — Within Twenty Years. 
 
 A final judgment or decree for a sum of money, or direct- 
 ing the payment of a sum of money, heretofore rendered 
 in a surrogate's court of the state, or heretofore or here- 
 after rendered in a court of record within the United 
 States, or elsewhere, or hereafter docketed pursuant to 
 the provisions of section thirty hundred and seventeen 
 of this act, is presumed to be paid and satisfied, after the 
 expiration of twenty years from the time when the party 
 recovering it was first entitled to a mandate to enforce 
 it. This presumption is conclusive, except as against a 
 person who, within twenty years from that time, makes 
 a payment or acknowledges an indebtedness of some part 
 of the amount recovered bj^ the judgment or decree, or 
 his heir or personal representative, or a person whom he 
 otherwise represents. Such an acknowledgment must 
 be in writing, and signed by the person to be charged 
 thereby. (Co. Civ. Proc. § 376). This section does not 
 apply to judgments other than those requiring the pay- 
 ment of money and such judgments may be enforced at 
 any time, even after the expiration of twenty years. 
 Whether, however, they will be so enforced is within the 
 discretion of the court. {Van Rensselaer v. Wright, 121 
 
ACTIONS AND THE TIMES OF COMMENCING THEM. 91 
 
 N. Y. 626; Whitnei/ v. De La Rionda, 125 N. Y. 678). 
 The law laid down in the case of Dieffenbach v. Roch, 
 (112 N. Y. 621), which holds that the six year limitation 
 applies to judgments of justices of the peace, although 
 they have been docketed in the clerk's office, pursuant to 
 section 3017 of the code, has been changed by the amend- 
 ment of 1894, which appears in the section as quoted 
 above. {Raphael v. Meiickc, 28 App. Div. 91). The 
 period of limitation upon decrees of the surrogate's 
 court, was formerly six years {Paff's Exr. v. Klaney, 1 
 Bradf. 1; Arnold v. Doivniiig, 11 Barb. 554), but by this 
 section it has become twenty years. The city court of the 
 nty of New York, being now a court of record, judgments 
 rendered in that court are within this section, although 
 the judgment was rendered by that court before it was 
 made a court of record. {Camp v. Hallen, 42 Hun, 628). 
 An action on an award for property, taken by a city upon 
 opening a street, is an action upon a judgment under this 
 statute, and is not barred until after the lapse of twenty 
 years. {Donnelly y. City of Brooklyn, 1211^. Y.^). The 
 confirmation by a county court of the report of a referee, 
 in a proceeding to sell the real estate of an habitual 
 drunkard to pay his debts, which report found that a cer- 
 tain claim presented was a valid claim, is not a judgment 
 within the meaning of section 376. {Sheldon v. Mi rick, 
 144 N. Y. 498 ) . This statute relates only to the remedy 
 by action upon the judgment, and it does not take away 
 the right to issue execution. {Kincaid, v. Richardson, 
 25 Hun, 237). If the proof of payment, under section 
 376, consists of the return of an execution partly satis- 
 fied, the adverse party may show, in full avoidance of the 
 effect thereof, that the alleged partial satisfaction did 
 not proceed from a payment made, or a sale of property 
 claimed, by him, or by a third person whom he repre- 
 sents. (Co. Civ. Proc. § 377). A person may avail him- 
 self of the presumption created by section 376, under 
 an allegation that the action was not commenced, or that 
 the proceeding was not taken, within the time therein 
 limited. (Co. Civ. Proc. § 378). An action to redeem 
 real property from a mortgage, with or without an ac- 
 count of rents and profits, may be maintained by the 
 
92 PRACTICE. 
 
 mortgagor, or those claiming under him, against the 
 mortgagee in possession, or those claiming under him, 
 unless he or they have continuously maintained an ad- 
 verse possession of the mortgaged premises, for twenty 
 years after the breach of a condition of the mortgage, or 
 the non-fulfillment of a covenant therein contained. (Co, 
 Civ. Proc. § 379). This changes the rule laid down 
 in Miner v. Beckman (50 N. Y. 337), and Hubbell v. Sib- 
 ley (50 N. Y. 468). {Shrivcr v. Shriver, 86 N. Y. 580, 
 Folger, J.). But where the mortgagee has improperly 
 sold the property and the action is brought by the mort- 
 gagor for an accounting, it is not within this section, but 
 is governed by section 382; it is therefore barred in six 
 years from the receipt of the money. {Mills v. Mills, 
 115 N. Y. 80 ) . The statute does not run against an ac- 
 tion to remove a cloud upon a title of one in possession 
 of land, as the cause of action is deemed a continuous 
 one. (Smith v. Reicl, 134 X. Y. 568). The same rule 
 applies to an action brought by the taxpayers of a county 
 to cancel invalid bonds which are made by statute a lien 
 upon the property of the town. {Strang v. Cook, 47 
 Hun, 46). ' 
 
 An action upon a sealed instrument must be com- 
 menced within twenty years, and where the action is 
 brought for a breach of a covenant of seizin or against 
 incumbrances, the cause of action is, for the purposes 
 of this action only, deemed to have accrued upon an evic- 
 tion, and not before. (Co. Civ. Proc. § 381). An action 
 for the specific performance of a contract under seal, is 
 not within this section {Peters v. Delaplain, 49 N. Y. 
 362), nor is an action to enforce the payment of a legacy, 
 charged upon the land. ( Loder v. Hatfield, 71 N. Y. 92) . 
 An action to foreclose a mortgage given as security for a 
 simple contract debt, is within this statute, and may be 
 brought after six years, although the right to sue upon 
 the debt, which it is given to secure, is barred by the 
 statute of limitations. {Eulbert v. Clark, 128 N. Y. 
 295 ) . Where one by deed, has assumed the payment of a 
 mortgage, an action upon his covenant is an action upon 
 a sealed instrument, and is within this section, and is 
 not barred within six years. {Isl. Y. Li. Ins. Co. v. 
 
ACTIONS AND THE TIMES OF COMMENCIXG THEM. 93 
 
 Aitkin, 125 N. Y. 660). An action for an accounting 
 between partners, founded on a covenant, or any part- 
 nership agreement under seal, tliat losses or expenses 
 should be borne by them in equal proportion, is an action 
 upon a sealed instrument under tliis section. {DwiiivUe 
 Y. Eddij, 102 :S. Y. 42S) . 
 
 Subdivision 2. — Within Six Years. 
 
 The following actions must be commenced within six 
 years : 
 
 1. An action upon a contract obligation or liability, 
 express or implied; except a judgment or sealed instru- 
 ment. 
 
 2. An action to recover upon a liability created by 
 statute; except a penalty on forfeiture. 
 
 3. An action to recover damages for an injury to 
 property, or a personal injury ; except in a case where a 
 different period is expressly prescribed in this chapter. 
 
 4. An action to recover a chattel. 
 
 5. An action to procure a judgment, other than for a 
 Slim of money, on the ground of fraud, in a case which, 
 on the thirty-first day of December, 1846, was cognizable 
 by the court of chancery. The cause of action, in such 
 a case, is not deemed to have accrued, until the discovery 
 by the plaintiff, or the person under whom he claims, of 
 the facts constituting the fraud. 
 
 6. An action to establish a will. Where the will has 
 been lost, concealed, or destroyed, the cause of action is 
 not deemed to have accrued, until the discovery by the 
 plaintiff, or the person under whom he claims, of the 
 facts upon which its validity depends. 
 
 7. An action upon a judgment or decree, rendered in 
 a court, not of record, except where a transcript shall be 
 filed, pursuant to section 3017 of this act, and also ex- 
 cept a decree heretofore rendered in a surrogate's court 
 of the state. The cause of action in such a case is deemed 
 to have accrued when final judgment was rendered. (Co. 
 Civ. Proc. § 382). The following actions and proceed- 
 ings have been held to be within this section : 
 
 An action on a promise to pay for property, trans- 
 ferred by a sealed instrument, if the instrument contain 
 
94 PRACTICE. 
 
 no covenant to pay. {Coleman v. Second Ave. B. Co., 38 
 N. Y. 201). An action for accounting, where one pur- 
 chased land, and held it under an agreement to sell, and 
 account for part of the proceeds to another. {Roup t. 
 Bradner, 19 Hun, 513). An action by a wife for the 
 enticement of her husband. {Hogan v. Wolf, 32 St. 
 Rep. 550 ; 10 Supp. 896 ; 26 Abb. N. 0. 1) . An action for 
 damages for a breach of contract to convey lands. {Bush 
 V. Shaw, 7 Wk. Dig. 539). An action against an at- 
 torney to recover damages for fraudulently procuring 
 from the plaintiff, his client, a deed of real property, 
 and the consequent destruction of plaintiff's title. 
 {Latifer v. Sayles, 5 App. Div. 582). An action to en- 
 force the liability of stockholders of a manufacturing 
 corporation, because the capital stock is not paid in full. 
 {Phelps V. Thervasson, 11 Hun, 141; Knox v. Baldwin, 
 80 N. y. 610). An action against a stockholder for a 
 debt of a corporation. {Chase v. Lord, 16 Hun, 369; 
 rev'd on another point, 77 N. Y. 1; Corning v. McCul- 
 lough, 1 N. Y. 47). An action against an officer of a 
 corporation for misapplying the assets of the corpora- 
 tion. ( Pier son v. McCurdy, 33 Hun, 520 ; 100 N. Y. 608) . 
 An action by a town to cancel municipal bonds. ( Town 
 of Venice v. Breed, 1 T. &. C, 130; see, however, S. C. 
 68 N. Y. 462, 471-2). An action on an implied contract 
 against a town with reference to the coupons attached 
 to its bonds which have been improperly issued. ( Smith 
 V. The Toion of Greenwich, 80 Hun, 118 ; affd. 145 N. Y. 
 649, 146 N. Y. 372). An action against a county for 
 taxes appropriated by it, which should have been paid 
 over for the benefit of the town, to establish a sinking 
 fiind to apply upon its bonds. {Kilbourne v. Board of 
 Supervisors, 137 N. Y. 170). An action to enforce a 
 devisee's lien on land. {Borst v. Corey, 15 N. Y. 505). 
 An actioh by a husband to recover damages to his 
 wife, caused by a nuisance maintained by the defendant, 
 is within this section, and not within the three year limi- 
 tati(m. (Jorgcnsen v. Minister of Kefd. Ch. 7 Misc. 1). 
 An action to recover money paid upon an illegal assess- 
 ment is within the six years statute. {Diefenthaler v. 
 The Mayor, 111 N. Y. 3Sl;Jex v. Mayor, 111 N. Y. 339 ; 
 
ACTIONS AND THE TIMES OF COMMENCING THEM. 95 
 
 Triinmer v. Rochester, 134 N. Y. 76), and the statute 
 begins to run against such an action, immediately upon 
 the payment. {Parsons v. The Citi/ of Rochester, 43 
 Han, 258). An action upon a legacy charged upon 
 lands, where the devisee is personally liable, is within 
 this section. (Zireigle y. Hohman, 75 Hun, S17). Sub- 
 division 5 of this section does not apply solely to cases 
 cognizable in a court of chancery, as was the case under 
 tlie code of procedure. {Foot v. Furriiu/ton, 41 N. Y. 
 1G4). It covers all cases formerly cognizable in that 
 court, whether its jurisdiction was exclusive or concur- 
 rent with that of courts of laws, in which any remedy or 
 relief is sought for, aside from or in addition to, a mere 
 money judgment, and which a court of law could not 
 give, although as part of the relief sought, a money judg- 
 ment is also demanded. {Bosley v. 1^. M. Co., 123 N. Y. 
 550). An action to recover moneys from one who re- 
 ceived them in his own right and who afterwards, by 
 construction, becomes a trustee thereof, is within this 
 section. {Price y. Midford, 101 'N. Y. SOS). An action 
 to recover a sum of money as damages, on the ground of 
 fraud, is barred, if not brought within six years after 
 the perpetration of the fraud. {Miller v. Wood, 116 N 
 Y. 351). A judgment creditor's action is within sub 
 division five of this section. {Weaver v. Haviland 
 142 N. Y. 534; Gates v. Andrews, 37 N. Y. 657) 
 An action to annul a marriage on the ground of fraud 
 is within this subdivision., {Montgomery v. Montgom 
 ery, 3 Barb. Chan. 132). In actions under this section 
 the discovery of the facts constituting the fraud, is not 
 necessarily the time of the accruing of the right of ac- 
 tion, but the statute does not begin to run until the 
 right of action is perfect, although the fraud may have 
 been previously discovered. {Wearer v. Haviland, 
 supra). The statute will begin to run from the time 
 when the plaintiff has discovered sufficient facts to fair- 
 ly arouse suspicion and to suggest the need of inquiry, 
 although he does not know the facts constituting the 
 fraud; he will be deemed at that time to have discov- 
 ered them. {Higgins v. Grouse, 147 N. Y. 411). An 
 7 
 
96 PRACTICE. 
 
 action by a ward against his guardian for an accounting 
 for money received by the guardian, is not within this 
 statute, and is not barred by the expiration of six years 
 after the ward becomes of age. {Matter of Gamp, 126 
 N. Y. 377). The case of Van Der Zee (73 Hun, 532), 
 which holds to the contrary, is not the law. A proceed- 
 ing to compel an executor or administrator to account 
 before the surrogate must be commenced within six 
 years after the right to compel the accounting accrued. 
 {Matter of Van Dyke, 44 Hun, 394). A proceeding by 
 an administrator de bonis non, as such, to compel 
 the representative of his deceased predecessor to ac- 
 count in the surrogate's court is controlled by the 
 ten year statute. {Matter of Rogers, 153 N. Y. 316). 
 An action by the owner of a fee to remove a cloud upon 
 the title to land by the cancellation of a mortgage there- 
 on, is never barred by the statute of limitations. 
 {Schoencr v. Lissauer, 107 N. Y. Ill ; Smith v. Reid, 134 
 N. Y. 568). Although the plaintiff might have sued, 
 either at law or in equity at his option, and he chooses 
 to sue on the equity side of the court, yet if he might 
 have had a remedy at law, the six years, and not the ten 
 yea]-s statute, applies. {Butler v. Johnson, 111 N. Y. 
 204). A special proceeding to compel a municipality to 
 pay for lands taken for public use is not barred in six 
 years. The obligation to pay is created by the constitu- 
 tion and not bv statute. {Matter of Clark, 148 N. 
 Y. 1). 
 
 Where the statute is pleaded, the burden is on the 
 plaintiff to show and excuse his failure to discover 
 the facts constituting the fraud, but it is not necessary 
 for him to allege those facts in his complaint. (Erickson 
 V. Qiiinn, 3 Lans. 299; 47 N. Y. 410; see also. Mason v. 
 Heney, 152 N. Y'. 529). In an action for mesne profits, 
 they can only be recovered for six years before the com- 
 mencement of the action. (Co. Civ. Proc. § 1531). A 
 widow recovering dower in property of which her hus- 
 band died seized can recover damages for witholding her 
 dower for not exceeding six years in the whole. (Co. 
 Civ. Proc. § 1600). 
 
ACTIONS AND THE TIMES OP COMMENCING THEJI. 97 
 
 Subdivision 3. — WiTi-iiN Five Years. 
 
 An action to annul a marriage on the ground that one 
 of the parties was physically incapable of entering into 
 the marriage state, must be commenced before five years 
 have expired since the marriage. (Co. Civ. Proc. § 
 1752) . The period, of limitation on this action was for- 
 merly two years, but was changed to five years in 1895. 
 It was suggested in Griffin v. Qriffin (23 How. Pr. 183), 
 that if the period of limitation had passed without suit 
 brought, this action could not be maintained, but in 
 Kaiser v. Kaiser (16 Hun, 602), the court held that this 
 was a statute of limitation, and that the lapse of time 
 must be pleaded as it could not be relied upon for a de- 
 fense. Davis, P. J., dissented. As the courts of this 
 state have no jurisdiction to set aside a marriage except 
 such as is given them by statute, it would seem that this 
 portion of section 1752 was a limitation on their juris- 
 diction, and it is doubtful whether the case of Kaiser v. 
 Kaiser, supra, is a correct statement of the law. The 
 plaintiff is not entitled to a divorce in an action therefor, 
 although the adultery is established, where there has 
 been no express forgiveness, and no voluntary cohabita- 
 tion of the parties, but the action was not commenced 
 within five years after the discovery by the plaintiff of 
 the offense charged. (Co. Civ. Proc. § 1758). 
 
 Subdivision 4. — Within Three Years. 
 
 The following actions must be brought within three 
 years : 
 
 1. An action against a sheriff, coroner, constable, or 
 other officer, for the non-payment of money collected 
 iipon an execution. 
 
 2. An action against a constable, upon any other lia- 
 bility incurred by him, by doing an act in his official 
 capacity, or by the omission of an official duty ; except an 
 escape. 
 
 3. An action upon a statute, for a penalty or for- 
 feitures where the action is given to the person 
 aggrieved, or to that person and the people of the state ; 
 except where the statute imposing it prescribes a differ- 
 ent limitation. 
 
98 PRACTICE. 
 
 4. An action against an executor, administpator, or 
 receiver, or against the trustee of an insolTent debtor, 
 appointed, as prescribed by law, in a special proceeding 
 instituted in a court or before a judge, brought to recover 
 a chattel, or damages for taking, detaining, or injuring 
 personal property, by the defendant, or the person whom 
 he represents. 
 
 5. An action to recover damages for a personal in- 
 jury, resulting from negligence. (Co. Civ. Proc. § 383). 
 In applying this section it is immaterial whether the ac- 
 tion is in form for contract or for a tort. Where the 
 source of the injury is negligence, the action is barred if 
 not begun in three years. (Weher v. H. M. 8. R. R. Co., 
 109 N. Y. 311 ) . Applying this principle it has been held 
 that an action for personal injuries, arising from the 
 malpractice of a physician, must be brought within three 
 years, and the fact that his services were rendered under 
 a contract, does not change the period of limitation. 
 {Bnirill v. Preston, 54 Hun, 70). Within the three 
 years limitation are included actions against a trustee 
 of a corporation for neglecting to file the annual report, 
 and also for declaring and paying dividends when the 
 corporation is insolvent (Merchants Bank of Neiv Haven 
 V. Bliss, 35 N. Y. 412; Losee v. BitJlard, 79 N. Y. 404; 
 Chapman v. Ijynch, 156 N. Y. 551) ; also actions against 
 directors and stockholders of a moneyed corporation, or 
 banking association, to recover a penalty or forfeiture 
 imposed, or to enforce a liability created by the common 
 law or statute. (Co. Civ. Proc. § 394). An action 
 against a sheriff by a purchaser at execution sale, which 
 was set aside for irregularity, to recover back the money 
 paid is within this section [Browne v. O'Brien, 5 Daly, 
 474) ; so is a motion to determine the surplus on an ex- 
 ecution sale, and to compel the payment to the defendant. 
 
 {Franhel v. Ellas, 60 How. Pr. 74). An action against 
 a stakeholder, to i*ecover a wager, under the statute of 
 betting and gaming, must be brought within three years 
 (Fowler v. Van Siirdam, 1 Den. 557) ; so of an action to 
 recover double the sum paid for lottery tickets, with 
 double costs. (Crorer v. Morris, 73 N. Y. 473). This 
 section applies to an action against a municipal corpora- 
 
ACTIONS AND THU TIMES OF COMMENCING THEM. 99 
 
 tion for failure to keep streets in repair. (Dickinson v. 
 Mayor. 92 N. Y. 584). An action by a husband to re- 
 cover damages for an injury to liis wife, tlirougli tlie 
 defendant's negligence, is barred by this statute. [Max- 
 son V. I). L. cG W. R. B. Co., 112 N. Y. 539) . The case of 
 fffoth V. Wafihhvrn (84 Hun, 509), laying down a differ- 
 ent rule, has been overruled. 
 
 Subdivision 5. — Within Two Years. 
 
 The following actions must be brought within two 
 years after the cause of action has accrued : 
 
 1. An action to recover damages for libel, slander, 
 assault, battery, seduction, criminal conversation, false 
 imprisonment, malicious prosecution, or malpractice. 
 
 2. An action upon a statute, for a forfeiture or pen- 
 alty to the people of the state. (Co. Civ. Proc. § 384). 
 An action against a master for assault and battery com- 
 mitted by his servant is within this section. {Priest v. 
 H. R. rSr. Co., 10 Abb. Pr. N. S. 60; 40 How. Pr. 456). 
 An action for causing death by negligence must be 
 brought within two years. ( Co. Civ. Proc. § 1902 ) . The 
 legality of a grant to trustees for the creation of a public 
 library, museum, or other educational institution cannot 
 be questioned unless the suit, in which such question 
 is raised, is begun within two years after the date of 
 filing such grant for record. (3 E. S. 9 Ed. 2871, § 7). 
 A two year limitation is also imposed on the personal 
 liability of stockholders for the debts of a corporation. 
 (2 K. S. 9 Ed. 1026, § 55). An action by a person who 
 has become a stockholder or a creditor of a corporation 
 upon the faith of a false certificate, report, or public no- 
 tice, made or given by the officers or directors of that 
 corporation, against the officers or directors signing the 
 same, must be begun within two years from the time the 
 certificate, report or public notice was made or given. 
 (2 R. S. 9 Ed. 1014-5, § 31). An action to recover dam- 
 ages by reason of the erection in any city of an exterior 
 Avail, partly upon a strip of land not exceeding six inches 
 and partly upon the adjoining lot, where a building has 
 been erected upon land of the plaintiff abijtting on the 
 said wall, must be brought within two years after the 
 
100 PRACTICE. 
 
 completion of the erection of such wall. (Co. Civ. Proc. 
 § 1499). 
 
 Subdivision 6. — Within One Year. 
 The following actions must be brought within one 
 year after the cause of action has accrued : 
 
 1. An action against a sheriff or coroner, upon a lia- 
 bility incurred by him, by doing an act in his official 
 capacity, or by the omission of an official duty; except 
 the non-payment of money collected upon an execution. 
 
 2. An action against any other officer, for the escape 
 of a prisoner, arrested or imprisoned by virtue of a civil 
 mandate. (Co. Civ. Proc. § 385). An action against a 
 sheriff for seizing, or selling upon his process the prop- 
 erty of one person under an execution or attachment 
 against another, is within this section. {Dennison v. 
 Plumh, 18 Barb. 89; Cummhig v. Brown, 43 N. Y. 514). 
 The case of Morris v. Van Voast (19 Wend. 283), hold- 
 ing to the contrary, is overruled. So, an action against 
 a sheriff for neglect to return an execution is within this 
 statute. (Feck y. Hulhnrt, 46 Barh. 559). The section 
 is not applicable to an action against a sheriff for pro- 
 curing payment, by means of a sworn bill and false 
 vouchers, for board of fictitious persons, never confined 
 in jail. (Board of Supervisors v. Walte)'. 4 Hun, 87). 
 An action to recover animals seized as strays on the high- 
 way, or for damages for their seizure, must be brought 
 within one year. (Co. Civ. Proc. § 3107). An action by 
 a borrower who has paid usury, to recover back the ex- 
 cess of interest, must be brought within one year. (2 R. 
 S. 9 Ed. ]S55, § 3). Actions against directors of mem- 
 bership corporations, for a debt or liability of the cor- 
 poration, must be brought within one year after an 
 execution against the corporation is returned unsatis- 
 fied. (2 R. S. 9 Ed. 1438, § 11). An action upon a 
 statute for a penalty or forfeiture, given wholly or partly 
 to any person who will prosecute for the same, must be 
 commenced within one year after the commission of the 
 offense; and if the action is not commenced within the 
 year by a private person, it may be commenced within 
 two years thereafter, in behalf of the people of the state, 
 by the attorney general, or the district attorney of the 
 
ACTIONS AND THE TIMES OF COMMENCING THEM. 101 
 
 county where the offense was committed. ( Co. Oiv. Proc. 
 § 387). An action against a city of the state, having 
 50,000 inhabitants or over, for damages for personal in- 
 juries alleged to have been sustained by reason of the 
 negligence of an agent or employe of the city, must be 
 begun witliin one year after the cause of action accrued. 
 (3 IJ. S. 9 Ed. 2686). An action against a railroad cor- 
 poration to recover the penalty for charging an excessive 
 fare must be begun within one year after the cause of 
 action accrued. (2 E. S. 9 Ed. 1274-5, § 39). An action 
 to recover real property, or the possession thereof, can- 
 not be maintained, where in any city the real property 
 consists of a strip of land not exceeding six inches in 
 width upon which there stands the exterior wall of a 
 building erected partly upon said strip and partly upon 
 the adjoining lot, and a building has been erected upon 
 land of the plaintiff abutting on the said wall, unless 
 said action be commenced within one year after the com- 
 pletion of the erection of such wall. (Co. Oiv. Proc. 
 § 1499). 
 
 Subdivision 7. — Within Ten Years. 
 An action, the limitation of which is not especially 
 prescribed in one of the preceding sections of the code of 
 civil procedure, must be commenced within ten years 
 after the cause of action accrues. (Co. Civ. Proc. § 388). 
 This section applies to all actions exclusively of equity 
 jurisdiction, in which there is no concuri-ent remedy at 
 law. (Ziveigle v. Hohiiiaii, 75 Hun, 377; Gallup v. 
 Bernd, 132 N. Y. 370). It includes all actions in equity, 
 except such as are within subdivision five of section 382. 
 (SaUshunj v. Morss, 7 Lans. 359; 55 N. Y. 675; Hot/t v. 
 Tuthill, 33 Hun, 196). The fact that the plaintiff has 
 elected to seek equitable relief, does not extend the stat- 
 ute if he has a remedy at law. (ffann v. Culver^ 73 Hun, 
 109 ) . The following actions are included within section 
 388: Actions for separation (Burr v. Burr, 10 Paige, 
 20) ; by the creditors of a corporation to reach assets 
 withheld by the stockholders (Chrutcmen v. Eno, 21 
 Wk. Dig. 202) ; to establish a resulting trust (Higgins 
 V. Higgins, 14 Abb. N. C. 13) ;.to adjust the affairs of a 
 partnership {Still v. HolhrooJc, 23 Hun, 517; Campbell 
 
102 PRACTICE. 
 
 V. Hughes, 73 Hun, 14) ; an action by one who has 
 subscribed to a joint enterprise to call the trustee to ac- 
 count {Rodman v. Devlin, 23 Hun, 590) ; by the cestui 
 que trust against a trustee who has purchased the trust 
 premises on his own account [Ward v. Smith, 3 Sand. 
 Ch. 592; Hiibhell v. Mcdhury, 53 N. Y. 98) ; an action to 
 charge lands in the hands of a devisee with debts, if the 
 devisees are not personally liable, is within this statute. 
 {Wood V. Wood, 26 Barb. 356; Mortimer v. Chambers, 
 63 Hun, 335). Where the equitable owner of land is 
 evicted by one owning legal title, the ten years statute 
 applies to an action to obtain possession. {Varick v. 
 Edimrds, 11 Paige, 289 ; Bartlett v. Judd, 20 N. Y. 200, 
 at 205). Where one has purchased the demands of a 
 bank against the cashier, an action against the cashier 
 to compel an accounting and payment, is within this 
 section of the statute. {Mann v. Fairchild, 14 Barb. 548) . 
 Actions for the specific performance of a contract 
 {Peters v. Delaplaine. 49 N. Y. 362; Bruce v. Tilson, 25 
 N. Y. 194 ) ; and to reform a contract on the ground of a 
 mistake or inadvertence ( Oakes v. Hoicell, 27 How. Pr. 
 145; Ho:ut V. Putnam, 39 Hun, 402) ; are barred by the 
 ten years statute. An action against a vendor for a spe- 
 cific performance of a contract to sell land in possession 
 of the purchaser, accrues upon the payment of the pur- 
 chase price. (ifeH^/ V. Po/:/(3r, 16 Supp. 446). An action 
 to redeem a pledge is Avithin this section of the statute 
 {Roberts v. Si/kc'^, 30 Barb. 133) ; also an action by a 
 trustee for relief against the estate of a cestui que trust, 
 for money expended for the benefit of the estate. {Bran- 
 don V. Brandon, 50 How. Pr. 328; 4 T. & C. 385). A 
 proceeding to vacate an assessment in the city of New 
 York is barred in ten years. {Matter of Striker, 23 Hun, 
 647) . An action by the people of the state, founded upon 
 the spoliation or misappropriation of public property, is 
 barred in ten years. (Co. Civ. Proc. § 1972). 
 
 Subdivision 8. — Actions by the People. 
 
 The limitations, prescribed in the code of civil pro^ 
 cedure, apx^ly alike to actions brought in the name of the 
 people of the state, or for their benefit, and to actions 
 
ACTIONS AND THE TIMES OF COMMENCING THEM. 103 
 
 by private persons. ( Co. Civ. Proc. § 389 ) . Neither tlie 
 legislature nor any person or persons acting in behalf of 
 the stale, shall audit, allow or pay any claim, which, as 
 between citizens of the state, would be barred by lapse 
 of time, but if the claimant be under legal disability, the 
 claim may be presented within two years after the dis- 
 ability is removed. ( Con. Art. 7, § 6 ) . Presentment of 
 a claim to the legislature, or to any body of officers hav- 
 ing jurisdiction to pay, allow, or act upon it, followed by 
 an appropriation by the legislature of money to pay 
 the claim, although the state officers refuse to pay after 
 such appropriation, is sufficient to prevent the statute 
 of limitations running in favor of the state if the claim 
 is prosecuted with reasonable diligence thereafter. 
 {Corkiugs v. The State, 99 N. Y. 491). 
 
 Sec. 3. Non-Residence or Absence from the State. 
 
 Where a cause of action, which does not involve the 
 title to or possession of real property within the state, 
 accrues against a person, who is not then a resident of 
 the state, an action cannot be brought thereon in a court 
 of the state, against him or his personal representatives, 
 after the expiration of the time, limited, by the laws 
 of his residence, for bringing a like action, except by a 
 resident of the state, and in one of the following cases : 
 
 1. Where the cause of action originally accrued in 
 favor of a resident of the state. 
 
 2. Where, before the expiration of the time so lim- 
 ited, the person, in whose favor it originally accrued, 
 was or became a resident of the state; or the cause of 
 action was assigned to, and thereafter continuously 
 owned by, a resident of the state. (Co. Civ. Proc. § 390). 
 This section changes the rule laid down in Miller v. Bren- 
 ham (7 Hun, 330; 68 N. Y. 83) and the other cases, 
 which held that the statute of limitations of another 
 state, can never be a bar to an action in this state (see 
 Tioga R. R. Co. v. B. d O. R. R. Co., 20 Wal. 137 ; Olcott 
 V. Tioga R. R. Co., 20 N. Y. 214 ; Pov^er v. Hathawag, 43 
 Barb. 214) ; but a non-resident corporation cannot plead 
 the statute of limitations peculiar to section 1902. ( Lon- 
 driggan v. N. T. & N. H. R. R. Co., 12 Abb. N. 0. 273). 
 
104 PRACTICE, 
 
 If, when the cause of action accrues against a person he 
 is without the state, the action may be commenced 
 within the time limited therefor, after his return into 
 the state. If, after a cause of action has accrued against 
 the person, he departs from the state and remains con- 
 tinuously absent therefrom for the space of one year or 
 more, or if, without the knowledge of the person en- 
 titled to maintain the action, he resides within the state 
 under a false name, the time of his absence or of such 
 residence within the state under such false name is not 
 a part of the time limited for the commencement of the 
 action. But this section does not apply while a designa- 
 tion made as prescribed in section 430 or in subdivision 
 2 of section 432 of this act remains in force. (Co. Civ. 
 Proc. § 401). It is also provided that nothing in this 
 section contained shall revive any cause of action barred 
 by the statutes as it existed prior to the passage of this 
 act (Id.). This section applies to non-residents as well 
 as citizens of the state. {Mayer v. Friedman, 7 Hun, 
 218; 69 N. Y. 608). To set the statute running, the de- 
 fendant's return to the state must be open and notorious, 
 so that the plaintiff either knew of it, or could have 
 known of it with reasonable diligence. {Palmer v. Ben- 
 nett, 83 Hun, 220; 152 N. Y. 621). This section (401) 
 formerly read "departs from, and resides n-ithoiit, the 
 state," and it was held that a residence without the 
 state must be proven to bring the case within the sec- 
 tion. (?/ar^ V. i!L/;>, 148 N. 1^ 306). The provision re- 
 quiring residence without the state was stricken out in 
 1896. ^(Chnp. 665, L. 1896). The statute of limitations 
 does not run in favor of a non-resident of the state, 
 against a resident. {Rugf/les v. Kceler, 3 Johns. 263). 
 A foreign corporation is a person out of the state within 
 section 401, although it has property and a managing 
 agent within the state. (Rathhiin v. N, C. B. B. Co., 
 50 N. Y. 656; Olcoit v. Tioga B. B. Co., 20 N. Y. 210; 
 Boardman v. JjuIc Shore Michigan Southern B. B. Co., 
 84 N. Y. 157) , and such a corporation cannot avail itself 
 of the statute of limitations in the courts of this state. 
 {Boheson v. Central B. B. of N. J., 76 Hun, 444). The 
 period during which a mortgagor of real property is 
 
ACTIONS AND THE TIMES OF COMMENCING THEM. 105 
 
 absent from the state is not a part of the time limited 
 for beginning an action to foreclose a mortgage, despite 
 the fact that such an action may be begun by publishing 
 the summons. {ISiiiionson v. Nobis, 36 App. Div. 473), 
 The absence of a joint, or joint and several debtor from 
 the state, suspends the running of the statute against 
 him, although the others liable with him have remained 
 in the state {Bogert v. VeniiUya, 10 N. Y. Ml ; Denny v. 
 Smith, 18 N. Y. 567). Brown v. Delafield (1 Denio, 
 445 ) , is overruled by the case last cited. If the debtor is 
 within the state when the cause of action accrues, the 
 time is not extended by various absences each less than 
 one year. {Hickok v. Bliss, 34 Barb. 321 ; Ulner v. But- 
 tcrfield, 49 Super. 515) . It is to be noted that, formerly, 
 the provision requiring continuous absence from the 
 state for the space of one year or more was not incor- 
 porated in the statute; it was held, accordingly, that 
 the statute did not run, at least continuously, in favor 
 of one living out of the state although he did business in 
 the state (Bennett v. Cook, 43 N. Y. 537) ; under the sec- 
 tion in its present form, there must be a continuous ab- 
 sence for a year or more to prevent the statute running. 
 {Costello V. Downer, 19 App. Div. 434; Conn. Tr. Go. v. 
 Wead, 58 App. Div. 493). Where a person is disabled to 
 sue in the courts of the state, by reason of either party 
 being an alien subject, or citizen of a country at war with 
 the United States, the time of the continuance of the 
 disability is not a part of the time limited for the com- 
 mencement of the action. (Co. Civ. Proc. § 404) . 
 
 Sec. 4. What Prevents the Running of the Statute. 
 
 If a person, against whom a cause of action exists, 
 dies without the state, the time which elapses between his 
 death, and the expiration of eighteen months after the 
 issuing, within the state, of letters testamentary or 
 letters of administration, is not a part of the time limited 
 for the commencement of an action therefor, against his 
 executor or administrator. ( Co. Civ. Proc. § 391 ) . For 
 an application of this section, see Merritt v. Carpenter, 
 (12 Wk. Dig. 233). For the purpose of computing 
 the time, within which an action must be commenced 
 
106 PRACTICE. 
 
 in a court of the state, bj an executor or administrator,, 
 to recover personal property, taken after the death of 
 a testator or intestate, and before the issuing of letters 
 testamentary' or letters of administration ; or to recover 
 damages for taking, detaining, or injuring personal 
 property witliin the same period ; the letters are deemed 
 to have been issued, within six years after the death of 
 the testator or intestate. But where an action is barred 
 by this section, any of the next of kin, legatees, or credit- 
 ors, who, at the time of the transaction upon which it 
 might have been founded, was within the age of twenty- 
 one years, or insane, or imprisoned on a criminal charge, 
 may, within five years after the cessation of such a dis- 
 ability, maintain an action to recover damages by reason 
 thereof; in which he may recover such sum, or the value 
 of such property, as he would have received upon the 
 final distribution of the estate, if an action had been 
 seasonably commenced by the execiitor or administrator. 
 (Co. Civ. Proc. § 392). The provisions of this section 
 refer to actions to recover tangible personal property, 
 taken after the death of a testator or intestate, and not 
 to actions by personal representatives for an accounting 
 by surviving partners. {Cohen v. Hyincs, 64 Hun, 54). 
 If a person, entitled to maintain an action, dies before 
 the expiration of the time limited for the commence- 
 ment thereof, and the cause of action survives, an action 
 may be commenced by his representative, after the ex- 
 piration of that time, and within one year after his 
 death. (Co. Civ. Proc. § 402). The term of eighteen 
 months after the death, within the state, of a person 
 against whom a cause of action exists, or of a person 
 who shall have died within sixty days after an attempt 
 shall have been made to commence an action against him 
 pursuant to the provision of section 399 of the code of 
 civil procedure, is not a part of the time limited for the 
 commencement of an action against his executor or 
 administrator. If letters testamentary or letters of 
 administration upon his estate are not issued within the 
 state, at least six months before the expiration of the 
 time to bring the action, as extended by the foregoing 
 provision of this section, the term of one year after such 
 
ACTIONS AND THE TIMES OF COMMENCING THEM. 107 
 
 letters are issued is not a part of the time limited for 
 the commencement of such an action. *** (Co. Civ. Proc. 
 § 403). The extension of one year does not apply if the 
 letters are not issued until after the claim is barred. 
 {Chapman v. Fonda, 24= Hun, 130). This section (403) 
 does not apply to section 376 which provides that a 
 judgment shall be conclusively presumed to be paid 
 after twenty years from the time the party recovering it 
 was entitled to a mandate to enforce it, etc. {Matter of 
 Kendrick, 107 N. Y. 104). Tt seems that the extension 
 of eighteen months mentioned in section 403 applies only 
 to those sections following 380 which limit the time for 
 commencing certain actions. (Id.). The time during 
 which an action is pending in a court of record between 
 a person or persons and an executor or administrator, 
 wherein the person or persons claim to recover from the 
 executor or administrator any money or property 
 claimed by the said executor or administrator to belong 
 to the estate of the decedent, as [sic] is embraced in the 
 inventory of the assets of said decedent's estate, is not 
 a part of the time limited for the commencement of an 
 action against the executor or administrator, for a 
 claim against the estate of the said decedent until the 
 final determination of the action brought to recover 
 said or other property claimed by said executor or ad- 
 ministrator to belong to said decedent's estate: 
 
 1. Where the claim against the esitate of the decedent 
 is liquidated by the recovery of a judgment thereon 
 against an executor or administrator in an action in a 
 court of record or under section 2718 of this code, after 
 trial on the merits. 
 
 2. Where a legatee brings an action, or institutes 
 a proceeding, against an executor or administrator with 
 the will annexed, to enforce the payment of a legacy. 
 (Co. Civ. Proc. § 403). If an action is commenced 
 within the time limited therefor, and a judgment therein 
 is reversed on appeal, without awarding a new trial, 
 or the action is terminated in any other manner than by 
 a voluntary discontinuance, a dismissal of the complaint 
 for neglect to prosecute the action, or a final judgment 
 upon the merits; the plaintiff, or, if he dies, and the 
 
108 PRACTICE. 
 
 cause of action survives, his representative, may com- 
 mence a new action for the same cause, after the expira- 
 tion of the time so limited, and within one year after 
 such a reversal or termination. (Co. Civ. Proc. § 405). 
 This section does not apply to actions which are author- 
 ized by the special statutes which prescribe the particu- 
 lar period of limitation for them. (Co. Civ. Proc. 
 § iU;HiU V. Supervisors, 119 N. Y. 344). Nor does it 
 apply to a case in which the first action was brought 
 elsewhere than in a court of record of the state of New 
 York. {Solomon Y. Bennett, Q2 A.-g^.'D'vf.'&Q). Where 
 a case has been partly tried and a non suit granted, that 
 is not a dismissal of the plaintiff for neglect to prosecute, 
 within the meaning of this section. {Marx v. Man. Rij. 
 Co., 24 Abb. N. C. 62; 10 Supp. 222). Where judgment 
 has been reversed under this section, the plaintiff has 
 one year after final judgment of the court of appeals 
 to bring his action. {Wooster v. The Forty-Second St. 
 R. R. Co., 71 N. Y. 471). This section applies to special 
 proceedings (Co. Civ. Proc. § 414), and the petitioner 
 is considered as the "plaintiff." {Matter of Schlesinger, 
 36 App. Div. 77). Where the commencement of an 
 action has been stayed by injunction, or other order of a 
 court or judge, or by statutory prohibition, the time of 
 the continiiance of the stay is not a part of the time 
 limited for the commencement of the action. (Co. Civ. 
 Proc. § 406) . The provisions of this section apply to the 
 six months limitation for a rejected claim under section 
 1822 of the code of civil procedure. ( Wilder v. Ballon, 
 63 Hun, 118 ; Hay den v. Pierce, 144 N. Y. 512) . It is not 
 necessary that the injunction should be served: if it is 
 brought to the notice of the plaintiff so as to become in 
 force against him, that is sufficient. {Berrien v. Wright, 
 26 Barb. 208). The time during which a creditor is 
 prevented from suing a bankrupt, , under the federal 
 bankruptcy law, is not to be counted as a part of the 
 time limited for the commencement of an action. ( Von 
 Sachs V. Kietz, 10 Hun, 95 ; affd. 72 N. Y. 548) . It seems 
 to have been held, formerly, that this section did not 
 apply where a limitation was contained in the contract 
 sued on {Wilkinson v. First Nat. Fire Ins. Co., 9 Hun, 
 
ACTIOxXS AND THE TIMES OF COMMEiNCING THEM. 109 
 
 522; 72 N. Y. 499), but this may be doubted now in the 
 light of a recent decision of the court of appeals {Ham- 
 ilton V. Roijal Ins. Co., 156 N. Y. 327), holding section 
 399 applicable to such limitations. Where a city charter 
 prohibits a plaintiff from bringing suit until thirty days 
 after the presentation of his claim, the running of the 
 statute is suspended during those thirty days. {Brehm 
 V. Mayor, 104 N. Y. 186). For another instance of 
 "statutory prohibition" see Adams v. Fossett, ( 149 N. Y. 
 61). Where the persons, who might be adverse parties 
 in an action, have entered into a written agreement to 
 submit to arbitration, or to refer the cause of action, or 
 a controversy in which it might be available, or have 
 entered into a written submission thereof to arbitrators ; 
 and before an award, or other determination thereupon, 
 the agreement or submission is revoked, so as to render it 
 ineffectual, by the death of either party thereto, or by the 
 act of the person against whom the action might have 
 been brought; or the execution thereof, or the remedy 
 upon an award, or other determination thereunder, is 
 stayed by injunction, qr other order procured by him 
 from a competent court or judge; the time which has 
 elapsed, between the entering into the written submis- 
 sion or agreement, and the revocation thereof, or the 
 expiration of the stay, is not a part of the time, limited 
 for the commencement of the action. (Co. Civ. Proc. 
 § 411 ) . Where a defendant in an action has interposed 
 an answer, in support of which he would be entitled to 
 rely, at the trial, upon a defense or counter-claim then 
 existing in his favor, the remedy upon which, at the 
 time of the commencement of the action, was not barred 
 by the provisions of this chapter; and the complaint is 
 dismissed, or the action is discontinued, or abates in 
 consequence of the plaintiff's death; the time which 
 intervened, between the commencement and the termina- 
 tion of the action, is not a part of the time, limited for 
 the commencement of an action by the defendant, to 
 recover for the cause of action so interposed as a defense, 
 or to interpose the same defense in another action 
 brought by the same plaintiff, or a person deriving title 
 from or under him. (Co. Civ. Proc. § 412). If a person. 
 
110 PRACTICE. 
 
 entitled to maintain an action specified in this title, 
 except for a penalty of forfeiture, or against a sheriff 
 or other officer for an escape, is, at the time when the 
 cause of action occrues, 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 offense, for a term less 
 than for life ; the time of such disability is not a part of 
 the time, limited in this title for commencing the action ; 
 except that the time so limited cannot be extended more 
 than five years by any such disability, except infancy; 
 or, in any case, more than one year after the disability 
 ceases. (Co. Civ. Proc. § 396). A person cannot avail 
 himself of a disability unless it existed when his right of 
 action or of entry accrued. (Co. Civ. Proc. § 408). 
 Where two or more disabilities co-exist, when the right 
 of action or of enti'y accrues, the limitation does not 
 attach, until all are removed. (Co. Civ. Proc. § 409). 
 If a widow is at the time of the death of her husband, 
 laboring under any of the disabilities mentioned in sec- 
 tion 396, the time of such disability is not part of the 
 time limited for the commencement of an action for her 
 dower. And if at any time, before her claim of dower 
 lias been barred by a lapse of twenty years, the owner of 
 the land subject to it, being in possession, shall have 
 recognized her claim of dower by any statement con- 
 tained in a writing under seal, subscribed and acknowl- 
 edged in the manner entitling a deed of real estate to 
 be recorded, or if by any judgment or decree of a court 
 of record, within the same time, and concerning the 
 lands in question, wherein such owner or owners were 
 parties, such right of dower shall have been distinctly 
 recognized as a subsisting claim against said lands, the 
 time after the death of her husband, and previous to such 
 acknowledgment in writing or such recognition by judg- 
 ment or decree, is not part of the time limited for the 
 commencement of the action for her dower. (Co. Civ. 
 Proc. § 1596). 
 
ACTIONS AND THE TIMES OF COMMENCING THEM. IH 
 
 Sec. 5. What Actions are not Within the Statute. 
 
 Actions to enforce the payment of a bill, note, or other 
 evidence of debt, issued by a moneyed corporation, or 
 issued or put in circulation as money, are not within 
 the statute of limitations. (Co. Civ. Proc. § 393). The 
 statute of limitations has no application to proceedings 
 in an action which has once been commenced and is 
 pending. {Hawlcy v. Whalen, 64 Hun, 550). 
 
 See. 6. Mode of Computing Time. 
 
 The periods of limitation, prescribed by this chapter, 
 except as otherwise specially prescribed therein, must 
 be computed from the time of the accruing of the right 
 to relief by action, special proceeding, defense, or other- 
 wise, as the case requires, to the time when the claim 
 to that relief is actually interposed by the party, as a 
 plaintiif or a. derfendant, in the particular action or 
 special proceeding. (Co. Civ. Proc. § 415). It was held 
 in Hall v. Brennan, (140 N. Y. 409), that the term 
 "year" as used before the statutory construction act took 
 effect, is taken to consist of 365 days, for all purposes of 
 application to the statute of limitations. But the 
 statutory construction act ( sec. 25 ) , defines the meaning 
 of the term "year'' when used in the statute, to be twelve 
 months. In an action brought to recover a balance upon 
 a mutual, open and current account, where there have 
 been reciprocal demands between the parties, the cause 
 of action is deemed to have accrued from the time of 
 the last item proved in the account on either side. ( Co. 
 Civ. Proc. § 386). An account containing items of the 
 moneys received and paid by one party, and contained 
 only in his books, is not a mutual, open and current 
 account, within this section. (Adams v. OHn, 140 N. Y. 
 150) . Where an injury results from the act or omission 
 of a deputy or agent, the time, within which an action 
 to recover damages by reason thereof, must be com- 
 menced by the principal, against the deputy or agent, 
 must be computed from the time, when a judgment 
 against the principal, for the act or omission, is first 
 recovered by the aggrieved person; and a subsequent 
 8 
 
112 PRACTICE. 
 
 reversal or setting aside of the judgment does not ex- 
 tend the time. ( Co. Civ. Proc. § 407 ) . Where a right 
 exists, but a demand is necessary to entitle a person to 
 maintain an action, the time, within which the action 
 must be commenced, must be computed from the time 
 when the right to make the demand is complete ; except 
 in one of the folloAving cases: 
 
 1. Where the right grows out of the receipt or deten- 
 tion of money or property, by an agent, trustee, attor- 
 ney, or other person acting in a fiduciary capacity, the 
 time must be computed from the time, when the person, 
 having the right to make the demand, has actual knowl- 
 edge of the facts, upon which that right depends. 
 
 2. Where there was a deposit of money, not to be 
 repaid at a fixed time, but only upon a special demand, 
 or a delivery of personal property, not to be returned, 
 specifically or in kind, at a fixed time or upon a fixed 
 contingency, the time must be computed from the 
 demand. (Co. Civ. Proc. § 410). The second subdi- 
 vision of this section only applies where there was some 
 special agreement or understanding as to the repayment 
 of the money deposited, or the return of the property 
 delivered. In the absence of such an agreement, the 
 lapse of six years from the receipt of the property, bars 
 the claim. {Adams v. Olin, 140 N. Y. 150). A promis- 
 sory note payable on demand is barred in six years from 
 its date, whether it bears interest or not. {Wliceler v. 
 Warner, 47 N. Y. 519; Mills v. Davis, 113 N. Y. 243). 
 As against the endorser of such a note the statute runs 
 from demand and protest {Parker v. Btroud, 98 N. Y. 
 379), but as against the endorser of a non-negotiable 
 note payable on demand, the statute begins to run from 
 its date. {McMullen v. Rafferty, 89 N. Y. 456) . Where 
 a deposit is made with a bank, or with any other deposi- 
 tory, the cause of action loes not accrue until a demand. 
 (Boughton v. Flint, 74 N. Y. 476; Howell v. Adams, 68 
 N. Y. 314; Smiley v. Fry, 100 N. Y. 262). Money de- 
 posited by a contractor as security for performance of 
 his contract, to be returned on the complete performance, 
 is not within subdivision 2 of section 410. ( Oorldngs v. 
 The State, 99 N. Y. 491). Where one is indebted to a 
 
ACTIONS AND THE TIMES OP COMMENCING THEM. 113 
 
 married woman, and executes an instrument, acknowl- 
 edging the debt and agreeing to pay interest, stating 
 that it was agreed that the sum should remain in his 
 hands in trust for her, that debt is not within that sub- 
 vision. {Matter of Ncilltj, 95 'N.Y. 382). Tlie statute 
 of limitations begins to run, against the drawee of a 
 check from the time of presentation and refusal. ( Yiets 
 V. Union Kat. Bank, 101 N. Y. 563). If the drawer has 
 no funds in the bank to meet the check, the statute 
 begins to run against him at its date. {Bruah \. Barrett, 
 82 N. Y. 400). The statute does not run in favor of a 
 trustee, as against the cestui que trust, until open denial 
 or repudiation of the trust, or notice of an adverse claim. 
 {Purdij V. Sistare, 2 Hun, 126; Bldduwre v. Post, 20 
 Wk. Dig. 349; HubbcU v. Medburi/, 53 N. Y. 98). 
 This rule, however, applies only to the trustee of an 
 actual, expressed and subsisting trust {Laininer v. Stod- 
 dard, 103 N. Y. 672), and not where the trustee becomes 
 such by implication or construction. In such a case the 
 statute begins to run from the date of the wrong which 
 raises the implication. {GiJmorc v. Ham, 142 N. Y. 
 10). In an action by a surety, or an endorser, against 
 a principal, the statute begins to run from the time of 
 payment. {Rodman v. Heddcn, 10 Wend. 498; Ehvood 
 V. Dcifeiidorf, 5 Barb. 398; Barker v. Gassidy, 16 Barb. 
 177). The statute begins to run, against an attorney 
 on his claim for services, when the relation is terminated, 
 and not before {Mijgatt v. ^yilco.r, 45 N. Y. 306; Bath- 
 fjate V. Haskins, 59 N. Y. 533) ; although the cause of 
 action has been assigned. ( Gastine v. Stoddard, 23 Hun, 
 99 ) . Where an attorney has collected money for a client, 
 the cause of action against him for the money, begins to 
 run as soon as the client has knowledge of the collection. 
 Wood V. Young, 141 N. Y. 211). It does not run in 
 favor of a factor or commission merchant, until demand. 
 {Baird v. Walker, 12 Barb. 298; Halden v. Graft. 4 E. 
 D. Smith, 490) . In an action for conversion, the statute 
 runs from the time of the conversion, and not from a 
 demand and refusal, unless a demand is necessary to 
 make a cause of action for conversion. {Kelsey v. Gris- 
 wold, 6 Barb. 4.ZQ; Roberts v. Berdelh 15 Abb. Pr. N. S. 
 
114 PRACTICE. 
 
 177). In an action for false imprisonment, the statute 
 begins to run from the termination of the actual impris- 
 onment, although an appeal to review the order discharg- 
 ing the plaintifE from his imprisonment, is pending. 
 {Dusvnbiiri/ v. Keileij, 85 N. Y. 383; Van Ingen v. 
 Sni/dcr, 2i Hun, 81). In an action for any tort, the 
 statute begins to run when the tort is committed. {North- 
 rop V. Hill, 57 N. Y. 351; Allen v. Mille, 17 Wend. 202). 
 A fraudulent concealment of the cause of action by the 
 defendant does not take the cause out of the statute 
 (Leoiutrd v. Pitney, 5 Wend. 30; Allen v. Mille, supra) ; 
 except as to actions within sub-division 5 of section 382. 
 An action against a director, for failure to make a re- 
 port under section 12 of the manufacturing corporation 
 act, begins to run when the first failure occurs, and a 
 subsequent failure to make a report does not extend the 
 time. {Losee v. Bullurd, 79 N. Y. 404). 
 
 Sec. 7. Defense and Counter-claim. 
 
 A cause of action, upon which an action cannot be 
 maintained, because the statute of limitations runs 
 against it, cannot be effectually interposed as a defense 
 or counter-claim. (Co. Civ. Proc. § 397). 
 
 Sec. 8. What Takes a Case out of the Statute. 
 
 An acknowledgment or promise, contained in a writ- 
 ing signed by the party to be charged thereby, is the 
 only competent evidence of a new or continuing con- 
 tract, whereby to take a case out of the operation of 
 this title. But this section does not alter the effect of a 
 payment of principal or interest. (Co. Civ. Proc. § 395) . 
 If the maker admits the note, but says it was outlawed, 
 and that he would rely on the statute, that is not suifi- 
 cient evidence of a new promise to pay within six years. 
 (Danforth v. Culver, 11 Johns. 145). An offer to com- 
 promise a suit, if it is rejected, or to arbitrate, coupled 
 with a statement that the plaintiff had no claim, does 
 not take the cause out of the statute. (Lan^rence v. 
 Hopkins, 13 Johns. 287; Sands v. Gelston, 15 Johns. 
 511). In order to take a case out of the statute, there 
 must be an express promise, or an acknowledgment of a 
 present debt, a subsisting liability, and willingness to 
 
ACTION'S AND THE TIMES OF COMMENCING THEM. 115 
 
 pay. (Allen v. Webster, 15 Wend. 2S1; Looiiiis v. 
 Deeker, 1 Daly, 186; Bloodgood v. Bruen, 8 N. Y. 362; 
 M'invhcll V. Hieks, IS N. Y. 558; Crundall v. Moston, 42 
 App. Div. 629; Fleteher v. Danieh, 52 App. Div. 67). 
 The writing is not sufficient if it sliows tliat tliere is no 
 intention on tlie part of tlie debtor to pay the debt. 
 {Manchester v. Braedner, 107 N. Y. 346; Darts v. Nojjes, 
 39 St. Rep. 632; 15 Supp. 431). The writing need not 
 express an intention to pay, as that will be presumed 
 {McXainee v. Tenny, 41 Barb. 495), if the acknowledg- 
 ment contains an unqualified and direct admission of a 
 debt upon which the party is liable, and which he is 
 willing to pay {Stafford v. Bryan, 3 Wend. 532) ; and 
 it must be in such a form that the law would imply a 
 promise to pay. {Stoker v. Wattcrs, 12 Wk. Dig. 321). 
 An acknowledgment, made to a stranger, not intended 
 to be communicated to the creditor, is not sufficient to 
 take the debt out of the statute {Sinitli, v. Camp, 58 
 Hun, 434; 3Iattcr of Kendriek, 107 N. Y. 105) ; if made 
 to the stranger with the intention that it shall be com- 
 municated to, and influence, the creditor, it defeats the 
 statute. {DeFreest v. Warner. 98 N. Y. 217). But 
 where the testator, by his will, directs the payment of 
 a specific debt, this is a sufficient acknowledgment of 
 the debt to take it out of the statute, although a general 
 direction for the payment of debts, would not have that 
 effect. {Gilbert v. Morrison, 53 Hun, 442). If -the 
 promise was conditional, the condition must be shown 
 to have been complied Avith. {Wakeinaii v. Sherman., 9 
 N. Y. 85 ; Tebo v. Robinson, 100 N. Y. 27). The date of 
 the acknowledgment, or the time when it was made, may 
 be shown by parol. {Kincaid v. Arehihald, 73 N. Y. 
 189 ) . The amount of the debt need not be mentioned in 
 the new promise. (Fiske v. Eihbard, 45 N. Y. Super. 
 331) . Where an executor included, in his inventory of the 
 estate a note which he gave to the testator, it was held 
 a sufficient acknowledgment. {Ross v. Ross, 6 Hun, 80; 
 Morroir v. Morroiv, 12 Hun, 386; Clark v. Van Aniburgh, 
 14 Hun, 557) . An executor cannot revive a debt against 
 his testator by an acknowledgment, or by a partial pay- 
 ment, but only by an express promise, if at all. (Blood- 
 
116 PRACTICE. 
 
 good V. Bruen, 8 N. Y. 362 ; McLaren v. McMarUn, 36 N. 
 Y. 88). An acknowledgment of a tort will not take it 
 out of the statute. [Oothout v. Thompson, 20 Johns. 
 277). A deliverj^ by a debtor to a creditor, of a note of 
 a third person as security, is a sufficient acknowledgment 
 of a debt to take it out of the statute. {Smith v. Ryan, 
 66 N. Y. 352). An appropriation by the legislature of 
 moneys to pay a claim is a sufficient acknowledgment. 
 {GorJcings v. State, 99 N. Y. 491). A stipulation to 
 waive the statute on a hearing before an arbitrator takes 
 the case out of the statute. {Anderson v. SihI-ci/, 28 Hun, 
 16) . Commencement of proceedings to foreclose a mort- 
 gage by advertisement, operates as an acknowledgment 
 of the obligor's right to redeem, {(^alkuts v. IshcIJ. 20 
 N. Y. 147 ) . A partial payment is evidence from which an 
 acknowledgment of the residue of the debt may be implied 
 McLaren v. Martin, 36 N. Y. 88), and such implied ac- 
 knowledgment revives the debt as effectually as one in 
 writing. {Gardner v. Gardner, 19 Wk. Dig. 249; First 
 Nat. Bank of Itica v. Ballon, 49 N. Y. 155). But the 
 payment, to take the case out of the statute, must be 
 made upon the particular debt, and be accepted by the 
 creditor as such, and accompanied by circumstances, 
 amounting to an absolute and unqualied acknowledg- 
 ment by the debtor that more was due, so that a promise 
 to pay the remainder, may be inferred. {Crow v. GJea- 
 son, 141 N. Y. 489; Adams v. Olin, 140 N. Y. 150). A 
 payment intended as a full discharge of a claim, can 
 not be made available as a part payment, to take the 
 claim out of the statute. {Gompton v. Boicns, 5 Misc. 
 213). But a partial payment by one maker, will not 
 prevent the running of the statute against the other 
 {LittlefieU v. Littlefiehl, 91 N. Y. 203; M ardor]: v. 
 Water nHDi, 145 N. Y. 55) ; although it was made before 
 the statute accrued {Dunham v. Dodge, 10 Barb. 566; 
 Shoemaker v. Benedict, 11 N. Y. 176) ; iinless the payer 
 is the agent of the other debtor, or the payment is subse- 
 quently ratified by him. {McMullen v. Raffertp, 89 N. 
 Y. 456). Payment by the principal debtor does not 
 charge the surety unless it is authorized by the surety. 
 (Littlefield v. Littlefield, supra; Haight v. Avery, 16 
 
ACTIONS AND THE TIMES OF COMMENCING THEM. 117 
 
 Hun, 252). A partial payment by one partner, removes 
 the bar against the firm, although after the dissolution 
 of the firm, if the payee was ignorant of the fact of the 
 dissolution. {Forbes v. GarfichJ, 32 Hun, 389). But a 
 partial payment by the assignee for the benefit of credit- 
 ors, will not take the debt out of the statute, as against 
 the assignor. {Pickett v. Leonard, 31 N. Y. 175). An 
 endorsement of interest, by a deceased owner of a 
 note, before the note is outlawed, is evidence of partial 
 payment sufficient to take the note out of the statute 
 {Ridley V. Wight man, 13 Hun, 163) ; but there is no 
 presumption that an endorsement, in the handwriting i 
 of the payee, on the note, of a partial payment thereon, 
 was made on the day that it bears date. {PunJy v. 
 Piirdy, 47 App. Div. 94). The acknowledgment must 
 be made to the creditor or some one acting in his inter- 
 est. {Winterton v. Wiuterton, 7 Hun, 230; Wakeina)i v. 
 Sherman, 9 N. Y. 85; Blooclgood v. Bnieii, 8 N. Y. 362). 
 A new promise to a holder of a note, enures to the benefit 
 of a subsequent holder. {Dean v. Heiritt, 5 Wend. 257) . 
 A promise to an attorney who has a note for collection 
 is sufficient. {Piiikerton v. Bailcij. 8 Wend. 600). 
 
 Sec. 9. How Objection Taken. 
 
 The objection, that the action was not commenced 
 within the time limited, can be taken only by answer. 
 The corresponding objection to a defense or counter- 
 claim can be taken only by reply, except where a reply 
 is not required, in order to enable the plaintiff to raise 
 an issue of fact, upon an allegation contained in the 
 answer. (Co. Civ. Proc. § 413). The statute must be 
 pleaded in respect to a counter-claim. {WiUiaias v. 
 Willis, 15 Abb. N. S. 11; Clinton v. Eddy, 1 Lans. 61). 
 A general allegation in an answer, that defendant claims 
 the benefit of the statute, is not good; it should be 
 pleaded that the cause of action did not accrue within 
 the specified period. {Biidd v. Walker, 29 Hun, 344). 
 The objection that a certiorari to review, has not been 
 granted within the four months allowed by section 2125 
 of the code of civil procedure, must be taken by a motion 
 to dismiss. {Pea. ex rel McNeary v. MacLean, 64 Hun, 
 205). 
 
118 PRACTICE. 
 
 Sec. 10. Cases not Within the General Statute. 
 
 The provisions of this chapter apply, and constitute 
 the only rules of linaitation applicable, to a civil action 
 or special proceeding, except in one of the following 
 cases : 
 
 1. A case, where a different limitation is specially 
 prescribed by law, or a shorter limitation is prescribed 
 by the written contract of the parties. 
 
 2. A cause of action or a defense which accrued before 
 the first day of July, 1848. The statutes then in force 
 govern, with respect to such a cause of action or defense. 
 
 3. A case not included in the last sub-division, in 
 which a person is entitled, when this act takes effect, to 
 commence an action, or to institute a special proceeding, 
 or to take any proceeding therein, or to pursue a remedy 
 upon a Judgment, where he commences, institutes, or 
 otherwise resorts to the same, before the expiration of 
 two years after this act takes effect; in either of which 
 cases, the provisions of law applicable thereto, immedi- 
 ately, before this act takes effect, continue to be so 
 applicable, notwithstanding the repeal thereof. 
 
 4. A case, where the time to commence an action has 
 expired, when this act takes effect. 
 
 The word "action," contained in this chapter, is to be 
 construed, when it is necessary so to do, as including 
 a special proceeding, or any proceeding therein, or in an 
 action. (Co. Civ. Proc. § 414). The words "rules of 
 limitation," as used in this section, refer, not to all sub- 
 jects dealt with in the chapter of the code of procedure 
 upon the statute of limitations, but only to those pro- 
 visions of that chapter fixing periods of time within 
 which the various classes of actions specified therein are 
 to be brought. (Haijdcn v. Pierce, 144 N. Y. 512; Titus 
 V. Poole, 145 N. Y. 414 ; Hamilton v. Royal Ins. Co., 156 
 N. Y. 327). 
 
 Sec. 11. When Action Deemed Begun. 
 
 An action is commenced against a defendant, within 
 the meaning of any provision of this act, which limits 
 the time for commencing an action, when the summons 
 is served on him; or on a co-defendant who is a joint 
 
ACTION'S AM) THE TIMES OF COJIilENCl.N'G THEM. 119 
 
 contractor, or otherwise united in interest Avitli liim. 
 (Co. Civ. Proc. § 398). Tlie entry of an order of refer- 
 ence against tlie estate of a decedent, under tlie statute, 
 is equivalent to a service of a summons. {Buvklin v. 
 Cliapiii, 1 Lans. 443; Hnltslaudcr v. Thompson, 5 Hun, 
 348). In an action brought by a stoclcholder of an in- 
 solvent bank, in behalf of himself and other stockholders, 
 against the directors on account of their neglect of 
 duties, several stockholders became parties plaintiff to 
 the action, upon their petition more than six years after 
 the bank became insolvent and the directors ceased to 
 control its affairs, and the court held that, for the pur- 
 poses of the statute of limitations, the action must be 
 treated as if all the stockholders were originally plain- 
 tiffs. iBrincl-crhoff v. Bostirirlc, 99 N. Y. 185). An 
 attempt to commence an action, in a coui't of record, is 
 equivalent to the commencement thereof against each 
 defendant, within the meaning of each provision of this 
 act, which limits the time for commencing an action, 
 when the summons is delivered, Avitli the intent that it 
 shall be actually served, to the sheriff, or, where the 
 sheriff is a party, to a coroner of the county, in which 
 that defendant, or one of two or more co-defendants, 
 Avho are joint contractors, or otherwise united in inter- 
 est with him, resides or last resided ; or, if the defendant 
 is a corporation, to a like officer of the county, in which it 
 is established by law, or wherein its general business is 
 or was last transacted, or wherein it keeps, or last kept, 
 an office for the transaction of business. But in order 
 to entitle a plaintiff to the benefit of this section, the 
 delivery of the summons to an officer, must be followed, 
 within sixty days after the expiration of the time limited 
 for the actual commencement of the action, by personal 
 service thereof upon the defendant sought to be charged, 
 or by the first publication of the summons, as against 
 that defendant, pursuant to an order for service upon 
 him in that manner. (Co. Civ. Proc. § 399). The last 
 section, excluding the provision requiring a publication 
 or service of the summons within sixty days, applies to 
 an attempt to commence an action in a court not of 
 record, where the summons is delivered to an officer, au- 
 
120 PRACTICE. 
 
 thorized to serve the same within the city or town 
 wherein the person resides, or the corporation is located 
 as specified in that section ; provided that actual service 
 thereof is made with due diligence. (Co. Civ. Proc. 
 § 400). Where the summons has been delivered to the 
 sheriff in time, with intent that it should be served, but 
 personal service could not be made, and within sixty 
 days substituted service is made, pursuant to an order 
 to that purpose, the action is commenced in time, and is 
 not barred by the statute. {Clare v. Locl-ard, 122 N. Y. 
 263). If the summons is delivered to the sheriff for 
 service and an attempt is made to serve it, which fails 
 because the defendant is sick and he dies shortly there- 
 after, the claim is not barred, and a subsequent presenta- 
 tion to the executor, and action upon his rejection, is 
 brought in time. (RiJei/ y. Rileij, 141 N. Y. 409). Sec- 
 tion 399 applies to limitations provided for by contract 
 of the parties. {Hamilton v. Royal Ins. Co., 156 N. Y. 
 327) . An action is not deemed to be commenced against 
 one jointly liable, not named in the summons. {Shaw 
 V. Code, 78 N. Y. 194) . If a neAV party is brought in by 
 amendment, the action is deemed to have been begun 
 against him, only from the time he was brought in. 
 ( Ibid. ) . A joint stock association is regarded as a cor- 
 poration, within sections 399 and 400. {Shaw v. Cock, 
 78 N. Y. 104). 
 
CHAPTER III. 
 
 LEAVE TO SUE. 
 
 ARTICLE I Judgments. 
 
 ARTICLE II Mortgages. 
 
 ARTICLE III, . . .Official bonds. 
 
 ARTICLE IV Actions to dissolve a corporation. 
 
 ARTICLE V Actions by and against receivers. 
 
 ARTICLE VI. ..Actions by or against the committee of an 
 
 incompetent person. 
 ARTICLE VII. . .Partition by an infant. 
 ARTICLE VIII . . Leave to sue as a poor person. 
 
 There are some cases in which an action cannot be 
 commenced without leave of the court, and these are the 
 following : 
 
 ARTICLE I. 
 
 JUDGMENTS. 
 
 Except in a case where it is otherwise specially pre- 
 scribed in this act, an action upon a judgment for a sum 
 of money, rendered in a court of record of the state, 
 cannot be maintained between the original parties to the 
 judgment, unless, either, 
 
 1. Ten years have elapsed since the docketing of such 
 judgment; or, 
 
 2. It was rendered against the defendant by default, 
 for want of an appearance or pleading, and the sum- 
 mons was served upon him, otherwise than person- 
 ally; or, 
 
 3. The court in which the action is brought, has pre- 
 viously made an order, granting leave to bring it. 
 Notice of the application for such an order must be given 
 to the adverse party, or the person proposed to be made 
 the adverse party, personally- unless it satisfactorily 
 
122 
 
 I'ltACTICE. 
 
 appears to the court that personal notice cannot be given, 
 with due diligence; in which case,. notice may be given 
 in such manner as the court directs. (Co. Civ. Proc. 
 § 1913). This section applies to judgments recovered 
 before the code. (Finch v. C'arpcutc)-, 5 Abb. Pr. 225). 
 The assignee of a judgment is not within the statute. 
 [Tuft V. Braisted, 4 Duer, 607; Hedges v. Conger, 10 KSt. 
 Hep. 4:2;McGrath v. Ma.viveU, 17 App. Div. 24G). Neither 
 are the representatives of a deceased judgment creditor. 
 (Smith V. Button, 2 T. & C. 498; Freeman v. Datcher, 
 15 Abb. N. C. 131). A judgment may be pleaded as a 
 counter-claim without leave. (^VeUs Y.Hensltuic, 3 Bosw. 
 625). The leave must be obtained from the court, in 
 which it was rendered. If it was rendered in the former 
 court of common pleas, it may be obtained from the 
 county court. (Oraham v. Scripture, 26 How. Pr. 501). 
 In the case of a judgment recovered in one of the courts 
 abolished by the amendments to the constitution of the 
 state, in 1895, it would seem that the leave must be ob- 
 tained from the supreme court. (Const. Art. 6, § 5, 
 2d paragraph). It is not necessary that the suit should 
 be brought in the same court, in which the original judg- 
 ment was recovered. (Isfat. Mch. Baiikg. Asso. v. Usher, 
 1 Swe. 403) . Leave can only be granted upon final judg- 
 ment, and one upon which an execution can be issued. 
 (Hanover Fire Ins. Co. v. Tomlinson, 3 Hun, 630; Mat- 
 ter of Van Benren, 33 App. Div. 158). There is a con- 
 flict of authority as to whether the bringing of a suit on 
 a judgment Avithout leave as provided in this section is 
 a mere irregularity, which may be waived, or whether 
 such leave is a substantive right which must be shown 
 to exist. It is held in the following cases to be a matter 
 of substance. (Farish v. Austin, 25 Hun, 430; Graham 
 V. Scripture, 26 How. Pr. 401 ; Cool; v. Thurston, 18 Misc. 
 506). The weight of authority seems to hold, however, 
 that failure to obtain leave is an irregularity only, 
 which may be waived or cured after suit begun by an 
 order nunc pro tunc. (Church v. Van Beuren, 55 How. 
 Pr. 489; German Savings Bh. v. Carrington, 14 Wk. 
 Dig. 475 ; affd. without opinion by court of appeals, 89 
 N. Y. 632 ; Brush v. Hoar, 15 N. Y. St. Kep. 859 ; Knapp 
 
LEAVE TO SUE. 123 
 
 V. Valentine, 67 N. Y. St. Rep. 582) . The opinion of tlie 
 court of appeals, affirming an order granting ntiiic pro 
 tunc leave to sue on a mortgage debt under section 1628 
 of the code of civil procedure, is instructive on this point. 
 {McKernan v. Robinson, 84 N. Y. 105). It Avould seem 
 that the objection of no leave obtained can be taken 
 either by a motion to set aside the summons and com- 
 plaint {Finch V. Carpenter. 5 Abb. Pr. 225), or by de- 
 murrer to a complaint which fails to allege such leave. 
 (Freeman v. Duteher, 15 Abb. N. C. 431- Underhill v. 
 Phillips, 30 App. Div. 238). If a judgment of a justice 
 of the peace is docketed in the countj^ clerk's office, pur- 
 suant to the provisions of section 3017 of the code of civil 
 procedure, it becomes a judgment of the county court, 
 and no action can be brought in justice's court without 
 leave of the county court. (Baldtdu v. Roberts. 30 Hun, 
 163). A creditor's bill is not an action on a judgment, 
 within this section {Catlin v. Doughty, 12 How. Pr. 457; 
 Quid; V. Keeler, 2 Sand. 636) ; neither is a proceeding 
 under section 1937 to charge the defendants not sum- 
 moned. {Dean v. EJdridf/c. 29 How. Pr. 218; Prince v. 
 Cujas, 7 Robt. 76). A judgment of the United States 
 circuit court is not within the statute, although it has 
 been docketed in the county clerk's office. {Goodyear 
 Dental Co. v. Friselle, 22 Hun, 174). 
 
 ARTICLE II. 
 
 MORTGAGES. 
 
 While an action to foreclose a mortgage upon real 
 property is pending, or after final judgment for the 
 plaintiff therein, no other action shall be commenced or 
 maintained, to recover any part of the mortgage debt, 
 without leave of the court, in which the former action 
 was brought. (Co. Civ. Proc. § 1628). The rule laid 
 down in this section, does not apply where the judgment 
 for foreclosure was rendered in the court of another 
 state {N. Y. L. In. Co. v. Aitkin. 125 N. Y. 660), nor to 
 suits on debts secured by mortgages on lands without 
 the state. {Mu. Li. Ins. Co. v. Smith, 54 Super. 400). 
 
124 
 
 PUACTICB. 
 
 Leave to commence an action under this section, is in 
 the discretion of the court (Equitable L. Ins. Co. v. 
 Stcrens, 63 N. Y. 341) ; and it will not be granted except 
 for a good reason; the mere fact that the value of the 
 premises has been diminished by fire is not enough. 
 [Eagle v. rndcrhill, 3 Edw. 249). Leave will not be 
 granted, if it will be inequitable to enforce the personal 
 liability of a mortgagor. {Matter of CoUiiis, 17 Hun, 
 289). Where a party was left out by mistake, in the 
 foreclosure suit, leave was granted to bring an action 
 upon the bond. (Kane v. Prentice, 13 Wk. Dig. 361). 
 The fact that there is an apparent defense, is not a suffi- 
 cient reason for refusing leave to sue upon the bond; 
 that will be settled on the trial. {Matter of Hallenbar- 
 ton. 1 Law Bull. 12). If the grantee of part of mort- 
 gaged premises has covenanted to pay part of the debt, 
 an action cannot be brought against him, upon his cov- 
 enant after foreclosure, without leave. {Schofield v. 
 Doscher, 72 N. Y. 491). An action on the guaranty of a 
 mortgage debt, cannot be brought without leave of the 
 court, after an action to foreclose the mortgage, for 
 the recovery of the debt secured by it. {McKernan v. 
 Robinson, 84 N. Y. 105). If leave be not granted, there 
 is no right of action ; the plaintiff must allege, and 
 prove such leave. {Schofichl v. Doscher, 72 N. Y. 491; 
 McKernan v. Robinson, 84 N. Y. 105). But the court 
 may grant leave after the action is commenced, nunc pro 
 tunc. {McKernan v. Robinson, supra; Earl v. David, 
 20 Hun, 527; affd. 86 N. Y. 643). Such leave, however, 
 cannot be granted ex parte, and an order so made should 
 be set aside. ( U. 8. Life Ins. Co. v. PoiUon, 25 St. Rep. 
 534). This statute does not apply to an action by a 
 junior mortgagee, to recover a debt secured by his mort- 
 gage, although he has filed a claim to the surplus, arising 
 on the sale of a prior mortgage, and is a party to pro- 
 ceedings for distribution of the surplus {Wyckoff v. 
 Derlin, 12 Daly, 144) ; nor does it apply to an action 
 for contribution by a surety. {Weed v. Calkins, 24 Hun, 
 582). It was held in Schultz v. Mead (29 St. Rep. 203; 
 affd. 128 N. Y. 680), that, after judgment had been ren- 
 dered for a deficiency in an action to foreclose a mort- 
 
LEAVE TO SITE. 12r 
 
 gage, the case was not within section 1G2S of the code 
 and no application for leave to sue for the amount of 
 the deficiency was required under that section. 
 
 ARTICLE III. 
 
 OFFICIAL BONDS. 
 
 Where a sheriff is liable for the escape of a prisoner 
 committed to his custody, or is guilty of any other ac- 
 tionable default or misconduct in his office, the person 
 injured thereby may apply to the supreme court for 
 leave to prosecute the sheriff's official bond. The appli- 
 cation must be accompanied with proof, by affidavit, of 
 the default or misconduct complained of, and that satis- 
 faction of the same has not been received, and with a 
 certified copy of the official bond. (Co. Civ. Proc. 
 § 1880). Upon such an application, the court must 
 grant an order, permitting the applicant to maintain an 
 action upon the bond. The action must be brought, in 
 the court which granted the order, hj the applicant as 
 plaintiff; and it may be maintained, as if the applicant 
 was the obligee named in the bond, except as otherwise 
 expressly prescribed in this article. (Co. Civ. Proc. 
 § 1881). The provision of the code that the court must 
 grant the order, is not mandatory, but it will be refused, 
 if the question of liability of the sheriff, upon which 
 the action is sought to be brought is pending and unde- 
 termined, in the court of appeals {People v. Conner, 
 8 Hun, 533) ; nor should such leave be given where there 
 is a stay of proceedings on the judgment recovered 
 against the sheriff. {Matter of Chamheiiaiii, 28 How. 
 Pr. 1). A recovery against a sheriff is not necessary 
 before the leave is given. {Ex parte Clie/^ter, 5 Hill, 
 555). Before leave is granted, it must be shown either 
 by affidavit, or by judgment and execution unsatisfied, 
 that the sheriff is unable to respond in an action. {E.r 
 parte Noble, 2 Cow. 590 ; Anderson v. Hitchcock, 2 Wend. 
 299). The same, or any other applicant, may, in like 
 manner, either before or after judgment in the first ac- 
 tion, obtain an order, permitting him to maintain 
 
126 
 
 PRACTICE. 
 
 another action, in tlie same court, upon the same bond 
 for another default or misconduct. Any number of such 
 orders may be successively made ; and neither of the ac- 
 tions authorized thereby, is affected by the pendency of, 
 or the recovery of judgment in, any other, except as 
 otherwise expressly prescribed in this article. ( Co. Civ. 
 Proc. § 1882). 
 
 Where a surrogate, or an officer acting as surrogate, 
 is guilty of any actionable default or misconduct in his 
 office, the person injured thereby may appl.y for leave to 
 prosecute the delinquent's official bond. (Co. Civ. Proc. 
 § 1886). 
 
 Where a certified copy of the order or judgment of a 
 court, directing a county treasurer to pay or deliver, to 
 one or more persons designated therein, any money, 
 stocks, securities or other investments held by him, sub- 
 ject to the direction of that court, is served upon the 
 county treasurer, if he fails to obey the direction, the 
 person injured thereby may apply for leave to prosecute 
 his official bond. Service upon a county treasurer, as 
 required by this section, may be made personally, or 
 by leaving the paper, either at his office during his 
 absence therefrom, with a person of suitable age and 
 discretion, having charge of the office, or at his residence, 
 or his last residence within the county, with a person 
 of suitable age and discretion. (Co. Civ. Proc. § 1887). 
 
 Whenever any county treasurer shall, after service 
 on him per,sonally, or by leaving at his office, in his 
 absence, with some person having charge thereof, or if 
 such service cannot be made, by leaving with some per- 
 son of suitable age and discretion at his place of resi- 
 dence, or at his last place of residence in the county, if 
 he has departed therefrom, of a certified copy of an order 
 of the court, directing the payment or delivery of any 
 money or securities held by him pursuant to an order 
 of the court, to any person or persons, shall fail or 
 neglect so to do, or where any county treasurer has in- 
 vested or loaned moneys held l>y him pursuant to order 
 of the court, or to any person or persons on inadequate 
 or worthless security, and shall fail or neglect Avlien re- 
 quired so to do, to pay over the amount of the moneys so 
 
LEAVE TO SUE. 127 
 
 invested to the person or persons entitled tliereto, the 
 court may, by order, direct that an action be brought 
 upon the official bond of such treasurer, against him and 
 his sureties, to recover the amount of the money or se- 
 curities so directed to be paid or delivered, or of the 
 moneys so invested on inadequate or worthless security, 
 for the benefit of the person or persons in whose behalf 
 the direction shall have been l»y such order given, and 
 whose name or names appear therein, or their assigns, 
 and thereupon such action may be brought for such 
 purpose. (3 E. S. 9th Ed. 2465). 
 
 Where a public officer is required to give an official 
 bond to the people, and special provision is not made by 
 law, for the prosecution of the bond, by or for the benefit 
 of a person who has sustained, by his default, delin- 
 quency or misconduct, an injury for which the sureties 
 upon the bond are liable, such a person may apply for 
 leave to prosecute the delinquent's official bond. (Co. 
 Civ. Proc. § 1888). An administrator de bonis noa may 
 sue the surety on his predecessor's bond without obtain- 
 ing leave under this section. {Dunne v. American 
 Sarctij Co., 43 App. Div. 91). A receiver, an assignee 
 of an insolvent debtor, or a trustee or other officer, ap- 
 pointed by a court or a judge, is a public officer within 
 the meaning of section 1888 ; but where he was appointed 
 by, or pursuant to the order of a court, or in a special 
 proceeding, specified in title twelfth of chapter seven- 
 teenth of the code of civil procedure, the application for 
 leave to prosecute his official bond, must be made to the 
 court by which, or pursuant to whose order, he was ap- 
 pointed, or in which the judgment was rendered, as the 
 case may be. An action brought pursuant to such leave, 
 must be brought in the court to which application was 
 made for leave to bring it. (Co. Civ. Proc. § 1890) . An 
 application for leave to prosecute an official bond, as 
 prescribed in this article, may be made without notice ; 
 but in that case, the officer or either of his sureties may 
 apply upon notice, to vacate an order permitting the ap- 
 plicant to maintain an action upon any ground, showing 
 that it ought not to have been granted. (Co. Civ. Proc. 
 § 1892). 
 
128 PRACTICE. 
 
 AETICLE IV. 
 
 ACTIONS TO DISSOLVE A CORPORATION. 
 
 Upon leave being granted, as prescribed in the next 
 section, the attorney general may bring an action against 
 a corporation, created hy or under the laws of the state, 
 to procure a judgment, vacating the charter, or annulling 
 the existence of the corporation, upon the grouii 1 that 
 it has either 
 
 1. Offended against any provision of an act, by or 
 under which it was created, altered, or renewed, or an 
 act amending the same, and applicable to the corpora- 
 tion; or, 
 
 2. Violated any provision of law, whereby it has for- 
 feited its charter, or become liable to be dissolved, by 
 the abuse of its powers ; or, 
 
 3. Forfeited its privileges or franchises, by a failure 
 to exercise its powers ; or, 
 
 4. Done or omitted any act which amounts to a sur- 
 render of its incorporate rights, privileges, and fran- 
 chises; or, 
 
 5. Exercised a privilege or franchise, not conferred 
 upon it by law. (Co. Civ. Proc. § 1798). Before grant- 
 ing leave, the court may, in its discretion, require such 
 previous notice of the application as it thinks proper, 
 to be given to the corporation or any officer, and may 
 hear the corporation in opposition thereto. (Co. Civ. 
 Proc. § 1799). The court may direct notice to be given 
 to the corporation. {People v. The Boston , H. T. d- ^yest. 
 R. Co., 27 Hun, 528; PeojtJe v. Mk. Vnion Tel. To., 2 
 McCarty, 295). The action cannot be maintained with- 
 out leave of the court [People v. Loire. 47 Hun, 577), 
 but the attorney general alone is to decide whether it 
 will serve the public interest to bring an action to vacate 
 the charter, and the only duty of the court, when the 
 application is made to it, is to see that the attorney 
 general alleges sufficient facts against the corporation 
 to make a prima facie case, or one of such gravity that if 
 seems proper that there should be a trial to determine 
 the truth of the facts. [Matter of Ulster & Delaware 
 
LEAVE TO SUE. 129 
 
 B. R. Co., 50 Hun, 511). Upon appeal from an order, 
 granting to the attorney general leave to bring an action 
 to vacate the charter of a corporation, the court will not 
 attempt to determine the merits of the action. (Id.). 
 Before authority should be given to the attorney general 
 under this section that official should point out in his 
 written petition the particular acts, done or omitted, 
 which, in his judgment, are sufficient to justify the 
 bringing of the action and should also allege wherein 
 the corpoi'ation has violated the laws. The order grant- 
 ing leave should also specify the grounds on which the 
 action is to be brought. {Matter of Atty. Gen'l, 81 Hun, 
 541). 
 
 In either of the following cases, an action to procure a 
 judgment, dissolving a corporation, created by or under 
 the laws of the state, and forfeiting its corporate rights, 
 privileges and franchises, may be maintained, as pre- 
 scribed in the next, section : 
 
 1. Where the corporation has remained insolvent for 
 at least one year. 
 
 2. Where it has neglected or refused, for at least one 
 year, to pay and discharge its notes, or other evidences 
 of debt. 
 
 3. Where it has suspended its ordinary and lawful 
 business for at least one year. 
 
 4. If it has banking powers, or power to make loans 
 on pledges or deposits, or to make insurances, where it 
 becomes insolvent or unable to pay its debts, or has vio- 
 lated any provision of the act, by or under which it was 
 incorporated, or of any other act binding upon it. ( Co. 
 Civ. Proc. § 1785). An action specified in the last sec- 
 tion, may be maintained by the attorney general, in the 
 name and in behalf of the people. And whenever a 
 creditor or stockholder of any corporation submits to 
 the attorney general a written statement of facts, veri- 
 fied by oath, showing grounds for an action under the 
 provisions of the last section, and the attorney general 
 omits, for sixty days after submission, to commence an 
 action specified in the last section, then, and not other- 
 wise, such creditor or stockholder may apply to the 
 
130 rHACTICE. 
 
 proper court for leave to commence such an action, and 
 on obtaining leave may maintain the same accordingly. 
 (Co. Civ. Proc. § 1786). 
 
 ARTICLE V. 
 
 ACTIONS BY AND AGAINST RECEIVERS. 
 
 SECTION. 
 
 1. Actions by Receivers. 
 
 2. Actions against Receivers. 
 
 Sec. 1. Actions by Receivers. 
 
 A receiver is an oflEicer of the court, and should not 
 bring a suit, without leave of the court which appointed 
 him. (Merritt v. Lyon, 16 Wend. 405, 410; Smith v. 
 Woodruff, 6 Abb. Pr. 65 ; Foster v. Townsend, 68 N : Y. 
 203, 206). If he sues without leave, he will usually be 
 charged with costs. {Smith v. Woodruff, supra; Gum- 
 niing v. Egerton, 9 Bosw. 684). It is proper to charge 
 the receiver with costs personally, if he has proceeded in 
 the action without proper care or in bad faith, or in a 
 matter which is merely personal to himself, and which 
 can result in no advantage to the estate which he repre- 
 sents. ( Chapin v. Toivnsend, 4 Hun, 779 ; Matter of Cas- 
 tle, 2 St. Rep. 362 ) . Where leave to sue has been granted 
 a receiver, it will be presumed that he has duly qualified. 
 (Hegeioisch v. Silver, 140 N. Y. 414). Costs will not be 
 allowed to a receiver of a debtor's estate, in an action 
 brought by him against an insolvent from whom he is 
 unable to collect his costs, unless it is brought by order 
 of the court, or by consent of all persons interested in 
 the funds in his hands. ( General Rule 77 ) . Whenever 
 a receiver, appointed under proceedings supplementary 
 to execution, shall apply for leave to bring an action, 
 he shall present and file with his application, the written 
 request of the creditor in whose behalf he was appointed, 
 that such action be brought ; or else he shall give a bond 
 with sufficient security, and properly acknowledged and 
 approved by the court, to the person against whom the 
 action is to be brought, conditioned for the payment of 
 -any costs which may be recovered against such receiver. 
 
LEAVE TO SUE. 131 
 
 And leave to bring actions shall not be granted, except 
 on such written request, or on the giving of such security. 
 In all other cases, where a receiver applies to the court 
 for leave to bring an action, he shall show in such appli- 
 cation, that he has sufficient property in his actual pos- 
 session, to secure the person, against whom the action is 
 to be brought, for any costs which he may recover against 
 such receiver; otherwise the court may require the re- 
 ceiver to give such bond, conditioned for the payment of 
 costs, and with such security as is above mentioned. 
 (General Eule 78). The receiver must sue, when au- 
 thority has been granted to him, and he cannot be re- 
 strained in another suit. The proper way to restrain the 
 suit, is by a motion in the action in which he was ap- 
 pointed. {Win field v. Bacon, 24 Barb. 154). Unless 
 particularly restricted by the court, he may select his 
 own tribunal. {Rockwell v. Mericin, 45 N. Y. 166). He 
 is, however, the officer of the court which appoints him 
 and cannot sue in a foreign jurisdiction for the property 
 of the debtor. {Booth v. Clark, 17 How. [U. S.] 322). 
 Notice of application by a receiver for leave to sue is 
 not required. 
 
 Sec. 2. Actions Against Eeceivers. 
 
 No person can sue a receivei', or take any other pro- 
 ceedings against him, without leave of the court which 
 appointed him. {Foster v. Toumsend, 2 Abb. N. C. 29, 
 and cases cited on page 41; DeGroot v. Jay, 30 Barb. 
 483 ) . Whoever does so is guilty of a contempt. ( Cases 
 cited supra; Taylor v. Baldwin, 14 Abb. Pr. 166; High 
 on Receivers, §§ 254, 255). Whether leave will be 
 granted or not, is in the discretion of the court, but it is 
 not usual to refuse it, unless it is clear that there is no 
 foundation for the claim. {Ex parte Garland, 3 DeG. 
 F. & J. 766 ; In re Piatt, 41 Super. 513) . The court will 
 usually require the suit to be brought in the court where 
 the receiver was appointed. {In re Piatt, supra). If 
 leave to sue a receiver is improvidently granted, by the 
 supreme court in one district, it may be vacated in 
 another. {Attorney Ge-neral v. North America Life Ins. 
 Co., 6 Abb. N. C. 293) . A suit brought without leave, is 
 
132 I'RACTICE. 
 
 regular until the court interferes, and judgment in it is 
 valid. (Hirshfeld v. Kalischer, 81 Hun, 606; Hacldey v. 
 Draper, 4 T. & C. 614). Where suit is brought without 
 leave the proper practice is for defendant to apply for a 
 stay, or to punish plaintiff for contempt, but on such 
 application leave will be granted nunc pro tunc, if the 
 case is a proper one. {Hirshfeld v. Kalischer, supra). 
 Application for leave to sue a receiver, must be made to 
 the court by which he is appointed, and notice of the 
 application should be given to the receiver. If the re- 
 ceiver was appointed in an action, the motion for leave 
 to sue must be made in the judicial district where the 
 action was brought, or in a county adjoining the county 
 wherein the action was brought. {Matter of Com'l Bit., 
 35App. Div. 224). 
 
 ARTICLE VI. 
 
 ACTIONS BY OR AGAINST THE COMMITTEE OF INCOMPETENT 
 
 PERSON. 
 
 The committee, either of a person or of the property 
 of an incompetent person, is subject to the direction and 
 control of the court by which he was appointed, with 
 respect to the execution of his duties. (Co. Civ. Proc. 
 § 2339) . He may maintain in his own name, adding his 
 ofScial title, any action or special proceeding, which the 
 person, with respect to whom he was appointed, might 
 have maintained, if the appointment had not been made. 
 (Co. Civ. Proc. § 2340) . The rule is laid down in several 
 of the books on practice, that such committees must 
 apply for leave to sue (1 Whit. Pr. 109; 1 Wait's Pr. 
 201-202 ) ; but no authority is cited establishing the rule. 
 It is believed that it is not necessary for the committee 
 of an incompetent person to obtain leave to sue, before 
 bringing the action, but, as he is subject to the control 
 of the court, it is advisable for him to do it. After the 
 appointment of a committee of a lunatic, idiot or habit- 
 ual drunkard, a creditor can only sue by permission of 
 the court by which the committee was appointed. ( Mat- 
 ter of Heller, 3 Paige 199; Williams v. Estate of Cam- 
 eron, 26 Barb. 172) . If an action has been begun against 
 
LEAVE TO SUE. 133 
 
 one who is afterwards adjudged a lunatic, it cannot be 
 continued against his committee, without leave of the 
 court which appointed him. {Matter of Delahunty, 28 
 Abb. N. C. 245; 44 St. Kep. 836; 18 Supp. 395). If the 
 action has been continued against the committee, with- 
 out leave of the court, and judgment recovered, leave to 
 sue nunc pro tunc will not be granted. (Id.). The ap- 
 plication must be by petition (Cases cited supra), and 
 upon notice to the committee. Leave will be granted, 
 where the petition shows a case in which relief would be 
 granted in a court of equity to the petitioner, but it will 
 not necessarily be denied because there is great dispute 
 between the parties with regard to the facts. ( Matter of 
 Wing, 5 T. & C. 205; Kent v. West, 33 App. Div. 112; 
 appeal dismissed, 163 N. Y. 589 ) . A reference, however, 
 will be preferred by the court whenever it is proper. 
 (WiJUams V. Estate of Cameron, 26 Barb. 172. The 
 proper mode of relief when an action is brought without 
 leave, is by a motion for a stay, or by proceedings for 
 contempt. (Matter of Heller, 3 Paige 199; Soverhill v. 
 Dickson, 5 How: Pr. 109; and cases cited below). A 
 judgment obtained without leave is not void. [Steven- 
 hergh v. Schoolcraft, 2 Barb. 153; Crippen \. Culver, 
 13 Barb. 424 ; see also, Dunham v. Fitch, 48 App. Div. 
 321, 326). The remedy against such a judgment, is to 
 move to set it aside, or to proceed for contempt against 
 the plaintiff (Crippen v. Culver, supra), or in equity 
 to be relieved from the judgment, (Matter of Hopper, 
 5 Paige, 491) , or to restrain the enforcement of the judg- 
 ment. (Matter of Delahunty, supra). The application 
 for leave to bring an action against the committee is a 
 special proceeding. (Williams v. Cameron, 26 Barb. 
 172). 
 
 ARTICLE VII. 
 
 PARTITION BY AN INFANT. 
 
 An action for the partition of real property shall not 
 be brought by an infant, except by the written authority 
 of the surrogate of the county in which the property, or 
 a part thereof, is situated. The authority shall not be 
 
13i PRACTICE. 
 
 given, unless the surrogate is satisfied, by affidavit or 
 other competent evidence, that the interests of the infant 
 will be promoted by bringing the action. A judgment 
 for a partition or sale shall not be rendered in such an 
 action, unless the court is satisfied that the interests of 
 the infant will be promoted thereby, and that fact is 
 expressly recited in the judgment. (Co. Oiv. Proc. § 
 1534) . The purchaser of the land, in an action of parti- 
 tion brought by an infant without leave, will not be 
 compelled to take title. (Struppman v. Muller, 52 How. 
 Pr. 211 ) . If it is referred to a referee to inquire whether 
 the interests of the infant require the partition, he should 
 report the facts. {In re Mensac, 15 How. Pr. 383). 
 
 ARTICLE VIII. 
 
 LEAVE TO SUE AS A POOR PERSON. 
 
 A poor person, whether an adult or infant, not being of 
 ability to sue, who alleges that he has a cause of action 
 against another person, may apply, by petition, to the 
 court in which the action is pending, or in which it is 
 intended to be brought, for leave to prosecute as a poor 
 person, and to have an attorney and counselor assigned 
 to conduct his action. (Co. Civ. Proc. § 458). The peti- 
 tion must state : 
 
 1. The nature of the action brought, or intended to 
 be brought. 
 
 2. That the applicant is not worth one hundred dol- 
 lars, beside the wearing apparel and furniture, neces- 
 sary for himself and his family, and the subject-matter 
 of the action. 
 
 It must be verified by the applicant's affidavit, unless 
 the applicant is an infant under the age of fourteen 
 years, and in that case by the affidavit of his guardian 
 appointed in said action and supported by a certificate 
 of a counsellor-at-law, to the effect that he has exam- 
 ined the case and is of the opinion that the applicant 
 has a good cause of action. (Co. Civ. Proc. § 459). 
 
 The application for leave to sue as a poor person, after 
 suit is brought, must be upon notice. ( Thomas v. Wilson, 
 
LEAVE TO SUE. 135 
 
 6 Hill, 257; Ostrander v. Harper, 14 How. Pr. 16; 
 Isnard v. Caseaux, 1 Paige, 39) . The court to which the 
 petition is presented, if satisfied of the truth of the facts 
 alleged, and that the applicant has a good cause of ac- 
 tion, may, by order, admit him to prosecute as a poor 
 person, and assign to him an attorney and counsel to 
 prosecute his action, who must act therein without com- 
 pensation. (Co. Civ. Proc. § 460). Whether or not 
 leave will be granted, is discretionary with the court. 
 {Alexander v. Myers, 8 Daly, 112; Young v. Nassau 
 Electric R. B. Co., 34 App. Div. 126). Upon the appli-, 
 cation, affidavits may be read in opposition, upon the 
 merits of the alleged cause of action, and the court may 
 deny the motion if it is not satisfied that the applicant 
 has good cause of action. {Beyer v. Clark, 29 Abb. N. 
 C. 338; 22 Supp. 540; Downs v. Farley, 18 Abb. N. C. 
 464; Young v. Nassau Electric R. R. Co., supra; Mc- 
 Namara v. Nolan, 13 Misc. 76). The court is not re- 
 quired to assign as counsel for the poor person, the at- 
 torney making the application {HelmprecJit v. Bowen, 
 87 Hun, 362), and should not do so unless it appears 
 that the party making the application knows that the 
 counsel so assigned is bound to act without compensa- 
 tion, and where the counsel certifies that he will so act, 
 and that no charge or claim for counsel fees by anybody 
 will be made. {Harris v. Mii. Li. Ins. Co., 37 St. Rep. 
 599; Daus v. Nussherger, 25 App. Div. 185; Cahill v. 
 Manhattan R. Co., 38 App. Div. 314). The court has 
 power to make an order, allowing a non-resident to sue 
 as a poor person {Harris v. Mn. Li. Ins. Co., supra), but 
 such an order will not usually be made. {Anonymous, 
 10 Abb. N. C. 82). The order should assign counsel. 
 {Daus V. Nussherger, supra). A married woman may 
 be allowed to sue as a poor person, in an action in respect 
 to her separate property, and for injuries to her person 
 {Roberti v. Carlton, 18 How. Pr. 466) ; or for a separa- 
 tion, if she has reasonable grounds for a suit. {Robert- 
 son V. Robertson, 3 Paige, 387). The husband may be 
 allowed to sue for a separation as a poor person. {Pe- 
 tition of McAllen, 1 Law Bui. 60) . An infant, suing by 
 a- guardian ad litem, may be allowed to sue as a poor 
 
136 PRACTICE. 
 
 person {Erickson v. Poey, 5 Civ. Proc. Rep. 379; Hotal- 
 ing V. McKenzie, 7 Civ. Proc. Rep. 320) ; but one of 
 several plaintiffs cannot be permitted to sue in that way. 
 {Ostrander v. Harper, 14 How. Pr. 16) . Leave to sue as 
 a poor person, will not be denied to an infant plaintiff 
 upon the ground that his guardian ad litem is his father, 
 and a man of wealth {Shapiro v. Burns, 7 Misc. 418) , but 
 the court will impose as a condition, that counsel will 
 stipulate to prosecute the action without compensation, 
 except taxable costs, and proof must be produced that 
 there has been no agreement or understanding for com- 
 pensation. {Bonadoa v. Third Ave. Ry. Co., 30 Supp. 
 410). The court is not authorized to permit the com- 
 mittee of a lunatic to sue as a poor person. {Bechtle v. 
 Man. Ry. Co., 31 Abb. N. C. 483; 30 Supp. 410). These 
 applications are not to be encouraged, and the statute 
 must, in all cases, be strictly construed. {Isnard v. 
 Caseaiix, 1 Paige, 39; Moore v. Cooley, 2 Hill, 412; 
 Bechtle v. Man. Ry. Co., supra). They will not be 
 granted after a delay of a year after the suit is brought 
 (Florence v. BuUcley, 1 Duer, 705) ; nor after a judg- 
 ment against the plaintiffs oil the merits {Ostrander v. 
 Harper, supra) ; nor where the action is on a tort in 
 another state, both parties being non-residents {Alex- 
 ander V. Myers, 8 Daly, 112) ; nor in an action for dam- 
 ages causing the death of the plaintiff's son {Kennedy 
 V. Twenty-third St. R. R. Co., 1 Law Bui. 31) ; nor where 
 plaintiff's attorney has an interest in the claim. {Joyce 
 V. Cooper, 49 Super. 115 ; Cahill v. Manhattan R. Co., 38 
 App. Div. 314 ) . Such an order will not be made where it 
 appears that the plaintiff has made an agreement with 
 his attorney by which the latter was to advance the 
 expenses of the suit, and receive a proportion of the 
 recovery as his compensation ( Downs v. Parley, 18 Abb. 
 N. C. 464). The fact that an order has been made, 
 requiring the plaintiff to give security for costs, does 
 not preclude the court from afterwards allowing him 
 to sue as a poor person. {Shearman v. Hope, 106 N. Y. 
 664; Shapiro v. Burnes, 7 Misc. 418). A person so 
 admitted may prosecute his action, without paying fees 
 to any officer; and he shall not be prevented from 
 
LEAVE TO SUE. 137 
 
 prosecuting the same, by reason of his being liable for the 
 costs of a former action, brought by him against the same 
 defendant. If judgment is rendered against him, or his 
 complaint is dismissed, costs shall not be awarded 
 against him. (Co. Civ. Proc. § 461). But the plaintiff, 
 although permitted to sue as a poor person, will not be 
 excused from paying costs already accrued. {Brown v. 
 Story, 1 Paige, 588 ; Lyons v. Miirat, 4 Abb. N. 0. 14) . If 
 a person so admitted is guilty of improper conduct in the 
 prosecution of his action, or of willful or unnecessary 
 delay, the court may, in its discretion, annul the order 
 admitting him to prosecute as a poor person; and he 
 shall thereafter be deprived of all the privileges con- 
 ferred thereby. (Co. Civ. Proc. § 462). A defendant 
 in an action involving his right, title, or interest, in or 
 to real or personal property, may petition the court, in 
 which the action is pending, for leave to defend the 
 action as a poor person, and to have an attorney and 
 counsel to conduct his defense. (Co. Civ. Proc. § 463). 
 The petition must contain the same matters, respecting 
 the ability of the petitioner, required to be contained 
 in a petition for leave to prosecute as a poor person; 
 and it must be supported by a similar certificate relating 
 to the defense. (Co. Civ. Proc. § 464). The provisions 
 of this article, relating to the order, to be made upon 
 an application for leave to prosecute as a poor person, 
 and the proceedings subsequent thereto, apply to the 
 order and subsequent proceedings, upon an application 
 for leave to defend as a poor person. (Co. Civ. Proc. § 
 465 ) . An order, made as prescribed in this article, does 
 not authorize the petitioner to take or maintain an appeal 
 as a poor person; but where an appeal is taken by the 
 adverse party, the order is applicable, in favor of peti- 
 tioner, as respondent in the appeal. (Co. Civ. Proc. 
 § 466). In Whelan v. Whelan (3 Cow. 537), the court 
 allowed the appellant to pursue his appeal as a poor 
 person. The rule is, however, that although a poor per- 
 son can appeal, he is liable to costs, if unsuccessful. 
 (Moore v. City of Troy, 38 Hun, 401 ; Hay den v. Hay den, 
 8 App. Div. 547) . Where costs are awarded in favor of 
 
198 PRACTICE. 
 
 a person, who has been admitted to prosecute or defend 
 as a poor person, as prescribed in this article, they must 
 be paid over to his attorney, when collected from the 
 adverse party, and distributed among the attorney and 
 counsel assigned to the poor person, as the court directs. 
 (Co. Civ. Proc. § 467). 
 
Chapter iv. 
 
 THE PARTIES TO AN ACTION. 
 
 ARTICLE I General rules as to parties. 
 
 ARTICLE II Agents and principals. 
 
 ARTICLE III. . . .Assignees. 
 
 ARTICLE I V . . . . Unincorporated associations. 
 
 ARTICLE V Corporations, directors and stockholders. 
 
 ARTICLE VI Estates of deceased persons. 
 
 ARTICLE VII.. .Public officers. 
 
 ARTICLE VIII. .Trustees of an express trust. 
 
 ARTICLE IX Where one may sue or be sued for all. 
 
 ARTICLE X Joint and several parties. 
 
 ARTICLE XI Proceedings against defendants severally liable. 
 
 ARTICLE XII . . .Parties in actions respecting real estate. 
 ARTICLE XIII. .Where the defendant or his name is unknown. 
 ARTICLE XIV. .Infant plaintiffs and defendants. 
 
 ARTICLE I. 
 
 GENERAL RULES AS TO PARTIES. 
 
 The parties are those who are named in the summons, 
 or other process, by which the action is begun. {Woods 
 V. DeFiganiere, 1 Robt. 607). The party prosecuting a 
 civil action is styled the plaintiff. The adverse party 
 is styled the defendant. (Co. Civ. Proc. § 3338). Al- 
 though more than one are named as a party defendant 
 in the summons, those not served are not strictly parties 
 to the action. (Norton v. Hayes, 4 Denio, 245 ; Robinson 
 V. Frost, 14 Barb. 536 ; The East River Bk. v. Gutting, 
 1 Bos. 636) . The general rules as to who must be parties 
 to an action are laid down in the code of civil procedure 
 in sections 446 to 449, as follows : All persons having 
 an interest in the subject of the action, and in obtain- 
 ing the judgment demanded, may be joined as plaintiffs, 
 except as otherwise expressly prescribed in this act. 
 (Co. Civ. Proc. § 446). Any person may be made a 
 defendant, who has or claims an interest in the contro- 
 
140 PRACTICE. 
 
 versy, adverse to the plaintiff, or who is a necessary 
 party defendant, for the complete determination or 
 settlement of a question involved therein; except as 
 otherwise expressly prescribed in this act. (Co. Civ, 
 Proc. § 447). Of the parties to the action, those who 
 are united in interest must be joined as plaintiffs or 
 defendants, except as otherwise expressly prescribed in 
 this act. But if the consent of any one, who ought to 
 be joined as a plaintiff, cannot be obtained, he may be 
 made a defendant, the reason therefor being stated in 
 the complaint. And where the question is one of a com- 
 mon or general interest of many persons ; or where the 
 persons, who might be made parties, are very numerous, 
 and it may be impracticable to bring then all before the 
 court, one or more may sue or defend for the benefit of 
 all. (Co. Civ. Proc. § 448). Every action must be 
 prosecuted in the name of the real party in interest, 
 except that 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 person, with 
 whom or in whose name, a contract is made for the 
 benefit of another, is a trustee of an express trust, within 
 the meaning of this section. (Co. Civ. Proc. § 449). 
 The idea under-lying the rules here laid down, is that the 
 rights of every person who has an interest in the subject 
 matter of the litigation, shall be disposed of in one 
 action. To secure this object, the code has not only 
 provided that the rights of all the parties may be adjudi- 
 cated between themselves, but also whenever it is neces- 
 sary, new parties may be brought in (Co. Civ. Proc. 
 § 452), at any stage of the action. (Co. Civ. Proc. 
 § 723). But while the code thus permits all parties 
 who have an interest in the action or in real property, the 
 title to which may be affected or for injury to which the 
 complaint demands relief, to come in, it does not 
 require any to be brought in, except those without whose 
 presence, no effective judgment could be made respect- 
 ing the matter in controversy. These are really the only 
 necessary parties to any action. {Bailey y, Inglee, 2 
 Paige, 278 ; Wendell v. Van Rensselaer, 1 John. Ch. 344 ; 
 
THE PA£tTIES TO AN ACTION. 141 
 
 M array v. Hai/, 1 Barb. Ch. 59). Other persons, who 
 have an interest in the subject of the controversy, which 
 is not necessarily affected by the judgment, but which 
 may be properly settled by it, are not necessary parties 
 strictly speaking, but are only proper parties. As stated 
 by Prof. Pomeroy, necessary parties defendant are those 
 without whom no decree at all can be rendered; proper 
 parties defendant are those whose presence renders the 
 decree more effectual, and all the proper parties are 
 those by whose presence the decree becomes a complete 
 determination of all the questions that can be raised, and 
 of all the rights which are connected with the subject 
 matter of the controversy. Such persons are necessary 
 sub inodo, that is, they must be brought in, if it is 
 expected to conclude them by the decree; but to call 
 them necessary, absolutely, is to ignore the familiar and 
 fundamental distinction between the two classes of 
 parties which has just been mentioned. {Remedies and 
 Remedial Rights, §§ 329, 330). The code evidently pre- 
 serves this distinction, as the sections, prescribing who 
 may be joined as parties, are permissive merely, and not 
 compulsory in their form. The present legal owners 
 of property, having a vested interest, are, generally 
 speaking, the only necessary parties in an action in 
 regard to it {Kent v. Church of 8t. Michael, 136 N. Y. 
 10), and they need not join those having equitable inter- 
 ests. {Korn V. Met. Ele. R. R. Co., 59 Hun, 505; affd. 
 without opinion, 129 N. Y. 648). But the sections of 
 the code on that subject being permissive, only, it is not 
 forbidden for the legal owner, who does not choose to 
 sue separately, to join the beneficiaries, if he sees fit, and 
 a demurrer for misjoinder for parties, will not be sus- 
 tained if he does so. {Peck v. Richardson, 12 Misc. 310; 
 44 N. Y. Supp. 919). If one claims in a represen- 
 tative capacity, he must be named in the action in 
 that capacity, or the necessary allegations must be 
 put into the pleadings to charge him as such. Merely 
 naming him individually as a party, is not sufficient 
 to empower the court to adjudicate upon his repre- 
 sentative rights. This is so although he has no interest 
 whatever except a representative one. {Landon v. 
 
142 I'RACTICE. 
 
 Townshend, 129 N. Y. 166; 112 N. Y. 93). Section 452 
 by implication, forbids the plaintiiS from proceeding 
 until all necessary parties are brought in, and the court 
 should not permit him to do so until that has been done. 
 Mahr v. The N. U. F. Ins. Society, 127 N. Y. 452; First 
 Natl. Bk. V. Shuler, 153 N. Y. 163). It is provided in 
 section 452, that when a person, not a party to the action, 
 has an interest in the subject thereof, or in real property, 
 the title to which may be in any owner affected by the 
 judgment, or in real property for injury to which the 
 complaint demands relief, and makes application to 
 the court to be made a party, it must direct him to be 
 brought in by proper amendment. (Co. Civ. Proc. § 
 452) . When the action affects the title to specific prop- 
 erty, the right of the party having an interest in the 
 controversy, is absolute, and the court has no power to 
 impose any conditions which will limit that right. 
 ( Lawton v. Lawton, 54 Hun, 415 ; Uhlf elder v. Tamsen, 
 15 App. Div. 436). It has been held, however, that, 
 although this right is absolute, a person by his conduct 
 may preclude himself from asserting such right and 
 conditions may then be imposed. (Wall v. Beach, 20 
 App. Div. 480). Where an action has been brought for 
 replevin, a third party who claims an interest in the 
 property is entitled to be made a defendant upon his 
 own application. [Rosenberg v. Salomon, 144 N. Y. 
 92). But the section does not permit the court to 
 require the plaintiff to bring in as defendant, one whom 
 he does not choose to sue ; it applies only to applications 
 made by a person who desires to come in. ( Chapman v. 
 Forbes, 123 N. Y. 532 ) . Where the plaintiff asks simply 
 for a money judgment against the defendant, the court 
 will not bring in any person as defendant, except one 
 whom the plaintiff has named as such in his summons. 
 The remedy for a failure to bring in the proper parties 
 in such a case, is by demurrer or answer. ( Chapman v. 
 Forbes, supra). Section 452 does not apply to special 
 proceedings. {Peo. ex rel. Steingoetter v. The County 
 Canvassers, 18 N. Y. St. Rep. 797). In actions of tort, 
 there is no "subject of the action," properly so called, 
 and several persons who have been separately injured 
 
THE PARTIES TO AN ACTION. 143 
 
 by the same tort, cannot join as plaintiffs in one action. 
 {Hynes v. F. L. & T. Co., 31 St. Rep. 136; 9 Supp. 260; 
 Gray v. Rothschihl, 112 N. Y. 668). The interest of the 
 parties must be adverse, and therefore the same persons 
 cannot be plaintiff and defendant [Metli. Epis. Ch. in 
 Pulteney v. Stewart, 27 Barb. 553; Sherwood v. Barton, 
 36 Barb. 284) ; but relief may be granted in an action 
 between two firms, or between two estates, although 
 the same person is a partner in the same firm, or a rep- 
 resentative of each estate. {Cole v. Reynolds, 18 N. Y. 
 74; Ifleilly v. l^eilly, 23 Hun, 651). 
 
 It is not easy to deduce from the cases, any other gen- 
 eral rules as to the parties in an action than are given 
 in the code, but an attempt will be made to classify 
 the statutory provisions, and the decisions upon the 
 subject, that it may be seen how these rules have been 
 applied with regard to different parties, and in different 
 kinds of actions. 
 
 ARTICLE II. 
 
 AGENTS AND PRINCIPALS. 
 
 The principal, and not the agent who made the con- 
 tract, or who is appointed to make collections, is the 
 proper party to sue. ( Buckbee v. Brown. 21 Wend. 110 ; 
 Oakey v. Bend, 3 Edw. Ch. 484). Although the agent 
 has the legal title, if he has no right to receive the pro- 
 ceeds, he is not a proper party plaintiff. (Bell v. Tilden, 
 16 Hun, 346; Iselin v. Rowland. 30 Hun, 488). The 
 principal may sue upon the contract made for him by 
 his agent, although the name of the principal was not 
 disclosed if the contract is not under seal (Briggs 
 V. Partridge. 64 N. Y. 357; Beehe v. Robert, 12 
 Wend. 413; /. P. & C. R. R. Co., v. Tyng, 63 N. Y. 653), 
 but if the contract is under seal, and signed by the agent 
 in his own name as such, without stating the name of 
 the principal, the agent alone can sue. {8chaefer v. 
 Henkel, 75 N. Y. 378; Henriciis v. Englert, 137 N. Y. 
 488) . If a contract, not under seal, is made by an agent 
 in his own name, for an undisclosed principal, either 
 
 10 
 
144 PEACTICE. 
 
 the principal or the agent may sue upon it, and it makes 
 no difference whether he describes himself as agent or 
 not. An auctioneer, who sells goods for a third party, 
 may sue in his own name for the price. (Minturn v. 
 Main, 7 N. Y. 220 ) . An agent may sue in his own name, 
 upon a contract made with him as such, and for the 
 performance of which he is bound. (Nelson v. Nixon, 13 
 Abb. Pr. 104). An action against a stakeholder for 
 moneys deposited upon a wager, must be brought by the 
 person who owned the money, and not by the agent who 
 deposited it for him. (Ruckman v. Pitcher, 20 N. Y. 9). 
 
 ARTICLE III. 
 
 ASSIGNEES. 
 
 The object of requiring all suits to be brought in the 
 name of the real property, in interest, was to give full 
 effect to assignments of rights of action, by permitting 
 and requiring every assignee to sue in his own name. 
 And the code has therefore provided, that where a claim 
 or demand can be transferred, the transfer thereof 
 passes an interest, which the transferee may enforce by 
 an action or special proceeding, or interpose as a defense 
 or counter-claim, in his own name, as the transferor 
 might have done; subject to any defense or counter- 
 claim, existing against the transferor, before notice of 
 the transfer, or against the transferee. (Co. Civ. Proc. 
 § 1909). But this section does not apply, where the 
 rights or liabilities of a party to a claim or demand, 
 which is transferred, are regulated by special provision 
 of law ; nor does it vary the rights or liabilities of a party 
 to a negotiable instrument, which is transferred. (Id.) .. 
 If, as between the assignor and assignee, the transfer 
 is complete, so that the former is divested of all control 
 and right to the cause of action, and the latter is entitled 
 to control it and receive its fruits, the assignee is the 
 real party in interest, whether the assignment was with 
 or without consideration, and notwithstanding the 
 assignee may have taken it, subject to all equities be- 
 tween the assignor and third persons. The consideration 
 
THE PARTIES TO AN ACTION. 145 
 
 and circumstances of the transfer may be important, 
 with a view to settle the equities and establish the rights 
 of others ; but if it is absolute as between the immediate 
 parties to it, the assignee not only may, but must, bring 
 the action in his own name {Gnimnings v. Morris, 25 
 N. Y. 625-627; A//en v. Broivn, U N. Y. 228; 8heridaii v. 
 The Mayor etc., 68 N. Y. 30; Freeman v. Falconer, 45 
 Super. 383 ) ; but this does not authorize a mere agent to 
 sue. (/se/ni V. i?oif ?««(/, 30 Hun, 488). The legal title 
 is not necessary to enable the plaintiff to maintain an 
 action. If he has the whole interest as against the 
 assignor, so that payment to him would protect the 
 debtor, he may sue upon the claim, although he has not 
 yet acquired the full legal title. {Pomeroy on Rem. 
 § 127; Hastings v. McKlnley, 1 E. D. Smith, 273). The 
 defendant, hoAvever, may always show that another and 
 not the plaintiff, is the real party in interest. {Hays v. 
 Hathorn, 74 N. Y. 486). The assignee who holds a 
 claim as a pledge may sue. {Sheldon v. Wood, 2 Bosw. 
 267 ; affd., suh nam., ByxUe v. Wood, 24 N. Y. 607) . If 
 the assignor has an existing interest in the property after 
 the assignment, he may sue' for its enforcement, making 
 the assignee, however, a party. {Ridgivay v. Bacon, 72 
 Hun, 211). After a right of action has arisen upon a 
 special guaranty, it is assignable, and the suit must be 
 brought in the name of the assignee. {EvansviUe Nat. 
 Bk. V. Kaufmann, 93 N. Y. 273). Where the executor 
 of an estate has assigned a claim against the testator, 
 the assignee may sue on it. {Snyder v. Snyder, 96 N. 
 Y. 88). 
 
 ARTICLE IV. 
 
 UNINCORPOEATED ASSOCIATIONS. 
 
 An action or special proceeding may be maintained, 
 by the president or treasurer of an unincorporated asso- 
 ciation, consisting of seven or more persons, to recover 
 any property, or upon any cause of action, for or upon 
 which all the associates may maintain such an action, 
 or special proceeding,'by reason of their interest or own- 
 ership therein, either jointly or in common. An action 
 
146 PRACTICE. 
 
 may likewise be maintained by such president or treas- 
 user to recover from one or more members of sucli asso- 
 ciation liis or their proportionate shares of any moneys 
 lawfully expended by such association for the benefit of 
 such associates, or to recover any lawful claim of such 
 association against such member or members. An 
 action or special proceeding may be maintained, against 
 the president or treasurer of such an association, to 
 recover any property, or upon any cause of action, for or 
 upon which the plaintiff may maintain such an action 
 or special proceeding, against all the associates, by 
 reason of their interest or ownership, or claim of owner- 
 ship therein, either jointly or in common, or their 
 liability therefor, either jointly or severally. Any part- 
 nership, or other company of persons, which has a presi- 
 dent or treasurer, is deemed an association within the 
 meaning of this section. (Co. Civ. Proc. § 1919). This 
 article does not prevent an action from being brought 
 by or against all the members of the association, except 
 as prescribed in section nineteen hundred and twenty- 
 two of the code. (Co. Civ. Proc. § 1923). In actions 
 against the officers of a joint stock association under 
 ;section 1919 above cited, the associates are not necessary 
 parties. (Olery y. Broion,51B.oyv.PF. 92). The presi- 
 dent or officer suing, is a corporation sole, and may be 
 sued by one of the members. (Westcott v. Fargo, 61 N. 
 Y. 542) . Such member may maintain against the presi- 
 dent, an action for the maintenance by the association, 
 of a priA^ate nuisance. (Saltsman v. Sliults, 14 Hun, 
 256). The president may sue one of the shareholders, 
 on contract {Waterbury v. The M. V. Exp. Co., 50 Barb. 
 157; Bray v. Farwell, 3 Lans. 495) ; or for a penalty. 
 Bridenhacl-er v. Hoard, 32 How. Pr. 289). The presi- 
 dent, secretary and treasurer of a joint stock associa- 
 tion, cannot all be joined in an action against the asso- 
 ciation under these sections. (Schmidt v. Giinther, 5 
 Daly, 452). An action for a libel committed by a joint 
 stock association, is properly brought against the presi- 
 dent. ( Yan Aernam v. McCiine, 32 Hun, 316 ) . A social 
 club may be sued in the name of the president, under 
 section 1919. (EbUnghousen v. Worth Club, 4 Abb. N. 
 
THE PARTIES TO AN ACTION. 147 
 
 C. 300). It was held that volunteer fire companies in 
 New York city, could not sue by their president, under 
 the laws of 1849 or 1851. (Masterton v. Bolts, 4 Abb. 
 Pr. 130) . But such companies seem to be within section 
 1919 above cited. It applies to Odd Fellows' Lodges 
 Cohii V. Bonst, 36 Hun, 562 ; Tibbetts v. Blood, 21 Barb. 
 650) ; and to a missionary society. {DeWitt v. Chand- 
 ler, 11 Abb. Pr. 459) ; and to a local assembly of the 
 Knights of Labor {Wicks v. Monihan, 130 N. Y. 232) ; 
 and to the New York Stock Exchange {^eivell v. Ives, 61 
 How. Pr. 54 ) . In an action brought under this section, 
 the president, or officer against whom the action is 
 brought, is the only "party" defendant, within the mean- 
 ing of section 870 of the code of civil procedure, and, 
 although sued in his representative capacity, he may be 
 examined before trial in a proper case {BIcGufftn v. 
 Dinsmore, 4 Abb. N. C. 241) ; and such officer is the only 
 one of the association who can be examined before trial. 
 {^yoods V. De Figaniere, 1 Kobt. 607) . The officer against 
 whom the action is brought is the only member of the 
 association who can verify the answer as a party de- 
 fendant. {Talhnadge v. Lounsbury, 10 N. Y. Supp. 129) . 
 An action cannot be maintained against the president or 
 treasurer under section 1919, upon any cause of action 
 for which the plaintiff could not maintain an action 
 against all of the associates, either jointly or severally. 
 (McCabe v. Goodfellow, 133 N. Y. 89). 
 
 ARTICLE V. 
 
 COKPORATIONS, DIRECTORS AND STOCKHOLDERS. 
 
 Where a corporation is a defendant upon a claim 
 made against it, the directors are not proper parties. 
 ( Chase v. Vanderbilt, 62 N. Y. 307 ) . An action against 
 the agents or officers of a corporation, for damages for 
 loss to it, must be brought by the corporation, and not 
 by the stockholders (Forbes v. Whitloch, 3 Edw. Ch. 
 470) ; but if the wrong doers have control of the corpora- 
 tion, or the corporation, being applied to refuses to sue, 
 an action may be brought by the stockholders. (Cun-r 
 
148 PRACTICE, 
 
 ningham v. Pell, 5 Paige, 607; Greaves v. Gouge, 69 N. 
 Y. 154). The corporation, however, must be made a 
 party defendant in such case {Smith v. Rathbuii, 66 
 Barb. 402; Greaves v. Gouge, supra), although it has 
 ceased to transact business. {Allen v. N. J. South. R. 
 R. Co., 49 How. Pr. 14). All the fraudulent directors 
 are not necessary parties, in an action brought to obtain 
 satisfaction for fraudulent breach of trust. {Cunning- 
 ham V. Pell supra; Mayne v. Griswold, 3 Sandf. 463). 
 Suits by the stockholders against the officers, to recover 
 assets, or to restrain malfeasance, must be alleged to be 
 brought for the benefit of all. {Robinson v. Smith, 3 
 Paige, 223; Smith v. Rathbun, 66 Barb. 402). In an 
 action to set aside a purchase of the property of the 
 corporation, or to restrain the payment of money under 
 an illegal contract, the alleged fraudulent purchaser, 
 or the contractors, must be parties ( Gray v. N. Y. & Va. 
 Stp. Co., 3 Hun, 383 ; Dinsmore v. A. & P. R. Co., 46 
 How. Pr. 193) ; but the corporation is not a necessary 
 party, in an action against an officer for damages for 
 issue of spurious stock. ( Seiser v. Mali, 6 Abb. Pr. 270, 
 note; 41 N. Y. 619). In an action by a receiver of a 
 corporation to set aside a judgment against it as fraudu- 
 lent, the corporation is a necessary party. {Hubbell v. 
 Merchants Nat. Bk., 42 Hun, 200). Where the action is 
 brought by a creditor of a corporation, and the stock- 
 holders, directors, trustees, or other officers, or any of 
 them, are made liable by law, in any event or con- 
 tingency, for the payment of his debt, the persons, so 
 made liable, may be made parties defendant, by the 
 original or by a supplemental complaint; and their 
 liability may be declared and enforced by the judgment 
 in the action. (Co. Civ. Proc. § 1790). Where the 
 stockholders, directors, trustees, or other officers of a 
 corporation, who are made liable, in any event or contin- 
 gency, for the payment of a debt, are not made parties 
 defendant, as prescribed in the last section, the plaintiff 
 in the action may maintain a separate action against 
 them, to procure a judgment, declaring, apportioning 
 and enforcing their liability. (Co. Civ. Proc. § 1791). 
 These sections, however, do not repeal or affect any 
 
THE PARTIES TO AN ACTION. 149 
 
 special provision of law, prescribing the mode of enforc- 
 ing the liability of the stockholders of a particular kind 
 of corporation. (Co. Civ. Proc. § 1796). In an action 
 to establish the liability of the directors of a corpora- 
 tion, for creating debts beyond the capital, all the 
 directors must be parties defendant. {McClave v. 
 Thompson, 36 Hun, 365). An action against a trustee 
 for failure to file a report, or for filing a false report, 
 may be brought against one, and the others need not be 
 joined {Halstead v. Dodge, 51 Super. 169; Bonnell v. 
 Griswold, 68 N. Y. 294; Hoag v. Lamont, 60 N. Y. 96) ; 
 but the plaintiff may join all who are liable, in one 
 action if he desires. The stockholders of a corporation 
 may join as plaintiffs, in an action to have the funds 
 belonging to the corporation, diverted by its officers, 
 accounted for. {Barr v. N. Y. L. E. & Western R. Co., 
 96 N. Y. 444). An action under the stock corporation 
 law, to charge a stockholder, may be brought by one 
 creditor against one stockholder {Weeks v. Love, 50 
 N. Y. 568; McMaster v. Davidson, 29 Hun, 542) ; or all 
 the creditors, or one creditor in behalf of all, may bring 
 an action against the stockholders to enforce the lia- 
 bility {Mathez v. Neidig, 72 N. Y."100) ; but a receiver 
 cannot bring the action {Farnsworth v. Wood, 91 N. Y. 
 308) ; nor are the trustees necessary parties. (Harris v. 
 Norvell, 1 Abb. N. C. 127). 
 
 ARTICLE VI. 
 
 ESTATES OF DECEASED PERSONS. 
 
 An action or special proceeding, by an executor or 
 administrator, upon a cause of action, belonging to him 
 in his representative capacity, or an action or special 
 proceeding, commenced against him except where it is 
 brought to charge him personally, must be brought by 
 or against him in his representative capacity. A judg- 
 ment, recovered against an administrator or executor, 
 without describing him in his representative capacity, 
 cannot be enforced against the property of the decedents, 
 except by the special direction of the court contained 
 
150 PRACTICE. 
 
 therein. (Co. Civ. Proc. § 1814). In an action against 
 two or more executors or administrators, representing 
 the same decedent, all are considered as one person; 
 and those who are first served with process, or first 
 appear, must answer the plaintiff. Separate answers, 
 by different executors or administrators cannot be re- 
 quired or allowed, except by direction of the court. But 
 this section does not affect the plaintiff's right to bring 
 into court all the executors or administrators who are 
 parties. (Co. Civ. Proc. § 1817). One of two or more 
 executors to whom letters testamentary have not been 
 issued, is not a necessary party to an action or special 
 proceeding, in favor of or against the executors in their 
 representative capacity. (Co. Civ. Proc. § 1818). A 
 temporary administrator appointed under section 2668, 
 of the code of civil procedure, may sue, and he may be 
 sued, by leave of the surrogate in like manner and with 
 like effect, as if he were administrator in chief. (Co. 
 Civ. Proc. § 2672). A foreign executor cannot be sued 
 in his representative capacity in this state upon a cause 
 of action arising out of some transaction had with his 
 testator (Brown v. Brown, 1 Barb. Ch. 189; Flandrotv v. 
 Hammond, 13 App. -Div. 325); but his assignee may. 
 ( Petersen v. Chemical Blc, 32 N. Y. 21 ; Smith v. Tiffanij, 
 16 Hun, 552). If ancillary letters have been issued to 
 a foreign executor, he may sue or be sued in his repre- 
 sentative character in this state. (Hopper v. Hopper, 
 125 N. Y. 400). A foreign executor can sue, in this 
 state, of course, on a contract made with him as such 
 executor. (Johnson v. WalUs, 112 N. Y. 230). He may 
 be made a party defendant in an action for an 
 accounting, for assets received in this state. (Field v. 
 Gibson, 20 Hun, 274) . One co-executor may sue another 
 for an accounting, for an amount due from him to the 
 estate (Wiirt;; v. Jenkins, 11 Barb. 546; Smith v. Law- 
 rence, 11 Paige, 206; Matter of Rumsey, 45 N. Y. St. 
 Rep. 453) ; and may maintain an action in equity to 
 compel the payment of a debt (McGregor v. McGregor, 
 35 N. Y. 218; Rogers v. McGiiire, 75 Hun, 133; Simpson 
 V. Simpson, 44 App. Div. 492) ; but not for damages, for 
 conversion of the property of the testator in his life 
 
THK PAETIES TO AN ACTION. 151 
 
 time (Whitnci/ v. Voapnian, 39 Barb. 482) ; nor for a 
 debt due the estate {Dean v. Rosehoom, 12 Wk. Dig. 
 123) ; nor to foreclose a mortgage made by him. ( Yroo- 
 inan v. Stimson, 7 Wk. Dig. 468). One executor can- 
 not sue a firm of which he is a member, to recover a 
 debt due from it to the testator. (Matter of Vonsahis^ 
 95 N. Y. 340). Under chapter 314 of the laws of 1858, 
 an executor or administrator may bring an action to 
 set aside a transfer of real estate by the decedent, as 
 fraudulent as against creditors [Barton x. Hosiier, 24 
 Hun, 467 ) ; or on the ground of undue influence. ( Love 
 V. Dieskes, 51 Super. 144). A judgment creditor may 
 also bring such an action. {JSfat. Bk. v. Levy, 127 N. Y. 
 549). The executor of a lunatic is a proper party to 
 bring an action for an accounting, against his com- 
 mittee. {Schultz V. Cookingham, 30 Hun, 443). An 
 executor may sue a defendant, who in collusion with the 
 plaintiff acting individually, has converted assets of the 
 testator. (Wetmore v. Porter, 92 N. Y. 76). An execu- 
 tor who has been removed, is not a necessary party to 
 an action against the trust estate. {Earlc v. Earle, 48 
 Super. 18). An executor must be joined as a plaintiff 
 in an action for the price, by the devisee of the vendor, 
 in an executory contract to sell land. {.Adams v. Green, 
 34 Barb. 17Q {Thompson v. ^^mith, 63 N. Y. 301). The 
 executors only, or trustees, can maintain an action for 
 the construction of a will. {Chipinan v. Montgomery, 
 63 N. Y''. 221). They are the proper parties plaintiff in 
 an action for causing the death of the testator (Co. 
 Civ. Proc. § 1902) ; and in case the executor or adminis- 
 trator dies while the action is pending, his successor 
 may continue the action. {Mundt v. Glokner, 24 App. 
 Div. 110 ; appeal dismissed, 160 N. Y. 571) . The executor 
 or administrator is the proper party plaintiff, for in- 
 juries to the testator's real or personal property, or for 
 wrongs to his property rights or interests, in his life 
 time; and is a proper party defendant, in an action for 
 injuries by the testator, to personal or real estate, or 
 wrongs done by him to property or interests, or wrongs 
 which he may have committed, as executor or adminis- 
 trator of some other estate. (2 R. S., 9th Ed., p. 1882), 
 
152 . PRACTICE. 
 
 This includes cases of non-feasance, as well as malfeas- 
 ance. {Elder v. Bogardns, H. & D. Supp. 116). An 
 executor of a deceased partner is not a proper party 
 ■defendant with the survivor, in an action on a firm 
 debt {Vorhis v. Childs, IT N. Y. 354; Moore v. Brink, 4 
 Hun, 402) ; nor on a joint and several bond. {Brown v. 
 Babcocl-, 3 How. Pr. 305). An executor or adminis- 
 trator may sue in his own name, to recover for property 
 of the estate sold by him upon credit, or for other con- 
 tracts made by him {Thompson v. Wli it marsh, 100 N. 
 Y. 35) ; and he, and not the estate, is liable as defendant 
 upon all contracts made after the testator's death. {Fer- 
 rin V. Ml/rick, 41 N. Y. 315). 
 
 ARTICLE YII. 
 
 PUBLIC OFFICERS. 
 
 In actions brought against one or more directors, 
 trustees, managers, or other officers of a corporation, 
 to suspend one of them from exercising his office, where 
 it appears that he has abused his trust, or to remove one 
 of the defendants from his office, upon proof or convic- 
 tion of misconduct, and to procure a new election to 
 be held to supply the vacancy created by such removal, 
 the people are the only proper parties plaintiff. (Co. 
 Civ. Proc. §§ 1781, 1782). And actions against the 
 same officers to compel them to account for their official 
 conduct, in the management and disposition of funds 
 and property committed to their charge, or to compel 
 them to pay to the corporation or to its creditors any 
 money, and the value of any property which they have 
 acquired to themselves, or transferred to others, or lost, 
 or wasted by a violation of their duties, or to set aside an 
 alienation of property made by one or more of the trus- 
 tees, or other officers of a corporation, contrary to a pro- 
 vision of law, or for a purpose foreign to the lawful 
 business and objects of a corporation, or restraining or 
 preventing such an alienation, where it is threatened, 
 or where there is good reason to apprehend that it will 
 be made, may be brought by the people, or by a creditor 
 
THK PARTIES TO AN ACTION. 153 
 
 of a corporation, or by an officer having general super- 
 intendence of its concerns. (Co. Civ. Proc. §§ 1781, 
 17S2). The people are also the proper parties plaintiff, 
 in actions to dissolve a corporation for the reason stated 
 in section 1785 of the code. (Co. Civ. Proc. § 1786). 
 They are also the proper parties plaintiff, in an action 
 by the attorney general brought to annul a corporation, 
 pursuant to a direction of the legislature (Co. Civ. 
 Proc. § 1797) ; or in actions brou'xht to annul a corpora- 
 tion, for the reasons stated in section 1798 of the code. 
 The following actions must also be brought in the name 
 of the people : 
 
 Against a person who usurps, intrudes into, or unlaw- 
 fully holds or exercises, within the state, a franchise or a 
 public office, civil or military, or an office in a domestic 
 corporation. 
 
 Against a public officer, civil or military, who has done 
 or suffered an act which by law, works a forfeiture of 
 his office. 
 
 Against one or more persons, who act as a corporation 
 within the state, without being duly incorporated, or 
 exercise within the state, any corporate rights, privi- 
 leges or franchises, not granted by the law of the state. 
 
 Against a foreign corporation which exercises within 
 the state any corporate rights, privileges or franchises, 
 not granted to it by the law of this state; or which 
 within the state, has violated any provision of law, or, 
 contrary to law, has done or omitted any act, or has 
 exercised a privilege or franchise, not conferred upon it 
 by the law of this state, where, in a similar case, a domes- 
 tic corporation would, in accordance with section 1798 of 
 the code, be liable to an action to vacate its charter and 
 to annul its existence; or which exercises within the 
 state any corporate rights, privileges or franchises in a 
 manner contrary to the public policy of the state. 
 (Co. Civ. Proc. § 1948, Subd. 1, 2, 3, 4). Where real 
 or personal property has been forfeited, or a penalty 
 incurred to the people, or to an officer for their use, the 
 action must be brought in the name of the people. ( Co. 
 Civ. Proc. § 1962). Where any money, funds, credits, 
 or other property, held or owned by the state, or held 
 
154 PRACTICE, 
 
 or owned, officially or otherwise, for or in behalf of a gov- 
 ernmental or other public interest, by a domestic munici- 
 pal, or other public corporation, or by a board, officer, 
 custodian, agency, or agent of the state, or of a city,, 
 county, town, village or other division, subdivision, 
 department, or portion of the state, has heretofore been,, 
 or is hereafter, without right obtained, received, con- 
 verted, or disposed of, an action to recover the same, or 
 to recover damage, or other compensation, for so ob- 
 taining, receiving, paying, converting, or disposing of 
 the same, or both, may be maintained by the people of 
 the state, in any court of the state having jurisdiction 
 thereof, although a right of action for the same cause 
 exists by law in some other public authority, and 
 whether an action therefor, in favor of the latter, is or 
 is not pending, when the action in favor of the people 
 is commenced. (Co. Civ. Proc. § 1969). Whenever the 
 attorney general has good reason to believe, that the title 
 to, or right of possession of, any real property, has 
 vested in the people of the state, by escheat, or by con- 
 viction or outlawry for treason, he mu^ commence 
 an action of ejectment to recover the property. ( Co. Civ. 
 Proc. § 1977). Where personal property is forfeited 
 to the people, upon a conviction or outlawry for treason, 
 the attorney general must bring, and may maintain, 
 an action to recover the same, or the value thereof, or 
 such other action, founded upon the forfeiture, as 
 might be maintained by a private person, who had ac- 
 quired title to the property. (Co. Civ. Proc. § 1982). 
 These actions must be brought in the name of the people. 
 All state writs must be issued in behalf of the people 
 of the state, but where the writ is awarded upon the 
 application of a private person, it must show that it 
 was issued upon the relation of that person. (Co. Civ. 
 Proc. § 1994). In every case where a person, arrested 
 by virtue of a warrant of attachment, who has given an 
 undertaking, has failed to appear, and the court has 
 directed the undertaking to be prosecuted, if no party is 
 aggrieved by the misconduct of the accused, the action 
 must be brought in the name of the people. (Co. Civ. 
 Proc. § 2290 ) . The people are the only proper parties 
 
THE PARTIES TO AN ACTION. 155 
 
 plaintiff, in an action to restrain a municipal corpora- 
 tion from acting in violation of its charter, or of duties 
 imposed upon it. {People v. The Mayor, 32 Barb. 102; 
 Davis V. The Mayor, 14 N. Y. 506). Where property 
 has been devised to one, in trust for charitable corpora- 
 tions, and he repudiates the trust and refuses to apply 
 the money, the attorney general may sue in the name 
 of the people, to establish the trust and for an account- 
 ing, if the beneficiaries refuse to take steps to do so. 
 {Pea. V. Powers, 83 Hun, 449 ; reversed on another point, 
 leaving this point undecided in the court of appeals, 
 147 N. Y. 104). An action may be maintained in the 
 name of the people to restrain the unlawful appropria- 
 tion of a street. {People v. The Metropolitan Teleph. Co., 
 31 Hun, 596, 599). They may, as trustees of an express 
 trust, maintain actions upon a surrogate's bond {People 
 V. Faulkner, 31 Hun, 317) ; or on a trustee's bond to 
 them {People v. Norton, 9 N. Y. 176) ; and upon any 
 other statutory bond to them. {People v. Groat, 22 Hun, 
 164). In an action upon a draft, remitted to the state 
 treasurer, by a county treasurer in payment of taxes, 
 the people are the proper parties plaintiff. {People v. 
 The North American Bank, 75 N. Y. 547). They are 
 not proper parties, in an action, to redress wrongs in- 
 flicted by one powerful combination of citizens against 
 other citizens. {People v. Albany & Susquehanna B. 
 R. Co., 57 N. Y. 161). Wherever the relief sought in- 
 volves the right of the state, the people are necessary 
 party defendant. ( Varick v. Smith, 5 Paige, 137 ; Garr 
 V. Bright, 1 Barb. Ch. 157) . The people may be made a 
 party defendant in an action for partition, in the same 
 manner as a private person (Co. Civ. Proc. § 1594), 
 or in any action affecting real property upon which the 
 people have or claim to have a lien under the transfer 
 tax act. (Co. Civ. Proc. § 447). Any state may be a 
 proper party defendant, to enable it to appear if it 
 chooses, and protect its right. ( Garr. v. Bright, supra) . 
 An action or special proceeding may be maintained, by 
 the trustee or trustees of a school district ; the overseer 
 or overseers of the poor of a village, or city ; the county 
 superintendent or superintendents of the poor; or the 
 
156 PRACTICE. 
 
 supervisors of a county, upon a contract, lawfully made 
 with those officers, or their predecessors, in their official 
 capacity; to enforce a liability created, or a duty en- 
 joined, by law, upon those officers, or the body repre- 
 sented by them; to recover a penalty, or a forfeiture, 
 given to those officers, or the body represented by them ; 
 or to recover damages for an injury to the property or 
 rights of those officers, or the body represented by them ; 
 although the cause of action accrued before the com- 
 mencement of their term of office. (Co. Civ. Proc. § 
 1926). An action or special proceeding may be main- 
 tained, against any of the officers specified in the last 
 section, upon any cause of action, which accriies against 
 them, or has accrued against their predecessors, or upon 
 a contract made by their predecessors in their official 
 capacity, and within the scope of their authority. (Co. 
 Civ. Proc. § 1927). The last two sections do not apply 
 to a case, where it is specially prescribed by law, that 
 an action may be maintained, by or against the body, rep- 
 resented by an officer designated in those sections; but, 
 in such a case, the prosecution or defense of the action, 
 as the case may be, must be conducted by the persons 
 then in office, who represent that body. (Co. Civ. Proc. 
 § 1928). In an action or special proceeding, brought 
 pursuant to sections 1926 or 1927 above, the officer, by 
 or against whom it is brought, must be described in the 
 summons, and in the subsequent proceeding, by his indi- 
 vidual name, with the addition of his official title. ( Co. 
 Civ. Proc. § 1929). A county must sue and be sued, in 
 the name of the county. (The County Law, §§3, 234). 
 It was formerly held that an action against the sureties 
 of a county treasurer, for misapplying proceeds of the 
 sale of infant's real estate, must be brought in the name 
 of the board of supervisors of the county. ( Supervisors 
 of TompMns Go. v. Bristol, 99 N. Y. 316) ; but section 
 3 of the County Law would seem to direct that such ac- 
 tion be brought in the name of the county. Any action 
 or special proceeding for the benefit of a town, upon a 
 contract lawfully made wdth any of its town officers, to 
 enforce any liability created or duly enjoined upon those 
 officers, or the town represented by them, or to recover 
 
THE PARTIES TO AN ACTION. 157 
 
 any forfeiture given to such officers, or the town repre- 
 sented by them, or to recover damages for injury to the 
 property or rights of such officers, or the town repre- 
 sented by them, shall be in the name of the town. Any 
 action or special proceeding to enforce the liability of 
 the town upon any such contract, or for any liability of 
 the town for any act or omission of its town officers, 
 shall be in the name of the town. (The Town Law, § 
 182). Section 1928 of the code of civil procedure ex- 
 cludes the operation of section 1926 in a case covered by 
 this provision of the Town Law. {Miller v. Bush, 87 
 Hun, 507) . In actions by or against the agent of a state 
 prison, he must be a party in his own individual name, 
 with the addition of his official title. (Agt. State Prison 
 Y. Rikeman, 1 Den. 279). An action to obtain a judg- 
 ment, preventing waste of, or injury to, the estate, funds, 
 or other property of a county, town, city or incorporated 
 village of the state, may be maintained against any offi- 
 cer thereof, or any agent, commissioner, or other person 
 acting in its behalf, either by a citizen resident therein, 
 or by a corporation who is assessed for and is liable to 
 pay, or, within one year before the commencement of the 
 action, has paid a tax therein. This section does not 
 affect any right of action in favor of a county, city, town, 
 or incorporated village, or any public officer. (Co. Civ. 
 Proc. § 1925). In an action brought to vacate an audit 
 of accounts, made by a town board, the persons in favor 
 of whom the audits were made, are necessary parties. 
 (Osterhoudt v. The Supervisors of Ulster Co., 98 N. Y. 
 239). 
 
 ARTICLE VIII. 
 
 TRUSTEES OF AN EXPRESS TRUST. 
 
 Section 449 of the code of civil procedure, which au- 
 thorizes trustees of an express trust to sue, does not 
 forbid an action by the beneficiaries, with or without 
 joining the trustee (Huhbell v. Medbury, 53 N. Y. 98; 
 Bort V. Snell, 39 Hun, 388) ; but in case the trustee has 
 an interest in the subject-matter, the beneficiary cannot 
 sue, at least, without showing a request to the trustee to 
 
158 PRACTICE. 
 
 sue and a refusal by him. {Lord v. Lord, 68 Hun, 537). 
 If the trustee of an express trust brings an action, how- 
 ever, the beneficiaries are bound thereby although not 
 parties. {Matter of Btraut, 126 N. Y. 201; Bracken v. 
 Atlantic Trust Co., 36 App. Div. 67). The section does 
 not apply to actions by executors, for the construction 
 of a will. In such an action, all persons claiming under 
 the will must be parties. {Hobart College v. Fitshugh, 
 27 N. Y. 130 ) . A person with whom, or in whose name, 
 a contract is made for the benefit of another, is a trustee 
 of an express trust, within the meaning of this section. 
 (Co. Civ. Proc. § 449). It has been held that assignees 
 for the benefit of creditors, or in bankruptcy, are entitled 
 to sue as trustees of an express trust. {Ogden v. Pren- 
 tice, 33 Barb. 160). So of an agent who takes a policy 
 of life insurance in his own name for a known, though 
 xmnamed principal. {Pitney v. Glens Falls Ins. Co., 
 65 N. Y. 6; Weed v. H. B. F. Ins. Co., 133 N. Y. 394). 
 Where a policy of life insurance was made payable to 
 the assured or his representatives, for the benefit of a 
 third person, it was held that the personal representa- 
 tives of the assured might sue upon it, under this section. 
 {Greenfield v. Mass. Mut. Ufe Ins. Co., 47 N. Y. 430; 
 Kerr v. Un. Mu. L. I. Ins. Co., 69 Hun, 393). The as- 
 signee of a life policy, in trust for the wife of the assured, 
 was held to be within this section. {St. John v. The 
 American Mut. Life Ins. Co., 13 N. Y. 31). Where a 
 policy of insurance was issued to a party, payable "to 
 whom it may concern," it was held that the person to 
 whom it was issued, might sue as a trustee of an express 
 trust. {Walsh v. Washington Ins. Co., 32 N. Y. 427). 
 Commission merchants, insuring goods consigned to 
 them to be sold on commission, may sue on the policy as 
 trustees of an express trust. ( Waring v. The Indemnity 
 Fire Ins. Co., 45 N. Y. 606). A general agent of an in- 
 corporated association, or an officer of a foreign corpora- 
 tion who has authority to sue, is within this section. 
 {Habicht v. Pemberton, 4 Sand. 657; Myers v. Machado, 
 6 Abb. Pr. 198). So is an individual banker doing busi- 
 ness in his own name, although others are interested 
 with him. {Burbank y. Beach, 15 Barl). S2Q). A mer- 
 
THE PARTIES TO AN ACTION. 159 
 
 cantile factor, doing business for otiiers in his own name, 
 may sue under this section {Ludivlg v. Gillespie, 51 
 Super. 310; affd. 105 N. Y. 653) ; or an auctioneer; or 
 one to whom a contract for the payment of money is as- 
 signed in trust (Ctdniniiis v. Barhalow, 1 Abb. Ct. of 
 App. 479 ) ; or one to whom notes have been assigned as 
 collateral security for a loan, made to the assignee by a 
 third party [Clark v. Titcomh, 42 Barb. 122) ; or the 
 agent of a corporation to whom notes are made payable 
 as agent {Considerant v. Brisbane, 22 N. Y. 389) ; or one 
 who has authority of several owners to collect a claim 
 in his own name. [Noe v. Christie, 51 N. Y. 270) . One 
 of several owners of real estate, who has a power of at- 
 torney to lease and collect the rents, can sue for the 
 rents in his own name, under this section. {Fargo v. 
 Owen, 79 Hun, 181). Trustees named in a subscription 
 paper, for the purpose of an action against the sub- 
 scribers, are trustees of an express trust. {Hutchins v. 
 Smith, 46 Barb. 235 ; Slocum v. Barry, 34 How. Pr. 320) . 
 The general guardian of an infant has been held to be a 
 trustee of an express trust. {Thomas v. Bennett, 56 
 Barb. 197). 
 
 ARTICLE IX. 
 
 WHERE ONE MAY SUE OR BE SUED FOR ALL. 
 
 Where an action is one of a common or general interest 
 of many persons, or where the persons, who might be 
 made parties are very numerous, and it may be imprac- 
 ticable to bring them all before the court, one or more 
 may sue or defend for the benefit of all. ( Co. Civ. Proc. 
 § 448). This section applies only to a case where the 
 right to assert which the action is brought, or the obli- 
 gation it is sought to enforce, exists for or against, or is 
 common to all. {Beid v. The Evergreens, 21 How. Pr. 
 319). The pleading in such cases, must show that the 
 parties are within this section of the code. {Garner v. 
 Wright, 24 How. Pr. 144). One of four legatees may 
 sue an executor for an accounting, and all may avail 
 themselves of the decree. {McKenzie v. UAmoureux, 
 11 Barb. 516). An action may be maintained by one of 
 11 
 
160 PRACTICE. 
 
 the next of kin of a deceased person, on behalf of herself 
 and for the benefit of all the heirs-at-law and next-of-kin, 
 against the representatives of a deceased party to pro- 
 cure an adjudication upon the validity of a will. {Far- 
 nam v. Barnum, 2 How. Pr. N. S. 396). One judg- 
 ment creditor may sue in behalf of all, to set aside an 
 assignment for the benefit of creditors as fraudulent. 
 ( Glaflin v. Gordon, 39' Hun, 55 ) . But only those who 
 had a right of action when the suit, was commenced, 
 can share in the proceeds of the judgment. (Ibid.). 
 One creditor may sue in behalf of all, to compel 
 an assignee for the benefit of creditors to account 
 (Noyes v. Wernherg, 15 Wk. Dig. 72) ; or to compel 
 an executor to account, and to set aside as fraudulent, 
 a lease made by him. {Petree v. Lansing, 66 Barb. 357) . 
 One creditor may bring an action, in behalf of all, 
 against an insolvent corporation and its stockholders, 
 for an accounting and to ascertain the debts and assets 
 of the corporation, and compel payments on the part of 
 stockholders on account of their personal liabilities. 
 {Pfohl V. Simpson, 50 How. Pr. 341). Where several 
 different actions are brought by creditors in behalf of 
 all, the court has power to compel all the creditors to 
 prove their claims in the action in which the judgment 
 is first entered, and to stay proceedings in the other ac- 
 tions. ( Travis v. Myers, 67 N. Y. 542 ) . One stockholder 
 of a national bank may, in behalf of other stockholders, 
 sue the receivers and directors for misconduct. {Brinck- 
 erhoff V. Bosticich, 88 N. Y. 52). One stockholder may 
 sue for all, to restrain or set aside fraudulent transac- 
 tions of the directors, or for damages for such transac- 
 tions. (Smith V. Raihbun, 66 Barb. 402 ; Butts v. Wood, 
 37 N. Y. 317). One may sue for all, to compel the pay- 
 ment by the corporation, of dividends on the preferred 
 stock. {Prouty Y. Michigan Southern R. R. Co., 1 Hun, 
 655) . One member of an unincorporated association may 
 sue for all, under this section. (Bloete v. Simon, 19 Abb. 
 N. C. 88; Strasser v. Moonelis, 55 N. t. Super. 197; aflfd. 
 108 N. Y. 611). One member of a religious corporation 
 may sue the trustees and minister, in behalf of all, to 
 restrain a diversion of the temporalities of the church. 
 
THE PARTIES TO AN ACTION. 161 
 
 {First Reformed Church v. Bowden, 14 Abb. N. 0. 356) . 
 In all actions brought by one person, in behalf of all 
 others similarly situated, the plaintiff has control of the 
 action, and may discontinue it any time (Mattison v. 
 Demarest, 1 Robt. TIT; Derby v. Yale, 13 Hun, 2T3; 
 HirshfeJd v. Fitzgerald, 15T N. Y. 166) ; but after judg- 
 ment, the others may come in and become parties. 
 {Frouty v. Michigan Southern R. R. Co., 1 Hun, 655; 
 Claflin V. Gordon, 39 Hun, 51 ; Kerr v. Blodgett, 48 N. 
 Y. 62). If a representatiA^e action, as provided for by 
 this section, is fairly brought and honestly and regularly 
 conducted for the benefit of all having the common in- 
 terest, the judgment therein binds all the class. (Stev- 
 ens V. Union Trust Co., 5T Hun, 498). Where the action 
 is brought under this section, every member of the same 
 class with the plaintiff, has the right to come in and 
 enjoy the benefits of the action, upon contributing to ithe 
 expenses of the litigation, although he may have the 
 right to sue in his own name in some other capacity. 
 ( Rogers v. N. T. & Texas Land Co., IT St. Rep. 131) . A 
 person having the same interests as the plaintiff in a suit 
 of this character will not be brought in on his own peti- 
 tion, however, where it appears that, with a knowledge 
 of all the facts, he has acquiesced in the plaintiff's con- 
 duct of the litigation until the statute of limitation has 
 run against his right to maintain an independent action. 
 (MacArdell v. Olcott, 62 xipp. Div. 12T). But if any of 
 such parties has brought an action for the same relief, 
 and been defeated in it, he cannot obtain the relief under 
 the judgment which has been recovered by another cred- 
 itor for the benefit of all. {O'Brien v. Browning, 11 
 Hun, 1T9). 
 
 ARTICLE X. 
 
 JOINT AND SEVERAL PARTIES. 
 
 All persons jointly interested in procuring the relief 
 sought, must be joined as plaintiffs. For instance, all 
 persons entitled to have a deed executed, must be joined 
 as plaintiffs in an action to compel execution. (Spier v. 
 Robinson, 9 How. Pr. 325) . All who are jointly entitled 
 
162 
 
 PRACTICE. 
 
 to share in a debt may join in an action to recover it 
 {Brett V. First Universalist Society, 5 Hun, 149; Tylee 
 V. McLean, 10 Wend. 373) ; but in a case where the de- 
 fendant made a bond for the payment of four hundred 
 dollars to the heirs of "L," it was held that one of the 
 heirs might sue alone for his share, because his interest 
 was several. {Hees v. Nellis, 1 T. & C. 118) . Where the 
 interests of two or more promisees are several, although 
 the language of the promise is joint, several actions may 
 be maintained by them. {Emmeleuth v. R. B. Assc'n., 
 122 N. Y. 130). Separate proprietors of land may join 
 in a suit for redress of a private injury common to all 
 (Foot V. Bronson, 4 Lans. 47), as, to restrain an obstruc- 
 tion of a stream which will cause it to overflow the lands 
 of all. {Gillespie v. Forrest, 18 Hun, 110). Several 
 owners of a vessel must join or be joined in an action 
 by, or against them. ( Wright v. Marshall, 3 Daly, 331 ) . 
 Tenants in common must join in all personal actions for 
 injuries to the realty {DePiiy v. Strong, 37 N. Y. 372; 
 Eckerson v. Village of Haverstraw, 6 App. Div. 102; 
 affd. without op. 162 N. Y. 652) ; but in actions to re- 
 cover the real estate, each may sue severally {Hill v. 
 Gibbs, 5 Hill, 56), or all may join. (Co. Civ. Proc. § 
 1500). Several taxpayers cannot join in an action to 
 restrain the assessment of a tax, unless they have prop- 
 erty in common on which it would be a lien. {Magee v. 
 Cutler, 43 Barb. 239). Several owners of lots fronting 
 on the same street cannot join in an action to restrain 
 the construction of a railroad, on the ground that com- 
 pensation has not been made for damages. {Moron v. 
 Ly decker, 27 Hun, 582 ) . If a person is liable to two or 
 more parties on a joint contract and settles with one of 
 them for a part of the claim, the others may sue for their 
 part, without joining the one with whom the settlement 
 has been made. {Lansing v. Bliss, 86 Hun, 205). At 
 common law it was a well settled rule, that persons who 
 were jointly and severally liable, must be all sued to- 
 gether, or one of them must be sued separately {Qiiigley 
 V. Walter, 2 Sweeney, 175 ; Strong v. Wheaton, 38 Barb. 
 616) ; but this rule was changed by section 454 of the 
 code of civil procedure, which provides that two or 
 
THE PAUTIES TO AN ACTION. 163 
 
 more persons, severally liable upon the same writ- 
 ten instrument, including the parties to a bill of 
 exchange or a promissory note, whether the action 
 is brought upon the instrument, or by a party 
 thereto to recover against other parties liable over 
 him, may, all or any of them, be included as de- 
 fendants in the same action, at the option of the plain- 
 tiff. Under this section the plaintiff may sue all, or 
 one, or more than one, at his option {Field v. Van Cott, 
 5 Daly, 308), and the section applies not only to persons 
 severally liable, but to persons who are jointly and sev- 
 erally liable. {Gridler v. Curry, 66 Barb. 336; 44 How. 
 Pr. 345). Every written agreement is embraced within 
 this section {Brainard v. Jones, 11 How. Pr. 569), but 
 it applies only to written instruments. (Strong v. 
 Wheaton, 38 Barb. 616. ) . An action against a co-partner- 
 ship, however, upon a contract signed by it, must be 
 brought against all the partners. [Mayer v. Frankfeld, 
 85 Hun, 214). This section only a^jplies where the par- 
 ties are liable upon the same instrument ; and where the 
 liability arises upon separate instruments, the action 
 cannot be brought under this section. (Leroy v. 8haw, 
 2 Duer, 626 ; Phalen v. Dingee, 4 E. D. Smith, 379 ; Spen- 
 cer V. Wheeloclc, 11 N. Y. Leg. Obs. 329). Where one 
 defendant signed a sealed contract, and another guaran- 
 teed the execution of it by another contract under seal, 
 it was held that they could not be joined under this sec- 
 tion [De Ridder v. Schermerhorn, 10 Barb. 638; Allen 
 V. Fosgate, 11 How. Pr. 218) ; but the lessee and the 
 surety on the lease who was also a party to the lease, 
 were held to be properly joined as parties defendant pur- 
 suant to it ; and so the endorser of a promissory note or 
 his executor, can be joined as defendant with the maker 
 of the note. {Eaton v. Alger, 47 N. Y. 354) . Two makers 
 of a promisory note may be joined under this section, al- 
 though one signs as surety. (Hoyt v. Mead, 13 Hun, 327) . 
 Two persons who are charged for having obtained sepa- 
 rate property from a testator by undue influence, cannot 
 be joined as defendant, in one action to recover it. {De- 
 caumont v. Morgan, 21 W. D. 357). Tort-feasors may be 
 joined, or may be sued separately, at the option of the 
 
164 TRACTICE. 
 
 plaintiff. {Creed v. Hartman, 29 N. Y. 591; Holt v. 
 Streeter, 74 Hun, 538; Glapp v. Town of Ellington, 87 
 Hun, 542; affd. 154 N. Y. 781). An action, brought un- 
 der section 454, is in effect, a several action against each 
 defendant {Parker v. Jackson, 16 Barb. 33), and the 
 joinder does not affect the right of either defendant to 
 any order, or otlier relief to which he would have been 
 entitled, if he had been separately sued in an action. 
 (Co. Civ. Proc. § 455). The maker and endorser of a 
 promissory note, joined under this section, are each en- 
 titled to an order, changing the place of trial, as if sued 
 separately. {8herinan v. Gregory, 42 How. Pr. 481). 
 Defendants thus joined are only separately liable {Kel- 
 scg V. Bradbnrg, 21 Barb. 531; Farmers' Bank v. Blair, 
 44 Barb, 641). 
 
 ARTICLE XI. 
 
 PROCEEDINGS AGAINST DEFENDANTS SEVERALLY LIABLE. 
 
 Where a summons, issued against two or more de- 
 fendants, alleged to be severally liable, is served upon 
 some, but not upon all of them, the plaintiff may pro- 
 ceed against those upon Avhom it is served, as if they 
 were the only defendants named therein. Where it is 
 served upon all of them, the plaintiff may take judgment 
 against one or more of them, where he would be entitled 
 to judgment, if the action was against him or them alone. 
 Where judgment is so taken, the clerk must, upon the 
 plaintiff's application, enter an order, directing that the 
 action be severed, and that the plaintiff may proceed 
 against the other defendants. In any subsequent pro- 
 ceeding, the plaintiff may use, together with a certified 
 copy of such an order, a copy of a paper constituting a 
 part of the judgment roll, with like effect as if it was 
 the original. (Co. Civ. Proc. § 456). This section is not 
 restricted to common-law actions on contract. {BlU- 
 liofer V. Herhach, 15 Abb. Pr. 143). Defendants sever- 
 ally liable under this section, are those liable separately 
 from the defendants not served, though jointly as re- 
 spects each other. {Prtii/n v. Black, 21 N. Y. 300). In 
 an action against two as partners, upon a promissory 
 
THE PARTIES TO AN ACTION. 165 
 
 note, where the evidence showed tliat the note was made 
 by one only, and the other was not a partner, it was held 
 that the plaintiif might recover against the one who 
 made the note. {Bniiuskill v. James, 11 N. Y. 294) . So, 
 where a complaint charges a joint liability, that fact does 
 not relieve a defendant if the facts warrant a finding of 
 individual liability. {Boynton v. 8quircs, 85 Hun, 128). 
 'Where an action was brought against five, and two only 
 were liable, it was held that the plaintiff might recover 
 against those who were liable. {Mcintosh v. Ensign, 28 
 N. Y. 169). An action against several tort-feasors can- 
 not be stricken from the calendar because one of the de- 
 fendants has not been served, as, under section 456, the 
 plaintiff may proceed against those defendants served, 
 each being severally liable. (Bappaport v. Werner, 34 
 A pp. Div. 525). Those who are not served, may yet ap- 
 pear in the action. {Wellington v. Claason, 9 Abb. Pr. 
 175). Where the action is against two or more de- 
 fendants, and a several judgment is proper, the court 
 may, in its discretion, render judgment, or require the 
 plaintiff to take judgment, against one or more of the 
 defendants; and direct that the action be severed, and 
 proceed against the others, as the only defendants 
 therein. (Co. Civ. Proc. § 1205) . This section has abro- 
 gated the common-law rule that in an action against sev- 
 eral defendants upon an alleged joint contract, the plain- 
 tiff must fail unless he establishes the joint liability of 
 all the defendants. Where, in such an action, the joint 
 answer of all the defendants denies the joint liability, 
 but sets up facts showing an individual liability of one 
 of the defendants, the plaintiff is entitled to judgment 
 against that defendant, without awaiting the trial of the 
 issue thus joined. {Stedeker v. Bernard, 102 N. Y. 327) . 
 Sections 454, .455 and 456 of the code of civil procedure 
 do not affect a defense or other objection of a defendant, 
 growing out of the failure to join in the action two or 
 more persons jointly liable; and, as regards the other 
 parties to the action, persons jointly liable are regarded 
 as one party, for every purpose contemplated by those 
 sections. (Co. Civ. Proc. § 457). 
 
166 PRACTICE. 
 
 ARTICLE XII. 
 
 PARTIES IN ACTION RESPECTING REAL ESTATE. 
 
 SECTION. 
 
 1. Actions of ejectment. 
 
 2. Actions fov partition. 
 
 3. Actions for dower. 
 
 4. Actions to foreclose mortgage. 
 
 5. -Actions to compel determination of claims to real estate. 
 
 6. Actions for waste. 
 
 7. Actions for a nuisance. . 
 
 Sec. 1. Actions of Ejectment. 
 
 An action of egectment may be maintained by, or 
 against, an infant ( Co. Civ. Proc. § 1686 ) ; and the com- 
 mittee of a lunatic or incompetent person may maintain 
 such an action (Co. Civ. Proc. § 2340) ; and so may the 
 personal representatives, or an assignee, of the lessee 
 for lives. (Mosher v. Yost, 33 Barb. 277) . It seems that 
 the case of Burnett v. Bookstaver, (10 Hun, 481), is 
 superseded by section 2340 of the code above cited. It 
 has been held that where the plaintiff is a lunatic, an 
 action of ejectment in which no equitable relief is de- 
 manded, might properly be brought in his own name, 
 although a committee of his person and estate had been 
 appointed. (Skinner v. TibMtts, 13 Civ. Proc. Hep. 
 370). It was said in the opinion in that case, that the 
 committee could not maintain the action, but that hold- 
 ing was not necessary to the decision of the case. 
 In the case of Koepke v. Bradley (3 App. Div. 391; 
 affd. on opinion below, 151 N. Y. 622), it was 
 held that section 2340 permitted the committee of 
 a lunatic to bring an action of partition in his 
 own name, without making the lunatic a pa;rty, and the 
 dictum in 8kinner v. Tibbitts, is discredited. Whoever 
 is entitled to the possession of real estate, whether by 
 legal or equitable title, is a proper party plaintiff, in an 
 action of ejectment. {Clute v. Voris, 31 Barb. 511; 
 Phillips V. Gorham, 17 N. Y. 270 ; Sheehan v. Hamilton, 
 4 Abb. Ct. App. 211; Glacken v. Brotcn, 39 Hun, 295, 
 298 ; More v. Deyoe, 22 Hun, 208 ; Peck v. Neioton, 46 
 
THE PARTIES TO AN ACTION. 167 
 
 Barb. 173 ; Bennett v. Grui/, 92 Hun, 86) . A widow who 
 is guardian in socage of her children, the heirs of a de- 
 cesised husband, may, in her own name, maintain eject- 
 ment for one-third of the land in her own right as de- 
 visee, and for two-thirds as guardian of her children. 
 {More V. Deyoe, supra; Holmes v. Beely, 17 Wend. 75; 
 Gagger v. Lansing, 64 N. Y. 417). The state is not a 
 proper party plaintiif to recover land belonging to a 
 municipal corporation. {People v. X. Y. Manhattan 
 Beach Railioay Co., 84 N. Y. 565). A mortgagee, or his 
 assignee, or other representative, cannot maintain an 
 action of ejectment, to recover the mortgaged premises. 
 (Co. Civ. Proc. § 1498). This rule applies to one claim- 
 ing under an absolute deed which is in fact a mortgage. 
 (Shattuck V. Basconi, 105 N. Y. 39; Van Vleck v. Enos, 
 88 Hun, 348 ; Berdell v. Berdell, 33 Hun, 535 ; Garr v. 
 Garr, 52 N. Y. 251) ; but a mortgagee in possession with 
 the consent of the owner, may defend an action of eject- 
 ment. {Howell V. Leavitt, 95 N. Y. 617). A wife who 
 has properly left her husband, leaving him in possession 
 of her land, may sue him for the possession of it. ( Wood 
 V. Wood, 83 N. Y. 575) . A widow cannot maintain eject- 
 ment for dower. (Co. Civ. Proc. § 1499). Tenants in 
 common, or joint tenants, may join in ejectment, or 
 one, or more of them may maintain an action, to recover 
 his or their undivided share. (Co. Civ. Proc. § 1500). 
 This section changes the rule laid down in Hashroitck v. 
 Bunce, (62 N. Y, 475) . Tenants in common, or joint ten- 
 ants, are not required to join in an action of ejectment 
 and, if one sues alone, he need not prove, or allege, who 
 his co-tenants are. {Deeringy. Riley, IQTHi.Y. 184:). An 
 action of ejectment may be maintained by a grantee, his 
 heir or devisee, in the name of the grantor, or his heir, 
 where the conveyance, under which he claims, is void, be- 
 cause the property conveyed was held adversely to the 
 grantor. The plaintiff must be allowed to prove the facts 
 to bring the case within this section. (Co. Civ. Proc. § 
 1501). But a grantee can only sue, under this section, in 
 the name of his immediate, and not of a remote grantor. 
 {Smith V. Long, 12 Abb. N. C. 113) . Two persons, claim- 
 iiig the same land in hostility to each other, cannot join 
 
168 PRACTICE. 
 
 as plaintiffs. {Hubbell v. Lerch, 58 N. Y. 237). Where 
 the complaint demands judgment for the immediate pos- 
 session of the property, if the property is actually occu- 
 pied, the occupant thereof must be made defendant in 
 the action. If it is not so occupied, the action must be 
 brought against some person exercising acts of owner- 
 ship thereupon, or claiming title thereto, or an interest 
 therein, at the time of the commencement of the action. 
 (Co. Civ. Proc. § 1502). If the tenant in possession is 
 not joined as a defendant, a judgment for possession 
 cannot be executed against him, but the action may still 
 proceed against the landlord to establish the title to the 
 premises if he does not set up the non-joinder of the 
 party in possession. ( VkiHon v. Baldtrin, 129 N. Y. 183) . 
 The action may be brought against the actual occupant 
 only. {Bradt v. Church, 10 N. Y. 537). The landlord 
 may be brought in, as a person having an interest within 
 the meaning of section 452 of the code of civil procedure 
 in such a case. {Sand v. Church, 32 App. Div. 139). If 
 the landlord is not a party, the judgment does not bind 
 him even though he has notice but refuses to come in and 
 defend. (Bennett v. Leach, 25 Hun, 178; Hasten v. 01- 
 cott, 101 N. Y. 152, 161). The actual occupants, under 
 this section, are those who claim and hold as against the 
 plaintiff. ( Strong v. The City Brooklyn , 68 N. Y. 1, 10 ) . 
 If the husband enters, under a deed to himself and wife 
 as joint tenants, both are properly joined as defendants 
 in ejectment {Steivart v. Patrick, 68 N. Y. 450) ; but, if 
 the husband and Avife live together on land which is 
 owned by the wife, there is no presumption that he is the 
 actual occupant, and the fact, that the husband lives 
 with her, does not of itself make him either sole or joint 
 occupant. (Porter v. Jfc(?rof/i^ 41 Super. 84). In such 
 cases, it is always a question of fact which of the two are 
 in possession of the land. (Martin v. Rector, 101 N. Y. 
 77). A railroad company, which has taken possession 
 of a street for its use, is an actual occupant under this 
 section. (Wager v. Troy Union R. R. Co.. 25 N. Y. 
 526) . If a church is occupied by a religious society, the 
 corporation, and not the trustees, is the proper de- 
 fendant. (Lucas V. Johnson, 8 Barb. 244). A servant 
 
THE PARTIES TO AN ACTION. 169 
 
 who actually occupies and possesses the premises, al- 
 though for his employer, is a proper defendant as exer- 
 cising acts of ownership upon the premises; but if he 
 does not actually occupy the land, but is only working 
 upon it, he may show, in defense, that he is there merely 
 as servant for another. {Shaver v. McGraw, 12 Wend. 
 558). One claiming to hold under the authority of the 
 United States is a proper party defendant, and, in such 
 an action, the validity of the title of the United States 
 may be adjudged. {Kaufman v. Lev, 106 U. S. 196). A 
 parol claim of title is sufficient under section 1502. 
 (AJjeel V. Yan Oeldcr, 36 N. Y. 513; Banyer v. Empire, 
 5 Hill, 4:8). In either of the cases specified in section 
 1502, any person claiming title to, or the right to the 
 possession of, the real property sought to be recovered, 
 as landlord, remainder man, reversioner, or otherwise 
 adversely to the plaintiff, may be joined as defendant in 
 an action therefor. (Co. Civ. Proc. § 1503). This sec- 
 tion has changed the rule of the common law, that eject- 
 ment could only be maintained against the actual occu- 
 pant, or one who is exercising acts of ownership, or 
 claiming title or interest in the premises ; and since the 
 passage of this act, it has been held that mortgagees, 
 who are purchasers in the foreclosure of their mortgage, 
 were properly joined with their tenant in possession, as 
 defendants in an action of ejectment, by one claiming 
 that the mortgage was void by usury {More v. Deyoe, 22 
 Hun, 208, 217) ; and also, where a landlord had leased 
 several distinct parcels by separate leases, that the plain- 
 tiff might recover against all in one action, if the objec- 
 tion of misjoinder was not taken. .{Fosqate v. Herkimer 
 Maiifg. Co., 12 N. Y. 580). Itwas also held since this 
 section, that parties occupying different stories of a 
 building, and with no claim to a lease of the land, were 
 properly joined as defendants. {Pearce v. Ferris, 10 N. 
 Y. 280) . The landlord may waive the non-joinder of his 
 tenant, and where, upon the service of the summons and 
 complaint, the landlord said that he was in possession, 
 and he lived in the house, it was held that he was 
 estopped from denying that he was in the actual posses- 
 sion of the premises. {Finnegan v. Carraher, 47 N. Y. 
 
170 PRACTICE. 
 
 493 ) . One who is in wrongful possession under the other 
 defendants, is a proper defendant. {Rank v. Levinus, 5 
 Civ. Proc. Rep. 368). 
 
 Sec. 2. Actions for Partition. 
 
 Where two or more persons hold and are in possession 
 of real property, as joint tenants, or as tenants in com- 
 mon, in which either of them has an estate of inheritance, 
 or for life, or for years, any one or more of them may 
 maintain an action for the partition of property, ac- 
 cording to the respective rights of the persons interested 
 therein; and for a sale thereof, if it appears that a par- 
 tition thereof cannot be made, without great prejudice 
 to the owners. (Co. Civ. Proc. § 1532). Where two or 
 more persons hold, as joint tenants, or as tenants in 
 common, a vested remainder or reversion, any one or 
 more of them may maintain an action for the partition 
 of the real property to which it attaches, according to 
 their respective shares therein, subject to the interest of 
 the person holding the particular estate therein. (Co. 
 Civ. Proc. § 1533 ) . Since the passage of the code of civil 
 procedure, the case of Sullivan v. Sullivan (66 N. Y. 37), 
 is no longer the law. An action for the partition of real 
 property shall not be brought by an infant, except by 
 the written authority of the surrogate of the county in 
 which the property, or a part thereof, is situated. The 
 authority shall not be given, unless the surrogate is satis- 
 fied, by afl&davit or other competent evidence, that the 
 interests of the infant will be promoted by bringing an 
 action. A judgment for a partition or sale shall not be 
 rendered in such an action, unless the court is satisfied 
 that tlie interests of the infant will be promoted thereby, 
 and that fact is expressly recited in the judgment. (Co. 
 Civ. Proc. § 1534). An action by an infant without 
 leave is irregular, and the purchaser, in such an action, 
 will not be compelled to take the land. (Struppman v. 
 Midler, 52 How. Pr. 211). A trustee of land to receive 
 the rents and profits and apply them to the use and sup- 
 port of an infant, until his majority, with an absolute 
 power to sell the land and invest the profits, and having 
 possession, may bring partition (Gallie v. Eagle, 65 
 Barb. 583) ; but a cestui que trust cannot maintain it. 
 
THE PARTIES TO AN ACTION. 171 
 
 (Harris v. Larkin, 22 Hun, 428; Morse v. Morse, 85 N. 
 Y. 53). An action of partition may be maintained by 
 the committee of a lunatic without making the lunatic a 
 party. (Co. Civ. Proc. § 2340; Eoepke v. Bradley, 3 
 App. Div. 391; affd. on opinion below, 151 N. Y. 622). 
 An assignee in a bankruptcy of a tenant in common, may 
 maintain partition {Rutherford y. Hewey, 59 How. Pr. 
 231), and so may an assignee for the benefit of creditors. 
 {Van Arsdale v. Drake, 2 Barb. 599). It was held in 
 Powelson v. Reeve (2 Wk. Dig. 375), that an action 
 could be maintained by a receiver in supplementary pro- 
 ceedings, who had acquired title in the real estate of the 
 judgment debtor, but in the cases of Dubois v. Cassidy 
 (75 N. Y. 298, 302), and Miller v. Levy (46 Super. 207), 
 it was thought by the court that such a receiver could 
 not maintain the action, although, in none of those cases, 
 was it necessary to decide the question. But in a later 
 case of Payne v. Becker, it Avas conceded by counsel and 
 by the court, that the receiver in supplementary pro- 
 ceedings had not such a title as would enable him to 
 maintain partition. (22 Hun, 28, 32; 87 N. Y. 153). 
 One whose interest in the property was only the proceeds 
 of what might be derived upon the sale by executors, 
 cannot maintain this action. {Davies v. Davies, 15 Wk. 
 Dig. 118). One tenant in common of leasehold estate, 
 may bring an action for partition ( Walther v. Regnault, 
 56 Hun, 560), and a tenant by the courtesy of an undi- 
 vided share of real estate, may maintain the action 
 ( Tilton V. Vail, 53 Hun, 324) , but where he is the tenant 
 by the courtesy of the whole interest in the property, 
 and other persons are tenants in common of the estate 
 in remainder only, he cannot bring the action. {Reed 
 V. Beed, 46 Hun, 212; 107 N. Y. 545). If, however, he 
 does sue, and judgment is rendered in the action without 
 objection, the judgment is valid and conclusive upon 
 the parties. {Reed r. Reed, supra) . A tenant in com- 
 mon may join his wife as a co-plaintiff. (Foster v. Fos- 
 ter, 38 Hun, 365) . A person claiming to be entitled as a 
 joint tenant or a tenant in common, by reason of his 
 being an heir of a person who died, holding and in pos- 
 session of real property, may maintain an action for the 
 
172 PRACTICE. 
 
 partition thereof, whether he is in or out of possession, 
 notwithstanding an apparent devise thereof to another 
 by the decedent and possession under such a devise. 
 But in such an action, the plaintiff must allege and es- 
 tablish that the apparent devise is void. (Co. Civ Proc. 
 § 1537. See, for a discussion of these sections, Garvey 
 V. Vnion Trust Co., 29 App. Div. 513). Every person 
 having an undivided share, in possession, or otherwise, 
 in the property, as tenant in fee, for life, by the courtesy, 
 or for years, every person entitled to the reversion, re- 
 mainder, or inheritance of an undivided share, after the 
 determination of a particular estate therein; every per- 
 son, who, by any contingency contained in a devise or 
 grant, or otherwise, is or may become entitled to a bene- 
 ficial interest in an undivided share thereof; every per- 
 son having an inchoate right of dower in an undivided 
 share in the property, and every person having a right 
 of dower in the property, or any part thereof, which has 
 not been adnieasiired, must be made a party to an action 
 for partition. But no person, other than a Joint tenant, 
 or a tenant in common of the property, shall be a plain- 
 tiff in the action. In a partition action, the executors 
 or administrators and creditors of a deceased person, 
 who, if living, should be a party to said action, must be 
 made parties defendant. In case no executors or ad- 
 ministrators have been appointed, that fact should be 
 alleged, and if the complaint in such action alleges, and 
 it is made to appear by proof that there are unpaid 
 debts of said deceased payable out of his estate, the 
 premises sought to be partitioned may be sold free from 
 such debts, and the money produced by such sale shall 
 be brought into court, and the same, or so much thereof 
 as may be necessary, shall be used for the payment of 
 such debts in the same manner as debts of a deceased 
 person are paid from the proceeds of sale of real estate 
 in the surrogate's court. And the court in which the 
 said action is brought may proceed to ascertain such 
 debts and direct their payment from such proceeds; or 
 such court may direct the same to be administered as if 
 the sale' of such interest in said land had been made 
 upon the decree of such surrogate. (Co. Civ. Proc. § 
 
THE PARTIES TO AN ACTION. 173 
 
 1538) . Devisees who take a contingent fee, limited upon 
 a prior devise in fee, are necessary defendants in tlie 
 action, although the owners of the prior estate are still 
 living. {Nellis v. Nellis, 99 N. Y. 505). Persons who 
 are entitled to a remainder in fee of real property, de- 
 vised in trust with directions to convey to them, are 
 necessary parties defendant. {Moore v. Airpleby, 108 
 N. Y. 237; Campbell v. Stokes, 142 N. Y. 23). An ex- 
 ecutor having the power of sale, which has become 
 extinguished by the act of the beneficiaries, is not a neces- 
 sary party defendant. {Prentice v. Janssen, 79 N. Y. 
 478 ) . The husband of a woman, who is a tenant in com- 
 mon of real estate, is not a necessary or proper party to 
 the action. {Barnes v. Blake, 59 Hun, 371) . The plain- 
 tiff may, at his election, make a tenant by the courtesy, 
 for life or for years, of the entire property, or whoever 
 may be entitled to a contingent or vested remainder or 
 reversion in the entire property, or a creditor, or other 
 person, having a lien or interest which attaches to the 
 entire property, a defendant in the action. In that case, 
 the final judgment may either award to such a party his 
 or her entire right and interest or the proceeds thereof, 
 or where the right or interest is contingent, direct that 
 the proceeds or share thereof be substituted for the prop- 
 erty and invested for whoever may eventually be en- 
 titled thereto; or haay reserve and leave unaffected his 
 or her right and interest, or any portion thereof. A per- 
 son specified in this section, who is not made a party, is 
 not affected by the judgment in the action. (Co. Civ. 
 Proc. § 1539). A woman who claims dower, as the 
 widow of the ancestor of the tenants in common, may 
 be made a party to the action of partition, and her claim 
 of dower may be tried and disposed of in the action. 
 {Spliess V. Meyer, 36 St. Rep. 227; 13 Supp. 70). Not 
 only a person who actually has a lien or interest in the 
 property in question but one who apparently has, or 
 claims to have a lien or interest in the porperty sought 
 to be partitioned may be made a party. {Best v. Zeh, 
 82 Hun, 232; affd. 146 N. Y. 363; Bender v. TerwilUger, 
 48 App.Div.371 ; affd. without op., 166 N.Y.590) . A gen- 
 eral lien upon laiid, or a title paramount to the tenants 
 
174 PRACTICE. 
 
 in coiiinion, is not cut off by the suit between tlie tenants 
 in common, and sucli lienor or owner is not a necessary 
 party. ( Can-field v. Ford, 28 Barb. 336 ; Mead v. Jenkins, 
 29 Hun, 253). If creditors having paramount liens are 
 made parties, the court may determine the amount and 
 validity of the lien. [Barnard v. Onderdonk, 98 N. Y. 
 158; Townshcnd v. Toicnshend, 1 Abb. N. C. 81). The 
 plaintiff may, at his election, make a creditor, having a 
 lien on an undivided share or interest in the property, 
 a defendant in the action. In that case, he must set 
 forth the nature of the lien, and specify the share or in- 
 terest to which it attaches. If partition of the property 
 is made, the lien, whether the creditor is or is not made 
 a party, shall thereafter attach only to the share or inter- 
 est assigned to the party upon whose share or interest 
 the lien attached; which must be first charged with its 
 just proportion of the costs and expenses of the action, 
 in preference to the lien. (Co. Civ. Proc. § 1540). 
 Where a defendant having a share or interest in the 
 property is unknown, or where his name or part of his 
 name is unknown, and the summons is served upon him 
 by publication, or without the state, pursuant to an 
 order for that purpose, as prescribed in article second 
 of title first of chapter fifth of this act, the notice sub- 
 joined to the copy of the summons as published, or 
 served therewith, must, in addition to the matters re- 
 quired in that article, state briefly the object of the ac- 
 tion, and contain a brief description of the property. 
 (Co. Civ. Proc. § 1541). This last section substantially 
 annuls the law as laid down in Sandford v. White, (56 
 N. y. 359). 
 
 Sec, 3. Actions for Dower. 
 
 Where the property, in which dower is claimed, is 
 actually occupied, the occupant thereof must be made 
 defendant in the action. Where it is not so occupied, 
 the action must be brought against some person exer- 
 cising acts of ownership thereupon, or claiming title 
 thereto, or an interest therein, at the time of the com- 
 mencement of the action. (Co. Civ. Proc. § 1597). 
 Where the action is brought against heirs to recover 
 
IHE PARTIES TO AN ACTION. 175 
 
 dower and for account and payment of rents and profits, 
 lJI the lieirs are necessary parties. ( Van Name v. Van 
 Name, 23 How. Pr. 247). Those who have no personal 
 interest in the land affected, are not necessary parties. 
 {OX'onnor v. Gamgan,l~ Wk.Dig.302). In either of the 
 cases specified in section 1597, any other person, claim- 
 ing title to, or the right to the possession of, the real 
 property in which dower is claimed, may be joined as 
 defendant in the action. (Oo. Civ. Proc. § 1598). In an 
 action to recover dower, in a distinct parcel of real prop- 
 erty of which the plaintiff's husband died seized, or in 
 all the real property which he aliened by one convey- 
 ance, all the persons in possession of, or claiming title 
 to, the property, or any part thereof, may be made de- 
 fendants, although they possess or claim title to different 
 portions thereof in severalty. (Co. Civ. Proc. § 1599). 
 
 Sec. 4. Actions to Foreclose Mortgage. 
 
 A bona fide assignee of a mortgage given for a transfer 
 of land may foreclose tlie mortgage, although the trans- 
 fer has been adjudged void as against creditors. {Smart 
 V. Bement, 4 Abb. Ct. App. 253). The assignee of a for- 
 eign executor may sue to foreclose the mortgage. ( Smith 
 V. Tiffany, 16 Hun, 552). If there is no bond, the mort- 
 gage is the only security, and the only evidence of the 
 debt, and the assignee of it can maintain the action to 
 foreclose. {Carpenter v. O'Dougherty, 67 Barb. 397). 
 But where a bond is given to accompany the mortgage, 
 the bond is the principal debt, and the one who is as- 
 signee of the mortgage but not of the debt cannot main- 
 tain an action for foreclosure of the mortgage. {Cooper 
 V. Xcicland, 17 Abb. Pr. 342; Merritt v. Bartholick, 36 
 N. Y. 44). If the mortgage is assigned as collateral se- 
 curity, the, assignor may sue, but the assignee must be a 
 party, either plaintiff or defendant. {Simson v. Satter- 
 lee, 6 Hun, 305 ; aflfd. 64 N. Y. 657) . A junior mortgagee 
 may foreclose, although the foreclosure of the prior 
 nortgage has proceeded to judgment. ( Baclie v. Purcell, 
 6 Hun, 518) . The heirs of a deceased mortgagee are not 
 proper plaintiffs in anaction to foreclose. {Shaw v. Mc- 
 Nish, 1 Barb. Ch. 326) . Where the administrator of the 
 
 12 
 
176 PRACTICE. 
 
 wife of a mortgagee was entitled to the interest on the 
 mortgage, and the executor of the mortgagee refused 
 to collect it, it was held that the administrator of the 
 wife might bring an action to foreclose the mortgage. 
 {Weed V. Hornby, 35 Hun, 580). The mortgagee or the 
 owner of the mortgage, and the mortgagor and those who 
 have acquired rights under him, are the only necessary 
 parties to the foreclosure {Emigrant Industrial Savings 
 Bajik V. Goldman, 75 N. Y. 127) ; but all parties who 
 have liens on the equity of redemption subsequent to the 
 mortgage, and junior mortgagees and their personal rep- 
 resentatives, are necessary parties within this rule. 
 {Morris v. Wheeler, 45 N. Y. 708; Benjamin v. E. J. & 
 G. R. R. Co., 54 N. Y. 675; German Savings Bank v. Mul- 
 ler, 10 W. D. 67). If a junior mortgage is recorded, the 
 owner of it is a necessary party, although the mortgage 
 is not indexed. {Mat. Life Ins. Co. v. Bake, 1 Abb. N. 
 C. 381 ; affirmed, 87 N. Y. 257 ) . A remainder man under 
 the will of the mortgagor is a necessary party defendant. 
 {Leggett v. Mitt. Life Ins. Co., 64 Barb. 23 ; Levy v. Levy, 
 79 Hun, 290). An assignee for the benefit of creditors 
 of the owner of the equity is a proper and sufficient party 
 defendant for the purpose of cutting off such interest. 
 {J alien v. Lalor, 47 Hun, 164). Where an assignee in 
 bankruptcy of the mortgagee acquired title, after the 
 filing of a notice of pendencj^ of action, he was held not 
 to be necessary party defendant {^Yagner v. Hodge, 34 
 Hun, 524) ; but, if the suit is commenced after the bank- 
 ruptcy, the suit must be brought against the assignee in 
 his official capacity. {Landon v. Townsliend, 112 N. Y. 
 93). A municipal corporation which has taken for pub- 
 lic use, a part of the lands covered by the mortgage, is 
 not a necessary party in an action to foreclose it. 
 {Hooker v. Martin, 10 Hun, 302). A mortgagor who 
 has conveyed the premises is not a necessary partj^ in an 
 action to foreclose the mortgage {Bigeloio v. Bush, 6 
 Paige, 343 ) ; unless relief is sought against him. ( TFaZ- 
 ton V. James, 11 Wk. Dig. 508). Nor or the heirs of the 
 mortgagor necessary parties in such a case. {Daly v. 
 Burchcll, 13 Abb. Pr. N. S. 264). A mortgagor whose 
 equity of redemption has been sold on execution, or 
 
THE PARTIES TO AN ACTION. 177 
 
 whose time to redeem has not elajjsed, is a necessary 
 party to foreclose the mortgage. {Halloclc v. Smith, 4 
 Johns. Chan. 649) . The wife of mortgagor is a necessary 
 party, if she has joined in the mortgage (MiUs v. Tan- 
 Voorhies, 20 N. Y. 412) ; but if she did not join in the 
 mortgage, she is not a necessary party, and she is not 
 bound by the judgment. {Barker v. Burton, 67 Barb. 
 458). If the mortgage has been assigned as security, 
 the assignor is a necessary party in an action brought 
 by the assignee to foreclose it {Kittle v. Van Dyck, 1 
 Sand. Chan. 76) ; and so is the assignee for the benefit 
 of the creditors of the assignee. {Bard v. Poole, 12 N. 
 Y. 495). An assignee of the mortgagee for the benefit 
 of creditors, may foreclose without maliing the mort- 
 gagee a party. ( Christie v. Herriclc, 1 Barb. Chan. 254 ) . 
 Where a mortgagee bequeathed the mortgage to his 
 executor, with directions to invest the proceeds of it for 
 certain persons, with remainders over, the remainder 
 men are not necessary parties defendant in an action to 
 foreclose a prior mortgage, but the lien of the junior 
 mortgage is barred if the executor is made a party. 
 {Loekmeii v. Reilly, 95 N. Y. 64). Any person, who is 
 liable to the plaintiff for the payment of the debt secured 
 by the mortgage, may be made a defendant in the action ; 
 and if he has appeared, or has been personally served 
 with the summons, the final judgment may award pay- 
 ment by him of the residue of the debt remaining unsat- 
 isfied, after a sale of the mortgaged property, and the 
 application of the proceeds, pursuant to the directions 
 contained therein. The people of the state of New York 
 may be made a party defendant to an action for the 
 foreclosure of a mortgage on real property, where the 
 people of the state of New York have a lien on the said 
 real property, subsequent to the lien of the mortgage 
 sought to be foreclosed in said action, in the same man- 
 ner as a private person. (Co. Civ. Proc. § 1627). The 
 guarantor of a mortgage debt, although only condition- 
 ally liable, may be made a party defendant {Vanderbilt 
 V. Schrei/er, 91 N. Y. 392) ; and so may the personal 
 representatives of the mortgagor, or of a guarantor of 
 the mortgage {Olacius v. Fogel, 88 N. Y. 434), but not 
 
178 PRACTICE. 
 
 the heirs or devisees. {Leonard v. Morris, 9 Paige, 90). 
 A person who claims dower by title paramount to the 
 mortgage, can not be brought into court in an action 
 to foreclose the mortgage, and compelled to litigate the 
 validity of her claim. {Nelson v. Brown, 144 N. Y. 384) ; 
 nor can one who claims adversely to the mortgagor. 
 {Duinond v. Church, 4 App. Div. 194). A prior mort- 
 gagee is a proper party, but is not a necessary party. 
 {Smith V. Davis, 4 Civ. Pro. Rep. 158). But where one 
 claiming a right under the mortgagor prior to the mort- 
 gage is made a party defendant, the amount due to him, 
 or the question of priority of his lien, inay be settled in 
 the action {Broivn v. Yolhening, 64 N. Y. 76) ; though 
 he makes default. {Johnson v. Miclde, 144 N. Y. 237). 
 If the bond is executed by the mortgagor and another, 
 it is proper to make both obligors defendants, and to 
 ask judgment for a deficiency against both. ( Thome v. 
 Newby, 59 How. Pr. 120). 
 
 Sec. 5. Action to Compel the Determination of a Claim to Real 
 Property. 
 Where a person has been, or he and those whose estate 
 he has, have been for one year in possession of real 
 property, or of any undivided interest therein, claiming 
 it in fee, or for life, or for a term of years not less than 
 ten, he may maintain an action against any other person 
 to compel the determination of any claim adverse to 
 that of the plaintiff which the defendant makes to any 
 estate in that property in fee, or for life, or for a term 
 of years not less than ten, in possession, reversion or 
 remainder, or to any interest in that property, including 
 any claim in the nature of an easement therein, whether 
 appurtenant to any other estate or lands or not, and 
 ailso including any lien or incumbrance upon said prop- 
 erty, of the amount or value of not less than two hundred 
 and fifty dollars. But this section does not apply to a 
 claim for dower. (Co. Civ. Proc. § 1638). To enable 
 the plaintiff to maintain this action, he need not have 
 a valid title, if he claims such a title as the code requires 
 \{Ford V. Belmont, ,69 N. Y. 567; Schroeder v. Gurney, 
 10 Hun, 413), but he must for the required length of 
 
THE PARTIES TO AN ACTION. 179 
 
 time have been in attiial possession, or possession in fee. 
 {VhurchiJl V. Vnderdoiik, 59 N. Y. 134). Proof of posses- 
 sion in the plaintiff under claim of title, for the length 
 of time required by the statute, is sufficient to require the 
 defendant to prove his title. {Stackliouse v. Stotenbur, 
 22 App. Div. 312). Constructive possession alone, 
 although under a legal title, is not enough. (Boyhtoii v. 
 ^YhecJer, 61 N. Y. 521; Tan Wagenen v. Botsford, 13 
 Wk. Dig. 381). Possession under an agreement to 
 purchase the fee is sufficient. {Broini v. Crabh, 156 N. 
 Y. 447 ) . Possession of a tenant, liowever, is sufficient to 
 enable the landlord to maintain the action. {King v, 
 Toifushend, 78 Hun, 380) . The occupation of two floors 
 in a large building is a sufficient possession. {Diefen- 
 dorf V. Diefendorf, 132 N. Y. 100). A remainder man 
 to whom the life tenant has conveyed, may maintain this 
 action. {Barron v. Martense, 4 Albany Law Jour. 93). 
 
 Sec. 6. Actions for Waste. 
 
 An action for waste may be maintained by the owner 
 of land, or by a remainder man, or reversioner, for dam- 
 ages to the inheritance. {Purton v. Watson, 19 N. Y. 
 St. Ilep. 6). An heir or devisee may maintain an action 
 for waste, committed in the time of his ancestor or testa- 
 tor, as well as in his own time. The grantor of a rever- 
 sion may maintain an action for waste, committed 
 before he aliened the same. (Co. Civ. Proc. § 1652). 
 Such an action may also be maintained against a guar- 
 dian by his ward, either before or after the termination 
 of the guardianship, for waste, committed upon the real 
 property of the ward, during the guardianship. (Co. 
 Civ. Proc. § 1653 ) . Where real property is sold by virtue 
 of an execution, the person, to whom a conveyance is 
 executed pursuant to the sale, may maintain an action 
 for waste, committed thereon after the sale, against the 
 person, who was then in possession of the property. ( Co. 
 Civ. Proc. § 1654). An action for waste may also be 
 maintained, by a joint tenant, or tenant in common, 
 against his co-tenant, who commits waste upon the real 
 property held in joint tenancy or in common. (Co. Civ. 
 
180 PRACTICE. 
 
 Proo. § 1656). An action for waste may also be main- 
 tained by one who has an equitable contingent interest 
 in the lands. {Lee v. Whallon, 20 Wk. Dig. 366). An 
 action may be maintained against a tenant by the 
 courtesy, in dower, for life or for years, or the assignee of 
 such a tenant, who, during his estate or term, commits 
 waste upon the real property held by him, without a 
 sjjecial and lawful written license so to do; or against 
 such a tenant, who lets or grants his estate, and, still 
 retaining possession thereof, commits waste without a 
 like license. (Co. Civ. Proc. § 1651). In an action by 
 a remainder man, the owner of the intervening life estate 
 is not a necessary party. ( Van Deusen v. Young, 29 N. 
 Y. 9). 
 
 Sec. 7. Action for a Nuisance. 
 
 The people alone can maintain an action to abate a 
 public nuisance. {People v. Vanderbilt, 26 N. Y. 287; 
 People V. Metropolitan Telephone Co., 31 Hun, 596; 
 K iiicJcerhoclcer Ice Co. v. Schultz, 116 N. Y. 382). But 
 where the public nuisance is great, a very slight special 
 injury is suflScient to give a right of action to a private 
 person. {Flynn v. Taylor, 53 Hun, 167). The board of 
 health of the city of New Yorli may maintain actions 
 to abate nuisances within the city. ( Greater New York 
 Charter, § 1288). A municipal corporation, which has 
 control or supervision of the streets, may maintain 
 action to abate nuisances upon them. (2 Dillon on Mun. 
 Corp. § 659; Trustees of Watertown v. Coiren, 4 Paige, 
 510 ) . A private person can maintain an action to abate 
 a public nuisance, and for damages, if he suffers any 
 special injury from it {Francis v. Shoellkopf, 53 N. Y. 
 152; Croolce v. Anderson, 23 Hun, 266), but not other- 
 wise. {Fort Plain Bridge Co. v. Smith, 30 N. Y. 44). 
 A person by whom the nuisance has been erected, and a 
 person to whom the real property has been transferred, 
 may be joined as defendants in such an action. (Co. 
 Civ. Proc. § 1661). 
 
THE PARTIES TO AN ACTION. 181 
 
 ARTICLE XIII. 
 
 WHERE THE DEFENDANT OR HIS NAME IS UNKNOWN. 
 
 Where the plaintiff is ignorant of the name or part of 
 the name of a defendant, he may designate that defend- 
 ant, in tlie summons, and in any other process or pro- 
 ceeding in the action, by a fictitious name, or by as much 
 of his name as is Ivnown, adding a description, identify- 
 ing the person intended. Wliere the plaintiff demands 
 judgment against an unknown person, he may designate 
 that person as unknown, adding a description, tending 
 to identify him. In either case, the person intended is 
 thereupon regarded as a defendant in the action, and 
 as sufficiently described therein, for all purposes, in- 
 cluding service of the summons. When the name, or 
 the remainder of the name, or the person, becomes 
 known, an order must be made by the court, upon such 
 notice and such terms as it prescribes, that the proceed- 
 ings already taken be deemed amended, by the insertion 
 of the true name, in place of the fictitious name, or 
 part of a name, or the designation as an unknown per- 
 son ; and that all subsequent proceedings be taken under 
 the true name. (Co. Civ. Proc. § 451). This section 
 applies to actions for partition. (Bergen v. Wyclcoff, 
 84 N. Y. 659 ) . A fictitious name can only be used, when 
 the plaintiff is actually ignorant of the true name. 
 (Crandall v. Beach, 7 How. Pr. 271; Gardner v. Kraft, 
 52 How. Pr. 499). There must be an allegation in the 
 complaint that the fictitious name or description is 
 so used because the plaintiff is ignorant of the true 
 name. (Gardner v. Kraft, supra). A fictitious name 
 or description .cannot be used to cover a case of one 
 whose name is known, but whom it is not intended to 
 sue, unless it is discovered that he is a necessary party 
 defendant. (Town of Hancock v. First National Bank, 
 93 N. Y. 82 ) . When the name of the defendant is un- 
 known, a description is sufficient. (Pindar v. Black, 4 
 How. Pr. 95 ; Weil v. Martin, 24 Hun, 645) . In case the 
 plaintiff knows the real name of the defendant, the 
 method of taking advantage of the irregularity is to 
 
182 PRACTICE. 
 
 move to set aside all proceedings taken since the acquisi- 
 tion of such knowledge. {Peo. ex rel. Maibach v. Diiiin, 
 38 App. Div. 112) . If one executes an instrument, using 
 only the initials of his name, he may be sued by the 
 name he uses. {Farmers' Nat. Bk. v. Williams, 9 Civ. 
 Pro. R. 212). 
 
 ARTICLE XIV. 
 
 INFANT PLAINTIFFS AND DEFENDANTS. 
 
 Before a summons is issued in the name of an infant 
 plaintiff, a competent and responsible person must be 
 appointed to appear as his guardian for the purpose of 
 the action who shall be responsible for the costs thereof, 
 except where such infant prosecutes as a poor person 
 as provided for under sgction 459 of this act, in which 
 case security for costs shall not be required. (Co. Civ. 
 Proc. § 469). An infant defendant must also appear by 
 guardian. (Co. Civ. Proc. § 471). The guardian ad 
 litem of an infant, must be a competent and responsible 
 person, fully competent to understand and protect the 
 rights of the infant ; who has no interest adverse to his, 
 and is not connected in business with the attorney or 
 counsel of the adverse party, and who has sufficient abil- 
 ity to answer to the infant for any damage which may be 
 sustained by his negligence or misconduct in the defense 
 or prosecution of the suit. (Co. Civ. Proc. § 471. 
 General Rule 49). If one who is a plaintiff, although 
 in a representative capacity, and having no personal 
 interest in the action, is appointed a guardian ad litem 
 for an infant defendant, it will be a fatal irregularity. 
 {Hecker v. Sexton, 43 Hun, 593). Under the old 
 practice, it was held that no one would be appointed 
 guardian of an infant, unless he was worth at least |250, 
 over and above all his debts. {Robertson v. Robertson, 
 3 Paige, 387 ) . Where a father petitioned to be appointed 
 guardian ad litem for his daughter, and set forth that 
 he had a wife and five children to support ; that he earned 
 two dollars a day, and that neither he nor his children 
 had any relative or friend of greater means than him- 
 self, who would assume the position; it was held that 
 
THE PARTIES TO AN ACTION. 183 
 
 he was not a person of sufficient pecuniary ability to 
 entitle him to be appointed. {Matter of Mang, 50 Super. 
 96). The objection that the guardian of an infant 
 plaintiff is irresponsible must be raised by the defend- 
 and as soon as he learns of the appointment. {Wice v. 
 Com'l Ins. Co. 7 Daly, 258). A person named by an 
 adverse party, cannot be appointed a guardian ad litem. 
 ( General Rule 49 ) . ' An order appointing a guardian ad 
 litem, nominated by an adverse party, must be vacated on 
 motion of the infant's general guardian {Matter of 
 Gutting, 38 App. Div. 247) ; and any decree rendered 
 under the appointment of a guardian, so nominated, 
 must be reversed on the appeal of the general guardian. 
 {Matter of Cutting, 38 App. Div. 252). It does not 
 invalidate the appointment that the person named is a 
 relative of the judge who makes it. {Matter of Van- 
 Wagonen, 69 Hun, 365). An attorney or officer of the 
 court must act as the guardian of any infant defendant, 
 whenever appointed for that purpose by the court. ( Co. 
 Civ. Proc. § 472; General Rule 50). No person, other 
 than the clerk, shall be appointed guardian ad litem, un- 
 less his written consent, duly acknowledged, is produced 
 to the court or judge, making the appointment. ( Co. Civ. 
 Proc. § 472). An application for the appointment of a 
 guardian ad litem, for an infant plaintiff, must be made 
 by the infant, if he is of the age of fourteen or upwards ; 
 or, if he is under that age, it must be made by his general 
 or testamentary guardian, if he has one, or by a relative 
 or friend. If the application is made by a relative or 
 friend, notice thereof must be given to his general or 
 testamentary guardian, if he has one ; or, if he has none, 
 to the person with whom the infant resides. (Co. Civ. 
 Proc. § 470). An application for the appointment of a 
 guardian ad litem for an infant defendant must be made 
 by the infant if he is of the age of fourteen years, or 
 upwards, and applies within twenty days after the per- 
 sonal service of the summons, or after the service by pub- 
 lication is complete; or, if he is under that age, or neg- 
 lects so to apply, the application may be made by any 
 other party to the action, or by a relative or friend of the 
 infant. Where the application is made by a person, 
 
184 PKACTICB. 
 
 other than the infant, notice thereof must be given to 
 his general or testamentary guardian, if he has one 
 within the state, or, if he has none, to the infant him- 
 self, if he is of the age of fourteen years, or upwards, 
 and within the state; or, if he is under that age, and 
 within the state, to the person with whom he resides. 
 (Co. Civ. Proc. § 471). The application may be made 
 by the general guardian appointed for an infant in 
 another state {Freiind v. Washburn IT Hun, 543), or by 
 the committee of a non-resident infant lunatic. {Rogers 
 V. M'Lean, 11 Abb. Pr. 440). An application for the 
 appointment of the guardian ad litem for an infant 
 defendant cannot be made until the summons has been 
 served (Co. Civ. Proc. § 471; IngersoU v. Mangan, 84 
 N. Y. 622), nor where service has been made under an 
 order of publication upon the infant, until such service 
 is complete {V router v. Crouter, 133 N. Y. 55; Darrow v. 
 Calkins, 154 N. Y. 503), except in a case prescribed in 
 section 473 where the infant defendant resides out of the 
 state, or resides within the state but is temporarily 
 absent therefrom. {Gotendorf v. Ooldschmidt, 83 N. 
 Y. 110). Where the adverse party applies for the ap- 
 pointment of the guardian ad litem, the application 
 cannot be made until twenty days after service of the 
 summons is complete. If the appointment is made 
 upon such an application, previous to. that time, the 
 judgment may be vacated. (Keyes v. Ellensolin, 72 Hun, 
 392; appeal dismissed, 141 N. Y. 551). Subdivision 
 2 of section 116 of the code of procedure contained 
 a provision for the appointment of a guardian ad 
 litem for a non-resident infant defendant, in ac- 
 tions for foreclosure or partition, but that pro-, 
 vision has not been retained in the code of civil 
 procedure. There are now no especial provisions 
 in regard to the appointment of guardians ad litem, 
 except that in an action of partition, he must be ap- 
 pointed by the court. Section 471 of the code of civil , 
 procedure, which has been held to forbid the appoint- 
 ment of a guardian ad litepi for an infant defendant, 
 until the service of summons u,ppn him, now applies to 
 all cases except those mentiqried in section 47S. Yet it 
 
THE PARTIES TO AN ACTION. 185 
 
 has been held in Schrlccr v. Schricer (12 Wk. Dig. 328; 
 affd. 86 N. Y. 575 without a discussion of this point) 
 that the appointment of a guardian ad litem for a non- 
 resident infant defendant over fourteen years old, upon 
 his petition with an appearance and answer by tlie 
 guardian ad litem, is sufficient to give jurisdiction to 
 the court without service of the summons. Where notice 
 is required of the application for the appointment under 
 sections 470 and 471, it must be eight days (five days 
 where the attorneys for the respective parties reside or 
 have their offices in the same city or village), if served 
 personally, or double that time if served by mail. (Co. 
 Civ. Proc. §§ 780, 798; General Rule 37). In an action of 
 partition, the application must be made to the court, 
 which only can appoint a guardian ad litem (Co. Civ. 
 Proc. § 1535) ; but in any other case the application may 
 be made to the court, or to a judge thereof, or, if the ac- 
 tion is brought in the supreme court, to the county judge 
 of the county where the action is tried. ( Co. Civ. Proc. 
 § 472). The application should state the age of the 
 infant, whether or not he has a general or testamentary 
 guardian, and who he is ; if not, with whom he resides : 
 if made by, or in behalf of the plaintiff, that he is about 
 to bring an action, stating the court in which he pro- 
 poses to bring it, the name or names of the defendant 
 or defendants, and the object of the action. If it is made 
 by, or in behalf of a defendant, the application should 
 state the name of the plaintiff, the object of the action, 
 and the court in which it was brought, and also the time 
 the summons was served upon him. Where the applica- 
 tion is made by the infant, or some one in his behalf, 
 it should also state the name of the person proposed as 
 guardian ad litem, and that he is a competent and respon- 
 sible person. {McDonald v. The Brass Goods Manfg. 
 Co., 2 Abb. N. O. 434). The application must also show 
 that the person proposed as guardian is competent to 
 understand and protect the rights of the infant ; that he 
 has no interests adverse to those of the infant ; and is not 
 connected in business with the attorney or counsel for 
 the adverse party. (General Rule 49) . It should be veri-- 
 fied, and it should be accompanied by the consent of the; 
 
186 PRACTICE, 
 
 party proposed to serve, unless the clerk is to be ap- 
 pointed, and this consent should be in writing and duly 
 acknowledged. (Co. Civ. Proc. § 472). If the consent 
 is not so acknoAvledged, the appointment is irregular, 
 (Cole V. McGarvey, 6 Civ. Proc. Rep. 305). Where an 
 infant defendant resides out of the state, or resides 
 within the state, and is temporarily absent therefrom, 
 the court may, in its discretion, make an order designat- 
 ing a person to be his guardian ad litem, unless he, or 
 some one in his behalf, procures such a guardian to be 
 appointed, as prescribed in the last two sections, within 
 a specified time after service of a copy of the order. The 
 court must give special directions in the order, respect- 
 ing the service thereof, which may be upon the infant. 
 The summons may be served by delivering a copy to the 
 guardian so appointed, with like effect as where sum- 
 mons is served without the state upon an adult defend- 
 ant, pursuant to an order for that purpose, granted as 
 prescribed in section four hundred and thirty-eight of 
 the code of civil procedure; except that the time to 
 appear or answer is twenty days after the service of the 
 summons, exclusive of the day of service. (Co. Civ. 
 Proc. § 473) . To authorize the appointment of a guard- 
 Ian ad litem under this section the serving papers must 
 set forth the facts justifying the court in making the 
 order. (Smith v. Beid, 134 N. Y. 568). Directions 
 which are made by the court pursuant to this section, 
 as to the service of the order, can not be modified by a 
 judge out of court, and any such modification is void. 
 (Vhl V. Loughran, 22 St. Eep. 489; 4 Supp. 827). The 
 security to be given, by the guardian ad litem for an 
 infant party, in an action for partition, must be a bond, 
 to the people of the state, executed by him and one or 
 more sureties, as the court directs, in a sum fixed by the 
 court, conditioned for the faithful discharge of the trust 
 committed to him as guardian, and to render a just and 
 true account of his guardianship, in any court or place, 
 when thereunto required. The bond must be filed with 
 the clerk, before the guardian enters upon the execution 
 of his duties ; and it cannot be dispensed with, although 
 he is the general guardian of the infant. (Co. Civ. Proc. 
 
THE PAKXIES TO AIS ACTION. 187 
 
 § 1536). It was held before 1884, that the bond under 
 this section must be given to the county treasurer (J/c- 
 LaughUn v. Crawford, 18 Wk. Dig. 314), but that was 
 changed by an amendment in 1884. The clerk will be 
 required to give security like any other person. {Fisher 
 V. Lyon, 34 Hun, 183 ) . The omission to require a bond 
 from the guardian ad litem is a mere irregularity and 
 does not divest the court of jurisdiction. {Reed v. Reed, 
 46 Hun, 212; affd. on other grounds, 107 N. Y. 545; Fox 
 V. Fee, 24 App. Div. 314 ; Croghan v. Livingston, IT N. 
 Y. 218) . Except in a case where it is otherwise specially 
 prescribed by law, a guardian, appointed for an infant, 
 shall not be permitted to receive money or property of 
 the infant, other than costs and expenses allowed to 
 the guardian by the court, until he has given sufficient 
 security, approved by a judge of the court, or a county 
 judge, to account for and apply the same under the direc- 
 tion of the court. (Co. Civ. Proc. § 474; General Rule 
 51 ) . The security must be a bond to the infant, in such 
 penalty as the judge directs, not less than twice the 
 sum, or the value of the property to be received, executed 
 by the guardian and at least two sureties approved by 
 the judge, and filed in the office of the clerk. The infant, 
 or any other party to the action, may afterwards apply 
 for an order, directing a new bond to be given, with an 
 increased penalty ; or the court may so direct, of its own- 
 motion. (Co. Civ. Proc. § 475). If the court has juris- 
 diction, a failure to appoint a guardian ad litem for an 
 infant plaintiff, is an irregularity only {Rima v. R. L 
 Works, 120 N. Y 433), and it may be waived (Woldford 
 V. OaJcley, 1 Shel. 261), and it is waived by pleading to 
 the merits. (Parks v. Parks. 19 Abb. Pr. 161). The 
 irregularity is also cured, if the plaintiff becomes of 
 age before the trial. (Rutter v. Ptickhofer, 9 Bosw. 638 ; 
 Smart v. Baring, 14 Hun, 276; Sims v. JSf. Y. College 
 Dentistry, 35 Hun, 344; affd. without opinion, 108 N. 
 Y. 661 ) . If no guardian is appointed for an infant de- 
 fendant, the judgment is voidable but not void. (Mc- 
 Murray v. McMurray, 66 N. Y. 175 ; Crouter v. Crouter, 
 133 N. Y. 55, 65). It may be set aside on motion or by 
 action. (Id.; Boylm v. McAvoy, 29 How. Pr. 278; 
 
188 PRACTICE. 
 
 Fairiveather v. latterly, 7 Robt. 546). No act of the 
 defendant before be becomes of age, will waive or cure 
 the irregularity. {Fairiveather v. Satterly, supra; Mc- 
 Murray v. McMurray, 60 Barb. 117). The guardian ad 
 litem who has been appointed for an infant defendant, 
 must answer the complaint {Farmer's Loan & Trust Co. 
 V. Reid, 3 Edw. Chan. 414), and do whatever is necessary 
 to protect the rights of his wards. {Knickerb acker v. 
 DeFreest, 2 Paige, 304). If the interests of the infant 
 are likely to suffer by the neglect of his guardian,, or of 
 his attorney, the court Avill remove him. {Litchfield v. 
 Burtoell, 5 How. Pr. 341 ; Lefevre v. Laraicay, 22 Barb. 
 167). A copy of the order appointing him should be 
 served with the answer. The regularity of the service, 
 or of the order, cannot be questioned after answering and 
 judgment in an action. {Barnard v. Heydrick, 49 Barb. 
 62) . A person appointed guardian, as prescribed in this 
 article, for an infant defendant in an action, is not 
 liable for the costs of the action, unless specially charged 
 therewith by the order of the court, for personal mis- 
 conduct. (Co. Civ. Proc. § 477). The guardian ad 
 litem is entitled to such compensation for his service as 
 the court may deem reasonable. But no order allowing 
 compensation to guardians ad litem, shall be made ex- 
 cept upon an affidavit to be made by such guardian, if 
 an attorney of the court, or if the guardian be not an 
 attorney, then an affidavit to be made by an attorney 
 of the court Avho has acted in the matter in behalf of 
 such guardian, showing that he has examined into the 
 circumstances of the case, and has to the best of his 
 ability made himself acquainted with the rights of his 
 ward, and that such guardian has taken all the steps 
 necessary for the protection of such rights to the best of 
 his knowledge, and as he believes, stating what has been 
 done by him for the purpose of ascertaining the rights 
 of the ward. (General Rule 50), 
 
CHAPTER V. 
 
 THE SUMMONS AND ITS SERVICE. 
 
 ARTICLE I. . . .The summons. 
 ARTICLE II. . .Personal service of the summons. 
 ARTICLE III . . Service other than personal. 
 ARTICLE IV. .Gteneral appearance. 
 
 ARTICLE I. 
 
 THE SUMMONS. 
 
 SECTION. 
 
 1. When jurisdiction is acquired. 
 
 2. Contents of the summons. 
 
 3. Service of complaint or notice with the summons. 
 Subd. 1. — Actions on contract. 
 
 Subd. 2. — Actions for a penalty or forfeiture. 
 Subd. 3. — Notice of no personal claim. 
 
 Sec. 1. When Jurisdiction is Acquired. 
 
 A civil action is commenced by the service of i sum- 
 mons. But from the time of the granting of a provi- 
 sional remedy the court acquires jurisdiction, and has 
 control of all the subsequent proceedings. Neverthe- 
 less, jurisdiction thus acquired is conditional and liable 
 to be divested, in a case where the jurisdiction of the 
 court is made dependent, by special provision of law, 
 upon some act, to be done after the granting of the pro- 
 visional remedy. (Co. Civ. Proc. § 416). The issuing 
 of the summons is not the commencement of an action. 
 (^^err v. Blount, 28 N. Y. 659 ; Treadwell v. Lawlor, 15 
 How. Pr. 8; Warner v. Warner, 6 Jlisc. 249). Provi- 
 sional remedies, referred to in section 416, are those 
 which may be granted before service of the summons, 
 and the granting of which requires some action of a 
 judicial officer. (Adams v. Henry, 3 Wk. Dig. 22) . They 
 are the granting of an order of arrest ; of an injunction, 
 
190 PRACTICE. 
 
 or of a warrant of attachment. ( McCarthy v. McCarthy, 
 13 Hun, 579). Where a chattel is replevied before the 
 service of the summons, as prescribed in this article, 
 the seizure thereof by the sheriff is regarded as equiva- 
 lent to the granting of a provisional remedy, for the 
 purpose of giving jurisdiction to the court, and enabling 
 it to control the subsequent proceedings in the action; 
 and as equivalent to the commencement of the action, 
 for the purpose of determining, whether the plaintiff 
 is entitled to maintain the action, or the defendant is 
 liable thereto. (Co. Civ. Proc. § 1693). Filing the 
 summons, complaint, and notice of pendency, is not a 
 provisional remedy in this section (Haynes v. Onder- 
 donk, 5 T. & C. 176; 2 Hun, 619; Burton Co. v. Cowan, 
 80 Hun, 392; affd. without opinion, 150 N. Y. 583); 
 neither is an order for the examination of a party ( Bran- 
 don Maufg. Co. v. Pettingill, 2 Abb. N. C. 162), nor the 
 approval in an undertaking in an action of replevin. 
 (Nosser v. Corwin, 36 How. Pr. 540). Under the pro- 
 visions of the code of procedure it was held that 
 the court had jurisdiction to revive an action against 
 the personal representatives of a deceased defendant, 
 after the issuing of a warrant of attachment, although 
 the summons had not been served {More v. Thayer, 10 
 Barb. 258) ; but, under the code of civil procedure, the 
 action cannot be revived unless the service of the sum- 
 mons is completed prior to the party's death. (Barron 
 V. So. Brooklyn Saiv Mill Co., 18 Abb. N. C. 352 ; Ludwig 
 V. Bhiin, 43 N. Y. St. Rep. 617; 18 N. Y. Supp. 69). An 
 action can only be commenced against a party by the 
 service of the summons, or by his voluntary appearance. 
 (Ahiii V. Am. 'Northern R. R. Co., 14 How. Pr. 337) . An 
 error in the given name of a defendant set forth in the 
 summons does not prevent the acquisition of jurisdic- 
 tion over such defendant, if he was fully apprised, wlien 
 service was made upon him, that he was the party in- 
 tended to be named therein and affected thereby. 
 (Stiiyvesant v. Weil 167 N. Y. 421). 
 
 Sec. 2. Contents of the Summons. 
 
 The summons must contain the title of the action, 
 specifying the court in which the action is brought, the 
 
THE SUMMONS AND ITS SERVICE. 191 
 
 names of the parties to tlie action, and, if it is brouglit 
 in the supreme court, the name of the county in which the 
 plaintiff desires the trial ; and it must be subscribed by 
 the plaintiff's attorney, who must add to his signature 
 his office address, specifying a place within the state 
 where there is a postoffice. If in a city, he must add the 
 street, and street number, if any, or other suitable desig- 
 nation of the particular locality. (Co. Civ. Proc. § 417) . 
 A summons which does not specify the court is not void. 
 {Tallman v. Hhiman, 10 How. Pr. 89). It was held 
 under section 128 of the code of procedure that, if a 
 copy of the complaint containing the name of the court 
 was served with the summons, the defendant could not 
 take advantage of the fact that the name of the court 
 did not appear in the summons. {Yates v. Blodgett, 8 
 How. Pr. 278). But the code of procedure did not re- 
 quire the name of the court to be in the summons. Sec- 
 tion 417 of the code of civil procedure differs from its 
 predecessor — section 128 of the code of procedure — in 
 requiring this. ( Wadsworth v. Oeorger, 18 Abb. N. C. 199 
 and note, pp. 201, 202 ) . It is now mandatory ( Wallace 
 V. DiiiDiiick, 24 Hun, 635; Osborn v. Mcdoskey, 55 How. 
 Pr. 345), and Yates v. Blodgett is, probably, no longer 
 of authority. Walker v. Hubbard (4 How. Pr. 154) 
 represents, doubtless, the law as it now is. It was 
 there held that such a defect is an irregularity, for which 
 the summons would be set aside, but that the lack may be 
 supplied by amendment. It has been held that the 
 words "Sup. Court" sufficiently state the name of the 
 court. (Walker v. Hubbard, supra). If the plaintiff is 
 designated in the summons as executor, he cannot sue 
 in his individual capacity in the complaint subsequently 
 served, and the variance will be fatal. (Blanchard v. 
 Strait, 8 How. Pr. 83) . If a party is sued by a fictitious 
 name, under section 451, it must appear in the summons 
 that he so sues. (Aaroi? v. Lee, 11 Wk. Dig. 527). Where, 
 in an action for the foreclosure of a mortgage, even that 
 portion of the name of the wife of one of the defendants, 
 known to the plaintiff, was omitted, and only a descrip- 
 tion inserted, it was held to be an irregularity but amend- 
 able. {Weil T. Martin, 24 Hun, 645). Where the wife 
 
 13 
 
192 PRACTICE. 
 
 is sued, the word "Mrs." followed by the name of her 
 husband is a sufficient designation. (Weil v. Martin, 
 1 Civ. Proc. Rep. 133 ) . Designating the christian names 
 of the parties by initials merely is an irregularity, only, 
 and may be disregarded, if it appears that there is no 
 question of the identity of the parties. ( Grant v. Bird- 
 sall, 48 Super. 427). If unknown owners are made 
 defendants, and described in the summons, the addition 
 of the words "if any", does not invalidate the process. 
 (Abbott V. Curran, 98 N. Y. 665). An objection that no 
 specific persons are named as parties in an action is 
 waived by answering. (Ainsinclc v. Northrup, 12 Wk. Dig. 
 573). In an action in the supreme court, the words 
 "city and county of New York" have been held to be a 
 sufficient designation of the county where a trial is 
 desired. (Ward y. Sands, 10 Ahh. 1^. C. QO). At the 
 time of this decision the boundaries of the city, and of 
 the county, of New York were co-terminous. By the 
 Greater New York charter (L. 1897, Chap. 378), the 
 city of New York includes other counties and the former 
 practice of designating the place of trial by the words 
 "city and county of New York" has fallen into merited 
 disuse. An omission to name the place of trial in the 
 summons, is an irregularity merely, and may be 
 amended (Wallace v. Diminick, 24 Hun, 635) ; as is, 
 also, a variance between the date of the original sum- 
 mons and the copy served. ( George v. Fitzpatriclc, 25 
 Civ. Proc. Rep. 383) . A printed subscription of the name 
 of the plaintiff's attorney is sufficient. (Barnard v. 
 Heydricl-, 49 Barb. 62 ; Mayor etc. v. Eisler, 2 Civ. Proc. 
 Rep. 125). The summons is invalid, if it is signed by 
 one who is not an attorney. (Johnston v. Winter, 7 Alb. 
 Law Jour. 135; Wier v. Slocum, 3 How. Pr. 397). The 
 failure to add the office and postoffice address of the 
 attorney may be amended. (Wiggins v. Richmond, 58 
 How. Pr. 376). The summons, exclusive of the title of 
 the action and the subscription, must be substantially 
 in the following form, the blanks being properly filled : 
 "To the above named defendant: You are hereby sum- 
 moned to answer the complaint in this action, and to 
 serve a copy of your answer on the plaintiff's attorney 
 
THE SUMMONS AND ITS SERVICE. 193 
 
 within twenty days after the service of this summons, 
 exclusive of the day of service ; and in case of your fail- 
 ure to appear or answer, judgment will be taken against 
 you by default, for the relief demanded in the complaint. 
 Dated .-' The summons is deemed the mandate 
 
 of the court. (Co. Civ. Proc. § 418). The summons 
 may be amended (Co. Civ. Proc. § 723; Weil v. Martin, 
 1 Civ. Proc. Eep. 133 ) ; but only by the court. ( Mapes v. 
 Broini, li Abb. N. C. 94). If, however, the summons 
 is amended without an order of the court, the irregular- 
 ity is waived by retaining the amended summons, or it 
 may be amended nunc pro tunc on a motion to set aside. 
 (Mapes Y. Brown, supra). Where the court directs a 
 new defendant to be brought in and the order is not made 
 upon his own application, a supplemental summons must, 
 be issued, directed to him, and in the same form as an 
 original summons ; except that, in the body thereof, it 
 must require the defendant to ansAver the original or 
 the amended complaint, and the supplemental com- 
 plaint, or either of them, as the case requires. (Co. Civ. 
 Proc. § 453) . When additional parties are thus brought 
 in, leave to serve a supplemental complaint, showing a 
 cause of action against the additional parties, should 
 be obtained. 
 
 Sec. 3. Service of Complaint or Notice with the Summons. 
 
 Subdivision 1. — Actions on Contract. 
 
 A copy of the complaint may be served with the sum- 
 mons. If a copy of the complaint is not served with the 
 summons, the plaintiff cannot take judgment by default, 
 without application to the court, unless either the de- 
 fendant appears, or a notice is served Avith the summons, 
 stating the sum of money for which judgment will be 
 taken, and the case is one embraced in the next section. 
 (Co. Civ. Proc. § 419). Judgment may be taken without 
 application to the court, where the complaint sets forth 
 one or more causes of action, each consisting of the 
 breach of an express contract to pay, absolutely, or upon 
 a contingency, a sum or sums of money, fixed by the 
 terms of the contract, or capable of being ascertained 
 
194 PRACTICE. 
 
 therefrom, by computation only ; or an express or implied 
 contract to pay money received or disbursed, or the value 
 of property delivered, or of services rendered by, to, or 
 for the use of, the defendant or a third person ; and there- 
 upon demands judgment for a sum of money only. This 
 section includes a case, where the breach of the contract, 
 set forth in the complaint, is only partial; or where the 
 complaint shows that tlie amount of the plaintiff's 
 demand has been reduced by payment, counter-claim, or 
 other credit. (Co. Civ. Proc. § 420). The enumera- 
 tion in section 420, of the cases where judgment may be 
 taken without application to the court, is intended to 
 include all cases where the clerk can assess the dam- 
 ages, and is a substitute for the phrase "an action aris- 
 ing on a contract for the recovery of money only", in 
 subdivision first, section 129 of the code of procedure. 
 The section refers only to cases where the action is 
 brought upon a contract, express or implied, which is 
 xlefined as being "a drawing together of minds until 
 lliey meet, and an agreement is made to do, or not to do, 
 some particular thing. It may be express, or it may be 
 implied or inferred from circumstances, and this impli- 
 cation is but the result of the ordinary and universal 
 experience of mankind. If A. borrows money of B. the 
 courts may imply a promise to repay the money, for the 
 universal experience is that in such a case a promise is 
 (exacted and made. An implied promise or contract is 
 but an express iDromise, proved by circumstantial evi- 
 dence. It is quite distinct from that fiction by which a 
 statute liability has been deemed sufficient to sustain 
 an action of assumj^sit, upon the ground that a party 
 subjecting himself to the penalty or other liability im- 
 posed by statute has promised to pay it. That feature 
 does not suppose a contract but simply a promise ex 
 parte". {McCoun v. .A". Y. C. d- H. R. R. R. Co., 50 N. Y. 
 176, 180). This enumeration includes actions for 
 goods sold {Diblee v. Mason, 1 Co. Rep. 37) ; an 
 action against sureties on a replevin bond {Moiitegriffo 
 V. Musti, 1 Daly, 77) ; an action for board, brought on a 
 quantum valehat {Mason v. Hand, 1 Lans. 66) ; an 
 action on a quantum meruit {Champlin v. Deitz, 37 How. 
 
THE SUMMONS AND ITS SERVICE. 195 
 
 Pr. 214) ; and an action for liquidated damages ex- 
 pressed in a contract to convey lands. (Oemeterij Bd. v. 
 Teller, 8 How. Pr. 504). A complaint which alleges 
 that the defendant, as agent for the plaintiff, received 
 funds for the use of the plaintiff and collected cer- 
 tain moneys for the plaintiff, all of which sums were 
 received in a fiduciary capacity by the defendants, sets 
 forth a cause of action upon which the plaintiff can enter 
 judgment without application to the court. (Steamship 
 Richmond Hill Co. v. Seayer, 31 App. Div. 288).- 
 
 Subdivision 2. — Actions for a Penalty and 
 Forfeiture. 
 
 In an action to recover a penalty or forfeiture, given 
 by a statute, if a copy of the complaint is not delivered 
 to the defendant with a copy of the summons, a general 
 reference to the statute must be indorsed upon the copy 
 of the summons so delivered, in the following form: 
 "According to the provisions of," etc. ; adding such a 
 description of the statute, as will identify it with con- 
 vienient certainty, and also specifying the section, if 
 penalties and forfeitures are given in different sections 
 thereof, for different acts or omissions. ( Co. Civ. Proc. 
 § 1897). Actions brought by the people for a penalty 
 or a forfeiture are governed by the rule laid down in 
 this section, as well as those brought by individuals. 
 (Peo. V. OWeil, 54 Hun, 610). It applies to an action 
 on a municipal ordinance {Mayor v. Eisler, 2 Civ. 
 Proc. Rep. 125; S. C. 10 Daly, 396) ; but it does not 
 apply to an action for a trespass where treble damages 
 are recoverable. (Sprague v. Invin, 27 How. Pr. 51). 
 A notice under this section is sufficient, if it gives the 
 defendant such information as to the offense, as the 
 complaint would have given, had it been served with 
 the summons. (Prussia v. Guenther, 16 Abb. N. C. 
 230). The notice is not sufficient, if it is in the body of 
 the summons. (SchoonmaJcer v. Brooks, 24 Hun, 553). 
 Where the endorsement upon the summons contained 
 a reference to the statute and the section imposing the 
 penalty, but not to the amendment giving the plaintiff 
 the right to sue, it was held to be sufficient. (Prussia 
 
196 PRACTICE. 
 
 V. Guenther, supra). The following forms have been 
 held to be sufficient : "according to the provisions of title 
 9, part 1, chap. 20, of the statute of excise, and the 
 regulation of taverns and groceries" (Ferry v. Tynen, 
 22 Barb. 137) ; "issued according to the proceedings of 
 title 9, chap. 20, part first of the revised statutes" 
 '{Andrews v. Harrington, 19 Barb. 343) ; "this summons 
 is issued to collect penalties for violations of sections 
 13 and 14 of the code, to suppress intemperance, and 
 to regulate the sale of intoxicating liquors, passed 
 April 18, 1857, and the acts amendatory thereof, N. B. 
 Packard, justice of the peace" {Ripley v. McCann, 34 
 Hun, 112) ; "issued according to the provisions of the 
 statute concerning the incorporation of turnpike and 
 plank road companies, and the collection of penalties for 
 demanding and recovering more than lawful toll in 
 passing through toll-gates on such roads," {Mar sells v. 
 Seaman, 21 Barb. 319). The following endorsements 
 have been held to be. insufficient : "according to the act 
 'of the internal police of the state' " {Avery v. Slack, 
 17 Wend, 85) ; in an action for the statutory penalty 
 for allowing cattle to run at large upon the highway, 
 "answer S. in a civil action for penalty for letting cattle 
 run at large on a highway, to his damage of two hun- 
 dred dollars or under." {Schoonmaker v. Brooks, 24 
 Hun, 553). A reference to "section 19, chap. 16, title 1, 
 part 1, of the several statutes relating to overseers of 
 highways and highway labor," is bad because it does not 
 refer to any specific statute. {Hitchman v. Baxter, 34 
 Hun, 271). If the notice is omitted the summons is 
 irregular {Bissell v. ISf. Y. C. & H. R. R. R. Co., 67 Barb. 
 385) ; but the irregularity is waived by the defendant 
 appearing and answering without objection. (Id. ;Fer- 
 non V. Palmer, 48 Super. 231) . It was held in Lasson v. 
 Aronson, (29 Abb. N. C. 114; 21 Supp. 452), that where 
 the notice was not indorsed upon the summons, the court 
 did not get jurisdiction of the person of the defendant, 
 even though there was a general appearance in the ac- 
 tion by him ; bjli the correctness of that holding, may be 
 seriously questioned. A motion to set aside the service 
 of a summons on the ground that it fails to comply with 
 
THE SUMMONS AND ITS SERVICE. 197 
 
 this section will not be granted, where the affidavit, upon 
 which the motion is based, is made by the defendant's 
 attorney upon information and belief as to what the 
 cause of action is, without stating the sources of his in- 
 formation and the grounds of his belief. {Delisser v. 
 N. Y., N. H. d H. R. Co., 59 Super. 233; 14 N. Y. Supp. 
 382). 
 
 Subdivision 3. — Notice of no Personal Claim. 
 
 Where a personal claim is not made against a de- 
 fendant, a notice, subscribed by the plaintiff's attorney, 
 setting forth the general object of the action, a brief de- 
 scription of the property affected by it, if it affects 
 specific, real or personal property, and that a personal 
 <'laim is not made against him, may be served with the 
 summons. If the defendant so served, unreasonably 
 defends the action, costs may be awarded against him. 
 (Co. Civ. Proc. § 423). 
 
 ARTICLE II. 
 
 personal service op the summons. 
 
 SECTION. 
 
 1. By whom made. 
 
 2. How made upon a natural person. 
 
 Stibds. 1-2. — Upon an infant or incompetent person. 
 Subd. 3.— On the sheriff. 
 Subd. 4. — On other persons. 
 
 3. Upon a domestic corporation. 
 
 4. Upon a foreign corporation. 
 
 5. Service of process to commence special proceedings, 
 
 6. Proof of personal service. 
 
 Subd. 1. — Sheriff's certificate of service. 
 Subd. 2. — Affidavits of service. 
 Subd. 3. — Admission of service. 
 
 See. 1. By Whom Made. 
 
 The summons may be served by any person, other than 
 a party to the action, except where it is otherwise spe- 
 cially prescribed by law. The plaintiff's attorney may, 
 by an indorsement on the summons, fix a time within 
 which the service thereof must be made ; in that case, the 
 service cannot be made afterwards. Where a summons 
 
198 
 
 PRACTICE. 
 
 is delivered for service to the sheriff of the county, 
 wherein the defendant is found, the sheriff must serve 
 it, and return it, with proof of service, to the plaintiff's 
 attorney, with reasonable diligence. (Co. Oiv. Proc. 
 § 425). Although service is made by the plaintiff per- 
 sonally, it is good after judgment. {Myers v. Overton, 
 2 Abb. Pr. 344; Hunter v. Lester, 10 Abb. Pr. 260; 
 Losey v. Stanley, 83 Hun, 420; reversed with no dis- 
 cussion of this point, 147 N. Y. 560). 
 
 Sec. 2. How Made Upon a Natural Person. 
 
 Personal service of the summons upon a defendant, 
 being a natural person, must be made by delivering a 
 copy thereof to him within the state in the manner pre- 
 scribed in the following subdivisions. (Co. Civ. Proc. 
 § 426 ) . The copy of the summons must also be left with 
 the defendant as well as delivered to him. (General 
 Rule 18). Where the copy of the summons delivered to 
 a defendant was defective in not containing the name of 
 the plaintiff's attorney, the omission was held to be an 
 irregularity only. {Hull v. Canandaigua Electric Light 
 Co., 55 A pp. Div. 419). 
 
 Subdivisions 1 and 2. — Upon an Infant or Incompe- 
 tent Person. 
 
 If the defendant is an infant, under the age of four- 
 teen years, to the infant in person, and also to his 
 father, mother or guardian ; or, if there is none within 
 the state, to the person having the care and control of 
 him, or with whom he resides, or in whose service he is 
 employed. 
 
 If the defendant is a person judicially declared to be 
 incompetent to manage his affairs, in consequence of 
 lunacy, idiocy or habitual drunkenness, and for whom a 
 committee has been appointed, to the committee, and 
 also to the defendant in person. (Co. Civ. Proc. § 426, 
 Subds. 1,2). 
 
 If the defendant is an infant of the age of fourteen 
 years, or upwards, or if the court has in its opinion, 
 reasonable ground to believe, that the defendant, by 
 reason of habitual drunkenness, or for any other cause, 
 
THE SUMMONS AND ITS SERVICE. 199' 
 
 is mentally incapable adequately to protect his rights, 
 although not judicially declared to be incompetent to 
 manage his affairs, the court may, in its discretion, with 
 or without an application therefor, and in the defend- 
 ant's interest, make an order, requiring a copy of the 
 summons to be also delivered, in behalf of the defendant, 
 to a person designated in the order, and that service of 
 the summons shall not be deemed complete, until it is so 
 delivered. (Co. Civ. Proc. § 427). In a case specified 
 in subdivision first or second, of section 426, of the code 
 of civil procedure, where the court has, in its opinion, 
 reasonable ground to believe, that the interest of the 
 person, other than the defendant, to whom a copy of the 
 summons has been delivered, is adverse to that of the 
 defendant, or that, for any reason, he is not a fit person 
 to protect the rights of the defendant, it may likewise 
 make an order, as prescribed in section 427. In a case 
 specified in subdivision second, the court may, as a part 
 of the same order, or by a separate order, made, in like 
 manner, and upon like ground, at any stage of the action, 
 appoint a special guardian ad litem to conduct the de- 
 fense for the incompetent defendant, to the exclusion of 
 the committee, and with the same powers, and subject 
 to the same liabilities, as a committee of the property. 
 (Co. Civ. Proc. § 428). Service on the infant alone, or 
 only upon the other person specified in subdivision first, 
 is not sufficient to give jurisdiction. (Ingersoll v. Man- 
 gam, 84 N. Y. 622; Beilami/ v. Guhl, 62 How. Pr. 460). 
 As the committee is an officer of the court, leave must 
 first be obtained from the court to serve the committee, 
 and if none such is obtained the service will be set aside. 
 {Smith V. Keteltas, 27 App. Div. 279; Matter of Dela- 
 hunty, 28 Abb. N. C. 245). In making service of the 
 summons upon an insane married woman, it is not suffi- 
 cient to leave the summons with a relative at her house. 
 {Heller v. Heller, 6 How. Pr. 194). 
 
 Subdivision 3. — On the Sheriff. 
 
 If the action is against a sheriff, for a cause specified 
 in section 158 of the code, by delivering it to the de- 
 fendant in person, or to his under-sheriff in person, or 
 
200 
 
 PKACTICE. 
 
 at the office of the sheriff, during the hours when it is 
 required by law to be kept open, to a deputy sheriff or a 
 clerk in the employment of the sheriff, or other person 
 in charge of tlie office. (Co. Civ. Proc. § 426, Sub. 3). 
 The delivering of the summons to a person in charge of 
 the sheriff's office is a good service upon the sheriff, al- 
 though he has not filed with the county clerk a notice of 
 the place where his office is held. {Dan ford v. Weaver, 
 84 N. Y. 445). 
 
 Subdivision 4. — On Othee Peksons. 
 
 In making service of summons on all other natural 
 persons, the summons must be delivered to the defendant 
 in person. (Co. Civ. Proc. § 426, Subd. 4). It must be 
 served on the defendant himself. It is not enough that it 
 be given to another person, who gives it to the defendant 
 {Williams v. Van Vall-eiibiircjh, 16 How. Pr. 144) ; nor 
 is it sufficient that it is delivered to the defendant who 
 returns it, on being told that he may keep it. {Xiles v. 
 Vanderzec, 14 How. Pr. 547). If the defendant refuses 
 to receive the summons, the person making service 
 should explain the nature of the paper, and his purpose 
 to serve it, and lay it down where the defendant may 
 take it. {Davison v. Bal-er, 24 How. Pr. 39). If the 
 summons, after delivery, is taken back the service is not 
 good. {Beckiiian v. Cutler, 2 Code Rep. 151). Where 
 a defendant sought to evade service of a summons and 
 the process-server effected an entrance into the defend- 
 ant's club but was prevented from actually handing the 
 summons to the defendant by a servant, the court of 
 appeals held that a proper service was accomplished by 
 throwing the summons so that it fell within a few feet 
 of the defendant, telling him that the papers were served 
 on him, and leaving them. {Wright v. Bennett, 30 Abb. 
 N. C. 65, note ) . Service must be made within the state, 
 and no jurisdiction is acquired by service in any other 
 state, but the irregularity is Avaived by a general appear- 
 ance. {Dunn y. Dunn, 4: Faige, 4:25). If one is induced 
 to come within the jurisdiction by fraud or false pre- 
 tenses, the service of a process upon him will be set aside. 
 {Metcalf V. Clark, 41 Barb. 45 ; Baker v. Wales, 35 Super. 
 
THE SUMMONS AND ITS SERVICE. 201 
 
 403; Dunham v. Cressy, 21 St. Rep. 266; Allen v. Whar- 
 ton, 36 St. Rep. 558; 13 Siipp. 38). In such case, how- 
 ever, the court will only set aside the service of summons 
 and will not dismiss the complaint. (Beacom v. Rogers, 
 79 Hun, 220). But this rule will not apply where the 
 party voluntarily comes within the state, and is not in- 
 duced to do so by any fraud or trick of the other party. 
 (A. P. Tel Co. v. B. & 0. R. R. Co., 46 Super. 377). If 
 the defendant comes into the state voluntarily and sub- 
 mits to service, on the understanding that the trial shall 
 take place immediately, the service will be set aside for 
 the breach of this agreement. {Craves v. Graham, 19 
 Misc. 618 ) . Service upon a non-resident will be set aside, 
 if made when the defendant was attending court in this 
 state as a witness {Person v. Crier, 66 N. Y. 124), or 
 party {Mattheivs v. Tufts, 87 N. Y. 568), although he 
 comes voluntarily into the state without any subpoena 
 {8eai'er v. RoMnson, 3 Duer, 622; Merrill v. Ceorge, 23 
 How. Pr. 331) , or comes within the state to attend a term 
 of the court of the United States held here ( Crafton v. 
 Weeks, 7 Daly, 523 ) , or to attend the examination of a 
 witness in this state, in an action pending in the circuit 
 court of the United States in another circuit {Parker v. 
 Marco, 136 N. Y. 585) ; or to attend as a witness before 
 arbitrators. {8anforcl v. Chase, 3 Cow. 381) ; or to have 
 his deposition taken de bene esse, in a pending action 
 {Marks v. La. Soc. Anonyme, 46 St. Rep. 660; 19 Supp. 
 470; afed. on opinion below, 139 N. Y. 630) ; or to attend 
 an examination before a notary {Hollender v. Hall, 13 
 Supp. 758; 18 Civ. Proc. 394; affd. 19 Civ. Proc. 292). 
 But if one, not a party or a witness, comes into the state 
 to attend the trial of an action solely for his own pur- 
 poses, he has no privilege, and service on him is good. 
 {]\fichaels v. Hain, 78 Hun, 500). One who comes into 
 the state to attend as a witness before a legislative in- 
 vestigating committee, pursuant to a subpoena, is priv- 
 ileged from the service of summons while he is waiting 
 examination. {Thorp v. Adams, 33 St. Rep. 797; 11 
 Supp. 479). A non-resident director of a foreign cor- 
 poration who comes into this state for the sole purpose 
 of testifying as a witness in a pending action, is entitled 
 
202 PRACTICE. 
 
 to the same privilege, and service of summons upon him 
 in an action against the corporation will be set aside. 
 {Sheehan v. Bradford, etc. R. R. Co., 3 Supp. 790; 
 Hhcr V. H. & B. R. R. Co., 57 App. Div. 390). 
 The privilege may be waived, however. {Weston v. 
 Cits. Nat. Bk., 64 App. Div. 145). The rule is 
 extended to a non-resident creditor attending pro- 
 ceedings in bankruptcy. {Mattheios v. Tufts, supra). 
 The privilege continues while the person is coming to 
 the place where the court is held, actually remaining 
 there in attendance at the court, and during such reason- 
 *able time afterwards as is necessary for him to return 
 home {Matter of Healey, 53 Vt. 694; 38 Am. Rep. 713) ; 
 but it has been held that a party has lost his privilege 
 by going off his direct route in returning home to attend 
 his son's funeral {Chaffee v. Jones, 19 Pick. 260) ; or by 
 a delay of two days after submission to learn the result 
 of the suit {Clark v. Grant, 2 Wend. 257) ; or of two 
 weeks to attend to other business {Shults v. Andrews, 
 54 How. Pr. 380) ; or by going some half mile out of his 
 way home on his way to a lawyer's office to attend to 
 other business {H err on v. Stokes, 6 Ir. Eq. 125) ; or by a 
 lawyer's stopping at a coffee house at two or three o'clock 
 in the afternoon on business, the court having adjourned 
 at one o'clock {Strong v. Dickenson, 1 M. & W. 488) ; or 
 by remaining in the state an unreasonably long time, 
 after his engagement as a witness has expired. {Marks 
 V. La. Soc. Avonyme, supra; Finch v. Galligher, 12 Supp. 
 487). On the contrary, it has been held that the priv- 
 ilege was not lost by merely stopping to announce to the 
 counsel of the opposite party that no steps would be 
 taken in the action {SaJlvinger v. Adler, 2 Robt. 704) ; 
 by stopping over one train {Weher v. Boyer, 1 W. N. C. 
 154) ; going to several places in the direction opposite 
 to his residence, and within two hours after leaving 
 court {Selby v. Hills, 8 Ring. 166) ; going to the office 
 for one or two hours to sort his papers, and then calling 
 at a tailor shop {Pitt v. Coombes, 5 B. & Ad. 1078) ; and 
 stopping to dine with the attorney and witnesses in the 
 afternoon, the case having gone off early in the day. 
 {Lightfoot v. Cameron, 2 W. Bl. 1113). The privilege is 
 
THE SDMMONS AND ITS SKRVICE. 203 
 
 waived b.y puttiiii>' in a general ap[)earance in the action 
 {('hadirick v. Vlniw, 5 \\k. Dig. 589) ; or by failing to 
 claim the privilege at the time of arrest ami delaying 
 twenty-two days before moving to set it aside. {Fanner 
 V. Rohbiius, 47 llow. Pr. 415 ; see upon this subject note to 
 Matter of Hcalci/, 38 Am. Rep. 717) . A resident witness 
 is not exempt from service of summons while in at- 
 tendance upon the court. (Frii^hiv v. young, 11 Hun, 
 474). A minister of another government, accredited to 
 a foreign country, and recognized as such by the govern- 
 ment of the United States, is exempt from service upon 
 him of a summons in this state, wliile he is herein on his 
 way to his station. (lV'<7,s'o/t v. Blanco, 56 Super. 582). 
 ^A'hev(> a summons was served by a husband, upon his 
 wife, inclosed in a small package, just as the ship in 
 which she had embarked was about to sail, and only 
 came to lier notice after she had got out to sea, the serv- 
 ice Avas set aside. {Biilklcy v. Biillivi/, 6 Abb. Pr. 307). 
 Service made by a priAate jDerson illegally entering the 
 house of defendant, will be set aside. {Mason v. Libhei/, 
 1 Abb. N. 0. 354). The summons cannot be served on 
 Sunday ( Penal Co. S 268) ; but on any other holiday than 
 Siinday service may be made. {Dulsbiiri/ v. }'aii TasseJl, 
 56 Hun, 423; Matter of lioriieniaini, 6 App. Div. 524). 
 In an action to foreclose a mortgage, it has been held 
 that it was a suflScient service on the wife of the mort- 
 gagor, if the summons was delivered to her husband for 
 her {M'ttt.^oii v. ChiireJi. 3 Hun, 80), unless relief was 
 sought against her separate property. {Foote v. La- 
 throp. 53 Barb. 18S •,Xa(jIe v. TaugartA Abb. N. 0. 144). 
 But in the later case of Taggart v. Wade (49 Hun, 265), 
 it was held tliat personal service against the wife was 
 necessary in such actions, and that the rule that the hus- 
 band could enter an appearance for her, without service 
 being nmde upon her, had been abolished. Service of the 
 summons upon one in prison is good, either before or 
 after conviction. {Daris v. Dnfpe, 1 Abb. Ct. of App. 
 486; ^Jade v. Josepli, 5 Daly, 187). A resident of the 
 state, of full age, may execute, under his hand, and ac- 
 knowledge, in the nmnner required by law to entitle a 
 deed to be recorded, a written designation of another 
 
204 PRACTICE. 
 
 xesidenf of the state, as a person upon whom to serve a 
 summons, or any process or other paper for the com- 
 mencement of a civil special proceeding, in any court or 
 before any officer, during the absence from the state of 
 Xew York of the person making the designation; and 
 may file the same, with the written consent of the person 
 so designated, executed and acknowledged in the same 
 manner, in the office of the clerk of the county, where 
 the person making the designation resides. The designa- 
 tion must specify the occupation, or other proper addi- 
 tion, and the residence of the person making it, and also 
 of the person designated ; and it remains in force during 
 the period specified therein, if any; or, if no period is 
 specified for that purpose, for three years after the filing 
 thereof. But it is revoked earlier, by the death or legal 
 incompetency of either of the parties thereto ; or by the 
 filing of a revocation thereof, or of the consent, executed 
 and acknowledged in like manner. The clerk must file 
 and record such a designation, consent or revocation; 
 and must note upon the record of the original designa- 
 tion, the filing and recording of a revocation. While the 
 designation remains in force, as prescribed in this sec- 
 tion, a summons, or any process or other paper for the 
 commencement of a civil special proceeding, against the 
 person making it, in any court, or before any officer, may 
 be served upon the person so designated, in like manner 
 and with like effect, as if it were served personally upon 
 the person making the designation, notwithstanding the 
 return of the latter to the state of New York. (Co. Oiv. 
 Proc. § 430). The designation made under this section 
 is not good unless it is accompanied by the consent to 
 act, of the party designated to receive service, and is filed 
 in the office of the county clerk, and a judgment after 
 sei'vice upon such person will -be vacated if the designa- 
 tion is not thus complete. {Lyster v. Pearson, 7 Misc. 98) . 
 The remedy for a defective service of the summons, is a 
 motion to set it aside. {Nones v. Hope, Miit. Life Ins. 
 Co., 8 Barb. 541 ) . Appearance and answer, or demurrer, 
 waives the objection. {0. d L. G. B. B. Go. v. V. & G. B. 
 B. 6V, 63N. Y. 176, 181). 
 
THE SUMMONS AND ITS SERVICE. 205 
 
 Sec. 3. Service on a Domestic Corporation, 
 
 Personal service of the summons upon a defendant, 
 being a domestic corporation, must be made by delivering 
 a copy thereof, within the state as follows : 
 
 1. If the action is against the mayor, aldermen and 
 commonalty of the city of New York, to the mayor, comp- 
 troller, or counsel to the corporation. 
 
 2. If the action is against any other city, to the mayor, 
 treasurer, counsel, attorney, or clerk ; or, if the city has 
 neither of those ofldcers, to the officer performing corre- 
 sponding functions, under another name. 
 
 3. In any other case, to the president or other head of 
 the corporation, the secretary or clerk to the corpora- 
 tion, the cashier, the treasurer, or a director, or manag- 
 ing agent. (Co. Civ. Proc. § 431). The service upon a 
 man who is assistant treasurer, of a corporation, is not 
 good under this section. {Winslotv v. 8. I. R. T. R. R. 
 Co., 51 Hun, 298). The managing agent referred to in 
 subdivision three of this section, must be a person en- 
 gaged in the general management of a corporation as 
 distinguished from one who is engaged in the manage- 
 ment of a particular branch of its business {Emerson v. 
 A. d 0. L. R. R. Co., 13 Hun, 150), but he need not be 
 one who has the entire charge or control of the business 
 of the corporation. It is good service if he has such char- 
 acter and rank in the company, as to render it reasonably 
 certain that the corporation will be apprised of the 
 service of the summons. {Barrett v. The American T. & 
 T. Co., 56 Hun, 430; affd. 138 N. Y. 491). It has been 
 held that the agent of an insurance company, authorized 
 to effect insurance, to receive premiums and to issue 
 policies at a place other than where the principal office 
 is located, is a managing agent. {Bain v. Globe Ins. Co., 
 9 How. Pr. 448) . And so of an agent of a life insurance 
 company, having general charge of its business in dis- 
 trict composed of two cities. {Ives v. Metro. L. I. Co., 
 78 Hun, 32; MulUns v. The same, 78 Hun, 297; affd. 
 without opinion, 143 N. Y. 681). A division superinten- 
 dent of a railroad company, is a managing agent within 
 this section, and service upon him is good. {R. H. & L. 
 R. R. Co. V. 7\^. r. L. E. & W. R. R. Co., 48 Hun, 190; 
 
206 
 
 PRACTICE. 
 
 Br ay ton v. N. Y. L. E. & W. B. B. Co., 54 St, Eep. 763). 
 Where the person served was a general superintendent 
 of the work of operating the lines of a telegraph com- 
 pany, it was held that he was a managing agent, and 
 service upon him was good. {Barrett v. A. T. & T. Co., 
 supra). A baggage master is not a managing agent 
 within this section {Flynn v. H. Biv. B. B. Co., 6 How. 
 Pr. 308) ; nor a general ticket and passenger agent 
 (Doty V. Michigan Cen. B. B. Co., 8 Abb. Pr. 427) ; nor 
 one employed by a steam railroad company, to superin- 
 tend the running of horse cars on an uncompleted part 
 of its road {Emerson v. A. & 0. L. B. B. Co., 13 Hun, 
 150) ; nor is the, attorney of record of a corporation in 
 an action pending against it in this state {Taylor v. 
 Granite State Pro. Asso., 136 N. Y. 343). Where a cor- 
 poration moves to set aside the service of the summons, 
 because the person on whom it was served was not a 
 managing agent within this section, the burden of proof 
 is upon the corporation, to show that the person who 
 was served, was not within the code. {Donadi v. N. Y. 
 S. Milt. Ins. Co., 2 E. D. Smith, 519; Persons v. Buffalo 
 City Mills, 29 App. Div. 45) . The trustees of a religious 
 corporation acting as such, are the proper officers to 
 serve. {Berrian v. The Methodist Soc., 4 Abb. Pr. 424). 
 Where there was no president or treasurer of the board 
 of trustees of a religious society, and the secretary was 
 out of the state, service was ordered to be made upon a 
 trustee. {Tom v. Method. Ep. Ch., 19 Wend. 25). Serv- 
 ice on an officer of a corporation is good, although not 
 made while he is acting officially. ( Pope v. Terre Haute 
 Gar & Man. Co., 87 N. Y. 137) . After judgment dissolv- 
 ing the corporation, and the appointment of a receiver, 
 process against the corporation cannot be served on one 
 of its officers. {Hetzel v. Tannehill Sil. Min. Co., 4 Abb. 
 N. C. 40). The proper remedy for irregular service of 
 summons under this section, is by a motion to set it 
 aside. {Emerson v. Aiih. etc. B. B. Co., 13 Hun, 150). 
 In actions brought under section 1919 of the code civil 
 procedure, service on the chairman of the society is good, 
 if he is presiding officer. {Hatheway v. Amer. Min. 
 Stock Ex., 31 Hun, 575). 
 
THE SUMMONS AND ITS SERVICE. 207 
 
 Sec. 4. On a Foreign Corporation. 
 
 Personal service of the summons, upon a defendant, 
 being a foreign corporation, must be made by delivering 
 a copy thereof, within the state, as follows : 
 
 1. To the president, treasurer, or secretary; or, if the 
 corporation lacks either of those officers, to the officer 
 performing corresponding functions, under another 
 name. 
 
 2. To a person designated for the purpose by a writing, 
 under the seal of the corporation, and the signature of 
 its president, vice-president, or other acting head, ac- 
 companied with the written consent of the person desig- 
 nated; and filed in the office of the secretary of state. 
 The designation must specify a place, within the state, 
 as the office or residence of the person designated; and, 
 if it is within a city, the street, and street number, if 
 any, or other suitable designation of the particular 
 locality. It remains in force, until the filing in the same 
 office of a written revocation thereof, or of the consent, 
 executed in like manner; but the person designated 
 may, from time to time, change the place specified as his 
 office or residence, to some other place within the state, 
 by a writing, executed by him, and filed in like manner. 
 The secretary of state may require the execution of any 
 instrument, specified in this section, to be authenticated 
 as he deems proper, and he may refuse to file it without 
 such an. authentication. An exemplified copy of a desig- 
 nation so filed, accompanied with a certificate that it has 
 not been revoked, is presumptive evidence of the execu- 
 tion thereof, and conclusive evidence of the authority of 
 the officer executing it. 
 
 3. If such a designation is not in force, or if neither 
 the person designated, nor an officer specified in sub- 
 division first of this section, can be found with due dili- 
 gence, and the corporation has property within the state, 
 or the cause of action arose therein; to the cashier, a 
 director, or a managing agent of the corporation, within 
 the state. ( Co. Civ. Proc. § 432 ) . After a company has 
 filed with the proper officer, the name of the person 
 upon whom a process may be served, sending the name 
 of another agent to the secretary of state is not a revoca- 
 
 14 
 
208 PRACTICE. 
 
 tion of the first designation. ( Turner v. Fire Ins. Co. of 
 Phil, 17 Wk. Dig. 212 ) . Service upon the president of a 
 foreign corporation is good, although he is not within 
 the state upon official business. {Pope v. Terre Haute 
 Car Co., 87 N. Y. 137). The court acquires jurisdic- 
 tion by service under subdivision first or second of sec- 
 tion 432, although the cause of action did not arise in this 
 state, and though the corporation has no property in 
 this state, and a general judgment may be entered. 
 {Pope V. Terre Haute Co., supra; Gibbs v. Queen Ins. 
 Co., 63 N. Y. 114, 131; Miller v. Jones, 67 Hun, 281). 
 One who receives all the money upon sales by a foreign 
 corporation, in its office in this state, and handles all its 
 funds, is its cashier, under section 432. {McCuUoh v. 
 Paillard Watch Co., 38 St. Rep. 406; 14 Supp. 491). If 
 a foreign railroad corporation has an office in this state, 
 in which a substantial portion of its business is trans- 
 acted by a person designated by it as a general agent, 
 although in some one department such person is a man- 
 aging agent, and service of summons upon him is good. 
 {Tuchband v. C. & A. R. R. Co., 115 N. Y. 437). So 
 service within the state upon a manager of a foreign 
 corporation who is a general manager of such corpora- 
 tion, but whose office is in New Jersey, is good. ( Young 
 & Fletcher Co. v. Welsbach Light Co., 55 App. Div. 16). 
 Service on one who was president of a foreign corpora- 
 tion, after he has resigned, does not give jurisdiction. 
 {Ervin v. Oregon Steam Nav. Co., 22 Hun, 598). The 
 property intended under subdivision third of section 
 432, is property liable to attachment {Bates v. New 
 Orleans R. R. Co., 4 Abb. Pr. 72; 13 How. Pr. 516), and 
 something substantial, out of which the creditor may 
 have some chance of collecting all, or a portion of his 
 debt. {Barnes v. Mobile etc. R. R. Co., 12 Hun, 126). 
 Where one entered into, the service of a foreign corpora- 
 tion, to procure emigrants to purchase and settle on 
 defendant's lands in another state, but with the agree- 
 ment that he was to occupy an office in the city of New 
 York, it was held that the cause of action arose within 
 this state, within subdivision third of section 432. {Hil- 
 ler V. B. & M. R. R. Co., 70 N. Y. 223). Under this 
 
THE SUMAION'S AND ITS SERVICE. 209 
 
 subdivision, service on a general solicitor of a foreign 
 corporation was held to be good {Clews v. Rockford etc. 
 R. R. Co., 49 How. Pr. 117 ) ; but service on the attorney 
 of record of the corporation in a foreclosure suit pending 
 against it in this state was set aside. ( Taylor v. Granite 
 State Pro. Assoc., 136 N. Y. 343) . Service on the super- 
 intendent, and general managing agent of a railroad 
 company was held good. {Bank of Commerce v. R. f& 
 W. R. R. Co., 10 How. Pr. 1). It is not necessary that 
 an officer who is served under this subdivision, should 
 have the general charge of the whole business of the cor- 
 poration, but if he be of sufficient character and rank in 
 the corporation, to make it reasonably certain that the 
 corporation will be apprised of the service, it will be 
 held a sufficient service. {Palmer v. Peiiii. R. R. Co., 
 35 Hun, 369 ; aflfd. without opinion, 99 N. Y. 679 ; Hiller 
 V. B. & M. R. R. Co., 70 N. Y. 221). An "eastern repre- 
 sentative" of a newspaper who has charge of soliciting 
 and contracting for advertisements is a "managing 
 agent." {Palmer v. Chicago Evening Post Co., 85 Hun, 
 403; Brewer v. Knapp, 27 Civ. Proc. Rep. 41). Where a 
 foreign corporation has been deprived of its rights and 
 franchises, but not actually dissolved, service on one of 
 its officers is sufficient to give jurisdiction, and a receiver 
 appointed after such service, will take title to property 
 in this state. {Murray v. VanderhiU, 39 Barb. 140).' 
 Where two corporations are consolidated according to 
 certain statutory provisions, the officers of the original 
 corporations are continued, in legal contemplation, so 
 far as the provisions of this section of the code are con- 
 cerned. {Buell V. B. & 0. S. W. R. R. Co., 39 App. Div. 
 236). The burden is on the corporation, in moving to 
 set aside a service, to show that the person served does 
 not come within the provisions of this section of the 
 code. {Silver v. Western Assurance Co., 3 App. Div. 
 573 ) . By the insurance law ( section 30 ) it is provided 
 that no foreign .corporation shall transact any business 
 in this state, until it has executed and filed in the office 
 of the superintendent of insurance, a written appoint- 
 ment, designating him to be the attorney of such corpo- 
 ration in this state, upon whom process in any action or 
 
210 
 
 PEACTICE, 
 
 proceeding against the corporation may be served, witb 
 the same effect as if it were a domestic corporation ; and 
 service upon him is to be deemed service upon the cor- 
 poration. This provision, however, does not exclude serv- 
 ice according to section 432 ; and although the super- 
 intendent of insurance has been designated duly, the 
 corporation can be properly served as provided by sec- 
 tion 432. (Hoivard v. Prudential Ins. Co., 1 App. Div. 
 136; Silver v. West. Ass. Co., 3 App. Div. 572). Pur- 
 suant to this provision of the insurance law, it has been 
 held that the superintendent of insurance received such 
 designation as a public officer and not as an individual, 
 and that survice upon a clerk in his office, selected by 
 him to receive process, was valid and binding on the 
 company, and that he was at liberty to admit service. 
 {South Puh. Co. V. Fire Asso. of Piiila., 67 Hun, 41; 
 affd. on opinion below, 137 N. Y. 610; Qiiinn v. Royal 
 Ins. Co., 81 Hun, 207; reversed on another point, 156 
 N. Y. 327) . It has also been held that where a summons 
 against a foreign insurance company was mailed to 
 the superintendent, and he gave an admission of ser- 
 vice, that was a valid and sufficient service upon the 
 company. {Farmer v. Kat. Life As^soc. of Hartford, 67 
 Hun, 119 ; affd. with no discussion of this point, 138 N. 
 Y. 265). Appearance by the attorney of a foreign 
 corporation is sufficient to give jurisdiction {DeBemer 
 V. Drew, 57 Barb. 438), and such appearance in behalf 
 of the corporation waives any irregularity in the man- 
 ner of making service. {0. d L. C. R. R. Co. v. Yt. & Q. 
 R. R. Co., 63 N. Y. 176, 181). Service upon a proper 
 officer of the corporation who has been induced to come 
 into the state for the purpose of getting jurisdiction 
 will be set aside. {Clean R. Co. v. Fairmount Co., 55 
 App. Div. ^92 ; see chapter 5, art. 2, sec. 1, subd. 4, ante) . 
 Where an officer of a foreign corporation has come into 
 the jurisdiction for the purpose of attending a litigation, 
 he cannot be served as such officer while he is engaged 
 in the business that brought him here and for a reason- 
 able time thereafter {Sher v. H. & B. R. R. Co., 57 App. 
 Div. 390 ) ; but such exemption may be waived. ( Weston 
 v. Cits. Nat. Bk., 64 App. Div. 145). 
 
THE SUMMONS AND ITS SERVICE. 211 
 
 Sec. 5. Service of Process to Commence Special Proceedings. 
 
 The provisions of article 1 of title 1 of chapter 5 of the 
 code of civil procedure relating to the mode of service 
 of a summons, apply likewise to the service of any pro- 
 cess, or other paper, whereby a special proceeding is 
 commenced in a court, or before an officer, except a pro- 
 ceeding to punish for contempt, and except where spe- 
 cial provision for the service thereof is otherwise made 
 by law. (Co. Civ. Proc. § 433). 
 
 Sec. 6. Proof of Personal Service. 
 
 Proof of service, as prescribed in this article, must be 
 made by affidavit, except as follows : 
 
 1. If the service was made by the sheriff, it may be 
 proved by his certificate thereof. 
 
 2. If the defendant served is an adult, who has not 
 been judicially declared to be incompetent to manage 
 his affairs, the service may be proved by a written 
 admission, signed by him, and either acknowledged by 
 him, and certified in like manner as a deed to be recorded 
 in the county, or accompanied with the affidavit of a per- 
 son, other than the plaintiff, showing that the signature 
 is genuine. A certificate, admission, or affidavit of serv- 
 ice of summons, must state the time and place of 
 service. A written admission of the service of a sum- 
 mons, or of a paper accompanying the same, imports, 
 unless otherwise expressly stated therein, or otherwise 
 plainly to be inferred from its contents, that a copy of 
 the paper was delivered to the person signing the admis- 
 sion. (Co. Civ. Proc. § 434). 
 
 Subdivision 1. — Sheeiff's Certificate of Service. 
 
 The certificate or proof of service must show the title 
 of the action in which the service was made. {Litch- 
 field V. Buricell, 5 How. Pr. 341) . If the service is made 
 by the sheriff of another county, or of another state, 
 his certificate is not sufiicient proof, but the service 
 must be proved by affidavit. (MorreJl v. Kimball, 4 Abb. 
 Pr. 352 ; Farmers' Loan and Trust Go. v. Dickson, 9 Abb\ 
 Pr. 61). A clerical error in the sheriff's certificate of 
 service, is not material where it sufficiently appears that 
 
212 PRACTICE. 
 
 the service was made upon the defendant. (Miller v. 
 Brenham, 68 N. Y. 83). It has been held that, if the 
 sheriff has verbally deputized a person to make service 
 of a summons in a particular action, the sheriff's certifi- 
 cate of that service is conclusive in that action {Col. 
 Ins. Co. V. Force, 8 How. Pr. 353) ; but the majority of 
 the cases hold that the defendant may be allowed to dis- 
 pute the service, on a motion to set it aside. {Tan 
 Rensselaer v. CJiadwick, 7 How. Pr. 297; Wheeler v. 
 N. Y. & Ear. R. R. Co., 24 Barb. 414 ; Wallis v. Lott, 
 15 How. Pr. 567). Where the deputy died after service, 
 the sheriff was ordered to make a certificate of service, 
 on proof by affidavit that the deputy had received the 
 summons, and that he had stated that he had served it, 
 and the time of service. (Barber v. Goodell, 56 How. 
 Pr. 364) . If the judgment first entered in the action has 
 been vacated, the sheriff's certificate of service is not 
 functus officio, but may be used as proof of service 
 upon the second entry of judgment. (Bricn v. Casey, 2 
 Abb. Pr. 416). 
 
 Subdivision 2. — Affidavits of Service. 
 
 Where personal service of the summons, and of the 
 complaint, or notice, if any accompany the same, shall 
 be made by any other person than the sheriff, it shall 
 be necessary for such person to state in his affidavit of 
 service, his age, or that he is more than twenty-one years 
 of age ; when, and at what particular place, and in what 
 manner he served the same, and that he knew the person ■ 
 served to be the person mentioned and described in the 
 summons as defendant therein ; and also to state in his 
 affidavit, that he left with defendant such copy, as well 
 as delivered it to him. No such service shall be made by 
 any person who is less than eighteen years of age. In 
 actions for divorce, or to annul a marriage, or for sepa- 
 rate maintenance, the affidavit, in addition to the above 
 requirements, shall state what knowledge the affiant 
 had of the person served being the defendant, and 
 proper person to be served, and how he acquired such 
 knowledge. The court may require the affiant to appear 
 in court and be examined in respect thereto, and when 
 
THE SUMMONS AND ITS SERVICE. 213 
 
 service has been made by the sheriff, the court must 
 require the officer who made the service to appear and 
 be examined in like manner, unless there shall be pre- 
 sented with the certificate of service the affidavit of such 
 officer, that he knew the person served to be the same 
 person named as defendant in the summons, and shall 
 also state the source of his knowledge. (General Rule 
 18). An affidavit of service is not defective in omitting 
 to state the age or residence of the affiant, where it states 
 that he is the plaintiff's attorney and his office and 
 postoffice address is endorsed on the summons, to which 
 the affidavit was annexed. (Booth v. Kingsland Ave. 
 Bldg. Assoc, 18 App. Div. 407). The affidavit of the 
 person who made the service is not essential to the 
 proof; a third person who saw the service made may 
 prove it by his affidavit, and that affidavit will be suffi- 
 cient. {Murphy v. Shea, 143 N. Y. 78). Where the 
 affidavit stated that the summons was served "on or 
 about" a certain day, it was held not a sufficient proof of 
 service. {Hickey v. YrcUn, 4 Law. Bui. 70). An affi- 
 davit of service made by an attorney, founded on in- 
 formation from his clerk, and not stating either that the 
 clerk knew the defendant, or the place and manner of 
 service, is not sufficient proof. {8 pan Ming v. Lyon, 2 
 Abb. N. O. 203). A certificate, or affidavit of service, 
 is not conclusive; the defendant may disprove it, on 
 motion to set aside the proceedings. ( Wheeler v. N. Y. & 
 Ear. R. B. Co., 24 Barb. 414 ; Wallis v. Lett, 15 How. 
 Pr. 567). 
 
 Subdivision 3. — Admission op Service, 
 The admission of service must be shown to be genuine 
 (Litchfield v. Burioell, 5 How. Pr. 341). Its genuine 
 Bess cannot be proved by the affidavit of the plaintiff, 
 (Co. Civ. Proc. § 434). The want of proof of the gen 
 uineness of the signature must be objected to promptly 
 and may be amended after judgment. {Jones v. U. S 
 Slate Co., 16 How. Pr. 129). The admission should 
 state that' the service was personal {Read v. French, 28 
 N. Y. 285), and also the place of service {Trolan v. 
 Fagan, 48 How. Pr. 240; Brown v. Marrigold, 50 How. 
 
214 PRACTICE. 
 
 Pr. 248) , 6v the clerk has no authority to enter judgment 
 upon it {Read v. French, supra) ; but the defect is not 
 jurisdictional, and the judgment is only irregular, and 
 not void. {Maples v. Mackey, 15 Hun, 533) . An admis- 
 sion of due and personal service is sufficient. ( Id. ) . If 
 the admission is dated, the time of service need not be 
 otherwise expressed ; the date will be assumed to be the 
 time of service. (Id.). The date in the admission is 
 not conclusive. {Rogers v. Schmersahl, 2 T. & 0. 668). 
 If the admission is ante-dated so that the judgment is 
 entered less than twenty days after actual service, that 
 fact does not of itself render the judgment fraudulent as 
 to creditors. {Feck v. Richardson, 9 Hun, 567). Any 
 defect in the proof of service may be cured by amend- 
 ment, at the hearing of a motion to vacate the judgment. 
 {White V. Bogart, 73 N. Y. 257, 259; Maples v. Mackey, 
 89 N. Y. 146). A recital that the summons was person- 
 ally served, contained in the judgment is sufficient to 
 show jurisdiction of a court of general jurisdiction. 
 Maples V. Mackey, supra; Fotter v. Merchants' Bank,, 
 28 N. Y. 651, 653). 
 
 ARTICLE III. 
 
 SERVICE OTHER THAN PERSONAL., 
 
 SEdTION. 
 
 1. Substituted service. 
 
 2. Service by publication. 
 
 Subd. 1. — When it may be made. 
 
 Subd. 2. — What must be shown to obtain the order. 
 
 Subd. 3. — Order, by whom made and what to contain. 
 
 Subd. 4. — Filing papers — Notice. 
 
 Subd. 5. — Publication and service. 
 
 Subd. 6. — Proof of service. 
 
 Subd. 7. — When defendant allowed to defend. 
 
 Sec. 1. Substituted Service. 
 
 Where a summons is issued in any court of record, 
 an order for the service thereof, upon a defendant resid- 
 ing within the state, may be made by the court, or a 
 judge thereof, or the county judge of the county where 
 the action is triable, upon satisfactory proof, by the 
 affidavit of a person, not a party to the action, or by 
 
THK SUMMONS AND ITS SEKVICE. 215' 
 
 the return of the sherifp of the county where the defend- 
 ant resides, that proper and diligent effort has been 
 ]nade to serve the summons upon the defendant, and 
 that the place of his sojourn cannot be ascertained, or,, 
 if he is within the state, that he avoids service, so that 
 personal service cannot be made. ( Co..Oiv. Proc. § 435) , 
 The service provided for in this section was intended 
 only for a case where a resident could not be found, or 
 where, being found, he evaded service, and not where 
 his abiding place out of the state was known. ( Collins v. 
 CampficJcl, 9 How. Pr. 519; Foot v. Harris, 2 Abb. Pr. 
 454). The law authorizing constructive service, is con- 
 stitutional, and such service is a sufficient notice to 
 constitute due process of law. ( Cont. Nat. Bk. v. Thur- 
 ber, 74 Hun, 632; affd. on opinion below sub nom., 
 Cont. Nat. Bh. v. U. 8. Book Co., 143 N. Y. 648). Sub- 
 stituted service may be made upon infants who evade 
 service. (Steinhardt v. Baker, 163 N. Y. 410). In a 
 case where the defendant was confined to his house with 
 illness, and his wife refused to permit the officers to 
 have access to him, it was held that service might be 
 made upon him, in the manner provided for in this sec- 
 tion. {Carter v. Youngs, 42 Super. 169). An affidavit 
 is sufficient, under this section, which shows that the 
 sheriff had made diligent and proper efforts to serve 
 the summons on the defendant, by going to his place of 
 business and place of residence, but that he could not 
 be found in the state. {Simpson v. Burch, 4 Hun, 315). 
 So where the officer called frequently at the residence of 
 the defendant, and asked to see her, but was denied, 
 although the defendant had been on the street the day 
 before, it was held sufficient to permit substituted serv- 
 ice to be made under this section. {McCarthy v. Mc- 
 Carthy, 55 How. Pr. 418; 16 Hun, 546; affd. without 
 opinion, 84 N. Y. 671 ; see, also, Phillips v. Winne, 47 St. 
 Rep. 412). An affidavit was held sufficient to procure 
 substituted service, where it appeared that the officer 
 had used proper and diligent means, and had called 
 repeatedly at the places where the defendant frequented, 
 and at his house, and been told he was not at home, and 
 that the person in charge did not know when he would 
 
216 PRACTICE. 
 
 be at home, and he could not be found within or without 
 the state. {'Nagle v. Taggart, 4 Abb. N. O. 144). If the 
 judge decides that the facts are satisfactorily shown to 
 confer jurisdiction to make the order for substituted 
 service, it is res judicata, and conclusive on a motion to 
 vacate judgment .{Collins v. Ryan, 32 Barb. 647), or to 
 vacate an attachment based upon it. {Baker v. Ste- 
 phens, 10 Abb. Pr. N. S. 1, 30). And where judgment 
 has been entered, after an order for substituted service 
 of the summons, and an action has been brought upon 
 that judgment, to set aside a fi'audulent conveyance by 
 the debtor, if the judgment is attacked for want of jur- 
 isdiction in that action, it is only requisite for the plaint- 
 iff to show that the defendant resides in this state. It is 
 sufficient if the other facts specified in section 435, ap- 
 pear to the satisfaction of the judge granting the order . 
 for substituted service. {Haswell v. Linclcs, 87 N. Y. 
 637). The order may be attacked by a motion to vacate 
 it, or by appeal. {Baker v. Stephens, 10 Abb. Pr. N. S. 
 30). Service made in pursuance of an order granted 
 under this section is equivalent to a service by publica- 
 tion. {Clare v. Lockard, 122 N. Y. 263; Ferris v. Plum- 
 mer, 46 Hun, 515). The order must direct that the 
 service of the summons be made, by leaving a 
 copy thereof, and of the order, at the residence 
 of the defendant, with a person of proper age, 
 if upon reasonable application, admittance can be 
 obtained, and such a person found who will re- 
 ceive it ; or, if admittance cannot be so obtained, 
 nor such a person found, by affixing the same to the 
 outer or other door of the defendant's residence, and by 
 depositing another copy thereof, properly inclosed in a 
 postpaid wrapper, addressed to him, at his place of 
 residence, in the postoffice at the place where he resides ; 
 or upon proof being made by affidavits that no such 
 residence can be found, service of the summons may be 
 made in such manner as the court may direct. (Co. 
 Civ. Proc. § 436) . In 1896 the last clause of this section 
 was added. It sets aside the decision, rendered in 1893, 
 in Fiske v. Bennett (69 Hun, 272) which held that, if 
 the order permitted service to be made on a defendant, 
 
THE SUMMONS AND ITS SERVICE. 217 
 
 at a place other than his residence, it was not valid. 
 These sections apply to the city court of the city of New 
 York. {Molloy v. Leimon, 22 Misc. 542). The order 
 and the papers upon which it was granted, must be 
 filed, and the service must be made, within ten days 
 after the order is granted ; otherwise the order becomes 
 inoperative. On filing an affidavit, showing service ac- 
 cording to the order, the summons is deemed served, and 
 the same proceedings may be taken thereupon, as if it 
 had been served by publication, pursuant to an order 
 for that purpose, made as prescribed in section 438. 
 (Co. Civ. Proc. § 437). The defendant who has been 
 served by the order made under section 435, has twenty 
 days from the time that substituted service was actually 
 made, within which to answer. {Orr v. McEwen, 16 
 Hun, 625). An error in the given name of the plaintiff 
 in the copy of the summons annexed to an order for sub- 
 stituted service may be corrected on motion ; for such a 
 mistake, the service need not, necessarily, be set aside. 
 (Farrington v. Muchmore, 52 App. Div. 247). 
 
 Sec. 2. Service by Publication. 
 
 Subdivision 1. — -When it may be Made. 
 
 An order, directing the service of a summons upon a 
 defendant, without the state, or by publication, may be 
 made in either of the following cases : 
 
 1. Where the defendant to be served is a foreign cor- 
 poration, or being a natural person, is not a resident of 
 the state ; or where, after diligent inquiry, the defendant 
 remains unknown to the plaintiff, or the plaintiff is 
 unable to ascertain whether the defendant is or is not 
 a resident of the state. 
 
 2. Where the defendant, being a resident of the state, 
 has departed therefrom with intent to defraud his 
 creditors, or to avoid the service of a summons ; or keeps 
 himself concealed therein, with like intent. 
 
 3. Where the defendant, being an adult, and a resident 
 of the state, has been continuously without the state of 
 New York more than six months next before the grant- 
 ing of the order, and has not made a designation of a 
 
218 PRACTICE. 
 
 person upon whom to serve a summons in his behalf, as 
 prescribed in section 430 of this act; or a designation 
 so made no longer remains in force ; or service upon the 
 person so designated cannot be made within the state,, 
 after diligent elf ort. 
 
 4. Where the complaint demands judgment annul- 
 ling a marriage, or for a divorce, or a separation. 
 
 5. Where the complaint demands judgment, that the 
 defendant be excluded from a vested or contingent inter- 
 est in, or lien upon, specific real or personal property 
 within the state ; or that such an interest or lien in favor 
 of either party be enforced, regulated, defined or limited ; 
 or otherwise affecting the title to such property. 
 
 6. Where the defendant is a resident of the state, or a 
 domestic corporation ; and an attempt was made to com- 
 mence the action against the defendant, as required in 
 chapter fourth of this act, before the expiration of the 
 limitation applicable there to, as fixed in that chapter; 
 and the limitation would have expired within sixty 
 days next preceding the application, if the time had not 
 been extended by the attempt to commence the action. 
 
 7. Where the action is against the stockholders of a 
 corporation, or joint stock company, and is authorized 
 by a law of the state, and the defendant is a stockholder 
 thereof. 
 
 When a copy of the summons is required by subdi- 
 vision first or subdivision second of section four hundred 
 and twenty-six, or by section four hundred and twenty- 
 nine of the code, to be delivered to a person, other than 
 the defendant, an order, directing the service of a copy 
 of the summons upon such person without the state, or 
 by publication, may be made as prescribed in this section, 
 as if such person was the defendant in the action, and 
 upon a verified complaint, and the same proof with 
 respect to such person, as is required in section 439, 
 with respect to a defendant. And sections 440 to 444, 
 both inclusive, apply to the proceedings in like manner 
 as if such person was a defendant. (Co. Civ. Proc. § 
 438 ) . If it appears that the defendants actually reside 
 in another state, and are absent from this state, it is 
 sufficient to warrant service by publication {Allen v. 
 
THE SUMMONS AND ITS SERVICE. 219 
 
 Malcolm, 12 Abb. Pr. N. S. 335) ; but those facts must 
 be stated positively. {Warren v. Tiffany, 17 How. Pr. 
 106)'. Where it appears that defendant openly avoids 
 service by eluding the sheriff within the state, and does 
 not keep himself concealed, the case is not within sub- 
 division second, section 438. .( Yan Rensselaer v. Dun- 
 har, 4 How. Pr. 151).- To authorize service by publica- 
 tion under subdivision second, it must appear that the 
 departure or concealment of the defendant is with 
 intent to defraud creditors, or to avoid service of a 
 summons; to establish that it is with intent to defraud 
 creditors, it must appear that he has property; and to 
 establish that it was with intent to avoid service of a 
 summons, it must appear that he knew, or had reason 
 to believe, that a summons was about to be issued. 
 Towsley v. McDonald, 32 Barb. 604). Section 438 does 
 not apply to actions pending in the city court in New 
 York. (Co. Civ. Proc. § 3160). 
 
 Subdivision 2. — What Must be Shown to Obtain the 
 
 Oeder. 
 
 The statute providing the service by publication is 
 strictly construed, and all the requirements of it must be 
 complied with, before the court can obtain jurisdiction. 
 {Kendall v. Washburn, 14 How. Pr. 380). The order 
 must be founded upon a verified complaint, showing a 
 sufficient cause of action against the defendant to be 
 served, and proof by affidavit of the additional facts 
 required by the last section ; and also, where the applica- 
 tion is made upon the ground that the defendant is a 
 foreign corporation, or not a resident of the state, or 
 in a case specified in subdivision fourth, fifth, or seventh 
 of the last section, that the plaintiff has been or will 
 be unable, with due diligence, to make personal service 
 of the summons. (Co. Civ. Proc. § 439). The require- 
 ment that a verified complaint, showing a sufficient 
 cause of action against the defendant, be served, does not 
 inean simply a complaint which will withstand a de- 
 murrer based upon the ground that it did not state facts 
 sufficient to constitute a cause of action,, but it must 
 state a cause of action of which the court can take 
 
220 
 
 PEACTICB. 
 
 cognizance, and of which it has jurisdiction. {Paget v. 
 Stevens, 143 N. Y. 172). If an order is made for the 
 service of the summons by publication upon a non- 
 resident, or a foreign corporation, under subdivision 1, 
 and the action is brought to recover a sum of money 
 only, judgment cannot be rendered unless a warrant of 
 attachment has been levied. (Co. Civ. Proc. § 1217; 
 Miller v. Jones, 67 Hun, 281, 287). The theory of this 
 rule is, of course, that there must be a res within the 
 court's jurisdiction. Where a suit was brought to set 
 aside, on the ground of fraud, a judgment annulling a 
 marriage, it was held that the summons could be served 
 by publication upon the non-resident husband, who 
 obtained the alleged fraudulent judgment; the judgment 
 is the res. ( Everett v. Everett, 22 App. Div. 473 ) . The 
 summons may, likewise, be served by publication upon a 
 non-resident trustee where an accounting concerning 
 the estate committed to his care, by a New York court, 
 is sought ; although the action is in -form in personam, 
 there is a res — the fund — within the court's jurisdic- 
 tion. {Devlin v. Roussel, 36 App. Div. 87). In the case 
 of Ladcl V. Terre Haute G. & M. Go. (13 Wk. Dig. 209) it 
 w^as held that a verified complaint spoken of in this sec- 
 tion, must be actually presented to the judge at the time 
 of the application for the order ; but the subsequent cases 
 of McGulhj V. Heller (66 How. Pr. 468), and Stow v. 
 Stacy (14 Civ. Proc. Eep. 45), held that if the verified 
 complaint actually existed and was on file, and these facts 
 appeared by the affidavits presented, it was not neces- 
 sary that the complaint itself should be presented to the 
 judge. These cases, however, were the decisions of the 
 special term, whereas the case of Ladd v. Terre Haute 
 G. & M. Go. was decided by the general term. It is 
 believed, nevertheless, that the special term decisions 
 contain a true statement of the law. It is absolutely 
 necessary that there should be a verified complaint, and 
 if the complaint is not verified, or if it has been verified 
 out of the state, and the authority of the officer who 
 takes the verification is not certified, or is not properly 
 certified as prescribed in section 844, the statute is not 
 complied with, and the order of publication will be void. 
 
THE SUMMONS AND ITS SERVICE. 221 
 
 {Williamson v. WiUiamson, 3 Civ. Proc. Rep. 69; Phelps 
 V. Phelps, 6 Civ. Proc. Ilep. 117; alld. 32 Hun, 642). 
 The proof required by section 439 must be made by 
 affidavit (Waffle v. Goble, 53 Barb. 517; Easterbrook v. 
 Easterbrook, 64 Barb. 421) ; but the affidavit may be 
 made by the plaintiff in the action. (Waffle v. Goble, 
 supra) . All the requisite facts except, perhaps, the fact 
 of non-residence, must be shown from actual knowledge, 
 or if they are sworn to on information and belief, the 
 source of the information and what it is, must be stated, 
 so that the court can say whether or not it tends to 
 prove the facts stated. (McKinney v. Collins, 13 Wk. 
 Dig. 131; revd. on another point, 88 N. Y. 216; Howe 
 Mach. Co. V. Pettibone, 12 Hun, 657 ; 74 N. Y. 68 ; Greeii- 
 baum r. Divi/er, 4 Civ. Proc. Kep. 276; Easterbrook v. 
 Easterbrook, 64 Barb. 421 ; Van Wyck v. Hardy, 39 How. 
 Pr. 392). If the fact of non-residence is relied upon to 
 authorize service by publication, the affidavit must ex- 
 pressly state that the defendant is a non-resident. 
 (Young v. Fowler, 73 Hun, 179). Where the residence 
 of the defendant is unknown, information from others is 
 competent to show where it is. ( Van Wyck v. Hardy, 
 supra) . A return of the sheriff that he had made efforts 
 to serve the defendant, and was informed he had left 
 the state, is a sufficient basis on which to make an affi- 
 davit on information and belief, that defendant was a 
 non-resident, and was not within the state. (Howe 
 Mach. Go. V. Pettibone, 74 N. Y. 68 ; Schroeder v. Lear, 
 17 Wk. Dig. 574) . The facts which tend to show that the 
 plaintiff has been or will be unable, with due diligence, 
 to make personal service, must be stated. A statement 
 in the affidavit that the defendant cannot, after due 
 diligence, be found, is sufficient if the court can discern 
 from the whole substance of the affidavit that such was 
 the case. (Kennedy v. N. Y. L. I. & Tr. Co., 101 N. Y. 487; 
 Carlton v. Carlton, 85 N. Y. 315; Belmont v. Cornen, 
 82 N. Y. 256; Seiler v. Wilson, 43 Hun, 629; Jerome v. 
 Flagg, 48 Hun, 351). Where it appears that the de- 
 fendants are non-residents, and are at the time actually 
 out of the state, that is sufficient proof that the defendant 
 will not be able to make personal service upon them. 
 
222 PRACTICE. 
 
 {Loolcwood V. Brantly, 31 Hun, 155; Chase v. Lawson, 
 36 Hun, 221; Kennedy v. N. Y. Life Ins. d Trust Co., 
 101 N. Y. 487). Where, however, the affidavit states 
 "that defendant is a non-resident of this state, nor can 
 be found therein," but gives no facts showing that any 
 effort was made to find him, it is insufficient to give 
 jurisdiction, and judgment entered upon an order based 
 on that affidavit, is void. {McGracken v. Flanagan, 
 127 N. Y. 493). For an admirable discussion of the 
 distinction between McGracken v. Flanagan and Ken-- 
 nedy v. 'N. Y. L. I & Tr. Co., both supra, as well as of 
 this whole subject, see Orr v. Currie (14 Misc. 74). 
 Where it appears that the defendant is a non-resident, 
 and a summons has been issued, and efforts made to 
 find him within the state, and that he was not there, 
 that is sufficient to empower the judge to pass upon the 
 question of due diligence. [Belmont v. Cornen, 82 N. Y. 
 256 ; Crouter v. Grouter, 133 N. Y. 55 ) . But an order 
 granted without any proof that due diligence has been 
 made to find the defendant within the state, is a nullity 
 (Fetes V. Volmer, 28 St. Rep. 317; Gamphell v. Taylor, 
 9 Wk. Dig. 14; Argall v. Bachrach, 18 Wk. Dig. 267) ; 
 also an order which is based only on proof that the de- 
 fendant is a non-resident. (Hyatt v. Swivel, 52 Super. 
 1). When the order is asked for on the ground that 
 the defendants are keeping themselves concealed with 
 intent to avoid service, the affidavit must set forth the 
 evidence showing such intent. (Foster v. Moore, 68 
 Hun, 526). When the affidavit contains evidence call- 
 ing for the exercise of the judgment of the officer, he 
 must pass upon the sufficiency of the proof, and his 
 decision cannot be impeached collaterally (Belmont v. 
 Gornen, supra) ; nor should an order, made upon such 
 proof, be set aside, if there is nothing in the motion 
 papers to disprove the facts set out in the affidavit on 
 which the order was granted. (Handley v. Quick, 47 
 How. Pr. 233). To give the court jurisdiction to make 
 an order of publication, it is not necessary to say that 
 the defendant has property within the state. ( Clarke v. 
 Boreel, 21 Hun, 594 ; Wood Y.St. Louis B.&I Co., 1 Civ. 
 Proc. Rep. 220). When an order for publication is 
 
THE SUMMONS AND ITS SERVICE. 223 
 
 sought in an action for divorce under subdivision fourth 
 of section 438, it must appear that the plaintiff is an 
 actual inhabitant of the state. {Yenney v. Yenney, 1 
 Civ. Pro. Eep. 146, note). See, also, as to sufficiency of 
 affidavit to support an order of publication 25 Civ. 
 Proc. 21, note. 
 
 Subdivision 3. — Oeder^ by Whom Made and What to 
 
 Contain. 
 
 The order may be made by a judge of the court or the 
 county judge of the county where the action is triable. 
 It must direct that service of the summons, upon the 
 defendant named or described in the order, be made by 
 publicaton thereof in tvi^o newspapers, designated in the 
 order as most likely to give notice to the defendant, 
 for a specified time, which the judge deems reasonable, 
 not less than once a week for six sucessive weeks ; or, at 
 the option of the plaintiff, by service of the summons, 
 and of a copy of the complaint and order, without the 
 state, upon the defendant personally, and, if he is an 
 infant under the age of fourteen years, also upon the 
 person with whom he is sojourning; or, if the defendant 
 is a corporation, upon an officer thereof, specified in sec- 
 tions four hundred and thirty-one and four hundred and 
 thirty-two of this act. It must also contain, either a 
 direction that, on or before the day of the first publica- 
 tion, the plaintiff deposit in a specified postofflce, one 
 or more sets of copies of the summons, complainl;, and 
 order, each contained in a securely closed postpaid 
 wrapper, directed to the defendant, at a place specified 
 in the order ; or a statement that the judge, being satis- 
 fied, by the affidavits upon which the order was granted, 
 that the plaintiff cannot, with reasonable diligence, 
 ascertain a place or places, where the defendant would 
 probably receive matter transmitted through the post- 
 office, dispenses with the deposit of any papers therein. 
 (Co. Civ. Proc. § 440). The order for publication must 
 be made by a judge ; if made by the court, it is a nullity 
 (SchumaJcer v. Grossman, 12 Wk. Dig. 99; Phinney 
 y. Broschell, 19 Hun, 116; affd. 80 N. Y. 544) ; but if 
 
 15 
 
224 PRACTICE. 
 
 the order is made by the judge, the fact that it has a 
 caption and a direction to enter does not invalidate it. 
 (Phinney v. Broschell, supra; Lowerre v. Owens, 14 App. 
 Div. 215). The order need not recite that the papers 
 presented, afford satisfactory proof of the facts required 
 to be shown; that may be assumed from the making of 
 the order. (Barnard v. Heydrick, 49 Barb. 62 ) . Neither 
 need it state that the papers designated in it are those 
 most likely to give notice to the defendants. ( Schroeder 
 V. Lear, 17 Wk. Dig. 574 ; Green v. Squires, 20 Hun, 15) . 
 Nor where the order refers to the af3fidavits, and dis- 
 penses with the deposit of the papers in the postofflce, is 
 it necessary to state that it satisfactorily appears to 
 the judge by the affidavits, that the plaintiff could not 
 ascertain the residence of the defendant. [Green v. 
 Squires, supra). It was held in Ritten v. Griffith (16 
 Hun, 454) that an order for publication was void, unless 
 it was in the alternative, and required either publica- 
 tion in two newspapers, or personal service without the 
 state. This case was followed at a special term of the 
 supreme court for the first district, and in the special 
 term of the superior court in the city of New York. (1 
 Civ. Proc. Rep. 144, 145; 5 Law Bull. 31). The case of 
 Ritten v. Griffith, was definitely overruled on this point, 
 however, by the court of appeals in the Matter of Field 
 ( 131 N. Y. 184 ) , in which the court say, that the natural 
 and sensible construction of the section is, not, that the 
 order must direct both modes of service in every event, 
 but while that is always proper, the order may direct 
 service by due publication or may direct the service by 
 personal delivery without the state, in the manner pre- 
 scribed; and an order directing either mode alone, fol- 
 lowed by due service in that manner, will be equally 
 good, with one which directs both, with an option to 
 choose either. Consequently, an order which provides 
 improperly for the mailing of the papers and is, there- 
 fore, not valid as an order of publication, may still be 
 valid as an order directing service without the state, 
 and such service be sufficient. (Sabin v. Kendrich, 
 2 App. Div. 96). The order will be void, unless it 
 directs the mailing of copies of the summons and com- 
 
THE SUMMONS AXD ITS SERVICE. 225 
 
 plaint {Towsleij v. McDonald, 32 Barb. 604; Ritten v. 
 Griffith, 16 Hun, 454), and a copy of the order of publi- 
 cation [MgCooI v. BolU'v, 14 Hun, 73; llih ^Yard Bk. v. 
 Powers, 43 App. Div. 178), unless it is dispensed with 
 by the judge, pursuant to the last clause of section 440. 
 {Walker v. Reif, 13 Wk. Dig. 331). The order must 
 specify the postofflce to which the papers are to be ad- 
 dressed. ( Oases supra ) ; and the postoffice in which they 
 are to be deposited. {11th Ward Bk. v. Powers, supra). 
 An order of publication is not irregular because at the 
 time it was granted a prior order of publication was still 
 in force. {Little John v. Leffingwell, 34 App. Div. 185). 
 The validity of the order of publication is to be 
 decided by the papers on which it was granted, and if 
 they are insuflflcient, the order cannot be sustained 
 {Wortman v. Wortman, 17 Abb. Pr. 66) ; but where the 
 motion to set aside the order, was made after judgment,, 
 and the judgment roll was referred to, and was one of 
 the papers on which the motion was founded, it was 
 held that the roll and the papers in it might be resorted 
 to, to sustain the order. {Hoice Mach. Co. v. Pettihone, 
 12 Hun, 657 ; aff d. 74 N. Y. 68 ) . A motion to vacate the 
 order for irregularity must specify the irregularity relied 
 upon. {O'Neil v. Bender, 30 Hun, 204, 207) . 
 
 Subdivision 4. — Filing Papers. — Notice. 
 
 Where service is made by publication, the summons, 
 complaint, and order, and the papers upon which the 
 order was made, must be filed with the clerk, on or 
 before the day of the first publication; and a notice,, 
 subscribed by the plaintiff's attorney, and directed only 
 to the defendant or defendants to be thus served, sub- 
 stantially in the following form, the blanks being 
 properly filled up, must be subjoined to, and published 
 with the summons: — "To : — The foregoing 
 
 summons is served upon you, by publication, pursuant 
 to an order of " (naming the judge and his 
 
 official title), "dated the day of , 19 , 
 
 and filed with the complaint, in the office of the clerk of 
 , at ." (Co. Civ. Proc. § 442). Where 
 
 service is made without the state, the papers specified in 
 
226 
 
 PRACTICE. 
 
 the last section must be previously filed; and a notice 
 must be served with the summons, in all respects like the 
 notice required by the last section, except the words, 
 "without the state of New York," must be substituted 
 for the words, "by publication.'' (Co. Civ. Proc. § 443). 
 In an action of partition, where the summons is served 
 by publication upon unknown owners, or upon defend- 
 ants without the state, pursuant to section 438 and the 
 following sections, the notice subjoined to a copy of the 
 summons as published or served therewith, must in 
 addition to the matters required in sections 442 and 443, 
 state briefly the object of the action, and contain a 
 brief description of the property. (Co. Civ. Proc. § 
 1541). In matrimonial actions, where the summons is 
 served by publication, or by the delivery of a copy to 
 the defendant without the state, there must be written 
 or printed upon the face of it, the following words, or 
 words to the same effect to wit: "Action to annul a 
 marriage," "Action for a divorce," or "Action for a 
 separation," according to the purpose for which the 
 action is brought, and the fact that such words appear 
 upon the face of the summons, must be shown by the 
 proof of service. (Co. Civ. Proc. § 1774). If the com- 
 plaint and papers on which the order was made, are not 
 filed with the clerk, on or before the day of the first 
 publication, or if the notice published omits to state 
 the place of filing, the judgment will be void, and the 
 defect is not one which can be amended {Whiton v. 
 Morning Journal Asscn., 28 ilisc. 229 ; Kendall v. Wash- 
 hum, 14 How. Pr. 380; Smyth v. Rowe, 4 Law Bull. 
 60) ; but mailing the papers before filing the order, is 
 not an irregularity, and does not invalidate the pro- 
 ceedings. {SillecJc V. Hei/drick, 2 Abb. Pr. N. S. 57). 
 The notice specified in section 443 need not be served, 
 where the service is made by publication and mailing, 
 and not by personal service without the state. {La- 
 Farge v. Mitchell, 4 Law. Bull. 36). If the summons 
 is served by publication, but the notice which is mailed 
 to the defendant is the one specified in section 443, and 
 not the one specified in section 442, that defect is not 
 an irregularity which will prevent the court from ac- 
 
THE SUMMONS AND ITS SERVICE. 227 
 
 quiring jurisdiction. {Loring v. Blnneij, 38 Hun, 152; 
 affd. witliout opinion, 101 N. Y. 623). Neither is it 
 such a defect, if the notice is directed to all the defend- 
 ants, and not alone to those who were to be served. 
 (Id.). An omission of the words "without the state," 
 from a notice under section 443, is not a fatal irregular- 
 ity. {McGitUi/ V. Heller, 66 How. Pr. 468). 
 
 Subdivision 5. — Publication and SsRvit^E. 
 
 The first publication in each newspaper designated in 
 the order, or the service upon the defendant without the 
 state, must be made within three months after the order 
 is granted. For the purpose of reckoning the time 
 within which the defendant must appear or answer, 
 service by publication is complete upon the day of the 
 last publication, pursuant to the order; and service 
 made without the state is complete upon the expiration 
 thereafter of a time equal to that prescribed for publica- 
 tion. (Co. Civ. Proc. § 441). The publication must be 
 made for a specified period of time. The statute does 
 not provide for a publication six times within six weeks, 
 but for a time not less than once a week, for six succes- 
 sive weeks ; and that has been construed to mean, that it 
 intended a full six week's publication, and not six times 
 in six different weeks. ( Market National Bank v. Pacifio 
 National Bank, 89 N. Y. 397). The defendant's time 
 to appear and answer does not begin to run until the 
 expiration of six full weeks, or forty-two days, after 
 the first publication. {Waters v. Waters, 7 Misc. 519). 
 Six publications are sufficient, and the statute does not 
 require seven. {Young v. Foioler, 73 Hun, 179). Per- 
 sonal service out of the state, is a mere substitute for 
 service by publication, and has no greater effect {Fiske 
 v. Anderson, 12 Abb. Pr. 8; 33 Barb. 71), and it is not 
 complete until six weeks after the service has been made. 
 {Market National Bank v. Pacific National Bank, 
 supra). The defendant has twenty days after the publi- 
 cation is completed, to appear and answer, and a judg- 
 ment by default cannot be entered until that time has 
 elapsed. (Id. Brooklyn Trust Go. v. Buhner, 49 N. Y. 
 84). If personal service is made outside of the state, 
 
228 PKACTICB. 
 
 pursuant to section 443, the summons need not be pub- 
 lished. (Jenkins Y. Fahey, 73 'N.Y. S55). If the plain- 
 tiff dies before the publication is complete, further pro- 
 ceedings are rendered ineffectual, and jurisdiction of 
 the defendants is not obtained by continuing the publica- 
 tion, although the action is subsequently continued in 
 the name of the executrix. {Reilly v. Hart, 130 N. Y. 
 625). 
 
 Subdivision 6. — Proof of Service. 
 
 Proof of the publication of the summons and notice 
 must be made by the affidavit of the printer or publisher, 
 or his foreman or principal clerk. Proof of deposit in 
 the postoffice, or of delivery, of a paper required to be 
 deposited or delivered by the provisions of this article, 
 must be made by the affidavit of the person who deposited 
 or delivered it. (Co. Civ. Proc. § 444). The affidavit of 
 a person that he deposited the papers duly directed to 
 the defendant at Bellville, IST. J., and paid the postage 
 thereon, there being regular communication between the 
 city of New York and Bellville, was held suflBicient to 
 show the deposit in the postoffice at New York city. 
 (Steinle v. Bell, 12 Abb. Pr. N. S. 171). Where the 
 order directed the papers to be mailed to the defendant 
 at Berlin, Germany, and the affidavit showed that they 
 were directed to him at the "Union Club, Berlin, Ger- 
 many," and the affidavit of service further showed that 
 that was the residence of the defendant, the service was 
 held to be good. ( Von Rhade v. Voti Rhade, 2 T. & C. 
 491) . If there is printed on the outside of the envelope, a 
 direction to return to the plaintiff, unless called for in 
 ten days, the service "will nevertheless be good, unless 
 it is made to appear that by reason of those words being 
 there, the defendant failed to get the papers. ( Qafney 
 V. Bigelow, 2 Abb. N. C. 311). 
 
 Subdivision 7. — When Defendant Allowed to 
 Defend. 
 
 Where the summons is served, pursuant to an order 
 made as prescribed in this article, and the defendant 
 so served does not appear, he or his representative, on 
 
THE SUMMONS AND ITS SERVICE. 229 
 
 application and suificient cause shown, at^any time be- 
 fore final judgment, must be allowed to defend the 
 action, and, except in an action for divorce, or wherein 
 the contrary is expressly prescribed by law, the defend- 
 ant, or his representative, must, in like manner, upon 
 good cause shown, and upon just terms, be allowed to 
 defend, after final judgment, at any time within one 
 year after personal service or written notice thereof; 
 or, if such a notice has not been served, within seven 
 years after the filing of the judgment roll. If the de- 
 fense is successful, and the judgment, or any part 
 thereof, has been collected or otherwise enforced, such 
 restitution may thereupon be compelled, as the court 
 directs; but the title to property, sold to a purchaser 
 in good faith, pursuant to a direction contained in the 
 judgment, or by virtue of an execution issued upon the 
 same, shall not be affected thereby. (Co. Civ. Proc. 
 § 445). This section does not deprive the courts of 
 power to open a default in a divorce case, where the 
 summons is served by publication. {Brown v. Brown, 
 58 N. Y. 609) . It was held under the code of procedure, 
 that to entitle the defendant to come in and defend under 
 this section, he must show that there has been some 
 irregularity in the proceedings; if he had been misled, 
 the court would let him defend on the merits. {Roche 
 V. Ward, 7 How. Pr. 416; Jacquerson v. VcmErhen, 
 2 Abb. Pr. 315). But under the code of civil procedure 
 that is not so, and, where sufficient cause is shown for 
 the interposition of an answer, the court has no discre- 
 tion, but must grant the motion. {Marvin v. Brandy, 
 56 Hun, 242). If the motion is made before judgment, 
 the court may grant it without imposing any conditions, 
 but when made after judgment, proper terms must be 
 imposed, and ordinarily the payment of the costs of the 
 plaintiffs, which have been taxed in the judgment will 
 be sufficient. {Marvin v. Brandy, supra). 
 
230 PEACTICB. 
 
 « 
 
 AETICLE IV. 
 
 GENERAL APPEARANCE. 
 
 SECTION. 
 
 1. How and when made. 
 
 2. Effect of a general appearance. 
 
 3. When defendant may appear. 
 
 4. When defendant must answer. 
 
 Sec. 1. How and When Made. 
 
 The defendant's appearance must be made by serving 
 upon the plaintiff's attorney, within twenty days after 
 service of the summons, exclusive of the day of service, 
 a notice of appearance, or a copy of a demurrer or of 
 an answer. A notice or pleading, so served, must be 
 subscribed by the defendant's attorney, who must add to 
 his signature his office address, with the particulars 
 prescribed in section 417 of the code, concerning the 
 office address of the plaintiff's attorney. ( Co. Civ. Proc. 
 § 421). There are many decisions under the code of 
 procedure, and even prior to that time, holding that 
 various acts which an attorney might do in the early 
 stages of a litigation, other than an express general 
 appearance, amounted to such. Under the code of civil 
 procedure, it would seem that there must be an express 
 notice of apijearance or a demurrer or an answer. It 
 has been held that service of a notice of motion to set 
 aside an attachment, which notice was subscribed by the 
 attorney as the defendant's attorney without qualifica- 
 tion, is not equivalent to a general appearance ( Wood v. 
 Furtick, 17 Misc. 561) ; so, also, notice of motion to 
 make the complaint more definite and certain ( Valentine 
 V. Myers, 36 Hun, 201) ; that the obtaining of stipula- 
 tions extending the defendant's time to answer, by an 
 attorney who signs one of the stipulations as the defend- 
 ant's attorney, does not operate as a general appearance. 
 {Paine Lumber Co. v. Galbraith, 38 App. Div. 68; Bell 
 V. Good, 22 Civ. Proc. Eep. 356; 46 N. Y. St. Rep. 572; 
 Benedict v. Arnotix, 38 N. Y. Supp. 882). On the other 
 hand, it has been held that the filing of a petition to 
 remove a cause from the state court to the United States 
 
THE SUMMOXS AND ITS SERVICE. 231 
 
 circuit court, is equivalent to a voluntary general ap- 
 pearance. {Farmer v. Nat. Life Asscn., 138 N. Y. 265). 
 This case may be distinguished on the ground that it 
 proceeds upon the estoppel of the defendant to deny that 
 an action is pending, after having taken a proceeding 
 which could be predicated only on the existence and 
 pendency of the action. 
 
 Sec. 2. Effect of a General Appearance. 
 
 A voluntary general appearance of the defendant is 
 equivalent to personal service of the summons upon him. 
 (Co. Civ. Proc. § 424). A voluntary appearance, to 
 be effectual, must be made with the knowledge that the 
 suit is pending, and with the intention to appear. 
 (Merkee v. Citij of Rocliestcr, 13 Hun, 157). A volun- 
 tary appearance of a non-resident, confers jurisdiction 
 over his person (Olcott v. Maclean, 73 N. Y. 223 ; Reed v. 
 Chilson, 142 N. Y. 152 ) , and an appearance of a corpora- 
 tion by an attorney has the same effect [Attorney Gen- 
 eral v. Guard. Mat. Life Ins. Co., 77 N. Y. 272) ; but a 
 voluntary appearance of a foreign corporation by attor- 
 ney, does not necessarily give jurisdiction of the subject 
 matter of the action, although it gives jurisdiction of the 
 person of the corporation, and where after such an ap- 
 pearance, it is found that part of the plaintiffs in the 
 action are non-residents, and a case of jurisdiction is 
 not made out within section 1780 of the code of civil 
 procedure, the complaint will be dismissed as to such 
 plaintiffs. {Ervin v. Oregon R'y. & Nav. Co., 62 How. 
 Pr. 490; 28 Hun, 269). In a case where the summons 
 was served only on the mother of a non-resident infant 
 defendant, and not upon the infant herself, and the 
 mother procured herself to be appointed guardian ad 
 litem, and answered, it was held that such an appearance 
 and answer, did not constitute a general appearance for 
 the infant under section 424, so as to give the court 
 jurisdiction. (Ingersoll v. Mangam, 84 N. Y. 622). 
 So, also, a general appearance by a guardian, appointed 
 before service by publication is complete, does not give 
 jurisdiction. (G router v. C router, 133 N. Y. 55). A 
 
232 
 
 PRACTICE. 
 
 general appearance is not sufficient to entitle the de- 
 fendant to notice of subsequent proceedings in an action, 
 unless it is made in the manner prescribed by section 
 421 (Couch V. Mitlhane, 63 How. Pr. 79; Douglas v. 
 Eaberstro, 8 Abb. N. C. 230 ; Yalentiiie v. Myers' Sani- 
 tary Depots 36 Hun, 201). An appearance and 
 answer by a foreign corporation, waives any objection to 
 an irregularity, or insufficient service of the summons. 
 (0. cG L. C. R. R. Go. v. V. & G. R. R. Go., 63 N. Y. 176). 
 When a foreign corporation has appeared in an action, 
 if it does not plead an objection to the jurisdiction, it 
 cannot at the trial take the objection that the court has 
 no jurisdiction of it. (Brooks v. N. Y. & Greenwood 
 Lake R. R. Co., 30 Hun, 47). A general appearance in 
 the county court confers jurisdiction over the person 
 of the defendant (Dake v. Miller, 15 Hun, 356; Bunker 
 V. Langs, 76 Hun, 543) ; but not over the subject matter 
 of the litigation. (Weidman v. Sibley, 16 App. Div. 
 616). An appearance in the action by an attorney, is 
 good, although the attorney is not authorized to appear 
 (Brown v. Nichols, 42 N. Y. 26; Washbon v. Gope, 144 
 N. Y. 287 ; Mayor etc. v. Smith, 20 N. Y. Supp. 666 ; ap- 
 peal dismissed, 138 N. Y. 676) ; and the judgment entered 
 after such an appearance, cannot be attacked col- 
 laterally (Id.) ; but it may be attacked on a motion 
 to set aside. (Burton v. Sherman, 20 Wk. Dig. 419). 
 Such motion must be made promptly. (Abbett v. Blohm, 
 54 App. Div. 422). If the defendant is a non-resident, 
 an unauthorized appearance for him, by an attorney, 
 will be set aside, on his motion. (Nordlinger v. DeMier, 
 54 Hun, 276; Vilas v. P- d M. R. R. Go., 123 N. Y. 440). 
 But the defendant must move promptly; if he permits 
 the attorney to proceed for him in the action, the appear- 
 ance will not be set aside. (Bilas v. Butler, 29 St. Rep. 
 664; 9 Supp. 82). If however the alleged notice of 
 appearance by an attorney is a forgery, that fact may be 
 shown at any time, either for the purpose of impeach- 
 ing the judgment collaterally, or to set aside the appear- 
 ance. (Ferguson v. Grawford, 70 N. Y. 253). Where 
 an attorney appears for the defendant by mistake, sup- 
 posing the summons had been personally served on his 
 
THE SUMMONS AND ITS SERVICE. 233 
 
 client, he will be allowed to withdraw his appearance. 
 {Hunt Y. Brennan, 1 Hun, 213; Dillingham v. Varron, 
 26 Supp. 1109). Every voluntary appearance in an 
 action does not operate to waive irregularities, and to 
 give the court jurisdiction of the person of the defendant. 
 An appearance on a void appeal, for the mere purpose of 
 a motion to set it aside, does not waive want of jurisdic- 
 tion. Obtaining an extension of time, for the purpose 
 of a proceeding in which the defendant refuses to appear 
 generally in the action, was held not to be a general 
 appearance, which was operative to waive any irregu- 
 larity. {Thomas v. Jones, 3 Law Bull. 36). Where a 
 defendant, sued in a local court of general jurisdiction, 
 sets up in his answer (it not appearing by the com- 
 plaint), that he is a resident of another state, and that 
 the summons was served upon him in that state only, 
 and protested against the jurisdiction of the court, and 
 interposed no other defense upon the merits ; this was held 
 not to amount to personal service of a summons, or a 
 submission to the jurisdiction of the court. {Sullivan 
 v. Frazee, 4 Kobt. 616). A general appearance by a 
 defendant sued in a local court does not waive the right 
 to object in his answer, that the court has not jurisdic- 
 tion of the subject matter of the action, if the case is 
 such that the only means by which the action can be 
 brought in that court, is the service of a summons 
 within the limits of its jurisdiction. {Wheeloch v. Lee, 
 74 N. Y. 495 ; Weidman v. 8iMey, 16 App. Div. 616) . It 
 was held in Hamburger v. Baker (35 Hun, 455) that 
 where the summons was served without the state, the 
 service of an answer verified by the defendant and sub- 
 scribed by an attorney (as attorney for the defendant), 
 was not a general appearance, so as to confer jurisdic- 
 tion, where the answer set up the fact that the defendant 
 was not, at the time of the commencement of the action, 
 a resident of the state, and that he had no property, and 
 had not been served with summons within the state, 
 although he added that plea to other defenses upon the 
 merits. But the case of Reed v. Ghilson (40 St. Rep. 960 ; 
 16 Supp. 744 ) , disapproved Hamburger v. Baker, and held 
 that in such a case a general appearance conferred upon 
 
234 PRACTICE. 
 
 the court jurisdiction of the defendant, and that sucK 
 jurisdiction was not divested by the service of an answer 
 denying the jurisdiction of the court. This case was 
 afifirmed by the court of appeals. {Reed v. Ghilson, 142 
 N. Y. 152 ) . It was stated in that case, that when a non- 
 resident did not intend to submit himself to the juris- 
 diction of the court, he might either appear specially 
 for the purpose of raising the question of jurisdiction 
 by motion, or he might allow the plaintiff to take judg- 
 ment by default, without affecting his rights. {Reed v, 
 Chilsoii, supra). While, however, a special appearance 
 for the mere purpose of making a motion, or taking 
 some steps in the action which does not amount to a 
 recognition of the jurisdiction of the court, does not 
 affect the right of a defendant to move to vacate the 
 service of process upon him, he waives that right when 
 he becomes an actor in the suit and institutes a pro- 
 ceeding which has for its basis the existence of an action 
 to which he is a party, and which he could not take, if 
 such action did not exist. {Farmer v. The Nat. Li. Asso., 
 138 N. Y. 265). 
 
 Sec. 3. When the Defendant may Appear. 
 
 Whenever a judgment is sought against the defendant 
 he may appear, although he has not been served with 
 summons. {Rohman v. Blust, Daily Reg. October 5th, 
 1884; Higgins v. Freeman, 2 Duer, 650). In an action 
 against partners on a joint liability, one partner al- 
 though not served, may appear and answer {Welling- 
 ton V. Claason, 9 Abb. Pr. 175 ; 18 How. Pr. 10) ; despite 
 the plaintiff's objection. {McLaughlin v. Bieher, 26 
 Misc. 143 ; Jones v. Brooke, 52 App. Div. 421) . After the 
 defendant's property has been replevied, he may appear 
 in an action, although he has not been served with 
 summons. {Clinton v. King, 3 How. Pr. 55). Where 
 an injunction has been granted, which affects the rights 
 of the defendant, he may appear and move to vacate it, 
 although no process has been served upon him. ( Waffle 
 V. Vanderheyden, 8 Paige, 45 ) . If he has been arrested 
 in the action, he is entitled to appear and defend it, 
 although he has not been served with summons ( Georgia 
 
THE SUMMONS AND ITS SERVICE. 235 
 
 Lumber Co. v. Bissell, 9 Paige, 225) ; but if the defend- 
 ant has no right to protect in an action, and has not 
 been served with summons, he cannot become a party by 
 appearing. {McKnight v. Baker, 1 How. Pr. 201 ; Tracy 
 V. Reynolds, 7 How. Pr. 327). A husband cannot enter 
 an appearance for his wife, who has not been served 
 with summons in the action. (Taggart v. Rogers, 49 
 Hun, 265) . One who is served with a summons in which 
 he is not named as a defendant, and to which he is not 
 intended to be a party, is not entitled to appear, and if 
 upon appearing, he is informed of the facts and re- 
 question to withdraw, and refuses to do so, the action 
 will be discontinued as to him on motion of the plaintiff 
 with costs of the motion to be paid by that defendant. 
 (Abeel v. Conhyser, 42 How. Pr. 252). 
 
 Sec. 4. When the Defendant Must Answer. 
 
 A defendant, upon whom the plaintiff has served, with 
 the summons, a copy of the complaint, must serve a copy 
 of his demurrer or answer upon the plaintiff's attorney, 
 before the expiration of the time, within which the sum- 
 mons requires him to answer. If a copy of the complaint 
 is not so served, a notice of appearance entitles him 
 only to notice of the subsequent proceedings, unless 
 within the same time he demands the service of a copy of 
 the complaint, as prescribed in section four hundred 
 and seventy-nine of the code. (Co. Civ. Proc. § 422). 
 The defendant cannot answer if his time has expired, 
 although the adverse party has not acted on his default. 
 (Mandeville v. Winne, 5 How. Pr. 461; McOoion v. 
 Leavenworth, 2 E. D. Smith, 24). An infant defendant 
 is entitled to twenty days after the appointment of a 
 guardian ad litem to demand a copy of the complaint, 
 and his time to answer does not begin to run until a 
 guardian ad litem is appointed. {Kastner v. Diirant, 1 
 Law. Bull. 11) . Where an order for service of the sum- 
 mons by publication has been made, and the defendant 
 serves a general notice of appearance, the time to serve 
 a copy of the complaint expires twenty days after the 
 date of the service of such appearance. {11th Ward BJc. 
 
236 
 
 PKACTIPR 
 
 V. Powers, 43 App. Div. 178). A defendant who is 
 arrested before answering, but more than twenty days 
 after the service of summons and complaint upon him, 
 has twenty days after he has been arrested to answer. 
 (Co. Civ, Proc. § 566; Clady v. Wood, 66 How. Pr. 1). 
 
CHAPTER VI. 
 
 NOTICE OF PENDENCY OF ACTION, 
 
 ARTICLE I . . . .When to be filed by plaintiff. 
 ARTICLE II.. .Contents of the notice. 
 ARTICLE III.. Recording. 
 ARTICLE IV. .When filed by defendant. 
 ARTICLE v.. .Effect of the notice. 
 ARTICLE VI . . Amendment and cancellation. 
 
 ARTICLE I. 
 
 WHEN TO BE FILED BY PLAINTIFF. 
 
 In an action brought to recover a judgment affecting 
 the title to, or the possession, use, or enjoyment of, real 
 property, the plaintiff may, when he files his complaint, 
 or at any time afterwards before final judgment, file in 
 the clerk's office of each county where the property is 
 situated, a notice of the pendency of the action, stating 
 the names of the parties, and the object of the action, and 
 containing a brief description of the property in that 
 county, affected thereby. Such a notice may be filed 
 with the complaint, before the service of the summons ; 
 but, in that case, personal service of the summons must 
 be made upon a defendant, within sixty days after the 
 filing, or else, before the expiration of the same time, 
 publication of the summons must be commenced, or 
 service thereof must be made without the state, pur- 
 suant to an order obtained therefor, as prescribed in 
 chapter fifth of the code. (Co. Civ. Proc. § 1670). In 
 actions of foreclosure, the notice of pendency of the 
 action must be filed, at least twenty days, before the 
 application is made for judgment in the action. (Co. 
 Civ. Proc. § 1631). Substituted service under section 
 435 of the code, within the required time after filing 
 
238 PEACTICE. 
 
 of the notice of pendency, is equivalent to personal serv- 
 ice to support the notice. {Ferris v. Plummer, 46 Hun, 
 515). A notice of pendency of action is not operative 
 until the complaint has been filed. {Weeks v. Tomes, 
 1 Hun, 349; affd. 76 N. Y. 601). If the complaint has 
 actually been filed with the notice, the fact that the 
 filing was not minuted, or that it was removed from the 
 office to be used in court, does not invalidate the notice. 
 ( Waring v. Waring, 7 Abb. Pr. 472 ) . If the notice has 
 been filed before the complaint, a subsequent filing of 
 the complaint makes the notice operative from the time 
 of such a filing. {Benson v. Sayre, 7 Abb. Pr. 472, 
 note). The phrase "real property," as used in this sec- 
 tion, includes all the estates in land, not only estates of 
 inheritance, but estates for life, for years, at will, and 
 by sufferance ; and the notice may be filed in any action 
 involving the title to, or the possession, use, or enjoy- 
 ment of, any of these estates. {Wllmont v. Meserole, 
 41 Super. 274 ) . The notice may be filed in an action by 
 a vendor of real estate to recover, as unpaid purchase 
 money, a part of the price which has been paid in rail- 
 road bonds, fraudulently transferred to the plaintiff, 
 and to make the recovery a lien on the lands. {Mills v. 
 Bliss, 55 N. Y. 139). In an action where the plaintiff 
 claimed title to a share of real property devised, and the 
 rents and profits received by the defendant as executor, 
 and asked for an accounting and an adjudication as to 
 the rights of the parties in the premises, it was held that 
 a notice of pendency was properly filed. {Kunz v. Bach- 
 man, 61 How. Pr. 519; 12 Wk. Dig. 522). It has been 
 held that the notice of pendency was properly filed in an 
 - action to avoid and cancel a lease of lands, and also in 
 an action to enforce specific performance of a contract 
 to sell leasehold interests in lands. {Wilmont v. Mese- 
 role, supra; Ruck v. Lange, 10 Hun, 303). Where the 
 plaintiff sued to have a married woman's debt declared 
 a lien on her separate real estate, the court held that a 
 notice of pendency of the action was properly filed. 
 {Sanders v. Warren, 2 W. D. 507; Brainerd v. White, 
 48 Super. 399). An action to enforce a vendee's lien 
 
NOTICE OF PENDENCY OF ACTION. 239 
 
 upon land for money paid upon a contract for its pur- 
 chase, where the vendor is unable to give a good title, 
 is an action affecting the title to or the possession, use 
 or enjoyment of the land, and a notice of pendency may 
 be filed in such an action. ( Baehmann v. Wagner, 40 St. 
 Eep. 757; 16 Supp. 67). But an action for damages for 
 trespass on real property is not within section 1670, 
 even though the title to the property be litigated in that 
 action. {Hailcij v. Ano, 136 N. Y. 569) . This section of 
 the code applies to actions of ejectment. It is necessary 
 in those actions to file a notice of pendency of the action, 
 if it is desired to bind by the judgment, parties taking 
 transfer of possession of the lands pendente lite. This 
 was not the case under the code of procedure ( Sheridan v. 
 Andreivs, 49 N. Y. 478, 482) ; but the reason of that was 
 that under the code of procedure the judgment in eject- 
 ment bound not only the parties to the action, but all 
 persons claiming under the defendant by a title acquired 
 after the commencement of the action. ( p. 482 ) . That 
 rule is now changed by the code of civil procedure, by 
 which the judgment of ejectment is binding upon each 
 party against whom it is rendered, and every person 
 claiming from, through, or under him, by a title accruing 
 either after the judgment roll is filed, or after a notice of 
 a pendency of action is filed as prescribed in section 
 1670. ( Co. Civ. Proc. § § 1524, 1526 ) . For these reasons, 
 it is believed that it is necessary to file the notice of 
 pendency in every action of ejectment, to give full effect 
 to the judgment therein. The right to file a notice of 
 pendency is absolute in any case within the statute. 
 (Mills V. Bliss, 55 N. Y. 139 ; Beman v. Todd, 124 N. Y. 
 114). In cases in which a warrant of attachment has 
 been issued, and real property levied upon under the 
 attachment, a notice must be filed, stating the names 
 of the parties to the action, the amount of the plaintiff's 
 claim as stated in the warrant, and a description of the 
 particular property levied upon. The notice must be 
 subscribed by the plaintiff's attorney, adding his office 
 address ; and must be recorded and indexed by the clerk, 
 in the same book, in like manner, and with like effect, 
 
 16 
 
240 
 
 PRACTICE. 
 
 as a notice of the pendency of an action. (Co. Civ. 
 Proc. § 649, sub. 1). 
 
 ARTICLE II. 
 
 CONTENTS OF THE NOTICE. 
 
 Tlie notice must state the names of the parties, the 
 object of the action, and must contain a brief descrip- 
 tion of the property in the county affected by the action. 
 (Co. Civ. Proc. § 1670). In foreclosure cases, in addi- 
 tion to the particulars required in section 1670, the 
 notice must specify the date of the mortgage, the parties 
 thereto, and the time and place of recording it. (Co. 
 Civ. Proc. § 1631). The fact that the middle letter is 
 wrongly inserted in the name of one of the defendants, 
 is not material. {Weber v. Fowler, 11 How. Pr. 458). 
 The description of the lands should specify only the 
 land to be affected by the judgment. (Fitzgerald v. 
 Blake, 42 Barb. 513). It should be sufficiently certain 
 to enable the land to be located. "All the real property 
 of the defendant Brown, or in Avhich she has an interest, 
 in Chenango county," is void for indefiniteness. {Jaffray 
 V. Brown, 17 Hun, 575). 
 
 ARTICLE III. 
 
 KECOEDING. 
 
 Each county clerk, with whom such a notice is filed, 
 must immediately record it, in a book kept in his office 
 for that purpose, and index it to the name of each 
 defendant, specified in a direction, appended at the 
 foot of the notice, and subscribed by the attorney for 
 the plaintiff. (Co. Civ. Proc. § 1672). 
 
 ARTICLE IV. 
 
 WHEN FILED BY THE DEFENDANT. 
 
 Where a defendant sets up iji his answer a counter- 
 claim, upon which he demands an affirmative judgment 
 affecting the title to, or the possession, use, or enjoy- 
 
NOTICK OP I'ENDENCY OF ACTION. 241- 
 
 ment of, real property, lie may, at the time of filing his 
 answer, or at any time afterwards befoi'e final judgment, 
 file a like notice. The provisions of sections 1670, 1671 
 and 1672 apply to such a notice. For the purpose of 
 such an application, the defendant filing such a notice 
 is regarded as a plaintifT, and the plaintiff is regarded 
 as a defendant. (Co. Civ. Proc. § 1673). 
 
 ARTICLE V. 1 
 
 EFFECT OP NOTICE. 
 
 Where the notice of the pendency of an action may 
 be filed, as prescribed in section 1670, the pendency of 
 the action is constructive notice, from the time of so 
 filing the notice only, to a purchaser or incumbrancer 
 of the property affected thereby, from or against a 
 defendant, with respect to whom the notice is directed 
 to be indexed, as prescribed in section 1672. A person, 
 whose conveyance or incumbrance is subsequently ex- 
 ecuted, or subsequently recorded, is bound by all pro- 
 ceedings taken in the action, after the filing of the notice, 
 to the same extent as if he was a party to the action. 
 (Co. Civ. Proc. § 1671). In actions of ejectment, a final 
 judgment is binding upon each party against whom it 
 is rendered, and every person claiming from, through 
 or under the defendant, by title accruing after a notice 
 of pendency of the action is filed in the clerk's office. 
 (Co. Civ. Proc. §§ 1524, 1526). In actions for dower, 
 for the foreclosure of a mortgage, for the determination 
 of claims to real estate, and of partition, judgment is 
 conclusive upon each person claiming under a party 
 thereto and whose title to the real estate involved 
 accrues after the filing of the notice of pendency pur- 
 suant to section 1670. (Co. Civ. Proc. §§ 1619,^1632, 
 1557, sub. 2, 1646) . The filing of the notice of pendency 
 of the action is not the commencement of a suit for any 
 other purpose than for constructive notice to the parties. 
 {Haynes v. Onderdonk, 2 Hun, 619). A subsequent 
 judgment creditor of the defendant after filing of the 
 notice, is bound by the judgment, although he is not a 
 party to the action. {Fuller v. Bcrihner, 76 N. Y. 190; 
 
242 
 
 PRACTICE. 
 
 Hull V. Hpratt, 1 Hun, 298). A grantee of a mortgagor 
 whose deed is not recorded until after the notice is filed, 
 is bound by the judgment, although he is not a party to 
 the action. {Kindberg v. Freeman, 39 Hun, 466; affd. 
 Avithout opinion, 109 N. Y. 653; Kiirsheedt v. U. D. S. 
 Iiii^'t., 118 N. Y. 358). The notice only relates to and 
 effects incumbrances, liens or alienations by the defend- 
 ant or subordinate to his right, and it does not affect 
 a title independent and adverse to his, nor one prior to 
 that on Avhich the action is based. A tax title from the 
 comptroller upon a tax against the mortgagor, is not 
 affected by the judgment of foreclosure. {Becker v. 
 Hon-ard, 4 Hun, 359; 66 N. Y. 5). The notice has only 
 the same effect upon the holder of an unrecorded prior 
 incumbrance or conveyance, that making him a party 
 would have. If the plaintiff has notice of the prior 
 deed or incumbrance, the judgment does not affect the 
 rights of the prior holder. [Lambnt v. Cheshire, 65 N. 
 Y. 30) . In an action of ejectment, the filing of a notice 
 of pendency of action does not affect the rights of a 
 lessee in possession from one who is not a defendant in 
 that action. {Thompson v. Clark, 4 Hun, 164). No 
 one can take advantage of the failure to file the notice 
 of pendency in an action of foreclosure, except when he 
 is affected by it. {White v. Coulter, 1 Hun, 357). The 
 notice of pendency is effective and operative from the 
 time of filing although the county clerk fails to index it 
 as directed. {Hartwell v. Filei/, 47 App. Div. 154). 
 
 ARTICLE VI. 
 
 AMENDMENTS AND CANCELLATION. 
 
 Sec. 1. Amendment. 
 
 A notice of pendency of action may be amended by 
 the court by inserting a specific description of land 
 omitted, or the names of parties, or correcting any mis- 
 take. {Vanderheyden v. Gary, 38 How. Pr. 367). If 
 after filing a notice of pendency of action, the names 
 of parties are stricken out, it is safer to file a new notice. 
 (Curtis V. Hitchcock, 10 Paige, 399). If new parties 
 are brought in, an amended notice of pendency of action 
 
NOTICE OF PENDENCY OF ACTION. 243 
 
 must be filed to bar all claims under the new parties, or 
 to enable the plaintiff to take judgment in an action of 
 foreclosure. ( C7rt)7v v. Hacens, Clarke Chan. 560 ; Curtis 
 X. Hitchcock, supra). If the names of parties are added, 
 and subsequently struck out, a new notice does not seem 
 to be required. {Waring v. Waring, 7 Abb Pr. 472). 
 
 Sec. 2. Cancellation. 
 
 After the action is settled, discontinued, or abated, 
 or final judgment is rendered therein against the party 
 filing the notice, and the time to appeal therefrom has 
 expired, or if a plaintiff filing the notice unreasonably 
 neglects to proceed in the action, the court may, in its 
 discretion, upon the application of any person aggrieved, 
 and upon such notice as may be directed or approved by 
 it, direct that a notice of the pendency of an action, filed 
 as prescribed in the last four sections, be canceled of 
 record by a particular clerk, or by all the clerks, with 
 whom it is filed and recorded. The cancellation must 
 be made by a note to that effect, on the margin of the 
 record, referring to the order. Unless the order is 
 entered in the same clerk's office, a certified copy thereof 
 must be filed therein, before the notice is canceled. ( Co. 
 Civ. Proc. § 1674 ) . In 1892, an amendment to this sec- 
 tion provided that in a judgment creditor's action, the 
 court may, at any stage of the proceedings, and upon 
 notice direct the lis pendens to be canceled, upon pay- 
 ment into court of the amount of the judgment sought 
 to be enforced with certain additions enumerated, or 
 upon the giving of an undertaking with two sureties in 
 a sum double the amount of the judgment. The practice 
 on an application to cancel a lis pendens under this 
 provision is amply set forth in the ramifications of this 
 amendment. The right to file a notice of pendency of 
 action in a proper case, is absolute, and does not rest in 
 the discretion of the court, and when a notice has been 
 properly filed it cannot be canceled, except for the 
 reasons and in the manner prescribed in this section or 
 some other statutory provision. {Beman v. Todd, 124 
 N. Y. 114; Breen v. Lennon, 10 App. Div. 36). Where 
 the plaintiff has availed himself of the leave of the court. 
 
244 
 
 PRACTICE. 
 
 to enter a judgment dismissing the complaint without 
 costs, and then appealed from the judgment which has 
 been affirmed, it would be a sufficient ground to cancel 
 the Us pendens, if it is made to appear by the defendant, 
 that its continuance was prejudicial to his interests and 
 an obstacle to the successful use of his property. (Len- 
 non V. Stiles, 31 St. Eep. 115; 9-Supp. 358). So where, 
 after a judgment dismissing the complaint, has been 
 affirmed at the general term, and the plaintiff refuses to 
 appeal to the court of appeals, the court may properly 
 cancel the Us pendens. {Wagner v. Perry, 51 Hun, 199) . 
 Where a lis pendens has been canceled for an unreason- 
 able neglect on the plaintiff's part to proceed, he cannot 
 subsequently file a new notice in the same action. ( Cohen 
 V. Rathowsky, 43 App. Div. 196). The notice of pen- 
 dency cannot be canceled while the action is pending 
 {Mills V. Bliss, 55 N. Y. 139) ; except as provided in sec- 
 tion 1674, or other statute as in Breen v. Lennon, supra. 
 It cannot be canceled because the complaint does not 
 state facts sufficient to constitute a cause of action. 
 '{Mills V. Bliss, supra; Brainerd v. White, 48 Super. 399) . 
 Whether it could be canceled if the action was one in 
 which it was not proper to file a notice of pendency, was 
 left undecided in Mills v. Bliss, supra, but it has since 
 been held that the court would set it aside. {Fitzsimons 
 V. Drought, 15 App. Div. 413, 414 ; Brox v. Rilcer, 56 App. 
 Div. 388 ) . The notice can only be canceled by the court 
 in which the action is pending. {Matter of Barnum, 
 Daily Reg. May 29, 1884 ) . At any time after a warrant 
 of attachment has been vacated or annulled, or the at- 
 tachment has been discharged as to real property at- 
 tached, the court may, in its discretion, upon the appli- 
 cation of any person aggrieved, and upon such notice as 
 it deems just, direct that a notice of pendency of action, 
 filed for the purpose of attaching the property, may be 
 canceled of record, by the clerk of the county where it 
 is filed and recorded. A certified copy of the order must 
 be filed in the clerk's office, unless the order itself is en- 
 tered therein, and the cancellation must be made by the 
 clerk by a note, to that effect, on the margin of the 
 record, referring to the order. (Co. Civ. Proc. § 711). 
 
CHAPTER VII. 
 
 MOTIONS AND ORDERS. 
 
 AETICLE I Motions 
 
 ARTICLE II. ...Affidavits and petitions. 
 ARTICLE III. . . .Notice of motion 
 ARTICLE IV.. .Orders to show cause. 
 ARTICLE V. . . . Stay of proceedings, 
 
 ARTICLE VI Practice after the notice. 
 
 ARTICLE VII. . .Orders. 
 ARTICLE VIII. .Costs of motion. 
 
 ARTICLE I. 
 
 MOTIONS. 
 
 SECTION, 
 
 1. Motions defined. 
 
 2. When and where made. 
 
 3. Motion papers, how prepared. 
 
 Sec, 1. Motions Defined. 
 
 A written direction of a judge or court, unless it is 
 contained in a judgment, is an order. (Co. Civ. Proc. 
 § 767). An application for an order is a motion. (Co. 
 Civ. Proc. § 768) . A motion is not a remedy in the sense 
 of the code, but it is based upon some remedy, and is 
 always connected with, and dependent upon, the prin- 
 cipal remedy. It is to furnish relief in the progress of 
 the action or proceeding in which it is made, and gener- 
 ally relates to matters of procedure, although it may be 
 used to secure some right in consequence of the determina- 
 tion of the principal remedy. (Blatter of Jetter, 78 N. Y. 
 601, 605). With reference to the requirement of notice, 
 motions are divided into ex parte and contested. There 
 are two kinds of contested motions, enumerated and non- 
 enumerated motions. Enumerated motions are motions 
 arising on special verdict; issues of law; cases: excep- 
 
246 PRACTICE. 
 
 tions ; appeals from judgments sustaining or overruling 
 demurrers; appeals from judgments, or orders granting 
 or refusing a new trial in an inferior court; appeals 
 taken by virtue of sections 1346 and 1349 of the code; 
 agreed cases submitted under section 1279 of the code; 
 and appeals from final orders and decrees of surrogates' 
 courts ; and matters provided for by sections 2085, 2099, 
 and 2138 of the code. Non-enumerated motions include 
 all other questions submitted to the court. (General 
 Rule 38). Only non-enumerated motions will be con- 
 sidered in this chapter. In addition to motions which 
 are made in the first instance at special term, non-enum- 
 erated motions include all appeals from orders. ( Phippa 
 V. Carman, 26 Hun, 518). 
 
 Sec. 2. When and Where Made. 
 
 An application for an order or a motion must be made 
 to a court, or to a judge or justice thereof. When the 
 defendants have made default in appearing in an action 
 or proceeding, any application or motion therein may 
 be made to the court or to a judge or justice thereof 
 out of court. Where any of the defendants in an action 
 or proceeding have appeared, all motions or applica- 
 tions thereafter made in such action or proceedings, must 
 be made to the court, unless such defendants consent to 
 the making of such motion or application to a judge or 
 justice out of court. (Co. Civ. Proc. § 768). Motions 
 for relief on the ground of irregularity must be made 
 at the earliest practicable term, or an excuse for the 
 delay must be shown. {Lawrence v. Jones, 15 Abb. Pr. 
 110 ) . This rule does not apply where a motion to vacate 
 is upon the merits, and not for an irregularity. {8wesey 
 V. Bartlett, 3 Abb. Pr. N. S. 444; Doty v. Russell, 5 
 Wend, 129). A motion to set aside a final judgment, 
 for irregularity, cannot be heard, after the expiration 
 of one year since the filing of the judgment roll ; unless 
 notice thereof is given for a day within the year, and 
 either the hearing is adjourned, by one or more orders, 
 until after the expiration of the year; or the term for 
 which it is thus noticed, is not held. In the latter event, 
 the motion nuiy be re-noticed for, and heard at, the 
 
MOTIONS AND OEDERS. 247' 
 
 next term at which it can be made, held not less than 
 ten days after the day, when the first term was appointed 
 to be held. (Co. Civ. Proc. § 1282). Motions to change 
 the place of trial must be heard at the earliest prac- 
 ticable day after issue is joined (General Rule 48; 
 Darragh v. McKiiu, 2 Hun, 337) ; and such motion 
 will be denied if the moving party is guilty of 
 laches. {Becker v. Cherry Creelc, 77 Hun, 11; 
 app. dismissed, 143 N. Y. 663). In actions where 
 the trial of issues of fact is not provided for by 
 by the code of civil procedure, if either party 
 shall desire a trial by jury, a notice of the motion for 
 the settlement of issues must be made within ten days 
 after issue joined. (General Rule 31). A motion to 
 make a pleading more definite and certain, or to strike 
 out of it matter alleged to be irrelevant, redundant, or 
 scandalous, must be noticed before answering or demur- 
 ring to the pleading, and within twenty days from its 
 service. ( General Rule 22 ) . An extension, by stipula- 
 tion or order, of the time to answer or demur waives 
 the right to make the motion {Brooks v. Hanchett, 36 
 Hun, 70; Post v. Bki:::cwitz-, 13 App. Div. 124) ; unless 
 the stipulation or order also reserves the right to make 
 the motion. {Peart v. Peart, 48 Hun, 79). In an action 
 in the supreme court, a motion upon notice must be 
 made within the judicial district, in which the action 
 is triable, or in a county adjoining that in which it is 
 triable; except that where it is triable in the first judi- 
 cial district, the motion must be made in that district; 
 and a motion, upon notice, cannot be made in that dis- 
 trict in an action triable elsewhere. But this section 
 does not apply to a case, where it is specially prescribed 
 by law that a motion may be made in a county, where 
 the applicant, or other person to be ai¥ected thereby, or 
 the attorney, resides. ( Co. Civ. Proc. § 769 ) . Where one 
 motion is necessarily made in several different actions 
 pending in different judicial districts, it may be made 
 in one place. In such a case the old practice is preserved 
 under rule 85. {PhilUps v. Wheeler, 2 Hun, 603). The 
 motions referred to in this section are those which are 
 made in the action while it is pending, or such as relate 
 
248 
 
 PRACTICE. 
 
 in some way to its pendency or procedure. (Phillips 
 V. Wheeler, 67 N. Y. 104; Curtis v. Greene, 28 Hun, 
 294). A county in which the action is triable, is that 
 which is stated as the place of trial in the summons and 
 complaint. (Bangs v. Selden, 13 How. Pr. 163) . Where 
 no county is named in the summons or complaint, the 
 motion may be made in any district in which the action 
 is properly triable. (HotcMciss v. Crocker, 15 How. Pr. 
 336) . It need not be stated in the papers that the motion 
 is made in the proper county ; if the county in which the 
 motion is made, is not the proper county, the objection 
 may be taken in opposition. (Newcomb v. Reed, 14 
 How. Pr. 100 ) . An order made in the wrong district or 
 county is valid, however, until set aside; the court has 
 jurisdiction to make such an order, and the irregularity 
 does not make it void. (Pinckiici/ v. Hagerman, 4 Lans. 
 374; affd. 53 N. Y. 31). A motion may be made by 
 consent at a special term held in any county ; and when 
 so made, it is reviewable as though it were made in the 
 proper county. (i?ice v. i?7(/e, 65 Barb. 185). The sec- 
 tion applies only to motions upon notice. (Erisman v. 
 Pidcock, 62 How. Pr. 327). All non-enumerated 
 motions are generallj' heard at a special term, unless 
 when otherwise provided by law. The appellate division 
 has jurisdiction, however, to hear and determine in the 
 first instance any motion, contested or ex parte that a 
 special term may entertain. (Matter of Barkley etc., 
 42 App. Div. 597; app. dis., 161 N. Y. 647). In affirm- 
 ing the jurisdiction the court says that it will be used 
 very sparingly. Contested motions shall not be noticed 
 or brought to a hearing at any special term held at the 
 same time and place with a trial term, except in actions 
 on the calendar for trial at such term, and in which the 
 hearing of the motion is necessary to the disposal of the 
 cause, unless otherwise ordered by the justice holding 
 the court; and except, also, that in counties in which 
 no special term distinct from a trial term 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 trial and special term in the county in which such 
 actions are triable. (General Eule 88). This rule 
 
MOTIONS AND ORDERS. 249 
 
 applies only to motions, strictly so called, and not to 
 applications which are made as the basis of a special 
 proceeding. {Matter of Argus Co., 138 N. Y. 557). Its 
 only effect is to prescribe a rule of conduct for the 
 guidance of attorneys. It does not prohibit a judge 
 who is holding special term at the same time with the 
 surrogate, from entertaining a motion noticed for that 
 term, if, in his judgment it is proper to do so. (Matter 
 of Argus Co., supra). A contested motion cannot be 
 made at a special term held at chambers, pursuant to 
 section 239 of the code of civil procedure, unless by con- 
 sent of all the parties. ( Co. Civ. Proc. § 768 ; Matter of 
 Wadlcjj, 29 Hun, 12). In the seventh judicial district, 
 contested motions in actions triable in any county, ex- 
 cept Monroe, may be noticed for the equity terms in 
 such county, but such motions will not be heard at any 
 special term held at the same time and place with a 
 trial term, except in actions upon the calendar for 
 trial at such trial term, and in which the hearing of 
 the motion is necessary to the disposal of the cause. In 
 the first judicial district, a motion which elsewhere 
 must be made in court, may be made to a judge out of 
 court, except for a new trial on the merits. (Co. Civ. 
 Proc. § 770 ) . It will be noticed from these sections of 
 the code, that the rule in regard to motions in the first 
 district, is different from that which obtains in every 
 other district. In the first judicial district, no motions 
 can be made except in actions triable in that district; 
 and those motions need not be made at a special term, 
 but may be noticed and made before a judge out of court. 
 Although this power to hear motions out of court is 
 given the justices of the first judicial district, it is not 
 exercised as a practical matter; the appellate division 
 rules of the first department lay down elaborate and 
 complete regulations for the hearing of all motions in 
 court. In the other judicial districts, all motions must 
 be made at a special term, and, subject to special 
 regulations of particular districts, they may be noticed 
 at a special term held in any county in the judicial 
 district where the action is triable. And if that county 
 joins a county in any other judicial district, they may 
 
250 PRACTICE. 
 
 be made in such adjoining county. (Co. Civ. Proc. ^ 
 769). Where notice of a motion is given, or an order 
 to show cause is returnable, before a judge, out of court, 
 who, at the time fixed for tlie motion, is or will be absent, 
 or unable, for any other cause, to hear it, the motion may 
 be transferred, by his order, made before or at that time,^ 
 or by the written stipulation of the attorneys for the 
 parties, to another judge, before whom it might have 
 been originally made. (Co. Civ. Proc. § 771). 
 
 See. 3. Motion Papers, How Prepared. 
 
 The papers upon which any motion is based, or all 
 other papers to be filed or submitted to the court (ex- 
 cept papers required to be printed), if they exceed two 
 folios in length, shall be distinctly numbered, and 
 marked at each folio in the margin; and all copies, 
 either for 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 indorsed 
 with the title of the cause. They must be fairly and 
 legibly written, and if not so written, folioed, and in- 
 dorsed, the clerk shall not file the same, nor will the 
 court hear any motion or application founded upon 
 them. Motion papers, as all other papers in an action, 
 served on a party or attorney, or filed with the clerk of 
 the court, must comply with section 796 of the code of 
 civil procedure and must be written or printed in black 
 characters ; and no clerk of the court shall file or enter 
 the same in his office unless they comply with this rule. 
 The party upon whom the paper is served shall be 
 deemed to have waived the objection for non-compliance 
 with this rule, unless within twenty-four hours after 
 the receipt thereof he returns such papers to the party 
 serving the same, with a statement of the particular 
 objection to its receipt ; but this waiver shall not apply 
 to papers required to be filed or delivered to the court. 
 ( General Eule 19 ) . Section 796 of the code of civil pro- 
 cedure provides that the papers shall be plainly and 
 legibly written or printed in black ink upon durable 
 paper of good material and, if imprinted by typewriter, 
 such paper shall be of linen quality equal in weight to 
 
MOTIONS AND ORDERS. 251 
 
 sixteen pounds to the double cap ream of seventeen by 
 twenty-eight inches in size. The court will deny the 
 motion where the papers upon which it is based, are so 
 badly written or interlined, as to be illegible. {Henry^ 
 V. Bow, 20 How. Pr. 215 ; Johnson v. Casey, 28 How. Pr. 
 492). Where an action is pending, the papers should 
 be entitled in the action, but the objection that they are 
 not entitled cannot be taken for the first time on appeal. 
 {Watts V. Nichols, 19 Wk. Dig. 165). Copies of the affi- 
 davits and papers on which the motion is based, must 
 be served on the adverse party with the notice of motion 
 (General Kule 21) ; but if the motion is made upon 
 pleadings which have been served upon the party, or if 
 the papers to be used upon the motion have been served 
 upon him, or are in his possession, it is not necessary 
 to serve them again, but they must be referred to in the 
 notice of motion, and it must be stated that the motion 
 will be made upon them. {Deutermann v. Pollock, 36 
 App. Div. 522; Badger v. Gilroy, 21 Misc. 466; Newbury 
 V. Newbury, 6 How. Pr. 182; Van Benthuysen v. Stevens, 
 14 How. Pr. 70). The moving party can only read the 
 affidavits and papers which have been served, or which 
 are referred to in a notice of motion. {Bennett v. Pratt, 
 2 How. Pr. 77 ) . If the motion is heard on papers which 
 have not been served, it will be sufficient ground for 
 reversing the order granted on such papers. {Smith v. 
 Seattle, etc. Ry. Co., 47 St. Kep. 283; 19 Supp. 742). 
 Papers which have not been served cannot be read, unless 
 they have been in the possession of the adverse party 
 before or at the time the notice of motion was served. 
 {Campbell v. Grove, 2 Johns. Cas. 105). If the moving 
 party should discover new facts, which he desires to 
 present to the court upon the hearing of the motion, he 
 must serve supplementary affidavits, and postpone the 
 hearing. {Bergen v. Boerum, 2 Caines, 256). If the 
 moving party is surprised by the statements in the oppos- 
 ing affidavits, the court will sometimes allow the motion 
 to stand over, that he may serve new affidavits {Scher- 
 merhorn v. Van Voast, 5 How. Pr. 458, 459) ; but this 
 will not usually be allowed, unless the opposing affidavits 
 contain new matter in avoidance of, and not merely in 
 
252 PKACTICB. 
 
 < 
 
 answer to, the plaintiff's claim. {Powell v. Clark, 5 Abb. 
 Pr. 70 ; Jacobs v. Miller, 10 Hun, 230) . If the originals 
 of the motion papers are sworn to and signed, and con- 
 tain the jurat, it is not a fatal defect that the copies 
 do not show it. ( Barker v. Cook, 40 Barb. 254 ; Chatham 
 National Bank v. Merchants' National Bank, 1 Hun, 
 702). An affidavit once used does not become functus 
 officio, but may be used again without re-swearing. 
 (Mojarrieta v. Saenz, 80 N. Y. 547, 551). 
 
 AETIOLE II. 
 
 AFFIDAVITS AND PETITIONS. 
 
 SECTION. 
 
 1. Form and contents of affidavit. 
 
 2. Special requirements of certain affidavits. 
 
 3. Before whom affidavits may be taken. 
 Subd. 1. — Within the state. 
 
 Subd. 2. — Without the state to be used within it. 
 
 4. Petitions. 
 
 5. Deposition to be used on motion. 
 
 6. Opposing affidavits. 
 
 7. Replying affidavits. 
 
 iSec. 1. Form and Contents of Affidavit. 
 
 An affidavit should always be entitled in the case. 
 '{Baxter v. Seaman, 1 How. Pr. 51). If no action is 
 pending, the affidavit should not be entitled. {People v. 
 Tioga C. P., 1 Wend. 291). The title to the action in- 
 cludes the name of the court as well as the names of the 
 parties {Bowman v. Sheldon, 5 Sand. 657) ; but the want 
 of a title, or a defect in the title, of an affidavit does not 
 impair it, if it intelligibly refers to the action or special 
 proceeding, in which it is made. (Co. Civ. Proc. § 728). 
 It is essential that the venue should be stated in the 
 affidavit. ( Thompson v. Btirhans, 61 N. Y. 52, , 63 ) . 
 The omission to state it is a fatal defect. {Laing v. 
 Morse, 6 How. Pr. 394 ; Cook v. Staats, 18 Barb. 407 ; 
 SariJ V. Paine, 4 Supp. 897) . But if it is made to appear 
 by proof, outside the affidavit, that it was taken within 
 the jurisdiction of the officer whose name is signed to 
 it, the court may allow the jurat to be added by amend- 
 ment. {Babcock v. Euntzsch, 85 Hun, 33). If it ap- 
 
MOTIONS AND ORDERS. 253 
 
 pears upon the face of the affidavit that it is taken out- 
 side of the county in which the officer was authorized 
 to talie it, the court will not permit it to be read. {Davis 
 V. Rich, 2 How. Pr. 86 ; Sandland v. Adams, 2 How. Pr. 
 127; 8nydcr v. Olmsted, 2 How. Pr. 181). The name 
 of the deponent must be stated in the caption; but 
 where the paper purporting to be an affidavit taken in 
 judicial proceedings, indicates the proceeding in which it 
 is made, has a proper venue, is subscribed by the de- 
 ponent, and has a jurat in the usual form, and signed 
 by an officer having due authority to administer an 
 oath, the omission of the name of the deponent in the 
 body of an instrument is not, as a general rule, a fatal 
 defect, and the paper is effectual as an affidavit. [Peo- 
 ple V. Sutherland, 81 N. Y. 1). Where more than one 
 deponent makes the affidavit, it should appear that each 
 was sworn severally. All the facts in the affidavits 
 should be stated after the words "being duly sworn;" 
 all before that is mere recital and is not deemed to be 
 any part of the facts sworn to in the affidavit. [Htaples 
 V. Fairchild, 3 N. Y. 41; Payne v. Young, 8 N. Y. 158). 
 Facts only are to be stated in an affidavit and not infer- 
 ence, or arguments, or conclusions. (Poioell v. Kane, 
 5 Paige, 265, 268). In stating the facts, it is the better 
 way to distinguish between those which are stated upon 
 knowledge, and those stated upon information and 
 belief. In collateral proceedings, or matters of practice, 
 where orders are applied for, judges frequently act on 
 facts stated on information and belief. All that is re- 
 quired upon such proceedings is, that the information 
 furnished by the affidavit shall be such that a person of 
 reasonable prudence would be willing to accept and act 
 upon it. The mere averment, however, of a fact, upon in- 
 formation and belief, without more, is not sufficient, but 
 the sources of the information and the grounds of the be- 
 lief must be stated, so that the judicial officer to whom the 
 affidavit is presented, may judge M^hether the informa- 
 tion and belief have a proper basis to rest on, and if he 
 is satisfied that they have, then the affidavit is sufficient 
 to invoke his jurisdiction and be submitted to his de- 
 termination. The rule which requires an affidavit to 
 
254 
 
 PRACTICE. 
 
 state the sources of the information and the ground 
 of belief, implies that, with such statements, the aflldavit 
 will be sufficient, although the affiant has not personal 
 knowledge of the principal facts necessary to be estab- 
 lished. (Buell V. Van Camp, 119 N. Y. 160). Such 
 affiants should, also, show that affidavits cannot be 
 obtained from the persons from whom the affiants profess 
 to have derived their information. {Steuhen Co. BTc. v. 
 Alherger, 78 N. Y. 252) . There has grown up a doctrine 
 in the first department to the effect that absolute state- 
 ments in affidavits, which are presented on applications 
 for provisional remedies, will not be deemed to be based 
 upon personal knowledge in the absence of evidence in 
 the affidavit from which the inference can be drawn that 
 such personal knowledge existed {Hoorman v. Climax 
 Cycle Co., 9 App. Div. 579; Martin v. Aluminum etc. Co., 
 44 App. Div. 412 ) ; and such allegations are held to furn- 
 ish no proof of the facts alleged, although there is a posi- 
 tive averment of personal knowledge. {Tucker v. Good- 
 sell Co., 14 App. Div. 89). In several of the other de- 
 partments, the rule seems to be exactly the opposite — ■ 
 that, when a positive statement is made in an affidavit, 
 with no qualification, it is presumed to have been made 
 on an existing personal knowledge, unless it appears 
 affirmatively that such statements could not have been, 
 and were pot, made on such knowledge. {James v. 
 Richardson, 39 Hun, 399; app. dismissed, 102 N. Y. 731; 
 Pierson v. Freeman, 77 N. Y. 589 ; Patterson v. Delaney, 
 14 N. Y. Supp. 100 ; Lacker v. Dresher, 38 App. Div. 75 ; 
 Wicker v. Village of Elmira Heights, 42 App. Div. 426 ; 
 see, however, Shuler v. Birdsall Mfg. Co., 17 App. Div. 
 228, semble). For convenience, it is better that the 
 affidavit should be divided into paragraphs, each one 
 of which should be confined to a distinct portion of the 
 subject, and that every paragraph should be numbered, 
 but this mode of making affidavits is not required by the 
 rules. It is also better that the affidavit should be drawn 
 up in the first person; this is required by rule of the 
 English courts, but not in this state. It is necessary 
 that the affidavit should be signed by the deponent. 
 (.Hathaway v. Scott, 11 Paige, 173; Laimbeer v. Allen, 
 
MOTIONS AND ORDERS. 255 
 
 2 Sand. 648). In the early case of Jackson v. Virgil, 3 
 Johns. 539) , it was held that if the name of the deponent 
 appeared in the body of the affidavit, the signature was 
 not essential, and that the affidavit was good although 
 he did not sign it. This case was followed in the case 
 of MiUius V. Shafer, (3 Den. 60) ; but the latter case 
 was that of a deposition given orally before the justice 
 of the peace, and taken down by him, and the ruling 
 in that case is not in point in regard to affidavits. It 
 is believed that the case of Jackson v. Virgil, is overruled 
 by the two cases cited above; but it is to be noted that 
 the case was cited with approval in 1895, by the general 
 term of the third department in holding that, where a 
 petition was duly signed and the name of the official 
 who was to verify the petition recited in the affidavit 
 of verification, a failure to sign the latter did not render 
 the affidavit ineffective. {Peo. v. Camphell, 88 Hun, 
 547). The affidavit must be sworn to; it is indispens- 
 able that the oath should- be taken, and that it should 
 be taken before a proper officer. (Ladoto v. Groome, 1 
 Den. 429) . If the date of the jurat is essential, it should 
 appear. {Chase y. Edicards, 2. Wend.. 2'&&). Ordinarily, 
 however, the omission of the date of the jurat is a mere 
 formal error and will be disregarded. ( Griffin v. Barton, 
 20 App. Div. 512) . The official title of the person before 
 whom the affidavit is taken should always be given 
 (Jackson v. Stiles, 3 Gaines, 128) ; but if it is omitted, 
 the affidavit may still be prima facie good, and the bur- 
 den of showing that the officer had no authority to take it 
 lies upon the opposing party. (Hunter v. LeConte, 6 
 Cow. 728). The words "before me" should always ap- 
 pear in the jurat, and their omission has been held to 
 be fatal. (Regina v. Blowham, 6 Q. B. 528) . It will not 
 invalidate the affidavit, if there is added to the jurat the 
 words "to the best of deponent's knowledge, information 
 and belief," as the general riile is that an oath taken 
 before a competent officer verifies the truth, however 
 stated, according to the best knowledge, information 
 and belief of the affiant. (Pratt v. Stevens, 94 N. Y. 
 387). While it is ordinarily essential, of course, that 
 
 17 
 
256 PRACTICE. 
 
 the jurat should be signed by the officer administering 
 the oath, affidavits unsigned by such officer have been 
 held valid, where there was proof that they had been 
 actually verified. {Sage v. Stafford, 42 App. Div. 449). 
 
 Sec. 2. Special Requirements in Certain Affidavits. 
 
 Whenever an application is made ex parte on affidavit 
 to a judge or court for an order, the affidavit shall 
 state whether any previous application has been made 
 for such order, and, if made, to what court or judge and 
 what order or decision was made thereon, and what new 
 facts, if any, are claimed to be shown. For failure to 
 comply with this rule, any order made on such applica- 
 tion may be revoked or set aside. This rule shall apply 
 to proceedings supplementary to execution, and to every 
 application for an order or judgment made in any action 
 or special proceeding. (General Eule 25). The omis- 
 sion to comply with these rules is an irregularity, but 
 the court will not always refuse to make the order, or 
 vacate it when made, because of the omission. ( Skinner 
 V. Steele, 88 Hun, 307 ; Pratt v. Bray, 10 Misc. 445 ; Bean 
 V. Tonnelle, 24 Hun, 353 ; Wooster v. Bateman, 4 Misc. 
 431 ) . No order extending a defendant's time to answer 
 or demur shall be granted, unless the party applying for 
 such order shall present to the justice or judge to whom 
 the application shall be made, an affidavit of merits, 
 or proof that it has been filed, or an affidavit of the attor- 
 ney or counsel retained to defend the action that from 
 the statement of the case in the action made to him by 
 the defendant he verily believes that the defendant 
 has a good and substantial defense upon the merits to the 
 cause of action set forth in the complaint, or to some 
 part thereof. And the affidavit shall also state the cause 
 of action and the relief demanded in the complaint, 
 and whether any and what extension or extensions of 
 time to answer or demur have been granted by stipula- 
 tion or order, and where any extension has been had, the 
 date of issue shall be the same as though the answer had 
 been served when the time to answer first expired. 
 (General Eule 24). The order extending the time to 
 answer, made upon an affidavit which fails to contain 
 
MOTIONS AND ORDERS. 257 
 
 the facts required by this rule, is irregular. {Graham 
 V. Pincknci), 7 Robt. 147). In motions in which the 
 defendant asks for a favor at the hands of the court, or in 
 which the discretion of the court is invoked, it is neces- 
 sary that he make an affidavit of merits. Of course, the 
 making of an affidavit of merits may have a decided 
 effect upon some relief thereafter aslved, as a bill of 
 particulars, for example, {Wolff v. Kauffman, 65 App. 
 Div. 29 ) . It is advisable that the defendant should swear 
 to merits in every motion, but in motions to set aside pro- 
 ceedings for irregularity, an affidavit of merits is not re- 
 quired. {Depeyster v. Warne, 2 Caines, 45; HoiccU 
 V. Deniiiston, 3 Caines, 97). The rules and cus- 
 tom have prescribed a particular form of words 
 which must be used in an affidavit of merits, and 
 any serious deviation from that form is a fatal defect, 
 and it is well in all cases to adhere strictly to the form 
 prescribed. The affidavit of merits must always be 
 made by the defendant, unless a good excuse is shown. 
 (Gra. Pr. 252, 253; Mason v. Bidleman, 1 How. Pr. 62; 
 Oeib V. I card, 11 John. 82). Whenever it shall be neces- 
 sary to make an affidavit of merits, the deponent must 
 swear "that he has fully and fairly stated the case to 
 his counsel," giving the name and place of residence of 
 such counsel. ( General Rule 23 ) . He must also swea?" 
 "that he has a good and substantial defense on the 
 merits, as he is advised by his said counsel and verily 
 believes." {Meech v. Calkins, 4 Hill, 534; State Bank v. 
 OiJl, 23 Hun, 406; Swartwoat v. Hoage, 16 John. 3; 
 Brittan v. Peahody, 4 Hill, 61 ; Wharton v. Barry, 1 How. 
 Pr. 62) . If the affidavit is made by counsel, he need not 
 swear to advice. {Cromirell v. Van Rensselaer, 3 Cow. 
 346). When the defendant sets out in his affidavit of 
 merits the facts which constitute his defense, so that the 
 court can see that he has a good defense upon the merits, 
 he need not swear to the advice of counsel. {Wilkes v. 
 Hotchkiss, 5 John. 360). Where it was stated in the 
 affidavit, that the deponent had fully and fairly stated 
 "the facts of this case," or "his case," or "this case," it 
 was held sufficient. {Brownell v. Marsh. 22 Wend. 636; 
 Jordan v. Garrison, 6 How. Pr. 6). It is not thought 
 
258 PRACTICE. 
 
 necessary to refer to any of the large number of cases, 
 in which a particular form of words has been held in- 
 sufficient in an affidavit of merits; the cases will be 
 found in the first volume of Abbott's Digest at pages 
 56 and 57, and in a note to Brittan v. Peabody, (4 Hill, 
 64, 65 ) . Where an affidavit of merits has once been filed 
 and served, no other is necessary. But on any subscT 
 quent motion where an affidavit of merits is needed, such 
 service and filing must be shown by affidavit. (General 
 Rule 23). 
 
 Sec. 3. Before Whom Affidavits may be Taken. 
 
 Subdivision 1. — Within the State. 
 
 An oath or affidavit, required or authorized by law; 
 except an oath to a juror or a witness upon a trial, an 
 oath of office, and an oath required by law to be taken 
 before a particular officer, may be taken before a judge, 
 clerk, deputy clerk, or special deputy clerk, of a court, 
 a notary public, mayor, justice of the peace, surrogate, 
 special county judge, special surrogate, county clerk, 
 deputy county clerk, special deputy county clerk, or 
 commissioner of deeds, within the district in which the 
 officer is authorized to act; and when certified by the 
 officer to have been taken before him, may be used in 
 any court, or before any officer or other person. (Co. 
 Civ. Proc. § 842). The word "judge" used in this sec- 
 tion is defined to include a justice, surrogate, recorder, 
 justice of the peace, or other judicial officer. (Co. Civ. 
 Proc. § 3343, Sub. 8 ) . The affidavit should not be taken 
 before the attorney in the action, and one so taken 
 cannot be used on an application for a provisional 
 remedy. {Kuh v. Barnett, 6 Supp. 881). An affidavit 
 may be taken, however, before the counsel in the case 
 ( Willard v. Judd, 15 Johns. 531 ) ; or before the partner 
 of the attorney. (Hallenback v. WMtaker, 17 Johns. 
 2) . An affidavit taken before a notary public or a com- 
 missioner of deeds, is presumptively good, although he 
 omits to add to his title the county in which he is ap- 
 pointed. It would be presumed that the affidavit was 
 taken in the county where he had jurisdiction to take 
 
MOTIONS AND ORDERS. 2o9 
 
 it. (Crosier v. Cornell Steam Boat Co., 27 Hun, 215; 
 affd. without opiniou, 92 N. Y. 626 ; Peo. v. Cady, 105 
 N. Y. 299). 
 
 Subdivision 2. — Without the State to be Used 
 Within it. 
 
 An oath or affidavit required, or which may be re- 
 ceived, in an action, special proceeding, or other matter, 
 may be taken without the state, except where it is other- 
 wise specially prescribed by law, before an officer 
 authorized by the laws of the state, to take and certify 
 the acknowledgment and proof of deeds, to be recorded 
 in the state; and when certified by him to have been 
 taken before him, and accompanied with the like certifi- 
 cates, as to his official character and the genuineness 
 of his signature, as are required to entitle a deed ac- 
 knowledged before him to be recorded within the state, 
 may be used as if taken and certified in this state, by 
 an officer authorized by law to take and certify the same. 
 (Co. Civ. Proc. § 844). The word "state" used in this 
 section refers to this state (Turtle v. Turtle, 31 App. 
 Div. 49; Ross v. Wlgg, 34 Hun, 192) ; and this section 
 applies not only to affidavits taken in other states of the 
 union, but those taken in foreign countries. ( Id. ) . An 
 enumeration of the officers who may take affidavits 
 without this state to be used within it, may be found in 
 sections 249 and 250 of the Eeal Property law (Chap. 
 547, L. 1896). As to the proper form for clerk's certifi; 
 cate, see Turtle v. Turtle (31 App. Div. 49) . An affidavit 
 taken in any other country under this section is suffi- 
 cient, although the jurat does not state that the officer 
 taking it had knowledge or satisfactory evidence that 
 the person who made it was the individual described in, 
 or who executed, it. (Ross v. ^Vigg, supra). The 
 authentication to an affidavit thus taken is sufficient, 
 if it complies substantially with the requirements of 
 the statutes, although it is not a literal compliance 
 with it. (Man. & Mer. Bank v. Cotvden, 3 Hill, 461; 
 Ross v. Wigg, supra). The omission of the certificate 
 as to the authority of the officer taking the affidavit, 
 required by section 260 of the Eeal Property law, is a 
 
260 
 
 PRACTICE. 
 
 fatal defect. {Turtle v. Turtle, 31 App. Div. 49; Cream 
 Citj) Furniture Co. v. 8quier, 2 Misc. 438). It has been 
 held that the omission of the certificate may be supplied 
 by amendment {Laivton v. Kiel, 51 Barb. 30), but this 
 case has been criticised. (See Cream City Furniture 
 Co. V. Squier, 2 Misc. .438). It would seem that the 
 former case is sound law. {Faiocett v. Vary, 59 N. Y. 
 597). The objection that the affidavit is not properly 
 authenticated is waived if not taken at the hearing. 
 {Plympton v. Bigelow, 11 Abb. N. C. 180; afifd. 13 Abb. 
 N. 0. 173; Rogers v. Rogers, 54 App. Div. 195). 
 
 Sec. 4. Petitions. 
 
 In cases where the moving party is the affiant, the 
 facts are sometimes brought before the court by peti- 
 tion. In actions which are pending, this course is not 
 advisable, but it is better to use an affidavit. Where, 
 however, the facts are presented to the court for the pur- 
 pose of commencing a special proceeding, it is perhaps 
 better to do so by petition than by affidavit. When a 
 petition is used, it should be addressed to the court or 
 judge to whom the application is to be made. {Hatter 
 of Bookhout, 21 Barb. 348). In regard to the title and 
 mode of stating the facts and the signature, the same 
 rules apply to petitions as apply to affidavits. The 
 petition should contain, after the statement of facts, 
 a prayer for the relief to which the petitioner 
 deems himself entitled. It is not always necessary to 
 be verified, but where a verification is necessary, it 
 should be in the same form as the verification prescribed 
 for a pleading, to which reference may be made. 
 
 Sec. 5. Deposition to be Used on Motion. 
 
 Where a party intends to make or oppose a motion in a 
 court of record, other than a court specified in subdivi- 
 sion sixteen, seventeen, eighteen, or nineteen, of section 
 two of the code, and it is necessary for him to have the 
 affidavit or deposition of a person, not a party, to use 
 upon the motion, the court, or a judge authorized to make 
 an order in the cause may, in its or his discretion, make 
 an order appointing a referee to take the deposition of 
 that person. The order must be founded upon proof by 
 
MOTIONS AND ORDERS. 261 
 
 affidavit, that the applicant intends to make the motion, 
 or that notice of a motion has been given, which the 
 applicant intends to oppose. The affidavit must specify 
 the nature of the motion, and must show that the affi- 
 davit or deposition is necessary thereon, and that such 
 person has refused to make an affidavit of the facts, 
 which the applicant verily believes are within his knowl- 
 edge. If the defendant has appeared in the action and 
 the application is made on the part of the plaintiff, at 
 least one day's notice of such application must be given 
 to the attorney of the defendant, and if the application 
 is made on the part of the defendant, similar notice must 
 be given to the attorney of the plaintiff. The person to 
 be examined may be subpoenaed, and compelled to at- 
 tend as upon the trial. The deposition must be taken by 
 question and answer and be subscribed by the witness, 
 and must be delivered to the attorney for the party who 
 procured the order, unless the order provides for a differ- 
 ent disposition thereof. ( Co. Civ. Proc. § 885 ) . Chapter 
 946 of the Laws of 1895 so altered the numbering of 
 section 2 of the code that there are no subdivisions 16, 
 17 and 18; section 885 applies, therefore, to all courts 
 of record. It will be noticed that this section does 
 not authorize taking the deposition of a party. 
 {King V. Leighton, 58 N. Y. 383; Stuhbs v. Stubbs, 
 7 St. Eep. 282). The power of the court to com- 
 pel a deposition for the purposes of the motion is 
 derived entirely from the statute. {Bacon v. Magee, 
 7 Cow. 515). An application for an attachment is 
 a motion within this section. {Allen v. Meyer, 73 N. 
 Y. 1). An application for judgment in a foreclosure 
 action is also a motion within this section. {Eberle v. 
 Krebs, 50 App. Div. 450). Unless notice of the motion 
 is given to the opposite party, he has no right to appear 
 upon the hearing, or to interfere in it, or to move to 
 vacate the order {MeCiie v. Tribune Association, 1 Hun, 
 469) ; unless it appears that the order is irregular, and 
 that the irregularity has resulted in injury to the oppo- 
 site party. {Ramsey v. Gould, 57 Barb. 398; Brooks v. 
 Schults, 3 Abb. N. S. 124) . The affidavit must state the 
 subject on which the deposition is desired, and it must 
 
262 
 
 PEACTICE. 
 
 show the facts which are claimed to be within the 
 knowledge of the witness [Dauchy v. Miller, 16 Abb. Pr. 
 N. S. 100; Williams v. ^¥estern Union Tele. Co., 3 Civ. 
 Proc. Rep. 448) ; and the facts showing that the affidavit 
 is necessary. [Matter of Bannister, 1 Law Bull. 9; 
 Cockey v. Hurd, 36 Super. 42). It is not sufficient to 
 state in the affidavit simply that the deposition is neces- 
 sary on the motion. The proper and usual course, be- 
 fore making the a])plication under this section, is to 
 draft an affidavit and to present it to the party whose 
 deposition is desired, and request him to execute it 
 {Fisk V. Chicago etc. R. R. Co., 3 Abb. Pr. N. S. 430) ; 
 but the presentation of the affidavit is waived, if the 
 witness, on being asked to make it, refuses to do so 
 without asking that it be presented to him. ( Id. ; Erie 
 Raiiicay Co. v. Gould, 14 Abb. Pr. N. S. 279). If it 
 appears that a person has repeatedly refused to make an 
 affidavit, until he has had an opportunity to consult 
 counsel, that is a sufficient refusal to sustain the order. 
 (Rogers v. Durant, 2 T. & C. 676; appeal dismissed, 56 
 N. y. 669). Where a person to be examined, as pre- 
 scribed in this article, is a resident of the state, he shall 
 not be required to attend in any county, other than 
 that in which he resides, or where he has an office for 
 the regular transaction of business, in person. Where 
 he is not a resident he shall not be required to attend 
 in any other county than that wherein he is served with 
 a subpoena, unless for special reasons stated in the affi- 
 davit, the order otherwise directs. (Co. Civ. Proc. § 
 886 ) . A witness who is irregularly ordered to be exam- 
 ined may move to vacate the order, although he is in 
 contempt for disobedience to it (Spratt v. Huntington, 
 2 Hun, 341 ) ; but after he has appeared under the order, 
 he cannot move to vacate it, for the reason that the 
 affidavit on which it was granted, was insufficient. (Me- 
 Cue V. Tribune Association, 1 Hun, 469 ) . An examina- 
 tion will not be arrested after it has been commenced, 
 because the witness makes an affidavit on the subject, 
 unless it appears that the affidavit is full and frank on all 
 matters in question within the knowledge of the witness. 
 (Fisk V. Chicago R'y. Co., 3 Abb. N. S. 430). A fishing 
 
MOTIONS AND ORDERS. 263 
 
 examination is not allowed, nor will an examination of 
 books and papers be permitted under this section, (Id.; 
 Wallace v. Baring, 2 App. Div. 501) ; nor can the wit- 
 ness be examined on the general merits of the action. 
 {Dmivhy v. Miller, 16 Abb. Pr. N. S. 100). If the wit- 
 ness refuses to answer a proper question, he may be 
 punished for contempt. {C'larL v. Brooks, 26 How. Pr. 
 254). 
 
 Sec. 6. Opposing Affidavits. 
 
 If the facts stated in the moving papers are not ad- 
 mitted as stated, it will be necessary for the opposing 
 party to prepare affidavits to oppose the motion, show- 
 ing the facts as he claims them to be. These affidavits 
 need not be served upon the opposite party. As to the 
 form and contents of them, and the manner of their 
 execution, it is sufficient to refer to what has been said 
 in regard to the affidavits in the moving papers. A 
 denial in the opposing affidavits of knowledge or in- 
 formation as to the truth of the facts alleged in the mov- 
 ing affidavits, is not sufficient to raise an issue as to 
 such facts. {Simmons v. Craig, 137 N. Y. 550). 
 
 Sec. 7. Replying Affidavits. 
 
 The moving party will not be allowed to submit reply- 
 ing affidavits unless leave to do so is obtained. {Fergu- 
 son V. Common toealth Rubber Co., 74 St. Eep. 31). For 
 a statement as to when leave will be granted see article 
 VI, section 3, infra. 
 
 ARTICLE III. 
 
 NOTICE OF MOTION. 
 
 The notice of motion in the supreme court must be 
 for the first day of the term, except in the first and 
 second districts and motions noticed to be heard in Erie 
 county, and shall not be for a later day, unless sufficient 
 cause be shown for not giving notice on the first day, 
 and the reasons must be given in the affidavits. (Gen- 
 eral Eule 21). A notice for a day later than the first 
 is good, if sufficiently excused. {Walrath v. Killer, 2 
 
264 PRACTICE. 
 
 Gode Rep. 129). The notice of motion must be entitled 
 in the action. (Clickman y. Clickmaii, 11^. Y. Qll). It 
 must be accompanied with copies of the affidavits and 
 papers on wliich the motion is to be made, or if they 
 have previously been served, it should refer them (Gen- 
 eral Rule 21; Art. 1, § 3, supra) ; and papers which are 
 not served with the notice of motion, or referred to, 
 will not be permitted to be read upon the hearing by the 
 moving party. The notice should specify the time and 
 place at which the motion will be made, and a time cer- 
 tain should be stated. {Crane v. Crofoot, 1 How. Pr. 
 191). In stating the time the words "or as soon there- 
 after as counsel can be heard," are not necessary to be 
 inserted. {Anon. 1 Johns. 143). If the motion is for 
 irregularity, the notice must specify the irregularity 
 complained of. ( General Rule 37 ) . It is not sufficient 
 to state it in the affidavits. {Montrait v. Hutchins, 49 
 How. Pr. 105). A non-compliance with this require- 
 ment is a good ground for the denial of the motion. 
 {Oliver v. French, 82 Hun, 436; Lewis v. Graham, 16 
 Abb. Pr. 126). All objections must be made in one 
 motion. {Mills v. Thurshy, 11 How. Pr. 114). The 
 relief sought for in the motion should be clearly and 
 plainly stated in the notice. If the relief is in the 
 alternative, each alternative should be clearly specified. 
 If costs of the motion are desired, they should be asked 
 for. A prayer for general relief should always be added. 
 Under this prayer, any relief consistent with the facts 
 proved may be granted. {People v. Nostraud, 46 N. Y. 
 375;Bissch v. N. Y. C. & E. R. R. R. Co., 67 Barb. 385; 
 Boston Nat. Bl>. v. Armour, 50 Hun, 176). Costs, how- 
 ever, will not be given upon a default under a prayer for 
 general relief; {Northrup v. VanDeusen, 5 How. Pr. 
 134). Although there is no prayer for general relief 
 in the notice, the 'court may, upon a hearing of the 
 motion, both parties being present, give such relief 
 beyond that asked for, as is proper, if it is fairly within 
 the relief sought and germane to it. {King v. Barnes, 
 51 Hun, 550). A notice must be served eight days 
 before the hearing, if served personally (Co. Civ. Proc. 
 § 780 ) , except that, where the attorneys for the respec- 
 
MOTIONS AND ORDERS. 265 
 
 tive parties reside or have tlieir offices in the same city 
 or village, only five days notice is required. (General 
 Rule 37). If served by mail, the time is double that 
 specified above. (Co. Civ. Proc. § 798). 
 
 ARTICLE IV. 
 
 ORDERS TO SHOW CAUSE. 
 
 If it is not practicable to give notice of the motion 
 for the length of time required the court will sometimes 
 in its discretion {Sixth Ave. R. B. Co. v. Gilbert Ele- 
 vated B. B. Co., 71 N. Y. 430), for good cause shown, 
 make an order to show cause why the relief sought 
 should not be granted ; and, in the order, will direct that 
 service thereof, less than such time shall be sufficient. 
 (Co. Civ. Proc. § 780). Such an order shall in no cause 
 be granted, unless a special and sufficient reason for 
 requiring a shorter notice than eight days, shall be 
 stated in the papers presented, and the party shall, in 
 his affidavit, state the present condition of the action, 
 and whether at issue, and, if not yet tried, the time ap- 
 pointed for holding the next special or trial term where 
 the action is triable. An order to show cause shall also 
 (except in the first judicial district) be returnable only 
 before the judge who grants it, or at a special term ap- 
 pointed to be held in the district in which the action is 
 triable. ( General Rule 37 ) . The order to show cause is 
 only a short notice of motion. It does not change the 
 order of hearing, nor does it indicate any opinion of the 
 court. {N. Y. Harlem B..B. Co. v. The Mayor, 1 Hilt. 
 562; Thompson v. Erie By. Co. 9 Abb. Pr. N. S. 233). 
 The requirements of the notice of motion as to the serv- 
 ice of papers, and the reference to the papers to be used 
 upon the motion, must be complied Avith in the order to 
 show cause; and where the motion is for irregularity, 
 the irregularity must be specified in the order. (Gen- 
 eral Rule 37 ; Skinner v. Noyes, 7 Robt. 228) . The order 
 may be made by the court in which the action is triable, 
 or a judge of that court, or the county judge of the county 
 in which the action is triable, or in which the attorney 
 
266 ruACTiCE. 
 
 for the plaintiff resides. (Co. Civ. Proc. § 780). It 
 may be made by any judge or special term in any part 
 of the state, if it is made returnable at the proper 
 special term. {Peo. v. Bd. of Supervisors, 53 St. 
 Rep. 796; affd. without opinion, 139 N. Y. 656). The 
 order is discretionary. Usually where an order to show 
 cause has been granted, the court before which it is re- 
 turnable will not examine into the grounds of it, or the 
 propriety of granting it. If no reasons are given in an 
 affidavit, for an order to show cause, why less than eight 
 days' notice should be required, the objection must be 
 taken at the hearing of the motion, or it is waived. 
 ( Wooster v. Bateman, 4 Misc. 431) . But the court hear- 
 ing the motion may examine into the propriety of the 
 granting of such an order (Proctor v. Soulier, 82 Hun, 
 353) ; and it may be vacated or set aside or revoked by 
 the appellate court. (People v. Nichols, 79 N. Y. 583). 
 It must be made returnable on the first day of the term, 
 except in the first and second districts and motions 
 noticed to be heard in Erie county (General Rule 21), 
 unless reason is shown otherwise. (Power v. Village of 
 Athens, 19 Hun, 165). If the order to show cause is 
 made, and service less than eight days is directed, it will 
 not be necessary to state that that service will be suffi- 
 cient, as that will be assumed from the fact that such 
 service is directed to be made. The order must be served 
 in the way prescribed, or it will be vacated. (Marcele 
 V. Saltzman, 66 How. Pr. 205). 
 
 ARTICLE V. 
 
 STAY OF PROCEEDINGS. 
 
 If it is necessary to stay proceedings in the action for 
 any purpose until the motion is heard, the stay may be 
 granted by the court, or by a judge. A stay of proceed- 
 ings in the action can only be granted until some appli- 
 cation for relief can be made. (Bank of Genesee v. 
 Spencer, 15 How. Pr. 14 ; Waring v. Yale, 1 Hun, 492 ) . 
 It must be accompanied with the notice of motion, or it 
 will not be operative, and will be vacated. (Roosevelt v. 
 
MOTIONS AND OEDERS. 267 
 
 Fulton, 5 Cow. 438) . An order staying proceedings may 
 be granted by the court, until the hearing and decision 
 of the motion, although thereby proceedings may be 
 stayed for more than twenty days {Harris v. Clark, 10 
 How. Pr. 415) ; but an order to stay proceedings for a 
 longer time than twenty days, cannot be made by a judge 
 out of court, except to stay proceedings under an order 
 or judgment appealed from, or where it is made upon 
 notice of the application to the adverse party, or in cases 
 where special provision is otherwise made by law. (Co. 
 Civ. Proc. § 775). Under this section a judge out of 
 court cannot grant successive stays, so that the whole 
 stay will amount to more than twenty days. (Sales v. 
 Woodhi, 8 How. Pr. 349) . As we have seen, a judge out 
 of court exercises only such power as is given to him by 
 the statute, and he has no other powers. It would seem, 
 therefore, that if a judge out of court granted an order, 
 without notice, staying proceedings in the action for 
 more than twenty days, either by one order or by suc- 
 cessive orders, his action would be beyond his jurisdic- 
 tion, and be void and might be disregarded, and so it 
 has been held. {Bangs v. Selden, 13 How. Pr. 374; 
 Spencer v. Barber, 5 Hill, 568 ; Marvin v. Lewis, 12 Abb. 
 Pr. 482). The distinction seems to be, that if a judge 
 has jurisdiction to make the order, it must be obeyed un- 
 til vacated, although it may be erroneous or irregular 
 {Roosevelt v. Fulton, 5 Cow. 438; Gould v. Root, 4 Hill, 
 554) ; but if he had no jurisdiction to make the order, it 
 may be disregarded and treated as a nullity. The proper 
 order in such a case, is that proceedings in the action 
 shall be stayed until the hearing and decision of the mo- 
 tion; and if the order is obtained from the court, that 
 will be sufficient. And so it will be sufficient, if the mo- 
 tion is noticed to be heard within twenty days from the 
 time of the making of the order. But if the order is to 
 be obtained from a judge, and the motion is not to be 
 heard until more than twenty days after the order is 
 made, the usual course is to obtain from the judge, upon 
 the motion papers, an order to show cause why proceed- 
 ings should not be stayed until the hearing and decision 
 of the motion, and staying proceedings in the action 
 
268 
 
 PRACTICE. 
 
 until the return of the order to show cause. No order, 
 except in the first judicial district, served after the ac- 
 tion shall have been noticed for trial, if served within 
 ten daj^s of the trial term, shall have the effect to stay 
 proceedings in the action, unless niade at the term where 
 such action is to be tried, or hj the judge who is ap- 
 pointed, or is to hold such trial term, or unless such stay 
 is contained in an order to show cause returnable on the 
 first day of such term, in which case it shall not operate 
 to prevent the subpoenaing of witnesses, or placing the 
 case on the calendar. (General Rule 37). No order to 
 stay proceedings for the purpose of moving to change 
 the place of trial shall be granted, unless it shall appear 
 from the papers that the defendant has used due dili- 
 gence in preparing the motion for the earliest practi- 
 cable day after issue joined. Such order shall not stay 
 the plaintiff from taking any step, except subpoenaing 
 witnesses for trial, without a special clause to that 
 effect. (General Rule 48). 
 
 
 ARTICLE VI. 
 
 
 PRACTICE AFTER THE NOTICE, 
 
 3TK 
 1. 
 
 Countermanding. 
 
 2. 
 
 3. 
 
 4. 
 
 Hearing. 
 New proofs. 
 Default. 
 
 5. 
 
 Rehearing. 
 
 Subd. 1. — Renewal of contested motions. 
 
 6. 
 
 Subd. 2. — Renewal of ex-parte applications, 
 Reargument. 
 
 Sec. 1, Cotintermanding. 
 
 If, after the notice has been given, the object for which 
 it is given is attained so that the party giving it becomes 
 entitled to the relief, the notice may be countermanded 
 without costs {Lisher v. Parmelee, 1 Wend. 22) ; other- 
 wise, it cannot be so countermanded as to deprive the 
 opposite party of the right of attending to oppose and 
 having the motion denied with costs. ( Bates v. Jaines, 
 IDuer. 668). 
 
MOTIONS AND ORDERS. 269 
 
 Sec. 2. Hearing. 
 
 Usually the order of hearing is that the moving party 
 first reads his papers, and if the opposing party has affi- 
 davits upon his side of the case, he reads them immedi- 
 ately afterwards. Each party should become acquainted 
 with the contents of his papers before the hearing. The 
 moving party then opens the argument, is answered by 
 the opposing party, and the moving party has the reply. 
 If either party desires to take any preliminary objections 
 to the papers presented by his opponent, he must take 
 them before the papers are read, or before the motion is 
 entertained upon the merits, or he will be deemed to 
 waive them {Wilei/ v. L. I. R. R. Co., 88 Hun, 177; 
 Roosevelt v. Dean, 3 Caines, 105) ; but the preliminary 
 objections may be reserved to be decided with the mo- 
 tion. {Lowher v. Mayor, 5 Abb. Pr. 325, 327, note). 
 If the notice is defective, the opposing party must appear 
 and oppose the motion on that ground, or he will be 
 deemed to waive the defect. {Hoyt v. Campbell, Cole- 
 man's Cases, 129). But one counsel will be heard upon 
 each side, upon the argument of motions, and not more 
 than one hour each, unless the court shall otherwise 
 order. (General Eule 47). 
 
 Sec. 3. New Proofs. 
 
 If justice requires it, the court may allow the motion 
 to statid over, for either party to present new affidavits 
 ( Shearman v. Hart, 14 Abb. Pr. 358 ) ; but that will not 
 be allowed to corrolborate the affidavits served by the 
 moving party. It is only done, when the affidavits read 
 upon the hearing contained new matter in avoidance, or 
 when it is evident that justice requires it. [Jacobs v. 
 Miller, 10 Hun, 230). The credibility of an affiant may 
 be impeached upon the hearing by affidavits ; but, in such 
 a case, the other party should be allowed to produce 
 counter-affidavits to sustain him. [Merritt v. Baker, 
 11 How. Pr. 456). When it is deemed advisable to per- 
 mit new proofs to be interposed, the usual course is to 
 postpone the motion, and allow new affidavits to be 
 served. The terms upon which this may be done are dis- 
 cretionary with the court. The court may, of its own 
 
270 PEACTICB. 
 
 motion, or upon the application of eitlier party, without' 
 the consent of the other, direct a reference to take proof, 
 of the facts, and to report to the court, either with or' 
 without the testimony, except where a motion arises' 
 upon the pleading. (Co. Civ. Proc. § 1015). The refer-; 
 ence upon a motion, however, is not usual, and it is only 
 ordered in very special cases. It is the duty of the court," 
 wherever possible, to decide the motion upon the affi- 
 davits presented. [Walmsley v. Horton & Co., 68 Hun, 
 549). The proceedings before the referee do not super- 
 sede the affidavits which are before the court on the mo- 
 tion; such proceedings merely afford an opportunity to 
 cross-examine affiants and produce additional proof. 
 ( Woodtvard v. Miisgrave, 14 App. Div. 291 ) . The court 
 is not bound by the facts found by the referee. (Mar- 
 shall V. Meech, 51 N. Y. 140 ) . Upon such a reference, the 
 court has power to order either party to produce any of 
 the affiants to be cross-examined by the adverse party, 
 and it may direct that the testimony of the witness shall 
 not be taken by commission. [Stubbs v. Ripley, 39 Hiin, 
 620) . The court cannot, upon the hearing of the motion, 
 compel the adverse party to appear and be examined 
 orally. {Meyer v. Lent, 7 Abb. Pr. 225). 
 
 Sec. 4. Default. 
 
 When a motion is reached in its order, if there is no 
 opposition, the moving party may take an order for the 
 relief asked for in his notice, upon proof of due service 
 of the notice and papers, unless the' court otherwise di- 
 rect. ( General Eule 37 ) . Where the rules prescribe a 
 special order in which motions shall be heard, defaults 
 can only be taken at the close of that order of business. 
 Upon a default, the court will look no further than to 
 see that the proof of service is in due form. {Soyt v. 
 Campbell . Coleman's Cases, 129). If the proof of serv- 
 ice is insufficient, the motion will not be granted. (JacJc- 
 ^on V. Giles, 3 Caines, 88). Upon a default, only the re- 
 lief specially asked for in the notice of motion can be 
 granted. (General Eule 37 ; Jones v. Cook, 11 Hun, 231). 
 No other relief, except that specially asked for, can be 
 granted under the prayer for general relief. (Northrup 
 
MOTIONS AND ORDERS. 
 
 271 
 
 V. Van Deusen, 5 How. Pr. 134). , Costs will not be 
 granted on the default unless the notice of motion asks 
 for them. {Smith v. Fleischiiian, 17 App. Div. 532). If 
 the moving party does not appear, his adversary is en- 
 titled to an order denying the motion. (General Eule 
 37). The custom is to grant costs in such cases. A de- 
 fault taken on a motion is usually opened, as a matter of 
 course, on excuse shown {Thompson v. Erie Ry. Co. (No. 
 3) 9 Abb. Pr. N. S. 233) ; unless the party suffering the 
 default is guilty of laches in moving. {Matter of Peeka- 
 moose Fishing Club, 8 App. Div. 617). The terms of 
 opening the default are always discretionary with the 
 court. 
 
 Sec. 5. Rehearing. 
 
 Subdivision 1. — Renewal of Contested Motions. 
 
 A motion once contested is final upon the question in- 
 volved, and cannot be renewed on the facts then existing, 
 without leave of the court. {Sheehan v. Garvalho, 12 
 App. Div. 430; Klumpp v. Gardner, 44 Hun, 515; Bel- 
 mont V. Erie R'y. Co., 52 Barb. 639; Willet v. Fayer- 
 weather, 1 Barb. 72 ) . This is a mere rule of practice to 
 avoid confusion, and the question of renewal is entirely 
 in the discretion of the court. {Riggs v. Pursell, 74 N. 
 Y. 370). The court will not usually grant leave to re- 
 new, unless upon facts which have arisen or come to the 
 knowledge of the party moving, since the first motion 
 was heard. (Id.). If it appears that the merits were 
 not fully shown on the first motion, or there is anything 
 to excite suspicion of unfairness, or belief that the 
 party was taken by surprise, leave will usually be grant- " 
 ed. (i¥*;fc/ie// V. JL/Ze«. 12 Wend. 290). If the motion is 
 denied upon technical grounds, without a hearing upon 
 the merits, leave to renew is frequently reserved in the 
 order denying the motion. {Dollfus v. Frosch, 5 Hill, 
 493; Devlin v. Hope, 16 Abb. Pr. 314). The court may 
 give leave to renew upon the same papers, but that will 
 rarely be done, and only where it is clear that it is in 
 furtherance of justice. {White v. Munroe, 33 Barb. 
 
 18 
 
272 PRACTICE. 
 
 650). The motion to renew should be made to the same 
 judge, or to a court held by the same judge. {People v. 
 National Trust Co., 31 Hun. 20, 25 ; Averell v. Barber, 44 
 St. Rep. 542; 18 Supp. 81). Unless leave to renew has 
 been granted, it is error for a judge to entertain a mo- 
 tion which has been denied by another judge. {Talcott 
 V. Burnstine, 13 St. Rep. 552). The motion should be 
 made upon an affidavit stating the reasons for asking 
 the renewal. It is common to join with the notice of 
 motion for leave to renew, a further notice, that, if leave 
 to renew is given, the motion will be made at the same 
 term. (Fowler y. Huher, 7 Hobt. 52). Where the new 
 motion is made upon a state of facts, which has arisen 
 since the first motion was decided, or upon a property 
 right distinct from that involved in the first motion, it 
 may be made as a matter of right; and no motion for 
 leave to renew it, is necessary. ( Veeder v. Baker, 83 N. 
 Y. 156; Steuben Go. Bank v. Alberger, 61 How. Pr. 228; 
 Noonan v. N. Y., L. E. & TF. R. R. Co., 68 Hun. 387). 
 The fact that an appeal from the first order is pending, 
 or that the first order has been affirmed, will not prevent 
 granting leave to renew [Belmont v. Erie R'y Co., 52 
 Barb. 639 ; Riggs v. Pur sell, 74 N. Y. 370) ; but a motion 
 to renew is a waiver of an appeal from the first order. 
 (Harris v. Brown, 93 N. Y. 390). And if it is made 
 pending the appeal, the appeal will be dismissed. (Har- 
 rison V. NeJhcr, 9 Hun, 127) . It must be borne in mind, 
 however, that there are provisions of the -code of civil 
 procedure allowing the renewal of motions without leave 
 of the court in cases of injunction, arrest and attach- 
 ment. (Haickins v. Pakas, 44 App. Div. 395). 
 
 Subdivision 2. — Renewal of ex parte Applications. 
 
 If an application for an order, made to a judge of the 
 court, or to a county judge, is wholly or partly refused, 
 or granted conditionally, or on terms ; a subsequent ap- 
 plication, in reference to the same matter, and in the 
 same stage of the proceedings, shall be made only to the 
 same judge, or to the court. If it is made to another 
 judge, out of court, an order granted thereupon must be 
 vacated by the judge who made it; or, if he is absent, or 
 
MOTIONS AND ORDERS. 273 
 
 otherwise unable to hear the application, by any judge of 
 the court, upon proof, by affidavit, of the facts. ( Co. Civ. 
 Proc. § 776 ) . This section refers only to ex parte ap- 
 plications made to a judge out of court, but is no limita- 
 tion on the powers of the court. {People v. Cooper, 57 
 How. Pr. 463). Whenever application is made ex parte 
 on affidavit to a judge or court for an order, the affidavit 
 shall state whether any previous application has been 
 made for such order, and, if made, to what court or judge 
 and what order or decision was made thereon, and what 
 new facts, if any, are claimed to be shown. For failure 
 to comply with this rule, any order made on such appli- 
 cation may be revoked and set aside. (General Rule 25) ~ 
 Where an application is made to the court for judgment^ 
 it cannot be withdrawn, without the express permission 
 of the court; and a subsequent application for judgment 
 shall not be made, at a term held by another judge, ex- 
 cept where the first application is so withdrawn; or 
 where the directions, given thereupon, require an act to 
 be done before judgment can be rendered; or where the 
 fact of the former application is stated, and the pro- 
 ceedings thereupon and subsequent thereto, are fully set 
 forth in the papers upon which the application is made. 
 (Co. Civ. Proc. § 777). A person making an application 
 forbidden by sections 776 and 777 with knowledge of the 
 previous application, shall be punished by the court for 
 a contempt. (Co. Civ. Proc. § 778). 
 
 Sec. 6. Beargument. 
 
 Strictly speaking, when a rehearing is asked upon the 
 same papers on which the first motion was made, it i» 
 said to be a motion for reargument. When the rehear- 
 ing is asked upon facts which have been omitted, or 
 which for some reason did not appear in the first papers, 
 it is said to be a renewal of the motion. Motions for a 
 reargument are not encouraged by the court, and are 
 rarely, if ever, granted, when the party moving has a 
 remedy by appeal from the order. {Bolles v. Duff, 56 
 Barb. 567). To obtain a reargument, it must clearly 
 appear that some material fact or principle of law which 
 would have required the motion to be decided the other 
 
274 
 
 PRACTICE. 
 
 way, was overlooked, mistaken, or misapprehended by 
 the court, {flatter of Crane, 81 Hun, 96 ; Bolles v. Duff, 
 supra; Wehh v. Groom, 6 Robt. 532 ; Holmes v. Rogers, 
 18 St. Rep. 652; 2 Supp. 41). 
 
 
 ARTICLE VII 
 
 
 ORDERS. 
 
 SECTION. 
 
 1. 
 
 What are orders. 
 
 2. 
 
 How drawn. 
 
 3. 
 
 Form and contents. 
 
 4. 
 
 Filing and entering. 
 
 o. 
 
 When the order takes effect. 
 
 6. 
 
 Notice of entry and service. 
 
 7. 
 
 Conditions. 
 
 8. 
 
 Vacating and modifying. 
 
 Sec. 1. What are Orders. 
 
 A direction of a court or judge, made as prescribed in 
 the code of civil procedure, in an action or special pro- 
 ceeding, must be in writing, unless otherwise specified 
 in a particular case. Such a direction, unless it is con- 
 tained in a judgment, is an order. (Co. Civ. Proc. § 
 767 ) . An entry by the clerk on the minutes of a direc- 
 tion that an action be referred is an order within the 
 meaning of this section. (Gerrity v. 8eeger, 163 N. 
 Y. 119). With few exceptions, all orders may be made 
 by the court. Certain classes of orders may be made 
 by judges out of court. The cases in which such orders 
 may be made, are particularly specified in the code, and 
 will be referred to as each kind of order is the subject 
 of discussion. The judges who may make orders out of 
 court are specified in Chap. 1, Art. 2, § 7, ante. 
 
 Sec. 2. How Drawn. 
 
 The orders should be drawn by the party who obtains 
 them. It is the duty of the attorney to draw the order 
 (Savage v. Relyea, 3 How. Pr. 276), and to see that the 
 order complies with the decision in every respect. (La 
 Farge v. Van Wagenen, 14 How. Pr. 57). If the order 
 is ex parte, it should always be submitted to the judge or 
 court, before it is signed or allowed. If the order is 
 
MOTIONS AND ORDERS. 275 
 
 made upon a contested motion, the party draN\'ing it 
 should, before presenting it to the judge, submit it to the 
 opposing party for examination. If there is any dis- 
 agreement as to its terms, it should be settled by the 
 judge, either at once, or afterwards, upon notice to the 
 opposing party. If the order is special or com_plicated in 
 its terms, a draft of the proposed order should be sub- 
 mitted to the opposing party, with notice of the settle- 
 ment. {Whitney v. Belden, 4 Paige, 140). Upon the 
 settlement of the order, the court may modify or add to 
 the decision as announced by him. {Post v. Cohh, 13 St. 
 Rep. 555 ) . If the order as entered does not comply with 
 the decision made by the court, the party aggrieved 
 should apply to have it corrected. {Hunt v. Wallis, 6 
 Paige, 371). Upon a motion to correct an order, the 
 court has no right to change the decision as made, or to 
 make a new order. {Siegrist v. Halloway, 7 Civ. Proc. 
 Rep. 58 ) . In drawing the order, it is necessary to com- 
 ply strictly with the directions of the court, as one that 
 does not do so will be vacated as irregular. ( Williams v. 
 Murray, 2 Abb. Pr. N. S. 292). 
 
 Sec. 3, Form and Contents. 
 
 If the order is made by the court, it should begin with 
 a caption, stating the term at which it is made, where 
 and when held, and by whom. If it is made by the judge, 
 there should be no caption, but the order should begin 
 with the title of the action. An irregularity in this re- 
 spect does not vitiate the order. {Phinuey v. Broschell, 
 19 Hun, 116 ; affirmed 80 N. Y. 544) . If the same order 
 is made in several actions, separate orders should be 
 entered in each action, and it is not proper to enter 
 one order entitled, "in all the actions." {August v. 
 Fourth Nat. Bank, 31 St. Rep. 85; 9 Supp. 270). All 
 papers used or read on the motion on either side, shall 
 be recited in the order. ( General Rule 3 ) . This rule is 
 not satisfied by the recital that the order was made 
 upon "all the papers and proceedings in the action." 
 {Hobart v. Hohart, 85 N. Y. 637) ; nor upon "all the 
 pleadings and proceedings in this action." {Southack v. 
 Southack, 61 App. Div. 105) . As an appeal, if taken from 
 
276 PRACTICE. 
 
 the order, can only be heard upon the papers used when 
 the order was made (Co. Civ. Proc. § 1353), and the 
 court will look at the order itself to ascertain what those 
 papers were, it can readily be seen that this requirement 
 is quite important. A special term, held by another judge 
 than the one who made the order, should not give direc- 
 tions as to what should be contained in the printed 
 papers on appeal, and permit any to be left out which 
 were used when the order was made. {Manhattan Ry. 
 Co. V. Taher, 7 Misc. 347 ) . Orders granted on petitions, 
 or relating thereto, shall refer to such petitiojis 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 unneces 
 sarily. (General Kule 27) . If any preliminary or other 
 formal objections have been taken at the hearing and 
 ruled upon by the court, and it is desired to review them 
 upon appeal, they should appear in the recitals of the 
 order. [Walts v. Nichols, 32 Hun, 276; Merritt v. 
 Thompson, 1 Hilt. 550 ) . The order as made should fol- 
 low the recitals, and should be clearly and concisely ex- 
 pressed, and should, in all respects, follow the direction 
 of the court. It is not usual to state in the order the 
 grounds upon which it is made ; nor is it necessary to do 
 so ( Glines v. The Supreine Sitting of Iron Hall, 50 St. 
 Rep. 281 ; 21 Supp. 543 ) ; but, as the order itself can only 
 be referred to for the grounds which cannot be qualified 
 by the opinion (Fisher v. Gould, 81 N. Y. 230), and the 
 right to appeal from an order sometimes depends upon 
 the reasons for making it, in such cases, it is proper that 
 the grounds, upon which the order is made, should be 
 expressed in the order. Such a case exists where a mo- 
 tion is denied by the court for the want of power ( Tilton 
 V. Beecher, 59 N. Y. 176) ; or where, for some other rea- 
 son, the motion was decided without passing upon the 
 merits; but, ordinarily, the court will not permit the 
 grounds upon which the order is made, to be stated in it, 
 If the order is made by the judge, it should be signed by 
 him. If it is a court order, it must be certified by the 
 clerk. When the order is drawn in court, at the time at 
 which it is made, it is not necessary, in ordinarv cases, 
 
MOTIONS AND ORDERS. 277 
 
 to present it to the court for allowance, before having it 
 certified by the clerk ; but if it is drawn or made out of 
 court, it must, before being certified by the clerk, be pre- 
 sented to the judge, who places upon it a direction for 
 the clerk to enter, with his initials. 
 
 Sec. 4. Filing and Entering. 
 
 At the time of signing an order made by him, the 
 judge usually indorses, or in some way certifies on the 
 back of each paper used in making it, a minute that it 
 was read on granting the order, with the date. The 
 clerk on certifying a court order, puts a like minute or 
 direction to file on each paper used on making the order, 
 which has not already been filed. ( General Rule 3 ) . If 
 made upon notice, the order must be entered and the 
 papers filed by the prevailing party, within ten days 
 after the delivery to him of the rough minutes and papers 
 by the clerk, or the order may be set aside as irregular. 
 (General Rule 3). An order or judgment directing the 
 payment of money, or affecting the title to the property, 
 if founded on petition, where no complaint is filed, may, 
 at the request of anj party interested, be enrolled and 
 docketed, as other judgments. (General Rule 27) . It is 
 the duty of each attorney reading the aflfldavits, upon 
 making or opposing a motion, to cause them to be de- 
 livered to the clerk to be filed ; and he will be compelled 
 to do so, upon a mere suggestion, and he cannot object 
 that the papers used will criminate a party. {Sinnott v. 
 First ^^atl. Bk. 34 App. Div. 161 ; Anon. 5 Cow. 13) . If 
 the prevailing party does not enter the order in twenty- 
 four hours, the other party may do so. (Matter of R. & 
 C. R. R. Co., 8 Hun, 34). Where the order is for the 
 benefit of both parties, either party may enter it {Staf- 
 ford V. Amhs, 8 Abb. N. C. 237) ; otherwise, the defeated 
 party has no right to enter the order before the expira- 
 tion of the twenty-four hours, and if he does so, the 
 order entered by him will not be recognized. (Decker \, 
 Kitchen, 8 Wk. Dig. 537) . An order made on notice by a 
 judge out of court, must be entered and the afBdavits 
 filed. (Savage v. Relyea, 3 How. Pr. 276) . An ex parte 
 order of a judge need not be entered ; but it may be dis- 
 
278 PRACTICE. 
 
 regarded, unless a copy of tlie affidavit on which it is 
 made, is served with a copy of the order. {Savage v. 
 Belyea, supra) . But judges' orders may be entered, and 
 they must be, before an appeal can be taken from them. 
 (Co. Civ. Proc. § 1304). Where such an order has not 
 been so entered, or the papers upon which it was founded 
 have not been filed in the same clerk's office, the judge 
 who made it, or if he is absent, or unable or disqualified 
 to act, a judge of the coui't, in or to which an appeal 
 therefrom may be taken, must, upon the application of a 
 party or other person, entitled to take such an appeal, 
 make an order, requiring the omission to be supplied, 
 within a specified time after service of a copy of the 
 order made by him. Upon proof, by affidavit, that a 
 copy of the latter order has been served, and that the 
 omission has not teen supplied, the same judge may 
 make, upon notice, an order revoking and annulling the 
 original order. The provisions of section 1302, Code 
 Civil Procedure, apply to the service of an order, or a 
 notice, as prescribed in this section. (Co. Civ. Proc. § 
 1304). No appeal can be taken from any order, until 
 it has been entered. {Star Fire Ins. Co. v. Oodet, 34 
 Super. 359; Gallt v. Finch, 24 How. Pr. 193). 
 
 Sec. 5. When the Order Takes Effect. 
 
 An order does not take effect until it is entered, if it is 
 necessary to enter it. The court, however, will not allow 
 a party to be prejudiced by its delay ( Clapp v. Graves, 9 
 Abb. Pr. 20), or by the failure of the clerk to enter the 
 order {People v. Cent. City Bank, 53 Barb. 412) ; and 
 the order may be held to take effect as of the day the 
 motion was made, or the decision rendered, by relation, 
 if necessary to protect the rights of either party. {Me- 
 Kee V. Flaherty, 1 Law Bull. 14 ; Alay v. Cooper, 24 Hun, 
 7). The rights of parties are fixed by the decision, al- 
 though the order may not be entered until later. {Rob- 
 inson V. Goners, 138 N. Y. 425) . A mistake of the clerk 
 in entering the order will be corrected by the court. 
 {Church V. United Ins. Co. 1 Caines, 7). The decision 
 of the court is deemed to have been made when it is in- 
 dorsed upon the papers and handed to the clerk. {People 
 
MOTIONS AND ORDERS. 279 
 
 V. Smith, 13 Hun, 414) . Where proceedings in an action 
 are stayed until the decision of the motion, the decision 
 vacates the stay, although the order has not been entered 
 {Parmenter v. Roth, 9 Abb. N. S. 385) ; but if the stay 
 was until the further order of the court, it is not ended 
 until the order is actually entered. {Ackroyd v. Ack- 
 royd, 3 Daly, 38) . Where an injunction is made with an 
 order to show cause why it should not be continued, 
 the injunction ceases on the return day of the order, un- 
 less it is continued by the court at the hearing. ( Midle- 
 town V. B. & 0. R. R. Co., 12 Abb. Pr. N. S. 276) . Every 
 order which a judge or the court has power to make, 
 must be obeyed so long as it stands, although it is erro- 
 neous or irregular. ( Gould v. Root, 4 Hill, 554 ) . 
 
 Sec. 6. Notice of Entry and Service. 
 
 A copy of the order, and a written notice of the entry 
 thereof, must be served upon the opposing party, to limit 
 the time to appeal. ( Co. Civ. Proc. § 1351 ) . If the or- 
 der is made by a judge, and it is desired to bring a party 
 into contempt for the disobedience of it, the original 
 order with the signature of the judge must be shown at 
 the time of service of the copy {Rochester Lamp Go. v. 
 Brigham, 1 App. Div. 490 ; McGanlay v. Palmer, 40 Hun, 
 38) ; except for this purpose, however, showing the orig- 
 inal order is not necessary in making service. ( Gross v. 
 Clark, 1 Civ. Proc. Rep. 17). If the order is granted by 
 the court, the original need not be served, but service of 
 a certified copy is sufficient. {Mayor etc. v. ^^oiiover, 5 
 Abb. Pr. 244 ) . Until the order is served, the successful 
 party can take no advantage by it. {Jackson v. Wilson, 
 9 Johns. 265) . 
 
 Sec. 7. Conditions. 
 
 Whenever a motion is addressed to its discretion, the 
 court may impose terms as a condition of granting the 
 motion. {Matter of Waverly Water Works, 85 N. Y. 
 478). A party may decline the conditions, but if he 
 avails himself of the order, he cannot complain of the 
 condition which is attached to it {Strong v. Jones, 25 
 Hun, 319) ; nor can he appeal from it, or move to vacate 
 it. {Weichsell v. Spear, 47 Super. 223; affd. without 
 
280 PEACTICK. 
 
 opinion, 90 N. Y. 651 ) . If a party, in whose favor the 
 order has been made, is not satisfied with the conditions 
 that have been imposed upon granting it, he may appeal 
 from that part of the order imposing conditions, but he 
 cannot ask anotlier special term to modify the order and 
 set the conditions aside. (Finelite v. Finelite, 41 St. 
 Rep. 158: 16 Supp. 287). Unless the order prescribes 
 a different time, the condition must be performed within 
 twenty-four hours {Sabin v. Johnson^ 7 Cow. 421) from 
 the date of the order, and not from the time of the service 
 on the party receiving the favor. {Willink v. Reiiwick, 
 22 Wend. 609 ) . The party to whom a favor is granted 
 on terms must comply with them at his peril. If the 
 terms are payment of costs, he must seek out the other 
 party and tender them, if the amount is fixed, or offer to 
 pay them When they are taxed. {Hoffman v. Tredioell, 5 
 Paige, 83 ; Pugsley v. Van Allen, 8 Johns. 352) . If, a« a 
 condition, a party is required to enter into any stipula- 
 tion, he should give the stipulation, and if he cannot 
 comply with it, he should set up the inability to comply, 
 in answer to any motion of the other party based on his 
 failure to do so. {Gale v. Yernon, 4 Sand. 709). If the 
 condition is not performed, the other party should show 
 that fact by aflfidavit, and may obtain ex parte an abso- 
 lute order, such as he would be entitled to, upon failure 
 to perform the condition. {Stewart v. Berge, 4 Daly, 
 477). 
 
 Sec. 8. Vacating^ and Modifying. 
 
 An ex parte order made by a judge out of court may 
 be vacated or modified by the judge who made it, either 
 with or without notice, or by the court upon notice. ( Co. 
 Civ. Proc. § 772 ; MvMahon v. Brooklyn City R'y. Go. 20 
 Wk. Dig. 404) . If the order is wholly without jurisdic- 
 tion, it may be set aside by any judge, or be disregarded. 
 (Kamp V. Kamp, 59 N. Y. 212) . An ex parte order of a 
 judge, entitled at special term, may be vacated on notice 
 at a special term held by any other judge. {Matter of 
 Brake, 59 How. Pr. 329). One judge at special term, 
 cannot vacate or modify an order made by any other 
 judge at special term. {Hallgarten v. Eckert, 1 Hun, 
 
MOTIONS AND ORDERS. 281 
 
 117 ; People v. National Trust Co., 31 Hun, 20 ; Corhin v. 
 Cas'uia Land Co., 26 App. Div. 408) ; but where it is ap- 
 parent that an order was made under a misapprehension 
 of the facts, the court, at a term held by another judge, 
 may modify it. {Price v. Price, 19 St. Rep. 154 : 2 Supp. 
 796 ) . Where a party has obtained an undue advantage, 
 by using an order of the court for a purpose contrary to 
 its spirit and intention, and which could have been 
 guarded against had the unlawful purpose been disclosed 
 Avhen the order was made, the court has power to modify 
 or amend the order, or grant a new order to correct the 
 abuse of the former one. {De Lancey v. Piepgras, 141 N. 
 Y. 88). An order made by a judge out of court, upon 
 notice, may be vacated or modiiied by the court at special 
 term on notice. {West Side Bank v. Pugsley, 47 N. Y. 
 368). 
 
 ARTICLE VIII. 
 
 COSTS OF MOTION. 
 
 Costs of the motion are in the discretion of the judge 
 or court. (Co. Civ. Proc. § 3236) . Where costs of a mo- 
 tion or any other sum of money, directed by an order to 
 be paid, are not paid within the time fixed for that pur- 
 pose by the order, or, if no time is so fixed, within ten 
 days after service of a copy of the order, an execution 
 against the personal property only of the party required 
 to pay the same, may be issued, by any party or person, 
 to whom the said costs or sum of money is made payable 
 by said order, or in case permission of the court shall be 
 first obtained, by any party or person having an interest 
 in compelling payment thereof, which execution shall 
 be in the same form, as nearly as may be, as an execution 
 upon a judgment, omitting the recitals and directions 
 relating to real property; and all proceedings on the 
 part of the party required to pay the same, except to re- 
 view or vacate the order, are stayed, without further di- 
 rection of the court, until the payment thereof. But the 
 adverse party may, at his election, waive the stay of pro- 
 ceedings. Where the order directs that the cost of a 
 motion abide the event of the action, or where costs 
 
282 PRACTICE. 
 
 of a motioiij awarded by an order, have not been col- 
 lected when final judgment is entered, they may be taxed 
 as part of the costs of the action, or set off against costs 
 awarded to the adverse party, as the case requires. ( Co. 
 Civ. Proc. § 779),. The costs and disbursements on 
 appeal from an order of the appellate division are 
 costs of the motion, within this section. [Phipps v. 
 Carman, 26 Hun, 518) ; so, also on an affirmance 
 by the appellate division of a special term order 
 denying a motion for a new trial, made upon a 
 case and exceptions. {Mclntyre v. Bank, 59 Hun, 
 536). So are costs of an interlocutory reference 
 under section 1015. {Jones v. Easton, 11 Abb. X. C. 
 114). The stay granted by this section is an absolute 
 and peremptory stay of all proceedings. (National Bank 
 of Port Jervis v. Eansee, 15 Abb. N. C. 488). It does 
 not, however, deprive the court of jurisdiction in further 
 proceedings, but simply renders such proceedings irreg- 
 ular ; it is within the power of the court to sustain such 
 further steps taken by a party stayed under this section, 
 conditionally upon the stayed party paying the costs. 
 ( Wessels v. Boettcher, 142 N. Y. 212) . It does not, how- 
 ever, forbid a motion to vacate an order imposing costs. 
 (Marsh v. Woolsei/, 14 Hun, 1) . The stay does not begin 
 until default is made in the payment of the money ; and 
 if no time is fixed by the order, within ten days after 
 personal service, or twenty days after service by 
 mail of a copy of the order, and notice of its 
 entry. (Pettihone v. Drakeford, 1 How. Pr. N. S. 
 141) . The party entitled to insist upon the stay, waives 
 it by giving or receiving notice of trial (Terplanck v. 
 Kendall, 47 Super. 513), or by appealing from a subse- 
 quent order made in the action. (Attorney General v. 
 Contl. Life Ins. Co., 38 Hun, 521) . If the objection, that 
 the costs of a former motion have not been paid, is not 
 made at the hearing, it will not be considered upon ap- 
 peal. (Matter of Loftus, 41 St. Rep. 357 ; 16 Supp. 327) . 
 A failure to pay costs in supplementary proceedings 
 stays only the proceedings in that matter and not gen- 
 eral proceedings in the action. ( Godfrey v. Pell, 5 Law 
 Bull. 69). 
 
CHAPTER VIII. 
 
 MISCELLANEOUS PRACTICE REGULATIONS. 
 
 ARTICLE I Notices and papers. 
 
 ARTICLE II Service and filing of papers. 
 
 ARTICLE III. . . .Regulations respecting time. 
 ARTICLE IV. . . .Bonds and undertakings. 
 
 ARTICLE V Consolidation of actions. 
 
 ARTICLE VI. . . .Interpleader. 
 
 ARTICLE VII . . . Dismissal for neglect to proceed. 
 
 ARTICLE VIII.. Publication and notices. 
 
 ARTICLE I. 
 
 NOTICES AND PAPERS. 
 
 All notices given in the action must be in Writing 
 {Lane v. Gary, 19 Barb. 537; McEioen v. Mont. Go. Mut. 
 Ins. Go., 5 Hill, 101) ; but a notice to produce a paper, or 
 any other notice given in the presence of the court, and 
 at the trial, with regard to proceedings upon the trial, 
 may be by parol. {Kerr v. McGuirc, 28 N. Y. 446) . All 
 papers served or filed in an action must be indorsed or 
 subscribed wiith the name of the attorney or attorneys, 
 and his or their postofflce address or place of business. 
 This rule applies to parties appearing, pursuant to rule 
 two of the general rules. A notice not signed is a mere 
 memorandum, and does not have any effect as a notice. 
 {DeMelt v. Leonard, 19 How. Pr. 182). If notice of en- 
 try of judgment is served upon the party, a failure to 
 indorse the name and address of the attorney will pre- 
 vent its operating to limit the time to appeal. {Kelly v. 
 Sheehan, 76 N. Y. 325). For any other purpose, such a 
 defect does not vitiate either the paper or its service 
 {Evans v. Backer, 101 N. Y. 289) ; but the paper so de- 
 fective may be returned, or a motion may be made to set 
 
284 
 
 PRACTICE. 
 
 it aside. {Evans v. Backer, supra). If a paper is re- 
 turned because no name is signed, it must be returned 
 to the party. [Taylor v. Mayor of New York, 11 Abb, 
 Pr. 255 ) . All papers served in the action, if they exceed 
 two folios in length, shall be distinctly numbered, and 
 marked at each folio in the margin thereof; and all 
 copies, either for the parties or the court, shall be num- 
 bered or marked in the margin, so as to conform to the 
 original draft or entry and to each other, and shall be 
 indorsed with the title of the cause. They must all be 
 fairly and legibly written or printed, and if not so writ- 
 ten or printed and folioed and indorsed the clerk shall 
 not file them, nor will the court hear any motion or appli- 
 cation founded upon them. (General Rule 19). The 
 party upon whom the paper is served shall be deemed to 
 have waived the objection for non-compliance with this 
 rule unless within twenty-four hours after the receipt 
 thereof he returns such paper to the party serving the 
 same with a statement of the particular objection to its 
 receipt. ( Ibid. ) . The objection is waived by an admis- 
 sion of due and proper service of the paper thus de- 
 fective. (Patterson v. McCunn, 38 Hun, 531). General 
 Rule 19 also provides that this waiver shall not apply to 
 papers required to be filed or delivered to the court. A 
 judgment which has been entered unfolioed is, neverthe- 
 less, not void, but merely irregular. (Baptist 8oc. v. 
 Tabernacle, 9 App. Div. 527). All stipulations must 
 be in writing. No private agreement or consent between 
 the parties or their attorneys, in respect to the proceed- 
 ings 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. (Gen- 
 eral Rule 11 ) . A stipulation made in open court is not 
 within this rule. (Staples v. Parker, 41 Barb. 648) . An 
 oral stipulation made in open court before a referee, ex- 
 tending the referee's time to file his report, is valid. 
 (Ballon V. Parsons, 55 N. Y. 673; Sproull v. Btar Co., 
 45 App. Div. 575) . The time for the performance of the 
 stipulation may be extended by parol. (Harris v. 
 
MISCELLANEOUS TRACTICB REGULATIONS. 285 
 
 Ensign, 1 How. Pr. 103) . If one of the parties has relied 
 upon a parol stipulation and taken action upon it, the 
 party making it will not be permitted to retract it, be- 
 cause it is not in writing. {M. L. Ins. Go. v. O'Donnell, 
 146 N. Y. 275; People v. Stephens, 52 N. Y. 306, 310). 
 The court may at any time relieve a party from his stipu- 
 lation in its discretion, for good cause shown {Barry v. 
 Milt. Life Ins. Co. of N. Y., 53 N. Y. 536) ; but it will not 
 do so where neither fraud nor collusion has 'been shown, 
 and the stipulation has been acted upon. {21 ark v. City 
 of Buffalo, 87 l^.Y. 184:). 
 
 ARTICLE II. 
 
 SERVICE AND FILING OF PAPERS. 
 
 SECTION. 
 
 1. On whom service to be made. 
 
 2. Mode of service. 
 
 3. Proof of service. 
 
 4. Filing papers. 
 
 This article does not apply to the service of a sum- 
 mons, or other process; or of a paper to bring a party 
 into contempt ; or to a case where the mode of service is 
 specially prescribed by law. (Co. Civ. Proc. § 802). 
 
 Sec. 1. On Whom Service to be Made. 
 
 If it is necessary to make service on a party who has 
 not appeared, it must be made upon him personally. 
 Where a party has appeared by attorney, a notice or 
 other paper required to be served in an action, must be 
 served upon his attorney. If a defendant has not ap- 
 peared, service of a notice or other paper, in the ordinary 
 proceedings in the action, need not be made upon him, 
 unless he is actually confined in jail, for want of bail. 
 ( Co. Civ. Proc. § 799 ) . An order for a discovery of books 
 is one of the ordinary proceedings in an action under 
 this section {Union Trust Co. v. Driggs, 49 App. Div. 
 406; Rossner v. N. Y. Museum Association, 20 Hun, 
 182) ; but provisional remedies are not. {Becker y. Eager, 
 8 How. Pr. 68) . The word "attorney" in the action means 
 
286 PRACTICE. 
 
 the attorney-at-law of the party and not an attorney-in- 
 fact. {Wier V. Slocum, 3 How. Pr. 398) . Where an agree- 
 ment has been made to substitute an attorney, but the 
 order for substitution has not been entered, service on 
 the new attorney is not good. ( Wood v. Holmes, 19 Wk. 
 Dig. 121). Unless some other mode is prescribed, the 
 word ''service" always means personal service. {Rath- 
 bun V. Acker, 18 Barb. 393) . Where a party to an action, 
 who has appeared in person, resides without the state, or 
 his residence cannot, with reasonable diligence, be ascer- 
 tained, and he has not designated an address, within the 
 state, upon the preceding papers, service of a paper upon 
 him may be made by serving it on the clerk. (Co. Oiv. 
 Proc. § 800).- If an attorney dies, is removed, or sus- 
 pended, or otherwise becomes disabled to act, at any time 
 before judgment in an action, no further proceeding will 
 be taken in the action against the party for whom he ap- 
 peared, until thirty days after notice to appoint another 
 attorney, has been given to that party, either personally, 
 or in such other manner as the court directs. ( Co. Civ. 
 Proc. § 65). If the new attorney is not appointed in 
 thirty days after notice, papers in the action must be 
 served on the party himself. {Jewell v. Schouten, 1 N. 
 Y. 241). 
 
 Sec. 2. Mode of Service. 
 
 A notice or other paper in an action may be served on 
 a party or an attorney, either by delivering it to him 
 personally, or in the manner prescribed in the next sec- 
 tion. (Co. Civ. Proc. § 796). Where the service is not 
 personal, it may be made as follows : 
 
 1. Upon a party or an attorney, through the post- 
 offlce, by depositing the paper, properly inclosed in a 
 postpaid wrapper, in the postoffice, or in any postof&ce 
 box regularly maintained by the government of the 
 United States and under the care of the postoffice of 
 the party, or the attorney serving it, directed to the per- 
 son to be served at the address, within the state, desig- 
 nated by him for that purpose, upon the preceding 
 papers in the action ; or, where he has not made such a 
 designation, at his place of residence, or the place where 
 
MISCELLANEOUS PRACTICE REGULATIONS. 287 
 
 he keeps an office, according to the best information 
 which can conveniently be obtained concerning the same. 
 
 2. Upon an attorney, during his absence from his 
 office, by leaving the paper with his partner or clerk 
 therein, or with a person having charge thereof. 
 
 3. Upon an attorney, if there is no person in charge of 
 his office, and the service is made between six o'clock 
 in the morning and nine o'clock in the evening, either 
 by leaving it, in a conspicuous place iij his office, or by 
 depositing it, inclosed in a sealed wrapper, directed to 
 him in his office letter box, or, if the office is not open, so 
 as to admit of leaving the paper therein, and there is no 
 office letter box, by leaving it at his residence within the 
 state, with a person of suitable age and discretion. 
 
 4. Upon a party by leaving the paper at his residence 
 within the state, between six o'clock in the morning and 
 nine o'clock in the evening, with a person of suitable 
 age and discretion. (Co. Oiv. Proc. § 797). 
 
 It will be noticed that the first subdivision of section 
 797 authorizes service to be made through the postoffice, 
 although both parties may reside in the same town. 
 {Whitney v. Haggarty, 7 St. Rep. 766) . Section 801 of 
 the code of civil procedure providing that, in the city of 
 New York, where a paper is served, or a return is made, 
 through the postoffice, the deposit of the package in a 
 branch postoffice has the same effect as a deposit in the 
 general or principal postoffice of that city, has never 
 been repealed, but it would seem to be superfluous in 
 view of the amendment to section 797 (subdivision 1), 
 authorizing the deposit of the paper to be served in any 
 postoffice box. In making service by mail, the whole 
 postage must be paid, and unless it is so paid the service 
 is not good, although if a party takes the unpaid in- 
 closure from the postoffice and examines it, he cannot 
 then refuse to receive it because the postage is not paid. 
 (Clark V. McFarland, 10 Wend. 634: ; Anon, 1 Hill 217). 
 The papers served must be inclosed in a wrapper. 
 (Anon, 1 Hill, 217). They must be deposited in 
 the postoffice or postoffice box at the attorney's 
 place of residence. (Schenck v. McKie, 4 How. Pr. 
 
 19 
 
288 PRACTICE. 
 
 246). If they are deposited in the postoffice or post- 
 office box at any other place, the service is only good 
 as a personal service from the time the paper is 
 actually received by the party to whom it is addressed. 
 {Hiird V. Davis, 13 How. Pr. 57) . If they are mailed on 
 the last day for service, they must be deposited in time 
 to go by mail that day, or by the first mail on the next 
 day. {Green v. Warren, 14 Hun, 434). The indorse- 
 ment "return if not called for" to the sender, does not 
 vitiate the service, unless it appears that because of such 
 indorsement it was not received by the party to whom it 
 was addressed. {Gaffney v. Bigelotv, 2 Abb. N. 0. 311). 
 Service by mail is complete on depositing the paper in 
 the postoflftce properly inclosed and directed, as is re- 
 quired by section 797 (Gates v. Guthrie, 119 N. Y. 420; 
 Elliott V. Kennedy, 26 How. 422; Miller v. Shall, 67 
 Barb. 446 ) , although the papers are not received by the 
 person to be served. (Id.; Anon. 1 Hill,. 217; Schwann 
 V. Livingston, 46 St. Rep. 477 : 18 Supp. 879) . The serv- 
 ice is invalid if the cover is not directed to the attorney 
 at the address given by him on preceding papers. {Sei- 
 fert V. Caverly, 63 Hun, 604) . This mode of service does 
 not apply to service of papers on the clerk of the court. 
 {Morris v. Morange, 26 How. Pr. 247; affd. 31 How. 
 639). If two attorneys are in partnership, and business 
 is done in the name of one alone, service on either out 
 of the office is good. {Lansing v. McKilluj), 7 Cow. 416) . 
 So if two attorneys have an office in common, one of 
 them, if present in the office, is the person in charge, so 
 that service on the other by delivering to the one in the 
 office, is good. ( Crook v. Crook, 12 St. Rep. 663 ) . If the 
 attorney's office is locked, procuring it to be unlocked 
 by a person having no authority to do so, and leaving the 
 paper in it in a conspicuous place, is not a good service 
 {Vail V. Lane, 67 Barb. 281); but it is otherwise, it 
 seems, if leave is granted by the proper person to open 
 the office and make the service. {Livingston v. Mcln- 
 tyre, 1 How. Pr. 253 ) . Service by leaving the paper in 
 a conspicuous place in the office, can only be made when 
 the office is found unlocked. (Haight v. Moore, 36 
 Super. 294). Service on an attorney by thrusting the 
 
MISCELLANEOUS PRACTICE REGULATIONS. 289 
 
 paper through a slot in the door of his office, is not good 
 {Licingston v. If. Y. Ele. R. R. Co., 58 Hun, 131; affd. 
 Avithout opinion, 125 N. Y. 695) ; nor by throwing it over 
 the transom (Claflin v. DuBois, 13 Civ. Proc. Rep. 234; 
 affd. 14 Civ. Proc. Rep. 290), but if a pleading is served 
 in that way, and it is retained and answered, the party 
 upon whom it is served will not be permitted to object 
 to the mode of service. {Rogers v. Rockioood, 36 St. Rep. 
 919; 13 Supp. 939). If it is impossible to comply with 
 the requirements of the statute in serving the paper, and 
 the party makes the best service possible under the cir- 
 cumstances, and follows it up with regular service and 
 notice of facts; that will be sufficient. {Falconer v. 
 Ucoppell, 2 Code Rep. 71 ; Lord v. Vandenburgh, 15 How. 
 Pr. 363). 
 
 Sec. 3. Proof of Service. 
 
 Service of all notices and papers in legal proceedings 
 may be proved by an affidavit of service; and it is pro- 
 vided in section 927 of the code of civil procedure, that 
 where it is necessary upon the trial of an action to prove 
 the service of a notice, an affidavit showing the service to 
 have been made by the person making the affidavit, is 
 presumptive evidence of the service, upon first proving 
 that he is dead or insane, or that his personal attendance 
 cannot be compelled with due diligence. The affidavit 
 of service must always be positive in its terms {DooHttle 
 V. Ward, 3 Johns. 359 ) , and should be made by the person 
 who served the paper; but where the paper was served 
 by the attorney's clerk, who had made a memorandum of 
 the service upon it, and afterwards left the state, and 
 Avas absent from it, an affidavit by the attorney, upon 
 information derived from the clerk, was held to be suffi- 
 cient. {Jackson v. Howd, 3 Caines, 131). It should 
 state what was done by way of making the service. If 
 the service is made upon the clerk of the attorney, the 
 affidavit must show that he was such clerk at the time 
 {Paddock v. Beebee, 2 Johns. Cas. 117) ; but it need not 
 name him. {Tremper v. Wright, 2 Caines, 101). But 
 an affidavit, stating that service was made "on defend- 
 ant's attorney," not giving his name, is not sufficient to 
 
290 PRACTICE. 
 
 authorize judgment by default. ( Graham v. Powers, 22 
 St. Rep. 95 : 9 Supp. 899) . If service is made by leaving 
 the paper in the office, the affidavit of service should 
 state that no one was there {Campbell v. Spencer, 1 
 How. Pr. 199 ) ; and that the office was open or unlocked. 
 {Haight v. Moore, 36 Super. 294) . An affidavit of service 
 by mail must state the residence of the person on whom 
 the service was made. {Brown v. Cook, 2 How. Pr. 40) . 
 If it was shown that the paper was deposited in the post- 
 office, the presumption is that it was received by the 
 party to whom it was addressed. {People v. Aid. Med. 
 Col. 26 Hun, 348). An affidavit of service is never con- 
 clusive, but it may be disproved on the motion to set the 
 paper aside. ( Van Rensselaer v. Chadwiclc, 7 How. Pr. 
 297) . An admission of due service is conclusive that the 
 service was proper and was made in time {Talman v. 
 Barnes, 12 Wend. 227) ; but an admission of service only 
 does not admit that the service was in time. ( Francis v. 
 Sitts, 2 Hill, 362 ) . The signature of an attorney to an 
 admission of service need not be proved {Ripley v. Bur- 
 gess, 2 Hill, 360) ; but it is otherwise as to an admission 
 of one not an officer of the court, whose signature to an 
 admission must always be proved. {Litchfield v. Bur- 
 well, 5 How. Pr. 341). Retaining the paper, or acting 
 upon it, is a waiver of any irregularity in its service. 
 {Rogers v. Rockwood, 36 St. Rep. 919; Georgia Lumber 
 Co. V. Strong, 3 How. Pr. 246) . 
 
 Sec. 4. Filing Papers. 
 
 The summons, and each pleading in an action, must be 
 filed with the clerk, by the party in whose behalf it is 
 served, within ten days after the service thereof. If the 
 party fails so to file it, the adverse party, on proof of the 
 failure, is entitled, without notice, to an order from a 
 judge, that it be filed within a time specified in the order, 
 or be deemed abandoned. (Co. Civ. Proc. § 824). This 
 section applies only to papers which have already been 
 served. (L^'^^e^eW v. i)/»nH, 4 How. Pr. 306). On filing 
 papers in obedience to an order, pursuant to this section, 
 notice need not be given. {Douoy v. Hoyt, 1 Co. Rep. N. 
 iS. 286) . A return or other paper in a special proceeding, 
 
MISCELLANEOUS PRACTICE REGULATIONS. 191 
 
 where no other disposition thereof is prescribed by law, 
 must be filed, and an order therein must be entered, with 
 the clerk of the county in which the special proceeding 
 is taken, if it is before a county officer, or a judge of a 
 court established in a city ; if before a justice of the su- 
 preme court, with the clerk of a county designated by 
 the justice; or, if no designation is made by him, of a 
 county where one of the parties resides. (Co. Civ. Proc. 
 § 825 ) . This section covers proceedings supplementary 
 to execution. {Sinnott v. First Natl. Bl:, 34 App. Div. 
 161). Except where otherwise provided by law, it shall 
 be the duty of the attorney presenting or procuring the 
 same, forthwith to file with the proper clerk all bonds or 
 undertakings, as required by section 816 of the code of 
 civil procedure, and in case such bonds and undertakings 
 shall not be so filed, the opposite party shall be at liberty 
 to move the court to vacate the proceedings, as if no bond 
 or undertaking had been given. It shall also be the duty 
 of the attorney to file, within ten days after service 
 thereof, under the like penalty, the petition or affidavit 
 upon which an injunction, attachment, order of arrest 
 or writ has been granted. (General Kule 4). The 
 papers, in cases pending in the appellate division, shall 
 be filed with the clerk of such division of the department 
 in which the case is pending. In all other cases where 
 no provision is made hj the code, papers in the supreme 
 court shall be filed in the office of the clerk of the county 
 specified in the complaint as the place of trial. In surro- 
 gate's courts, in the office of the surrogate; in other 
 courts of record, in the office of the respective clerks 
 thereof. In case the place of trial be changed to another 
 county, all subsequent papers shall be filed in the county 
 to which such change is made. ( General Rule 2 ) . The 
 court may enlarge the time to file a pleading, after an 
 order has been made directing that it be filed or aban- 
 doned, pursuant to section 824. (Short v. May, 2 Sand. 
 639) . A paper can only be filed in the clerk's office dur- 
 ing the time designated in which it is to be kept open ; 
 and if it is filed after office hours, the filing does not be- 
 come effectual until the beginning of office hours on the 
 next day. {Hathaway v. Howell, 54 N. Y. 97) . 
 
292 PRACTICE. 
 
 ARTICLE III. 
 
 REGULATIONS EESPBCTING TIME. 
 
 SECTION. 
 
 1. When service must be made. 
 
 2. How time computed. 
 
 3. Extension of time. 
 
 Sec. 1. When Service must be made. 
 
 Where special provision is not otherwise made by law, 
 or by the general rules of practice, notice of all proceed- 
 ings must, if personally served, be served at least eight 
 days before the time appointed for the hearing. (Co. 
 Civ. Proc. § 780). If service is made through the post- 
 offlce, the time so required or allowed is double the time 
 specified. (Co. Civ. Proc. § 798). 
 
 Sec. 2. How Time Computed. 
 
 The term "year" in the statute, means three hundred 
 and sixty-five days, but the added day of a leap year, and 
 the day immediately preceding shall, for the purpose of 
 computing the year, be counted as one day. In every 
 statute the term "year" means twelve months, the term 
 "half year" six months, and the term "quarter of a year" 
 three months. (Stat. Constr. Law, § 25). The term 
 "month" means a calendar and not a lunar month. ( Stat. 
 Constr. Law, § 26 ) . A calendar day includes the time 
 from midnight to midnight. Sundaj' or any day of the 
 week specifically mentioned means a calendar day. A 
 number of days specified as a period from a certain day 
 within which or after or before which an act is author- 
 ized or required to be done, means such number of calen- 
 day days exclusive of the calendar day from which the 
 reckoning is made. Sunday or a public holiday other 
 than a half holiday, must be excluded from the reckoning 
 if it is the last day or an intervening day of any such 
 period of two days. In computing any specified number 
 of days, weeks or months from a specified event, the day 
 upon which the event happens is deemed the day from 
 which the reckoning is made. The day from which any 
 specified number of days, weeks or months of time is 
 
MISCELLANEOUS PRACTICE REGULATIONS. 293 
 
 reckoned shall be excluded in making the reckoning. 
 Night time includes the time from sunset to sunrise. 
 ( Stat. Constr. Law. § 27) . By this section a half holiday 
 is not to be excluded, if it is the last day, or an interven- 
 ing day of any such period of two days ; hence if Satur- 
 day is the last day in which an act can be done it must 
 be done on that day. It will be noted this section pro- 
 vides that "the day from which an specified number of 
 days, weeks or months of time is reckoned should be ex- 
 cluded, etc.," omitting to specify years. The Court of 
 Appeals has held, very recently, that this omission 
 evinces a legislative intent to lay down a different rule 
 for computing years and that the "day from which" 
 should not be excluded in so computing years. {AuU- 
 maii S Taylor Co. v. Syiiie, 163 N. Y. 54:-, Conn, Natl. Blc. 
 V. Bayles, 163 N. Y. 561, reversing 17 App. Div. 596) . If 
 an act is to be done within a prescribed number of days, 
 a party has all of the last day to do it in. If it is to be 
 done after the expiration of a prescribed number of days, 
 it can not be done until the day after the last of those 
 days. {Judd v. Pulton, 4 How. Pr. 298). The standard 
 time is that of the seventy-fifth meridian of longitude, 
 and all courts and public officers and official proceed- 
 ings shall be regulated thereby. Any act, required by or 
 in pursuance of law, to be performed at or within a pre- 
 scribed time, shall be performed according to such stand- 
 ard time. ( Stat. Constr. Law. § 28) . The fractions of a 
 day are not regarded, except when the hour at which a 
 thing is done, is material. {Marvin v. Marvin, 75 N. Y. 
 240; Douglass v. Seiferd, 18 Misc. 188). Notice served 
 on the 14th, for an act to be done on the 16th, is good as 
 a two day's notice. (Ball v. Mander, 19 How. Pr. 468). 
 When served on Wednesday for the following Monday, it 
 is good where five days' notice is required. {Taylor v. 
 Corbier, 8 How. Pr. 385). When an order was entered 
 May 27th, and notice of appeal served June 27th, it was 
 held to be served within thirty days, and good. {Gallt 
 V. Finch, 24 How. Pr. 193 ) . When an act has to be done 
 within a limited time after a previous proceeding, the 
 first day of the previous proceeding is to be excluded so 
 as to give the full time after that day; as where the act 
 
294 PRACTICE. 
 
 is to be done after thirty days, it must be done on the 
 thirty-first day. {Judd v. Fulton, 10 Barb. 117). The 
 provisions of the statutory construction law, cited above, 
 apply to the statute of limitations. [Aultmaii & Taylor 
 Co. V. 8yme, 163 N. Y. 54). The period of publication 
 of a legal notice, in an action or special proceeding 
 brought in a court, either of record or not of record, or 
 before a judge of such a court, must 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 comj)letes the full period of pub- 
 lication. (Co. Civ. Proc. § 787). A statute requiring 
 notice to be published for six weeks successively, means 
 that the publication must continue during the forty-two 
 days. {Market National Bank v. Pacific National 
 Bank, 89 N. Y. 397). The statute relating to fore- 
 closure by advertisement, and prescribing twelve weeks' 
 publication, requires that the first publication should 
 be eighty- four days before the sale. {Bunce v. Reed, 
 16 Barb. 347). Where it is prescribed in the code, 
 or in the general rules of practice, that a notice 
 must be given, or a paper must be served, within a 
 specified time, before an act is to be done; or that the 
 adverse party has a specified time, after notice or service, 
 within which to do an act ; if service is made through the 
 postoffice, the time so required or allowed is double the 
 time specified. (Co. Civ. Proc. § 798). The time, under 
 this section, begins to run from the day the paper is 
 mailed, and not from the day of its receipt. {Elliott v. 
 Kennedy, 26 How. Pr. 422. ) 
 
 Sec. 3. Extension of Time. 
 
 Where the time within which a proceeding in an action 
 after its commencement, must be taken, has begun to 
 run, and has not expired, it may be enlarged, upon an 
 affidavit showing grounds therefor, by the court, or by a 
 judge authorized to make an order in the action. (Co. 
 Civ. Proc. § 781). No order extending a defendant's 
 time to answer or demur shall be granted, unless the 
 party applying for such order shall present to the judge 
 to whom the application shall be made an affidavit of 
 
MISCELLANEOUS PRACTICE REGULATIONS. 295 
 
 merits, or proof that it has been filed, or an affidavit of 
 the attorney or counsel retained to defend the action 
 that from the statement of the case in the action made 
 to him by the defendant he verily believes that the de- 
 fendant has a good and substantial defense upon the 
 merits to the cause of action set forth in the complaint, 
 or to some part thereof. "The affidavit shall also state 
 the cause of action and the relief demanded in the com- 
 plaint and whether any and what extension or extensions 
 of time to answer or demur have been granted, by stipu- 
 lation or order, and where any extension has been had, 
 the date of issue shall be the same as though the answer' 
 had been served when the time to answer first expired. 
 When the time to serve any pleading has been extended 
 by stipulation or order for twenty days, no further time 
 shall be granted by order, except upon two days' notice 
 to the adverse party of the application for such order. 
 (General Rule 24). No order extending the time to 
 serve a case, or a case containing exceptions, or the time 
 within which amendments thereto may be served, shall 
 be made unless the party applying for such order serve 
 a notice of two days upon the adverse parties of his in- 
 tention to apply therefor, stating the time and place for 
 making such application. (General Rule 32). It has 
 been held that an order extending the time to answer 
 may be disregarded if unsupported by an affidavit of 
 merits (Ellis v. Van Ness, 14 How. 313), but this has 
 been doubted (First Natl. BJc. v. Ranger, 14 Civ. Proc. 
 Eep. 1) ; and an opposite conclusion reached (Campbell 
 V. Am.. Zylonite Co., 53 N. Y. Super. 131). The general 
 requirements of affidavits to procure an extension of 
 time are stated in chapter seven, article two. Where an 
 order has been made extending the time, pursuant to sec- 
 tion 781, the affidavit upon w^hich the order was granted, 
 or a copy thereof, must be served with a copy of the 
 order; otherwise the order may be disregarded. (Co. 
 Civ. Proc. § 782). A county judge may make an order 
 extending the time to answer thirty days, under section 
 781 ; and such an order does not constitute a stay of pro- 
 ceedings withm section 775. (Sisson v. Lawrence, 25 
 How. Pr. 435). It is not necessary, unless the general 
 
296 PRACTICE. 
 
 rules specifically require it, to give notice of the motion 
 for an application to extend the time to do any act, if the 
 time has not expired. {Travis v. Travis, 48 Hun, 343, 
 Pratt, J. ) . The extension of the time to plead should al- 
 ways be for the shortest possible time, and if necessary, 
 acceptance of short notice of trial should be made a con- 
 dition of the extension. {Haywood v. Thayer, 10 Wend. 
 571). An extension of the time to answer allows a de- 
 fendant to demur. {Brodhead v. Broadhead, 4. How, 
 Pr. 308) . It must be borne in mind, however, that such 
 an extension does not extend the defendant's time to 
 move with reference to the complaint — in fact, it waives 
 all technical objections to the complaint and involves an 
 admission that the complaint is in form to require an 
 answer. {Brooks v. Hanchett, 36 Hun, 70 ; Post v. Blaze- 
 wits, 13 App. Div. 124 ) . The extension of time begins to 
 run from the expiration of the former time, if no other 
 date is fixed by the terms of the stipulation. {Pattison 
 V. O'Connor, 23 Hun, 307). Where service of a paper 
 may be made by mail, a deposit of the order extending 
 time in the postoffice on the last day is sufficient service 
 of it. {Schuhardt v. Both, 10 Abb. Pr. 203). An order 
 staying the plaintiff's proceedings does not operate to 
 extend the time to answer {McGown v. Leavenworth, 2 
 E. D. Smith, 24) ; neither does an order for a bill of 
 particulars, with a stay of plaintiff's proceedings ( Piatt 
 V. Toivusend, 3 Abb. Pr. 9) ; nor does an order staying 
 proceedings until the hearing of decision of an appeal. 
 {Petrie v. Fitzgerald, 2 Abb. Pr. N. S. 354). After the 
 expiration of the time, within which a pleading must be 
 made, or any other proceeding in an action, after its com- 
 mencement, must be taken, the court, upon good cause 
 shown, may, in its discretion, and upon such terms as 
 justice requires, relieve the party from the consequences 
 of an omission to do the act, and allow it to be done ; ex- 
 cept as otherwise specially prescribed by law. ( Co. Civ. 
 Proc. § 783). A motion for leave to answer under this 
 section must contain an affidavit of merits. {Mitchell v. 
 Volgar, 1 Law Bull. 9). The courts ordinarily require 
 that, upon a motion to open a default in pleading, the 
 proposed pleading shall be a part of the motion papers. 
 
MISCELLANEOUS PRACTICE REGULATIONS. 297 
 
 It has been held, however, that this is not absolutely 
 necessary, provided sufficient appears in the affidavits to 
 show the nature of the pleading. {Carey v. Browne, 67 
 Hun, 516). If terms are imposed, they must be imposed 
 when the order is made, and not subsequently. (Matter 
 of Brad Iter, 87 N. Y. 171, 178) . A court or a judge is not 
 authorized to extend the time, fixed by law, within which 
 to commence an action ; or to take an appeal ; or to apply 
 to continue an action, where a party thereto has died, or 
 has incurred a disability ; or the time fixed by the court, 
 within which a supplemental complaint must be made, 
 in order to continue an action ; or an action is to abate, 
 unless it is continued by the proper parties. A court or a 
 judge cannot allow either of those acts to be done, after 
 the expiration of the time fixed by law, or by the order, 
 as the case may be, for doing it ; except in a case specified 
 in section 785. (Co. Civ. Proc. § 784). The time to ap- 
 peal cannot be indirectly extended by vacating the judg- 
 ment, or ordering it entered anew (Whitney v. Towns- 
 end, 7 Hun, 233 ) ; nor can a notice of appeal be amended 
 so as to be made to include a judgment, or order not 
 originally included, the time to appeal from which has 
 expired. (Lavelle v. Shelly, 24 Hun, 642). Where a 
 party, entitled to appeal from a judgment or order, or to 
 move to set aside a final judgment for error in fact, dies 
 before the expiration of the time within which the appeal 
 may be taken, or the motion made, the court may allow 
 the appeal to be taken, or the motion to be made, by thft 
 heir, devisee, or personal representative, of the decedent^ 
 at any time within four months after his death. ( Co. Civ. 
 Proc. § 785). 
 
 AETICLE IV. 
 
 BONDS AND UNDERTAKINGS. 
 
 Where a provision of this act requires a bond or un- 
 dertaking, with sureties, to be given by, or in behalf of 
 a party or other person, he need not join with the sureties 
 in the execution thereof, unless the provision requires 
 him to execute the same; and the execution thereof by 
 
PRACTICE. 
 
 one surety is sufficient, although the word, "sureties" is 
 used, unless the provision expressly requires two or more 
 sureties; and the execution of any such bond or under- 
 taking by any fidelity or surety company authorized by 
 the laws of this state to transact business, shall be equiv- 
 alent to the execution of said bond or undertaking by 
 two sureties; and such company, if excepted to, shall 
 justify through its officers or attorney in the manner re- 
 quired by law of fidelity and surety companies. Any 
 such company may execute any such bond or under- 
 taking as surety by the hand of its officers, or attorney, 
 duly authorized thereto by resolution of its board of 
 directors, a certified copy of which resolution, under the 
 seal of said company, shall be filed with each bond or 
 undertaking. (Co. Civ. Proc. § 811). Although, under 
 this section, it is within the discretion of the judge 
 whether one or more individual sureties shall be re- 
 quired on an undertaking, it has been the invariable 
 practice in the first department to require two sureties, 
 if individuals. {Goldniark v. Magnolia Metal Co., 28 
 App. Div. 264 ) . Under this section, it has been held that 
 a bond by the company authorized to execute such bonds, 
 within the statute, is sufficient without any other surety. 
 {Matter of Filer, 11 Abb. N. C. 107; Ryan v. Cochran, 
 11 Abb. N. C. Ill, note). A judge is not bound to ap- 
 prove an undertaking guaranteed by such a corporation, 
 although it possesses all the qualifications prescribed b;y 
 the act, but he should exercise his discretion in each par- 
 ticular case. {Earle v. Earle, 49 Super. 57). A surety 
 company incorporated under the general insurance law 
 is limited by section 24 of that law which provides that 
 it shall not expose itself to any loss on any one risk 
 to an amount exceeding ten per cent of its capital and 
 surplus. (The Industrial d General Trust v. Tod, 56 
 App. Div. 39). A failure to have an undertaking ap- 
 proved, does not relieve the sureties from liability upon 
 it. {Bennett v. Mulry, 6 Misc. 304) . In no case shall an 
 attorney or counsellor be surety on any undertaking or 
 bond required by law, or by the general rules of practice, 
 or by any order of a court or judge in any action or pro- 
 ceeding, or be bail in any civil or criminal action, or pro- 
 
MISCELLANEOUS PRACTICE REGULATIONS. 299 
 
 ceeding. (General Rule 5). A bond or undertaking, 
 executed by a surety or sureties, as prescribed in tlie 
 code of civil procedure, must, where two or more persons 
 execute it, be joint and several in form ; and, except when 
 executed hj a fidelity or surety company, or when other- 
 wise expressly prescribed by law, it must be accompanied 
 with the affidavit of each surety, subjoined thereto, to 
 the effect that he is a resident of and a householder or a 
 freeholder within the state, and is worth the penalty of 
 the bond, or twice the sum specified in the undertaking, 
 over all the debts and liabilities which he owes or has 
 incurred, and exclusive of property exempt by law from 
 levy and sale under an execution. A bond or under- 
 taking given by a party without a surety must be accom- 
 panied by his affidavit to the same effect. The bond or 
 undertaking, except as otherwise expressly prescribed 
 by law, must be approved by the court before which the 
 proceeding is taken, or a judge thereof, or the judge be- 
 fore whom the proceeding is taken. The approval must 
 be indorsed upon the bond or undertaking. The surety 
 or sureties or the representatives of any surety or sure- 
 ties upon the bond, heretofore or hereafter executed, of 
 any trustee, committee, guardian, assignee, receiver, ex- 
 ecutor, administrator or other fiduciary, shall be en- 
 titled as a matter of right to be, and shall be, discharged 
 from liability as hereinafter provided, and to that end 
 may on notice to the principal named in such bond apply 
 to the court that accepted such bond, or to the court of 
 which the judge that accepted such bond was a mem- 
 ber, or to any judge thereof, praying to be relieved 
 from liability as such surety or sureties for the act 
 or omission of such principal occurring after the date of 
 the order relieving such surety or sureties hereinafter 
 provided for, and that such principal be required to show 
 cause why he should not account and give new sureties. 
 Such notice of such application may be served on said 
 principal personally within or without the state, or, not 
 less than five days prior to the date on which such appli- 
 cation is to be made, unless it satisfactorily appears to 
 the court, or a judge thereof, that personal notice cannot 
 be given with due diligence within the state, in which 
 
300 PRACTICE. 
 
 case notice may be given in such manner as the court or 
 a judge thereof directs. Pending the hearing of such 
 application the court or judge may restrain such prin- 
 cipal from acting except to preserve the trust estate 
 until further order. Upon the hearing of such applica- 
 tion if the principal does not file a new bond in the usual 
 form to the satisfaction of the court or judge the court 
 or judge must make an order requiring the principal to 
 file a new bond within such reasonable time not exceed- 
 ing five days, as the court or judge in such order fixes. If 
 such new bond shall be filed upon such hearing or with- 
 in the time fixed by said order the court or judge must 
 thereupon make a decree or order requiring the principal 
 to account for all his acts and proceedings to and in- 
 cluding the date of such order and to file such account 
 within a time fixed, not exceeding twenty days, and re- 
 leasing the surety or sureties making such application 
 from liability upon the bond for any act or default of 
 the principal subsequent to the date of such decree or 
 order. If the principal fail so to file such new bond 
 within the time specified, a decree or order must be made 
 revoking the appointment of such principal or removing 
 him and requiring him to so account, and file such 
 account within twenty days. If the principal fail 
 to file his account as in this section provided such 
 surety or sureties, or representatives thereof, may 
 make and file such account with like force and 
 effect as though made and filed by such principal, 
 and upon the settlement thereof credit shall be 
 given for all commissions, costs, disbursements, and 
 allowances to which the principal would be entitled were 
 he accounting, and allowance shall be made to such 
 surety or sureties or representative for the expense in- 
 curred in so filing such account and procuring the settle- 
 ment thereof. And after the filing of an account as 
 required or pei'mitted in this section, the court or judge 
 must, upon the petition of the principal or surety or 
 sureties, or the representatives of any such surety or 
 sureties, issue an order requiring all persons interested 
 in the estate or trust funds, to attend a settlement of such 
 account at a time and place therein specified, and upon 
 
MISCELLANEOUS PEACTICE REGULATIONS. 301 
 
 the trust fund or estate being found or made good and 
 paid over or properly secured, the surety or sureties 
 shall be discharged from any and all further liability, 
 and the court or judge shall settle, determine and en- 
 force the rights and liabilities of all parties to the pro- 
 ceedings in like manner and to the same extent as in 
 actions for an accounting in the supreme court. And 
 upon demand made in writing by the principal such 
 surety or sureties, or representatives thereof, shall re- 
 turn any compensation that has been paid for the unex- 
 pired portion of such suretyship. ( Co. Civ. Proc. § 812 ) . 
 Surety companies may petition for release from liability 
 under this section. {Matter of Thurher, 162 N. Y. 244) . 
 The requirement of this section that the undertaking 
 shall be joint and several, is for the benefit of the obligee, 
 and it is no defense to the sureties in an action on the 
 undertaking, that this provision is not obeyed. {Denike 
 V. Denike, 61 App. Div. 492). Whenever a court is au- 
 thorized to approve an undertaking or the sureties 
 thereto, it may direct a reference to one or more persons, 
 designated in the order, either to make the approval, or 
 to report the facts to the court for its action thereon. 
 (Co. Civ. Proc. § 827). Whenever a justice or other 
 oflflcer 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 real estate. (General Rule 
 5 ) . The requirement of section 812, that a surety must 
 be worth double the amount of the undertaking, over and 
 above all existing and contingent liabilities, does not 
 apply to fidelity and casualty companies. {Earle v. 
 Earle, 49 Super. 57). Whenever the approval of the 
 judge is declared by statute to be essential to the suffi- 
 ciency of the undertaking, it is a nullity without sucii 
 approval. .{Travis v. Travis, 48 Hun, 343). In an ac- 
 tion brought by a foreign republic, an undertaking on 
 arrest of the defendant, executed by the minister of the 
 plaintiff in his official name, is sufficient. {Republic of 
 Mexico V. DeArangoiz, 5 Duer, 634). It is necessary 
 that an undertaking should in terms be binding upon 
 
302 PRACTICE. 
 
 the heirs, executors, and administrators of the parties 
 giving it. ( Schenke v. Rowell, 1 Abb. N. 0. 295 ) . When- 
 ever the sureties are required to justify in an amount, 
 double that of the judgment appealed from, the amount 
 of the judgment should be stated in the undertaking. 
 [Harris v. Bennett, 3 Co. Kep. 23). The fact that they 
 fail to justify in double the amount of the judgment, 
 and double the five hundred dollars limited for costs 
 and damages, does not invalidate the undertaking. 
 [Hill V. Burke, 62 N. Y. 111). If the sureties upon an 
 appeal to the appellate division from the final judgment, 
 fail to justify after they are excepted to, or justification 
 is not waived by the respondent, the sureties are dis- 
 charged from liability. {Manning v. Gould, 90 N. Y. 
 476) . If it is agreed by the attorneys that the surety on 
 appeal should be accepted without justification, no in- 
 dorsement of the approval of the surety is necessary, and 
 the undertaking is good without it. ( Gopsill v. Decker, 
 67 Barb. 211, 4 Hun, 625) . A bond or undertaking, given 
 in an action or special proceeding, as prescribed in the 
 code, must be acknowledged or proved and certified, in 
 like manner as a deed to be recorded. (Co. Civ. Proc. 
 § 810). No bond or undertaking shall be received or 
 filed, until it has been acknowledged or proved as re- 
 quired in this section. (General Eule 5) . The acknowl- 
 edgment cannot be taken before an attorney in the 
 action or whose name appears on the undertaking as 
 attorney. (i?/'Jss v. il/oZier, 2 Law Bull. 21). But where 
 the penalty of the bond, or twice the sum specified in the 
 undertaking is five thousand dollars or upwards, the 
 court or judge may, in its or his discretion, allow the 
 sum in which a surety is required to justify to be made 
 up by the justification of two or more sureties each in a 
 smaller sum. But in that case a surety can not justify, 
 in a sum less than five thousand dollars, and when two 
 or more sureties are required by law to justify, the same 
 person cannot so contribute to make up the sum for 
 more than one of them. It shall be lawful for any party 
 of whom a bond or undertaking is required to agree with 
 his sureties for the deposit of any or all moneys for 
 which «nch sureties are or may be held responsible with a 
 
MISCELLANEOUS PRACTICE REGULATIONS. 303 
 
 trust company authorized by law to receive deposits, if 
 such deposit is otherwise proper, and for the safe keeping 
 of any or all other depositable assets for which such 
 sureties may be held responsible, with a safe-deposit 
 company, authorized by law to do business as such, in 
 such a manner as to prevent the withdrawal of such 
 moneys and assets, or any part thereof, except with the 
 written consent of such sureties, or an order of the court 
 made on such notice to them, as it may direct. ( Co. Civ. 
 Proc. § 813). A bond or undertaking, required to be 
 given by the code, must be filed with the clerk of the 
 court ; except where, in a special case, a different dispo- 
 sition thereof is directed by the court, or prescribed in 
 the act. (Co. Civ. Proc. § 816). It is the duty of the 
 attorney presenting or procuring the same, to file 
 with the proper clerk, all bonds and undertakings re- 
 quired by this section ; and in case such bonds and under- 
 takings shall not be so filed, any party to the action or 
 special proceeding shall be at liberty to move the court 
 to vacate the proceedings or order as if no bond or 
 undertaking had been given. ( General Rule 4 ) . A bond 
 or undertaking, given in an action or special proceed- 
 ing, as prescribed in this act, continues in force after 
 the substitution of a new party in place of an original 
 party, or any other change of parties; and has there- 
 after the same force and effect, as if then given anew, 
 in conformity to the change of parties. (Co. Civ. Proc. 
 § 815). A bond or undertaking, required by statute 
 to be given by a person, to entitle him to a right or 
 privilege, or to take a proceeding, is suflBcient, if it con- 
 forms substantially to the form therefor, prescribed by 
 the statute, and does not vary therefrom, to the preju- 
 dice of the rights of the party, to whom, or for whose 
 benefit it is given. (Co. Civ. Proc. § 729). The omis- 
 sion of the penalty of a bond does not effect its validity ; 
 the only effect is to make the liability commensurate 
 with the condition. (Dodge v. ;Sf*. John, 96 N. Y. 260). 
 Where such a bond or undertaking is defective, the court, 
 officer, or body, that would be authorized to receive it, 
 or to entertain a proceeding in consequence thereof, if 
 
 20 
 
304 PRACTICE. 
 
 it was perfect, may, on the application of the persons 
 who executed it, amend it accordingly; and it shall 
 thereupon be valid, from the time of its execution. ( Co. 
 Civ. Proc. § 730). Where a bond or undertaking has 
 been given, as prescribed by law, in the course of an 
 action or a special proceeding, to the people or to a pub- 
 lic officer, for the benefit of a party or other person 
 interested and provision is not specially made by law 
 for the prosecution thereof; the party or other person 
 so interested may maintain an action in his own name for 
 a breach of the condition of the bond, or of the terms of 
 the undertaking ; upon, procuring an order granting him 
 leave so to do. The order may be made by the court 
 in which the action is or was pending; the city court 
 of the city of New York, or a county court, if the bond 
 or undertaking was given in a special proceeding, pend- 
 ing before a judge of that court; or in any other case, 
 by the supreme court. Notice of the application there- 
 for must be given, as directed by the court or judge, to 
 the persons interested in the disposition of the proceeds. 
 (Co. Civ. Proc. § 814). 
 
 AETICLE V. 
 
 CONSOLIDATION OF ACTIONS. 
 
 Where two or more actions, in favor of the same plain- 
 tiff against the same defendant, for causes of action 
 which may be joined, are pending in the same court, the 
 court may, in its discretion, by order, consolidate any or 
 all of them, into one action. (Co. Civ. Proc. § 817). 
 When one of the actions is pending in the supreme 
 court, and another is pending in another court, the su- 
 preme court may, by order, remove to itself the action in 
 the other court, and consolidate it with that in the 
 supreme court. (Co. Civ. Proc. § 818). The plaintiff 
 may move to consolidate under these sections (Briggs v. 
 Gaunt, 4 Duer, 664) ; but a motion by the plaintiff 
 should not be made, until the defendants have answered 
 or made default in both actions ; and if, after answering, 
 the plaintiff amends his complaint, the consolidation 
 
, MISCELLANEOUS PRACTICE REGULATIONS. 305 
 
 should not be ordered, until the time to answer the 
 amended complaint has expired. {LeTloy v. Bedell, 1 
 Code Rep. N. S.. 201). The defendant, on moving for 
 consolidation, must show that the causes of action are 
 such as may be joined in one action, that no defense is 
 intended in either suit, or that the questions to arise are 
 substantially the same in both. Where a defense is to be 
 made, he must state enough of the nature of the actions 
 and the defense, to show that both suits will turn upon 
 the same questions. ( Wilkinson v. Johnson, 4 Hill, 46) . 
 It is not enough to swear that the defense is substantially 
 the same; it must appear that the questions to be tried 
 are the same. (Dunn v. Mason, 7 Hill, 154). Even 
 where the motion is made by the defendant, it is the bet- 
 ter practice to wait before making the motion until after 
 the interposition of answers. {Boyle v. Staten Island 
 Land Co., 87 Hun, 233). But see Perkins v. Merchants' 
 Lithographing Co. (21 Misc. 516), and the other cases 
 cited in this article where the court has ordered consoli- 
 dation on defendant's motion before answer. An affi- 
 davit of merits is not required on the motion. {Brewster 
 V. Steicart, 3 Wend. 441). If one action is pending in 
 the supreme court, and one in another court, between 
 the same parties, and the causes of the action might be 
 joined, an order for removal and consolidation will be 
 made by the supreme court, on the defendant's motion, 
 on an affidavit showing that the questions arising in the 
 two actions are substantially the same, though one of the 
 actions is not at issue, and no affidavit of merits in that 
 action is made by the defendant. {Solomon v. Belden, 
 12 Abb. ]Sr. C. 58). If two actions are brought by the 
 same plaintiff against the same defendant, one for injury 
 to the person, and the other for injury to the property, 
 arising out of the same tort, they may properly be con- 
 solidated. {Rosenberg v. Stat. I. Ry. Co., 38 St. Rep. 
 106; 14 Supp. 476. The question of consolidation is al- 
 ways in the discretion of the court. {Woodioard v. 
 Frost, 19 Wk. Dig. 125). If one action involves many 
 questions which are not at issue in the other, the consoli- 
 dation will be refused. ( Id. ) . If the motion is not made 
 until the actions 9,re moved for trial, it will be denied 
 
306 PRACTICE. 
 
 for laches. {Eleventh Ward 8av. Bank v. Hay, 8 Daly.. 
 328). It was held in Bech v. Ruggles (6 Abb. N. C. 69)j 
 that section 817 applied only to actions at law, and that 
 equitable actions could not be consolidated, but that 
 case was overruled in Woostei' v. Case (34 St. Eep. 577; 
 12 Supp. 769), and it was held that there is no distinc- 
 tion with regard to the power of the court between 
 equitable and other actions, and that the court might, 
 in a proper case, consolidate any actions whether they 
 were legal or equitable. The court has no power to con- 
 solidate two actions for partition of land, situate in 
 different counties, where one or more of the parties to 
 one action, are not parties to, or interested in the sub- 
 ject, of the other action. {Mayor v. Coffin, 90 N. Y. 312 ; 
 ^Yoostcr V. Case, supra). In the city court of the city 
 of New York, a consolidation which permits a recovery 
 exceeding two thousand dollars is improper. ( Oillen v. 
 Canary, 19 Misc. 594). Where one suit only should 
 have been brought, or where more than one action is 
 commenced, under circumstances which evince a dispo- 
 sition to make the proceedings unnecessarily burden- 
 frme to the defendant; or, where the plaintiff refuses to 
 consolidate in a proper case, upon request, he will be 
 charged with the costs of the motion for consolidation. 
 {Blc. of U. 8. V. Strong, 9 Wend. 451; Dunning v. Bk.of 
 Aubuiii, 19 Wend. 23). It is no objection to granting 
 a motion for consolidation of two actions, that the 
 second cause of action had not accrued until after the 
 first action was brought {Carter v. Sully, 19 Supp. 244; 
 28 Abb. N. C. 230), but in such a case the plaintiff is 
 not in fault for bringing the two actions, and will not 
 be charged with costs upon the consolidation {Dunning 
 V. Bank of Auburn, supra), although, if the consolida- 
 tion is prejudicial to him, costs or other terms may be 
 imposed upon the defendant as a condition. {Soloman 
 v. Beldcn, 12 Abb. N. C. 58; Carter v. Sully, supra). 
 Where a consolidation is ordered, the successful party 
 will only be entitled to tax the costs of one suit, unless 
 the right to tax the costs which have accrued in the 
 other suit, is reserved in the order. {Blake v. Mivh. So. 
 B. R. Co., 17 How. Pr. 228). Where one action is 
 
MISCELLANEOUS PRACTICE REGULATIONS. 307 
 
 pending in New York county and another in Kings 
 county, a motion to consolidate cannot be made in Kings 
 county, as section 769 of the code prohibits making a 
 motion in an action triable in the first district in any 
 other district. The proper course is to move for a change 
 of venue and when that is granted to move to consoli- 
 date. {Dupigniao v. Van Buskirk, 44 Hun, 45). Where 
 separate actions are commenced against two or more 
 joint and several debtors, in the same court, and for 
 the same cause of action, the plaintiff may, in any stage 
 of the proceedings, consolidate them into one action. 
 (Co. Civ. Proc. § 819). Where a commission has been 
 issued in a consolidated suit, in which the defendant 
 joined, the evidence taken under it may be allowed to 
 be read in the principal suit. ( Waterhury v. Delafield, 
 1 Caines, 513). Where two actions are consolidated, 
 the pleadings in both should be in the judgment roll, and 
 it is not proper to strike out the answer in one case, 
 because it contains the same allegations as the answer 
 in the other. {Colt v. Davis, 50 Hun, 366). Where 
 several causes in favor of the same plaintiff, though 
 against different defendants, concerning the title of 
 property, depend upon the same questions and the same 
 evidence, either party may move that only one of the 
 causes be tried, and that the others abide the event; 
 and if the fact that the questions and evidence are the 
 same, be not disputed by affidavit, the motion will be 
 granted ; otherwise, if that fact be denied, or appear to 
 be doubtful. {Jackson v. Schauher, 4 Cow. 78). But 
 the rule which allows the plaintiff to try only one of the 
 several causes where the questions and evidence are the 
 same in all, applies only to questions of property, and 
 does not apply to actions for a tort. {Sherman v. Mg- 
 Nitt, 4 Cow. 85). Where different plaintiffs bring 
 several distinct actions against the same defendants to 
 establish liability upon the defendants under section 24 
 of the Stock Corporation Law, the actions cannot be 
 consolidated, as they are between different parties, but, 
 in a proper case, the court will grant an order staying 
 the trial of all but one of the actions. {American 
 Grocer}/ Co. v. Flint, 5 App. Div. 263). 
 
808 PRACTICE. 
 
 ARTICLE VI. 
 
 INTERPLEADER. 
 
 A defendant against whom an action to recover upon 
 a contract, or an action of ejectment, or an action to 
 recover a chattel, is pending, may, at any time before 
 answer, upon proof, by affidavit, that a person, not a 
 party to the action, makes a demand against him for 
 the same debt or property, without collusion with him, 
 apply to the court, upon notice to that person and the 
 adverse party, for an order to substitute that person 
 in his place, and to discharge him from liability to either, 
 on his paying into court the amount of the debt, (H' 
 delivering the possession of the property, or its value, 
 to such person as the court directs; or upon it appearing 
 that the defendant disputes, in whole or in part, the 
 liability as asserted against him by different claimants, 
 or that he has some interest in the subject matter of 
 the controversy which he desires to assert, his applica- 
 tion may be for an order joining the other claimant or 
 claimants as co-defendants with him in the action. The 
 court may, in its discretion, malie such order, upon such 
 terms as to costs and payments into court of the amount 
 of the debt, or part thereof, or delivery of the possession 
 of the property, or its value or part thereof, as may be 
 just, and thereupon the entire controversy may be de- 
 termined in the action. (Co. Civ. Proc. § 820). It 
 is to be noted that this section now covers two distinct 
 contingencies, providing a different remedy for each. 
 The first is where the defendant does not dispute his 
 liability to some one but simply cannot determine, with 
 any reasonable degree of certainty, to which of two 
 or more parties he is liable. In this case the 
 court may, in its discretion, make an order sub- 
 stituting in the place of tlie defendant the per- 
 son other than the plaintiff making a demand upon 
 the defendant like that made in the action. This 
 order, of course, the defendant can have only in case he 
 places in the hands of the court the subject of the dis- 
 pute, and the order must so provide. The second con- 
 
MISCELLANEOUS PRACTICE REGULATIONS. 309 
 
 tingency ( which was added to the section by the amend- 
 ment of 1894 ) is where the defendant wishes to dispute, 
 either in whole or in part, liis liability but, there being 
 two or more claimants for the same thing, he wishes to 
 have it determined in the one action to whom he is 
 liable if he is liable at all. In such a case the court 
 may, in its discretion, make an order joining the other 
 claimant or claimants as co-defendants. In the first 
 named contingency, there is an interpleader proper, 
 the defendant ceases to be a party to the action, being 
 relieved from any further responsibility in the matter 
 and leaving the different claimants to litigate the ques- 
 tion of who is entitled ; in the contingency provided for 
 by the amendment, there is no interpleader at all, 
 strictly speaking, but additional parties are brought 
 'in to settle several disputes in one action. In both in- 
 stances the order is within the discretion of the court 
 and on an appeal ( assuming the papers to be technically 
 sufficient) the appellate court has before it only the 
 question whether the discretion has been abused. ( Bior- 
 ritt V. Press Pub. Co., 25 App. Div. 141). The provision 
 added by the amendment seems to be clear and to 
 have given rise to practically no questions of prac- 
 tice. It is necessary, therefore, to consider only the 
 matters of procedure arising under that part of 
 the section providing for interpleader proper. The 
 code has not introduced any new causes of inter- 
 pleader. The object of this section was only to 
 provide a summary Avay by which one who is en- 
 titled to interplead, might do so whenever it would 
 have been proper before the code. {DeLancy v. Murphy, 
 24 Hun, 503 ) . A remedy by motion is a substitute for 
 the action, and is governed by the same rules. (Schell 
 V. Lowe, 75 Hun, 43). The section applies only to 
 actions at law. (Lane v. N. Y. L. Ins. Co., 56 Hun, 92). 
 Interpleader can be ordered, only when it is certain that 
 the sole question is whether the plaintiff or a third 
 person is the true owner of the property, or the fund, 
 which is the subject of the action. If the defendant is 
 absolutely liable to the plaintiff and is precluded from 
 setting up the title of the third party as a defense, he 
 
310 PRACTICE. 
 
 is not entitled to interplead. {Bassett v. Leslie, 123 N. 
 Y. 396; Sherman v. Partridge, 4 Duer, 646). An action 
 must be pending before the motion can be made under 
 this section. If there is no action pending, the remedy 
 is by an action of interpleader. {Beck v. Stephani, 9 
 How. Pr. 193 ) . The proceeding under the code can be 
 had only by a defendant, and on motion. {B. & 0. R. R. 
 Co. V. Arthur, 90 N. Y. 234) . The motion must be made 
 before answer, but if an unverified answer has been 
 served and returned, the motion may be made if the 
 time to answer has not expired. {Howe Machine Co. v. 
 Oifford, 66 Barb. 597). The moving party must show; 
 one, that two or more persons have preferred claims 
 against him; two, that they claim the same thing, 
 whether it is a debt or duty; three, that he has no 
 beneficial interest in the thing claimed; and, four, that 
 he cannot determine, without hazard to himself, to 
 which of the claimants the thing belongs. He must 
 also offer to bring the money or thing into court. ( Crane 
 V. McDonald, 118 N. Y. 648; Bassett v. Leslie, 123 X. Y. 
 396; Burritt v. Press Pub. Co., 19 App. Div. 608). The 
 motion is based upon the theory that the moving party 
 is a mere stake holder for one or the other persons who 
 claim the fund or property, and the case must be such 
 that he can put or deposit the money or property in 
 court, and be absolutely discharged from all liability 
 to either of the claimants, and thus pass entirely out 
 of the controversy between them. {Bassett v. Leslie, 
 supra). He must admit his liability to some one, by 
 reason of the claim made in the complaint. {B. & 0. R. 
 R. Co. V. Arthur, 90 N. Y. 234) . He must be indifeerent 
 between the adverse claimants. {Marvin v. Elhcood, 
 11 Paige, 365 ) . He must, by his affidavit, affirmatively 
 deny any collusion with either of the parties {Atkinson 
 V. Manks, 1 Cow. 691; Crane v. McDonald, supra), but 
 a simultaneous offer to both, to pay to the one who will 
 indemnify the defendant, will not be collusive, if both 
 decline the offer. {Marvin v. Elkoood, supra). Collu- 
 sion between other parties in regard to the matter, is 
 no ground for denying the motion, as long as the moving 
 party himself is free from collusion. {Wehlc v. The 
 
MISCELLANEOUS PRACTICE REGULATIONS. 311 
 
 Bowery 8av. Bk., 40 Super. 97). It is not necessary fcr 
 him to show that the claim of the moving party wiil 
 probably succeed, but it must be made to appear that 
 there is some plausibility in it, or such a state of facts 
 with regard to the rights of the parties, as justifies a 
 reasonable doubt as to the validity of the claim. {Bur- 
 ritt V. Press Pah. Co., 19 App. Div. 608; Mars v. Alhanij 
 8av. Bk., 64 Hun, 424 ; Nassau Bk. v. Yandez, 44 Hun, 
 55 ) . Where an insurance company might have a defense 
 to one of tAvo claimants of a fund payable on a loss on 
 the ground that an action had not been begun within 
 the time named in the policy, it was held that an inter- 
 pleader could still be had, as the company could waive 
 such a defense if it so elected. ( Grell v. Globe & Rutgers 
 Fire Ins. Co., 55 App. Div. 612). This result is reached 
 on the principles of an ordinary bill of interpleader, 
 the code provision containing nothing to determine this 
 question. {Wilson v. Danca,n, 11 Abb. Pr. 3, 8). The 
 facts must be shown which indicate that the defendant 
 is really placed in peril. {Wells y. National City Bank, 
 40 App. Div. 498). It is necessary to prove that the 
 claim has some reasonable foundation. {Stevenson v. 
 -N. Y. L. Ins. Co., 10 App. Div. 233). The moving party 
 must not be a wrong doer toward either party, or in 
 default as to either of them. {Shaw v. Coster, 8 Paige, 
 339 ) . It must appear that he is ignorant of the rights of 
 the adverse claimants. {Trigg v. Hitz, 17 Abb. Pr. 
 436). It will not lie where he appears to be advised as 
 to the grounds of the different claims, and of his liability 
 under them {Morgan v. Fillmore, 18 Abb. Pr. 217) ; or 
 where his liability to one of the parties is based on his 
 own act. ( Id. ) . Interpleader cannot be granted, unless 
 the money or property is brought into court {Atkinson 
 V. Manks, 1 Cow. 692), and it is a sufScient answer to 
 a motion for interpleader, that the defendant cannot 
 deposit the amount, or property with the court. ( Vos- 
 burgh v. Huntington, 15 Abb. Pr. 254). The motion 
 will not be granted where he admits his liability only 
 as to a part of a claim, and defends as to the residue 
 -{Bender v. Shertoood, 15 How. Pr. 258) ; nor where the 
 amount admitted to be due is not the same as tha^ 
 
312 PRACTICE. 
 
 alleged in the complaint, or is in dispute (B. d 0. B. R. 
 Co. V. Arthur, 90 N. Y. 234; DuBois v. Union Dime 
 Savings Inst., 89 Hun, 382) ; nor where the claim of 
 the third party is clearly frivolous (Pustet v. Flannelly, 
 60 How. Pr. 67 ) ; nor where there is no doubt as to which 
 claimant the fund belongs {Shaw v. Coster, 8 Paige, 
 339) ; neither will it be granted if the defendant has 
 received indemnity from either party {Marvin v. El- 
 wood, 11 Paige, 365) ; nor where a decree of the sur- 
 rogate on an accounting has determined to which of the 
 two claimants the fund belongs. {Baker v. Brown, 64 
 Hun,G2T) . In actions against any savings bank to recover 
 for moneys on deposit with it, if there be any person or 
 persons claiming the same fund, who are not parties to 
 the action, the court in which such action is pending 
 may, on the petition of such savings bank, and upon 
 eight days notice to the plaintiffs and such claimants, 
 make an order, amending the proceedings in said action, 
 by making such claimants parties defendant thereto; 
 and the said court shall thereupon hear and determine 
 the rights and interests of the several parties to the said 
 action, in and to said funds. The said funds or deposits, 
 which are the subject of the said action, may remain 
 with such savings bank, upon the same interest as other 
 deposits of like amount, to the credit of the action, until 
 final judgment therein, and the same shall be paid by 
 such savings bank, in accordance with the order of the 
 court; or the deposit in controversy may be paid into 
 court, to await the final determination of the action; 
 and when so paid into court, the corporation shall be 
 stricken out as a party to such action, and its liability 
 for such deposit shall cease. The question of the costs 
 in such actions shall in all cases, be in the discretion 
 of the court, and they may be charged upon the fund 
 affected by the action. ( Banking Law § 115) . A motion 
 may be made under this section, after answer. {Za- 
 hrisJcie v. N. Y. Sav. Bank, Daily Eeg. Apr. 30, 1881). 
 The proceeding for interpleader under this section is a 
 motion, and not a special proceeding. {Bowery Sav. 
 Bank v. Malher, 45 Super. 619). On a motion by a 
 
MISCELLANEOUS PRACTICE REGULATIONS. 313 
 
 savings bank under this law the moving party must show 
 that the claim of the person sought to be interpleaded 
 has a reasonable foundation, or that the bank cannot 
 decide between the claimants without hazard to it, as 
 under section 820. {Steiner v. East River Savings Inst., 
 60 App. Div. 232). The order of interpleader under 
 section 820, may provide that, if the substituted party 
 shall not, within twenty days after service of a copy of 
 the order, and a copy of the complaint upon him, appear 
 and defend, the deposit shall be paid to the plaintiff. 
 Van Buskirk v. Roy, 8 How. Pr. 425, 427). The moving 
 party will be allowed the costs of the action, which have 
 accrued up to the time the motion is made, and the costs 
 of the motion, which Avill usually be a charge upon, or de- 
 ducted from, the fund in his hands. The order is appeal- 
 able to the appellate division (Co. Civ. Proc. § 1347), 
 but not to the court of appeals. (Co. Civ. Proc. § 190). 
 After an order of interpleader has been made under this 
 section, the action becomes an equitable one, triable by 
 the court and neither party has a right to trial by jury 
 {Clark V. Mosher, 107 N. Y. 118), and the costs are in 
 the discretion of the court. {Windecker v. Mutual Life 
 Ins. Co., 12 App. Div. 73). Where a defendant not 
 originally a party has appeared in an action and con- 
 sented that an order of interpleader be made, he cannot 
 thereafter object that the plaintiff could not have main- 
 tained an action of strict interpleader. (Hirsch v. 
 Mayer, 165 N. Y. 236). Where all the claimants to the 
 fund are parties to the action, and one of the defendants 
 is in possession of the fund or owes the debt, the court 
 may allow that defendant to deposit the money or prop- 
 erty with the court and be discharged. Such an order 
 is within the equity power of the court, although not 
 within section 820. (Lane v. N. Y. Li. Ins. Co., 56 Hun^ 
 92). 
 
314 PRACTICE. 
 
 AETICLE VII. 
 
 DISMISSAL FOR NEGLECT TO PROCEED. 
 
 SECTION. 
 
 1. For failure to serve the summons. 
 
 2. For unreasonable neglect to proceed. 
 
 Sec. 1. For Failure to Serve the Summons. 
 
 Where, in an action against two or more defendants, 
 the plaintiff unreasonably neglects to serve the summons 
 upon one or more of them, without whose presence a 
 complete determination of the controversy cannot be 
 had, the court may, in its discretion, upon the applica- 
 tion of a defendant who has appeared in the action, 
 dismiss the complaint as against him and render judg- 
 ment accordingly. (Co. Civ. Proc. § 821). In an action 
 of foreclosure, where all the parties have not been served, 
 but some have appeared and answered, those who have 
 been served, should proceed under this section and 
 should not notice the cause for trial. {Morris v. Craw- 
 ford, 16 Abb. Pr. 124). One who has been served can- 
 not move to dismiss the complaint under this section, 
 as to a defendant not served (Travis v. Tobias, 7 How. 
 Pr. 90 ) ; nor can the motion be made as to one not served, 
 by another party, who claims that he is the real defend- 
 ant. {Barbour v. Boas, 4 Law. Bull. 26). 
 
 Sec. 2. For Unreasonable Neglect to Proceed. 
 
 Where the plaintiff unreasonably neglects to proceed 
 in the action against the defendant, or one or more 
 defendants, against whom a separate judgment may be 
 taken, the court may, in its discretion, upon the applica- 
 tion of the defendant or defendants, or any of them, 
 against whom he so neglects to proceed, dismiss the com- 
 plaint as against the moving party or parties, and render 
 judgment accordingly. (Co. Civ. Proc. § 822). When- 
 ever an issue of fact in an action pending in any court 
 has been joined, and the plaintiff therein shall fail to 
 bring the same to trial according to the course and prac- 
 tice of the court, the defendant, at any time after 
 younger issues shall have been tried in their regular 
 
MISCELLANEOUS PRACTICE REGULATIONS. 315 
 
 order, may move at special term, for the dismissal of the 
 complaint with costs. If it be made to appear to the 
 court, that the neglect of the plaintiff to bring the action 
 to trial has not been unreasonable, the court may per- 
 mit the plaintiff, on such terms as may be just, to bring 
 the said action to trial at a future term. (General 
 Eule 36). This rule in substance provides that unrea- 
 sonable neglect to proceed within section 822 is, prima 
 facie, neglect to bring the action to trial before younger 
 issues have been tried in regular course; the moving 
 party having shown such prima facie neglect, the burden 
 is on his opponent to show that such neglect was not 
 unreasonable. {Seymour v. L. B. & M. 8. R. Co., 12 
 App. Div. 300). This section applies to all actions 
 both at law and in equity, and whether there are 
 one or more defendants in the action. (Jewett v. 
 Pickersgill, 14 Wk. Dig. 200 ; Calkin v. Beattie, 4 Law. 
 Bull. 42). It is entirely discretionary with the court 
 whether to dismiss the complaint under this section, 
 or refuse to do so, and it may impose such terms 
 upon making the order as justice requires. {Taber v. 
 Taher, 60 Super. 65). The discretion is reviewable by 
 the appellate division. {Silverman v. Baruth, 42 App. 
 Div. 21 ) . The fact that the defendant is entitled to put 
 the cause upon the calendar, does not preclude his mov- 
 ing under this section, for the neglect of the plaintiff 
 to proceed. {Ellsworth y. Brown, lQ^\m,l). But his 
 failure to put the cause on the calendar will be consid- 
 ered by the court in exercising its discretion. ( Graham 
 v. Ackley, 21 App. Div. 416). If the plaintiff does not 
 serve the complaint within twenty days after the de- 
 fendant has appeared and demanded a copy of the com- 
 plaint, the remedy of the defendant is by motion to 
 dismiss the complaint, under this section. {Baker v. 
 Curtiss, 7 How. Pr. 478). If the defendant puts the 
 cause on the calendar, and neglects to move it when 
 reached, he waives his right to move under section eight 
 hundred and twenty-two {Miller v. Ring, 18 Abb. Pr. 
 244) ; otherwise, if he merely notices the case without 
 putting it on the calendar. {Israel v. Yoight, 12 Misc. 
 206; Chillcott v. Waddingham, 1 Law. Bull. 50). If by 
 
316 PRACTICE. 
 
 agreement of parties the case is set down for a day cer- 
 tain, and tlie court adjourns before that day, setting it 
 down is a waiver of the defendant's right to move for a 
 dismissal, for a failure to try at that term. (Fuller v. 
 Btoeet, 9 How. Pr. 74). If the motion is not made 
 promptly after the default in moving the case, the de- 
 fendant waives his right to move. {Champion v. Web- 
 ster, 15 Abb. Pr. 4). If the delay to move the case, has 
 been caused by repeated promises of the defendant to 
 settle, the complaint will not be dismissed. {Doyle v. 
 0' Far veil, 5 Eobt. 640). The defendant cannot move to 
 dismiss the case, if he has set up a counterclaim. ( Vessell 
 V. Marx, 10 Misc. 46; Arnal v. Rahlff, 4 Law. Bull. 3). 
 The fact that the plaintiff's proceedings in the action 
 are stayed by his failure to pay motion costs against 
 him, will not prevent a dismissal of his complaint under 
 this section {Moloughney v. Kavanagh, 4 Law. Bull. 43) ; 
 although he may be unable to pay the costs of the 
 motion. {Ziegler v. Hoagland, 52 Hun, 385; Otis v. 
 Gray, 3 Law. Bull. 11). Judgment of dismissal under 
 this section is a mere judgment of non-suit, and is no 
 bar to a subsequent action. {Coit v. Beard, 33 Barb. 
 357). If the plaintiff excuses his failure to move, and 
 is allowed to try his case on payment of costs, he must 
 pay all the costs of the action, which have accrued up 
 to the time of making the motion. (Bowles v. Van 
 Home, 19 How. Pr. 346) . An order granting the motion 
 of one of three defendants to dismiss a complaint for 
 failure to prosecute should limit the dismissal to the 
 moving defendant. (Paulson v. N. J. & N. T. R. R. Co., 
 54 App. Div. 189). The court will take judicial notice 
 of the condition of its own calendars, and the statement 
 contained in an affidavit on such a motion to dismiss, 
 that the plaintiff has for five years omitted to proceed 
 with the action authorizes the inference that younger 
 issues have been tried during that time. (Id.). If an 
 appeal is taken after judgment of dismissal, the appeal 
 must be from the order, and not from the judgment 
 entered upon it. (James v. Shea, 28 Hun, 74). 
 
MISCELLANEOUS PKACTICB REGULATIONS. 317 
 
 ARTICLE Vlll. 
 
 PUBLICATION AND NOTICE. 
 
 Where a notice or other proceeding, is required by 
 law to be published in a newspaper published in a 
 county, and no newspaper is published therein, or to be 
 published oftener than any newspaper is regularly pub- 
 lished therein, the publication may be made in a news- 
 paper of an adjoining county, except where special pro- 
 vision is otherwise made by law. ( Co. Civ. Proc. § 826 ) . 
 Where an action is brought for the collective benefit 
 of the creditors of a person, or of an estate, or for the 
 benefit of a person or persons, other than the plaintiff, 
 who will come in and contribute to the expense of the 
 action, notice of a direction of the court, contained in 
 a judgment or order, requiring the creditors, or other 
 person or persons to exhibit their demands, or other- 
 wise to come in, must be published once in each week, 
 for at least three successive weeks, and as much longer 
 as the court directs, in the newspaper published at 
 Albany, in which legal notices are required to be pub- 
 lished, and in a newspaper published in the county 
 where the act is required to be done. (Co. Civ. Proc, 
 § 786) . This section of the code only authorizes publica' 
 tion of notice, when an action is brought for the col 
 lective benefit of creditors. (Schuehle v. Reiman, 86 N, 
 Y. 270). Where notice is published under this section 
 all the creditors are bound by the judgment, whether 
 they come in and prove their claims or not, although 
 they had in fact no knowledge of the action. {Kerr v. 
 Blodgett, 48 N. Y. 62). The judgment in an action 
 brought under the provisions of section 7 of the Personal 
 Property Law (Laws 1897, Chap. 417) to set aside a 
 fraudulent assignment does not bind creditors who did 
 not participate in such action unless section 786 of the 
 code is complied with, or some sufficient notice given. 
 .{Matter of Thoesen & Bro., 62 App. Div. 87). 
 
CHAPTER IX. 
 
 GENERAL REGULATIONS IN REGARD TO PLEADING. 
 
 ARTICLE I General rules of pleading. 
 
 ARTICLE II ... . Formal rules concerning pleadings. 
 
 ARTICLE III . . .Verification of pleadings. 
 
 ARTICLE IV ..Construction of pleadings. 
 
 ARTICLE V . . . .Copy of account. 
 
 ARTICLE VI . . .Bill of particulars. 
 
 ARTICLE VII . .Amendment of pleadings. 
 
 ARTICLE VIII. .Frivolous pleadings. 
 
 ARTICLE IX ..Sham pleadings. 
 
 ARTICLE X . . . .Irrelevant, redundant or scandalous matter. 
 
 ARTICLE XI . . .Indefinite or uncertain allegations. 
 
 ARTICLE I. 
 
 GENERAL RULES OP PLEADING. 
 
 SECTION. 
 
 
 
 1 
 
 Form. 
 
 
 
 2_ 
 
 What to be stated. 
 
 
 
 3. 
 
 What facts to be 
 
 pleaded. 
 
 
 4. 
 
 How facts to be pleaded. 
 
 
 5. 
 
 Exceptions to the 
 
 general 
 
 rules, 
 
 Sec. 1. Form. 
 
 It was a logical result of the abolition of the forms of 
 action, and the adoption of one civil action in their 
 stead, that the various forms of pleadings which had 
 been considered essential to the old actions, should 
 also be done away with. The code of procedure 
 prescribed that all forms of pleadings theretofore 
 existing were abolished, and that the form of plead- 
 ings in civil actions should be only those pre- 
 scribed by that act. (Co. Proc. § 140). The pre- 
 cise wording of the rule thus established has not 
 been retained in the code of civil procedure, but the rule 
 
GENERAL REGULATIONS IN REGARD TO PLEADING. 319 
 
 itself has been substantially preserved by section 518, 
 in which it is stated that the forms of pleading in an 
 action are prescribed in a chapter of which that is the 
 first section. It is now well established that this provi- 
 sion of the code abolishes all forms of pleadings of every 
 kind, which existed before its passage, and that the 
 rules laid down in the code, apply to all actions, whether 
 they are those formerly known as legal or equitable. 
 {Williams v. Hayes, 5 How. Pr. 470; Phillips v. Gor- 
 ham, 17 N. Y. 270). But the provisions of the code 
 apply only to rules of pleading. It has not been at- 
 tempted to alter the rules of law which determine the 
 validity of a cause of action or defense; nor has the 
 code attempted to abolish those rules of sound logic, 
 by which the sufficiency of pleadings is to be determined. 
 Rules which are purely technical, and have reference 
 solely to the particular form of the action in which they 
 were applied, were abolished by the code, but those 
 which, having their foundation in reason and good sense, 
 lend an important aid in the investigation of truth, and 
 manifestly tend to the furtherance of justice, retain all 
 their original force and authority. {Fry v. Bennett, 5 
 Sandf. 68, 69-71). Two objects were made prominent 
 in the changes affected by the code; one was the in- 
 troduction of verity into the pleadings, by providing 
 in effect, that parties in their allegations should have 
 the same regard to truth that prevails between members 
 of society, in their daily communications with each 
 other ; that they should not willingly, and certainly not 
 by complusion, spread a falsehood upon the record. An- 
 other was, that the pleadings should inform the court 
 and the adverse party of the facts alleged in support or 
 defense of the action, and to which evidence was to be 
 given ; and hence common counts, general issues and all 
 fictitious pleadings were abolished. One alleged objec- 
 tion to the old forms of pleading was, that the record 
 did not necessarily disclose the true questions of fact 
 at issue, and which were to be tried. {Bush v. Prosser, 
 11 N. Y. 352). It is not necessary to discuss here 
 whether these objects have been attained, but it is be- 
 
 21 
 
320 PRACTICE. 
 
 lieved that a careful observance of the rules contained 
 in the code will enable the pleader to ascertain the ques- 
 tions in dispute in any action, and to present them for 
 trial with complete success and accuracy. It is not 
 the purpose of this book to discuss the general subject 
 of pleading. No portion of that subject is germane to 
 a book on practice, except what may be called the art 
 of pleading, in distinction from the science ; or the rules 
 which prescribe the form in which a pleading is to be 
 put, as distinguished from the substance of it. Although 
 the code has abolished all forms of pleadings, still the 
 courts have held with substantial unanimity, that a 
 complaint which sets forth a cause of action, by the use 
 of the common count in assumpsit, is good in any action 
 in which it might have been used before the code. 
 [Pomeroy on Remedies, § 542; Allen v. Patterson, 7 N. 
 Y. 476; Doherty v. Shields, 86 Hun, 303). 
 
 Sec. 2. What to be Stated. 
 
 Facts alone should be stated. (Co. Civ. Proc. § 481, 
 subd. 2 ; § 500, subd. 2 ; Conaughty v. Nichols, 42 N. Y. 
 86). By "facts" is meant actual occurrences provable 
 by evidence, and from which the court can draw legal 
 conclusions. (Laivrence v. Wright, 2 Duer, 673).. Facts 
 should be stated truly, as they exist. (Russell v. Glapp, 
 7 Barb. 482; J. & S. P. R. Go. v. MorJey, 23 N. Y. 553). 
 It is said in many cases, that facts must be set forth in a 
 pleading according to their legal effect. This means 
 that the pleader is to state the inferences which the law 
 draws from the facts themselves. It is believed that 
 this is not the rule, and that facts may be stated accord- 
 ing to their legal effect only when, if they are so stated, 
 the pleading remains substantially true (Moak's Van 
 Santvoord's Pldgs. 188, 189 ) ; but not otherwise. ( Gas- 
 per V. Adams, 28 Barb. 441). Evidence of the facts is 
 never to be stated in a pleading. {People v. Ryder, 12 
 N.'Y. 437; Spies v. Munroe, 35 App. Div. 527). It is 
 not good pleading to state a fact by argument or infer- 
 ence. {BoyceY. Brown,! 'BsiVh. SO). It should always 
 be stated clearly and unequivocally [Glark v. Dillon, 
 97 N. Y. 370, 374), and not hypothetically or in the 
 
GENERAL REGULATIONS IN REGARD TO PLEADING. 321 
 
 alternative. (Boyce v. Brown, 1 Barb. 80). But al- 
 though a hypothetical pleading is rarely a good plead- 
 ing, such a statement of facts is good upon the trial, 
 and it is sometimes held to be good, upon a motion to 
 correct the pleadings, where a denial is on information 
 and belief {Brown v. Rychman, 12 How. Pr. 313) ; or 
 where a hypothetical form of pleading is used from 
 necessity, and not for purposes of evasion. {Dovan v. 
 Dinsmore, 33 Barb. 86). An allegation of a legal con- 
 clusion is one which states no facts, but merely an 
 inference which the law makes from a fact, or group of 
 facts. Such pleading is never admissible in lieu of 
 statements of fact. ( Cook v. Warren, 88 N. Y. 37, 40 ) . 
 In an equitable action, however, where it is necessary for 
 a pleader to show the relation of certain acts to each 
 other and to the end sought, conclusions of law accom- 
 plishing these purposes will not be stricken out. [Park 
 <& Sons V. Nat. Druggists' Assn., 30 App. Div. 508, 515). 
 A mere conclusion of law is bad upon demurrer. (Kiiapp 
 V. City of Brooklyn, 97 N. Y. 520). When the pleader 
 has stated the facts on which he relies, he is never re- 
 quired to state the theory of the law upon which his 
 claim or defense is based. (Hemmingioay v. Boucher, 
 98 N. Y. 281). While mere conclusions of law are not 
 allowable in a pleading, certain allegations which are 
 mixed allegations of law or fact have been held to be 
 good; such as that a certain sum is due (Allen v. Patter- 
 son, 7 N. Y. 476) ; or that the party was the owner of 
 land (Walter v. Locktvood, 23 Barb. 228) ; or that he is 
 the owner of chattels (Davis, y. Hoppock, 6 Duer, 254) ; 
 or that the plaintiff became owner of a claim by pur- 
 chase. (Prindle v. Caruthers, 15 N. Y. 425) ; or that a 
 note was duly endorsed by an officer duly authorized 
 (Nelson v. Eaton, 26 N. Y. 410) ; or that a corporation 
 was duly organized (Lorillard v. Clyde, 86 N. Y. 384) ; 
 or that the defendant was not the true owner and was 
 not seized of the premises in fee ( Wooley v. Nciocombe, 
 87 N. Y. 605) ; or that a party duly ratified and confirmed 
 a, certain payment and elected to consider the same as 
 made at the request and for the account and benefit ot: 
 A. and to look to A. for repayment of that sum. ( Spies 
 
322 PRACTICE. 
 
 V. Munroe, 35 App. Div. 527). While such allegations 
 are not fatal upon demurrer, the court upon motion will 
 require them to be corrected. {Prindle v. Caruthers, 
 supra). 
 
 Sec. 3. What Facts to be Pleaded. 
 
 Every fact which a party must prove to establish his 
 cause of action or defense, must be stated in the pleading 
 {Gurnee v. Beach, 40 Hun, 109) , and facts which are not 
 alleged cannot be proved {McKyring v. Bull, 16 N. Y. 
 297, 303) ; but the facts will be sufficiently averred, to 
 permit them to be proved on the trial, if the allegation 
 can be fairly gathered from all the averments of the 
 complaint, although the statement of them may be 
 argumentative, and the complaint deficient in technical 
 language. {Zabriskie v. Smith, 13 N. Y. 330; Sanders 
 V. Soutter, 126 N. Y. 193) . The general rule is that only 
 the facts necessary to establish a cause of action or de- 
 fense need be set forth, and the party should only allege 
 what he is required to prove. ( Moak's Van Santvoord's 
 Pldgs. 238 ; Decker v. Matthews, 12 N. Y. 313, 320 ) . But 
 this rule is not ta be construed as requiring the pleader 
 to state only facts which entitle him to some relief. In 
 many actions, especially those which are equitable in 
 their nature, it is material to show, not only that the 
 party is entitled to some relief, but to enable the court to 
 determine the character and extent and completeness of 
 the remedy to which he is entitled, and in such cases it is 
 proper that the pleading should contain a statement of 
 all the facts upon which the relief depends, or which in- 
 fluence or modify it. {People v. Ryder, 12 N. Y. 433, 
 438 ) . Since these classes of facts assist in determining 
 the nature, amount and details of the relief to be 
 awarded, they in part at least, "constitute the cause of 
 action," within the true meaning of the term, and must 
 be alleged. While the material facts of an equitable 
 cause of action differ in the manner thus described, from 
 the issuable facts of a legal cause of action, the single 
 and comprehensive principle of the reformed procedure 
 embraces and controls both classes of suits. (Pomeroy 
 on Remedies, § 527) . A fact which the law implies, or a 
 
GENERAL KEGULATIONS IN REGARD TO PLEADING. 323 
 
 presumption of law need not be alleged. (Hunt v. Ben- 
 nett, 19 N. Y. 173, 176). But the allegation of a neces- 
 sary fact is not dispensed with because it may be inferred 
 from another fact which is alleged. ( Parkhurst v. Wolf, 
 47 Super. 320). The public statutes of the state, or of 
 the United States need not be pleaded {Brown v. Ear- 
 man, 21 Barb. 508 ; Piatt v. Cratoford, 8 Abb. Pr. N. S. 
 297 ) ; but private or local statutes ( Bretz v. Mai/or, etc., 
 6 Robt. 325), or a municipal ordinance {HarJcer v. 
 Mayor, etc., 17 Wend. 199), or the law of another state 
 or country {Throop v. Hatch, 3 Abb. Pr. 23), must be 
 pleaded as facts. If, however, a private statute contains 
 provisions of a general nature, such provisions need not 
 be pleaded. It is unnecessary to state in the pleading 
 any fact of which the court will take judicial notice 
 (Shatv V. Tobias, 3 N. Y. 188) ; such as public statutes 
 of this state {Bayard v. Smith, 17 Wend. 88) ; or of the 
 United States {Jack v. Martin, 12 Wend. 311, 329) ; or 
 the civil divisions of this state {Chapman v. Wilber, 6 
 Hill, 475) ; or matters of public history of the country 
 {Swinnerton v. Columbian Ins. Co., 37 N. Y. 174) ; or the 
 prominent geographical features of the state or country 
 (People V. Snyder, 41 N. Y. 397) ; or treaties or procla- 
 mations ( United States v. Reynes, 9 How. 127) ; or seals 
 of foreign states {Lazier v. Westcott, 26 N. Y. 146) , or its 
 own officers, or their signatures {Mackinnon v. Barnes, 
 66 Barb. 91) ; the meaning of English words, terms of 
 art, legal weights and measures, etc. It is not necessary 
 to allege what the law will presume {Hunt v. Bennett, 
 19 N. Y. 173), as that a man is innocent, or of good 
 character, or has the capacity to contract, or that he has 
 not been negligent in the performance of a duty, or that 
 his business has been transacted legally; and if these 
 facts are to be put in issue, the contrary averment must 
 come from the other side. (1 Ohitty PI. 226, marg.). 
 
 Sec. 4. How Facts to be Pleaded. 
 
 Subdivision 1. — Certainty. 
 
 The code requires that each pleading should contain a 
 plain and concise statement of the facts, constituting 
 
324 PRACTICE. 
 
 the cause of action or defense, without unnecessary repe- 
 tition. (Co. Civ. Proc. § 481, subd. 2; § 500, subd. 2). 
 The material facts ought to be plainly yet concisely al- 
 leged, and with all necessary and convenient certainty, 
 as to the essential circumstances of time, place, manner 
 and other instances. (Story Eq. Plead. § 23). The 
 statute requires that the allegations of the pleading must 
 be so definite and certain that the precise meaning and 
 application of it will be apparent. (Co. Civ. Proc. 
 § 546). 
 
 Subdivision 2. — Time. 
 
 Under the former practice it was necessary to state 
 the time whenever any material or traversable fact hap- 
 pened, but generally, it was not necessary to prove the 
 time as alleged, unless it constituted a material part of 
 the cause of action. (1 Chitt. Plead. 257, marg.). The 
 rule under the code is, if the time when a fact happened 
 is material to constitute the cause of action or defense, 
 it must be stated, and the fact without the time, would 
 be insufficient to constitute the cause of action or de- 
 fense, but if the time is immaterial, a demurrer would 
 not lie for omitting to state it. ( People v. Ryder, 12 N. 
 Y. 439). Where an act was capable of being committed 
 on several days, it may be described as having been com- 
 mitted on such a day, and divers other days and times, 
 between that day and the commencement of the action. 
 Under such allegations, several different injuries may 
 be proved, and if the party give evidence of one, he is 
 not restricted to that, and may, be even allowed to prove 
 acts prior to the date named in the complaint. {.Diihols 
 V. Beaver, 25 N. Y. 123 ; Moak's Van Santvoord's Pldgs. 
 222). If the only materiality of the time is, that it was 
 after another date, it is sufficient to say that it is so. 
 {Kellogg v. Baker, 15 Abb. Pr. 286) . In a verified plead- 
 ing, allegations in the present tense relate to the date of 
 verification. {PriiuUe v. Oarathers, 15 N. Y. 425). If 
 a pleading is not verified, all allegations of time, whether 
 in past or present tense, are construed to relate to the 
 commencement of the action. (Burns v. O'Neil, 10 Hun, 
 494; ToionsJiend v. N orris, 7 Hun, 239). 
 
GENERAL REGULATIONS IN REGARD TO PLEADING. 325 
 
 Subdivision 3. — Place. 
 
 At common law it was necessary to allege a place, in 
 reference to every traversable fact, and that place, 
 wherever the fact occurred, was always charged as beirig 
 within the county where the cause was to be tried. The 
 obligation under the code to state the facts truly, forbids 
 a fictitious venue, and unless the place is material, it 
 does not become one of the facts which constitute the 
 cause of action. But actions are still divided into local 
 and transitory, and as to the former, the issues must be 
 tried in the county where the cause of action arose. The 
 statutes of the state provide for the classes of actions 
 which require such trial, and they generally are made to 
 conform to local actions at common law. Thus, actions 
 in regard to real property, that may affect its title or pos- 
 session are triable in the county where it is situated, and 
 the pleading must show that the property lies in that 
 county. (Bliss on Code Pleadings, § 284). Wherever 
 an allegation of the place is material to the cause of ac- 
 tion and the jurisdiction of the court, or whenever it is 
 matter of description, the place should be stated in the 
 pleading, but whenever it is immaterial, no allegation 
 need be made about it. ( Bliss on Code Pleadings, § 296 ) . 
 
 Subdivision 4. — Positivbness. 
 
 Every fact which is stated in the pleading should be 
 positively averred {Truscott v. Dole, 7 How. Pr. 221; 
 Hilsen v. Ldbby, 4o^ Super. 12, 15) ; and as we have seen, 
 not by argument, or inference, or hypothetically ; nor 
 should it be averred by way of recital ; and under the old 
 practice, the defendant was not bound to answer any 
 allegation made in that way. ( Mechanics' Bank v. Levy, 
 3 Paige, 606) . But on demurrer, or at the trial, matters 
 recited in the pleading (Price v. McClave, 6 Duer, 544), 
 or facts recited in a document which is set out in the 
 pleading, and the execution of which is alleged (Slack 
 v. Heath, 1 Abb. Pr. 331; 4 E. D. Smith, 95), or all mat- 
 ters which can be implied by fair and reasonable intend- 
 ment from facts which are alleged (Marie v. Garrison, 
 83 N. Y. 14, 23), will be deemed to be properly alleged. 
 
326 PRACTICE. 
 
 The remedy for such defects is by motion to make the 
 pleading definite and certain, before an answer or de- 
 murrer is served. Facts may be stated upon information 
 and belief {St. John v. Beers, 24 How. Pr. 377) , although 
 they are within the knowledge of the pleader. (N. Y. 
 Mar. Iron Works v. Smith, 4 Duer, 362, 374). If the 
 facts are not within the knowledge of the pleader, yet 
 they may be stated on his belief, without stating that the 
 allegation is upon information. {Radwaij v. Mather, 5 
 Sandf. 654). The allegations or denials in a verified 
 pleading must, in form, be stated to be made by the party 
 pleading. Unless they are therein stated to be made 
 ujjon the information and belief of the party, they must 
 be regarded for all purposes, including a criminal prose- 
 cution, as having been made upon the knowledge of the 
 person verifying the pleading. An allegation that the 
 party has not sufficient knowledge or information to 
 form a belief, with respect to a matter, must, for the 
 same purposes, be regarded as an allegation that the 
 person verifying the pleading has not such knowledge or 
 information. (Co. Civ. Proc. § 524). 
 
 Sec. 5. Exceptions to the General Rules. 
 
 Subdivision 1. — Private Statutes. 
 
 In pleading a private statute, or a right derived there- 
 from, it is sufficient to designate the statute by its chap- 
 ter, year of passage, and title, or in some other manner 
 with convenient certainty, without setting forth any of 
 the contents thereof. ( Co. Civ. Proc. § 530 ) . This sec- 
 tion of the statute does not relieve the pleader from the 
 necessity of pleading the statute, but it is not now neces- 
 sary to count on it, that is, to set it out in full. It is 
 sufficient to refer to it in the general way provided for 
 in this section. (Bliss on Code Plead. § 304). 
 
 Subdivision 2. — Account. 
 
 It is not necessary for a party to set forth in a plead- 
 ing, the items of an account therein alleged ; but in that 
 case, he must deliver to the adverse party, within ten 
 
GENERAL REGULATIONS IN REGARD TO PLEADING. 327 
 
 days after a written demand thereof, a copy of the ac- 
 count, which, if the pleading is verified, must be verified 
 by his affidavit, to the effect that he believes it to be true ; 
 or, if the facts are within the personal knowledge of the 
 agent or attorney for the party, or the party is not within 
 the county where the attorney resides, or capable of mak- 
 ing the affidavit, by the affidavit of the agent or attorney. 
 If he fails so to do, he is precluded from giving evidence 
 of the account. The court, or a judge authorized to make 
 an order in the action, may direct the party to deliver a 
 further account, where the one delivered is defective. 
 (Co. Civ. Proc. § 531). 
 
 Subdivision 3. — Judgments. 
 
 In pleading a judgment, or other determination, of a 
 court or officer of special jurisdiction, it is not necessary 
 to state the facts conferring jurisdiction; but the judg- 
 ment or determination may be stated to have been duly 
 given or made. If that allegation is controverted, the 
 party pleading must on the trial, establish the facts con- 
 ferring jurisdiction. (Co. Civ. Proc. § 532) . It is doubt- 
 ful whether this section applies to judgments of foreign 
 states. In Halstead v. Black (17 Abb. Pr. 227), the 
 plaintiff set out a judgment of a foreign state in the man- 
 ner directed by this section, and upon demurrer, the su- 
 preme court at special term, held that the pleading was 
 good, and that this section applied to foreign judgments. 
 The case of HolUster v. HolUster (10 How. Pr. 532) , was 
 cited in Halstead v. Black, but that case, as was stated, 
 did not decide the question, but assumed that the section 
 did not apply to foreign judgments. In the case of Mc- 
 LaugTilin v. Nichols, (13 Abb. Pr. 244), it was held that, 
 in suing upon a foreign judgment, the facts must be 
 stated, showing the jurisdiction of the person and sub- 
 ject matter, and either that the court which rendered the 
 judgment was a court of general jurisdiction, or if not 
 so, that it had acquired jurisdiction of the person and 
 subject matter in the particular case, but in that case, 
 it was assumed that the proper construction of this pro- 
 vision of the statute was not before the court. In the 
 
328 PEACTICE. 
 
 case of DeNohele v. Lee (47 Super. 372), it was said tliat 
 tlie question whether this section applied to foreign judg- 
 ments, was yet undecided, and that the rule upon that 
 point was doubtful. The case of Halstead v. Black, first 
 cited, is an adjudication precisely in point, which does 
 not appear to have been questioned or overruled, and 
 until it is so, it is fair to assume that the law is correctly 
 stated in it, and that this section does permit foreign 
 judgments to be pleaded in the way directed by it. In 
 pleading, under this section, tlie officer by whom the 
 judgment was rendered must be designated. ( Carter Vo 
 KoezJcy, 9 Bosw. 583) . The precise language of the sec- 
 tion must be followed; it is not sufficient to allege that 
 the officer had full jurisdiction over both person and sub- 
 ject matter and "that judgment was entered." {Hunt v, 
 Dntcher, 13 How. Pr. 538). 
 
 Subdivision 4. — Conditions Precedent. 
 
 In pleading the performance of a condition precedent 
 in a contract, it is not necessary to state the facts consti- 
 tuting performance; but the party may state, generally 
 that he, or the person whom he represents, duly per- 
 formed all the conditions on his part. If that allegation 
 is controverted, he must, on the trial, establish perform- 
 ance. (Co. Civ. Proc. § 533). Compliance with this sec- 
 tion is optional. {Mayor etc. v. Doody, 4 Abb. Pr. 127). 
 This section does not apply solely to a conJ;ract in which 
 the conditions precedent are expressly stated, but to all 
 contracts where such conditions are implied by law. 
 {Adams v. SherriU, 14 How. Pr. 297; Che^n. Nat. Bh. v. 
 Carpentier, 9 Abb. N. C. 301 ; Youngs v. Perry, 42 App. 
 Div. 247). In pleading under this section, a strict com- 
 pliance with its requirements is insisted upon, and the 
 use of the word "duly" is advisable. {Hunt v. Dntcher, 
 13 How. Pr. 538 ) . But it is not necessary to follow liter- 
 ally the language of the statute. An 'allegation that the 
 conditions were fully and faithfully performed is suffi- 
 cient. {Rowland v. Phalen, 1 Bosw. 44) . If a party in- 
 tends to rely upon an excuse for non-performance of the 
 conditions, he must set out the excuse, and he cannot 
 prove it under an allegation of performance, under this 
 
GENERAL REGULATIONS IN REGARD TO PLEADING. 329 
 
 section {Oakley v. Morton, 11 N. Y. 25; Fox v. David- 
 son, 36 App. Div. 159). 
 
 Subdivision 5. — Instruments for the Payment of 
 Money Only. 
 
 Where a cause of action, defense, or counter-claim, is 
 founded upon an instrument for the payment of money 
 only, the party may set forth a copy of the instrument, 
 and state that there is due to him thereon, from the ad- 
 verse party, a specified sum, which he claims. Such an 
 allegation is equivalent to setting forth the instrument 
 according to its legal effect. (Co. Civ. Proc. § 534). 
 This section applies only to an instrument which is upon 
 its face a complete, valid and binding obligation. Where 
 it is upon its face, incomplete and invalid, and facts, not 
 stated in it, need to appear to show its validity, this sec- 
 tion does not apply. [Broome v. Taylor, 76 N. Y. 564; 
 Tooker v. Arnoiix, Id. 397). It is not necessary that an 
 instrument should contain an express promise to pay, 
 to enable a party to plead upon it under this section. If 
 the instrument is such that the law would imply a prom- 
 ise to pay, it is sufficient. (Burke v. Ashley, 12 Hun, 
 637) . The section has been held to apply to promissory 
 notes {Keteltas v. Myers, 19 N. Y. 231), although pay- 
 able by installments and expressing consideration 
 ( Chase v. Behrman, 10 Daly, 344 ) ; and a bill of exchange 
 accepted by a corporation [Andrews v. Astor Bk. 2 Duer. 
 629 ) ; and a bond for the payment of money ( Broome v. 
 Taylor, 76 N. Y. 564) ; also to a policy of insurance [Sul- 
 livan V. Spring Garden Ins. Go., 34 App. Div. 128) ; but 
 not to a mortgage [Rose v. Meyer, 7 Civ. Proc. Rep. 219) ; 
 nor to a check in an action against the drawer [Judd v. 
 Smith, 3 Hun, 190) ; nor to an action against the in- 
 dorser of a promissory note. [Gonkling v. Gandall, 1 
 Abb. Ct. of App. 423 ; 1 Keyes, 228) . An instrument in a 
 foreign language may be pleaded upon under this sec- 
 tion. [Nourny v. Duhosty, 12 Abb. Pr. 128) . In an action 
 by the payee of a note, against the maker, a complaint, 
 setting forth a copy of the note, and that there is due 
 from defendant to plaintiff a certain sum is good. 
 
330 PRACTICE. 
 
 {Butchers & Drovers' Banh v. Jacobson, 15 Abb. Pr. 
 218). It is not necessary to aver that the defendants 
 made the note, or the execution or delivery to the plain- 
 tiff (Id.; Marshall v. Rochwood, 12 How. Pr. 452) ; or 
 that the plaintiff was the owner of the note {Keteltas v. 
 Myers, 19 N. Y. 231) ; but the complaint must show the 
 connection between the plaintiff and the instrument sued 
 on, or that it was indorsed and transferred to him, or 
 that he is the owner and holder of it. {Lord v. Chese- 
 borough, 4 Sandf . 696 ) . If the instrument is by its terms 
 payable to a third party, a complaint is good which avers 
 that the plaintiff became the owner by purchase. {Prin- 
 dle V. Garuthers, 15 N. Y. 425). 
 
 Subdivision 6. — Slander and Libel. 
 
 It is not necessary, in an action for libel or slander, to 
 state in the complaint any extrinsic fact, for the purpose 
 of showing the application to the plaintiff, of the defama- 
 tory matter ; but the plaintiff may state, generally, that 
 it was published or spoken concerning him ; and, if that 
 allegation is controverted, the plaintiff" must establish 
 it on the trial. (Co. Civ. Proc. § 535). This section is 
 limited to cases in which proof of extrinsic facts is neces- 
 sary, for the application of the words, and not where 
 such proof is necessary to determine their meaning. 
 Hence, where the meaning of the words is so ambiguous, 
 that extrinsic facts are necessary to be proved, to show 
 them to be actionable at all, the necessity of stating these 
 facts by an explicit averment is precisely the same as it 
 always was. {Fry v. Bennett, 5 Sandf. 66; Wallace v. 
 Bennett, 1 Abb. N. C. 478) . An averment under this sec- 
 tion of the code, that the words were spoken of and con- 
 cerning the plaintiff, is not sufficient, where it is 
 contradicted by other allegations, in the complaint. 
 {Fleischmann v. Bennett, 87 N. Y. 231). 
 
GENERAL REGULATIONS IN REGARD TO PLEADING. 331 
 
 ARTICLE II. 
 
 FORMAL RULES CONCERNING PLEADINGS. 
 
 SECTION. 
 
 1. How to be written and indoi'sed. 
 
 2. Statement of facts. 
 
 3. Subscription. 
 
 4. Service and filing. 
 
 Subd. 1. — Service generally. 
 Subd. 2.^-Service on co-defendant. 
 
 Sec. 1. How to Be Written and Indorsed. 
 
 Every pleading must be in tlie English language, made 
 out upon paper or parchment, in a fair legible character, 
 in words at length and not abbreviated. But the proper 
 and known names of process, and technical words, may 
 be expressed in appropriate language, as now is and 
 heretofore has been customary ; such abbreviations as are 
 now commonly employed in the English language may 
 be used; and numbers may be expressed by Arabic 
 figures, or Eoman numerals, in the customary manner. 
 (Co. Civ. Proc. § 22). All pleadings must be fairly and 
 legibly written or printed. Every pleading, exceeding 
 two folios in length, must be distinctly numbered and 
 marked at each folio, in the margin thereof, and all 
 copies of a pleading, either for the parties or the court, 
 shall be numbered or marked in the margin so as to con- 
 form to the original draft, and shall be indorsed with the 
 title of the cause. If not so written and folioed and in- 
 dorsed as aforesaid, the clerk shall not file the same, nor 
 will the court hear any motion or application founded 
 thereon. ( General Rule 19 ) . If these requirements are 
 not complied with, the remedy is to return the paper, 
 with the statement upon it of the objection to it, and the 
 objection is waived unless such return is made within 
 twenty- four hours. ( Id. ) . 
 
 Sec. 2. Statement of Facts. 
 
 The facts in a pleading should be simply and plainly 
 stated. Each cause of action (Co. Civ. Proc. § 483), or 
 defense, or counter-claim (Id. § 507), must be separately 
 
332 PRACTICE. 
 
 stated and numbered. If the pleading is properly^ 
 
 drawn, the commencement of each cause of action or de- 
 
 (I 
 
 fense should be distinguished by the phrase, "and for a 
 further cause of action," or "for a further defense" 
 {Benedict v. Seymour, 6 How. Pr. 298) ; but if each one 
 is stated in a paragraph separately numbered, it is good. 
 {Parsons v. Hayes, 4 Law. Bull. 31; Waite v. Bayhel, 44 
 App. Div. 634 ) . Each cause of action and defense should 
 be complete in itself, without reference to any other 
 {Xenia Branch Bank v. Lee, 2 Bosw. 694; Spencer v. 
 Babcock, 22 Barb. 326). A defect in a statement of one 
 cause of action or defense is not aided by the same state- 
 ment contained in another one, unless the one refers in 
 terms to the other. {Sinclair v. Fitch, 3 E. D. Smith, 
 677; Ayres v. Couill, 18 Barb. 260). To avoid unneces- 
 sary repetition, the pleader may refer in one cause of 
 action or defense, to the allegations which have been pre- 
 viously set out in another one {Cragin v. Lovell, 88 N. Y. 
 258) ; but the reference must be clearly made, and the 
 allegations sought to be incorporated in the subsequent 
 cause of action, must- be referred to and made a part of 
 it. {Reiners v. Brandhorst, 59 How. Pr. 91; Anderson 
 V. S peers, 8 Abb. N. C. 382, 455) . A failure to state the 
 causes of action or defenses separately is not a ground 
 for demurrer {Freer v. Denton, 61 N. Y. 492) ; but ad- 
 vantage must be taken of it by motion. ( Goml. Bank v. 
 Pfeiffer, 22 Hun, 327; Gunn v. Felloios, 41 Hun, 257). 
 The code does not permit the same cause of action or de- 
 fense to be stated in different ways in different counts of 
 the pleading {Roberts v. Leslie, 46 Super. 76) ; and 
 where this is done, the pleader will be required to elect 
 before the trial, upon which of them he will rely ( Waller 
 V. Lyon, 17 Wk. Dig. 305) ; but where it can be seen 
 that the statement in several ways, is probably needful 
 to prevent the failure of justice, in consequence of a va- 
 riance between the pleading and the proof, such a state- 
 ment is not regarded as unnecessary repetition within the 
 meaning of the code, and it will be permitted. {Blank v. 
 Hartshorn, 37 Hun, 101). Inconsistent defenses may 
 be set up as separate defenses. {Wendling v. Pierce, 
 27 App. Div. 517). 
 
GENERAL REGULATIONS IN REGARD TO PLEADING. 333 
 
 Sec. 3. Subscription. 
 
 The pleading must be subscribed by the attorney. ( Co. 
 Civ. Proc. § 520). If the defendant appear in person, 
 his signature to the verification is a sufficient subscrip- 
 , tion to the pleading. {Hubbell v. Livingston^ 1 Co. Rep. 
 63 ) . In cases where an infant sues or defends by a guar- 
 dian ad litem, the attorney for the guardian may be sub- 
 scribe the pleading. {Hill v. Thacter, 3 How. Pr. 407). 
 If a pleading is not properly subscribed, it must be re- 
 turned with notice of the defect, or the defect will be 
 waived. {Ehle v. Haller, 6 Bosw. 661). The practice 
 does not require the pleading to be dated, but it will be 
 found quite convenient to do so. 
 
 Sec. 4. Service and Filing. 
 
 Subdivision 1. — Service Generally. 
 
 A copy of each pleading subsequent to the complaint, 
 must be served on the attorney for the adverse party, 
 within twenty days after the service of the preceding 
 pleading. ( Co. Civ. Proc. § 520 ) . Where a pleading is 
 served by mail, the opposite party has double time in 
 which to serve the subsequent pleading. ( Co. Civ. Proc. 
 § 798). Letter press copies are not permitted to be 
 served. ( General Rule 19 ) . It is very necessary that the 
 copy served should be a correct copy of the original, for 
 a party has a right to presume that it is correct, and may 
 rely on such being the case. {Littlejolin v. iMunn, 3 
 Paige, 280) . The issues to be tried are only those raised 
 by the copy, and if there is a variance, the copy served 
 controls. (Trowbridge v. Didier, 4 Duer, 448). Service 
 of the pleading, after the expiration of the time, is irreg- 
 ular, although before judgment has been entered. (Man- 
 deville v. Winne, 5 How. Pr. 461 ; Baker v. Ciirtiss, 7 
 How. Pr. 478) . Where the action is against tAvo jointly, 
 and the joint answer of one was served after the time to 
 answer had expired, and was returned, and judgment 
 was entered for the default of an answer, it was held to 
 be regular. (Jacques v. Greenwood, 1 Abb. Pr. 230). 
 As to the extension of the time to serve a pleading, see 
 
334 PRACTICE. 
 
 Chap. VIII, Art. Ill, Sec. 3, and as to the manner of 
 service, see Chap. 'S'lII, Art. II, Sec. 2, ante. 
 
 Subdivision 2. — Service on Co-Defendant. 
 
 Where the judgment may determine the ultimate 
 rights of two or more defendants, as between themselves, 
 a defendant, who requires such a determination, must 
 demand it in his answer, and must, at least twenty days 
 before the trial, serve a copy of his answer upon the at- 
 torney for each of the defendants to be affected by the 
 determination, and personally, or as the court or judge 
 may direct, upon defendants so to be affected, who have 
 not duly appeared therein by attorney. The controversy 
 between the defendants shall not delay a judgment to 
 which the plaintiff is entitled, unless the court otherwise 
 directs. ( Co. Civ. Proc. § 521 ) . This section confers no 
 new power on the court, but it is simply a regulation of 
 practice. (Albany City Savings Bank v. Burdich, 87 
 N. Y. 40 ) . It is not limited to actions of a purely equita- 
 ble character. (Derham v. Lee, 47 Super. 174 ; affd. 87 
 N. Y. 599 ) . The section only applies where the contro- 
 versy between the co-defendants, and the rights to be 
 settled between them, arise out of the subject matter of 
 an allegation, as stated in the complaint, and are a part 
 of the adjustment of that allegation, and it does not per- 
 mit a new and distinct cause of action, not connected 
 with that allegation, to be brought into the case. {Lans- 
 ing V. HadsaU, 26 Hun, 619; Rafferty v. WiUiams, 34 
 Hun, 5U; Bliss v. Winters, 40 App. Div. 622; 2V. Y. Life 
 Lns. d Tr. Co. v. Cuthbert, 87 Hun 339; affd. without 
 op. 148 N. Y. 742). Where the relief demanded in an 
 ansAver is substantially the same as that sought in the 
 complaint, the answer need not be served on the co- 
 defendant (Edwards v. Downs, 13 Wk. Dig. 57) ; nor 
 where the defendant asks only that the plaintiff's lien be 
 declared to be subsequent to his. (Bullymorc v. Seivard, 
 15 Wk. Dig. 283). A failure to serve the ansM^er on 
 the co-defendant, will be disregarded upon appeal, if the 
 controversy was tried, without objection. (Syracuse 
 Sarings Bank x. Porter, 36 Hun, 168) . No reply is neces- 
 
GENERAL EEGULATIONS IN REGARD TO PLEADING. 333 
 
 sary on the part of the co-defendant So served with a copy 
 of an answer ; it will be deemed controverted under sec- 
 tion 522 of the code of civil procedure. {Havana City 
 Bwy. Co. V. Ceballos, 49 App. Div. 421). 
 
 ARTICLE III. 
 
 VERIFICATION OF PLEADINGS. 
 
 SECTION. 
 
 1. When required. 
 
 2. When o;r.;;,lciI. 
 
 3. By whom made. 
 
 Subd. 1. — By a party. 
 
 Subd. 2. — Where party is a domestic corporation. 
 Subd. 3. — Where the people or a public officer are a party. 
 Subd. 4. — When verification may be made by agent or 
 attorney. 
 
 4. Form of verification. 
 
 5. Remedy for defective verification. 
 
 Sec. 1. When Required. 
 
 Where a pleading is verified, each subsequent plead- 
 ing, except a demurrer or the general answer of an in- 
 fant by his guardian ad litem, must also be verified. ( Co. 
 Civ. Proc. § 523 ) . A subsequent pleading is one which is 
 subsequent in order, to the pleading which is verified, or 
 which is made in answer to it ; the term does not mean a 
 pleading later in time only; although the answer may 
 be verified, the plaintiff may serve an amended complaint 
 which is unverified. {Hempstead v. Hempstead, 7 How. 
 Pr. 8) . If the action is brought against three, and a veri- 
 fied complaint is served on two, and an unverified com- 
 plaint on one of the defendants, the defendants cannot 
 serve an unverified joint answer, but the two on whom 
 the verified complaint is served, must verify their 
 answer. ( Wendt v. Peyser, 14 Hun^ 114 ) . In an action 
 against co-partners, an answer which denied knowledge 
 or information of some material allegations, was verified 
 by one of the defendants only, and it was held that the 
 answer was good only as to that defendant. (Lacy v. 
 Wilkinson, 7 Civ. Proc. Rep. 104) . As a general rule, the 
 
 , , ,38 
 
5336 PKACTICB. 
 
 complaint need not be verified, except in an action 
 brought under section 1937 of the code of civil procedure, 
 for the purpose of charging defendants not personally 
 summoned. (Co. Civ. Proc. § 1938). Any defense, how- 
 ever, which does not involve the merits of the action, 
 shall not be pleaded, unless it is verified as prescribed in 
 this article. (Co. Civ. Proc. § 513) . The certificate of a 
 notary public of the state, under his hand and seal of 
 office, of the presentment by him, for acceptance or pay- 
 ment, or of the protest, for non-acceptance or non-pay- 
 ment, of a promissory note or bill of exchange, or of the 
 service of notice thereof on a party to the note or bill ; 
 specifying the mode of giving the notice, the reputed 
 place of residence of the party to whom it was given, and 
 the postoflBce nearest thereto ; is presumptive evidence of 
 the facts certified, unless the party against whom it is 
 offered, has served upon the adverse party, with his 
 pleading, or within ten days after joinder of an issue of 
 fact, an original affidavit to the effect, that he has not 
 received notice of non-acceptance, or of nonpayment of 
 the note or bill. A verified answer is not sufficient as an 
 affidavit, within the meaning of this section. (Co. Civ. 
 Proc. § 923). The affidavit required by this section is 
 not sufficient, if made on information and belief, but it 
 must be made of the positive knowledge of the defendant. 
 {Gowtry v. Doane, 51 N. Y. 84). The notary's certifi- 
 cate is only presumptive evidence, however, and the 
 defendant may show that the notice was never received, 
 although no affidavit under this section is served. 
 (Toicnsend v. AiiJd, 10 Misc. 343) . In an action brought 
 by or against a corporation, the plaintiff is not required 
 upon the trial, to prove the existence of the corporation, 
 unless the answer is verified, and contains an affirmative 
 allegation that the plaintiff or defendant, as the case 
 may be, is not a corporation. (Co. Civ. Proc. § 1776). 
 A denial in an answer of the allegation contained in the 
 complaint as to incorporation is not sufficient; there 
 must be an affirmative allegation that the plaintiff or 
 defendant is not a corporation. {XicJcerson v. Canton 
 Marble Co., 35 App. Div. Ill; Lamsoti Store Service 
 Go. V. Conyngham, 10 Misc. 428). Where the complaint 
 
GENERAL REGULATIONS IN REGARD TO PLEADING. 337 
 
 is not verified, and the answer sets up a counter-claim, 
 and also a defense by way of denial or avoidance, the 
 affidavit of verification may be made to refer exclusively 
 to the counter-claim. In a case prescribed in this section 
 the requirements of sections 524, 525 and 526 are appli- 
 cable to the verification and counter-claim, as if the 
 latter was a separate pleading. ( Co. Civ. Proc. § 527) . 
 
 Sec. 2. When Omitted. 
 
 The verification may be omitted, in a case Avhere it is 
 not otherwise specially prescribed by law, where the 
 party pleading would be privileged from testifying as a 
 witness, concerning an allegation or denial contained in 
 the pleading. ( Co. Civ. Proc. § 523 ) . A defendant is not 
 excused from verifying his answer to a complaint, charg- 
 ing him with having confessed or suffered a judgment, 
 or executed a conveyance, assignment, or other instru- 
 ment, or transferred or delivered money, or personal 
 property, with intent to hinder, delay, or defraud his 
 creditors ; or with being a party or privy to such a trans- 
 action by another person, with like intent towards the 
 creditors of that person; or with any fraud whatever, 
 affecting a right or the property of another. (Co. Civ. 
 Proc. § 529 ) . These sections apply only to a case, where 
 the allegations which come within the privilege, are con- 
 tained in a pleading to be answered. They do not extend 
 to cases where new matter of avoidance, or a counter- 
 claim is set up, containing allegations as to which the 
 pleader would be excused from testifying. (Fredericks 
 V. Taylor, 52 N. Y. 596 ) . Where a party claims the right 
 to serve an unverified answer in an action for criminal 
 conversation against him, he should either serve with his 
 answer, or present upon a motion made to set aside the 
 answer, an affidavit, showing that the answer would 
 tend to disgrace him ; without such an affidavit the court 
 cannot assume that the answer would have any such 
 tendency. (Roache y. Kwlin, 25 Unix, 150). But if the 
 complaint charged the defendant with an act, which if 
 true would subject him to be punished as for a crime, he 
 may serve an unverified answer without such an affi- 
 davit. (Anderson v. Doty, 33 Hun, 238). In other 
 
338 PRACTICE. 
 
 words, where the complaint does not show on its face that 
 the defendant would be privileged, the aflS davit must be 
 served. (Dehn v. Manderille, 68 Hun, 335). When a 
 party is excused from verifying a pleading, he need not 
 verify any of the allegations in the pleading. {Wheeler 
 V. Dixon, 14 How. Pr. 151 ; Blaisdell v. Raymond, 6 Abb. 
 Pr. 148) . In an action brought by a creditor of a manu- 
 facturing corporation, against the trustees, to enforce 
 a liability incurred by reason of a failure to file the an- 
 nual report, the defendant is entitled to serve an unveri- 
 fied answer. ( Oadsden v. Woodward, 103 N. Y. 242 ) . A 
 husband sued for divorce on the ground of adultery, need 
 not verify his answer. (Co.Civ.Proc.§ 1757). Nor need the 
 defendant in an action for libel serve a verified answer 
 [Wilson V. Bennett, 2 Civ. Proc. Eep. 34) ; and no affi- 
 davit is necessary. {Goff v. Btar Printing Co., 21 Abb. 
 N. C. 211). In an action for money received contrary 
 to the statute of betting and gaming, in which the plain- 
 tiflP does not show whether the defendant received the 
 money as a stakeholder, or winner, the defendant was not 
 permitted to serve an unverified answer, unless he made 
 it appear that he received the money as winner. ( Lynch 
 V. Todd, 13 How. Pr. 546). So, in an action for negli- 
 gence for wrongfully and immoderately driving upon the 
 public highway while the defendant was intoxicated, the 
 answer need not be verified and no affidavit is necessary. 
 [Rutherford v. Krause. 8 Misc. 547). To avail himself 
 of the privilege, the defendant must deny the allegations 
 in the complaint and omit the verification ; a statement 
 in his answer that he declines to answer such allegations, 
 because to do so might subject himself to criminal pros- 
 ecution, is an admission of the allegations. [Scovill v. 
 New, 12 How. Pr. 319 ) . Leave of the court to serve an 
 unverified pleading is not required. [Moloney v. Doics, 
 2 Hilt. 247). Where the right to serve an unverified 
 pleading is disputed, it should be decided either by a mo- 
 tion to strike it out, or to compel its acceptance, if it 
 has been returned [Fredericks v. Taylor, 52 N. Y. 596) ; 
 or for judgment upon it because the pleading is not veri- 
 fied. (ilfoZonei/v. Z)o?r-';,2Hilt. 247). Section 529 is not 
 limited to fraudulent transfers of property, but covers 
 
GENERAL REGULATIONS IN REGARD TO PLEADING. 339 
 
 an action for deceit for false representations in tlie sale 
 of stock. {Becldey v. GhamherVui, 65 Hun, 37). 
 
 Sec. 3. By Whom Made. 
 
 Subdivision 1. — By a Party. 
 
 The verification must be made by the affidavit of the 
 party, or if there are two or more parties united in in- 
 terest, and pleading together, by at least one of them, 
 who is acquainted with the facts, except as otherwise 
 required in this section. (Co. Civ. Proc. § 525). One 
 for whom the action is prosecuted or defended, although 
 not a party to the record, may verify the pleading under 
 this section. {Tabor v. Gardner, 6 Abb. Pr. N. S. 147; 
 appeal dismissed, 41 N. Y, 232). A guardian ad litem 
 may verify as a party, but not as agent or attorney ( Clai/ 
 V. Baker, 41 Hun, 58) ; but he cannot do so until he has 
 been actually appointed. (Hill v. Thacter, 3 How, Pr. 
 407). If the defendants are united in interest, any one 
 of them can verify a joint pleading {Zoellner v. N'eK).- 
 herger, 1 Law Bull. 29; Paddoolc v. Palmer, 32 Misc. 
 427 ) , but if the interests of the parties are several, each 
 must verify the pleading. {Gray v. Kendall, 5 Bosw. 
 666; Wendt v. Peyser, 14 Hun, 115) ; it has been held, 
 accordingly, that in an action against the maker and in- 
 dorser of a note the defendants are not so united in 
 interest that one can verify for both {Hull v. Ball, 14 
 How. Pr. 305) ; the same ruling has been made in an 
 action against a husband and wife, to set aside a fraudu- 
 lent conveyance to the wife {Youngs v. Seeley, 12 How. 
 Pr. 395) ; but in an action against the husband and wife, 
 claiming damages against them jointly, the husband may 
 verify the answer alone, although the contract was made 
 in regard to the joint property of the wife. {Hartley v. 
 ./ajnes, 18 Abb. Pr. 299). 
 
 Subdivision 2. — Where Party is a Domestic Corpora- 
 tion. 
 
 Where the party is a domestic corporation, the verifica- 
 tion must be made by an officer thereof. ( Co. Civ. Proc. 
 § 525, subd. 1) . A verification by an officer of a dome^ic 
 
340 PRACTICE. 
 
 corporation under this subdivision, is deemed a verifica- 
 tion by the party, within the rule that it is not necessary 
 to state the grounds of his belief, or the reason why the 
 verification is made by him. {Am. Insulator Co. v. B. & 
 M. Telg. Co., 7 Civ. Proc. Rep. 443). A "trustee and 
 director" of a corporation is an "officer" within the mean- 
 ing of this section. {Bigelow v. The Whitehall Mfg. Co., 
 1 City Ot. Eep. 138). A "general manager" is not such 
 an "ofiflcer." (Melon & Sons, Ltd. v. I sham Wagon Co., 
 15 Civ. Proc. Rep. 259). An ex-president cannot verify 
 under this section, even though all the officers have 
 resigned and none have been elected in their places. 
 (Kelly V. The Woman Publishing Co., 15 Civ. Proc. Rep. 
 259). An attorney who swears that 'he is the duly au- 
 thorized attorney and agent appointed by a corporation 
 to verify petitions and pleadings in behalf of the cor- 
 poration for the institution of condemnation proceed- 
 ings, and is the agent of the corporation for the purpose 
 of acquiring real estate' is an "oflBcer" within section 
 525. (Matter of St. L. & A. R. R. Co., 133 N. Y. 270, 
 278). 
 
 Subdivision 3. — When the People or a Public Officer 
 ARE A Party. 
 
 When the people of the state are, or a public officer, in 
 their behalf, is the party, the verification may be made 
 by any person acquainted with the facts. (Co. Civ. Proc. 
 §'525,'subdv. 2). 
 
 Subdivision 4. — When Verificatiox May be Made by 
 Agent or Attorney. 
 
 Where the party is a foreign corporation ; or where the 
 party is not within the county where the attorney resides, 
 or if the latter is not a resident of the state, the county 
 where he has his office, and capable of making the affi- 
 davit ; or if there are two or more parties united in in- 
 terest, and pleading together, where neither of them, 
 acquainted with the facts, is within that county^ and 
 capable of making the affidavit; or where the action or 
 defense is founded upon a written instrument for the 
 
GENERAL KEGULATIONS IN REGARD TO PLEADING. 341- 
 
 payment of money only, wliicli is in the possession of tlie 
 agent or tlie attorney ; or where all the material allega- 
 tions of the pleading are within the personal knowledge 
 of the agent or the attorney ; in either case, the verifica- 
 tion may be made by the agent of, or the attorney for the 
 party. (Co. Civ. Proc. § 525, subd. 3). In an action 
 upon an account, the bill of items furnished under sec- 
 tion five hundred and thirty-one, may be verified by the 
 agent or attorney, if the facts are within his personal 
 knowledge, or if the party is not within the county where 
 the attorney resides, or capable of making the affidavit. 
 (Co. Civ. Proc. § 531). If a party is absent from the 
 county, the verification may in all cases, be made by the 
 agent or attorney, although it is made upon information 
 and belief, and although it allege that the party have no 
 knowledge or information sufficient to form a belief. 
 {Neubergcr v. Webb, 24 Hun, 347) . It must be borne in 
 mind, however, that the pleading cannot deny informa- 
 tion of some fact which must be within the party's 
 knowledge, even though verified properly by the attor- 
 ney. (Pardi v. Conde, 21 Misc. 496). The agent or 
 attorney may verify the complaint, in an action on a 
 written instrument for the payment of money only, 
 which is in his possession, whether his client is in the 
 county or not. [Myers v. (Jl err its, 13 Abb. Pr. 106). A 
 mortgage is not such an instrument. [Peyser v. Mc- 
 Cormach, 7 Hun, 300). The attorney may verify the 
 complaint for a non-resident client, although the client 
 has another agent in the county, from whom the attorney 
 derives his information. [Drcrert v. Appsert, 2 Abb. Pr. 
 165) . But the mere fact that one is the agent for another, 
 will not qualify him to verify all pleadings for his prin- 
 cipal. The character of an agency, that will qualify one 
 to verify a pleading in an action, not founded upon an 
 instrument for the payment of money, must be such as 
 would ordinarily bring all the material allegations of the 
 pleading within his personal knowledge, and he must 
 have acted as substitute for his principal, in the trans- 
 actions in question, and have derived his knowledge of 
 the truth of the allegations of the pleading, by having 
 been a party in effect to the matters in controversy. 
 
342 PRACTICE. 
 
 {Boston Loco. Works v. Wright, 15 How. Pr. 253) . Tlie 
 fact that the attorney cannot find his client within the 
 city where he lives, will not authorize him to make the 
 verification. {Lijons v. Miirat, 54 How. Pr. 23) . AVhere 
 the verification is made by the attorney, the court should 
 see to it that the attorney has sought his information 
 in the proper quarter, and that information should come 
 either from the party, or from some one who has personal 
 knowledge of the facts. {Stcdeker v. Taft, 4 Law Bull. 
 88). If the verification of an answer by the attorney 
 is inconsistent with the allegations of the pleading, the 
 court may in its discretion, require the party to verify 
 the pleading. {Jaillard v. Tomes, 3 Abb. N. 0. 24). A 
 managing agent of a foreign corporation, having charge 
 of its business, and on whom the process was served, 
 may verify the pleading, without stating the grounds 
 of his belief. {Glauhensklee v. The H. & A. Packet Co., 
 9 Abb. Pr. 104). Where all the officers of a domestic 
 corporation are absent from the county where the attor- 
 ney resides he may verify the complaint in an action 
 brought by the corporation. {High Rock Knitting Co. 
 V. Bronner, 18 Misc. 627 ; affd. without opinion, 29 App. 
 Div. 627 ; The Climax Specialty Co. v. Smith, 31 Misc. 
 275). 
 
 Sec. 4. Form of Verification. 
 
 The affidavit of verification must be to the effect, that 
 the pleading is true to the knowledge of the deponent, 
 except as to the matters therein stated to be alleged on 
 information and belief, and that as to those matters he 
 believes it to be true. Where it is made by a person other 
 than the party, he must set forth, in the affidavit, the 
 grounds of his belief, as to all matters not stated upon 
 his knowledge, and the reason why it is not made by the 
 party. (Co. Civ. Proc. § 526). This section must be 
 read in connection with section five hundred and twenty- 
 four which prescribes that the allegations or denials in a 
 pleading must in form, be stated to be made by the 
 party pleading; and that unless they are stated in the 
 pleading to be made upon the information and belief 
 of the party, they must be regarded, for all purposes, as 
 
GENERAL REGULATIONS IN REGARD TO PLEADING. 343 
 
 having been made upon the personal knowledge of the 
 party verifying the pleading, and that an alJegation 
 that the party has not sufficient knowledge or informa- 
 tion to form a belief, with respect to a matter, must, for 
 the same purpose, be regarded as an allegation that the 
 person verifying the pleading has not such knowledge or 
 information. It is not necessary that the form of verifi- 
 cation given in section five hundred and twenty-six 
 should be literally followed; a substantial compliance 
 with it is all that is absolutely essential. ( Waggoner v. 
 Bro'wn, 8 How. Pr. 212). It must, however, be stated 
 that the verification is true "to the knowledge" of the 
 affiant, and the omission of those words is fatal. {Sex- 
 aiier v. Boiren, 10 Abb. Pr. N. S. 335). An allegation 
 that the affiant knows the contents of a paper, and that 
 the same are true, is equivalent to saying that they are 
 true to his knowledge. {Matter of Macaiilay, 94 N. Y. 
 574 ) . If all the facts in a pleading are stated positively 
 and upon the knowledge of the party, it is not necessary 
 to add the words "except as therein stated to be alleged 
 upon information and belief." {Ross v. Loiigiauir, 15 
 Abb. Pr. 326). If all the allegations of the pleading are 
 stated to be made upon information and belief, a verifica- 
 tion is sufficient, which states that the pleading is true, 
 as the affiant is informed and believes {Orvis v. Gold- 
 schmidt, 2 Oiv. Proc. Rep. 314) ; or that the material 
 facts are true as he believes. {Radtvay v. Mather, 5 
 Sandf. 654). The following forms have been held to be 
 insufficient. "The above complaint is true of his own 
 knowledge" {Waggoner v. Brown, 8 How. Pr. 212) ; 
 "that the party has read the pleading, and that the same 
 is true to the best of his knowledge and belief" {Van 
 Home V. Montgomery, 5 How. Pr. 238) ; that the plead- 
 ing "is true except as to the matters therein stated upon 
 information and belief," etc. {Sexauer v. Boiven, 10 
 Abb. Pr. N. S. 335). A verification which substituted 
 the word "facts" for the word "matters" was held to be 
 good {WTielpley v. Van Epps, 9 Paige, 332) ; so also was 
 one which stated that the affiant "believes it to be true ;" 
 all the allegations there being made on information and 
 belief. {Duffy v. Brady, 4 Abb. Pr. 432) . If the verifi- 
 
344 PEACTICB. 
 
 cation is made by the agent or attorney, an omission to 
 state the reasons why it is made by him, is fatal, and the 
 party may treat the pleading as unverified. (Fitch v. 
 Bigeloiv, 5 How. Pr. 237 ) . So also, an omission to state 
 the grounds of the belief of the attorney or agent, making 
 the verification, is fatal. ( Treadicell v. Fassett, 10 How. 
 Pr. 184; Robinson v. Ecuador Development Co., 32 Misc. 
 106 ) . Where the denial was on information and belief, a 
 verification by the attorney, who gave as a reason that 
 the defendant was out of the county, and as grounds of 
 his belief, statements made to him by his client, was held 
 sufiicient to raise an issue [Neuherger v. Webb, 24 Hun, 
 347) ; but in a case in the court of common pleas, where 
 the allegation in the answer was that the defendant had 
 no knowledge or information sufiicient to form a belief, 
 and the answer was verified by the attorney, the court 
 held that such verification was not good, saying that the 
 attorney could not verify a pleading from a conversation 
 which he had with one of the defendants, that they had no 
 knowledge or information sufficient to form a belief as to 
 the allegations which were thus denied. (Stedeker v. Ber- 
 nard,12 Daly,212 ; see also Pardi v. Gonde, 27 Misc. 496) . 
 If the action is upon an instrument for the payment of 
 money only, which is in the possession of the attorney, 
 a statement of that fact is a sufficient reason for his 
 making the verification {Matthews v. Smith, 9 Oiv. Proc. 
 Rep. 165), and it is also a sufficient statement of the 
 grounds of his belief. {Hyde v. Salg, 27 Hun, 369). A 
 pleading, in which nothing is stated on information and 
 belief, verified by an agent or attorney, who after the 
 formal prescribed affidavit of verification states the 
 sources of his information and the grounds of his belief 
 was held good in Beyer v. Wilson (46 Hun, 397), and 
 bad in Moran v. Helf (52 App. Div. 481). The latter 
 rule seems more consonant with reason and good sense. 
 In such an action, the attorney for the plaintiff may 
 properly verify the reply, but he should state, in verify- 
 ing that pleading, the grounds of his belief, and the 
 reasons why the verification is not made by the plaintiff, 
 which statement, it seems, should be something different 
 from the mere fact that the action is upon an instrument 
 
GENERAL REGULATIONS IN REGARD TO PLEADING. 345 
 
 for the payment of money only. {Kirkland v. Aiken, 66 
 Barb. 211). The verification must be subscribed by the 
 person making it, and must be sworn to, before some per- 
 son authorized to take affidavits. It may be sworn to 
 before the clerk or law partner of the attorney for a 
 party, or before his counsel, but if it is sworn to before 
 his attorney of record, the verification is irregular. 
 (Gilmore v. Hempstead, 4 How. Pr. 153). Where a 
 pleading is sworn to without the state, and the verifica- 
 tion was not certified in the manner required to entitle 
 a deed to be recorded in this state, it was treated as un- 
 verified. {Phelps V. Phelps, 6 Civ. Proc. Kep. 117). 
 
 Sec. 5. Remedy for Defective Verification. 
 
 The remedy for a defective verification of a pleading, 
 is to treat the same as an unverified pleading. Where 
 the copy of a pleading is served without a copy of a suffi- 
 cient verification, in a case where the adverse party is 
 entitled to a verified pleading, he may treat it as a nullity, 
 provided he gives notice with due diligence, to the attor- 
 ney of the adverse party, that he elects so to do. (Co. 
 Civ. Proc. § 528). A delay in taking advantage of a 
 defective verification is a waiver of the right to object to 
 it. (Wilson V. Bennett, 2 Civ. Proc. Rep. 34). The 
 objection that the pleading is not properly verified can- 
 not be taken at the trial. (Schwarz v. Oppold, 74 N. Y. 
 307). The precise defect in a verification should be 
 pointed out when it is Returned ; it is not sufficient to say 
 simply, that the pleading is not properly verified. 
 (Snape v. Gilbert; 33 Hun, 494). If the verification of 
 the complaint is defective, the party may treat it as un- 
 verified, and need not verify his answer. (Qitinn v. 
 Tilton, 2 Duer, 648 ; TreadweU v. Fassett, 10 How. Pr. 
 184 ) . Where several defendants, not united in interest, 
 join in an answer, and one only verifies it, the pleading 
 is good as to him, and it cannot be returned; and the 
 remedy of the plaintiff is to give prompt notice that the 
 plaintiff requires an answer verified by all the defend- 
 ants. (Hull V. Ball, 14 How. Pr. 305) . If the objection 
 to the verification is not apparent upon its face; as for 
 instance, it is made before an officer who is disqualified ; 
 
346 PRACTICE. 
 
 the defect can only be taken advantage of by a motion to 
 set aside the pleading, because it is not properly verified. 
 {Gilmore v. Hempstead, 4 How. Pr. 153). Where any 
 pleading subsequent to the complaint is not properly 
 verified, the party may move for judgment on account of 
 the defective verification, or he may present the question 
 for determination by a motion to strike out the pleading, 
 in case it has been served, or to compel its acceptance, in 
 case of a refusal to receive it. {Fredericlcs v. Taylor, 52 
 N. Y. 596 ) . These decisions were made under the code of 
 procedure, but no reason is seen why they are not appli- 
 cable under section five hundred and twenty-eight. Al- 
 though the pleading is not properly verified, or the 
 verification is defective, a motion to compel a party to 
 verify the pleading will be denied. {Ralph v. Husson, 
 51 Super. 515). 
 
 ARTICLE IV. 
 
 CONSTRUCTION OF PLEADINGS. 
 
 SECTIOIf. 
 
 1. Rules of construction. 
 
 2. What deemed admitted. 
 
 Sec. 1. Eules of Construction. 
 
 The allegations of a pleading must be liberally con- 
 strued, with a view to substantial justice between the 
 parties. (Co. Civ. Proc. § 519).- It was formerly the 
 settled rule, to construe doubtful pleadings most 
 strongly against the pleader, but this rule has been so far 
 modified by the code, as now to require them to be liber- 
 ally construed, with a view to substantial justice between 
 the parties. This modification has, however, been held 
 to extend only to matters of form, and not to apply to the 
 fundamental requisites of a cause of action. The con- 
 struction of doubtful or uncertain allegations in a 
 pleading, which enables a party by thus pleading, to 
 throw upon his adversary the hazard of correctly inter- 
 preting their meaning, is no more allowable now, than 
 formerly; and when a pleading is susceptible of two 
 meanings, that shall be taken which is most unfavorable 
 
GENERAL REGULATIONS IN REGARD TO PLEADING. 3.471 
 
 to the pleader. {Clark v. Dillon, 97 N. Y. 370; Farrell 
 V. Amherg, 8 Misc. 220; affd. without opinion, 151 N. Y. 
 670). As to matters of form, however, that construction 
 is to be taken which is most favorable to tlio pleader. 
 XProiitij V. Whipple, 10 Wk. Dig. 387). But in matters 
 of substance, the law will not assume in favor of the 
 pleader, any fact which he has not averred, nor will it 
 accept as a fact, any conclusion of the pleader as to 
 malice, fraud, or evil intent on the part of his adversary. 
 {Malone v. Slicnnan, 49 Super. 530). If the pleader 
 omits to allege a fact material to his cause of action or 
 defense, the fact thus omitted is presumed not to exist. 
 (CriKjei- V. The Hudson River Railroad Co., 12 N. Y. 
 190, 201). The meaning of a pleading must be found 
 within the pleading itself ( Weeks v. Ketcltas, 1 N. Y. St. 
 Eep. 96), and it cannot be inferred from the intention of 
 the pleader sought in facts outside of the paper. ( Gould 
 V. Glass, 19 Barb. 179) . The court will construe a plead- 
 ing so as to make it rational rather than an absurdity 
 {Olcott V. Carroll, 39 N. Y. 436). A verified pleading 
 must be construed if possible, so that all parts of it will 
 harmonize. (Ryle v. Harrington, 4 Abb. Pr. 421) . Any 
 general statements in a pleading, which are intended to 
 be qualified, must be taken with such qualification. 
 (Page v. Bogd, 11 How. Pr. 415). Notwithstanding the 
 rule laid down in section five hundred and nineteen, the 
 judgment must still be secundum allegata et probata. 
 {Southwick V. First Nafl Bk., 84 N. Y. 420) . The party 
 setting up a cause of action in tort, cannot at the trial, 
 convert it into a cause of action on contract. {Neu- 
 decker v. Kohlherg, 81 N. Y. 296). A more liberal rule 
 of construction of the pleading is adopted upon the trial, 
 than if the objection is taken by demurrer {Bt. John v. 
 ISforthrup, 23 Barb. 25) ; or by motion. {Wall v. Buffalo 
 Water Works, 18 N. Y. 'll9). Even on demurrer, a 
 pleading will not be deemed insufficient, for the reason 
 that the facts are imperfectly^, or informally averred, or 
 that the pleading lacks definiteness and precision, or that 
 the material facts are only argumentatively alleged. The 
 complaint is deemed to allege whatever can be implied 
 fjom the allegations therein, by fair and reasonable in- 
 
348 PRACTICE. 
 
 tendment, and facts impliedly averred, are traversable 
 in the same manner as though directly alleged. {Marie 
 V. Garrison, 83 N. Y. 14, 23) . Upon the trial, avterments 
 which point out the nature of the pleader's claim, are 
 sufficient if under them he could give evidence to support 
 it. [Berney v. Drexel, 33 Hun, 34, 419; Coatsworth v. 
 Leigh Valley R. Co., 156 N. Y. 451). A liberal interpre- 
 tation must always be given to the pleading, to sustain 
 verdicts and judgments, when the parties have not been 
 misled or injustice done. (Graves v. Waite, 59 N. Y, 
 156, 162 ) . Where the same word, used in a pleading, has 
 different meanings, one the result of judicial or statutory 
 definition, and the other founded simply on an inaccurate 
 popular use, the latter can only be adopted in construing 
 a pleading, where it plainly appears from other aver- 
 ments, or the whole tenor of the pleading, that such was 
 the sense in which it was employed. (Cook v. Warren, 
 88 N. Y. 37). A restricted meaning will never be given 
 to words susceptible of a more liberal construction, un- 
 less the whole tenor of the pleading shows that the 
 language was used in a restricted sense, when such re- 
 stricted sense would exclude a defense on the merits. 
 (Glare v. The National City Bank, 35 Super. 261). A 
 clerical error in a pleading, which has not misled the 
 opposite party, will always be disregarded. (Roussel v. 
 St. Nicholas Ins. Co., 41 Super. 279; Traver v. Eighth 
 Av. R. R. Co., 4 Abb. Ct. App. 422). If the allegations 
 of the answer are vague and uncertain, and the plaintiff 
 goes to trial without moving to make them more definite 
 and certain, they will be taken most strongly against 
 him. (Wall v. Buffalo Water Works, 18 N. Y. 119). 
 If it is doubtful on the wording of an answer, whether it 
 sets up a counter-claim or payment, it will be construed 
 as alleging payment, and not as a counter-claim. ( Bates 
 V. Rosekrans, 23 How. Pr. 98). Conclusions of law will 
 not be regarded. (Art. 1, Sec. 2, ante). If the place 
 where a thing occurred is material, an ambiguous allega- 
 tion regarding it, will be construed most strongly against 
 the pleader. (Beach v. Bay Stnte Co., 30 Barb. 433). 
 To determine whether the facts disclose a defense^ the 
 complaint and the answer will be construed together. 
 
GENERAL REGULATIONS IN REGARD TO PLEADING. 349 
 
 \Munger v. Shannon, 61 N. Y. 251). If the nature of 
 the action is doubtful, the prayer for relief may be con- 
 sulted to ascertain it. If the complaint states a cause of 
 action for damages, and asks judgment for damages, the 
 action is to be deemed legal, rather than equitable in its 
 nature, although unnecessary allegations are inserted, 
 and the prayer for damages is coupled with a prayer for 
 alternative relief, to which the plaintiff is not entitled. 
 {Graves y. Spier, 58 Barb. 349). 
 
 Sec. 2. What Deemed Admitted. 
 
 Each material allegation of the complaint, not con- 
 troverted by the answer, and each material allegation of 
 new matter in the answer, not controverted by the reply, 
 where a reply is required, must for the purposes of the 
 action, be taken as true. But an allegation of new 
 matter in the answer to which a reply is not required, or 
 of new matter in a reply, is to be deemed controverted by 
 the adverse party, by traverse or avoidance as the case 
 requires. (Co. Civ. Proc. § 522). The failure to deny 
 does not under this section, admit any allegations in a 
 pleading, as to the meaning or contents of a paper, set 
 out in it, or annexed to, or made a part of it {Bonnell v. 
 Griswold, 68 N. Y. 294) ; nor any conclusions of law set 
 forth in a pleading, except so far as they may be legiti- 
 mate deduction from the facts (Alamango v. Super- 
 visors of Albany Co., 25 Hun, 551) ; nor the correctness 
 of inferences drawn from the facts stated; but only the 
 truth of such facts as are alleged in the pleading. {Bo- 
 gardus v. N. Y. Life Ins. Co., 101 N. Y. 328). It is only 
 the material allegations of the pleading which are 
 deemed to be admitted. {Sands v. St. John, 36 Barb. 
 628; affd. 29 How. 574). Every allegation is material, 
 unless it may be struck out as surplusage, and whatever 
 cannot be so struck out would be deemed admitted under 
 this section, if it were not controverted. {Mayor of 
 Albany v. Cunliff, 2 N. Y. 165, 170). Where there is no 
 denial of the allegations of the complaint, but only alle- 
 gations of new matter inconsistent with it, all the facts 
 alleged in the complaint are deemed to be admitted. 
 {Fleischmann v. Stern, 90 N. Y. 110, 114). In an action 
 
350 PRACTICE. 
 
 of trespass, the complaint alleged the possession and 
 ownership of the locus in quo; the answer was that de- 
 fendant was the owner of lands adjoining lands of the 
 plaintiff, and that he entered to remove obstructions un- 
 lawfully placed thereon, and concluded by denying the 
 allegations of the complaint, except as heretofore an- 
 swered. Under this pleading, it was held that the owner- 
 ship and possession in the plaintiff, of the locus in quo, 
 were admitted by the pleading. ( Potter v. Smith, 70 N. 
 Y. 299). If a pleading has been amended, it is deemed 
 to be abandoned, and the admissions in it do not avail 
 the other party. (Brown v. Feeter, 7 Wend. 301; Fry 
 V. Bennett, 3 Bosw. 200; Nat'l Pipe Bending Co. v. 
 Fisher, 87 Hun, 175 ) . Whenever a defense is intended as 
 a counter-claim, it should be explicitly stated in the 
 answer, so as to advise the opposite party, and in the 
 absence of such a statement, especially when the pleader 
 defines and characterizes his answer as a defense, and it 
 is uncertain whether a counter-claim is intended, he is 
 not in a position to insist that he has set up a counter- 
 claim, and that the plaintiff has admitted it by a failure 
 to serve a reply. {Equitable Life Ass. Soc. v. Guyler, 75 
 N. Y. 511, 514). Where an admission in a pleading is 
 alone relied upon by the opposite party to establish a 
 fact, any statement made, in connection with the ad- 
 mission, of another fact, which would nullify the effect 
 of the admission, must also be taken as established, and 
 the whole of the statement must be taken and construed 
 together; but this rule does not prevent the party who 
 claims the benefit of the admission, from disproving the 
 fact so alleged in connection with it, and so far as it is 
 disproved, it is of no avail. ( Gildersleeve v. Landon, 73 
 N. Y. 609 ) . Whatever is admitted by a pleading cannot 
 be contradicted in a subsequent pleading, nor upon the 
 trial, nor in a finding. (Cleveland v. Hatch, 25 Hun, 
 308 ; Page v. Willet, 38 N. Y. 28 ) . A finding by a referee, 
 of a fact, which- contradicts the admissions in the plead- 
 ing, will be set aside. (Ballou v. Parsons, 11 Hun, 602) . 
 This section applies to an answer served upon co- 
 defendants under section 521. {Havana City Ry. Co. 
 V. Ceballos, 49 App. Div. 421). 
 
3ENERAL REGULATIONS IN REGARD TO PLEADING. 351 
 
 AETICLE V. 
 
 COPY OF ACCOUNT. 
 
 It is not necessary for a party to set forth, in a plead- 
 ing, the items of an account therein alleged ; but in that 
 case, he must deliver to the adverse party, within ten 
 days after a written demand thereof, a copy of the ac- 
 count, which, if the pleading is verified, must be verified 
 by his affidavit, to the effect, that he belreves it to be 
 true; or, if the facts are within the personal knowledge 
 of the agent or attorney for the party, or the party is not 
 within the county where the attorney resides, or capable 
 of making the affidavit, by the aflidavit of the agent or 
 attorney. If he fails so to do, he is precluded from giving 
 evidence of the account. (Co. Civ. Proc. § 531). It was 
 held by the superior court, that this section applied only 
 to actions brought upon accounts stated. {Moore v. 
 Belloni, 42 Super. 184 ; Johnson v. Mallory, 2 Robt. 681). 
 But in the later case of Barldey v. Rens. & Saratoga R. 
 R. Co. (27 Hun, 515), the supreme court at general term 
 held that the defendant was entitled to a copy of account 
 in almost every claim on contract which consisted of 
 several items; and that the term "account" as used in 
 section five hundred and thirty-one includes nearly all 
 such claims; and the case of Johnson v. Mallory above 
 cited, was overruled. The case of Barldey v. The Rens. 
 & Saratoga R. R. Co., was an action to recover a balance 
 due for a large quantity of wood delivered by the plain- 
 tiff to the defendant; and the court in that case, held 
 that it was the duty of the plaintiff upon demand, to have 
 served a copy of his account upon the defendants. 
 Wherever an account is alleged in pleading without 
 items, the party upon demand is entitled to a bill of 
 items. {Wells v. VanAken, 39 Hun, 315). Upon a mo- 
 tion under section 531, for the items of an account, affi- 
 davits are not essential; the face of the pleadings may 
 disclose the right of the moving party to the relief asked. 
 {Badger v. Gilroy, 21 Misc. 466) . It is to be noted that, 
 when duly demanded, the copy of an account alleged in 
 
352 PRACTICE. 
 
 a pleading is a matter of right, not of discretion (Id.). 
 The party seeking it must demand a copy of the account, 
 but an order for it is not necessary in the first instance. 
 {Dowdney v. Volkening, 37 Super. 313). The copy of 
 account should state each item, with its date, amount 
 and general character. (Kellogg v. Paine, 8 How. Pr. 
 329). Where a bill of items was served, contain- 
 ing the items of services sued for, but not plac- 
 ing a value on any separate item, it was held 
 not to be suflflcient. (Oolwell v. Ludlam, 1 Law 
 Bull. 42). Where a bill of items of payments 
 showed the payments to various persons, and the aggre- 
 gate amount, but not the separate amount of each pay- 
 ment, it was held not to be sufficient; and it was held 
 that the name of each payee and the sum paid to him 
 should be stated. {Chandler v. Stevens, 2 Law Bull. 5) . 
 Where an action is upon an account, all the items of the 
 account on each side, both debit and credit, should be 
 given in the copy of the account. {Gandee v. Doying, 5 
 Oiv. Pro. Rep. 92 ; Union Hardware Co. v. Flagler, 8 N. 
 Y. St. Eep. 894 ) . If the account served is not sufficiently 
 definite, the party must move for a further account {Mg- 
 Kinney v. McKinney, 12 How. Pr. 22 ) ; which he may do 
 at any time before trial, even after a reply has been 
 served. (Tafes v. 5 t^fe/ow, 9 How. Pr. 186). An order 
 for a further account should contain the points in respect 
 to which the further specifications are required. [Kel- 
 logg V. Paine, 8 How. Pr. 329). The court may order a 
 more particular statement, in the specification of any 
 item of the account. (TFeZZs v. YanAken, 39 Hun, 315). 
 The case of Hoff v. Pentz (1 Abb. N. C. 228), so far as it 
 holds to the contrary, is overruled. 
 
 The penalty for a failure to serve an account upon 
 demand, is that the party shall be precluded from giving 
 evidence of the account. (Co. Civ. Proc. § 531). The 
 order that he should be so precluded should be obtained 
 at special term on application preliminary to the trial. 
 {Gebhard v. Parker, 120 N. Y. 33). The objection can- 
 not be taken at the trial without such an order. [Bartow 
 V. Sidivay, 72 Hun, 435) . A party will not be precluded 
 
GENERAL REGULATIONS IN REGARD TO PLEADING. 353 
 
 from giving evidence, unless there is a total failure to 
 serve an account. {Schulhoff v. Go-Operatwe Dress 
 Assn., 3 Civ. Proc. Rep. 412). 
 
 ARTICLE VI. 
 
 BILL OF PAKTICULAE8. 
 
 SECTION. 
 
 1. In what cases granted. 
 
 2. Application for the order. 
 
 3. The order. 
 
 4. What the bill should contain. 
 
 5. A further bill. 
 
 6. Effect of the bill. 
 
 7. Penalty for disobedience. 
 
 Sec. 1. In what Cases Granted. 
 
 The court may, in any case, direct a bill of particulars 
 of the claim of either party, to be delivered to the adverse 
 party. (Co. Civ. Proc. § 531). The power of a court of 
 original jurisdiction, under this section extends to all 
 descriptions of actions, and it may be exercised as well 
 in behalf of the plaintiff, as of the defendant, whenever 
 justice demands that a party should be apprised of the 
 matter for which he is to be put to trial, with more par- 
 ticularity, than is required by the rules of pleading. 
 (DiDight V. Germania Life Ins. Co.. 84 N. Y. 493). A 
 defendant may be required to serve a bill of particulars 
 as to the matters set forth in his answer, which is 
 effectual only as a defense, as well as matters set up as a 
 counter-claim. (Kelsey v. Sargent, 100 N. Y. 602). It 
 will not be granted, however, where the answer is prac- 
 tically a general denial, though affirmative in form. 
 (Goddard v. Medicine Co., 52 Hun, 85). Whether or 
 not a bill of particulars shall be granted is always in the 
 discretion of the court. (WitJcowsJci v. Paramore, 93 N. 
 Y. 467; Badger v. Gilroy, 21 Misc. 466). The action of 
 the court cannot be reviewed in the court of appeals. 
 {Id.; Co. Civ. Proc. § 190). A bill of particulars can 
 only be obtained by order of the court. {Poiccrs v.. 
 Hughes, 39 Super. 482.) Its office is to amplify the 
 pleadings, so as to indicate specifically the claim set up, 
 
354 PRACTICE. 
 
 and limit the generality of the pleading, and thus prevent 
 surprise in the trial {Higeiibotam v. Green, 25 Hun, 214 ; 
 Oee V. Chase Man. Co., 12 Hun, 630) ; or as is stated in 
 another case, it is to give information of the specific 
 proposition for which the pleader contends, in respect 
 to any material issuable fact in the case. (Ball v. Even- 
 ing Post Pill). Co., 38 Hun, 11). The effect of it is to 
 restrict the proof to the matters specified, and to limit 
 the demand to those matters. {Id.; Matthews v. Hub- 
 hard, 47 N. Y. 428). It is not intended to disclose the 
 evidence which is relied upon by the party. {Ball v. 
 Evening Post Puh. Co., 38 Hun, 11; Van Olinda v. Hall, 
 82 Hun, 357). Although a party has a remedy by a 
 notion, to make the pleading definite and certain, he is 
 not compelled to rely upon that, but may apply for a bill 
 of particulars. {Tilton v. Beecher, 59 N. Y. 176, 183; 
 Ball V. Evening Post Pub. Co., 38 Hun, 11). It will 
 not ordinarily be allowed, where the information asked 
 for is particularly within the knowledge of the party 
 asking for it. {Fink v. Jetter, 38 Hun, 163; Wigand v. 
 DeJonge, 18 Hun, 405). Where, however, the pleading 
 involves transactions of great number, the court may 
 direct a bill of particulars to be delivered, even though 
 the transactions are known to the party asking 
 for it. {Roberts v. Safety Buggy Co., 1 App. Div. 
 74; Fruin-Bambrick Cons. Co. v. Marks, 48 App. Div. 
 51). In actions on money demands consisting of 
 various items, a bill of particulars of the dates and 
 description of the transactions, out of which the indebt- 
 edness is claimed to have arisen, is granted almost as 
 a matter of course. But it is an error to suppose that 
 bills of particulars are confined to actions involving an 
 account, or to actions, for the recovery of money de- 
 mands arising upon contracts. They are appropriate in 
 all descriptions of actions, where the circumstances are 
 such that justice demands that a party should be ap- 
 prised of the matter for which he should be put to trial, 
 with greater particularity, than is required by the rules 
 of pleading. {Tilton v. Beecher, 59 N. Y. 176, 183) . In 
 actions of tort, however, they are not usually necessary, 
 because the nature of those actions requires, that the 
 
GENERAL REGULATIONS IN REGARD TO PLEADING. 355 
 
 allegations contained in the pleadings should give the 
 party sufficient information of the facts, which he is 
 required to meet. But, as we have seen, they will be 
 ordered in such actions whenever necessary. A bill of 
 particulars may be granted in an action of libel. (Ball 
 V. Evening Post Puh. Co., 38 Hun, 11; Daniel v. Daniel, 
 2 Civ. Proc. Kep. 238). A bill of particulars may be 
 granted before answer only where it is necessary to en- 
 able the defendant to answer. [Watcrtoirn Paper Co. 
 V. West, 3 App. Div. 451; McClcllan v. Duncombe, 
 26 App. Div. 353 ) . The court may allow a party to with- 
 draw those allegations in a pleading as to which par- 
 ticulars are asked. {Dyett v. Seymour, 8 N. Y. St. 429; 
 Lamhert v. Perry, 15 N. Y. St. 964). It is unnecessary 
 to cite the numerous cases, in which bills of particulars 
 have been granted or refused ; each case stands upon its 
 own particular circumstances ; but will be decided upon 
 an application of the principles cited above. 
 
 Sec. 2. Application for the Order. 
 
 The application must be made by a motion to the 
 court, on notice. ( Clegg v. American Newspaper Union, 
 7 Abb. N. C. 59) . It may be had by the defendant before 
 appearance. (Roosevelt v. Gardinier, 2 Cow. 463). It 
 was held before the code, that if the application was 
 made by the defendant after issue joined, it was a sus- 
 picious circumstance, and the court would require an 
 excuse for his delay (Andrcivs v. Cleveland, 3 Wend. 
 437) ; but under the code decisions it has become well 
 settled that an order for a bill of particulars will be 
 made as well after issue joined as before. Indeed, the 
 motion is often considered premature if made before 
 answer. [Watertown Paper Co. v. West, 3 App. Div. 
 451) ; and, it sometimes follows that a motion for a bill 
 of particulars has been denied before issue joined, and 
 granted thereafter. {Covin v. Afiranda, 87 Hun, 227; 
 Bullock V. Bullock, 85 Hun, 373). It is much easier 
 to show certain information to be necessary in prepar- 
 ing for trial, than for answer. (Justum v. Bricklay- 
 ers' Union, 78 Hun, 503). It has been intimated, how- 
 ever, that the ability of the party desiring the bill of 
 
356 
 
 PRACTICE. 
 
 particulars to prepare a pleading would be considered 
 as tending to show an ability to prepare for trial without 
 such information. {Hazard v. Birdsall, 16 N. Y. Supp. 
 30). In Winchell v. Martin, 14 Wk. Dig. 458), the fact 
 that the defendant had delayed to ask for a bill of par- 
 ticulars until the day set for trial, was not held a suffi- 
 cient ground for refusing it, where the plaintiff had 
 delayed so long in bringing his action to trial, that it 
 was stale. And in the case of Shaffer v. Holm (28 Hun, 
 264), where the defendant demanded a bill of particu- 
 lars soon after the action was brought, but did not move 
 for it until a year afterwards, it was held that was not 
 laches sufficient to deny the motion. The motion should 
 be Ljade on the affidavit of the party, showing that the 
 specific information which he seeks is not known to him ; 
 and if the affidavit is made by the attorney or agent, the 
 reason why it is not made by the party should be set 
 forth. {Gridlcy v. Gridlep, 7 Civ. Proc. Rep. 215) ; and 
 an order based upon an affidavit made by the attorney 
 giving no such reason cannot be sustained. {Mayer v. 
 Mayer, 29 App. Div. 393). A sufficient reason for the 
 making of the affidavit by the attorney, is not stated by 
 alleging that the party is not a resident of, or within the 
 county where the deponent attorney resides and has his 
 office. {Cohn v. Baldwin, 74 Hun, 563; appeal dis- 
 missed, 141 N. Y. 563). The affidavit should state that 
 the party is ignorant of the matters alleged in the plead- 
 ing, as to which the bill of particulars is asked ; and that 
 the information he seeks is necessary to enable him to 
 prepare for trial. {Dwight v. Ger mania Ins. Co., 22 
 Hun, 167; affd. 84 N. Y. 493). In an action for a tort, 
 the affidavit of the party seeking the bill of particulars, 
 should aver that he was not guilty of the offense or 
 offenses charged in the complaint, and that he has no 
 knowledge or information of the particular fact or facts 
 upon which the adverse party relies, to sustain the 
 charges, or as to which his proof would be directed. 
 {Gridley v. Gridley, 7 Civ. Pro. Rep. 215). It has been 
 held that an affidavit of merits in the moving papers of 
 a defendant shows such knowledge of a defense as to 
 lead to the clear inference that no bill of particulars 
 
GENERAL REGULATIONS IN REGARD TO PLEADING. 357 
 
 is necessary to enable the defendant to plead. {Wolff 
 V. Kaufman, 65 App. Div. 29). This rule must be quali- 
 fied, it is assumed, to the extent that, where the defend- 
 ant shows in his moving papers that he seeks to learn 
 facts which may enable him to set up more than one de- 
 fense, the affidavit of merits will not prevent his secur- 
 ing the necessary information ; the defendant may have 
 more than the one defense upon the merits to which he 
 makes oath. An affidavit that "the party was ignorant 
 of the particulars and facts which the defendants expect 
 to prove, or that he had no knowledge or belief as to the 
 persons, times, or places of the facts, by which the de- 
 fendants propose to establish the material averments in 
 the answer," is wholly insufficient to sustain an order 
 granting a bill of particulars. {Orvis v. Dana, 1 Abb. 
 N. 0.268). 
 
 Sec. 3. The Order. 
 
 It was the former practice to procure an ex-parte 
 order, directing the party to furnish a bill of particulars 
 of the nature specified in the order; or to show cause, 
 at a time therein stated, why he should not do so. 
 {Bretcster v. Sackett, 1 Oow. 571). It is the practice 
 now, however, to move upon notice ; and the order, which 
 can only be made by the court, is, if granted, made per- 
 emptory in the first instance. The order should direct 
 a time when the bill of particulars is to be furnished; 
 should specify the nature and character of the informa- 
 tion to be given ; and should direct what particulars are 
 to be furnished, as to the date, time, or place, or such 
 other information as may be necessary. It should re- 
 quire a sufficiently definite statement, to give the party 
 the requisite information, to enable him to meet the 
 charge which is alleged against him, and to insure him 
 against surprise upon the trial. It should also require 
 the bill of particulars to be verified whenever the plead- 
 ings are verified, unless the case is an exceptional one. 
 {Manning v. Benedict, 31 App. Div. 51). In an action 
 tor conspiracy, an order which directed a statement of 
 all matters relating to the conspiracy alleged in the 
 complaint, was held to be too broad, and was reversed. 
 
358 PRACTICE. 
 
 (Hubbard v. Otis, 17 Wk. Dig. 348). The penalty 
 for disobedience may be inserted in the order. (D wight 
 V. Gennania Ins. Co., 84 N. Y. 493, 505). 
 
 Sec. 4. Wh"at~the Bill Should Contain. 
 
 The bill of particulars is sufficient, if it apprises the 
 party of the grounds of the claim, so that there can be 
 no surprise upon the trial, {t^toicits v. Bajik of Troy, 
 21 Wend. 186). The bill need not specify the names of 
 the parties to the action. ( Gay v. Gary, 9 Cow. 44) . In 
 stating items, it should give their dates, stating the day, 
 if known, and if not known, the date should be given 
 as particularly as practicable. (Humplirey v. Gottlcyou, 
 4 Cow. 54). The amount and general character of each 
 item should also be stated. {Kellogg v. Paine, 8 How. 
 Pr. 329). In an action by an attorney to recover com- 
 pensation for professional services, a bill of particulars 
 is suflflcient, however, that states the items of service and 
 a gross amount claimed. {Doiiohoe v. Pomeroy, 47 N. Y. 
 St. Eep. 74). A bill of particulars, in an action for the 
 death of the plaintiff's intestate, which states certain 
 specifications of negligence and then alleges that the 
 defendants were negligent in other respects, is insuffi- 
 cient {Baker v. Siitton,^ 86 Hun, 588). If an account 
 has been delivered with the pleading, the bill may refer 
 to it without restating it. {Goodrich ads. James, 1 
 Wend. 289). Where an action Avas brought to recover 
 upon a promissory note, and also upon an account, and 
 the note was set out in the pleading, it was held that it 
 need not be stated in the bill of particulars. {People 
 ex rel. 'Waring v. Monroe Com. Pleas, 4 Wend. 200). 
 A party need only state the particulars in his own claim ; 
 he need not give any offsets or payments in the bill of 
 particulars. {Williams v. Shaw, 4 Abb. Pr. 209; Way 
 Manfg. Co. v. Corn, 5 Law Bull. 81). The bill of par- 
 ticulars should comply carefully with the requirements 
 of the order, whatever they may be. Wherever a party 
 cannot give the details required by the order, he should 
 give them as nearly as possible, and state the reason 
 why he is unable to give them more completely. ( Chand- 
 ler V. Stevens, 2 Law Bull. 5). 
 
GENERAL REGULATIONS IN REGARD TO PLEADING. 859 
 
 Sec. 5. A Further Bill. 
 
 If the first bill is not sufScient, or does not comply with 
 the order, the court will order a further bill if neces- 
 sary; and the order for a further bill of particulars 
 should state the points in which the first was defective. 
 {Eellog V. Paine, 8 How. Pr. 329) . If the party has vol- 
 untarily furnished a bill of particulars, it is doubtful 
 whether a further bill should be ordered. {Langdon v. 
 Broimi, 51 Super. 367). Whether or not a further bill 
 will be ordered is, in every case, discretionary. (Hnm- 
 plircy V. Cottleyou, 4 Cow. 54). It will not be ordered, 
 after the trial of an action is begun before a referee. 
 (CadireU v. Ooodenough, 2 Robt. 706). The bill of par- 
 ticulars may be amended after the case is at issue {Ful- 
 ler V. Roosevelt, 4 Cow. 144) ; or after a new trial has 
 been ordered in the action {Spawn v. Veeder, 4 Cow. 
 503) ; or at the trial, if the other party is not surprised 
 or prejudiced. {Parsons v. Sutton, 66 N. Y. 92). A 
 referee may allow a bill of particulars, annexed to the 
 pleading, to be amended at the trial. {Williams v. 
 Davis, 7 Civ. Pro. Eep. 282). 
 
 Sec. 6. Effect of the Bill. 
 
 A bill of particulars does not change the nature of the 
 action. {Seaman v. Loio, 4 Bosw. 337). It is only an 
 amplification of the pleading, and to be construed as a 
 part of it. {Boivman v. Earl, 3 Duer, 691) . It forms no 
 part of the record, however, and the party cannot plead 
 to it. {Kreiss v. Seligman, 8 Barb. 439; Arrotc Steam- 
 ship Go. V. Bennett, 23 Civ. Pro. Rep. 234 ) . The evidence 
 in the case, and the recovery of the party, must be limited 
 to the matters set forth in the bill of particulars ( Bow- 
 man V. Earl, 3 Duer, 691; Morrison v. L'Hommodieu, 44 
 N. Y. Supp. 79) ; except in so far as proof of items not 
 included therein are material on some other point. 
 {Dodge v. Weil, 158 N. Y. 346) . If, however, other items 
 are proved without objection, they may be allowed. {Dn- 
 lois V. D. & H. G. Go., 12 Wend. 334 ; Ghadbourne v. Del. 
 Lack. & W. R. R. Go., 6 Daly, 215 ) . Such objection must 
 be taken when the evidence is offered. ( Golrick v. Swin- 
 hiirnr, 105 N. Y. 503). So, if thp 'I'-fo-nda-nt Drove items. 
 
360 PRACTICE, 
 
 of the plaintiff's account, which are not in the bill of 
 particulars, the plaintiff may recover the amount of such 
 items. (Williams v. Allen, 7 Cow. 316). A party will 
 be held more strictly to allegations in the bill of partic- 
 ulars, than to those in the complaint. Time, although 
 not material in the complaint, may be quite material in 
 the bill of particulars. (Quin v. Astor, 2 Wend. 577). 
 Slight variances between the bill and the evidence, which 
 do not mislead, will not be regarded. (Duncan v. Bay, 
 19 Wend. 530). A party cannot object at the trial, that 
 the bill of particulars is not sufficiently definite. (Barnes 
 V. Henshaio, 21 Wend. 426). A bill furnished volun- 
 tarily is equally binding with one furnished pursuant to 
 an order of the court. (Payne v. Smith, 19 Wend. 122). 
 
 Sec. 7. Penalty for Disobedience. 
 
 The penalty for disobedience may be inserted in the 
 order for the bill of particulars. (Dwight v. Germania 
 Life Ins. Co., 84 N. Y. 493, 505) . If not so inserted, the 
 party may apply upon motion afterwards, that the court 
 direct the penalty for refusal to furnish the bill; and 
 such penalty may be either that he shall be precluded 
 from giving evidence of the matters directed to be stated ; 
 or his proceedings may be stayed until he complies with 
 the order ; or his pleading may be stricken out. ( Gross 
 V. Clarice, 87 N. Y. 272; Wilson v. Fowler, 44 Hun, 89). 
 But the court is reluctant to use this power to strike out 
 a pleading. (Raff v. Koster, 37 App. Div. 534). If the 
 bill of particulars is evasive, and the court can see that it 
 was not furnished in good faith, it may punish the party 
 as for a disobedience to the order. ( Wetmore v. Jennys, 
 1 Barb. 53). 
 
GENERAL REGULATIONS IN REGARD TO PLEADING. 361 
 
 AETKJLE VII. 
 
 AMENDMENTS OF PLEADINGS. 
 
 SECTION. 
 
 1. Amendments of course. 
 
 2. Amendments by leave of the court. 
 
 Subd. 1. — Before trial. 
 
 Subd. 2. — At the trial or hearing. 
 
 Subd. 3.— After trial. 
 
 3. Supplemental pleadings. 
 
 4. Terms of amendment. 
 
 Sec. 1. Amendments of Course. 
 
 Within twenty days after a pleading, or the answer, 
 demurrer or reply thereto, is served, or at any time be- 
 fore the period for answering it expires, the pleading 
 may be once amended by the party, of course, without 
 costs, and without prejudice to the proceedings already 
 had. But if it is made to appear to the court, that the 
 pleading was amended for the purpose of delay, and that 
 the adverse party will thereby lose the benefit of a term, 
 for which the cause is or may be noticed, the amended 
 pleading may be stricken out, or the pleading may be 
 restored to its original form, and such terms imposed as 
 the court deems just. (Co. Civ. Proc. § 542). The sum- 
 mons is not amendable of course, under this section. 
 (WaUcenshaw v. Perzel, 7 Robt. 606; Mapes v. Brown, 
 14 Abb. N. C. 94). The right to amend once under this 
 section is absolute. (Cooper v. Jones, 4 Sandf. 699). In 
 the exercise of it, the plaintiff is authorized to amend his 
 complaint by setting forth a new cause of action; and 
 the right is not restricted to setting forth a cause of 
 action of the same class as that contained in the 
 original complaint. He may abandon the original 
 cause of action and include in the amended com- 
 plaint, one o-r more causes of action of a differ- 
 ent class, subject only to the restriction that they 
 all belong to the same class. (Brown v. Leigh, 49 
 N. Y. 78). A party may change the demand for relief 
 (Getty V. Hudson River R. R. Co., 6 How. Pr. 269) ; or 
 may change the place of trial (Stryker v. N. T. Exchange 
 
362 PRACTICE. 
 
 Banh, 42 Barb. 511 ) ; but he cannot set up matter occur- 
 ring after the action was begun ; that can only be done 
 by supplemental pleading. {Anthony v. Day, 5 Wk. 
 Dig. 240). But one amendment of course, is allowed 
 under this section. (Sands v. Calkins, 30 How. Pr. 1). 
 Such amendment of course may be had even when there 
 has been a previous amendment by order of the court. 
 (Lintzenich v. Stei-ciis, 3 N. Y. Supp. 394) . An amended 
 pleading cannot be stricken out under the provisions of 
 this section, as interposed for delay, unless it is made to 
 appear not only that it was served for such a purpose, 
 but also that the effect of its service is to prevent a trial 
 at the ensuing term ; so, if on serving an amended plead- 
 ing, the party seeking to amend stipulates to try the 
 cause at the term for which it is noticed, such amended 
 pleading should not be stricken out. (Harvey v. The 
 Provident 8av. etc. 8oc., 41 App. Div. 410) . If a pleading, 
 which requires an answer, is served by mail, it may be 
 amended within forty days after the service; but if the 
 pleading does not require an answer, the time for amend- 
 ment of course is only twenty days, although it is served 
 by mail. (Toomey v. Andrews, 48 How. Pr. 332; Arm- 
 strong V. Phillips, 20 Civ. Proc. Rep. 399). An order 
 extending the time to reply, does not extend the time to 
 serve an amended complaint. (Daicson v. Bogart, 10 
 Civ. Proc. Rep. 56). Nor does an order extending 
 defendant's time to answer extend the plaintiff's 
 time to amend his complaint. (Albert Palmer Go. v. 
 Shaw, 64 How. Pr. 80). Noticing the action for trial, 
 is not a waiver of the right to amend of course. ( Clifton 
 V. Brown, 27 Hun, 231 ; DuycMnck v. 1^. Y. Elevated B. 
 R. Co., 49 Super. 244). But it^too late, after the taking 
 of proofs after issue is joined. ( Snyder v. White, 6 How. 
 Pr. 321). Where the plaintiff examines the defendant 
 before, trial, he does not thereby waive his right to serve 
 an amended complaint. (StilweU v. Kelly, 37 Super. 
 417) . But where the defendant, in pursuance of an order 
 giving him further time to answer, waives notice of 
 trial, and consents to place the cause on the calendar, 
 and to a reference of the issues, he waives his right to 
 serve an amended answer. (Schwab v. Wehrle, 14 Wk. 
 
GENERAL REGULATIONS IN REGARD TO PLEADING. 363 
 
 Dig. 529). Adding a vepiflcation, is not an amendment 
 under this section {Bishop v. Btdlivan, 3 Law Bull. 7) ; 
 nor is a change of parties {Billings v. Baker, 6 Abb. Pr. 
 213) ; nor a change which does not alter the legal effect 
 of the pleadings. {Snyder v. White, 6 How. Pr. 321). 
 After a demurrer has been served, the defendant cannot 
 serve an answer in place thereof as an amendment under 
 this section. {Cashman v. Reynolds, 123 N. Y. 138). 
 Where, however, the defendant's demurrer has been over- 
 ruled with leave to plead over, and the defendant has 
 answered in accordance with such leave, an amended 
 answer can be served within twenty days after the service 
 of the answer. {Rodkinson v. Oantz, 26 Misc. 268; affd. 
 on op. below, 39 App. Div. 670) . An amended complaint 
 supersedes the original. {Sands v. Calkins, 30 How. Pr. 
 1; N. Y. Wire Co. v. Westiaghoitse, etc. Co., 85 Hun. 
 269). But the original pleading is still admissible in 
 evidence. {Fogg y. Edwards, 20 Hnn, 90). The amend- 
 ment of the complaint relates to the beginning of the 
 action, and prevents the running of the statute of limita- 
 tions against a cause of action not in the original com- 
 plaint. ( Ward V. Kalbfleisch, 21 How. Pr. 283 ) . 
 
 Where a pleading is amended as prescribed in the last 
 section (Co. Civ. Proc. § 542), a copy thereof must be 
 served upon the attorney for the adverse party. A 
 failure to demur to, or answer the amended pleading, 
 within twenty days thereafter^ has the same effect as a 
 like failure to demur to or answer the original pleading. 
 (Co. Civ. Proc. § 543). 
 
 An amendment of the pleading defeats a motion to 
 make it definite and certain {Spiiyten, Diiyvil R. M. Co. 
 V. WilUanis, 1 Civ. Proc. Eep. 280) ; or a motion to strike 
 out for want of a proper verification. {Rider v. Bates, 
 66 How. Pr. 129). And an amendment of the answer 
 defeats a motion for judgment on account of the frivo- 
 lousness of it {Burrall v. Moore, 5 Duer, 654) ; or for a 
 severance of the action and judgment {'N. Y. Wire Co. v. 
 Westinghouse, etc. Co., 85 Hun, 269) ; but where an ac- 
 tion was not brought in the proper county, and the 
 defendant has served a demand to change the place of 
 trial, a subsequent amendment of the pleading, by chang- 
 
364 PRACTICE. 
 
 ing the place of trial to the countj in which the plaintiflf 
 is a resident, does not defeat a motion previously made 
 to change the place of trial to the county of defendant's 
 residence. {Rector v. Eidgicoocl Ice Co., 38 Hun, 293; 
 afifd. without opinion, 101 N. Y. 656). The same rule 
 applies where the motion to change the place of trial is 
 based upon the ground that an impartial trial cannot be 
 had in the county where the venue is laid. {Moulton v. 
 Beecher, 1 Abb. N. C. 193, 238, 239). An amendment of 
 course supersedes a notice of trial. {Ostrander v. Con- 
 key, 20 Hun, 421). If an amendment is unauthorized, 
 the remedy is to move to strike out the pleading ; and if 
 it be made to appear that the amendment was in bad 
 faith and for delay, and that the opposite party will lose 
 the benefit of a term for which the case might have been 
 noticed, the motion will be granted. ( Clifton v. Broion, 
 27 Hun, 231). If a party refuse to receive an amended 
 pleading, and proceed as though it had not been served, 
 he does so at his peril, if he fail to establish that the 
 pleading was served in bad faith and for purposes of 
 delay. {VanderUlt v. Bleeker, 4 Abb. Pr. 289). 
 
 Sec. 2. Amendments by Leave of the Court. 
 
 Subdivision 1. — Before Trial. 
 
 The court may, at any stage of the action, in further- 
 ance of justice, and on such terms as it deems just, 
 amend any pleading, by adding or striking out the name 
 of a person as a party, or by correcting a mistake in the 
 name of a party, or a mistake in any other respect, or by 
 inserting an allegation material to the case. (Co. Civ. 
 Proc. § 723 ) . This section is declaratory of the inherent 
 power of courts to amend. (Christal v. Kelly, 88 N. Y. 
 285). The power given to the court by the code, is ex- 
 ceedingly broad and comprehensive, and includes the 
 right to make almost any amendment which may be re- 
 quired in furtherance of justice. It was held by two 
 judges in the case of Robertson v. Robertson (9 Daly 
 44), that the court could only allow amendments to the 
 pleadings in the precise cases prescribed by the statute 
 and substantially that there was no right of amendment. 
 
GENERAL REGULATIONS IN REGARD TO PLEADING. 365 
 
 except such as was given by the statute. In that case, 
 and the case of Diamond v. WiUiamshurgh Ins. Co. (4 
 Daly, 494 ) , it was held that it was not within the power 
 of the court, to direct an amendment of the complaint, 
 which should set up a new cause of action. The same 
 thing was also held in the case of Van Si/ckels v. Perrt/ 
 (3 Kobt. 621), at a special term of the superior court. 
 But in Byrnes v. Dunn (6 >Ylv. Dig. 140), it was held 
 that at the special term there was no limit to the power 
 of amendment, if a sound discretion was exercised. In 
 Hatch V. The Central National Bank (78 N. Y. 487), the 
 court of appeals held, that the court had power at 
 special term, to order an amendment of the complaint, 
 setting up a new cause of action, although the statute of 
 limitations had run against it. It was held in Sheldon 
 V. Adams (18 Abb. Pr. 405), and in Rowell v. Moeller 
 (91 Hun, 241), that the court had power to allow a 
 new cause of action to be added by amendment, though 
 the statute of limitations was thereby avoided ; but that 
 this should be done in furtherance of justice, and should 
 not be allowed except in extreme cases. The recent case 
 of Deyo v. Morss (144 N. Y. 216), seems to have settled 
 beyond doubt that the court has power to allow an 
 amendment of the complaint, setting up a new cause of 
 action. There was never any doubt of its power to allow 
 an amendment, changing the nature of the action. And 
 it has been held that it was proper to change the nature 
 of the action, from one for the breach of warranty, to an 
 action for damages on the ground of deceit ( Eighmie v. 
 Taylor, 39 Hun, 366) ; or from one for the specific per- 
 formance of a contract, to an action for damages for the 
 failure to perform it (Beck v. Allison, 56 N. Y. 366, 373) ; 
 or from an action of conversion to an action of replevin 
 {Dows V. Green, 3 How. Pr. 377) ; or from an action for 
 an injunction to one to recover a money judgment for 
 damages (Vincent v. King, 13 How. Pr. 234) ; or to 
 change the complaint so as to demand damages for an 
 increased amount, in an action for negligence. (Beed 
 V. Mayor, etc., 97 N. Y. 620) . The court may amend the 
 summons and complaint by bringing in new parties de- 
 fendant. (Lewin v. Wright, 31 Hun, 327) ; but it has 
 
366 PRACTICE. 
 
 not power to allow an amendment by bringing in new 
 parties, against whom the statute of limitations has run 
 {Shaiv y. Cock, 12 Hun, 173 ; 78 N. Y. 194) ; nor by strik- 
 ing out the name of one party as defendant, and inserting 
 the names of others. {N. Y. S. M. Milkpan Ass'n v. Rem- 
 ington Agricultural ^¥orlcs, 89 N. Y. 22). When by in- 
 advertence an action has been begun in the name of an 
 insolvent corporation, the court has power to allow an 
 amendment substituting the receiver of the corporation 
 as the plaintiff (Hulbert Bros. Co. v. Hohinan, 22 Misc. 
 248) ; so also where the action has been begun by the 
 president of a company, erroneously supposed to be an 
 association, but in reality a corporation, the complaint 
 will be amended so that the corporation shall appear as 
 the party plaintiff. {Dean v. Gilbert, 92 Hun, 427). 
 Where an unincorporated association is sued as a cor- 
 poration and the summons and complaint are served on 
 the president, the court has power to allow the summons 
 and complaint to be amended by making the president 
 the party defendant. (Munzinger v. Courier Co., 82 Hun, 
 576). Where a citation inadvertently omitted to add 
 "as executors" to the names of individuals, the surro- 
 gate has power under this section to allow an amendment 
 adding those words. {Matter of Soule, 46 Hun, 661; 
 affd. without opinion, 109 N. Y. 662 ) . It is settled also 
 that the court has power to allow an amendment of an 
 answer by setting up a new defense ( Union Wafl Blc. v. 
 Basficit, 3 Abb. Pr. N. S. 359 ; Diamond v. WilliamshurgJi. 
 Ins. Co.. 4 Daly, 494) ; or a counterclaim. {Beardsley v. 
 Stover, 7 How. Pr. 294). The power of amendment is 
 conducive to the administration of justice, and it will be 
 liberally allowed in a proper case {T. & B. R. R. Co. v. 
 Tihhits, 11 How. Pr. 168) ; although after a new trial has 
 been ordered. {Schreyer v. Mayor, etc., 39 Super. 277). 
 While the question of allowing amendments rests in 
 sound discretion {Cvnliff v. The D. & H. C. Co., 4 N. Y. 
 St. Kep. 775), they are allowed almost as a matter of 
 course. {Gilchrist v. Gilchrist, 44 How. Pr. 241). No 
 discrimination will be made against unconscionable de- 
 fenses, so called, such as usury, or the statute of limita- 
 tions. {Barnett v. Meyer, 10 Hun, 109). The power 
 
GENERAL REGULATIONS IN REGARD TO PLEADING. 367 
 
 may be exercised by the court, although the action is on 
 trial before a referee. {Bullock v. Bemis, 40 Hun, 623) . 
 The application must be made with reasonable dili- 
 gence. {Gowdy V. Poullain, 2 Hun, 218; Dudley v. 
 Broadway Ins. Co., 42 App. Div. 555) . But the leave to 
 amend will not be denied because of delay, where the 
 delay was caused by the negligence of the opposite party. 
 {Bradley v. Shcehy, 2 Wk. Dig. 589). A public cor- 
 poration will not be held to as strict diligence upon such 
 application, as an individual. {^Lunney v. Mayor, 14 
 Wk. Dig. 140). An amendment will not be permitted, 
 for the purpose of setting up facts which were known to 
 the party at the time of serving the original pleading, 
 unless the omission is excused. {Stedeker v. Bernard, 
 10 Daly, 466; Cornwall v. Cornwall, 30 Hun, 473). In 
 the application for leave to amend, some good reason 
 should be shown {Bewley v. Equitable Life Ins. Co., 10 
 Wk. Dig. 191) ; and some excuse must be given for the 
 existence of the defect. {Harrington v. Slade, 22 Barb. 
 161). Where the defendant stipulates that the plaintiff 
 may serve an amended complaint, it is equivalent to an 
 order authorizing such amendment. {Deyo v. Morss, 
 144 N. Y. 216). After appearance, the application must 
 be made upon notice to the opposite party. A copy of 
 the pleading as proposed to be amended, must be served 
 with the motion papers, or the motion will be denied. 
 {Stern v. Knapp, 52 Super. 14) . The order should direct 
 that the proposed pleading should be served, or should 
 stand as the new pleading in the case, and the party will 
 be confined to the pleading proposed by his motion 
 papers. {New v. Aland, 62 How. Pr. 185). An order 
 permitting a party to serve such an amended pleading 
 as he should be advised, was held to be erroneous. {New 
 V. Aland, supra) . Ordinarily the court will not examine 
 to see whether the pleading is good, if it is not clearly 
 frivolous {Mitchell v. Allen, 25 Hun, 543) ; or whether 
 it can be established by the proof. {MvUer v. Midler, 21 
 Wk. Dig. 287). But if with the amendment, the plead- 
 ing would be clearly demurrable {Hoffman v. Hoffman, 
 35 How. Pr. 384) ; or if it is made clear that it will not 
 
 24 
 
368 PRACTICE. 
 
 be sustained by the proof, the amendment will not be 
 allowed. {Midler v. Muller, 21 Wk. Dig. 287). An 
 order permitting or denying an amendment is appeal- 
 able to the appellate division, but the order of the special 
 term will not be reversed except for an abuse of dis- 
 cretion. {Dudley v. Broadway Ins. Co., 42 App. Div. 
 555). 
 
 Subdivision 2. — At the Trial or Hearing. 
 
 The power of amending the pleading at the trial is 
 given by section seven hundred and twenty-three of the 
 code of civil procedure, and a referee has the same power 
 upon the trial of an action before him as the court. ( Co. 
 Civ. Proc. § 101^; Bulloch v. Bemis, 40 Hun, 623). The 
 directions for exercising this power are found in sections 
 five hundred and thirty-nine, five hundred and forty, 
 and five hundred and forty-one of the code of civil pro- 
 cedure, which are as follows: 
 
 § 539. A variance, between an allegation in a pleading 
 and the proof, is not material, unless it has actually 
 misled the adverse party, to his prejudice, in maintain- 
 ing his action or defense upon the merits. If a party 
 insists that he has been misled, the fact, and the partic- 
 ulars, in which he has been misled, must be proved to the 
 satisfaction of the court. Thereupon the court may, in 
 its discretion, order the pleading to be amended, upon 
 such terms as it deems just. 
 
 § 540. Where the variance is not material, as pre- 
 scribed in the last section, the court may direct the fact 
 to be found according to the evidence, or may order an 
 immediate amendment withont costs. 
 
 § 541. Where, however, the allegation to which the 
 proof is directed, is unproved, not in some particular or 
 particulars only, but in its entire scope and meaning, it 
 is not a case of variance, within the last two sections, 
 but a failure of proof. 
 
 It is extremely difficult, if not impossible, to deduce 
 from the cases any rule as to Avhat power of amendment 
 at the trial the court has under these sections. The court 
 of appeals has very recently established one basic propo- 
 sition. In Martin v. Home Bank (160 N. Y. 190, 197), 
 
GENERAL REGULATIONS IN REGARD TO PLEADING. 369 
 
 the court says: "When a cause of action, however 
 stated, is sustained by the same proof, the power of the 
 court under this section [723] to conform the statement 
 in the pleading to the facts proved is undoubted." In 
 that case the court sustained an amendment on the trial 
 which changed an action brought to recover damages for 
 the defendant's failure to present a check within a 
 reasonable time, into one to recover the same money on 
 the ground that plaintiff had paid it to the defendant 
 under mistake. It seems to have been determined at an 
 early date, however, that a new cause of action could 
 not be brought in on an amendment at the trial {Hemp- 
 stead V. N. Y. C. R. R. Co., 28 Barb. 585 ; Reeder v. Sayre, 
 70 N. Y. 180, 190) ; and it has been said that this is the 
 only limitation on the power. {Harris v. Tumbridge, 83 
 N. Y. 92, 97). It has been held, however, that even this 
 limitation is only upon the power of the court to conform 
 the pleadings to facts proven and is not applicable to a 
 motion to amend at the opening, or during the early 
 stages of the trial. {Madders v. Whallon, 74 Hun, 372; 
 Tooker v. Arnoux, 76 N. Y. 397, 402). The court of 
 appeals has also laid down a rule to determine whether 
 or not a new cause of action is introduced by an amend- 
 ment. In Davis v. N. Y. L. E. & IF. R. R. Co. (110 N. Y. 
 646), the court says: "It is a fair test, to determine 
 whether a new cause of action is alleged in the amended 
 complaint, that a recovery had upon the original com- 
 plaint would have been a bar to any recovery under the 
 amended complaint." 
 
 There is not space to set out instances of certain 
 specific amendments which have been allowed or dis- 
 allowed. The rule is, doubtless, fairly stated where it is 
 said that the court has power to make practically any 
 amendment of the complaint which does not affect the 
 issue upon the determination of which the plaintiff's 
 right to relief depends, or which does not bring in a new 
 cause of action. {Price v. Brown, 98 N. Y. 388). Sub- 
 ject to this limitation, the pleading may be amended at 
 the trial by inserting new allegations (Co. Civ. Proc. § 
 723), not only so as to conform it to the proof, but by 
 inserting material allegations as to which no proof has 
 
370 PRACTICE. 
 
 been given {Smith v. Rathhun, 75 N. Y. 122) ; by strik- 
 ing out immaterial allegations {Meyer v. Feigel, 7 Robt. 
 122 ) ; or by conforming the pleading to the facts proved 
 {Hunter v. H. R. I. & M. Co., 20 Barb. 293) ; or by in- 
 creasing the amount of damages claimed in the com- 
 plaint. {Knapp V. Roche, 62 N. Y. 614). The power of 
 the court to amend the pleading to conform to the facts 
 brought out on the trial is never to be exercised where 
 those facts have been proved over the objection and ex- 
 ception of the party against whom they are offered; it 
 is only allowable where the proof has been admitted 
 without objection and the attention of the party offering 
 the evidence has not been called to the defect in pleading. 
 ( Bossert v. Poerschke, 51 App. Div. 381 ) . It seems that 
 a complaint setting up no cause of action whatsoever 
 cannot be amended on the trial so as to conform to facts 
 which show a cause of action. {Clement v. Beale, 53 
 App. Div. 416; Wheeler v. Hall, 54 App. Div. 49). So 
 the answer cannot be amended at the trial so as to set up 
 a new defense, although such an amendment might have 
 been allowed upon an application to the special term 
 before trial. {Ahhott v. Meinlcen, 48 App. Div. 109). 
 Although there may be a variance between the proof and 
 the complaint, if it is immaterial the court is required 
 by section five hundred and forty of the code of civil pro- 
 cedure, to disregard it, or order an immediate amend- 
 ment. A variance is always immaterial unless it has 
 actually misled the adverse party to his prejudice in 
 maintaining his action or defense upon the merits. (Co. 
 Civ. Proc. § 539). Section 541 must be borne in mind in 
 this connection ; so wherever there is an entire failure of 
 proof section 539 is not applicable. {Southtoick v. First 
 Nafl Bk., 84 N. Y. 420). What is an entire failure of 
 proof must depend upon the pleadings and facts of each 
 case. Upon a declaration in tort there cannot be a re- 
 covery in contract. {Degraxv v. Ehnore, 50 N. Y. 1). 
 Upon an action on an account stated, there can be no 
 recovery on contract, without an amendment. ( Volkening 
 V. DeGraaf, 81 N. Y. 268) . It is not left to the judgment 
 of the court whether in a given instance the variance was 
 calculated to mislead, and from this to hold that it did 
 
GENERAL REGULATIONS IN REGARD TO PLEADING. S7l 
 
 mislead ; but whenever it is alleged that a party has been 
 misled, that fact must be proved to the satisfaction of 
 the coui*t, and the proof must show in what respect he has 
 been misled, and thereupon the court may order the 
 pleading to be amended upon such terms as may be just. 
 {Catlin V. Oimter, 11 N. Y. 374; Co. Civ. Proc. § 539; 
 Place V. Minster, 65 N. Y. 89, 99). The granting or re- 
 fusing the application to amend upon the trial, is en- 
 tirely discretionary with the tribunal to which it is made, 
 and the determination of the trial court is not to be set 
 aside on appeal unless there was an abuse of discretion. 
 (Rosenwald v. Hammer stein, 12 T>a\j, 377; Lanpher v. 
 Clark, 77 Hun, 506), or such determination is based on 
 a supposed want of power. ( Oregon 8. 8. Co. v. Otis, 
 27 Hun, 452). But an order of the court or referee, 
 amending a pleading at the trial, cannot be reviewed by 
 motion. (Quimhy v. Claflin, 77 N. Y. 270). If upon 
 the trial the referee has doubt of his power to make the 
 amendment, he may adjourn the hearing in order to 
 allow the party to make an application to the court. 
 {Hochstetter v. Isaacs, 44 How. Pr. 495). The applica- 
 tion may be made to the court at special term, without 
 leave of the referee, during an adjournment of the trial. 
 {Bullock V. Beinis, 40 Hun, 623). Of course, the terms 
 upon which an amendment is to be allowed are always 
 within the sound discretion of the court. (See Infra). 
 
 I 
 
 Subdivision 3. — After Trial. 
 
 No amendments of pleading will be allowed after trial, 
 except those which sustain the judgment, and they will 
 never be allowed, when the effect would be to require a 
 new trial. (English v. Furniss, 3 Abb. Pr. 82 ; Yolken ing 
 V. DeGraaf, 81 N. Y. 268). Whenever the court below 
 should have directed the amendment to be made, the case 
 may be argued upon appeal, as if it were actually made 
 to conform to the facts proved. (Bowdoin v. Coleman, 
 6 Duer, 183; Harrower v. Heath, 19 Barb. 331; Reeder 
 V. Sayre, 70 N. Y. 180). The general term may, uponi 
 appeal, amend the pleading, to conform to the facts 
 proved (Harris v. Tumbridge, 83 N. Y. 92) ; and so may 
 
372 PRACTICE. 
 
 the court of appeals, in order to sustain the judgment. 
 {Pratt V. Hudson River R. R. Co., 21 N. Y. 305). But 
 a pleading will not be amended on appeal or the defect 
 disregarded where the pleader's attention was called to 
 the defect on the trial and he failed to ask for an amend- 
 ment at that time. (Gill v. ^tna Live Stock Co., 82 
 Hun, 363; J3osseri v. Poerschke, 51 App. Div. 381). The 
 amendment may be allowed upon a motion for new trial, 
 on the judge's minutes. {Thomas v. Nelson, 69 N. Y. 
 118). No amendment can be allowed after the trial, 
 which would substantially change the cause of action or 
 defense, as alleged, or the nature of the cause of action. 
 {Southwick V. First National Bank, 84 N. Y. 420, 428). 
 The court, after verdict, cannot allow an amendment of 
 the complaint by increasing the amount of damages de- 
 manded, without ordering a new trial {Pharls v. Gere, 
 31 Hun, 443) ; but in Schultz v. Third Avenue R. R. Co. 
 (89 N. Y. 242), where the complaint contained three 
 counts, in the first of which the plaintiff asked damages 
 to the amount of ten thousand dollars, and in the prayer 
 for relief he asked damages to the amount of twenty 
 thousand dollars ; it was held that the general prayer for 
 damages at the close of the complaint controlled; but 
 that if in order to sustain a recovery for the amount of 
 fifteen thousand dollars upon the first count, it was 
 necessary that the count should have alleged fifteen 
 thousand dollars damages, the defect was one that could 
 be amended upon appeal. 
 
 Sec. 3. Supplemental Pleadings. 
 
 Upon the application of either party, the court may, 
 and, in a proper case, must, upon such terms as are just, 
 permit him to make a supplemental complaint, answer, 
 or reply, alleging material facts which occurred after his 
 former pleading, or of which he was ignorant when it 
 was made; including the judgment or decree of a com- 
 petent court, rendered after the commencement of the 
 action, determining the matter in controversy, or a part 
 thereof. The party may apply for leave to make a sup- 
 plemental pleading, either in addition to, or in place of. 
 
GENERAL REGULATIONS IN REGARD TO PLEADING. 373 
 
 the former pleading. In the former event, if the appli- 
 cation is granted, a provisional remedy, or other proceed- 
 ing already taken in the action, is not affected by the sup- 
 plemental pleading; but the right of the adverse party 
 to have it vacated or set aside, depends upon the case 
 presented by the original and supplemental pleadings. 
 (Co. Civ. Proc. § 544). Supplemental pleadings can 
 never be served without leave of the court. {Spears v. 
 Mai/or, 72 N. Y. 442). The application for leave must 
 be upon notice {Fleischutaun v. Bennett, 79 N. Y. 579) ; 
 and the proposed supplemental pleading should be part 
 of the motion papers. {Netcell v. Newell, 27 Misc. 117). 
 Notwithstanding the mandatory language of section five 
 hundred and forty-four of the code, it is the duty of the 
 court upon the application, to consider all the circum- 
 stances, and to grant or refuse it, as may be just or 
 proper in the particular case. (Id.). The exercise of 
 this discretion is reviewable by the appellate division, 
 but not by the court of appeals. (Id.). The appellate 
 division will not interfere with the discretion of the 
 lower court, unless it is clearly apparent that there was 
 an abuse of its exercise. (Patterson v. Hare, 74 Hun, 
 269). The court may refuse leave, wherever laches or 
 fraud is shown, or where it appears that injustice would 
 be worked by allowing it. {Holyoke v. Adams, 59 N. Y. 
 233, 237). Laches is always a good ground for denying 
 the application. (l/cDonakZ v. Dat/is, 12 Hun, 95). The 
 court, however, must grant leave, unless the motion 
 papers show a case in which it may exercise a discretion 
 upon the subject. {Holyoke v. Adams, 59 N. Y. 233, 
 237). Leave to serve a supplemental complaint ought 
 not to be withheld, unless the object of the application is 
 delay, or it is not made in good faith. ( Williains v. Hays, 
 13 N. Y. St. Rep. 489). In passing upon an application, 
 the court will not usually examine whether the facts 
 constitute a cause of action, or defense, unless the plead- 
 ing is clearly bad. (Latham v. Richards, 15 Hun, 129; 
 Mitchell v. Allen, 25 Hun, 543; Tift v. Bloomberg, 49 
 Super. 323). If clearly bad, the supplemental pleading 
 will not be allowed. (Gerstein v. Fischer, 12 Misc. 211 ; 
 afifd. 14 Misc. 644). The object of the supplemental 
 
374 
 
 PRACTICE. 
 
 pleading is to set up facts consistent with and in aid of 
 the original pleading {Tiffany v. Bower man, 2 Hun, 
 643 ) ; or which have happened, or come to the knowledge 
 of the pleader, since the commencement of the action, or 
 after the original pleading was served. {Holyoke v. 
 Adams, 59 N. Y. 233). The distinction between amended 
 and supplemental complaints, in this respect must be 
 borne in mind. {Oclbennan v. jN'. Y. £ N. R. R. Co., 61 
 N. Y. St. Eep. 615). Facts occurring since the com- 
 mencement of the action cannot be proved, unless so set 
 up. {Hall V. Olncij, 65 Barb. 27). If the original com- 
 plaint is sufficient to entitle the plaintiff to one kind of 
 relief, he may by supplemental complaint, be allowed to 
 set up facts occurring afterwards, which would entitle 
 him to other or more extended relief. {Latham v. Rich- 
 ards, 15 Hun, 129). But if the original complaint sets 
 up no cause of action, or if he has no cause of action at 
 the time of the commencement of the action, the plaintiff 
 cannot be allowed to set up by supplemental complaint 
 afterwards, facts subsequently occurring {Htaiiton v. 
 Swann, 10 Civ. Pro. Rep. 12) ; or shift the ground of his 
 action to such subsequently occurring facts {Midler v. 
 Earl, 37 Super. 388) ; nor can he set up a new cause of 
 action, which did not exist when the original suit was 
 commenced. {Bostmck v. Menck, 4 Daly, 68; Tiffany 
 V. Bowerman, 2 Hun, 643) . Plaintiff will not be allowed 
 to serve a supplemental complaint to set up a cause of 
 action, barred by the statute of limitations. '{Miller v. 
 Johnson, 10 Civ. Proc. Eep. 205). It is, however, 
 no answer, to the application that the new facts fur- 
 nish a basis for a new cause of action, if they grow 
 out of the original cause of action, and are a 
 continuance of it. {Latham v. Richards, 15 Hun, 
 129). It is almost a matter of course to allow 
 a supplemental answer to be served, and it may 
 set up any facts occurring since the former answer, 
 or of which the defendant was ignorant at the 
 time of answering, which constitute a defense to the 
 cause of action {Hoyt v. Sheldon, 4 Abb. Pr. 59), or 
 which tend to mitigate the plaintiff's damages. {Coth- 
 ran v. Hanover National Bk., 40 Super. 401). For 
 
GENERAL REGULATIONS IN REGARD TO PLEADING. 375 
 
 instance, the defendant has been permitted to set up his 
 discharge in bankruptcy {Hadlcij v. Bocliin, 1 Hun,. 
 304) ; or an accord and satisfaction {Christy v. PerJcins, 
 
 6 Daly 237) ; or a release of tlie cause of action {Mitchell 
 V. Allen, 25 Hun, 543) ; or a payment by one joint debtor 
 {Broicn v. Richardson, 7 Eobt. 57) ; if such defenses 
 occurred after the first answer. In an action for divorce 
 on the ground of adultery, the defendant was permitted 
 to set up the adultery of the plaintiff, discovered after 
 issue was joined, either as a defense {Strotig v. Strong, 
 28 How. Pr. 432), or as a counter-claim. {Blanc v. 
 Blanc, 67 Hun, 384). In an action for a separation, 
 leave was granted to serve a supplemental complaint 
 setting up acts of cruelty committed after the com- 
 mencement of the action. {Cornwall v. Gornivall, 30 
 Hun, 573). Such subsequent acts could not be the 
 foundation of an action, as that would be allowing the 
 plaintiff to recover on a cause of action which had ac- 
 crued since the action was commenced, but such acts 
 were allowed to be pleaded as giving color to what was 
 the basis of the action and showing that the ill-treatment 
 was likely to continue. So, also, in an action for libel, 
 the court may allow a supplemental complaint setting 
 up the republication after the commencement of the 
 action; this shows aggravation of the injury. {Cor- 
 bin V. Knapp, 5 Hun, 197). The plaintiff in an ac- 
 tion for absolute divorce, however, will not be allowed 
 to serve a supplemental complaint setting up acts 
 of adultery committed by the defendant since the 
 commencement of the action. {Halsted v. Halsted, 
 
 7 Misc. 23; Weiberg v. Neiberg, 8 Misc. 97). But 
 a supplemental answer will never be allowed, to en- 
 able the defendant to set up a technical defense, in 
 order to defeat a just claim. {Holyohe v. Adams, 59 
 N. Y. 233 ) . A supplemental reply may be allowed when- 
 ever a proper case is made. {Ormsbee v. Broion, 50 
 Barb. 436). A supplemental pleading is amendable 
 once as of course. {Divine v. Duncan, 52 How. Pr. 446) . 
 The general term of the first department refused to de- 
 cide this point in Wetmore v. Hegeman (6 Wk. Dig. 
 361) ; though the order of the special term holding the 
 
376 PRACTICE. 
 
 supplemental complaint amendable as of course was 
 af&rmed. The supplemental pleading may be in addi- 
 tion to, or in place of, the original pleading. (Co. Civ. 
 Proc. § 544) . If it is in addition to the original pleading, 
 the first pleading is still a part of the record, and the.tAvo 
 are to be read together, and are to be regarded as one 
 pleading. {McRobert v. Poolij, 1 N. Y. State Kep. 725) . 
 A demurrer must be to both the original and supple- 
 mental complaints in such a case (Hay ward v. Hood, 8 
 N. Y. St. Rep. 457). Where a person is substituted for 
 the original defendant, under section 820 of the code 
 of civil procedure, the plaintiff should ask, and be al- 
 lowed, to file a supplemental complaint as against the 
 person so substituted. {Wilson v. Laiorence, 8 Hun, 
 593). So, also, where an application is made by a plain- 
 tiff to bring in a person as defendant who may be made 
 a party under sections 755-759, of the code of civil pro- 
 cedure, upon a transfer of interest or devolution of 
 liability or the death of a party, the court may direct that 
 a supplemental summons issue, and that supplemental 
 pleadings be made. ( Co. Civ. Proc. § 760 ) . Where an 
 action is brought by a creditor of a corporation to 
 sequestrate its property, and the stockholders, directors, 
 trustees, or other officers, or any of them are made liable 
 by law in any event or contingency, for the payment of 
 his debt, the persons, so made liable, may be made par- 
 ties defendant by the original or by a supplemental com- 
 plaint ; and their liability may be declared and enforced 
 by the judgment in the action. (Co. Civ. Proc. § 1790). 
 
 Sec. 4. Terms of Amendment. 
 
 The terms on which an amendment will be granted are 
 always discretionary with the court or referee. They 
 are usually costs of the motion, and such other costs and 
 expenses as the party will lose, or be put to, by reason of 
 the amendment. {Gilchrist v. Gilchrist, 44 How. Pr. 
 317). The question is one of discretion, and there is no 
 governing rule furnished by the adjudications, which 
 excludes the circumstances of each particular case from 
 consideration on such an application. The general rule 
 is, that in the allowance of amendments which change 
 
GENERAL REGULATIONS IX REGARD TO PLEADING. 377 
 
 substantially the nature or subject of the cause of action, 
 such terms are imposed as may indemnify the defendant 
 for his taxable costs incurred in the action, provided he 
 has raised the objection at the first opportunity. But 
 when the litigation has proceeded without reference to 
 the character of the pleadings, that fact is considered in 
 the imposition of terms ; and then such rule is not deemed 
 the governing rule, nor necessarily the guiding one for 
 the discretion of the court. {Marsh v. McNair, 40 Hun, 
 216, 222). On motion before trial, if the amendment 
 merely perfects a defective pleading and makes no 
 change in the issue, only motion costs will be imposed. 
 The following authorities are referred to, as illustrating 
 the rules applied by the court in granting amendments 
 to the pleadings. In Carrier v. Dellay (3 How. Pr. 173) , 
 Avhere a new cause of action was permitted to be set up, 
 to obviate an objection promptly taken by the defendant, 
 the plaintiff was required to pay ten dollars costs of the 
 motion, and the costs of the action to the date of the 
 amendment, except costs before notice of trial. So, also, 
 in Nanettij v. Naylor 2 Law Bull. 65, 66). Where an 
 amendment to the complaint presented new issues and 
 required a new defense, the plaintiff was required to pay 
 all of the defendants' costs. ( Troy & Boston R. R. Co. 
 V. Tibbitts, 11 How. Pr. 1G8; Bates v. Salt Springs Nat'l 
 BJc, 43 App. Div. 321) . Where there had been two trials, 
 and the objection which required the plaintiff to ask for 
 an amendment was only taken at the second trial, plain- 
 tiff was allowed to amend on payment of the defendant's 
 costs, from and including the second trial {Marsh v. 
 McXair, 40 Hun, 216), but in a similar case where there 
 had been an appeal, in which the party opposing the 
 amendment had been successful, the conditions of amend- 
 ment were the costs awarded on said appeal and motion 
 costs. {Ireland v. Met. El. Rij. Co., 8 N. Y. State Rep. 
 127). An amendment of the answer is usually granted 
 upon payment of ten dollars costs of the motion. But 
 if as the"^ result of it, the plaintiff desires to discontinue 
 his action, it is proper to require from the defendant a 
 waiver of all costs accruing after the original answer 
 was served. {Shanhs v. Rae, 19 How. Pr. 540). The 
 
378 PRACTICE. 
 
 usual terms of granting amendments at the trial, or after 
 the trial is begun, are the payment of costs of the term, 
 and trial fee, and the witness fees. In Smith v. Rath- 
 hun (75 N. Y. 122), the referee, upon permitting an 
 amendment of the complaint inserting material allega- 
 tions, imposed as a condition, that the defendant be per- 
 mitted to answer or demur to it; and the court held that 
 such condition was proper. The expression "costs of the 
 action to the present time," means such costs as would 
 go to the party against which the amendment is allowed, 
 if there had been, at that time, a termination of the 
 action favorable to him. (Havemeyer v. Mavemeyer, 
 44 Super. 170). If the party applying for the amend- 
 ment, avails himself of it, he cannot complain of the 
 terms imposed. {Smith v. Ratlibvn, 75 N. Y. 122). A 
 party cannot appeal from that part of the order impos- 
 ing the conditions. If he appeal at all, it must be from 
 the whole order. {Havemeyer v. Havemeyer, 44 Super. 
 170 ) . The terms upon which supplemental pleadings are 
 granted are always in the discretion of the court. (Co. 
 Civ. Proc. § 544). They must always be imposed by 
 the court. {Staunton v. Swann^ 10 Civ. Pro. Rep. 12). 
 In the imposition of terms, the rules herein stated as 
 applying to ordinary amendments, are applied to appli- 
 cations to serve supplemental pleadings. The court may 
 require as a condition of serving a supplemental answer, 
 that the defendant shall waive all other defenses than 
 that set out in his answer. {Bate v. Fellowes, 4 Bosw. 
 638). In the case of Wilcox v. Daggett (15 Wk. Dig. 
 208 ) , the imposition of a trial fee was held proper. In 
 Mahie v. Adams (1 Law Bull. 65), where the trial had 
 been concluded, and the decision of the referee had been 
 made, it was held psoper to impose, as a condition of 
 filing a supplemental answer, the payment of an addi- 
 tional allowance; but if the trial was still pending, it 
 was held that the court had no power to impose such 
 terms. {Jenkins v. Adams, 1 Law Bull. 65). 
 
..GENEKAL REGULATIONS IN REGARD TO PLEADING. 379 
 
 ARTICLE YIII. 
 
 FRIVOLOUS PLEADINGS. 
 
 If a demurrer, answer, or reply is frivolous, the party 
 prejudiced thereby, upon a previous notice to the adverse 
 party, of not less than five days, may apply to the court, 
 or to a judge of the court, for judgment thereupon, and 
 judgment may be given accordingly. If the applica- 
 tion is denied, an appeal cannot be taken from the de- 
 termination, and the denial of the application does not 
 prejudice any of the subsequent prq'ceedings of either 
 party. Costs, as upon a motion, mav be awarded upon 
 an application pursuant to this secti|n. ( Co. Civ. Proc. 
 § 537). 
 
 A party is not at liberty to treat a pleading as a 
 nullity, but he must move for judgment upon it under 
 this section. ( Decker v. Kitchen, 21 Hun, 332 ) . Judg- 
 ment cannot be given upon a counter-claim under this 
 section (Fettretch v. McKay, 47 N. Y. 426) ; nor upon a 
 reply denying a counter-claim. {Wood v. Mayor, 3 Abb. 
 Pr. N. S. 467; appeal dismissed, 4 Abb. Pr. N. S. 152). 
 It is no objection to the granting of the motion under 
 this section, that the pleading is verified. {Reed v. 
 Latson, 15 Barb. 9,17). Upon the hearing of the motion, 
 the allegations of the pleading are always assumed to be 
 true. {Livingston v. Hammer, 7 Bosw. 670). A frivol- 
 ous answer is one, which, although it may be true, con- 
 troverts no material allegation of the complaint, and 
 is so clearly bad that the defect appears upon a mere 
 inspection, and indicates that it was interposed in bad 
 faith. {Cook v. Warren, 88 N. Y. 37; Carpenter v. 
 Adams, 34 Hun, 429 ; Bedlotc v. Stillwell, 45 App. Div. 
 557). If an argument is necessary to show that the 
 pleading is bad, it is not frivolous. {Youngs v. Kent, 
 46 N. Y. 672 ; Wait v. Getman, 32 App. Div. 168 ; Manne 
 V. Carlson, 49 App. Div. 276). If there is a decision in 
 point against the pleading, it will be held to be frivolous 
 {People V. McC umber, 27 Barb. 632, 638) ; but not when 
 the question is doubtful. {Clianncey v. Laiorence, 15 
 Abb. Pr. 106 ; Chemical National Bank v. Carpentier, 9 
 
380 
 
 PRACTICE. 
 
 Abb. N. 0. 301). The motive with which the pleading 
 is interposed is not important. The only question is 
 whether it is clearly bad upon its face. {Seeker v. 
 Mitchell, 6 Duer, 687). To sustain an answer, it is not 
 necessary that the defense be pleaded in proper form; 
 if a defense is even shadowed forth in the pleading, the 
 answer is not frivolous. (Kelly v. Baiiiett, 16 How. Pr. 
 135 ) . The pleading will be sustained, if a material issue 
 is presented, although there may be allegations in the 
 pleading which are immaterial {Hunger v. Shannon, 61 
 N. Y. 251 ) ; or if a fact necessary to enable the plaintiff 
 to recover is denied, even if that fact is not alleged in 
 the complaint {Lord v. Cheeshorough, 4 Sand. 696) ; 
 although it was not intended by the pleader to deny it. 
 ( Youngs v. Kent, 46 N. Y. 672) . Where a part of the 
 answer is good and part bad, the court cannot order 
 judgment under this section. (Strong v. Sproul, 53 N. 
 Y. 497). It would seem that this section, in so far as it 
 covers a reply, means only a reply to a counter-claim 
 and not a i-eply ordered by the court; the section is 
 designed to give judgment to some one asking affirma- 
 tive relief. (Henriques v. Trowbridge, 27 App. Div. 18) . 
 Judgment can never be granted because of the frivolous- 
 ness of the defendant's pleading, if the complaint is 
 defective in not stating a cause of action. (Hunger v. 
 Shannon, 61 N. Y. 251). Affidavits are not to be served 
 for use on the motion (Darrow v. Hiller, 5 How. Pr. 
 247 ; Beal v. Union Paper Box Co., 4 Oiv. Proc. Rep. 18) ; 
 except that where the defendant makes default, the 
 plaintiff must prove that he has received the pleading, 
 and must present proof of service of notice of motion. 
 (Darroiv v. Miller, supra) . A notice of motion must ask 
 for judgment because of the frivolousness of the plead- 
 ing. The frivolous pleading cannot be stricken out 
 under this section. (Rea v. Wash. Hut. Ins. Co., 6 How. 
 Pr. 21 ; Owens v. Hudnufs Pharmacy, 20 Civ. Proc. 145 ; 
 S. C, 35 N. Y. State Eep. 567 ; Reese v. Walworth, 61 
 A.pp. Div. 64). In Barton v. Griffin (36 App. Div. 572), 
 the majority of the court seems to have lost sight of the 
 question of practice and to have considered only the suffi- 
 ciency of the pleading ; Mr. Justice Putnam, dissenting, 
 
GENERAL REGULATIONS IN REGARD TO PLEADING. 381 
 
 is clearly in accord with the authorities on the prac- 
 tice point. The motion may be made, although twenty 
 days have not expired since the service of the defec- 
 tive pleading. [Ross v. Ross, 25 Hun, 642; Lee 
 V. Jacob, 38 App. Div. 531). If it is so made, 
 and an amended pleading is served, the motion 
 must be denied. {Burr all v. iloore, 5 Duer. 654). 
 A motion to strike out part of a pleading as sham, and 
 for judgment upon the remainder as frivolous, may be 
 joined. ( x4. dams v. i)/cPart/m, 11 Abb. N. C. 369). The 
 right to relief under this section is not waived by an- 
 swering the frivolous pleading. {Stokes v. Hagar, 1 Co. 
 Rep. 84). On granting the motion, the court may give 
 leave to amend on terms {SnedecJcer v. Bernard, 4 Law 
 Bull. 31 ; Fales v. Hicks, 12 How. Pr. 153) , if an affidavit 
 of merits is presented by the defendant, but not other- 
 wise. ( Bank of Lowville v. Edwardfi, 11 How. Pr. 216). 
 When judgment is ordered on account of the frivolous- 
 ness of the pleading, the pleading itself is not struck 
 out, but remains upon the record, and should be in the 
 judgment roll. {Strong v. Sproul, 53 N. Y. 497). No 
 appeal can be taken from an order denying a motion for 
 judgment, under this section. {Carpenter v. Adams, 34 
 Hun, 429) . Where a motion has been granted, and judg- 
 ment has been ordered, and an appeal is taken, the order 
 should be aflarnied if the pleading is demurrable, al- 
 though the court may be of the opinion that it is not 
 frivolous. ( Wesley v. Bennett, 5 Abb. Pr. 498 ; Martin 
 v. Kanouse, 2 Abb. Pr. 327). See, however, the dictum 
 in the recent case of Wait v. Getman (32 App. Div. 168, 
 171), contra. 
 
 ARTICLE IX. 
 
 SHAM PLEADINGS. 
 
 A sham answer, or a sham defense may be stricken 
 out by the court, upon motion, and upon such terms as 
 th£ court deems just. (Co. Civ. Proc. § 538). 
 
 This section confers no new power upon the court; 
 but it is simply declaratory of the rule, as it existed at 
 common law. ' {Wayland v. Tysen, 45 N. Y. 281). Part 
 
382 
 
 PRACTICE. 
 
 of an answer, or part of a defense cannot be stricken 
 out, under this section. (Collins v. Coggill, 7 Robt. 81; 
 Winslow V. Ferguson, 1 Lans. 436). But, in the case of 
 Sherman v. Boehm (15 Abb. N. C. 254), it was held that 
 a denial of a part of the allegations in the complaint, 
 coupled with other allegations in the same answer ad- 
 dressed to the same cause of action, might be stricken 
 out as sham. A counter-claim cannot be stricken out 
 under this section. (Briggs v. Freedman, 9 Civ. Pro. 
 Rep. 73; Baum's Castor ine Co. v. Thomas, 92 Hun, 1). 
 Nor can a demurrer. (Kain v. Diclcel, 46 How. Pr. 208) . 
 
 The court has no power to strike out a general denial 
 as sham {Wayland v. Tysen, 45 N. Y. 281) ; although 
 the denial is upon information and belief {Howe v. 
 ElicelJ, 57 App. Div. 357), or only of knowledge or infor- 
 mation sufficient to form a belief (Robert Gere Bank v. 
 Inman, 51 Hun, 97; affd. on opinion below, 115 N. Y. 
 650; Roby v. Hallock, 5 Abb. N. C. 86) ; and although 
 the defendant on examination before trial has admitted 
 that it is false. (Shultse v. Rodewald, 1 Abb. N. C. 
 365 ; Neuberger v. Webb, 24 Hun, 347) . But in Sherman 
 Y. Boehm (15 Abb. N. C. 254) , the court of common pleas 
 at general term held that an answer in these words 
 "and further answering on information and belief, they 
 deny each and every allegation and complaint consti- 
 tuting the plaintiff's first cause of action," might be 
 stricken out as sham. This case must be considered as 
 overruled by the later cases cited above. In Howe v. 
 Elirell, supra, the court refused to strike out as sham 
 a denial upon information and belief even where a 
 party would naturally be presumed to have knowledge 
 of the truth or falsity of the allegation. See, however, 
 Pai^di V. Condc (27 Misc. 496). 
 
 A defense is sham, in the legal meaning of this term, 
 which is so clearly false in fact, that it does not in 
 reality involve any matter of substantial litigation. The 
 chief characteristic of a sham defense is its undoubted 
 falsity; a mere formal defense is sometimes designated 
 as a false defense. The words "sham" and "false" ap- 
 plied to such a defense signify the same thing. Neither 
 term necessarily includes the idea of an artful con- 
 
GENERAL REGULATIONS IN REGARD TO PLEADING. 383 
 
 struction of the plea, or doubt as to the legal character 
 of the defense upon its face. The defense may be en- 
 tirely clear in form, but nevertheless sham for the sole 
 reason that it is false. {People v. McC umber, 18 N. Y. 
 315, 320, 321). The essential element of the sham de- 
 fense is its falsity. ( Winsloio v. Ferguson, 1 Lans. 436) . 
 The power to strike out such a defense extends only to 
 such affirmative defenses, as are not verified by the oath 
 of the defendant, or other equivalent evidence. {Way- 
 land V. Tysen, 45 N. Y. 281). Ordinarily, such affirma- 
 tive defenses should not be stricken out, if good on their 
 face and verified. {Albany County BJc. v. Rider, 74 
 Hun, 349). It is only in an unusual case, where it ap- 
 pears that the answer is a mere pretense, set up in bad 
 faith, for the purpose of vexation or delay that it should 
 be stricken out; and in such case there should appear 
 some fact outside of affidavits showing or tending to 
 show the falsity of the answer. (Id.). The truth or 
 falsity of the answer is not to be tried out on affidavits. 
 Upon the motion, the falsity must clearly and decisively 
 appear, and must not be left doubtful. {Morey v. Safe 
 Deposit Co., 7 Abb. Pr. N. S. 199). In the case of Mc- 
 Carty v. O'Donnell (7 Eobt. 431), it was held that the 
 answer should not be stricken out unless the defendant 
 admits its falsity, expressly or by implication; or, by 
 not denying, admits facts alleged against it to establish 
 its falsity; or the answer is on information and belief 
 alone, and the motion is made on the affidavits of those 
 necessarily possessing knowledge; or the answer denies 
 knowledge, information, or belief of facts, presumptively 
 within the defendant's knowledge, and the motion is 
 made on papers tending to show that he has kno^w^ledge, 
 and he files no opposing papers. Wherever the falsity 
 clearly appears, the answer may be stricken out for that 
 reason alone. (Id.). Where from circumstances occur- 
 ring after the answer has been served, it becpmes false 
 it may be stricken out as sham; as where the answer 
 pleaded another action pending, which was afterwards 
 discontinued. {Clark v. Clark, 7 Kobt. 276). A verified 
 complaint alone is not sufficient proof of the falsity of 
 
 25 
 
384 PRACTICE. 
 
 the ansM^er upon such a motion. {Kellogg v. Baker, 15 
 Abb. Pr. 286). The fact that the defendant believes the 
 answer to be true, is not an answer to the application 
 {Roome v. Nicholson, 8 Abb. Pr. N. S. 343) ; where the 
 answer is verified on infoi'mation and belief and the 
 plaintiff swears positively that the answer is false, it will 
 be stricken out. [Kag v. Wldttaker, 44 N. Y. 465). The 
 answer will not be stricken out because it is not prop- 
 erly framed, if it states facts which, properly pleaded, 
 might be a defense {Struver v. Ocean Ins. Co., 2 Hilt. 
 475) ; nor if there is upon the pleading a slight chance 
 of the defendant's success. {Keifer v. Thomass, 6 Abb. 
 Pr. N. S. 42). In an action upon a promissory note, 
 where the answer admitted the making of the note, but 
 averred that after its delivery it Avas materially altered 
 by the plaintiff, without the defendant's knowledge or 
 consent, by changing the date, it was held to be error to 
 strike out the answer as sham, where the court decided 
 the question of fact raised by the answer, on a mere 
 inspection of the note. {Rogers v. Voshurgh, 87 N. Y. 
 228 ) . An answer will not be stricken out as sham, if the 
 defendant swears it was put in in good faith, and not 
 for delay, and presents an affidavit of merits. ( Central 
 Blc. V. Thein, 76 Hun, 571; Mann v. Barnum, 12 How. 
 Pr. 563 ; 1 Abb. Pr. 281) . Where the defendant obtained 
 leave of the court to serve an amended answer, which 
 was presented with his motion papers, it will not after- 
 wards be stricken out as sham. {Mussina v. Stillman, 
 13 Abb. Pr. 93). The order should simply strike out 
 the answer {Potter v. Carreras, 4 Robt. 629) ; and the 
 plaintiff may then enter judgment as upon failure to 
 answer, {DeForest v. Baker, 1 Abb. Pr. N. S. 34). 
 
GENERAL REGULATIONS IN REGARD TO PLEADING, 385 
 
 ARTICLE X. 
 
 IRRELEVANT, REDUNDANT AND SCANDALOUS MATTER. 
 
 Irrelevant, redundant, or scandalous matter contained 
 in a pleading, may be stricken out, upon the motion of 
 a person aggrieved thereby. Where scandalous matter 
 is thus stricken out, the attorney whose name is sub- 
 scribed to the pleading may be directed to pay the costs 
 of the motion, and his failure to pay them may be pun- 
 ished as a contempt of the court. (Co. Civ. Proc. § 545) . 
 
 This section does not afford a substitute for a de- 
 murrer, in so far as a motion to strike out for irrele- 
 vancy or redundancy is concerned. (Walker v. Fowler, 
 85 N. Y. 621; RoMins v. P.almer, 5 Wk. Dig. 537). 
 An entire count of an answer cannot be stricken out, 
 therefore, as irrelevant or redundant under this section. 
 (Goodman v. Robb, 41 Hun, 605). A demurrer would 
 afford no remedy against scandalous pleadings, how- 
 ever, so an entire count may be stricken out if scandal- 
 ous. {Armstrong v. Phillips, 60 Hun, 243). The plead- 
 ing is irrelevant, when the matter which it sets forth has 
 no bearing upon the dispute in question, does not affect 
 the subject matter or the controversy, and can in no way 
 affect or assist the decision of the court. (Park d Sons 
 Co. V. Nat. Druggists' Asscn., 30 App. Div. 508 ; Jeffras 
 V. McKillop & S pro g lie Co., 2 Hun, 351) . If the matter is 
 proper to be pleaded for any purpose, or if it may affect 
 the question of damages (Root v. Foster, 9 How. Pr. 37) ; 
 or, if it goes in mitigation of the amdunt of damages, in 
 an action for libel (Jeffras v. McKillop & Spragae Co., 
 2 Hun, 351) ; or, if it is material upon the question of 
 costs ( Van Rensselaer v. Price, 4 Paige, 174 ; Dunkirk v. 
 L. B. & M. 8. Ry. Co., 75 Hun, 366) ; it is not irrelevant. 
 The true test of relevancy is to inquire whether the aver- 
 ments tend to constitute a cause of action or defense ; if 
 they do, they are not irrelevant. (Dovaii v. Dinsmore, 
 33 Barb. 86). "Redundant" and "irrelevant" are not 
 equivalent terms. Matter which is irrelevant is also re- 
 dundant ; but the converse is not true. A needless repe- 
 tition of material averments is redundancy, although 
 
386 
 
 PRACTICE. 
 
 the facts averred, so far from being irrelevant, may con- 
 stitute the whole cause of action. {Boicman v. Sheldon, 
 5 Sandf. 657). When matter is attacked as redundant 
 the rule applied will be, that, unless it is clear that no 
 evidence can properly be received under the allegation, 
 it will be retained until the trial. [Follett v. Jeicett, 11 
 N. Y. Leg. Obs. 193). Statements of evidence in the 
 pleading are redundant. {Wooden v. St)-cic, 10 How. 
 Pr. 48). The motion to strike out matter as irrelevant 
 or redundant, is addressed to the discretion of the court ; 
 and those motions are not to be encouraged. ( Toion of 
 Essex V. N. T. & Canada R. R. Co., 8 Hun, 361; Emmens 
 v. McMillan Co., 21 Misc. 638). The discretion of the 
 special term is reviewable, of course. {Xehresheimer v. 
 Bowe, 3 Civ. Proc. Rep. 368). Although matter may be 
 clearly redundant, if it does not tend seriously to preju- 
 dice the opposite party, or encumber the record, it will 
 not be stricken out. The opposite party is not' aggrieved 
 by it. {Yoiinf/er v. Duffie, 26 Hun, 442; Tradesmen's 
 Nat. Bk. V. u'. S. Trust Co., 49 App. Div. 362) . It is 
 only in those cases in which harm or injustice will be 
 done to the opposite party that a motion to strike out 
 irrelevant allegations should be granted. {Liigar v. 
 Byrnes, 1 N. Y. Supp. 262; S. C. 15 N. Y. State Rep. 97). 
 If there may be a remote probability that the matter 
 may, in any way be pertinent, it will he permitted to 
 stand. [Diiprat v. Havemeyer, 18 Wk. Dig. 439). 
 Scandalous matter is that which contains charges of a 
 criminal nature against a party, prejudicial to the char- 
 acter and reputation of the party, or of any third person. 
 {Ex parte Simpson, 15 Ves. 476) . Such allegations will 
 never be permitted to remain upon the record; and the 
 court will always consider the opposite party aggrieved 
 by them, and will strike them out either upon his mo- 
 tion, or of its own motion. {Bomers v. Torrey, 5 Paige, 
 54 ; Carpenter v. West, 5 How. Pr. 53 ; Hilton v. Carr, 40 
 App. Div. 490). Any person "aggrieved" by scandalous 
 allegations in a pleading may move under this section to 
 Strike out such allegations, although not a party to the 
 action. {Wehle v. Loewy, 2 Misc. 345). The court 
 should charge upon the attorney who puts in a pleading 
 
GENERAL REGULATIONS IN REGARD TO PLEADING. 387 
 
 containing scandalous allegations, the costs of the mo- 
 tion. (McVei/ V. Contrell, 8 Hun, 522) . 
 
 Motions to strilie out of any pleading, matter alleged 
 to be irrelevant, redundant or scandalous, and motions 
 to correct a pleading, on the ground of its being so in- 
 definite or uncertain, that the precise meaning or appli- 
 cation is not apparent, must be noticed, before demur- 
 ring or answering the pleading, and within twenty days 
 from the service thereof. The time to make such motion 
 shall not be extended unless notice of application for 
 such extension, stating the time* and place thereof, of 
 at least two days, shall be given to the adverse party. 
 (General Rule 22). The motion must be made before 
 noticing the case for trial. {Kellogg v. Baker, 15 
 Abb. Pr. 286). The objection that matter in a 
 pleading is irrelevant or redundant, cannot be made 
 at the trial. {Smith v. Countryman, 30 N. Y. 655). 
 If time "to plead or otherwise move" has been ex- 
 tended, the motion may be made before the expiration 
 of the extension. {Hammond v. EarJe, 5 Abb. N. C. 
 105). But procuring an extension of time to answer 
 or demur, without reserving leave to make the motion 
 is a waiver of the right. {Brooks v. Hanchett, 36 
 Hun, 70). If the notice of the motion is not served 
 in time under Rule 22 the opposite party must show it. 
 {Barber v. Bennett, 4 Sandf. 705). The right to object 
 that the motion is not made within the twenty days is 
 not waived by retaining the notice of motion. {Gibson 
 V. Gibson, 68 Hun, 381). The irrelevant and redundant 
 matter should be specified in the notice. {Blake v. 
 Eldred, 18 How. Pr. 240 ; Bathbun v. MarMiam, 43 How. 
 Pr. 271). 
 
388 PRACTICE. 
 
 ARTICLE XI. 
 
 INDEFINITE AND UNCERTAIN ALLEGATIONS. 
 
 Where one or more denials or allegations, contained 
 in a pleading, are so indefinite or uncertain that the pre- 
 cise meaning or application thereof is not apparent, the 
 court may require the pleading to be made definite and 
 certain, by amendment. (Co. Civ. Proc. § 546). 
 
 The motion provided for by this section takes the place 
 of a demurrer for want of form, under the former prac- 
 tice. [Rathhun v. Markliam, 43 How. Pr. 271). The 
 object of the motion is simply to correct the form of the 
 pleading. ( Peo2)le v. Ryder, 12 N. Y. 433 ) . If the state- 
 ment is so indefinite that the precise nature of the charge 
 is not apparent, the remedy of the other party to the 
 action is an application under this section. {Olcott v. 
 Carroll, 39 N. Y. 436). If there is no indefiniteness or 
 uncertainty in regard to the nature of the charge ; or if 
 by an examination of the pleading, the party can see 
 with ordinary certainty the meaning of the different 
 allegations, and the cause of action or defense intended 
 to be set up by them, it is not objectionable under this 
 section. (Tilton v. Beecher, 59 N. Y. 176; Broirnell v. 
 National Bank of Gloverstnlle, 13 Wk. Dig. 371). If 
 the charge or defense is definitely stated, although the 
 statement involves details which are not stated, the 
 proper procedure to procure such details is by an appli- 
 cation for a bill of particulars. {Rouget v. Haiglit, 57 
 Hun, 119). This section is not designed to enable a 
 party to obtain the facts relied on by his opponent as 
 proof, but only to assist him in securing a complete and 
 clear averment of fact. {Rosenthall v. Roseiithall , 19 
 Civ. Proc. Rep. 56) . See also, Singer v. Welter (44 App. 
 Div. 134). The indefiniteness must appear upon the 
 face of the pleading, and not by extrinsic facts. {Hop- 
 kins V. Hopkins, 28 Hun, 436). Where the complaint 
 left it uncertain whether the party sought to recover 
 upon an affirmance of a contract, or upon its rescission, 
 he was compelled to make it definite and certain, under 
 
GENERAL REGULATIONS IN REGARD TO PLEADING. 389 
 
 this section. {Faulk v. Kamp, 40 Super. TO). In an 
 action to recover property transferred by the plaintiff 
 to the defendant, he was required under this section to 
 state the specific real estate, and the kind and quantity 
 of personal property. {Brinlverho-jf v. Ferry, 59 How. 
 Pr. 156, note). Where the plantiff alleged that the de- 
 fendant guaranteed or promised to pay for goods sold to 
 a third person; he Avas required to make the complaint 
 definite and certain by alleging which of the two con- 
 tracts defendant made, the two forms of the obligation 
 being entirely different. {Partridge v. Haley, 20 Wk. 
 Dig. 320). Where in an action for work, labor and 
 services, the plaintiff alleged that the services were 
 reasonably worth the sum of one thousand dollars, 
 which defendant promised and agreed to pay ; it was held 
 that the plaintiff must make, his complaint definite and 
 certain, by alleging whether he sought to recover upon 
 a quantum meruit, or upon an express contract. {Gard- 
 ner V. Locke, 2 Civ. Prec. Rep. 252 ) . The fact that other 
 allegations in the complaint, which are not attacked by 
 the motion, are sufficient to make out a cause of action, 
 does not deprive the party of the right to have the par- 
 ticular allegations made definite and certain. {People 
 V. iV". Y. Juvenile Guardian Socy., 6 Wk. Dig. 136). If 
 the causes of action or defenses are hot stated separately, 
 the remedy is by motion under this section. {Kerr v. 
 Hays, 35 N. Y. 331 ; Blake v. Barnes, 30 N. Y. St. Rep. 
 299). Denials cannot be amended under this section. 
 {Hughes v. Chi. M. & St. P. R. R. Co., 45 Super. 114, 
 122). But where the answer denied each and every 
 allegation in the complaint not hereinbefore specifically 
 admitted or denied, it was held that a motion should be 
 granted under this section to require the pleader to 
 specify the particular allegations which he denied. 
 {Farnsicorth v. Wilson, 5 Civ. Proc. Rep. 179, note; 
 Zimmerman v. Meyrowitz, Scott J., N. Y. Law Journal, 
 15 Mch. 1901, pp. 2161-2) . So, where the answer denied 
 each and every material allegation, the defendant was 
 required to make it definite and certain. {Mattison v. 
 Smith, 1 Robt. 706). If the allegations sought to be 
 
390 PRACTICE. 
 
 corrected are mere surplusage, the motion should be 
 denied {Davidson v. Seligman, 51 Super. 47) ; or where 
 the indefinite allegations are in the answer, and respond 
 to irrelevant matter in the complaint, the motion will 
 not be granted. (Parshall v. Tillou, 13 How. Pr. 7). 
 The objection that matter in a pleading is indefinite and 
 uncertain under this section, cannot be first taken at 
 the trial. [Farmers & Cits.' Bank v. Bherman, 33 N. 
 Y. 69 ; Greenfield v. Mass. Mut. L. Ins. Co., 47 N. Y. 430, 
 437) . The rules as to when and how the motion must be 
 made under this section are the same as the rules for 
 the motions under section five hundred and forty-five, 
 and are sufficiently stated in article X, ante. The 
 order made upon this motion is appealable to the appel- 
 late division. (Brownell v. National Bank of Glovers- 
 ville, 13 Wk. Dig. 371). The order to be entered on a 
 determination by the court that a pleading shall be 
 made more definite and certain, should not provide that, 
 in default of the prescribed amendment, the whole 
 pleading should be stricken out, where the removal of 
 the indefinite and uncertain allegations would still leave 
 a cause of action or a defense; the provision should be 
 only for the striking out of the objectionable allega- 
 tions. {Cooper v. Fiske, 44 App. Div. 531). 
 
CHAPTER X. 
 
 THE COMPLAINT. 
 
 ARTICLE I. .. .What complaint must contain. 
 ARTICLE II... Statement of facts. 
 ARTICLE III. .Joinder of causes of action. 
 ARTICLE I v.. Demand of judgment. 
 ARTICLE v.. .Service of the complaint. 
 
 AETICLE I. 
 
 WHAT COMPLAINT MUST CONTAIN. 
 
 SECTION. 
 
 1. In general. 
 
 2. Caption — Court and county. 
 
 3. Caption — Names of parties. 
 
 Sec. 1. In General. 
 
 The first pleading on the part of the plaintiff is the 
 complaint (Co. Civ. Proc. § 478), which must contain: 
 
 1. The title of the action, specifying the name of the 
 court in which it is brought; if it is brought in the su- 
 preme court, the name of the county, which the plaintiff 
 designates as the place of trial ; and the names of all 
 the parties to the action, plaintiff and defendant. 
 
 2. A plain and concise statement of the facts, con- 
 stituting each cause of action, without unnecessary repe- 
 tition. 
 
 3. A demand of the judgment to which the plaintiff 
 supposes himself entitled. (Co. Civ. Proc. § 481). 
 
 The complaint takes the place, under the code system 
 of pleading, of the plaintiff's declaration in actions at 
 law, and the bill in chancery under the old practice; 
 and the rules concerning the complaint rest, in sub- 
 stance, on the same principles as those regulating these 
 
392 
 
 PRACTICE. 
 
 pleadings. There is only one form of civil action. The 
 distinction between actions at law and suits in equity, 
 and the forms of those actions, have been abolished. 
 (Co. Civ. Proc. § 3339). The form and fiction of the 
 old practice is replaced by the substance and truth of 
 the new. The office of the complaint is to apprise the 
 adverse party of the exact cause for which he is sued, 
 where and by whom he is sued, and the judgment de- 
 manded; all of which particulars will be hereafter 
 spoken of. For the general rules concerning pleadings 
 see ante, chapter IX, articles I and II. 
 
 Sec. 2. Caption — Court and County. 
 
 Section one hundred and forty-two of the code of 
 procedure read: "The complaint shall contain" etc.; 
 and it was held that if the name of the court was in- 
 serted in the summons, its omission in the complaint 
 would be disregarded {Van Namee v. Peopel, 9 How. 
 Pr. 198) ; but the word shall in this section was changed 
 to must, in section four hundred and eighty-one of the 
 code of civil procedure, with the avowed intention of 
 overruling these decisions, and of making compliance 
 with the provisions of this section in this and other 
 respects, an absolute necessity. It is now provided by 
 the code that both the summons and the complaint 
 must specify the court in which the action is brought; 
 and if it is brought in the supreme court, the name of 
 the county in which the plaintiff desires the trial (Co. 
 Civ. Proc. § 417), or which the plaintiff designates as 
 the place of trial. (Co. Civ. Proc. § 481). Where the 
 summons was served without a copy of the complaint, 
 and without the name of any court appearing thereon, 
 and a copy of the complaint, was subsequently served, 
 entitled in the supreme court, on motion to set aside the 
 proceedings, it was held, thai, the name of the court 
 sufficiently appeared. {Walker v. Hubbard, 4 How. 
 Pr. 154). In actions brought in a local court, which 
 must of necessity be tried in the county In which such 
 court is situated, the statement of the county is of no 
 importance, because the defendant can not fail to know 
 where the trial will be had. Thus a complaint entitled 
 
THE COMPLAINT. 393 
 
 in the N. Y. Common Pleas sufficiently , indicates the 
 place of trial. {Leopold v. Foppcuhieiner, 1 Co. Eep. 39). 
 It has been held that an omission of the name of the 
 court, from both summons and complaint, is a fatal 
 objection to the pleading, and that it is a nullity 
 {^Yard v. Strhigham, 1 Co. Eep. 118) ; still if it is only 
 omitted from one, and contained in the other, such a 
 defect may be cured by amendment. {Davison v. 
 Pou-cll, 13 HoAV. Pr. 287). The place of trial stated in 
 the complaint determines where motions are to be made, 
 as well as where the trial is to be had. {Merrill v. Orin- 
 ncl, 10 How. Pr. 31). Where the complaint fails to 
 specify the name of the court, or the place of trial, it 
 must be either amended or stricken out as defective. 
 {Hotchlciss V. Croclcer, 15 How. Pr. 336). So the omis- 
 sion of the name of the county from the complaint, is 
 a defect which cannot be cured by being included in the 
 summons. ( Id. ) . Advantage is to be taken of a defect 
 in this respect by motion to set aside the complaint as 
 irregular. {Hall v. Huntley, 1 Co. Rep. N. S. 21, note). 
 Such a defect is not waived by omitting to raise the ob- 
 jection until after the time to answer has expired, or by 
 obtaining orders extending the time to answer. {Mer- 
 rill V. Grinnel, 10 How. Pr. 31). A motion to amend 
 in this respect may be made in the district where triable, 
 and in the county where the plaintiff or defendant re- 
 sides. {HotchJdss V. Crocker, 15 How. Pr. 336). If an 
 action be in fact local, by reason of affecting real prop- 
 erty, the right of the defendant to have the place of 
 trial fixed accordingly, is not impaired by plaintiff's 
 omitting to aver in the complaint, the situation of the 
 property; but that fact may be shown by affidavit in 
 support of a motion to change the place of trial. {Aelcer 
 V. Leland, 96 N. Y. 383). In an action in the supreme 
 court, if the county designated in the complaint, as the 
 place of trial, is not the proper county, the action may 
 notwithstanding, be tried therein; unless the place of 
 trial is changed to the proper county, upon the demand 
 of the defendant, followed by the consent of the plain- 
 tiff, or the order of the court. (Co. Civ. Proc. § 985). 
 But the plaintiff may amend his complaint, within the 
 
394 PEACTICE. 
 
 time allowed by section five hundred and forty-two of 
 the code for amendments, by inserting the proper county 
 {Toll V. Cromwell, 12 How. Pr. 79) ; and the motion 
 to change the place of trial may be heard in the county 
 designated by the amendment, and may be determined 
 as if no change had been made (Moulton v. Beecher, 
 1 Abb. N. 0. 193) ; but for the purpose of hearing a 
 motion to set aside, or appeal from, an order changing 
 the place of trial, it is deemed unchanged. (Co. Civ. 
 Proc. § 989). 
 
 Sec. 3. Caption — Names of Parties. 
 
 Under the former code, it was held that though prop- 
 erly all the parties should be named in the title, yet^ 
 if only a portion were there set forth, but all were 
 named in the body of the complaint, it was sufficient 
 {Hill V. Thacter, 3 How. Pr. 407) ; but section four 
 hundred and eighty-one of the code of civil procedure 
 requires that the title of the action must specify the 
 names of all the parties to the action, plaintiff and de- 
 fendant. If these names are all correctly set forth in 
 the title of the cause, it is unnecessary to repeat them 
 (Stanley v. Chappell, 8 Cow. 235) ; and if the parties 
 are once correctly stated, they may afterwards be desig- 
 nated "the plaintiff" or "the defendant." (Id.). In an 
 action by or against a partnership, the full names of all 
 the partners must- be stated (Bentley v. Smith, 3 Cai. 
 170) ; but in an action against a partnership doing busi- 
 ness as common carrier, objection cannot be taken by a 
 person properly made a defendant, on the ground that 
 the plaintiff had failed to join with him a person jointly 
 engaged with him in that business, unless the persons 
 so engaged shall, at least thirty days before the com- 
 mencement of the action, have filed in the clerk's office 
 of the county, in which they transact such business, a 
 statement showing the names of all of them. (Co. Civ. 
 Proc. § 1945 ) . If the defendant is known by two names, 
 he may be sued by either {Eagleston v. Son, 5 Robt. 
 640), or by that by which he is generally known, though 
 not his real one. {Cooper v. Burr, 45 Barb. 9) . Where 
 under section four hundred and fifty-one of the code of 
 
THE COMPLAINT. 395 
 
 civil procedure, a defendant has been designated by a 
 fictitious name, there must be an allegation in the com- 
 plaint that the real name is unknown. {Gardner v. 
 Kraft, 52 How. Pr. 499). If the cause of action is in 
 favor of the plaintiff in a representative capacity or 
 character, or is against a defendant in a similar charac- 
 ter, this fact should be clearly indicated, either in the 
 caption or the body of the complaint (Smith v. Levinus, 
 8 N. Y. 472; Root v. Price, 22 How. Pr. 372) ; but if it 
 appear in the body of the pleading, it is sufficient, 
 though it does not appear in the title. (Cordier v. 
 TJioiii'pson, 8 Daly, 172). The representative character 
 of the party suing or sued is designated by the use of 
 the word "as" or its equivalent. [Stilivell v. Carpenter, 
 62 N. Y. 639). If the words denoting such representa- 
 tive capacity are added directly to the name of the party, 
 they will be regarded as mere descriptio personce, 
 {Hallet v. Harroioer, 33 Barb. 537). If the representa- 
 tive character of the plaintiff is plainly disclosed in the 
 body of the complaint, the omission of the word "as" 
 in the caption is not held conclusive [Beers v. Shamion, 
 73 N. Y. 292) ; and in Marshall v. Bresler (1 How. Pr. 
 N. S. 217), it was held that the representative character 
 of the plaintiff was sufficiently indicated, although the 
 word "as" was not inserted before the word adminis- 
 trator; but in the case of Bennett v. Whitney, (94 
 N. Y. 302), it was held, that while the omission of the 
 word "as" in the title of the action is not conclusive, 
 when the body of the complaint plainly discloses an 
 official or representative capacity as the ground of 
 action; yet, where its scope and averments harmonize 
 with the omission, the action will be considered as 
 against the defendants individually. Where a party is 
 not named in the title of the action, but in the body of 
 the complaint, and it is stated that he is made a party 
 defendant because he refuses to join as plaintiff, and 
 how he is interested in the action, the remedy of defend- 
 ants is not by demurrer for misjoinder, but by motion to 
 set aside or strike out the complaint. {Swift v. Smith, 
 4 Law. Bull. 87)'. A mere misnomer is a formal error 
 which may be amended before or at the trial, or after- 
 
396 PKACTICB. 
 
 wards {Barnes v. Ferine, 12 N. Y. 18) ; and will be dis- 
 regarded on appeal {Bank of Havana v. Magee, 20 IST. 
 Y. 355) ; and a defendant sued by a wrong name can 
 not move to set aside the proceedings, but advantage of 
 sucli error must be taken by answer. ( Trarer v. Eighth 
 Ave. R. R. Co., 6 Abb. Pr.N. S. 46). If the complaint 
 differs from the summons as to the parties, it is the com- 
 plaint which is irregular {Tuttle v. Smith, 14 How. Pr. 
 395) ; and not the summons. {Allen v. Allen, Id. 248). 
 
 ARTICLE II. 
 
 STATEMENT OF FACTS. 
 
 SECTION. 
 
 1. What facts to be stated. 
 
 2. What should not be stated. 
 
 3. How facts to be stated. 
 
 4. What facts to be stated in certain cases. 
 
 Sec. 1. What Facts to be Stated. 
 
 The code of civil procedure (§ 481, Subd. 2) requires 
 the complaint to contain a plain and concise statement 
 of the facts constituting each cause of action, without 
 unnecessary repetition. Where a complaint sets forth 
 two or more causes of action, the statement of facts con- 
 stituting each cause of action must be separately stated 
 and numbered. (Co. Civ. Proc. § 483). The very object 
 of the code system of pleading, is to enable the court to 
 give judgment according to the facts stated and proved, 
 without reference to the forms used, or to the legal con- 
 clusions adopted by the pleader. {Wright v. Hooker, 
 10 N. Y. 51). All pleadings should now be literally and 
 absolutely true {People v. McGumher, 18 N. Y. 315, 
 323) ; and as there can be only one substantially true 
 statement of a single cause of action the practice of set- 
 ting it forth in different counts is necessarily abolished 
 {Nash V. McCauley, 9 Abb. Pr. 159), and where it is 
 so set forth, a motion to compel the plaintiff to elect 
 on which one he will rely, should be granted {Roierts 
 V. Leslie, 46 Super. 76 ; Fern v. Vanderbilt, 13 Abb. Pr. 
 72 ) ; unless it can be seen that, in consequence of a pos- 
 sible variance between the pleading and the proof, it is 
 
THE COMPLAINT. 397 
 
 necessary to permit the statement of one cause of action 
 in several counts. {Blank v. Hartslwrn, 37 Hun, 101). 
 It is not a case for demurrer. {Comstock v. Hoeft, 1 
 Law Bull. 43). But the court will not compel the 
 plaintiff to elect between several causes of action prop- 
 erly pleaded, although it may be probable that on the 
 trial but one cause of action will be presented. {Smith 
 V. Doibglass, 15 Abb. Pr. 266; Jones v. Palmer, 1 Abb. 
 Pr. 442). The complaint should state every fact which 
 plaintiiT must prove to enable him to maintain his suit, 
 and which defendant has a right to controvert or answer 
 {Allen V. Patterson, 7 N. Y. 476) ; and it is enough for 
 the pleader to state facts as they exist, from which the 
 court may draw the proper legal conclusions. {Haight 
 V. Child, 34 Barb. 186 ) . The facts required to be stated 
 are physical facts, capable of being established as such 
 by evidence, and from which, when so established, the 
 right to maintain the action or the validity of the de- 
 fense is a conclusion of law, to be drawn by the court. 
 {Lawrence v. Wright, 2 Duer, 673, 675). Where from 
 facts stated in the complaint, a material fact, not stated 
 in it, is plainly inferrable, the complaint ought not to 
 be dismissed at the trial for insufficiency. {Leon v. 
 Bernheimcr, 10 Wk. Dig. 288). Thus an allegation of 
 revocation of authority to make an award, was held good 
 without alleging notice of the revocation, because notice 
 was implied in the words "revoked the authority;" there 
 could be no revocation unless there was notice. {Frets 
 V. Frets, 1 Cow. 335). So an averment of acceptance, 
 implies that it was in writing. {Bank of Loivville v. 
 Edwards, 11 How. Pr. 216). Where a cause of action 
 is local, or where it is brought in a local or inferior 
 court, the complaint should state facts showing or con- 
 ferring jurisdiction. {Frees v. Ford, 6 N. Y. 176). So 
 where no question is raised at the trial, it will be pre- 
 sumed on appeal from such a court, that the court had 
 jurisdiction, unless it appear from the record to have 
 been legally impossible. {Bidwcll v. Astor Mnt. Ins. 
 Co., 16 N. Y. 263). Whatever may be necessary to 
 prevent surprise at the trial, or to protect the parties 
 from injustice or fraud, should be stated. But plead- 
 
398 PRACTICE. 
 
 ings are not required to give all the details of the 
 transactions to which they relate ; if they clearly apprise 
 the parties of the precise nature and extent of the 
 charge, and enable them to prepare for trial, nothing 
 more can be required. (Sloman v. Schmidt^ 8 Abb. 
 Pr. 5). 
 
 Sec. 2. What Should not be Stated. 
 
 None but material and issuable facts should be 
 pleaded {Williams v. Hayes, 5 How. Pr. 470) ; and 
 where other facts are pleaded, the remedy of the adverse 
 party is by motion to strike them out ; so that the record 
 shall present nothing but the issuable facts in the case. 
 ( Id. ) . One should never state facts by way of avoiding 
 an attempted defense. The fundamental provision of 
 the code, that the complaint must state the facts only 
 that constitute the cause of action, involves this rule; 
 it is therefore suflflcient if the plaintiff state those facts 
 only which constitute his cause of action, and not antici- 
 pate or negative a possible defense of the adversary 
 {Sands v. 8t. John, 23 How. Pr. 140), as by alleging 
 facts or circumstances to avoid the statute of limita- 
 tions. (Id.; Butler v. Mason, 5 Abb. Pr. 40). Where 
 by statute, or by the code, it is expressly declared what 
 shall be a sufficient pleading in any particular cause 
 of action or fact, it is unnecessary to plead any further 
 or additional facts. ( See ante, Chap. IX, Art. 1, section 
 5, where this subject is treated in reference to all 
 pleadings). 
 
 Sec. 3. How Facts to be Stated. 
 
 Subdivision two of section four hundred and eighty- 
 one of the code of civil procedure provides that there 
 must be a plain and concise statement of the facts con- 
 stituting each cause of action without unnecessary repe- 
 tition. It would seem that this alone would be sufil- 
 cient to indicate how facts should be pleaded ; but some 
 reference to authority may be useful. Care should be 
 taken as to how facts are stated, because the same facts 
 differently set forth may constitute different causes of 
 action, and a skillful adaptation of the facts, so as to con- 
 
THE COMPLAINT. 399 
 
 stitute this or that cause of action, may determine the 
 right to recover. {Van Leuven v. Li/l-e, 1 N. Y. 515). 
 Thus, when an infant hired a horse to go a fixed dis- 
 tance, and wrongfully went further, in an action of tort, 
 infancy would be no defense. {Fish v. Ferris, 5 Duer, 
 49). In Walter v. Bennett (16 N. Y. 250) the plaintiff 
 complained as for tort, and on the trial he proved a cause 
 of action on contract, and it was held a failure of proof, 
 and he was non-suited; the court saying that the form 
 of the plaintiff's action was ex delicto, and he must 
 prove that the defendant committed a wrong. The rule 
 is settled that when the complaint states a cause of 
 action for tort, it cannot, on the trial, be converted into 
 one on contract. {Neiideck-er v. Kohlberg, 81 N. Y. 
 296). For the rules covering amendments at the trial 
 see ante, Chap. 9 Art. 7. Where the complaint states 
 two causes of action, one good and one bad, the latter 
 does not invalidate the complaint, but may be treated 
 as surplusage. {Boyle v. City of Brooklyn, 71 N. Y. 1). 
 Allegations in a complaint should be consistent with 
 each other ; and so it is the established rule of pleading, 
 that only such causes of action can be united in the 
 same complaint as are consistent with each other. 
 {Henderson v. Jackson, 40 How. Pr. 168; Co. Civ. Proc. 
 § 484). A complaint may, however, state several 
 grounds or reasons for the relief demanded, or where 
 there is some uncertainty as to the exact ground of re- 
 covery, may so be framed as to meet the contingency 
 of the trial. {Talcott v. Yan Vechten, 25 Hun, 565; 
 Velic V. Neicark City Ins. Co., 65 How. Pr. 1; Pitts- 
 field Bank v. Tailer, 60 Hun, 130). Where a party ap- 
 pears to have a good cause of action, he will not be 
 turned out of court simply because the pleader has 
 stated it in an inartificial manner, or has joined several 
 different causes of action, in one count, unless' the ob- 
 jection thereto is specifically raised. {Wetmore v. 
 Porter, 92 N. Y. 76). No greater particularity is re- 
 quired than the nature of the thing pleaded will con- 
 veniently admit ; and less particularity is required, when 
 the facts lie more in the knowledge of the opposite party 
 
 36 
 
400 PRACTICE. 
 
 than of the party pleading. {Nellis v. DeForest, 16 
 Barb. 61). Thus a policy of insurance in the possession 
 of the opposite party, may be described in a general 
 way. ( Id. ) . 
 
 Sec. 4. What Facts to be Stated in Certain Cases. 
 
 The necessary and essential allegations in the various 
 actions are not properly a part of this work; they be- 
 long to the substantive, rather than the adjective, branch 
 of the law. It is to be borne in mind, of course, that 
 every variety of action requires certain allegations, but 
 what these are does not come within the province of a 
 treatise on practice. 
 
 There are code provisions directing certain allega- 
 tions in certain actions, Avhich, though no logical part 
 of this work, it may be well to mention cursorily. Cer- 
 tain provisions covering pleading in general have been 
 dealt with in Chap. 9, Art. 1, Sec. 5, ante, and these 
 will not be repeated here. 
 
 In an action to compel the determination of a claim 
 to real property, the requisite allegations are prescribed 
 by section 1639 of the code of civil procedure. The action 
 is statutory and the necessary averments are, there- 
 fore, prescribed. 
 
 In an action brought by or against a corporation, the 
 complaint must aver that the plaintiff or defendant, as 
 the case may be, is a corporation; must state whether 
 it is a domestic corporation or a foreign corporation; 
 and if the latter, the state, country or government, by 
 or under whose laws it was created. (Co. Civ. Proc. 
 § 1775). A complaint which fails to conform to the 
 provisions of this section is not demurrable {Harmon 
 V. Vanderbilt Hotel Co., 79 Hun, 392; affd. without 
 op., 143 N. Y. 665) ; and such a complaint will sustain 
 a judgment in favor of the plaintiff. {OcJis v. Frey, 
 47 App. Div. 390). The remedy for such defects in a 
 complaint is by motion. {Harmon v. Vanderhilt Hotel 
 Co., supra ) . 
 
 In an action by a creditor against his deceased debt- 
 or's heir, or devisee, to recover the debt, certain essen- 
 
THE COMPLAINT. 401 
 
 tial allegations are prescribed. ( Co. Civ. Proc. § § 1845, 
 1851). 
 
 The complaint, in an action for dower and in an 
 action of ejectment must describe the property with 
 common certainty, by setting forth the name of the 
 township or tract, and the number of the lot, if there 
 is any, or in some other appropriate manner. (Co. Civ. 
 Proc. §§ 1606, 1511). In an action for dower, the com- 
 plaint must also set forth the name of the plaintiff's 
 husband. (Co. Civ. Proc. § 1606). 
 
 The complaint in an action to foreclose a mortgage 
 upon real property must state, whether any other action 
 has been brought to recover any part of the mortgage 
 debt, and, if so, Avhether any part thereof has been col- 
 lected. (Co. Civ. Proc. § 1629). 
 
 In an action for partition, the complaint must de- 
 scribe the property with common certainty, and must 
 specify the rights, shares, and interests therein of all 
 the parties, as far as the same are known to the plain- 
 tiff. If a party, or the share, right, or interest of a 
 party, is unknown to the plaintiff; or if a share, right, 
 or interest is uncertain or contingent; or if the owner- 
 ship of the inheritance depends upon an executoiy de- 
 vise; or if a remainder is a contingent remainder, so 
 that the party cannot be named; that fact must also 
 be stated in the complaint. (Co. Civ. Proc. § 1542). 
 
 In an action of replevin the code of civil procedure 
 provides the manner of alleging certain essential facts. 
 See sections 1720, 1721. 
 
 Where an action is brought for a separation, the 
 complaint must specify particularly the nature and 
 circumstances of the defendant's misconduct, and must 
 set forth the time and place of each act complained of, 
 with reasonable certainty. (Co. Civ. Proc. § 1764). 
 
 In every instance, however, the code must be carefully 
 searched to unearth provisions of substantive law cov- 
 ering contemplated' actions. There are many such 
 adroitly concealed among provisions dealing solely 
 Avith practice. 
 
402 PRACTICE. 
 
 ARTICLE rri. 
 
 JOINDER OF CAUSES OF ACTION. 
 
 SECTION. 
 
 1. What is a single cause of action. 
 
 2. What causes of action may be joined. 
 
 3. What causes of action may not be joined. 
 
 4. How objection of misjoinder taken. 
 
 Sec. 1. What is a Single Cause of Action. 
 
 The plaintiff may unite, in the same complaint, two 
 or more causes of action, whether they are such as were 
 formerly denominated legal or equitable, or both, where 
 they are brought to recover as follows : 
 
 1. Upon contract, express or implied. 
 
 2. For personal injuries, except libel, slander, crim- 
 inal conversation, or seduction. 
 
 3. For libel or slander. 
 
 4. For injuries to real property. 
 
 5. Real property, in ejectment, with or without dama- 
 ges for the withholding thereof. 
 
 6. For injuries to personal property. 
 
 7. Chattels, with or without damages for the taking 
 or detention thereof. 
 
 8. Upon claims against a trustee, by virtue of a con- 
 tract, or by operation of law. 
 
 9. Upon claims arising out of the same transaction, 
 or transactions connected with the same subject of 
 action, and not included within one of the foregoing 
 subdivisions of this section. 
 
 10. For penalties incurred under the fisheries, game 
 and forest law. 
 
 But it must appear, upon the face of the complaint, 
 that all the causes of action, so united, belong to one of 
 the foregoing subdivisions of this section ; that they are 
 consistent with each other; and, except as otherwise 
 prescribed by law, that they affect all the parties to 
 the action; and it must appear upon the face of the 
 complaint that they do not require different places of 
 trial. (Co. Civ. Proc. § 484). 
 
THE COMPLAINT. 403 
 
 This geetion is a substitute for so much of the code 
 of procedure (§ 167) as relates to the joinder of causes 
 of action. The amendments in the different subdivisions 
 are of minor importance; their chief object is to re- 
 move obscurities of expression in the original. 
 
 It will first be necessary to determine what consti- 
 tutes a single cause of action. The distinction usually 
 made between demands or rights of action, which are 
 single and entire, and those which are several and dis- 
 tinct, is that the former immediately arise out of one 
 and the same act or contract, and the latter out of dif- 
 ferent acts or contracts. {Secor v. 8t}i.rgis, 16 N. Y. 
 548) . In the case of Welch v. Piatt (32 Hun, 194 ; S. C, 
 5 Civ. Proc. Rep. 433), where the complaint set forth 
 a usurious loan of money, the execution and delivery 
 of a chattel mortgage to secure the loan, and alleged 
 that it was void on that ground, and asked that it be 
 surrendered and canceled; and also alleged that the 
 plaintiff was the owner of certain chattels included in 
 the mortgage, and that the defendant without process 
 of law, wrongfully took the same from the plaintiff, 
 and unjustly detained them to the plaintiff's damage; 
 it was held that it presented but one cause of action; 
 viz : for the taking and conversion of the property ; 
 that the statements regarding the loan and the chattel 
 mortgage were legally no more than alleging that the 
 plaintiff was the owner of the property, for the taking 
 and conversion of which the action was brought. And 
 although the different allegations were separately stated 
 and numbered, the judge says, that notwithstanding 
 this division, but a single cause of action was set forth 
 in the complaint. So in the case of Lattin v. McCarty 
 (41 N. Y. 107), where the plaintiff prayed for, 1, pos- 
 session ; and 2, a conveyance of the defendant's apparent 
 title by quit-claim, or otherwise, etc., and that the de- 
 fendant be forever barred from setting up or asserting 
 his pretended title; Hunt, 0. J., says, that the com- 
 plaint contains but a single cause of action ; to wit, for 
 relief against the deed under which defendant fraudu- 
 lently obtained possession. It is quite true that while 
 the purpose of the complaint is single, it seeks to 
 
404 PRACTICE. 
 
 accomplish that result by several operations ; it seeks to 
 have a fraudulent deed set aside, and when that is done, 
 it will follow that the plaintiff shall be awarded the 
 possession of the property. The first is a means simply 
 of obtaining the second. One is the cause of action, and 
 the other is the fruit of the action. As to what facts 
 have been held to constitute but one cause of action 
 see the cases of Krower v. Reynolds (99 N. Y. 245) ; 
 Tuers v. Tuers (100 N. Y. 196) ; BeMnger v. Sweet,. 
 (1 Abb. N. C. 263). In the case of torts, each trespass, 
 or convei'sion, or fraud gives a right of action, and but 
 a single one, however numerous the items of wrong or 
 damage may be. (TF. T. Filer v. N. Y. C. R. R. Co., 49 
 N. Y. 42). So, where the plaintiff alleged that the de- 
 fendant assaulted the plaintiff, dragged him violently 
 through the public streets, imprisoned him in the 
 custody of the sheriff, and restrained him of his liberty 
 without probable or reasonable cause, whereby he was 
 wounded and injured in credit and in other business; 
 it constitutes but one cause of action. {Sheldon v. 
 Lake, 9 Abb. Pr. N. S. 306). If there is but one right 
 to be enforced or one wrong to be redressed, there can 
 be but one cause of action, however many steps are 
 necessary to enforce such rights, or to redress such 
 wrong. {Meyer v. Yan CoUcm, 7 Abb. Pr. 222). More- 
 over if there is but one right and that right is in the 
 plaintiff as an executor or administrator, a complaint 
 seeking to enforce the right is not demurrable if the 
 action is entitled as by the plaintiff individually and 
 as executor. {Moss v. Cohen, 158 N. Y. 240). A com- 
 plaint which alleges an assault upon the plaintiff and a 
 trespass upon his premises at the same time sets up 
 but one cause of action. {GUhcrt v. Pritchard, 41 
 Hun, 46). The same rule is true also, of actions on 
 contracts. {Secor v. Sfurgis, 16 N. Y. 548). So, in a 
 running account it is held that all of the items due at 
 the time of the action constitute but a single cause of 
 action; and that the recovery in one action for a part 
 of the items, is a bar to a subsequent action for the 
 residue. {Stevens v. Lockwood, 13 Wend. 644). But 
 where several notes have been given in settlement of 
 
THE COMPLAINT. 405 
 
 such running account, a separate action may be brouglit 
 on each note. {Nathans v. Hope, 77 N. Y. 420). The 
 contract of an attorney with his client to prosecute or 
 •defend a suit is entire, and he must include all his 
 services in one action. {Bathgate v. Haslcin, 59 N. Y. 
 533) . The law forbids the splitting up of a single cause 
 of action, in order to prevent vexatious or oppressive 
 litigation. {Perry v. Dicker son., 85 N. Y. 345). But 
 where the parties agree to a division of a single demand, 
 the reason for the rule ceases. {O'Bierne v. Lloyd, 43 
 N. Y. 248). A party cannot be compelled to join in 
 •one action several distinct causes of action. {Secor v. 
 Sturgis, 16 N. Y. 548). The assertion may be ventured 
 that a considerable divergence of judicial opinion will 
 be found on the question as to what constitutes a single 
 cause of action. 
 
 Sec. 2. What Causes of Action may be Joined. 
 
 Section four hundred and eighty-four of the code of 
 civil procedure expressly provides, that whether causes 
 of action are such as were formerly denominated legal 
 or equitable, or both, they may be united in the same 
 complaint. All the causes of action must be consistent 
 with each other. The complaint in this respect differs 
 from the answer, in that the answer may allege a defense 
 upon distinct, and even inconsistent grounds. {Good- 
 win V. Wertheimer, 99 N. Y. 149). The section also 
 requires, that it must appear on the face of the com- 
 plaint, that all the causes united belong to one of the 
 subdivisions of the section; that they do not require 
 different places of trial ; that they affect all the parties 
 to the action, except as otherwise prescribed by law 
 (subd. 9) ; but it has been held under this subdivision, 
 that causes of action, belonging to different subdivisions 
 of the section, may be united in the same complaint, if 
 they arise out of the same transaction; and that sub- 
 division 9 was broad enough to embrace more than one 
 cause of action, and also causes of action belonging to 
 different subdivisions of that section. {Polley v. Wilkis- 
 son, 5 Civ. Pro. Rep. 135 ) . Subdivision 10, however, is 
 not to be included in this statement of the rule. That 
 
406 PRACTICE. 
 
 subdivision was added by chapter 590, of the laws of 
 1900, and it was very sliortly determined that a cause 
 of action for injuries to real property under subdivision 
 4 and for penalties under subdivision 10 could not be 
 joined although arising out of the same transaction. 
 {People V. Wells, 52 App. Div. 583). The causes of 
 action must be in favor of all the plaintiffs, and against 
 all the defendants, and belong to the same class {Enos 
 V. Thomas, 4 How. Pr. 48) ; but defendants need not be 
 all equally affected. {Earle v. Scott, 50 How. Pr. 506). 
 Demand for legal and equitable relief when consistent, 
 may be joined {Getty v. Hudson Riv. R. R. Co., 6 How. 
 Pr. 269) ; as to have a contract reformed, and enforced 
 as reformed {Gooding v. McAlister, 9 How. Pr. 123) ; 
 but it is not compulsory to join legal and equitable 
 causes of action, when they arise out of the same trans- 
 action, or connected with the subject of the action. 
 {Bruce v. Kelly, 5 Hun, 229). By the joinder of legal 
 and equitable causes of action, however, the defendant 
 cannot be deprived of a jury trial as to the legal causes 
 of action. {Van Deventer v. Van Deventer, 32 App. 
 Div. 578). Where a judgment creditor, in an action 
 against other creditors of his judgment debtor, demands 
 judgment in his complaint that the liens of certain of 
 the defendants be set aside as fraudulent, and also de- 
 mands enforced foreclosure of a valid chattel mortgage 
 held by another defendant, and the application of the 
 surplus to the payment of the plaintiff's claim; it is 
 held that the causes of action do not affect all the 
 parties to the action and consequently they are not 
 capable of joinder. {Higgins v. Crichton, 2 Civ. Pro. 
 Kep. 317; affd. 98 K Y. 626). 
 
 1. Causes of action arising out of a contract, express 
 or implied, and affecting all the parties may clearly be 
 be joined. (Co. Civ. Proc. § 484, subd. 1; Gridley v. 
 GrUlIey, 24 N. Y. 130). So, it was held, on demurrer 
 for misjoinder of causes of action, that the creditor hold- 
 ing a joint judgment against debtors entitled to separate 
 legacies under the same will, might properly join them 
 as defendants in one action to reach said property. 
 {Bradner v. Holland, 33 Hun, 288). Where one count 
 
THE COMPLAINT. 407 
 
 was for money loaned, another for services, and a third 
 alleged fraud in inducing the payment of the money and 
 the rendering of the services ; it was held that there was 
 no misjoinder; the allegations of fraud merely showed 
 the right to rescind. {Campbell v. Wriylit, 21 How. Pr. 
 9). An action to recover money paid on a contract re- 
 pudiated by the plaintiff for fraud, and one for money 
 V paid, on the ground that the defendant had refused to 
 perform, may be united. (Freer v. Denton, 61 N. Y. 
 492). 
 
 2. Causes of action for personal injuries (except libel, 
 slander, criminal conversation, or seduction) may be 
 joined in one complaint. (Co. Civ. Proc. § 484, subd. 2) . 
 So, it was held that a cause of action for false imprison- 
 ment and one for malicious prosecution, both arising out 
 of the same transaction, may be alleged in the same com- 
 plaint in different counts. {Barr v. Bliaw, 10 Hun, 580; 
 Marks v. Toionsend, 97 N. Y. 590) . In the case of Neben- 
 ::ahl v. Toicnsend (61 How. Pr. 353), it was held, that 
 where these tAVO causes of action are joined in a com- 
 plaint, the plaintiff should be compelled to elect upon 
 which cause of action he will proceed ; but in the case of 
 HaigM v. Webster (18 Wk. Dig. 108), it was decided 
 that an action for false imprisonment, and one for ma- 
 licious prosecution may be united in the same complaint, 
 and tried together. The later cases seem to have firmly 
 established the proposition that these two actions may 
 be joined. (Thorp v. Carrallw, 14 Misc. 554). Crim- 
 inal conversation or seduction cannot be joined under 
 subdivision 2, with other causes of action for personal 
 injuries, nor can injuries to the person be joined with 
 injuries to property. (Dodge v. Colby, 37 Hun, 515; 
 reversed on ground that. demurrer did not specify this 
 improper joinder, 108 N. Y. 445, 452). 
 
 3. Actions for libel or slander may be united in the 
 same complaint (Co. Civ. Proc. § 484, subd. 3) ; but an 
 action of libel or slander cannot be united with one for 
 personal injuries. (Perrotean v. Johnson, 4 Law Bull. 
 25). So a cause of action for slander and one for false 
 imprisonment cannot be joined. (DeWolfe v. Abraham, 
 151 N. Y. 186) . Where the plaintiff alleged facts which 
 would, if established, have sustained an action for assault 
 
408 PRACTICE. 
 
 and battery, and also facts whicli would liave sus- 
 tained an action of slander; on demurrer, it was held 
 that two causes of action were improperly united in the 
 complaint {Anderson v. Hill, 53 Barb. 238) ; and the 
 case of Breivcr v. Temple (15 How. Pr. 286), to the con- 
 trary, was overruled. In libel, all who concur in its pub- 
 lication may be sued together; but in slander every 
 speaker must be sued separately. {Forsyth v. Edniiston, 
 2 Abb. Pr. 430). Where a libel is against partners, all 
 the partners may sue together. {Taylor v. Church, 8 
 N. Y.'452). 
 
 4. Causes of action for injuries to real property may 
 be joined in one complaint. (Co. Civ. Proc. § 484, subd. 
 4). So trespass dc lionis asportaiis could always, as a 
 separate cause of action, be joined with trespass qnare 
 clausinn freyit { Lovett v. PeJJ, 22 Wend. 369) ; and 
 are joined under the code system of pleading. {Colton 
 V. Jones, 7 Robt. 164). 
 
 5. Causes of action brought to recover real property in 
 ejectment, with or without damages for the withholding 
 thereof, may be joined in one complaint. (Co. Civ. Proc. 
 § 484, subd. 5). In an action of ejectment against several 
 defendants, where the complaint alleges that the defend- 
 ants are in possession, and also states, in a distinct alle- 
 gation, that one of the defendants is in possession of a 
 part of the property, under the other defendants; the 
 complaint is not demurrable for mi^oinder of causes of 
 action. {Rank v. Leriniis, 5 Civ. Proc. Eep. 368). In 
 an action to recover real property, or the possession 
 thereof, the plaintifp may demand in his complaint, and 
 in a proper case recover damages, for withholding the 
 property. (Co. Civ. Proc. § 1496; Compton v. "The 
 Chelsea," 139 N. Y. 538). It was formerly held that 
 rents and profits were distinct from damages for with- 
 holding {Lamed v. Hudson, 57 N. Y. 151) ; but the code 
 provides that the damages in ejectment include the rents 
 and profits, or the value of the use and occupation of the 
 property, where either can legally be recovered by the 
 plaintiff. (Co. Civ. Proc. § 1497). So, an action for 
 recovery of dower, and one for damages for the with- 
 holding, may be joined. {Yan Name v. Yan Name, 23 
 
THE COMPLAINT. 409 
 
 How. Pr. 247) . A claim in ejectment may be joined with 
 an action to set aside a deed as fraudulent, and both 
 legal and equitable relief demanded. (Lattiii v. Mc- 
 Carti/, 41 N. Y. 107). It seems that actions at law and 
 in equity, for relief against a conveyance under which 
 defendants claim, may be joined. [Mcl'cagiiv v. Coulter, 
 38 Super. 208). So a party may set forth a cause of 
 action for a specific performance of a contract to convey 
 land, and also a cause of action for damages for a breach 
 of the contract, if for any reason it cannot be performed ; 
 and if it turns out that the equitable relief cannot be 
 granted, he may recover his damages, if he is entitled to 
 any. {Margrdf v. Miilr, 57 N. Y. 155). In an action to 
 set aside a conveyance, a claim for rents received by the 
 grantee may be joined. ( Coleman v. Phelps, 57 How. Pr. 
 393). A joinder of actions for a partition of real and 
 personal property is permissible. {Prentice v. Janssen, 
 7 Hun, 86). 
 
 6. The plaintiff may unite two or more causes of ac- 
 tion for injuries to personal property (Co. Civ. Proc. § 
 484, subd. 6) ; as a cause of action for injuries to a horse 
 by excessive driving, and a count for the conversion of 
 the horse. {Summer ville v. Metcalf, 15 Wk. Dig. 
 154). A cause of action that the defendant, by false 
 and fraudulent representations, had induced plaintiff 
 to sign a bond for the payment of money, secured by a 
 mortgage on plaintiff's real estate, which at defendant's 
 request were made to a third person, to whom defendant 
 delivered them, receiving the specified sum therefor, 
 may be joined with a cause of action for the conversion 
 of the plaintiff's property, by the defendant. Both 
 causes of action are for an injury to personal property. 
 {DeSilver v. H olden, 50 Super. 236). Causes of action 
 for deceit in the sale of a canal boat and horses, and for 
 wrongfully taking property from the boat, being both 
 for injuries to the right of property, may be joined. 
 (Cleveland v. Barrows, 59 Barb. 364). 
 
 7. Causes of action to recover chattels, with or with- 
 out damages for the taking or detention thereof, may 
 b& joined in one complaint. (Co. Civ. Proc. § 484, subd. 
 7) . Nothing in title 2, of chapter 14, of the code of civil 
 
410 PRACTICE. 
 
 procedure, in regard to actions relating to chattels, is 
 to be so construed as to prevent the plaintuff from 
 uniting in the same complaint, two or more causes of 
 action, in any case specified in section four hundred and 
 eighty-four. "(Co. Civ. Proc. § 1689). Counts for deten- 
 tion, and for wrongful injury to plaintiff's property 
 while in the sheriff's possession, may be joined in the 
 same complaint against the sheriff. (Smith v. Orser, 
 42 N. Y. 132). But, in order to entitle him to recover 
 damages for the taking or detention of the property, 
 he must set forth the facts in his complaint, and demand 
 judgment for damages accordingly. (Co. Civ. Proc. § 
 1722). 
 
 8. Two or more causes of action, to recover upon 
 claims against a trustee, by virtue of a contract, or by 
 operation of law, may be joined in one complaint. (Co. 
 Civ. Proc. § 484, subd. 8 ) . Thus, two causes of action, 
 arising out of a breach of trust by a testator, may be 
 united in an action against his executor, brought by 
 the surviving trustee {Price v. Brown, 10 Abb. N. C. 67) ; 
 but a cause of action against an executor, for the collec- 
 tion of assets which had come to his hands, cannot be 
 joined with one for an accounting and a construction 
 of the will. {Pctrie v. Petrie, 7 Lans. 90). Although 
 all the defendants be not jointly connected with every 
 act of the breach of trust, alleged in the complaint, yet 
 if there is a series of acts on their part, produced by 
 the same fraudulent intent which contributeji to the 
 injury of the plaintiffs, and the statements are not made 
 as separate and distinct causes of action against the 
 several defendants, a cause of action is alleged by which 
 they are all affected, and in respect to which they are 
 necessary parties, the several matters may be joined in 
 one complaint. {Garner v. Harmonjj Mills, 6 Abb. N. 
 C. 212). A cause of action against a trustee of an in- 
 solvent bank for making improper investments cannot 
 be united with a cause of action on the bond given by 
 him to assist in making lip a deficiency in the assets 
 of the bank. {French v. Salter, 7 Hun, 546). An action 
 against defendants individually, because as trustees 
 they failed to make the return required by law, and for 
 
THE COMPLAINT. 411 
 
 their liability as stockholders to a laborer employed by 
 the company, may be joined in one complaint {Sterne 
 V. Herman, 11 Abb. N. S. 376) ; but it is held that a 
 claim against a stockholder because of failure to file 
 certificate of payment of capital stock cannot be united 
 with one against him for the same debt as trustee for 
 failure to file the annual report. One is on contract, 
 and the other for a penalty. {Wiles v. Siiydam, 64 
 N. Y. 173). A cause of action against a trustee for not 
 filing a report may be joined with one for a false report, 
 where both affect the same parties. Both are in the 
 nature of a penalty {Bonnell v. Wheeler, 1 Hun, 332) ; 
 but each cause of action must affect all the parties to 
 the action. {Bonnell v. Oriswold, 68 N. Y. 294). For 
 an omission to file a report, all the trustees are liable; 
 for making a false report and filing it, only those who 
 do the act are liable. Where executors continued to 
 occupy premises formerly occupied by their testator, it 
 was held that in an action against them, in their repre- 
 sentative capacity, there might be joined a demand for 
 rent, which accrued in the lifetime of the testator, with 
 rent subsequently accruing. {Pugsley v. Aikin, 11 N. Y, 
 494). 
 
 9. Causes of action to recover upon claims, arising 
 out of the same transaction, or transactions connected 
 with the same subject of action, and not included in one 
 of the foregoing subdivisions of section four hundred 
 and eighty-four of the code of civil procedure, may be 
 joined in the same complaint. It is impracticable to lay 
 down a general rule, which will serve as an accurate 
 guide to determine when claims arise out of the same 
 transaction, or transactions connected with the same 
 subject of action. The courts will pass upon each case 
 as it is presented. {Wiles v. Suydam, 64 N. Y. 173, 
 177) . It is to be borne in mind that two causes of action 
 originating at the same time may have arisen as a mat- 
 ter of law out of different transactions. {DeWolfe v. 
 Abraham, 151 N. Y. 186). Where different persons ar6 
 interested in an account, although not in the same right, 
 they may and in most cases should all be joined. 
 {JAttell V. Bayre, 7 Hun, 485). An action for trespass 
 
412 PRACTICE. 
 
 upon land may be joined with an action for conversion 
 of personal property, where they both arise out of the 
 same transaction. {Polley v. Wilkisson, 5 Civ. Proc. 
 Eep. 135). So an action for an injunction restraining 
 the maintenance of a railroad in the street may be 
 joined with one for damages for personal injuries suf- 
 fered on a particular occasion from the same wrongful 
 use and appropriation of a highway. {Lamming v. 
 Oaluslia, 135 N. Y. 239). Separate causes of action, 
 arising out of a breach of contract and injuries to prop- 
 erty, the subject of the contract, entrusted to another, 
 to enable him to perform it, may be properly joined as 
 arising out of one transaction {Badger v. Benedict, 4 
 Abb. Pr. 176; affd. 1 Hilt, 414); and where injuries 
 have resulted both to the person and to the property, 
 from an act of negligence on the part of the defendant, 
 both causes of action may be united in the same com- 
 plaint. {Hoioe V. Peckhahi, 10 Barb. 656). It was held 
 in Robinson v. Flint { 16 How. Pr. 240 ) , that an action 
 in tort, and a cause of action on contract, or for a breach 
 of contract, may be united in one action, where the 
 causes of action arose out of the same transaction. In 
 the case last cited it is said that, by "transaction" is to 
 be understood the whole proceedings, commencing with 
 the negotiations, and ending with the performance of 
 the contract, where the matter in controversy arises 
 out of a contract. If the causes of action do not arise 
 out of the same transaction, or transactions connected 
 with the same subject of action, then causes of action 
 ex contractu cannot in general be united with causes of 
 action ex delicto. {Keep v. Kaufman, 56 N. Y. 332) ; 
 and, though they arise out of the same transaction, they 
 cannot be joined if inconsistent. {McClure v. ^Yihon, 
 13 App. Div. 274). There seems to be no inherent im- 
 possibility in an action on tort and one in contract 
 arising out of the same transaction. A claim for dam- 
 ages, for loss or conversion of goods by a carrier, and 
 to recover an excess of freight paid on the supposition 
 that all the goods had been delivered, may be joined in 
 one complaint. (Adams v. i?isseH, 28 Barb. 382). An 
 action based on the ownership of money, lost by another 
 
THE COMPLAINT. 413 
 
 in gaming, and one based on an assignment from the 
 loser of his statutory cause of action, may be united. 
 {GasskJy v. Daly, 11 Wk. Dig. 222). In an action to 
 set aside a conveyance as fraudulent, a cause of action 
 against joint debtors and partners may be united with 
 one for the individual fraud of the defendants. (Rot/er 
 lYheel Co. v. Fielding, 61 How. Pr. 437; affd. 31 Hun, 
 274; reversed on another point, 101 N. Y. 504). A 
 count for fraud and deceit, and a count for money had 
 and received by means of such fraud and deceit, may 
 be united in the same complaint; the liability arising 
 out of the same transactions. {Woodbury v. Deloss, 65 
 Barb. 501 ) . A cause of action for having caused plain- 
 tiff's ancestor to make a will by fraud and duress, may 
 be joined with one for having by false representations, 
 induced the plaintiff to waive objections to the probate 
 of the will, as the subject of both is the disherison of 
 the plaintiff. {Sai/ v. Hay, 13 Hun, 315). So a cause 
 of action for loss of services by seduction may be joined 
 with one to set aside a release of such cause of action 
 on the ground that it was obtained by fraud. (Jackson 
 V. Brown, 74 Hun, 25) . A complaint in an action to have 
 a receiver appointed of the rents of the real property 
 of which the defendant was the life tenant and the 
 plaintiff the remainderman, alleged as a first cause of 
 action the receipt of the rents by the defendant and the 
 non-payment of taxes, and as a second cause of action 
 the breach of an agreement by the defendant to pay the 
 plaintiff a certain proportion of the expenses of probat- 
 ing the will of their common testator; upon demurrer 
 for misjoinder the complaint was held good. [Cor- 
 coran V. Manner ing, 10 App. Div. 516). It was held 
 proper to join the officer and his sureties, in an action 
 alleging that the officer took sufficient goods on plain- 
 tiff's execution to satisfy it, and that he has failed to 
 make a return, and is withholding the money after the 
 return day. (Moore v. Smith, 10 How. Pr. 361). It 
 is proper to unite in one action, claims to recover 
 moneys paid on several separate purchases of lottery 
 tickets. (Orover v. Morris, 73 N. Y. 473). A cause of 
 action as executrix may be joined with one as devisee. 
 
414 
 
 PRACTICE. 
 
 where both accrued under a contract made by the tes- 
 tator with defendant, growing out of the same matters. 
 [Armstrong v. Hall^ 17 How. Pr. 76). It was held be- 
 fore the enactment of section 1815 of the code of civil 
 procedure that an action against an executor or admin- 
 istrator as such could not be joined with one against 
 the same person in an individual capacity (Clark v. 
 Coles, 50 How. Pr. 178), but this section has changed 
 the rule. It provides that an action may be brought 
 against an executor or administrator, personally, and 
 also in his representative capacity in either of the fol- 
 lowing cases : 
 
 1. Where the complaint sets forth a cause of action 
 against him in both capacities, or states facts, which 
 render it uncertain, in which capacity the cause of ac- 
 tion exists against him. 
 
 2. Where the complaint sets forth two or more causes 
 of action against the defendant, in different capacities, 
 all of which grow out of the same transaction, or trans- 
 actions connected with the same subject of action; do 
 not require different places or modes of trial; and are 
 not inconsistent with each other. For an application 
 of this section, see DeCrano v. Moore, (50 App. Div. 
 361). Two or more persons, severally liable upon the 
 same written instrument, including the parties to a 
 bill of exchange or a promissory note, whether the 
 action is brought upon an instrument, or by a party 
 thereto to recover against other parties liable over to 
 him; may, all or any of them, be included as 
 defendants in the same action, at the option of the 
 plaintiff. (Co. Civ. Proc. § 454). The liability must 
 be, of course, upon the same written instrument to be 
 within the provisions of this section. ( Carman v. Plass, 
 23 N. Y. 286; Roehr v. Liehniann, 9 App. Div. 247), 
 This section refers only to written instruments upon 
 which the parties are severally liable for the whole 
 amount and does not apply to a policy "of marine in- 
 surance which by its terms binds its numerous under- 
 writers severally and not jointly each one for his own 
 part of the whole amount of insurance. [Straus v. 
 If oa(Z%, 23 App. Div. 360). 
 
THE COMPLAINT. 415 
 
 Sec. 3. What Causes of Action may not be Joined. 
 
 Where the causes of action do not belong to one of 
 the subdivisions of section four hundred and eighty- 
 four, or where they are not consistent with each other, 
 or do not affect all the parties to the action, or where 
 the different causes require different places of trial, 
 they cannot be united in the same complaint. ( Co. Civ. 
 Proc. § 484). The plaintiff can only join in one action, 
 two or more causes of action, where they are such as it 
 is provided by section four hundred and eighty-four may 
 be united. A cause of action under subdivision 10 of 
 this section cannot be joined with one under another 
 subdivision, although arising out of the same trans- 
 action. {People V. Wells, 52 App. Div. 583). The 
 plaintiff cannot unite in one action, ejectment and tres- 
 pass quare clausum f regit {Budd v. Bingham, 18 Barb. 
 494) ; nor an action to recover damages for flooding 
 plaintiff's land, caused by defendant's railroad em- 
 bankment, with one for breach of duty in neglecting 
 to erect a farm crossing; the latter being for breach 
 of implied contract. {Thomas v. TJtica etc. R. B. Co., 
 97 N. Y. 245). A complaint which stated three causes 
 of action, one for breach of contract, one for personal 
 injuries, and one for injuries to personal property, is 
 subject to demurrer for misjoinder, although they are 
 blended in a single count. {Toivnsend v. Coon, 7 Civ. 
 Proc. Rep. 56). So, a complaint containing a cause of 
 action upon a warranty of a chattel sold, and also a 
 cause of action for false representations in respect to 
 such chattel, is demurrable for misjoinder; as the two 
 causes of action do not arise out of the same transaction. 
 {8eijmonr v. LoriUard, 8 Civ. Proc. Rep. 90). A cause 
 of action for trespass on lands cannot be joined with 
 a cause of action for slander of title of such lands 
 {Dodge v. CoVby, 37 Hun, 515; reversed on ground 
 that demurrer did not specify this improper joinder, 
 108 N. Y. 445, 452) ; nor can a cause of action against 
 the personal representatives of a deceased person, to 
 impress a lien upon the decedent's real estate, which is 
 an equitable action, be joined with a cause of actioa 
 
 ' 37 \ 
 
416 PRACTICE. 
 
 Tinder the statute, against the heirs and their grantees 
 upon a contract of the decedent. {Hay ward v. McDon- 
 ald, 1 How. Pr. N. S. 229). A cause of action for con- 
 verting property, and a cause of action for the proceeds 
 of real estate on sales of the property, cannot be united 
 in the same complaint; the recovery in tort would bar 
 the action on contract, and vice versa. {Teall v. City 
 of Syracuse, 32 Hun, 332). A plaintiff cannot unite 
 a cause of action for negligence, causing the death of 
 one person, of whose estate he is the administrator, 
 with a cause of action for the death of another person, 
 of whose estate he is also the administrator, even 
 though the deaths of both decedents were caused by 
 the same negligence. (Danaher v. City of Brooklyn, 
 4 Civ. Proc. Rep. 286). Two separate and distinct 
 causes of action, arising upon two separate and distinct 
 contracts, in which the plaintiffs are not jointly inter- 
 ested, cannot be united in the same complaint. {Juliana 
 Ware Co. v. 8ands, N. Y. Daily Reg., Feb. 4th, 1881). 
 An action for a divorce cannot be joined with one for 
 a separation. (Zorn v. Zorn, 38 Hun, 237). Two 
 persons, each claiming the whole of a piece of land, can- 
 not unite in an action against a third person in pos- 
 session, setting forth the title of each plaintiff in a 
 separate count. {Huhhell v. Lerch, 58 N. Y. 237). A 
 claim which accrued to the plaintiff personally, and one 
 which accrued to a deceased person whom plaintiff 
 represents, cannot be united in one action {Hall v. 
 Fisher, 20 Barb. 441) ; nor a cause of action 
 against all the defendants jointly, and against one, or 
 some of them, less than all, severally {Barnes v. Smith, 
 16 Abb. Pr. 420 ) ; nor a cause of action against defendant 
 individually, with other causes against him as trustee, 
 and separate demands against other defendants {Smith 
 V. Ooertncr, 40 How. Pr. 185) ; nor a cause of action 
 which accrued to a testator with another which accrued 
 to his personal representatives after his death. {ArJc- 
 enhurgh v. Wiggins, 13 App. Div. 96 ; affd. without op., 
 162 N. Y. 596). 
 
THE COMPLAINT. 417 
 
 See. 4. How Objection of Misjoinder Taken, 
 
 The defendant may demur to the complaint where 
 one or more of the following objections thereto appear 
 upon the face thereof; * * *. 7. That causes of 
 action have been improperly united (Co. Civ. Proc. § 
 488). Where any of the matters enumerated in section 
 four hundred and eighty-eight of the code of civil pro- 
 cedure as grounds of demurrer, do not appear on the 
 face of the complaint, the objection may be taken by 
 answer. (Co. Civ. Proc. § 498). If such an objection 
 is not taken, either by demurrer or answer, the defend- 
 ant is deemed to have waived it; except the objection 
 to the jurisdiction of the court, or to the objection that 
 the complaint does not state facts sufficient to consti- 
 tute a cause of action. ( Co. Civ. Proc. § 499 ) . A single 
 instance of two misjoined causes of action is sufficient 
 to overthrow the complaint, no matter how many causes- 
 of action, properly or improperly joined, the complaint 
 may contain. (Stanton v. Missouri Pacific Rij. Co., 
 15 Civ. Proc. Rep. 296, 306). The objection that causes 
 of action are joined which do not affect all defendants 
 may be taken by demurrer by a party who is so affected. 
 (Nichols V. Drew, 94 N. Y. 22; Nash v. Hall Signal 
 Co., 90 Hun, 354). If the complaint contains several 
 causes of action improperly united, the plaintiff's fail- 
 ure to state them separately and number them does not 
 deprive the defendant of the right to demur. ( Goldberg 
 V. Utley, 60 N. Y. 427; Lamming v. Oalusha, 135 N. Y. 
 239). 
 
 ARTICLE IV. 
 
 -DEMAND OF JUDGMENT. 
 
 eECTION. 
 
 1. For final judgment. 
 
 2. Interlocutory and final judgment. 
 
 Sec. 1. For Final Judgment. 
 
 The complaint must contain a demand of the judg- 
 ment to which the plaintiff supposes himself entitled. 
 (Co. Civ. Proc. § 481, subd. 3) . In the code of procedure 
 the demand was for the relief to which the plaintiff 
 
418 PRACTICE. 
 
 supposed himself entitled; and the commissioners state 
 that the substitution of "judgment" for "relief" is made 
 to exclude prayers for provisional remedies from the 
 complaint. From Mr. Throop"s notes of sections four 
 hundred and eighty-one and twelve hundred and seven 
 of the code, it seems that, strictlj^ speaking, the use of 
 the term "relief," as applied to that aid which the suitor 
 demands, as a conclusion which, he supposes, follows 
 from the facts set forth in his pleading, is no longer 
 proper; and that the term "relief" led to much con- 
 fusion, especially with respect to prayers for provisional 
 remedies; and that while the material portions of the 
 original sections have been preserved intact, the word 
 "judgment" has been substituted in place of "relief," in 
 accordance with the plan followed throughout the act. 
 (See 2 McCarty Civ. Proc. Rep. 91, note). 
 
 The plaintiff may demand any kind of relief (judg- 
 ment) to which he supposes himself entitled, and is not 
 confined to any one kind of relief. (Hall v. Hall, 38 
 How. Pr. 97) . A party should ask that relief (judgment) 
 to which he supposes himself entitled; but by so doing 
 he is not precluded from declining to take any part of 
 such relief, or from demanding, additional relief, war- 
 ranted by the facts. Judgment is given by the court 
 in accordance with the facts, and not the requests of 
 suitors. {Bell v. Merrifield, 109 N. Y. 202). The de- 
 mand for relief is given controlling effect only when 
 there is no answer; then the judgment cannot exceed 
 that which is asked for in the complaint; but if an 
 answer is interposed, the court grants any relief, within 
 the case shown by the complaint and embraced within 
 the issues. {Dusentunj v. Dusenhiirij, 2 McCarty's 
 Civ. Proc. Eep. 91;' Gleaurant v. Maillard, 56 App. Div. 
 11). Where there is no answer, the judgment shall not 
 be more favorable to the plaintiff, than that demanded 
 in the complaint. Where there is an answer, the court 
 may permit the plaintiff to take any judgment, con- 
 sistent with the case made by the complaint, and em- 
 braced within the issue. (Co. Civ. Proc. § 1207). The 
 provisions of the first sentence of this section were in- 
 tended to protect defendants who suffered default. 
 
THE COMPLAINT. 419 
 
 '{Peck V. N. Y. & N. J. Ry. Co., 85 N. Y. 246) . The latter 
 clause seems designed to relieve a plaintiff from any 
 technical objection, that he has not prayed for the 
 precise relief to which on the trial it may seem he is 
 entitled {Mitrtha v. Cnrley, 90 N. Y. 372) ; but the re- 
 lief to be granted must still be consistent with the case 
 made by the complaint. (Bradley v. AhlricJi, 40 N. Y. 
 504). A demurrer is not an answer within the mean- 
 ing of this section. {Kelly v. Doioning, 42 N. Y. 71; 
 Beach v. Cooke, 28 N. Y. 508). In the case of Graham 
 V. Read, (57 N. Y. 681), it was held that where the 
 complaint was based on the validity of a transaction, 
 judgment could not be based on its illegality; and 
 where a complaint is drawn so as to embrace both legal 
 and equitable relief, if only the allegations warranting 
 legal relief are established, plaintiff cannot have equit- 
 able relief. {Stevens v. Mayor, etc., 84 N. Y. 296). 
 But where there is no answer, the plaintiff cannot have 
 any relief, not demanded. {Simonson v. Blake, 12 
 Abb. Pr. 331; 20 How Pr. 484). Thus, where in a fore- 
 closure, the plaintiff in his complaint only prays for 
 a sale, he cannot have a judgment for the payment of 
 any deficiency, in the absence of an answer. (Id.). 
 Where the judgment in such case, gives relief not de- 
 manded, it is not a mere irregularity, but it is abso- 
 lutely unauthorized, and the defendant may move to 
 vacate it; and is not limited to one year in which to 
 make such motion. (Id.). Neither is his sole remedy 
 by motion ; he may resist or attack such an unauthorized 
 judgment or decree in any form he may elect. {Clapp 
 V. McCabe, 155 N. Y. 525). If the defendant answers, 
 the demand of relief becomes immaterial {Marquat 
 V. Marquat, 12 N. Y. 336), and the court is to give such 
 relief as the parties are entitled to, whether demanded 
 in the complaint or not {Jones v. Butler, 20 How. Pr. 
 189) ; provided the relief is consistent with the case 
 made by the complaint, and embraced within the issue 
 {Cowenhoven v. dtp of Brooklyn, 38 Barb. 9), and is 
 limited to such relief as is proper, in reference to the 
 parties before the court. {Smith v. Howard, 20 How. 
 Pr. 151). The relief is limited by the allegations of 
 
420 
 
 PRACTICE. 
 
 fact contained in the pleadings, though the proof may 
 show the plaintiff entitled to a different remedy. {Anon. 
 15 Abb. N. S. 171). There is no objection to uniting 
 in one action, claims both legal and equitable (N. Y. 
 Ice Co. V. N. West Ins. Co., 21 How. Pr. 296 ; S. C, 23 K 
 Y. 357), provided they are not inconsistent with each 
 other. {Linden v. Fi^itz, 9 Leg. Obs. 80; Reubens v. 
 Joel, 13 N. Y. 488). In some cases alternative relief 
 may be prayed. {Linden v. Frits:, supra). A complaint 
 against two joint assignees of a lease in fee, for the 
 whole rent, averring that the plaintiff did not know what 
 their interest was, and asking a joint or several judg- 
 ment as he proved just, was held proper. {Van Rens- 
 selaer V. Layman, 10 How. Pr. 505; 39 How. Pr. 9). In 
 the case of Short v. Barry ( 40 How. Pr. 210 ) where the 
 complaint was held to clearly state an action at law, and 
 the demand was for equitable relief, viz., an accounting, 
 it was held that the demand for an accounting was 
 merely nugatory, as it was not only wholly unsupported 
 by any allegation of the complaint, but was inconsistent 
 with the case made with it, and the referee was in error 
 in proceeding with an accounting in the case; and the 
 judgment on the report of the referee was reversed, and 
 a new trial ordered. Objections to the prayer for relief 
 should be taken by motion. {Durant v. Gardner, 19 
 How. Pr. 94). The complaint must specify the relief 
 demanded, and the demand must not be vague or hypo- 
 thetical. {Durant v. Gardner, 19 How. Pr. 94). A 
 prayer for general relief will not be struck out. {Hem- 
 son V. Decker, 29 How. Pr. 385). But in Durant v. 
 Gardner {supra), it was held that where a demand was 
 for a specified amount, the additional demand for gen- 
 eral relief will be stricken out. But where there is a 
 general demand for relief, it controls as to the amount 
 recoverable; and hence plaintiff may recover the dam- 
 ages therein alleged, although he recovers only upon 
 one of the three counts for the same injury, each of 
 which alleged his damages at a smaller sum. (Schultz v. 
 TJiird Ave. R. R. Co., 89 N. Y. 242). A plaintiff should 
 not be turned out of court, when an answer has been 
 interposed, because he has prayed for too much, or too 
 
THE COMPLAINT. 421 
 
 little, or for wrong relief. [Murtha v. Curley, 90 N. Y. 
 372; Colrick v. Swinhurne, 105 N. Y. 503). Where a 
 party has sworn to the amount of his demand, that fact 
 will not defeat an application for leave to increase such 
 demand, where a good cause is shown for the misstate- 
 ment in the original complaint. {Merchant v. Is^. Y. Life 
 Ins. Co., 2 Co. Eep. 66). The relief demanded in the 
 complaint does not necessarily characterize the action, 
 or limit the plaintiff's remedy. {Rindge v. Baker, 57 
 N. Y. 209). A pleading is not demurrable because the 
 proper form of relief is not demanded (Hemmingway v. 
 Poucher, 98 N. Y. 281; Parker v. Pullman & Co., 36 
 App. Div. 208), provided a valid legal or equitable 
 cause of action is set forth {Wisner v. Consolidated 
 Fruit Jar Co., 25 App. Div. 362), as the demand for re- 
 lief forms no part of the issues in the case {Hall v. Hall, 
 38 How. Pr. 97) ; yet the character and nature of the 
 relief demanded may properly be considered by the 
 <3ourt, when passing upon a demurrer interposed to the 
 complaint upon the ground that it does not state facts 
 sufficient to constitute a cause of action, in determining 
 the nature of the action. ( Swart v. Boiighton, 35 Hun, 
 281). No mere demand for costs, nor the absence of 
 such demand can affect the plaintiff's rights to recover 
 them. It is therefore unnecessary to demand them in 
 any case, although it is customary to do so. 
 
 Sec. 2. Interlocutory and Final Judgment. 
 
 In an action triable by the court, without a jury, the 
 plaintiff may, in a proper case, demand an interlocutory 
 judgment, and also a final judgment, distinguishing 
 them clearly. (Co. Civ. Proc. § 482). Before the 
 amendatory act of 1877, the code (§ 1201) contained 
 the following definition of an interlocutory judgment: 
 "A judgment is interlocutory, where it is a determina- 
 tion of the action, or of an issue presented by the plead- 
 ings; but either leaves to be determined by the final 
 judgment, the extent of the recovery, or other relief, to 
 which the successful party is entitled; or reserves a 
 question which must be determined, before final judg- 
 ment can be awarded." But the section was expunged 
 
422 
 
 PRACTICE. 
 
 from the code, so that there now is no statutory defi- 
 nition of an interlocutory judgment. In Mora v. Sun 
 Mut. Ins. Co. (13 Abb. Pr. 304), it was held that an 
 interlocutory judgment is one that decides, not the case, 
 but only some intervening matter relating to the cause 
 of action ; and it is in aid of the final judgment. ( Cham- 
 herlain v. Dempsey, 36 N. Y. 144). A temporary in- 
 junction order, which frequently operates as a decision 
 of the whole question may be granted in a proper case^ 
 where the complaint contains a demand for it as a part 
 of the relief sought ; and where the complaint shows that 
 the plaintiff is entitled to it (Co Civ. Proc. § 603) ; but 
 it should not be granted unless the complaint contains 
 such a demand, nor even then, where other remedies 
 will suffice. {Burch v. Gavanaugh, 12 Abb. Pr. N. S. 
 410). 
 
 ARTICLE V. 
 
 SERVICE OP THE COMPLAINT. 
 
 SECTION. 
 
 1. When and how to be served. 
 
 2. Consequence of failure to serve. 
 
 Sec. 1. When and How to Be Served. 
 
 If a copy of the complaint is not delivered to a de- 
 fendant, at the time of the delivery of a copy of the 
 summons to him, either within or without the state, his 
 attorney may, at any time within twenty days after the 
 service of the summons is complete, serve upon the 
 plaintiff's attorney a written demand of a copy of the 
 complaint, which must be served within twenty days 
 thereafter. The demand may be incorporated into the 
 notice of appearance. But where the same attorney 
 appears for two or more defendants, only one copy of 
 the complaint need be served upon him; and if, after 
 service of a copy of the complaint upon him, as attorney 
 for a defendant, he appear for another defendant, the 
 last defendant must answer the complaint within twenty 
 days after he appears in the action. (Co. Civ. Proc. § 
 479 ) . The plaintiff may serve his complaint at the same 
 
THE COMPLAINT. 423" 
 
 time that the summons is served. (Co. Civ. Proc. § 419) . 
 It is very common practice to attach the complaint 
 to the summons ; but if the complaint is not served with 
 the summons, the plaintiff may, at any time after the 
 service of the summons, voluntarily serve the complaint. 
 ( Van Pelt v. Boijer, 7 How. Pr. 325 ) . If the defendant's 
 attorney, within twenty days after the service of the 
 summons, demands a copy of the complaint, it must 
 be served within twenty days after such demand, unless 
 there has been a stipulation or order extending the time 
 for such service. {Baker v. Curtiss, 7 How. Pr. 478). 
 Plaintiff may upon an affidavit showing grounds there- 
 for, obtain an order extending the time for serving a 
 copy of the complaint. (Little field v. Murin, 4 How. 
 Pr. 306). When the time to serve any pleading has 
 been extended by stipulation or order for twenty days, 
 no further time shall be granted by order, except upon 
 two days' notice to the adverse party of the application 
 for such order. (General Rule 24). 
 
 Sec. 2. Consequence of Failure to Serve. 
 
 If the plaintiff's attorney fails to serve a copy of the 
 complaint, as prescribed in section four hundred and 
 seventy-nine, the defendant may apply to the court for 
 a dismissal of the complaint. (Co. Civ. Proc. § 480). 
 The code of procedure did not expressly provide any 
 penalty for an omission to serve a copy of the com- 
 plaint when demanded. If the motion to dismiss the 
 complaint is granted, the action will be dismissed. 
 {Baker v. Curtiss, 7 How. Pr. 478). This right is 
 confined to those defendants who are served with sum- 
 mons. One of several defendants, who has not been 
 served with a summons or complaint, cannot volun- 
 tarily appear and move to dismiss the complaint, 
 where his rights are not affected. He must be contented 
 to remain quiet out of court until invited to appear there. 
 {Tracy v. Reynolds, 7 How. Pr. 327). The plaintiff has 
 a right in such cases to serve a complaint upon those 
 who have been served with a summons; and to omit 
 service upon the others; and those served with a com- 
 plaint cannot ask the court to dismiss the complaint, 
 
424 PRACTICE. 
 
 in favor of the other defendants. (Travis v. Tobias, 
 7 How. Pr. 90). If a copy of the complaint is served 
 after the twenty days has expired, and there has been no 
 order or stipulation extending the time for service, it is 
 in fact no service at all and the defendant need not 
 receive it; and he may safely disregard it. He should 
 not retain it, howev,?' . but must promptly return it to 
 the plaintiff, or he will be held to have waived the irreg- 
 ularity in such service. [Baker v. Ciirtiss, 7 How. 
 478 ) . In the case last cited, it was held that the defend- 
 ant was under no obligation to return a complaint, 
 served after a notice of motion to dismiss the complaint 
 had been served upon the plaintiff's attorney. 
 
CHAPTER Xi; 
 
 THE ANSWER. 
 
 AETICLE I. . . .When required. 
 ARTICLE II . . . Form and wliat to contain. 
 ARTICLE III. .Denials. 
 ARTICLE IV. .New matter. 
 ARTICLE V. . .Counter-claim. 
 ARTICLE IV. .Demand for relief. 
 
 ARTICLE I. 
 
 WHEN REQUIRED. 
 
 The only pleading on the part of the defendant is 
 either a demurrer, or an answer. (Co. Civ. Proc. § 
 487) . As a demurrer may be interposed, not only to the 
 complaint, but to the ansAver or reply, it will be con- 
 sidered later. 
 
 Any objection to any of the causes of action, set out 
 in the complaint, which does not appear on the face 
 of the complaint, or which requires proof of extrinsic 
 facts, must be taken by answer. (Co. Civ. Proc. § 498). 
 If one defendant requires affirmative relief as against a 
 co-defendant, he must state the facts, which entitle him 
 to such relief, in the answer. (Co. Civ. Proc. § 521). 
 The defendant may answer one or more of the causes 
 of action in the complaint, and may demur to others. 
 (Co. Civ. Proc. § 492). 
 
426 PKACTICB. 
 
 ARTICLE II. 
 
 FORM AND WHAT TO CONTAIN. 
 
 SECTION. 
 
 1. Form. 
 
 2. What to contain. 
 
 Sec. 1. Form. 
 
 Usually the answer should commence with a caption, 
 showing the court in which the action is brought, and 
 the title of the action. The usual beginning of the 
 answer is "the defendant for his answer to the plaintiff's 
 complaint etc.;" but the answer need not be entitled; 
 although it is necessary that it should refer to the action, 
 so that it will appear in what action, and for what 
 defendant, it is interposed. {Didier v. Warner, 1 Co. 
 Rep. 42) . Nor is it necessary that the answer be couched 
 in any particular language, or form of words. It has 
 even been held that an answer is good, if it is endorsed 
 upon the back of the complaint. {Didier v. Warner, 
 supra). 
 
 See. 2. What to Contain. 
 
 The answer of the defendant must contain : 
 
 1. A general or specific denial of each material allega- 
 tion of the complaint controverted by the defendant, 
 or of any knowledge or information thereof, sufficient 
 to form a belief. 
 
 2. A statement of any new matter constituting a 
 defense or counter-claim, in ordinary and concise lan- 
 guage, without repetition. (Co. Civ. Proc. § 500). It 
 must be borne in mind that a "defense" under this 
 section can consist only of new matter, that is, some- 
 thing outside of the "material allegations of the com- 
 plaint." A general denial puts in issue all that the 
 plaintiff has necessarily pleaded. {i\IcMaiius v. Western 
 Assurance Co., 43 App. Div. 550). Pleading as a "de- 
 fense" something which could be put in issue under 
 the general denial may prejudice a defendant's case. 
 See Reed v. Hayt (51 N. Y. Superior Ct. Rep. 121; aff&. 
 on opinion below, 109 N. Y. 659), and Whitlatch v. 
 
THE ANSWER. 427 
 
 'Fidelity Co. (149 N. Y. 45). It will also be noticed, 
 that the denial authorized by the section, is only of the 
 material allegations of the complaint, which are sought 
 to be controverted; and only such allegations should 
 be put in issue. {King v. Utica Ins. Co., 6 How. Pr. 
 485). Every fact which is averred in the complaint by 
 necessary implication, may be denied, as though it were 
 expressly alleged. {Prindle v. Caruthers, 15 N. Y. 425). 
 Immaterial allegations in the complaint need not be 
 denied {Linton v. U. F. Co., 124 N. Y. 533), and if the 
 issue which is made by the answer is upon an immaterial 
 allegation only, it will be held to be frivolous. {Fair- 
 child V. 0. C. & B. Ry. Co., 15 N. Y. 337). The test of 
 a material allegation is, whether it is necessary for the 
 plaintiff to prove it to establish his cause of action ; and 
 no allegation is material, if the absence of it does not 
 prevent a plaintiff from recovering. {Oechs v. Cook, 
 3 Duer, 161). In an action for libel, it has been held 
 that a denial of the motives of the defendant in pub- 
 lishing a libel, is not material. {Fry v. Bennett, 5 Sand. 
 54). Nor are allegations of time or place material, 
 unless time or place is of the substance of the action. 
 {Livingston v. Hammer, 7 Bosw. 670). Allegations of 
 value, in an action for conversion, or replevin, are 
 immaterial, and should not be denied. {McKenzie v. 
 Farrell, 4 Bosw. 192, 202). Circumstances of aggrava- 
 tion in an action for a tort ( Gilbert v. Rounds, 14 How. 
 Pr. 46), or allegations of damage in an action for un- 
 liquidated damages {HacJcett v. Richards, 3 E. D. 
 Smith, 13, 31), are immaterial allegations, and should 
 not be denied in the answer. The answer should not 
 deny conclusions of law, as that the defendant is in- 
 debted {Emery v. Baltz, 94 N. Y. 408) ; but if the com- 
 plaint alleges no fact, and only that the defendant is 
 indebted to the plaintiff, an answer that he is not in- 
 debted is good. {Anonymous, 2 Co. Rep. 67). Mixed 
 allegations of law and fact may be denied. {Davis v. 
 Eoppock. 6 Duer, 254). The denial should be direct, 
 unequivocal, not evasive, and not by way of negative 
 pregnant. {West v. American Exchange Bank, 44 Barb. 
 175; Baker v. Bailey, 16 Barb. 54; Miller v. Miller, 1 
 
428 PRACTICE. 
 
 Abb. N. 0. 30) . If the plaintiff go to trial on an answer 
 containing a denial in the form of a negative pregnant, 
 without availing himself of the remedy of a motion to 
 make the answer more definite and certain, such an 
 answer is held to put the allegations of the complaint in 
 issue. {Armstrong v. Danahy, 75 Hun, 405). It is 
 not sufficient, that the answer merely implies that the 
 allegation is controverted, or justifies an inference that 
 such is its effect. {West v. Atnerican Exchange Bank, 
 supra). 
 
 AETICLE III. 
 
 DENIALS. 
 
 SECTION. 
 
 1. General denials. 
 
 2. Specific denials. 
 
 3. Denials except as admitted. 
 
 4. What is not a denial. 
 
 5. What may be proved under a general denial. 
 
 Sec. 1. General Denials. 
 
 The general denial, as the term implies, is a denial 
 in gross of all of the allegations of the complaint. ( Den- 
 nison v. Dennisoti, 9 How. Pr. 246). But it has been 
 held that a denial of several, though not of all, the alle- 
 gations in the complaint is a general denial. ( Thompson 
 V. The Erie Railway Co., 45 N. Y. 468) . Denials are not 
 required to be in any particular form, or to be couched 
 in any special phraseology; but they must be expressed 
 in language that conveys to the mind of the pleader, a 
 clear understanding of the facts that are intended to 
 be put in issue. {Clark v. Dillon, 97 N. Y. 370, 373). 
 The usual form of a general denial is, "the defendant 
 denies each and every allegation in the complaint.^' 
 There must be a denial ; an averment that the defendants 
 do not admit, is not sufficient {Boinberger v. Twiner, 
 13 Ohio St. 263 ) ; nor is it sufficient to aver, of the allega- 
 tions of the complaint, that they are not true. ( Versann 
 V. McGregor, 23 Cal. 339). A denial of each and every 
 material allegation of the complaint, is not good on a 
 motion to make definite and certain. {Mattiso'n v. 
 Smith, 1 Robt. 706; Seward v. Miller, 6 How. Pr. 312). 
 
THE ANSWER. 429 
 
 A statement in the answer, that the defendant "says 
 he denies etc." is good. {Jones v. Liidlam, 74 N. Y. 
 61). After much diversity of opinion, it is now settled 
 that a general denial on information and belief is good 
 in form. {Bennett v. Leeds Mfg. Co., 110 N. Y. 150). 
 The code permits the defendant to allege, in regard 
 to the allegations of the complaint, that he has no 
 knowledge or information thereof, sufficient to form a 
 belief, and this is a general denial; but the right to 
 deny in this manner is a statutory right, and the form 
 given by the code, must be followed strictly. {Lloyd 
 V. Burns, 38 Super. 423; affd. without opinion, 62 N. Y. 
 651; Steinhaek v. Diepe?ihrock^^^Ji.Y>]i. Div. 437). An 
 answer denying knowleogo^ufficient to form a belief as 
 to all the allegations contained in plaintiff's complaint 
 is allowable under this section.. {Rosensteil v. Van 
 Cott, 5 App. Div. 128). Several of the earlier cases 
 held that a denial of knowledge or information sufll- 
 cient to form a belief, or a denial upon information 
 and belief, as to matters presumably within the defend- 
 ant's knowledge, was frivolous. {Fallon v. Durant, 60 
 How. Pr. 178; Lewis v. Acker, 11 How. Pr. 163). The 
 trend of the later cases is in the opposite direction; 
 they seem to hold that any form of answer allowed by 
 the code, which presents such an issue as was raised 
 by the general issue at common law, cannot be deemed 
 frivolous. {Sheldon v. Heaton, 78 Hun, 50; Grnenstein 
 V. Jablonsliij, 1 App. Div. 580; Trumbull v. Ashley, 26 
 App. Div. 356; Hill v. Warner, 39 App. Div. 424). It 
 is likewise held by the authorities of more recent date 
 that any such form of answer should not be stricken 
 out as sham, though it be concededly false and no matter 
 how its falsity appears. {Humhle v. McDonoiigh, 5 
 Misc. 508; Howe v. Ehvell, 57 App. Div. 357; Galhif/her 
 V. 31 err ill, 13 App. Div. 182). The general answer of a 
 guardian is substantially a denial of knowledge or in- 
 formation sufficient to form a belief, and raises an issue. 
 {Roosevelt v. Schermerhorn, 32 Misc. 287). 
 
430 PRACTICE. 
 
 Sec. 2. Specific Denials. 
 
 A specific denial is a denial of one of the allegation^ 
 of the complaint, or of each of the allegations of the 
 complaint separately. (Dennison v. Dennison, 9 How. 
 Pr. 246). Such a denial should be made in such terms 
 as will enable the plaintiff to know, by the language 
 made use of, the particular portion of the complaint 
 to which it is intended to be directed. (Miller v. Mc- 
 Closlcy, 1 Civ. Pro. Eep. 252, 259). The practice of 
 denying certain allegations of the complaint by referring 
 to them as certain paragraphs of the complaint has 
 become well nigh universal and is to be commended as a 
 method of simplifying the answer; an answer drawn in 
 this way is sufiicient on a moti6n to make it more definite 
 and certain. {Fairbanks v. Blaut, 24 Civ. Proc. Rep. 
 334 ; S. C. 67 N. Y. St. Rep. 583 ; Hoffman v. Susemihl, 
 15 App. Div. 405). Such reference should not be made 
 to the folios of the complaint, as the folioing is changed 
 in the printed record in case of an appeal [Baylis v. 
 Stunsoii, 110 N. Y. 621), and the appellate court being 
 unable to distinguish the original folios, will consider 
 the whole complaint admitted (Williams v. Lindblom, 
 68 Hun, 173; aflfd. on opinion below, 142 N. Y. 682; 
 Lyth V. Oreen, 21 App. Div. 300). In all cases the 
 answer should disclose clearly and unequivocally the 
 points of the complaint which are denied, and the 
 defendant is responsible for any failure so to express 
 his meaning. There is no obligation on the plaintiff 
 to move to make the answer more definite and certain, 
 and he can take advantage on the trial of any failure 
 to controvert the allegations of the complaint. (Clark 
 V. Z)i?/o;i, 97 N. Y. 370). 
 
 See. 3. Denials Except as Admitted. 
 
 It is not unusual for the answer, after certain allega- 
 tions, to allege that the defendant denies each and every 
 allegation of the complaint, not hereinbefore admitted. 
 Strictly speaking that is neither a general nor a specific 
 denial (^lillville Manufacturing Go. v. Salter, 15 Abb. 
 N. C. 305) ; but in practice it has been allowed, as 
 making the pleading brief and simple. (Parshall v. 
 
THE ANSWER. 431 
 
 Tillou, 13 How. Pr. 7 ; Calhoun v. Hallen, 25 Hun, 155 ; 
 Plttenger v. S. T. Masonic Relief Assn., 15 App. Div. 
 26; Owens v. Hudnut's Pharniacy, 20 Civ. Proc. Rep. 
 145; AlUs V. Leonard, 46 N. Y. 688; 22 Albany Law 
 Jour. 28). It is now settled that an allegation in the 
 answer in this form, is good as a denial of every allega- 
 tion of the complaint, which is not specifically admitted 
 in the answer. (Griffin v. Long Island R. R. Co., 101 
 N. Y. 349). But such a denial must be so plain that 
 there can be no mistake in ascertaining what is put in 
 issue {Haines v. Herrick, 9 Abb. N. C. 379; Barton v. 
 Griffin, 36 App. Div. 572), and the defendant is only 
 permitted to use this form, when the excepted denials 
 are so specific, as to clearly point out the allegations 
 of the complaint to which they were intended to apply. 
 {Tracy v. Baker, 38 Hun, 263, 265). It has been held 
 that an answer, denying each and every material allega- 
 tion, not contrary to, or inconsistent with, allegations 
 in the answer, heretofore admitted, or avoided, ignored, 
 or denied, is too indefinite. {Hammond v. Earle, 5 Abb. 
 N. 0. 105). So, it has been held that a denial of each 
 and every allegation not hereinbefore admitted or 
 avoided, was not a sufficient denial to form an issue. 
 {Miller v. McClosktj, 1 Civ. Proc. Rep. 252). It was 
 held that a denial except as admitted, qualified, or ex- 
 plained, would be deemed frivolous. {Hoffman v. N. Y. 
 Lake Erie & W. R. R. Co., 50 Super. 403). An answer, 
 alleging that it denies each and every allegation in the 
 complaint contained, not hereinbefore specifically ad- 
 mitted or denied, or not hereinbefore specifically ad- 
 mitted or avoided, was held not to be good. {McEncroe 
 V. Decker, 58 How. Pr. 250). If the answer does not 
 contain a general denial, the defendant, and not the 
 plaintiff, must take the labor of sifting out the true 
 allegations in the complaint from the false, and specify- 
 ing what he denies, as distinguished from what he 
 admits, or assume the risk of making admissions by 
 reason of negative pregnant, or averments which are 
 overlooked. 
 
 38 
 
432 PRACTICE. 
 
 Sec. 4. What is not a Denial. 
 
 Allegations of fact, inconsistent with the complaint, 
 but not otherwise denying the allegations of the com- 
 plaint, do not put them in issue. (West v. American 
 Exchange Bank, 44 Barb. 175; Fleischmann v. Stern, 
 90 N. Y. 110). In an action for goods sold, an allega- 
 tion that the defendant has no recollecetion as to the 
 specific sum to which the bill of goods amounted, is 
 not such a denial as is authorized by the code. {Nichols 
 V. Jones, 6 How. Pr. 355). Where the answer admits 
 the genuineness of an instrument, a copy of which is 
 annexed to the complaint, but states that the original 
 is required, it does not amount to a denial of the instru- 
 ment. {Murray v. .A^. Y. Life Ins. Co., S5 N. Y. 236). 
 If the complaint alleges the assignment of the cause 
 of action to the plaintiff, an averment, setting up as 
 new matter, that the plaintiff is not the owner of the 
 cause of action, does not put the assignment in issue, 
 unless the answer contains a general denial. {Fosdick 
 V. Groff; 22 How. Pr. 158). In an action brought by 
 or against a corporation, the plaintiff need not prove, 
 upon the trial, the existence of the corporation, unless 
 the answer is verified, and contains an affirmative allega- 
 tion that the plaintiff", or the defendant, as the case 
 may be, is not a corporation. (Co. Civ. Proc. § 1776). 
 For the purposes of raising an issue as to the incorpora- 
 tion, and continued existence, of a corporation, there- 
 fore, there is no denial of any allegations of a complaint 
 touching such matters, unless there is an "affirmative 
 allegation" that the alleged corporation was not in- 
 corporated, or ceased to exist, etc. {Lamson Cons. Store 
 Service Co. v. Coni/ughain, 11 Misc. 428) ; a simple 
 denial of the allegations of the complaint as to in- 
 corporation raises no issue on that point. {Nicker son 
 V. Canton Marble Co., 35 App. Div. 111). 
 
 See. 5. What may be Proved Under a General Denial. 
 
 Any fact which is necessary to be established by the 
 plaintiff, to authorize a recovery on his part, may be 
 disproved under a general denial. {Weaver v. Barden, 
 49 N. Y. 286; McManus v. Western Ass. Co., 43 App. 
 
THE ANSWER. 433 
 
 Div. 550 ) . But a defense founded on new matter, or one 
 which confesses and avoids the cause of action, cannot be 
 proved unless it is set up in the answer. {McKijrlng 
 V. BkU, 16 N. Y. 297) . It will be seen that the applica- 
 tion of this rule depends largely on the form of the com- 
 plaint. For instance, the general rule is well settled, 
 that the defense of payment is not admissible under a 
 general denial ; and that the title of a third person can- 
 not be shown, in an action for the possession of personal 
 property, under a general denial. {Stoivell v. Otis, 71 
 N. Y. 36 ) . But if non-payment is a necessary part of the 
 plaintiff's case, the defendant may disprove it, although 
 he has not set up payment in the answer {Knapp v. 
 Roche, 94 N. Y. 329) ; or if plaintiff, to entitle him to 
 recover, must show title, the defendant, under a gen- 
 eral denial, may prove that the plaintiff has no title,, 
 and may even prove title in a stranger, although he does 
 not connect himself with that title. (Oriffia v. Long 
 Island li. B. Co., 101 N. Y. 348). In an action for a 
 tort, the defendant under a general denial, may prove 
 any fact, which tends to reduce the actual damages 
 sustained by the plaintiff {Wandell v. Edicards, 25 Hun, 
 498) ; although as will be seen hereafter, he cannot prove 
 anything which goes merely in mitigation of punitive 
 damages, by way of showing the absence of malice. 
 Where the plaintiff sues for a balance of account, the 
 defendant, under a general denial, may show facts 
 which disprove the allegations of the complaint that 
 such a balance was due on a given date; for instance, 
 he may prove the plaintiff's liability as endorser, upon 
 notes given in renewal of notes discounted for the plain- 
 tiff, and placed to his credit. {Goodalc v. Central Nat. 
 Bank, 16 Wk. Dig. 364). In an action to recover a 
 loan made by a check, it was held that the defendant, 
 under a general denial, may show facts tending to dis- 
 prove the allegation of a personal loan by the plaintiff. 
 (Koehler v. Adder, 91 N. Y. 657). So, in an action to 
 recover damages for injuries to the plaintiff's dwelling 
 alleged to have been caused by negligent blasting in 
 excavating on defendant's premises, the plaintiff was 
 properly permitted to give in evidence, under the general 
 
434 
 
 PRACTICE. 
 
 denial, a written contract between himself and another 
 by the terms of which the latter was to make the exca- 
 vation. {Boemer v. Stnjl^er, 142 N. Y. 134). Each 
 case stands on its own facts and form ; the question is in 
 every instance, whether the evidence offered under the 
 general denial tends to overthrow a fact material and 
 essential to the plaintiff's case. 
 
 ARTICLE IV. 
 
 NEW MATTER. 
 Section. 
 
 1. What it is. 
 
 2. Defenses. 
 
 3. Partial defenses. 
 
 Sec. 1. What it is. 
 
 New matter consists of some fact which the plaintiff is 
 not bound to prove, to establish his cause of action, and 
 which goes in avoidance, or discharge of the cause of 
 action alleged in the complaint. {BcII v. Yates, 33 Barb. 
 627; Manning v. Wintei\ 7 Hun, 482). Matter, which 
 merely denies the allegations of the complaint, or states 
 circumstances which disprove them, is not new matter. 
 (Radde v. Ruckgaher, 3 Duer, 684 ) . New matter may be 
 pleaded either for a complete or partial defense to the 
 cause of action, or any cause of action, set up in the 
 complaint, or in mitigation of damages, or by way of 
 counter-claim. Within this definition of new matter 
 are included the statute of limitations (Co. Civ. Proc. 
 § 413; Dezengremel v. Dezengremcl, 24 Hun, 457); 
 adverse possession [Hansee v. Mead, 27 Hun, 162) ; 
 right of way by prescription, or by necessity ( Burleio v. 
 Hunter, 41 App. Div. 148) ; usury (Morford v. Davis. 
 28 N. Y. 481; that the title is in a person other than 
 the plaintiff, or that the plaintiff is not the real party 
 in interest {Smith v. Hall, 67 N. Y. 48) ; in an action 
 on a foreign judgment that the foreign court had not 
 jurisdiction (Rice v. Coutant, 38 App. Div. 542) ; non- 
 joinder of parties, not appearing on the face of the 
 complaint {Reed v. Hai/t, 51 Super. 121 ; affd. on opinion 
 below, 109 N. Y. 659) ; that there is another action 
 
THE ANSWER. 435 
 
 pending for the same cause {Remington v. Walker, 21 
 Hun, 322; modified on another point, 99 N. Y. 626) ; the 
 statute of frauds when the fact that the contract is 
 "within the statute does not appear on the face of the 
 complaint {Matthews v. Matthens, 154 N. Y. 288; Crane 
 V. Powell, 139 N. Y. 379; Myers v. Dorman, 34 Hun, 
 115) ; that the contract sued on is invalid for fraud 
 {Dubois V. Hennance, 56 N. Y. 673, 674); or duress; 
 or because of the coverture or infancy of the defendant 
 {Westervelt v. Acldey, 62 N. Y. 505) ; or as against 
 public policy, where the facts showing the illegality do 
 not appear in the complaint or in plaintiff's proof {Mil- 
 hank v. Jones, 127 N. Y. 370) ; of course the court is 
 bound to refuse its aid in an attempt to enforce a con- 
 tract against public policy, and, where it appears on 
 the face of the record that the contract is of that char- 
 acter, the plaintiff will not be allowed a recovery {Baird 
 V. Sheehaii, 38 App. Div. 7 ; Dunham v. Hastings Pave- 
 ment Co., 56 App. Div. 244). So the defendant must 
 set up as new matter, any defense which, admitting or 
 not denying the contract, alleges the discharge of the 
 defendant {Cornell v. Dakin, 38 N. Y. 253) ; or payment 
 of the debt {McKyring v. Bull, 16 N. Y. 297; Seward v. 
 Torrence, 3 Hun, 220) ; or tender {Becker v. Boon, 61 
 N. Y. 317) ; or a release {Horton v. Horton, 83 Hun, 
 213) ; or accord and satisfaction {Ghapin v. Pratt, 49 
 N. Y. St. Rep. 42), but a judgment for a defendant will 
 not be reversed for the admission of testimony to estab- 
 lish an accord and satisfaction, under the general 
 denial, if no objection was made upon the trial. {Niggli 
 V. Foehry, 83 Hun, 269) ; or, in an action for wrongs, 
 anything which justifies the act of the defendant, either 
 by showing that he acted by authority ( Graham v. Har- 
 roiver, 18 How. Pri 144) ; or with license {Clifford v. 
 Dam, 81 N. Y. 52) ; of in self-defense; or a justification 
 in slander. The grounds of demurrer specified in sec- 
 tion 488 of the code of civil procedure (with the excep- 
 tion of the objection to the jurisdiction and the objec- 
 tion that the complaint does not state facts sufficient 
 to constitute a cause of action) where the objections do 
 not appear upon the face of the complaint, must be taken 
 
436 PRACTICE. 
 
 by setting up the neAv matter showing such defenses in 
 the answer. (Co. Civ. Proc. §§ 498, 499; Tucker v. 
 Manhattan R. Co., 78 Hun, 439 ) . So the defense in an 
 equity suit that the plaintiffs have an adequate remedy 
 at law must be set up by answer. {Tripp v. Hunt, 45 
 App. Div. 100; Lough v. Outerhridge, 143 N. Y. 271, 
 277). 
 
 Sec. 2. Defenses. 
 
 Defendant may interpose as many defenses as he has 
 (Co. Civ. Proc. § 507), and they all constitute but one 
 answer. {Gardner v. Clark, 21 N. Y. 399). While, 
 strictly speaking, a "defense" is only new matter — ■ 
 something outside of the material allegations of the 
 complaint which are put in issue by a general denial — in 
 common parlance the word is used as meaning any line 
 of opposition to the plaintiff's recovery, whether it be 
 a general denial or by setting up new matter, in confes- 
 sion and avoidance for example. In this section, there- 
 fore, the word is used in its loose sense. Each defense 
 should be complete in itself, and should be separately 
 stated and numbered. As to the formal rules for the 
 statement of defenses, see chapter IX, article II. No 
 formal commencement is required, to mark each separ- 
 ate defense. {Bridge v. Payson, 5 Sand. 210). The 
 defendant may put his defense upon distinct, and even 
 inconsistent grounds {Goodwin v. Wertheimer, 99 N. Y. 
 149) ; but the court may require him to elect which he 
 will rely upon. {Breunich v. Weselman, 100 N. Y. 609, 
 610). This, however, will only be done, where from the 
 very nature of the case, it is impossible that the defend- 
 ant should have two such defenses. {Holleiiheck v. 
 Clow, 9 How. Pr. 289; Conklin v. Woodburg Insti- 
 tute, 37 App. Div. 610). The following defenses may 
 be pleaded together, and the defendant will not be re- 
 quired to elect between them; the statute of limita- 
 tions, and a general denial {Ostrom v. Bixhy, 9 How. 
 Pr. 57) ; a plea in abatement, and in bar {Btveet v. 
 Tattle, 14 N. Y. 465) ; a general denial, and infancy 
 {Mott V. Bnrnett, 2 E. D. Smith 50) ; a general denial, 
 and a release {Kellogg v. Baker, 15 Abb. Pr. 286) ; in 
 
THi; ANSWER. 437 
 
 an action for an assault, a general denial, son assault 
 demesne, and violUter manus imposiiit (Laiisingh v. 
 ParJcer, 9 How. Pr. 288) ; and in an action for false 
 representation, a general denial, and that the representa- 
 tions were true. {Otis v. Ross, 8 How. Pr. 193). In 
 an action for slander, the defendant may prove miti- 
 gating circumstances, notwithstanding he has pleaded, 
 or attempted to prove a justification. ( Co. Civ. Proc. § 
 535) . In an action for libel a general denial and a plea 
 of justification may be united. {K'mgsley v. Kiiigsley, 
 79 Hun, 569; Buliler v. Wentioortli, 17 Barb. 649). In 
 an action of replevin, he may set up a denial of the 
 taking, and a justification of it {Hacldey v. Ogmitn, 10 
 How. Pr. 44) ; and he may also unite a denial of any 
 knowledge or information sufficient to form a belief as 
 to plaintiff's title, with a claim of lien on the property. 
 (Toicnsend v. Piatt, 3 Abb. Pr. 325). But an answer 
 that the defendant is civilly dead, is held to be incon- 
 sistent with the fact of answering; and is bad on de- 
 murrer. {Freeman v. Frank, 10 Abb. Pr. 370). A car- 
 rier by "water cannot deny tliat he was the owner 
 of the vessel, and allege that the property shipped was 
 delivered to the plaintiff. {Arnold v. Dimon, 4 Sand. 
 680). A denial of the contract, and an allegation of 
 non-performance by the plaintiff, are inconsistent. 
 {Letcis V. Acker, 11 How^ Pr. 163). So a general denial, 
 and a plea of tender, have been held inconsistent. {Liv- 
 ingston V. Harrison, 2 E. D. Smith 197). But a denial 
 of the full amount claimed, an admission of a less 
 amount, and tender of that, constitute but one defense. 
 {Spencer v. Tooker, 12 Abb. Pr. 353). The defendant 
 may set up any defense, existing at the time of the an- 
 swer, although it arose after the commencement of the 
 action. {WUVis v.GMpp, 9 How. Pr. 568; Benditt v. 
 Annesleij, 42 Barb. 192). A dilatory defense cannot be 
 pleaded unless it is verified. (Co. Civ. Proc. § 515). 
 
 Sec. 3. Partial Defenses. 
 
 A partial defense may be set forth, as prescribed in 
 section five hundred and seven of the code of civil pro- 
 cedure, but it must be expressly stated to be a partial 
 
438 
 
 PRACTICE. 
 
 defense to' the entire complaint, or to one or more sep- 
 arate causes of action, therein set forth. Upon a de- 
 murrer thereto, the question is, whether it is suflOicient 
 for that purpose. Matter tending only to mitigate or 
 reduce damages, in an action to recover damages for 
 the breach of a promise to marry, or for a personal in- 
 jury, or an injury to property, is a partial defense, 
 within the meaning of this section. (Co. Civ. Proc. § 
 508). In an action to recover damages for the breach 
 of a promise to marry, or for a personal injury, or an 
 injury to property, the defendant may prove, at the 
 trial, facts not amounting to a total defense, tending to 
 mitigate or otherwise reduce the plaintiff's damages, if 
 they are set forth in the answer, either with or without 
 one or more defenses to the entire cause of action. (Co. 
 Civ. Proc. § 536). Anything which goes to a partial 
 extinction of the plaintiff's claim, is a partial defense. 
 (Bush V. Prosser, 11 N. Y. 347, 352, 353). A pleader 
 is not required to use the words "partial defense," how- 
 ever, where the answer sets up a defense that clearly 
 appears on its face to be such. {Hotod v. Cole, 74 Hun,. 
 121). Section five hundred and thirty-six, above cited,, 
 only requires the defendant to plead facts in mitigation 
 of damages, Avhen such facts tend to disprove malice, 
 and so diminish or reduce the punitive or exemplary 
 damages which plaintiff might otherwise recover. He 
 may still prove, under a general denial, anything which 
 reduces the actual damages. (Wandell v. Edwards, 25 
 Hun, 498). Where the defendant is in default for want 
 of an answer, facts in mitigation of damages, may be 
 proven upon a reference, or writ of inquiry, to ascer- 
 tain the damages. (Co. Civ. Proc. § 536). And any 
 facts may be proved which tend to reduce the actual 
 damages, suffered by the plaintiff. {Hays v. Berryman, 
 6 Bosw. 679). Matters, pleaded in mitigation of dam- 
 ages, must be stated to be pleaded for that purpose, or 
 the plaintiff may assume that they are pleaded as a 
 defense, and may demur to them {Fr]i v. Bennett, 5 
 Sand. 54) ; or he may move to have them stricken out 
 on motion (Yan Benschoten v. Yaple, 13 How. Pr. 97) ; 
 or he may move to state separately what is stated in 
 
THE ANSWER. 439' 
 
 mitigation, and what in justification. {Fink v. Justh, 
 14 Abb. Pr. N. S. 107). In pleading such matters, how- 
 ever, it is sufficient to say that he will rely, to mitigate 
 damages, upon the evidence adduced in proof of the 
 other defenses (Fink v. Justh, supra) ; or if justification 
 is alleged,' mitigation may be pleaded, by a statement 
 that the defendant will on the trial, rely in mitigation, 
 on facts set up as a justification. {Howard v. Ray- 
 mond, 11 Abb. Pr. 155). He may plead in mitigation 
 the same matter, which he has alleged as a justification. 
 {Bennett v. Mattlieus, 64 Barb. 410) . A defendant may 
 count upon the same facts both as a complete and par- 
 tial defense. {Zacharias v. French, 10 Misc. 202). 
 
 ARTICLE V. 
 
 COUNTER-CLAIM. 
 
 SECTIOIT. 
 
 1. What it is. 
 
 2. Rules for the allowance of a counter-claim, 
 
 3. When it should be pleaded. 
 
 Sec. 1. What it is. 
 
 The counter-claim, specified in section five hundred 
 of the code of civil procedure, must tend, in some way, 
 to diminish or defeat the plaintiff's recovery, and must 
 be one of the following causes of action against the 
 plaintiff, or, in a proper case, against the person whom 
 he represents, and in favor of the defenda'V.. or of one 
 or more defendants, between whom and the plaintiff a 
 separate judgment may be had in the action : 
 
 1. A cause of action arising out of the contract op 
 transaction, set forth in the complaint, as the founda- 
 tion of the plaintiff's claim, or connected with the sub- 
 ject of the action. 
 
 2. In an action on contract, any other cause of action 
 on contract, existing at the commencement of the action. 
 (Co. Civ. Proc. § 501). 
 
 The term counter-claim, as used in the code of civil 
 procedure, is more comprehensive than either recoup- 
 ment or set-off, but it includes both. {Vassar v. Liv- 
 
440 
 
 PRACTICE. 
 
 ingston, 13 N. Y. 248, 257; Clinton v. Eddij, 1 Lans. 61). 
 A set-off is a money demand, by the defendant against 
 the plaintiff, and refers to a debt or demand indepen- 
 dent of, and unconnected Avith, the plaintiff's cause of 
 action ; it may exceed the plaintiff's claim, or fall short 
 of it; recoupment, however, always implies that the 
 plaintiff had a cause of action. The doctrine of recoup- 
 ment was, before the code, confined to damages for non- 
 performance of the very contract sued upon, and a bal- 
 ance could not be certified in favor of the defendant. 
 {Boston Silk & Woolen Mills v. Eiill. 1 Swe. 359, 363). 
 The counter-claim may be of a legal or equitable nature. 
 (fficlcsrille d C. R. R. Co. v. Loncj Island R. R. Co., 48 
 Barb. 355; Gnrrie v. Citrrie, 6 Bosw. 452). It secures to 
 the defendant the full relief, which a separate action at 
 law, or a bill in chancery, or a cross-bill would have se- 
 cured him, on the same state of facts. ( Gleason v. Moen, 
 2 Duer, 642; Learcnwortli v. Packer, 52 Barb. 132, 137). 
 The words "must tend to diminish or defeat, in some 
 way the plaintiff's recovery" were inserted in the code 
 of civil procedure for the purpose of excluding certain 
 causes of action, having no connection whatever with 
 that set forth in the complaint, and which could not in 
 any way affect the judgment upon the latter, although 
 the literal reading of the statute would allow them to 
 be interposed; as for instance, where in an action to 
 foreclose a mortgage, the defendant set up as a counter- 
 claim a demand on his part, for the foreclosure of a 
 mortgage on a different piece of property. (Throop's 
 Code, § 501, note). The defendant cannot set up a 
 counter-claim which is totally inconsistent with the 
 cause of action set forth in the complaint, and which 
 can only exist if the plaintiff have no cause of action 
 at all. {Citji of Sr-heneetadi/ v. Fiirman, 61 Hun, 171; 
 appeal dismissed, 133 N. Y. 696). Facts pleaded which 
 controvert the plaintiff's claim and serve merely to de- 
 feat it as a cause of action are inconsistent with the 
 legal idea of a counter-claim, which is a separate and 
 distinct cause of action, balancing in whole or in part 
 that proved by the plaintiff. (Walkei- v. A. C. Ins. Co., 
 143 N. Y. 167, 169). In the case last cited it was held 
 
THE ANSWER. 441 
 
 that the reformation of the fire insurance policy sued 
 on could not be accomplished by means of a counter- 
 claim alleging that the policy was issued by mistake; 
 this was only a defense. In an action for dower, an 
 answer setting up that the plaintiff had guaranteed the 
 payment of a mortgage on the lands, and that the de- 
 fendant owned the mortgage, and it was due, was held 
 to set up a proper coxmter-claim, because it tended to 
 diminish the plaintiff's recovery. {O'Douglierty v. 
 Remincjton Paper Co., 1 N. Y. State Hep. 524). In an 
 action to restrain the diversion of water from the plain- 
 tiff's mill, an answer setting up that the water claimed 
 by plaintiff did not belong to him, but was wrongfully 
 <iiverted by plaintiff from defendant, and asking that the 
 plaintiff be restrained from such diversion, is a good 
 counter-claim, as tending to diminish or defeat the 
 plaintiff's recovery; but an answer that the plaintiff 
 wrongfully stores logs in the bed of the stream, which 
 obstruct the flow of water to defendant's mill, and ask- 
 ing an injunction to restrain such storing, is not good, 
 because it does not affect the plaintiff's right to re- 
 cover. {Orange v. Gilbert, 44 Hun, 9; S. 0., 6 N. Y. St. 
 Eep. 423). A counter-claim must always contain a 
 cause of action {Vassar v. Livingston, 13 N. Y. 248), 
 npon which the defendant could sue the plaintiff, and 
 which he holds and possesses against the plaintiff, at 
 the place where the action is commenced. A defendant 
 cannot avail himself of a counter-claim, which the 
 court, before which the action is pending, has no juris- 
 diction to try and determine. A counter-claim must be 
 a complete caiise of action, existing in favor of the de- 
 fendant where he asserts it; otherwise, he has no coun- 
 ter-claim there. (Cragin v. Lovell. 88 N. Y. 258). In 
 an action on contract the defendant cannot recover on 
 a counter-claim for a cause of action on a separate 
 contract, which is barred by the statute of limitations 
 (De LavaUette v. Wendt, 75 N. Y. 579) ; but where the 
 counter-claim is for a breach by the plaintiff of some 
 part of the very contract sued on, the defendant may 
 successfully set it up, even though more than the 
 statutory period has elapsed between the time when 
 
442 
 
 PRACTICE. 
 
 his right accrued and the time when his answer was 
 served. {'Herhert v. Day, 33 Hun, 461). In an action 
 of ejectment, an answer setting up that the defendant 
 had paid taxes, and put permanent improvements and 
 repairs upon the premises, the amount of which he 
 sought to set off in extinguishment or reduction of the 
 plaintiff's claim for damages, was held not to consti- 
 tute a counter-claim. [Pier son v. Saford, 30 Hun, 
 521). Nor, in an action of ejectment for lands devised 
 to the plaintiff, can the defendant counter-claim for a 
 legacy given to him by the will and made chargeable 
 upon the testator's real estate. {Diiian v. Coneys, 143 
 N. Y. 544 ) . The counter-claim must be against all the 
 plaintiffs in the action. (Goodtoin v. Conklin, 6 Wk. 
 Dig. 131; modified as to another point, 85 N. Y. 21). 
 But where one is sued by an alleged partnership, he 
 may counter-claim against one of the plaintiffs whom 
 he claims to be the sole person interested, and may pro- 
 duce evidence to show that such is the fact and that, 
 therefore, his counter-claim is a proper one. {Rosen- 
 herg v. Block, 102 N. Y. 255). If others than the plain- 
 tiff are liable to the defendant upon it, it is not avail- 
 able {Mynderse v. Snook, 1 Lans. 488; Spofford v. 
 Eoican, 124 N. Y. 108), unless the plaintiff might have 
 been sued separately. {More v. Rand, 60 N. Y. 208). It 
 must belong to the defendant ; if owned by him and an- 
 other person, who is not a party to the action, he cannot 
 set it up. {Hopkins v. Lane, 87 N. Y. 501). If there is 
 more than one defendant in the action, it must belong 
 to all the defendants jointly, unless the action is one in 
 which a separate judgment might be rendered against 
 any defendant; in which case, that defendant may in- 
 terpose any counter-claim that he has. {Bockover v. 
 Harris, 43 Super. 548). Any defendant may set up a 
 counter-claim, if a separate judgment may be rendered 
 against him, although a joint judgment would also be 
 proper. (Bathgate v. Haskln, 59 N. Y. 533) . If a prin- 
 cipal and surety are sued together, a successful recoup- 
 ment by the principal will avail to the benefit of the 
 surety {Springer v. Dwyer, 50 N. Y. 19), although the 
 surety cannot set up as a counter-claim, an independent 
 
THE ANSWER. 443 
 
 cause of action belonging to the principal. {Lasher v, 
 Williamson, 55 N. Y. 619). The counter-claim must 
 belong to the defendant, at the commencement of the 
 action. (Chambers v. Leivis, 11 Abb. Pr. 210; affd. 28 
 N. Y. 454 ; Rice v. O'Conner, 10 Abb. Pr. 362 ; Van Valen 
 V. Lapham, 13 How. Pr. 240, 247; affirmed 5 Duer, 689). 
 That portion of the revised statutes which regulated the 
 subject of set-off, has been repealed by the code of civil 
 procedure. One provision of that statute was, that the 
 set-off must have existed at the time of the commence- 
 ment of the suit, and must then have belonged to the de- 
 fendant. The code of civil procedure contains no pre- 
 cise equivalent of this requirement, and it has been sug- 
 gested that, since the repeal of the revised statutes, it 
 is not necessary that the counter-claim must belong to 
 the defendant at the commencement of the action. The 
 cases above cited, however, were decided upon the pro- 
 visions of the code of procedure, which were substan- 
 tially like those of the code of civil procedure, and did 
 not refer at all to the revised statutes, and, for that 
 reason, it is supposed that the law is still as stated in 
 those cases. It being necessary that the defendant 
 should allege and prove that the counter-claim existed 
 at the time the action was begun, the plaintiff is en- 
 titled to show, under a general denial in his reply, its 
 non-existence at that time. {John Church Co. v. Clarice, 
 11 Hun, 467; S. C. 28 N. Y. Supp. 870). The word trans- 
 action, used in the first subdivision of section five hun- 
 dred and one, does not embrace a pure tort, as assault 
 and battery, or slander. {Barhyte v. Hughes, 33 Barb. 
 320; Fellerman v. Dolan, 1 Abb. Pr. 395, note; Sheehan 
 V. Pierce, 70 Hun, 22). It is broader and more com- 
 prehensive than the word contract, and it embraces 
 something different from that, and' is to be taken in its 
 ordinary and popular sense. It must, therefore, be 
 something, that combination of acts and events, cir- 
 cumstances and defaults, which viewed in one aspect, 
 results in the plaintiff's right of action, and viewed in 
 another aspect, results in the defendant's right of ac- 
 tion ; as these two opposing rights cannot be exactly the 
 same, it follows that there may be, and generally must 
 
444 PRACTICE. 
 
 be, acts, facts, events, and defaults in the transaction 
 as a whole, which do not enter into each cause of action, 
 but are confined to one of them alone. {Pomeroy on 
 Remedies, § 774; Xenia Branch Bank v. Lee, 7 Abb. Pr. 
 372, 389, 390). It is not confined to the legal formula 
 of the action, but it is what the transaction comes to 
 when reduced to the concrete charge. {Empire Feed 
 Co. V. Chatham Nat'l Blc, 30 App. Div. 476, 480). So 
 it was held in Xenia Branch Bank v. Lee (supra), that 
 the first subdivision of the corresponding section of the 
 code of procedure applied to the three following classes 
 of cases: 
 
 1. Actions in which a contract is stated as the founda- 
 tion of the plaintiff's claim. 
 
 2. Actions in which some transaction, not being a 
 contract, is set forth as the foundation of the plaintiff's 
 claim. 
 
 3. In actions in which either a contract, or a trans- 
 action which is not a contract, is set forth as the founda- 
 tion of the plaintiff's claim, counter-claims which neither 
 arise out of the same contract, nor out of the same trans- 
 action, but are connected with the subject of the action. 
 (Id. pp. 390, 391). In the case last cited, it was held 
 that in an action in the nature of trover, by plaintiff 
 who has indorsed notes or bills of exchange, brought to 
 recover the value thereof from a defendant, in whose 
 possession they are, and who claims title thereto, through 
 the plaintiff's indorsement, it was competent for the 
 defendant to set up title in himself, demand of payment, 
 protest and notice, and to ask by way of counter-claim, 
 a judgment against the plaintiff as indorser. Such a 
 claim was held to be a proper subject of counter-claim 
 in such an action, both as arising out of the contract 
 which formed the foundation of the plaintiff's claim; 
 as arising ovit of the same transaction, as his cause of 
 action; and as immediately connected with the subject 
 of the action. To the same effect, see Empire Feed Co. 
 V. Chatham Nat'l Bk. (30 App. Div. 476). It is well 
 settled, therefore, that in an action to recover damages 
 for a tort, a counter-claim arising out of a contract 
 connected with the subject of the action may be pleaded. 
 
THE ANSWER. 445 
 
 and that in an action on a contract, damages arising 
 out of a tort of the plaintiff may be interposed as a 
 counter-claim if the two causes of action are connected. 
 {Cooper V. Kipp, 52 App. Div. 250; Savage v. City of 
 Buffalo, 50 App. Div. 136). The diflaculty is to deter- 
 mine what is "connected with the subject of the ac- 
 tion," and on that point a diversity of judicial opinion 
 may be found. Each case must be determined on its own 
 facts. In an action for the conversion of money which 
 the defendant was' alleged to have received as the agent 
 of the plaintiffs under a contract of employment and 
 never paid over, the defendant was allowed to set up, 
 as counter-claims, causes of action for his commissions 
 under the contract, for the breach of that contract in 
 other respects, and for a conspiracy between the plain- 
 tiff and others whereby the plaintiff was deprived of his 
 exclusive agency under the contract. {Ter Kuile v. 
 Marsland, 81 Hun, 420) . So in an action on a bond, the 
 defendant may interpose, as a counter-claim, a cause of 
 action for damages by reason of false and fraudulent 
 representations out of which the bond arose. ( Thomson 
 V. Sanders, 118 N. Y. 252). In another case, it was held 
 that in an action for the conversion of certain property, 
 an allegation in the answer, that the property was mort- 
 gaged by the plaintiffs to the defendant ; that a default 
 was made in the performance of the condition of the 
 mortgage ; that the defendant took possession of so much 
 of said property as he could find ; that the plaintiffs had 
 before the taking secreted and removed a part thereof, 
 which could not be found ; that it was subsequently dis- 
 covered ; that the plaintiff had no title to a part of the 
 property taken by the defendant, and which was in- 
 cluded in the mortgage; that the same was replevied 
 and taken from the possession of the defendants by the 
 true owners thereof; whereby the defendant sustained 
 loss to the amount of three hundred and fifty dollars; 
 for which amount he demanded judgment against the 
 plaintiff, did not constitute a counter-claim within sub- 
 division one. {Chamboret v. Cagney, 2 Swe. 378). In 
 an action to recover installments of rent under a lease, 
 the defendant cannot set up as a counter-claim a claim 
 
446 PRACTICE. 
 
 for damages resulting from his eviction alleged to have 
 been caused by the creation of a nuisance by the plain- 
 tiff's neglect to keep the premises in a proper state of 
 repair, in the absence of an allegation of a covenant for 
 quiet enjoyment; the cause of action attempted to be 
 set up is one in tort and did not arise out of the con- 
 tract or transaction set forth in the complaint, i. e., the 
 lease, nor is it connected with the subject of the action, 
 the rent reserved. {Romaine v. Brewster^ 10 Misc. 120) . 
 Upon proper allegations, however, it seems clear that a 
 tenant can counter-claim for an eviction in an action 
 for rent. {Ludlow v. McCarthy, 5 App. Div. 517) ; or for 
 damages for breach of the covenant to repair. {T. H. 
 E. Co. V. D. L. /. Co., 144 N. Y. 34, 44). In an action 
 to recover for personal property, delivered to the de- 
 fendant under contract, he was permitted to set up as a 
 counter-claim, a lien in his favor by virtue of the same 
 contract. {Brown v. BucJdngham, 11 Abb. Pr. 387). 
 In an action to recover for services, rendered as attor- 
 ney for the defendant's intestate, it was held that the 
 defendant may set up as a counter-claim, that the plain- 
 tiff under his employment, became possessed of personal 
 property, which after the death of the intestate, he 
 transferred in fraud of the estate {Lerclie v. Brasher, 
 37 Hun, 385; reversed on another ground, 104 N. Y. 
 157). The two cases last cited) were put upon the 
 ground, that the counter-claim set up in the answer, 
 was a part of the same transaction set forth in the com- 
 plaint, as the plaintiff's cause of action. In an action, 
 therefore, brought against an attorney to recover dam- 
 ages for the conversion of money collected by him as 
 attorney it was held that the defendant could not coun- 
 ter-claim for professional services not alleged to have 
 been rendered in the same action in which the money 
 in suit was collected. {Rochester Distilling Go. v. 
 O'Brien, 72 Hun, 462). The term "subject of the ac- 
 tion," used in the same subdivision, has been held to 
 mean, either the property which is sought to be recov- 
 ered, or in regard to which damages are asked, or the 
 right which has been violated. {Glenn d Hall Manfg. 
 Go. V. Hall, 61 N. Y. 226). Mr. Pomeroy defines it, as 
 
THE ANSWER. 447 
 
 denoting the plaintiff's principal primary right, to en- 
 force or maintain which the action is brought. {Pom- 
 eroy on Remedies, § 775). In an action to set aside a 
 deed of real property and a contract to reconvey, on 
 the ground that the two were in fact a mortgage, and 
 were usurious, and for an accounting by the defendant 
 for rents and profits; a claim for rents alleged to be 
 due to the defendant from plaintiff, for use of a part 
 of the same property, was held to be a proper counter- 
 claim, under subdivision one. (Barnes v. Gilmore, 6 
 Civ. Proc. Eep. 286). In an action to restrain the un- 
 authorized use by the defendant, of a name claimed to 
 be a trade-mark, the defendant was permitted to set 
 up as a counter-claim, that he was the owner, and that 
 the plaintiff had unlawfully used the name, and a prayer 
 for judgment that the plaintiff be restrained from using 
 it. Such a counter-claim was held to be connected with 
 the subject of the action, under this subdivision. ( Glenn 
 d Hall Manfg. Co. v. Hall, supra). In an action for the 
 conversion of wood, the defendant set up that he held 
 a bond and mortgage on lands, which was an insuffi- 
 cient security; that the obligor was insolvent; that the 
 plaintiff was the second mortgagee in possession of the 
 land; and that, wath intent to defraud the defendant, 
 he cut the wood in suit, on said land, thereby wast- 
 ing it; and that on foreclosure of the defendant's mort- 
 gage, there was a large deficiency ; this was held to be a 
 good counter-claim, under subdivision one of section 
 five hundred and one of the code of civil procedure, as 
 connected wdth the subject of action. {Carpenter v. 
 'Manhattan Life Ins. Co., 93 N. Y. 552) . So, a defendant 
 who is sued for the price of certain commodities can set 
 up a counter-claim for overcharges in such sales, caused 
 by a conspiracy between the plaintiffs and plaintiffs' 
 assignors ; the defendant has the right to waive the tort 
 and rely upon the implied contract to repay the amount 
 of the overcharges. {Siebrecht v. Siegel-Cooper Co., 
 38 App. Div. 549). The defendant must clearly show 
 in his answer, however, that he has w^aived the tort and 
 is suing on the implied contract. {Slade v. Montgomery, 
 
 39 
 
448 
 
 PRACTICE. 
 
 53 App. Div. 343). A defendant sued for malicious 
 prosecution cannot set up as a counter-claim a cause 
 of action for damages for deceit by the plaintiff in ob- 
 taining goods on credit, which alleged deceit constituted 
 one of the causes of action for which the arrest com- 
 plained of was made. {Rothschild v. Whitman, 132 N. 
 Y. 472). A counter-claim under subdivision two of this 
 section, may be upon a contract, either express or im- 
 plied {Andreivs v. The Artisans Bank, 26 N. Y. 298), 
 and for liquidated or unliquidated damages. {8hiil)art 
 V, Harteau, 34 Barb. 447; Lignot v. Redding, 4 E. D. 
 Smith, 285 ) . In an action for goods sold, the defendant 
 may set up, under this section, as a counter-claim, 
 damages sustained by him for breach of warranty of 
 the goods. {Norton v. Dreyfuss, 51 Super. 491; 106 
 N. Y. 90 ; Nash v. Weidenfeld, 41 App. Div. 511 ; affd. 
 without op., 166 N.. Y. 612). In an action to foreclose 
 a mortgage, where a judgment for deficiency was asked 
 against an obligor on the bond, he may set up as a 
 counter-claim, a cause of action on a contract, which he 
 had against the plaintiff when the action was begun. 
 (Hunt V. Chapman, 51 N. Y. 555). In an action on con- 
 tract, defendant may counter-claim a judgment against 
 the plaintiff, recovered in an action for a tort. ( Taylor 
 V. Root, 4 Keyes, 335). In an action for a penalty, no 
 counter-claim can be set up. {Nash v. White's Bank of 
 Buffalo, 13 Wk. Dig. 141; Denniston v. Trimmer, 27 
 Hun, 393). In an action upon a note, a cause of action 
 to recover twice the amount of illegal interest taken 
 upon it, cannot be set up as a counter-claim. {National 
 Bank of Auhurn v. Letvis, 81 N. Y. 15) . When an agent 
 has converted the property of the principal in his hands, 
 the principal may, in an action on contract, brought 
 against him by the agent, waive the tort,- and claim, as 
 upon a contract, for the value of the property. {Coit v. 
 Steioart, 50 N. Y. 17 ) . In an action by one bank against 
 another, for a balance of a deposit due the plaintiff, the 
 defendant may set up as a counter-claim, a demand for 
 money fraudulently obtained from it, by a conspiracy 
 between the plaintiff and another, who is not a party; 
 he is permitted to waive the tort and proceed upon an 
 
THK AXSAVER. 449 
 
 implied contract to repay; aud that contract is held to 
 be joint and several, like the tort. {Clti/ Natlomil Bank 
 V. National Parle Bank, 32 Hun, 105). If the cause of 
 action sought to be set up as a counter-claim is not 
 properly available as such, the plaintiff does not waive 
 his right to take the objection at the trial by replying or 
 failing to demur. (Dinan v. Coneys, 143 N. Y. 544). 
 The question of its propriety may be raised, however, on 
 a demurrer thereto, which specified the objection "that 
 said counter-claim is not of the character specified in 
 section five hundred and one of the code of civil pro- 
 cedure" {Eckert v. Gallicn, 40 App. Div. 525), or that 
 "it is insufficient in law." (Co. Civ. Proc. § 494; New- 
 ton V. Le,e, 139 N. Y. 332) . 'l 
 
 Sec. 2. Rules for the Allowance of Counter-claims. 
 
 Subdivision 1. — Against Assignees op Contracts. * 
 
 } 
 
 If the action is founded upon a contract, which has 
 been assigned by the party thereto, other than a negoti- 
 able promissory note or bill of exchange, a demand, 
 existing against the party thereto, or an assignee of the 
 contract, at the time of the assignment thereof, and be- 
 longing to the defendant, in good faith, before notice of 
 the assignment, must be allowed as a counter-claim, 
 to the amount of the plaintiff's demand, if it might have 
 been so allowed against the party, or the assignee, while 
 the contract belonged to him. (Co. Civ. Proc. § 502, 
 subd. 1). Both debts must have been due and payable 
 at the same time, and before the change in ownership 
 of either. It is the condition or state of the demands 
 at the time, which is to be looked at, and not any special 
 rule or regulation touching the situation of the debtor 
 or creditor, which prevents him from then bringing suit 
 upon the demand, or requires something as a prerequi- 
 site ; it is not therefore, necessary that the action could 
 have been maintained at the time upon the debts. ( Taif- 
 lor V. Mayor, etc., 82 N. Y. 10). Where a banker held 
 an overdue note of the defendant, when the defendant 
 made a deposit with him, taking a certificate of de- 
 posit, which was payable upon demand, and subsequently 
 
450 PRACTICE. 
 
 the banker made an assignment for the benefit of cred- 
 itors, and the assignee brought an action on the note; 
 it was held that the amount of the deposit might be 
 set off against the note, although no demand for pay- 
 ment of the deposit had been made. {Seymour v. Dun- 
 ham, 24 Hun, 93). The demand sought to be set off 
 must have been due before the assignment. {Martin v. 
 KunsmuUer, 37 N. Y. 396; Fera v. Wickham, 135 N. Y. 
 223). In an action by an assignee, for damages for 
 breach of contract to sell goods to the assignor, the 
 defendant cannot set up as a counter-claim, a judgment 
 against the assignor, for the purchase price of goods 
 recovered after the assignment, although the action was 
 brought before the assignment. {Lucas v. East Strouds- 
 hurg Glass Co., 38 Hun, 581). It has been held that an 
 action on a statutory undertaking given in the course 
 of an action, such as an undertaking on appeal or for 
 a provisional remedy, was not one upon a "contract" 
 within the meaning of subdivision one of section five 
 hundred and two of the code of civil procedure ( FurJyer 
 V. McCarthy, 54 Hun, 435 ) ; but this case has been over- 
 ruled and a counter-claim is now allowed to the defend- 
 ant in actions on these undertakings. {Bien v. Freund, 
 26 App. Div. 202 ; Delaney v. MiUcr^TS Hun, 18) . Where 
 the defendant executed a bond to the plaintiff's testator, 
 conditioned to pay a certain sum to the executor after 
 the testator's death, it Avas held that the debt due from 
 the defendant to the testator in his lifetime, could not 
 be set up as a counter-claim in an action to foreclose 
 the mortgage given to secure the bond, and for a de- 
 ficiency, because the demand in suit could never have 
 been the subject of an action by and in the name of the 
 testator. {Patterson v. Patterson, 59 N. Y. 574, 581). 
 An unliquidated claim against an assignor cannot be 
 set off under this section {Frick v. White, 57 N. Y. 103) ; 
 but if the two claims are connected, a set-off will be 
 allowed in equity although one is unliquidated, if, be- 
 cause of the insolvency of either party, satisfaction 
 could not otherwise be obtained. {Littlefield v. Albany 
 Co. Banl; 97 N. Y. 581) . It is atherwise, however, if the 
 demands are not connected, (/feep v. Lo7-d, 2 Duer, 78) . 
 
THE ANSWER. 451 
 
 If a set-off is not allowable at law, but there are equita- 
 ble circumstances which would entitle the defendant 
 to it, he may set them up in the answer, and invoke the 
 equitable power of the court. {Jordan v. National Shoe 
 d Leather Bank, 74 N. Y. 467). It must be recognized, 
 however, that such a set-off is not by virtue of the 
 statute. 
 
 Subdivision 2. — Against Transperkeb of Past Due 
 
 Note. 
 
 If the action is upon a negotiable promissory note, or 
 bill of exchange, which has been assigned to the plain- 
 tiff after it became due, a demand, existing against a 
 person who assigned or transferred it, after it became 
 due, must be allowed as a counter-claim, to the amount 
 of the plaintift''s demand, if it might have been so allowed 
 against the assignor, w^hile the note or bill belonged to 
 him. (Co. Civ. Proc. § 502, subd. 2). 
 
 Subdivision 3. — Where a Party Sues or Depends in a 
 Representative Capacity. 
 
 If the plaintiff is a trustee for another, or if the ac- 
 tion is in the name of a plaintiff, who has no actual in- 
 terest in the contract upon w^hich it is founded, a de- 
 mand against the plaintiff shall not be allowed as a 
 counter-claim; but so much of a demand, existing 
 against the person whom he represents, or for whose 
 benefit the action is brought, as will satisfy the plain- 
 tiff's demand, must be allowed as a counter-claim, if it 
 might have been so allowed, in an action by the person 
 beneficially interested. (Co. Civ. Proc. § 502, subd. 2). 
 In an action against an executor, or an administrator, 
 or other person sued in a representative capacity, the 
 defendant may set forth as a counter-claim, a demand 
 belonging to the decedent, or other person whom he rep- 
 resents, where the person so represented would have 
 been entitled to set forth the same in an action against 
 him. (Co. Civ. Proc. § 505). In an action brought by 
 an executor or administrator in his representative ca- 
 pacity, a demand against the decedent, belonging, at 
 
452 
 
 PEACTICB. 
 
 the time of his death to the defendant, may be set forth 
 by the defendant as a counter-claim, as if the action 
 had been brought by the decedent in his lifetime; and, 
 if a balance is found to be due to the defendant, judg- 
 ment must be rendered therefor against the plaintiff in 
 his representative capacity. Execution can be issued 
 upon such a judgment, only in a case where it could be 
 issued upon a judgment, in an action against the ex- 
 ecutor or administrator. (Co. Civ. Proc. § 506). In 
 an action by the receiver of a bank, to recover money 
 due to the bank, the defendant may counter-claim a debt 
 due from the bank to him (Pendergast v. Greenfield, 40 
 Hun, 494 ) ; unless the receiver represents only the cred- 
 itors of the bank. {Osgood v. Ogden, 4 Keyes, 70). One 
 who is indebted to an estate which is in the hands of a 
 receiver, may, in an action against him for the debt, 
 counter-claim the value of services rendered by him for 
 the benefit of the estate, on the employment of the re- 
 ceiver. {Davis \. 8tover, 58 "N. Y. 4:73). An allegation 
 that the assignment to the plaintiff was merely nominal 
 and without consideration, and was made and accepted 
 with the fraudulent purpose of enabling the assignor 
 to take the proceeds, exempt from the claims of his cred- 
 itors, is not sufficient to make the plaintiff a trustee, 
 within this subdivision, so that the claim against the 
 assignor may be set up as a counter-claim. {Willover 
 V. First Nafl Bank of Olean, 40 Hun, 184). In an ac- 
 tion against an executor on a contract, he can counter- 
 claim the value of the services of his testator, rendered 
 to the plaintiff. {Smith v. Randall, 3 T. & C, 798) . In 
 an action by an executor, on a cause of action which 
 arose after the death of his testator, the defendant can- 
 not set up as a counter-claim a debt from the testator 
 to him ( Thompson v. Whitmarsh, 100 N. Y. 35 ) ; but he 
 may set up a claim against the executor for the funeral 
 expenses of the testator. {Patterson v. Patterson, 59 
 N. Y. 574 ) . In an action by an administrator, to recover 
 from a bank a deposit due to the decedent in his lifetime, 
 the defendant cannot counter-claim a claim against the 
 decedent, which did not become due until after his death. 
 [{Jordanv. Nat'l Shoe & Leather Bank, 74 N. Y. 467). 
 
THE ANSWER. 453 
 
 That case was decided under the code of procedure; 
 and the question was raised, but not decided, whether 
 section five hundred and six of the code of civil procedure 
 had affected a change in the law. It seems that the law 
 has not been changed, because if the action had been 
 brought by the decedent in his lifetime, the executor 
 or administrator, instead of being the original plaintiff, 
 would have become the plaintiff by substitution; and 
 by the terms of subdivision two of section five hundred 
 and one of the code of civil procedure, the defendant's 
 demand, when it matured,, could not have been inter- 
 posed as a counter-claim. {Heidelbach v. Kilpatrick, 
 3 Civ. Proc. Eep. 209, note on page 226 ; Jaeger v. Bow- 
 ery Bank, 8 Misc. 150; Peyman v. Boioery Bank, 14 
 App. Div. 432). In an action by the administratrix to 
 recover a debt due the estate, the defendant cannot set 
 up as a counter-claim, his distributive share of the estate 
 as next of kin. {Woodhouse v. Woodhouse, 11 Wk. 
 Dig. 241). 
 
 Subdivision 4. — In Actions for Divorce or Separation. 
 
 Where an action is brought by either husband or wife, 
 for divorce or separation, as prescribed in either article 
 2 or 3 of chapter 15, of the c6de of civil procedure, a 
 cause of action against the plaintiff and in favor of the 
 defendant, arising under either of said articles, may 
 be interposed, in connection with a denial of the material 
 allegations of the complaint, as a counter-claim. (Co. 
 Civ. Proc. § 1770). 
 
 Subdivision 5. — In Actions by the People. 
 
 Tlie state by coming into court as a plaintiff, does not 
 subject itself to affirmative relief, and no set-off or 
 counter-claim can be maintained against it. {People v. 
 Dennison, 84 N. Y. 272). 
 
 Sec. 3. When Should Be Pleaded. 
 
 Subdivision 1. — When to be Pleaded. 
 
 The defendant is not bound to set up a counter-claim, 
 •consistins of a cause of action, independent of that con- 
 
454 
 
 PRACTICE. 
 
 tained in the complaint. (Brown v. Gallaudet, 80 N.. 
 Y. 413). He may elect to enforce it in a subsequent 
 action. (Inslee v. Hampton, 8 Hun, 230). But if he 
 does plead it as a counter-claim and afterwards sues on 
 it, he will be required to elect in which action he will 
 insist upon it. (Wiltsie y. Northam, S Bosw. W2). If 
 the matter relied on as a counter-claim, is directly in- 
 volved in the plaintiff's action, so that the recovery 
 there is decisive of it, it must be set up, and a separate 
 action cannot be brought upon it. (Nemetty v. Baylor, 
 68 How. Pr. 387; affd. 100 N. Y. 562;Dun7iam v. Boiver,, 
 77N. Y. 76). 
 
 Subdivision 2. — How Pleaded. 
 
 It must be pleaded as a counter-claim, if it is relied 
 upon as such. [Equitable Life Assn. Soc. v. Cinjler, 75 
 N. Y. 511; Simmons v. Kayser, 43 Super. 131). An 
 answer will not be regarded as a counter-claim, if it 
 asks that a certain sum may be set off against any sum 
 allowed to the plaintiff {American D. & I. Co. v. Staley, 
 40 Super. 539) ; nor if the defendant set up damages by 
 non-performance by the plaintiff of the contract sued 
 on, and asks only to recoup such damages, against any 
 recovery of the plaintiff. {Cockerill v. Loonam, 36 
 Hun, 353, note). It is not necessary that the counter- 
 claim be expressly denominated as such; though it is 
 called a "further and separate answer and defense," it 
 will still constitute a counter-claim where the allegations 
 are solely appropriate to a counter-claim, and the relief 
 demanded shows that it was intended as a counter- 
 claim {McCrea v. Hopper, 35 App. Div. 572; affd. on 
 opinion below, 165 N. Y. 333). All the facts showing 
 the counter-claim to be a proper one must be pleaded — 
 as, for example, that it existed at the time of the com- 
 mencement of the action, or that it arose out of the 
 transaction set forth in the complaint, etc. The defend- 
 ant may interpose as many counter-claims as he has, 
 whether they are legal or equitable. (Co. Civ. Proc. § 
 507) . Each defense or counter-claim must be separately 
 stated, and numbered. (Id.). 
 
THE ANSWER. 455' 
 
 Subdivision 3. — Effect of Pleading Counter-claim. 
 
 A counter-claim, which is pleaded and passed upon, 
 is a bar to another action for the same cause {Jones v. 
 McGee, 7 Wk. Dig. 97) ; although no affirmative relief 
 was rendered on it. {Inslee v. Hampton, 11 Hun. 156) . 
 If the counter-claim is withdrawn before or at the trial, 
 a subsequent action may be brought on it. ( Watson v. 
 Coivdrey. 23 Hun, 169). If the defendant after plead- 
 ing a counter-claim, obtains a non-suit as to the plain- 
 tiff's cause of action, he in effect submits to a non-suit 
 as to the counter-claim, unless it was a claim which he 
 was bound to present and litigate in the action {Mayor, 
 etc. V. Ketchnin, 67 How. Pr. 161) ; but if the defendant 
 moves for a non-suit, the plaintiff" may still insist that 
 the issues raised by the counter-claim, shall be sub- 
 mitted to the jury. {Miller v. Freeborn, 4 Robt. 608). 
 A counter-claim is not a defense, and hence cannot be 
 stricken out as sham. {Fettretch v. McKay, 47 N. Y. 
 426; Baum's Castorine Co. v. Thomas, 92 Hun, 1). 
 
 Sec. 4. Judgments on the Counter-claim. 
 
 In an action upon contract, where the complaint de- 
 mands judgment for a sum of money only, if the defend- 
 ant, by his answer does not deny the plaintiff's claim, 
 but sets up a counter-claim amounting to less than the 
 plaintiff's claim, the plaintiff, upon filing with the clerk 
 an admission of the counter-claim, may take judgment 
 for the excess as upon a default for want of an answer. 
 The admission must be made a part of the judgment 
 roll. (Co. Civ. Proc. § 512). Where a counter-claim 
 is established, Avhich equals the plaintiff's demand, the 
 judgment must be in favor of the defendant. Where it 
 is less than the plaintiff's demand, the plaintiff must 
 have judgment for the residue only. Where it exceeds 
 the plaintiff's demand, the defendant must have judg- 
 ment for the excess, or so much thereof as is due from 
 the plaintiff. Where part of the excess is not due from 
 the plaintiff, the judgment does not prejudice the de- 
 fendant's right to recover, from another person, so much 
 thereof as the judgment does not cancel. (Co. Civ. Proc. 
 § 503). 
 
456 PRACTICE. 
 
 ARTICLE VI. 
 
 DEMAND OF RELIEF. 
 
 If the defendant asks simply to defeat the plaintiff's 
 cause of action, he need not insert in the answer any 
 prayer for relief. Where the defendant deems himself 
 entitled to an affirmative judgment against the plaintiff, 
 by reason of a counter-claim interposed by him, he must 
 demand the judgment in his answer. (Co. Civ. Proc. 
 § 509). Where the judgment may determine the ulti- 
 mate rights of two or more defendants, as between 
 themselves, a defendant who requires such a determina- 
 tion, must demand it in his answer. (Co. Civ. Proc. 
 § 521). The defendant can have no affirmative relief, 
 if he does not ask for it in the answer (Shute v. Hamil- 
 ton, 3 Daly, 462 ) , even though there be an allegation of 
 damages. {McFJlirce Mfg. Co. v. Troivbridge, 68 Hun, 
 28; affd. by default without opinion, 142 N. Y. 679). 
 Where a defendant who has been brought in as a claim- 
 ant of the fund involved in the litigation, makes no 
 affirmative claim against the plaintiff, but asks that the 
 fund be awarded him, this does not constitute a demand 
 for affirmative relief within section five hundred and 
 nine. {Drake v. ^atterlce, 41 N. Y. St. Eep. 576). In 
 an action of ejectment if the defendant alleges an equita- 
 ble title and right to a conveyance, he must, to defeat 
 a recovery by the plaintiff, make in his answer a claim 
 for affirmative relief. {Dewey v. Hoag, 15 Barb. 365). 
 He can recover no more or greater relief than he de- 
 mands in his answer, {Annis y, Upton, 66 Barb. 370). 
 
CHAPTER XII. 
 
 THE REPLY. 
 
 ARTICLE I When to be served. 
 
 ARTICLE II.. ."What to contain. 
 
 ARTICLE III. .Judgment on failure to reply. . 
 
 ARTICLE I. 
 
 WHEN TO BE SERVED. 
 
 Where the answer contains a counter-claim, the plain- 
 tiff, if he does not demur, may reply to it. (Co. Civ. 
 Proc. § 514). Where an answer contains new matter, 
 constituting a defense by way of avoidance, the court 
 may, in its discretion, on the defendant's application, 
 direct the plaintiff to reply to the new matter. In that 
 case, the reply, and the proceedings upon failure to reply, 
 are subject to the same rules as in the case of a counter- 
 claim. (Co. Civ. Proc. § 516). Where the answer con- 
 tains no counter-claim, a reply cannot be served, unless 
 it is ordered pursuant to section five hundred and sixteen 
 of the code, and it will be stricken out on motion. {Dev- 
 lin V. Bevins, 22 How. Pr. 290 ; Dillon v. Sixth, Ave. R. 
 R. Co., 46 Super. 21). When it is doubtful whether a 
 counter-claim is intended to be set up in an answer, the 
 safer course is to serve a reply {Teets v. Throckmorton, 
 8 N. Y. St. Rep. 897), and it will not be stricken out 
 where it does no harm to the defendant. (Id. ; Stegmim 
 V. Eollingsworth, 16 N. Y. Supp. 820). In an action 
 for a divorce on the ground of adultery, an answer 
 setting up the adultery of the plaintiff", and asking for 
 a divorce from him, pleads a counter-claim, and requires 
 a reply. (LesZie v. Leslie, 11 Abb. Pr. N. S. 311). New 
 matter does not require a reply, unless it is set up as a 
 
458 
 
 PRACTICE. 
 
 counter-claim. {Equitable Life Assn. Soc. v. Ouyler, 
 75 N. Y. 511; Ward v. Gomegys, 2 How. Pr. N. S. 428). 
 The following defenses have been held not to require a 
 reply: set-off {American D. & I. Co. v. Staley, 40 Super. 
 539 ; Hatzel v. Hoffman House, 2 App. Div. 120 ; Farrell 
 V. Amber g, 8 Misc. 220 ; affd. without op., 151 N. Y. 670) ; 
 discharge of the defendant in bankruptcy {Argall v. 
 Jacobs, 87 N. Y. 110) ; in an action of trespass, an 
 answer that the defendant was the owner of the locus 
 in quo {Argotsinger v. Vines, 82 N. Y. 308) ; in an 
 action to foreclose a mortgage, an answer that the mort- 
 gage was usurious, and praying that it be delivered up 
 and canceled. {Equitable Life Assn. Soc. v. Cuyler, 
 supra). A defense made by way of new matter, not 
 constituting a counter-claim, is deemed controverted, 
 and plaintiff without replying, may traverse or avoid it, 
 and is entitled to the benefit of every possible answer to 
 it, the same as if pleaded, and for that purpose evidence 
 admissible under the principles of either law or equity, 
 takes the place of pleading. {Arthur v. Homestead Fire 
 Ins. Co., 78 N. Y. 462). In such a case the court has a 
 discretion, upon the defendant's motion, to order a reply 
 in order to prevent a surprise upon the trial and narrow 
 the issue. {Gauchois v. Proctor, 79 Hun, 388; Mercan- 
 tile Nat. Bk. V. Corn Ex. Blc, 73 Hun, 78). A reply 
 to new matter will not be directed Avhen the only purpose 
 sought in having such reply served is to relieve the 
 defendant from the necessity of proving the facts which 
 he sets up in his answer as a defense by way of avoid- 
 ance. {Masters Y. DeZavala, 48 A-pTp. Div. 2Qd) . When 
 a counter-claim has not been interposed, a reply cannot 
 be ordered nor the defendant required to receive it on 
 the plaintiff's application. {McDonald v. Davis, 1 Law 
 Bull. 20). Where a counter-claim has been interposed, 
 the court has no authority to order a reply to be served. 
 {Adams v. Roberts, 1 Civ. Proc. Rep. 204). By reply- 
 ing to an answer containing a counter-claim, the plain- 
 tiff waives any objection to the form of the pleading, 
 or to the introduction of evidence to prove the counter- 
 claim {Ayres v. O'Farrel, 10 Bosw. 143; Thomas v. 
 Loaners' Banlc, 38 Super. 466) ; but he does not waive 
 
THE REPLY. 459 
 
 the objection that the counter-claim is not allowable 
 in that action. {Smith v. Hall, 67 N. Y. 48; Dinan v. 
 Coneys, 143 N. Y. 544). If the reply is served without 
 an order, to an answer not setting up a counter-claim, 
 the irregularity is waived by its acceptance, without a 
 motion to strike it out. {Wilkin v. Baplee, 5 Wk. 
 Dig. 560). 
 
 ARTICLE II. 
 
 WHAT TO CONTAIN. 
 
 The reply must contain a general or specific denial 
 of each material allegation of the, counter-claim, con- 
 troverted by the plaintiff, or of any knowledge or in- 
 formation thereof, sufficient to form a belief; and it 
 may set forth in ordinary and concise language, without 
 repetition, new matter not inconsistent with the com- 
 plaint, constituting a defense to the counter-claim. ( Oo. 
 Civ. Proc. § 514). A reply may contain two or more 
 distinct avoidances of the same defense or counter- 
 claim ; but they must be separately stated and numbered. 
 (Co. Civ. Proc. § 517). The reply is substantially an 
 answer to the counter-claim, and it is governed by the 
 same rules as the answer. It must be distinct, and 
 specific, so that the defendant and the court may see 
 clearly what is controverted. {Risley v. Carll, 1 Law 
 Bull. 52). A reply denying each and every allegation 
 set up in the answer as new matter by way of avoidance, 
 is sufficient. {Chaivviteau v. Fay, 54 How. Pr. 211). 
 A reply to a plea of the statute of limitations, should 
 show whether the action was begun within the time re- 
 quired by law, or whether the running of the statute 
 was suspended. An allegation that the action was com- 
 menced within six years, is not sufficient. {Jarris v. 
 Pike, 11 Abb. Pr. N. S. 398). The pendency of a prior 
 action upon the cause of action set up as a counter- 
 claim must be set up in the reply, if such pendency 
 does not appear upon the face of the counter-claim. ( Oo. 
 Civ. Proc. §§ 495, 514; Ansorge v. Kaiser, 22 Abb. N. C. 
 305; Dolbeer v. Stout, 30 Abb. N. C. 693). A denial in 
 a reply, on information and belief, of an allegation of 
 
460 
 
 PRACTICE. 
 
 a counter-claim, is insufficient, if it appears by the 
 complaint, that such allegations are within the plaintiff's 
 knowledge. {Fallon v. Durant, 60 How. Pr. 178). 
 Where there is set forth in a reply new matter incon- 
 sistent with the allegations of the complaint, the defend- 
 ant may have such inconsistent matter stricken out on 
 motion. {Frank Brewing Co. v. Hammersen, 22 App. 
 Div. 476). A new assignment is not admissible in a 
 reply {Stewart v. Wallis, 30 Barb. 344) ; nor can the 
 replj^ be used for the purpose of amending the complaint. 
 {Eidlitz V. Rothschild, 87 Hun, 243). It was held in 
 Miller v. Losee (9 How. Pr. 356), that a reply could 
 set up a counter-claim to the counter-claim alleged in 
 the answer ; but it will be noticed that section five hun- 
 dred and fourteen above cited, does not in terms permit 
 a counter-claim to be set up and the case seems against 
 the current of the later authorities. It may now be 
 safely asserted that the reply cannot set up a counter- 
 claim on a counter-claim. {Windecker v. M. L. I. Co., 
 12 App. Div. 73, 81, 82; Cohn v. Husson, 66 How. Pr. 
 150; Hatfield v. Todd, 13 Civ. Proc. 265; Qoosen v. 
 Oooseii, 11 Misc. 86). In case the plaintiff has a cause 
 of action against the defendant, other than that set up 
 in the complaint, which he desires to litigate in the one 
 action, the proper procedure is to amend his complaint. 
 An objection that the counter-claim is barred by the 
 statute of limitations is waived, if not set up in the reply. 
 ;(0o. Civ. Proc. § 413). 
 
 ARTICLE III. 
 
 JUDGMENT ON FAILURE TO REPLY. 
 
 If the plaintiff fails to reply or demur to the counter- 
 claim, the defendant may apply, upon notice, for judg- 
 ment thereupon ; and, if the case requires it, a reference 
 may be ordered, or a writ of inquiry may be issued, as 
 prescribed in chapter XI of this act, where the plain- 
 tiff applies for judgment. (Co. Civ. Proc. § 515). If 
 not replied to, a counter-claim is taken as true. {Clin- 
 ton V. Eddy, 1 Lans. 61). The plaintiff by not replying, 
 
THE REPLY. 461 
 
 admits that the matters set up in the counter-claim are 
 due and owing; but, if defendant does not talie advant- 
 age of that admission, and attempts to make proof of 
 the facts alleged in his counter-claim, he waives it; 
 and, if the facts proved fail to show that the counter- 
 claim was a proper set-off, it will not be allowed. {Ran- 
 dolph V. Mayor etc., 53 How. Pr. 68). A defendant 
 waives the reply, although it is necessary, if the trial 
 proceeds without the objection that no reply was served 
 and upon the theory that the allegations of the counter- 
 claim are in issue. {Hopkins v. Lane, 2 Hun, 38; affd. 
 87 N. Y. 501 ; Jordan v. Nat'l Shoe & Leather Bank, 74 
 N. Y. 467). Although the plaintiff: has not replied, he 
 may bring the case to trial, and the defendant can then 
 assert whatever rights he may have by reason of the 
 failure to reply. {Adams v. Roberts, 1 Civ. Proc. Kep. 
 304) . Although the plaintiff does not reply, he may still 
 insist that the facts set up in the answer do not consti- 
 tute a set-off. {Jordan v. Nat'l Shoe & Leather Bank, 
 supra). 
 
CHAPTER XIII. 
 
 DEMURRER. 
 
 ARTICLE I When it lies. 
 
 ARTICLE II. . . .Form and effect of the demurrer. 
 ARTICLE III... Grounds of demurrer to the complaint. 
 ARTICLE IV . . . Grounds of demurrer to pleadings after complaint 
 
 ARTICLE V Amendments after demurrer. 
 
 ARTICLE VI.. .When objections taken by answer. 
 ARTICLE VII.. When objection is waived. 
 
 ARTICLE I. 
 
 WHEN IT LIES. 
 
 A demurrer is an objection to the legal sufficiency of 
 the pleading demurred to. The object of the demurrer 
 under the code is the same as at common law, although 
 its scope has been changed. It still goes to the legal 
 effect of the pleading demurred to, for some defect or 
 deficiency apparent upon its face. It denies the legal 
 proposition involved in such pleading and this makes an 
 issue of law. Special demurrers, however, as known to 
 the former practice, have no place in the present system 
 of pleading. The code authorizes a demurrer for specific 
 causes, and no pleading is demurrable unless it is sub- 
 ject to one or more of the objections, specified in the 
 section defining the grounds of demurrer. {Marie v. 
 Garrison, 83 N. Y. 14, 23). The demurrer can only be 
 taken, when the defects complained of appear upon the 
 face of the pleading. {DePuy v. Strong, 37 N. Y. 372). 
 
 The defendant may demur to the complaint, where one 
 or more of the following objections thereto appear upon 
 the face thereof: 
 
 1. That the court has not jurisdiction of the person 
 of the defendant. 
 
DEMURRER. 463 
 
 2. That the court has not jurisdiction of the subject 
 of the action. 
 
 3. That the plaintiff has not legal capacity to sue. 
 
 4. That there is another action pending between the 
 same parties, for the same cause. 
 
 5. That there is a misjoinder of parties plaintiff. 
 
 6. That there is a defect of parties, plaintiff or de- 
 fendant. 
 
 7. That causes of action have been improperly united. 
 
 8. That the complaint does not state facts sufficient 
 to constitute a cause of action. (Co. Civ. Proc. § 488). 
 
 The defendant may demur to the whole complaint, or 
 to one or more separate causes of action, stated therein. 
 In the latter case, he may answer the causes of action 
 not demurred to. (Co. Civ. Proc. § 492). The defend- 
 ant may also demur to the reply, or to a separate 
 traverse to, or avoidance of, a defense or counter-claim, 
 contained in the reply, on the ground that it is insuffi- 
 cient in law, upon the face thereof. (Co. Civ. Proc. § 
 493). The plaintiff may demur to a counter-claim or a 
 defense consisting of new matter, contained in the ans- 
 wer, on the ground that it is insufficient in law upon the 
 face thereof. (Co. Civ. Proc. § 494). 
 
 The plaintiff may also demur to a counter-claim, upon 
 which the defendant demands an affirmative judgment, 
 where one or more of the following objections thereto 
 appear upon the face of the counter-claim : 
 
 1. That the court has not jurisdiction of the subject 
 thereof. 
 
 2. That defendant has not legal capacity to recover 
 upon the same. 
 
 3. That there is another action pending between the 
 same parties, for the same cause. 
 
 4. That the c'ounter-claim is not of the character speci- 
 fied in section 501 of the code of civil procedure. 
 
 5. That the counter-claim does not state facts suffi- 
 cient to constitute a cause of action. (Co. Civ. Proc. 
 § 495). 
 
 A demurrer can only be interposed upon one or 
 more of the grounds specified in these sections, and for 
 
 30 
 
464 
 
 PRACTICE. 
 
 a defect which affects a substantial right. (Ayers v. 
 Lawrence, 59 N. Y. 192). It will not lie for merely 
 formal defects {Kaln v. Larldn, 141 N. Y. 144) ; as 
 for irrelevancy {Bostwick v. Dry Goods B'lc, 67 Barb. 
 449) ; for redundancy {Ward v. Ward, 5 Abb. Pr. N. S. 
 145) ; nor because the pleading is indefinite or uncertain 
 {Hale V. Omaha Nat'l B'lc, 49 N. Y. 626; Moffitt v. AIc- 
 Laughlin, 13 Hun, 449) ; nor because causes of action 
 are not separately stated or numbered (Bass v. Gom- 
 stock, 38 N. Y. 21 ) ; nor for misnomer ( Gannon v. 
 Myars, 11 Civ. Proc. Kep. 187) ; nor will it lie for a 
 mere clerical error {Roussel v. St. Nicholas Ins. Go., 41 
 Super. 279; Marshall v. Bresler, 1 How. Pr. N. S. 217) ; 
 nor to the prayer for relief {Mackey v. Auer, 8 Hun, 
 180) ; nor will a demurrer lie to a defect which appears 
 only by an examination of the jurat. (State B'k v. 
 Shaw, 5 Hun, 114). An objection that the claim is 
 stale cannot be raised by demurrer. (Sage v. Gulver, 
 147 N. Y. 214 ) . A demurrer will not lie for any formal 
 defect, which might have been the ground of special 
 demurrer at common law. (Yates v. Burch, 13 Hun, 
 622). It cannot be interposed upon the ground that 
 the cause of action is barred by the statute of limitations, 
 although that appears upon the face of the complaint. 
 (Sa7ids V. St. John, 36 Barb. 628; affd. 29 How. Pr. 574, 
 note). Neither is a complaint, which fails to conform 
 to section 1775 of the code of civil procedure by stating 
 whether the defendant is a domestic or foreign corpora- 
 tion, demurrable for that defect. (Harmon v. Vander- 
 Ult Hotel Go., 79 Hun, 392; affd. without opinion, 143 
 N. Y. 665). A demurrer will not lie for a misjoinder of 
 parties defendant. (Fish v. Hose, 59 How. Pr. 238). 
 There seems to be a conflict of authority, as to whether 
 a demurrer may be interposed to a pleading because 
 it is hypothetical. In the case of Taylor v. Richards 
 ( 9 Bosw. 679 ) , it was held that a demurrer could not be 
 interposed to a pleading upon that ground ; but the later 
 case of Mann v. Milne (21 Hun, 408), holds that the 
 proper remedy against a hypothetical answer is a de- 
 murrer ; and that view seems to be sustained by the case 
 of Goodman v. Rohh (41 Hun, 605). The question 
 
DEMURRER. 465 
 
 whether a denial of knowledge and information is suffi- 
 eient, cannot be raised bv demurrer. {Nklbols v. Liuiip- 
 Idn, 51 Super. 88) . A supplemental complaint cannot be 
 demurred to {FIciscJuiiaiiii v. Bennett, 1 Law. Bull. 43), 
 unless it has been pleaded in place of the original com- 
 plaint; but a demurrer may be interposed to the orig- 
 inal and supplemental complaint taken togther. {Tay- 
 lor V. Metropolitan Elevated R. R., Co., 52 Super. 299, 
 562; Harris v. Elliott, 29 App. Div. 568). A demurrer 
 will only lie to the whole of the cause of action or de- 
 fense; and not to a separate paragraph of a pleading. 
 (Lord V. Vreeland, 15 Abb. Pr. 122; Hacldeij v. Draper, 
 4 T. & C. 614; HollingswortJi v. Spectator Co., No. 1, 53 
 App. Div. 291). If a party desires to interpose a de- 
 murrer to the matter contained in a single paragraph, 
 claiming that it constitutes a separate cause of action or 
 defense, the proper procedure is first to move that the 
 pleader be compelled to state and number it separately 
 and then, after it has been so stated, demur. [N. J. 
 Steel & Iron Co. v. Robinson, 60 App. Div. 69). 
 
 ARTICLE II. 
 
 FORM AND EFFECT OP THE DEMURRER. 
 
 SECTION 
 
 1. Form. 
 
 2. When joined with answer. 
 
 3. Effect. 
 
 Sec. 1. Form. 
 
 The demurrer must distinctly specifiy the objections 
 to the complaint ; otherwise it may be disregarded. An 
 objection taken under subdivision first, second, fourth 
 or eighth of section four hundred and eighty-eight (Co. 
 Civ. Proc.) may be stated in the language of the subdi- 
 vision ; an objection, taken under either of the other sub- 
 divisions, must point out specifically the particular 
 defect relied on. (Co. Civ. Proc. § 490). A demurrer, 
 taken to a counter-claim, must distinctly specify the 
 objections, otherwise it may be disregarded. The mode 
 of specifying the objections is the same, as where a 
 
466 
 
 PRACTICE. 
 
 demurrer is taken to a complaint. ( Co. Civ. Proc. § 496 ) . 
 The demurrer may be interposed to the whole pleading, 
 or to one or more separate causes of action or defenses. 
 (Co. Civ. Proc. §§ 492, 493, 494). But it must be to 
 the Avhole pleading, or to the whole of one or more 
 causes of action or defenses. {Eacldeij v. Draper, 4 
 T. & C. 614). The grounds upon which the demurrer 
 is taken, must all be distinctly specified, and it cannot 
 be sustained upon a ground not clearly stated. [Garter 
 V. DeCaiiip, 40 Hun, 258). Any objection appearing 
 upon the face of the pleading, and not specified in the 
 demurrer, is deemed to be waived, except the objection 
 to the jurisdiction of the court or the objection that the 
 complaint fails to state a cause of action. (Co. Civ. 
 Proc. §§ 498, 499; Fidton Fire Ins. Co. v. Baldwin, 37 
 N. Y. 648, 651 ) . If there are several causes of action or 
 defenses united in a pleading, a demurrer to the whole 
 pleading will be overruled, if any one of them is good 
 {Hale V. Omaha Nat'l Bk., 49 N. Y. 626) ; although the 
 causes of action or defenses are not separately stated 
 or numbered. (Hcai-er v. Hodgkiii, 63 How. Pr. 128). 
 If there are several plaintiffs, and a single demurrer is 
 interposed as to all, and there is a good cause of action 
 stated in favor of one separately, the demurrer will be 
 overruled. (Peabodii v. WasMii.gton Co. Mat. Ins. Co., 
 20 Barb. 339). So, if several defendants unite in a 
 joint demurrer, it cannot be sustained, if the complaint 
 states a good cause of action as to one. (Oakley v. 
 TugweU, 33 Hun, 357) . If a defendant desires to object 
 that there is a misjoinder of causes of action, because 
 the complaint is not sufficient as to one plaintiff, he 
 must specify the plaintiff as to whom he claims it is 
 insufficient. [Richtmyer v. Richtmyer, 50 Barb. 55). 
 A demurrer to part of a pleading, should specify the part 
 demurred to. (Jarvis v. Palmer, 11 Paige, 650). Sep- 
 arate demurrers may be interposed to several causes of 
 action or defenses. ( Ogdenshurgh Batik v. Paige, 2 Co. 
 Kep. 75). 
 
DEMURRER. 467 
 
 Sec. 2. When Joined with Answer. 
 
 If the defendant demurs to one or more separate 
 causes of action, stated in the complaint, he may answer 
 the causes of action not demurred to. (Co. Oiv. Proc. 
 § i92). If there are several defendants, some may de- 
 mur and others may answer. {Weblt v. yamlerhilt, 39 
 Super. 4r). A demurrer and answer to the same matter 
 is not allowed. (Mtmn v. Barnum, 12 How. Pr. 563). 
 The defendant will be compelled to elect upon which 
 he will rely. {8peUman v. Welder, 5 How. Pr. 5; Ber- 
 nard V. Morrison, 4 Law Bull. 90). The answer and 
 demurrer are separate pleadings, and they do not lose 
 their distinct character by being on the same paper. 
 (Howard r. Mich. South. R. B. Co., 5 How. Pr. 206). 
 If the pleading denies anything, or requires proof to 
 establish anything alleged in it, it is an answer and not 
 a demurrer. {Clark v. Van Deusen, 3 Co. Rep. 219; 
 Struvcr v. Ocean Ins. Co., 16 How. Pr. 422). 
 
 Sec. 3. Effect. 
 
 A demurrer admits the facts stated in the pleading 
 demurred to. {Cutler v. Wright, 22 N. Y. 472). Upon 
 demurrer, the pleading is deemed to admit whatever can 
 be implied from the allegations therein, by reasonable 
 and fair intendment, and facts impliedly averred are 
 admitted in the same manner, as though they were di- 
 rectly averred. {Marie v. Garrison, 83 N. Y. 14, 23). A 
 demurrer does not admit conclusions of law. {Kip v. 
 N. Y. & Harlem R. R. Co., 67 N. Y. 227). Averments 
 in the pleading as to the legal effect or meaning of an 
 instrument, that is set out in full in the pleading, are 
 not admitted by the demurrer; nor does the demurrer 
 admit the correctness of inferences drawn from the facts 
 stated ; but only the truth of such facts as are properly 
 stated in the pleading. {Bogardus v. N. Y. Life Ins. Co.,. 
 101 N. Y. 328, 337). The admission of facts, made by 
 the demurrer, is available not only for the purpose of the 
 argument of the demurrer, but as evidence on the trial 
 of the action, while the demurrer remains upon the 
 record. {Cutler v. Wright, 22 N. Y. 472). Upon the 
 argument of the demurrer, all reasonable intendments 
 
468 
 
 PRACTICE. 
 
 are indulged, in support of the pleading demurred to. 
 ( Lorillard v. Clyde, 86 N. Y. 384 ) . A demurrer searches 
 the record for the first fault in pleading and reaches 
 back to condemn the first pleading that is defective in 
 substance. (Baxter v. McDonnell, 154 N. Y. 432, 436; 
 Corning v. Roosevelt, 25 Abb. N. C. 220, and note). 
 
 ARTICLE III. 
 
 GROUNDS OF DEMURRER TO THE COMPLAINT. 
 
 SECTION". 
 
 1. That the court has no jurisdiction. 
 
 2. That plaintiff has not capacity to sue. 
 
 3. Another action pending. 
 
 4. Misjoinder of parties plaintitt'. 
 
 5. Defect of parties. 
 
 6. Misjoinder of causes of action. 
 
 7. No cause of action. 
 
 Sec. 1. That the Court has no Jurisdiction. 
 
 The want of jurisdiction is the basis of the first two 
 grounds upon which a demurrer can be taken. (Co. Civ. 
 Proc. § 488, subds. 1 and 2). As we have seen, the 
 objection may be taken in the words of the statute. 
 (Co. Civ. Proc. § 490). The objection that the court 
 has no jurisdiction of the person of the defendant, can 
 be taken only to the complaint, and not to any subse- 
 quent pleading. The meaning of that objection is, that it 
 appears by the complaint, that the person of the defend- 
 ant is not subject to the jurisdiction of the court. The 
 objection cannot be taken simply because of the irregu- 
 larity of the service of process. {Isfones v. Hope Mut. 
 Life Ins. Co., 8 Barb. 541). The objection does not 
 raise any such question. [0. & L. C. R. R. Co. v. Yer- 
 mont & Canada R. R. Co., 16 Abb. Pr. N. S. 249 ; affd. 
 on other grounds, 4 Hun, 712). Where several causes 
 of action are properly joined, except that the court has 
 no jurisdiction of one of them, the objection must be 
 limited to that one; and must be for want of jurisdic- 
 tion to the cause of action set out in that count, or it 
 will be disregarded. (Cook v. Chase, 3 Duer, 643). In 
 
DEMURRER. 469 
 
 an action against a foreign corporation, a demurrer for 
 want of jurisdiction is not well taken, unless it appears 
 upon the face of the complaint that the contract sued 
 upon is not within the jurisdiction of the court. (Fisher 
 V. Charter Oak Life Ins. Co., 52 Super. 179). If the 
 action is brought in an inferior court of limited juris- 
 diction, the complaint must show affirmatively that the 
 court has jurisdiction of the subject of the action, and 
 the person of the defendant, or a demurrer upon that 
 ground will be sustained. {Frees v. Ford, 6 N. Y. 176; 
 Billions V. DeBarc, 4 Bosw. 547; Gilbert v. York, 111 
 N. Y. 544). 
 
 See. 2. That Plaintiff has not Capacity to Sue. 
 
 This is the third ground of demurrer, stated in section 
 four hundred and eighty-eight of the code of civil pro- 
 cedure. It cannot be taken by using the words of the 
 statute simply. (Co. Civ. Proc. § 490). The specific 
 defect must be pointed out. It is the proper ground of 
 demurrer where a party sues as an officer of an associa- 
 tion, without alleging his authority to do so; or as re- 
 ceiver, or executor, or in some other representative 
 capacity, without alleging his appointment. This objec- 
 tion is independent of the objection that the complaint 
 does not state facts sufficient to constitute a cause of 
 action (Ward v. Petrie, 157 N. Y. 301) ; as the facts 
 showing the existence of the capacity to sue, are not 
 necessarily the facts which show the cause of action. 
 (Bank of LoivviUe v. Edivards, 11 How. Pr. 216). To 
 sustain a demurrer upon this ground, it must appear 
 affirmatively that the plaintiff has not the legal capacity 
 to sue; if the complaint is simply silent upon that point, 
 the objection must be taken by answer. (Phcenix Bank 
 v. Z>o»«e7?, 40N. Y. 410). 
 
 Sec. 3. Another Action Pending. 
 
 This ground of demurrer is, that there is another 
 action pending between the same parties for the same 
 cause. (Co. Civ. Proc. § 488, subd. 4). It may be 
 stated in the words of the section. (Co. Civ. Proc. 
 § 490). To sustain a demurrer within this subdivision, 
 
470 
 
 PRACTICE. 
 
 it is not necessary that the other action should be what 
 is technically known as a civil action. If it appears 
 upon the face of the complaint that any proceeding is 
 pending in which the rights of the plaintiff would be 
 fully protected, although it is a special proceeding, or a 
 proceeding before another court of the state, the de- 
 murrer will be sustained {Groshon v. Lyon, 16 Barb. 
 461) ; although it is one which was begun by the de- 
 fendant against the plaintiff; but the action must be 
 one between the same parties {Geery v. Webster, 11 
 Hun, 428) ; in which all the relief sought in the action 
 demurred to could be obtained ( Id. ) ; for the same cause ; 
 it is not sujBflcient that the same property is in contro- 
 versy. (Dfl^rZeT/ V. i?rowH, 79 N. Y. 390). It must also 
 appear upon the face of the complaint, that the action 
 is one pending in the courts of this state, and not in the 
 courts of the United States, or of any other state. ( Cook 
 V. Litchfield, 5 Sand. 330 ; reversed on other grounds, 9 
 N. Y. 279). In an action to set aside a release for 
 fraud, where it appeared by the complaint that the same 
 release had been set up as a defense in another action, 
 which was then pending, a demurrer for this cause was 
 sustained. {Dainhiaan v. Schulting, 4 Hun, 50). 
 
 Sec. 4. Misjoinder of Parties Plaintiff. 
 
 The fifth ground of demurrer to the complaint is that 
 there is a misjoinder of parties plaintiff. (Co. Civ. 
 Proc. § 488, subd. 5). Under the code of procedure, 
 a demurrer could not be taken upon this ground. ( Peo- 
 ple V. Crool's, 53 N. Y. 648). But that case, and other 
 cases to the same effect, are not the law since the code 
 of civil procedure took effect. The nature of the mis- 
 joinder must be stated, and it is not sufficient to state 
 the ground of demurrer in the words of the code. A 
 demurrer for this ground is properly taken, where it 
 appears upon the face of the complaint that one plain- 
 tiff has no interest with the others in the cause of 
 action {Berncy v. Drexel, 33 Hun, 419, 421; Haixina 
 City Ry. Co., v. Ceballos, 49 App. Div. 263) ; or where 
 the plaintiffs seek relief upon two separate or distinct 
 contracts, in which they are not jointly interested 
 
DEMURRER. 471 
 
 {Julia no Ware Go. v. Saiuls, Daily Reg., Feb. 4, 1881) ; 
 or where it appears tliat tlie interests of the plaintiffs 
 under a contract sued upon are several and distinct. 
 The misjoinder of parties plaintiff is not a ground 
 of demurrer as to all the plaintiffs, if either has a 
 good cause of action. (Siinar v. Cassady, 53 N. Y. 
 298; Enos v. Leach, 18 Hun, 139). 
 
 Sec. 5. Defect of Parties. 
 
 A demurrer maj- be taten to the complaint upon the 
 ground that there is a defect of parties plaintiff, or de- 
 fendant. (Co. Civ. Proc. § 488, subd. 6). A demurrer 
 upon this ground must specify the names of the parties 
 who should be joined. (Anderton v. Wolf, 41 Hun, 
 571, 572). The defect must appear upon the face of 
 the pleading. {Haiiics \. HoUistcr,M'N.Y. 1). Where 
 it is apparent, the objection must be taken by demurrer 
 {8traus v. Tradesmen's Nafl Bank, 36 Hun, 451; or 
 it is waived (Co. Civ. Proc. § 499; Selye v. Zlininer, 
 15 N. Y. Supp. 881; affd. without opinion, 137 N. Y. 
 563) ; although the names of the absentees are not stated 
 in the pleading. {Hees v. Nellls, 1 T. & C. 118). This 
 objection must always be taken by demurrer, unless 
 evidence is required to make the defect apparent. ( Id. ) . 
 There has been some conflict of authority, whether a 
 demurrer for this ground could be sustained, unless 
 it appears affirmatively upon the face of the complaint 
 that the party absent is living. In Strong v. Wheaton 
 (38 Barb. 616), it was held that it could not; and it 
 has been held that it is not enough that the complaint 
 is silent upon that subject. ( Brainard v. Jones, 11 How. 
 Pr. 569; Scofield v. Van HycMe, 23 How. Pr. 97). But 
 later cases seem to have settled the rule the other way, 
 and it may now be stated that a demurrer lies upon this 
 ground, unless it appears upon the face of the plead- 
 ing that the absent parties are not living. {Eaton 
 V. Balcom. 33 How. Pr. 80; Sanders v. ViUaf/e of YonJc- 
 ers, 63 N. Y. 489, 493 ; Zahrklcie v. Smith, 13 N. Y. 322; 
 Green v. Lippincott, 53 How. Pr. 33; Sidlivan et al. v. 
 N. Y. & R. Co., 119 N. Y. 348). A demurrer under this 
 subdivision, will not lie for an excess of parties defend-. 
 
472 PRACTICE. 
 
 ant, but only for a deficiency. (N. Y. & N. Haven B. R. 
 Co. V. Bchiujler, 17 N. Y. 592). One defendant cannot 
 demur for a defect of parties defendant, unless he has 
 an interest in having the absentee made a defendant. 
 (Anderton v. Wolf, 41 Hun, 571). A demurrer for this 
 ground will not lie, unless the parties omitted are not 
 only proper, but necessary parties. (Wnig v. Bull, 38 
 Hun, 291). Nor wilL it lie, if the court can determine 
 the controversy without prejudice to the rights of the 
 omitted party, or saving their rights. {Wallace v. 
 Eaton, 5 How. Pr. 99). Where the complaint alleged 
 that the plaintiff made a contract with a firm, composed 
 of the defendants and others whose names are unknown, 
 but whom when discovered, the plaintiff asks leave to 
 join as defendants, a demurrer will not lie for a defect 
 of parties defendant. {Earle v. Scott, 50 How. Pr. 50G). 
 If it appears upon appeal from a judgment, that the 
 presence of other parties than those joined is necessary 
 to a complete determination of the controversy, the 
 court will reverse the judgment, although the defect was 
 not raised by demurrer or answer. {Bear v. American 
 Rapid Tel. Co., 36 Hun, 400; MoiiUon v. Cornish, 138 
 N. Y. 133). 
 
 Sec. 6. Misjoinder of Causes of Action. 
 
 The seventh ground of demurrer to the complaint, 
 is that causes of action have been improperly united. 
 (Co. Civ. Proc. § 488, subd. 7). The right to demur for 
 misjoinder is not lost, because the several causes of 
 action are not separately stated. {Wilcft v. Suydam, 64 
 N. Y. 173 ; Zorn v. Zom, 38 Hun, 67) . If they might have 
 properly been joined, the remedy for the failure to sep- 
 arately state them is by a motion, and not by demurrer. 
 '{Bass V. Comstocli. 38 N. Y. 21). A demurrer for this 
 cause should be to the whole complaint, and not to any 
 separate cause of action therein stated. {Ferriss v. 
 N. A. F. Ins. Co., 1 Hill, 71). It should specify the 
 causes of action which are improperly united. {Ander- 
 ton V. Wolf, 41 Hun, 571). Where the plaintiffs have 
 been induced by fraud to execute a joint release of 
 separate claims, it is not a misjoinder of causes of 
 
DEMUERER. 473 
 
 action, because in addition to the prayer that the release 
 be set aside, they ask judgment separately for the 
 amounts due to each. (Smith y. Bchiiltitig, 14 Hun, 
 52). Where the complaint alleges a cause of action at 
 law, and one in equity, it is not therefore a misjoinder. 
 (Lattin X. McCarty, 41 N. Y. 107; Carter v. DeCamp, 
 40 Hun, 258). The fact that two liinds of relief are 
 asked, does not necessarily make t\vo causes of action. 
 (Lattin V. McGarty, supra). In an action in the nature 
 of a creditor's bill against several judgment debtors, 
 to reach property owned by them in severalty, a de- 
 murrer for this ground will not lie. (Bradner v. Hol- 
 land, 33 Hun, 288). Where two causes of action on 
 contract are joined in the complaint, but all the de- 
 fendants are not affected by both, a demurrer for mis- 
 joinder lies at the instance of the defendant who is so 
 affected. (Nicliols y. Drew, 94^1^. Y. 22). A complaint 
 against a president of a corporation, which asked an 
 accounting by the defendant for the property of the 
 corporation in his hands as president, and for plaintiff's 
 property in his hands individually, is demurrable for 
 misjoinder. (Paulsen v. Van 8teenhergh, 65 How. Pr. 
 342). Where the complaint shoAvs a separate cause 
 of action against each defendant, but not a joint cause 
 of action, a joint demurrer upon this ground is proper. 
 (Hess V. Buf. & Niagara Falls R. R. Co., 29 Barb. 391). 
 Where an action is against a maker and guarantor of a 
 note, and the complaint alleges in one count, a good 
 cause of action against each separately, a demurrer by 
 each defendant for a misjoinder of causes of action is 
 proper. (Barton v. Speis, 5 Hun, 60). If there is an 
 attempt to join causes of action which cannot properly 
 be united, the defendant is entitled to judgment upon 
 his demurrer, although one cause of action is not good. 
 (Higgins v. Crichton, 11 Daly, 114). A single instance 
 of two misjoined causes of action is sufficient to require 
 a demurrer for misjoinder to be sustained, no matter 
 how many causes of action, properly or improperly 
 joined, the complaint contains. (Stanton v. M. P. Ry. 
 Co., 15 Civ. Proc. Kep. 296). The objection is waived 
 if not taken by demurrer ; and defendant cannot ask at 
 
474 
 
 PRACTICE. 
 
 the trial that the plaintiff elect on which cause of action 
 he will seek to recover. ( Gillett v. Borden, 6 Lans. 219 j 
 Sherman v. Iiiiiiaii Steamship Co., 26 Hun, 107). 
 
 Sec. 7. No Cause of Action. 
 
 The last ground of demurrer in section four hundred 
 and eighty-eight, is that the complaint does not state 
 facts sufficient to constitute a cause of action. This 
 objection may be taken in the words of the code. (Co. 
 Civ. Proc. § 490). It is optional whether the defendant 
 will take this objection by demurrer; it is good at any 
 stage of the action. (Co. Civ. Proc. § 499; Gould v. 
 Glass, 19 Barb. 179). An objection to the complaint, 
 upon this ground, will not be sustained for mere formal 
 defects which were the subject of special demurrer. 
 (Richards v. Edick, 17 Barb. 260). It is not sufficient 
 that the facts are imperfectly or informally averred, or 
 that the pleading lacks definiteness and precision, or 
 that the material facts are only argumentatively averred. 
 The demurrer can only be sustained when it appears 
 that, admitting all the facts alleged, it presents no 
 cause of action whatever. [Marie v. Garrison, 83 N. Y. 
 14, 23 ) . A complaint is good upon demurrer if it states 
 a cause of action, no matter how much irrelevant or 
 unnecessary matter appears in it. {Prouty v. ^Yhipple, 
 10 Wk. Dig. 387). A demurrer for this cause will 
 not be sustained, if the complaint sets out a cause of 
 action, although not the one intended by the pleader 
 (Witherhead v. Allen, 4 Abb. Ct. App. Dec. 628), pro- 
 vided the cause of action set out is one which will 
 entitle the plaintiff to the kind of relief prayed for. 
 [Swart V. Boughton, 35 Hun, 281). If there are two 
 counts in the complaint, and either sets out a good 
 cause of action, a demurrer to the whole complaint will 
 be overruled. [Hale v. Omaha National Bk., 49 N. Y. 
 626). A demurrer will be sustained, where the com- 
 plaint omits to state any one of the facts necessary to 
 constitute the cause of action [Van Liew v. Johnson, 
 6 T. & C. 648), or where no connection is shown between 
 the cause of action and the party demurring. [Wehh v. 
 Tanderhilt, 39 Super. 4). If the complaint discloses 
 
DEMUBEER. 475 
 
 a good defense to the cause of action set out in it, a 
 demurrer upon tliis ground will be sustained. (Calvo 
 V. Davies, 73 N. Y. 211.) Where there is no answer, 
 the plaintiff is entitled to no greater relief than that 
 demanded in the complaint; and for that reason, a 
 demurrer on this ground raises the question whether the 
 plaintiff is entitled to any part of the relief demanded ; 
 and if he is not entitled to the kind prayed for, a de- 
 murrer Avill be sustained although he may be entitled 
 to some other kind of relief; for instance, if he ask 
 money relief, and is entitled to equitable relief; or if 
 he asks for equitable relief, and is entitled to a judg- 
 ment at law. {Fisher v. Charter Oak L. Iiis. Co., 53 
 Super. 179; Stcart v. Boughton, 35 Hun, 281). But 
 where the pleader prays for both equitable and legal 
 relief and he is entitled to one only, a demurrer will 
 not be sustained. [Wisner v. Consolidated Fruit Jar 
 Co., 25 App. Div. 362). If it appears upon the face 
 of a complaint, praying equitable relief only, that the 
 plaintiff has an adequate remedy at law, a demurrer 
 on the ground that the complaint does not state a cause 
 of action will be sustained. (Jackson v. Citij of X. Y., 
 ■34 Misc. 380; Abb. Tr. Br. PL §§ 110, 111). In an 
 action against several defendants, a complaint will not 
 be held bad on joint demurrer, if a good cause of action 
 against one is alleged. {Fish v. Hose, 59 How. Pr. 238) . 
 If the language of the complaint may reasonably import 
 a good cause of action, a demurrer for insufficiency 
 will be overruled, although the complaint is susceptible 
 of a construction excluding such cause of action. {01- 
 cott V. Carroll, 39 N. Y. 436; Patch v. Tribune Ass'n, 
 38 Hun, 368). Where two unite in a joint action, and 
 the facts do not show a joint cause of action, a demurrer 
 lies for this cause, although one has a good cause of 
 action, and the judgment should be for the defendant, 
 with leave to the one who has a good cause of action 
 to amend. {Mann v. Marsh, 35 Barb. 68). One de- 
 fendant cannot demur, because the complaint is in- 
 sufficient against another. {Littell v. Bayrc. 7 Hun, 
 485) . A demurrer for insufficiency lies where the plain- 
 tiff has failed to obtain leave to sue, when that is 
 
476 
 
 PRACTICE. 
 
 requisite. {Earle v. David, 86 N. Y. 634; Freeman v. 
 Butcher, 15 Abb. N. C. 431). 
 
 ARTICLE IV. 
 
 GROUNDS OF DEMURRER TO PLEADINGS AFTER COMPLAINT. 
 
 SECTION. 
 
 1. To the answer. 
 
 2. To the counter-claim. 
 
 3. To reply. 
 
 Sec. 1. To the Answer. 
 
 The only ground of demurrer to a defense consisting 
 of new matter, contained in the answer, is tliat it is 
 insufficient in law, upon the face thereof. (Co. Civ. 
 Proc. § 494). A demurrer will not lie to an answer 
 consisting simply of denials, but only to one containing 
 a counter-claim, or a defense consisting of new matter 
 {Nichols V. Lumpkin, 51 Super. 88) ; in case an answer 
 contains denials of material allegations in the complaint, 
 as well as averments of new matter, the demurrer must 
 be confined specifically to the new matter. {McBride 
 V. Am. Surety Co., 70 Hun, 369). It will not lie to a 
 part of an entire defense {HolJiiigsivorth v. Spectator 
 Co., 53 App. Div. 291) ; but it will lie to what is pleaded 
 as a partial defense, on the ground that it is not suffi- 
 cient for that purpose (Co. Civ. Proc. § 508), and no 
 other ground. {Thompson v. Halbert, 40 Hun, 536, 
 537 ; reversed on ground that what was held by the gen- 
 eral term to be a partial defense was not pleaded as such, 
 109 N. Y. 329). It will not lie for mere formal defects. 
 {Wait V. Ferguson, 14 Abb. Pr. 379). It seems, how- 
 ever, that the answer may be demurred to, because it 
 is hypothetical {Mann v. Milne, 21 Hun, 408; Goodman 
 V. Rohh, 41 Hun, 605) ; but not because of irrelevancy 
 or surplusage. {Fry v. Bennett, 5 Sand. 54). If an 
 answer M^hich denies nothing, but sets up new matter, 
 is demurred to, all the allegations of the complaint and 
 the answer are taken to be true. {Long v. Mayor etc.,' 
 81 N. Y. 425, 427). Any allegation of the complaint 
 
DEMURRER. 477 
 
 referred to in the answer, is to be considered as incor- 
 porated in it, for the purposes of the demurrer. ( Gragin 
 V. Locell, 88 N. Y. 258). Upon demurrer to the answer, 
 where affirmative relief is not asked, it is sufficient to 
 state the ground mentioned in section four hundred 
 and ninety-four of the code; and any defect which goes 
 to the merits can be raised. {Arthur v. Brooks, 14 
 Barb. 533). Upon the argument of the demurrer, the 
 question of the sufiiciency of the complaint may be 
 raised {Clark v. Poor, 73 Hun, 143; People v. Booth, 
 32 N. Y. 397) ; and if the complaint is not good the 
 demurrer will be overruled. {Parsons v. Hayes, 50 
 Super. 29 ) . A demurrer to an answer, or to any defense 
 in an answer, must be disposed of before the issue of fact 
 is tried. {Wilson v. Robinson, 6 How. Pr. 110). A 
 defendant cannot demur to a co-defendant's answer 
 served upon such defendant pursuant to the provisions 
 of section 521 of the code of civil procedure ; a demurrer 
 lies only where there is a code provision for it, and none 
 is provided for in such a case. {Stuart v. Blatchley, 77 
 Hun, 425). 
 
 Sec. 2. To the Counter-claim. 
 
 The plaintiff may also demur to a counter-claim, upon 
 which the defendant demands an affirmative judgment, 
 where one or more of the following objections thereto, 
 appear on the face of the counter-claim : 
 
 1. That the court has not jurisdiction of the subject 
 thereof. 
 
 2. That the defendant has not legal capacity to recover 
 upon the same. 
 
 3. That there is another action pending between the 
 same parties, for the same cause. 
 
 4. That the counter-claim is not one of the character 
 specified in section five hundred and one of the code 
 of civil procedure. 
 
 5. That the counter-claim does not state facts suffi- 
 cient to constitute a cause of action. (Co. Civ. Proc. 
 § 495). 
 
 A demurrer taken under section four hundred and 
 ninety-five of the code of civil procedure must distinctly 
 
478 
 
 PRACTICE. 
 
 specify the objections to the counter-claim; otherwise 
 it may be disregarded. The mode of specifying the 
 objections is the same, as where a demurrer is taken to 
 a complaint. (Co. Civ. Proc. § 496). A demurrer to 
 a counter-claim must specify the particular objections 
 sought to be raised, or it will be disregarded. {Safford 
 V. Sncdel^cr, 67 How. Pr. 264). Under subdivision four 
 of section 495, the objection is sufficiently specified if 
 stated in the language of the subdivision. {Eckert v. 
 GalJicn, 40 App. Div. 525). Upon the demurrer to the 
 counter-claim, facts alleged in the complaint, not in- 
 consistent with the averments of the counter-claim, are 
 to be taken as true. (Graham v. Dunnigan, 6 Duer, 
 629, 631). Where the demurrer to the counter-claim 
 is taken for insufficiency, the objection cannot be raised 
 that the counter-claim does not set up a cause of action 
 arising out of the contract set forth in the complaint. 
 {Safforcl V. Bnecleker, 67 How. Pr. 264). If the counter- 
 claim is not available as such, under the code of civil 
 procedure, the plaintiff does not waive his right to take 
 that objection, by a failure to demur or by replying to 
 the answer (Dinan v. Coneys, 143 N. Y. 544) ; nor by 
 a failure to plead to it at all. (Ldpmaii v. J. A. I. Works, 
 128 N. Y. 58; Jordan v. Nat. Shoe & Leather Bk., 74 
 N. Y. 467; Stevens v. Orton, 18 Misc. 538, 545). The 
 complaint may be attacked, as not stating facts sufficient 
 to constitute a cause of action, upon a demurrer to a 
 counter-claim. ( Village of Little Falls v. Coil), 80 Hun, 
 20). 
 
 Sec. 3. To the Reply. 
 
 The sole ground of demurrer to the reply, or to a sep- 
 arate traverse to, or avoidance of, a defense or counter- 
 claim, contained in the reply, is that it is insufficient 
 in law, upon the face thereof. (Co. Civ. Proc. § 493). 
 The rules which have been given with reference to the 
 demurrer to the answer, apply to a demurrer to the 
 reply. If the plaintiff in his reply, denies on informa- 
 tion and belief, the allegations of the answer, which are 
 clearly within his knowledge, as appears by the com- 
 plaint, the reply is demurrable for insufficiency. (Fallon 
 
DEMURRER. 479 
 
 V. Durant, 60 How. Pr. 178; S. 0. 3 Law Bull. 13). 
 Upon the hearing of a demurrer to a reply, all previous 
 pleadings may be examined, and judgment will be ren- 
 dered against the party who committed the first fault 
 in pleading in the matter of substance {Henriques v. 
 Tale University, 28 App. Div. 354; appeal dismissed, 
 157 N. Y. 672), "matter of substance" being only either 
 a failure to state facts showing jurisdiction or a cause of 
 action. (Co. Civ. Proc. § 499; Straus v. Trotter, 6 Misc. 
 77). 
 
 ARTICLE V. 
 
 AMENDMENTS AFTER DEMURRER. 
 
 Upon the decision of a demurrer, either at a general 
 or special term, or in the court of appeals, the court 
 may, in its discretion, allow the party in fault to plead 
 anew or amend, upon such terms as are just. If a de- 
 murrer to a complaint is allowed, because two or more 
 causes of action have been improperly united, the court 
 may, in its discretion, and upon such terms as are just, 
 direct that the action be divided into as many actions 
 as are necessary for the proper determination of the 
 causes of action therein stated. (Co. Civ. Proc. § 497). 
 Section one hundred and seventy-t-^o of the code of pro- 
 cedure, authorized the court to allow an amendment 
 after demurrer, only if it appeared that the demurrer 
 was interposed in good faith. Under that section it 
 was held, that when a demurrer had been interposed 
 which the pleader could not have supposed, would have 
 disposed of the cause on the merits, it was not pleaded 
 in good faith. {Osgood v. Whittelsey, 10 Abb. Pr. 134) . 
 At common law, a party who had interposed a demurrer, 
 was not permitted to amend, unless he made it appear 
 that he had merits, and that the demurrer was inter- 
 posed in good faith. (Miller v. Heath, 7 Cowen, 101). 
 Mr. Throop says that the amendments proposed by sec- 
 tion four hundred and ninety-seven to section one hun- 
 dred and seventy-two of the code of procedure are 
 merely verbal; and it is supposed that they do not change 
 
 31 
 
480 PRACTICE. 
 
 the rule which forbade the allowance of an amendment, 
 if it appeared that the demurrer was not made or inter- 
 posed in good faith. Whether or not the amendment 
 will be allowed, is in the discretion of the court. {Fisher 
 V. Ooiild, 81 N. Y. 228). That discretion cannot be 
 reviewed in the court of appeals. (Id.). After a de- 
 murrer has been overruled with leave to answer, if 
 the defendant permit final judgment to be entered, and 
 appeal, leave to answer will not be given on the affirm- 
 ance of the judgment. (Whiting v. Mayor, etc., 37 
 N. Y. 600 ; Fisher v. Gould, 9 Daly, 144 ; affd. 87 N. Y. 
 228). If a demurrer is sustained with leave to amend, 
 and an amended complaint has been served, and a de- 
 murrer to that has also been sustained, leave to amend 
 the second time should not be granted. {Lowry v. In- 
 man, 6 Abb. Pr. N. S. 394). As a practical matter leave 
 to amend is now rarely refused; leave is denied only 
 where it appears that the action cannot be maintained 
 under any circumstances. (Snoio v. Fourth Nat'l Bk., 7 
 Kobt. 479 ) . If a part only of the pleading is demurred to, 
 and leave has been given to amend that part, the pleader 
 can only amend the portion demurred to. (Fiehlen v. 
 Garelli, 26 How. Pr. 173). If the defendant is allowed 
 to amend three defenses, he need not amend all of them ; 
 but he may confine his amendment to any one. {Decker 
 V. Kitchen, 21 Hun, 332 ) . But the defenses as to which 
 he does not amend his answer, are disposed of by the 
 demurrer. {.Ryan v. Mayor, etc., 42 Super. 202). If a 
 party avails himself of leave to amend, or withdraw 
 his demurrer, it is then out of the case, and it is no part 
 of the record. {Wheelock v. Lee, 74 N. Y. 495). It is 
 not then available to either party for any purpose 
 {Brown v. Saratoga R. R. Co., 18 N. Y. 495; McGul- 
 lough V. Pence, 85 Hiln, 271) ; but if the demurrer is 
 overruled, and the party has leave to withdraw it on 
 terms, and he goes to trial without complying with the 
 terms, the demurrer still stands on the record, and 
 appears upon it as an admission of the pleading de- 
 murred to. ( Ciitler V. Wright, 22 N. Y. 472 ) . 
 
DEMURRER. 481 
 
 ARTICLE VI. 
 
 WHEN OBJECTION TAKEN BY ANSWER. 
 
 Where any of the matters enumerated in section four 
 hundred and eighty of the code of civil procedure, as 
 grounds of demurrer, do not appear on the face of the 
 complaint, the objection may be taken by answer. (Co. 
 Civ. Proc. § 498). 
 
 ARTICLE VII. j 
 
 WHEN OBJECTION IS WAIVED. 
 
 If such an objection is not taken, either by demurrer 
 or answer, the defendant is deemed to have waived it, 
 except the objection to the jurisdiction of the court, or 
 the objection that the complaint does not state facts 
 sufficient to constitute a cause of action. ( Co. Civ. Proc. 
 § 499). The meaning of this section is that when the 
 objection is one which appears upon the face of the 
 complaint, it must be taken by demurrer, or it is waived ; 
 or if it does not so appear, it must be taken by answer, 
 or it is waived. {ZabrisMe v. Smith, 13 N. Y. 322, 326; 
 Palmer v. Davis, 28 N. Y. 242). When a complaint 
 fails to state a material allegation, and the defendant 
 does not demur but answers setting forth such omitted 
 material allegation, it is too late for the defendant to 
 object upon the trial that the complaint fails to state 
 a cause of action. (Reck v. Phanix Ins. So., 17 Wk. 
 Dig. 253). After issue joined, the plaintiff does not 
 waive his right to demur to the answer of the defendant 
 by noticing the cause for trial. [Brossington v. Rohrs, 
 3 Misc. 358, S. C. 23 Civ. Proc. Rep. 146). 
 
CHAPTEE XIV. 
 
 ARREST AND BAIL. 
 
 ARTICLE I . . . , Oases where order of arrest may be granted, 
 
 ARTICLE II, . .Persons liable to arrest. 
 
 ARTICLE III. .Order of arrest. 
 
 ARTICLE IV. Arrest, when and how made. 
 
 ARTICLE V. . .Discharge on bail or deposit. 
 
 ARTICLE VI . . Charging and discharging bail. 
 
 ARTICLE I. 
 
 CASES WHERE ORDER OF ARREST MAY BE GRANTED. 
 
 SECTION. 
 
 1. \^'here right depends on nature of action. 
 
 2. Where right depends partly on extrinsic facts. 
 
 Sec. 1. Where Eight Depends on Nature of Action. 
 
 A defendant may be arrested in an action, as pre- 
 :scribed in title 1 of chapter 7 (Co. Civ. Proc), where 
 the action is brought for either of the following causes: 
 
 1. To recover a fine or penalty. 
 
 2. To recover damages for a personal injury; an in- 
 jury to property, including the wrongful taking, deten- 
 tion or conversion of personal property; breach of a 
 promise to marry; misconduct or neglect in office, or 
 in a professional employment; fraud, or deceit; or to 
 recover a chattel, where it is alleged in the complaint 
 that the chattel or a part thereof has been concealed, 
 removed or disposed of, so that it cannot be found or 
 taken by the sheriff, and with intent that it should not 
 be so found or taken, or to deprive the plaintiff of the 
 benefit thereof; or to recover for money received, or to 
 recover property or damages for the conversion or mis- 
 application of property, where it is alleged in the com- 
 plaint that the money was received, or the property was 
 
ARREST AND BAIL. 483 
 
 embezzled, or fraudulently misapplied by a public offi- 
 cer, or by an attorney, solicitor or counselor, or by an 
 officer or agent of a corporation or banking association 
 in the course of bis employment, or by a factor, agent, 
 broker, or other person in a fiduciary capacity. Where 
 such allegation is made, the plaintiff cannot recover, 
 unless he proves the same on the trial of the action; 
 and a judgment for the defendant is not a bar to the 
 new action to recover the money or chattel. 
 
 3. To recover moneys, funds or property, held or 
 owned by the state, or held or owned officially or other- 
 wise for or in behalf of a public or governmental in- 
 terest by a municipal or other public corporation, board, 
 officer, custodian, agency or agent, of the state, or of a 
 city, county, town, village or other division, subdivision, 
 department, or portion of the state, which the defendant 
 has without right obtained, received, converted, or dis- 
 posed of: or to recover damages for so obtaining, re- 
 ceiving, paying, converting, or disposing of the same. 
 
 4. In an action upon contract, express or implied, 
 other than a promise to marry, where it is alleged in the 
 coniplaint that the defendant was guilty of a fraud in 
 contracting or incurring the liability, or that he has 
 since the making of the contract, or in contemplation 
 of making the same, removed or disposed of his property 
 with intent to defraud his creditors, or is about to re- 
 move or dispose of the same with like intent; but where 
 such allegation is made, the plaintiff cannot recover, 
 unless he prove the fraud on the trial of the action; 
 and a judgment for the defendant is not a bar to a new 
 action to recover upon the contract only. (Oo. Civ. 
 Proc. § 549). 
 
 The section of the code above quoted contains all of 
 the cases where the defendant may be arrested, except- 
 ing the one given in section five hundred and fifty of 
 the code. 
 
 A person shall not be arrested in a civil action or 
 special proceeding, except as prescribed by statute. The 
 writ of ne exeat is hereby abolished. (Oo. Oiv. Proc. 
 § 548) . An order of arrest should not be granted, where 
 its propriety depends upon a doubtful or important 
 
484 PRACTICE. 
 
 question of law (Cormier v. HawJcins, 69 N. Y. 188) ; 
 nor where it is not warranted by a strict construction 
 of the provisions of the code. (South Inl. Xav. d Imp. 
 Co. V. Sherwin, 1 Civ. Proc. Kep. 44). The provisions of 
 the code authorizing arrest in civil actions, do not give 
 to the plaintiff an absolute right to arrest the defendant ;^ 
 but it rests in the sound discretion of the judge to grant 
 or refuse the order. (Knickerbocker L. Ins. Co. v. Ec- 
 clesine, 34 Super. 76, 82). The language of the section 
 is permissive. (Griswold v. Sweet, 49 How. Pr. 171). 
 The defendant cannot be arrested in a suit, in which are 
 joined causes of action, upon o^ of which he was not 
 liable to arrest (Easton v. Gassidy, 21 Hun, 459) ; nor 
 can the defendant be arrested a second time, by process 
 upon the same cause of action, where the second action 
 is vexatious (Ewart v. Scliioart^, 48 Super. 390) ; but 
 this exemption is not a legal right, but to be determined 
 by the circumstances \ and if the second suit is not vex- 
 atious, an order of arrest may be granted (People v. 
 Tu-eed, 63 N. Y. 202) ; and in the case of the Citizens 
 National Bank v. Vorhis (39 Hun, 24), it was held that 
 where the facts failed to show that the successive arrests 
 were resorted to for the purpose of vexing and harassing 
 the defendant, a third order of arrest should not be 
 vacated. Of course, the principle controlling the issu- 
 ing of another order of arrest in a second action is pre- 
 cisely the same as that governing a second order of 
 arrest in the same action. Where, therefore, an order 
 of arrest has been vacated for insufficiency of the affi- 
 davits, the plaintiff may, later, iipon further proof, and 
 upon showing that it is not vexatious, secure a second 
 order in the same action. (Meiicci v. Raudnitz, 20 Hun, 
 343). 
 
 Under subdivision one of section five hundred and 
 forty-nine, in order to subject a party to arrest, the 
 cause of action must be a fine or penalty, and not some- 
 thing of a penal character. (Glens Falls Paper Co. v. 
 White, 58 How. Pr. 172 ; V. S. v. Reid, 4 Oiv. Proc. Kep. 
 1 ; Stauh v. Mi/ers, 16 App. Div. 476) . 
 
 Under subdivision two of section five hundred and 
 forty-nine, the defendant may be arrested in an action 
 
ARREST AND BAIL. 485 
 
 to recover damages for a personal injury. The "per- 
 sonal injury" is defined as including libel, slander, crim- 
 inal conversation, seduction, malicious prosecution, and 
 also assault, battery, false imprisonment, or other ac- 
 tionable injury to the person, either of the plaintiff, or 
 of another (Co. Civ. Proc. § 3343, subd. 9) ; for either 
 of ■«'hich the defendant may be arrested, upon the proper 
 proof being made. For libel (Blakelee v. Bnclianan, 44 
 How. Pr. 97), for criminal conversation {Stiiyvesant 
 V. Boicran, 3 Abb. Pr. N. S. 270) ; for seduction {Stein- 
 berg V. Lasher, 50 How. Pr. 432) ; for malicious prosecu- 
 tion {Dempsey v. Lepp, 52 How. Pr. 11) ; for assault 
 and battery {'Schultz \. 8chult.z, 2 Civ. Proc. Rep. 282; 
 reversed on another point, 89 N. Y. 644). In an action 
 by the wife for a lindted divorce, on the ground of cruel 
 treatment, an order of arrest may be granted {Gardiner 
 Y. Gardiner, 3 Abb. N. C. 1) ; but an action for an abso- 
 lute divorce is not an action for a personal injury so 
 that an order of arrest could be granted on it. {Mc- 
 intosh V. Mcintosh, 12 How. Pr. 289). This case did 
 not involve the question whether or not an order of 
 arrest could not be granted in an action for an absolute 
 divorce. At the time it was decided the writ of ite exeat 
 had not been abolished {Collins v. Collins, 80 N. Y. 
 24, 26) ; and that writ afforded a sufficient remedy when 
 it was necessary to restrain the person of the defendant, 
 during the pendency of an action, for divorce. Since 
 that writ has been abolished the remedy in such cases 
 is given by section five hundred and fifty of the code, 
 as will be seen hereafter. A wife may maintain an ac- 
 tion against any one for enticing her husband from her, 
 and may cause the defendant to be arrested. {Breiman 
 V. Paasch, 7 Abb. N. C. 249). The courts are reluctant 
 to grant orders of arrest in actions for personal injuries, 
 except in extreme or outrageous cases {Knicherhocker 
 L. Ins. Co. V. Ecclesine, 34 Super. 76), or where it is 
 satisfactorily shown that there is danger of defendant 
 leaving the state {Pfluger v. Lesclce, 4 Law Bull. 87), or 
 where defendant has shown malice, in instituting civil 
 suit without probable cause, which terminated in plain- 
 tiff's favor. {Dempsey v. Lepp, 52 How. Pr. 11). Before 
 
486 
 
 PRACTICE. 
 
 the enactment of the code of civil procedure, it was 
 held that the right to arrest the defendant was a per- 
 sonal right for injuries recevied by the plaintiff, and 
 which right dies with the plaintiff {Ryall v. Kennedy, 
 52 How. Pr. 517) ; but by the language of the ninth 
 subdivision of section thirty-three hundred and forty- 
 three, of the code of civil procedure, which defines a 
 personal injury, as an actionable injury to the person 
 of the plaintiff or of another, it would seem that this 
 right was extended, so that the plaintiff might cause the 
 arrest of the defendant, for an injury to the person of 
 another. It is expressly so held in a case brought by 
 the plaintiff to recover damages, after the death of the 
 plaintiff's intestate, caused by the negligence of the de- 
 fendant {Haines v. Jeroloman, 2 McC. Civ. Proc. Eep. 
 196) ; and it is further held, that the personal injury 
 need not be willful {Ritterman v. Ropes, 52 Super. 236), 
 unless the defendant be a woman. (Id.). An assignee 
 of a cause of action, takes with it all the rights to its 
 enforcement that existed in favor of the assignor; and 
 as such may enforce his claim by arrest. {Meyer v. 
 Belden, 8 Wk. Dig. 344). 
 
 The defendant may be arrested in an action to recover 
 for injury to property, including the wrongful taking, 
 detention or conversion of personal property. An in- 
 jury to personal property is defined to be an actionable 
 act, whereby the estate of another is lessened, other thar» 
 a personal injury, or the breach of a contract. (Co 
 Civ. Proc. § 3343, subd. 10). An action to recover the 
 possession of real property, with damages for detaining 
 the same, was held not to be an action for an injury to 
 property within this section {Merritt v. Carpenter, 3 
 Keyes, 142) ; but in the later case of 'Welch, v. Winter- 
 hum (14 Hun, 518), it was held that the words "injury 
 to property" include real estate as well as personal prop- 
 arty; and the words immediately following, "including 
 the wrongful taking, detention or conversion of personal 
 property" did not have the effect to restrict the mean- 
 ing of the words, but rather confirm the impression that 
 the intention was to embrace real property. In an ac-, 
 tion brought to recover property, which had been takenl 
 
ARREST AND BAIL. 487" 
 
 from the plaintiff by a conspiracy and by fraud, an order 
 of arrest may be granted {Bruce v. Kelly, 5 Hun, 229) ; 
 so, where the gravamen of the complaint is the wrong 
 and injury done to the plaintiff's property by the de- 
 fendant, an order of arrest may be granted. (Niver v. 
 Nivcr, 29 How. Pr. 6). Where the defendant received 
 goods of the plaintiff, and agreed to return them or their 
 value, and he afterwards refused to return them or to 
 pay for the same, an order of arrest was held proper 
 {Person v. Giver, 29 How. Pr. 432) ; and this liability 
 to arrest was not waived by the plaintiffs receiving part 
 payment in money, and due bills for the residue. (Id.). 
 Where the plaintiff deposited a check with the defendant 
 for collection, and the proceeds to be applied to a special 
 purpose, and the defendant collected the same, and gave 
 the plaintiff credit therefor, instead of paying it as 
 specified, an order of arrest was held proper. {Eckert 
 v. Belden, 1 Law Bull. 61) . Where, after the conversion 
 of the plaintiff's property by the defendant, the plaintiff 
 treats the transaction as a contract of sale, and takes 
 a confession of judgment for goods sold and delivered, 
 he thereby waives his right to arrest the defendant. 
 {Fields V. Bland, 81 N. Y. 239). Unliquidated dam- 
 ages arising out of a tortious act, are not regarded as a 
 debt, and a party is liable to arrest on such a claim. 
 {Zinn V. Rittcrman, 2 Abb. Pr. N. S. 261). An action 
 under the statute to recover money lost at gaming is 
 not one in which an order of arrest can be granted. 
 {Tompkins v. Smith, 62 How. Pr. 499; affd. without 
 op., 89 N. Y. 602) ; nor is the similar action to recover 
 moneys paid by the plaintiff to persons conducting al- 
 leged illegal lotteries. {Staub v. Myers, 16 App. Div. 
 476). A defendant may be arrested for a breach of 
 promise to marry (Oo. Civ. Proc. § 549, subd. 2) ; but 
 where the action is brought by a male against a female, 
 for breach of promise to marry, the defendant cannot be 
 arrested. (Co. Civ. Proc. § 553; Siefke v. Tappey, 3 Co. 
 Eep. 23). For misconduct or neglect in office, or in a 
 professional employment, the defendant may be arrested. 
 (Co. Civ. Proc. § 549, subd. 2). Thus, the directors of a 
 corporation may be arrested for fraudulent and illegal 
 
488 
 
 PRACTICE. 
 
 acts, in disposing of the property of the corporation, in 
 an action brought by the stockholders. ( Crook v. Jew- 
 eii, 12 How. Tr. 19). Where the register of New York 
 city makes and certifies to an erroneous return to a 
 written requisition for a search in his office, he is guilty 
 of misconduct or neglect in office within this section, 
 and is liable to arrest in an action to recover damages, 
 for such erroneous return even though he did not him- 
 self make the search or personally certify to it. [Van 
 Schaick v. Sigel, 9 Daly, 383). An attorney may be 
 arrested in an action brought to recover money collected 
 by him for his client, which he has omitted to pay over. 
 {Stage v. Stevens, 1 Den. 267). If the attorney reside 
 in another state, and collects the money there, still he is 
 liable to arrest in this state, in an action brought to 
 recover such money {Yates v. Blodrjett, S How. Pr. 278) ; 
 for it is held that our remedy by arrest is applicable to 
 cases where the debt is fraudulently contracted in a 
 foreign country. {Brown v. Ashbough, 40 How. Pr. 
 226) . An order of arrest may be granted, in an action for 
 the conversion of monej^ received in a fiduciary capacity, 
 although some of the money was received in another 
 state {Castrec v. Kirhy, -2 Civ. Proc. Eep. 334); and 
 in a case where the defendants, doing business in another 
 state, bought goods in this state, and subsequently dis- 
 posed of feheir property with intent to defraud their 
 creditors, it is held that an order for the arrest of the 
 defendants was properly granted in an action in this 
 fetate. {Claflin v. Frenkel, 29 Hun, 288, S. C. 3 Oiv. 
 Proc. Rep. 109) . A defendant may be arrested in an ac- 
 tion brought to recover damages for fraud or deceit. 
 '(Co. Civ. Proc. § 549, subd. 2). Deceit or fraudulent 
 representations, accompanied by damages, constitute a 
 good ground of action in respect to real as well as per- 
 sonal property, and an order of arrest is proper in such 
 a case. {CrandallY. Brgan.WH.ow.Fv. 48). The pur- 
 chase of goods with the intent to convert them into 
 property, which cannot be reached by execution, is such 
 a fraud as will make the defendant liable to arrest. 
 {Wallace v. Marplig, 22 How. Pr. 414). To render 
 defendant liable to arrest, he must have actually par- 
 
ARREST AND BAIL. 489 
 
 ticipated in the fraud, and it must be his actual per- 
 sonal fraud, and not be merely a legal or constructive 
 fraud [Hathaway v. Johnson, 55 N. Y. 93) ; thus where 
 one of two partners withdraw a large amount of money 
 from the business of the firm, for the reason that it had 
 suffered severe losses, and that the other partner had 
 already transferred a considerable portion of his prop- 
 erty to his wife, without consideration, an order of 
 arrest cannot be granted, against the partner who with- 
 drew his money, without proof that he had either dis- 
 posed, or intended to dispose, of some of this money to 
 defraud his creditors. ( Scott v. Reid, 2 How. Pr. N. S. 
 521). The fraud of an agent, unless subsequently 
 adopted and ratified by the principal, does not afford 
 ground for the principal's arrest. (Smith v. Tracy, 36 
 N. Y. 79; EUson v. Hance, 44 App. Div. 296). Where 
 a debtor makes false representations in fact, he will be 
 held to iliave intended the legitimate consequences of 
 his act, and he will not be permitted to say that he did 
 not intend to defraud the plaintiff. ( Whitcomb v. Sals- 
 man, 16 How. Pr. 5B3). 
 
 In an action to recover a chattel, where it is alleged 
 in the. complaint that the chattel, or a part thereof has 
 been concealed, removed or disposed of, so that it cannot 
 be found or taken by the sheriff, and with intent that 
 it should not be so found or taken, or to deprive the 
 plaintiff of the benefit thereof, the defendant may be 
 arrested. (Co. Civ. Proc. § 549, subd. 2). There was 
 formerly a belief, to some extent founded on judicial 
 determination, that an order of arrest could not be 
 granted under this provision of the code, unless it was 
 shown that the fraudulent disposition of the chattel 
 had reference to some suit, either pending or anticipated 
 (Watson v. McOuire, 2 Daly, 21.9), but it is now clearly 
 settled that the intent requisite to sustain an order of 
 arrest under this clause of the code may be solely to 
 put the property beyond the reach of the owner, no 
 legal steps by the latter being contemplated by the 
 fraudulent actor. (Barnett v. Selling, 70 N. Y. 492; S. 
 C, 3 Abb. N. O. 83). Accordingly it was held in this 
 case that an order of arrest may be granted in an action 
 
490 
 
 PRACTICE. 
 
 to recover possession of a chattel, if the wrong-doer has 
 disposed of it to a hona fide purchaser or otherwise, so 
 that it cannot be taken on process against the defendant. 
 So, where the plaintiflf had been induced, by the false 
 and wrongful representations of the defendant, to sell 
 him goods, and the defendant soon thereafter, made an 
 assignment for the benefit of creditors, and the sheriff 
 was unable to find the chattels, an order of arrest is 
 justified. (Lippman v. Shapiro, 50 Super. 367). The 
 distinction, with reference to orders of arrest between 
 the actions of conversion and replevin must be borne 
 in mind; in both actions orders of iarrest may be ob- 
 tained, but in replevin the order will be granted only 
 where it is alleged that the property, or a part thereof, 
 has been concealed, removed or disposed of, so that it 
 cannot be found by the sheriff, while in conversion such 
 allegations are not necessary. (Hough v. Solmshee, 59 
 Hun, 148; Michaelis v. Tolime, 59 N. Y. Supp. 721). 
 To authorize an order of arrest in such a case, the facts 
 constituting the fraud must be alleged in the complaint ; 
 and if they are so alleged, they must be proven on the 
 trial, or else tihe plaintiff cannot recover. (Co. Civ. 
 Proc. § 549, subd. 2). It is necessary, also, to allege 
 facts showing that the chattel is of real value; in case 
 such facts are not set forth the court could hold the 
 defendant in nominal bail only, and orders of arrest 
 should not be granted under such circumstances. {Mor- 
 ton V. Chesley, 3 App. Div. 446). 
 
 In an action to recover money received, or to recover 
 property, or damages for the conversion or misapplica- 
 tion of property, where it is alleged in the complaint, 
 that the money was received, or the property was em- 
 bezzled, or fraudulently misapplied by a public officer, 
 or by an attorney, solicitor or counselor, or by an offi- 
 cer or agent of a corporation, or banking association, 
 in the course of his employment, or by a factor, agent, 
 broker, or other person, in a fiduciary capacity, the de- 
 fendant may be arrested. (Co. Civ. Proc. § 549, subd. 
 2). Thus, in an action to recover moneys received by a 
 factor and converted by him, a defendant may be ar- 
 rested {Wallace v. Castle, 14 Hun, 106), even though 
 
ARREST AND BAIL. 491 
 
 the factor is acting under a del credere commission. 
 (Ostell V. Brough, 24 How. Pr. 274). If he has actually 
 received the proceeds of the sale, he is liable to arrest 
 for a failure to pay them over; if, however, he has not 
 received such proceeds, and is sued upon his guaranty, 
 he is not liable to arrest. {Wallace v. Castle, supra). 
 So if, after the misappropriation by the agent of moneys 
 received in a fiduciary character, the principal settles 
 with him by taking his check and acceptance payable 
 in future, the principal's claim ceases to be one in the 
 nature of a wrong and becomes a debt. {Alliance Ins. 
 Co. V. Cleveland, 14 How. Pr. 408; Martin v. Lynch, 14 
 Misc. 47 ) . Where, however, the principal is induced to 
 make such an arrangement by means of false and fraudu- 
 lent statements of the agent, the former may repudiate 
 the settlement for fraud, and thereupon regains his right 
 to arrest the defendant on account of the. tortious cause 
 of action. {Spence v. Baldwin, 59 How. Pr. 375; affd. 
 22 Hun, 618). So, also, a draft upon the agent by the 
 principal, which draft is unpaid at maturity, does not 
 take away from the principal the right to arrest. {Kelly 
 V. Scripture 9 Hun, 283). Where the plaintiff brings 
 his action to recover money deposited with a broker, and 
 there was no fraud in the contracting, or incurring the 
 liability, tihe plaintiff cannot bring his cause of action 
 within subdivision four, of section five hundred and 
 forty-nine of the code, by allegations of fraud in the com- 
 plaint, in relation to subsequent transactions, which it 
 is claimed, resulted in a loss to the plaintiff. {Qraeffe 
 V. Currie, 52 Super. 554). A guardian, who takes pos- 
 session of the funds of his ward, and appropriates them 
 to his own use, is liable to arrest for not paying over the 
 funds, when legally called upon although he has the 
 permission of his ward. ( Wheelock v. Stewart, 28 How. 
 Pr. 89). In cases of an alleged misappropriation of 
 moneys, by a person acting in a fiduciary capacity, the 
 test is whether the specific moneys ought in good faith 
 to have been kept and paid over, or whether the agent 
 had a right to use them. {Liddell v. Paton, 7 Hun, 195 ; 
 appeal dismissed, 67 N. Y. 393 ) . For example, a factor 
 or broker mav well be entrusted with a certain fund of 
 
492 PRACTICE. 
 
 money to be used in carrying on a certain business for 
 his principal ; in such a case, it is clear that the proceeds 
 of his operations with the fund, in his hands at a given 
 time, have not been received in a fiduciary capacity and 
 that he cannot be arrested in an action for conversion 
 of such proceeds. (Decatur v. Ooodrich, 44 Hun, 3). 
 Where a broker has received money of another for a 
 specified purpose, and uses it for some other purpose, 
 he is liable to arrest. (Dubois v. Thompson, 25 How. 
 Pr. 417). One who receives money from plaintiff to pay 
 directly to a third party, and omits to do so, may be 
 arrested as well because he received the money as agent, 
 as because of his fiduciary capacity. (Burhans v. Casey, 
 4 Sand. TOT). So where plaintiff executes and delivers 
 to the defendant a bond and mortgage, for the defendant 
 to sell and deliver him (plaintiff) a certain proportion 
 of the proceeds, the defendant may be arrested in an 
 action to recover that proportion ; he received the money 
 in a fiduciary character. (Oibhs v. Hichborn, 12 Hun, 
 480). A banker who received a remittance from a cor- 
 respondent, with instructions to send a draft for the 
 amount to a third person, is liable to arrest if he appro- 
 priates it to his own use. (Johnson v. Whitman, 10 
 Abb. Pr. N. S. 111). A county treasurer is a public offi- 
 cer, and receives moneys of the county or the state in 
 a fiduciary capacity, and may be arrested if he converts 
 them to his own use. (People v. Clark, 45 How. Pr. 
 12). A party may be arrested for a refusal to pay over 
 moneys, received in a fiduciary capacity, although the 
 refusal be on the ground that a third person has inter- 
 posed some claim to the moneys. (Cross v. Graves, 19 
 Abb. Pr. 95). In the case of Segelken v. Meyer (94 N. 
 Y. 473, 488), the court says that the grounds of arrest 
 ispecified in subdivisions one and two of section five 
 hundred and fifty of the code of civil procedure (now 
 embraced in subdivisions two and four of section 
 549 of the code) have no proper place in the 
 complaint; but by chapter 672, of the laws of 
 1886, section five hundred and forty-nine of the 
 code, was so amended as to expressly provide in sub- 
 divisions two and four thereof, that the complaint 
 
ARREST AND BAIL. 493 
 
 should contain those grounds in order to authorize an 
 arrest ; and where such allegation is made, the plaintiff 
 cannot recover in the action, unless he proves the same. 
 on the trial of the action. It is sufficient to state facts 
 and circumstances showing that the money had been 
 received in a fiduciary capacity ; the complaint need not 
 expressly state that the money was received in a fidu- 
 ciary capacity. {Moffat v. Fulton, 132 N. Y. 507). The 
 cases of HiUis v. Bleckert (53 Hun, 499) and Geiiin v. 
 Sehireiik (62 Hun, 575) were expressly overruled. See, 
 however, the case of Heller v. Mangles (42 App. Div. 
 621), which follows the Genin case. The requirement 
 that "where such allegation is made, the plaintiff can- 
 not recover in the action, unless he proves the same on 
 the trial of the action," does not apply to a judgment 
 by default. {Steamship Richmond Hill Go. v. Beager, 
 31 App. Div. 288; appeal dismissed, 159 N. Y. 574; 
 mo. for re-argument denied, 160 N. Y. 312). 
 
 Under subdivision three of section five hundred and 
 forty-nine authorizing the granting of an order of arrest 
 in an action brought to recover money, funds or property 
 held or owned by the state, or for or in behalf of a public 
 or governmental interest, etc., which the defendant has, 
 without right, obtained, received, converted or disposed 
 of ; such an order is not authorized in an action brought 
 by the people to recover property, which is alleged to 
 have been forfeited to the state, by reason of the de- 
 fendant's having offered the same for sale or distribu- 
 tion, in violation of the provisions of the statutes against 
 lotteries. {People V. Phillips, 30 Hun, 553; appeal dis- 
 missed, 301 N. Y. 639) . Where the defendant and other 
 persons had acted together fraudulently to obtain and 
 divide among themselves a large amount of public 
 money ; it Avas held that the law imposed upon the de- 
 fendant individually a liability, coextensive with the 
 money wrongfully abstracted, although a portion of it 
 may have been received by other persons acting with 
 him. {People v. Tiveed, 5 Hun, 382 ; 63 N. Y. 202) . 
 
 Under subdivision four of section five hundred and 
 forty-nine, in order to subject the defendant, in an ac- 
 tion upon contract express or implied to arrest for fraud 
 
494 PRACTICE. 
 
 in creating or incurring the liability sought to be en- 
 forced, the facts showing such fraud on his part, must 
 now be alleged in the complaint. (Hecht v. Levy, 20 
 Hun, 53). The fraud must be in "contracting or in- 
 curring the liability," not in an ostensible performance 
 of the contract. {Mooriey v. La FoUette, 21 App. Div. 
 510). The order cannot be granted under this subdi- 
 vision unless a complaint is one of the papers handed 
 upon the application; the language of the subdivision: 
 "Where it is alleged in the complaint," presupposes 
 the existence of a complaint. (Engelhardt Co. v. Ben- 
 jamin, 2 App. Div. 9). Allegations in a complaint in 
 an action to recover money lent that the defendant 
 falsely and fraudulently made certain representations 
 for the purpose of obtaining the money from the plain- 
 tiffs and that the representations were, in fact, false, 
 are sufficient to comply with the requiremerits of this 
 section. (Elwell v. Russell, 29 App. Div. 436). The 
 provision, that "Where siich allegation is made, the 
 plaintiff cannot recover unless he proves the fraud on 
 the trial of the action," has no application to cases 
 where no arrest is made, or sought; in such cases the 
 mere fact that the plaintiff alleges fraud does not re- 
 quire him to establish such fact to recover upon the 
 merits of an action which is completely established in- 
 dependently of the fraud. {McGuire v. Bausher, 52 
 App. Div. 276 ) . A verified complaint will be considered 
 as an affidavit for the purpose of procuring the order. 
 (Co. Civ. Proc. § 3343, subd. 11). To constitute a dis- 
 position of property by a debtor with intent to defraud 
 his creditors, the thing disposed of must be of value, 
 out of which the creditor could have made a portion of 
 his claim; and must have been transferred with intent 
 to defraud. {Hoyt v. Godfrey, 88 N. Y. 669). In an 
 action upon contract against partners, to justify the 
 arrest of any defendant, it is necessary to prove that he 
 actually and individually participated in the fraud, 
 which is alleged to be connected with the contracting of 
 the liability. (Bacon v. Kendall, 49 Super. 123; Scott 
 v. Reed, 2 How. Pr. N. S. 521). A fraudulent disposi- 
 tion of his property by a debtor with intent to defraud 
 
AREEST AND BAIL. 495 
 
 his creditors, avoids a credit upon which goods were 
 previously or subsequently sold to him, and is a proper 
 case for an order of arest {Arnold v. Shapiro, 29 
 Hun, 478), provided such fraudulent disposition was 
 made prior to, or was contemplated at the time of ob- 
 taining the credit. {Forster v. Gallinger, 62 Hun, 439). 
 Formerly under this subdivision, where a husband with- 
 out cause abandoned his wife, and fraudulently dis- 
 posed of his property, so that it could not be appro- 
 priated to her support, he might be arrested in an action 
 brought by one who has expended money in supporting 
 the wife {Tunstall v. Winton, 27 Hun, 264) ; but this 
 decision Avas overruled by the court of appeals without 
 opinion, all the judges concurring. (90N. Y. 653). An 
 actual intent to defraud, clearly apparent from the 
 facts, is essential to sustain the validity of the order 
 of arrest, and the burden of proof is upon the party 
 alleging the fraudulent intent. (Kessler v. Levy, 11 
 Misc. 275; affd. without op., 147 N. Y. 700). For ex- 
 ample an intent to defraud will not be imputed to a pur- 
 chaser on credit, merely from the fact that he was to 
 his own knowledge insolvent, at the time of the pur- 
 chase, and that he omitted to disclose such condition 
 to his vendor; this must be accompanied by facts dis- 
 closing an intent to acquire the property without pay- 
 ing for it. {Morris v. Talcott, 96 N. Y. 100) . Of course, 
 each case rests -on its own facts as to whether enough 
 facts are shown to sustain the burden imposed upon 
 the party alleging fraud. In the case of bankers greater 
 confidence is asked, and required, and a more rigid re- 
 sponsibility for good faith; so a banker who is to his 
 own knowledge hopelessly insolvent, will be held to have 
 intended the inevitable consequences of his act, i. e., 
 to cheat and defraud all persons whose money he re- 
 ceives. {Anonymous, [Boebling v. Duncan] 67 N. Y. 
 598). 
 
 Sec. 2. Where Right Depends Partly Upon Extrinsic Facts. 
 
 A defendant may also be arrested in an action, wherein 
 the judgment demanded requires the performance of 
 an act, the neglect or refusal to perform which would 
 
496 
 
 PRACTICE. 
 
 be punishable by the court as a contempt, where the 
 defendant is not a resident of the state, or being a resi- 
 dent, is about to depart therefrom, by reason of which 
 non-residence or departure, there is danger that a judg- 
 ment or an order requiring the performance of the act 
 will be rendered ineffectual. (Co. Civ. Proc. § 550). 
 By chapter 672, Laws of 1886, tlie above section, which 
 formerly was subdivision four thereof, was all that was 
 retained in that section; the other subdivisions being 
 embodied in section five hundred and forty-nine. 
 
 This section is a substitute for the old writ of ne exeat, 
 which was abolished by sectioii five hundred and forty- 
 eight of the code of civil procedure, putting an end to 
 the much mooted question whether the section one hun- 
 dred and seventy-eight of the code of procedure abol- 
 ished the writ or not ; so a reference to the decisions on 
 that question will not be of any practical value. The 
 only object for which a person is detained by ne exeat, 
 is that the person may be present at the time a decree is 
 pronounced, to respond to it. If the person of the de- 
 fendant cannot be made to respond to the decree, it is 
 worse than idle to keep him. (Gleason v. Bisby, 
 Clarke's Ch. 551). To warrant the issuing of an order 
 of arrest in the nature of ne exeat, there must be a debt 
 or duty, existing at the time, and this must generally 
 be an equitable debt. (Id.). It is always in the dis- 
 cretion of the court whether the order shall be granted 
 or not (Co. Civ. Proc. § 551) ; such an order can be 
 granted only by the court (Id.) ; and if there is any 
 doubt as to the liability of the defendant, the order of 
 arrest should not be granted {Allen v. Hyde, 2 Abb. N. 
 C. 197) ; nor should it be granted on an ordinary legal 
 demand. (Id.). An order of arrest may issue against 
 a foreigner, or against a citizen of another state, and 
 on demands arising abroad. {WoocUvard v. Bcliatxell, 
 3 Johns. Ch. 412 ) . A woman may be arrested under this 
 section, where a proper case is made out against her. 
 (Co. Civ. Proc. § 553). The real necessity for the writ 
 of ne exeat, or for its substitute, exists when the judg- 
 ment may require the defendant to do some personal 
 act, such as to execute a deed, or tlie like, that he may 
 
ARREST AND BAIL. 497 
 
 "be present to obey. {Broa-iiell v. Al^in, 6 Hun, 378). 
 Where it is perfectly clear that specific performance 
 will be decreed, an order will be granted. {Broivn v. 
 Haff, 5 Paige 235). In the case last cited, it was fur- 
 ther held, in an action for a specific performance of a 
 contract against a vendee, that before a ne exeat would 
 be granted, it must appear that the plaintiff must show 
 affirmatively that he is able to make a good title of the 
 premises agreed to be sold. The writ of ne exeat was 
 confined, in suits for specific performance, to those 
 brought against the vendee, the principle being that the 
 writ was in the nature of equitable bail which could 
 be ascertained in the case of the vendee by reason of 
 the purchase price, but which could not be fixed where 
 the action is against the vendor. {Coicdin v. Cram, 3 
 Edw. Ch. 231). The rule and its reason survive the en- 
 actment of section 550 of the code of civil procedure. 
 {Gordon v. Fox, 18 Civ. Proc. Kep. 291). A defendant' 
 may be arrested in an action for divorce and alimony. 
 (Forrest v. Forrest, 5 How. Pr. 125; BouciruuJt v. 
 Boucicault, 21 Hun, 431, S. 0. 59 How. Pr. 131). In 
 the case last cited, the court says, that in an action for 
 divorce, the court may require that the defendant give 
 reasonable security for the maintenance of his children, 
 and for any allowance awarded to his wife ; and if such 
 a judgment were rendered, and the defendant refused 
 to perform the act, he may be punished by the court 
 as for a contempt ; as the requirement would be a lawful 
 mandate, and the refusal of the defendant to obey 
 would be a contempt, and he may properly be arrested. 
 
^°0 PRACTICE. 
 
 ARTICLE II. 
 
 PERSONS LIABLE TO ARREST. 
 
 SECTION. 
 
 1. Who may be arrested. 
 
 2. Who are privileged from arrest. 
 
 Sec. 1. Who May Be Arrested. 
 
 Tlie provisions of the code in relation to arrest, should 
 ■be construed strictly in favor of the liberty of the citi- 
 zen. {Hathaway v. Johnson, 55 N. Y. 93). A personal 
 liability is necessary as a foundation for the order, and 
 a principal is not liable to arrest for the fraud of his 
 agent, without a personal participation therein, or a 
 ratification of the fraudulent act. (Id.). The recovery 
 of judgment in a court, not of the state, for the same 
 
 , cause of action ; or, where the action is founded upon 
 fraud or deceit, for the price or value of the property 
 obtained thereby; does not affect the right of the plain- 
 tiff to arrest the defendant, as prescribed in title one of 
 chapter seven of the code. (Co. Civ. Proc. § 552). The 
 better procedure under this section is to bring the ac- 
 tion on the foreign judgment instead of on the original 
 
 ' cause of action ; the code provision simply keeps alive the 
 right to arrest, which was an incident to the original 
 cause of action [Baxter v. Drake, 85 N. Y. 502), but 
 it is permissible to sue on such original cause of action, 
 and, of course, secure an order of arrest. ( Pitt v. Freed, 
 28 N. Y. Supp. 863). It is not thought necessary to 
 repeat in this article at length, the persons who may be 
 arrested, as the subject has been substantially gone over 
 under article one, of this chapter, which treats of the 
 causes for which a defendant may be arrested. Suffice 
 it to say here, that any person whose acts bring him 
 within the provisions of sections five hundred and forty- 
 nine and five hundred and fifty of the code of civil pro- 
 cedure, may be arrested upon a proper application being 
 made, unless by law he is privileged or exempt from 
 arrest on civil process. So it will be seen that it be- 
 comes more important to know who may not be arrested, 
 even though coming within those sections of the code 
 
ARREST AND BAIL. 499 
 
 authorizing tlie arrest of the defendant, and that sub- 
 ject will be treated in the next section, as follows : 
 
 Sec. 2. Who Are Privileged from Arrest. 
 
 A woman cannot be arrested as prescribed in title one, 
 of chapter seven, of the code of civil procedure except in 
 a case where the order can be granted only by the court ; 
 or where it appears that the action is to recover dam- 
 ages for a wilful injury to person, character, or prop- 
 erty. (Co. Civ. Proc. § 553). By this section, a woman 
 may be arrested, when the order of arrest is to keep 
 her within the jurisdiction of the court, as by writ of 
 ■ne exeat. (Neville v. Neville, 22 How. Pr. 500). The 
 intention of the last clause of section five hundred and 
 fifty-tliree above cited, is to exempt women from arrest 
 in all cases, except where the injuries specified in the 
 code are affirmatively shown to be willful; and to make 
 them subject to arrest, when the injury is attended 
 with that element. (Duncan v. Katen, 6 Hun, 1; affd. 
 without op., 64 N. Y. 625). The injury need not be to 
 the thing simply, but to the owner's right in and to the 
 thing. (Id.). It was formerly held that a married 
 woman was exempt from arrest in all cases, proceeding 
 on the theory that her personality was merged in that of 
 her husband ; but since the reason of the rule has ceased, 
 and a married woman may be sued in all cases as though 
 she were single, it is held that an order of arrest may 
 be issTied against any woman, whether married or single, 
 in an action to recover damages for a wilful injury to 
 person, character, or property; and that a married 
 woman is not entitled to have the order vacated merely 
 on the ground that she is married. (Muser v. Miller, 
 12 Abb. N. 0. 305). 
 
 A lunatic, an idiot, or an infant under the age of 
 fourteen years, if arrested, may be discharged from 
 arrest as a privileged person, in the discretion of the 
 court. The application for his discharge may be made, 
 in his behalf, by a relative, or by any other person, 
 whom the court or judge permits to represent him for the 
 purpose. (Co. Civ. Proc. § 554). In the case of an 
 infant, who makes false statements as to his property, 
 
50Q PRACTICE. 
 
 when buying goods other than necessaries, he cannot 
 be made liable to arrest by changing the form of action 
 from one on contract, and bringing it in fraud {Taylor 
 Y. Van Kearen, 54 How. Pr. 25) ; for even if the state- 
 ments made were true, still, as the contract would be 
 void by reason of infancy, the fraudulent or false state- 
 ments wrought no injury to the plaintiff; and in order 
 to warrant an arrest the statement must injure. (Id.). 
 As to the question -flhether an infant is liable, who ob- 
 tains goods by falsely and fraudulently representing 
 himself to be of full age, there is some conflict of de- 
 cisions. The case of Brown v. McOune (5 Sand. 234), 
 holds that an infant is not liable; but the later case of 
 Eckstein v. Frank ( 1 Daly, 334 ) , holds that he is liable ; 
 and further that the case of Brown v. McCune {supra), 
 had been distinctly repudiated. To the same effect 
 also see Wallace v. Morss (5 Hill, 391), and Sclinne- 
 mann v. Paradise (46 How. Pr. 426) . The entire weight 
 of authority is in favor of holding an infant liable in 
 such cases. 
 
 A person prosecuted in a representative capacity, as 
 heir, executor, administrator, legatee, devisee, next- 
 of-kin, assignee, or trustee, cannot be arrested, as pre- 
 scribed in title one, chapter seven, of the code of civil 
 procedure, except for his personal act. (Co. Civ. Proc. 
 § 555). 
 
 Title one of chapter seven, of the code does not abridge 
 or affect a privilege from arrest given by law, or a right 
 of action for a breach thereof. A privileged person is 
 entitled to be discharged from arrest, where other pro- 
 vision is not made therefor by law by the court or a judge 
 thereof; or by the county judge of the county where 
 the arrest was made. The order must be made upon 
 proof by affidavit, of the facts entitling the applicant 
 to the discharge; and the arrest and discharge are not 
 a bar to a new arrest, after the privilege has ceased. 
 The court or judge may make the order without notice, 
 or may require notice to be given to the sheriff or to 
 the plaintiff, or to both. (Co. Civ. Proc. § 564) . Under 
 this section the following persons may be specifically 
 
ARREST AND BAIL. 501 
 
 mentioned as privileged from arrest, or entitled to be 
 discharged if arrested: 
 
 Members of either branch of congress are privileged 
 from arrest, during their atendance at the session of 
 their respective houses, and in going to and returning 
 from the same; except in cases of treason, felony and 
 breach of the peace. (U. S. Const., Art. 1, § 6). 
 
 All persons in the public service are exempt, as a 
 matter of policy, from arrest upon civil process, while 
 thus engaged. ( United ^'^tates v. Kirby, 7 Wall. 482) . 
 
 A member of the legislature shall be privileged from 
 arrest in a civil action or proceeding other than for a 
 forfeiture or breach of trust in public office or employ- 
 ment, while attending upon its session, and for fourteen 
 days before and after each session, or while absent for 
 not more than fourteen days during the session, with 
 the leave of the house of which he is a member. 
 
 An officer of either house shall be privileged from 
 arrest in such a civil action or proceeding while in ac- 
 tual attendance upon the house. Either house shall 
 have the power to discharge from arrest any of its mem- 
 bers or officers arrested in violation of his privilege from 
 arrest. (The Legislative Law, § 2). For a discussion 
 of the question of the privilege of members of the leg- 
 islature, see Matter of Potter & French (55 Barb. 625). 
 
 Neither the superintendent of public works nor any 
 assistant superintendent or deputy, superintendent of 
 repairs, lock-keeper or other public officer employed 
 upon or in charge of the canals, shall be liable to arrest 
 or to be held to bail in any civil action for any act done 
 or omitted to be done by him in the exercise of his offi- 
 cial duties. (The Canal Law, § 31). 
 
 No person belonging to the military force shall be 
 arrested on any civil process while going to, remaining 
 at, or returning from any place at which he may be re- 
 quired to attend for military duty. (The Military 
 Code, § 148). 
 
 Although this statute applies in terms only to the 
 militia of this state, it has been held to apply to a mem- 
 ber of a regiment of the state militia, which has been 
 
502 
 
 PRACTICE. 
 
 mustered into the service of the United States. {People 
 V. Campbell, 40 N. Y. 133). 
 
 An enlisted man of the United States, during his term 
 of service, shall not be arrested on mesne process, unless 
 the debt was contracted before his enlistment, and 
 amounted to twenty dollars when first contracted. 
 (Kev. Stat, of the U. S., § 1237). 
 
 Marines shall be exempt, while enlisted in said serv- 
 ice, from all personal arrest for debt or contract. (Kev. 
 Stat, of the U. S., § 1610). 
 
 Foreign ministers and their domestics are privileged 
 from arrest. (Rev. Stat, of the U. S., § 4063). That 
 section does not apply to any case, where the person 
 against whom the process is issued is a citizen or in- 
 habitant of the United States, in the service of a public 
 minister, and the process is founded upon debt con- 
 tracted before he entered such service; nor to any case, 
 where the person against whom the process is issued rs. 
 a domestic servant of a public minister, unless the name, 
 before the issuing thereof, has been registered in the 
 department of state, and transmitted to and posted by 
 the marshal of the District of Columbia in some public 
 place in his office. (Id. § 4065). 
 
 A person duly and in good faith subpoenaed or ordered 
 to attend, for the purpose of being examined, in a case 
 where his attendance may be lawfully enforced by at- 
 tachment, or by commitment, is privileged from arrest 
 in a civil action or special proceeding while going to,, 
 remaining at, or returning from the place where he is 
 required to attend. (Co. Civ. Proc. § 860). A non- 
 resident witness attending as a witness in this state, is 
 exempt from the service of process. {Person r. Grier, 
 66 N. Y. 124) . To the same effect see the case of Frishle 
 V. Young (11 Hun, 474), which case held that a resident 
 witness was exempt only from arrest; but that a non- 
 resident witness was exempt both from arrest and the 
 service of process; but the officer arresting him will not 
 be liable, unless he claims his privilege, and makes affi- 
 davit as required by section eight hundred and sixty- 
 four of the code of procedure. This privilege of wit- 
 nesses from arrest extends to hearings before arbitrators 
 
ARREST AND BAIL. 503 
 
 and referees {Sanford v. Chase, 3 Cow. 381), and to the 
 taking of testimony under section 863 of the revised 
 statutes of the United States. {Parker v. Marco, 136 N. 
 Y. 589). Where a witness is in voluntary attendance, 
 he is not so privileged, unless he is a non-resident, or 
 a party. {Hardenhrook's Vase, SAbb. Pr. 416) . 
 
 Parties to actions are exempt from arrest in civil ac- 
 tions while going to, remaining at, or returning from, 
 the court or place where the trial or the judicial pro- 
 ceeding is being conducted {Salhingcr v. Adler, 2 Robt. 
 704; Mackaij v. Lcicis, 7 Hun, 83) ; or before any lawful 
 tribunal {Parker y. Marco, 136 N. Y. 589), as an arbitra- 
 tion {Saitford V. Chase, 3 Cow. 381), or before referees. 
 {Clark V. Grant, 2 Wend. 257). 
 
 No person on the police force of New York city, while 
 actually on duty shall be liable to arrest on civil process. 
 (Greater New York Charter, § 341). Under this provi- 
 sion, it is held that the exemption is only intended to 
 prevent the arrest of an officer, while actually discharg- 
 ing his public duty ; and that he could not be deemed to 
 be always on duty, so as never to be liable to arrest 
 while holding the office. {Hart v. Kennedy, 15 Abb. Pr. 
 , 290). An officer of a court of record, appointed or 
 elected pursuant to law, is privileged from arrest, during 
 the actual sitting, which he is required to attend, of a 
 term of the court of which he is an officer, and no 
 longer; but an attorney or counselor is not thus privi- 
 leged, unless he is employed in a cause, to be heard at 
 that term. (Co. Civ. Proc. § 565). Officers of the court 
 formerly were exempt, during the actual sitting of 
 such court, unless sued with any other person; but 
 the clause creating the exception was omitted in the code 
 of civil procedure; and the former rule only exempting 
 attorneys and counselors, when employed in some cause 
 pending, and then to be heard in such court. {Cole v. 
 McClellan, 4 Hill. 59). 
 
 A prisoner, or the officer having him in custody, is 
 not liable to arrest, in any civil action or special pro- 
 ceeding, while passing through another county. (Co. 
 Civ. Proc. § 119). A person under arrest on a justice's 
 warrant, who has been arrested in one county on a 
 
504 PRACTICE. 
 
 criminal warrant, and who is being conveyed through 
 another county, to the place where he is to be itaken 
 according to the command of the process, is privileged 
 from ai'rest in civil process, in the county through which 
 he passes. {Lofe y. Humphre'i/, 9 Wend. 204:). Where 
 a defendant was arrested on a pretended criminal charge, 
 in order to detain him until he could be arrested in a 
 civil action, on his being so arrested, the court set aside 
 the order of arrest. {Benninghoff v. Oswell, 37 How. 
 Pr. 235 ) . A person convicted and fined upon a criminal 
 charge, is not privileged from arrest in a civil action for 
 a reasonable time to return home after the criminal 
 trial. {Lucas v. Albee, 1 Den. 666). A party is not 
 liable to arrest in this country for acts done by him 
 as sovereign of another nation. {Hatch v. Baez, 7 Hun, 
 596). 
 
 A person who is enticed into the state by any sub- 
 terfuge, scheme or pretense, which is not warranted by 
 law, for the purpose of arresting him, is privileged 
 from such arrest. {Smith v. ileijos, 1 T. & C. 665). 
 In a later case, where a defendant was extradited from 
 another state on an indictment for grand larceny, and 
 had been tried here and acquitted, he was permitted to 
 be arrested at the suit of the party who procured the 
 indictment and extradition, in a civil action here, where 
 it did not appear that there was any bad faith in caus- 
 ing the extradition. {Browning v. Ahrams, 51 How. 
 Pr. 172; Adriance v. Lagrave, 59 N. Y. 110; see, how- 
 over. Matter of Fcinitz, 23 Abb. N. C. 69). The exemp- 
 tion from arrest is a personal privilege, and may be 
 waived, and it is waived when the party or witness fails 
 to claim it within a reasonable time, or makes a gen- 
 eral appearance in the action. {SteArart v. Howard, 15 
 Barb. 26 ; Petrie v. Fitzgerald, 1 Daly, 401 ; Farmer v. 
 Rohhins, 47 How. Pr. 415) ; but giving bail is not a 
 waiver of his right to be discharged. ( Machay v. Lewis, 
 7 Hun, 83). 
 
 The court has power, independent of the statute, to 
 protect its officers, suitors and witnesses from molesta- 
 tion by means of jjrocess of the court. {Lamlcin v. 
 l(8ftorA;e2/, 7Hun, 479). 
 
AEEEST AND BAIL. 605 
 
 ARTICLE HI. 
 
 ORDER OF ARREST. 
 
 SECTION. 
 
 1. Papers necessary to obtain the order. 
 
 2. When and by whom granted. 
 
 3. Contents of the order. 
 
 4. How vacated or modified. 
 
 Sec. 1. Papers Necessary to Obtain the Order. 
 
 Subdivision 1. — The Affidavit. 
 
 The order may be granted, in a case specified in sec- 
 tion five liundred and forty-nine of tlie code of civil 
 procedure, where it appears by the affidavit of the 
 plaintiff or any other person, that a sufficient cause of 
 action exists against the defendant, as prescribed in 
 that section. It may be granted, in a case specified in 
 section five hundred and fifty of the code of civil pro- 
 cedure, upon the like proof that a sufficient cause of 
 action exists against the defendant, as prescribed in 
 that section, and of the other matter, extrinsic to the 
 cause of action, specified in that section. The affidavit 
 may also contain any statement, tending to determine 
 the amount of bail to be required. (Co. Civ. Proc. § 
 557). It was formerly held that, an order could not be 
 procured on the pleadings, and that an affidavit was 
 necessary {Gorwin v. Freeland, 6 N. Y. 560) ; but by 
 the code of civil procedure (§ 3343, subd. 11) the 
 word "affidavit" includes a verified pleading in an ac- 
 tion, or a verified petition or answer in a special pro- 
 ceeding. So, a sworn complaint may be considered as 
 an affidavit ; and if the complaint and affidavit together 
 are sufficient to warrant the order, although the affi- 
 davit alone would not be sufficient, the order will be 
 sustained. {Palmer y. Hussey,b^ 'S.Y. %^1). To give 
 the court jurisdiction to issue an order of arrest against 
 a person, the facts relied upon must be presented by 
 the affidavit of the plaintiff, or some other person, and 
 the affidavit required is a statement or declaration, re- 
 duced to writing, and verified before an officer, having 
 
506 PRACTICE. 
 
 authority to administer an oath of affirmation. (Bowen- 
 Y. Stiltcell, 9 Civ. Proc. Rep. 277). It would seem that 
 a complaint need not necessarily be one of the papers 
 upon which an order of arrest is granted, save in those 
 instances where the code of civil procedure provides 
 for the arrest only where certain facts "are alleged in. 
 the complaint;" it is a natural inference that the law- 
 makers intended a complaint to be presented to the 
 court or judge, of whom the order is asked, before the 
 order should issue, in such cases. {Engelhardt Co. v. 
 Benjam'm, 2 App. Div. 91; Lanvence v. FoxiveU, 4 Civ. 
 Proc. Eep. 451). In arrests for causes as to which no 
 such statutory provision is made, it is apprehended 
 that the mere affidavit is sufficient. If there be both 
 a complaint and affidavit, they must be consistent with 
 each other {Wicker v. Harmon, 21 How. Pr. 462) ; and 
 if there is any variance, the affidavit is to control. 
 {Dreyfus v. Otis, 54 How. Pr. 405. The complaint may 
 be used in furtherance of the affidavit, in a case where 
 the affidavit alone, would not be sufficient to warrant 
 the order of arrest. {Hatch v. Ransom, 4 Law Bull. 
 5). The affidavit, however, must be in accordance with, 
 the requirements of law; so, where an affidavit upon 
 which an order of arrest is granted, was verified out 
 of the state, and the certificate to the notary's jurat 
 does not conform to section eight hundred and forty- 
 four of the code, the affidavit is a nullity, and the order 
 should be vacated; the defect is jurisdictional. {Har- 
 ris V. Durkce, 5 Civ. Proc. Rep. 376). The omission of 
 the title of the action from an affidavit for an order of 
 arrest does not impair its effect, provided it intelli- 
 gibly refers to the action. {Lamkin v. Oppciilicim, 
 86 Hun, 27). Substantial compliance with the statute 
 is held sufficient. {Ross v. Wigg, 34 Hun, 192). The 
 statement of facts required by the code, should be made 
 with particularity; and it is not enough to state the 
 facts generally, or in the language of the statute. 
 {Draper v. Beers, 17 Abb. Pr. 163). The affidavit must 
 generally be positive, and make oiit a prima facie case 
 against the -defendant, before the order should be 
 granted. {Griswold v. Sweet, 49 How. Pr. 171). The 
 
ARKEST AND BAIL. 507 
 
 judge must be satisfied judicially from the affidavits 
 that a cause of action exists, and that it is a proper 
 cause for an arrest. {Crandall v. Bryan, 15 How. Pr. 
 48). An affidavit upon information and belief is gen- 
 erally clearly insufficient; but some of the material 
 facts may be stated upon information and belief, where 
 the affidavit states the nature, the quality, and the 
 means of the information, so that the judge can be able 
 to see that this belief is well founded. (Dreyfus v. Otis, 
 54 How. Pr. 405; Ammoii, v. Kellar, 21 Misc. 442). An 
 affidavit wholly on information and belief, stating the 
 sources of affiant's information and the grounds of his 
 belief to be a certain cablegi'am, is insufficient where 
 the message does not show what knowledge of the facts 
 the sender had. (Banque Agricole v. Ungureaii, 53 App. 
 Div. 254 ) . The affidavit should state correctly what is 
 alleged on information, and what on deponent's own 
 knowledge. (Moore v. Calvert, 9 How. Pr. 474). Where 
 the order is asked on affidavits made on information 
 and belief, it should be shown why affidavits by persons 
 having actual knowledge cannot be produced. (Martin 
 V. Gross, 56 N. Y. Superior Ct. Rep. 512). If this is 
 not shown the order should not be granted. (Ricliters 
 V. Uttell, 21 Wk. Dig. 133). Affidavits made as of 
 personal knowledge are not sufficient, where the court 
 can see that the affiant had not such knowledge. (Fin- 
 lay V. Castroverde, 68 Hun, 59). Legal conclusions 
 arising from the facts stated, need not be stated (Hitch- 
 cock V. Peterson, 14 Hun, 389 ) ; nor need a fact be stated 
 which can be clearly inferred from the allegations made 
 in the affidavit. (Meyer v. Belden, 8 Wk. Dig. 344). 
 One false representation is enough to sustain an arrest, 
 if of a character to materially influence the giving 
 credit, and if it was made with the intention to deceive 
 (Wannemacher v. Davis, 2 Sweeny, 272) ; but that mis- 
 representation should be specifically stated, and the 
 respects wherein it is false, particularized. (Cum- 
 mings v. Wooley, 16 Abb. Pr. 297, note). When the 
 information is derived from written instruments, the 
 papers themselves, or authenticated copies thereof 
 should be furnished to the court, if they can be procured. 
 
508 PRACTICE. 
 
 {DeWeerth v. Feldner, 16 Abb. Pr. 295). In an action 
 for malicious prosecution, an affidavit is insufficient 
 when it states 'Only in general terms the existence of 
 malice, and want of probable cause ; and facts should be 
 set forth. {Grimes v. Davison, 2 Abb. N. C. 457). 
 Where the plaintiff in such an action states in his affi- 
 davit, that the complaint in such former action was im- 
 mediately dismissed by the magistrate, he shows a prima 
 facie case. (Oould v. Sherman, 10 Abb. Pr. 411). In an 
 action for deceit, where the ground of recovery is fraud, 
 if the plaintiff swears to a good cause of action, he is 
 entitled to the order of arrest. {Ely v. Mumford, 47 
 Barb. 629). Where the facts authorizing the arrest 
 are stated positively, not on information and belief, and 
 are not such that the affiant could not have sufficient 
 knowledge to verify, and these facts are not denied after 
 the defendant had an opportunity to do so, they will 
 justify an arrest; and an appellate court, sitting in 
 review of the order, may take the facts as stated. ( Pier- 
 son V. Freeman, 77 N. Y. 589). In an action to recover 
 a chattel, it must appear that a cause of action exists, 
 and that it comes within subdivision two of section five 
 hundred and forty-nine, of the code of civil procedure 
 or else an order of arrest will not be authorized. ( Midler 
 V. Ferrin, 14 Abb. Pr. N. S. 95) . If the facts are such in 
 an action for conversion that if they remain uncontra- 
 dicted on the trial, the plaintiff would be entitled to 
 go to the jury on the question of conversion, an order 
 of arrest will be sustained. {Woodbridge v. Kelson, 13 
 Hun, 390). Formerly, putting in and perfecting bail 
 waived all defects in the affidavit {Steicart v. Howard, 
 15 Barb. 26) ; but perfecting bail is no longer a waiver 
 of such defects. {Knickerhoclccr L. Ins. Co. v. Eccle- 
 sine, 34 Super, 76) . The defendant has until final judg- 
 ment to move to vacate the order ; and in any case he has 
 twenty days after the arrest to make such application. 
 (Co. Civ. Proc. § 567). A failure to state that no pre- 
 vious application for the order has been made, as re- 
 quired by Rule 25, does not compel the court to refuse 
 to grant the order, or to vacate it after it has been 
 granted. {Bean v. Tonnelle, 24 Hun, 353). The prac- 
 
ARREST AND BAIL. 509 
 
 tice of presenting a single set of affidavits, entitled in 
 several actions by different plaintiffs against the same 
 defendants, for the purpose of obtaining separate orders 
 of arrest, is not to be encouraged. {Whitney v. Hoff- 
 stadt, 21 Wk. Dig. 197). 
 
 Subdivision 2. — The Undertaking. 
 
 Except where the action is brought for a cause speci- 
 fied in subdivision three of section five hundred and 
 forty-nine of the «ode of civil procedure, or in a case 
 where it is specially prescribed by law that security 
 may be dispensed with, or the security to be given is 
 specially regulated by law", the judge, before he grants 
 the order, must require a written undertaking on the 
 part of the plaintiff, with two sufficient sureties, to the 
 effect that, if the defendant recovers judgment, or if it 
 is finally decided that the plaintiff was not entitled to 
 the order of arrest, the plaintiff Avill pay all costs which 
 may be awarded to the defendant, and all damages 
 which he may sustain by reason of the arrest, not exceed- 
 ing the sum specified in the undertaking, which must 
 be at least equal to one-tenth of the amount of bail re- 
 quired by the order, and not less than two hundred and 
 fifty dollars. (Co. Civ. Proc. § 559). The mere fact 
 that the undertaking is in too small a sum, will not 
 justify vacating the order, but a sufficient undertaking 
 may be ordered to be filed, as a condition of affirming 
 the order. {Danenbanm v. Manclelbanm, 16 Wk. Dig. 
 502; affd. 94 N. Y. 648). The sureties must make affi- 
 davit to the undertaking, in the form required by sec- 
 tion eight hundred and twelve of the code of civil pro- 
 cedure, and if they neglect to swear severally, that they 
 are each worth the amount specified in the affidavit, 
 exclusive of property exempt by law from levy and sale 
 under execution, the affidavit is defective, and the order 
 will be set aside. ( Thompson v. Friedberg, 54 How. Pr. 
 519). The giving of an undertaking is an absolute 
 necessity, where required, to confer jurisdiction upon 
 the judge to grant the order, and without it the order 
 is void. (Neivell v. Doran, 21 How. Pr. 427). Any in- 
 formality in the execution of the undertaking may be 
 
510 PRACTICE. 
 
 cured by amendment nunc pro tunc in the discretion 
 of the court {Bellinger v. Gardiner, 12 How. Pr. 381) ; 
 the omission of the acknowledgment, if the undertaking 
 be otherwise sufficient, may be amended by leave of the 
 court {Conklin v. Dutclier, 5 How. Pr. 386), and any 
 defect in form, or deficiency in amount, may be amended 
 on motion to vacate the order of arrest, or on appeal, by 
 the substitution of a proper undertaking on terms. 
 {Bauer v. 8chevitch, 11 Civ. Proc. Rep. 433). It was 
 held in Bondy v. Collier (13 Misc. 15) that the court 
 had no power to amend an undertaking defective in that 
 its accompanying affidavit did not show the sureties to 
 be residents or freeholders or householders; this de- 
 cision was put upon the ground that, while the court 
 could amend an undertaking, it could not order a new 
 undertaking to be given and still continue the existence 
 of the order of arrest. It is apprehended that this case 
 does not represent the law. By virtue of section 730 
 of the code of civil procedure there seems to be ample 
 authority to correct any such errors as appeared in the 
 Bondy case, although the amendment is accomplished 
 by the execution of a new undertaking. {Irwin v. Judd, 
 20 Hun, 562; Corn Ex. Bl: v. Blye, io2 N. Y. 305, 308; 
 Bauer v. Bchevitch, 11 Civ. Proc. Eep. 433). A de- 
 fendant, who has procured the order of arrest to be 
 vacated, may bring an action on the undertaking given 
 on obtaining the order of arrest in accordance with sec- 
 tion 559, without waiting for final judgment. {Erause 
 V. Rutherford, 45 App. Div. 132) ; and the defendant 
 need not obtain leave of the court, under section 814 
 of the code of civil procedure, to bring the action. (Id.). 
 In such an action the rule of damages is not the same 
 as in a case of false imprisonment ; such an undertaking 
 is not to provide for a personal wrong or injury, but is 
 a paper designated to cover taxable costs to be awarded 
 in the action, and such other legitimate damages as 
 floM^ from the arrest, such as counsel fees and moneys 
 expended to vacate the arrest and loss of time occa- 
 sioned the arrested party in getting bail and in moving 
 for his discharge. {Bamberger v. Kalin, 43 Hun, 411). 
 It has been held, by the general term of the court of 
 
ARREST AND BAIL. 511 
 
 common pleas of New York city and county, that the 
 undertaking does not cover all the costs of the action, 
 but only such costs awarded to the defendant as accrue 
 directly from the arrest, or in proceedings in the ac- 
 tion, or otherwise, necessitated by the arrest. {Stitoiitis 
 T. Xortlb, 13 N. Y. Supp. 557; S. C. on another appeal, 
 
 1 Misc. 298; Sperri/ v. Hellinan, 13 N. Y. Supp. 899; 
 motion for re-argument denied, 16 N. Y. Supp. 954). 
 It seems that this rule is too narrow, however, and that 
 all taxable costs should be recovered in such a suit in 
 accordance with the dictum in Bamberger v. Kahn 
 
 (suiva), which was quoted with approval in Krause 
 V. Rutherford (supra). See also Spang v. Patterson 
 
 (25 Misc. 536). An order entered upon the consent of 
 the parties vacating an order of arrest, is not, without 
 more, such a final decision against the right to the 
 order of arrest as will support an action on the under- 
 taking. (Halleii V. Jones, 2 Misc. 249). A vacatur 
 of the order upon the merits (the time to appeal having 
 expired) is such a final decision (Squire v. McDonald, 
 
 2 Misc. 422; appeal dismissed, 138 N. Y. 554; Allaire v. 
 Kalfon, 20 App. Div. 546) ; and even a vacatur upon 
 the papers on which the order of arrest was granted, 
 though not upon the merits. (Krause v. Rutherford, 
 45 App. Div. 132) . Of course the action may be brought 
 against the sureties immediately without pursuing the 
 original plaintiff. (Gandee v. Wilson, 14 Wk. Dig. 
 378). 
 
 Where the order can be granted only by the court, 
 an undertaking on the part of the plaintiff, may be 
 dispensed with. If it is required, its form, and the 
 security to be given thereupon must be such as the court 
 prescribed. (Co. Civ. Proc. § 560). The section last 
 cited, contains the provision as to undertakings in case 
 of arrest in the nature of ne exeat. 
 
 Sec. 2. When and by Whom Granted. 
 
 An order for the arrest of the defendant, except as 
 otherwise prescribed in section five hundred and fifty- 
 one of the code of civil procedure, must be obtained from 
 
512 
 
 PRACTICE. 
 
 a judge of the court in which the action is brought, 
 or from any county judge. (Co. Civ. Proc. § 556). 
 The exception provided for by this section refers to 
 the substitute for the writ of ne exeat, contained in 
 section five hundred and fifty of the code ; and in a case 
 specified in section five hundred and fifty, the order of 
 arrest can be granted only by the court, is always in 
 its discretion, and may be granted or served, either be- 
 fore or after final judgment, unless an appeal from the 
 judgment is pending, upon which security has been 
 given, sufficient to stay the execution thereof. In either 
 of the cases specified in section five hundred and forty- 
 nine, the order cannot be served after final judgment; 
 but it may be granted where a proper case therefor is 
 presented, at any time before final judgment. (Co. Civ. 
 Proc. § 551). Where an order of arrest was not applied 
 for until after the trial and the decision of the court, 
 but it was made and served before final judgment, it 
 was held in time. {Humphrey v. Hayes, 94 N. Y. 594, 
 604). A judgment by default is a final judgment; but 
 where the default is opened, and the defendant allowed 
 to come in and defend, but the judgment left to stand 
 as security, an order of arrest may be made. {Mott v. 
 Union Batik of N. Y., 38 N. Y. 18) . Subject to the pro- 
 visions of section five hundred and fifty-seven of the code 
 (which refers to the proof necessary to procure the 
 order), the order may be granted at any time after the 
 commencement of the action. It may also be granted 
 to accompany the summons, * * * but where the 
 order is applied for after the filing or service of the 
 complaint, the court, before granting the same, may 
 without notice, direct the service of an amended com- 
 plaint, so as to conform to the allegations required in 
 subdivisions two and four, of section five hundred and 
 forty-nine of the code. (Co. Civ. Proc. § 558). 
 
 In a case specified in section five hundred and fifty, 
 the order of arrest can be granted only by the court 
 (Co. Civ. Proc. § 551) ; but this general rule is subject 
 to the exception that in the first judicial district, a mo- 
 tion, which elsewhere must be made in court, may be 
 made to a judge out of court, except for a new trial on 
 
ARREST AND BAIL. 513 
 
 the merits. (Co. Civ. Proc. § 770). Section seven hun- 
 dred and seventy of the code is applicable to a case speci- 
 fied in section five hundred and fifty; and in the first 
 judicial district, an order of arrest under that section 
 may be granted by a judge out of court. {Boucicault 
 v. Boucicault, 21 Hun, 431; S. C, 59 How. Pr. 131). The 
 order in such case should not recite that it was made 
 in court at a special term, nor should it be in the form 
 of an order of the court. (Lachenmeyer v. Lachen- 
 meyer, 26 Hun, 512; appeal dismissed, 89 N. Y. 632). 
 An order under section 550, cannot be issued by a county 
 judge, of course, but one under section 549 may. (Co. 
 Civ. Proc. §§ 551, 556). The language of the code of 
 procedure was "a county judge." (Co. Civ. Proc. § 180), 
 Under that section it was held that "county judge" 
 meant the judge of the county where the action is tri- 
 able. {Chiibbuck V. Morrison, 6 How. Pr. 367). The 
 word "a" is changed to "any" in section five hundred 
 and fifty-six of the code of civil procedure, as also in 
 section six hundred and six (relating to injunctions), 
 and section six hundred and thirty-eight (in regard to 
 attachments), for the purpose of settling a disputed 
 question ; and is in accordance with the case of Kennedy 
 V. Simmons (1 Hun, 603), which holds that an order 
 of arrest may be granted by a county judge, in an ac- 
 tion in the supreme court, athough it is not triable in 
 his county and though the attorney for the moving 
 party does not reside therein. {^Ye'bh v. Bailey, 54 
 N. Y. 164). The acting county judge may grant the 
 order. [Seymour v. Mercer, 13 How. Pr. 564). A 
 judge of the former court of common pleas of the city 
 and county of New York, was held to be a county 
 judge within this section. {People ex rel Ireland v. 
 DonoJiue, 15 Hun, 446). Any county judge, during the 
 period that he is in a county other than his own, for 
 the purpose of holding courts therein, has all the powers 
 of the county judge of such county. (Laws of 1877, 
 Chap. 11). In all cases, it is left to the discretion of 
 the court or judge to grant or refuse the order, and 
 formerly this discretion could not be reviewed upon a 
 motion to vacate the order (Lapeous v. Hart, 9 How. 
 
514 PRACTICE. 
 
 Pr. 541) ; but in a later case, the court held, that this 
 discretion may be reviewed on such a motion ( Oriswold 
 V. Sweet, 49 How. Pr. 171), and such is now the com- 
 mon and well-established usage. ( See Levy v. Bernhard, 
 2App. Div. 336). 
 
 Sec. 3. Contents of the Order. 
 
 The order must be subscribed by the plaintiff's attor- 
 ney, and, except where it is granted by the court, by 
 the judge. It may be directed, either to the sheriff of 
 a particular county, or, generally, to the sheriff of 
 any county. It must require the sheriff forthwith to 
 arrest the defendant, if he is found within his county; 
 to hold him to bail in a specified sum; and to return 
 the order, wdth his proceedings thereunder, as pre- 
 scribed by law. The plaintiff's attorney may, at his 
 option, by an indorsement upon the order, or, where 
 it was granted by the court, upon the copy thereof 
 delivered to the sheriff, fix a time within which the 
 defendant must be arrested; in that case he cannot 
 be arrested afterwards, under the same order. (Co. 
 Civ. Proc. § 561). Every order of arrest shall briefly 
 state the grounds on which it is granted. (General 
 Rule 13). It is a sufficient statement under Rule 13, 
 in tlie order of arrest, that it is for the appropriation 
 of money received in a fiduciary capacity. {Bowman 
 V. Gates, 11 Reporter, 744 ) . The recital of the grounds 
 on which the order is granted must not be in the al- 
 ternative {Cronin v. Crooks, 143 N. Y. 352) ; but a defi- 
 nition of embezzlement, as "fraudulently misapplied," 
 put in the form of an alternative, does not contravene 
 this principle. {Quail v. Nelson, 39 App. Div. 18). It 
 should contain a recital of the section and subdivision 
 of the code, under which it is issued ; an omission, how- 
 ever, in this respect is not fatal. ( Tracy v. Veeder, 35 
 How. Pr. 209). The requirement that the order shall 
 be subscribed by the plaintiff's attorney is imperative. 
 {Thompson v. Friedbery, 54 How. Pr. 519). An irreg- 
 ularity in that respect may be amended. {Mather v. 
 Hannaur, 55 How. Pr. 1). 
 
ARREST AND BAIL. 515 
 
 Sec. 4. How Order Vacated or Modified. 
 
 Subdivision 1. — Time Within Which Defendant May 
 
 Apply. 
 
 Except where an order of arrest can be granted only 
 by the court, a defendant, arrested as prescribed in this 
 title, may, at any time before final judgment, or if he 
 was arrested within twenty days before final judg- 
 ment, at any time wathin twenty days after the arrest, 
 apply to vacate the order of arrest; or to reduce the 
 amount of bail; or to increase the security given by 
 the plaintiff; or for one or more of those forms of re- 
 lief, together, or in the alternative. In a case where 
 the order of arrest can be granted only by the court, 
 a like application may be made, at any time within 
 twenty days after the arrest; and an application to 
 increase the security given by the plaintiff, may be made 
 at any time before final judgment. (Co. Civ. Proc. § 
 567). 
 
 Under the code of procedure the defendant had to 
 apply to vacate the order, before justification of bail. 
 (Code of 1848, § 179). This time was extended by 
 an amendment of the code in 1858, giving the defendant 
 until final judgment to make the application. (Co. 
 Proc. § 204). In 1862 the time was again extended, 
 so that the defendant might move to vacate the order 
 within twenty days after it was served. (Co. Proc. 
 § 183). Under that provision, it was held that the 
 motion may be made after judgment, if within twenty 
 days after service of the order {Pelo v. Clakey, 36 
 How. Pr. 179), although the two sections last cited 
 were both in force at the same time. {Farmer v. Rdb- 
 bins, 47 How. Pr. 415). The code remained in that 
 condition until 1877, w^hen the two sections were con- 
 solidated into section five hundred and sixty-seven of 
 the code of civil procedure, as given above; which sec- 
 tion, although amended in 1877, has not been changed, 
 in regard to the time within which a motion may be 
 made, since that time. The motion to vacate an order 
 of arrest, before the service of the order, or of the 
 summons and complaint, upon a single affidavit that 
 
516 PEACTICE. 
 
 the plaintiff has no cause of action, and that the bail 
 is excessive, has been held to be premature. {Oedney 
 V. Haas, 50 How. Pr. 310). Such a motion cannot 
 be made, it has, likewise, been held, until the order is 
 served. {Kern v. Rackoio, 44 How. Pr. 443). It will 
 be noted that in both of these special term decisions the 
 motion was made on affidavits read by the defendant — - 
 not simply on the papers on which the order was 
 granted. It is apprehended that a motion of the latter 
 character can be made before an actual arrest has been 
 made. [Martin v. Gross, 56 N. Y. Super. Ct. Rep. 
 512). This case was severely criticised in the dissent- 
 ing opinion in StaiCb v. Myers (16 App. Div. 476, 477, 
 478), but it is believed that the doctrine laid down 
 in Martin v. Gross {supra) is correct. There can be 
 no question that section 567 of the code of civil pro- 
 cedure, when read literally, does seem to require a 
 postponement of the motion until after the arrest has 
 actually been made; the language, it will be remem- 
 bered, is : "A defendant arrested as prescribed in this 
 title, may * * * * apply to vacate the order, etc." But 
 the object of that section is, plainly, to provide a time 
 subsequent to which no molHon to vacate can be made; 
 the framers of the statute were not dealing with the 
 question of hoio soon the application to vacate could 
 be made. Moreover, section 568 provides that the ap- 
 plication can be made upon the papers on which the 
 order was granted alone, and in those papers it does 
 not appear whether the defendant has been arrested 
 or not, so that, if the doctrine laid down in the dissent- 
 ing opinion in Staul) v. Myers {supra) be correct, this 
 portion of section 568 is nullified. It appears in that 
 dissenting opinion that there was nothing in the record 
 in that case to show whether the defendant had been 
 arrested or not. One of the inherent powers of a court 
 is to vacate its own orders. {Martin v. Gross {supra) 
 must be considered correct on authority and principle, 
 therefore. When defendant has once moved, he will 
 not be permitted to renew his motion, without leave 
 of the court on good cause shown. {Lovell v. Martin, 
 21 How. Pr. 238). The right to make this motion, is 
 
ARREST AND BAIL. 517 
 
 not waived, by obtaining an extension of time to an- 
 swer {Col. Ins. Go. V. Force, 8 How. Pr. 353) ; nor by 
 perfecting bail. {Blackey y. Daniel, 7 B.n-a, 83). When 
 a motion to vacate an order is denied, with leave to 
 renew the time within which to make the second mo- 
 tion is not extended beyond the original time; viz., at 
 any time before final judgment, or within twenty days 
 after the arrest. {Wheeler v. Brady, 2 Hun, 347). 
 Where an order of arrest was vacated by the dismissal 
 of the complaint, and the judgment of dismissal was 
 afterwards reversed, the original order of arrest, is not 
 thereby revived; when once dead it is gone forever. 
 {Bowman v. Bowe, 40 Hun, 489; People ex rel Roberts 
 V. Boioe, 81 N. Y. 43). At any time after the filing 
 or service of the complaint, the order of arrest must 
 be vacated on motion, if the complaint fails to set forth 
 a sufl&cient cause of actio,n, as required by section five 
 hundred and forty-nine of the code. (Co. Civ. Proc. 
 § 558). This section and section 567 are not conflict- 
 ing; ordinarily the time within which the motion to 
 vacate must be made, is determined by section 567, 
 but an exception is made where the complaint is insuffi- 
 cient under the especial provisions of section 549; 
 where such is the fact, the motion may be made at any 
 time. {N. E. W. Co. v. Ferris, 125 N. Y. 364; S. C. 
 35 N. Y. St. Rep. 283). Except where an order of 
 arrest can be granted only by the court, a defendant, 
 arrested before answer, has twenty days after the arrest, 
 in which to answer the complaint. The judgment must 
 be stayed accordingly. (Co. Civ. Proc. § 566). 
 
 Subdivision 2. — How Application is Made. 
 
 An application, specified in section five hundred and 
 sixty-seven of the code of civil procedure, may be 
 founded only upon the papers upon which the order 
 was granted; in which case, it must be made to the 
 court, or if the order was granted by a judge out of 
 court, to the same judge in court or out of court, and 
 with or without notice, as he deems proper, and the 
 application must be heard upon those papers only. Or 
 
518 PRACTICE. 
 
 it may be founded upon proof by afl&davit, on the part 
 of the defendant; in which case, it must be made to 
 the court, or, if the order was granted by a judge out 
 of court, to any judge of the court, upon notice; and 
 it may be opposed by new proof, by affldavit, on the 
 part of the plaintiff, tending to sustain any ground of 
 arrest recited in the order, and no other, unless the 
 defendant relies upon a discharge in bankruptcy, or 
 upon a discharge or exoneration, granted in insolvent 
 proceedings; in which case, the plaintiff may show any 
 matter in avoidance thereof, which he might show upon 
 the trial. (Co. Civ. Proc. § 568). The defendant may 
 elect whether he will informally demur to the plain- 
 tiff's case, set forth in the original affidavit, as insuffi- 
 cient, or open the merits of the whole controversy, by 
 moving on counter affidavits. {Evans v. Holmes, 46 
 How. Pr. 515). He can not pursue both courses at 
 once. (Id.; Hinck v. Desser, 3 N. Y. St. Rep. 349). 
 If he moves on the plaintiff's papers, he admits them 
 to be true. {Hathoru v. Hall, 4 Abb. Pr. 227; Locell 
 V. Martin, 21 How. Pr. 238). On such a motion, the 
 order of arrest or a copy thereof, and the papers upon 
 which it was founded, must be presented to the court; 
 an affidavit stating generally their contents, is not 
 sufficient. {Keni v. Rackoir, 44 How. Pr. 443). If 
 the papers, on which the order was granted, show that 
 the court has not jurisdiction, the order will be vacated 
 on motion. {Am. Union Tel. Co. v. Middleton, 80 N. 
 Y. 408). If the complaint shows no cause of action, 
 the plaintiff should not be allowed to amend nunc pro 
 tunc, for the purpose of upholding the arrest. {South 
 Inl. Wav. & Imp. Co. v. Sherw'm, 1 Civ. Proc. Rep. 44 ) . 
 If it shows a differ'ent cause of action, from that on 
 which the order was obtained, the order cannot be up- 
 held. {Chambers v. Diirand, 33 Super. 494). The 
 order must stand or fall upon the. originl cause of arrest, 
 with such corroborative proof as may be furnished on 
 the motion to vacate. (Id.). So, where a demurrer 
 to the complaint on account of misjoinder of parties 
 plaintiff is sustained, the order of arrest must be va- 
 cated. ( Gray v. Rothschild, 48 Hun, 596 ; S. C, 14 Civ. 
 
ARREST AND BAIL. 519 
 
 Proc. Eep. 320; affd. 112 N. Y. 669). A mere technical 
 defect in tlie motion papers as omitting to state that 
 there had been no previous application, as required by 
 supreme court rule twenty-five, may be corrected. 
 {Spring v. Oourlay, 1 Law Bull. 49). A dictum in 
 the case of Welch v. Wiiitcrhurn (14 Hun, 518) gave 
 rise to decisions that, where the cause of action and 
 the grounds of arrest are identical, the merits of the 
 controversy should not be determined on affidavits 
 (Peck V. Lombard, 22 Hun, 63; Miller v. Parks, 66 
 How. Pr. 159) ; but this doctrine has been abandoned 
 and now, whatever identity there may be between the 
 grounds of arrest and the cause of action, the court 
 will carefully examine the affidavits on a motion to 
 vacate the order and dispose of the motion according 
 to the just preponderance of proof. {Baileij v. Prince, 
 24 N. Y. St. Eep. 632; Hayes v. Beard, 37 Id. 535; 
 Levy V. Bernhard, 2 App. Div. 336). Where it appears 
 that no cause of action exists, though the alleged cause 
 of action and the grounds of arrest are identical, the 
 order may be vacated. (Dixon v. Beach, 1 LaAv Bull. 
 38). If the defendant moves on new affidavits, plain- 
 tiff may sustain the order by affidavits substantiating 
 points not attacked by the defendant's papers [Ballard 
 V. Fuller, 32 Barb. 68) ; as by showing concurrent 
 frauds, as proof of the particular fraud charged. (Id.) . 
 On such motion the question is, whether upon the whole 
 case, as made by the affidavits on both sides, the court 
 if called upon to act res nova, would grant the order 
 of arrest; if it would, then the motion to vacate should 
 be denied; but if, after hearing both parties, it should 
 appear that a case for arrest has not been made out, 
 the order should be vacated. (Chapin v. Seeley, 13 
 How. Pr. 490). Where the defendant is privileged 
 from arrest, he must be discharged from arrest, upon 
 proof by affidavit, of the facts entitling him to the dis- 
 charge; and the court or judge, may make the order 
 without notice, or may require notice to be given to 
 the sheriff, or to the plaintiff, or to both. (Co. Civ. 
 Proc. § 564). Section five hundred and sixty-eight of 
 the code of civil procedure, provides to whom the 
 
520 PRACTICE. 
 
 application to vacate an order of arrest must be made. 
 That section should be construed with sections seven 
 hundred and seventy, seven hundred and seventy-two 
 and seven hundred and seventy-three of the code of civil 
 procedure. Formerly a county judge had no power 
 to hear a motion on notice, to vacate an order of arrest 
 {Rogers v. McElhone, 20 How. Pr. 441) ; but that rule 
 was changed by section five hundred and sixty-eight, so 
 that where the order was granted by a county judge, 
 he may, with or without notice, hear the motion to 
 vacate the order. Upon an application to vacate an 
 order of arrest, it is not proper to reduce the amount 
 of bail, unless that relief is also asked in the notice 
 of motion. The questions involved in the two mo- 
 tions are distinct and independent of each other, 
 and rest upon different facts; but in a proper case, 
 and where the proper relief is asked, the two motions 
 may be united in one application, if each relief is asked 
 in the notice of motion ; or a separate motion may be 
 made for each relief. {Heymann v. Mittlestaedt, 2 N. 
 Y. St. Rep. 645). 
 
 Subdivision 3. — Where Defendant May Apply. 
 
 ■It is held that the question of place was not involved 
 in section five hundred and sixty-eight of the code, and 
 that it must be read with section seven hundred and 
 sixty-nine, which provides where motions upon notice 
 must be heard; and that unless such a construction 
 is had, great abuse and embarrassment would follow. 
 (Sutton V. Sabey, 22 Hun, 557). Section seven hundred 
 and sixty-nine only applies to motions made on notice. 
 {Hull V. Hart, 14 Wk. Dig. 255). If an application 
 is made without notice, to vacate an order of arrest, 
 granted by a judge of the court; it must be made to 
 the same judge; there is no power in a court or any 
 other judge, Avithout notice, to vacate such an order. 
 {Van Kleek v. Nichols, 63 How. Pr. 403; Jordan V. 
 Harrison, 13 Civ. Proc. Eep. 445). 
 
ARREST AND BAIL. 521 
 
 Subdivision 4. — Stipulation Not to Sue. 
 
 When the defendant is entitled to have an order of 
 arrest vacated, not as a matter of favor, but on the 
 plaintiff's own papers, because the action is not one in 
 which the order of arrest can be issued, the court has 
 no power to compel the defendant to stipulate that he 
 will not sue for false imprisonment. (Tompkins v. 
 Smith, 1 Civ. Proc. Rep. 398; 48 Super. 113; 89 N. Y. 
 602). This seems to have been the rule uniformly 
 adopted by the courts, in cases where the defendant 
 had an absolute right to the relief sought. The court 
 of appeals says, that where the right existed to have 
 the order vacated, the court has no power to restrain 
 a party from bringing his action ; the rule which forbids 
 the imposition of a condition, is confined to those cases 
 where the process is void, and an absolute nullity 
 from the beginning; and a merely erroneous process 
 stands valid or good, until it is reversed; the right to 
 sue for false imprisonment in the latter case, only ac- 
 crues upon the exercise of the authority of the court, 
 and the court may sometimes impose a condition on 
 the defendant not to sue. {Matte?- of Bradner, 87 N. 
 Y. 171). Where the order is vacated for favor, or 
 because it is erroneous, but not void, or upon conflict- 
 ing affidavits, and the court is satisfied that the arrest 
 was without malice, and upon probable cause, it will, 
 in its discretion, impose the condition that the defend- 
 ant stipulate that he will not bring an action for the 
 arrest. (Wilder v. Guernsey, 19 Alb. Law J. 401). 
 The same rule is applied to a case where the defendant 
 has been arrested on execution. (GJiapin v. Foster, 
 101 N. Y. 1). 
 
 Subdivision 5. — Supersedeas. 
 
 Except in a case where an order of arrest can be 
 granted only by the court, if the plaintiff unreasonably 
 delays the trial of the action, or neglects to enter judg- 
 ment therein, within ten days after it is in his power to 
 do so, or neglects to issue execution against the person 
 of the defendant, within ten days after the return of 
 
522 
 
 PRACTICE. 
 
 the execution against tlie property, and in any event, 
 neglects to issue the same within three months after 
 the entry of the judgment, or whenever it shall appear 
 to the satisfaction of the court, that the plaintiff in 
 an action, or a judgment creditor in a judgment, de- 
 lays the enforcement of his remedies therein hy col- 
 lusion, or for the purpose of allowing the debtor to 
 Temain in prison, under the mandate in any other action, 
 before the issuing of the mandate in favor of such 
 creditor, so as to produce a continued and extended 
 imprisonment, by virtue of the separate mandates in 
 the different actions, the defendant must upon his appli- 
 cation, made upon notice to the plaintiff, be discharged 
 from custody, if he has already been taken under the 
 mandate against him in such action; or if he has not 
 yet been imprisoned therein, be relieved from imprison- 
 ment by virtue of such mandate, by the court in which 
 the action was commenced, unless reasonable cause 
 is shown why the application should not be granted. 
 A defendant, discharged as prescribed in this section, 
 shall not be arrested upon an execution, issued upon 
 the judgment in the action. (Co. Civ. Proc. § 572). 
 The above section is given, as amended by chapter 672 
 of the laws of 1886. The object of the legislature in 
 amending that section was to prevent collusion on the 
 part of the plaintiff, or of tlie judgment creditor, by 
 delaying the enforcement of his remedies and thereby 
 producing a continued and extended imprisonment; 
 and to give the defendant the power, upon notice to 
 the plaintiff, to obtain his discharge, and to have an 
 order or arrest before judgment, or an execution, super- 
 seded. This right of the defendant by the amendment 
 of 1886, is brought down to ten days after the plaintiff 
 has the right to enter judgment, or issue execution, 
 or within ten days after the return of the execution 
 against the property; and is extended to a case where 
 the plaintiff unreasonably delays the trial of the ac- 
 tion ; to further carry out the idea of preventing an im- 
 prisonment for debt beyond a very limited term, and 
 to interpose a legal obstacle in the way of a revengeful 
 plaintiff's keeping a defendant locked up an indefinite 
 
ARREST AND BAIL. 523 
 
 length of time, or so long as his spite should last. It 
 is to be borne in mind, however, that an arrest or an 
 execution against the person, is not void if in contra- 
 vention of the provisions of section 572, in point of 
 time; the right given to the defendant, by this section, 
 is to make an application to the court to be discharged 
 from custody, etc., and the arrest, or execution against 
 the person, is valid until the court acts on such an 
 application. {Steamship Richmond Hill Co. v. Seager, 
 31 App. Div. 288; appeal dismissed, 159 N. Y. 574). 
 
 The relief designed by this section is to secure the 
 release of persons held under orders of arrest, where 
 the diligence required by the statute was not used by 
 the plaintiff in charging the defendant by execution. 
 (Rediiey v. Jewett, 72 Hun, 598; Hedges v. Payne, 85 
 Hun, 377; affd. on opinion below, 146 N. Y. 397). The 
 word "mandate" means "order of ari^est" (Id.), and the 
 whole section is applicable only where an order of arrest 
 has been issued. ( Id. ; Sweet v. N orris, 12 Civ. Proc. 
 Eep. 175; 45 Hun, 595; 110 N. Y. 688). The last sen- 
 tence of the section does not prohibit the arrest, upon 
 an execution, of a person who has been arrested under 
 an order and discharged upon giving bail. ( Id. ) . The 
 requirements of the section are not peremptory, but a 
 denial of the motion to discharge is authorized where a 
 good excuse for the delay is shown. (Hobbs v. Bash- 
 ford, 19 N. Y. St. Rep. 389 ; DeSilver v. Holden, 54 N. 
 Y. Super. Ot. Eep. 1; Longuemare v. Nichols, 23 Abb. 
 N. O. 221; People ex rel Crane v. Oraiit, 13 Civ. Proc. 
 Eep. 209). Section one hundred and eleven of the code 
 of civil procedure was enacted by chapter 672, laAvs 
 of 1886, to provide for the discharge of prisoners who 
 were confined under execution, or any other mandate 
 against the person, after a period of three or six months, 
 according as the amount of the indebtedness is over or 
 under five hundred dollars. But that section was held 
 only to apply to executions or mandates to enforce a 
 payment of money, issued after final judgment or order, 
 and not to apply to, or include orders of arrest. {N. Y. 
 C. d H. R. R. Go. V. Shepherd, 10 Civ. Proc. Eep. 158 ; 
 Matter of Shepard, 43 Hun, 287). By its own terms. 
 
524 
 
 PEACTICB. 
 
 it does not apply to a case of commitment for con- 
 tempt of court, except in the single case of contempt 
 in the non-payment of alimony or counsel fees, in a 
 divorce case. Formerly the supersedeas would not be 
 issued, except where the defendant was in actual con- 
 finement, and was held to afford relief, to persons under- 
 going close confinement only. ( Watt v. Healey, 22 Hun, 
 491). The statute, however, gives i the relief not only 
 to those in actual confinement, but to those within 
 the jail liberties, on bail. (Go. Civ. Proc. §§ 111, 572; 
 laws 1886, chapter 672, § 7). 
 
 ARTICLE IV. 
 
 ARREST, WHEN AND HOW MADE. 
 
 The sheriff must execute the order, by arresting the 
 defendant, if he is found within his county, and keeping 
 him in custody, until discharged by law. (Co. Civ. 
 Proc. § 563). The arrest must be made within the 
 county, within which the officer is authorized to act. 
 {Farmers' L. & T. Co. v. Dickson, 17 How. Pr. 477). 
 It may be made by the sheriff, or any deputy sheriff. 
 (Hioit V. Burrel, 5 Johns. 137). The arrest must be 
 made by an actual assumption of control over the per- 
 son of the defendant, and the consequent restraint 
 of his personal liberty; but it need not be a manual 
 touching of the body, or actual force. ( Oold v. Bissell, 
 1 Wend. 210). The plaintiff's attorney may, at his 
 option, by an indorsement upon the order, or where it 
 was granted by the court, upon the copy thereof de- 
 livered to the sheriff, fix a time within which the de- 
 fendant must be arrested. In that case, he cannot be 
 arrested afterwards, under the same order. (Co. Civ. 
 Proc. § 561). The order of arrest, or where it was 
 granted by the court, a certified copy thereof, subscribed 
 by the plaintiff's attorney; and in either case, the 
 papers upon which the order was granted, with the 
 undertaking, if any, must be delivered to the sheriff 
 who, upon arresting the defendant, must deliver to 
 him a copy thereof. The papers, upon which the order 
 
ARREST AND BAIL. 525 
 
 was granted, with the undertaking, if any, must be 
 filed, with the order of arrest, or a certified copy there- 
 of, at the time prescribed for filing the same, in section 
 five hundred and ninety of the code of civil procedure. 
 (Co. Civ. Proc. § 562). Under the former practice, a 
 failure to serve defendant with a copy of the affidavit, 
 was an irregularity only, and would not entitle the 
 defendant to his discharge {Barker v. Cook, 25 How. 
 Pr. 190) ; and if the originals were perfect, defective 
 copies served on the defendant did no harm {Bank of 
 Havana v. Moore, 5 Hun, 624 ; Barker v. Cook, 40 Barb. 
 254) ; and a failure to serve an undertaking upon a 
 defendant, was only an irregularity, and did not en- 
 title defendant to his discharge {Mather v. Haiinanr, 
 55 How. Pr. 1) ; but where no undertaking was filed 
 or copy served, the arrest was vacated. {Lohb v. Hund- 
 son, 1 Law Bull. 69). The language of section five 
 hundred and sixty-two of the code of civil procedure is 
 "must," in place of "shall," and it would seem as though 
 by thus making the section mandatory, the effect would 
 be to make compliance with the section necessary or 
 imperative ; and a failure to complj'', a ground for vacat- 
 ing the order. 
 
 ARTICLE V. 
 
 DISCHARGE ON BAIL OR DEPOSIT. 
 
 SECTION, 
 
 1. When defendant may be discharged. 
 
 2. Defendant's undertaking, and justification. 
 
 3. Deposit. 
 
 4. Liability of sheriff. 
 
 Sec. 1. When Defendant may be Discharged. 
 
 The defendant, at any time before he is in contempt, 
 where the order can be granted only by the court, or, 
 in any other case, at any time before execution against 
 his person, must be discharged from arrest, either upon 
 giving bail, or upon depositing the sum specified in the 
 order of arrest. The defendant may give bail, or make 
 the deposit immediately upon his arrest, at any hour 
 of the day or night ; and he must have reasonable oppor- 
 
526 PRACTICE. 
 
 tunity to seek for and to procure bail, before being 
 committed to jail. (Co. Civ. Proc. § 573). This is an 
 absolute right; and if the sheriff refuses to accept a 
 sufficient bond, he is liable to an action. (Richards 
 V. Porter, 7 Johns, 137). The purpose of the law, is 
 to afford defendant his liberty on giving bail, which 
 will render it reasonably certain that he can be taken in 
 execution, and if he cannot be, that his sureties may be 
 compelled to pay the amount of the execution; and for 
 that reason, the amount of bail should be equal to the 
 amount for which final judgment may be recovered. 
 (People V. Tiveed, 63 N. Y. 202). The question of the 
 amount of bail is one of discretion for the court below, 
 and its decision is not appealable. (Id.). Where 
 the defendant is actually confined in the jail, by virtue 
 of an order of arrest, and final or interlocutory judg- 
 ment has been rendered against him in the action, but 
 an execution against his person has not been issued, 
 he may elect to give either a bond for the liberties of 
 the jail, or to give bail, or to make a deposit as pre- 
 scribed in this article. (Co. Civ. Proc. § 574). 
 
 Sec. 2. Defendant's Undertaking, and Justification. 
 
 The defendant may give bail, by delivering to the 
 sheriff a written undertaking, in the sum specified in 
 the order of arrest, executed by two or more sufficient 
 bail, stating their places of residence, and occupations, 
 to the following effect : 
 
 1. If the order of arrest could be granted only by the 
 court, that the defendant will obey the direction of 
 court, or of an appellate court, contained in an order 
 or a judgment, requiring him to perform the act speci- 
 fied in the order; or, in default of his so doing, that 
 he will, at all times, render himself amenable to pro- 
 ceedings to punish him for the omission. 
 
 2. If the action is to recover a chattel, that the de- 
 fendant will deliver it to the plaintiff, if delivery thereof 
 is adjudged in the action, and will pay any sum re- 
 covered against him in the action. 
 
 3. In any other case, that the defendant will, at all 
 times, render himself amenable to any mandate, which 
 
AEEEST AND BAIL. 527 
 
 may be issued to enforce a final judgment against him 
 in the action. (Co. Civ. Proc. § 575). The provisions 
 of this section are to be distinguished clearly from those 
 of section 149 of the code, covering an undertaking for 
 jail liberties. {Horoioitz v. Olcnick, 62 App. Div. 283). 
 
 If the justification of the sureties has been adjourned 
 by stipulation of counsel, the sheriff is liable, if he 
 remands the prisoner to jail, although he acts in good 
 faith. {Arteaga v. Conner, 47 Super. 494; 88 N. Y. 
 403). It is not necessary that the undertaking should 
 be approved, or accompanied with an affidavit of justifi- 
 cation of the bail. But the officer taking the acknowl- 
 edgment of the undertaking, must, if the sheriff so 
 requires, examine under oath, to a reasonable extent, the 
 persons offering to become bail, concerning their prop- 
 erty and their circumstances. The examination must 
 be reduced to writing, subscribed by the bail, and an- 
 nexed to the undertaking. (Co. Civ. Proc. § 576). 
 Within three days after bail is given, the sheriff must 
 deliver to the plaintiff's attorney, copies, certified by 
 him, of the order of arrest, return and undertaking. The 
 plaintiff's attorney, within ten days thereafter, must 
 serve upon the sheriff a notice that he does not accept 
 the bail; otherwise he is deemed to have accepted 
 them, and the sheriff is exonerated from liability. (Co. 
 Civ. Proc. § 577) . Leave to except may be granted after 
 the time has expired ; but the right of the sheriff to set up 
 the neglect to except in time, in an action brought 
 against him will be reserved. {Zimm v. Ritterman, 
 5 Robt. 618). 
 
 Within ten days after the receipt of the notice, the 
 sheriff, or the defendant, may serve upon the plaintiff's 
 attorney, notice of the justification of the same or other 
 bail, specifying the place of residence and occupation 
 of each 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 or more than ten days thereafter, 
 and the place to be within the county, where one of the 
 bail resides, or where the defendant was arrested. If 
 other bail are given, .a new undertaking must be ex- 
 34 
 
528 
 
 PRACTICE. 
 
 ecuted, as prescribed in section five liundred and seventy- 
 five of the code. (Co. Oiv. Proc. § 578). So much of 
 section eight hundred and twelve of the code of civil 
 procedure, as requires sureties to justify in double the 
 amount of th« undertaking, does not apply to the un- 
 dertaking of bail. {Cafiero v. Dematrino, 6 Wk. Dig. 
 55). 
 
 The qualifications of bail are as follows : 
 
 1. Each of them must be a resident of, and a house- 
 holder or freeholder within the state. 
 
 2. Each of them must be worth the sum specified in 
 the order of arrest, exclusive of property exempt from 
 execution; but the judge on justification, may allow 
 more than two bail to justify, severally, in sums less 
 than that specified in the order, if the whole justifica- 
 tion is equivalent to that of two sufficient bail. (Co. 
 Civ. Proc. § 579). 
 
 A surety, who occupies a portion of a building as 
 an office, is held to be a householder for the purpose 
 of bail. {Somerset d W. Sav. Bank v. Huyck, 33 How. 
 Pr. 323). One who has a title to real estate, is a free- 
 holder, irrespective of the amount in value of his interest 
 therein. {People v. Scott, 8 Hun, 566). For the pur- 
 pose of justification, each of the bail must attend before 
 the judge, at the time and place mentioned in the notice, 
 and be examined on oath, on the part of the plaintiff, 
 touching his sufficiency, in such manner as the judge 
 in his discretion, thinks proper. The judge may, in his 
 discretion, adjourn the examination from day to day, 
 until it is completed; but such an adjournment must 
 always be to the next judicial day, unless by consent 
 of parties. If required by the plaintiff's attorney, the 
 examination must be reduced to writing, and subscribed 
 by the bail. (Co. Civ. Proc. § 580). If the bail do 
 not justify at the time mentioned in the notice, further 
 time may be allowed to justify on good cause shown, 
 and a new notice must be given. {Burns Y..Robbins, 1 
 Co. Rep. 62). If they fail to justify, and the sheriff 
 thereupon becomes liable as bail (Co. Civ. Proc. § 589), 
 the sureties cease to have any rights, or privileges as 
 bail. {Haberstro v. Bedford, 118 1^. Y. 187, 197). If 
 
ARREST AND BAIL. 529 
 
 the judge finds the bail sufficient, he must annex the 
 examination to the undertaliing, endorse his allowance 
 thereon, and cause them to be filed with the clerk. The 
 sheriff is thereupon exonerated from liability. (Co. 
 Civ. Proc. § 581). The justification is not complete, 
 until the requirements of section five hundred and 
 eighty-one, of the code of civil procedure, are fulfilled. 
 {O'Neil V. Durkee, 12 How. Pr. 94). A rejection of 
 one of the bail is a rejection of all; unless the court 
 gives defendant time to procure further bail. (Id.). 
 
 Sec. 3. Deposit. 
 
 The defendant may, instead of giving bail, deposit 
 with the sheriff, the sum specified in the order. The 
 sheriff must thereupon give the defendant a certificate 
 of the deposit, and discharge him from custody. (Co. 
 Civ. Proc. § 582). If money be deposited in lieu of bail, 
 either by the defendant, or by a third person in his 
 behalf, after judgment, the court cannot order it to be 
 refunded to the third person, but it must be treated 
 as belonging to the defendant, to be applied in pay- 
 ment of the judgment {Hermann v. Aaronson, 8 Abb. 
 Pr. N. S. 155) ; but if the money deposited by a third 
 person was as a security that the sureties would justify, 
 and was not in lieu of bail, the plaintiff cannot have 
 the money applied to his judgment. {Commercial 
 Warehouse Co. v. Graber, 45 N. Y. 393). the sheriff 
 must, within four days after the deposit, pay it into 
 court. He must take from the officer receiving it, two 
 certificates of the payment, one of which he must deliver 
 to the plaintiff, and the other to the defendant. For 
 default in making the payment, the official bond of the 
 sheriff may be prosecuted, as in any other case of 
 delinquency. (Co. Civ. Proc. § 583). At any time 
 before the deposit is paid into court, the defendant 
 may deliver to the sheriff a written direction, to pay 
 it to a third person, therein specified, in the event that 
 the 'defendant becomes entitled to a return thereof, but 
 without expressing any other contingency. The direc- 
 tion must be acknowledged or proved and certified, 
 in like manner as a deed to be recorded ; and the sheriff 
 
530 PRACTICE. 
 
 must deliver it to the officer who receives the deposit, 
 who must note the substance thereof, with the entries 
 of the deposits, in his books, and upon the two certifi- 
 cates of payment into court. The money thus deposited 
 is deemed the property of the third person, subject to the 
 plaintiff's interest therein ; and subject to the rights of 
 a creditor of the defendant, where the direction was 
 given for the purpose of hindering, delaying, or de- 
 frauding creditors. The money, or the residue thereof, 
 must be paid to the third person, where, by the provi- 
 sions of sections five hundred and eighty-four and five 
 hundred and eighty-five of the code of civil procedure, 
 it is required to be refunded to the defendant, or his 
 representative. (Co. Civ. Proc. § 586). If money de- 
 posited is not refunded, as prescribed in section five 
 hundred and eighty-four of the code of civil procedure, 
 it is, in a case where the order of arrest could be 
 granted only by the court, subject to the direction 
 of the court, as justice requires, before and after the 
 judgment. In any other case if it remains on deposit, 
 when final judgment is rendered for the plaintiff, it 
 must be applied under the direction of the court, in 
 satisfaction of the judgment; and the surplus, if any, 
 must be refunded to the defendant, or his representa-. 
 tive. If the final judgment is for the defendant, or the 
 action abates, or is discontinued, the sum deposited, 
 and remaining unapplied, must be refunded to the de- 
 fendant or his representative. (Co. Civ. Proc. § 585). 
 Money paid into the court is at the risk of the depositor, 
 and if it should be lost, stolen, or embezzled, without 
 any act of the plaintiff contributing thereto, it is the 
 depositor's loss. (Parsons v. Travis, 5 Duer, 650). If 
 money is deposited, as prescribed in sections five hun- 
 dred and eighty-two and five hundred and eighty-three 
 of the code of civil procedure, bail may be given, and 
 may justify upon notice, at any time before the expira- 
 tion of the right to be discharged on bail. Thereupon 
 the judge, before whom the justification is had, must 
 direct in the order of allowance, that the money de- 
 posited be refunded to the defendant or his representa- 
 
ARREST AND BAIL. 531 
 
 tive, and it must be refunded accordingly. (Co. Oiv. 
 Proc. § 584). 
 
 Sec. 4. Liability of Sheriff. 
 
 If, after the defendant is arrested, he escapes or is 
 rescued, or the bail, if any, given by him, do not justify, 
 when they are not accepted, or if the sheriff fail to 
 pay the deposit into court as required by section five 
 hundred and eighty-three of the code of civil procedure, 
 the sheriff is liable as bail. But the sheriff may, except 
 in an action to recover a chattel, discharge himself 
 from liability, by the giving and justification of bail, 
 as follows: 
 
 1. If the case is one where the order could be granted 
 only by the court, at any time before the court directs 
 the performance of the act specified in the order. 
 
 2. In any other case, at any time before an execution 
 is issued against the person of the defendant, upon a 
 judgment in the action. (Co. Civ. Proc. § 587). 
 
 The sheriff is not liable for an escape, where the 
 process is void. {Carpenter v. Willett, 31 N. Y. 90). 
 After the defendant has once given bail, the sheriff 
 has no right to restrain him. It is only the failure of 
 bail to justify, that makes the sheriff liable as bail, 
 Avith the right to arrest his principal and detain him. 
 (Arteaga v. Conner, 88 N. Y. 403). If the defendant 
 escajjes before bail is given, or if the sheriff permits the 
 defendant to go at large, without giving bail, or making 
 a deposit, he becomes liable as bail himself. {Bensel 
 V. Lynch, 44 N. Y. 162). The sheriff may as bail 
 re-arrest the defendant without process. {Sartos v. 
 Jilerceques, 9 How. Pr. 188). He is entitled to dis- 
 charge his liability as bail, in the same manner as other 
 bail, by surrendering the prisoner to custody. {Bradji 
 V. Drundage, 59 N. Y. 310). For a refusal to arrest 
 defendant, under a valid process, plaintiff has an action 
 against the sheriff as bail, or an action for the omission 
 of his official duty, and may recover such damages as he 
 has sustained, and the damages are determined by the 
 amount of the judgment against the prisoner. ( Cosgrove 
 V. Boice, 4 Law. Bull. 7). If the sheriff discharges 
 
532 PRACTICE. 
 
 the defendant, pursuant to the direction of the special 
 term contained in an order vacating the order of arrest, 
 the reversal of the vacatur will not render him liable. 
 {Perry v. Kent, 88 Hun, 407; affd. on opinion below, 
 157 N. Y. 710). If judgment is recovered against the 
 sheriff, upon his liability as bail, and an execution 
 thereon is returned wholly or partly unsatisfied, the 
 official bond of the sheriff may be prosecuted, as in 
 any other case of delinquency. (Co. Civ. Proc. § 588). 
 The sureties on the sheriff's official bond are liable, 
 for any default of the sheriff as bail, incurred by him 
 under the section last cited. {People v. Dikemaii, 4 
 Keyes, 93). Within ten days after the defendant is 
 arrested, if he does not give bail, or if he gives bail, 
 Avithin ten days after the justification of the bail, the 
 sheriff must file with the clerk the order of arrest, or, 
 Avhere it was granted by the court, the certified copy 
 thereof, delivered to him, with his return thereupon 
 indorsed, the papers upon which the order of arrest 
 was granted, and the undertaking given on the part 
 of the plaintiff. Where an order of arrest, directing 
 the arrest of two or more defendants, has been executed 
 as to one or more, but not as to all of them, the sheriff 
 may file a copy of the order of arrest instead of the 
 original. (Co. Civ. Proc. § 590). Failure to file the 
 undertaking, pursuant to this section is a mere irregu- 
 larity, and the court has the power to permit it to be 
 done nunc pro tunc. {Dieckcrhoff v.. Ahlborn, 2 Abb. 
 N. C. 372). 
 
 ARTICLE VI. 
 
 CHAEGING AND DISCHARGING BAIL. 
 
 SECTION. 
 
 1. When and how defendant surrendered. 
 
 2. Rights and liabilities of bail. 
 
 3. Defenses in action against bail. 
 
 Sec. 1. When and how Defendant Surrendered. 
 
 Except in an action to recover a chattel, the bail may 
 surrender the defendant in their own exoneration, or 
 the defendant may surrender himself, in exoneration 
 
AEEEST AND BAIL. 533 
 
 of the bail, before the expiration of tlie time to answer, 
 in an action against them. The surrender must be 
 made to the sheriff of the county where the defendant 
 was arrested. (Co. Civ. Proc. § 591) . Bail have a right 
 to surrender defendant before they have justified, and 
 such surrender may be made by any one of the bail. 
 (Matter of Taylor, 7 How. Pr. 212)'. Where the bail 
 has received an undertaking in his favor from the wife 
 of a party, he will not be released on his application 
 for leave to surrender his principal, unless it is affirma- 
 tively shown that the wife is irresponsible. {Mills v. 
 Hiklreth, 7 Hun, 298; S. C. 81 N. Y. 91). The defend- 
 ant, after being surrendered by his bail, is entitled to 
 be discharged, upon tendering a new bond, similar in 
 form to the one first given. {McGallum v. Barnard, 
 58 How. Pr. 169). After the bail has become charged, 
 it is too late to apply for an exoneration of the bail. 
 [McKcnzie v. Smith, 48 N. Y. 143). 
 
 Where the bail surrender the defendant, the sur- 
 render must be made in the following manner: 
 
 1. They must take the defendant to the sheriff, and 
 require him, in writing, to take the defendant into 
 his custody. 
 
 2. A certified copy of the undertaking of the bail 
 must be delivered to the sheriff, who must detain the 
 defendant in his custody thereupon, as upon the orig- 
 inal mandate, and must, by a certificate in writing, 
 acknowledge the surrender. Upon the application of 
 the bail, made upon notice to the plaintiff's attorney, 
 and upon px'oduction of the sheriff's certificate and 
 a copy of the undertaking, a judge of the court, or 
 the county judge of the county where the action is 
 triable, may make an order directing that the bail be 
 exonerated. On filing the order and the papers used on 
 the application therefor, the bail are exonerated ac- 
 cordingly. (Co. Civ. Proc. § 592). For the purpose 
 of surrendering the defendant, the bail, at any place 
 or at any time before they are finally charged, may them- 
 selves arrest him, or by a written authority, endorsed on 
 a certified copy of the undertaking, may empower an- 
 other person to do so, and one or more of the bail may 
 
534 PRACTICE. 
 
 thus arrest and surrender the defendant, although the 
 others do not join with him or them for that purpose. 
 (Co. Civ. Proc. § 593). Where the defendant sur- 
 renders himself in exoneration of his bail, he must pre- 
 sent himself to the sheriff, and require the sheriff, in 
 writing, to take him into custody, in exoneration of 
 his bail. The sheriff must detain him accordingly, as 
 prescribed in subdivision two, of section five hundred 
 and ninety-two of the code of civil procedure, and, if 
 requested by the bail, at any time after the surrender, 
 the sheriff must, by a certificate in writing, acknowl- 
 edge the surrender. An order for the exoneration of 
 the bail may be procured, as prescribed in section five 
 hundred and ninety-two. (Co. Civ. Proc. § 594). 
 
 See. 2. Rights and Liabilities of Bail. 
 
 Where the sheriff is liable as bail, he has all the rights 
 and privileges, and is subject to all the duties and 
 liabilities of bail; and bail given by him, in order to 
 discharge himself from liability, must be regarded as 
 the bail of the defendant in the action. But this sec- 
 tion does not apply to an action to recover a chattel; 
 or to a case where a defense arises to an action against 
 the bail, in consequence of an act or omission of the 
 sheriff. (Co. Civ. Proc. § 595). The rights of the 
 sheriff, under this section, are the same as those of 
 other bail, and he may make the same defenses in an 
 action against himself, as may be made in an action 
 against bail by section five hundred and ninety-nine 
 of the code. {Douglas v. Haherstro, 88 N. Y. 611). 
 The bail, taken upon the arrest, unless they justify, 
 or other bail are given, are liable to the sheriff for all 
 damages, which he sustains by reason of the omission. 
 (Co. Civ. Proc. § 589). After the sheriff has become 
 liable as bail, because the sureties have failed to justify, 
 their liability is no longer that of bail, but as indemni- 
 tors to the sheriff for damages he may sustain in con- 
 sequence of the relation of bail, thrust upon him. 
 {Haherstro v. Bedford, 43 Hun, 201; 118 N. Y. 187). 
 The sheriff has no right of action, under this section, 
 until he has sustained damages by reason of the liability 
 
ARREST AND BAIL,. 535 
 
 as bail, which the law imposes upon him, as a conse- 
 quence of a failure to justify or to put in other bail. 
 The action is not upon the undertaking, but for dam- 
 ages sustained by the sheriff as bail. ( Vlapp v. 8chutt, 
 44 N. Y. 104). A judgment in an action against the 
 sheriff for an escape, establishes conclusively that the 
 judgment debtor has escaped, and is evidence of the 
 damage sustained by the sheriff, in the same manner 
 as though the judgment had been collected. {Toll v. 
 Alvord, 64 Barb. 568). 
 
 In case of a failure to comply with the undertaking, 
 the bail may be proceeded against by action, and not 
 otherwise. (Co. Civ. Proc. § 596). Such an action may 
 be brought, in a case where the order of arrest could be 
 granted only by the court, at any time after the bail 
 have failed to comply with their undertaking. Where 
 the undertaking was given in an action to recover a 
 chattel, an action may be brought thereupon, at any 
 time after the return, wholly or partly unsatisfied, 
 of an execution for the delivery of the possession of the 
 chattel, with respect to which the order of arrest was 
 granted. In any other case, the action cannot be 
 brought, until the following requisites have been com- 
 plied with: 
 
 1. An execution against the property of the defend- 
 ant must have been issued to the sheriff of the county 
 in which he was arrested, and returned by that sheriff, 
 wholly or partly unsatisfied. 
 
 2. An execution, against the person of the defend- 
 ant, must have been issued to the same sheriff, and by' 
 him returned, not less than fifteen days after its receipt, 
 to the effect that the defendant could not be found 
 within his county. (Co. Civ. Proc. § 597). The com- 
 plaint in such action must allege a recovery of a judg- 
 ment, in the action in which the undertaking was given ; 
 and (except in an action where the order could be 
 granted only by the court) the further allegations of 
 the issue and return of the executions, wholly or partly 
 unsatisfied. (Moses v. Waterhury Button Co., 37 N. 
 Y. Super. 393). The return, by a sheriff, to an execu- 
 tion against the person, of "not found" subjects the 
 
536 PRACTICE. 
 
 bail of the defendant to an action, and is conclusive 
 upon him. If the return be false, the bail has a right 
 of action against the sheriff, for damage sustained by 
 reason thereof. {Cosine \. Walter, o5 1^. Y. SOi). The 
 cause of action is assignable, and the assignee may 
 maintain the action in his own name. {Moses v. Water- 
 bury Button Co., supra). Though one of two defendants 
 has been imprisoned under execution, if the other is 
 "not found," the plaintiff may proceed against the bail 
 of the one not found ; the imprisonment of one is no satis- 
 faction as to the other. {Crouse v. Paddock, 8 Hun, 
 630). 
 
 The sheriff must diligently endeavor to enforce an 
 execution issued and delivered to him, as prescribed 
 in section five hundred and ninety-seven of the code of 
 civil procedure, notwithstanding any direction he may 
 receive from the plaintiff or his attorney. (Co. Civ. 
 Proc. § 598). 
 
 Sec. 3. Defenses in Action Against Bail. 
 
 In an action against bail, it is a defense, that an exe- 
 cution against the property, or against the person of the 
 defendant in the original action, was not issued, as 
 prescribed in section five hundred and ninety-seven of 
 the code of civil procedure; or that it was not issued 
 in sufficient time to enable the sheriff to enforce it; 
 or that a direction was given, or other fraudulent or 
 collusive means were used, by the plaintiff or his attor- 
 ney, to prevent the service thereof. (Co. Civ. Proc. 
 § 599). The undertaking on the part of the bail, 
 imports the liability of the defendant, and the sureties 
 are estopped from controverting it. {G-regonj v. Levy, 
 12 Barb. 610). They cannot defend on the ground of 
 irregularity of the judgment; they should apply to 
 set aside the judgment, and be allowed to defend. 
 {Jeicett V. Crane, 35 Barb. 208). In the absence of 
 fraud, the sureties cannot avoid the effect of the bond, 
 on the ground that they were induced to sign it by a mis- 
 take as to its contents. ( Wheaton v. Fay, 62 N. Y. 275) . 
 
 If the defendant in the original action, after his 
 discharge from bail, is imprisoned, either within or 
 
ARREST AND BAIL. 537 
 
 without the state, upon a criminal charge, or a con- 
 viction of a criminal offense, the court, in which an 
 action against the bail is pending, may before the ex- 
 piration of the time to answer, and upon notice to 
 the adverse party, make such an order for the relief 
 of the bail as justice requires. (Co. Civ. Proc. § 600). 
 Except in an action to recover a chattel, the bail must 
 be exonerated where either of the following events 
 occurs, before the expiration of the time to answer in 
 an action against them : 
 
 1. The death of the original defendant. 
 
 2. His legal discharge from the obligation to render 
 himself amenable to the process, direction, or pro- 
 ceedings, with respect to which the undertaking of the 
 bail was made. 
 
 3. His surrender to the sheriff of the county where 
 he was arrested, as prescribed in section five hundred 
 and ninety-one of the code of civil procedure and the 
 following sections. 
 
 Where either event occurs, after the commencement 
 of the action against the bail, the court may, in its 
 discretion, impose the payment of the plaintiff's costs 
 and expenses, incurred after the return of the execution 
 against the person, as a condition of allowing the 
 exoneration. And the court may by an order, made 
 upon notice to the adverse party, grant such further 
 time as it deems just, after answer, for the surrender 
 of the original defendant. In that case, his surrender, 
 within the time so granted has the same effect, as if 
 it had been made before answer. (Co. Civ. Proc. § 601). 
 A motion by bail is the proper course, if they desire to 
 be exonerated, and on such motion whatever question 
 arises on the judgment, or proceedings in the action, 
 touching the liability of the bail must be discussed and 
 decided. (Ohregon v. DeMier, 54 How. Pr. 390). On 
 the death of the principal, bail will be exonerated on 
 motion. {Merritt v. Thompson, 1 Hilt. 550). The bail 
 may be permitted to defend the original action, for 
 their own protection. {Jeioett v. Crane, 35 Barb. 208). 
 If bail pay the amount of the judgment while an appeal 
 is pending, it does not discharge their liability as bail. 
 
538 PRACTICE. 
 
 (Appleby v. Robinson, 44 Barb. 316). On an applica- 
 tion for further time to surrender the defendant, it is 
 necessary to show that the bail are not indemnified. 
 (Bank of Geneva v. Reynold.'^, 12 Abb. Pr. 81). In the 
 case last cited, the application Avas granted on payment 
 of the costs of the action commenced against them, 
 where it appeared that the principal was absent from 
 the state. If the sheriff applies to surrender the de- 
 fendant, after the time to answer has expired, in a 
 case against himself, he must show a substantial and 
 sufficient excuse for permitting defendant to be at 
 large. (Douglass v. Haberstro, 21 Hun, 320). Sick- 
 ness of principal, or bail, would be a good reason for 
 enlarging the time. (Baker v. Curtis, 10 Abb. Pr. 279). 
 Impossibility to procure a copy of the undertaking of 
 bail, was held sufficient to warrant an extension. ( Van 
 Rensselaer v. Hopkins, C. & C. Cas. 481). 
 
 Title I of chapter VII of the code of civil procedure 
 excepting section five hundred and forty-eight thereof, 
 applies only to an action in the supreme court, the 
 city court of the city of New York, or a county court. 
 (Co. Civ. Proc. § 3347). 
 
CHAPTER XV. 
 
 INJUNCTIONS. 
 
 ARTICLE I Definition and nature. 
 
 ARTICLE II When injunction will be granted. 
 
 ARTICLE III Proceedings to obtain the order. 
 
 ARTICLE IV. . . .The order. 
 
 ARTICLE V Security. 
 
 ARTICLE VI Damages sustained by the injunction. 
 
 ARTICLE VII. . .Vacating or modifying the order. 
 
 ARTICLE VIII . . Effect of subsequent proceedings in the action. 
 
 ARTICLE I. 
 
 DEFINITION AND NATURE. 
 
 SECTION. 
 
 1. Definition. 
 
 2. Nature and object of the remedy. . 
 
 Sec. 1. Definition. 
 
 An injunction is a judicial process, operating in per- 
 sonam whereby a party is required to do, or to refrain 
 from doing, a particular thing, according to the exigency 
 of the writ. It is restrictive, as well as preventive, and 
 it may be used both in the enforcement of rights, and 
 in the prevention of wrongs. 
 
 In the former chancery practice, the injunction was 
 always granted by writ; but since the code, the writ 
 of injunction has been abolished, and a temporary in- 
 junction may be granted by order. (Co. Civ. Proc. § 
 602). An injunction thus granted is a mandate of the 
 court. (Co. Civ. Proc. § 3343, subd. 2). With refer- 
 ence to their duration, injunctions are divided into 
 final or perpetual, and preliminary or interlocutory, or, 
 as they are styled in the code of civil procedure, tem- 
 porary injunctions. Perpetual injunctions are granted 
 
540 
 
 PRACTICE. 
 
 only by the final judgment. (Jackson v. Bunnell, 113 
 N. Y. 216; Burnham v. Acton, 7 Robt. 395; 1 Barb. Oh. 
 Pr. 614 ) . The distinction between a perpetual and tem- 
 porary injunction is that the first is a matter of strict 
 right, depending upon the rules of equity (Linden v. 
 Hepburn, 3 Sand. 668) ; while the other is a matter of 
 discretion, and is controlled largely by considerations 
 of convenience and necessity. The code has not affected 
 the power of the court to grant injunctions. (N. Y. 
 Life Ins. Co. v. Supercisors of N. Y., 4 Duer, 192; Neii- 
 stadt V. Joel, 2 Duer, 530; 13' N. Y. 488). The rules of 
 the code, which will be discussed in this chapter, apply 
 only to injunctions which are granted before final judg- 
 ment, and which are called in that work, temporary in- 
 junctions. Injunctions are also known as mandatory 
 and preventive, according as they command the defend- 
 ant to do, or to refrain from doing a particular thing. 
 It is not usual to award a mandatory injunction, until 
 final judgment in a case. But the court may, by process 
 mandatory in effect, do what is necessary to prevent a 
 defendant from defeating the rights of other parties, 
 during the pendency of the action. (Hanover Fire 
 Ins. Co. V. Oermania Fire Ins. Co., 33 Hun, 539 ) . 
 
 Sec. 2. Nature and Object of the Remedy. 
 
 In general, injunctions are used rather to prevent 
 future injury, than to afford redress for wrongs already 
 committed; and it is therefore to be regarded more as 
 a preventive than as a remedial process. (High on In- 
 junctions, § 1). The principal object of a temporary 
 injunction is the preservation of the subject in con- 
 troversy in its then condition, and, without finally 
 determining any questions of right, to prevent the fur- 
 ther perpetuation of wrong, or the doing of any act, 
 whereby the right in controversy may be materially in- 
 jured or endangered. (High on Injunctions, § 4; Van 
 Veghten v. Hoioland, 12 Abb. Pr. N. S. 461). The 
 leading principle on which courts proceed in dealing 
 with applications for temporary injunctions, is that 
 only such restraint shall be imposed as may suffice to 
 stop the mischief complained of, where it is; to stay a 
 
INJUNCTIONS. 541 
 
 further injury, and to keep things where they are for 
 the present. {Blakemore v. Glamorganshire, etc. Go. 
 1 Myl. & K. 154). In granting relief by temporary in- 
 junctions, courts of equity in no manner anticipate tlie 
 ultimate determination of the questions of right in- 
 volved ; they merely recognize that a sufficient case has 
 been made out to warrant the preservation of the prop- 
 erty, or rights in issue, in statu quo, until a hearing 
 upon the merits; without expressing, and indeed with- 
 out having the means of forming an opinion as to such 
 rights. ( High on Injunctions, § 5 ) . 
 
 AETICLE II. 
 
 WHEN INJUNCTION WILL BE GRANTED. 
 
 SECTION. 
 
 1. General principles. 
 
 2. When right depends upon nature of the action. 
 
 3. When right depends upon extrinsic facts. 
 
 4. Various eases in which it will be granted. 
 
 Sec. 1. General Principles. 
 
 While the code has not affected the power of the court 
 to grant temporary injunctions, it has enlarged the 
 classes of cases in which they may be allowed. (Neu- 
 stadt V. Joel, 2 Duer, 530; 13 N. Y. 488; Merritt v. 
 Thompson, 3 E. D. Smith, 283) . Temporary injunctions 
 can only be granted in cases prescribed in the code. 
 {Fellows V. Heermans, 13 Abb. Pr. N. S. 1). When a 
 temporary injunction is incidental to the relief sought, 
 and not the principal thing demanded, the granting of 
 it is discretionary with the court of original jurisdic- 
 tion. {People V. Schoonmaker, 50 N. Y. 499; Pfohl v. 
 Sampson, 59 N. Y. 174). No rule can be prescribed 
 which will absolutely control every case. {Liidrigh v. 
 Dusseldorf, 8 Wk. Dig. 490). The fact that the re- 
 fusal of the injunction would defeat the object for 
 which the action is brought, is not, of itself, sufficient 
 to deprive the court of discretion whether or not to 
 grant it. {Young v. Gamphell, 75 N. Y. 525). Though 
 it is usually discretionary with the court whether or 
 
542 pRAcyic'E. 
 
 not to grant a temporary injunction, yet where the com- 
 plaint prays an injunction as part of the relief, the 
 granting of it is error of law, reviewable in the, court 
 of appeals, if the complaint does not show that the 
 plaintiff is entitled to the relief demanded. {McEenry 
 V. Jewett, 90 N. Y. 58). In no other circumstances, 
 however, is the discretion reviewable by the court of 
 appeals. {Castoriano v. Dupe, 145 N. Y. 250). A tem- 
 porary injunction can only be granted in an action, 
 and not in a proceeding commenced by petition. (Mat- 
 ter of S. I. Elec. R. R. Co. v. King, 21 App. Div. 188 ; 
 Manneck Mfg. Co. v. Manneck, 3 Law Bull. 26 ; 23 Alb. 
 Law. J. 216). To warrant a temporary injunction 
 the plaintiff's rights should be reasonably clear, upon 
 the law and the facts {Noonan v. Grace, 49 Super. 116; 
 Electrical Potoer Storage Co. v. Whiting, 17 Wk. Dig. 
 263) ; but a probable and prima facie case is sufficient. 
 [McEenry v. Jeioett, 90 N. Y. 58, 63). But there are 
 qualifications to this rule; where the respective rights 
 of the parties are doubtful, and the continuance of the 
 acts complained of will work permanent and substan- 
 tial damages to the plaintiff, and the injury resulting to 
 the defendant from a temporary injunction, can cause 
 no loss that cannot be fully compensated, and for that 
 compensation he can have security, the court may, in its 
 discretion, grant a temporary injunction, pending the 
 litigation, and until the rights of the parties are defi- 
 nitely established in the case. {Rector of the Church 
 of Eoly Innocents v. Keech, 5 Bosw. 691 ; Spear v. Gut- 
 ter, 5 Barb. 486). It should always appear that the in- 
 junction is necessary to protect the plaintiff's rights 
 during the litigation. [Bagaley v. Yanderhilt, 16 Abb. 
 N. C. 359; McEngh v. B. E. & E. R. R. Co., 66 Barb. 
 612) . It must also appear that the act complained of is 
 illegal as to the plaintiff, and it must be a violation of 
 his private rights. The mere fact that the act is in viola- 
 tion of law, or even that it is criminal, will not warrant 
 the injunction. (Anderson v. Doty. 33 Hun, 160). The 
 injury complained of must be without adequate redress 
 in any other way. (Savage v. Allen. 54 N. Y. 458; 
 Johnston Earrester Co. v. Meinhardt, 9 Abb. N. 0. 393 ; 
 
INJUNCTIONS. 543 
 
 24 Hun, 489). It must be irreparable, that is, not sus- 
 ceptible of being adequately compensated in damages; 
 or such as from its continuance, must occasion a con- 
 stantly occurring grievance, or permanent mischief, 
 Avhich cannot be otherwise prevented, as where loss of 
 health, loss of trade or business, destruction of the means 
 of subsistence, or permanent wrong to property, may 
 or will ensue from the wrongful acts, or where an ease- 
 ment or servitude is annexed by grant, covenant or other- 
 wise to a private estate. ( Hilliard on Injunctions, § 31 ) . 
 The incompleteness and inadequacy of the legal rem- 
 edy is the criterion of the right to an injunction. (3 
 Pomeroy's Eq. Juris. § 1338). This rule does not, how- 
 ever, apply to the cases which are solely cognizable in 
 equity. In such cases the question whether the remedy 
 at law is adequate, cannot arise, for there is no remedy 
 at law. (3 Pomeroy's Eq. Juris. § 1339). Usually, 
 however, if a plaintiff has an adequate remedy by dam- 
 ages, or by instituting criminal proceedings, or by appeal 
 or mandamus, or filing a notice of lis pendens, an in- 
 junction will be refused. (Savage v. Allen, 54 N. Y. 
 458; FincJce v. Police Commr's, 66 How. Pr. 318; Peo- 
 ple V. Coffin, 7 Hun, 608; People v. Wasson, 64 N. Y. 
 167; Gregory v. Gregory, 33 Super. 1). The fact that 
 a lis pendens has been filed in the action, is not neces- 
 sarily an objection to granting an injunction, if it is 
 doubtful whether the lis pendens will protect the in- 
 terest of the plaintiff. {Cornell v. King, 13 Wk. Dig. 
 327). If the plaintiff is guilty of laches in moving to 
 protect his rights, the temporary injunction will be re- 
 fused. {Yan Ranst v. N. Y. College of Yet. Surgeons, 
 4 Hun, 620). It will also be refused, where the plain- 
 tiff stands by and permits the defendant to incur large 
 expense without objection. (Ninth Ave. R. R. Co. v. 
 N. Y. Elevated R. R. Co., 3 Abb. N. 0. 347). But relief 
 will not be refused for laches, if the plaintiff could not, 
 at first, ascertain the extent of the injury, and if he 
 moved promptly when he fully discovers the facts. 
 (Mattlage v. N. Y. Elevated R. R. Co., 14 Daly, 1 ; S. 
 O. 67 How. Pr. 232). A temporary injunction will not 
 35 
 
544 PRACTICE. 
 
 be granted, simply because the plaintiff will probably 
 recover in the action {Troy & Boston R. R. Co. v. B. 
 H. T. & W. R. R. C, 13 Hun, 60), unless it is probable 
 that without it, the court cannot on final judgment do 
 justice between the parties. ( Van Yeghten v. Howland, 
 12 Abb. Pr. N. S. 461). Before granting a temporary 
 injunction, the court will consider not only the nature 
 and extent of the injury to the plaintiff, but also the 
 consequences to the defendant if it should be granted. 
 (Bruce v. D. & E. Canal Co., 19 Barb. 371; Power v. 
 Tillage of Athens, 19 Hun, 165). It will be refused 
 where it will create a greater wrong to the defendant to 
 grant it, than to the plaintiff to refuse it. {Callatin 
 V. Oriental Bank, 16 How. Pr. 253 ; Brower v. Williams, 
 44 App. Div. 337). A temporary injunction never will 
 be granted, where it appears inequitable, or contrary 
 to the real justice of the case. [Troy & Boston B. R. 
 Co. V. B. H. T. & W. R. R. Co., 86 N. Y. 107). The 
 fact that no case precisely in point can be found in 
 the books, is not a sufficient reason for refusing an 
 injunction. {Niagara Falls Int. Bridge Co. v. Gr't 
 Western R. R. Co., 39 Barb. 212, 223). A temporary 
 injunction cannot be granted on the submission of a 
 controversy without action (Co. Civ. Proc. § 1281) ; 
 although the question submitted is whether or not the 
 jjlaintiff is entitled to an injunction. {Cunard 8. 8. 
 Co. V. Voorhis, 104 N. Y. 525). 
 
 Sec. 2. When Right Depends Upon Nature of the Action. 
 
 Where it appears, from the complaint, that the plain- 
 tiff demands and is entitled to a judgment against the 
 defendant, restraining the commission or continuance 
 of an act, the commission or continuance of which, dur- 
 ing the pendency of the action, would produce injury to 
 the plaintiff, an injunction order may be granted to 
 restrain it. The case, provided for in this section, is 
 described in the code of civil procedure as a case where 
 the right to an injunction depends upon the nature of 
 the action. (Co. Civ. Proc. § 603). This section ap- 
 plies only to suits in equity. (Reubens v. Joel, 13 N. 
 Y. 488). In a judgment creditor's action, a temporary 
 
INJUNCTIONS. 545 
 
 injunction, restraining the transfer to any person, or 
 tlie payment or delivery, to the judgment debtor, of 
 any money, tiling in action or other property or in- 
 terest, which might be applied to the satisfaction of 
 the sum due to the plaintiff, is deemed to be one of 
 those specified in section six hundred and three. (Co. 
 Civ. Proc. § 1876). A temporary injunction granted 
 in an action by the people, against the usurper of an 
 office or franchise, pursuant to section nineteen hun- 
 dred and forty-eight of the code of civil procedure, is 
 also deemed one of those prescribed in section six hun- 
 dred and three. (Co. Civ. Proc. § 1955). An injunc- 
 tion under this section can only be granted on the com- 
 plaint. {Sanders v. Ader, 26 App. Div. 176). It must 
 show a cause of action entitling the plaintiff to relief 
 in equity {McHenry v. Jeioett, 90 N. Y. 58) ; it is not 
 sufficient where it appears that the final relief sought 
 is contingent upon a future event. ( Victor v. Lewis, 
 38 App. Div. 316). The aUegations in the complaint 
 cannot be helped out by affidavits. {Hentz v. Long 
 Island R. R. Co., 13 Barb. 646; Stall v. Westfall, 25 
 ,Hun, 1) ; affidavits may be used, however, to furnish 
 evidence of the allegations made in the complaint. (Id.; 
 Bagg v. Rohinson, 12 Misc. 299, 303 ) , and it would seem 
 the better practice to use affidavits in addition to the 
 complaint in order to satisfy the coui't that "sufficient 
 grounds exist" for the injunction, within the meaning 
 of section 607 of the code of civil procedure. Where an 
 injunction is sought under this section, it must be prayed 
 for as a part of the relief demanded in the complaint. 
 (Olssen V. Smith, 7 How. Pr. 481; Walker v. Dccereaux, 
 4 Paige, 229; Sanders v. Ader, supra). A temporary 
 injunction cannot be granted to restrain the doing of 
 acts in relation to property, in respect to which no 
 final judgment is asked. {Hulce v. Thompson, 8 How. 
 Pr. 475). If the only relief demanded is an injunction, 
 it must appear from the complaint, that the plaintiff 
 is entitled to it under the rules of equitable jurispru- 
 dence. (Troi/ d Boston R. R. Co. v. B. H. T. & W. R. 
 R. Co., 86 N.'y. 107; McHenry v. Jeicett, 90 N. Y. 58). 
 Where a temporary injunction is of the same nature as 
 
546 
 
 PRACTICE. 
 
 that sought by the final judgment, it should not be 
 granted, unless some immediate and irreparable injury 
 is probable which cannot be remedied by a final judg- 
 ment (Bronlc v. Riley, 50 Hun, 489; McGidre v. Bloom- 
 ingdale, 8 Misc. 478) ; and the complaint must state 
 facts and circumstances, from which the court can see 
 that such injury is probable. A mere allegation that 
 such injury was apprehended or threatened, is not 
 enough. {McHenry v. Jewett, 90 N. Y. 58). 
 
 Sec. 3. Where Right Depends Upon Extrinsic Facts. 
 
 In either of the following cases, an injunction order 
 many also be granted in an action : 
 
 1. Where it appears, by affidavit, that the defendant, 
 during the pendency of the action, is doing, or procur- 
 ing, or suffering to be done, or threatens, or is about to 
 do, or to procure, or suffer to be done, an act in viola- 
 tion of the plaintiff's rights, respecting the subject of 
 the action, and tending to render the judgment in- 
 effectual, an injunction order may be granted to re- 
 strain him therefrom. 
 
 2. Where it appears by affidavit, that the defendant, 
 during the pendency of the action, threatens, or is about 
 to remove, or to dispose of his property, with an intent 
 to defraud the plaintiff, an injunction order may be 
 granted, to restrain the removal or disposition. (Co. 
 Civ. Proc. § 604). 
 
 The term, "subject of the action," means the things, 
 money, lands, chattels, or the like, in relation to which 
 the suit is prosecuted, or the right which is sought to 
 be enforced. (Pomeroy on Eemedies, § 475; Glenn & 
 Hall Mfg. Co. v. Hall, 61 N. Y. 226, 233). In an action 
 on a money judgment, therefore, an injunction cannot 
 be issued restraining the defendant from fraudulently 
 disposing of certain property; the "subject of the ac- 
 tion" is the judgment, not the defendant's property. 
 (Campbell v. Ernest, 64 Hun, 188). A temporary in- 
 junction, under this section, may be granted on affi- 
 davits, before service of the complaint (Continental 
 Store Service Co. v. Clark, 7 Civ. Proc. Eep. 183; affd. 
 100 N. Y. 365 ) ; it may, also, be granted before the serv- 
 
INJUIWTIONS. 547 
 
 ice of the summons. {Peo^ple ex rel Gauffman v. Van 
 Buven, 136 N. Y. 252). , Wliere an injunction is sought 
 under subdivision two of this section, it may be granted 
 at the suit of any creditor, although he has not recov- 
 ered a judgment. [Mitchell v. Bettinan, 25 Barb. 408). 
 It is granted in such cases, however, only to prevent 
 an intended fraudulent disposal of property, and not 
 where the removal or transfer has been completed. 
 {Reubens v. Joel, 13 N. Y. 488). Such an injunction 
 will not be granted to restrain all removal or disposi- 
 tion of property; but only a removal with intent to 
 defraud the plaintiff. {Breuster v. Hodges, 1 Duer, 
 609). A threat by the defendant to make a general 
 assignment, and prefer other creditors to the plaintiff, 
 will not warrant the granting of an injunction under 
 this subdivision. {Pomeroy v. Hindinarsli, 5 How. Pr. 
 437). It will never be issued, to prevent the disposi- 
 tion of property, not within the jurisdiction of the 
 court. {Rogers v. M. S. & N. I. R. R. Co., 28 Barb. 
 539). Where one purchased goods on credit, and as- 
 signed to another, to defraud the seller, and both are 
 insolvent, an injunction, pending an action for the 
 price, was allowed under this subdivision. {Malcolm 
 V. Miller, 6 How. Pr. 456). In an action for a separa- 
 tion, where the husband had disposed of his property, 
 and was about to remove from the state, without pro- 
 viding for the plaintiff, a temporary injunction was 
 granted. {Vermihjea v. Veriiiilijca, 14 How. Pr. 470). 
 The disposal of ordinary commercial property will not 
 be enjoined, where the responsibility of the defendant 
 is undoubted. {Power v. Alger, 13 Abb. Pr. 284, 475). 
 
 Sec. 4. Various Cases in Which it Will Be Granted. 
 
 It is not intended to go into a comprehensive exam- 
 ination, with reference to the various purposes, to 
 which an injunction may be applied. To do this, would 
 require not a chapter, but a complete treatise. It may 
 be useful, however, to call attention to a few of the par- 
 ticular cases in which injunctions have been granted; 
 not exhaustively, but merely by way of illustration of 
 the general subject. 
 
548 PEACTICB. 
 
 Subdivision 1. — Contracts. 
 
 Usually, a temporary injunction will not be granted 
 to restrain violations of a contract, but this rule will 
 not be applied, where an injury cannot be fully com- 
 pensated for in damages. Thus, a violation of a con- 
 tract not to carry on business in a particular locality, 
 has been restrained, although the agreement provides 
 for liquidated damages for its violation. {Diamond 
 Match Co. V. Roeber, 106 N. Y. 473). One who has 
 made such a contract, will be restrained from carrying 
 on the business, as the subordinate of another. {Engel 
 V. Kuche. 3 Law Bull. 34). An injunction will not be 
 issued, to restrain a violation of an agreement not to 
 do any act to the injury, or to the prejudice of the plain- 
 tiff. {Stull V. Westfall, 25 Hun, 1). Where a railroad 
 company, in consideration of the conveyance of the right 
 of way, had agreed that all passenger trains should stop 
 at the plaintiff's place, an injunction was granted to 
 forbid their running any trains which did not stop. 
 ( LaiDvence v. Saratoga Lake R. R. Co., 36 Hun,. 467 ) . 
 One who obtains quotations of sales and market prices, 
 under a contract not to disclose them, will be restrained 
 from doing it. ( Gold & Stock Tel. Co. v. Todd, 17 Hun, 
 548). The disclosure of the secrets of an art will be 
 restrained, when it has been taught under a promise not 
 to divulge it. (Tabor v. Hoffman, 41 Hun, 5; Roosen 
 V. Carlson, 46 App. Div. 233). But if the plaintiff's 
 claim arises from an illegal contract, its violation will 
 not be prevented by injunction. {Bennett v. American 
 Art Union, 5 Sand. 614 ) . 
 
 Subdivision 2. — Copyright. 
 
 Before publication, an author has by common law, 
 the exclusive title to his property, and the right to de- 
 termine whether it shall be published at all, and if pub- 
 lished, when, where, by whom, and in what form. {Pal- 
 mer V. DeWitt, 47 N. Y.- 532). The publication by an- 
 other will be restrained, although it is a play, which 
 the author has represented upon the stage. (Id.). The 
 assignee of an author may have an injunction, to re- 
 
INJUNCTIONS. 
 
 549 
 
 strain the publication of a manuscript, or tlie production 
 of a play. {Shoolc v. Dali/, 49 How. Pr. 366; Widmer 
 V. Greene, 56 How. Pr. 91 ) . Where an artist has painted 
 a picture, and assigned to another the exclusive right to 
 reproduce copies, the assignee may have an injunction 
 to restrain third parties from printing and selling 
 copies of it. (Oertel v. Wood, 40 How. Pr. 10). But 
 after the publication, the author's right to multiply 
 copies is dependent upon the copyright statute of the 
 United States; and it cannot be protected by injunction, 
 in the courts of the state {Potter v. McPherson, 21 Hun, 
 559; Jewellers' Merc. Agency v. Jeioellers' Weekly Pub. 
 Co., 155 N. Y. 241), except as against some one who, by 
 contract or otherwise, is estopped to deny the author's 
 right. {Baltus v. Belford Co., 133 N. Y. 499). The 
 right of the author to the exclusive publication of an 
 immoral play, or work, will not be protected. [Shook 
 V. Daly, 49 How. Pr. 366). 
 
 Subdivision 3. — Corporations. 
 
 ( A. ) In General. Corporations may be restrained by 
 injunction, in the same manner, and to the same ex- 
 tent, as individuals. (Mayor, etc. v. 1^. Y. & Staten 
 Island Ferry Co., 64 N. Y. 622). An injunction will 
 issue to restrain a corporation, from completing an un- 
 lawful sale of all the property of the company. {Ab- 
 bott V. Am. Hard Rubber Co., 33 Barb. 578; Treadwell 
 V. United Verde Copper Co., 47 App. Div. 613). A 
 corporation will be restrained from the payment of an 
 unearned dividend {Carpenter v. N. Y. <& N. Haven R. 
 R. Co., 5 Abb. Pr. 277) ; but if a dividend has been 
 earned, it will not be restrained by injunction from pay- 
 ing it in cash, or in stock. ( Williams v. Western Union 
 Tel. Co., 93 N. Y. 162). The directors of a corpora- 
 tion may be restrained from committing fraudulent 
 acts, which they are charged to intend, or any particular 
 wrong, affecting the private rights of the stockholders 
 (Bedford v. Am. Aluminum Co., 51 App. Div. 537) ; 
 but they will not be restrained from performing the 
 general and ordinary business of the corporation. 
 
550 PRACTICE. 
 
 \{Howe V. Deuel, 43 Barb. 504). One corporation may, 
 by injunction, be restrained from consolidating with 
 another. (Blatchford v. Ross, 54 Barb. 42). A cor- 
 poration will be restrained from issuing bonds, as a 
 part of a fraudulent design to increase stock, or from 
 converting into stock, bonds so issued, and held by per- 
 sons with notice. {Belmont v. Erie Raihcaij Co., 52 
 Barb. 637). A corporation, engaged in supplying com- 
 mercial intelligence, will be restrained from removing 
 its instruments from the office of the plaintiff, for the 
 reason that they are bound impartially to serve all who 
 pay them. {Smith y.' Gold & Stock Tel. Co., 42 Hun, 
 454). An injunction, suspending the general and or- 
 dinary business of the corporation, can only be granted 
 by the court, upon notice. (Co. Civ. Proc. § 1809). 
 Such an injunction will not be granted, unless there 
 is a plain violation of law, or a departure from the 
 powers of the corporation. {Bach v. Pacific Mail 8. 8. 
 Co., 12 Abb. rr. N. S. 373). An injunction, which for- 
 bids a railroad company, from leasing or selling any 
 part of the property of the company, or restrains it from 
 making a particular contract for building or equipping 
 its road, is of this nature, and cannot be granted with- 
 out notice {Totvii of Middletow ii v. R. & 0. R. R. Co., 
 12 Abb. Pr. N. S. 276; 43 How. Pr. 481) ; but one which 
 forbids a railroad company, from making an intersec- 
 tion with another company, is not within this section, 
 and may be granted ex parte. {Howlett v. N. Y. West 
 Shore & Buffalo R. R. Co., 14 Abb. N. C. 328). An in- 
 junction will not be granted, to prevent an improper 
 election, or an election of improper persons, to be di- 
 rectors {Clinton Liberal Inst. v. Fletcher, 55 How. Pr. 
 431 ) ; nor to prevent the initiation into a society, of 
 persons claimed to be illegally elected, unless pecuniary 
 injury to plaintiff is shown. ( Thompson v. The Society 
 of Tammany, 17 Hun, 305). De facto directors of a 
 corporation will not be restrained from acting, on the 
 sole ground of the invalidity of their title. {People v. 
 Conldin, 5 Hun, 452). Nor will the validity of a cor- 
 porate election be determined upon a motion for a tem- 
 porary injunction. {Seneca Nation of Indians v. John, 
 
INJUNCTIONS. 551 
 
 27 Abb. N. O. 253). In an action by a judgment cred- 
 itor, for sequestration of the property of a corporation, 
 under section seventeen hundred and eighty-four of the 
 code of civil procedure, a temporary injunction may 
 be granted, restraining the corporation, and its trustees, 
 directors, managers, and other officers from collecting 
 or receiving any debt or demand, and from paying out, 
 or in any way transferring, or delivering to any person 
 any money, property, or effects of the corporation, dur- 
 ing the pendency of the action, except by express per- 
 mission of the court. Where an action is brought, to 
 procure the dissolution of the corporation, the injunc- 
 tion may also restrain the corporation, and its trustees, 
 directors, managers, and other officers from exercising 
 any of its corporate rights, privileges, or franchises, 
 during the pendency of the action; except by express 
 permission of the court. (Co. Civ. Proc. § 1TS7). In 
 an action brought by the attorney general, to procure 
 a judgment vacating or annulling the act of incorpora- 
 tion, under section seventeen hundred and ninety-seven, 
 of the code of civil procedure, an injunction may be 
 issued, at any stage of the action, restraining the cor- 
 poration, and any and all of its directors, trustees, 
 and other officers from exercising any of its corporate 
 rights, privileges, or franchises, or from exercising cer- 
 tain of them ; or from exercising any franchise, lib- 
 erty, or privilege, or transacting any business, not al- 
 lowed by law. (Co. Civ. Proc. § 1802). In actions 
 brought pursuant to articles two, three or four of title 
 two, chapter fifteen, of the code of civil procedure, the 
 court may, on the application of either party, at any 
 stage of the action, before or after final judgment, and 
 with or without security, grant an injunction order, 
 restraining the creditors of the corporation, from bring- 
 ing actions against the defendants, or any of them for 
 the recovery of a sum of money, or from taking any fur- 
 ther proceedings in an action theretofore commenced. 
 (Co. Civ. Proc. § 1806). In proceedings for the 
 voluntary dissolution of a corporation, the court may, 
 after the appointment of a receiver, grant an in- 
 junction restraining the creditors of the corporation 
 
552 
 
 PRACTICE. 
 
 from beginning any action against the corporation for 
 the recovery of a sum of money, or from taking any 
 further proceedings in an action therefore commenced. 
 (Co. Civ. Proc. § 2423). This section does not apply 
 to a foreclosure suit. {Matter of Hamilton Parle Co., 
 1 App. Div. 375). An injunction will be granted, at 
 the suit of the receiver of an insurance company, on 
 the application of the attorney general, to stay suits 
 previously brought by policy holders, to recover assets 
 of the corporation. {Attorney General v. Guardian 
 Mut. Ins. Co., 77 N. Y. 272). In special proceedings 
 to wind up a corporation, actions against the receiver 
 will be enjoined, if such actions will hamper the re- 
 ceiver, or increase the expenses of executing his trust. 
 {Attorney General v. N. A. Life Ins. Co., 6 Abb. N. C. 
 293). 
 
 (B.) Religious Corporations. Under chapter 79, of 
 the laws of 1875, it was held that a religious corporation 
 could enjoin a majority of its trustees from diverting 
 the church property to another denomination. {First 
 Ref. Pres. Ch. v. Bowden, 10 Abb. N. C. 1 ; 14 Abb. N. 
 0. 356). Section 5 of the Religious Corporation Law 
 retains in substance, the provisions of chapter 79, of 
 the Laws of 1875, the latter having been expressly re- 
 pealed by section 110, of the Religious Corporation Law. 
 Trustees of a religious corporation will not be re- 
 strained, in an action by a pew owner, from making 
 alterations in the pews {Cooper v. First Pres. Ch., 32 
 Barb. 222) ; or from selling the church edifice, and 
 moving to a new church. {Erwin v. Hurd, 13 Abb. N. 
 C. 91). An injunction will not be granted, in an ac- 
 tion brought to try the title to the office of trustee of a 
 religious corporation. {Hartt v. Hartley, 32 Barb. 55). 
 But where there is great doubt as to the legal rights of 
 the rival claimants as trustees, the court will restrain 
 an interference with those who are in recognized pos- 
 session, until the legal right is settled at law. {Reis v. 
 Rohde.U Hun, 161). 
 
 (C.) Municipal Corporations. A municipal corpora- 
 tion, or its officers, may be restrained from illegal, cor- 
 rupt, fraudulent, or oppressive exercise of discretionary, 
 
INJUNCTIONS. 553 
 
 or legislative powers. {People v. Sturtevant, 9. N. Y. 
 263.) While equity will not ordinarily interfere with 
 matters resting largely in the discretion of municipal 
 authorities, yet, where a threatened action will produce 
 irreparable injury, and consists in the disposition of 
 public property, by devoting it, in part, at least, to the 
 uses of a private corporation, or where an illegal grant is 
 threatened, or any action attempted, which is fraudulent 
 and corrupt, and an abuse of trust, such interference 
 will be made. {People v. Dirijer, 90 N. Y. 402, 410) . A 
 Ijrivate person can only maintain an action for that pur- 
 pose, when the illegal act causes some special injury to 
 his property rights. {MiUiau v. Sharp, 27 N. Y. 611; 
 Doolittle V. Supcrrisors, 18 N. Y. 155). In other cases, 
 the action must be in the name of the people, or of the 
 attorney general. {People v. Mayor, 32 Barb. 35; Atty. 
 Gen. V. Mayor, etc., 3 Duer, 119 ; reversed on another 
 point, sub noin., Davis v. Mayor, 14 N. Y. 506). An in- 
 junction will not issue to prevent the passage of an ille- 
 gal ordinance {Whitucy v. Mayor, etc., 28 Barb. 233) ; 
 unless it appears that the mere passage of it, would 
 violate a contract right, or that it would produce irre- 
 parable private injury. (Id.; Lawrence v. Mayor, etc., 
 2 Barb. 577). An injunction will not be granted to re- 
 strain the enforcement of a city ordinance, nor of an 
 ordinance of the board of health, until its invalidity has 
 been established in an action at law; and then further 
 prosecution under the ordinance would be prevented by 
 means of an injunction. {Marvin Safe Co. v. Mayor, 
 etc. 38 Hun, 146; Sickles v. Neio Rochelle Board of 
 Health, 41 Hun, 408) . An injunction will not lie, by the 
 village authorities, to restrain the violation of a penal 
 ordinance. ( Village of Brockport v. Johnston, 13 Abb. 
 N. C. 468). An injunction will not lie, to restrain the 
 execution of a plan of improvement, adopted by a muni- 
 cipal corporation, unless material and actual injury is 
 the necessary or probable result. {Morgan v. City of 
 Binghamton, 102 N. Y. 500). To authorize the granting 
 of a temporary injunction, the act of the corporation 
 must be illegal and beyond its power, and not merely 
 inexpedient. {Roberts v. Mayor, etc., 5 Abb. Pr. 41). 
 
554 
 
 PEACTICB. 
 
 An injunction by a private person, against a municipal 
 corporation, to restrain trespasses on the plaintiff's 
 property, will lie only where the illegal act will produce 
 irreparable injury, or will lead to a multiplicity of suits. 
 (Blake v. City of BrooJdi/ii, 26 Barb. 301). In actions 
 brought under section nineteen hundred and twenty-five 
 of the code of civil procedure, to obtain a judgment, pre- 
 venting waste or injury to the estate, funds, or other 
 property of a county, town, city, or incorporated village, 
 a temporary injunction may be issued. {Hurlhurt v. 
 Banks, 1 Abb. N. C. 157, 172; Ayres v. Lawrence, 59 N. 
 Y. 192). 
 
 Subdivision 4. — Covenants. 
 
 An injunction will be granted to restrain a violation 
 by the lessee, of a covenant not to sub-let, or assign the 
 demised premises {Barrington Apprt. Assn. v. Watson, 
 38 Hun, 545) ; or where a building is let for use for a 
 specified purpose, to restrain the lessee from using it for 
 any other purpose. (Steward v. Winters, 4 Sand. Ch. 
 587; Dodge v. Lambert, 2 Bosw. 570). Where the pur- 
 chaser of a water-power, had covenanted that it should 
 be used only for a paper mill, an injunction was issued 
 to restrain him from using it as a cotton mill. (Wells 
 V. Chapman, 13 Barb. 561). An injunction will also lie 
 to restrain a grantee, who has covenanted not to erect, 
 or permit to be erected, any building, on a certain speci- 
 fied part of the premises conveyed (Phoenix Ins. Go. v. 
 (Jontinental Ins. Co., 87 N. Y. 400) ; or to restrain the 
 grantee, from doing any act which by a deed poll he had 
 agreed not to do. (Atlantic Dock Company v. Leauitt, 
 54 N. Y. 35 ) . It will restrain a violation of mutual cove- 
 nants by adjoining owners, made to secure uniformity 
 of structure or position of buildings, or to reserve lands 
 for a certain purpose. (Trustees of Columbia College v. 
 Lynch, 70 N. Y. 440). An injunction will issue in such 
 cases, although the agreement provides for liquidated 
 damages for violation of the covenant ; unless it appears 
 from the particular language, construed in the light of 
 the surrounding circumstances, that it was the intention 
 of the party to make the penalty the price of non-per- 
 
INJUNCTIONS. 555 
 
 formance, to be accepted by the covenantee in lieu 
 thereof. But, if the primary intent was, that the cove- 
 nant should be performed, the penalty is regarded merely 
 as a security, and not as a substitute for it. {Phoeaix 
 Ins. Co. v. Continental Ins. Co., 87 N. Y. 400). Such an 
 injunction, however, is in the discretion of the court; 
 and although the contract may be a fair and just one 
 when made, the interference of the court should be de- 
 nied, if the subsequent events have made the perform- 
 ance by the defendant so onerous, that its enforcement 
 would inflict great hardships upon him, and cause little 
 or no benefit to the plaintiff. {Trustees of Columbia 
 College v. Thacher, 87 N. Y. 311, 317). It was held, by 
 the special term of the superior court, that, where a 
 lessee covenants not to use a building for any business, 
 Avhich would increase the hazard or rates of insurance, 
 the court will, by injunction, restrain a violation of his 
 covenant. {Gillilan v. Norton, 6 Robt. 516). But the 
 contrary was held, in an earlier case, although later re- 
 ported, decided by the general term of the court of com- 
 mon pleas. (Agate v. Lowenbeln, 4 Daly, 62). An in- 
 junction will not be granted to restrain the breach of a 
 condition subsequent. {Ericln v. Hurd, 13 Abb. N. 
 C. 91.) 
 
 Subdivision 5. — Easements. 
 
 Where an easement or servitude is annexed, or per- 
 tains, to a private estate, either by grant, covenant, or 
 prescription, any encroachment upon its quiet enjoy- 
 ment and exercise, will be prevented by injunction. 
 {Seymour v. McDonald, 4 Sand. Ch. 502 ; Hills v. Miller, 
 3 Paige, 254 ; Trustees v. Cowen, 4 Paige, 510) . To war- 
 rant an interference in that class of cases, the easement 
 should be certain, and capable of being clearly ascer- 
 tained; and there should be a clear and palpable viola- 
 tion of the right. And the contract must be complete 
 and sufficient contract, founded upon a valuable con- 
 sideration, and its terms defined by satisfactory proof, 
 accompanied by acts of part performance, unequivocally 
 referable to the supposed agreement. (High on Injunc- 
 tions, § 849; CronkUte v. Cronkhite, 94 N. Y. 323). 
 
556 PRACTICE. 
 
 The owner of land, abutting on the highway, may re*. 
 strain such occupation of it by a railroad company, as 
 will obstruct access of light or air to his premises.: 
 {Glover v. Manhattan Ry. Co., 51 Super. 1). The court 
 will restrain the removal of soil by an adjoining owner, 
 if such removal will cause the subsidence of the plain- 
 tiff's land, by reason of the withdrawal of lateral sup-, 
 port {Farrand v. Marshall, 21 Barb. 409) ; or where it 
 will cause subsidence of the highway, to an extent that 
 will interfere with access by the plaintiff to his premises. 
 {Milhurn v. Fotolcr, 27 Hun, 568) . One who owns to the 
 center of the street, subject only to the easement for a 
 highway, may restrain the construction of a street rail- 
 way, or a steam railway, along the highway. {Craig v, 
 Eoch. City & Brighton R. R. Co., 39 N. Y. 404 ; Fanning 
 V. Oslorne, 34 Hun, 121; 102 N. Y. 441). One may re- 
 strain an electric light company, from erecting a pole 
 for the purpose of supporting wires on the sidewalk, in 
 front of his premises, where such pole is to be used for 
 private as well as public purposes ; unless it is clear that 
 such a pole is necessary for public use. ( Tifany v. V. 8. 
 Illuminating Co., 51 Super. 280). Plaintiff cannot re- 
 strain interference ^\\th an easement, unless he has a 
 right to it, which is something more than a mere license. 
 {Enickerhocl-er Ice Co. v. Shultz, 41 Hun, 458; 116 N. 
 Y. 382 ; Cronlihitc v. Cronlchite, 94 N. Y. 323) . But the 
 fact that his interest is trivial, is not a reason for refus- 
 ing an injunction. {Foster v. City of Buffalo, 64 How. 
 Pr. 127; affd. on op. below, 28 Hun, 56) . 
 
 ■ Subdivision 6. — Franchises. 
 
 An interference with a franchise will be restrained, 
 when the plaintiff is in possession of it, and his title is 
 not in doubt. {Livingston v. Van Ingen, 9 Johns. 507). 
 Unless the grant to the plaintiff is exclusive in terms, a 
 temporary injunction will not issue to restrain others, 
 claiming the right to exercise a similar franchise, or 
 legal rights which interfere with it. {Auburn & Cato 
 rik. Rd. Co. V. Douglas, 9 N. Y. 444; Fort Plain Bridge 
 Co. V. Smith, 30 N. Y. 44). The grounds of restraining 
 
INJUNCTIONS. 
 
 557 
 
 an interference with a franchise, are the inadequacy of 
 the remedy at law, and the necessity of avoiding multi- 
 plicity of suits. (High on Injunctions § 908). The city 
 of New York has an exclusive right to grant a ferry fran- 
 chise between it and the New Jersey shore ; and one who 
 runs a ferry between those points, without a grant, will 
 be enjoined at the suit of the city. {Mayor, etc., v. Long- 
 street, 64 How. Pr. 30) . The court has power to prohibit 
 a municipal corporation from granting franchises. 
 {People V. Stiirtevant, 9 N. Y. 263). 
 
 Subdivision 7. — Highways. 
 
 A commissioner of highways cannot, by injunction, 
 compel a removal of, or restrain an obstruction in, a 
 highway. (Bozell v. Andrews, 103 N. Y. 150). A pri- 
 vate person cannot restrain, by injunction, an obstruc- 
 tion in a highway, unless he shows a substantial injury, 
 which is special to himself. (Ninth Ave. B. R. Co. v. N. 
 Y. Elevated B. B. Co., 3 Abb. N. C. 347; 7 Daly, 174). 
 One may restrain the placing of skids continuously 
 across the sidewalk, where it presents (Obstructions to 
 his place of business (Callanan v. Gilman, 107 N. Y. 
 360) ; or the use of the sidewalk to show goods, to such 
 an extent as to deprive him of light, air and access. 
 (Hallock V. Sclieyer, 33 Hun, 111; Lavery v. Hannigan, 
 52 Super. 463) . The court, by injunction, will forbid the 
 keeping of a hack-stand on the highway in front of 
 plaintiff's premises, where it causes inconvenience and 
 annoyance, although a village ordinance allows it. ( Mc- 
 Caffrey V. Smith, 41 Hun, 117). An injunction will 
 issue to restrain the removal of the plaintiff's fences, and 
 the replacing them, so as to throw .open his land as a 
 highway, and to increase the difficulty of access to his 
 premises. {DeWitt v. Van Schoyk, 110 N. Y. 7). The 
 shutting up of a highway, which is one of several ap- 
 proaches to the plaintiff's premises, although the most 
 convenient, if allowed by the proper authority, will not 
 be restrained. (Hier v. N. Y. West Shore & Buffalo B. 
 B. Co., 40 Hun, 310; affd. on op. below, 109 N. Y. 659). 
 After proceedings have been taken to lay out a highway. 
 
558 
 
 PRACTICE. 
 
 and the appraisal of damages has been confirmed, the 
 commissioners of highways will be restrained from tak- 
 ing out of the land, to grade other portions of the high- 
 way, more gravel than the process of construction or 
 repair requires and necessarily compels to be removed, 
 where he taks it by digging pits in the highway. (Robert 
 V. Sadler, 104 N. Y. 229 ) . Other matters in regard to 
 highways may be found under the head of easements and 
 nuisances. 
 
 Subdivision 8. — Judicial Proceedings. 
 
 This section refers only to the cases in which proceed- 
 ings may be stayed ; and it will not treat of the require- 
 ments as to security, which will be considered later. 
 
 (A.) Actions at Law. The jurisdiction of the courts 
 to restrain proceedings at law, in cases where the exer- 
 cise of this jurisdiction is essential to the complete ad- 
 ministration of justice, and the proper security of the 
 rights of litigants, is well established, and has not been 
 abrogated or prejudiced by the union of the two jurisdic- 
 tions of law and equity, in a single tribunal. [Fielding 
 V. Lucas, 87 N. Y. 197, 199; Bomeisler v. Forster, 154 
 N. Y. 229). One judge of the supreme court, sitting at 
 special term, has authority to enjoin the prosecution of 
 an action, before another judge, or in another court 
 (Erie Railwaij Co. v. Ramsey, 45 N. Y. 637 ; N. Y. & New 
 Haven R. R. Co. v. Schuyler, 17 How. Pr. 464) ; but such 
 jurisdiction is not to be exercised, unless in extreme 
 cases, and where most serious consequences would result 
 from a refusal. {Erie Railway Co. v. Ramsey, supra). 
 The court may also enjoin parties from proceeding be- 
 fore a surrogate's court, in a case where the defendant is 
 estopped from prosecuting in that court. {Pettigrew v. 
 Foshay, 12 Hun, 483) . The jurisdiction in such matters 
 depends upon the necessity for the interference of the 
 court, to prevent the failure of justice. [Morse v. Cloyes, 
 Held. Notes, 184). The court will not usually restrain 
 the prosecution of a suit, previously begun in a court 
 of another state, or of the United States [Williams v. 
 Aryault, 31 Barb. 364) ; but it may do so, if a special case 
 is shown for it. ( Vail v. Enapp, 49 Barb. 299 ; Kittle v. 
 
INJUNCTIONS. 559 
 
 Kittle, 8 Daly, 72 ; Stevens v. Gent. Nat. Bk., 144 N. Y. 
 50; Davis v. Cornue, 151 N. Y. 172). It will restrain 
 actions, subsequently commenced in a court of foreign 
 jurisdiction, or threatened to be commenced therein, 
 where it is necessary to prevent injustice or oppression 
 {Kittle V. Kittle, supra) ; as where one threatens to sue 
 in a court of an American consul abroad, who has no 
 jurisdiction of the action (Dainese v. Allen, 3 Abb. Pr. 
 N. S. 212), or where it appears that the suit is brought 
 to vex, harrass, or annoy the plaintiff Claflin\. Hamlin, 
 62 How. Pr. 284), but the facts showing that purpose 
 must be alleged ( White v. Caxton Book Binding Co., 10 
 Civ. Proc. Rep. 146) ; or where a party is seeking, in 
 another state, a remedy totally inconsistent with the 
 rights he has asserted in the courts of this state ( Garri- 
 son V. Marie, 7 Civ. Proc. Rep. 113) ; or where it appears 
 that the defendant had commenced, in the court of an- 
 other state, a suit against the plaintiff, to recover the 
 value of packages, upon a receipt and contract by the 
 terms of which the plaintiff, according to a decision of 
 the court of appeals of this state, was liable only for a 
 specified sum, far below the value of the package, and 
 which had been tendered to the defendant ; but, accord- 
 ing to the decision of the supreme court of the other 
 state, was liable for the full value of the packages, and 
 where the defendants were within the jurisdiction of the 
 court. (Dmsmore V. IVeresTieimer, 32 Hun, 204). Pro- 
 ceedings in the courts of the United States will not be 
 restrained, simply because the law is held differently 
 in those courts, than in the courts of this state. {Town 
 of Thompson v. Norris, 11 Abb. N. C. 163). A non-resi- 
 dent will not be restrained from suing in the courts of 
 his own forum {Barry v. Mut. Life Ins. Co., 2 T. & C. 
 15), but he may be enjoined from proceeding in the 
 courts of this state as long as he prosecutes the action 
 in the foreign jurisdiction. {Allentoton F. & M. Works 
 V. Loretz, 16 App. Div. 72). The ground upon which 
 proceedings at law are enjoined is to restrain a multi- 
 plicity of suits. {Third Ave. B. R. Co. v. Mayor, etc., 
 54 N. Y. 159 ) . But, whether or not it will be done, is 
 36 
 
560 
 
 PKACTICB. 
 
 always discretionary with the court. {Pfohl v. Samp- 
 soJ^,59N. Y. 174). 
 
 Proceedings at law have been enjoined in the follow- 
 ing cases : in an action to set aside a lease, a subsequent 
 action by the defendant, to recover rent upon it [Man- 
 neck Mfg. Co. V. Manneck, 15 Wk. Dig. 558) ; in an 
 action for divorce, where the husband has removed to 
 another state, and has begun an action for divorce in 
 that state (Forrest v. Forrest, 2 Edmund's Sel. Cas. 
 180) ; an action of ejectment by the grantee, to recover 
 the lands embraced in a deed by mistake (Bush v. Hicks, 
 60 N. Y. 298 ) ; to prevent a creditor from suing an insol- 
 vent corporation, to obtain a preference, with the con- 
 nivance of officers of the corporation (Galwey v. U. S. 
 Sugar Ref. Co., 21 How. Pr. 313; 13 Abb. Pr. 211) ; to 
 restrain an action, enforcing a forfeiture under a con- 
 tract, during the pendency of an action to correct a mis- 
 take in the contract. [Humphreys v. Hurtt, 3 Hun, 
 216). Wherever the object of the two actions is the 
 same, the second action should be restrained. ( Schuehle 
 V. Beiman, 86 N. Y. 270). Ordinarily, the application 
 for a stay should be by a motion in the action, and not 
 by a new suit [Savage v. Allen, 54 N. Y. 458) ; unless 
 the object of the action cannot be accomplished by a 
 simple stay of proceedings in the action. [Cliappell v. 
 Potter, 11 How. Pr. 365) . The stay of proceedings oper- 
 ates on the parties, and not upon the court. [1^.Y.& 'New 
 Haven R. R. Co. v. Schuyler, 17 How Pr. 464). Wher- 
 ever it is necessary, an injunction may run not only 
 against the party, but also against the attorney, coun- 
 sellor, and agents. [Armitage v. Hoyle, 2 How. Pr. N. 
 S. 438). An injunction will not be granted, where the 
 question presented is the same at law and in equity 
 [Wallaclc V. Society for Relief of Juv. Delinquents, 67 
 N. Y. 23) ; nor where relief may be obtained by proper 
 defense in the suit at law [Savage v. Allen, 54 N. Y. 458; 
 Hayward v. Hood, 39 Hun, 596; People v. Wasson, 64 
 N. Y. 167, 170) ; as to when relief may be obtained at 
 law, see Cantoni v. Forster, 12 Misc. 376 ; affd. without 
 opinion, 146 N. Y. 405) ; nor where the party, moving 
 for the stay, may intervene in the suit, and protect his 
 
INJUNCTIONS. 561 
 
 interest. {Woodicard v. Frost, 19 Wk. Dig. 125). It 
 will not be granted, to restrain a defendant from insti- 
 tuting legal proceedings against the plaintiff. ( Gowper 
 V. Theall, 40 Him, 520). Trial by court-martial will no't 
 be stayed, because the plaintiff has been once tried and 
 fears an unfair trial. {Perault v. Rand, 10 Hun, 222). 
 A party cannot obtain an injunction, to restrain the 
 commencement of an action, because of the serious in- 
 jury which will result to him from it. {Wolfe v. Burke, 
 56N. Y. 115). 
 
 (B. ) Judgments. An injunction will issue to restrain 
 proceedings upon a verdict, or the collection of a judg- 
 ment, where it is made to appear, by facts of which the 
 party could not avail himself as a defense, that the en- 
 forcement thereof would be contrary to equity or good 
 conscience; but it will not interpose upon the ground 
 that the verdict or judgment was erroneous; the error 
 must be cured, if at all, in the action in which it oc- 
 curred. {N. Y. d Harlem R. R. Co. v. Haws, 56 N. Y. 
 175 ; Ladeiv v. Hart, 8 App. Div. 150 ; affd. on op. below, 
 155 N. Y. 629). Where a defendant obtained a judg- 
 ment, by falsely stating the causes of action, and thus 
 inducing the plaintiff not to appear, he was restrained 
 from enforcing the judgment. {Hinclcley v. Miles, 15 
 Hun, 170). Wherever it is attempted to use fraudu- 
 lently or inequitably, a judgment obtained in good faith 
 {Hawley v. Mancius, 7 Johns. Oh. 174, 182) ; or where a 
 judgment of a justice's court has been satisfied, and the 
 plaintiff, if compelled to pay, has no remedy at law 
 {Mallory v. Norton, 21 Barb. 424) ; or where the holder 
 of a senior judgment, which has been paid, fraudulently 
 keeps it alive, and is threatening to sell the debtor's real 
 estate to collect it, to the prejudice of a junior judgment 
 creditor {Shaw v. Dwight, 27 N. Y. 244) ; the collection 
 of the judgment will be restrained by injunction. 
 
 Where, after the recovery of a judgment, the parties 
 have made a new contract, which will supersede the 
 judgment, the plaintiff will be restrained from carrying 
 the judgment into effect, so far as it conflicts with the 
 contract. {Van Wagenen v. LaFarge, 13 How. Pr. 16). 
 The next of kin may enjoin the collection of a judgment 
 
562 
 
 PRACTICE. 
 
 against the administrator, when it appears that the 
 claim is unfounded, in Avhole or in part, and that the 
 administrator was guilty of fraud or collusion, in per- 
 mitting it to be recovered. {Mayer v. GilUgan, 2 N. Y. 
 St. Eep. 702). Where land was sold on foreclosure, 
 subject to a judgment, and primarily liable for its pay- 
 ment, and the purchaser has taken an assignment of the 
 judgment, and was proceeding to collect it out of the 
 estate of the mortgagor, an injunction was granted to 
 restrain him. (Rossotc v. Bank of Commerce, 22 Wk. 
 Dig. 448). An injunction will not lie to restrain the 
 collection of a judgment, because the defendant was not 
 served with process; for the reason that the judgment is 
 void, and the defendant has a complete remedy at law 
 for anything which is done to collect it. {Fullan v. 
 Hooper, 66 How. Pr. 75; 19 Wk. Dig. 93). In a case 
 where the defendant was prevented from attending the 
 trial, and where it was alleged that, by subornation of 
 a witness, the plaintiff had recovered more than he ought 
 to, and a new trial had been denied, an injunction to 
 restrain the collection of a judgment was refused. 
 [Smith V. Lowrij, 1 Johns. Ch. 320). In an action on an 
 award, where it was alleged that a witness swore falsely 
 before the arbitrators, an injunction was refused to 
 stay the action. ( Woodioorth v. Van Bnslccrk, 1 Johns. 
 Ch. 432). Where a judgment had been satisfied, an in- 
 junction was refused to stay the sale under an execution 
 issued upon it (Lansing v. Eddy, 1 Johns. Ch. 49) ; so, 
 where the sheriff, upon a judgment against the property 
 of an assignor, levies an execution on goods in the hands 
 of the assignee. (Dawson v. American Surety Co., 22 
 Wk. Dig. 562). In each of these cases, the injunction 
 was refused, because the plaintiff had a complete remedy 
 at law. An injunction was refused to restrain the execu- 
 tion of the sentence of an ecclesiastical court, where 
 there was jurisdiction to make it. (Walker v. Wain- 
 -ioright, 16 Barb. 486). The holder of a subsequent 
 mortgage is not entitled to a stay of the judgment of 
 foreclosure of a prior mortgage. (Blooming dale v. Bar- 
 nard, 7 Hun, 459). Where it is sought to restrain the 
 collection of a judgment or proceedings upon a verdict. 
 
INJUNCTIONS. 5G3 
 
 the party is not bound to seek his relief by motion in 
 the original action; but he may institute an action for 
 the purpose. (N. Y. & Harlem R. R. Co. v. Haws, 56 N. 
 Y. 175). 
 
 (C.) Bummary Proceedings. The proceedings upon 
 a petition in a summary proceeding, before a final order, 
 and the final order itself, which awards delivery of the 
 possession to the petitioner, may be stayed by injunction, 
 granted in an action against the petitioner. But such 
 an injunction shall not be granted before the final order 
 in the special proceeding, except in a case where an in- 
 junction would be granted to stay the proceedings in an 
 action of ejectment, brought by the petitioner, and upon 
 the like terms ; or, after the final order, except in a case 
 where an injunction would be granted to stay the execu- 
 tion of the final judgment, in such an action, and upon 
 the like terms. (Co. Civ. Proc. § 2265). These proceed- 
 ings are only stayed where it appears that the magis- 
 trate has no jurisdiction ; or the proceeding is fraudulent 
 or collusive; or when the plaintiff is making an op- 
 pressive use of the judgment; or when the plaintiff's 
 title to the premises has terminated; or where the de- 
 fendant has, subsequent thereto, acquired some interest 
 or equity in the subject matter of the action, which 
 should be protected. {Knox v. McDonald, 25 Hun, 268; 
 McRobert v. Harrison, 20 Wk. Dig. 228; Chadwich v. 
 Sparrjiir, 1 Civ. Proc. Rep. 422; Crawford v. Kastiicr, 
 26 Hun, 440; Potter v. Potter, 59 App. Div. 140). It 
 will not be granted where there is a legal defense to the 
 proceedings (Rapp v. Williams, 4 T. & C. 174) ; or where 
 there is a remedy by appeal. {Jessurun v. Maclde, 24 
 Hun, 624) . Where summary proceedings and ejectment 
 are begun at the same time, to recover the same premises, 
 an action to restrain either will not lie, because a suc- 
 cessful termination of either can be pleaded in bar of the 
 other. (Grissler v. Btuyvesant, 67 Barb. 77). Section 
 620 of the code of civil procedure is applicable to an in- 
 junction obtained under section 2265, and an under- 
 taking is, therefore, required. (Potter v. Potter, supra) . 
 
564 PRACTICE. 
 
 Subdivision 9. — Nuisances. 
 
 A public nuisance will be restrained at the suit of the 
 attorney general, if it injuriously affects or injures the 
 public interests {Atty. Gen. v. Cohoes Co., 6 Paige, 133) ; 
 or an individual may maintain an action to restrain it, 
 if he sustains damage by it, which is special and peculiar 
 to him, as distinguished from the rest of the community, 
 so that as to him it is a private nuisance. {Milhau v. 
 Sharp, 27 N. Y. 611 ; Bnchholz v. N. Y. L. E. & W. R. R. 
 Co., 148 N. Y: 640). If the thing complained of is in 
 itself a nuisance, and the plaintiff's right is not doubtful, 
 an injunction will issue to restrain imminent danger to 
 property or irreparable injury. {Mayor of Rochester v. 
 Curtiss, Clarke Ch. 336; Phoenix v. Coiiim'rs of Emigra- 
 tion, 1 Abb. Pr. 466 ; 12 How Pr. 1 ; Health Dept. of N. 
 Y. V. Purdon, 99 N. Y. 237). To warrant a preliminary 
 injunction to restrain a nuisance, the injury caused by it 
 must be substantial {Ninth Ave. R. R. Co. v. N. Y. Ele- 
 vated R. R. Co., 3 Abb. N. C. 347 ; 7 Daly, 174 ; Forty- 
 second St. R. R. Co. V. Thirty-fourth St. R. R. Co., 52 
 Super. 252), and not trivial or merely nominal or tem- 
 porary. (High on Injunctions, § 740). If the thing 
 sought to be restrained is not in itself a nuisance, but 
 only something which may, according to circumstances, 
 prove to be so, the court will refuse to interfere ; unless 
 it is a case of strong and imperious necessity, -or the 
 right infringed has been previously established at law, 
 or long enjoyed without interruption. (High on Injunc- 
 tions, § 742 ; Health Dept. of N. Y. v. Purdon, 99 N. Y. 
 237, 241; Mohaiok Bridge Co. v. Utica & Schenectady 
 R. R. Co., 6 Paige, 554) . The fact that the plaintiff took 
 possession of the premises, after the erection of the 
 nuisance, does not preclude his right to restrain it. 
 {Campbell v. Seajiian, 63 N. Y. 568) . But if the erection 
 of the nuisance was encouraged by the plaintiff, a tem- 
 porary injunction should not be granted to restrain it, 
 upon his application. {Harrison v. Newton, 9 N. Y. Leg. 
 Obs. 347) . Within these rules, a preliminary injunction 
 has been allowed to one who owns land to the center of 
 
INJUNCTIONS. 565 
 
 the street, to restrain the illegal construction of a street 
 railroad, on the highway in front of his premises 
 {Thayer v. Rochester City & B. R. R. Co., 15 Abb. N. 0. 
 52 ) ; to the owner of an inn for an unlawful obstruction 
 of the highway on account of a change of grade (Buch- 
 holz V. .A\ Y. L. E. & W. R. R. Co., 148 N. Y. 640) ; to one 
 street railroad company against another, to restrain the 
 illegal construction of a road by the defendant, on the 
 route occupied by the plaintiff {Forty-second St. R. R. 
 Co. V. Thirty-fourth St. R. R. Co., 52 Super. 252) ; or 
 from its operation after it was constructed. {Central 
 Crosstoii-n R. R. Co. v. Met. St. Rivy. Co., 16 App. Div. 
 229) ; to restrain the erection of poles by an electric 
 light company, in front of the plaintiff's premises ( Tif- 
 fany V. U. S. Illuminating Co., 67 How. Pr. 73) ; to re- 
 strain the use of a building for a slaughter-house {Brady 
 V. ^Yeehs, 3 Barb. 157), or for a melting house. {Peck 
 V. Elder, 3 Sand. 126 ) , or for a bawdy house. ( Cranford 
 V. Tyrell, 128 N. Y. 343). In case of a noxious trade, 
 it is of no consequence that the plaintiff does not 
 reside on his property; an injunction will be granted 
 if the nuisance will diminish the value of it. {Peck 
 \. Elder, supra). A temporary injunction has also been 
 granted, to prevent an adjoining owner from jarring 
 plaintiff's premises by the use of machinery. {McKeon 
 V. See, 4 Kobt. 449; aff'd. 51 N, Y. 300). A temporary 
 injunction has also been granted, to restrain blasting on 
 the lot of an adjoining owner, where it appeared that 
 smaller blasts might be used effectively without dam- 
 age. {Hill V. Schneider, 13 App. Div. 299) . A prelimin- 
 ary injunction was refused, to prevent the use of de- 
 fendant's premises for a blacksmith shop {Doellner v. 
 Tynan, 38 How. Pr. 176) ; or for a coal yard. {Russell 
 v. Popham, 3 N. Y. Leg. Obs. 272). The injunction 
 should not forbid the acts absolutely, when it is possible 
 to do them in such a way as not to be a nuisance ; but it 
 should forbid doing them in such a manner as to tend to 
 cause the nuisance. {McKeon v. See, supra; Snow v. 
 Williams, 16 Hun, 468). 
 
566 
 
 TEACTICE. 
 
 Subdivision 10. — Office and Official Acts. 
 
 A preliminary injunction is rarely granted in an 
 action of quo tvarranto [People v. Draper, 24 Barb. 
 265), either to restrain the defendant from exercising 
 the office {People v. Farley, 1 How. Pr. N. S. 71), or to 
 restrain a claimant from taldng possession of it, under 
 cover of title {Mayor, etc., v. Voiiorer, 5 Abb. Pr. 171; 
 Morris v. Whelan, 11 Abb. N. C. 64; Coulter v. Murray, 
 
 4 Daly, 506) ; or to restrain a public board from remov- 
 ing one of its officers. {Palmer v. Bd. of Education, 47 
 App. Div. 547) ; but an injunction has been granted re- 
 straining the members of a common council from remov- 
 ing the president of a city. {Armatage v. Fisher. 74 
 Hun, 167). The question of title to the office must be 
 determined in the plaintiff's favor, before he can have 
 an injunction, to restrain the defendant from exercising 
 its duties. {People y. Sampson, 25 Barh. 254:). Where 
 the defendant, under and by appointment by the city 
 controller, to be a deputy chamberlain, undertook by 
 threats and violence, to oust the deputy in possession 
 and doing the duties under a proper appointment, an 
 injunction will issue to prevent it. {Palmer v. Foley, 36 
 Super. 14). An injunction Avill not lie in an action by 
 the people, for the removal from an office of a corpora- 
 tion, of a person who has unlawfully entered into it, and 
 is acting de facto {People v. ConJdin, 5 Hun, 452) ; nor 
 in an action against two individuals, to try the right to 
 an office in a religious corporation. {Hartt v. Harvey, 
 32 Barb. 55). When an acton has been brought to eject 
 a clergj'man from his possession of the church, where he 
 is not rightfully in possession, but there was no one who 
 claims the office, he will not be restrained from exercis- 
 ing its duties. ( Youngs v. Ransom, 31 Barb. 49) . Where 
 one, under an unlawful claim of title, threatens to seize 
 books of a municipal corporation, the value of which 
 cannot be estimated in damages, and it appears that the 
 act will cause great delay in the public business, from 
 the taking of the books, and their loss, an injunction 
 will be granted to restrain it. {Mayor, etc., v. Gonover, 
 
 5 Abb. Pr. 171) . The officers of a municipal corporation 
 
INJUNCTIONS. 567 
 
 in peaceable possession, will be protected by injunction 
 from an unauthorized usurpation. {Tyaclc v. Bromley, 
 4 Edw. Ch. 258; 1 Barb. Ch. 519). 
 
 Where officers have discretion to act, they will not 
 be restrained [LeRoy v. Mayor, etc., 4 Johns. Ch. 352) ; 
 except where their proceedings are shown to be illegal, 
 or corrupt, or in bad faith, or it appears that the pro- 
 posed act will be a mei'e arbitrary exercise of power. 
 {Philips V. Wickhani, 1 Paige, 590; Oswego Falls Br. Co. 
 V. Fish, 1 Barb. Ch. 547; Harticcll v. Armstrong, 19 
 Barb. .166; Tribune Assn. v. SnU' Print. Assn., 7 Hun, 
 175 ) . The legislature cannot in any case be restrained 
 by injunction, directly or indirectly. {People v. Canal 
 Board, 55 N. Y. 390). Whether the chief executive 
 officer of the state can be restrained by injunction, seems 
 to be doubtful upon the authorities. As to the powers 
 confided to his discretion, he is undoubtedly entirely 
 independent of the judiciary. Whether or not he can be 
 restrained by injunction in the exercise of ministerial 
 powers, there is a hopeless conflict of authority. But 
 the better opinion seems to be that he is not amenable to 
 the control of courts. {Haickins v. Governor, 33 Am. 
 Dec. 346, note; People v. Bissell, 19 Illinois, 220; High 
 on Extra. Leg. Eem, § 120; People ex rel Broderick v. 
 Morton, 156 N. Y. 136). Many of the cases on the sub- 
 ject will be found collected in the note to the case first 
 cited. As to all other administrative offices, there is no 
 doubt of the jurisdiction of the court to restrain their 
 conduct by injunction. {Supreme Council of Chosen 
 Friends v. Fairman, 10 Abb. N. C. 162; People v. Canal 
 Board, 55 N. Y. 390; Western R. R. Co. v. ISlolan, 48 N. 
 Y. 513). But such officers will not be restrained from 
 proceeding under a statute itself void, unless it appears 
 that they are acting under it, or threatening to do so, 
 and that actual or material injury from such action is 
 imminent. {People v. Canal Board, supra). An in- 
 junction may issue against the officers of a municipal 
 corporation, in a taxpayers' action, brought under sec- 
 tion nineteen hundred and twenty-five of the code of 
 civil procedure. (At/res v. Latprence, 59 N. Y. 192). It 
 will be granted against the common council of a city, to 
 
568 
 
 PRACTICE. 
 
 prevent an illegal act, or the abuse or illegal exercise of 
 a discretion, to the injury of the public, or of private 
 rights {Xegus v. Ciiij of Brooklyn, 10 Abb. N. C. 180) 5 
 but the operation of the statute is confined to cases 
 where the acts complained of are without power, or 
 where corruption, fraud or bad faith, amounting to 
 fraud, is charged. (Talcott v. Gitij of Buffalo, 125 N. Y. 
 280). Highway commissioners will be, restrained by in- 
 junction, from opening a highway thi'ough lands ac- 
 quired by a railroad company for railroad purposes 
 {Prospect Park R. R. Co. v. Williamson, 91 N. Y. 552; 
 S. C. 18 Wk. Dig. 257) ; or from moving the plaintiff's 
 house when the officials claim it encroaches upon the 
 highway, and it is shown that it does not. (Flood v. 
 Van Wormer, 147 N. Y. 284). As a general rule, equity 
 will not interfere by injunction to restrain the enforce- 
 ment of the criminal laws. {Davis v. Am. Soc, etc., 75 
 N. Y. 362; Coijkendall v. Hood, 36 App. Div. 558) ; it 
 is impossible to define the cases in which courts of equity 
 will intervene by injunction to prevent irreparable mis- 
 chief. {Davis V. Am. Soc, supra). An injunction has 
 been issued to the police commissioners of New York, 
 to restrain them from interfering with the business of an 
 express company engaged in interstate commerce ( Dins- 
 more V. The Board of Police, 12 Abb. N. C. 436) ; and to 
 restrain them from interference with the business and 
 l>roperty of a manufacturer, engaged in the manufac- 
 ture of iron, working on Sunday, where such interfer- 
 ence would destroy his business and property. {Man- 
 liattau Iron Works v. French, 12 Abb. N. C. 446). In 
 the case last cited, it was held that, although the courts 
 had no power to restrain an illegal arrest solely because 
 of its illegality, yet where an arrest was illegal, and 
 would result in the destruction of business, it was within 
 their jurisdiction to enjoin it. The police authorities 
 may be restrained from invading the precincts of a pri- 
 vate club house, when the intention is to interfere with 
 its festivities, not amounting to a nuisance or a breach 
 of the peace ; but they will not be thus restrained, where 
 the members of the club are selling liquor without war- 
 rant, to persons not members of the club. ( Gercle Fran- 
 
INJUNCTIONS. 569 
 
 cats de L'Harmonie v. French, 44 Hun, 123 ; S. 0. 35, Alb. 
 Law J. 347). Injunctions have also been issued to the 
 quarantine commissioners, restraining them from ac- 
 quiring land not necessary for their purposes ( Town of 
 Graresend v. Curtiss, 34 How. Pr. 261) ; and to commis- 
 missioners of excise, restraining them from revoking a 
 license, when the law gave them no power to do so. 
 (Kostar v. The Board of Excise, Daily Keg. March 19th, 
 1886). But an injunction will not issue, to restrain a 
 citizen from applying to a public officer for action in his 
 behalf, unless his doing so would violate some agreement 
 with others {People v. Canal Board, 55 N. Y. 390) ; nor 
 to restrain a police commissioner from exercising super- 
 vision over citizens, where the remedy for the unlawful 
 act is adequate at law {Sterman v. Kennedy, 15 Abb. Pr. 
 201) ; nor to restrain a commissioner of highways from 
 laying out a highway, in a case where he might have 
 power to do so, on allegation that the proceedings were 
 irregular (Albany & Northern R. R. Co. v. Brownell, 24 
 N. Y. 345) ; nor to restrain him from removing a fence, 
 certified to be an encroachment on the highway {Hyatt 
 V. Bates, 40 N. Y. 164) ; nor to restrain a board of educa- 
 tion from procuring fuel for a school house, at the suit 
 of one who claims to have a contract to furnish it; for 
 in such a case, he has an adequate remedy at law. 
 {French v. Board of Education, 18 Wk. Dig. 149). 
 The commissioners of pilots cannot be restrained by in- 
 junction, from removing an obstacle to navigation. 
 {Moore v. Board of Pilots, 32 How. Pr. 184). An in- 
 junction was refused to restrain the board of health 
 from suppressing a nuisance. {Sickles v. New Rochelle 
 Board of Health, 41 Hun, 408) . The court has no power 
 to restrain assessors from exercising the duties of their 
 office. {Western R. R. Co. v. Nolan, 48 N. Y. 513). 
 Where the officer is sued in his individual name, an in- 
 junction restraining him from acting, will not bind his 
 successor in office. {Magee v. Cutler, 43 Barb. 239). 
 
570 PRACTICE. 
 
 Subdivision 11. — Personal Services. 
 
 Usually, an injunction will not lie to enforce a con- 
 tract to render personal services, or to restrain its viola- 
 tion ; as to restrain an actor, or singer, or danseuse from 
 performing elsewhere than for the plaintiff, in violation 
 of his contract. {Fredericks v. Mayer, 1 Bosw. 227; 
 Sanquirico v. Benedetti, 1 Barb. 315; Mapleson v. Del 
 Puente, 13 Abb. N. C. 144). But in Dali/ v. Stnith (38 
 Super. 158), it was held that an injunction might be 
 granted to restrain a violation of such a contract, when 
 from such violation, irreparable damage would be sus- 
 tained by the plaintiff; and in that case, where a thea- 
 trical manager made a contract for the dramatic season 
 with a distinguished artist and a great artistic acquisi- 
 tion, intending to secure her dramatic services and her 
 name, and to prevent her going elsewhere, and publicly 
 announced her as a member of his company ; the engage- 
 ment of the actress to play during such season, at a rival 
 theater in the same city, and the public announcement 
 thereof, was held to present a case of irreparable dam- 
 ages, and that, although the actress was pecuniarily re- 
 sponsible, and the violation was enjoined. To the same 
 effect see Duff v. Russell (60 N. Y. Super. Ct. Eep. 80). 
 In Roosen v. Carlson ( 46 App. Div. 233 ) , the court ap- 
 proved the doctrine as laid down in Pomeroy on Specific 
 Performance [2 Ed.], § 24, in these words: "Where one 
 person agrees to render personal services to another, 
 which require and presuppose a special knowledge, skill 
 and ability in the employe, so that in case of a default 
 the same services could not easily be obtained from 
 others, although the affirmative specific performance of 
 the contract is beyond the power of the court, its per- 
 formance will be negatively enforced by enjoining its 
 breach." An advertising agent has been held not to 
 render unique and extraordinary services within this 
 rule, and an injunction to restrain a breach of his con- 
 tract of employment, was refused. ( W. J. Johnston Co. 
 V. Hunt, 66 Hun, 504 ; affd, on op. below, 142 N. Y. 621) . 
 
INJUNCTIONS. 571 
 
 Subdivision 12. — Publications. 
 
 The publication of a libel cannot be restrained. [Bran- 
 dretli V. Lance, 8 Paige, 24; IV". Y. Juv. (hmrd. Hoc. v. 
 Roosevelt, 7 Daly, 188). The courts have jurisdiction to 
 restrain a false publication, which is calculated to and 
 does injure the plaintiff in his property rights. (Briggs 
 V. Tick, 65 N. Y. 569; Green v. U. H. Dealers Fro. Ass'n, 
 39 Hun, 300). In the cases of Wetmore v. Hforell (3 
 Edw. Oh. 515), and^o?/* V. McKenzie (3 Barb. Ch. 320), 
 it was held that an injunction to restrain the publication 
 of private letters, could only be granted, where it ap- 
 peared that the letters possessed a certain value as liter- 
 ary possessions, and not where they were merely friendly 
 letters on private or domestic matters ; but the superior 
 court of the city of New York overruled these cases, and 
 laid down the following rules as established : 
 
 1. That the writer of letters, whether they are literary 
 compositions, or familiar letters, or letters of business, 
 possesses the sole and exclusive right of publishing the 
 same, and that without that consent, they can not be 
 published either by the person to whom they are ad- 
 dressed, or by another. 
 
 2. That the receiver of the letters may, however, jus- 
 tify their publication, Avhen it is shown to be necessary 
 to the vindication of his own right or conduct, against 
 unjust claims or imputations. 
 
 3. That if the receiver attempt to publish the letters, 
 or any parts of them, against the wishes of the writer, 
 and upon occasions not justifiable, a court of equity is 
 bound to prevent the publication, by an injunction, as a 
 breach of that exclusive property which the writer re- 
 tains. 
 
 4. That as against a stranger, who has possessed him- 
 self of the letters, or of copies thereof, unlawfully, the 
 right to restrain the publication by an injunction is ab- 
 solute; such persons not being justified in publishing 
 the letters for any purpose whatever. ( Woolsey v. Jiidcl, 
 4Duer, 379). 
 
 The same rules were substantially laid down by Judge 
 Story. {Folsom v. Marsh, 2 Story, 100). The asso- 
 
572 PRACTICE. 
 
 ciated press has the right to news collected by it, until 
 it is abandoned by publication; and a violation of that 
 right will- be restrained by injunction. {Kiernan v, 
 Manhattan Quo. Tel Co., 50 How. Pr. 194). One who 
 receives quotations of the market prices from a telegraph 
 company, under a contract not to publish them, will be 
 restrained from doing so. {Gold & Stock Tel. Co. v. 
 Todd, 17 Hun, 548). An injunction cannot be granted 
 to restrain the publication of legal proceedings. ( Wood 
 V. Mai-clne, 3 Duer, 674). The publication of a news- 
 paper can only be restrained upon analogy to the law 
 of trade marks. {Dayton v. AVilkes, 17 How. Pr. 510; 
 Railicaij Age Pub. Co. v. Garnett, 17 Wk. Dig. 250). 
 (For further decisions on this subject, see title Copy- 
 right, above). 
 
 Subdivision 13. — Patents. 
 
 The courts of the state have no jurisdiction to restrain 
 a party from the use of a patent, during the pendency of 
 an action involving the title to it, or in any way to re- 
 strain their infringement. ' ( Continental Store Serv. Co. 
 V. Clarke, 100 N. Y. 365). 
 
 Subdivision 14. — Taxes and Assessments. 
 
 An injunction will not lie to restrain an assessment 
 of a tax {Western R. B. Co. v. Nolan, 48 N. Y. 513) ; nor 
 to restrain its collection, except under circumstances of 
 great necessity, to prevent irreparable damage. {Rome, 
 Watertoivn <& Ogdh. R. R. Co. v. Smith, 39 Hun, 332; 
 affd. 101 N. Y. 684). Where the owner of land shows 
 that the enforcement of a tax will work irreparable in- 
 jury to him, and he has no remedy by certiorari, and the 
 tax is illegal, he may restrain its collection. {H anion v. 
 Sitpvrs. of Westchester, 8 Abb. N. S. 261 ; 57 Barb. 283). 
 So, where a tax is void because the property is exempt 
 from taxation. {N. Y. Infant Asylum v. /S»ps. of West- 
 chester, 31 Hun, 116). An allegation that the taxation 
 is illegal, and that unless restrained, the village authori- 
 ties intend to collect it, and to assess and collect other 
 taxes of a similar nature, will not warrant an injunction. 
 
INJUNCTIONS. 573 
 
 {Pumpelly v. Village of Owego, 45 How. Pr. 219; Shulz 
 V. City of Albany, 42 App. Div. 437). In assessment 
 cases the following rules have been established : 
 
 1. That the equitable power of the court can not be 
 invoked for the purpose of restraining the proceedings 
 of boards or officers of assessments. That is of legal and 
 not equitable cognizance. 
 
 2. That a person is not entitled to an injunction, be- 
 cause his property has been illegally assessed, and such 
 assessment is an apparent lien; to authorize equity to 
 Interpose, it must appear that the causes rendering the 
 assessment void do not appear on the face of the pro- 
 ceedings, and would not appear by the evidence neces- 
 sary to be given to enforce the assessment. {Niclwls v. 
 Yoorhis, 18 Hun, 33). But even where such things ap- 
 pear, the collection of a mere personal assessment will 
 not be restrained. ( Clark v. Village of Dunkirlc, 12 Hun, 
 181; afifd. without op., 75 N. Y. 612). The collection of 
 an assessment for the improvement of a street, which is 
 illegal because part of the property directed to be as- 
 sessed is omitted from it, will be restrained. {Hassan 
 V. City of Rochester, 67 N. Y. 528). In the city of New 
 York, errors and irregularities in the street assessments 
 must be reviewed in the proceedings themselves, and 
 cannot be corrected in collateral actions in equity. 
 (Mayer v. Mayor, etc., 101 N. Y. 284). Except under 
 the taxpayer's act, a taxpayer cannot restrain the appli- 
 cation of the proceeds of taxes. {Kilbourne v. St. John, 
 59 N. Y. 21) . Under that act the levy of the tax may be 
 restrained. {Ayers v. Lawrence, 59 N. Y. 192, 198, 199) . 
 
 Subdivision 15. — Trade Marks, Trade Names and Un- 
 fair Competition. 
 
 The court will interfere by injunction to prevent the 
 pirating of trade marks. (Amoskeag Mfg. Co. v. Spear, 
 2 Sand. 599) . It proceeds on the ground that the plain- 
 tiff has a valuable interest in the good will of the busi- 
 ness, and that, having appropriated to himself a par- 
 ticular syllable or sign or trade mark, indicating that 
 the article is manufactured or sold by him, or by his 
 
574 PRACTICE. 
 
 authority, or that he carries on his business, at a par- 
 ticular place, he is entitled to protection against any- 
 one who attempts to pirate on the good will of his busi- 
 ness, by sailing under his flag without his authority 
 or consent. {Partridge v. Menclc, 2 Barb. Ch. 101; 1 
 How. App. Cas. 547). In such cases injunctions are 
 granted with great caution, and never where the legal 
 right is disputed, or is doubtful, or where it will create 
 a monopoly {Amoskeag Mfg. Co. v. Spear, supra) ; 
 and wherever that appears, the court should never 
 grant the injunction, until the case is heard. {Wolfe 
 V. Goulard, 18 How. Pr. 64; Hotce v. Hotve Mach. Co., 
 50 Barb. 236). It is not necessary, however, that the 
 plaintiff should first establish at law his right to a 
 trade mark. {Hier v. Abrahams, 82 N. Y. 519) . When- 
 ever the defendant admits that he intentionally simu- 
 lated the plaintiff's name and trade mark, a prelim- 
 inary injunction should be granted, as of course. ( Tay- 
 lor V. Carpenter, 11 Paige, 292; affd. 2 Sand. Ch. 603). 
 To entitle the plaintiff to an injunction, the resemblance 
 of a simulated to the genuine trade mark, should 
 amount to a false representation as to the manufacture 
 or ownership of the article. {Popham v. Cole, 66 N. 
 Y. 69). It is immaterial, so far as an injunction is 
 concerned, that there was no intention to infringe. ( T. 
 A. Vulcan v. Myers, 139 N. Y. 364). Moreover the in- 
 junction should be granted, although there is no evi- 
 dence of actual deception, where it appears that it is 
 liable to deceive. ( Id. ) . The resemblance need not be 
 perfect; any imitation is colorable, if it is such as to 
 justify the conclusion that purchasers will be deceived, 
 and imposed upon by it. {Tallcott v. Moore, 6 Hun, 
 106). But such resemblance must come from an imi- 
 tation or adoption of that which the plaintiff had a 
 right to appropriate. {Amoskeag Mfg. Co. v. Spear, 
 supra: N. Y. Cab Co. v. Mooney, 15 Abb. N. 0. 152). 
 An actual intent to defraud need not be shown to entitle 
 the plaintiff to an injunction. {IJier v. Abrahams, 82 N. 
 Y. 519) . An injunction will not be granted where a plain- 
 tiff's trade mark is intended or calculated to deceive the 
 
INJUNCTIONS. 575 
 
 public; as where the name of a compound was decep- 
 tive as to its ingredients, or the advertisement was de- 
 ceptive as to its qualities, or where the trade mark con- 
 tains a false statement. {Fetridge v. Wells, 4 Abb. Pr. 
 144 ; N. Y. Card Co. v. Union Playing Card Co., 39 Hun, 
 611). Even where it appeared that the defendant has 
 deliberately, and without any previous connection with 
 the particular business, adopted the emblems and ap- 
 pellations employed by the plaintiff, simply to break in 
 on his trade and profit, an injunction was not granted, 
 in a case where the plaintiff's trade mark was intended 
 and fitted to deceive the public {Fetridge v. Merchant, 
 4 Abb. Pr. 156) ; so where it appears that the plaintiff 
 was first in the field, the court has discretion to refuse 
 the injunction, where such a course seems just. {Hy- 
 geia Water Ice Co. v. 'N. Y. Hygeia Water Co., 140 N. 
 Y. 94). A party will not be restrained from using his 
 own name in his business, although thereby he injure 
 the business of another, provided he does not resort to 
 any artifice to mislead [Meneely v. Meneely, 62 N. Y. 
 427), but where the purpose in using the name is to 
 mislead the public, its use will be enjoined. {Eiggins 
 Co. V. Higgins Soap Co., 144 N. Y. 462 ) . The use of a 
 stolen name will be enjoined although it is not used in 
 a commercial or trading business. {Soc. of 1812 v. Soc. 
 of 1812 in N. Y., 46 App. Div. 568) . On the dissolution 
 of a partnership, either member of the firm may use its 
 trade mark, until he has been divested of the right. 
 {Hazard v. Caswell, 93 N. Y. 259). One who has been 
 in the plaintiff's employ, may set up the same business, 
 and will not be restrained from putting on his sign the 
 words "late with" the plaintiff. {Van Wyck v. Horo- 
 witz, 39 Hun, 237). A single sale of an article with a 
 simulated trade mark, is sufficient to warrant an in- 
 junction. {Low Y. Hart, 90 lii. Y. 4:57). An injunction 
 should not wholly forbid the use of the symbol, but only 
 of the use of the imitation, colorable or otherwise, of 
 the plaintiff's trade mark. {India Rubber Co v. Rubber 
 Comb, etc. Co., 45 Super. 258, 272). An injunction will 
 not be granted, at the suit of one charged with the 
 
 37 
 
576 PRACTICE. 
 
 infringement of a trade mark, to restrain the commence- 
 ment of an action against liim, and against buyers from 
 him. {Wolfe v. Burke, 5G N. Y. 115). 
 
 Subdivision 16. — Trespasses. 
 
 An injunction is granted to restrain a trespass, only 
 where the damage would be irreparable, or the value of 
 an inheritance is put in jeopardy by it, or the aid of 
 equity is necessary to quiet the possession, or prevent 
 a multiplicity of suits. (Livingston v. Livingston, 6 
 Johns. Ch. 497 ; Sixth Ave. Ry. Go. v. Kerr, 28 How. Pr. 
 382; Meyer v. Phillips, 97 N. Y. 485; Mulry v. Norton, 
 100 N. Y. 424; Oarvey v. L. /. R. R. Co., 159 N. Y. 323). 
 For these reasons, trespass upon mines, quarries, or 
 timber is prevented by injunction. {West Point Iron 
 Co. V. Reymert, 45 N. Y. 703 ; Norton v. Snyder, 2 Hun, 
 82). An injunction will be granted to restrain threat- 
 ened acts that, if repeated, might become the founda- 
 tion of an adverse possession {Johnson v. City of Roches- 
 ter, 13 Hun, 285), or where such acts injure the safety 
 of the plaintiff's buildings, or impair their rental value, 
 or obstruct lights, or destroy landmarks. {Fox v. 
 Fitzsimmons, 29 Hun, 574; affd. without op., 100 N. 
 Y. 618). It will be granted to restrain a forcible in- 
 trusion upon premises occupied by a public bureau 
 {Health Dept. of N. Y. v. Police Dept., 41 Super. 323) ; 
 to restrain an entry on a cemetery lot, and the removal 
 of bodies interred there {Thompson v. Eiclcey, 8 Abb. 
 N. C. 159) ; to restrain continued trespasses of a per- 
 sonal nature, which affect a corporate franchise {Stage 
 Horse Cases, 15 Abb. Pr. N. S. '51) ; or where the de- 
 fendant in an action to determine conflicting claims to 
 real property, is interfering with the plaintiff's pos- 
 session. {Stamm v. Bostioiclc, 30 Hun, 70). To war- 
 rant the granting of an injunction to restrain a trespass, 
 the legal right should be clear. {Howe v. Rochester 
 Iron Mfg. Co., 66 Barb. 592). But it need not be first 
 established by law. {Lacustrine, etc. Co. v. LaJic 
 Otiano Co., 82 N. Y. 476 ; West Point Iron Co. v. Rey- 
 mert, 45 N. Y. 703) . The legal right may be established, 
 
INJUNCTIONS. 577 
 
 and the injunction obtained in the same action [Broie- 
 stedt V. South 8ide R. R. of L. I., 55 N. Y. 220). An 
 injunction is only granted in very special cases, to 
 restrain an apprehended trespass. {Gentil v. Arnaud, 
 1 Swe. 641). It will not be granted where the remedy 
 at law is adequate. {Marshall v. Peters, 12 How. Pr. 
 218 ) . In many cases where, by inadvertence or mistake, 
 a large building encroaches a very small amount on the 
 land of the adjacent owner, a mandatory injunction, 
 requiring the owner of the building to tear it down, is 
 refused, and the adjacent owner left to his remedy at 
 law (Crocker v. Manhattan Life Ins. Co., 61 App. 
 Div. 226; McSorley v. Gomhrecht, 30 Abb. N. C. 412, 
 and note) ; nor will an injunction be granted to aid 
 the owner of land, who is out of possession (Troy & Bos. 
 R. R. Co. V. B. H. T. & W. R. R. Co., 13 Hun, 60) ; nor 
 to aid a trespasser, to prevent the owner from retaining 
 possession. [Littlejolin v. AttriJI, 94 N. Y. 619). 
 
 Subdivision 17. — Torts. 
 
 An injunction will not lie to prevent a threatened 
 illegal arrest (Davis v. American Hoc. etc.. To N. Y. 
 362; Kramer v. Police Dept., 53 Super. 492) ; although 
 the person threatening the arrest is insolvent. (Burch 
 V. Cavanaugh, 12 Abb. Pr. N. S. 410). An injunction 
 will not be granted to restrain the further publication 
 of a libelous advertisement, although it is alleged that 
 the defendant is wholly irresponsible financially. (De 
 Wick V. Dohson, 18 App. Div. 399). It will not lie to 
 prevent strikers enticing away workmen, unless it ap- 
 pears that violence, force, and intimidation, or coercion 
 is intended against them. (Johnston's Harvester Co. 
 V. Meinhardt, 9 Abb. N. C. 393; affd. 24 Hun, 489; 
 Davis V. Zimmerman, 91 Hun, 489). One will not be 
 restrained by injunction from harboring plaintiff's wife 
 and child, unless it affirmatively appear that he acted 
 maliciously, and not from motives of humanity. 
 (Campbell v. Carter, 3 Daly, 165). A threatened con- 
 version of property will not be restrained by injunction. 
 (Thompson v. EodgUn, 13 Wk. Dig. 367). Nor will 
 
578 PKACTICE. 
 
 one be enjoined from keeping a bawdy house {Ander- 
 son V. Doty, 33 Hun, 160), unless it is shown that the 
 plaintiff's use of his premises is interfered with thereby. 
 (Cranford v. Tyrrell, 128 N. Y. 343). Nor will an in- 
 junction be issued to prevent a violation of a penal 
 ordinance {Village of Brockport v. Johnston, 13 Abb. 
 N. C. 468) ; nor to restrain its enforcement. {Hodges 
 V. Ferine, 24 Hun, 516) . In a case where one defendant 
 had, by forming a conspiracy, obtained the money of 
 the plaintiff, which he had transmitted by registered 
 letter to another one, and the letters were in the post- 
 ofSce, the defendant was enjoined from receiving them. 
 {Zellenkoff v. Collins, 23 Hun, 156). 
 
 Subdivision 18. — Waste. 
 
 During the pendency of any action in relation to real 
 property, specified in title one of chapter fourteen, of 
 the code of civil procedure, if the defendant commits 
 waste upon, or does any other damage to the property 
 in controversy, an injunction may be granted, restrain- 
 ing him from the commission of any further waste upon, 
 or damage to the property. (Co. Civ. Proc. § 1681). 
 Neither notice of the application for the injunction nor 
 security is necessary for the validity of the order under 
 this section. (Co. Civ. Proc. § 1681; lAttlejohn v. Lef- 
 fingwell, 40 App. Div. 13) ; nor need the order recite 
 the grounds of the injunction, pursuant to section 610 
 of the code of civil procedure, and General Rule 13. 
 {Trustees, etc. v. Matieson, 12 N. Y. St. Eep. 370). The 
 provision of this section is substantially the same as 
 that of the revised statutes. (2 Rev. Stat. 336, §§ 18, 
 19 ) . Waste will be restrained, even where the title is in 
 dispute, and the right doubtful, if the mischief is ir- 
 reparable, or on account of defendant's irresponsibility, 
 or otherwise, no relief at law can be granted. {Spear 
 v. Cutter, 5 Barb. 486). The court will prevent the re- 
 moval of timber already cut. (Id. ; Weutherhy v. Wood, 
 29 How. Pr. 404). An injunction will issue to restrain 
 an alteration, by a lessee, of a dwelling house into a 
 warehouse. {Douglass v. Wiggins, 1 Johns. Ch. 435). 
 
INJUNCTIONS. 579 
 
 The possessor of land, whose interest has been sold on 
 execution, will be restrained from committing waste 
 upon it. {Talbot v. Chamberlin, 3 Paige, 219). A 
 mortgagor, or his grantee will be restrained from waste 
 which impairs the security. {Brady v. Waldron, 2 
 Johns. Ch. 148 ; Robinson v. Preswick, 3 Edw. Ch. 246 ; 
 Seidell V. Mann, 2 N. Y. Leg. Obs. 328). An injunction 
 for that purpose will be granted, at a suit of the pur- 
 chaser, after a foreclosure, and before a confirmation 
 of the sale. {Mutual Life Ins. Co. v. Bigler, 79 N. Y. 
 568). An allegation that the defendants are cutting 
 trees, is sufficient to warrant an inference that they in- 
 tend to commit future waste. {Kidd v. Dennison, 6 
 Barb. 9, 18). An injunction to prevent waste may be 
 granted, although no action at law is pending. {Kane 
 V. Vanderburgh, 1 Johns. Ch. 11). In summary pro- 
 ceedings, where the defendant is in possession under a 
 judgment, from which a certiorari is pending, the de- 
 fendant being insolvent, and the waste being serious, 
 an injunction will be granted to restrain it. {Spear v. 
 Gutter, 5 Barb. 486). If the acts of waste are ad- 
 mitted, and an intention to repeat them is alleged, an 
 injunction will not be refused, because the injury has 
 thus far been inconsiderable. {Livingston v. Reynolds, 
 26 Wend. 115). In a case where the defendant had as 
 yet only threatened to commit waste, and was responsi- 
 ble, an injunction was refused. {Griffin v. Winne, 10 
 Hun, 571; affd. on op. below, 79 N. Y. 637). 
 
 Subdivision 19.^Water Rights. 
 
 A preliminary injunction will be granted to restrain 
 a diversion of the waters of a stream, to the injury of the 
 plaintife {Garwood v. The JSf. Y. C. & Hud. R. R. R. Co., 
 83 N. Y. 400) ; or to restrain interference with its nat- 
 ural flow {Corning v. Troy Iron & Nail Factory, 40 K 
 Y. 191) ; or its obstruction, so as to cause it to overflow 
 the plaintiff's lands {Venrum v. Wheeler, 35 Hun, 53) ; 
 or the pollution of a stream of water, flowing through 
 the plaintiff's lands. {Seaman v. Lee, 10 Hun, 607; 
 Chapman v. City of Rochester, 110 N. Y. 273) ; and 
 
580 PRACTICE. 
 
 SO, also, an injunction has been issued against a 
 municipal corporation to restrain it from operating 
 wells and pumps on its own land, the effect of which 
 operations is to tap the sub-surface water stored in the 
 land of the plaintiff — an adjacent owner — the purpose 
 of the corporation being to merchandise the water for 
 a city water-supply. (Forbell v. City of New York, 164 
 N. Y. 522) ; an injunction was, likewise, sustained, 
 where, under the same circumstances, the adjacent 
 plaintiff's surface pond was lowered by such operations. 
 {Smith V. City of Brooklyn, 160 N. Y. 357). A pre- 
 liminary injunction will not be granted in such cases, 
 however, unless the plaintiff shows a right to a per- 
 petual injunction. {Corning v. Troy Iron & Nail Fac- 
 tory, 6 How. Pr. 89 ) . The plaintiff need not first estab- 
 lish his title at law. {Corning v. Troy Iron <£ Nail Fac, 
 40 N Y. 191). The grounds for equitable interposition 
 in such cases are two-fold: 
 
 1. The inadequacy of any legal remedy, to secure the 
 party in the enjoyment of his right to have the water 
 flow in its natural channel. 
 
 2. To prevent a multiplicity of suits, for damage ac- 
 cruing from the daily and continuous wrongful diver- 
 sion of the stream. {Corning v. Troy Iron & Nail Fac, 
 supra). The courts will not, except as above stated, 
 restrain by injunction, interference with percolation, or 
 with underground currents, by which the plaintiff's 
 spring is supplied. {Trustees of Delhi v. YonmanN, 45 
 N. Y. 362 ) . Nor will they restrain interference with the 
 flow of surface water, which is not a water course, except 
 that they will not permit the owner of land, to collect the 
 surface water, and cast it by drains or ditches in a 
 stream, on the land of his neighbor. {Barkley v. Wilcox, 
 86 N. Y. 240; Bloodgood v. Ayres, 108 N. Y. 400). The 
 motive with which one interferes with a water course is 
 not important ; however malicious it may be, he will not 
 be restrained from exercising his legal right. (Phelps v. 
 Nowlen, 72 in. Y. 32). 
 
INJUNCTIONS. 581 
 
 ARTICLE III. 
 
 PROCEEDINGS TO OBTAIN THE ORDER. 
 
 SECTION. 
 1 
 
 When application may be made. 
 
 2. By whom granted. 
 
 3. Notice of application. 
 
 4. Papers on which granted. 
 
 5. When injunction may be granted to defendant. 
 
 6. Filing papers. 
 
 Sec. 1. When Application May Be Made. 
 
 The order may be granted, to accompany the summons, 
 or at any time after the commencement of the action, 
 and before final judgment. (Co. Civ. Proc. § 608). The 
 phrase "during the pendency of the action," as used in 
 sections 603 and 604, means the same thing in each case : 
 i. e. the time when the threatened injury is likely to take 
 place — not the time when the injunction order may be 
 granted. [People ex rel Canffmaii v. Van Buren, 136 N. 
 Y. 252). The order may be granted before service of 
 the summons, and served with it, and it will become 
 operative as soon as the action is begun, whether the 
 injunction is sought under section 603 or section 604. 
 (LeffingiveU v. Chave, 5 Bosw. 703; Peo. ex rel Gauff- 
 man v. Van Buren, supra). Delay in making the appli- 
 cation is prejudicial to it. {Thurshy v. Mills, 11 How. 
 Pr. 116). The application must be made before judg- 
 ment; and the court has no power to grant or revive, 
 or continue a temporary injunction, after judgment in 
 the action. (Spears v. Matthews, 66 N. Y. 127; Jackson 
 V. Bunnell, 113 N. Y. 216). 
 
 Sec. 2. By Whom Granted. 
 
 Subdivision 1. — The General Rule. 
 
 Except where it is otherwise specially prescribed by 
 law, an injunction' order may be granted by the court, 
 in which the action is brought, or by a judge thereof, 
 or by any county judge; and where it is granted by a 
 
582 TRACTICE. 
 
 judge, it may be enforced as the order of the court. 
 (Co. Civ. Proc. § 606). The application for an injunc^ 
 tion is a non-enumerated motion, and if made to the 
 court, it should be made at special term. (General 
 Eule 38). A motion for an injunction may be made at 
 the appellate division, which has power to grant, revive, 
 and continue a temporary injunction (Matter of Bark- 
 ley, 42 App. Div. 597; app. dismissed, 161 N. Y. 647; 
 Drake v. Hud. Riv. R. R. Co., 2 Co. Rep. 67; Disbro v. 
 Disbro, 37 How. Pr. 147), but usually, that court will 
 not hear an original application for an injunction. In 
 actions for the judicial supervision of a corporation, 
 and of the officers and members thereof, brought pur- 
 suant to section seventeen hundred and eighty-one of the 
 code of civil procedure; and actions by a judgment 
 creditor for sequestration, brought under section seven- 
 teen hundred and eighty-four; and actions to dissolve 
 a corporation, under section seventeen hundred and 
 eighty-five; and actions in behalf of the people, by the 
 attorney general, under sections seventeen hundred and 
 ninety-seven, and seventeen hundred and ninety-eight, 
 a temporary injunction can only be granted by the 
 court. (Co. Civ. Proc. §§ 17S7, 1806). An injunction 
 order, suspending the general and ordinary business 
 of a corporation, or of a joint stock association, con- 
 sisting of seven or more persons, or suspending from 
 office, or restraining from the performance of his duties, 
 a director, trustee, or other officer thereof, can only be 
 granted by the court. (Co. Civ. Proc. § 1809). An 
 injunction against the board of health of New York, 
 can only be granted by the supreme court, at a special 
 term thereof. (Greater New York Charter § 1260). 
 The power of a judge to grant an injunction, is derived 
 only from section six hundred and six of the code of 
 civil procedure. Section seven hundred and seventy-two 
 does not apply. [People v. Edson, 52 Super. 53). In 
 this case it was held that a judge of the court of common 
 pleas was not a county judge, and could not grant an 
 Injunction in the superior court, but the case is appar- 
 ently adverse to the case of the People ex rel Ireland v. 
 Donohue (15 Hun, 446), and Matter of Morgan (56 
 
 & 
 
INJUNCTIONS. 583 
 
 N. Y. 629). The power of the county judge is not 
 restricted to cases triable in his county, or in which 
 the counsel resides within his county. (Kennedy v. 
 Simmons, 1 Hun, 603). The county judge may make 
 an order to show cause why an injunction should not be 
 issued. [Bahcoch v. Clarke, 23 Hun, 391). The special 
 county judge has the same power in this regard, as 
 is conferred upon a county judge. (Id.). An injunc- 
 tion order, made by a judge, is a mandate of the court, 
 and has the same force and effect as if made by the 
 court. {People ex rel Negus v. Dwi/cr, 90 N. Y. 402). 
 A judge, disqualified by affinity to act, cannot make 
 the order. (N. Y. d Neio Haven R. R. Co. v. Schuyler, 
 28 How. Pr. 187). 
 
 Subdivision 2. — Against State Officers. 
 
 Where a duty is imposed by statute upon a State 
 officer, or board of State officers, an injunction order, 
 to restrain him, or them, or a person emploj^ed by him 
 or them, from the performance of that AvAj, or to 
 prevent the execution of the statute, shall not be granted, 
 except by the supreme court, at a term thereof, sitting 
 in the department, in which the officer or board is 
 located, or the duty is required to be performed; and 
 upon notice of the application therefor, to the officer, 
 board, or other person to be restrained. (Co. Civ. 
 Proc. § 605). 
 
 Sec. 3. Notice of Application. 
 
 The order may be granted, upon or without notice, 
 in the discretion of the court or judge, unless the de- 
 fendant has answered ; in which case, it can be granted, 
 only upon notice, or an order to show cause. Where 
 an application for an injunction is made, upon notice, or 
 an order to show cause, either before or after answer, 
 the court, or judge may enjoin the defendant, until 
 the hearing and decision of the application. (Co. Civ. 
 Proc. § 609). The provision of section 768 of the code 
 of civil procedure, requiring all motions or applications 
 made in an action or proceeding after any of the defend- 
 
584 
 
 PRACTICE. 
 
 ants have appeared to be made to the court, is not to 
 be deemed in conflict with section 609; section 609 
 allowing this particular application to be made to a 
 judge is controlling, rather than the general provision 
 contained in section 768. In the following cases, an 
 in*] unction can only be granted upon notice; against a 
 state officer, or a board of state officials ( Co. Civ. Proc. 
 § 605) ; to suspend the general and ordinary business 
 of a corporation (Co. Civ. Proc. § 1809) ; against the 
 board of health of New York. (Greater New York 
 Charter, § 1260). Notice of the application for an 
 injunction, is required in all cases after answer; and 
 a so called "suplementary" injunction order, which 
 enjoins acts not prohibited in the original injunction 
 order, should not be granted ex parte after answer 
 {Rhodes v. Wheeler, 48 App. Div. 410) ; before answer, 
 it is discretionary with the court, except in the cases 
 where the statute expressly requires notice to be given. 
 An application for an injunction, is not an ordinary 
 proceeding in the action, under section seven hundred 
 and ninety-nine, so as to entitle a defendant, who has 
 not appeared, to notice of the application. {Becker 
 V. Eager, 8 How. Pr. 68). An injunction should not be 
 granted ex parte, unless a pressing necessity appears. 
 {Androvette v. Boicne, 15 How. Pr. 75; Bed-field v. 
 Middletoicn, 7 Bosw. 649). On an application to re- 
 strain an official act, an ex parte injunction should 
 not usually issue ; but an order to show cause should 
 be made. {Westheimer v. Schnltz, 33 How. Pr. 11, 
 note). An order to show cause may be made return- 
 able before a judge, although he resides in another 
 judicial district, than that in which the action is triable. 
 {Harold v. Hefferman, 42 How. Pr. 241). An irregu- 
 larity, in giving the proper notice is waived, if the 
 defendants proceed with the hearing, without objection. 
 {Health Dept. v. Police Dept., 41 Super. 323). Where 
 an injunction is granted, until the further order of 
 the court, and an order to show cause, why it should 
 not be continued, is made, an express order of continu- 
 ance is not necessary, for the court will not dissolve it, 
 except on the defendant's motion. But it is otherwise, 
 
INJUNCTIONS. 585 
 
 upon a return of an order to show cause, why an in- 
 junction should not be granted, and a restraining order, 
 in the meantime. {Kelly v. Jeroloman, 7 Robt. 158). 
 
 Sec. 4. Papers on Which Granted. 
 
 The order may be granted, where it appears to the 
 court, or judge, by the affidavit of the plaintiff, or any 
 other person, that sufficient grounds exist therefor. 
 (Co. Civ. Proc. § 607). This section applies to injunc- 
 tions granted under section 603 as well as those granted 
 under section 604. {Clark v. King & Bro. Pub. Co., 40 
 App. Div. 405). Any application made under section 
 six hundred and three of the code, must be accompanied 
 by a complaint, showing that the plaintiff is entitled 
 to the injunction, as a part of the final relief demanded. 
 {Sanders v. Ader, 26 App. Div. 176). In the case of 
 Mattice V. Glfford (16 Abb. Pr. 246), it was suggested 
 that an affidavit, which contained a statement of the 
 facts constituting the cause of action, and also of the 
 relief which would be asked, was sufficient as a com- 
 plaint; but that suggestion was overruled by Judge 
 Brady, in the case of the Central Cross Town R. B. Co. 
 V. The Bleeclcer Street and Fulton Ferry R. R. Co. (49 
 How. Pr. 233 ) , in which Judge Brady characterized the 
 suggestions in Mattice v. Gifford, as forced and un- 
 natural, and the later cases have settled the question, 
 that an actual complaint must be presented, before the 
 plaintiff can obtain an injunction under section six 
 hundred and three, where the right to it depends upon 
 the nature of the action. Where the application is made 
 in such an action, the affidavits can only be used, as 
 proof of the facts alleged in the complaint, and if the 
 facts upon which the plaintiff relies, are stated only 
 in the affidavit, and not in the complaint, they will not 
 be considered by the court, in granting the injunction. 
 {Stull V. Westfall, 25 Hun, 1). Where the applica- 
 tion is made under section six hundred and four, when 
 the right to the injunction depends upon extrinsic facts, 
 it may be granted upon affidavits, before the complaint 
 is served. {Contl. Store Service Co. v. Clark, 7 Civ. 
 Proc. Rep. 183; 100 N. Y. 365). A verified pleading 
 
586 
 
 PRACTICE. 
 
 is considered as an affidavit, and this was the rule 
 before the code of civil procedure was passed {Fowler 
 V. Burns, 7 Bosw. 637) ; and it is now made the rule, 
 by the code itself. (Co. Civ. Proc. § 3343, subd. 11; 
 Bet^tha Zinc etc. Co. v. Clute, 7 Misc. 123). Where, 
 however, a verified complaint is used as the affidavit, 
 on which the application is made, if it contains allega- 
 tions on information and belief, an ordinary verifica- 
 tion is not sufficient {Hecker v. Mayor etc., 18 Abb. Pr. 
 369; Bostwick v. Elton, 25 How. Pr. 362; Gushing v. 
 Ruslander, 49 Hun, 19) ; in other words, a complaint 
 used as an affidavit, is subject to the ordinary rules 
 governing affidavits on applications for provisional 
 remedies, and only such allegations can be taken as 
 true, as are stated positively or, if stated on information 
 and belief, where the sources of the information and 
 the grounds of belief are given. (Clark v. King & Bro. 
 Pah. Co., 40 App. Div. 405). Where application is 
 made under section 603, it is necessary to have a com- 
 plaint, and that complaint must contain all the requisite 
 allegations to entitle the plaintiff to the injunction, 
 as shown above ; it is also necessary to satisfy the court 
 that "sufficient grounds exist therefor." (Co. Civ. Proc. 
 § 607). Under section 607 an allegation in a complaint 
 upon information and belief does not so satisfy the 
 court, unless the sources of the information and the 
 grounds of the belief are stated in the verification there- 
 of. It is apprehended that the court may also be satisfied 
 on this point by submitting affidavits to furnish the evi- 
 dence of the allegations contained in a complaint stat- 
 ing a requisite cause of action upon information and 
 belief. ( Bag g \. Robinson, 12 M\^g. 2,m,%(i%). All the 
 facts upon which the plaintiff relies to procure the 
 injunction, must be established by positive affidavits 
 {Crocker v. Baker, 3 Abb. Pr. 182) ; or if the allega- 
 tions are made upon information and belief, the sources 
 of the information and the grounds of the belief, must 
 be stated, so that the court may decide whether or not 
 they are sufficiently established. {People v. Mayor etc., 
 9 Abb. Pr. 253). If the motion for an injunction is 
 opposed, the order will be refused, where the material 
 
INJUNCTIONS. 587 
 
 facts which are alleged only upon information and 
 belief, are denied by the defendant. {Pidgeon v. Oat- 
 inan, 3 Eobt. 706; LAoingston v. Bank of Ne-w York, 5 
 Abb. Pr. 338). It is provided in section six hundred 
 and thirty of the code of civil procedure that a verified 
 answer has only the effect of an affidavit, both upon 
 the hearing of a contested application for an order, 
 or to vacate, or modify the order. Since that section 
 has become a law, , the rule that, where the equities of 
 the complaint are positively denied by the answer, the 
 injunction must be vacated, seems to be abolished, and 
 denials in the answer have no further effect than de- 
 nials made in an affidavit. {R. W. & 0. Terminal R. 
 ■ R. Co. V. City of Rochester, 46 Hun, 149). 
 
 Sec. 5. When an Injunction may be Granted to Defendant. 
 
 Where the defendant interposes a counter-claim, and 
 thereupon demands an affirmative judgment against 
 the plaintiff, his right to a provisional remedy is the 
 same, as in an action brought by him against the plain- 
 tiff, for the cause of action stated in the counter-claim, 
 and demanding the same judgment. And for the pur- 
 pose of applying to such a case, the provisions of this 
 act, the defendant is deemed the plaintiff, the plaintiff 
 is deemed the defendant, and the counter-claim so set 
 forth in the answer, is deemed the complaint. (Co. 
 Civ. Proc. § 720). 
 
 Sec. 6. Filing Papers. 
 
 The affidavits upon which the injunction is granted, 
 must be filed forthwith, in the officer of the proper 
 clerk; and if the party, obtaining the injunction, fails 
 to file such affidavits, the opposite party shall be at 
 liberty to move the court to vacate the proceedings. 
 ( General Rule 4 ) . The proper clerk, with whom these 
 papers are to be filed, is, if the action is in the supreme 
 court, the county clerk of the county where the place 
 of trial is laid, or if it is in a superior city court, 
 the office of the clerk of that court. Where a party, by 
 inadvertence, fails to file the affidavits upon which the 
 injunction is granted, the court may relieve him with 
 or without terms. {Leffingwell v. Chave, 5 Bosw. 703). 
 
588 PRACTICE. 
 
 ARTICLE IV. 
 
 THE ORDER. 
 
 SECTION. 
 
 1. Contents of the order. 
 
 2. Service. 
 
 3. Effect of the order. 
 
 4. Violation of the order. 
 
 5. Punishment of violation. 
 
 Sec. 1. Contents of the Order. 
 
 The injunction order must briefly recite the grounds 
 for the injunction. (Co. Civ. Proc. § 610; General 
 Eule 13). An omission to state the grounds of the 
 order, as required by this section of the code, is not 
 a jurisdictional defect, but is only an irregularity, for 
 which the injunction may be set aside, but if no sub- 
 stantial right of the defendant has been violated, it 
 will be disregarded. {A. & P. Tel. Co. v. B. <& 0. B. R. 
 Co., 46 Super. 377; 87 N. Y. 355). The order should 
 be clear and explicit in its terms; it should show on 
 its face all those things, which it is necessary for the 
 defendant to know, in order to obey it, and it should 
 plainly indicate to the defendant specifically all the 
 acts which he is thereby restrained from doing, without 
 calling upon him for inference, or for conclusions, only 
 to be arrived at by a more or less uncertain process of 
 reasoning, and about which the parties might well differ 
 in opinion, either as to the facts or law. The act pro- 
 hibited must be the doing of some tangible or distinct 
 thing, or series of things, to be clearly pointed out and 
 described. {Lyon v. Botchford, 25 Hun, 57; Laurie v. 
 Laurie. 9 Paige, 234). It is not a sufficient compliance 
 with this section to set forth in the order the exact 
 language of section 603, with nothing further [HotcJi- 
 kiss V. HotchJnss, 19 N. Y. St. Rep. 767) ; but a recital 
 of the several acts of the defendant complained of, with 
 a statement in the language of the section is sufficient. 
 {Richards v. Goldberg, 57 N. Y. St. Rep. 565). The 
 injunction should never go beyond the allegations of 
 the complaint, or the prayer for relief, so as to give to 
 
INJUNCTIONS. 589 
 
 the plaintiff any greater relief than he is entitled to. 
 [{Loomis V. Thirty-fourth St. R. R. Co., 38 Hun, 517). 
 But an order which does this is not void; it is at the 
 worst only irregular. {Mayor etc. v. N. Y. & 8. I. Perry 
 Co., 64 N. Y. 622). The order should restrain only the 
 parties to the action {Fellows v. Fellows, 4 Johns. Ch. 
 25), and their servants and agents. {Farriiigton v. 
 Birdsall, 5 AVk. Dig. 421) . The agent may be restrained 
 by name, and if he is in fact the agent, it will not 
 vitiate the injunction (Id.), but it is not usual to 
 insert the name of the agent, unless there is some special 
 reason for it. The order should never restrain persons 
 who are not parties to the action, unless they are agents 
 or servants of the persons restrained. {Sage v. Quay, 
 Clarke Ch. 347). But the defendant will not be heard 
 to object, if a person not a party to the action is re- 
 strained. It was held in BrocUe v. Cronley (3 Edw. Ch. 
 355), that the injunction should never be antedated, and 
 if it was so, it would be set aside on motion, but under 
 the present practice, the antedating of the injunction 
 would be a mere technical irregularity, if it is an irregu- 
 larity at all, and the injunction would probably not 
 he set aside for it, unless it was made to appear that 
 some right of the defendant was affected. It is not 
 necessary for the injunction order to contain any direc- 
 tion as to the undertaking. {Manley v. Leggett, 62 Hun, 
 562). 
 
 Sec. 2. Service. 
 
 Where the injunction is granted by the court, it must 
 be served by delivering a certified copy thereof; where 
 it is granted by a judge, it must be served by showing 
 the original order, and delivering a copy thereof. Serv- 
 ice of the order upon a corporation, may be made as pre- 
 scribed in this act, for making personal service of a 
 summons upon a corporation. Copies of the papers, 
 upon which the order was granted, must be delivered 
 Avith the copy of the order. (Co. Civ. Proc. § 610). 
 The injunction cannot be regularly served before the 
 summons, but the order of injunction and the summons 
 may be served together. ( Leff}.ngivcU v. Chave, 5 Bosw. 
 
590 
 
 PRACTICE. 
 
 703) . The rule requiring service of a copy of the papers 
 is imperative {McFarland v. Delaney, 3 Law. Bull. 93) ; 
 and a failure to do so is ground for setting aside the 
 service of the injunction, but never for vacating the 
 injunction order itself. {Penfield v. White, 8 How. Pr. 
 87). The undertaking must be served with the papers. 
 {McFarland v. Delaney, 3 Law. Bull. ,93). If the copy 
 of the undertaking which is served, does not show that 
 it was approved, although the original may have been 
 properly approved, costs will be imposed as a condi- 
 tion of allowing service of a new copy. {Augrich v. 
 McOwen, 4 Law. Bull. 66). A failure to serve copies 
 of the papers does not relieve the party from the duty 
 of obedience to the injunction. {Davis v. The Mayor 
 etc., 1 Diier, 451 ; affd., suh. nom., People v. Sturtevant, 
 9 N. Y. 263). The only remedy of the defendant in 
 such a case, is by motion to set aside the service. 
 
 Sec. 3. Effect of the Order. 
 
 However improvident or irregular the injunction may 
 be, it must be obeyed, and the party who disobeys it will 
 be punishable for contempt, if the court had jurisdic- 
 tion to grant it. {Erie Ry. Go. v. Ramsey, 45 N. Y. 
 637; Peo. ex rel Gauffman v. Van Biireii, 136 N. Y. 252). 
 If, however, the injunction was void, because granted 
 without jurisdiction, it is otherwise. {People ex rel 
 Roosevelt v. Edson, 52 Super. 53). The parties to the 
 action are bound by the injunction {Neale v. Osborne, 15 
 How. Pr. 81) ; and so are their agents or servants, 
 although not named in it. {Farrington v. Birdsall, 5 
 Wk. Dig. 421). One, not a party to the action, is 
 liable as agent, only when he bears such a relation to 
 the defendant, as will enable the defendant to control 
 his action in regard to the subject matter, as to which 
 the injunction issues. {Batterman v. Fimi, 32 How. 
 Pr. 501 ; 34 How. Pr. 108) . If a corporation is enjoined, 
 any of its officers, agents, or servants, who have notice of 
 the injunction, are bound by it, although they are not 
 served. {People ex rel Davis v. Sturtevant, 9 N. Y. 
 263 ; Rorke v. Russell, 2 Lans. 242 \ A. <& P. Tel. Go. v. 
 B. & 0. R. R. Co., 46 Super. 377 • S7 N. Y. 355). As to 
 
INJUNCTIONS. 591 
 
 third parties, who are not agents of the persons re- 
 strained, the injunction only operates as a notice to 
 such persons, and they are not liable for its violation. 
 {Edmonston v. McLoud, 19 Barb. 356 ; 16 N. Y. 543) . A 
 party to the action, who is restrained by the injunction, 
 is bound by it, and liable to be punished for violation 
 of it, although the original is not shown to him at the 
 time of its service, if he makes no motion to vacate the 
 service. {Billings v. Carver, 54 Barb. 40; Eiving v. 
 Johnson, 34 How. Pr. 202). Where the injunction was 
 served only upon the attorney of the party, and notice 
 of it was clearly brought home to the party himself, it 
 was held that he was bound to obey it. {People v. 
 Brower, 4 Paige, 405; Kochler v. Farmers & Drovers' 
 Nat. BJc, 17 Civ. Proc. Rep. 307). He is also bound 
 to obey the injunction, although it is not served at all, 
 if he has actual notice that the order has been granted, 
 and sufficient information of its contents to enable him 
 to obey it. {Abell v. N. Y. L. E. & W. R. R. Co., 18 
 Wk. Dig. 554; affd. without op., 100 N. Y. 634; Hull 
 V. Thomas, 3 Edw. Ch. 236). Where an injunction is 
 granted until the further order of the court, with an 
 order to show cause why it should not be continued, it 
 remains in force until it is dissolved. {Kelly v. Jerolo- 
 man, 7 Robt. 158; Stuhbs v. Ripley, 39 Hun, 626). 
 
 Sec. 4. Violation of the Order. 
 
 Injunction orders must be fairly and honestly obeyed, 
 and are not to be defeated by subterfuges and tricks, 
 on the part of those bound to obey them; they may be 
 violated' by aiding, countenancing and abetting, others 
 in violation thereof, as well as doing it directly, and 
 the courts will not look with indulgence upon schemes, 
 however skillfully devised, designed to thwart its orders. 
 {Mayor etc. v. N. Y. & 8. I. Ferry Co., 64 N. Y. 622). 
 Willful disregard by members of an association, of an 
 injunction in which they are named as members, is a 
 breach of it. {Rorke v. Russell, 2 Lans. 242). If the 
 party restrained, permit the act which is enjoined, to 
 be done, by one over whom he has control, or if he 
 assists or directs his servants or partners in doing such 
 38 
 
532 TRACTICE. 
 
 an act {Neale v. Osborne, 15 How. Pr. 81), or encourages 
 it, he is guilty of a violation of the order. ( Wheeler v. 
 Qilsey, 35 How. Pr. 139). The fact that the order has 
 been appealed from, does not affect its operation, so 
 as to permit the party to disobey it. (Power v. The 
 Tillage of Athens, 19 Hun, 165). 
 
 Sec. 5. Punishment for Violation. 
 
 Violation of the injunction order is to be punished 
 by proceedings for contempt, to which reference is 
 made. In these proceedings, the court is required to 
 impose upon tlie offender a fine, sufficient to indemnify 
 the injured party for the loss or injury, which he may 
 have sustained. (Co. Civ. Proc. § 2284). But, although 
 a party who has obtained an injunction, which has been 
 violated by his adversary, may proceed against him for 
 contempt, in which case, the damages he has sustained 
 will be included in the fine; he is not restricted to that 
 mode of procedure. He may bring an action at law, to 
 recover the damages which he has sustained by reason 
 of the violation of the injunction. The proceeding as 
 for contempt is not a substitute for an action, but is 
 a concurrent remedy. {Porous Plaster Go. v. Seabiiry, 
 43 Hun, 611). A corporation may be fined for the 
 violation of the injunction. {Mayor etc. v. N. Y. & S. I. 
 Ferry Co., 64 N. Y. 622). Not only will the parties 
 to an action, who are restrained, or their agents, or 
 servants, be punished for violation of the injunction, 
 but those who, with knowledge of it, willfully aid, abet, 
 or countenance others to violate it, are liable to pun- 
 ishment. {A. & P. Tel. Co. V. B. & 0. R. R. Co., 46 
 Super. 377; 87 N. Y. 355). If the violation was done 
 under advice of counsel, it will not protect the party 
 from punishment for the contempt. {Ciauciinono T. 
 & T. Co. V. Cianciniiiio, 43 N. Y. St. Rep. 49; affd. 
 without op., 133 N. Y. 672; Stubbs v. Ripley, 39 Hun, 
 626, 630; People v. Compton, 1 Duer, 512). The fact 
 that the act was done under advice of counsel, will, 
 however, be considered in fixing the punishment, and 
 in certain cases, where it is so done, the party thus 
 acting will be allowed to remedy the evil by complying 
 
INJUNCTIONS. 593 
 
 "With the order, where that is possible ( Grimm v. Grimm, 
 1 B. D. Smith, 190) ; and the court will be influenced 
 thereby sometimes, to limit the punishment to such a 
 fine only, as will indemnify the injured party, and will 
 not otherwise punish him for the contempt (Lansing 
 V. Easton, 7 Paige, 364 ; Power v. The Village of Athens, 
 19 Hun, 165; Gray v. Thomas, N. Y. Law Jour., July 
 12, 1901, pp. 1333, 1335) ; but before the court will 
 regard such advice at all, the names of counsel must be 
 given, and the information that was laid before them, 
 and the exact import of their advice must be fully 
 stated. If the advice was written, the writing must 
 be produced; if oral, the fact that it was given, and its 
 precise import must be verified by the counsel who gave 
 it. {People V. Gompton, 1 Duer, 512). But the fact 
 that the party disobeying the injunction proceeded 
 upon the advice of counsel will not always necessarily 
 relieve him from an imposition of a fine, by way of 
 punishment, in addition to such a one as will indemnify 
 the aggrieved party. He who resists the order or process 
 of a court, trusting to his own belief of its want of 
 jurisdiction, or of the propriety of its action, acts in 
 all cases at his own peril, and when he is proved to be 
 mistaken, he is liable to be justly punished. (People 
 V. Gompton, 1 Duer, 512). Where the injunction is 
 vague in its terms, so that there is a question as to 
 what is necessary to be done to obey it, that fact will 
 be considered in proceedings to punish for a violation 
 of it. (Lyon v. Botchford, 25 Hun, 57). 
 
 ARTICLE V. 
 
 SECURITY. 
 
 SECTION. 
 
 1. On staying proceedings in an action. 
 
 2. In other cases. 
 
 3. Security in special cases. 
 
 4. New undertaking on motion to vacate. 
 
 Sec. 1. On Staying Proceedings in an Action. 
 
 An injunction order shall not be granted, to stay the 
 trial of an action, in which the complaint demands 
 judgment for a sum of money only, after issue has been 
 
594 
 
 PEACTICB. 
 
 joined therein, unless tlie party applying therefor, gives 
 an undertaking to the party enjoined, with sufficient 
 sureties, to the effect, that he will pay to the party 
 enjoined, or his representatives, all damages and costs, 
 which may he recovered by him in the action stayed by 
 the injunction, not exceeding a sum specified in the 
 undertaking; and, also, all damages and costs that may 
 be awarded to him, in the action in which the injunc- 
 tion order is granted. (Co. Civ. Proc. § 611). 
 
 An injunction order shall not be granted, to stay 
 proceedings in an action specified in the last section, 
 after verdict, report, or decision, and before final judg- 
 ment thereupon, unless a sum of money sufficient to 
 cover the sum awarded by the verdict, report, or decis- 
 sion, and the costs of the action, is first paid, by the party 
 applying for the injunction, into the court, in which 
 his action is commenced, or an undertaking for the 
 payment thereof, with interest, is given as prescribed 
 in this article. (Co. Civ. Proc. § 612). 
 
 An injunction order shall not be granted, to stay 
 proceedings upon a judgment for a sum of money, unless 
 the following requisites are complied with by the 
 party applying therefor : 
 
 1. The full amount of the judgment, including inter- 
 est and costs, must be paid by him, into the court in 
 which his action is commenced; or an undertaking, in 
 lieu thereof, must be given, as prescribed in this article. 
 
 2. He must also give an undertaking, with sufficient 
 sureties, to pay to the party enjoined, all damages and 
 costs, which may be awarded to him by the court, in the 
 action in which the injunction order is granted; not 
 exceeding a sum specified in the undertaking. ( Co. Civ. 
 Proc. § 613). 
 
 An injunction order shall not be granted to stay 
 proceedings in an action of ejectment, or for dower, 
 after verdict, report, or decision, unless the party ap- 
 plying therefor gives an undertaking, with sufficient 
 sureties, to pay to the party enjoined, or his representa- 
 tives, all damages and costs, not exceeding a sum speci- 
 fied in the undertaking, which may be awarded to him 
 in the action wherein the injunction was granted. (Co. 
 
INJUNCTIONS. 595 
 
 Civ. Proc. § 616). These sections do not apply to the 
 city court of the city of New York. (Co. Civ. Proc. 
 § 3160). A failure to give the bonds, as required by 
 these sections, is a fatal defect upon appeal from the 
 order (Carpenter v. Keating, 10 Abb. Pr. N. S. 223; 
 Eastman v. Starr, 22 Hun, 465) ; but the plaintiff may 
 be permitted to give the proper security nunc pro tunc 
 upon terms. [Manleij v. Leggett, 62 Hun, 562). A judg- 
 ment entered upon confession is within these sections. 
 {X. Y. Sec. & Tr. Co. v. Lipinar, 83 Hun, 569; Farring- 
 ton V. Freeman, 2 Edw. Ch. 572). Any order, which 
 operates to stay the plaintiff from proceeding against 
 his judgment debtor, is within its provisions (CJiristie 
 V. Bogardus, 1 Barb. Ch. 167) ; but an injunction 
 which restrains the sale of the plaintiff's property, on a 
 judgment and execution against a third person, does not 
 require security under this section. (Hegeman v. Wil- 
 son, 8 Paige, 29). It is to be noted that no security 
 is required by section 611, for an order staying proceed- 
 ings in an action in which issue has not been joined. 
 (Richards v. Goldberg, 7 Misc. 388). It is not neces- 
 sary for a judgment creditor of an insolvent corporation, 
 who brings suits to restrain other creditors from pro- 
 ceeding at law, and for the appointment of a receiver, 
 and an equitable distribution of the property, to give a 
 bond or make a deposit, to entitle him to an injunction. 
 (Hutchinson v. N. Y. C. Mills, 2 Abb. Pr. 394). The 
 act of the sheriff, in paying over money collected upon 
 execution cannot be enjoined without giving an under- 
 taking under this section. (Bokcr v. Curtis, 2 Edw. 
 Ch. Ill) . Where the plaintiff applies for an injunction, 
 against the enforcement of a judgment, upon lands 
 conveyed to him by a partner in a firm, against which 
 judgments had been recovered which were claimed 
 to be a lien on such lands, until the equities of the 
 parties can be determined, he must give an undertak- 
 ing, or pay the amount of the judgment into court, as 
 required by this section., (Rosso id v. The Bank of Com- 
 merce, 22 Wk. Dig. 448). If, upon an application for 
 an injunction, it is claimed that the judgment is partly 
 paid, the payments must be set out and sworn to posi- 
 
596 PRACTICE. 
 
 tively, so the court can see how much is due on the 
 judgment, to enable it to fix the amount of the bond 
 or deposit. (Christie v. Bogardus, 1 Barb. Ch. 167). 
 An undertaking, on an injunction to restrain summary 
 proceedings, should contain the provision required by 
 section six hundred and twenty, to pay such damages 
 as shall be sustained by reason of the injunction, and 
 not contain the condition specified in section six hun- 
 dred and thirteen. {Gilman v. Prentice, 11 Civ. Proc. 
 Rep. 310). In a case, where money is required, by the 
 foregoing sections of this article, to be paid into court, 
 the court or judge may dispense wdth the payment, and 
 may require the party to give, in lieu thereof, an under- 
 taking, with two or more sureties, to pay the sum 
 specified, with interest, as directed by the court. If an 
 undertaking is required, in addition to the deposit, both 
 undertakings may be contained in the same instrument, 
 at the election of the party applying for the injunction. 
 (Co. Civ. Proc. § 618). The party will not usually be 
 required to give a deposit, unless the plaintiff is in- 
 solvent; the fact that the defendant fears he will be 
 insolvent, is not sufficient to warrant it. (Rodger s v. 
 Rodger s, 1 Paige, 426). The foregoing sections of this 
 article do not apply to a case, where an injunction order 
 is applied for, to stay proceedings in another action, on 
 the ground that a judgment, verdict, report, or decision 
 therein, was obtained by actual fraud. In that case, 
 the court or judge, granting the injunction order, may 
 dispense with the deposit of money, or the execution of 
 an undertaking, except as prescribed in the next sec- 
 tion. (Co. Civ. Proc. § 619). The fraud, referred to 
 in this section, is not merely a failure to perform the 
 terms, or the conditions, upon which the judgment was 
 rendered, but such fraud as a false representation, or 
 other actual fraud. (Cook v. Diclcerson, 2 Sandf. 691). 
 Money paid into court, as prescribed in sections 612 and 
 613 of the code of civil procedure may be paid over, by 
 the direction of the court, to the party whose proceed- 
 ings are stayed, upon his giving an undertaking to the 
 people of the state, with sufficient sureties, in a sum 
 fixed by the court, to pay the money and interest, or any 
 
INJUNCTIONS. 597 
 
 part thereof, as directed in the order, or judgment of 
 the court. (Co. Civ. Proc. § 614). Where money so 
 paid into court, has been paid over to the party, whose 
 proceedings are stayed, if the final decision of the action 
 in which the injunction order is granted is against the 
 party obtaining it, the court must give such directions 
 as justice requires, with respect to canceling the under- 
 taking, given by the successful party ; making perpetual 
 the injunction, staying collection of the judgment; and 
 requiring the judgment to be discharged of record. ( Co. 
 Civ. Proc. § 615). 
 
 Sec. 2. Security in Other Cases. 
 
 Where special provision is not otherwise made by law, 
 for the security to be given upon an injunction order, 
 the party applying therefor, must give an undertaking, 
 executed by him, or by one or more sureties, as the 
 court or judge directs, to the effect that the plaintiff 
 will pay to the party enjoined, such damages, not ex- 
 ceeding a sum specified in the undertaking, as he may 
 sustain by reason of the injunction, if the court finally 
 decides that the plaintiff was not entitled thereto. ( Co. 
 Civ. Proc. § 620 ) . For the form, and mode of execution 
 and approval of an undertaking given under this section, 
 see chapter VIII, article IV. of this book. The under- 
 taking must in all cases conform, in terms and substance, 
 to the requirements of the code. {Palmer v. Foley, 71 
 N. Y. 106). It must be filed forthwith, and if not so 
 filed, the opposite party shall be at liberty to move the 
 court to vacate the proceedings, as if the undertaking 
 had not been given. (General Rule 4). The omission 
 to file the undertaking is a ground for vacating the in- 
 junction (Johnson v. Casey, 28 How. Pr. 492; 3 Robt. 
 710) ; but the court may in its discretion, allow the 
 undertaking to be filed nunc pro tunc, on terms, or 
 without terms {O'Donnell v. McMvrn, 3 Abb. Pr. 391) ; 
 and it may also do this upon appeal from the order. 
 (N. T. Att. Pulv. Go. V. Van Tuyl, 2 Hun, 373). If 
 the security given is inadequate, it will be a ground for 
 vacating the injunction, unless it is increased. (Byck- 
 man v. Coleman, 21 How. Pr. 404). If the sureties 
 
598 
 
 PRACTICE. 
 
 become insolvent, the court may order others to be sub- 
 stituted, in its discretion. {Willett v. Stringer, 15 How. 
 Pr. 310; 6 Duer, 686). The undertaking cannot be can- 
 celed, without the knowledge and consent of the de- 
 fendant. {Dry Dock, East Bdicy. & Batt. R. R. Co. v. 
 Cunningham, 45 How. Pr. 458). 
 
 Sec. 3. Security in Special Cases. 
 
 The foregoing provisions of this article do not affect 
 any special statutory provision, whereby security upon 
 granting an injunction order may be dispensed with, in 
 a particular case, or the security to be given in a particu- 
 lar case is otherwise regulated. (Co. Civ. Proc. § 621). 
 In actions relating to real property, if the defendant 
 commits waste upon, or does any other damage to the 
 property in controversy, the court may grant an injunc- 
 tion restraining him from the further commission upon, 
 or damage to the property without security. (Co. Civ. 
 Proc. § 1681). Security will not be required, in an 
 action brought by the people of the state, or by a do- 
 mestic municipal corporation, or by a public officer, 
 in behalf of the people, or in behalf of such corporation, 
 except where the law, which permits an injunction to be 
 granted in such an action, especially directs that secur- 
 ity shall be given. (Co. Civ. Proc. § 1990) . No security 
 is required of the board of health of the city of New 
 York, in procuring an injunction. (Greater New York 
 Charter, § 1260). 
 
 Sec. 4. New Undertaking on Motion to Vacate. 
 
 Upon the hearing of an application upon notice, to 
 vacate or modify an injunction order, the court or 
 judge may require a new undertaking in the same, 
 or in a different sum to be given by the plaintiff, with 
 the like sureties, and to the like effect, as upon granting 
 an original order. The persons executing the new under- 
 taking, become liable thereon, as if they had executed 
 it upon the granting of the original order. The persons, 
 who executed the original undertaking, remain liable 
 thereon, until the new undertaking is given and ap- 
 proved, and no longer. Upon such hearing, the court 
 
INJUNCTIONS. 599 
 
 or judge may, where the alleged wrong or injury is not 
 irreparable, and is capable of being adequately com- 
 pensated for in money, vacate the injunction order, 
 upon the defendant's executing an undertaking, in such 
 form and amount, and with such sureties, as the court 
 or judge shall direct, conditioned to indemnify the plain- 
 tiff against any loss sustained by reason of vacating 
 such injunction order. (Co. Oiv. Proc. § 629). If a 
 stay of procedings is granted, pending an appeal from an 
 order dissolving the injunction, it is a newinjunction and 
 a new undertaking must be required, as the sureties on 
 the old undertaking are discharged. ( Town of Guilford 
 V. Cornell, 4 Abb. Pr. 220; Dishro v. Disbro, 37 How. 
 Pr. 147). The court will not vacate an injunction, upon 
 the giving an undertaking, as it is permitted <to do under 
 section six hundred and twenty-nine, in any case except 
 one which would call upon the court to vacate, or 
 refuse to grant, a permanent injunction; where the 
 legal right is plain and clear, and the violation of it is 
 undoubted, the court Avill not vacate the injunction upon 
 the giving of an undertaking, under this section. 
 (Thayer v. Rocli. City & Bright. B. R. Co., 15 Abb. Pr. 
 N. C. 52) . In every case where the injunction is vacated, 
 upon giving such an undertaking, the undertaking must 
 comply strictly with the requirements of the code. 
 {Chamberlain v. B. N. Y. & P. R. R. Co., 31 Hun, 339). 
 
 ARTICLE VI. 
 
 DAMAGES SUSTAINED BY THE INJUNCTION. 
 
 SECTION. 
 
 1. Liability. 
 
 2. When the right accrues. 
 
 3. How the damages are ascertained. 
 
 4. What damages allowed. 
 
 5. Action on the undertaking. 
 
 Sec. 1. Liability. 
 
 The plaintiff is not liable for any damages, which 
 arise to the defendant by reason of the injunction order, 
 unless he has given an undertaking, or unless the cir- 
 
600 PRACTICE. 
 
 cumstances are such that the defendant can maintain 
 an action against him for a malicious prosecution. 
 {Mark v. Hyatt ^ 135 N. Y. 306). In such case, as in 
 all other cases for malicious prosecution, the fact of 
 want of probable cause, and the existence of malice, 
 should be alleged and proved. (High on Injunctions, 
 § 1448). Unless these circumstances exist, the only 
 liability of the plaintiff for the damages sustained by 
 the injunction, arises from the giving of the under- 
 taking. {Palmer v. Foley, 71 N. Y. 106). 
 
 Sec. 2. When the Right Accrues. 
 
 The right to damages does not accrue, until a final 
 determination that the plaintiff is not entitled to the 
 injunction. {Benedict y. Bejiedict, 76 'N.Y. 600). Such 
 a determination is usually reached by final judgment 
 for the defendant, after trial. {Laicton v. Green, 64 N. 
 Y. 326). Where the injunction has been vacated, and 
 the action afterwards discontinued by the voluntary 
 action of the plaintiff, whether ex parte or despite de- 
 fendant's opposition, there is a final determination that 
 the plaintiff is not entitled to the injunction, and the 
 defendant is entitled to damages ( Pacific Mail 8. S. Go. 
 V. Toel, 85 N. Y. 646; Manning v. Cassidij, 80 Hun, 127; 
 N. Y. G. d H. R. R. R. Go. v. Yillage of Hastings, 9 App. 
 Div. 256) ; so also where the complaint has been dis- 
 missed for failure to prosecute {De Berard v. Prial, 34 
 App. Div. 502) ; or there has been a judgment determin- 
 ing that the plaintiff was not entitled to the injunction 
 entered upon a stipulation of the parties which provided 
 for such a judgment in case the court of appeals held 
 that the order for the preliminary injunction was errone- 
 ous. (A"". Y. Suburban Water Go. v. Bissell, 78 Hun, 
 176) ; but not where the complaint was dismissed and 
 the injunction vacated, as a punishment for plaintiff's 
 contempt in interfering with the execution of a com- 
 mission issued on defendant's application {ApolUnaris 
 Go. V. y enable, 136 N. Y. 46) ; nor where the action was 
 discontinued, by stipulation of the parties {Palmer v. 
 Foley, 71 N. Y. 106) ; nor where the action abates by 
 the death of the defendant. {Johnson v. Elwood, 82 
 
INJUNCTIONS. 601 
 
 N. Y. 362). The mere fact that the temporary injunc- 
 tion has been dissolved on motion, does not operate 
 as a final decision that the plaintiff was not entitled 
 to the injunction. {Neugcnt v. Swan, 61 How. Pr. 40, 
 63; N. Y. Sec. & Tr. Co. v. Lipmar, 83 Hun, 569). 
 Although the complaint has been dismissed, yet if the 
 referee, upon dismissing the complaint, refused to decide 
 that the plaintiff was not entitled to the injunction, 
 the defendant has no right to damages by virtue of his 
 undertaking. {Kcllcy v. McMahon, 32 Hun, 347) . Any 
 irregularity in prematurely obtaining the order of refer- 
 ence as to damages, may be waived by the consent of the 
 parties {Lawton v. Green, 64 N. Y. 326) ; or by permit- 
 ting the referee to proceed without objection; or, al- 
 though the objection has been talcen, if the party taking 
 it does not withdraw from the reference. {Roberts v. 
 White, 73 N. Y. 375). Where an appeal from a judg- 
 ment for the defendant has been taken, an order of 
 reference to ascertain the damages should not be granted 
 until the final determination of the appeal. {Mus- 
 grave v. Slicrwood, 76 N. Y. 194; Howard v. Park, 
 59 How. Pr. 344). Where an appeal has been taken 
 to the court of appeals, a final decision is deemed to be 
 had, when the remittitur is sent down to the court 
 below. {Ninth Av. B. B. Go. v. N. T. Ele. B. B. Co., 3 
 Abb. N. C.22). 
 
 Sec. 3. How the Damages are Ascertained. 
 
 The damages, sustained by reason of an injunction, 
 may be ascertained and determined by the court, or by 
 a referee, appointed by the court, or by a writ of inquiry, 
 or otherwise, as the court shall direct ; and the decision 
 of the court thereupon, or an order confirming the 
 report of the referee, is conclusive, as to the amount of 
 those damages, upon all the persons who have executed 
 the undertaking, unless it is reversed upon appeal. The 
 court may, in its discretion, direct that the sureties have 
 notice of the hearing, or of an appeal, and may prescribe 
 the time and manner of giving them notice. (Co. Oiv, 
 Proc. § 623). A proceeding under this section, is not 
 a proceeding in the action, but it is a proceeding after 
 
602 
 
 PEACTICE. 
 
 judgment, and constitutes no part of the action. 
 {Lawton v. Green, 64 N. Y. 326). An order of refer- 
 ence should authorize the referee only to find the amount 
 of damages; it is improper to insert in it directions to 
 the party to pay them, when they are ascertained. ( Id. ; 
 Harter y..Wetitcott, 12 Misc. 180; affd. 155 N. Y. 211). 
 An order of reference can be made only against those 
 ■who sign the undertaking. {Patterson v. Bloomer, 9 
 Abb. Pr. N. S. 27). The plaintiff is not liable under it, 
 unless he signs it. (Leavitt v. Dabney, 9 Abb. Pr. N. 
 S. 373). The plaintiff is entitled to notice of all the 
 proceedings under the order, and of the application for 
 it. The notice of hearing under an order should be two 
 days. (2 T. & S. Pr. 531, 632). The testimony of the 
 witness should be signed, and the report of the referee 
 should be filed with the testimony. (General Rule 30). 
 Notice of filing the report should be given, and the 
 report becomes absolute and stands as confirmed, un- 
 less exceptions are filed and served within eight days 
 after the service of notice of filing. (General Rule 30). 
 The plaintiff in all cases should have notice of the filing. 
 In proceedings under the order of reference, great lati- 
 tude is given to the court, as to the manner in which 
 the referee shall proceed, or in which the testimony 
 shall be taken ; the proceedings are not necessarily gov- 
 erned by the strict rules which govern the trial of 
 issues; the court may direct the evidence taken upon 
 the trial to be submitted to the referee, or it may 
 authorize ex parte affidavits to be read. (Roberts v. 
 White, 73 .N. Y. 375, 379). The report will not be con- 
 firmed unless the referee reports the damages, and not 
 alone the facts from which the damages can be ascer- 
 tained [Taaks v. Schmidt, 19 How. Pr. 413) ; but the 
 referee is not required to report findings of fact and 
 conclusions of law separately. {Mattheios v. Murchi- 
 son, 14 Abb. N. C. 512, note). The report must be 
 confirmed by the court before any action can be taken on 
 it, and the order of confirmation should only fix the 
 amount of damages, but should not direct their payment. 
 (Lawton v. Green, 64 N. Y. 326, 331) . The report when 
 confirmed, is conclusive upon the sureties, although 
 
INJUNCTIONS. 603 
 
 they were not parties to the reference, and had no notice 
 of the proceedings. {Meth. Churches of N. Y. v. Barker, 
 18 N. Y. 463). The sureties may, however, appeal 
 from the order if they have notice of the proceedings. 
 {Hotchkiss V. Piatt, 7 Hun, 56; afPd. without op., 66 
 N. Y. 628). The order confirming the report is appeal- 
 able to the court of appeals. {Xctcfon v. Russell, 87 N. 
 Y. 527; Harter v. Westcott, 155 N. Y. 211). 
 
 See. 4. What Damages Allowed. 
 
 The damages cannot, in any case, exceed the amount 
 specified in the undertaking. The referee's fees and the 
 disbursements in ascertaining the damages may be al- 
 lowed, but all the damages together cannot exceed the 
 amount specified in the undertaking. {Laioton v. Green, 
 64 N. Y. 326 ; Pac. Mail 8. S. Go. v. Toll, 10 Wk. Dig. 
 269; affd. 85 N. Y. 646; Eolcomb v. Rice, 119 N. Y. 
 598). The general term of the late court of common 
 pleas for the city and county of New York held, subse- 
 quently to the cases cited, that the expenses of the 
 reference might be directed to be paid by the plain- 
 tiff, in addition to the full amount of the undertaking 
 assessed as damages {O'Gonnor v. N. Y. & Yonkers 
 Land Imp. Go., 8 Misc. 243) ; but the reasoning of the 
 court, based upon supposed changes of the statute law 
 by the adoption of the code of civil procedure (which 
 became a law subsequent to the decision of Lairton v. 
 Green, supra), is not sound. It has always been the 
 rule that the expenses of the reference may be recovered, 
 if the undertaking is large enough to cover both the 
 damages and such expenses (Aldrich v. Reynolds, 1 
 Barb. Ch. 613) ; but, inasmuch as the only liability 
 (except where a case of malicious prosecution is made 
 out) is upon the undertaking [Mark v. Hyatt, 135 N. Y. 
 306), it is apprehended that the rule is still as laid down 
 in Lawton v. Green, and that the amount of the under- 
 taking is the limit of the recovery. Sections 3236 and 
 3251 of the code of civil procedure, providing for the 
 allowance of the expenses of the reference under section 
 623, were not intended to, and do not, increase the 
 liability of the plaintiff or sureties upon the under- 
 
634 PRACTICE. 
 
 taking. Within this amount, the defendant is entitled 
 to have damages to his business, or otherwise, which 
 necessarily result from the injunction. {Hovey v. Rub- 
 her Tip Pencil Co., 50 N. Y. 335). The depreciation 
 of property which has been caused by the injunction, 
 or the value of its use, if that has been lost, or the value 
 of the rent of the property, while it has been kept out 
 of his possession by the injunction, may be allowed as 
 damages. ( Barton v. Fisk, 30 N. Y. 166 ; Bray v. Poil- 
 lon, 2 Hun, 383; McDonald v. James, 38 Super. 76). 
 Where property went into the hands of a receiver as 
 a direct result of the injunction, the loss of the property, 
 or decrease of profits, or the increased expenses of care, 
 over what would have necessarily been incurred if no 
 receiver had been appointed, will be allowed. {HotcJi- 
 7dss V. Piatt, 8 Hun, 46). In actions of ejectment or 
 dower, the damages to be paid upon vacating the in- 
 junction order, or upon the decision of the action against 
 the party obtaining it, include not only reasonable rents 
 and profits of the real property recovered by the verdict, 
 report, or decision, but all waste committed upon the 
 property after granting the injunction. (Co. Oiv. Proc. 
 § 617). General counsel fees on the trial are not al- 
 lowed, unless they were incurred solely in consequence 
 of the injunction. (Newton v. Russell, 87 N. Y. 527; 
 Phoenix Bridge Co. v. Keystone Bridge Co., 10 App. 
 Div. 176; affd. on op. below, 153 N. Y. 644). Counsel 
 fees incurred in procuring the dissolution of the in- 
 junction are allowed. (Id.). But no counsel fees are 
 allowed of an unsuccessful attempt to dissolve it. (Ran- 
 dall V. Carj)enter, 88 N. Y. 293). The fees of counsel 
 on the reference to assess the damages rnay also be 
 allowed as damages. (NeiDton v. Russell, 87 N. Y. 527) . 
 Counsel fees are to be measured not only by the time 
 employed, but by the magnitude of the interests in- 
 volved. (Matthews v. Miirchison, 14 Abb. N. C. 512, 
 note). The counsel fees allowed upon this reference 
 may be such as could not be included in the taxable 
 costs. ( Coates v. Coates, 1 Duer, 664) . Counsel fees Mdll 
 be allowed, although they have not actually been paid, 
 if they are reasonable, and they have actually been in- 
 
INJUNCTIONS. 605 
 
 curred, so that the defendant is liable for them. 
 (Crounse v. Syr. Chen. & N. Y. B. R. Co., 32 Hun, 497; 
 aflfd. without op., 97 N. Y. 631). In a case where it was 
 absolutely essential for the defendant to move at once 
 to vacate the injunction, and it was necessary for him 
 to incur large expenses to go to the only court where 
 the motion could be made, the expenses which were 
 actually incurred were allowed. {Crounse v. Syr. Chen. 
 & N. Y. B. B. Co., supra). Where the defendant en- 
 joined was an officer of a corporation, or joint stock 
 association, or a bailee, agent, trustee, or other repre- 
 sentative of another, and the damages sustained by him, 
 are less than the sum specified in the undertaking, the 
 court or the referee may also separately ascertain and 
 determine the damages, sustained by reason of the in- 
 junction, by the corporation, association, or person, 
 Avhom the defendant represents, to an amount not ex- 
 ceeding the surplus of the sum specified in the under- 
 taking ; and those damages may be recovered in separate 
 action, brought as prescribed in the next section. (Co. 
 Civ. Proc. § 624). 
 
 Sec. 5. Action on the Undertaking. 
 
 Where the damages have been ascertained by the de- 
 cision of the court, or the confirmation of a referee's 
 report, as prescribed in sections six hundred and twenty- 
 three and six hundred and twenty-four, any person, en- 
 titled to the benefit of an undertaking, executed pursu- 
 ant to the provisions of this title, may bring an action 
 thereon, without further leave of the court. (Co. Civ. 
 Proc. § 625). The sureties cannot be compelled to pay 
 the damages without an action. (Troxell v. Haynes, 16 
 Abb. Pr. N. S. 1; Lawton v. Green, 64 N. Y. 326). The 
 amount fixed by the referee's report is the measure of 
 damages, in an action on the undertaking. (Baiidall v. 
 Carpenter, 47 Super. 205). 
 
606 PRACTICE. 
 
 ARTICLE VII. 
 
 VACATING OR MODIFYING THE ORDER. 
 
 SECTION. 
 
 1. Without notice. 
 
 2. Upon notice. 
 
 3. Vacating injunction upon undertaking by defendant. 
 
 Sec. 1. Without Notice. 
 
 Where the injunction order was granted without 
 notice, the party enjoined may apply, upon the papers 
 upon ^\hich it was granted, for an order vacating or 
 modifying the injunction order. Such an application 
 'may be made, without notice, to the judge or justice who 
 granted the order, or who held the term of court where 
 it was granted; or to a term of the appellate division 
 of the supreme court. It cannot be made without notice, 
 to any other judge or justice or term, unless the appli- 
 cant produces proof, by affidavit, that, by reason of the 
 absence or other disability of the judge or justice who 
 granted the order, the application cannot be made to 
 him; and that the applicant will be exposed to great 
 injury, by the delay required for an application upon 
 notice. The affidavit must be filed with the clerk; and 
 a copy thereof, and of the order vacating or modifying 
 the injunction order, must be served upon the plaint- 
 iff's attorney, before that order takes effect. (Co. Civ. 
 Proc. § 626) . A party may move to vacate the order for 
 irregularity, although he is in contempt. {Matter of 
 Steinei-t, 24 Hun, 246). The application under this sec- 
 tion is to be made ex parte, and on the papers on which 
 the notice is granted; notice of the hearing is not con- 
 templated. {Coffin V. Prospect Park & C. I. R. B. Co., 
 61 How. Pr. 105). The injunction will only be vacated 
 ex parte, where that course is necessary to guard against 
 serious loss, arising from the necessity of delay in giving 
 notice. Where the application was not made until a 
 year after the injunction had been granted, the court 
 held that it was not proper to vacate it ex parte. The 
 court upon such an application must act with great cau- 
 tion. (Peck V. Yorks, 41 Barb. 547). The appellate divis- 
 
INJUNCTIONS. 607 
 
 ion will only entertain an application, to vacate an in- 
 junction under this section, where some pressing neces- 
 sity and special reason exists. {Matter of Barhley, 42 
 App. Div. 597; app. dismissed, 161 N. Y. 647). The 
 reasons for exercising the exceptional power given to 
 that court must be more than the alleged error of the 
 court below, and more than the magnitude of the inter- 
 ests involved. There must be peculiar circumstances 
 which almost compel immediate action. {Gere v. N. Y. 
 C. & H. R. R. R. Co., 38 Hun, 231). 
 
 Sec. 2. Upon Notice. 
 
 Where the injunction order was granted without 
 notice, or where it was granted upon notice, with leave 
 to apply to vacate or modify it, the party enjoined may 
 apply upon notice, to the judge who granted it, or to the 
 court, at a term where a contested motion in the action 
 may be heard, for an order, vacating or modifying the 
 injunction order. Such an application may be founded 
 upon the papers upon which the injunction was granted ; 
 or upon proof, by affidavit, on the part of the defendant, 
 or both. Where it is founded upon proof on the part 
 of the defendant, it may be opposed by new proof, by 
 affidavit, on the part of the plaintiff, tending to sustain 
 the injunction. (Co. Civ. Proc. § 627). Any person 
 affected by the order so that he is embarrassed in his 
 business, or in any way injured by it, may move to vacate 
 it, although he is not in terms restrained by it. {Landers 
 V. Fisher, 24 Hun, 648). If the motion is made on the 
 same papers on which the injunction was granted, no 
 proof is required on the part of the party moving. 
 {Neichury v. Newbury, 6 How. Pr. 182). Where the 
 motion is made on those papers only, the plaintiff can- 
 not read new proof to sustain the injunction. {Steuben 
 Co. Bank v. Alberger, 75 N. Y. 179). If the verified 
 .complaint was before the judge, when the injunction was 
 granted, it may be referred to by the plaintiff on the 
 motion which is made on the papers, although it is not 
 referred to in the injunction. {Turner v. Thompson, 
 2 Abb. Pr. 444 ) . The granting or denial of an applica- 
 tion, made as prescribed in section six hundred and 
 
 39 
 
608 PRACTICE. 
 
 twenty-seven, founded only upon the papers upon which 
 the injunction order was granted, does not prejudice a 
 subsequent application, seasonably made, founded upon 
 proof by affidavit, on the part of the defendant. And 
 the granting or denial of either application does not 
 prejudice a subsequent application, seasonably made, 
 founded upon the failure of a complaint, which had not 
 been made at the time of the former application, to set 
 forth a cause of action, sufficient to entitle the plaintiff 
 to the injunction order, upon one or more grounds, re- 
 cited therein. (Co. Civ. Proc. § 628). Where the in- 
 junction is granted with an order to show cause, and on 
 the return of the order the injunction is continued, the 
 motion under this section may still be made at special 
 term. {Galusha v. Flower City Nat. Bk. 1 Hun, 573). 
 Upon the hearing of a motion to vacate the injunction, 
 the verified answer has only the effect of an affidavit. 
 (Co. Civ. Proc. § 630). The rule, before the adoption 
 of the code of civil procedure, was that where all the 
 equities of the complaint were denied by the answer, 
 the injunction would be vacated upon motion; section 
 630 seems to have removed the reason for this rule, and 
 it is apprehended that the injunction may be continued 
 where the plaintiff's right to the ultimate relief sought 
 is clearly established, although the answer denies all the 
 allegations of the complaint. [Warsaw Waterworks 
 Co. V. Warsaw, 4 App. Div. 509 ; R. W. & 0. T. R. R. Co., 
 V. City of Rochester, 46 Hun, 149 ; McEiicroe v. Decker, 
 58 How. Pr. 250) ; it is well to note, however, that the 
 opposite view has been held, and seems to be the rule 
 in the first department. [Kuntz v. The C. C. White Co., 
 29 N. Y. St. Rep. 366; see also Davis v. Zimmerman. 
 91 Hun, 489, and Oppcnheimer v. Hirsch, 5 App. Div. 
 232 ) . Where all the material equities are disproved by 
 the defendant the injunction should be dissolved. 
 (Central Cross Toion R. R. Co. v. The Blecker St. c6 • 
 Fult. Ferry R. R. Co., 49 How. Pr. 233). If the case 
 shows that there is apparent necessity for immediate 
 relief by injunction, to prevent irreparable damage, the 
 court will sometimes refuse to vacate it, although the 
 material facts are denied; especially where no damage 
 
INJUNCTIONS. 609 
 
 can result to the defendants from its continuance. 
 {{Carpenter v. Danforth, 19 Abb. Pr. 225). The in- 
 junction should be dissolved, if the court on all the 
 evidence would not have granted it in the first instance. 
 {Moser v. Polhamus, 4 Abb. Pr. N. S. 442). If there 
 is any doubt whether or not the plaintiff is entitled to 
 the injunction, the defendant, and not the plaintiff, is 
 to have the benefit of it. (Secor v. Weed, 7 Robt. 67). 
 The court will sometimes dissolve the injunction for 
 formal defects in the papers, though if the papers were 
 in proper form, the injunction would be permitted to 
 stand. In the case of Johnson v. Casey (28 How. Pr. 
 492), the injunction was dissolved, because the papers 
 Ts\ere so illegibly written that they could not be de- 
 ciphered. Where the defendant makes a case for the 
 dissolution of the injunction, it will not be denied merely 
 upon the ground of expediency. ( Taylor v. Hutton, 43 
 Barb. 195). The injunction order will not be vacated 
 because it was irregularly served ; the remedy in such a 
 case is to set aside the service. {Phoenix Foundry Co. 
 V. North R'w. Constr. Co., 6 Civ. Proc. Rep. 106). That 
 there is a defect of parties defendant is sometimes a 
 ground for a dissolution of the injunction, but not neces- 
 sarily, or usually. {Bchulten v. Lord, 4 E. D. Smith, 
 206). A plea of the statute of limitations affords no 
 ground for setting aside an injunction. {Little John 
 V. Lefflngwell, 40 App. Div. 13 ) . If the action has been 
 discontinued and the costs paid, the court will not hear 
 a motion to vacate the injunction, for the mere purpose 
 of deciding whether the plaintiff had a right to it, so that 
 he may procure an order of reference to fix the amount 
 of damages. {Hope v. Acker, 7 Abb. Pr. 308). If the 
 injunction is withdrawn, a motion to vacate it is unnec- 
 essary. {Shearman v. N. Y. C. Mills, 11 How. Pr. 269) ; 
 but the defendant may enter an order dissolving the in- 
 junction as of course, upon the stipulation vacating it. 
 An irregularity in obtaining the injunction is not waived 
 by a motion to dissolve it upon any other ground. 
 {Wilkie V. Roch. & St. Line B. R. Co., 5 Wk. Dig. 352). 
 
610 
 
 PRACTICE. 
 
 Sec. 3. Vacating Injunction upon TJndertaking by Defendant. 
 
 The provisions of section six hundred and twenty- 
 nine, that the court or judge may, where the alleged 
 wrong or injury is not irreparable, and is capable of 
 being adequately compensated for in money, vacate the 
 injunction order upon defendant's executing an under- 
 taking, as it was first inserted in the code, was com- 
 pulsory, and directed that the judge must vacate the 
 injunction upon execution of the undertaking, but the 
 word "must" was changed to the word "may," by an 
 amendment passed in May, 1884. This section of the 
 code is very strictly construed by the courts and, as we 
 have seen in a previous section, the court will take action 
 under it, only in a case where the legal rights of the 
 parties are doubtful. Where a dissolution of the tem- 
 porary injunction, leaves the plaintiff without protec- 
 tion until his rights are established by a judgment, it 
 might work injustice to him, by giving him no remedy 
 for injuries that he would be likely to suffer during the 
 pendency of the suit, except a judgment for damages 
 against an irresponsible defendant; and it is only in 
 such cases that the court will exercise the power given 
 to it by this section. (Thayer v. Roch. Co. etc., R. R. 
 Co. 15 Abb. N. C. 52). 
 
 Where the act which was restrained, was the with- 
 holding of a sum payable on a lease and the substitution 
 of a less sum, it is capable of money compensation, and 
 the injunction will be dissolved on giving an under- 
 taking under this section. [Met. El. R. R. Co. v. Man- 
 hat. El. R. R. Co., 11 Daly, 367) . In all cases the under- 
 taking must be in strict compliance with the statutes, 
 as we have seen. ( Chamberlain v. The B, & N.Y. <& P. 
 i2.i2. Co., 31 Hun, 339). 
 
INJUNCTIONS. 611 
 
 ARTICLE VIII. 
 
 EFFECT OF SUBSEQUENT PROCEEDINGS IN THE ACTION. 
 
 A dissolution of the temorary injunction does not 
 necessarily prevent tlie plaintiff from obtaining a per- 
 petual injunction upon the trial of the action. (Banks 
 V. American Tract Society, 4 Sandf. Ch. 438). An in- 
 junction until the further order of the court, is merged 
 in the final judgment. {Gardner v. Gardner, 87 N. Y. 
 14). Where an appeal has been taken from an order 
 denying an injunction, the court will not usually con- 
 tinue the injunction upon the appeal. The court has 
 no power, after a judgment against the plaintiff, to 
 grant an injunction or to revive or to continue, during 
 the appeal, a temporary injunction previously obtained. 
 Spears v. Matthetvs, 66 N. Y. 127 ; Carpenter v. Fisher, 
 18 App. Div. 561). A stay of proceedings upon an ap- 
 peal from a judgment, does not annul the judgment, or 
 affect in any way the injunction, and the defendant is 
 not absolved from the duty of obedience, or permitted 
 to do that which the judgment prohibits. [Sixth Av. 
 R. R. Go. V. GUliert Ele. R. R. Go., 71 N. Y. 430) . Where 
 a temporary injunction has been granted by the court 
 upon conflicting affidavits, and the party enjoined ap- 
 peals to the appellate division, instead of bringing the 
 cause promptly on for trial, the discretion of the special 
 term will not be reversed except in a clear case. ( Davis 
 V. Rosenstein, 56 App. Div. 220). Where the special 
 term has denied an injunction, and the general term 
 has reversed the judgment and ordered a new trial, the 
 action of the general term does not reinstate the in- 
 junction, which has been dissolved by the judgment of 
 the special term, but the court will reinstate it on mo- 
 tion as to everything which is still executory. (Hatch 
 V. West. Un. Tel. Go., N. Y. Daily Reg. Dec. 20, 1882). 
 Where a cause, commenced in one of the courts of the 
 state, has been removed to the circuit court of the 
 United States, an injunction, which has been granted 
 before the removal, is not affected by it but still cour 
 t^'nues in force. (U. S. Rev. Stats. § 446). 
 
CHAPTER XVI. 
 
 ATTACHMENT. 
 
 ARTICLE I When and by wliom it may be granted. 
 
 ARTICLE II Papers on which it may be granted. 
 
 ARTICLE III.. .Execution of the warrant. 
 ARTICLE IV.. .Vacating and modifying the warrant. 
 ARTICLE V Regulations where there are two or more warrants 
 
 against the same defendant. 
 ARTICLE VI. . .Proceedings after judgment. 
 ARTICLE VII. .Proceedings after warrant has been vacated, or 
 
 attachment discharged. 
 
 ARTICLE I. 
 
 WHEN AND BY WHOM IT MAY BE GRANTED. 
 
 SECTION. 
 
 1. Who may sue out an attachment. 
 
 2. In what actions it may be granted. 
 
 3. Against whom it may be granted. 
 
 4. When an attachment will be granted. 
 
 5. By whom granted. 
 
 Sec. 1. Who may Sue out an Attachment. 
 
 Any person, who may come into the courts of this 
 state to pursue a remedy, which is given by our statutes, 
 may enforce that remedy to the same extent, and in the 
 same manner, as a citizen of the state; and any such 
 person has the same right to sue out a warrant of 
 attachment as is given to a citizen of tliis state. (Hi- 
 hernia National Bank v. Lacomhe, 84 N. Y. 367). Fol- 
 lowing this rule, it has been held that a non-resident 
 of the state may sue out an attachment, in any court of 
 the state which has authority to grant it, in any action 
 that he may bring ( Ready v. Stewart, 1 Co. Rep., N. S. 
 297; Farquhar v. Wisconsin Condensed Milk Co., 30 
 
ATTACHMENT. 613' 
 
 Misc. 270) ; even though his action may be brought 
 against a non-resident defendant. {Cooke v. Appletoii, 
 51 Super. 529). A foreign corporation, or a non-resi- 
 dent, however, can neither maintain an action nor have 
 a warrant of attachment against a foreign corporation, 
 except in the cases specified in section seventeen hun- 
 dred and eighty of the code of civil procedure (Pea. v. 
 St. Nicholas Bk., 44 App. Div. 313) ; but Avherever a 
 cause of action, in whicli an attachment may be sued 
 out, exists in favor of a non-resident, he may assign 
 it to a resident of the state, by whom a warrant of 
 attachment can be procured. (McBride v. Farmers' 
 Bank, 26 N. Y. 450). Where the plaintiffs are members 
 of a firm doing business in this state, it is not necessary 
 that all of them should reside in the state, to entitle 
 them to an attachment against a non-resident ; it is suffi- 
 cient if one of them is a resident. {Renard v. Hargoas, 
 13 N. Y. 259). 
 
 Sec. 2. In What Actions it may be Granted. 
 
 A warrant of attachment, against the property of one 
 or more defendants in an action, may be granted upon 
 the application of the plaintiff, as specified in section 
 six hundred and thirty-six of the code of civil procedure, 
 where the action is to recover a sum of money only, as 
 damages for one or more of the following causes : 
 
 1. Breach of contract, express or implied, other than 
 a contract to marry. 
 
 2. Wrongful conversion of personal property. 
 
 3. An injury to person or property in consequence 
 of negligence, fraud, or other wrongful act. (Co. Civ. 
 Proc. § 635). 
 
 To entitle the plaintiff to an attachment, there must 
 be an actual existing couse of action at the time the 
 application is made. (Co. Civ. Proc. § 636). There 
 is now no other mode of procuring an attachment under 
 our statutes, than that prescribed in the code of civil 
 procedure; for those portions of the revised statutes 
 which authorized an attachment, and that part of the 
 non-imprisonment act which provided for an attach- 
 ment in certain cases, have been repealed, leaving the 
 
614 
 
 PRACTICE 
 
 code of civil procedure the only statute by which this 
 remedy is given. There is no little difference between 
 applications for attachments against non-resident debt- 
 ors under the revised statutes, and under the non-impris- 
 onment act of 1831, and applications under the code. 
 The attachments, issued under the two former laws 
 were special proceedings. They were the original pro- 
 cesses by which the suits were commenced, and a strict 
 compliance with the requirements of the acts under 
 which the proceedings were had, was held to be necessary 
 to confer jurisdiction; and if the affidavits failed to 
 state the facts necessary to confer jurisdiction, the 
 whole proceedings were extra-judicial and void; and 
 the defect could not be supplied by amendment, or by 
 supplemental affidavits. But an application under the 
 code, on the contrary, is not an original process, nor 
 is it the commencement of the action (Co. Civ. Proc. 
 § 416; 8tone v. Pratt, 90 Hun, 39), nor can a judgment 
 be obtained upon it alone ; but it is simply a provisional 
 remedy, adopted, under certain circumstances, in a suit 
 which is already commenced, or which is about to be 
 commenced, at the time of the granting of the remedy; 
 and the application for the remedy is regarded as a 
 motion in the action {Allen v. Meyer, 73 N. Y. 1) ; and 
 for this reason, if the action is one in which the law 
 permits an attachment to be issued, the jurisdiction 
 of the court over the action and the parties thereto 
 does not depend on the sufficiency of the affidavits, 
 which are presented to the court, on the aplication for 
 the attachment. {Furmun v. Walter, 13 How. Pr. 348; 
 Skinner v. Stuart, 39 Barb. 206; Lamlcin v. Douglass, 
 27 Hun, 517) . The granting of an attachment under the 
 code, operates for the sole benefit of the attaching cred- 
 itor, and not for the whole body of creditors of the de- 
 fendant, as was the case under the revised statutes. 
 (Ready v. Stewart, 1 Co. Rep., N. S. 297; Mechanics & 
 Traders' Bank v. Dakin, 50 Barb. 587; reversed on 
 another point, 51 N. Y. 519). The right to an attach- 
 ment, having been conferred by a statute, is limited 
 by its provisions; and the plaintiffs must bring the 
 case within the authority of the statute, and show that 
 
ATTACHMENT. 615 
 
 their proceedings conform to it. {Blossom v. Estes, 84 
 N. Y. 614). An attachment cannot be demanded as a 
 matter of right, even in the actions in which it is 
 given by the code; but it is, in all cases, discretionary 
 with the court. This discretion, however, is a judicial 
 discretion, as it is called, and the exercise of it can be 
 reviewed by the appellate division [Hachler v. Bern- 
 harth, 115 N. Y. 459) ; but it is not reviewable by the 
 court of appeals (Sarttrcll v. Field, 68 N. Y. 341) ; and 
 the only question before the court of appeals is one of 
 jurisdiction {WenzcU v. Moniaseij, 115 N. Y. 665), 
 unless a question touching discretion is certified to 
 that court. (Penoyar v. Kchey, 150 N. Y. 77). In 
 actions for a breach of contract, an attachment may 
 issue, although the suit is for unliquidated damages, 
 wherever a proper disclosure of the grounds of the 
 claim furnishes the means of ascertaining the amount 
 to which the plaintiff may be entitled. {M anion v. 
 Poole, 67 Barb. 330; affd. 5 Hun, vi; Clews v. Roclcforcl 
 R. I. & St. L. R. R. Co., 2 Hun, 379; Westervelt v. 
 Agrnmaria etc. Societa, 58 Hun, 147). An action by 
 the United States for unpaid duty, is an action upon an 
 implied contract, and an attachment may be granted 
 in it {United States v. Graff, 67 Barb. 304) ; so is an 
 action to enforce a contract for a sale of personal prop- 
 erty, and for the money due upon it. ( Corson v. Ball, 47 
 Barb. 452). A foreign judgment is an implied contract 
 under this section, whether such judgment was recov- 
 ered upon a contract or for a tort. {Gntta Percha etc. 
 Mfg. Co. V. The Mayor etc. of Houston, 108 N. Y. 276). 
 It was held in Remington Paper Co. v. O'Dougherty 
 (32 Hun, 255; affd. without opinion, 96 N. Y. 666). 
 that an action brought under section 3247 of the code of 
 civil procedure to recover the costs of a former action 
 which was prosecuted by the. defendant in the case 
 cited in the name of a third person for the said de- 
 fendant's benefit, was not an action upon a contract. 
 As was well pointed out by Mr. Justice Barrett in a 
 dissenting opinion in the case of Angrier v. Mayor (14 
 App. Div. 461, 467), it is difficult to see any distinc- 
 tion in kind between the two liabilities, and it is appre- 
 
616 
 
 PRACTICE. 
 
 heuded that the Remington Paper Co. case may now be 
 regarded as overruled. In the Augner case a liability to 
 repay license money, imposed by statute, was held to be 
 an implied contract. Breach of warranty, express 
 or implied, is a "breach of contract" within the mean- 
 ing of the section. {Haebler v. Beniharth, 115 N. Y. 
 459 ; Cniininghaui v. Von Pustan, 31 N. Y. St. Rep. 255). 
 An attachment may be had in an action brought to re- 
 cover arrears of alimony directed by a decree of 
 divorce, to be paid. (Gret>ell v. Whiteman, 32 Misc. 
 279). In an action for the price of goods sold, an 
 attachment may be granted under the first subdivision 
 of section six hundred and thirty-five, although it is 
 alleged in the complaint, that the plaintiff's were in- 
 duced to sell the goods by fraudulent representations of 
 the defendant. {Gladhe v. MascJike, 35 Hun, 476; Mor- 
 rison V. Watson, 23 Wk. Dig. 286; Whitney v. Hirsch, 
 39 Hun, 325). The case of Wittner v. Von Minden (27 
 Hun, 234), which holds to the contrary, is overruled. 
 Where a laborer acquired a mechanic's lien upon 
 certain property which the plaintiffs had bought, 
 and it appeared that the plaintiffs had paid the laborer's 
 claim to prevent a forced sale, it was held that the pur- 
 chasers, being subrogated to the laborer's right of action 
 against the former owner could maintain an action of 
 contract against the latter and have an attachment 
 therein. (Alford v. Cohb, 28 Hun, 22; S. 0. 15 Wk. Dig. 
 557). An injury to property is any actionable act, 
 whereby the estate of another is lessened, other than a 
 personal injury or a breach of contract. (Co. Civ. Proc. 
 § 3343, subd. 10). One who has been induced to make 
 advances on the faith of forged paper, has sustained 
 an injury to personal property, and is entitled to an 
 attachment under the third subdivision of this section. 
 {Bogart v. Dart, 25 Hun, 395). So an action to re- 
 cover damages sustained by reason of the giving of 
 credit, induced by false representations, is an "injury 
 to property" {Campion Card & Paper Co. v. Searing, 
 47 Hun, 237; Benedict v. Guardian Trust Co., 58 App. 
 Div. 302) ; or an action to recover damages for the pur- 
 chase of worthless shares, induced by fraudulent repre- 
 
ATTACHMENT. 617 
 
 sentations. {Steicart v. Lyman, 62 App. Div. 182). It 
 lias been decided that an attachment cannot be granted 
 in an action for equitable relief {Thorington v. Mer- 
 rick, 101 N. Y. 5) ; and it was forjuerly held that an 
 attachment could not be granted in an action for a 
 perfconai injury (Sacldlcsvcae v. Arms, 32 How. Pr. 280), 
 but, by the amendment of ISftS, an action to recover 
 damages for an injury to the person was added to the 
 enumeration, in section 635, of actions in which an 
 attachment could be granted, a "personal injury" being 
 declared by section 3343, subdivision 9, of the code of 
 civil procedure to include libel, slander, criminal con- 
 versation, seduction and malicious prosecution ; also an 
 assault, battery, false imprisonment, or other actionable 
 injury to the person, either of the plaintiff or of an- 
 other. Alienation of one's husband's affection is an in- 
 jury to the person. {Rouge v. Rouge, 15 Misc. 36) . An 
 attachment cannot be granted in any action, where the 
 complaint contains several causes of action, upon some 
 of which an attachment could not be issued. {Union 
 Con. Mill. Co. V. RaM, 9 Hun, 208). An action upon a 
 statute for a penalty, is not an action upon an implied 
 contract within subdivision one, so that an attachment 
 can be issued. {Wilson v. Harvey, 52 How. Pr. 126). 
 Where the plaintiff shows himself merely entitled to 
 nominal damages, the court will not grant an attach- 
 ment ; although the action is one of those mentioned in 
 section six hundred and thirty-five of the code of civil 
 procedure. {Walts v. Nichols, 32 Hun, 276; Wester- 
 velt V. Agrumaria, etc. Societa, 58 Hun, 147). It will 
 be noticed that the provisions of section six hundred 
 and thirty-five of the code of civil procedure are more 
 comprehensive than those of the code of procedure, upon 
 the subject of attachment; and that the new code to 
 some extent, increases the number of actions in which 
 an attachment may be issued. Many of the decisions 
 made upon this subject, under the code of procedure, 
 have, therefore, become obsolete. 
 
G18 PRACTICE. 
 
 Sec. 3. Against Whom it May Be Granted. 
 
 Subdivision 1. — Against a Non-Resident. 
 
 Where the defendant is a non-resident a warrant of 
 attachment may be issued against him. (Co. Civ. Proc. 
 § 636, subd. 2.) Actual cessation to dwell within the 
 state for an uncertain pei'iod, without a definite inten- 
 tion as to any fixed time of returning, even though a 
 general intention to return at some future time may 
 exist, constitutes non-residence, and warrants the is- 
 suance of an attachment, under the code of civil pro- 
 cedure. {M''citlx:ainp v. Loehr, 53 Super. 79). If the 
 debtor resides in another state, although he has his 
 place of business in this state, he is a non-resident, and 
 an attachment may be granted against him. (Wallace 
 V. Castle, 68 N. Y. 370). One who has his home with 
 his family, living out of the state, where he frequently 
 visits them, is a non-resident, although he has lodgings, 
 and boards at his place of business, which is within this 
 state. (Murphy Y. Baldwin, 11 Ahh.Fr.'S. ^. 4.07). The 
 question is one of residence, not domicile. (Hanover 
 Nat. Bk. V. Stehhins, 69 Hun, 308) . An attachment may 
 be granted against a foreign administrator, upon a con- 
 tract made by him personally; but in such an action 
 the court will not permit the warrant to be levied upon 
 assets of the estate. (Murphy v. Hall, 38 Hun, 528). 
 An attachment will not issue against a foreign admin- 
 istrator or executor, for a demand against a testator's 
 estate, nor in any case, except where he is personally 
 liable upon the cause of action. (Matter of Hurd, 9 
 Wend. 465; Matter of Galloicay, 21 Wend. 32). The 
 plaintiff in an action against a foreign receiver is not 
 entitled to an attachment. (Killmer v. Hohart, 8 Abb. 
 N. C. 426). Where an action is against a firm doing- 
 business in another state, . but one of the members of 
 which is a resident of this state, the plaintiff is not en- 
 titled to an attachment against the resident partner 
 (McKinlay v. Fowler, 1 How. Pr. N. S. 282) ; so, also, 
 proof that one member of the defendant partnership has 
 absconded does not justify the granting of a warrant 
 against the firm property. ( Bogart v. Dart, 25 Hun, 395 ) . 
 
ATTACHMENT. 619 
 
 Subdivision 2. — Against a Foreign Corporation. 
 
 The plaintiff in an action against a foreign corpora- 
 tion, is entitled to an attachment. (Co. Civ. Proc. § 
 636, subd. 2). A "foreign corporation" is deiined as 
 being every corporation other than one created by or 
 under the laws of the state ; or located in the state, and 
 created by or under the laws of the United States, or 
 by or pursuant to the laws in force in the colony of New 
 York, before the 19th day of April, in the year 1775. 
 ( Co. Civ. Proc. § 3343, subd. 18) . The latest expression 
 of judicial opinion on the subject is to the effect that sec- 
 tion 5242 of the United States Revised Statutes pro- 
 hibits an attachment against national banks, whether 
 solvent or insolvent. ( Vmi Reed v. People's Nat. Bk., 73 
 N. Y. Supp. 514) . It is to be noted, however, that, so far 
 as solvent national banks are concerned, this is a dictum 
 only and contrary to the doctrine laid down in Robinson 
 V. Bank (81 N. Y. 385). Moreover, two justices dissented 
 from the decision in the Van Reed case. 
 
 Subdivision 3. — Against Absconding or Concealed 
 
 Debtors. 
 
 The plaintiff is entitled to an attachment, where the 
 defendant is a natural person, and a resident of this 
 state, who has departed therefrom, with intent to de- 
 fraud his creditors, or to avoid the service of a sum- 
 mons, or keeps himself concealed therein, with the like 
 intent. (Co. Civ. Proc. § 636, subd. 2). It is not neces- 
 sary, to entitle the plaintiff to this relief, that the de- 
 parture should be secret; the plaintiff will be entitled 
 to his attachment if the departure be open, if it appears 
 that the defendant has gone away with intent to defraud 
 his creditors, or to avoid service of process. {Morgan 
 V. Avery, 7 Barb. 656; Hertz v. Stuart, 3 Wk. Dig. 332). 
 Slight circumstances are sufficient to establish that such 
 is the intent with which the departure has been made. 
 The court is not required to weary itself to find excuses 
 for a fugitive from debt. The question of insolvency, 
 although of great importance, is not controlling. If a 
 
620 
 
 PRACTICE. 
 
 perfectly solvent man departs the state, with intent to 
 defraud his creditors, or to avoid service of process 
 upon him, his property may be attached. (Schoon- 
 maker v. Spencer, 54 N. Y. 366, 372). But the facts 
 must show that the defendant himself, against whom 
 the process is sought, has done the act which is pre- 
 scribed by the code; the fact that a partner has ab- 
 sconded, will not entitle the plaintiff to an attachment 
 against the property of the firm, unless it appears that 
 all the partners have absconded with the intent specified 
 in the statute. [Bogart v. Dart, 25 Hun, 395; Leach v. 
 Cook, 10 Vt. 239). Proof that one of the partners has 
 absconded, will entitle the plaintiff to an attachment 
 against the property of that one. (Buckingham v. 
 Swezy, 25 Hun, 84). It must appear that the debtor 
 has absconded with intent to avoid the service of a 
 summons ; it is not sufficient to entitle the plaintiff to an 
 attachment, where it appears that he keeps concealed 
 with intent to avoid the service of criminal process 
 Lynde v. Montgomery, 15 Wend. 461 ; Thames & Mersey 
 Mar. Ins. Co. v. Dimick, 22 N. Y. Supp. 1096) ; nor is 
 proof of mere absence from his place of business ade- 
 quate. {Head v. Wollner, 53 Hun, 615). Where it ap- 
 pears that the defendant is absent from his usual resi- 
 dence and place of business during business hours, when 
 he is about to fail, or soon after a demand has been made 
 upon him for a debt, and he refuses to reveal his place 
 of resort, it sufficiently appears that he keeps himself 
 concealed with intent to avoid service of a summons. 
 {Buell V. Van Camp, 119 N. Y. 160; Easton v. Malavazi, 
 7 Daly, 147; Gen in v. Tompkins, 12 Barb. 265). To en- 
 title the plaintiff to an attachment under this provision 
 of the code, it need not appear whether the debtor has 
 left the state, or is concealed within it ; if it is made to 
 appear that he is not in his usual place of resort and 
 cannot be found, and his place of abode is concealed, or 
 cannot be discovered, and circumstances are shown from 
 which it can be inferred that his intent is, either to 
 avoid the service of a summons upon him, or to defraud 
 his creditors, the requirements of the statute are satis- 
 fied, and the plaintiff will be entitled to his attachment. 
 
ATTACHMENT. 621 
 
 It is not necessary that the creditor should state his case 
 in either aspect, but he may state it in the alternative. 
 ( Tan Alstyne v. Erwine, 11 N. Y. 331, 339 ; Kneeland on 
 Attachments, §§ 215, 216). The length of time during 
 "which the defendant has kept concealed is not material, 
 if the intent sufficiently appear. {Qenin v. Tompkins, 
 12 Barb. 265). 
 
 Subdivision 4. — Against one Removing, Assigning or 
 Secreting Property. 
 
 An attachment may be granted, either against a 
 natural person, or a domestic corporation, upon the 
 ground that the defendant has removed, or is about to 
 remove property from the state, or has assigned, dis- 
 posed of, or secreted, or is about to assign, dispose of, 
 or secrete property, with intent to defraud his creditors. 
 (Co. Civ. Proc. § 636, subd. 2). It is important to no- 
 tice that, under the phraseology of this portion of the 
 section, it is immaterial what method the debtor adopts 
 to dispose of his property; a sale, a confession of judg- 
 ment, an assignment, a deed, are all "dispositions" of 
 his property within the meaning of the section. It is 
 material, however, in this case, as in the case mentioned 
 in the former subdivision, that the intent should appear. 
 (Hertz V. Stuart, 3 Wk. Dig. 332). It is not sufficient 
 to show in the alternative, that the defendant "has as- 
 signed and disposed of, or is about to assign or dispose 
 of" his property with intent to defraud creditors; such 
 a disjunctive statement shows nothing. (Gronin v. 
 Crooks, 143 N. Y. 352). The statement of the two 
 grounds in the conjunctive may, also, be inadequate, 
 where the grounds are inconsistent (Johnson v. Buckel. 
 65 Hun, 601 ; S. C. 20 N. Y. Supp. 566 ; Hale v. Prote, 75 
 Hun, 13), unless it clearly appears that there are two 
 distinct acts charged. (Jufgens v. Turn Suden, 32 App. 
 Div. 1). The facts showing the intent must be stated; 
 the allegation of the conclusion is insufficient. (Salz- 
 berg v. Mandelhamn, 89 Hun, 497) . The property which 
 is removed or secreted must be the property of the de- 
 fendant ; the fact that the defendant has disposed of the 
 
622 
 
 PRACTICE. 
 
 property of the plaintiff, or of a third person, with in- 
 tent to defraud that person, is not a reason for an at- 
 tachment against him. {German Bank of London v. 
 Dash, 60 How. Pr. 124). It has been held, that threat- 
 ening to make an assignment with preferences, is not 
 alone evidence of an intent to dispose of property with 
 intent to defraud creditors ( Wilson v. Britton, 26 Barb. 
 562) ; but one cannot use the power of assigning prop- 
 erty with a preference, so as to intimidate creditors into 
 refraining from proceeding to collect debts, without 
 running the risk of being chargeable with an intent to 
 defraud them {Gasherie v. Apple, 14 Abb. Pr. 64) ; and 
 a confession of judgment, made to force a settlement, is 
 in the same category. [Galle v. Tode, 60 Hun, 132) ; it 
 has, likewise, been held that the threat to use (with the 
 help of the mortgagee) an unfiled chattel mortgage so 
 as to prevent creditors from reaching any of the prop- 
 erty is sufficient evidence (Lullcens Iron, etc. Co. v. 
 Payne, 13 App. Div. 11) ; such a threat, or act, raises a 
 suspicion of a fraudulent purpose, and if it is accom- 
 panied with slight circumstances showing a fraudulent 
 intent, it will be sufficient to uphold an attachment 
 {Anthony v. Stype, 19 Hun, 265) ; as where a debtor 
 states that the object of the assignment would be that 
 the plaintiff would get nothing {Liver more v. Rhodes, 
 3 Robt. 626) ; but the fact that the debtor has agreed to 
 give a preference to another than the plaintiff, in case 
 he becomes insolvent, does not raise a suspicion of 
 fraudulent intent, so as to warrant the granting of an 
 attachment against him. {National Pari- Bank v. 
 Whit more, 104 N. Y. 297, 302). So the actual payment 
 of debts, the effect of which is to give preferences does 
 not show an intent to defraud. {Wallaiout Bank v. 
 Military Club, 36 App. Div. 156). The plaintiff will 
 not be entitled to an attachment against an assignor, 
 upon the ground mentioned in this subdivision, for the 
 reason that he has made a general assignment, which is 
 void by reason of improper provisions in it {Milliken v. 
 Dart, 26 Hun, 24) ; but if the assignment is fraudulent 
 in fact, by reason either of the acts of the defendant in 
 making it, or in the preparations for it, such fraud would 
 
ATTACHMENT. 
 
 623 
 
 be sufflcient to entitle him to an attacliment. {Vietor 
 X. Henlein, 34 Hun, 562; Bulil v. Ball, 41 Hun, 61; ap- 
 peal dismissed, 106 N. Y. 672; Friend v. Michaelis, 15 
 Abb. N. C. 354). So the payment of an honest debt by 
 a limited partnership, while insolvent, does not show 
 an intent to defraud creditors, although such payment 
 is in violation of a statute of another state (under the 
 laws of which the partnership was organized) declaring 
 such a transfer void. {Casola v. Vasquez, 147 N. Y. 
 258). It is not necessary, to warrant an attachment 
 under this subdivision, that the defendant has disposed, 
 or is about to dispose, of all his property ; if he disposes 
 of a part of his property (Hyman v. Kapp, 22 Wk. Dig. 
 310), with the intent to defraud one creditor ( Wildman 
 V. Oelder, 21 Civ. Proc. Rep. 143 ) ; or of any property in 
 his possession, or to which he claims the title, although 
 his title is imperfect or bad {Treadwell v. Lawlor, 15 
 How. Pr. 8) ; or if he disposes of a portion of his prop- 
 erty in another state {Kibbe v. Wetmore, 31 Hun, 424) ; 
 it is sufflcient to warrant the issuing of an attachment 
 against him. But a plaintiff, applying for an attach- 
 ment under this subdivision, is called upon to act with 
 promptness; and where the fraudulent disposition oc- 
 curred several years before an action is brought, the 
 plaintiff must show a satisfactory excuse for his delay, 
 or a very clear case of fraud before an attachment will 
 be granted. {Allen v. Herschorn, 9 Abb. Pr. N. S. 80). 
 
 Subdivision 5. — Against one Making False Statement 
 IN Writing, as to His Financial Responsibility. 
 
 An attachment may also be granted, where, for the 
 purpose of procuring credit, or the extension of credit, 
 the defendant has made a false statement in writing, 
 under his own hand or signature, or under the hand or 
 signature of a duly authorized agent, made with his 
 knowledge and acquiesence, as to his financial responsi- 
 bility or standing. (Co. Civ. Proc. § 636, subd. 2). A 
 warrant of attachment, against the property of one or 
 more defendants in an action, may also be granted in 
 an action in favor of a private person or corporation, 
 brought to recover damages for an injury to personal 
 40 
 
624 
 
 PEACTICE. 
 
 property where the liability arose in whole or in part, 
 in consequence of the false statements of the defendant 
 as to his responsibility or credit, in writing, under the 
 hand or signature of the defendant or his authorized 
 agent, made with his knowledge and acquiescence. In 
 order to entitle the plaintiff to a warrant of attachment, 
 in the case specified in this section, he must show, by 
 affidavit, to the satisfaction of the judge granting it, 
 that a sufficient cause of action exists against the de- 
 fendant for a sum stated in the affidavit. (Co. Civ. Proc. 
 § 637). 
 
 Both of these provisions were added to the code of 
 civil procedure by chapter 736, of the laws of 1894, and 
 there seems to have been very little litigation concerning 
 their meaning and interpretation. In 1896, the court 
 of appeals held that the addition to subdivision 2 of 
 section 636 was not designed to give the right of attach- 
 ment to any one except those who gave or extended 
 credit to the debtor relying on the false statement as 
 true ; in other words, a false statement in writing, which 
 does not come to the knowledge of the. creditor until 
 after the credit is given, is not sufficient to authorize the 
 granting of a warrant of attachment in favor of such 
 creditor. ( Penoyar v. Kelsey, 150 N. Y. 77 ) . 
 
 Subdivision 6. — Against an Adult Resident, Contin- 
 uously Without the State for More Than 
 Six Months, etc. 
 
 A warrant of attachment may be granted to a plain- 
 tiff Avhere the defendant, being an adult and a resident 
 of the state, has been continuously without the state of 
 New York for more than six months next before the 
 granting of an order of publication of the summons 
 against him, and has not made a designation of a person 
 upon whom to serve a summons in his behalf, as pre- 
 scribed in section 430 of the code of civil procedure; 
 or a designation so made no longer remains in force; 
 or service upon the person so designated cannot be made 
 within the state, after diligent' effort. (Co. Civ. Proc. 
 § 636, subd. 2). 
 
ATTACHMENT. 625 
 
 This clause was added to the section by chapter 578, 
 of the laws of 1895, and, like its predecessor in time and 
 in the section, seems to have required no judicial eluci- 
 dation. 
 
 Subdivision 7. — Against Public Offices. 
 
 A Avarrant of attachment, against the property of one 
 or more defendants in an action, may also be granted, 
 upon the application of the plaintiff, where the com- 
 plaint demands judgment for a sum of money only ; and 
 it appears by affidavit, that the action is brought to 
 recover money, funds, credits, or other property, held 
 or owned by the state, or held or owned officially or 
 otherwise, for or in behalf of a public or governmental 
 interest, by a municipal or other public corporation, 
 board, officer, custodian, agency or agent, of the state, 
 or of a city, county; town, village, or other division, sub- 
 division, department, or portion of the state, which the 
 defendant has, without right, obtained, received, con- 
 verted, or disposed of; or in the obtaining, reception, 
 payment, conversion or disposition of which, without 
 right, he has aided or abetted ; or to recover damages for 
 so obtaining, receiving, paying, converting, or disposing 
 of the same ; or the aiding or abetting thereof. In order 
 to entitle the plaintiff to a warrant of attachment, in 
 a case specified in this section, he must show by affidavit, 
 to the satisfaction of the judge granting it, that a suffi- 
 cient cause of action exists against the defendant, for 
 the sum stated in the affidavit. (Co. Civ. Proc. § 637). 
 The action which is specified in this section is that au- 
 thorized by section nineteen hundred and sixty-nine of 
 the code of civil procedure, to be brought to recover 
 money, funds or other property, held or owned by the 
 state or otherwise, as prescribed in that section, and 
 which has been obtained without right, or converted, 
 or disposed of. It is to be noted that an attachment can 
 only be granted in the instances covered by the code pro- 
 visions. For example, there is no provision in the code 
 of civil procedure for granting an attachment against 
 an unincorporated association, sued in the name of its 
 president or treasurer pursuant to sections 1919 to 1924, 
 
626 
 
 PRACTICE. 
 
 of the code of civil procedure, and an attachment cannot 
 be had against the defendant in such a suit. [Mertz v. 
 Fenouillet, 13 App. Div. 222). 
 
 Sec. 4. When an Attachment Will be Granted. 
 
 The warrant may be granted to accompany the sum- 
 mons, or at any time after the commencement of the ac- 
 tion, and before final judgment therein. Personal serv- 
 ice of the summons must be made upon the defendant, 
 against whose property the warrant is granted, within 
 thirty days after the granting thereof; or else, before 
 the expiration of the same time, service of the summons 
 by publication must be commenced, or service thereof 
 must be made without the state, pursuant to an order 
 obtained therefor, as prescribed in the code of civil pro- 
 cedure; and if publication has been, or is thereafter 
 commenced, the service must be made complete by the 
 continuance thereof. (Co. Civ. Proc. § 638). The court 
 acquires jurisdiction by the granting of the warrant, ac- 
 companied by the summons; but such jurisdiction is 
 conditional ; and it is liable to be divested, if the sum- 
 mons is not served within the thirty daj^s after the grant- 
 ing of the warrant. (Co. Civ. Proc. § 416; Waffle v. 
 Gohle, 53 Barb. 517) . If the summons has been actually 
 issued, and is in the hands of a proper person for service, 
 an attachment may be granted, and it will be regular, 
 although it is served before the summons. {Mills v. 
 Corhett, 8 How. Pr. 500) . If the summons is not served 
 within thirty days after the granting of the warrant, 
 the failure to do is jurisdictional, and destroys the war- 
 rant, and the proceedings must be vacated on motion 
 (Cossitt V. Wiiichell, 39 Hun, 439 ; Betzemann v. Brooks, 
 31 Hun, 271) ; and the proceedings which have been taken 
 under the attachment, become void as to third persons 
 [Fisher v. Nash, 47 App. Div. 234), as well as to the 
 defendant; the plaintiff in the attachment suit becomes 
 liable as a trespasser to tlie party whose property has. 
 been attached. ( Rnser v. Union Distilling Co., 7 Misc. 
 396). The failure to serve the summons within the 
 thirty days affects only the attachment and the pro- 
 ceedings thereunder; a service after that time is still 
 
ATTACHMENT. 627 
 
 valid, of course, as a service of the summons, and the 
 beginning of an action. (Sahin v. Kciidrick, 2 App. 
 Div. 96). A voluntary general appearance by the de- 
 fendant, before the expiration of the thirty days within 
 which the summons must be served, is equivalent to per- 
 sonal service upon him, within this section (CatUn v. 
 Ricketts, 91 N. Y. 668), even if service by publication 
 is begun and not completed {Titller v. Beck, 108 N. Y. 
 355) ; but if a general appearance is made, after the 
 thirty days has expired, the court will not regain the 
 jurisdiction, which it has lost by a failure to serve the 
 summons within the time required, and the attachment 
 is not revived or validated. (Blossom v. Estes, 84 N. 
 Y. 614; Cossitt v. Winchell, supra). In the case of 
 Orcis V. Goldschmidt (2 Civ. Proc. Rep. 314), it was 
 held that where the action was brought against a firm, 
 and service was made upon one, but not upon all, before 
 the expiration of the thirty days, the summons was suffi- 
 ciently served, and that the court did not lose jurisdic- 
 tion by a failure to serve all the defendants. But in 
 Donnell v. Williams (21 Hun, 216), and Bogart v. 
 Sweezy (3 Law Bull. 41; affd. 26 Hun, 463), the court 
 decided, that in such an action, the attachment of the 
 property ceased to be a lien, unless all the partners were 
 served with summons, or the service upon all was begun, 
 within the thirty days from the granting of the warrant. 
 The cases last cited were before the case of Orvis v. 
 Ooldschmidt, but they are general term decisions, and 
 are not referred to in the case of Orvis v. Goldschmidtj 
 and they must be deemed properly to state the law. 
 Where an order for the publication of a summons, was 
 obtained on the thirtieth day after the granting of the 
 warrant of attachment, and on that day, copies of the 
 summons were mailed, and the summons and notice were 
 delivered to one newspaper and published, but were not 
 published in another paper until the next day; it was 
 held, that the publication was not commenced within 
 thirty days, as required by this section, and the attach- 
 ment was vacated. (Taylor v. Troncoso, 76 N. Y. 599). 
 If the last of the thirty days falls on Sunday, service on 
 the following day would be sufficient to sustain an at- 
 
628 
 
 PRACTICE. 
 
 tachment. {Grihhon v. Freel, 93 N. Y. 93). If the 
 service of a summons by publication has been com- 
 menced, before an attachment is granted, the require- 
 ments of the statute, as to service of the summons, are 
 sufiflciently complied with. [Baron, v. Biarca. 3 Law 
 Bull. 49). Where an attachment was issued, but the 
 defendant died before the service of the summons, and 
 his administrator was substituted as defendant, but the 
 summons was not served upon him within the thirty 
 days after the granting of the warrant, the jurisdiction 
 Avas lost, and the warrant was vacated. (Kelly v. Comi- 
 ty y man, 15 Hun, 97). Where the defendant dies after 
 the granting of an attachment, but before the service of 
 the summons by publication is begun, or completed, the 
 court cannot substitute his personal representatives and 
 have the lien of the attachment continue as to them. 
 {Barron v. South Brooklyn Saw Mill Co., 19 Abb. N. 
 C. 352; Ludwig v. Bliiiti, 43 N. Y. St. Eep. 616). The 
 service of the summons required by the section, must 
 be in the manner required by the statute — mere notice 
 is not sufficient. (Kieley v. Mfg. Co., 147 N. Y. 620). 
 There can be no doubt that either service without the 
 state or service by publication, is sufficient, as section 
 638 expressly says so; personal service is, also, suffi- 
 cient (T idler v. Beck, 108 N. Y. 355, 357) ; it was held, 
 in the case of Bogart v. Sweezey (26 Hun, 463) , that sub- 
 stituted service, under section 435, was not sufficient, 
 and this case seems nowhere to have been overruled. It 
 is apprehended, however, that it is neither sound in prin- 
 ciple, nor representative of the law on this point. Sec- 
 tion 399 of the code of civil procedure, providing for an 
 attempt to commence an action, requires personal serv- 
 ice of the summons, or service by publication, upon the 
 defendant within sixty days after the summons is de- 
 livered to the sheriff, and the court of appeals has held 
 that substituted service satisfies the requirement of this 
 section, although no mention of such service is made in 
 the section. {Clare v. Lockard, 122 N. Y. 263)! The 
 same construction has been put upon section 1670 of the 
 code of civil procedure, providing for personal service, 
 or service by publication of the summons within sixty 
 
ATTACHMENT. 629 
 
 days after the filing of a lis pendens. {Ferris v. Pluin- 
 mer, 48 Hun, 515). It seems that the failure to specify 
 substituted service as one of the permissible methods of 
 service, in sections 399, 638 and 1670, is a mere codifler's 
 error. (Ferris v. Pliuniaer, supra). Moreover, it is to be 
 noted in this connection that the court of appeals has 
 held a personal appearance within thirty days sufficient 
 under section 638, reading that section with section 424. 
 {Cutlin. V. Ricketts, 91 N. Y. 669). So it seems reason- 
 able to suppose that section 437, providing that the same 
 proceedings may be taken upon a substituted service as 
 upon a service by publication, is also to be regarded in 
 construing section 638. That such is the fact, is indi- 
 cated by the dictum in Kieltj v. Mfg. Go. (147 N. Y. 620, 
 622). The fact that the summons was not served, be- 
 cause the defendant requested the plaintiff to suspend 
 the proceedings for a time, does not excuse the failure 
 to serve it, nor does it operate as an estoppel on the de- 
 fendant so as to prevent the setting aside of the attach- 
 ment. (Mojarrieta v. Saenz, 80 N. Y. 547). Where a 
 plaintiff has obtained an attachment and an order of 
 publication, he may, if he sees fit, abandon them, and 
 take out a new attachment and order, if it does not ap- 
 pear that it was done for the purpose of vexation. ( Id. ) . 
 The attachment may be granted any time before final 
 judgment, even if the plaintiff is entitled to judgment 
 at the time he applies for the warrant. (First Nat. BJc. 
 V. Bushu-ick Chemical Works, 17 Civ. Proc. Kep. 229; 
 affd. without op., 119 N. Y. 645). 
 
 Sec. 5. By Whom Granted. 
 
 The warrant may be granted by a judge of the court 
 in which the action is pending, or by any county judge. 
 (Co. Civ. Proc. § 638). The powers of a county judge 
 under this section are not restricted to cases where the 
 action is triable in his own county, nor where the attor- 
 ney resides in that county. {Webb v. Bailey, 54 N. Y. 
 164). 
 
630 PRACTICE. 
 
 ARTICLE II. 
 
 PAPERS ON WHICH IT MAY BE GRANTED. 
 
 SECTION. 
 
 1. The affidavit. 
 
 2. Security on obtaining warrant. 
 
 3. Contents of the warrant. 
 
 Sec. 1. The Affidavit. 
 
 To entitle the plaintiff to a warrant of attachment, he 
 must show, by affidavit, to the satisfaction of the judge 
 granting the same, as follows : 
 
 1. That one of the causes of action specified in section 
 six hundred and thirty-five of the code of civil procedure, 
 exists against the defendant. If the action is to recover 
 damages for breach of a contract, the affidavit must 
 show that the plaintiff is entitled to recover a sum stated 
 therein, over and above all counter-claims known to him. 
 
 2. That the defendant is either a foreign corporation, 
 or not a resident of the state ; or, if he is a natural per- 
 son, or a resident of the state, that he has departed there- 
 from, with intent to defraud his creditors, or to avoid 
 the service of a summons, or keeps himself concealed 
 therein with the like intent; or, if the defendant is a 
 natural person, or a domestic corporation, that he or it 
 has removed, or is about to remove, property from the 
 state, with intent to defraud his or its creditors ; or has 
 assigned, disposed of, or secreted, or is about to assign, 
 dispose of, or secrete property with the like intent, or 
 where, for the purpose of procuring credit, or the ex- 
 tension of credit, the defendant has made a false state- 
 ment in writing, under his own hand or signature, or 
 under the hand or signature of a duly authorized agent, 
 made with his knowledge or acquiesence, as to his finan- 
 cial responsibility or standing; or where the defendant 
 being an adult and a resident of the state, has been con- 
 tinuously without the state of New York for more than 
 six months next before the granting of an order of pub- 
 lication of the summons against him, and has not made 
 a designation of a person upon whom to serve a sum- 
 
ATTACHMENT. 631 
 
 mons in his behalf, as prescribed in section 430; or a 
 designation so made no longer remains in force ; or serv- 
 ice upon the person so designated cannot be made within 
 the state, after diligent effort. (Co. Civ. Proc. 
 § 636). It is always necessary that the applica- 
 tion should be founded upon an affidavit. (Zerega v. 
 Benoist, 7 Kobt. 199). In this case as in others, a veri- 
 fied pleading is regarded as an affidavit. ( Co. Civ. Proc. 
 § 3343, subd. 11). When so used, however, it should 
 comply with the requirements of other affidavits as to the 
 manner of stating the facts. It should also be recited in 
 the warrant, to show that it has been used. {People v. 
 lit. Nicholas Bh., 44 App. Div. 313). The affidavit, how- 
 ever, need not be an affidavit of the plaintiff; it may bb 
 made either by the plaintiff, or by another person who 
 is familiar with the facts ( EcUck v. Green, 38 Hun, 202 ) , 
 or by more than one person {J affray v. Nasi, 32 N. Y. 
 St. Kep. 350; White v. Reichert, 14 Wk. Dig. 285). If 
 an action is brought by a firm, the affidavit of one of the 
 plaintiffs is sufficient. {Stevens v. Middleton, 26 Hun, 
 470). A most reasonable rule was laid down in James 
 V. Richardson (39 Hun, 599; app. dismissed, 102 N. Y. 
 731), to the effect that positive statements in an affi- 
 davit made by an agent, on an application by his prin- 
 cipal for an attachment, would be presumed to have been 
 made upon personal knowledge, unless stated to be on 
 information, or unless it should appear affirmatively or 
 by fair inference that they could not have been, or were 
 not made, on such knowledge. Such would seem to be 
 still the rule of construction throughout the state, ex- 
 cept in the first department. [Pierson v. Freeman, 77 
 N. Y. 589; Patterson v. Delanei/, 14 N. Y. Supp. 100; 
 Lacker v. Dresher, 38 App. Div. 75 ; Wicker v. Village 
 of EJmira Heights, 42 App. Div. 426; see, however, 
 Hhuler v. Birdsall Mfg. Co., 17 App. Div. 228, semble). 
 In the first department, however, the rule is well-settled 
 the other way, and an absolute statement in such an affi- 
 davit will not be deemed based upon personal knowledge, 
 in the absence of evidence in the affidavit, from which 
 the inference can be drawn that such personal knowl- 
 edge existed {Hoorman v. Climax Cycle Co., 9 App. 
 
632 
 
 PRACTICE. 
 
 Div. 579; Martin v. Aliuninum etc. Co., 44 App. Div. 
 512) ; and such allegations are held to furnish no 
 proof of the facts alleged, despite a direct affirmation 
 of knowledge. {Tucker v. Goodsell Co., 14 App. Div.. 
 89). In the light of these last-cited cases, and the firm 
 •establishment of this peculiar rule in the first depart- 
 ment, it is necessary in the first, and safer, doubtless, in 
 any other, department, to state the facts and relation- 
 ships giving the opportunity for personal knowledge of 
 statements made absolutely. Bach case must rest on its 
 own facts, as to whether the facts and relationships 
 shown in the affidavit satisfy the judicial mind that 
 personal knowledge existed. An assignee's positive state- 
 ments, with nothing to show a prior relationship, are 
 not presumed to have been made on personal knowledge 
 {Hoonnan v. Climax Cycle Co., supra) ; such statements 
 by the cashier of the plaintiff bank as to the existence of 
 certain documents bearing on the action are sufficient 
 (Merchants' Kut. Bk. v. Cohttnbia Co., 21 App. Div. 
 383) ; as to affidavits by officers of corporations, see An- 
 thony V. Fox ( 53 App. Div. 200 ) , and cases there cited ; 
 it is always advisable to show clearly that the officer 
 making the affidavit was connected with the corporation 
 at the time of the occurrence of the facts set forth. Cita- 
 tions might be multiplied indefinitely to show what cir- 
 cumstances convince the court that an affidavit is neither 
 prevaricating, nor over-reckless; as said before, each 
 case must rest on its own facts. The affidavit should in 
 general be iipon the personal knowledge of the affiant, 
 and must be positive in its statements. (8t. Ainant v. 
 De Beixecdon, 3 Sand. 703) . The statement of the cause 
 of action in affidavits, on an application for an attach- 
 ment, should be clear, concise and explicit. The proof 
 must be to the "satisfaction of the judge" granting the 
 attachment, and this satisfaction must be judicial and 
 not personal. (Duryea, Watts d Co. v. Raijner, 11 Misc. 
 294). Conclusions and expressions of opinion are not 
 "satisfactory." (Lehmaier v. Buchner, 14 App. Div. 
 263). Facts sufficient to show the intent and attempt 
 to defraud, being stated also, where they are necessary; 
 and where the latter cannot be sworn to on positive 
 
ATTACHMENT. 633 
 
 knowledge, tlie sources from which, and the persons from 
 Avhom, the information is derived should be given, to- 
 gether with the reason why the aflddavits of those having 
 positive knowledge of the facts cannot be procured. 
 {Bennett v. Edtvards, 27 Hun, 352) . If a person, having 
 positive knowledge of facts sufficient to warrant the is- 
 suing of an attachment, refuses to make affidavit to those 
 facts, it is not necessary for the party applying for the 
 attachment, to obtain an order for his examination 
 under section eight hundred and eighty-five of the code 
 of civil procedure; but the fact of such refusal may be 
 stated, together with the knowledge the person is known 
 to possess, and any affidavit made by such reluctant 
 witness, showing the facts, if on file, may be quoted and 
 referred to in the moving affidavit. ( Id. ) . The affidavit 
 must set forth such facts and circumstances as will sup- 
 port the grounds upon which the application is based. 
 Where the facts are stated on information and belief, it 
 should allege that affiant believes such information, and 
 should set forth facts showing that his informers are 
 absent, or that their depositions cannot be obtained 
 {Steuhen Co. BJc. v. Alherger, 78 N. Y. 252; Ahrams v. 
 Levine, 90 Hun. 566; Scott v. Beaudet, 62 Hun, 50), or, 
 where the information is derived from affidavits on file, 
 that original affidavits from such affiants are not ob- 
 tainable {8elser Bros. v. Potter Produce Co., 11 Hun, 
 313 ) , and the sources of the information should also be 
 stated as specified above, {l^eal v. Sachs, 15 Wk. Dig. 
 476) . Allegations upon information and belief are suffi- 
 cient, where, in addition to the requirements last stated, 
 it is made to appear therein that the information fur- 
 nished by such affidavits is such that a person of reason- 
 able prudence would be willing to accept and act upon 
 it {Buell V. Van Camp, 119 N. Y. 160, 165) ; the mere 
 averment of a fact, however, upon information and be- 
 lief, without more is not sufficient (Id.), unless the 
 sources of the information and the grounds of the belief 
 are stated. {Hunt v. Robinson, 52 App. Div. 539). For 
 comparatively recent examples as to telephonic sources 
 of information, see Andreivs v. Schofield (27 App. Div. 
 90) and Murphy v. Jack (142 N. Y. 215), in both of 
 
634 PRACTICE. 
 
 which cases the information was held to be unsatisfac- 
 tory. Here, again, each case must rest on its own facts 
 as to what information is sufiflcient and it is a work 
 of supererogation to multiply citations. Where it is 
 essential to the cause of action to prove the existence of 
 a certain document, the most satisfactory method, of 
 course, is by annexing the instrument itself to the affi- 
 davit, but it is not necessary that this be done ; positive 
 averments of its contents by one in a position to have per- 
 sonal knowledge is sufficient. {Merchants' Nat. Bk. v. 
 Columbia Co., 21 App. Div. 383). Where the sources of 
 information are affidavits on file, copies of such affida- 
 vits should be set forth. (Smith v. Arnold, 33 Hun, 484 ; 
 appeal dismissed, 100 N. Y. 640; ^Yhitnel/ v. Hirsch, 39 
 Hun, 325; Helser Bros. v. Potter Produce Co., 77 Hun, 
 313). Although it is necessary that an action has been 
 begun, or a summons has been, or is about to be, issued, 
 that fact need not be stated in the affidavits. ( Stevens v. 
 Middleton, 26 Hun, 470; Frankel v. Haijs, 20 Wk. Dig. 
 417). The affidavits must show that a cause of action 
 of which the court has jurisdiction exists, and the facts 
 constituting the cause of action must be set forth in 
 the affidavits. (Walts v. Nichols, 32 Hun, 276; Smith 
 V. Davis, 29 Hun, 306; People v. St. Nicholas Bk., 44 
 App. Div. 313 ) . It is necessary also to set forth in the 
 affidavits facts showing the plaintiff's right to maintain 
 the action ; so, where an attachment is applied for by a 
 foreign corporation doing business in the state, or its 
 assignee the affidavits must show that the certificate, 
 required by section 15, of the General Corporation Law, 
 had been obtained. (Saioyer Lumber Co. v. Bissell, 
 84 Hun, 224 ) ; of course the obtaining of such certificate 
 need not be shown where it does not appear that the cor- 
 poration is doing business in the state nor that the con- 
 tract sued on was made in the state. (Lukens Iron S 
 Steel Co. V. Payne, 13 App. Div. 11). If a cause of 
 action is not shown in the affidavits, it is a fatal juris- 
 dictional defect. (Jacobs v. Hogan, 85 N. Y. 244). If 
 a verified complaint is relied on as an affidavit, and the 
 allegations, or any portion of them, are made upon in- 
 formation and belief, a positive affidavit verifying its 
 
ATTACHMENT. 635 
 
 statements, makes it sufficient evidence of the existence 
 of the cause of action. (EOick v. Green, 38 Hun, 202). 
 The affidavits need not state in terms that the cause of 
 action is not for a breach of a promise of marriage, if 
 that fact necessarily appears by them. ( Edick v. Green, 
 supra). The amount due to the plaintiff must appear 
 in the papers, and a demand for judgment for less than 
 the complaint shows the plaintiff to be entitled to, does 
 not affect the right to an attachment. {RainUton v. 
 Penney, 29 Hun, 265) . In stating the amount which the 
 plaintiff is entitled to recover, as is made necessary by 
 subdivision one of section six hundred and thirty-six 
 it is not necessary to use the precise words of the statute, 
 although they furnish the safest formula. [Ruppcrt v. 
 Hang, 87 N. Y. 141) . Those words, or equivalent words, 
 or at least statements from which the court can see that 
 the facts required by that subdivision do actually exist, 
 must be stated. Where an affidavit, as to the amount 
 which the plaintiff is entitled to recover, is made by an 
 agent, it must contain something, from which the court 
 can see how he could know the facts which enable him 
 to make the statement ; although the description of his 
 relations to the transaction may be sufficient, yet some 
 circumstances, showing his relation to the knowledge 
 of his business must be presented. (Buhl v. Ball, 41 
 Hun, 61; appeal dismissed, 106 N. Y. 672; 8mith v. 
 Arnold, 33 Hun, 484; appeal dismissed, 100 N. Y. 640) ; 
 as, for example, that the affiant was the general agent 
 of the plaintiff and was conversant with the plaintiff's 
 business, which the plaintiff was not. {Washburn v. 
 Carthage Nat. Bk., 86 Hun, 396 ; affd. on op. below, 155 
 N. Y. 690). Where a corporation is plaintiff, an affida- 
 vit made by a cashier that the plaintiff was entitled to 
 recover a sum therein stated and interest, over and 
 above all counter-claims known to the plaintiff, was 
 held to be sufficient {'National Park Bank v. Whitmore, 
 40 Hun, 499; appeal dismissed, 104 N. Y. 297) ; or by 
 the secretary. {E. W. Bliss Co. v. Opera Glass Supply 
 Co., 60 Hun, 438). A statement that the amount of the 
 plaintiff's claim was a specified sum, "over and above all 
 discounts and set-offs," was also held to be sufficient, 
 
636 
 
 PRACTICE. 
 
 (Lautlin v. Douglass, 27 Hun, 517) . The plaintiff musC 
 state tliat he is entitled to recover a particular sum, 
 which is specified. A general averment of damages is 
 not sufficient. [Golden Gate Con. Co. v. Jackson, 13 
 Abb. N. C. 476). Where the damages are unliqui- 
 dated, the affidavits must set forth the facts showing a 
 substantial injury; a mere allegation of having suffered 
 damage in a certain amount is insuflacient. ( Westervelt 
 V. AgruDiaria etc., Societa, 58 Hun, 147) ; the evidence 
 to prove damages, as distinguished from conclusions 
 of fact proper to a complaint, must be shown. (Dela- 
 fickl V. Ormshy Co., 62 App. Div. 262). Neither is it 
 sufficient for the affidavit to state that the plaintiff is 
 entitled to recover "the sum of ten thousand dollars, or 
 other larger sums, with interest," over and above all 
 counter-claims, etc. {Thorington v. Merrick, 101 N. Y. 
 5). Where the affidavit is made by the plaintiff him- 
 self, the words "known to him" have been held to be 
 non-essential (Alford v. Cobb, 28 Hun, 22) ; where 
 an agent makes the affidavit, it is not sufficient 
 to recite that the plaintiff is entitled to recover a certain 
 amount over and above all counter-claims "known to 
 the deponent" (Murray v. Hankin, 30 Hun, 37; Smith v. 
 Holt, 37 App. Div. 24), inasmuch as the clause in ques- 
 tion requires satisfactory proof that there are no coun- 
 ter-claims to the plaintiff's knowledge (Marine Nat. 
 Bk. V. Ward, 35 Hun, 395) ; such a statement by an 
 agent is sufficient, however, where it appears from the 
 affidavit that the affiant was the plaintiff's general agent 
 and knew all about the plaintiff's business, to which 
 the plaintiff himself paid no attention. (Washburn v. 
 Carthage ISfat. Bk.. 86 Hun, 396; affd. on op. below, 155 
 N. Y. 690). If one member of a firm makes the affi- 
 davit, it is not necessary that it should appear that 
 there were no counter-claims, which were known to the 
 other members of the firm. (Stevens v. Middleton, 4 
 Law Bull. 1; affd. 26 Hun, 470). Where a statement in 
 the affidavit, that an amount is due, over and above all 
 counter-claims known to the plaintiff, is made upon in- 
 formation and belief, the affidavit is not sufficient, and 
 the attachment will be vacated. (Acker v. Jackson, 3 
 
ATTACHMENT. 637 
 
 How. Pr. N. S. 160). The requirement is only as to tlie 
 knowledge of the actual plaintiff as to counter-claims 
 against himself; if the plaintiff is an assignee, he need 
 not show that there were no counter-claims against his 
 assignor, nor need he show anything as to his assignor's 
 knowledge of counter-claims. {Selser Brothers v. Pot- 
 ter Produce Co., 80 Hun, 554; affd. without op. 144 N. 
 Y. 646; Crotcns v. Vail, 51 Hun, 204). It must appear 
 in the affidavit either expressly, or by fair inference, 
 that the debt, which the action was brought to recover, 
 is due. [Reilly v. Sisson, 31 Hun, 572; Smadbeck v. 
 Sisson, 31 Hun, 582). Where an application for an at- 
 tachment is upon the ground that the defendant is a 
 foreign corporation, an allegation of that fact gives the 
 court jurisdiction to grant the warrant. {Lee v. Valley 
 Paper Mill, 1 Law Bull. 10) . If the application is upon 
 the ground that the defendant is a non-resident, it is 
 not necessary to allege that fact in positive terms; but 
 the affidavit will be sufficient, if the conclusion of non- 
 residence is one necessary to be drawn from the facts, 
 Avhich are stated in the affidavit. (Mayor etc. v. Genet, 
 4 Hun, 487; affd. 63 N. Y. 646; Thames & Mersey Marine 
 Ins. Co. V. Dimick, 22 N. Y. Supp. 1096 ; Everitt v. Pai'k, 
 88 Hun, 368). It is, also, to be remembered that the 
 necessary fact to be shown, is the defendant's non-res- 
 idence, and it is not essential to show where he resides 
 without the state. (Steel v. Raphael, 13 N. Y. Supp. 
 664 ; S. C. 37 N. Y. St. Rep. 623) . The plaintiff has the 
 burden of showing that the fact exists. (Ricetti v. 
 Mapleson, 22 Wk. Dig. 215). Where an order was' 
 granted upon an affidavit, which alleged the fact of non- 
 residence upon information and belief, although it was 
 accompanied by the sheriff's certificate of non-residence, 
 that defect was held to be fatal on a motion to vacate the 
 order. (Lyon v. Baxter, 64 How. Pr. 426). The affi- 
 davit must state the facts, which show that the defend- 
 ant has absconded, or concealed himself, or disposed of 
 his property (Neal v. 8achs, 15 Wk. Dig. 476), and that 
 it was with the intent of defrauding creditors, or to 
 avoid the service of summons. (Hertz v. Stuart, 3 Wk. 
 Dig. 332 ) . As we have seen, it is not necessary to allege 
 
538 PRACTICE. 
 
 that the departure is secret; the intent with which it 
 was made is the only material thing. (Morgan v. Avery, 
 7 Barb. 656). Mere conjectures that the defendant has 
 absconded, or concealed himself, or is about to dispose 
 of his property, are not sufficient to sustain the attach- 
 ment (Von Moppes v. Leimhach, 22 Wk. Dig. 3ST) ; 
 neither is a general allegation of the facts on informa- 
 tion and belief. (Steuben Co. Bank v. Alberger, 78 N. 
 Y. 252). Allegations of the deponent's belief, as to the 
 intent of the defendant, are not sufficient; the facts 
 must be stated from which such intent can be reason- 
 ably inferred, (Salzherg v. Mandelbauin, 89 Hun, 497) ; 
 and there must be evidence from which no inference of 
 an honest purpose can be drawn. (Merriam v. Wood 
 d Parker Co., 19 App. Div. 329). If it is doubtful 
 whether the defendant has departed from the state, or 
 keeps himself concealed within the state, the plaintiff 
 may charge in the disjunctive that he has done one or the 
 other ; and if his intent is doubtful, whether to defraud 
 creditors, or to avoid service, the affidavit may charge 
 each intent, and all the facts must be stated, so that the 
 court may see that one or the other may be inferred 
 ( Van Alstyne v. Erwine, 11 N. Y. 331 ; Oarson v. Brum- 
 herg, 75 Hun, 336) ; but statements in the disjunctive 
 are generally insufficient and should be avoided. 
 (Cronin v. Crooks, 143 N. Y. 352; Williams v. Right- 
 niyer, 88 Hun, 372) ; so a conjunctive statement that 
 the defendant "has assigned and disposed of, and is 
 about to assign, etc." has been held inadequate. (John- 
 son V. Bucket, 65 Hun, 601; Hale v. Prote, 75 Hun, 13). 
 Where an action is brought by a corporation, the affi- 
 davit need not state whether it is a domestic or a foreign 
 corporation. (Lee v. La Compagnie IJnicerseJlc etc., 
 2 N. Y. St. Rep. 612). Where, however, an action is 
 brought against an alleged foreign corporation, and an 
 attachment is sought because of such foreign incorpora- 
 tion, the affidavits must show clearly that it is a foreign 
 corporation ; an allegation that the "defendant held or 
 holds itself out to be a foreign corporation created under 
 the laws of West Virginia," is not good. (Shanks v. 
 Magnolia Metal Co., 89 Hun, 486). In connection with' 
 
ATTACHMENT. 639 
 
 the first department rule, heretofore noted, requiring 
 some evidence in the affidavit that the affiant has per- 
 sonal knowledge of facts he swears to positively, it is 
 to be noted that certificates of incorporation are matters 
 of public record open to every one, so that an absolute 
 averment that the defendant is a foreign corporation 
 created under the laws of of some other state will be 
 deemed to be based on personal knowledge. {Randolph 
 V. Susquehanna Water Co., 12 App. Div. 479). The affi- 
 davits need not state that the defendants have property 
 Avithin the state. {Lawton y. Kiel, 51 Barb. BO). It is 
 not necessary that it should appear by the affidavits, 
 that no previous application has been made, as required 
 by rule twenty- five. (Davis v. Brooks, 4 Law Bull. 49; 
 affd. 14 Wk. Dig. 454; affd. 90 N. Y. 653). In the case 
 of Mojarrieta v. Saenz (80 N. Y. 547), the court of ap- 
 peals declined to pass on the question whether it was 
 necessary to state that no previous application had 
 been made; saying that in any event it was a mere 
 irregularity, and had no effect upon the jurisdiction of 
 court ; and was not a question that was necessary to be 
 considered in that court. A party to an action cannot 
 be compelled to make an affidavit, upon Avhich to base 
 an application for a warrant of attachment {James v. 
 Richardson, 39 Hun, 399) ; but a person other than a 
 party can be compelled to make a deposition, under sec- 
 tion eight hundred and eighty-five of the code. {Allen 
 V. Meyer, 73 N. Y. 1). Where an attachment has been 
 vacated for a defect in the affidavit, the same papers 
 with an additional affidavit supplying the defect, may 
 be used to obtain another attachment. • {Aclwr v. Jack- 
 son, 3 How. Pr. N. S. 160; Mojarrieta v. Saenz, 80 N. 
 Y. 547). Upon an application for a warrant of attach- 
 ment, it is not necessary that the facts stated in the affi- 
 davit should be decisive of every fact, which is required 
 to entitle the plaintiff to the attachment ; if the affidavits 
 tend to prove the necessary facts, and establish a prima 
 facie case, the court will grant the attachment. ( Cooney 
 V. Whit-field, 41 How. Pr. 6; Lee v. La Compagnie Uni- 
 rerselle etc., 2 N. Y. St. Rep. 612; Ereritt v.' Park, 88 
 Hun, 368). If the affidavit sets forth enough to call 
 
 41 
 
640 
 
 PRACTICE. 
 
 upon the officer to exercise his judgment whether or not 
 the necessary facts exist, he has acquired jurisdiction 
 to act (Skinnion v. KelJey, 18 N. Y. 355; Kissock v. 
 Grant, 34 Barb. 144) ; and such affidavits will be held 
 sufficient, on a motion to vacate the attachment for 
 irregularity. (Furman v. Walter, 13 How. Pr. 348; 
 Easton v. Malavazl, 7 Daly, 147). In an action against 
 a public officer for peculation, or in an action to recover 
 damages for injury to personal property where the 
 liability arose in consequence of the false statements 
 in writing of the defendant as to his responsibility or 
 credit, under section six hundred and thirty-seven, the 
 facts necessary to entitle the plaintiff to an attachment, 
 must be made to appear by affidavit, as is required in 
 other actions; and the rules hereinbefore stated as to 
 the manner of alleging the facts, apply in that action, 
 as in other actions. 
 
 The party procuring the warrant must, within ten 
 days after the granting thereof, cause the affidavits upon 
 which it was granted, to be filed in the office of the clerk. 
 (Co. Civ. Proc. § 639). The word "clerk" signifies the 
 clerk of the court where the action is triable. ( Co. Civ. 
 Proc. § 3343, subd. 4). A failure to file the affidavits 
 does not affect the validity of the warrant, or the pro- 
 ceedings under it ; and it will not be vacated as a matter 
 of course, because the affidavits are not filed. {Brash 
 V. Wiclarski/. 36 How. Pr. 253; Woodioard v. Stearns, 
 10 Abb. Pr. N. S. 395). 
 
 Sec. 2. Security on Obtaining the Warrant. 
 
 The judge, befcire granting the warrant, must require 
 a written undertaking on the part of the plaintiff, with 
 sufficient sureties, to the effect, that if the defendant 
 recovers judgment, or if the warrant is vacated, the 
 plaintiff will pay all costs, which may be awarded to 
 the defendant, and all damages, which he may sustain 
 by reason of the attachment, not exceeding the sum 
 specified in the undertaking, which must be at least, 
 two hundred and fifty dollars. But this section does not 
 apply to a case where the action is brought for a cause 
 specified in section six hundred and thirty-seven of the 
 
ATTACHMENT. 641 
 
 code of civil procedure, or where it is specially pre- 
 scribed by law that security may be dispensed with, or 
 where the security to be given is specially regulated by 
 law. (Co. Civ. Proc. § 640). As to the execution and 
 approval, and the formal requirements and filing of the 
 undertaking, see chapter VlII, ante. The section requir- 
 ing security is imperative, and the court cannot dis- 
 pense with the security, or accept a deposit of money 
 in lieu of it. {Bate v. McDoioell, 48 Super. 219; affd. 
 without op., 99 N. Y. 665). If the undertaking given 
 upon granting the warrant is defective, the court may 
 order a new undertaking without vacating the warrant, 
 in its discretion. {Lamkin v. Douglass, 27 Hun, 517). 
 The court or judge, granting the warrant, may fix the 
 amount of the undertaking, and require an increase of 
 it, or an additional undertaking, when it deems proper 
 in its discretion, {^ylutney v. Deniston, 2 T. & C. 471; 
 Riggs V. C. Y. & P. R. R. Co., 21 Wk. Dig. 45; Maiula v. 
 Etienne, 13 App. Div. 237). The court will order an 
 increase of the undertaking, when the amount of prop- 
 erty levied upon by the sheriff is larger than was contem- 
 plated at the time of the granting of the warrant. ( Id. ) . 
 Such increase, however, is in the discretion of the court 
 at special term, or of the judge who granted the war- 
 rant. The bankruptcy of the principal and his discharge 
 does not discharge the sureties upon the undertaking. 
 (McCombs V. Allen, 82 N. Y. 114). The liability of the 
 sureties is absolute, and no demand of the principal 
 debtor is necessary before bringing an action against 
 them. (C/(rr(e V. i?;7c7/, 14 Wk. Dig. 407). The sureties 
 on an undertaking are liable for all expenses consequent 
 upon efforts to have an attachment vacated, although 
 no property has been taken under it (Id.) ; but they 
 are entitled to the benefit of all payments of costs and 
 damages made by the principal ; and they cannot be 
 made liable in any event, for more than the difference 
 between the sum paid by him and the amount of the 
 undertaking. (Bacre v. A rmsfrong, 26 Hun, 19) . Ordi- 
 narily sureties are not liable for general counsel fees 
 incurred in the trial of the action in which the attach- 
 ment was granted {^Northampton Nat. Bk. v. Wylie, 
 
642 
 
 PEACTICB. 
 
 52 Hun, 146), but where, despite every effort to get rid 
 of the attachment, the only successful method was the 
 trial of the action, such general counsel fees should be 
 allowed. {Tyng v. Am. Surety Co., 48 App. Div. 240). 
 The phrase "recover judgment," used in section six 
 hundred and forty, refers to the final decision on appeal, 
 if an appeal is taken. So that if the plaintiff recovers 
 judgment which is reversed on appeal, the sureties are 
 liable on their undertaking. {Bennett v. Brown, 20 N. 
 Y. 99 ) . It is not a defense to an action upon an under- 
 taking, given upon granting a warrant of attachment, 
 that the warrant was granted improperly, for want of 
 jurisdiction, or for any other cause. (Co. Civ. Proc. § 
 642). In an action upon an undertaking, the surety 
 cannot contradict a recital in it that an attachment had 
 been issued. ( Coleman v. Bean, 3 Keyes, 94 ) . 
 
 Sec. 3. Contents of the Warrant. 
 
 The warrant must be subscribed by the judge and 
 the plaintiff's attorney, and must briefly recite the 
 ground of the attachment. It may be directed, either 
 to the sheriff of a particular county, or, generally, to 
 the sheriff of any county. It must require the sheriff to 
 attach and safely keep so much of the property, within 
 his county, which the defendant has, or which he may 
 have, at any time before final judgment in the action, 
 as will satisfy the plaintiff's demand, with costs and 
 expenses. The amount of the plaintiff's demand must 
 be specified in the warrant, as stated in the affidavit. 
 Warrants may be issued at the same time to sheriffs of 
 different counties. (Co. Civ. Proc. § 641). The war- 
 rant does not require a formal teste, nor the signature 
 of the clerk, nor a seal. {Geiiin v. TompJcins, 12 Barb. 
 265). If the original warrant is signed by the judge, 
 the copy served is not irregular, although it has no 
 copy of the judge's signature. (Greenleaf v. Mumford, 
 19 Abb. Pr. 469 ; 30 How. Pr. 30 ; reversed on another 
 point, 4 Abb. Pr. N. S. 130). The warrant may be 
 amended upon a motion to vacate it for irregularity. 
 ( Kissam v. Marshall, 10 Abb. Pr. 424) . Upon an appeal, 
 if the warrant does not appear in the papers, it will 
 
ATTACHMENT. 
 
 648 
 
 be presumed to have been granted upon all the grounds 
 established by the affidavits. {Dinan v. Allen, 16 Hun, 
 407) . Under the code of procedure, it was not necessary 
 that the grounds of the attachment should be recited iu 
 the warrant. [Mayor etc. v. Genet, 63 N. Y. 646). But, 
 as will be seen, the code of civil procedure expressly 
 requires that this should be done; and the case last 
 cited is no longer the law upon that point ; but it is still 
 an authority for the proposition that nothing need be 
 contained in the warrant, except what is expressly re- 
 quired by the statute. The grounds of the attachment 
 should not be stated in the disjunctive, and, if so stated 
 the warrant is defective. [Cronin v. Crooks, 143 N. Y. 
 352; Williams v. Bightmyer, 88 Hun, 372), except where 
 the ground is set forth as being that the debtor has 
 "departed from the state with intent to defraud his 
 creditors, or to avoid the service of a summons, or keeps 
 himself concealed therein with like intent." (Oarson v. 
 Bruinberg, 75 Hun, 336; Stewart v. Lyman, 62 App. 
 Div. 182) ; so, also, a recital of the ground as being that 
 "the defendants have assigned, disposed of, or secreted 
 their property with intent to defraud their creditors," 
 is good, being one class only of the grounds as they are 
 arranged in section 636 of the code. [Smith, Perkins 
 & Co. V. Wilson, 26 Hun, 565). Of course, more than 
 one ground may be stated, and if the conjunction "and'° 
 is used instead of "or," between the different grounds, 
 the recital is sufficient if any of the grounds are borne 
 out by the affidavits [Stone v. Pratt, 90 Hun, 30), 
 unless the grounds are inconsistent [Johnson v. Buckel, 
 65 Hun, 601 ) . As the court has inherent power to order 
 an amendment of the warrant of attachment, a failure, 
 either totally or properly to recite the grounds in the 
 warrant may be amended. [Stone v. Pratt, supra; King 
 V. King, 59 App. Div. 128). 
 
644 PRACTICE. 
 
 AKTICLE III. 
 
 EXECUTION OF THE WARRANT. 
 
 SECTION. 
 
 1. By whom, and how made. 
 
 2. What property may be attached. 
 
 3. How property to be attached. 
 
 4. Eights of master or owner of vessel. 
 
 5. Inventory. 
 
 6. Action by sheriff and attaching creditor. 
 
 7. Care of the property. 
 
 8. Claim of property. 
 
 9. Proceedings on claim of vessel. 
 
 Sec. 1. By Whom and How Made. 
 
 The sheriff must immediately execute the warrant, 
 by levying upon so much of the personal and real prop- 
 erty of the defendant, within his county, not exempt 
 from levy and sale by virtue of an execution, as will 
 satisfy the plaintiff's demand, with the costs and ex- 
 penses. He must take into his custody all books of 
 account, vouchers, and other papers, relating to the 
 personal property attached, and all evidences of the 
 defendant's title to the real property attached, which he 
 must safely keep, to be disposed of, as prescribed in title 
 three of chapter seven of the code of civil procedure. 
 The sheriff, to whom a warrant of attachment is de- 
 livered, may levy, from time to time, and as often as is 
 necessary, until the amount for which it was issued, has 
 been secured, or final judgment has been rendered in 
 the action, notwithstanding the expiration of his term 
 of office. (Co. Civ. Proc. § 644). The original warrant 
 must be delivered to the sherifF. (Niagara Grape Market 
 Co. V. Wyr/ant, 1 App. Div. 588). The sheriff to whom 
 a warrant of attachment is directed, cannot act 
 under it outside of his own county. [Matter of Tilton, 
 19 Abb. Pr. 50). A levy under a warrant cannot be 
 made after final judgment in the action. (Lynch v. 
 Crary, 52 N. Y. 181). Upon the execution of the war- 
 rant, the sheriff may open a safe or box, not being a 
 part of the dwelling, in which the property is, and he 
 may exclude the counsel or agent of each party from 
 
ATTACHMENT. 
 
 645 
 
 being present, while he is so doing. {United States v. 
 Graf, 67 Barb. 304). The sherife has a reasonable 
 discretion as to the amount of property he will levy 
 upon (Wchle v. Conner, 83 N. Y. 231) ; and that dis- 
 cretion is not to be controlled by either party. If the 
 defendant have sufficient property to satisfy the judg- 
 ment, and the sheriff Imowingiy neglect to levy upon 
 enough, he is liable for the deficiency. {Ransom v. Hal- 
 cott, 18 Barb. 56). If a sheriff seizes, upon a warrant, 
 goods of a wrong person, he is liable to that person. 
 {KuhJman v. Orser, 5 Duer, 242). The sheriff may re- 
 quire indemnity, before executing the attachment upon 
 goods which he finds in the possession of a third person. 
 {Chainherlin v. Beller, 18 N. Y. 115). Where property 
 of the defendant is in the hands of the sheriff, at the 
 time the warrant is delivered to him, no formal levy 
 or notice is necessary to subject it to the lien of the at- 
 tachment. {Wehle v. Conner, 83 N. Y. 231). The 
 statute requires the sheriff to return the inventory, 
 which he makes pursuant to section six hundred and 
 fifty-four, of the code. But there is no provision for 
 the return of the attachment, except that contained in 
 section seven hundred and twelve, which provides that 
 where the warrant has been vacated or annulled, the 
 sheriff must forthwith file in the clerk's office, the war- 
 rant, with a return of his proceedings thereon {Tuck 
 V. Manning, 63 Hun, 345; affd. on op. below, 137 N. Y. 
 630), and a sheriff's return that the attachment has 
 been "merged in a judgment and execution" is unauthor- 
 ized and of no effect. (Id.). Upon the application of 
 either party, and proof of the sheriff's neglect, the court 
 may direct him to comply with the provisions of section 
 712 ; disobedience to such an order may be punished as 
 a contempt of court. (Co. Civ. Proc. § 681). The 
 requirement for the return of the inventory is merely 
 directory; and a failure to make it will not invalidate 
 the levy. {Rodgers v. Bonner, 45 N. Y. 379, 386). 
 
646 PRACTICE. 
 
 Sec. 2. What Property may be Attached. 
 
 Subdivision 1. — Real Property. 
 
 The real property, which may be levied upon by 
 virtue of a warrant of attachment, includes any interest 
 in real property, either vested, or not vested, which is 
 capable of being aliened by the defendant. (Co. Civ. 
 Proc. § 645). Any equitable interest of the defendant 
 in real property may be levied upon under a warrant 
 {Lee V. Hunter, 1 Paige, 519), such, for example, as 
 unmeasured rights of dower (Latoiirctte v. Latourette, 
 52 App. Div. 192), or the interest of a vendee in pos- 
 session of lands, under a contract for the purchase 
 thereof. [Higgins v. McC'onncU, 130 N. Y. 482). 
 
 Subdivision 2. — Personal Property. 
 
 Anything which may be taken in execution may be 
 taken upon an attachment by the sheriff. ( Patterson v. 
 Perry, 5 Bosw. 518). The mortgagor of personal prop- 
 erty has a leviable interest in it, so long as the posses- 
 sory right remains in him {Hall v. Sampson, 35 N. Y. 
 274) ; but the right of the mortgagor, to redeem a chattel 
 taken by the mortgagee, is not subject to be levied upon 
 under an attachment. {Cutler v. The James Goold Co., 
 43 Hun, 516). If the sheriff has attached property in 
 the possession of the mortgagor, he may sell it, although 
 the mortgagee has become entitled to the possession, 
 leaving the mortgagee to follow the property in the 
 hands of the purchaser. {Hathan-ay v. Brayman, 42 
 N. Y. 322). Money, which has been collected by the 
 sheriff upon an execution in favor of the defendant, and 
 Avhich is in his hands, is liable to an attachment. ( Wehle 
 V. Conner, 83 N. Y. 231). The interest of a partner in 
 the firm property can be levied upon in an attachment 
 against that member of the partnership {Smith v. Orscr, 
 42 N. Y. 132) ; and the sheriff must take possession 
 of the partnership property; but he must not interfere 
 with the rights of the other partners more than is 
 necessary to reach the interest of the debtor partnei", 
 and only the interest of the individual member can be 
 
ATTACHMENT. 
 
 647 
 
 sold. {Atkins v. Saxton, 6 Wk. Dig. 210 ; S. C, 77 N. Y. 
 195; Souls V. Cornell, 15 App. Div. 161). The property 
 of an insolvent foreign corporation within this state, 
 may be levied upon under an attachment, although a 
 receiver of the corporation has been appointed in its 
 own state; and if a receiver of the property of the cor- 
 poration is subsequently appointed in this state, his 
 title is subject to the lien which has been acquired by 
 the attaching creditor. [Dunlop v. Pater son F. Ins. 
 Co., 12 Hun, 627; affd. 74 N. Y. 137). Property capable 
 of manual delivery, which may be levied upon by taking 
 it into the actual possession of the of&cer, and which the 
 judgment debtor has fraudulently disposed of, with 
 intent to defraud his creditors, may be seized under an 
 attachment {Hess v. Hess, 117 N. Y. 306) ; unless its 
 identity has been changed. {Lawrence v. Bank of the 
 Republic, 35 N. Y. 320). But an attachment cannot 
 be levied on the proceeds of such property, if it has been 
 sold. {Matter of Folei/,lQ Balj, 4:). The power given 
 to the sheriff, by section six hundred and forty-four, to 
 take into his custody all books of account, vouchers 
 and other papers, relating to the personal property 
 attached, and all evidences of the defendant's title to 
 the real property attached, does not authorize him to 
 seize the correspondence of the defendant, nor to do 
 any other act with regard to the papers or books than 
 to keep them safely. {Hergman v. Dettlebacli, 11 How. 
 Pr. 46 ) . Under a warrant of attachment against a for- 
 eign corporation, other than a corporation created by or 
 under the laws of the United States, the sheriff may levy 
 upon the sum remaining unpaid upon a subscription 
 to the capital stock of the corporation, made by a person 
 within the county, or upon one or more shares of stock 
 therein, held by such a person or transferred by him, 
 for the purpose of avoiding payment thereof. ( Co. Oiv. 
 Proc. § 646). The rights or shares which a defendant 
 has in the stock of an association or corporation, to- ' 
 gether with the interests and profits thereon, may be 
 levied upon; and the sheriff's certificate of the sale 
 thereof entitles the purchaser to the same rights and 
 privileges, with respect thereto, which the defendant 
 
648 PRACTICE. 
 
 had when they were so attached. (Co. Civ. Proc. § 647). 
 The stock of a foreign corporation, which lias its princi- 
 pal office in this state, is not subject to attachment, 
 where the defendant who owns the stock is a non-resi- 
 dent, and the certificate has not been within the state. 
 Section six hundred and forty-seven, above cited, only 
 applies to shares of a domestic corporation. {Plimpton 
 V. Bigelotr, 93 N. Y. 592). But the interest of a non- 
 resident owner in certificates of stock in a foreign cor- 
 poration, Avhich have been pledged to a resident as se- 
 curity for a debt, can be levied upon. (Siiiq^sou v. 
 The Jersey City Contracting Co., 165 N. Y. 193). 
 Stock, which has been transferred by the defendant as 
 collateral security, cannot be levied upon, on an attach- 
 ment against him. (Smith v. Americaii Coal Co., 7 
 Lans. 317). The attachment may also be levied upon 
 a cause of action arising upon contract; including a 
 bond, promissory note, or other instrument for the 
 payment of money only, negotiable or otherwise, 
 whether past due, or yet to become due, executed by a 
 foreign or domestic government, state, county, public 
 officer, association, municipal or other corporation, or 
 by a private person, either within or without the state ; 
 which belongs to the defendant, and is found within the 
 county. The levy of the attachment thereupon is deemed 
 a levy upon, and a seizure and attachment of, the debt 
 represented thereby. (Co. Civ. Proc. § 648). Under 
 this section a judgment in favor of the defendant may 
 be levied on. (Matter of Flaiidroir, 84 N. Y''. 1) . Money 
 deposited with the clerk, in lieu of an undertaking on 
 appeal, is le^dable under an attachment against the per- 
 son who deposits it ; but the levy is subject to the right 
 of the respondent upon the appeal, and it cannot be 
 taken out of the possession of the clerk. (Duulop v. 
 Patterson F. Ins. Co., 74 N. Y''. 145). The unpaid pur- 
 chase price for goods sold may be taken on an attach- 
 ment against the seller. (Kelly v. Babcock, 49 N. Y". 
 318). Money in the hands of a depository, for the pur- 
 pose of compromising with the defendant's creditors, 
 may be levied upon by virtue of an attachment against 
 him, until it is actually turned over pursuant to the com- 
 
ATTACHMENT. 649 
 
 promise. {Lynch v. Grary, 34 Super. 461; reversed on 
 another point, 52 N. Y. 181). A debt due to the defend- 
 ant may be attached, although the debtor has promised 
 the defendant to pay it to a tliird person, if such third 
 person lias had no notice of the agreement, and not ac- 
 ceded to it. {Kelly \.RohertHA(i^.Y.l%2). Choses in 
 action, Avhicli liave been transferred before the levy, 
 belong to the assignee, and cannot be levied upon on 
 an attachment against the assignor {Gibson v. Natl. 
 Park Bank, 98 N. Y. 87) ; although they were transferred 
 in fraud of creditors. {Anthony v. ^Yood, 96 N. Y. 
 180 ) . The provision of the code, that, where the prop- 
 erty sought to be attached is capable of manual delivery, 
 including a bond, promissory note, or other instrument 
 for the payment of money, the levy has to be made by 
 taking the same into the actual custody of the sheriff, 
 changes merely the mode of making the levy, but in no 
 respect alters the inherent character of the property 
 sought to be attached. If a note or bond has been trans- 
 ferred, however fraudulently, no lien by attachment is 
 possible, and it is of no consequence that the mode of 
 executing the process has been changed ; the note is not 
 turned into a chattel by the new provision ; it remains a 
 chose in action, and when the legal title is in the attach- 
 ment debtor, the debt may be seized by taking the note 
 or bond, which is its evidence. But where the legal 
 ■ title has been transferred to a third person, and is not 
 in the debtor to be attached, the possession of the note 
 by the officer under his warrant accomplishes nothing. 
 {Anthony v. Wood, supra). The lien of the attachment, 
 on funds of the debtor in a bank, is not defeated by the 
 owner procuring a certified check from the bank for it, 
 unless it is shown that the check has been paid to a 
 hona fide holder, or is outstanding in his hands. ( Gib- 
 son V. National Park Bank, 98 N. Y. 87; Gapital Gity 
 Bk. V. Parent, 134 N. Y. 527). Where the makers of a 
 check have torn off their signature from it, it ceases to 
 be a chose in action and leviable upon on an attachment 
 against the payee. {Gasper v. Wallace, 50 Super. 147). 
 Where an attachment is against one member of a firm, a 
 debt, which is due from a third person to the firm, 
 
650 PRACTICE. 
 
 cannot be levied upon under it. (Barry v. Fisher, 8 
 Abb. Pr. N. S. 369). A debt due to a non-resident by 
 a foreign corporation, whicli has no agency in this 
 state, or by a non-resident, is not a subject of levy under 
 an attachment (Willet v. Eqiiit. //t.s. Co., 10 Abb. Pr. 
 193; Carr v. Corcoran, 44 App. Div. 97). The bonds 
 of a corporation, which have not been issued, have not 
 yet become choses in action, which can be taken under 
 an attachment. (Sickles v. Richardson, 23 Hun, 559). 
 Money which has been deposited with a trustee, in pur- 
 suance of an agreement to pay the debt of the defendant, 
 and which is no longer subject to the control of the 
 defendant, is not the subject of levy by virtue of an 
 attachment against him. (Rogers Loco. Works v. Kelly, 
 88 N. Y. 234). Money raised by a county tax, in the 
 hands of a bank as the county's agent for the payment 
 of the interest coupons on the county's bonds, is not 
 subject to levy. (Van Horn v. Kithitas Co., 28 Misc. 
 333; afPd. on op. below, 46 App. Div. 623). Where 
 the defendant is a public officer, his salary cannot be 
 levied upon by an attachment against him, while it is in 
 the hands of the disbursing oflQcer of the government. 
 (Buckley v. Eckert, 3 Penn. St. 268; Cornell v. Finik,. 
 1 City Ct. Rep. 35, note). A debt Avhich can be levied 
 upon under this section, must be a legal debt, and not 
 an equitable demand; and it must be payable abso- 
 lutely, and not upon a contingency; a mere contingent 
 interest is not the subject of levy. (Excelsior Co. v. 
 Cosmopolitan Co., 80 Hun, 592; 154 N. Y. 772). Wages 
 which are exempt froui execution cannot be levied on 
 by an attachment. (McCulloiigh v. Garragan, 24 Hun,, 
 157). 
 
 Sec. 3. How Property to be Attached. 
 
 Subdivision 1. — Real Peopeety. 
 
 A levy under a warrant of attachment must be made 
 upon real property, by filing with the clerk of the county, 
 where it is situated, a notice of the attachment, stating 
 the names of the parties to the action, the amount of the 
 plaintiff's claim as stated in the warrant, and a descrip- 
 
ATTACHMENT. C51 
 
 tion of the particular property levied upon. The notice 
 must be subscribed by the plaintiff's attorney, adding 
 his office address; and must be recorded and indexed 
 by the clerk, in the same book, in like manner, and with 
 like effect, as a notice of the pendency of an action. 
 (Co. Civ. Proc. § 649, subd. 1). To levy an attachment 
 upon real property, it is not necessary that the sheriff 
 enter upon the land, or even see it. Nothing more is 
 required to be done by the officer, than some act with 
 intent to make the property liable to the process; this 
 Avill constitute a seizure, and create a lien against the 
 debtor, and all claiming under him by title subsequently 
 acquired, except bona fide purchasers and incumbran- 
 cers. The officer need not leave with the person in pos- 
 session a certified copy of the warrant of attachment. 
 {Rodgers v. Bonner, 45 N. Y. 379). 
 
 Subdivision 2. — Personal Property Capable of Man- 
 ual Delivery. 
 
 A levy under a warrant of attachment must be made 
 upon personal property, capable of manual delivery, 
 including a bond, promissory note, or other instrument 
 for the payment of money, by taking the same into the 
 sheriff's actual custody. He must thereupon, without 
 delay, deliver to the person from whose possession the 
 property is taken, if any, a copy of the warrant, and of 
 the affidavits upon which it was granted. (Co. Civ. 
 Proc. § 649, subd. 2). A policy, of fire insurance under 
 which a loss has occurred, is not an "instrument for 
 the payment of money only" within the meaning of 
 this section {Trepagnier cC- Bros. v. Rose, 15,App. Div. 
 393; affd. on op. below, 155 N. Y. 637) ; it seems that 
 this phrase was meant to include only cases of nego- 
 tiable instruments. (Id.). A levy upon property of 
 this nature can be made only by the sheriff taking the 
 property into his actual custody. {Halben v. ReiUy, 9 
 Daly, 271). The requirement that the sheriff must 
 deliver to the person, from whose possession the prop- 
 erty is taken, a copy of the warrant, and of the affidavits 
 upon which it is granted, is directory only; and a fail- 
 
652 PKACTICB. 
 
 ure to comply with it is an irregularity, which does not 
 destroy the effect of the levy, if otherwise valid. {Adams 
 V. Speelman, 39 Hun, 35; S. C. on another appeal, 10 
 N. Y. Supp. 364; affd. without opinion, 124 N. Y. 666). 
 Where the property is already in the hands of the sheriff, 
 no formal levy or notice is necessary to subject it to the 
 lien of the attachment. {^Y€Me v. Conner, 83 N. Y. 
 231). Where the property was on a vessel, and the 
 sheriff demanded possession of the master, who to save 
 time became a receiptor for it, the levy was held to 
 be good, although the hatches were not opened, and the 
 sheriff did not see the goods until their arrival at the 
 port of destination. {Taacks v. Schmidt, 18 Abb. Pr. 
 307). 
 
 Subdivision 3. — Other Personal Property. 
 
 A levy under a warrant of attachment, must be made 
 upon other personal property, by leaving a certified 
 copy of the warrant, and a notice showing the property 
 attached, with the person holding the same; or if it 
 consists of a demand, other than as specified in subdivi- 
 sion two of section six hundred and forty-nine, with 
 the person against whom it exists ; or, if it consists of a 
 right or share in the stock of an association or corpo- 
 ration, or interests or profits thereon, with the presi- 
 dent, or other head of the association or corporation, 
 or the secretary, cashier, or managing agent thereof. 
 ( Co. Civ. Proc. § ■ 649, subd. 3 ) . Under this section 
 is included not only property which is in its nature 
 incapable of manual delivery, but also that which has 
 become so from its peculiar position, as where it is 
 under pledge>or consignment, with advances made upon 
 the property. (Clark v. Ooodridge, 41 N. Y. 210, 214; 
 Warner v. Fourth Natl. Bk., 115 N. Y. 251; Simpson 
 V. Jersey City Contracting Co., 165 N. Y. 193). A levy 
 upon such property must be made in the precise mode 
 directed by the statute (Hayden v. Nat. Bk. etc., 130 N. 
 Y. 146) ; handing a copy of the warrant to the person 
 in charge of the property, and a verbal notice is not 
 sufficient. (Clark v. Warren, 7 Lans. 180; Miles v. 
 Brown, 38 Super. 400). To make a levy on a debt due 
 
ATTACHMENT. C53 
 
 from a corporation, the warrant and notice must be 
 served on the managing agent ; leaving the papers with 
 a person, not the managing agent of the corporation, 
 by whom they were sent to him by mail, was held not to 
 be a good levy. {Pardee v. Leitch, 6 Lans. 303). To 
 subject a judgment to the levy of an attachment, the 
 warrant must be served on the judgment debtor; serv- 
 ice on his attorney is not sufficient. (Matter of Flan- 
 dro'ic, 84 N. Y. 1). The notice under this subdivision, 
 showing the property which is attached, is sufficient 
 if it specifies all property,, debts and effects, and all 
 rights and shares of stock, with all interests and profits 
 thereon, of the defendant, which are in the possession, 
 or under the control of the person upon whom the 
 notice is served. {O'Brien v. Mech. and Traders' F. 
 Ins. Co., 56 N. Y. 52). It was said in that case, that 
 the notice is only an act of caution to the individual 
 upon whom it is served, intended to operate solely to 
 prevent his paying the debt, or delivering the property 
 to the debtor, and impounding it to answer the judg- 
 ment; and it answers the purpose that the law con- 
 templates, if it notifies the individual that a warrant 
 of attachment has been issued against his creditor, or 
 an owner of property in his possession, and that the 
 sheriff claims to levy upon the debt owing by him, or 
 the property in his possession ; and notice by the sheriff 
 that he attaches all property, debts and effects, and 
 all rights and shares of stock etc., in the possession or 
 under the control of the individual served, does show the 
 property levied upon. A particular description of the 
 property and debts supposed to be in the possession of 
 or owing by him, is not necessary' for the information 
 of the party served, and would not more satisfactorily 
 show to him the property intended to be reached; the 
 individual served, necessarily knows better than the 
 officer can knoAv, the property and debts in his posses- 
 sion, or owing by him, subject to attachment. ( O'Brien 
 V. Mech. & Traders' F. Ins. Co., supra). The rule laid 
 down in the case last cited was departed from in the 
 case of Oreentree v. RosenstocV (61 N. Y. 583), where 
 it was held that the property must be specifically 
 
654 
 
 PRACTICE. 
 
 described, but that the departure was inadvertent seems 
 apparent from the remarks of the court in Hayden v. 
 ISfat. Bk. (130 N. Y. 146) ; it is apprehended, therefore, 
 that the statement of the rule, contained in the O'Brien 
 case, is still authoritative. Mr. Throop says that the 
 third subdivision of section six hundred and forty-nine 
 was intended to settle the law as it was laid down in 
 that case. A notice, endorsed on the copy of the attach- 
 ment, that it was a true copy, and that all debts, credits 
 and effects of the attachment debtor were liable thereto, 
 and were attached, is good. {McGinn v. Ross, 33 Super. 
 346). Where the notice recites that a debt due a 
 firm is levied upon, it does not operate to attach a 
 debt due to one member of the firm. {Greentree v. 
 Bosenstoek, supra; Hayden v. 'Nat. Bk., supra ) . Where 
 a notice at the time of the levy, was not suflficient, a 
 new notice after a suit has been brought upon a debt 
 levied upon, does not cure the defect. ( O'Brien v. Mecli. 
 & Traders' F. Ins. Co., 36 Super. 110; reversed on 
 another point, 56 N. Y. 52). If the warrant is not 
 certified by the sheriff, the levy is not valid {Courtney 
 V. Eighth Ward Bk., 154 N. Y. 688) ; and in that case, 
 the indorsement of the word "copy" on the back of the 
 paper purporting to be a copy of the warrant, on another 
 fold of which paper there was a notice signed by the 
 sheriff, was held not to satisfy the statutory require- 
 ment as to certification. Attaching the signature of 
 the sheriff to a certified copy of the attachment and 
 the notice, is a merely ministerial act, and if done by a 
 clerk and adopted by the sheriff, or a deputy, the levji 
 is sufficient. ( Gibson v. National Park Bank, 98 N. Y. 
 87). After an attachment has been served upon a 
 debtor, he is bound to hold the debt -subject to the lien 
 of the attachment; and any payment which he makes 
 to a third person is at his own risk. {Duncan v. Berlin , 
 60 N. Y. 151). The debtor in such a case has an active 
 duty to perform, imposed upon him by the legal attach- 
 ment of the debt; and he cannot escape liability when 
 by his own inaction he allows the attached fund to be 
 removed from his possession. It is the duty of the 
 debtor in such case, to take immediate steps to impound 
 
ATTACHMENT. 653 
 
 the funds in his hands, and to prevent their payment 
 by any of his agents, except to a bona fide holder of his 
 obligations. He cannot shield himself from liability 
 by alleging ignorance of the agent making the payment, 
 while he, having authority, and owing a duty to act in 
 the premises, has knowledge of the fact which makes 
 such payment a violation of his duty. (Gibson v. 
 National Path Bank, 98 N. Y. 87). 
 
 Subdivision 4. — Upon Property Discovered in an Ac- 
 tion UNDER Subdivision 2 of Section 655. 
 
 A levy under a warrant of attachment must be made 
 upon any property discovered in any action brought as 
 prescribed in subdivision two of section 655 of the code of 
 civil procedure, by entering in the proper clerk's office, 
 the judgment rendered in said action, and thereafter 
 levying on said property in manner prescribed in sub- 
 divisions one, two and three of section 649. 
 
 Subdivision 5. — E.ffect of the Attachment. 
 
 The warrant of attachment does -not bind the real 
 estate of the debtor from the time of the delivery of 
 the warrant to the sheriff ; but from the time of making 
 the levy. (Burkhardt v. McClellan, 15 Abb. Pr. 243, 
 note ; Rodgers v. Bonner, 45 N. Y. 379 ) . The lien of the 
 attachment dates from the time only of the seizure of 
 the property under it {Burkhardt v. Sanford, 7 How. 
 Pr. 329) ; and affects only that property which is seized 
 upon the attachment, so that a junior attachment, if 
 first levied, has priority. (Van Camp v. Scarle, 147 N. 
 Y. 150 ) . So, if an attachment has been actually levied, 
 prior to the date of the appointment of the receiver, 
 the latter takes subject to the lien (Bennett v. Complete 
 Elec. Construction Co., 8 App. Div. 301), but if the 
 attachment has been issued only, and not levied, the 
 receiver appointed at that juncture takes free from 
 any lien of the attachment. (Matter of Schuyler's 
 Steam Toto Boat Co., 136 N. Y. 169; reversed on another 
 point, suh nom., Moran v. Sturges, 154 U. S. 256). 
 
 43 
 
656 
 
 PRACTICE. 
 
 Although the attachment does not become a lien until 
 levy, when a levy is made the lien attaches and enures 
 to the benefit of the creditors in the order of their 
 priority which is determined, according to sections 644, 
 697, 1406 and 1407 of the code of civil procedure, by the 
 order of the delivery of the attachments to the sheriff. 
 {Gillig V. Treadioell Co., 148 N. Y. 177; Art. V of this 
 chapter, infra). So where a sheriff attempted to levy 
 three successive attachments on different parcels of 
 property, the levies on behalf of the junior attachments 
 were held to enure to the benefit of the attachment 
 first delivered to the sheriff. (Gillig v. Treadioell Co., 
 supra). As we have seen in a previous section of this 
 chapter, the levy of an attachment on choses in action by 
 taking manual possession of them under subdivision two 
 of section six hundred and forty-nine, does not change 
 the character of the property, and does not give a lien 
 which authorizes the sheriff to contest a prior transfer; 
 and when the levy is effected through proceedings for 
 the examination of a third person, it does not relate 
 back to the time of the original demand of the sheriff, 
 so as to set aside a transfer subsequent to the demand. 
 {Anthony v. Wood, 96 N. Y. 180) . Where a debt, which 
 is sought to be levied upon, has been transferred before 
 the levy, there is nothing which is subject to the lien 
 of the attachment. iOibson v. National Park Bank, 
 98 N. Y. 87) . The maker of a negotiable security, which 
 is evidence of a debt from him to the defendant, whose 
 property has been attached, cannot be prevented from 
 paying it to a lona fide holder. (Bills v. National 
 Park Bank, 89 N. Y. 343; Gibson v. National Park 
 Bank, 49 Super. 429). The exercise by the seller of 
 goods of the right of stoppage in transitu, defeats an 
 attachment on the goods as the property of the buyer. 
 (Clark V. Lynch, 4 Daly, 83). Where the court has 
 jurisdiction, an attachment is good until it is vacated; 
 and it cannot be attacked, for insufficiency of the aflS- 
 davits upon which it was granted, by the grantee of the 
 defendant in a creditor's action to set aside the transfer 
 of the attached property. (Denman v. McGuire, 101 
 N. Y. 161). 
 
ATTACHMENT. 657 
 
 Subdivision 6. — Certificate and Examination. 
 
 Upon the application of a sheriff holding a warrant 
 of attachment, the president or other head of an asso- 
 ciation or corporation, or the secretary, cashier, or 
 managing agent thereof, or a debtor of the defendant, 
 or a person holding property, including a bond, promis- 
 sory note, or other instrument for the payment of 
 money, belonging to the defendant, must furnish to 
 the sheriff a certificate under his hand, specifying the 
 rights or number of shares of the defendant in the 
 stock of the association or corporation, with all divi- 
 dends declared, or incumbrances thereon ; or the amount, 
 nature and description of the property, held for the 
 benefit of the defendant, or of the defendant's interest 
 in property so held, or of the debt or demand owing to 
 the defendant, as the case requires. (Co. Civ. Proc. 
 § 650). Before a sheriff can require a certificate under 
 this section, he must disclose the fact that he has an 
 attachment. {Schieh v. Baldwin, 13 Abb. Pr. 469; 22 
 How. Pr. 278 ) . The clerk of the court, with whom one 
 has deposited money, may be compelled to give the 
 certificate. {Dunlop v. Patterson F. Ins. Co., 74 N. Y. 
 145). One who has property in his possession as re- 
 ceiver, cannot be compelled to make the certificate 
 required by this section ; the sheriff must rely on notice 
 to the receiver of his lien. {Lehman v. Williams, 1 
 Law. Bull. 58) . The certificate is not conclusive against 
 the party making it; he is not estopped by it from 
 showing the true amount which he owes to the defend- 
 ant in the action. {Almy v. Thnrber, 99 N. Y. 407; 
 Bank of Mat. Redemp. v. Stiirgis, 9 Bosw. 660). Nor 
 does the certificate affect the right of other creditors, 
 who, before it was given, have acquired the right to 
 have the goods of the defendant, in the hands of the 
 person making the certificate, applied to pay their debts. 
 (Bank of Mut. Redemp. v. Stiirgis, supra). 
 
 If a person to whom application is made, as prescribed 
 in section six hundred and fifty, refuses to give such a, 
 certificate; or if it is made to appear, by affidavit, to- 
 the satisfaction of the court, or a judge thereof, or the 
 
658 PRACTICE. 
 
 county judge of the county to which the warrant is 
 issued, that there is reason to suspect that a certificate 
 given by him is untrue, or that it fails to fully set 
 forth the facts, required to be shown thereby; the court 
 or judge may make an order, directing him to attend 
 at a specified time, and at a place within the county to 
 which the warrant is issued, and submit to an examina- 
 tion under oath, concerning the same. The order may, 
 in the discretion of the court or judge, direct an appear- 
 ance before a referee named therein. (Co. Civ. Proc. 
 § 651). Where the attachment and the certificates, 
 served on the person alleged to have property of the 
 debtor, and the sheriff's certificate of such service have 
 been filed with the clerk, and are referred to in the 
 affidavit made upon an application for an order under 
 this section, and are stated to be papers upon which 
 such application is based, they may properly be con- 
 sidered as part of the moving papers, on which the 
 order for an examination is granted. {Matter of Grary, 
 9 Civ. Pro. Kep. 168). A person can be required to 
 be examined under this section, only where he refuses 
 to give a certificate, or where it is made to appear 
 that the certificate given by him is untrue, or fails 
 fully to set forth the facts. Where he gives the only 
 certificate which he can give, there is no authority for 
 an examination under this section. {Reynolds v. 
 Fisher, 48 Barb. 146 ) . Where the motion for an exam- 
 ination is based upon the ground that no certificate 
 has been given, it will not be granted if a defective 
 certificate had been given. ( Gray v. 8oUs, 2 Law. Bull. 
 12). A refusal to give a certificate does not suspend 
 further action upon an attachment, nor does it prevent 
 a levy by the sheriff. {O'Brien v. Mechanics & Traders' 
 F. Ins. Co., 56 N. Y. 52). The examination under this 
 section may be allowed after judgment. {Smoot v. 
 Heim. 1 Civ. Proc. Rep. 208). Where a certificate has 
 /been given, an order for an examination should not be 
 •granted, in the absence of an affidavit contradicting the 
 certificate that the person has no property, or against 
 his own affidavit supporting the certificate. {Ives v. 
 hock wood, 65 How. Pr. 518). The order for examina- 
 
ATTACHMENT. 659 
 
 tion will not be vacated, against a debtor himself, on 
 affidavit that the funds are held in trust, and not ap- 
 plicable to the payment of the attachment debt; the 
 creditor is entitled to an examination, and he is not 
 bound to take the statement of the debtor of the man- 
 ner in which he holds the debt. {Baxter v. Mo. Kan. & 
 T. R. R. Co., 4 Hun, 630). The party examined cannot 
 put an end to his examination by a simple denial that 
 he has property of the defendant, or that he is indebted 
 to him. The sheriff is entitled to a further examina- 
 tion to determine, as he must at his peril, whether the 
 party really has property of, or is indebted to, the 
 defendant. {American Distributing Co. v. Distilling 
 and Cattle Feeding Co., 24 Civ. Eroc. Kep. 245). The 
 party must show his title ; and if he has papers to prove 
 it, they must be produced if they are demanded. {Rut- 
 ter V. Boyd, 3 Abb. N. 0. 6; Ouinan v. Allen, 40 
 App. Div. 137). He can be required to answer any 
 question, which can in any manner bear upon the ques- 
 tion as to whether the judgment debtor has property or 
 rights in action, which ought to be subjected to the 
 payment of the judgment; he must state facts upon 
 such points as are necessary to be known by the sheriff, 
 to enable him to take such action as the law requires 
 under the attachment. And the sheriff is entitled to 
 have a party answer all pertinent questions, bearing 
 upon the fact whether he has property of the defendant, 
 or owes him a debt. {Matter of Grary, 9 Civ. Proc. 
 Rep. 168). If it is alleged that the debtor has assigned 
 to the person examined, the consideration of the assign- 
 ment may be inquired into. The object of the exam- 
 ination is not to try the title of the witness, but to 
 ascertain the character and extent of that title. ( Qlen 
 Cove Starch Mfg. Co. v. GottJwld, 1 Civ. Proc. Rep. 
 366, note; 1 Law. Bull. 42). After the examination is 
 had, the remedy is exhausted, and the court cannot 
 order a certificate to be given {Biiclxinghain v. White, 
 25 Hun, 441) ; nor can the court after an examination, 
 by an order, compel the delivery of the property to 
 the sheriff. The only remedy of the sheriff is an action 
 or proceeding to reduce such property to his possession. 
 
660 
 
 PRACTICE. 
 
 which must be instituted in his name, or in that of the 
 debtor. {Hall v. Brooks, 89 N. Y. 33). 
 
 Sec. 4. Rights of Master or Owner of Vessel. 
 
 Except as otherwise prescribed in section six hundred 
 and fifty-three, the owner or master of a vessel, on 
 board of which goods of a defendant, against whom a 
 warrant of attachment is issued, have been shipped for 
 transportation, without reshipment or transhipment in 
 the state, to a port or place without the state, may 
 transport and deliver them according to their destina- 
 tion, notwithstanding the warrant ; unless the plaintiff, 
 his agent or attorney, executes to the owner or master 
 of the vessel, a written undertaking with sufficient sure- 
 ties, in a sum specified therein, to pay him all expenses, 
 damages and charges, which may be incurred by him, 
 or to which he may be subjected, for unlading the goods 
 from the vessel, and for all necessary detention of the 
 TOssel for that purpose. The undertaking must be ap- 
 proved, with respect to its form, the sum specified 
 therein, and the sufficiency of the sureties, by a judge 
 of the court, or the county judge of the county wherein 
 the vessel is situated, or, in the city and county of New- 
 York, by a justice of the supreme court. (Co. Civ. Proc. 
 § 652). If the sheriff takes goods from a common 
 carrier without giving a bond, he is a trespasser, and he 
 is liable for the full value of the goods. {Camphell 
 V. Conner, TO N. Y. 424). Section six hundred and 
 fifty-two, does not apply, where the owner or master, 
 before the shipment of the goods, had actual informa- 
 tion of the granting of the warrant, or where he has 
 in anywise, connived at, or been privy to, the shipment 
 thereof, for the purpose of screening them from legal 
 process, or of hindering, delaying, or defrauding credit- 
 ors. (Co. Civ. Proc. § 653)."^ 
 
 Sec. 5. Inventory. 
 
 The sheriff must, immediately after levying under a 
 warrant of attachment, make, with the assistance of 
 two disinterested freeholders, a description of the real 
 property, and a just and true inventory of the personal 
 
ATTACHMENT. 661 
 
 property, upon which it was levied, and of the books, 
 vouchers and other papers taken into his custody, stat- 
 ing therein the estimated value of each parcel of real 
 property attached, or of the interest of the defendant 
 therein, and of each article of personal property, enum- 
 erating such of the latter as are perishable. The in- 
 ventory must be signed by the sheriff and the appraisers ; 
 and must within five days after the levy, be filed in the 
 office of the clerk of the county where' the property is 
 attached. (Co. Civ. Proc. § 654). A failure to make 
 an inventory does not impair or invalidate the levy, if 
 it is otherwise sufficient. {McGinn v. Ross, 33 Super. 
 346 ) . An inventory need not be made immediately after 
 the levy, nor even on the same day. The requirement 
 as to the time when it shall be made is directory merely. 
 {Greenleaf v. Mnmford, 30 How. Pr. 30). The court 
 may permit it to be amended, by inserting a description 
 of the land levied on, which has been omitted by mis- 
 take, or correct any other mistake. {Vanderheyden v. 
 Gari/, 38 How. Pr. 367; Dunn v. ArJcenhurgh, 48 App. 
 Div. 518; affd. on op. below, 165 N. Y. 669). Upon the 
 application of either party, and proof of the neglect 
 of the sheriff, the court or judge may, by order require 
 the sheriff to return an inventory. Disobedience to such 
 an order may be punished, as a contempt of the court. 
 (Co. Civ. Proc. § 681). 
 
 Sec. 6. Action by Sheriff and Attaching Creditor. 
 
 1. The sheriff must, subject to the direction of the 
 court or judge, collect and receive all debts, effects and 
 things in action, attached by him. He may maintain any 
 action or special proceeding, in his own name, or in 
 the name of the defendant, which is necessary for that 
 purpose, or to reduce to his actual possession an article 
 of personal property, capable of manual delivery, but of 
 which he has been unable to obtain possession, and he 
 may discontinue such an action or special proceeding, 
 at such time, and on such terms as the court or judge 
 directs. 
 
 2. Where the summons was served without the state, 
 or by publication, pursuant to an order obtained for 
 
662 
 
 PEACTICE. 
 
 that purpose, as prescribed in chapter fifth of the code 
 of civil procedure ; and where the defendant has not ap- 
 peared in the action (otherwise than specially) but 
 has made default and before entering final judgment, 
 the sheriff may in aid of said attachment, maintain an 
 action against the attachment debtor, and any other 
 person or persons, or against any othei person or per- 
 sons to compel the discovery of any thing in action, or 
 other property belonging to the attachment debtor; 
 and of any money, thing in action, or other property 
 due him, or held in trust for him, or to prevent the 
 transfer thereof, or the payment or delivery thereof, 
 to him, or any other person, and the sheriff may, in 
 aid of said attachment, also maintain any other action 
 against the attachment debtor and any other person 
 or persons, or against any other person or persons, 
 which may now be maintained by a judgment creditor 
 in a court of equity, either before the return of an 
 execution, in aid thereof, or after the return of an 
 execution unsatisfied. The judgment in any of the above- 
 mentioned actions must pjovide and direct that the 
 said property shall be applied by the sheriff, to the 
 satisfaction of any judgment which the plaintiff may 
 obtain in the attachment action. (Co. Civ. Proc. § 655). 
 The plaintiff, by leave of the court or judge, procured 
 as prescribed in the next section, may bring and main- 
 tain, in the name of himself and the sheriff jointly, 
 by his own attorney and at his own expense, any action 
 which, by the provisions of title three of chapter seven of 
 the code of civil procedure, may be brought by the 
 sheriff, to recover property attached, or the value 
 thereof, or a demand attached, or upon an undertaking 
 given as prescribed in this title, by a person other than 
 the plaintiff; the plaintiff, in his own name and the 
 sheriff's jointly, may also bring and maintain any ac- 
 tion which, by the provisions of subdivision two of sec- 
 tion 655 of the code of civil procedure, may be brought 
 by the sheriff. The sheriff must receive the proceeds of 
 such an action, but he is not liable for the costs or 
 expenses thereof. Costs may be awarded, in such an 
 action, against the plaintiff in the warrant, but not 
 
ATTACHMENT. 663 
 
 against the sheriff. (Co. Civ. Proc. § 677). The court 
 or judge must grant leave to bring such an action, where 
 it appears that due notice of the application therefor 
 has been given to the sheriff; but, before doing so, the 
 court or judge may require that notice of the application 
 be given to the plaintiff, in any other warrant against 
 the same defendant. And such terms, conditions, and 
 regulations may be imposed, in the order granting leave, 
 as the court or judge thinks proper, for the due pro- 
 tection of the rights and interests of all persons, inter- 
 ested in the disposition of the proceeds of the action. 
 ( Co. Civ. Proc. § 678 ) . LeaA'e may, in like manner 
 and with like effect, be granted to the plaintiff in the 
 warrant, to be joined with the sheriff, in an action 
 brought by the sheriff, in a case where he might have 
 procured leave to bring the action as prescribed in sec- 
 tions six hundred and seventy-seven and six hundred and 
 seventy-eight. Upon an application therefor the court 
 or judge may, in a proper case, require the plaintiff 
 to provide for the expenses of the action, already in- 
 curred by the sheriff. The application must be denied 
 in case of an unreasonable delay in making it ; or where 
 an application was made before the action was brought, 
 and the plaintiff neglected or refused, without a good 
 excuse therefor, to comply with the terms, conditions, 
 or regulations then imposed. (Co. Civ. Proc. § 679). 
 The court or judge, may upon the application of the 
 sheriff, or of the defendant in the warrant, during the 
 pendency of an action, brought as prescribed in sections 
 six hundred and seventy-seven, six hundred and seventy- 
 eight, and six hundred and seventy-nine, direct as to 
 the conduct, discontinuance, or settlement of the same, 
 and as to the application or disposition of the money 
 or property recovered therein, as justice requires. (Co. 
 Civ. Proc. § 680). The action, provided for by these 
 sections, may be brought before a suit in which the 
 attachment was issued has been determined. {Davidson 
 v. Chatham Nat. Bank, 32 Hun, 138). In an action- 
 brought by the sheriff and the plaintiff jointly, under 
 section 677, the defendants cannot object that the sheriff 
 had no notice of the application for leave to bring the 
 
664 PRACTICE. 
 
 action; the code provision in this respect is for the 
 sole benefit of the sheriff. (Dunn v. Arkenburgh, 48 
 App. Div. 518; affd. on op. below, 165 N. Y. 669). The 
 sheriff can only bring an action under these sections 
 to collect and receive debts, effects and things in action, 
 which have been attached by him (Maxfield v. Taylor, 
 20 Wk. Dig. 121; Bowc v. Arnold, 31 Hun, 256; affd. 
 on op. below, 101 N. Y. 652) ; or to prevent the dis- 
 tribution of the proceeds of attached property, until 
 the conflicting rights of different claimants can be set- 
 tled by the courts. (Bates v. Plonslcy, 28 Hun, 112; 
 Bowe V. Arnold, supra). The sheriff cannot maintain 
 an action, under these sections, in aid of the attachment, 
 where a general execution — not one against the attached 
 property as required by section 1370 of the code of 
 civil procedure — issued after the recovery of the judg- 
 ment; the issuance of the general execution is a waiver 
 of whatever right was acquired by virtue of the attach- 
 ment and levy. (Dunn v. Acker, Merrall v. Condit, 26 
 Misc. 758 ; Peetsch v. Sommers, 31 App. Div. 255 ) . He 
 cannot sue to set aside, as fraudulent, an assignment of 
 attached property, whether it be a chose in action, or 
 property capable of delivery (Boioe v. Arnold, supra), 
 unless the right is given him by subdivision two of section 
 655, which was added by chapter 504 of the laws of 
 1889 (Whitney v. Davis, 148 N. Y. 256), or unless there 
 are some peculiar circumstances, such as were pre- 
 sented in People ex rel Can ff man v. Van Bitrcn (136 
 N. Y. 252), sufficient to justify the interference of 
 equity. If, however, the sheriff has taken into his pos- 
 session under the attachment, property capable of man- 
 ual delivery, and his seizure is attacked by one claiming 
 as vendee of the defendant, the sheriff may defend by 
 showing that the title of the vendee is fraudulent as to 
 creditors. (Rinchcyy. 8tryker,28l!^.Y. 45) . Inactions 
 brought by the sheriff in aid of an attachment, a prior 
 assignment of it, although it was made to defraud cred- 
 itors was a complete defense (Anthony v. Wood, 96 N. 
 Y. 180, 185 ; Throop Grain Cleaner Co. v. Smith, 110 N. 
 Y. 83), prior to the amendment, of 1889, to section 655, 
 except in the very rare and exceptional cases like People 
 
ATTACHMENT. 665 
 
 ex rel Cauffman v. Van Buren {supra), -where equity 
 would intervene. That amendment, however, permits a 
 suit to set aside the transfer to be based upon the at- 
 tachment alone, only in the cases specified in subdi- 
 vision two, thereby added to the section. The object of 
 this amendment is to enable a creditor to reach the 
 fraudulently assigned property of a non-resident debtor, 
 who has not appeared in the action [Harding v. Elliott, 
 91 Hun, 502 ) , so the complaint, in the action to set aside 
 the transfer, must show that the defendant has not ap- 
 peared, but has made default in the attachment action. 
 {Butcher v. Pearson, 43 App. Div. 468 ; affd. without op. 
 161 N. Y. 625). In cases which are not within subdi- 
 vision two of section 655, the rule laid down in Anthony 
 V. Wood { supra ) , is still applicable. ( Id. ) . Of course, 
 after judgment the action to set aside the fraudulent 
 transfer may be brought by the judgment creditor. 
 ( Id. ) . By section two hundred and thirty-eight of the 
 code of procedure, the plaintiff in the attachment might 
 bring such actions as the sheriff was authorized to bring, 
 upon the delivery by him to the sheriff, of an undertak- 
 ing as therein directed; but section six hundred and 
 seventy-seven of the code of civil procedure, and the two 
 following sections, are substituted for section two hun- 
 dred and thirty-eight of the code of procedure; 
 and the cases which have been decided as to the effect of 
 section two hundred and thirty-eight are now obsolete, 
 and no longer important. The defendant, in an action 
 brought under these sections, cannot attack the attach- 
 ment because of the insufficiency of the affidavits, where 
 the court has obtained jurisdiction of the judgment 
 debtor {Broion v. Guthrie, 39 Hun, 29 ; modified on other 
 points, 110 N. Y. 435) ; but such defendant may attack 
 the validity of the attachment as that is a condition 
 precedent to the maintenance of the action. {Ross v. 
 Ingersoll, 53 App. Div. 86). In such an action, the de- 
 fendant is not estopped from showing the actual amount 
 due, by the statement of it made in the certificate which 
 he has furnished. {Almy v. Thurher, 99 N. Y. 407). An 
 action brought under these sections, is the only remedy 
 by the sheriff to collect the debts, or to reduce the prop- 
 
666 
 
 PRACTICE. 
 
 erty of the attachment defendant to his possession. 
 {Eall V. Brooks, 89 N. Y. 33). 
 
 Sec. 7. Care of the Property. 
 
 The sheriff must keep the property attached by him, 
 or the proceeds of property sold, or of a demand col- 
 lected by him, to ansAver any judgment that may be 
 obtained against the defendant in the action. (Co. Civ. 
 Proc. § 674). But the court, upon the application of 
 either party to the action, may direct the sheriff, either 
 before or after the expiration of his term of office, to 
 pay into court the proceeds of a demand collected, or 
 property sold ; or to deposit them in a designated bank 
 or trust company, to be drawn out only upon the order 
 of the court. (Co. Civ. Proc. § 675). The last section 
 changes the rule which was laid down in Dodge v. Porter 
 (8 Bosw. 696). The sheriff's lien, which he acquires 
 by a levy of an attachment, constitutes a special title, 
 and authorizes him to hold possession until the attach- 
 ment is vacated, or until judgment is rendered in the 
 action, and the property seized upon the attachment 
 has been sold upon an execution. {Rlioads v. Woods, 
 41 Barb. 471) . Where the sheriff had received the rents 
 of real estate, which he had attached, the court ordered 
 the rents to be paid upon incumbrances, it appearing 
 that the security to the plaintiff by the levy was suf- 
 ficient to pay the debt. {Fitzgerald v. Blake, 28 How. 
 Pr. 109 ) . Where he has taken property, and also taken 
 possession of books pertaining to the business, he has no 
 right to submit them to the examination of the plaintiff, 
 nor to experts coming in behalf of the plaintiff, nor to 
 examine them himself, except for the pure purpose of 
 his trust, and only as is necessary to execute the process ; 
 but he should allow the defendants, their agents, or 
 assignees, to examine them at reasonable times. {Q-ar- 
 den V. Saiey, 10 Wk. Dig. 33; Hergman v. Dettlehach, 
 11 How. Pr. 46 ; see, however, Brooke v. Foster, 20 Abb. 
 N. C. 200). If money or property, which has been 
 attached, is lost during the pendency of the action with- 
 out fault of the plaintiff, it is not regarded as paid to be 
 applied upon the plaintiff's judgment, but the defend- 
 
ATTACHMENT. 667 
 
 ant must bear the loss. {McBride v. Farmers' Bank of 
 Salem, 28 Barb. 476; affd. 24 How. Pr. 611, note). 
 Where the proceeds of the property sold, and of the 
 demands collected by the sheriff, exceed the amount of 
 the plaintiff's demand, with the costs and expenses, and 
 of all other warrants of attachment or executions in the 
 sheriff's hands, chargeable upon the same; the court, 
 or the judge who granted the warrant, upon the appli- 
 cation of the defendant, or of an assignee of, or pur- 
 chaser from the defendant, and upon notice to the 
 plaintiff, and the plaintiffs in the other warrants or 
 executions, may at any time during the pendency of the 
 action, malie an order, directing the sheriff to pay over 
 the surplus to the applicant, and to release from the 
 attachment the remaining real and personal property 
 attached. (Co. Civ. Proc. § 676). Where the damages 
 claimed were ten thousand dollars, it was held proper 
 to release all property levied upon, in excess of twelve 
 thousand dollars in value. (Hall v. Ledlie, 2 Law. Bull. 
 61 ) . The fact that an attachment has been granted by 
 the courts of another state upon the same debt, is not to 
 be considered upon an application for a warrant. Yet, 
 where it appears that such an attachment has been 
 granted, and property has been levied upon under it, 
 that fact will be considered upon an application under 
 this section, for the release of a portion of the property 
 levied upon in this state; and the plaintiff will be al- 
 lowed to attach only so much property in this state, as 
 is necessary to secure the additional amount claimed 
 here, unless he will stipulate to abandon his levy in the 
 other state. (Trubee v. Alclen, 6 Hun, 75). If prop- 
 erty attached, other than a vessel, is perishable, the 
 court or judge may, by an order made with or without 
 notice, as the urgency of the case in its or his opinion 
 requires, direct the sheriff to sell it at public auction, 
 and thereupon the sheriff must sell it accordingly. If 
 it consists of live animals, the same proceedings may 
 be had, but such notice shall be given to the parties 
 to the action, of the application for the order, as the 
 court or judge prescribes. The order directing the sale 
 must prescribe the time and place of the sale, and notice 
 
C6S PRACTICE. 
 
 thereof must be given in such manner, and for such time 
 as is prescribed in the order. The sheriff must retain' 
 in his hands the proceeds of the sale, after deducting 
 his expenses as allowed by the court or judge. (Co. 
 Civ Proc. § 656). Perishable property is only that 
 which is inherently liable to deterioration and decay. 
 {Fisk V. Spring, 25 Hun, 367; 1 Civ. Proc. Rep. 378). 
 It has been defined in Michigan, to mean property per- 
 ishable in its own nature and character, and not that 
 which is or may be subject or liable to loss by trespass, 
 larceny, or fire. {Oneida National Bank v. Paldi, 2 
 Mich. N. P. 221). The following property has been 
 ordered to be sold as perishable: potatoes {Davis v. 
 Ainsworth, 14 How. Pr. 346) ; fruit, grain, fresh fish, 
 liquors (1 Civ. Proc. Rep. 390, note) ; kid gloves. {Fisk 
 V. Spring, 1 Civ. Proc. Rep. 378, 383). The fact that 
 jjroperty which has been attached, is likely to depreciate 
 in value, because of changes in styles and fashions, does 
 not make it perishable, so as to authorize the court to 
 sell it under this section. {Fisk v. Spring, supra). 
 The rule laid down in that case has been criticised as 
 being too narrow. {Schumann v. Davis, 13 N. Y. Supp. 
 575). 
 
 Sec. 8. Claim of Property. 
 
 If goods or effects, other than a vessel, attached as 
 the property of the defendant, are claimed by or in be- 
 half of another person, as his property, the sheriff may, 
 in his discretion, empanel a jury to try the validity of 
 the claim. (Co. Civ. Proc. § 657). The manner of 
 trying a claim of property under this section is laid 
 down in section one hundred and eight of the code of 
 civil procedure ; which it is not necessary to cite in f xill 
 at this place. If, by their inquisition, the jury find the 
 property of the goods or effects to have been in the 
 claimant, at the time of the levy, the sheriff must forth- 
 with deliver them to him or his agent ; unless the plain- 
 tiff gives an undertaking, with sufficient sureties, to in- 
 demnify the sheriff for the detention thereof. If the 
 undertaking is given, the sheriff must detain the goods 
 or effects, as the property of the defendant. Where 
 
ATTACHMENT. 
 
 669 
 
 an undertaking is given to indemnify the sheriff, he 
 must, within two days after the giving of the said 
 undertalving, cause the same to be filed in the office of 
 the court out of which the attachment was issued, and 
 serve upon the claimant or his agent, and the attach 
 ing creditor or attorney, whose name is subscribed to 
 the warrant of attachment, a copy of the said under- 
 taking, with a notice of the justification of the sureties 
 thereon. The justification must take place before a 
 judge of the court out of which the attachment was 
 issued, at a time to be specified in the notice, which must 
 not be less than two nor more than five days after the 
 serving of the said notice. For the purpose of justifica- 
 tion each of the sureties upon the undertaking must 
 attend before the judge at the time and place mentioned 
 in the notice, and be examined on oath on the part of 
 the claimant, or his agent or attorney, touching his 
 sufficiency, in such manner as the judge in his discretion 
 thinks proper. The examination may be adjourned 
 from day to day until it is completed, but such adjourn- 
 ment must always be to the next judicial day. If re- 
 quired by the claimant, his assignee or other representa- 
 tive, the examination must be reduced to writing and 
 subscribed by the sureties. If the judge finds the sure- 
 ties sufficient he must annex the axamination to the 
 undertaking, indorse his allowance thereon and cause 
 the said undertaking, together with the examination 
 of the sureties, to be filed with the clerk of the court. 
 Thereupon the sheriff' is released and discharged from 
 all further liability, by reason of the taking and deten- 
 tion of the property seized. When any such under- 
 taking shall have been approved and filed, as herein- 
 before provided, the clerk of the court in which the 
 same shall be filed shall immediately index the same 
 in the general index book in his office under the title of 
 the suit in which the attachment is issued. (Co. Civ. 
 Proc. § 658). If the sheriff detains the property at- 
 tached after a finding for the claimant, he is liable on 
 his official bond if judgment has been recovered against 
 him. (People v. Schui/ler, 4 N. Y. 173). If the prop- 
 erty is found to be in the defendant, the finding does 
 
670 rnACTicE. 
 
 not prejudice the right of the claimant, to bring an 
 action to recover the goods or effects, or the value 
 thereof. (Co. Civ. Proc. § 659). 
 
 Sec. 9. Proceedings on Claim of Vessel. 
 
 Where a vessel, belonging to a port or place in the 
 United States, or a share or interest therein, is attached, 
 the court or judge, on the application, within thirty 
 days thereafter, of a person claiming title thereto, or 
 of his agent, must appoint three indifferent persons to 
 make a valuation thereof. (Co. Civ. Proc. § 660). A 
 valuation of a vessel, or of a share or interest therein, 
 made as prescribed herein, must be in writing, and sub- 
 scribed by the appraisers ; each of whom must take and 
 subscribe an affidavit, annexed thereto, to the effect that 
 the valuation is, in all respects, just and fair, and that 
 the value of the vessel, share, or interest, is truly stated 
 therein, according to the deponent's belief. The valua- 
 tion must be immediately returned to the court or judge; 
 and, after an undertaking is given, or after the expira- 
 tion of the time to give an undertaking, as prescribed 
 in section six hundred and sixty-two, it must be deliv- 
 ered to the sherifF. (Co. Civ. Proc. § 661). Within 
 two days after the valuation is returned, the claimant 
 or his agent, may execute an undertaking to the sheriff, 
 with sufficient sureties, approved by the court or judge, 
 who must justify in twice the appraised value, to the 
 effect, that, in an action to be brought on the undertak- 
 ing, the claimant will establish that he was the owner 
 of the vessel, share, or interest, at the time of the levy 
 thereupon; and that in case of his failure to do so, he 
 will pay the amount of the valuation, with interest from 
 the date of the undertaking, to the sheriff ; or if the war- 
 rant is vacated or annulled, to the defendant, or his per- 
 sonal representative. (Co. Civ. Proc. § 662). The 
 failure to procure more than one surety to an under- 
 taking does not invalidate the bond given under this 
 section. {Ward v. Whitnei/. 8 N. Y. 442; Co. Civ. Proc. 
 § 811). Upon such an understanding being executed 
 and delivered to the sheriff, the court or judge must 
 make an order, directing the vessel or share to be dis- 
 
ATTACHMENT. 671 
 
 charged from the attachment. Thereupon the sheriff 
 must discharge the same accordingly. (Co. Civ. Proc. 
 § 663). The court or judge may, upon the application 
 of either party, at any time before the warrant is va- 
 cated or annulled, direct the sheriff to commence an 
 action upon the undertaking, upon such terms and con- 
 ditions, and under such regulations, between him and 
 the applicant, as it or he deems just. And if the war- 
 rant of attachment is vacated or annulled, the defend- 
 ant in the attachment, his assignee or personal repre- 
 sentative, may commence and maintain an action upon 
 the undertaking, or may be substituted in place of the 
 sheriff, in an action pending thereupon. (Co. Civ. Proc. 
 § 664). In such an action, the claimant may show, in 
 bar of recovery, that he was the owner of the vessel, 
 vfihare, or interest, at the time when it was attached. If 
 judgment passes against him, the plaintiff is entitled 
 to recover the amount of the valuation, with interest 
 from the date of the undertaking. (Co. Civ. Proc. § 
 665). Where a foreign vessel, or a share, or interest 
 therein is attached, it must be valued, as prescribed in 
 sections six hundred and sixty, and six hundred and 
 sixty-one, of the code of civil procedure (supra), upon 
 the application of a person, who makes affidavit, to the 
 effect that he is the owner thereof, or that he is the 
 agent of a person, naming him and his residence, whom 
 he believes to be the owner of the vessel, share, or inter- 
 est attached. (Co. Civ. Proc. § 666). Such notice of 
 the application must be given to the plaintiff, as the 
 court or judge deems reasonable. (Co. Civ. Proc. § 
 667) . Within three days after the valuation is returned, 
 the plaintiff must give, to the person in whose behalf 
 the claim is made, an undertaking, with sufficient sure- 
 ties, approved by the court or judge, who must justify 
 in twice the appraised value, to the effect that they will 
 pay such damages, as may be recovered for seizing the 
 vessel, share, or interest, in an action brought against 
 tlie sheriff, or the plaintiff in the attachment, within 
 three months from the approval of the undertaking, if 
 it appears therein that the vessel, share, or interest 
 
 43 
 
672 PRACTtCB. 
 
 belonged, at the time of attaching it, to the person in 
 Avhose behalf the claim is made. (Co. Civ. Proc. § 668). 
 Unless such an undertaking is given, the court or judge 
 must grant an order discharging the vessel, share, or 
 interest so claimed, from the attachment; whereupon 
 the sheriff must discharge the same accordingly. (Co. 
 Civ. Proc. § 669 ) . If, after such an undertaking is 
 given by the plaintiff, the warrant is vacated or an- 
 nulled, or the attachment is discharged as to the vessel, 
 share, or interest, the defendant or his agent is entitled 
 to claim the same, or the proceeds thereof, if it has been 
 sold, only upon his showing to the satisfaction of the 
 court or judge, that the undertaking has been dis- 
 charged ; or giving to the plaintiff an undertaking, with 
 sufficient sureties, approved by the court or judge, who 
 must justify in twice the appraised value, to the effect 
 that they will indemnify the plaintiff against all 
 charges and expenses, in consequence of the undertak- 
 ing. (Co. Civ. Proc. § 670). If the undertaking of the 
 plaintiff is not discharged, or he is not indemnified, as 
 prescribed in article two, of title three of chapter seven, 
 within one month after the defendant becomes entitled 
 to claim the vessel, share, or interest, as so prescribed, it 
 may be sold by the sheriff, in whose custody it is, upon an 
 order of the court or judge; and the proceeds of the 
 sale must be paid to the persons who executed the under- 
 taking, for their indemnity. (Co. Civ. Proc. § 671). 
 If a claim is not made, by or in behalf of an owner of 
 a domestic vessel, or of a share or interest therein, 
 within thirty days after it is attached, or if the proper 
 undertaking is not executed by the claimant ; or if 
 a claim is not made Avithin that time, by or in behalf 
 of the owner of a foreign vessel, or of a share or interest 
 therein; the vessel, share, or interest, may be sold by 
 the sheriff, under an order of the court or judge, upon 
 the application of the plaintiff, if, in the opinion of 
 the court or judge, a sale is necessary. ( Co. Civ. Proc. 
 § 672). Where a share or interest in a vessel, foreign 
 or domestic, is attached, if the proper claim to it is not 
 made, by or in behalf of an owuer thereof, within thirty 
 days thereafter, it may be sold by tlie sheriff, under an 
 
ATTACHMENT. 673 
 
 order of the court or judge, upon the application of a 
 joint owner, or his agent. (Co. Civ. Proc. § 673). 
 
 ARTICLE IV. 
 
 VACATING AND MODIFYING WARRANT. 
 
 SECTION. 
 
 1. Who may move and when. 
 
 2. How motion may be made. 
 
 3. New proof. 
 
 4. When more than one motion allowed. 
 
 5. Grounds upon which the attachment will be vacated. 
 
 6. Effect of vacating attachment. 
 
 7. Application for discharge of property. 
 
 Sec. 1. Who may Move and When. 
 
 The defendant, or a person who has acquired a lien 
 upon, or interest in, his property, after it was attached, 
 may, at any time before the actual application of the 
 attached property, or the proceeds thereof, to the pay- 
 ment of a judgment recovered in the action, apply to 
 vacate or modify the warrant, or to increase the security 
 given by the plaintiff, or for one or more of those forms 
 of relief, together, or in the alternative. ( Co. Civ. Proc. 
 § 682). Under the code of civil procedure, the right 
 of the defendant to move to vacate or modify the attach- 
 ment is absolute; and suggestions, which have been 
 made in certain cases, decided under the provisions of 
 the code of procedure, that one could not move unless 
 he was in some way aggrieved by the warrant, are not 
 now the law. Under the code of procedure it was well 
 settled that no one could move to vacate or modify the 
 ■warrant of attachment, for irregularity, unless he was 
 a party to the action. {Tracy v. First Nat'l Bank of 
 Selma, 37 N. Y. 523; lia«er of Gristcold, 13 Barb. 412). 
 The code of civil procedure has changed this rule. 
 (Jacobs V. Hoc/an, 85 N. Y. 243). The defendant, or 
 all of the defendants to the action, may in all cases 
 move to vacate or modify the Avarrant. If there is more 
 than one defendant, one of several defendants may 
 move to the extent of his interest, and when the action 
 
674 
 
 PRACTICE. 
 
 is against partners, one of the several defendants may 
 move to vacate the warrant entirely. ( Walts v. Nichols, 
 32 Hun, 276) . Any person who has a lien or interest in 
 the property, subsequent to the warrant of attachment, 
 may now move to vacate it (Steuben Go. Bank v. 
 Alberger, 75 N. Y. 179) ; if his interest or lien is only 
 to a part of the property which has been attached, he 
 may move to vacate the attachment as to that part. 
 {Trow's Printing Co. v. Hart, 85 N. Y. 500). The 
 lienor has no standing in court, however, unless he es- 
 tablishes the existence of a valid outstanding lien, 
 which he could enforce against the property of the de- 
 fendant if the warrant should be set aside. Where a 
 lien, therefore, is in the form of a judgment of a court 
 of limited jurisdiction, the facts must be set forth by 
 affidavit, showing that such court had jurisdiction. 
 [JJammcrscidag v. Cathoscope Elec. Co., 16 App. Div. 
 185; Sill Stove Works v. Scott, 62 App. Div. 566). So 
 a junior attaching creditor cannot move unless a levy has 
 been made under his attachment. (Biirtis v. Dickinson, 
 81 Hun, 343). A judgment creditor, who has acquired 
 a lien upon the attached property, by the recovery of 
 a judgment and issue of an execution, is a subsequent 
 lienor, and entitled to move, under the provisions of this 
 section. (Ruppert v. Hang, 87 N. Y. 141). The in- 
 terest which a receiver of a corporation has acquired 
 in the property of the corporation, after the levy of 
 an attachment, is such an interest as entitles him to 
 move to vacate the warrant. (National Shoe d Leather 
 Bank v. Mechanics' Nat'l Bank, 89 N. Y. 440). So 
 an assignee of the owner of property levied on under 
 an attachment, can move to vacate the warrant, (Mer- 
 riam v. Wood & Parker Co., 19 App. Div. 327), or the 
 levy. (Marx v. Ciancimino, 59 App. Div. 570). Of 
 course, it must appear in all cases that the assignment 
 was made after the property was attached. (Keij 
 West Bldg. etc. Ass'ii v. Bank of Key West, 45 N. Y. 
 St. Eep. 152). But an assignee for the benefit of cred- 
 itors is precluded from moving, without leave, where 
 his assignor has moved and his motion been denied. 
 (St7~auss V. Vogt, 23 Civ. Proc. Rep. 251). A motion 
 
ATTACHMENT. 675 
 
 which is made by a lienor, may be based upon the in- 
 sufficiency of the papers upon which the warrant was 
 granted (Steuben Co. Bank v. Alberger, 75 N. Y. 179) ; 
 or upon any other ground upon which the defendant 
 may move to vacate the warrant. The defendant is not 
 precluded from making a motion to vacate, because a 
 third person claims tlie attached property, and has 
 given a bond of indemnity to the sheriff upon taking 
 the property. {Whitelegge v. DeWitt, 12 Daly 319). 
 Where the real owner, however, has brought an action 
 against the sheriff for conversion, he has elected to treat 
 the sheriff as his debtor and is precluded from moving 
 to set aside the levy. {Marx v. Gianciinino, supra). 
 A defendant may move to vacate the warrant, although 
 he has made a general assignment for the benefit of his 
 creditors, whether such assignment was made before or 
 after the levy of the attachment. {Dickinson v. Ben- 
 Jiam, 12 Abb. Pr. 158; 20 How. Pr. 343; Breiver v. 
 Tucker, 13 Abb. Pr. 76). It is not necessary for the 
 defendant to put in a general appearance in the action 
 before making the motion. {Maiiice v. Gould, 1 Abb. 
 Pr. N. S. 255). A person seeking to move to vacate the 
 attachment, either as a subsequent lienor, or because 
 he has acquired an interest in the attached property, 
 may move by virtue of that relation only, and need not 
 become a party to the suit. {National Slice & Leather 
 Bank V. Mechanics' Nat'l Bank, 89 N. Y. 440). A mo- 
 tion may be made by the defendant, although he has 
 given an undertaking to obtain the release of the prop- 
 erty, under section six hundred and eighty-eight of the 
 code of civil procedure {Garhutt v. Banff, 15 Abb. Pr. 
 189; Laiolor v. Magnolia Metal Co., 2 App. Div. 552; 
 app. dismissed, 149 X. Y''. 591) ; or although judgment 
 has been rendered in the action, and execution issued 
 upon it. (Boicen v. First Nat'l Bank, 34 How. Pr. 408 ; 
 Parsons v. Sprague, 30 Hun, 19 ; S. C, 3 Civ. Proc. Rep. 
 290) . The mere levy under an execution is not such an 
 actual application as to bar the right of the subsequent 
 lienor to move ; that language of the code in section six 
 hundred and eighty-two means an actual and real appli- 
 cation of the property or its proceeds, as distinguished 
 
676 PRACTICE. 
 
 from a constructive one. While the property remains, 
 before it has been actually transferred to the plaintiff, 
 or in case of sale, before its proceeds have gone to him, 
 it is possible for the court to control and determine the 
 liens upon it, fixing their order and enforcing their 
 payment, on the one hand, or discharging or removing 
 them upon the other. No evil can result, unless from a 
 delay which has in fact transferred the property or its 
 proceeds, upon a lien, fully and completely enforced. 
 That evil was the one at which the provision of the sec- 
 tion was aimed; and it does not exist where there is 
 merely a levy, under which neither the property, nor 
 its proceeds, have actually and in fact passed to the 
 creditor. (Woodmansee v. Rogers, 82 N. Y. 88). A 
 motion to vacate a warrant upon the ground of irregu- 
 larity, must be made at the earliest practicable moment, 
 or the delay in making it must be excused. A delay of 
 twenty days after judgment and the issue of an execu- 
 tion is too long {Lawrence v. Jones, 15 Abb. Pr. 110) ; 
 but this rule does not apply to a motion on the merits, 
 and which affects a substantial right. ( Swezey v. Bart- 
 Ictt, 3 Ahh.Pr. N. S. 144). 
 
 Sec. 2. How Motion May be Made. 
 
 An application, specified in section six hundred and 
 eighty-two, may be founded only upon the papers upon 
 which the warrant was granted ; in which case, it must 
 be made to the court ; or, if the warrant was granted by 
 a judge out of court, to the same judge, in court or out 
 of court, and with or without notice, as he deems proper. 
 Or, it may be founded upon proof, by affidavit on the 
 part of the defendant; in which case it must be made 
 to the court, or if the warrant was granted by a judge 
 out of court, to any judge of the court, upon notice. 
 (Co. Civ. Proc. § 683). The word "defendant" used in 
 this section, designates the party moving to vacate the 
 warrant, whether he is a party or lienor. (Steuhcn Co. 
 Bank v. Alhergcr, 75 N. Y. 179). Before the enactment 
 of the code of civil procedure, the practice upon moving 
 to vacate the warrant of attachment, as to the judge 
 before whom the motion might be made, and as to when 
 
ATTACHMENT. 677 
 
 the motion must be made to the court, was somewhat 
 unsettled; but the provisions of the section above cited 
 seem to settle and dispose of all the questions which were 
 in doubt under the code of procedure. 
 
 Two classes of motions are provided for by this sec- 
 tion : the first of which is to be made upon the papers 
 upon which the attachment was granted. This motion 
 may be made to the court at a special term, in which 
 case the moving party becomes subject to the general 
 practice as to notice, and time, and place of hearing ; or 
 to a judge, and in that event to the judge who granted 
 the attachment, whether he is in court or out of court, 
 and subject to his direction, whether the application 
 shall be heard ex parte, or upon notice. {Ruppert v. 
 Haiig, 87 N. Y. 141, 144). On a motion of this kind the 
 plaintiff is entitled to the benefit of all legitimate infer- 
 ences from the facts shown. {Stewart v. Lyman, 62 
 App. Div. 182). Where a motion of this class is made 
 by a lienor, the service of the notice of motion and the 
 affidavit, showing the existence of the lien by virtue of 
 which he acquires his right to move, is not new proof 
 within the meaning of section six hundred and eighty- 
 three. {Steuben Co. Bank v. Alberger, 75 N. Y. 179). 
 The rule is the same where affidavits are used by a lienor 
 for the purpose simply of excusing his delay in moving, 
 or to show facts which entitle him to an order to show 
 cause. {Brewer v. Tucker, 13 Abb. Pr. 76; Trotv's 
 Printing Go. v. Hart, 85 N. Y. 500). Where the motion 
 is made solely upon the papers upon which the attach- 
 ment is granted, the court has no power to allow an 
 amendment of the affidavits to support the attachment, 
 by supplying proof of a necessary fact, in respect to 
 which the original papers were defective {Buhl v. Ball, 
 41 Hun, 61; appeal dismissed, 106 N. Y. 672), nor to 
 consider pleadings served after the attachment had been 
 obtained. {Fox v. Mays, 46 App. Div. 1). In a case, 
 where a judge, after granting an attachment, made an 
 ew parte order that an additional affidavit, presented by 
 the plaintiff, should be attached to the original papers 
 upon which the attachment was granted, and filed nnno 
 pro tunc, it was held that the judge had no right to 
 
678 
 
 PRACTICE. 
 
 & 
 
 allow suck a thing to be done, and the plaintiff was not 
 allowed to read that affidavit, on a motion made upon 
 the papers, to vacate the attachment. {Sutherland v. 
 Bradner, 34 Hun, 519). But where the motion is made 
 upon the papers upon which the attachment was 
 granted, if the plaintiff presents new affidavits, and 
 reads them without objection, the court may consider 
 them, and it is not error to act upon them {Fisher v. 
 Dougherty, 42 Hun, 167) ; and the objection to them 
 cannot be first raised on appeal. {Kihbe v. Wctmore, 
 31 Hun, 424 ) . If the moving party introduces any proof 
 however slight, beyond what is sufficient to show his 
 lien and his standing in court, or to excuse his delay in 
 moving, it is new proof, and the plaintiff will be per- 
 mitted to support the warrant of attachment by new 
 affidavits. {Godfrey v. Godfrey, 75 N. Y. 434; Ires v. 
 Hoklen, 14 Hun, 402). Although, upon a motion made 
 upon the papers, the plaintiff will not be permitted to 
 introduce new proof, or to amend the affidavits upon 
 which the attachment was issued, the court may, in its 
 discretion, permit him to amend the warrant of attach- 
 ment. {Kibbe V. Wetmore, 31 Hun, 424; King v. King', 
 59 App. Div. 128; Sidsbaclier v. Cawthra, 14 Misc. 545; 
 affd. on op. below, 148 N. Y. 755). The second class of 
 motions, provided for in this section, is those which are 
 made upon proof by and on the part of the defendant. 
 These motions must be upon notice, and, if the warrant 
 was granted by a judge out of court, they may be made 
 to any other judge of the court; and under any circum- 
 stances they may be made to the court at special term. 
 
 See. 8. New Proof. 
 
 If the motion is founded on proof by affidavit on the ' 
 part of the defendant, it may be opposed by new proof 
 by affidavit, on the part of the plaintiff, tending to sus- 
 tain any ground for the attachment recited in the war- 
 rant, and no other, unless the defendant relies upon a 
 discharge in bankruptcy, or upon a discharge or exon- 
 eration, granted in insolvent proceedings ; in which case 
 the plaintiff may show any matter, in avoidance thereof, 
 which he might show upon the trial. (Co. Civ. Proc. § 
 
ATTACHMENT. 6.73 
 
 683). Any proof, however, unimportant, presented by 
 the defendant for the purpose of attacking in any way 
 the allegations in the plaintiff's affidavits, is new proof 
 within the provisions of this section. The right of the 
 plaintiff to oppose the motion by new proof, does not 
 depend upon the directness or force of the allegations 
 contained in the affidavits presented by the defendant; 
 if the affidavits of the defendant are proof at all, the 
 plaintiff may oppose them with new affidavits. {God- 
 frey V. Oodfrei/, 75 N. Y. 434; TTVsf Side Bank v. Mee- 
 han, 49 N. Y. St. Rep. 606). Where the attachment was 
 issued upon affidavits only, and the motion to vacate 
 was made upon the affidavits and the complaint, the 
 complaint constitutes new proof, and the plaintiff is 
 entitled to read additional affidavits. {Ives v. Holden, 
 14 Hun, 402). If the plaintiff proposes to read affi- 
 davits upon a motion, the objection that the defendant's 
 affidavits are not new proof within this section, must be 
 taken at the hearing, or it is waived. ( Godfrey v. God- 
 frey, 75 N. Y. 434). It was held in Yates v. Xorth (44 
 N. Y. 271 ) , which was a case decided under the code of 
 procedure, that the plaintiff in his new proof, was con- 
 fined to answering the allegations of the defendant's 
 affidavits; but such is not the law under the code of 
 civil procedure. Where the plaintiff is entitled to use 
 additional affidavits, because the defendant has based 
 his motion upon new proofs, he is not confined to an- 
 swering the affidavits of the defendant; but he may do 
 that, and he may also give new proof, which will tend 
 to sustain any ground for the attachment recited in the 
 Avarrant, and no other. This provision of section six 
 hundred and eighty-three, has received a very broad 
 construction. On such a motion, where the defendants 
 had shown that the period of credit allowed to them 
 had not expired when the attachment was issued, the 
 plaintiff was permitted by new proof, to show that the 
 debt was fraudulently contracted, and that he was 
 therefore at liberty to bring his action, as though no 
 credit had been given. {Vietor v. Henlien, 34 Hun, 
 562). Where an attachment was issued in an action to 
 recover money loaned, and it did not appear what part 
 
680 PRACTICE. 
 
 of the loan was due at the comineucement of the action, 
 and the affidavits on which the defendant moved denied 
 the existence of the indebtedness, the plaintiff is at 
 liberty to present new affidavits, showing the amount of 
 the loan which was due at the commencement of the 
 action. (Co/^n v. fi't/«, 5 Civ. Proc. Kep. 261). In the 
 case of Kihbe v. Wet more (31 Hun, 421), the attach- 
 ment was issued upon the sole ground of the defendant's 
 non-residence; and he moved to vacate it, on affidavits 
 tending to show that he was in fact a resident; upon 
 that motion, the plaintiff was permitted to read oppos- 
 ing affidavits, tending to show that the defendant had 
 disposed of his property with intent to defraud his 
 creditors, and it was held upon appeal that such affi- 
 davits were properly received; but the opinion of the 
 court in that case shows that no objection was made at 
 the hearing of the motion to the reading of those affi- 
 davits ; although no particular stress seems to have been 
 laid upon that point by the judge in delivering the opin- 
 ion. On the hearing of a motion to vacate a warrant 
 of attachment, the plaintiff may produce affidavits in 
 support of it, which had been made in another action 
 by different plaintiffs, against the same defendants, 
 where it appears that such copies were used because of 
 plaintiff's inability to obtain affidavits in such action 
 from the person who had made them in the other action. 
 {Whitney v. Hirsch, 39 Hun, 325). 
 
 Sec. 4. When More Than One Motion Allowed. 
 
 The denial of such an application does not prejudice 
 a subsequent application, seasonably made, founded 
 upon the failure of a complaint which had not been filed 
 or served at the time of the former application, to set 
 forth any of the causes of action mentioned in section 
 six hundred and thirty-five and section six hundred and 
 thirty-seven of the code of civil procedure. (Co. Civ. 
 Proc. § 686) . Although a party has moved to vacate an 
 attachment upon the papers on which it was granted, 
 and that motion has been denied, he may, yet, make a 
 subsequent motion on affidavits. {Thalheimer v. Hays, 
 42 Hun, 93; Hawkins v. Pakas, 44 App. Div. 395). A 
 
ATTACHMENT. 681 
 
 lienor, who lias moved to vacate the attachment as to 
 personal property, upon the ground that it was an ob- 
 struction to the enforcement of a judgment and execu- 
 tion, and has been defeated upon that motion, may 
 afterwards make a second motion to vacate the same 
 attachment, so far as it affects real estate, upon the 
 ground that it is a cloud upon an alleged title to such 
 real estate, acquired by him; and he may do this, al- 
 though he might have moved on the second ground, 
 when he made the first motion. {Steuhen Co. Bank v. 
 Alberger, 83 N. Y. 274). 
 
 Sec. 5. Grounds Upon Which the Attachment Will be Vacated. 
 An attachment is a provisional remedy of a very se- 
 vere nature, and the statute providing for it is, there- 
 fore, construed strictly in favor of those against whom 
 it is employed [Penoyar v. Kelsejj, 150 N. Y. 77) ; the 
 attachment should not be sustained, unless the affidavits 
 are clearly sufficient for granting the warrant. ( O'Brien 
 V. Carroll, 1 Law Bull. 9). If the motion to vacate the 
 attachment is made upon the papers upon which it was 
 granted, the warrant will only be vacated, where the 
 court has no jurisdiction to grant it, or where the affi- 
 davits utterly fail to show some fact, which is essen- 
 tial to authorize the granting of the warrant. (Allen v. 
 Meyer, 7 Daly, 146; 73 N. Y. 1; Steuben Co. Bank v. Al- 
 herger, 78 N. Y. 252 ) . Upon such a motion, the warrant 
 will be vacated on a complaint containing several causes 
 of action, upon one of which an attachment cannot be 
 granted, although there are joined with it other causes 
 of action, upon which it can be granted. {Union Min. 
 Co. V. Baht, 9 Hun, 208) . Defects in the affidavits used 
 on an application for an attachment, which are not speci- 
 fied in a notice of motion to set aside the attachment, 
 cannot be relied upon in support of the motion. (Kloh 
 V. N. Y. Fertilizer Co., 86 Hun, 266). The court will 
 not pass upon the merits of the action, on a motion to 
 vacate the attachment, if it is possible to avoid it {Iselin 
 V. Port Royal R. B. Co.', 6 Wk. Dig. 130), and unless it 
 is certain that the complaint is so defective, that the 
 plaintiff cannot recover in the action, the motion to 
 
682 PRACTICE. 
 
 vacate should be denied. {Goodyear v. Coml. Fire Ins. 
 Co., 58 App. Div. 611). So where the motion to vacate 
 is made on affidavits denying the plaintiff's cause of ac- 
 tion, it should be denied and the dispute left for deter- 
 mination at the trial {Klrby v. Coltcell, 81 Hun, 385) ; 
 but every allegation on which the attachment is granted, 
 may be disproved upon a motion. {Boscher v. Roullicr, 
 4 Abb. Pr. 396 ) . Whenever any essential fact is success- 
 fully controverted, the attachment will be vacated. 
 (Van Allen v. Sampson, 5 Wk. Dig. 288). Where it ap- 
 pears by the affidavits submitted on the motion, that 
 the plaintiff could not have known the existence of 
 certain facts which he swears to, the attachment will 
 also be vacated. {O'Reilly v. Freel, 37 How. Pr. 272). 
 AVhere the motion is made upon the ground of a defect 
 in the attachment, or any other technical defect, it may 
 be defeated by granting a cross motion to amend, upon 
 such terms as the court shall see fit to impose. {Bradley 
 V. Parker, 2 Law Bull. 21). An attachment will not be 
 vacated, because of a failure to file the affidavits upon 
 which it was granted. {Brash v. Wielarsky, 36 How. 
 Pr. 253 ) . A warrant of attachment against a non-resi- 
 dent, will not be vacated, because the propertj^ which 
 has been attached under it belongs to a third person. 
 {McKinlay v. Foioler, 67 How. Pr. 388; reversed on 
 another point, 1 How. Pr. N. S. 282) . The objection that 
 the cause of action is barred by the statute of limita- 
 tions, cannot be taken by affidavits, on motion to vacate 
 the warrant. {Plimpton v. Bigelow, 29 Hun, 362). 
 Where an attachment, which has been issued against a 
 non-resident, is levied on partnership property, it should 
 not be vacated on affidavits that the partnership is in- 
 solvent, and that for, that reason the defendant had no 
 interest in the property. {Black v. Rodger, 2 Law Bull. 
 12; Buckingham v. Bwezy, 25 Hun, 84). 
 
 See. 6. Effect of Vacating the Attachment. 
 
 Where the attachment has been vacated for irregu- 
 larity, or for invalidity, and pi'operty has been levied 
 upon and taken under it, the plaintiff is liable as a tres- 
 passer. {Lyon V. Yates, 52 Barb. 237; Kerr v. Mount, 
 
ATTACHMENT. 683 
 
 28 N. Y. 659). But wherever the attachment has been 
 regularly issued, it is a protection to the party, for what 
 has been done under it while it was in force; although 
 it has been afterwards set aside on motion, for error. 
 {Day V. Bach, 87 N. Y. 56). Where an attachment has 
 been vacated for irregularity, it is the duty of the sheriff 
 to surrender the property attached, to the owner of it, 
 upon reasonable demand, and if he refuses to do so, the 
 obligors on the undertaking given to indemnify him on 
 making the levy are not liable for a judgment recovered 
 against him for such refusal. {Boive v. Willdns, 105 
 N. Y. 322). Vacating the attachment on alfidavits, for 
 error, does not exonerate the sureties on an undertaking 
 to procure the discharge of property, which has been 
 taken under it. To have that effect, the attachment 
 must have been vacated because the court had no juris- 
 diction to grant it, or the order should declare that the 
 undertaking is void. {Bildersee v. Aden, 8 Abb. Pr. 
 N. S. 171; S. 0., 12 Abb. Pr. N. S. 324). 
 
 Sec. 7. Application for Discharge of Property. 
 
 Subdivision 1. — Who May Make It. 
 
 The defendant may, at any time after he has appeared 
 in the action, and before final judgment, apply to the 
 judge who granted the warrant, or to the court, for an 
 order to discharge the attachment, as to the whole or a 
 part of the property attached. (Co. Civ. Proc. § 687). 
 The defendant only can move for the relief provided 
 for in this section. Where there is more than one de- 
 fendant, and less than all desire to join in the applica- 
 tion, the mode of proceeding is prescribed in section six 
 hundred and eighty-nine of the code of civil procedure. 
 Under the code of procedure, it had been held that an 
 application could not be made for a discharge of part 
 of the property taken upon the attachment (Royal Ins. 
 Co. V. Nohle, 5 Abb. Pr. N. S. 54) ; but this rule has been 
 changed by the section above quoted. The motion can- 
 not be made after final judgment {Spencer v. Rogers 
 Loco. Works, 13 Abb. Pr. 180; Parsons v. Spiague, 3 
 Civ. Proc. Rep. 290) ; nor during the pendency of an 
 
684 
 
 I'EACTICE. 
 
 appeal from the judgment. (Wright v. Rowland, 4 
 Kej'es, 165). Where an application is made as pre- 
 scribed in section six hundred and eighty-nine, at least 
 two days' notice of it, with a copy of the affidavit, must 
 be served on the plaintiff's attorney, who may oppose 
 the application by proof, by affidavit, that one or more 
 of the other defendants own or have an interest in the 
 property. ( Co. Civ. Proc. § 689 ) . Where the applica- 
 tion is made by a defendant, or all the defendants in the 
 action, the court or judge to whom the application is 
 made, may direct what notice shall be given, if any, and 
 if notice is given, and the plaintiff does not appear, the 
 application may be denied. (Co. Civ. Proc. § 696). At 
 the time of the application, the defendant should pre- 
 sent to the court or judge, to whom he applies, the under- 
 taking provided for by section six hundred and eighty- 
 eight and six hundred and eighty-nine, and should cause 
 it to be approved by the judge or court, and should file 
 it forthwith. The order discharging the attachment, 
 should state whether it applies to the whole, or to a part 
 of the property ; and if only to a part, to what part ; but 
 it need not, ordinarily, contain directions as to the man- 
 ner of the re-delivery of the property. {Ellsworth v. 
 Scott, 3 Abb. N. C. 9). In view of the provisions of 
 chapter 418, § 1, subd. 2, of the Laws of 1892, it is ad- 
 visable, in the county of New York, to give the sheriff 
 notice of the application to discharge the attachment', 
 to the end that the question of his fees and poundage 
 may be settled upon the motion. {Tribune Assc'n v. 
 Eisner & Mendelson Co., 49 App. Div. 141). 
 
 Subdivision 2. — Undertaking. 
 
 Upon such an application, the defendant must give 
 an undertaking, with at least two sufficient sureties, to 
 the effect that he will, on demand, pay to the plaintiff 
 the amount of any jiidgment which may be recovered in 
 the action against him, not exceeding the sum specified 
 in the undertaking, with interest. The sum so specified 
 must be at least equal to the amount of the plaintiff's 
 demand, as specified in his affidavit; or, at the option 
 
ATTACHMENT. 685 
 
 of the defendant, equal to the appraised value, accord- 
 ing to the inventory, of the property attached; or, if 
 the application is to discharge the attachment, as to a 
 part only of the property attached, to the appraised 
 value of that portion. (Co. Civ. Proc. § 688). An un- 
 dertaking given under this section should not be ac- 
 knowledged, nor should the sureties justify before the 
 defendant's attorney ; and if they do so, the undertaking 
 will not be approved. {Bliss v. Molter, 8 Abb. N. C. 
 241). The section, and an undertaking in its words, 
 provide for the payment of interest by the sureties only 
 from the time of the recovery of the judgment, not from 
 the date of the undertaking. (Sooysiiiith & Co. v. Am. 
 Surety Co., 28 App. Div. 346). No consideration is 
 necessary to uphold the undertaking which is given un- 
 der this section. {Bildersee v. Aden, 62 Barb. 175). 
 One undertaking cannot be given to discharge two at- 
 tachments in different actions. {Walton v. Daly, 17 
 Hun, 601). Where there are two or more defendants, 
 and an application is made, as prescribed in section six 
 hundred and eighty-seven and section six hundred and 
 eighty-eight, by one or more, but not by all of them, the 
 undertaking must provide for the payment of any judg- 
 ment, which may be recovered against any of the de- 
 fendants in the action, unless the applicant makes 
 proof, by affidavit, to the satisfaction of the court or 
 judge, that the property, with respect to which the ap- 
 plication is made, belongs to him separately; in which 
 case, the undertaking must provide for the payment of 
 any judgment, which may be recovered in the action 
 against the applicant, either alone or jointly with any 
 other defendant. (Co. Civ. Proc. § 689). An under- 
 taking given as prescribed in section six hundred and 
 eighty-eight and section six hundred and eighty-nine 
 must be forthwith filed with the clerk. A copy thereof 
 with a notice of the filing must be forthwith served upon 
 the plaintiff's attorney; who may, within three days 
 thereafter, give notice to the sheriff, that he excepts to 
 the sufficiency of the sureties. Thereupon the sureties 
 must justify, upon the like notice, and in like manner, 
 as bail upon an arrest; or a new undertaking must be 
 
686 PEACTICB. 
 
 given, with new sureties, who must justify in lilie man- 
 ner. If the plaintiff does not except, as prescribed in 
 this section, he is deemed to have waived all objection 
 to the sureties. (Co. Civ. Proc. § 690). An undertaking- 
 given under these sections is void, if the attachment has 
 been issued without jurisdiction. {Coleman v. Bean, 
 3 Keyes, 94). The sureties in the undertaking are 
 bound by the recitals in it. {Coleman v. Bean, supra). 
 They cannot deny the issue of the warrant, or that the 
 grounds of attachment which are recited in the attach- 
 ment, actually exist. {Higgins v. Healy, 47 Super. 207; 
 affd. without op., 89 N. Y. 636) . The sheriff is responsi- 
 ble for the sufficiency of the sureties ; and he may retain 
 possession of the property attached, and the proceeds 
 thereof, until the objection to them is waived, as pre- 
 scribed in section six hundred and ninety, or they, or 
 the new sureties, justify. (Co. Civ. Proc. § 691). It is 
 the duty of the sheriff to retain possession of the prop- 
 erty until the sufficiency of the sureties has been waived, 
 or until they have justified. This is a substantial right, 
 of which the plaintiff cannot be deprived. And he does 
 not waive it by a verbal consent to the entry of the usual 
 order for the discharge of the attachment. {Moses v. 
 The Waterhimj Button Co., 15 Abb. Pr. N. S. 205; 46 
 How. Pr. 528). 
 
 Subdivision 3. — Discharge op Vessels Under the At- 
 tachment. 
 
 Sections six hundred and eighty-seven to section six 
 hundred and ninety-one, both inclusive, are applicable 
 where a vessel, or a share, or interest therein, is at- 
 tached. If it is necessary to enable the defendant to 
 discharge the attachment, the court or judge may, by 
 order, stay any proceedings specified in article second 
 of title three, chapter seven, of the code of civil pro- 
 cedure, relating to the execution of the warrant of at- 
 tachment pending the action, or extend the me to do 
 any act specified in that article. (Co. Civ. Proc. § 692). 
 
ATTACHMENT. G87 
 
 Subdivision 4. — Application by Partners to Discharge 
 Attachment. 
 
 If a warrant of attacliment is levied upon tlie interest 
 of one or more partners, in goods or chattels of a part- 
 nership, the other partners who are not defendants in 
 the action, or any of them, may at any time before iinal 
 judgment, apply to the judge who granted the warrant, 
 or to the court, upon an affidavit showing the facts, 
 for an order to discharge the attachment, as to that 
 interest. (Co. Civ. Proc. § 693). Upon such an appli- 
 cation, the applicant must give an undertaking, with at 
 least two sufficient sureties, to the effect that they will 
 pay to the sheriff, on demand, the amount of any judg- 
 ment, which may be recovered against the partner who 
 is defendant in the action; or which may be recovered 
 against him, in any other action, wherein the other 
 partners are not defendants, and wherein a warrant of 
 attachment, or an execution, may come to the sheriff's 
 hands, at any time before the warrant of attachment, 
 which was so levied, is vacated or annulled; not ex- 
 ceeding a sum, specified in the undertaking, which must 
 not be less than the value of the interest of the defendant, 
 in the goods or chattels seized by virtue of the attach- 
 ment, as fixed by the court or judge; if the value, in 
 the opinion of the court or judge, is uncertain, the sum 
 shall be such as the court or judge determines. (Co. 
 Civ. Proc. § 694). For the purpose of fixing the sum, 
 or determining the sufficiency of the sureties, the court 
 or judge may receive affidavits or oral testimony, or 
 may direct a reference. (Co. Civ. Proc. § 695). The 
 court or judge to whom the application is made, may 
 direct that the plaintiff shall have notice of the appli- 
 cation for discharge of property under this subdivision, 
 or of the hearing under an order of reference, made as 
 prescribed in section six hundred and ninety-five; and 
 if the applicant does not appear, where notice has been 
 given, the application may be dismissed or denied. (Co. 
 Civ. Proc. § 696). 
 44 
 
688 PRACTICE. 
 
 ARTICLE V. 
 
 EEGULATIONS WHERE THERE ARE TWO OR MORE WARRANTS 
 AGAINST THE SAME DEFENDANT. 
 
 SECTION. 
 
 1. Levy under a junior warrant. 
 
 2. Attachment of foreign vessel under junior warrant. 
 
 3. Rights of junior plaintiff as to actions. 
 
 4. Rights of third and other attaching creditors. 
 
 Sec. 1. Levy Under a Junior Warrant. 
 
 Where a domestic vessel, or a share or interest therein, 
 has been attached, and afterwards released, as pre- 
 scribed in title three of chapter seven of the code of civil 
 procedure, or where the personal property of a partner- 
 ship, of which the defendant was a member, has been 
 attached, and the attachment afterwards discharged, 
 npon the application of another partner, as prescribed 
 in said title; another warrant against the saine defend- 
 ant, shall not be levied on the same property, by the 
 sheriff of the same or of any other county, until after 
 the first warrant has been vacated or annulled. But, 
 except as thus prescribed, where a second warrant, 
 against the same defendant, is delivered to the same 
 sheriff^ he must execute it by a levy upon property 
 within his county, and he must thereupon take the same 
 proceedings, as if the levy was made under the first 
 warrant. (Co. Civ. Proc. § 698). Mr. Throop says in 
 his notes to this section, that the exemption of a do- 
 mestic vessel, and of partnership property from a second 
 levy, rests upon the ground that the undertaking for 
 tlieir release, is for the benefit of all the' attaching 
 creditors; and the undertaking is required to be so 
 framed that the new levy is unnecessary. (See Co. 
 Civ. Proc. §§ 662, 694). 
 
 Where two or more warrants of attachment against 
 the same defendant, are delivered to the sheriff of the 
 same county, to be executed, their respective prefer- 
 ences, and the rules, where a levy, or a levy and sale, 
 have been made under a junior warrant, are the same 
 as where two or more executions, against the property 
 
ATTACHMENT. 689 
 
 of the same defendant, are delivered to the sheriff of 
 the same county, to be executed. (Co. Civ. Proc. § 
 097). In the case of two executions, that one has 
 preference which is first delivered to the sheriff. (Co. 
 Civ. Proc. § 1406; GilUg v. Treadwell Co., 148 N. Y. 
 177). 
 
 Sec. 2. Attachment of Foreign Vessel Under Junior Warrant. 
 Where a foreign vessel, or a share or interest therein, 
 has been attached and valued, as prescribed in article sec- 
 ond of title three, chapter seven of the code of civil pro- 
 cedure, and the plaintiff, in the first warrant of attach- 
 ment, fails to give an undertaking to prevent the release 
 thereof, the court or judge may grant to the plaintiff in 
 a second warrant, then in the sheriff's hands for execu- 
 tion, an extension, of not more than three days there- 
 after, within which to furnish an undertaking in all 
 respects like the one to be furnished by the first plain- 
 tiff. And if he furnishes it, within that time, he has 
 the same rights and privileges, and is subject to the 
 same duties and liabilities, with respect to the vessel 
 and its proceeds, and the subsequent proceertmgs relat- 
 ing thereto, as if his was the first warrant. (Co. Civ. 
 Proc. § 701 ) . If a foreign vessel, or a share or interest 
 therein, has been attached, and afterwards released, 
 by reason of the failure of the plaintiff in the first or 
 the second warrant, to give an undertaking to prevent 
 the release, it shall not be again attached, under war-, 
 rant against the same defendant, which had been de- 
 livered to the sheriff of the same county, before the 
 expiration of the time within which the undertaking 
 should have been furnished. But it may again be at- ' 
 tached, under a subsequent warrant against the same 
 defendant; in which case, the plaintiff therein, and the 
 plaintiff in each warrant subsequently delivered to the 
 sheriff, have the same rights and privileges, and are 
 subject to the same duties and liabilities, with respect 
 to the vessel and its proceeds, and the subsequent pro- 
 ceedings relating thereto, as if the warrant, under which 
 it was attached, was the first warrant. (Co. Civ. Proc. 
 § 702). 
 
690 
 
 TRACTICE. 
 
 Sec. 3. Eights of Junior Plaintiff as to Actions. 
 
 Where the plaintiff in a warrant of attachment has 
 commenced an action, in the name of himself and the 
 sheriff jointly, as prescribed in title three, chapter seven 
 of the code of civil procedure, a plaintiff in a junior war- 
 rant may apply to the court or judge, to direct as to the 
 conduct, discontinuance or settlement of the same, or 
 to impose terms, conditions, and regulations as to the 
 continuance thereof, in the interest of the applicant; 
 and such order may be made thereupon as justice re- 
 quires. If the first warrant is vacated, or the attach- 
 ment thereunder is released or discharged, without 
 affecting the cause of action prosecuted by the plaintiff 
 therein and the sheriff jointly, the plaintiff in the war- 
 rant, next in order, may, upon his own application, 
 be substituted as joint plaintiff with the sheriff, by an 
 order, made as upon an application for leave to bring 
 such an action. (Co. Civ. Proc. § 703). A plaintiff 
 in a second warrant may apply to a court or judge, upon 
 notice to the plaintiff in the first warrant, and to the 
 sheriff, for leave to bring and maintain, in the name 
 of himself and the sheriff jointly, any action, which 
 might be brought in the name of the senior plaintiff and 
 the sheriff. If it appears that the plaintiff in the first 
 Avarrant neglects or refuses to be joined with the sheriff 
 in such an action, or to comply with the terms, con- 
 ditions and regulations imposed, either upon granting 
 him an order for that purpose, or upon the hearing of 
 an application as prescribed in this section, the court 
 or judge may grant to the plaintiff in the second war- 
 rant, leave to bring and maintain such an action, in the 
 name of himself and the sheriff jointly, with like effect, 
 as if his was the first warrant. (Co. Civ. Proc. § 701), 
 
 Sec. 4. Rights of Third and Other Attaching Creditors. 
 
 Where there are more than two warrants of attach- 
 ment against the same defendant, the plaintiffs in the 
 third and each subsequent warrant, have, according to 
 their respective priorities, the same rights and privi- 
 leges, as against the plaintiffs in all senior warrants, 
 which tlie plaintiff in the second warrant has, as against 
 
ATTACHMENT. 69J 
 
 the plaintiff in tlie first, and are subject to tlie same 
 duties and liabilities ; except that a second extension of 
 the time, within which to furnish an undertaking to 
 prevent the release of a foreign vessel, or a share or 
 interest therein, shall not be granted. And the plain- 
 tiffs in two or more junior warrants of attachment, may 
 by agreement among themselves, take jointly, and for 
 their common benefit, any proceedings permitted by title 
 three, of chapter seven of the code of civil procedure to 
 be taken, by the plaintiff in a second or subsequent war- 
 rant of attachment; provided, that it does not inter- 
 fere with the preferential or other rights of an inter- 
 mediate plaintiff. (Co. Civ. Proc. § 705). 
 
 ARTICLE VI. 
 
 PROCEEDINGS AFTER JUDGMENT. 
 
 SECTION. 
 
 1. Execution. 
 
 2. Judgment, how enforced. 
 
 Sec. 1. Execution. 
 
 Where a levy, under a warrant of attachment in an 
 action, has been made, an execution against property, 
 upon a final judgment in favor of the plaintiff therein, 
 recovered after the expiration of the term of oflftce of 
 the sheriff Avho made the levy, must nevertheless be 
 directed to and executed by that sheriff, unless another 
 person is designated by law to complete the unfinished 
 business pertaining to his office; or in that case, to the 
 person so designated. (Co. Civ. Proc. § 706). The 
 execution should be special in form. If directed to a 
 sheriff who is out of office, it should be directed to him 
 as late sheriff. {McKay v. Harroicer, 27 Barb. 463). 
 The execution should recite the attachment and the pro- 
 ceedings under it, and should direct the sale of the 
 property as provided in section thirteen hundred and 
 seventy of the code of civil procedure, to which refer- 
 ence is made. The requirements of this section are 
 peremptory, and an execution, not in accordance with 
 its provisions, is void and ineffective to pass a good 
 
692 PRACTICE. 
 
 title to the property sold thereunder. {Place v. Biley, 
 98 N. Y. 1). Issuing a general execution, destroys the 
 efficacy of a levy under attachment, as has been noted 
 heretofore. {Peetsch v. Sominers, 31 App. Div. 255). 
 If the defendant dies, after the allowance of the war- 
 rant, but before a judgment, the right to order an execu- 
 tion upon the judgment, is with the court in which the 
 action is pending, and not with the surrogate. 
 [Thacher v. Bancroft, 15 Abb. Pr. 243). 
 
 Sec. 2. Judgment, How Enforced. 
 
 Where an execution against property is issued upon 
 a judgment for the plaintiff, in an action in which a 
 warrant of attachment has been levied, the sheriff must 
 satisfy it as follows: 
 
 1. He must pay over to the plaintiff all money at- 
 tached by him, and all proceeds of all sales of perish- 
 able property, or of any vessel, or share, or interest 
 therein, or animals, sold by him, or of any debts, or 
 other things in action, collected or sold by him; or so 
 much thereof as is necessary to satisfy the judgment. 
 
 2. If any balance remains due, he must sell under 
 the execution, the other personal property attached, or 
 so much thereof as is necessary; including rights or 
 shares in the stock of an association or corporation, or 
 a bond or other instrument for the payment of money, 
 executed and issued with the interest coupons annexed, 
 if any, by a government, state, county, public officer, or 
 municipal or other corporation, which is in terms negoti- 
 able, or payable to the bearer or holder, the principal 
 whereof is not then payable ; but not including any other 
 debt or thing in action. If the proceeds of that property 
 are insufficient to satisfy the judgment, and the execu- 
 tion requires him to satisfy it out of any other personal 
 property of the defendant, he must sell the personal 
 property, upon which he has levied by virtue of the 
 execution. If the proceeds of the personal property, ap- 
 plicable to the execution, are insufficient to satisfy the 
 judgment,'the sheriff must sell, under the execution, all 
 the right, title, and interest, which the defendant had 
 in the real property attached, at the time when the 
 
ATTACHMENT. 693 
 
 notice was filed, or at any time afterwards, before re- 
 sorting to any other real property. 
 
 3. If personal property attached belonging to the de- 
 fendant, has passed out of the hands of the sheriff 
 without having been sold or converted into money, and 
 the attachment has not been discharged as to that prop- 
 erty, he must, if practicable, regain possession thereof; 
 and, for that purpose, he has all the authority which 
 he had, to seize the same under the warrant. A person 
 who wilfully conceals or withholds such property from 
 him, is liable to double damages, at the suit of the party 
 aggrieved. 
 
 4. Until the judgment is paid, he may collect the 
 debts and other things in action attached, and prose- 
 cute any undertaking, which he has taken in the course 
 of the proceedings, and apply the proceeds thereof to 
 the payment of the judgment. 
 
 5. At any time after levying the attachment, the 
 court upon the petition of the plaintiff, accompanied 
 with an affidavit, specifying fully all the proceedings 
 of the sheriff, since the levy under the warrant, the 
 property attached, and the disposition thereof; and the 
 affidavit of the sheriff, showing that he has used due 
 diligence in endeavoring to collect the debts and other 
 things in action attached, and that a portion thereof 
 remains uncollected; may direct the sheriff to sell the 
 remaining portion upon such terms, and in such man- 
 ner, as it thinks proper. Notice of the application must 
 be given to the defendant's attorney, if the defendant 
 appeared in the action. If the summons was not per- 
 sonally served on the defendant, and he did not appear, 
 the court may make such order, as to the service of 
 notice, as it thinks proper; or may grant the applica- 
 tion without notice. (Co. Civ. Proc. § 708). In an ac- 
 tion against a foreign Corporation which does not ap- 
 pear, but whose property has been attached, an order 
 may be made requiring a person owing a debt to it, or 
 having its property in his possession to pay it to the 
 plaintiff on account of the judgment. {Chandler v. 
 City of Fond du Lac, 56 How. Pr. 449) . Where a defend- 
 ant who has not appeared, is a non-resident of the state, 
 
694 PRACTICE. 
 
 or a foreign corporation, and the summons was served 
 without the state, or by publication, pursuant to an 
 order obtained for that purpose, as prescribed in chap- 
 ter five of the code of civil procedure, the judgment can 
 be enforced only against the property which has been 
 levied upon, by virtue of the Avarrant of attachment, 
 at the time when the judgment is entered. But this 
 section does not declare the effect of such a judgment, 
 with respect to the application of any statute of limita- 
 tion. (Co. Civ. Proc. § TOT). This section incorporates 
 itito the statute, the same rule which has been estab- 
 lished by the supreme court of the United States. {.Pen- 
 noyer v. Isef, 95 U. S. T14). 
 
 AKTICLE VII. 
 
 PROCEEDINGS AFTEK WARRANT HAS BEEN VACATED, OK 
 ATTACHMENT DISCHARGED. 
 
 Where a warrant of attachment is vacated or an- 
 nulled, or an attachment is discharged, upon the appli- 
 cation of the defendant, the sheriff must, except in a 
 case where it is otherwise specially prescribed by law, 
 deliver over to the defendant, or to the person entitled 
 thereto, upon reasonable demand, and upon payment of 
 all costs, charges, and expenses, legally chargeable by 
 the sheriff, all the attached personal property remain- 
 ing in his hands, or that portion thereof, as to which 
 the attachment is discharged or the proceeds thereof, 
 if it has been sold by him. (Co. Civ. Proc. § T09). A 
 warrant of attachment against property is said to be 
 "annulled," when the action in which it was granted, 
 abates or is discontinued; or a final judgment, rendered 
 therein in favor of the plaintiff, is fully paid; or a final 
 judgment is rendered therein in favor of the defendant. 
 But, in the case last specified, a stay of proceedings sus- 
 pends the effect of the annulment, and the reversal or 
 vacating of the judgment revives the warrant. (Co. Civ. 
 Proc. § 3343, subd. 12). Where judgment has been en- 
 tered on a verdict directed for the defendant, and an 
 appeal taken, and an undertaking given staying pro- 
 
ATTACHMENT. 695 
 
 ceedings upon the judgment pending the appeal, the 
 court is powerless, by virtue of the provisions of section 
 3343, subdivision 12 to vacate the attachment. {Henri/ 
 V. Salisburi/, 33 App. Div. 293). The discharge of an 
 attachment by the giving of an undertaking does not 
 invalidate the attachment at all; the attachment still 
 lives, the undertaking being substituted for the levy, 
 and the defendant must, therefore, pay the sheriff's 
 fees in order to be entitled to a return of his property. 
 {Lawlor v. Magnolia Metal Co., 2 App. Div. 552; app. 
 dismissed, 149 N. Y. 591). Of course, where the at- 
 tachment is vacated the rule is otherwise and no sheriff's 
 fees need be paid. ( Upton v. Elec. Cons. Co., 89 Hun, 
 502) . Where the sheriff is required by title three of chap- 
 ter seven of the code of civil procedure, to deliver at- 
 tached property, or the proceeds thereof, to the defend- 
 ant, he must also deliver to him, unless otherwise spec- 
 ially directed by the court or judge, all books of account, 
 vouchers, evidences of debt, muniments of title or other 
 papers, relating to the property, either real or personal, 
 or to its proceeds ; together with all undertakings relat- 
 ing thereto, which he has taken in the course of the pro- 
 ceedings, and which have not been fully satisfied ; except 
 an undertaking given by the defendant, upon the dis- 
 charge of property. He must also deliver a written as- 
 signment duly acknowledged, of each undertaking so 
 delivered, and of each other instrument, to which the 
 defendant is thus entitled, an assignment of which is 
 necessary to perfect or protect the defendant's title 
 thereto. The defendant must also, upon his own ap- 
 plication only, be substituted in place of the sheriff, or 
 the sheriff and the plaintiff jointly, in an action brought 
 as prescribed in title three of chapter seven aforesaid; 
 but the court or judge may impose, as a condition of 
 granting the order of substitution, such terms as justice 
 requires, with respect to indemnity and payment of 
 expenses. The defendant's rights with respect to prop- 
 erty attached and not disposed of, and an undertaking, 
 or other instrument to which he is thus entitled, are 
 the same as those of the sheriff while the warrant was 
 still in force, except where his rights are specially 
 
696 
 
 PRACTICE. 
 
 defined or regulated by law. (Co. Civ. Proc. § 710). At 
 any time after the warrant of attachment has been 
 vacated or annulled, or the attachment has been dis- 
 charged as to real property attached, the court may, in 
 its discretion, upon the application of any person ag- 
 grieved, and upon such notice as it deems just, direct 
 that any notice, filed for the purpose of attaching the 
 property, be canceled of record by the clerk of the 
 county where it is filed and recorded. The cancellation 
 must be made by a note to that effect, on the margin 
 of the record, referring to the order; and, unless the 
 order is entered in the same clerk's oflflce, a certified 
 copy thereof must, at the same time be filed therein. 
 (Co. Civ. Proc. § 711). Where a warrant of attach- 
 ment has been vacated or annulled, the sheriff must 
 forthwith file in the clerk's office, the warrant, with a 
 return of his proceedings thereon. Upon the applica- 
 tion of either party, and proof of the sheriff's neglect, 
 the court may direct him so to do, forthwith, or within 
 a specified time. (Co. Civ. Proc. § 712). 
 
CHAPTER XVII. 
 
 RECEIVERS AND OTHER PROVISIONAL REMEDIES. 
 
 ARTICLE I Receiver. 
 
 ARTICLE II . . . Wlien and in what oases appointed. 
 ARTICLE III. .Rights and liabilities of receiver. 
 ARTICLE IT. .Receivers of corporations. 
 ARTICLE V... Deposit, delivery or conveyance. 
 ARTICLE VI.. General provisions. 
 
 ARTICLE I. 
 
 RECEIVER. 
 
 SECTION. 
 
 1. Who may be receiver. 
 
 2. Double receiver. 
 
 3. Appointment. 
 
 Sec. 1. Who may be Receiver. 
 
 The preservation of the fund is the main, if not the 
 sole object of the receiversliip. The court itself has 
 the care of the property in dispute. The receiver is the 
 officer of the court. It is his duty to act in all things 
 with a vie^y to the equitable rights of all parties inter- 
 ested, and to dispose of the property under the orders 
 of the court only. And so far from its being his duty 
 to act upon the advice of the particular parties who 
 procured his appointment, or of their counsel, he is 
 bound in all cases of doubt, and especially of conflict 
 of interest of claim, to take the direction of the court; 
 and he will be allowed to obtain counsel for himself. 
 (Lottimer v. Lord, 4 E. D. Smith, 183). When a re- 
 ceiver is appointed in a suit, he is appointed for the 
 benefit of such of the parties as it shall afterwards ap- 
 pear were entitled to the funds in controversy ; but not 
 for the benefit of strangers to the suit. {Howell v. 
 
698 
 
 PRACTICE. 
 
 Ripley, 10 Paige 43). It may be stated as a general 
 rule that any person of full age who possesses the re- 
 quisite ability, and can give the necessary security, may 
 be appointed a receiver, unless he is in some way spe- 
 cially disqualified from acting in such capacity. 'Bj 
 statute, trust companies may be appointed receivers 
 by a court having jurisdiction, and they need not give 
 security, unless specially required to \)j the court. ( The 
 Banking Law §§ 156, subd. 6, 158). Where a general 
 agent was specified in an agreement as the party to 
 close up the business, unless objected to by both parties ; 
 he was held to be a proper receiver, as against the ob- 
 jections of one of the parties. (Hanover F. Ins. Co. 
 V. Germania F. Ins. Co., 33 Hun, 539). On a voluntary 
 dissolution, a stockholder may be appointed receiver 
 (In Re Eagle Iron Works, 8 Paige, 385) ; and in a 
 voluntary assignment of a bank, one of the officers of 
 the bank was held not to be unlawfully appointed re- 
 ceiver; although there should be special reasons shown 
 to warrant such an appointment. (In re Bower ij Bank, 
 16 How. Pr. 56). A creditor may be appointed a re- 
 ceiver of his debtor's property. [Chamberlain v. Green- 
 leaf, 4 Abb. N. C. 92). 
 
 No person holding the office of clerk, deputy clerk, 
 special deputy clerk, or assistant in the clerk's office, 
 of a court of record, or of the surrogate's court within 
 the county of New York, shall hereafter be appointed 
 by any court or judge, a receiver, except by the written 
 consent of all the parties to the action or special pro- 
 ceeding, other than parties in default for failure to 
 appear or to plead. (Co. Civ. Proc. § 90). But where 
 a clerk of the court, in which a proceeding was pending, 
 was appointed receiver in supplementary proceedings, 
 in violation of this section, it was held to be a mere 
 irregularity, which could not be set up by third persons, 
 or in a collateral proceeding. {Moore v. Taijlor, 40 
 Hun, 56). A non-resident, or a temporary resident is 
 not a competent person to be appointed receiver. 
 {Chamherlahi v. Grecnleaf, 4 Abb. N. C. 92). An offi- 
 cer of an insolvent bank is not to be appointed its re- 
 ceiver. {Atty. Gen. v. Bank of Columbia, 1 Paige, 511; 
 
RECEIVERS AND OTHER PROVISIONAL REMEDIES. 699 
 
 aifd. 3 Wend. 588). The court will not appoint a party 
 to the action as a receiver, except under special cir- 
 cumstances {Fenn v. Bolles, 7 Abb. Pr. 202) ; nor will 
 one be appointed, who on account of his position, stands 
 in an improper relation to the cause, as a party to an 
 assignment which was impeached for fraud. {Smith 
 V. N. Y. Con. Stage Co., 28 How. Pr. 208). Where a 
 stranger procures himself to be appointed a receiver, 
 and obtains control of the fund in controversy, without 
 the consent, and contrary to the wishes of the parties, 
 he is an intruder and a trespasser, and will be held to 
 strict responsibility. {O'Mahoney v. Belmont, 62 N Y. 
 leS3). Any person having an interest, and feeling that 
 he would be injured, or his interest endangered by the 
 appointment of an improper person, may immediately 
 apply for a change of receiver, and an injunction on his 
 acts. {Matter of Bowery Bank, 16 How. Pr. 56). 
 
 See. 3. Double Receivers. 
 
 In view" of the fact, that the appointment of a re- 
 ceiver has for its main, if not its sole object, the preser- 
 vation of the fund, the question whether he shall be ap- 
 pointed upon the motion of one plaintiff or another, 
 (each seeking to accomplish the same result, the preser- 
 vation of the fund and its ultimate distribution among 
 the creditors) ceases to be of any importance. {Lotii- 
 mer v. Lord, 4 E. D. Smith, 183). It was said in an 
 early chancery case that it was not the proper practice 
 to appoint separate receivers of the same property, in 
 different suits, but that the receivership in the first suit 
 should be extended to the second. {Howell v. Ripley, 
 10 Paige, 43). Where a junior mortgagee obtains the 
 appointment of a receiver of the rents, and profits in 
 a suit instituted by him to foreclose his mortgage, no 
 other receivership having been asked for, there is no 
 doubt that he secures the right to such rents and profits 
 as against even a prior mortgagee, {Ranney v. Peyser, 
 83 N. Y. 1), but when the latter begins foreclosure pro- 
 ceedings on his mortgage and asks for the benefit of a 
 receivership, such rents and profits enure to his ad- 
 vantage from the time his request is granted by the 
 
700 PRACTICE. 
 
 court. {Howell v. Ripley, supra). It is rather im- 
 material whether the court adopts the machinery of 
 extending one receivership or that of superseding the 
 former receiver hy the appointment of another, to ac- 
 complish this division, hut in many instanes of later 
 date than Howell v. Ripley, a separate receiver has 
 superseded the one appointed on the petition of the 
 junior mortgagee. (Holland Trust Co. v. Cons. Gas 
 etc. Co., 85 Hun, 454; Putnam v. Henderson, Hull & 
 Co., 49 App. Div. 361). In the case last cited the court 
 in its opinion speaks of an extension of the receivership, 
 but the record shows the appointment of a separate re- 
 ceiver. In cases of this sort a separate receiver may 
 well he appointed, for the practical effect of granting 
 a receivership in the second action is to supersede the 
 receivership already existing. But where the receiver- 
 ship in the second action does not have that effect, it 
 is plainly the correct practice to extend the existing 
 receivership; so where a receiver of a corporation had 
 been appointed in voluntary dissolution proceedings, it 
 was held error to appoint a separate receiver in a suit 
 to foreclose a chattel mortgage, the proper practice 
 being to extend the receivership already existing 
 {Farmers' Loan & Trust Co. v. Hotel Brunswick Co., 
 12 App. Div. 626). Upon such an extension of a re- 
 ceivership the proper practice is to direct the receiver 
 to hold the funds subject to the further order of the 
 court — not to determine the rights of the respective 
 claimants. {PiUnam v. Henderson, Hull & Co., supra; 
 Matter of Busch Brewing Co., 41 App. Div. 204). A 
 receiver of the rents and profits of mortgaged premises, 
 appointed upon petition of the mortgagee in a fore- 
 closure suit, is entitled to receive such unpaid rents as 
 against a receiver of the mortgagor, appointed in supple- 
 mentary proceedings, even though the rents became due 
 prior to the appointment of the former and after that 
 of the latter. {Donson & Miller Mfg. Co. v. Canella, 
 89 Hun, 21). The fact that a receiver of the judgment 
 debtor's property has already been appointed in pro- 
 ceedings supplementary to execution, does not bar an 
 application for a receiver in a judgment creditor's 
 
RECEIVERS AND OTHER PROVISIONAL REMEDIES. 701 
 
 action ; and does not make it necessary that the same re- 
 ceiver should be appointed, in granting it. (State Banh 
 V. Gill, 23 Hun, 410) . The plaintiff may have a receiver 
 appointed before trial, even when other receivers of the 
 same property have been previously appointed by other 
 courts in separate actions; but the latter appointment 
 must be subject to the exercise of the powers of the pre- 
 viously appointed receiver, or any other prior judicial 
 authority under which the funds in controversy are 
 held. And when the prior receiverships have become 
 functus officio, such subsequent receiver takes the fund 
 or any remaining portion of it, or so much of it as is un- 
 disposed of by the court. [Bailey v. Belmont, 10 Abb. 
 Pr. N. S. 270; O'Mahoney v. Belmont, 62 N. Y. 133). 
 A permanent receiver appointed by final judgment 
 supersedes a temporary receiver appointed in another 
 suit to preserve the property until final judgment. 
 (Glines v. Binghamton Trust Co., 68 Hun, 511). 
 Where there is a controversy among creditors regard- 
 ing the assets, and a receiver has been appointed in a 
 suit brought by part of the creditors, and other creditors 
 bring a suit, seeking to apply the assets to the exclusion 
 of the rights claimed by the former, a second receiver 
 will not be appointed, unless the first receiver, or the 
 creditors he represents are made parties, and have an 
 opportunity to be heard. (Bank of Mitt. Bedemp. v. 
 Stiirgis, 9 Bosw. 608). Where two receivers were ap- 
 pointed on the same day, and it became a question of 
 legal priority, which the court was bound to settle, it 
 was held that the court would inquire into the fractions 
 of a day on which the two receivers were appointed, to 
 determine that question. {People v. Central City Banh, 
 53 Barb. 412). 
 
 See. 3. Appointment. 
 
 The receiver is appointed by the court. (Co. Civ. 
 Proc. § 713). A receiver of rents and profits must be 
 appointed by the court, and not by a judge at chambers. 
 {Ireland v. Nichols, 7 Robt. 476). The appointment of 
 a receiver, like other provisional remedies, is discretion- 
 ary with the court, and should be governed by the cir- 
 
702 
 
 PRACTICE. 
 
 cumstances of each case. (Fellows v. Heennans, 13 
 Abb. Pr. N. S. 1). An order appointing a receiver is 
 not appealable to the court of appeals, if there was 
 power in the court below to make the appointment. 
 (Id.; DeniJce v. N. T. & R. Line etc. Co., 80 N. Y. 599). 
 But an appeal may always be taken to the appellate 
 division. (Co. Civ. Proc. § 1347). Where the code of 
 civil procedure authorizes the court to appoint a receiver 
 etc., it may direct a reference to one or more persons, 
 designated in the order, either to make the appoint- 
 ment, to to report the facts to the court, for its action 
 thereupon. And where according to the practice of 
 the court of chancery, on the thirty-first day of Decem- 
 ber, eighteen hundred and forty-six, a matter was re- 
 ferrable to the clerk, or to a master in chancery, a court 
 having authority to act thereupon, may direct a refer- 
 ence to one or more persons designated in the order, 
 with the powers which were possessed by the clerk, or 
 the master in chancery, except where it is otherwise 
 specially prescribed by law. (Co. Civ. Proc. § 827). 
 The selection and appointment of a receiver and taking 
 security from him, is a proper matter for a reference. 
 [Wetter v. ScJilieper, 7 Abb. Pr. 92). Where the refer- 
 ence is to report a proper person to be appointed, an ap- 
 pointment by the court is necessary; but where the 
 reference is to appoint a receiver and take security, the 
 appointment by the referee needs no confirmation. (In 
 re Eagle Iron Works, 8 Paige, 385). A receiver is 
 not usually appointed until after the service of the sum- 
 mons (McCarthy v. Peake, 9 Abb. Pr. 164) ; and not 
 while the summons is publishing, except under special 
 circumstances (Sandford v. Sinclair, 3 Edw. 393; affd. 
 8 Paige, 373) ; and an order to show cause why a re- 
 ceiver should not be appointed, served before the action 
 is commenced, is held to be irregular. (Kattenstroth 
 V. Astor Bank, 2 Duer, 632). Where the appointment 
 of a receiver has been denied, leave to renew the applica- 
 tion will be granted upon new evidence in support of 
 the application. (Devlin v. Hope, 16 Abb. Pr. 314). 
 Consent to the appointment of a receiver is a waiver of 
 all irregularities in such appointment. (Powell v. 
 
RECEIVERS AND OTHER PROVISIONAL REMEDIES. 703 
 
 Waldron, 89 N. Y. 328). The court may, at any time 
 before the appointment of a receiver, which has been 
 directed, is consummated, revoke such appointment, and 
 appoint another. {Siney v. N. Y. Con. Stage Co., 18 
 Abb. Pr. 435). 
 
 ARTICLE II. 
 
 WHEN AND IN WHAT CASES APPOINTED. 
 
 SECTION. 
 
 1. Before final judgment. 
 
 2. By or after final judgment. 
 
 Sec. 1. Before Final Judgment. 
 
 Subdivision 1. — In What Cases. 
 
 In addition to the cases, where the appointment of a 
 receiver is specially provided for by law, a receiver of 
 property, which is the subject of an action, in the su- 
 preme court or a county court, may be appointed by the 
 court, before final judgment, on the application of a 
 party, who establishes an apparent right to, or interest 
 in, the property, where it is in the possession of an ad- 
 verse party, and there is danger that it will be removed 
 beyond the jurisdiction of the court, or lost, materially 
 injured, or destroyed. (Co. Civ. Proc. § 713, subd. 1). 
 The language of this section is not prohibitory nor ex- 
 clusive, but it is permissive and declaratory; and the 
 courts still retain the general power of appointing re- 
 ceivers as at common law, by virtue of section four of 
 the code of civil procedure, which provides that each of 
 the courts therein mentioned "shall continue to exer- 
 cise the jurisdiction and powers now vested in it by law, 
 according to the course and practice of the court, except 
 as otherwise prescribed in this act." This provision of 
 the code continues to the supreme court the same powers 
 to appoint receivers, as was inherent in the court of 
 chancery before 1848 ; and, following that construction, 
 it was held that the court has still the power to appoint 
 a receiver of the rents and profits of mortgaged prop- 
 45 
 
704 PRACTICE. 
 
 erty, although such receiver was not provided for in the 
 mortgage (Hollenbeck v. Donnell, 94 N. Y. 342), and 
 regardless of the character of the parties before it, 
 whether individual or corporate. {Decker v. Gardner, 
 124 N. Y. 334) . The word "property" as used in the sec- 
 tion above quoted, includes the rents, profits, or other 
 income, and the increase of real, or personal property. 
 (Co. Civ. Proc. § 713). The court will not interfere by 
 the exercise of the extraordinary power, where the party 
 has a full and adequate remedy at law. It is a high 
 power; and it is never exercised, if any other safe and 
 expedient remedy can be used {Nat'l Union Bk. v. Riger, 
 38 App. Div. 123) ; and never where irreparable injus- 
 tice might follow. The exercise of the power, therefore, 
 must always depend upon the sound discretion of the 
 court in each particular case. There is no case in which 
 the court appoints a receiver merely because it can do 
 no harm. {Corey v. Long, 43 How. Pr. 492). The per- 
 son seeking the relief, must show that he has at least a 
 probable, or an apparent interest in the property, and 
 that there is danger of his interest in the property being 
 lost or impaired. {Goodyear v. Betts, 7 How. Pr. 187), 
 Where a defendant has absconded to prevent service of 
 summons, or has left the state, and is not expected to 
 return for several months, and has no place of business, 
 or residence where service can be made on him, a re- 
 ceiver may be appointed, under this section. {People 
 V. Xorton, 1 Paige, 17). To authorize the appointment 
 of a receiver, it must appear that the plaintiff has a 
 cause of action, and that recovery is probable, and that 
 the benefit of such recovery will be either wholly lost, 
 or substantially impaired, by reason of the defendant's 
 insolvency, if the receiver is not appointed. {Gregory 
 V. Gregory, 33 Super. 1; Waeher v. Rosenstein, 6 App. 
 Div. 447). A plaintiff cannot claim a receiver of prop- 
 erty in which he has no interest {Smith v. Wells, 20 
 How. Pr. 158) ; nor of property abroad, belonging to per- 
 sons not within the jurisdiction of the courts of this 
 state {Field v. Ripley, 20 How. Pr. 26) ; nor in actions 
 to recover real property, unless equitable grounds ap- 
 pear, entitling plaintiff to rents and profits as such, or 
 
RECEIVERS AND OTHER PROVISIONAL REMEDIES. 705 
 
 unless sequestration is necessary to his protection 
 {People V. Mayor, etc., 10 Abb. Pr. Ill; Mitchell v. 
 Barnes, 22 Hun, 194) ; nor in an action to recover the 
 possession of real estate, from one in possession under 
 a contract of sale {(J-urnsci/ v. Poircrs, 9 Hun, 78) ; nor 
 in an action to stay waste {Robinson v. Presn-ick, 3 
 Edw. 246), nor in an action, under section 2653a, of 
 the code of civil procedure, to determine the validity of 
 a will. {Johnson v. Cochrane, 91 Hun, 163). It was 
 held in Wehb v. Van Zandt (16 Abb. Pr. 314, note), that 
 in an action to foreclose a mechanic's lien, a receiver of 
 the rents and profits might be appointed pendente lite; 
 but in the case of Meyer v. Scchuld (11 Abb. Pr. N. S. 
 326, note), such appointment was held to be improper; 
 while in the still later case of Gallagher v. Karns (27 
 Him, 375 ; S. 0., 15 Wk. Dig. 217) , decided in the general 
 term, it was held that under chapter four hundred and 
 forty, laws of 1880, such an appointment is proper, and 
 a receiver pendente lite may be appointed in such an 
 action. The lien law (laws 1897, chapter 418), and 
 chapter 419, of the laws of 1897, repealed all of the pro- 
 visions of chapter 440, of the laws of 1880. But, inas- 
 much as the last mentioned statute added provisions to 
 the code of civil procedure (§§ 3399, 3400) for an ac- 
 tion to foreclose the lien, much of the court's reasoning 
 in Gallagher v. Karns {supra), based upon a similar 
 provision of the act of 1880, seems applicable. Before 
 the appointment of a receiver, there should appear some 
 real necessity for it; and it is not sufficient, in the ap- 
 plication for a receiver of the property of a partnership, 
 to simply show that the partners quarreled between 
 themselves. {McElccy v. Lcavs, 76 N. Y. 373). Nor 
 can one partner as plaintiff, have a receiver of the part- 
 nership property appointed, where his right does not 
 clearly appear, and where the fund is not shown to be 
 in danger {Goiilding v. Bain, 4 Sand. 716) ; and the rule 
 is the same, of course, as to the personal representa- 
 tives of a deceased partner. {Booth v. Smith, 79 Hun, 
 384). The court may, by an order, or by the interloc- 
 utory or final judgment in a judgment creditor's action, 
 appoint a receiver of any or all of the property of the 
 
706 
 
 PEACTICE. 
 
 judgment debtor; and may direct the judgment debtor, 
 or any other defendant in the action, to convey or deliver 
 to the receiver, as justice requires, any property, real or 
 personal, book, voucher, or other jjaper, or to execute any 
 instrument, which it deems necessary, for perfecting or 
 assuring the receiver's title or possession. (Co. Civ. 
 Proc. § 1877). A receiver can be appointed in a cred- 
 itor's suit after the defendant's death where the action 
 was begun before defendant's death (Brown v. Xichols, 
 9 Abb. Pr. N. S. 1; 42 N. Y. 26) ; but it is held that in a 
 creditor's action, a receiver should not be appointed 
 until the remedy at law has been exhausted {Starr v. 
 Ruthhone, 1 Barb. 70) ; and should be appointed only 
 for the specific property sought to be reached in the 
 action, {yatl. Union Bk. v. Rigcr. 38 App. Div. 123). 
 When a receiver has been appointed in such an action, 
 the assignment to him becomes void, as soon as the ob- 
 ject of the suit is accomplished; and the property re- 
 verts to the grantor without a re-assignment. (Ander- 
 son V. TreachreJl, 1 Edm. 201). The appointment of a 
 receiver has been held proper in the following cases : 
 of an estate, assigned for the benefit of creditors, pend- 
 ing a proceeding to remove the assignee (Manning v. 
 Stern, 1 Abb. N. C. 409) ; of the property in the hands 
 of a trustee, where he is charged with violating his trust 
 (Boyd V. Murray, 3 Johns, Ch. 48), or in the hands of 
 'one sought, by the action, to be held as a constructive 
 trustee on account of fraud (Bird v. Lanphear, 92 Hun, 
 567) ; of the property of a limited partnership, which 
 has become insolvent, and which neglects to place its 
 assets in the hands of a proper person, to distribute 
 ratably among the creditors ; in which case any creditor 
 is entitled to have a receiver appointed (White niright 
 V. Stimpson, 2 Barb. 379) ; in an action to have dower 
 set off (Egan v. Walsh, 43 Super. 402) ; upon the closing 
 up of a partnership, where there is a right to dissolve, 
 in which case it is a matter of coiirse to appoint a re- 
 ceiver upon the application of either partner (Marten 
 V. Tan Schaiclv, 4 Paige, 479) ; and in such action to 
 dissolve a partnership, the appointment of a receiver 
 is proper, unless special circumstances are shown to 
 
RECEIVERS AND OTHER PROVISIONAL REMEDIES, 707 
 
 the contrary. (Llorens v. Costa, 5 Wk. Dig. 484). A. 
 receiver will not be appointed of a subsisting partner- 
 ship, unless it is evident that a dissolution will be 
 decreed. {Garretson v. Weaver, 3 Edw. 385). Where 
 fraud is shown, and the fund is in danger, a receiver 
 will be appointed. {Boyd v. M array, 3 Johns. Ch. 48). 
 In all cases of fraudulent trusts, the appointment will 
 be made on the application of a judgment creditor. 
 {Chautauqua Co. Bank v. TT7/(Ye, 6 N. Y. 236). A 
 remainder man has such an interest in the property as 
 will entitle him to have a receiver appointed, where the 
 life tenant fails to appropriate the rents to keep down 
 the taxes. {King v. King, 41 Super. 516). In order 
 to preserve the property from serious loss, the court 
 will appoint a receiver during the pendency of the ac- 
 tion for a partition {Pignolet v. Bushe, 28 How. Pr. 
 9) ; especially where it appears that such appointment 
 entered into the expectation and agreement of the 
 parties, prior to the commencement of the action 
 {Boicers v. Durant, 2 N. Y., St. Rep. 127) ; but in any 
 case it must be shown that such a step is necessary for 
 the protection of the party asking for the relief. {Bath- 
 mann v. Bathmann, 79 Hun, 477). Receivers in mort- 
 gage cases are allowed with great caution; only where 
 the security is actually inadequate, or where the rents 
 are pledged for the debt {Shotivell v. Smith, 3 Edw. 
 588) ; and it must clearly appear that the premises are 
 an inadequate security for the debt, and that the mort- 
 gagor or other person personally liable is insolvent 
 {Bnrlingame v. Parce, 12 Hun, 144; Ross v. Vernam, 
 6 App. Div. 246) ; it must also appear that the debt is 
 due, unless the rents and profits are specifically pledged. 
 {Banh of Ogdenshurgh v. Arnold, 5 Paige, 38). While 
 a clause in the mortgage stipulating for the appoint- 
 ment of a receiver of the rents and profits of the mort- 
 gaged premises, is entitled to consideration and weight 
 upon an application for such a receivership {Fletcher 
 V. Krupp, 35 App. Div. 586), courts of equity will not 
 enforce such provisions in a mortgage where it would 
 be inequitable or unconscionable to do so. {Degener 
 V. Stiles, 6 N. Y. Supp. 474). So, where the whole 
 
708 
 
 PRACTICE. 
 
 amount of the mortgage debt is not due, but a portion 
 thereof is due, and the property is so circumstanced that 
 a parcel of sufficient value to satisfy the amount due 
 can be separately sold, the receivership should be ex- 
 tended to such parcel only. [Hollenbeck v. Donnell, 
 94 N. Y. 342). A mortgagee has no claim as such to 
 the receipts of the rents and profits of the mortgaged 
 property; but in a proper case he may have a receiver 
 of the rents etc., appointed, who will be entitled to 
 collect and apply them in reduction of the mortgage 
 debt ; and in such a case, the receiver may be authorized 
 to collect such rents as have theretofore accrued, but 
 have not yet come to the hands of the owner of the 
 equity of redemption ; but not such as have been already 
 collected and are in the possession of such owner. 
 (WtjcJcoff V. Scofield, 98 N. Y. 475). The appointment 
 of a receiver in mortgage cases is entirely discretionary 
 with the court; and it is not obliged to exercise its 
 power to compel the owner to pay the rents and profits 
 to the receiver. {Rider v. Bagley, 84 N. Y. 461). In 
 case of a mortgage on chattels, which chattels are held 
 by the mortgagee, a receiver on the application of the 
 mortgagor will only be appointed where there is a press- 
 ing necessity for it, as where the mortgagee is irre- 
 sponsible, or is committing waste. {Patten v. Access. 
 Trans. Co., 4 Abb. Pr. 235). And if the mortgagee 
 establishes in such case that there is a balance due him, 
 the receiver will not be appointed. {Quiiin v. Brittain, 
 3 Edw. 314). In an action for the foreclosure of a 
 contract for the sale of land, brought against the orig- 
 inal purchaser and his grantee of a portion of the 
 premises, who has made improvements thereon, a re- 
 ceiver is properly appointed upon proof that the whole 
 premises are rapidly depreciating in value, and are 
 inadequate as security for the amount remaining due 
 on the contract of sale, and that the original purchaser 
 is insolvent. ( Smith v. Kelley, 31 Hun, 387 ) . In an 
 action for money had and received, a receiver should 
 not be appointed. {O'Malioneij v. Belmont, 62 N. Y. 
 133). Where a partner as plaintiff prays for a dissolu- 
 tion of the firm, the taking of an account, the appoint- 
 
REC?EIVEES AND OTHER PEOVISIONAL REMEDIES. 709 
 
 ment of a receiver, and that the defendants pay to him a 
 sum specified, if anything is found due to him; his 
 remedy is by application to the court for the appoint- 
 ment of a receiver, and a sale of the partnership effects. 
 (Kapj) X. Barflian, 1 E. D. Smith, 622). Where the 
 estate of a decedent has been brought under the juris- 
 diction of the supreme court, by an action for partition 
 or distribution, or for the construction or establish- 
 ment of a will, the court may, upon the death of the sole 
 surviving executor, appoint a receiver of the estate, 
 pending the action, upon such terms and conditions, 
 and upon such notice to the parties interested, as the 
 court directs. (Co. Civ. Proc. § 1869). 
 
 In cases of trust, where the fund is in danger, a re- 
 ceiver may be demanded as a matter of right { Jenkins v. 
 Jenkins, 1 Paige, 243) ; as in the case of the fraud, mis- 
 conduct or negligence of an executor, administrator or 
 trustee (Id.; Middlcton v. DodsweU, 13 Ves. 266), or 
 pf his insolvency ; unless it clearly appears to have been 
 the intention of a testator to intrust his estate to an 
 insolvent executor (Langley v. Hawk, 5 Madd. 46), as 
 in such a case it is for the testator and not the court 
 to say who shall manage his estate. So it has been held 
 that the courts will not interfere with executors upon 
 slight grounds; but in the case of an administrator, 
 who is a creation of the court, even slight grounds of 
 apprehended danger will be ground for the court's 
 selecting a more suitable person to have charge of the 
 fund. \Middleton v. Dodsivell, 13 Ves. 266). Where 
 the property of infants, lunatics, or other persons 
 whollj', or partially incompetent to manage their affairs, 
 is in danger, the courts are always solicitous in guarding 
 such property, and if an action is brought in behalf 
 of, or against such a party, and the fund in controversy 
 is in danger, a receiver will be appointed; and in. the 
 case of an infant, the receiver will not be discharged 
 until the infant, after coming of age, has had a fair 
 opportunity of examining his accounts. {Matter of Van 
 Home, 7 Paige, 46). In proceedings for the appoint- 
 ment of a committee of a lunatic, a receiver may be 
 
710 
 
 PSACTICE. 
 
 appointed, until the question of lunacy is determined. 
 ^Matter of Heli, 3 Atk. 634). 
 
 Subdivision 2. — Application and Notice. 
 
 Upon application to the court for the appointment of 
 a receiver, the party must establish an apparent right 
 to, or interest in the property, and that there is danger 
 that such right or interest will be lost or impaired, 
 unless a receiver is appointed. (Co. Civ. Proc. § 713). 
 He may establish these facts in any of the usual ways of 
 presenting facts to the court, by a petition asking for 
 such appointment and reciting the necessary facts, or by 
 the pleadings, or by affidavits; it must appear that he 
 has a cause of action, and that recovery is probable, 
 and that the benefit of such recovery will be lost or 
 impaired, unless a receiver is appointed. {Gregory v. 
 Gregory, 33 Super. 1 ) . A receiver will not be appointed,, 
 unless facts are shown entitling plaintiff to a receiver, 
 even though his pleading contain in its demand for 
 relief, a request for such an appointment. {Dusenbury 
 V. Dusenbiiry, 2 McC. Civ. Proc. Rep. 91). The facts 
 are what give the court the right to appoint, and these 
 must be stated in the moving papers, and if the defend- 
 ant's answer contains allegations which show that plain- 
 tiff is not entitled to recover in his action, which facts 
 are not denied by the plaintiff, the court will refuse 
 to appoint a receiver. The application for a receiver- 
 ship differs from that for some of the provisional 
 remedies, in that there is not so strict a requirement 
 concerning positive statements in the affidavits or peti- 
 tion upon which the relief is asked; statements upon 
 information and belief, therefoi'e, made in a verified 
 complaint upon an application for the appointment of 
 a receiver, when not met or denied either by answer or 
 affidavits fully establish the facts alleged. {Holland 
 Trust Co. V. Cons. Gas etc. Co., 85 Hun, 454). The 
 practice on such motions is stated in a former chapter 
 on IMotions and Orders. 
 
 Notice of an application for the appointment of a re- 
 ceiver, in an action before judgment therein, must be 
 
EECBIVERS AND OTHER PROVISIONAL REMEDIES. 711 
 
 given to the adverse party, unless he has failed to appear 
 in the action, and the time limited for his appearance 
 has expired. But where an order for the publication of 
 the summons has been made, the court may, in its dis- 
 cretion, appoint a temporary receiver, to receive and 
 preserve the property, without notice, or upon a notice 
 given by publication, or otherwise, as it thinks proper 
 (Co. Civ. Proc. § 714). Where an advertisement for 
 defendant's appearance is running, a receiver should not 
 be appointed except under special circumstances (Sand- 
 ford V. Suicktir, 3 Edw. 393; affd. 8 Paige, 373); a 
 provision in a mortgage for the appointment of a re- 
 ceiver of the rents and profits seems to have been deemed 
 such "special circumstances." {Fletcher v. Krupp, 35 
 App. Div. 586; Citizens Bk. v. Wilder, 11 App. Div. 63). 
 By the section above quoted, it is necessary to give notice 
 of the application in every case, except the one speci- 
 fied in the section ; hence the decisions in a number of 
 cases before the code, that a receiver might under cer- 
 tain circumstances be appointed ex parte, are no longer 
 useful as authority; excepting that it has been held 
 that in an action to dissolve a partnership, a receiver of 
 the firm may be appointed upon the application of all the 
 resident partners without notice to a non-resident part- 
 ner. ( A Zford V. i?erA;e?e, 29 Hun, 633). In an applica- 
 tion to dissolve an express company, where the plaintiff 
 moved ou ex parte affidavits for a receiver to take charge 
 of the business and affairs of the company for the time 
 being ; it was held that the motion could not be granted, 
 unless by the affidavits it appeared beyond the possi- 
 bility of doubt, that in the final decision of the cause, 
 the relief prayed for in the complaint must be granted. 
 {Waterhunj v. MercJi. Vn. Ex. Co., 50 Barb. 157). 
 
 See. 2. By or After Final Judgment. 
 
 In addition to the cases, where the appointment of 
 a receiver is specially provided for by law, a receiver 
 of property, which is the subject of an action in the 
 supreme court or a county court, may be appointed by 
 the court, by or after the final judgment, to carry the 
 judgment into effect, or to dispose of the property, 
 
712 
 
 PKACTICE. 
 
 according to its directions; or after final judgment, to 
 preserve the property during the pendency of an appeal. 
 The word property includes the rents, profits or other 
 income, and the increase, of real or personal property. 
 (Co. Civ. Proc. § 713, subds. 2, 3). This section does 
 not refer to a receiver in supplementary proceedings; 
 that subject will be treated in connection with those 
 proceedings, in another volume. Where a judgment or 
 an order in a divorce or separation suit requires a hus- 
 band to provide for the children of the marriage or the 
 wife, and he fails to make any payment directed by 
 such a judgment or order, or to give security for the 
 various payments if ordered to do so, or to pay any 
 sum directed to be paid by him as a counsel fee to enable 
 his wife to carry on or defend the action, the court 
 may cause his personal property, and the rents and 
 profits of his real property to be sequestered, and may 
 appoint a receiver thereof. (Co. Civ. Proc. § 1772). 
 A receiver may be appointed pending an appeal from 
 a judgment, on appellant's motion, although the prop- 
 erty remains in his possession at the time of the appli- 
 cation, but which by the judgment appealed from was 
 awarded to the respondent. {Felloirs v. Heermans, 13 
 Abb. Pr. N. S. 1 ) . A receiver must always be asked for 
 by a creditor after judgment, where he has obtained 
 an injunction against the debtor, to protect his property, 
 and effectuate his lien. {Lent v. McQueen, 15 How. 
 Pr. 313; Wehb v. Overmann, 6 Abb. Pr. 92). Where 
 judgment has been rendered in an action of ejectment, 
 which adjudges a party entitled to rents and profits, 
 there is no legal objection to the appointment of a 
 receiver in an action for such rents and profits. {Sheri- 
 dan V. Jackson, 5 Wk. Dig. 443). But pending the 
 action of ejectment, the court will not appoint a receiver 
 of the rents and profits {Thompson v. Sherrarcl, 35 
 Barb. 593 ) ; except where such appointment is necessary 
 to protect the property, or its rents and profits, pendente 
 lite {People ex rcl v. i\Iai/or etc., 10 Abb. Pr. Ill) ; such 
 receiver cannot usually be appointed until after judg- 
 ment. {Burden v. Burdell, 54 How. Pr. 91). 
 
RECEIVERS AND OTHER PROVISIONAL REMEDIES. 713 
 
 AETICLE III. 
 
 RIGHTS AND LIABILITIES OF RECEIVERS. 
 
 SECTION. 
 
 1. Security. 
 
 2. What passes to. receiver. 
 
 3. Powers of receiver. 
 
 4. How controlled. 
 
 5. Liabilities. 
 
 6. Compensation. 
 
 7. How removed or discharged. 
 
 Sec. 1. Security. 
 
 A receiver appointed in an action or special pro- 
 ceeding, must, before entering upon his duties, execute 
 and file with the proper clerk, a bond to the people, 
 with at least two sufficient sureties, in a penalty fixed 
 by the court, judge, or referee, making the appointment, 
 conditioned for the faithful discharge of his duties as 
 receiver; and the execution of any such bond by any 
 fidelity or surety company authorized by the laws of 
 this state to transact business shall be equivalent to 
 the execution of said bond by two sureties. And the 
 court, or, where the order was made out of court, the 
 judge making the order, by or pursuant to which the 
 receiver was appointed, or his successor in office, may 
 at any time, remove the receiver or direct him to give 
 a new bond, with new sureties, with the like conditions. 
 But the foregoing provisions of this section do not 
 apply to a case where special provision is made by law, 
 for the security to be given by a receiver, or for in- 
 creasing the same, or for removing a receiver. A re- 
 ceiver who, having executed and filed a bond as pro- 
 vided for in this section, before presenting his accounts 
 as receiver, must give notice to the surety or sureties 
 on his official bond, of his intention to present his 
 accounts, not less than eight days before the day set 
 for the hearing on said accounting. The same notice 
 must be given to such surety or sureties where the 
 accounting is ordered on the petition of a person or 
 persons other than the receiver, and in no case shall 
 
714 PRACTICE. 
 
 the receiver's accounts be passed, settled, or allowed, 
 unless the said notice provided for in this section shall 
 have first been given to the surety or sureties on the 
 official bond of such receiver. (Co. Civ. Proc. § 715). 
 The security required from receivers of corporations 
 will be treated in article IV of this chapter, infra. 
 Where a receiver is appointed upon the death of the 
 sole surviving executor, he need give only such security,, 
 if any, as to the court seems proper. (Co. Civ. Proc. 
 § 1869). Where a trust company has been appointed 
 receiver, it need not give security, unless specially di- 
 rected by the court. (The Banking Law, 156, subd. 6, 
 158). The surety of a receiver is liable on his bond, 
 if the receiver fails to pay over money which he is 
 ordered to pay, though the receiver has been thereto- 
 fore removed. {Thompson v. McGregor, 45 Super. 197; 
 reversed on another point, -81 N. Y. 592). The sureties 
 cannot be held, however, until an accounting has been 
 had ; they are properly chargeable for no greater amount 
 than their principal is liable to pay, so it must be 
 deteriiiined on such accounting how much is actually 
 due from the principal. {French v. Dauchy, 134 N. Y. 
 543 ) . Where one of the sureties of the receiver became 
 insolvent, but it appeared that the property in the re- 
 ceiver's hands was small, and that the remaining surety 
 was responsible, a motion to compel new sureties was 
 denied ; and it was held, on appeal, to be a proper exer- 
 cise of discretion. {Haiilenbeck v. Heacock, 47 Super. 
 533). Where an order, entered by stipulation, required 
 only one surety instead of two as required by section 
 seven hundred and fifteen, such order is not void; but 
 the court may amend it so as to require two sureties 
 to be given. (Holmes v. McDowell, 15 Hun, 585; affd. 
 76 N. Y. 596). 
 
 Sec. 2. What Passes to Receiver. 
 
 A receiver, appointed pursuant to an order or a judg- 
 ment, in an action in the supreme court, or a county 
 court, or in a special proceeding for the voluntary 
 dissolution of a corporation, may take and hold real 
 property upon such trusts, and for such purposes as the 
 
RECEIVERS AND OTHER PROVISIONAL REMEDIES. 715 
 
 court directs, subject to the direction of the court, from 
 time to time, respecting the disposition thereof. (Co. 
 Civ. Proc. § 716). Where a receiver has been appointed 
 on the death of a sole surviving executor, he becomes 
 the successor in interest of the said executor, for the 
 purpose of carrying into effect the judgment or orders 
 of the court, in relation to the estate. (Co. Civ. Proc. 
 § 1869 ) . Where an order for the appointment of a re- 
 ceiver is followed by consummation, by giving the neces- 
 sary security, the estate of the judgment debtor vests 
 in the receiver, as of the date of the order {Wilson v. 
 Allen, 6 Barb. 542; Hatter of Christian Jensen Co., 128 
 N. Y. 550) ; the receiver's title, relating back, as it does 
 to the date of the order, defeats any levy or attachment 
 made between the date of the order and the giving of 
 the security {Steele v. Sturges, 5 Abb. Pr. 442; Matter 
 of Schuyler's Steam Tow Boat Co., 136 N. Y. 169; re- 
 versed on another point, 154 U. S. 256) ; but this fiction 
 of relation will not be used to work injustice, so where 
 a creditor had been prevented by a frivolous demurrer 
 from securing his judgment until after the appoint- 
 ment of the receiver, but an execution had been levied 
 before the filing of his bond, the receiver was declared 
 to hold the property subject to the lien of the judgment. 
 {Matter of Leicis & Fowler Mfg. Co., 89 Hun, 208). 
 Where an order was made for a receiver, and it was 
 referred to a referee to appoint a suitable person, which 
 order was appealed from, and a stay of proceedings ob- 
 tained, and meanwhile the defendants brought a suit 
 against the same corporation, and had another receiver 
 appointed; and the order in the first action was subse- 
 quently affirmed, and the receiver thereunder was ap- 
 pointed; the court held that the latter appointment 
 dated back to the time of the granting of the order of 
 reference, and gave the receiver so appointed a right to 
 possession of the assets to the exclusion of the other. 
 {Demlng v. 'N. Y. Marble Co., 12 Abb. Pr. 66). This 
 rule is not extended to cases where the reference is 
 merely to select a suitable person to be appointed by 
 the court, upon the report of the referee; the title of 
 the receiver in such case does not relate back to the 
 
716 
 
 PRACTICE. 
 
 order of reference, but only to the actual appointment 
 by the court. {Lottimer v. Lord, 4 E. D. Smith. 183). 
 The ordinary chancery receiver, i. e., a receiver pendente 
 lite, acquires no title, but only the right of possession 
 as the oflflcer of the court; the title remains in those 
 in whom it was vested when the appointment was made. 
 {Eeeney v. Home Ins. Co., 71 N. Y. 396 ; Decker v. Gard- 
 ner, 124 N. Y. 334). The order appointing a receiver 
 pendente lite, in a partnership case, effects no change 
 in the title to the property, unless the directions of 
 the order regarding the transfer and delivery to the 
 receiver are complied with, and the property is actually 
 made over to such receiver. {Fiiicke v. Fiinke, 25 Hun, 
 616). The appointment of a receiver is consummated 
 by his giving the security required by law or by the 
 court, and the personal estate and equitable interests 
 of the party of whom he is permanent receiver vest in 
 him, without any assignment, as of the date and by 
 virtue of the order of his appointment {Porter v. Wil- 
 liams, 9 N. Y. 142) ; but, unless he becomes the 
 successor in interest of a deceased executor (Co. Civ. 
 Proc. § 1869), or is specially directed by the court to 
 take and hold real estate (Co. Civ. Proc. § 716), the 
 title to real estate only vests in a receiver by virtue of a 
 conveyance to him by the debtor, which, however, the 
 court has power to compel; and such title is subject to 
 the liens existing at the time of such conveyance, of 
 all parties, excepting those who are parties to the action. 
 {Chautauqua Co. Bank v. Rislcy, 19 N. Y. 369). A 
 receiver of personal estate and of rents and profits, 
 appointed in an action by a married woman for divorce 
 in pursuance of the provisions of section 1772 of the 
 code of civil procedure (formerly 2 E. S. 148, § 60), 
 does not acquire title to the real estate of the husband. 
 {Foster v. Towushcnd, 60 N. Y. 203). A receiver's title 
 is subject to any attachments levied before his appoint- 
 ment. {Dunlop V. Patterson F. Ins. Co., 74 N. Y. 145). 
 A receiver gets no title to property assigned under the 
 assignment act of 1877 (Chap. 466, Laws 1877), where 
 the assignment was acknowledged and perfected before 
 Ms appointment. (IVicoZZ v. ySfpoiyers, 105 N. Y. 1). A' 
 
RECEIVERS AND OTHER PROVISIONAL REMEDIES. 717 
 
 receiver is not entitled to rents and profits, which have 
 been paid to the owner of the equity of redemption at 
 the time of his appointment. (Wyckoff v. Scofield, 98 
 N. Y. 475). A resident of the state, or a person having 
 an office within the state for the regular transaction 
 of business, in person, who becomes the owner of a 
 judgment by virtue of an appointment as a receiver, 
 may file with the clerk, in whose office the judgment 
 roll is filed, a notice of his appointment, and of his 
 ownership of the judgment, subscribed by him, adding 
 his place of residence, and if he resides without the 
 state, his office address. Such notice has the same 
 force and. effect, as a lien upon real property, as if 
 it was an assignment of the judgment. (Co. Civ. Proc. 
 § 1263). 
 
 Sec. 3. Powers of Receiver. 
 
 Every receiver of the property and effects of the 
 debtor, shall, unless restricted by the special order of 
 the court, have general power and authoritj^ 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, with- 
 out any unreasonable delay, to convert all the personal 
 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 col- 
 lect his costs, unless such suit is brought by order of the 
 court, or by the consent of all persons interested in 
 the funds in his hands. But he may, by leave of the 
 court, sell such desperate debts, and all other doubtful 
 
718 
 
 PRACTICE. 
 
 claims to personal property, at public auction, giving 
 at least ten days' public notice of the time and place 
 of such sale. (General Rule 77). No receiver shall 
 have power to employ more than one counsel, except 
 under special circumstances, and in particular cases 
 requiring the employment of additional counsel, and in 
 such cases, only upon special application to the court, 
 showing such circumstances by his petition or affidavit, 
 and on notice to the party or person on whose behalf 
 or application he was appointed. No allowance shall 
 be made to any receiver for expenses paid, or made, or 
 incurred in violation of this rule. (General Rule 81). 
 He should not employ an attorney who has been em- 
 ployed by either of the parties to the action in which 
 the receiver was appointed {Cuinmiiig v. Egerton, 9 
 Bosw. 684; Coreij v. Lo7ig, 12 Abb. Pr. N. S. 427) ; but 
 a stranger cannot object that the receiver has employed 
 an improper attorney. (Warren v. Spragiie, 11 Paige, 
 200 ) . The receiver, being the mere instrument or hand 
 of the court, has the right at any time to apply to the 
 court for instructions as to his duties under the order 
 of the court, and the court will advise and afford him all 
 necessary protection. A receiver is not to be disturbed 
 without leave of the court, and an action cannot be 
 brought against him without such leave. It is contempt 
 of court for a third person to attempt to deprive him 
 of his possession by force, or even by suit or other 
 proceeding, without the permission of the court by which 
 the receiver was appointed. {Corey v. Long, 12 Abb. 
 Pr. N. S. 427, 435). Where a receiver has been dis- 
 possessed by the act of a third party, not sanctioned 
 by the court, an attachment may issue against such 
 third party, and he may not only be punished for the 
 contempt, but compelled to restore the property. {Tsloe 
 V. Gibson, 7 Paige, 513). Unless appointed under a 
 special statute for a specific purpose, the receiver has 
 no authority or power, except such as is conferred upon 
 him by the order of his appointment, or the course and 
 practice of the courts. (Verplanck v. Mercantile Ins. 
 Co., 2 Paige, 438, 452). It is improper to give the 
 receiver a general power to sue, and defend actions 
 
RECEIVERS AND OTHER PROVISIONAL REMEDIES. 719 
 
 touching the receivership property in the order appoint- 
 ing him. (Witherhee v. ^Yitherl)ee, 17 App. Div. 181). 
 The court should, in each instance, pass upon the ques- 
 tion whether the claim is a proper one for the receiver 
 to press, or defend. {Troy Savings Blc. v. Morrison, 27 
 App. Div. 423 ) . He has no power to appoint a deputy 
 receiver, to be paid out of the fund, except by special 
 order of the court. (Corey v. Long, 12 Abb. Pr. N. S. 
 427). A receiver may become a consenting creditor, 
 under an order of a justice of the supreme court, in pro- 
 ceedings for an insolvent's discharge. (Co, Civ. Proc. 
 § 2153 ) . An order appointing a receiver has no extra- 
 territorial effect, and does not confer upon him author- 
 ity to go into a foreign jurisdiction, and take possession 
 of property by virtue of such order; but if the prop- 
 erty be voluntarily surrendered to him, he acquires the 
 right of possession, as against the party surrendering, 
 but not as against the creditors in the other state, who 
 still have the right to seize the property. {O'Callaghan 
 V. Fraser, 37 Hun, 483 ) . Where a receiver is appointed 
 upon the death of the sole surviving executor, he has, 
 subject to the direction of the court, the like power as 
 an administrator with the will annexed. (Co. Civ. 
 Proc. § 1869). A receiver cannot sue in a foreign jur- 
 isdiction for the property of the debtor. {Booth v. 
 Clark, 17 How. [U. S.J 322). It has been held that a 
 receiver of a foreign corporation may sue to recover 
 property situate within this state; subject to the quali- 
 fication that the foreign law shall not divest the title 
 of a citizen here which has been fairly acquired. {Bar- 
 clay V. Quicksilver Min. Co., 6 Lans. 25). The receiver 
 may continue an action commenced in the name of the 
 corporation {Albany City Ins. Co. v. Van Vranken, 42 
 How. Pr. 281), or appeal from an order in an action 
 against the corporation, either in his own name or that 
 of the corporation. (People v. Troy Steel & Iron Co., 
 82 Hun, 303). But the receiver has no better rights 
 than the corporation had. (Cutting v. Damerel, 88 N. 
 Y. 410) . The receiver of a national bank may sue one of 
 its directors, to recover damages sustained through 
 
 46 
 
720 PRACTICE. 
 
 gross negligence. {BrincJcerhojf v. BostwicJc, 88 N. Y. 
 52). A receiver appointed in a foreclosure suit, of the 
 rents and profits, has no power without an order of the 
 court, to lessen the funds in his hands by expenditures 
 for repairs. {Wyckoff v. Sco field, 103 N. Y. 630). A 
 receiver should not bring suit without the authority of 
 the court {Foster v. Townshend, 68 N. Y. 203) ; and a. 
 suit cannot be maintained by a receiver in sequestration 
 proceedings (Co. Civ. Proc. § 1772) without such leave 
 {Garden v. Garden, 34 Misc. 97) ; but where authorized 
 to bring an action he may bring it in such court as he 
 selects, unless directed by the court to bring it in a par- 
 ticular court. {Rockwell v. Merwin, 45 N. Y. 166). A 
 receiver cannot make a payment without the authority 
 of the court. {Duffy v. Casey, 7 Robt. 79). He cannot 
 continue the business unless he is authorized to do so. 
 {Appleton V. Welch, 20 Misc. 343). A receiver has 
 power to bring and maintain an action to set aside a 
 fraudulent transfer of, or charge upon, personal prop- 
 erty or the income thereof, made by the party of whose 
 estate he is receiver and for damages caused hj such acts 
 to his estate. (The Personal Property Law [Laws of 
 1897, Chap. 417] § 28; Porter v. Willkims, 9 N. Y. 142; 
 Manley v. Rassiga, 13 Hun, 288) ; and he may compel 
 rival claimants of funds in his hands to interplead 
 ( Winfield v. Bacon, 24 Barb. 154 ) ; and he may institute 
 summary proceedings to recover the possession of prem- 
 ises, after a refusal to pay rent. {Matter of Renwick, 
 1 Law Bull. 19). The death or removal of the receiver 
 does not abate an action, but it may be continued by 
 his successor. (Co. Civ. Proc. § 766). It is not a jur- 
 isdictional defect, under the provisions of this section, 
 that the action is continued in the name of the old re- 
 ceiver after his successor has been appointed; the case 
 may be prosecuted under the name of the original plain- 
 tiff unless one of the parties applied for a substitution. 
 (Hegewisch v. Silver, 140 N. Y. 414). The section 
 applies to statutory receivers only. (Id.). 
 
EBCEIVERS AND OTHER PROVISIONAL REMEDIES. 721 
 
 Sec. 4. How Controlled. 
 
 A receiver is an offlcer of the court, and is controlled 
 by it {Lottiiner v. Lord, 4 E. D. Smith, 183) ; and he is 
 entitled to its instructions as to his duty {Matter of 
 Jan AUoi, 37 Barb. 225) ; and he will be protected in 
 acts done in good faith and in obedience to an order of 
 the court. {Matter of Home Provident Hafety Fund 
 Asscn. 129 N. Y. 288; Pfeffer v. KJUui, 58 App. Div. 
 179). The receiver should follow the directions of the 
 court, and not those of the person at whose instance he 
 is appointed. {Lottiiner v. Lord, supra). Such direc- 
 tions are to be given only in the action in which he was 
 appointed. {Merritt v. Sparling, 88 Hun, 491). A 
 receiver, being the officer of the court, his duty is 
 merely to protect the property or fund during the liti- 
 gation; his acts are the acts of the court when duly 
 sanctioned; but when not so sanctioned, they have no 
 greater effect than those of unauthorized officers or 
 agents. {Negus v. City of Brooklyn, 1 Civ Proc. Rep, 
 471). He must act for the benefit of all parties inter- 
 ested in the action {Corey v. Long, 43 How. Pr. 492; 
 affd. 53 N. Y. 641) ; but on the application of one, not 
 a party to the suit, the court will give such directions 
 as may be necessary to protect his rights. {Vincent v. 
 Parker, 7 Paige, 65 ) . Where a receiver has been ordered 
 to pay money to a certain person, he cannot withhold it 
 because he has a personal claim against such person. 
 {McGarry v. Smith, 2 Law Bull. 7). The court may 
 compel a receiver to pay the wages of employees in pref- 
 erence to other debts. (The Labor Law [Laws 1897. 
 Chap. 415] § 8; Met. Trust Co. v. T. V. & C. R. R. Co'., 
 103 N. Y. 245). As the funds in the hands of the re- 
 ceiver are in the custody of the court, it is unnecessary 
 for a claimant to file a bill in equity, but payment may 
 be directed on a summary application. {People v. Bank 
 of Dansville, 39 Hun, 187) . The court may at any time, 
 either with or without the consent of the receiver, in 
 order to save litigation or expense, compel the settlement 
 of claims, or order a reference to ascertain the same. 
 '{Guard. Sav. Inst. v. Botpling Green Sav. Bank, 65 
 Barb. 275). A receiver, who is authorized by the court 
 
722 
 
 PRACTICE. 
 
 to sue, is bound to proceed with the action; and he 
 should not be restrained by an injunction issued out 
 of another court. {Wlnfield v. Bacon, 24 Barb. 154). 
 The court has jurisdiction of a suit against a receiver 
 begun without leave, and can grant such leave nuiiG 
 pro tune {Hirshfeld v. KalU.^clicr, 81 Hun, 606) ; but 
 suing a receiver without leave of the court is a contempt 
 (Taylor v. BaJdivin, 14 Abb. Pr. 166; Greene v. Odell, 
 43 App. Div. 608) ; but if the receiver when sued, fails to 
 apply to the court for protection, the action may be con- 
 tinued, as though permission to bring the same had 
 been obtained from the court. [Camp v. Bar net/, 4 Hun, 
 373) . The proper course, in case a receiver is sued with- 
 out the permission of the court, is for him to apply to the 
 court for an injunction restraining the plaintiff from 
 proceeding. (Matter of ScJiiiijIcr's Steam Toio Boat 
 Co., 136 N. Y. 169 ; reversed on another point, 154 U. S. 
 256; Gamp. v. Barnry, supra). But where an action 
 has been commenced, it should not be restrained simply 
 on the ground that a prior judgment has disposed of the 
 matters involved; but the receiver should be left to set 
 that fact up as a defense to the action. (Jay's Case, 6 
 Abb. Pr. 293 ) . Where a receiver begins a suit, and both 
 the plaintiff in interest and the defendant unite in a pe- 
 tition, stating that such suit is in fraud of justice, and 
 that fact is not denied, the court will order the suit dis- 
 continued. (Merritt v. Lyons, 16 Wend. 405). 
 
 See. 5. Liabilities. 
 
 As a general rule, a receiver is personally liable for 
 the costs of an action brought by him without leave of 
 the court, where judgment is recovered against him 
 (Smitlt. V. ^Voodru-lf, 6 Abb. Pr. 65) ; and especially is 
 this rule true when he brings the action, or defends it, 
 knowing that there is no sufficient evidence to sustain 
 his position (Bourdon v. Martin, 74 Hun, 246 ; affd. with- 
 out op., 142 N. Y. 669) ; or without having funds from 
 which costs could be paid ; that fact alone should be con- 
 clusive evidence of his bad faith, and should be deemed 
 suificient to charge him personally with the costs. (Gum- 
 ming V. Egerton, 9 Bosw. 684). Whei:e a receiver is^ 
 
RECEIVERS AND OTHER PROVISIONAL REMEDIES. 723 
 
 guilty of mismanagement or bad faitli in the prosecu- 
 tion or defense of an action, and judgment in said action 
 goes against the receiver, the court may direct that the 
 costs shall be paid by the receiver personally. ( Co. Civ. 
 Proc. § 3246). Before the receiver can be chai'ged per- 
 sonally with costs, he is entitled to notice of an applica- 
 tion for such relief. {First Natl. Bk. v. Washbitni^ 20 
 App. Div. 518). The liability of a receiver ceases imme- 
 diately upon his discharge ; and the court no longer can 
 exercise control over him, except through the ordinary 
 processes of the law available to all suitors {Matter of 
 N. Y. and W. U. Tel. Co. v. Jeioett, 115 N. Y. 166) ; but 
 where irreparable damage will ensue by reason of such 
 discharge, the court may, upon the petition of a cred- 
 itor, vacate the order of discharge, and reinstate the pe- 
 titioner to the position he occupied before the discharge. 
 (Id.). For a receiver's personal misconduct or neglect 
 he is personally liable ; but for the neglect or misconduct 
 of those employed by him in the performance of the du- 
 ties of his trust, he is liable only in his official capacity. 
 {Camp V. Barney, 4 Hun, 373). He is personally liable 
 for the conversion of property belonging to a third 
 party, although he takes it innocently and in the belief 
 that it belongs to his trust. {Fallon v. Egberts Woolen 
 Mills Co., 56 App. Div. 585). If he continues an action 
 commenced before his appointment, the fund in his 
 hands is chargeable with costs, as though he were 
 plaintiff {Columbian Ins. Co. v. Stevens, 37 N. Y. 536) ; 
 but if he brings an action in a matter personal to him- 
 self, he is personally liable. {Chapin v. Thompson, 4 
 Hun, 779 ) . A receiver who prosecutes an action under 
 the direction of the court, stands on the same footing in 
 respect to costs, as an executor or administrator; and 
 he is not liable for costs for not proceeding to trial, 
 where a good reason is shown for not trying, in pursu- 
 ance of notice or stipulation. {8t. John v. Denison, 9 
 How. Pr. 343 ) . If the receiver sues without leave of the 
 court, to recover a debt or claim or demand, to which 
 he is entitled as such, he is not personally liable for 
 costs unless ordered to pay costs by the court. {Marsh 
 V. Hussey, 4 Bosw. 614). If in a creditor's suit, the 
 
724 
 
 PRACTICE. 
 
 receiver sues in the debtor's name to recover prop- 
 erty, the creditor at whose instance the suit is brought,, 
 is liable for the costs, as being the person beneficially in- 
 terested. {McHench v. McHench, 7 Hill, 204). A re- 
 ceiver is not obliged, and cannot be compelled to account 
 to a party; he is only obliged to account to the court. 
 '{Musgrove v. Nash, 3 Edw. 172). Where a receiver 
 mixes his private funds, or the funds of another trust 
 with the funds in his hands as receiver, or uses or loans 
 the money, he is chargeable with interest; and if his 
 profits from the use of such funds exceed interest, he 
 may be charged with the profits. {Utica Ins. Co. v. 
 Lynch, 11 Paige, 520). While approving of the rule 
 just given, the court of appeals reversed an order charg- 
 ing a receiver with interest beyond what he had actually 
 received from an unauthorized investment of the trust 
 fund, on the ground that the receiver appeared to have 
 acted in good faith, and without wrong intention, or 
 personal benefit; and that the fund had been been 
 benefited and not harmed. {Atty. Genl. v. North Am. 
 L. Ins. Co., 89 N. Y. 94). The liability of the ordinary 
 chancery receiver for the rent of buildings occupied 
 during such receivership seems a much-disputed ques- 
 tion among the judges of this state. It can be safely 
 said, however, that there is no legal liability by virtue 
 merely of his appointment and possession under his ap- 
 pointment. (Stokes V. Hoffman House, 46 App. Div. ' 
 ,120; aflfd. 167 N. Y. 554). For a full discussion of the 
 question, see the various opinions in this case. 
 
 Sec. 6. Compensation. 
 
 A receiver, except as otherwise specially prescribed 
 by statute is entitled, in addition to his lawful expenses, 
 to such a commission, not exceeding five per centum 
 upon the sums received and disbursed by him, as the 
 court by which, or the judge by whom he is appointed, 
 allows. But if in any case the commissions of a tem- 
 porary or permanent receiver, so computed, shall not 
 amount to one hundred dollars, said court or judge may, 
 in its or his discretion, allow said receiver such a sum, not 
 exceeding one hundred dollars, for his commissions as 
 
RECEIVERS AND OTHER PROVISIONAL REMEDIES. 725 
 
 shall be commensurate with the services rendered by said 
 receiver. Any receiver, required by law to give a bond 
 as such, may include as a part of his lawful commis- 
 sions such reasonable sum not exceeding one per centum 
 per annum upon the amount of such bond paid his 
 surety thereon as such court or judge allows. (Co. Oiv. 
 Proc. § 3320). The only statutory provision for the 
 compensation of a temporary receiver is the foregoing 
 section. {Matter of 8niith Co., 31 App. Div. 39). 
 Within the limit fixed by the statute the court has the 
 authority to determine the compensation, and will fix 
 the same at a reasonable sum. {Baldwin v. EazJer, 34 
 Super. 274) . Where the receiver has been guilty of acts 
 of misconduct and neglect, he should be allowed no 
 compensation whatever {Clapp v. Clapp, 49 Hun, 
 195), but his reasonable attorney's fees should be al- 
 lowed. (Id.). A receiver is not allowed for 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 interested in the funds in his hands. (General 
 Rule 79). The court will protect the rights of the 
 receiver, and of his attorney or counsel to compensa- 
 tion out of the fund {Clark v. Binninger, 1 Abb. N. 0. 
 421) ; it was so held in a case where after the appoint- 
 ment of the receiver, an assignee in bankruptcy took con- 
 trol of the action. (Id.). If by consent, all property is 
 ordered to be delivered over to the receiver, he is entitled 
 to commissions on all the property, whether converted 
 into money or not. {Bennett v. Gliapin, 3 Sand. 673). 
 
 Sec. 7. How Discharged or Kemoved. 
 
 Any person having an interest, and feeling that it 
 would be endangered by the appointment of an improper 
 person as receiver, may immediately apply for a change 
 of receiver {In re Bowery Bank, 16 How. Pr. 56) ; but 
 no motion can be made, or other proceeding had for the 
 removal of a receiver, elsewhere than in the judicial 
 district in which the order for his appointment was 
 made (General Rule 80) ; and a receiver cannot be re- 
 moved without notice, and an opportunity to be heard. 
 
726 PRACTICE. 
 
 XCamphell v. Sjjratt, 5 Wk. Dig. 25). The court may- 
 revoke an appointment before it is consummated, and 
 such revocation is not appealable. {Siney v. N. Y. Con. 
 Stage Co., 18 Abb. Pr. 435). The court will revoke an 
 appointment procured by fraud or collusion. Pre- 
 sumptively, such appointment endangers the rights of 
 creditors, and when such appointment is so procured, 
 the court will not even stop to inquire whether such 
 fraud and collusion had resulted in the selection of a 
 suitable person or not; an appointment so procured 
 would be presumed to be an improper one. (Lottimer 
 V. Lord, 4 E. D. Smith, 183). So, in a case where one 
 was appointed a receiver without notice to all parties, 
 and sold the property at private sale to a brother of the 
 plaintiff, at an inadequate price, before the defendants 
 had been served with summons, the order appointing 
 him was vacated as in fraud of the rights of creditors, 
 and the sale was set aside. {Simmons v. Wood, 45 How. 
 Pr. 262). Where the receiver and the judgment debtor 
 in a creditor's suit both die, the court may appoint a 
 new receiver. (NicoU v. Boyd, 90 N. Y. 516). The 
 court has power to remove a receiver appointed in an 
 action, and to appoint another receiver, where the first 
 has neglected his duty, and to direct the first receiver to 
 account for property received by him, and deliver the 
 same to the second receiver (Connelly v. Krets, 8 Wk. 
 Dig. 480; app! dismissed, 78 N. Y. 620) ; but the court 
 should direct the accounting by the first receiver before 
 his discharge, as after his discharge the court can no 
 longer exercise control over him as such receiver (Matter 
 of N. Y. c£- W. U. Tel. Co. v. Jewett, 115 N. Y. 166) ; but 
 the court may direct such accounting and delivery to 
 the second receiver, without removing the first. (Con- 
 nelly V. Krets, supra). The employment by the receiver 
 of the judgment debtor to collect a portion of the estate, 
 is not in itself, ground for his removal. (Ross v. Bridr/e. 
 15 Abb. Pr. 150). Where a motion is made to substi- 
 tute one receiver for another, the question of the regu- 
 larity of the appointment of the first receiver is not a 
 matter to be considered on such motion (Fassett v. 
 Tallmadge, 13 Abb. Pr. 12) ; nor will irregularities in 
 
RECEIVERS AND OTHER PROVISIONAL REMEDIES. 727 
 
 the appointment of a receiver, be ground for his dis- 
 charge, where a party entitled to move,^ neglects to do 
 so for an unreasonable time. (Nicoll v. Boyd, 14 Wk. 
 Dig. 340; app. dismissed, 90 N. Y. 516). The fact that 
 the action in which the receiver was appointed, is dis- 
 continued, does not therefore discharge the receiver;, 
 but he may thereafter on that ground apply for his dis- 
 charge. {Whiteside v. Prendergast, 2 Barb. Ch. 471). 
 
 ARTICLE IV. 
 
 EECEIVEES OF CORPORATIONS. 
 
 SECTION. 
 
 1. In what cases appointed. 
 
 2. Geneval powers and duties. 
 
 3. Clianging or diseliarging receivers. 
 
 4. Commissions. 
 
 Sec. 1. In What Cases Appointed. 
 
 Subdivision 1. — Undee the Code. 
 
 Jurisdiction to appoint receivers of corporations is 
 wholly statutory. (Decker v. Gardner, 124 N. Y. 334). 
 It has been noted, heretofore in this chapter, that the 
 power of a court of chancery to appoint a receiver jjen- 
 dente lite, of the property which is the subject-matter 
 of litigation either of an individual or of a corporation, 
 is still inherent in the supreme court, regardless of 
 statutory provision. In this article it is planned to deal 
 only with the purely statute-given power of the court, 
 to sequestrate corporate property by means of a re- 
 ceivership. 
 
 A receiver of the property of a corporation can be 
 appointed only by the court, and in one of the following 
 cases : 
 
 1. An action brought as prescribed in sections seven- 
 teen hundred and eighty-one to eighteen hundred and 
 three, inclusive. 
 
 2. An action brought for the foreclosure of a morl- 
 gage, upon the property of which the receiver is ap- 
 pointed, where the mortgage debt or the interest thereon 
 
728 
 
 BKACTICE. 
 
 has remained unpaid, at least thirty days after it was 
 payable, and after payment thereof was dnlj demanded 
 of the proper officer of the corporation ; and where either 
 the income of the property is specifically mortgaged, or 
 the property itself is probably insuificient to pay the 
 mortgage debt. 
 
 3. An action brought by the attorney general, or by a 
 stockholder to preserve the assets of a corporation, hav- 
 ing no officer empowered to hold the same. 
 
 4. A special proceeding for the voluntary dissolution 
 of a corporation. (Co. Civ. Proc. § 1810). 
 
 Where the receiver is appointed in an action other- 
 wise than by or pursuant to a final judgment, notice of 
 the application for his appointment must be given to 
 the proper officer of the corporation. ( Id. ) . 
 
 The section above quoted applies to an action or a 
 special proceeding against a corporation, or a joint stock 
 association, created by or under the laws of the state, or 
 a trustee, director, or other officer thereof; or against a 
 corporation, or joint stock association, created by or 
 under the laws of another state, government, or coun- 
 try, or a trustee, director, of other officer thereof, where 
 the corporation or association does business within the 
 state, or has, Avithin the state, a business agency or a 
 fiscal agency, or an agency for the transfer of its stock. 
 ( Co. Civ. Proc. § 1812 ) . The receiver of a corporation 
 represents both it and its creditors and stockholders. 
 (Atty. Genl. v. Guardian Mut. L. Ins. Co., 77 N. Y. 272). 
 Under section eighteen hundred and ten, the court has 
 the right to entertain an action brought by a stockholder 
 of a foreign corporation, for the appointment of a re- 
 ceiver of its property in this state, on the ground of its 
 insolvency {Woerishoffer v. North Riv. Con. Co., 99 N. 
 Y. 398 ) ; but it has no power to appoint a receiver of the 
 property of a corporation, whether domestic or foreign, 
 upon the commencement of an action by a creditor at 
 large, on behalf of himself and of all others similarly 
 situated. (Lehigh Coal Co. v. Central R. R. of ISf. J., 
 43 Hun, 546). On the application of a stockholder, a 
 receiver may be appointed of the property of an insol- 
 vent fire insurance company. {Osgood v. Maguire, 61 
 
RECEIVERS AND OTHER PROVISIONAL REMEDIES. 729 
 
 N. Y. 524). A receiver of a religious corporation can- 
 not be appointed in an action by one corporator, against 
 individual corporators, to which action the corpora- 
 tion is not made a partj^ {Groesheeck v. Duascomb, 41 
 How. Pr. 302 ) . Nor can a receiver be appointed, after 
 the return of an execution unsatisfied upon motion or 
 petition; but such appointment must be in an action, 
 and by the supreme court on notice (Clinch v. South- 
 side R. R. Co., 1 Hun, 636) ; but notice is not necessary, 
 w^here the receiver is appointed by or pursuant to final 
 judgment. (Co. Civ. Proc. § 1810). When appointed, 
 the order cannot be vacated by consent, but it must be 
 by motion. (People v. Olohe Mat. L. Ins. Co., 60 How. 
 Pr. 82). Where a receiver has been appointed in pro- 
 ceedings to compel the dissolution of a corporation, an 
 application to determine the rights of a person to share 
 in the assets, must be made in the district where the 
 receiver was appointed. (Rinn v. Astor F. Ins. Co., 59 
 N. Y. 143). In an action to procure the dissolution of 
 a corporation, the court may, at any stage of the action, 
 appoint one or more receivers of tho property of the 
 corporation. (Co. Civ. Proc. § 1788). In an action by 
 the people to annul a corporation, the court by its final 
 judgment must provide for the appointment of a re- 
 ceiver. ( Co. Civ. Proc. § 1801 ) . By virtue of its gen- 
 eral powers, the court may entertain proceedings against 
 corporations, and appoint temporary receivers of them. 
 (Bangs v. Duel- infield, 18 N. Y. 592). In proceedings 
 for the voluntary dissolution of a corporation, if it 
 shall be made to appear to the satisfaction of the court 
 that the corporation is insolvent, the court may at any 
 stage of the proceedings before final order on a specified 
 notice and motion appoint a temporary receiver of the 
 property of the corporation, which receiver shall have 
 all the powers and be subject to all the duties that are 
 defined as belonging to temporary receivers appointed 
 in an action, in section 1788 of the code, unless the court 
 confers upon him some, or all, of the duties and powers 
 of a permanent receiver. ( Co. Civ. Proc. 2423 ) . In such 
 proceedings if it appears to the court, upon the appli- 
 cation for a final order therein, that the corporation is 
 
730 
 
 PRACTICE. 
 
 insolvent, or for any reason, a dissolution of the cor- 
 poration will be beneficial to the interests of the stock- 
 holders, and not injurious to the public interests, the 
 court must make a final order dissolving the corpora- 
 tion, and appoint one or more receivers of its property. 
 But in the case of a solvent corporation, the court may 
 if there is no objection by creditors, dispense with a re- 
 ceiver and provide in the final order for the distribu- 
 tion of the assets. (Co. Civ. Proc. § 2429). The insol- 
 vency specified in sections 2423 and 2429 is limited and 
 defined by section 2419, as meaning when "the stock, 
 effects and other property of the corporation are not 
 sufficient to pay all just demands for which it is liable 
 or to afford a reasonable security to those who may deal 
 with it." {Matter of Lenox Corporation, 57 App. Div. 
 515 ; affd. without op., 167 N. Y. 623) . The only authority 
 for appointing a temporary receiver of a corporation at 
 the commencement of a proceeding for the voluntary 
 dissolution thereof is section 2423, and if this statutory 
 authority be not followed strictly, the appointment is 
 void. (Id.). The presentation of a proper petition, 
 however, gives the court jurisdiction, and formal de- 
 fects in the order appointing the receiver can be 
 amended nunc pro tunc. [Matter of Christian Jensen 
 Co., 128 N. Y. 550). All of the estate, real and personal 
 of such corporation shall vest in such [permanent] re- 
 ceiver, or receivers from the time of filing security, and 
 they shall be trustees of such estate, for the benefit of 
 the creditors and of the stockholders (Eev. Stat. Pt. 3, 
 Ch. 8, T. 4, § 67 [Banks & Bros. 9 Ed. Vol. 2, p. 1910] ) ; 
 and such receivers may assert the rights of the creditors, 
 or stockholders, when necessary. {GiUet v. Mooclij, 3 
 N. Y. 479 ) . The directors of a banking corporation, of 
 which the superintendent of banks has taken possession 
 under section 17, of the banking law, and for the disso- 
 lution of which he has directed the attorney general ( in 
 accordance with the provisions-of section 18 of that law) 
 to begin an action, cannot defeat such an action by vol- 
 untary dissolution proceedings, even though such pro- 
 ceedings are begun before the action; accordingly, the 
 appointment of temporary receivers in the proceeding is 
 
RECEIVERS AND OTHER PROVISIONAL REMEDIES. 731 
 
 unauthorized and void, and the persons sought so to be 
 appointed cannot hold the property of the corpora- 
 tion as against receivers appointed in the attorney gen- 
 eral's suit. {Matter of Murray Hill Bank, 153 N. Y. 
 199) . Section forty-two, and sections sixty-six to eighty- 
 nine, inclusive, of part three, chapter eight, title four, 
 of the revised statutes are made applicable to a receiver, 
 appointed as prescribed in section twenty-four hundred 
 and twenty-nine, above quoted. (Laws 1880, Chap. 245; 
 2 Rev. Stat., Banks & Bros., 9 Ed. pp. 1908, 1910-1914). 
 Proceedings for the voluntary dissolution of a corpora- 
 tion must be strictly followed. {Chamberlain v. Roch. 
 Seamless P. V. Co., 7 Hun, 557). While a receiver's 
 title in such case vests from the time of filing security, 
 it relates back to the time of his apointment ; and if he 
 was appointed pursuant to an order of reference, it re- 
 lates back to the time of granting such order. {Matter 
 of Berry, 26 Barb. 55). All transfers made after that 
 time are void as to him. (Id.). If, however, by the 
 terms of the statute, the receiver is vested with the 
 estate "from the time of filing the security required by 
 law," his title vests only from such time; and the court 
 cannot overreach the statute in that regard, so as to 
 vest his title by relation back to the date of the order. 
 {Chamherlain v. Roch. Seamless P. V. Co., 7 Hun, 
 557) . The title vests absolutely in him ; and a judgment 
 creditor cannot take the property on execution. ( Chap- 
 man V. Douglas, 5 Daly, 244). He takes the whole of 
 the estate, although only appointed at the instance, or 
 on behalf, of a single creditor. All the other creditors 
 are given an opportunity to come in, before the distri- 
 bution of the fund. {Rinn v. Astor F. Ins. Co., 59 N. 
 Y. 143). 
 
 Subdivision 2. — Under Special Statute. 
 
 If it is made to appear upon application of any cred- 
 itor or shareholder in any banking corporation, com- 
 pany or association, residing in this state that the funds 
 on deposit with the superintendent of banks are insuffi- 
 cient to pay in full the creditors and shareholders re- 
 siding in this state, or that it is insolvent, or has sus- 
 
732 PRACTICE. 
 
 pended business, or that insolvency or bankruptcy pro- 
 ceedings have been taken against it either voluntarily 
 or involuntarily, the supreme court may, upon due no- 
 tice to the attorney general, and upon such notice to 
 the corporation, company or association as the court 
 shall prescribe, appoint a receiver of such funds; and 
 pending such application, the court or any judge thereof 
 may enjoin the commencement or prosecution of any 
 other action or proceeding against such corporation, 
 company or association. Upon the qualification of such 
 receiver, the superintendent of banks shall pay over to 
 him the funds remaining in his hands less any charges 
 which he may have against the same, and the receiver 
 shall distribute such funds among the creditors and 
 shareholders of the corporation, company or association 
 residing in this state in the manner prescribed by law 
 for the payment of creditors in the case of the voluntary 
 dissolution of a corporation. ( The Banking Law, § 33 ) . 
 A court has no authority, upon the application of a 
 creditor at large, to appoint a receiver in an action to 
 dissolve a manufacturing corporation ( Galwey v. V. S. 
 Steam 811 gar Ref. Co., 36 Barb. 256) ; nor where the 
 effect would be to remove all the directors, where in- 
 solvency is not charged, nor a dissolution asked (Bel- 
 mont V. Erie Ry. Co., 52 Barb. 637) ; nor where the plain- 
 tiffs do not show themselves entitled to have a dissolu- 
 tion of the corporation (Denike v. N. Y. & R. Lime Co., 
 80 N. Y. 599) ; nor on a contest between parties claim- 
 ing to hold property as trustees of an association, un- 
 less there is a danger to the fund, or bad faith is shown. . 
 {Willis V. Corlies, 2 Edw. 281). If at any time the 
 affairs of any life, health or casualty corporation shall, 
 in the opinion of the superintendent of insurance, ap- 
 pear to be in such a condition as to render the issuing 
 of additional policies and annuity bonds by the corpora- 
 tion injurious to the public interests, such corporation 
 shall be deemed insolvent and the superintendent shall 
 report the fact to the attorney general, who shall bring 
 such action or institute such proceeding as may be au- 
 thorized by law to be taken against an insolvent in- 
 surance corporation. If in any such action or proceed- 
 
RECEIVERS AND OTHER PROVISIONAL REMEDIES. 733 
 
 ing it shall appear to the satisfaction of the court that 
 the assets and funds of the corporation are not suffi- 
 cient to justify its further continuance of the business 
 of insuring lives, granting annuities and incurring new 
 obligations as authorized by its charter, it shall enjoin 
 and restrain the corporation from the further trans- 
 action of its business and appoint a receiver of its assets 
 and credits, who, upon filing his bond to the people of 
 the state in an amount and with sureties approved by 
 the court, conditioned for the faithful performance of 
 his duties, shall take possession of all such assets and 
 credits, including all securities deposited in the insur- 
 ance department. (The Insurance Law, § 76). There 
 are similar provisions as to life or casualty insurance 
 corporations upon the co-operative or assessment plan. 
 (The Insurance Law, §§ 207, 208). All orders appoint- 
 ing receivers of corporations, shall designate therein, 
 one or more places of deposit, wherein all funds of the 
 corporation, not needed for immediate disbursement, 
 shall be deposited, and no deposits or investments of 
 such trust funds shall be made elsewhere, except upon 
 the order of the court, upon due notice given to the at- 
 torney general. (Laws 1883, Chap. 378, § 3). This re- 
 fers only to receivers of insolvent corporations. ( TJ. S. 
 Trust Go. V. N. Y. West Shore & B. R. R. Co., 101 N. Y. 
 478). Where an action is brought by the attorney gen- 
 eral in the name of the people, pursuant to the laws of 
 1886, to wind up the affairs of a corporation, which has 
 been annulled and dissolved by legislative enactment, it 
 is the duty of the special term of the supreme court in 
 the countj^ designated in the summons and complaint, 
 or of any judge of said court, who resides in the judicial 
 department in which said county is situated, upon the 
 presentation of a certified copy of the act of the legis- 
 lature annulling and dissolving a corporation, and of the 
 summons and complaint founded thereon, immediately 
 to appoint a receiver of the assets and property of such 
 dissolved corporation, to be both temporary and per- 
 manent receiver thereof. (Laws 1886, Chap. 310, § 3). 
 
734 
 
 PKACTICB. 
 
 Subdivision 3. — Application^ Where Made. 
 
 All motions for the sequestration of the property of 
 corporations, or for the appointment of receivers thereof, 
 must be made in the judicial district in which the prin- 
 cipal place of business of said corporations, respectively, 
 is situated, except that in actions brought by the attor- 
 ney general, in behalf of the people of this state, when 
 it shall be made to appear that such sequestration is a 
 necessary incident to the action, and that no receiver 
 has already been appointed, a motion for the appoint- 
 ment of one may be made in any county within the ju- 
 dicial district in which such action is triable. And 
 where a receiver has been appointed, his appointment 
 shall be extended to any subsequent suit or proceeding 
 relating to the same estate or property, in which a re- 
 ceiver is necessary. (General Rule 80). This rule has 
 been limited by statute in cases of insolvent corpora- 
 tions, as follows: Every application made after April 
 11, 1883, for the appointment of a receiver of a corpora- 
 tion, other than applications made by the attorney gen- 
 eral on behalf of the people of the state, shall be made 
 at a special term of the court, held in and for the judi- 
 cial district, in which the principal business office of the 
 corporation is located; and all such applications made 
 by the attorney general shall be made in the judicial 
 district in which the action in which the appointment 
 is sought is triable ; and any action or proceeding here- 
 after brought by the attorney general on behalf of the 
 people of the state against any corporation for the pur- 
 pose of procuring its dissolution, the appointment of a 
 receiver, or the sequestration of its property, may be 
 brought in any county of the state, to be designated by 
 the attorney general. (Laws of 1895, Chap. 282). The 
 statute last cited amended section one of chapter 378 of 
 the laws of 1883. It has been held that the act of 1883, 
 above cited, related exclusively to receivers of corpora- 
 tions appointed in proceedings in case of insolvency; 
 and does not apply to receivers of corporations in other 
 cases. (U. S. Trust Go. v. N. Y. West Shore & B. B. R. 
 Co., 101 N. Y. 478). General Rule eighty (then rule 
 
RECEIVERS AND OTHER PROVISIONAL REMEDIES. 735 
 
 ■eighty-one) was also limited by the case of Bmith v. 
 Danzig (3 Civ. Proc. Rep. 127), Avhich held that a re- 
 ceiver of a corporation may be appointed in the county 
 in which the action is brought, notwithstanding said 
 rule; as the rule cannot have the effect of preventing a 
 party from suing in the county where he resides. All 
 applications to the court contemplated in the act of 
 1883, shall be made in the judicial district where the 
 principal office of the insolvent corporation was located, 
 excepting such applications as are made in actions 
 brought by the attorney general on behalf of the people 
 of the state, and all such applications shall be made in 
 the judicial district in which the action is triable. (Laws 
 1896, Chap. 282, amending Laws 1883, Chap. 378, § 9). 
 The necessary effect of these statutes is that the venue 
 of all actions or proceedings in such actions, other than 
 those instituted by the attorney general, shall be laid in 
 the county and district where the principal office of 
 such corporation is located. The case of Smith v. Dan- 
 zig (supra), correctly states the rule in cases other than 
 of insolvent corporations. So Avhere an application is 
 made for the appointment of a receiver of mortgaged 
 property, pending an action to foreclose a mortgage 
 upon a railway, the application for such receivership 
 may still be made in the district in which the venue is 
 laid. ( U. 8. Trust Go. v. N. Y. West Shore & B. R. R. 
 Co., 35 Hun, 341) . Notice of the application for the ap- 
 pointment of a receiver of a corporation, must be given 
 to the proper officer of the corporation, unless it is by 
 or pursuant to a final judgment. (Co. Civ. Proc. § 
 1810 ) . In every action or proceeding for the dissolution 
 of a corporation, a copy of all motions, and all motion 
 papers, and a copy of any other application to the court 
 with a copy of the proposed order or judgment, shall 
 be served on the attorney general; and any order or 
 judgment, granted without such service, shall be void. 
 (Laws 1883, Chap. 378, § 8). Under this section, the 
 service of the motion papers, etc., on the attorney gen- 
 eral, in a judgment creditor's action against a railroad 
 company for the appointment of a receiver, and the 
 47 
 
736 
 
 PRACTICE. 
 
 sequestration of its property, is jurisdictional; and an 
 omission to do so, renders tlie appointment of the re- 
 ceiver therein void {Whitney v. JSf. Y. & Atlantic R. R. 
 Co., 32 Hun, 164) ; and such appointment may be 
 vacated upon motion, by a receiver duly appointed in an 
 action to foreclose a mortgage upon the corporate prop- 
 erty,' although he has not been made a party to the 
 creditor's action. ( Id. ) . 
 
 In an action to procure the dissolution of a corpora- 
 tion, a receiver may be appointed at any stage of the 
 action. (Co. Civ. Proc. § 1788). That section renders 
 useless a certain line of authorities which hold that a 
 receiver in such cases could not be appointed until after 
 certain proceedings had been taken; as, the return of 
 an order to show cause ; or the report of a referee. A 
 receiver will not be appointed ex parte on the applica- 
 tion of a creditor; but an order to show cause, and a 
 temporary injunction will be granted (Devoe v. Ithaca 
 & Owego R. R. Co:, 5 Paige, 521) ; but if the corporation 
 voluntarily appear, the court obtains jurisdiction to 
 dissolve it. {Atty. Genl. v. Guardian Mut. L. Ins. Co., 
 77 N. Y. 272 ) . The necessity for the appointment of a 
 receiver must be shown {City of Rochester v. Bronson, 
 41 How. Pr. 78) ; but the proceedings on such appoint- 
 ment can only be corrected by appeal. {Bangs v. Duck- 
 infield, 181^. Y. 592). 
 
 Subdivision 4. — Who may be Reoeivee of a Corpora- 
 
 TION. 
 
 Any person of full age who resides within this state, 
 and who has the ability requisite to the performance of 
 the duties, and who can give the necessary security, may 
 be appointed receiver of a corporation, unless for some 
 particular reason he is disqualified from acting. In case 
 of the voluntary dissolution of a corporation, the court 
 may in its discretion, appoint a director, trustee, or 
 other officer, or a stockholder of the corporation, a re- 
 ceiver of its property. (Co. Civ. Proc. § 2429). Where 
 an action is brought by the attorney general in the name 
 of the state, for the purpose of winding up the affairs of 
 
RECEIVERS AND OTHER PROVISIONAL REMEDIES. 737 
 
 a corporation, which has been dissolved and annulled 
 by legislative enactment, no officer, director, or stock- 
 holder of such corporation shall be appointed receiver 
 thereof. (Laws 1S86, Chap. 310). The appointment of 
 a trustee of an insolvent corporation as receiver, will be 
 set aside, when it appears to have been made in a col- 
 lusive action, brought subsequent to an action seeking 
 to charge the trustees. (Wilson v. Banicy, 5 Hun, 257) . 
 For most, if not all, purposes a receiver takes the place, 
 and stands as the representative of the corporation. He 
 is as much bound by an act which the corporation has 
 the power to do, as it is itself. He cannot impeach or 
 disaffirm the lawful and authorized acts of the corpo- 
 ration. ( r. »S'. Trust Co. V. N. Y. West Shore & B. R. R. 
 Co., N. Y. Daily Keg. Oct. 2, 1884). 
 
 Subdivision 5. — Seourixy. 
 
 Ordinarily the question of the security to be given by 
 a receiver of a corporation, is left entirely to the discre- 
 tion of the court. In the case of a voluntary dissolu- 
 tion of a corporation, the receiver shall give such secur- 
 ity to the people of the state, as the court shall direct. 
 (Rev. Stat. Pt. 3, Ch. 8, T. 4, § 66 [Banks & Bros. 
 9 Ed. Vol. 2, p. 1910] ) . Where a temporary receiver 
 has been appointed in such proceedings and given the 
 bond required hj the court, it is not necessary for him 
 to furnish a further bond on being continued as per- 
 manent receiver, (t/ojies V. i?Z»H, 145 N. Y. 333). The 
 sureties on the bond of a temporary receiver appointed 
 in voluntary dissolution proceedings are liable thereon, 
 even though his appointment has been annulled for in- 
 sufficiency of the petition. {Thompson v. Denncr, 16 
 App. Div. 160). Where a receiver is appointed in an 
 action brought to wind up the affairs of a corporation, 
 annulled and dissolved by legislative enactment, he is 
 required to give a bond with sureties, to be approved by 
 the court or judge appointing him, in a penalty to the 
 people of the state of not less than ten thousand dollars^ 
 (Laws 1886, Chap. 310). 
 
738 
 
 PHACTICE. 
 
 Sec. 2. General Powers and Duties. 
 
 A receiver appointed in an action to dissolve a cor- 
 poration before final judgment, is a temporary receiver, 
 until final judgment is entered. A temporary receiver 
 has power to collect and receive the debts, demands and 
 other property of the corporation ; to preserve the prop- 
 erty and proceeds of the debts and demands collected; 
 and to sell, or otherwise dispose of the property, as di- 
 rected by the court; to collect, receive and preserve the 
 proceeds thereof; and to maintain any action or special 
 proceeding, for either of these purposes. He mrast 
 qualify as prescribed by laAv for the qualification of a 
 permanent receiver. Unless additional powers are con- 
 ferred upon him, as prescribed in section seventeen hun- 
 dred and eighty-nine of the code of civil procedure, a 
 temporary receiver has only the powers specified iii this 
 section, and those which are incidental to the exercise 
 thereof. A receiver, appointed by or pursuant to a final 
 judgmeat in the action, or a temporary receiver, who is 
 continued by the final judgment, is a permanent receiver, 
 and has all the powers and authority conferred, and is 
 subject to all the duties and liabilities imposed upon a 
 receiver appointed upon the voluntary dissolution of a 
 corporation. (Co. Civ. Proc. § 1788). Under this section 
 the court has power to empower the receiver to "finish 
 and complete the outstanding contrarts'' of the corpora- 
 tion. {T<Iason Mfg. Co. v. Garden, 52 App. Div. 363) . Not 
 only has a temporary receiver power, under this section, 
 but it is also his duty, to sue for the recovery of money 
 obtained from the corporation by way of fraudulent 
 preferences. {Nealis v. Am. Tnl>e & Iron Co., 150 N. Y. 
 42). The assets in the hands of such a temporary re- 
 ceiver, however, are not liable for debts of a corpora- 
 tion incurred before his appointment {Mercantile 
 Trust Co. V. Kings Co. El. R. Co., 40 App. Div. 141), 
 though such assets may be charged Avith the payment 
 of the necessary current expenses of the receiver. 
 {Farmers' L. & T. Co. v. Mer. Tel. Co., 148 N. Y., 315). 
 A temporary receiver, appointed as prescribed in the 
 section just quoted, is in all respects subject to the con- 
 trol of the court. There seems to be no statutory pro- 
 
RECEIVERS AND OTHER PROVISIONAL REMEDIES. 739 
 
 Tision for an accounting by such a temporary receiver. 
 (iMattcr of Simoiids Mfg. Co., 39 App. Div. 576). In 
 addition to the powers conferred upon him by the pro- 
 visions of that section, the court may, by the order or 
 interlocutory Judgment appointing him, or by an order 
 subsequently made in the action, or by the final judg- 
 ment, confer upon him the powers and authority, and 
 subject him to the duties and liabilities of a permanent 
 receiver, or so much thereof as he thinks proper; ex- 
 cept that he shall not make any distribution among the 
 creditors or stockholders, before final judgment, unless 
 he is specially directed to do so by the court. (Co. Civ. 
 Proc. § 1789). A receiver, appointed by or pursuant 
 to an order or judgment, in an action in the supreme 
 court, or a county court, or in a special proceeding for 
 the voluntary dissolution of a corporation, may take 
 and hold real property, upon such trusts, and for such 
 purposes as the court directs, subject to the direction 
 of the court from time to time, respecting the dispo- 
 sition thereof. (Co. Civ. Proc. § 716). In all cases, 
 where receivers have been or shall be appointed for any 
 corporation of this state, other than an insurance com- 
 pany, on application by the attorney general, all prop- 
 erty real and personal, and all securities of every kind 
 and nature belonging to such corporation, no matter 
 where located, or by Avhom held, shall be transferred to 
 and vested in and held by such receiver ; provided, how- 
 ever, that such transfer shall only be made, when di- 
 rected by an order of the supreme court ; due notice for 
 such an application having been served on the attorney 
 general, and the custodian of the funds, security, or 
 property. (Laws 1884, Chap. 285). Where a life in- 
 surance company, or annuity company, or any corpora- 
 tion of the class provided for by article two of the in- 
 surance law, entitled "life, health and casualty insur- 
 ance corporations," whether formed under said article 
 or prior thereto, has been or hereafter may be dissolved, 
 and a receiver thereof appointed, all securities or funds, 
 deposited by such company, prior to dissolution, with 
 the superintendent of the insurance department, may be 
 transferred to the receiver of such company, by an order 
 
740 PRACTICE. 
 
 of the supreme court at special term, held within the 
 judicial district where the principal office of such com- 
 pany is located, upon the application of the attorney 
 general, and after service of eight days written notice 
 upon the superintendent of the insurance department. 
 Such funds and securities shall thereupon be delivered 
 to, and the title thereto vest immediately in such re- 
 ceiver; who shall convert such securities and funds into 
 money, and distribute the proceeds thereof among the 
 respective policy holders entitled thereto, ratably, ac- 
 cording to the value of such policies. The same rules 
 govern in the case of the dissolution of a foreign cor- 
 poration, doing insurance business of the kind men- 
 tioned above, except that the order for the transfer of 
 the deposit may be made either in the judicial district 
 in which the principal office of the corporation in this 
 state was located at the time of the commencement of 
 the action or proceeding, or in the third judicial dis- 
 trict. (Laws 1896, Chap. 322, amending Laws 1884, 
 Chap. 285, § 2). A receiver, appointed in an action to 
 wind up the affairs of a corporation, which has been 
 annulled and dissolved by legislative enactment, shall, 
 immediately after his appointment, and after giving 
 security, make and file in the office of the clerk of the 
 county where the action is pending, an inventory of the 
 property of such corporation, and for the purpose of 
 ascertaining the extent, nature and location of such 
 property, he has power to compel the attendance of wit- 
 nesses; and all evidence taken by him shall be filed in 
 said clerk's office. He shall also immediately publish 
 in two newspapers, a notice to the creditors of such cor- 
 poration, to present their claims and demands to such 
 receiver, at a time and place designated in, such notice; 
 and the receiver is authorized to examine witnesses on 
 oath, as to all matters pertaining to any claim or demand 
 presented. He shall thereafter make and file a list of 
 all claims, which list shall be verified by his oath, and 
 presented to the court for its order, directing a sale of 
 the property specified in the inventory, at public auc- 
 tion. (Laws 1886, Chap. 310, §§ 4, 5). A receiver 
 appointed in such case, has full power and authority 
 
KECEIVEES AND OTHER PROVISIONAL REMEDIES. 741 
 
 to administer oaths to all witnesses, and to any creditor 
 of such dissolved corporation. All applications for leave 
 to sue such receiver, or for an injunction to restrain his 
 proceedings, must be made to the supreme court, in the 
 county in which the action in which he was appointed, 
 was brought, and upon eight day's notice to the attorney 
 general. (Id. § 10 ) . A receiver, appointed in proceed- 
 ings in equity against a corporation, shall possess all 
 the powers and the authority conferred, and be subject 
 to all the obligations and duties imposed, upon receivers, 
 appointed in case of the voluntary dissolution of a cor- 
 poration; and he shall keep an account of all moneys 
 received by him, and make verified reports thereof at 
 stated intervals, showing the amount of money he has 
 received, and the amount he has a right to retain, and 
 the distributive share of each person interested therein. 
 He shall pay such distributive share to such person on 
 demand, after the filing of such statement. In case he 
 neglects or refuses to comply with any duty imposed 
 upon him, the supreme court, upon the application of the 
 party aggrieved, shall forthwith remove such receiver, 
 and appoint a suitable person in his place; unless such 
 neglect or refusal shall be satisfactorily explained to 
 the court. Such receiver shall be charged ten per 
 centum on all moneys due to such party, and retained 
 by him more than one day after such demand. (Eev. 
 Stet. Pt. 3, Ch. 8, T. 4, § 42 [Banks & Bros. 9 Ed. 
 Vol. 2, p. 1908] ) . A receiver, appointed on the volun- 
 tary dissolution of a corporation, has all the power and 
 authority, and is subject to the same duties and obliga- 
 tions, so far as applicable, as are conferred by law upon 
 trustees to whom an assignment of the estate of insol- 
 vent debtors mav be made, pursuant to the revised stat- 
 utes. (Rev. Stkt. Pt. 3, Ch. 8, T. 4, § 68 [Banks & 
 Bros., 9 Ed. Vol. 2, p. 1910]). A receiver duly ap- 
 pointed in this state by and pursuant to a judgment in 
 an action or order in a special proceeding, may be au- 
 thorized by the court to sell or convey the real and per- 
 sonal property of the corporation of which he is the re- 
 ceiver upon such terms and conditions as the court may 
 direct. (Laws 1898, Chap. 522). A receiver, appointed 
 
742 PRACTICE. 
 
 upon the voluntary dissolution of a corporation, should 
 proceed immediately to collect all sums remaining un- 
 paid upon any share of stock subscribed, unless the per- 
 son so subscribing shall be wholly insolvent; he must 
 give notice of his appointment, requiring persons to pre- 
 sent claims at a time and place specified; and he shall 
 have the same power to settle any controversy, arising 
 between him and the debtors or creditors by reference, 
 as is given to trustees of insolvent debtors. He shall call 
 a meeting of the creditors of the corporation, within 
 four months after his appointment, at which time all 
 accounts and demands shall be ascertained and ad- 
 justed, and the amount of moneys in his hands declared. 
 And he may cancel and discharge any subsisting con- 
 tract or engagement of a contingent nature, with the 
 consent of the party holding such engagement, upon the 
 terms prescribed by law; and after deducting enough 
 to pay his commissions, and to meet necessary expenses 
 of pending suits, if there be any, or for the purpose of 
 canceling and discharging any open or subsisting en- 
 gagement, he shall distribute the residue of the moneys 
 according to law. (Rev. Stat. Pt. 3, Ch. 8, T. 4, § § 69, 
 89 [Banks & Bros., 9 Ed. Vol. 2, pp. 1910, 1914] ) . 
 These sections do not apply to a temporary receiver. 
 (Matter of Siinonds Mfg. Co., 39 App: Div. 576) . Upon 
 the appointment of a receiver of a corporation organ- 
 ized under the laws of this state and doing business 
 therein, other than a moneyed corporation, the wages 
 of the employes of such corporation shall be preferred 
 to every other debt or claim. (The Labor Law [Laws 
 1897, Chap. 415], § 8). If the whole of the estate be 
 not distributed on the first dividend, the receiver shall 
 Avithin one year thereafter, make a second dividend, 
 which shall be made in all respects in the same manner 
 as the first; and in such second dividend, the receiver 
 shall not be liable to any creditor, or any person having 
 a claim against the corporation, unless presented before 
 the second dividend. If there remains any sum in the 
 hands of the receiver after the second dividend, it shall 
 be distributed among the stockholders in proportion to 
 their respective interests. Such receiver is subject at 
 
KECEIVEES AND OTHER PROVISIONAL REMEDIES. 743' 
 
 all times to the direction of the court, and he may be 
 compelled to account at any time; and he may be re- 
 moved ; and any vacancy caused by his removal, or his 
 death may be Supplied by the court. Within three 
 months after the time prescribed for the second divi- 
 dend, he must render a full account to the court on 
 oath, of all the proceedings taken by him; and if any 
 moneys come to his hands after the rendering of such 
 account, he shall from time to time render account of the 
 same. (Rev. Stat., Pt. 3, Ch. 8, T. 4, §§ 80-86 [Banks 
 & Bros., 9 Ed. Vol 2, pp. 1912, 1913]). A receiver of 
 a mutual insurance company has full power to make 
 assessments on premium notes belonging to such cor- 
 poration, as by charter the directors thereof had author- 
 ity to make ; and notice of the assessment is given in the 
 same manner ; and he shall have the like rights and rem- 
 edies in consequence of the non-payment thereof, as are 
 given to the directors thereof by the charter of such cor- 
 poration. He may receive a voluntary siirrender of all 
 policies issued by the corporation, or cancel them,- where 
 by the charter, the directors would be authorized to do 
 so. (3 Rev. Stat. Banks & Bros., 9 Ed. pp. 2126, 
 2127 ) . It shall be the duty of every receiver of an insur- 
 ance, banking or railroad corporation, or trust company, 
 to present every six months to the special term of the 
 supreme court, held in the judicial district wherein the 
 place of trial or venue of the action or special proceed- 
 ing in which he was appointed may then be, on the first 
 day of its first sitting, after the expiration of such six 
 months, and to file a copy of the same, if a receiver of a 
 bank or trust company, with the bank superintendent; 
 if a receiver of an insurance company, with the superin- 
 tendent of insurance ; and in each case with the attorney 
 general, an account exhibiting in detail the receipts of 
 his trust, and the expenses paid and incurred therein 
 during the preceding six months ; and it shall be unlaw- 
 ful for any receiver of the character specified in this 
 section to pay any attorney or counsel any costs, fees or 
 allowances until the amounts thereof shall have been 
 stated to the special term in this manner, as expenses 
 incurred, and shall have been approved by that court, by 
 
744 PRACTICE. 
 
 an order of the court duly entered ; and any such order 
 shall be the subject of review by the appellate division 
 and the court of appeals on an appeal taken therefrom 
 by any party aggrieved thereby. Of' the intention to 
 present such an account, as aforesaid, the attorney gen- 
 eral and also the surety or sureties, on the official bond 
 of such receiver, shall be given eight days notice in writ- 
 ing; and the attorney general shall examine the books 
 and accounts of such receiver at least once every twelve 
 months. (Laws 1S96, Chap. 139). The statute last 
 cited amended the act of 1883 in relation to receivers 
 for corporations (Laws 1883, Chap. 378, § 4) ; which 
 act has been held to relate only to insolvent corporations 
 (U. S. Tntst Co. V. .Y. Y. ^Yesf Shore d- B. R. E. Co., 101 
 N. T. 478), therefore it must be construed also to relate 
 exclusively to such corporations. The receiver of an 
 insolvent corporation represents both its creditors and 
 stockholders, and when necessary may exercise the 
 rights possessed by them. {GiUet v. Moody, 3 N. Y. 
 ■479). And being such trustee for their benefit, if a 
 fraudulent claim or demand is presented, it is his 
 duty to so administer the assets that the fraudulent 
 indebtedness shall have no share in the distribu- 
 tion. {McParhind v. Bain. 26 Hun, 38). He is 
 vested with all the rights which the corporation had 
 when he was appointed, and can sue for a tort committed 
 before his appointment {GiUct v. FairchUd, 4 Denio, 
 80) ; but he cannot disaffirm the lawful acts of the cor- 
 poration. {Hyde v. Lyndc, 4 X. Y. 387, 392). 
 
 A receiver, appointed under section seventeen hun- 
 dred and eighty-eight of the code of civil procedure, is 
 vested with all the property and effects of the corpora- 
 tion, and has full power to sell and dispose of the same, 
 and to settle its affairs {Terplanclc v. Mercantile Ins. 
 Co.. 2 Paige, 438) ; but where appointed on the applica- 
 tion of a judgment creditor, simply to protect the prop- 
 erty, his powers are only those conferred upon him by 
 the court. (Mann v. Pentz, 3 N. Y. 415). Unpaid 
 stock subscriptions pass to the receiver, and may be 
 sold by him. (Dean v. Biggs, 25 Hun, 122; affd. with- 
 out op., 93 N. Y. 662). He may, also, enforce the liabil- 
 
RECEIVERS AND OTHER PROVISIONAL REMEDIES. 745 
 
 ity of the directors to make good a misapplication of 
 assets. {Mason v. Henri/, 152 X. Y. 529). Wliere notes 
 were made by a resident of anotlier state, but payable 
 in this state, a receiver is entitled to recover upon them, 
 although after the appointment of the receiver, the debt 
 was attached by a creditor of the corporation in the 
 other state. {Osgood v. Mcujiilrc, 61 N. Y. 524). A re- 
 ceiver of an insolvent insurance company has been held 
 not to be entitled to the securities deposited by it with the 
 insurance department for the protection of the policy 
 holders {Matter of Guardian Miit. L. Ins. Co., 13 Hun, 
 115) ; but in that case their proceeds were directed to be 
 distributed among the policy holders. This seems to be 
 changed by statute, and that now upon the application 
 of the attorney general the court will make an order 
 delivering them to the receiver, to convert into money 
 and distribute among the policy holders. (Laws 1884, 
 Chap. 285, as amended by Laws 1896, Chap. 322). The 
 receiver of a life, health or casualty insurance company, 
 appointed pursuant to the provisions of section 76 of 
 the insurance law, must immediately appoint a com- 
 petent actuary, approved by the superintendent of insur- 
 ance, to make a careful investigation and report con- 
 <'erning the condition of the company, and his future 
 duties are specifically defined, according to the report 
 of the actuary. (The Insurance Law, § 77) . The receiver 
 of a domestic insurance company may re-insure, upon 
 the written consent of the superintendent of insurance 
 and the attorney general, all of the policy obligations 
 of the corporation, obtaining an order of the court di- 
 recting such reinsurance. (The Insurance Law, § 23). 
 A receiver cannot allow a set-off against a debt owing 
 to the bank, where the demand was assigned to the 
 debtor after the appointment of the receiver, for that 
 purpose. {VanDi/cl- v. McQnade, 85 N. Y. 616). A 
 receiver of a corporation may be invested by the court 
 with a general authority and power to compromise dis- 
 puted claims {Matter of Groton Ins. Go., 3 Barb. Ch. 
 642) ; and there can be no compromise without his con- 
 sent. {Atty. Gen. v. Life & F. Ins. Go., 4 Paige, 224). 
 If there is danger that the fund will be unfairly distrib- 
 
746 
 
 PRACTICE. 
 
 uted, the receiver may apply to the court for its pro- 
 tection. {People V. Secant 1/ L. Ins. & Ann. Co., 79 N. Y. 
 267). A receiver should allow all claims against the 
 corporation which he is satisfied are legally and justly 
 due, and which may be recovered by a suit against the 
 corporation. {Attij. Gen. v. Life & F. Ins. Co., 4 Paige, 
 224) . Where an action has been brought by the corpora- 
 tion, to compel the payment on a subscription of stock, 
 the action may be continued by the receiver after his ap- 
 pointment, in the name of the original party (Phoeniar 
 Warehousing Co. v. Badger, 67 N. Y. 294) ; and one, 
 who has acted as director in such corporation, is es- 
 topped from denying the existence of the corporation, 
 or the validity of his subscription. ( Id. ) . Such an ac- 
 tion, however, does not apply to mutual insurance com- 
 panies, as they have no stock. {Williams v. Lakeg, 15 
 How. Pr. 206). Where a receiver, appointed in an ac- 
 tion against a corporation, fraudulently obtains an or- 
 der for the sale of a debt due the corporation, a creditor 
 may maintain an equitable action to vacate the order, 
 and set aside the sale. {HacMey v. Draper, 60 N. Y. 
 88). And if a judgment has been obtained against a 
 corporation, a receiver may have it set aside by the 
 court, if it was obtained by collusion or fraud, or with- 
 out consideration. {Whittlesey v. Delaney, 73 N. Y. 
 571.) The receiver of a domestic corporation will be 
 required to pay the costs out of the fund, where plain- 
 tiff obtained a judgment against him, in an action 
 brought against the corporation before his appointment ; 
 the expense of such action being incurred for the benefit 
 of the fund. {Locke v. Co cert 42 Hun, 484) . So, where 
 the receiver of a bank elected to continue a suit at law 
 commenced by the corporation, and was non-suited, he 
 was required to pay out of the fund, the whole cost of 
 the defendant, before as well as after he assumed con- 
 trol of the suit. {Camp v. Niagara Bank, 2 Paige, 283). 
 Where the stockholders or trustees of a corporation be- 
 come personally liable for their debts, under statutory 
 provisions, the right to enforce the payment of such 
 debts, is exclusively in the creditors, and not in the re- 
 ceiver. {Mason v. N. Y. Silk Mfg. Co., 14 Wk. Dig. 
 
RECEIVERS AND OTHER PROVISIONAL REMEDIES. 747 
 
 451). A receiver of a foreign corporation, appointed 
 in another state, maj dispose of tlie property of such, 
 corporation within this state, and of the debts due such 
 corporation in this state. {Hoyt v. Thompson, 5 N. Y. 
 320). A receiver should act, contract and convey in his 
 own name, as receiver, and not in that of the corpora- 
 tion of which he is the receiver ( Id. ) ; but where he is 
 directed by the order, appointing him, to continue the 
 business of the corporation as long as is necessary to 
 wind it up, he is not personally liable upon an obliga- 
 tion he assumed as receiver. {Olplierts v. Hmitli, 54 App. 
 Div. 514; 8ager Mfg. Co. v. Smith, 45 App. Div. 358). 
 In the absence of any such provision in the order of ap- 
 pointment, he is personally liable if he continues the 
 business. {Meyer v. Lexoiv, 1 App. Div. 116). 
 
 Sec. 3. Changing or Discharging Receivers. 
 
 The power of the supreme court to remove its own re- 
 ceiver of a corporation, and appoint another in his place, 
 does not depend on any notice to stockholders who have 
 appeared; the court can act on its own motion. {Hoyt 
 V. Continental Ins. Co., 21 Wk.' Dig. 145). In case of 
 the voluntary dissolution of a corporation, the receiver 
 may be removed by the court, and a vacancy caused by 
 his removal or death may be supplied by the court. (Rev. 
 State Pt. 3, Ch. 8, T. 4, § 85 [Banks & Bros., 9 Ed. 
 Vol. 2, p. 1913]). The attorney general may, at any 
 time he deems that the interests of the stockholders, 
 creditors, policy holders, depositors, or other bene- 
 ficiaries, interested in the proper and speedy distribu- 
 tion of the assets of £iny insolvent corporation, will be 
 subserved thereby, make a motion in the supreme court, 
 at a special term thereof in any judicial district, for an 
 order removing the receiver of any insolvent corpora- 
 tion, and appointing a receiver thereof in his stead ; or 
 to compel him to account, or for such other and addi- 
 tional order ox* orders as to him may seem proper, to 
 facilitate the closing up of the affairs of such receiver- 
 ship; and any appeal from any order, made upon any 
 motion under this section, shall be to the general term 
 of said court, of the department in which said motion 
 
■ 748 PRACTICE. 
 
 is made. (Laws 1883, Chap. 378, § 7). Where the at- 
 torney general intervenes to secure the removal of a re- 
 ceiver, all the parties to the action in which he was ap- 
 pointed, are entitled to notice of such application. {At- 
 iriU Y. Rockawaij B. Imp. Co., 25 Hun, 376 ; S. C. 13 
 Wk. Dig. 348). Notice should be served on all parties 
 who have appeared. ( Id. ) . No motion for the discharge 
 of a receiver can be made, or other proceeding had for 
 his removal, elsewhere than in the judicial district in 
 which the order for his appointment was made. (Gen- 
 eral Kule 80). And where a motion is made todis- 
 cliarge a receiver of an insolvent corporation, it shall 
 be made in the district where the principal office of the 
 insolvent corporation is located, excepting such appli- 
 cations as are made in actions brought by the attorney 
 general on behalf of the people of the state, and all such 
 applications shall be made in the judicial district in 
 Avhich the action is triable. (Laws 1896, Chap. 282, 
 Amending Laws 1883, Chap. 378, § 9) ; and except that 
 upon an application by the attorney general, the motion 
 may be made in any judicial district, for an order re- 
 moving the receiver, and appointing another in his stead. 
 ( Id. § 7 ) . It is not a matter of course to change a re- 
 ceiver upon his own application, unless his duties are 
 ended. He must show some reasonable cause why he 
 should be relieved. (Beers v. Chelsea Bank, 4 Edw. 
 277). Where one of the directors of a company was 
 shown to have known of and acquiesced in the misman- 
 agement for which a suit had been begun, and with be- 
 ing improperly interested in contracts made by the com- 
 pany; it was held, that he was not a proper person to 
 exercise the powers of a receiver ; and that his appoint- 
 ment should be revoked ; and that the fact that the suit 
 was instituted for his benefit, would not justify his being 
 continued as receiver. {Eeeler v. Brookhjn Elev. R. R. 
 Co., 9 Abb. N. C. 166). The court loses its direct con- 
 trol of the receiver after his discharge ; but where it ap- 
 pears that irreparable damage will ensue by reason of 
 such discharge, the court may vacate the discharge, and 
 reinstate the parties as they were before the discharge. 
 
RECEIVERS AND OTHER PROVISIONAL REMEDIES. 749 
 
 '{Matter of N. Y. d W. U. Tel. Go. v. Jeioett, 43 Hun, 
 565; affd., 115 N. Y. 166). 
 
 Sec. 4. Commissions. 
 
 The subject of the compensation or commissions to 
 which a receiver of a corporation is entitled, is in a 
 rather confused condition, and it is often difficult to as- 
 certain what statute controls. {Matter of Orient Mut. 
 Ins Co., 50 N. Y. St. Rep. 460). The code does not 
 distinguish between the compensation of a receiver of 
 a corporation, and that of an individual; simply 
 providing that a receiver, except as otherwise spec- 
 ially prescribed by statute, is entitled to such a 
 commission, in addition to his lawful expenses not 
 exceeding five per centum upon the sums received 
 and disbursed by him, as the court by which, or the 
 judge by whom he is appointed, allows. (Co. Civ. Proc. 
 § 3320). This section is the only statutory provision 
 on the subject of the commission of a temporary re- 
 ceiver. {Matter of Smith Co. y 31 Ap-p. DiY. 39). Every 
 receiver shall be allowed to receive as compensation for 
 his services as such receiver, five per centum for the first 
 one hundred thousand dollars received and paid out, 
 and two and one-half per centum on all sums received 
 and paid out in excess of the said one hundred thou- 
 sand dollars. But no receiver shall be allowed or shall 
 receive, from such percentages or otherwise, for his said 
 service for any one year any greater sum or compensa- 
 tion than twelve thousand dollars nor for any period 
 less than one year more than at the rate of twelve thou- 
 sand dollars, unless the court upon proper notice shown 
 to said receiver makes an extra allowance not to ex- 
 ceed two and one-half per centum upon the sum re- 
 ceived and paid out, provided that where more than 
 one receiver shall be appointed, the compensation herein 
 provided shall be divided between said receivers. ( Laws 
 1883, Chap. 378, § 2, as amended by Laws 1886, Chap. 
 275, and Laws 1901, Chap. 506). The language of both 
 the original section, and the same as amended, while 
 being general in form, has been construed to refer ex- 
 clusively to permanent receivers appointed for insolvent 
 
750 PRACTICE. 
 
 corporations. (U. 8. Trust Co. v. N. Y. West Shore & 
 B. R. R. Co., 101 N. Y. 478). A receiver, appointed on 
 the voluntary dissolution of a corporation, is entitled 
 to such commissions, in addition to his actual disburse- 
 ments, as the court shall allow ; not exceeding the sum 
 allowed by law to executors. (Rev. Stat. Pt. 3, Ch. 8, 
 T. 4, § 76 [Banks & Bros., 9 Ed. Vol. 2, p. 1912]). 
 This provision covers only the commissions of a per- 
 manent receiver of a dissolved corporation. {Matter of 
 Smith Co., 31 App. Div. 39). A receiver, appointed in 
 an action brought to wind up the affairs of a corpora- 
 tion, Avhich has been annulled and dissolved by legis- 
 lative enactment, is entitled to two per cent upon the 
 whole amount received by him from the sale of the prop- 
 erty described in the inventory, for his compensation; 
 and he is also entitled to his disbursements, including 
 witness fees, and fees for the service of subpoenas, and 
 a reasonable counsel fee for such counsel as the receiver 
 may find it necessary to employ. (Laws 1886, Chap. 
 310, § 6 ) . In no case has the court power to award the 
 receiver any compensation beyond that allowed by the 
 statute. {Matter of Orient Mut. Ins. Co., 50 N. Y. St., 
 Rep. 460). In computing the commission of a receiver 
 of a corporation, upon his resignation, it has been 
 held that only the actual amount of the money which 
 has come into his hands should be the basis of compen- 
 sation {People V. Mut. Benefit Assts. 39 Hun, 49) ; but, 
 more recently, a divided court (in another department 
 and without referring to the last cited case) has de- 
 cided that the whole estate in his hands is the basis for 
 the calculation. {Matter of Smith Co., supra). Where 
 a receiver was appointed and qualified, but the business 
 was continued by the parties in interest, so as to involve 
 no liability on the part of the receiver ; and he exercised 
 only a supervision over it; and his accounts were kept 
 by a clerk paid for by the corporation, he was held to be 
 entitled to commissions only upon the property actually 
 received, and distributed by him personally. {Matter 
 of Woven Tape Skirt Co., 85 N. Y. 506). A receiver of 
 a mutual insurance company is entitled to his commis- 
 sions on the value of premium notes, which have come 
 
RECEIVERS AND OTHER PROVISIONAL REMEDIES. 751 
 
 into his hands, and which he has surrendered to the 
 raalvers under order. of the court. {Van Bttren v. Che- 
 nango Co. Mut. Ins. Co., 12 Barb. 671). 
 
 ARTICLE V. 
 
 DEPOSIT, DELIVERY OR CONVEYANCE. 
 
 Where it is admitted by the pleading, or examination 
 of a party, that he has in his possession, or under his 
 control, money, or other personal property capable of 
 delivery, which, being the subject of the action or spe- 
 cial proceeding, is held by him as trustee for another 
 party, or which belongs or is due to another party, the 
 court may, in its discretion, grant an order, upon no- 
 tice, that it be paid into, or deposited in court, or de- 
 livered to that party, with or without security, subject 
 to the further direction of the court. (Co. Civ. Proc. § 
 717 ) . The court has no power to make an order under 
 this section in an action for the recovery of money al- 
 leged to belong to the plaintiff and to be in the possession 
 of the defendant, although it is claimed that the de- 
 fendant is insolvent. (Balesticr v. Metropolitan Wat. 
 Bank, 43 Hun, 564). Where the court has directed a 
 deposit or delivery, as prescribed in the above section, 
 or where a judgment directs a party to make a deposit 
 or delivery, or to convey real property; if the direction 
 is disobeyed, the court, besides punishing the disobedi- 
 ence as a contempt, may, by order, require the sheriff 
 to take, and deposit, or deliver the money or other per- 
 sonal property, or to convey the real property, in con- 
 formity with the direction of the court. ( Co. Civ. Proc. 
 § 718). Where a party brings money into court, pur- 
 suant to its direction, he is discharged thereby from all 
 further liability, to the extent of the money so paid in. 
 (Co. Civ. Proc. § 743). 
 48 
 
752 PRACTICH. 
 
 AETICLE VI. 
 
 GENERAL PROVISIONS. 
 
 SECTION. 
 
 1. Electing between provisional remedies. 
 
 2. Time for deciding motions, limited. 
 
 3. Defendant's right to provisional remedies. 
 
 Sec. 1. Electing Between Provisional Remedies. 
 
 Where an application for an order, of arrest, an in- 
 junction, and a warrant of attachment, or two of them 
 is made, in the same action, against the same defendant ; 
 and it satisfactorily appears, that, under the particular 
 circumstances of the case, two or all of them are not 
 necessary for the plaintiff's security, the court or judge 
 may, in its or his discretion, require the plaintiff to 
 elect between them. (Co. Civ. Proc. § 719). Where 
 sufficient property of the defendant has been attached 
 to satisfy plaintiff's claim, and an order of arrest, the 
 propriety of which is questionable, has been issued, the 
 plaintiff should be required to elect between the attach- 
 ment, and the order of arest. {Duncan v. Quest, 3 Civ. 
 Proc. Eep. 275). 
 
 See. 2. Time for Deciding Motions, Limited. 
 
 Where an application has been made to obtain, va- 
 cate, modify, or set aside an order of arrest, injunction 
 order, or warrant of attachment, the court or judge must 
 finally decide the same, within twenty days after it is 
 submitted for decision. (Co. Civ. Proc. § 719). But 
 a plaintiff who has obtained a provisional remedy, can- 
 not defeat a motion to vacate or modify it, by objecting 
 that it has been held under consideration more than 
 twenty days. {Stafford v. A)itbs. 8 Abb. N. C. 237). 
 An order, referring to a referee a motion to vacate or 
 modify a provisional remedy, is not void, though made 
 twenty days after the motion to vacate or modify was 
 made, and will not be set aside on that ground. (Id.). 
 
RECEIVERS AND OTHER PROVISIONAL REMEDIES. 753 
 
 Sec. 3. Defendant's Right to Provisional Remedies. 
 
 Where the defendant interposes a counter-claim, and 
 thereupon demands an affirmative judgment against the 
 plaintiff, his right to a provisional remedy is the same, 
 as in an action brought by him against the plaintiff, for 
 the cause of action stated in the counter-claim, and de- 
 manding the same judgment. And, for the purpose of 
 applying to such a case the provisions of the code of 
 civil procedure, the defendant is deemed the plaintiff, 
 the plaintiff is deemed the defendant, and the counter- 
 claim so set forth in the answer, is deemed the complaint. 
 (Co. Civ. Proc. § 720). 
 
CHAPTER XVIII. 
 
 TENDERS AND OTHER OFFERS. 
 
 ARTICLE I. . . .Tender after suit. 
 
 ARTICLE II.. .Satisfaction of part of plaintiff's claim. 
 ARTICLE III. .Offer to liquidate damages. 
 ARTICLE IV. .Offer to compromise. 
 
 ARTICLE I, 
 
 TENDER AFTER SUIT, 
 
 SECTION. 
 
 1. When it may be made. 
 
 2. How to be made. 
 
 3. Effect of tender. 
 
 4. When to be deducted from recovery. 
 
 5. Payment into court. 
 
 -6. Care and disposition of money paid into court. 
 
 Sec. 1. When it May be Made, 
 
 Where the complaint demands judgment for a sum of 
 money only ; and the action is brought to Fecover a sum 
 certain, or which may be reduced to certainty by cal- 
 culation; or to recover damages for a casual, or invol- 
 untary personal injury, or a like injury to property; 
 the defendant, or his attorney, may, at any time before 
 the trial, tender to the plaintiff, or his attorney, such 
 a sum of money as he conceives to be sufficient to make 
 amends for the injury, or to pay the plaintiff's demand; 
 together with the costs of the action to that time. ( Co. 
 Civ. Proc. § 731) . This section only authorizes a tender 
 after the suit has been commenced ( Brown v. Ferguson, 
 2 Denio, 196; Wil-son v. Doran, 110 X. Y. 101) ; but the 
 statutory provision on this subject has not eliminated 
 the old common law tender which may be made before 
 
TENDERS AND OTHEE OFFERS. 755 
 
 suit brought. (Brown v. Ferguson, supra; Cass v. Hig- 
 enhotam, 100 N. Y. 248, 253). The code of civil pro- 
 cedure seems to have made no radical change in the law 
 of tender {Cass v. Higenhotain, supra), and it is hardly 
 necessary, in our discussion of the subject, to differen- 
 tiate between those made before, and those made after, 
 the action began. A tender may be made in an action 
 on a bond, which has been given for the payment of dam- 
 ages, on account of the accidental collision with the 
 plaintiff's vessel. {Slack y. Broion, IS Wend. SdO). It 
 cannot be made in an action for unliquidated damages, 
 except those mentioned in the section. (Dunning v. 
 Humphrey, 24 Wend. 31). Where it is made in an ac- 
 tion, brought to recover damages for injuries, the judge 
 or referee must certify, whether the injury was casual 
 or involuntary. (Slack v. Brown, 13 Wend. 390). It 
 does not apply to actions in equity. CN. Y. Fire c§ Ma- 
 rine Ins. Co. V. Burrell, 9 How. Pr. 398 ; Pratt v. Rams- 
 dell, 16 Id. 59). 
 
 Sec. 2. How to be Made. 
 
 A proper and legal tender is not made if the person 
 making the tender seeks to force his creditor to sign a 
 satisfaction-piece (Roosevelt v. Bull's Head Bank, 45 
 Barb. 579), or to compel him to take the sum offered 
 and acknowledge it as in full payment of the debt 
 [Noijes V. Wyckoff^ 114 N. Y. 204; SMland v. Loeh, 58 
 App. Div. 565) ; the latter must be still free to prosecute 
 his claim for more, if he wishes. ( Id. ) . But where there 
 is no dispute as to the amount of the debt, a tender may 
 always be restricted by such conditions as by the terms 
 of the contract are conditions precedent or concurrent 
 to the payment of the debt (Halpin v. Phenix Ins. Co., 
 lis N. Y. 165), as, for example, that a mortgage be dis- 
 charged (Wheelock v. Tanner, 39 N. Y. 481), or that 
 certain collateral be given up (Cass v. Higenhotam, 100 
 N. Y. 248; Ocean Nat. Bk. v. Fant, 50 N. Y. 474), or 
 the return of a negotiable note (Smith v. Rockwell, 2 
 Hill, 482; Cutler v. Gould Co., 43 Hun, 516), or of a 
 bond and coupons (Bailey v. Coxmty of Buchanan, 115 
 N. Y. 297). The tender must be made in actual legal 
 
756 PRACTICE. 
 
 tender money ; but a tender of the amount by a check is 
 good, if it is not refused upon the ground that it is not 
 legal tender. [Duify v. O'Donovan, 46 N. Y. 223 j 
 Wright v. RoUnson & Co., 84 Hun, 172) . The party, to 
 whom the tender is made, is entitled to time to examine 
 the money, to see if it is a legal tender, or if it is such 
 money as he is willing to receive. {Harris v. Mulock, 
 9 How. Pr. 402) . An offer to pay is not a tender, unless 
 the plaintiff knowing that the defendant actually has 
 the money to pay in his possession, refuses to accept it, 
 in which case, he waives an actual offer of the money. 
 {Balceman v. Pooler, 15 Wend. 637; Strong v. Blake, 46 
 Barb. ^27) . A refusal to accept a formal tender if made,, 
 excuses one from making it ( Blewett v. Baker, 58 N. Y. 
 611 ) ; where there is a willingness, and an ability to per- 
 form there need be no actual tender thereof, if perform- 
 ance has been waived or prevented {Nelson v. Plimpton 
 F. P. El. Co., 55 N. Y. 480) ; and it seems that it may be 
 dispensed with by some positive act or declaration 
 {Bakeman v. Pooler, 15 Wend. 637; Laicrence v. Miller, 
 86 N. Y. 131, 137 ; Murr v. Western Assurance Co., 50 
 App. Div. 4 ) ; but, as in making proof of the tender under 
 such circumstances, it would be necessary for the de- 
 fendant to prove that the plaintiff knew that the defend- 
 ant had the money in his possession, and peremptorily 
 refused to receive it, it is not safe to rely on a tender, 
 without a production of the money; and the money 
 should always be produced, and actually tendered. If 
 the tender is rejected on a particular ground, which is 
 specified, no other objection which could have been ob- 
 viated can be relied upon to defeat it. {Duffy v. O'Don- 
 ovan, 46 N. Y. 223). The tender should be made to the 
 plaintiff, or to his attorney, or to some person who is 
 authorized to receive it in behalf of the plaintiff. 
 {Orussy v. Schneider, 50 How. Pr. 134; affd. 55 How. 
 Pr. 188; Hargous v. Laliens, 3 Sand. 213; Co. Civ. Proc. 
 § 731). It may be made to one of several plaintiffs, if 
 they are united in interest. {Wyckoff v. Anthony, 9 
 Daly, 417). A tender, made as prescribed in section 
 seven hundred and thirty-one of the code of civil pro- 
 cedure, does not avail the defendant, unless the money is 
 
TENDERS AND OTHEE OFFERS. 757 
 
 accepted, or is paid into court, and notice thereof served 
 in writing upon tlie plaintiff's attorney before the trial, 
 and within ten days after the tender. If the plaintiff 
 takes out the amount paid in, he accepts the tender. 
 (Co. Civ. Proc. § 732). This section deals Avith tenders 
 after suit (see page 754, ante), but the rule seems to be 
 precisely the same with reference to common-law ten- 
 ders ; i. e., those made before the action was commenced. 
 {Brou-n v. Ferguson, 2 Denio, 196; ^Yilson v. Doran, 110 
 N. Y. 101). To render the common-law tender effect- 
 ual, the defendant, before or with his plea, must pay 
 the money into court and serve notice upon the plain- 
 tiff's attorney of the fact (Id.) ; and a payment into 
 court on the day of the trial is too late. {Heyivood Boot, 
 etc. Co. V. Ralph, 82 Hun, 418). The tender under the 
 ■code is, of course, of no avail, unless it is paid into court, 
 and notice thereof given, as prescribed by this section, 
 and if notice is not given, the answer of tender may be 
 returned as a nullity. {Pla/tner v. Lehman, 26 Hun, 
 374). Although the tender is made with an allowable 
 condition attached (as explained above), the obligation 
 still rests upon the party making it of keeping the money 
 at all times ready for payment when demanded (Roose- 
 velt v. Bull's Head Bank, supra), and, when sued, of 
 paying into court, in order to prevent a judgment on 
 the indebtedness, or the recovery of costs. {Hal pin v. 
 Pheni.JP Ins. Co., supra; Osterman v. Goldstein, 32 
 Misc. 676 ; Riley v. Gheeseman, 75 Hun, 387 ; Nelson v. 
 Loder, 132 N. Y. 288). It may well be, however, that 
 a tender which is not so kept good may still be effective 
 in discharging a lien. {Cass v. Higenbotam, 100 N. Y. 
 248; Nelson v. Loder, supra; Exchange Fire Ins. Co. v. 
 N orris, 74 Hun, 527). To make a payment into court, 
 the precise sum and the identical money which was 
 tendered, should be paid to the county treasurer to be 
 delivered to the plaintiff, if he demands it, and notice 
 that that has been done should be given to the plaintiff. 
 (Co. Civ. Proc. §§ 745, 732) . Where the tender is made 
 by a check (unobjected to), a proper practice is to pay 
 the amount in money into court. {Wright v. Robinson 
 Co., 84 Hun, 172; Linh v. MacJo, 25 Misc. 615). In his 
 
758 
 
 PRACTICE. 
 
 answer, pleading a tender, the defendant should set up 
 the payment into court. {Becker v. Boon, 61 N. Y. 
 317). If the defendant does not allege that fact, the 
 answer is not sufficient. {Knight v. Beach, 7 Abb. Pr. 
 N. S. 241) ; but if an answer, omitting such an allega- 
 tion with reference to a tender before suit, is received 
 and returned without raising an objection to the omis- 
 sion, the plaintiff may be deemed to have taken issue 
 upon the plea of tender and waived the irregularity in 
 this matter of practice. {Smith v. Slosson, 89 Hun, 
 568). It was held in Becker v. Boon {supra), that, 
 where the answer contained other defenses in addition 
 to that of the tender, there would be no such waiver, 
 but the case does not seem to have been followed, as 
 in Wilson v. Dor an (110 N. Y. 101), as well as in Smith 
 v. Slosson {supra), the answers set up other defenses. 
 It is to be borne in mind that, while the necessity of the 
 deposit and the allegation thereof in the answer may be 
 so waived, there still exists the necessity of the produc- 
 tion of the money at the trial to render the tender 
 effectual. {Knight v. Beach, 7 Abb. Pr. N. S. 241, 247) . 
 In the case of the statutory tender, however, the notice 
 of deposit is not a mere matter of practice but is an 
 essential part of the prescribed statutory procedure, and 
 no such waiver is to be inferred from the failure of the 
 plaintiff to raise the question before trial. {Wilson v. 
 Dor an, supra). 
 
 Sec. 3. Effect of Tender. 
 
 The tender is an admission that the plaintiff is en- 
 titled to recover the amount tendered, but no more. 
 {Wilson V. Doran, 110 N. Y. 101; Spalding v. Yander- 
 cook, 2 Wend. 431):. The money deposited becomes the 
 property of the plaintiff. {Wilson v. Doran, supra; 
 Becker v. Boon, 61 N. Y. 317). And he is entitled to 
 take it at any time; and he need not wait until final 
 judgment in the action. The plaintiff is entitled to take 
 it, no matter what may be the event of the action 
 Kelly V. West, 36 Super. 304) ; and the defendant can- 
 not in any event have the money back. {Taylor v. 
 Brooklyn El. R. R. Co., 119 N. Y. 561). If it appears. 
 
TENDERS AND OTHER OFFERS. 75g 
 
 upon the trial, that the sum so tendered was sufficient 
 to pay the plaintiff's demand, or to make amends for 
 the injury, and also to pay the costs of the action to 
 the time of the tender, the plaintiff cannot recover costs 
 or interest from" the time of the tender, but must pay 
 the defendant's costs from that time. (Co. Civ. Proc, 
 § 733). After the tender and payment into court, the 
 only question to be litigated is whether the plaintiff 
 has established a cause of action for more than the 
 amount of the tender ; if the plaintiff does not prove that 
 he is entitled to more than the amount paid into court, 
 there should be a non-suit, or a verdict for the defend- 
 ant. {Daldii V. Dunning, 7 Hill, 30; Wilson v. Doran, 
 supra). If the plaintiff" shows that he is entitled to 
 more than the amount paid in, he should have a verdict, 
 for the whole amount of his claim. {Kellij v. West, 36 
 Super. 304; Dakin v. Du lining, 7 Hill, 30). In other 
 words, the plaintiff runs a risk, after a tender and de- 
 posit, of paying defendant's costs if the recovery falls 
 short of the amount tendered ; while the defendant runs 
 the risk of losing the amount of moneys deposited in 
 event of his success upon the ensuing trial. ( Taylor v. 
 Brooklyn El. R. R. Co., 119 N. Y. 561). 
 
 Sec. 4. When to be Deducted from Recovery. 
 
 If the plaintiff proceeds in the action, after accepting 
 the tender, the sum accepted must be deducted from the 
 recovery, and judgment rendered for the residue, if any; 
 and if the tender and acceptance do not appear in the 
 pleadings, a memorandum thereof must be annexed to 
 the judgment roll. The plaintiff's right to recover costs, 
 and his liability to pay costs to the defendant, are deter- 
 mined by the amount of the residue. (Co. Civ. Proc. § 
 734). The amount of the residue, after deducting the 
 tender, is regarded as the full amount of the plaintiff's 
 recovery, for the purpose of fixing his right to costs, so 
 that if the residue is less than fifty dollars, the defendant 
 will recover costs, unless the action is one of those in 
 which a justice of the peace has no jurisdiction. (Co. 
 Civ. Proc. §§ 2863, 3229, subd. 3). 
 
760 PRACTICE. 
 
 Sec. 5. Payment into Court. 
 
 The right of the defendant to pay money into court, 
 when no tender has been made, was the subject of dis- 
 cussion in the case of Wilson v. Doran (39 Hun, 88), 
 in which Mr. Justice Bradley, delivering the opinion of 
 the court, discussed the subject fully; and the rest of 
 this section is substantially a quotation from his opinion 
 delivered in that case. 
 
 "At common law, payment of money may, when tender 
 has' been made before suit, and when no tender has been 
 made, be paid into court; and when so paid into court, 
 the money becomes that of the plaintiff, and the defend- 
 ant cannot in any event of the action, take it out. {Mur- 
 ray V. Bethunc, 1 Wend. 191; Malcolm v. Fallerton, 2 
 Durn. & E., 645, 618). The payment into court during 
 the pendency of the action, without tender, required a 
 rule to that effect, which w^as as a matter of course, en- 
 tered before plea, and after that special leave by order 
 was required. {Griffiths v. Williams^ 1 Durn. & E. 710; 
 Diinlap V. Commercial Ins. Co., 1 Johns. 149; Baker v. 
 Hunt, 1 Wend. 103). And if the plaintiff accepted and 
 took the money, he was entitled to costs up to the time 
 of payment into court. But if he proceeded to trial, 
 and was finally entitled to no more than the amount so 
 paid in, he was allowed no costs, but was required to pay 
 the defendant's costs subsequent to the pajanent into 
 court. {8tcrcuson v. York, 4 Durn. & E. 10; Kabell 
 V. Hudson, Id. 11; Burstall v. Horner, 7 Id. 368; Aikins 
 V. Colton, 3 Wend. 326). Payment into court is an 
 admission of liability upon the cause of action alleged, 
 to the extent of the amount so paid in; and it is not 
 important for that purpose, whether it follows and is 
 pursuant to tender before suit, or paid in during its 
 pendency, without previous tender ; beyond that his ( de- 
 fendant's) liability to pay may be contested. {Cox v. 
 Parrij, 1 Durn. & E. 464; Long v. Grerille, 4 Dowl. & 
 Ky. 632; Rcid v. Steutou, 5 B. & Ad. 499; Meager v. 
 Smith, 4 Id. 673 ; Spalding v. Vandercook, 2 Wend. 431 ; 
 Berdan v. Greenwood, 3 Exch. Div. 251; Hawksley v. 
 Bradshair, 5 Q. B. Div. 302). And in either case 
 (whether paid into court pursuant to such tender, or 
 
TENDERS AND OTHER OFFERS. 761 
 
 after the commencement of the action, by virtue of what 
 was known as a common rule entered for the purpose), 
 if the plaintiff fail to establish a right to recover a 
 greater sum than that paid in, the defendant was en- 
 titled to non-suit or verdict. {Stevenson v. York, 4 
 Durn. & E. 10; Burstall v. Horner, 7 Id. 368; Archer v. 
 English, 1 Man. & Gr. 873; Aikins v. Golton, 3 Wend. 
 326; Murray v. Bethune, 1 Id. 191; Dakin v. Dunning, 
 7 Hill, 30 ; Becker v. Boon, 61 N. Y. 317, 322 ; Plainer 
 V. Lehman, 26 Hun, 374). This proposition is founded 
 upon the reason that the payment into court is payment 
 pro tanto of the claim alleged, and so much of it is in 
 practical effect stricken out of the complaint. [Bank 
 of Cumberland v. Southcrland, 3 Cow. 336, 338). * * 
 * * When that is properly done, the plaintiff must 
 establish a right to more than was tendered, or paid into 
 court, or judgment will go against him. And the money 
 in court is treated as a payment to him, and is his 
 from the time it is so paid in. It is said that the pay- 
 ment into court is an admission of the cause of action 
 alleged (Johnson v. Columbia Ins. Co., 7 Johns. 315) ; 
 but that rule has its qualifications. It is an admission 
 only as to the amount paid in; except that when the 
 action is upon a special contract, it also admits the 
 contract, and breach alleged; and the question becomes 
 one of damages only. (Perren v. Monmouthshire R. R. 
 Co., 11 C. B. 855; Kingham v. Robhins, 5 M. & W. 94; 
 Tate V. Willan, 2 East, 134 ; limited by Clark v. Gray, 
 6 East, 564, 571 ; and see Huntington v. American Bank, 
 6 Pick, 340) . Payment into court, upon a general count 
 of indebitatus assumpsit, admits nothing more than 
 liability for the amount so paid in. (Perren v. Mon- 
 mouthshire R. R. Co., 11 C. B. 855). * * * My at- 
 tention is called to no statute, which seems to have the 
 effect to abrogate the right and practice at common 
 law of paying into court, pursuant to a rule or order, 
 during the pendency of the action, without any tender 
 having been made. The revisors' note on the subject 
 does not indicate such purpose. (3 Rev. Stat., 2 Ed. 
 779 ) , and the court has treated the common law rule in 
 that respect as remaining, by the application of it since 
 
762 
 
 PRACTICE. 
 
 the statute. {Dakiny. Dunning,! Rill, SO)." (Wilson 
 V. Dor an, 39 Hun, 88). The judgment entered upon 
 this opinion of the general term was reversed by the 
 court of appeals (110 N. Y. 101), but only on a question 
 not affecting the soundness of the reasoning found 
 in the opinion below, which continues to be the best 
 exposition of the law on this subject. 
 
 Sec. 6. Care and Disposition of Money Paid into Court. 
 
 All money, which has been paid into court in any ac- 
 tion, is to be kept by the county treasurer of the county, 
 or in New York city, by the chamberlain of that city. 
 (Co. Ciy. Proc. § 745). The comptroller of the state of 
 New York shall supervise the administration of all the 
 .funds paid into any court of record, and shall prescribe 
 regulations and rules for the care and disposition there- 
 of, which shall be observed by all parties interested 
 therein, unless the court having jurisdiction over the 
 same, shall make different directions, by special order 
 duly entered in accordance with section 717 of the code 
 of civil procedure (Co. Civ. Proc. § 744) ; such funds 
 shall be deposited with such bank, trust company, etc., 
 as the state comptroller shall designate (Co. Civ. Proc. 
 § 746) ; but the court may always direct, by an order 
 or decree, concerning the disposition of such funds. 
 (Co. Civ. Proc. § 747). When the court makes such 
 special order, it must require the money to be paid to 
 or invested by such trust company as has heretofore 
 been designated by the supreme court, or as shall here- 
 after be designated by the the appellate division for 
 that purpose. (General Rule 68) . It is the duty of the 
 attorney, upon whose motion the funds are brought into 
 court, to file with the county treasurer [the city cham- 
 berlain in the city and county of New York] or with 
 the bank or company, to whom the same are to be paid 
 according to the order or judgment or according to the 
 practice of the court, a certified copy of said order or 
 judgment. ( Id. ) . Orders upon the banks or other trust 
 companies for the payment of moneys out of court shall 
 be made to the order of the person entitled thereto, or 
 of his attorney duly authorized, and shall specify in 
 
TENDERS AND OTHER OFFERS. 763 
 
 what particular suit or on what account the money is to 
 be paid out, and the time when the order authorizing 
 such payment was made. No order in any pending 
 action, for the payment of money out of court, shall be 
 made, except on regular notice or order to show cause, 
 duly served on the attorneys of all the parties who have 
 appeared therein or filed notice of claim thereto. (Gen- 
 eral Eule 69). The draft upon the trust company for 
 such moneys, or for interest thereon, must contain the 
 title of the cause or matter on account of which the draft 
 is made, and the date of the order authorizing such draft, 
 and must be made payable to the order of the person or 
 persons entitled to the money, or of his or their attorney, 
 who is named in the order of the court authorizing such 
 draft. (Id.). No money, security, or other property 
 which shall have been placed in the custody of the court 
 shall be surrendered without the production of a prop- 
 erly certified copy of an order of the court, in whose 
 custody said money, security or other property shall 
 have been placed, duly made and entered, directing such 
 disposition. Each order must be countersigned by the 
 presiding judge by whose direction it is made. (Co. 
 Civ. Proc. § 751). Any attorney or other person pro- 
 curing an order for the payment of money out of court, 
 shall obtain two certified copies of the order, both to be 
 countersigned by the judge granting the same ; one copy 
 shall be filed with the county treasurer [the city cham- 
 berlain in the city and county of New York] and the 
 other shall accompany the draft drawn upon the deposi- 
 tary and be filed with it, and the several banks and other 
 depositaries having trust funds of the court on deposit, 
 are forbidden to pay out any such funds without the 
 production and filing of such certified and countersigned 
 copy order. (General Rule 69). One copy of an order 
 directing periodical payments is sufficient for all the 
 payments. .( !<!•)• 
 
764 PRACTICE. 
 
 ARTICLE II. 
 
 SATISFACTION OF PART OF PLAINTIFF'S CLAIM. 
 
 Where the answer of the defendant, expressly or by 
 not denying, admits a part of the plaintiff's claim to 
 be just, the court, upon the plaintiff's motion may, in 
 its discretion, order that the action be severed; that a 
 judgment be entered for the plaintiff for the part so 
 admitted ; and, if the plaintiff so elects, that the action 
 be continued, with like effect as to the subsequent pro- 
 ceedings, as if it had been originally brought for the 
 remainder of the claim. The order must prescribe the 
 time and manner of the plaintiff's election. If the plain- 
 tiff elects to continue the action, his right to costs upon 
 the judgment, is the same as if it was taken in an ac- 
 tion brought for only that part of the claim. If the 
 plaintiff does not so elect to continue the action, costs 
 must be awarded as upon final judgment in any other 
 case. (Co. Civ. Proc. § 511). This section is applicable 
 alike to actions at law and suits in equity ; so, where the 
 answer in a foreclosure suit denies no part of the com- 
 plaint but avers a payment not allowed in the complaint, 
 the plaintiff may admit the payment and have judgment 
 for the balance. {Hall v. Holt, 25 Hun, 277). Judg- 
 ment may be ordered under this section, for a part of the 
 entire claim, where the answer admits a specific sum to 
 be due upon it. ( Quintard v. Secor, 3 E. D. Smith, 614 ; 
 Wireman v. Remington S. M. Co., 39 Super. 314). And 
 where the action is on several causes of action, to one 
 of which the defendant interposes no defense, judgment 
 may be ordered as to that one {Russell v. Meaehayn, 16 
 How. Pr. 193 ; Bradbury v. Winterhottom, 13 Hun, 536) ; 
 if the answer does not contain counter-claims in an 
 amount greater than that demanded in the complaint. 
 {Cronin v. Teho, 63 Hun, 190). But the answer must 
 contain a plain, full and explicit admission that a 
 definite sum is due to the plaintiff, and the amount 
 stated must be certain {Dolan v. Petty, 4 Sand. 673; 
 dour sen v. Hamlin, 2 Duer, 513) ; and the admission 
 
TENDERS AND OTHER OFFERS. 765 
 
 must be that the plaintiff's claim as such is justly due. 
 {Burgess v. House, 49 App. Div. 383). A judgment 
 will not be ordered, where the answer denies the plain- 
 tiff's claim, and alleges that the plaintiff is not entitled 
 to more than a sum pamed (Dolan v. Petty, supra) ; 
 nor where it admits that he is entitled to a reasonable 
 sum, without naming it {Hildreth v. Carpenter, 23 Wk. 
 Dig. 354) ; nor where, to ascertain whether a specific 
 sum is due, a critical examination of the pleadings, 
 or of books and accounts is necessary {Goursen v. Ham- 
 lin, 2 Duer, 513) ; nor where a specific sum is admitted 
 to be due conditionally upon the surrender of a draft, 
 held as security. (Foster v. Devlin, 57 N. Y. Super. Ct. 
 Eep. 120). But where the defendant tenders a certain 
 sum, and offers judgment for that sum, the court will 
 order a judgment for it, under section five hundred and 
 eleven. (Roosevelt v. N. Y. & Harlem R. R. Co., 45 
 Barb. 554 ) . Where a fund in litigation has been brought 
 into court, and the answer admits part of it to be due 
 to the plaintiff, but disputes his claim to the residue, 
 the court may order judgment for the sum admitted, 
 without prejudice to the further claim of the plaintiff. 
 (Merritt v. Thompson, 3 E. D. Smith, 599). Where a 
 surviving partner, sued by the administrator of the 
 deceased partner for an accounting, admits the balance 
 in his hands due to such partner's estate, but makes 
 claims against the decedent, and against the partner- 
 ship, judgment may be ordered against him under that 
 section, for such balance, less the claim against the 
 decedent, upon the administrator's giving security to 
 pay the decedent's proportion of the claims against 
 the firm, and of the costs and expenses. (Roberts v. 
 Lata, 4 Sand. 642). Where the answer stated that the 
 defendant, who was surety for the payment by the plain- 
 tiff of rent then in arrear, had received from him a sum 
 of money to be applied on account of the rent, that 
 defendant still held the same, and that no demand had 
 been made for payment back, which he was willing to 
 make, it was held to be an admission of a trust, and 
 that it was proper to order a judgment for the amount 
 admitted to have been received, under this section. 
 
766 PRACTICE. 
 
 {Burhans v. Casey, 4 Sand. 706) . In an action on a draft, 
 where the answer alleged that it was given for the price 
 of goods sold by the plaintiff, and set up breach of 
 warranty, and a claim to recoup damages therefor of a 
 part of the amount, judgment M'as ordered for the 
 plaintiff for the residue of his claim, after deducting 
 the amount claimed for damages. {Baker v. Nusshauni, 
 1 Hilt. 549). In an action for services, where the 
 answer did not deny the plaintiff's claim, but only the 
 value of the services, and alleged that the services were 
 only worth a certain sum, judgment was ordered for 
 that sum. (Quintard v. Secor, 3 E. D. Smith, 614). 
 Judgment will not be ordered for the plaintiff under 
 this section, where the whole claim is admitted. {Slau- 
 son V. Conltey, 10 How. Pr. 57; reversing S. C, 1 Abb. 
 Pr. 228). It is not enough to authorize a judgment, 
 that the defendant admits that he has a fund which the 
 plaintiff seeks to recover, if he denies the plaintiff's 
 right to the fund. {Bender v. Sherwood, 15 How. Pr. 
 258). Application for the order should be made to 
 the court at special term, upon notice, although the 
 court has power to grant an ex parte application. 
 {Shaiv V. Coleman, 54 N. Y. Super. Ct. Kep. 3). It 
 may be made at any stage of the action. It is discre- 
 tionary with the court in all cases, whether or not to 
 exercise the power granted by this section. {Lawton 
 V. Shepherd, 5 Wk. Dig. 319). The fact that an offer 
 of judgment has been made and refused, is no reason 
 for denying the motion. {Quintard v. Secor, 3 E. D. 
 Smith, 614; Bradbury v. Winterhottom, 13 Hun, 536; 
 W'ireman v. Remington S. M. Co., 39 Super. 314). 
 Where the form of the action was such, that to order 
 a judgment under this section, would subject the defend- 
 ant to imprisonment under a body execution, the court 
 refused to make the order. {Slauson v. Coul-ey, supra). 
 The provision of the code of procedure upon that subject 
 (Co. Proc. § 244) only gave the court authority 'to 
 make an order for the payment of the money; but it 
 provided that the order might be enforced as a judg- 
 ment. Under this section it was held that a judgment 
 might be ordered in the action for the amount which 
 
TENDERS AND OTHER OFFERS. 767 
 
 was admitted to be due to the plaintiff. {Duncan v. 
 'Ainslic, 26 Barb. 199). Tlie code of civil procedure, 
 however, provides that judgment may be ordered for 
 the amount due, and that the action may be severed; 
 and the judgment so ordered is, of course, to be enforced 
 like any other judgment, for the same cause of action. 
 An appeal lies from a direction made under this section. 
 [Bradhni-y v. Wiiiterboitom, 13 Hun, 536; Merritt v. 
 Thompson, 3 E. D. Smith, 599). Where there is an 
 order of severance and judgment under this section, 
 the plaintiff is not entitled to costs in such judgment 
 unless he elects not to continue the action for the 
 remainder of his claim. {Waite v. Kaldenberg Co., 
 68 Hun, 528). 
 
 ARTICLE III. 
 
 OFFER TO LIQUIDATE DAMAGES. 
 
 SECTION. 
 
 1. When it may be made. 
 
 2. Effect of acceptance or refusal. 
 
 Sec. 1. When it May be Made. 
 
 In an action to recover damages for breach of a con- 
 tract, the defendant's attorney may, with the answer, 
 serve upon the plaintiff's attorney a written offer, that 
 if the defendant fails in his defense, the damages may 
 be assessed at a specified sum. (Co. Civ. Proc. § 736). 
 The offer must be served with the answer. If made by 
 the attorney, it must be subscribed by him, and he must 
 annex to it an affidavit, that he is duly authorized to 
 make it in behalf of the party. (Co. Civ. Proc. § 740). 
 
 Sec. 2. Eflfect of Acceptance or Refusal. 
 
 If the plaintiff serves notice, that he accepts the offer, 
 with or before the notice of the trial, and damages are 
 awarded to him on the trial, they must be assessed 
 accordingly. (Co. Civ. Proc. § 736). If the plaintiff 
 does not accept the offer, he cannot prove it upon the 
 trial. But if the damages awarded to him, do not ex- 
 ceed the sum offered, the defendant is entitled to recover 
 
768 PRACTICE. 
 
 the expenses necessarily incurred by liim in preparing 
 for the trial of the question of damages. The expenses 
 must be ascertained, and the amount thereof deter- 
 mined, by the judge, or the referee, by or before whom 
 the case is tried. (Co. Civ. Proc. § 737). The accept- 
 ance, if made by the attorney, must be subscribed and 
 verified in the same manner as the offer. (Co. Civ. 
 Proc. § 740). 
 
 ARTICLE IV. 
 
 OFFER TO COMPROMISE. 
 
 SECTION. 
 
 1. When made by defendant. 
 
 2. When made by plaintiff. 
 
 3. Acceptance. 
 
 4. Effect of refusal. 
 
 Sec. 1. When Made by Defendant. 
 
 The defendant may, before the trial, serve upon the 
 plaintiff's attorney, a written offer, to allow judgment 
 to be taken against him, for a sum, or property, or to 
 the effect, therein specified, with costs. If there are 
 two or more defendants, and the action can be severed, 
 a like offer may be made by one or more defendants, 
 against whom a separate judgment may be taken. (Co. 
 Civ. Proc. § 738). A proper service of the offer and 
 afiidavit of authority is made by the delivery of copies 
 thereof to the plaintiff's attorney; the original offer 
 and afiidavit need not be delivered. {Smith v. Kerr, 
 49 Hun, 29). An offer may be made in any action 
 (BridenhecJcer v. Mason, 16 How. Pr. 203; Astor v. 
 Pelache, 49 How. Pr. 231; Bathgate v. Hasl-in, 63 N. Y. 
 261; Singleton v. Home Ins. Co., 121 N. Y. 644) ; though 
 it would seem to be of little value in matrimonial 
 actions. {Dailey v. Daileij, 9 Misc. 511). The case of 
 Stevens v. Veriane (2 Lans. 90), which holds to the 
 contrary, is overruled. The offer may be made, al- 
 though the effect of it may be to prefer one creditor 
 over another. {Beards v. Wheeler, 11 Hun, 539; 76 N. 
 Y. 213). If it appears, however, that it is made for 
 the purpose of avoiding the provisions of the code as 
 
TENDERS AND OTHER OFFERS. 769 
 
 to confession of judgment, the court may set aside a 
 judgment upon the olfer. (Ross v. Bridfje, 15 Abb. Pr. 
 150; 21 How. Pr. 163). But it will do so only for 
 actual fraud {Beards v. WJtcelcr, 11 Hun, 539), and 
 unless it plainly appears that the judgment, so entered, 
 is collusive or fraudulent, it cannot be set aside, where 
 it is recovered in this manner. ( Trier v. Hermann, 
 44 Hun, 489; affd. 115 N. Y. 163). The offer may be 
 made before the service of the complaint {Kilts v. 
 Seeber, 10 How. Pr. 270), or at any time before the 
 trial of the action. But, as the plaintiff has ten days 
 within which to accept the offer, if it is made within 
 ten days before the case is reached for trial, it is sub- 
 stantially a nullity {Herman v. Lyons, 10 Hun, 111) ; 
 and the plaintiff can, without paying any attention to 
 the offer, move the case for trial, or take an inquest,, 
 or take any other proceeding in the case, as though 
 no offer had been made {HmvJeij v. Dacis, 5 Hun, 642) ; 
 and he is entitled to costs, although he recovers a judg- 
 ment less favorable than that offered, {^ares v. Mat- 
 theiDS, 39 N. Y. St. Eep. 921; S. C, 15 N. Y. Supp. 510). 
 Such an offer, being a nullity, the plaintiff's attorney 
 is not bound to return it. {Warner v. Babcock, 9 App. 
 Div. 398) . When the offer is made by mail the plaintiff 
 has twenty days in which to accept it. {Van Allen v. 
 Glass, 60 Hun, 546). The offer may be for the full 
 sum claimed in the complaint. {Ross v. Bridge, 15 Abb. 
 Pr. 150 ; 24 How. Pr. 163 ) . It must contain a consent 
 that the judgment offered may be taken with costs, or it 
 is a nullity. {Ranney v. RiissclL 3 Duer, 689; Loriitf/ 
 V. Morrison, 25 App. Div. 139). It is not necessary 
 that the sum for which the offer is made shall be ex- 
 plicitly stated in terms, if by reference to the pleadings 
 it can be readily ascertained. {Burnett v. Wcsffall,. 
 15 How. Pr. 420, 425). The offer must be absolute, and 
 not upon any condition whatever. {Pincknei/ v. Ghilds. 
 7 Bosw. 660). It must be so distinct and plain, as to 
 leave no doubt as to the meaning or extent of it. 
 {Bettis V. Ooodtvill, 32 How. Pr. 137). If it is ambigu- 
 ous, it is to be construed most strongly against the 
 party making it. (Id.). In an action for foreclosure. 
 
770 
 
 PRACTICE. 
 
 where the whole amount was not due, the offer was held 
 to be insufficient, unless it offered that the amount due 
 might be adjudicated. (Id.). In an action for dower, 
 an offer to allow judgment that a specific number of 
 acres might be set off, is too indefinite ; the land offered 
 should be described, so that judgment could be entered 
 upon the offer. {Marble v. Le»-/«, 53 Barb. 432). A 
 consent endorsed on the complaint, that judgment might 
 be entered against the defendant for the amount claimed 
 therein, is equivalent to an offer of judgment under this 
 section, {^yhlte v. Boc/art, 73 N. Y. 256). If there 
 is more than one defendant, the offer may be made by 
 any one, against whom a separate judgment could be 
 taken. (Co. Civ. Proc. § 738). If the action is against 
 joint debtors, the offer must be made by all, or on 
 behalf of all. {Griffiths v. DeForcst, 16 Abb. Pr. 292; 
 25 How. Pr. 336; Hccl-nnanu v. Young, 55 Hun, 406). 
 One joint debtor, or partner, cannot make an offer for 
 his co-partner, or joint debtor {Garrison, v. Garrison, 
 67 How. Pr. 271; Tripp v. Saunders. 59 How. Pr. 379) ; 
 unless there is evidence of his authority to do so. {Bin- 
 ney v. LeGal, 19 Barb. 592). Section nineteen hundred 
 and thirty-two of the code does not apply to offers made 
 under this section. Where the offer is made by one 
 joint debtor, judgment entered upon it will be set 
 aside upon motion. {Erersoa v. Gehrmaii, 1 Abb. Pr. 
 67; 10 How. Pr. 301). Where an action is against 
 joint debtors, and one has made default, if the other 
 answers, and makes an offer of judgment, the plaintiff 
 may at once enter judgment against all the parties 
 {LaForge v. Chilson, 3 Sand. 752) ; but if the defendants, 
 who did not join in the offer, are not in default, so that 
 judgment can be entered against them at the time of 
 the acceptance, the plaintiff can not enter judgment 
 against any of the defendants on the offer. {Briden- 
 heclcer v. Mason, 16 How. Pr. 203). If several defend- 
 ants join in the offer, it should be signed by each one 
 of them. The signature of the firm name by one partner 
 does not authorize entry of judgment against the other 
 partner, but only against the party actually signing the 
 offer. {Bridenhecker v. Mason, supra). If the offer 
 
TENDERS AND OTHER OFFERS. 771 
 
 is made by a party to an action, his signature need not 
 be proved or aclinowledged {Pfister v. Htumm, 7 Misc. 
 526) ; but if it is by his attorney in fact, his authority 
 should be proved. {Bridcnbecker v. Mason, supra). If 
 an offer is made by the attorney for the party in the 
 action, he must subscribe it, and annex thereto his 
 affidavit, to the effect tliat he is duly authorized to 
 make it in behalf of the party. (Co. Civ. Proc. § 740). 
 An unverified offer by an attorney is a nullity, and no 
 notice need be taken of it, not even to return it and 
 the plaintiff may proceed in the action, as though the 
 offer had not been served upon him. {Rlggs v. Waijdell, 
 78 N. Y. 586 ) . If the action is against several defend- 
 ants, for whom one attorney has appeared, and any of 
 them have not authorized the attorney to make the offer, 
 they will upon motion be allowed to defend; but the 
 judgment entered upon the offer will be allowed to 
 stand as security against them. {Blodget v. Conklin, 
 9 How. Pr. 442; 8tcrne v. Bentley, 3 How. Pr. 331). 
 Making the offer operates substantially as a stipula- 
 tion in the cause not to proceed further while it is 
 pending, and the party making it, cannot during that 
 time take any proceeding in the action prejudicial to 
 the opposite party, {^yalher v. Johnson, 8 How. Pr. 
 240). He may, however, notice the cause for trial, or 
 do any formal act in the action; but he cannot take a 
 default if it is reached for trial. Intermediate the offer 
 and the expiration of the ten days allowed for its accept- 
 ance, he may serve an answer containing a counter- 
 claim which stands and is to be considered in determin- 
 ing the relative amount of plaintiff's recovery, in case 
 the offer is not accepted {Kautz v. Vandenbiirgh, 77 
 Hun, 591; Tompkins v. Tves, 36 N. Y. 75); but the 
 answer in such a case is only provisional, and is not to 
 be considered if the plaintiff accepts the offer. {V. S. 
 Mortgage & Trust Co. v. Hodgson, 30 Misc. 84). An 
 offer may be amended by leave of the court, nunc pro 
 tunc [Citizen's Nat. Bk. v. Shaio, 46 Hun, 589), even 
 after the trial of the action. {Eagan v. Sloore, 2 Civ. 
 Pro. Kep. 300 ) . But no amendment can be made with- 
 out an order of the court ( Vellerman v. King, 2 Edm. 
 
772 PRACTICE. 
 
 Sel. Cas. 371) ; nor, without such permission, can the 
 offer be withdrawn. (McVickar v. Keating, 19 App. 
 Div. 581). Of course, a second, offer of judgment for 
 a different amount may be served. {Hibhard v. Ran- 
 dolph, 72 Hun, 626). The offer of judgment and ac- 
 ceptance, when served, constitute a contract between the 
 parties which the court cannot set aside upon motion. 
 {Stilwell V. Stilwell, 81 Hun, 392). The acceptance 
 and entry of judgment upon a general offer concludes 
 the plaintiff from bringing a new action for any part 
 of the claim embraced in the complaint, and which 
 might have been litigated in the former action {Shep- 
 herd V. Moodhe, 150 N. Y. 183). A counter-claim, con- 
 tained in an answer served after the offer of judgment, 
 is not extinguished, however, by the acceptance of the 
 offer. {Kauts Y. Yandenburgh, supra). Where the de- 
 fendant has made an offer of judgment and subsequently 
 the plaintiff is allowed to amend his complaint in respect 
 to the amount of interest claimed, the court should 
 impose as a condition of such amendment that the de- 
 fendant be allowed to increase his offer. {Brooks v. 
 Mortimer, 10 App. Div. 518 ) . 
 
 Sec. 2. When Made by Plaintiff. 
 
 Where the defendant sets up a counter-claim, to an 
 amount greater than the plaintiff's claim, or sufficient 
 to reduce the plaintiff's recovery below fifty dollars, 
 the plaintiff may serve upon the defendant's attorney, 
 a written offer, to allow judgment to be taken against 
 him for a specified sum, with costs, or against the de- 
 fendant for a specified sum, and against the plaintiff 
 for costs. (Co. Civ. Proc. § 739). When the offer is 
 made by the plaintiff under this section, the rules with 
 regard to it are the same as when it is made by the 
 defendant, which have been stated in the previous sec- 
 tion of this article. 
 
 Sec. 3. Acceptance. 
 
 If the plaintiff, within ten days after the defendant's 
 offer, serves upon the defendant's attorney, a written 
 notice that he accepts the offer, he may file the sum- 
 
TENDERS AND OTHER OFFERS. 773 
 
 mens, complaint, and offer, with proof of the acceptance, 
 and thereupon the clerk must enter judgment accord- 
 ingly. (Co. Civ. Proc. § 738). If the defendant, with- 
 in ten days after the plaintiff's offer, serves upon the 
 plaintiff's attorney, notice that he accepts the offer, 
 either party may file the summons, complaint, answer 
 and offer, or copies thereof, and proof of acceptance ; and 
 thereupon the clerk must enter judgment accordingly. 
 (Co. Civ. Proc. § 739). Judgment upon the acceptance 
 may be entered without any application to the court. 
 (Hill V. Northrop, 9 How. Pr. 525). If judgment had 
 been entered without a formal acceptance, it is a mere 
 irregularity, which may be disregarded, or it may be 
 amended ii unc pro tunc, by the court. ( White v. Bogart^ 
 73 N. Y. 256). The only way a party can avail himself 
 of an offer of judgment is by the acceptance provided 
 for in the code; it cannot be used on a motion for 
 severance and judgment. (2V. Y. Wire Co. v. Westing- 
 house Co., 85 Hun, 269). Where an offer of judgment 
 has been made and accepted, the court has power to 
 grant an allowance in addition to costs in the action, 
 if it is otherwise a proper case. (Goates v. Goddard, 
 34 N. Y. Super. Ct. Kep. 118 ; Safety Steam Go. v., Dick- 
 son Mfg. Go., 61 Hun, 335). 
 
 Sec. 4. Effect of Refusal. 
 
 If notice of the acceptance of defendant's offer is 
 not given within ten days, the offer cannot be given 
 in evidence on the trial; but if the plaintiff fails to 
 obtain a more favorable judgment, he cannot recover 
 costs from the time of the offer, but must pay costs 
 from that time. (Co. Civ. Proc. § 738). 
 
 If notice of the acceptance of plaintiff's offer is not 
 given within ten days, the offer cannot be given in evi- 
 dence upon the trial; but if the recovery is not more 
 favorable to the defendant, than that so offered, he 
 will not be entitled to recover costs from the time of 
 the offer, but must pay costs from that time. (Co. Civ. 
 Proc. § 739) . If the offer is not accepted, it is not com- 
 petent evidence in the case. (Lintz v. Howard, 18 Hun, 
 424). The plaintiff is entitled to costs to the time of 
 
774 PRACTICE. 
 
 making the offer, whether the judgment is more favor- 
 able to him or not. [Magniii v. Dinsmore, 46 How. 
 Pr. 297; 15 Abb. Pr. N. S. 331). The judgment is more 
 favorable, whenever the amount of the recovery by the 
 defendant, including the counter-claim extinguished, if 
 one is pleaded, is greater than the amount of the offer. 
 ( Turner v. Honsinger, 31 How. Pr. 66 ; Kautz v. Vatiden- 
 hurgh, 11 Hun, 591). In equity cases, the judgment 
 which is finally entered in the case, and not the verdict 
 of the jury on the issues, governs, in ascertaining 
 whether or not the judgment is more favorable (Wal- 
 lace V. American Liii.en Thread Co., 16 Hun, 404) ; but 
 it is to be remembered that in equity actions, in which 
 the costs are in the discretion of the trial court, the 
 court has power to direct that there shall be no costs, ~ 
 despite the fact that the plaintiff does not obtain so 
 favorable a judgment as that offered. [ConoUy v. 
 Hyams, 42 App. Div. 63). Where the costs are pre- 
 scribed by the code of civil procedure as a matter of 
 right, the court has no such discretionary power, and 
 the defendant becomes absolutely entitled to costs sub- 
 sequent to the offer, if the plaintiff obtains a judgment 
 less favorable than that offered. {Rollins v. BarneSr 
 23 App. Div. 240 ) . Where the damages are liquidated- 
 interest is to be calculated on the offer, from the time 
 of making it to the time of entry of judgment, to ascer- 
 tain whether or not the judgment is more favorable. 
 {Bathgate v. Haskin, 63 N. Y. 261). But that rule 
 does not apply, where the action is brought to recover 
 unliquidated damages. {Johnston v. Catlin, 57 X. Y. 
 652). The rule laid down in that case was applied by 
 the court of common pleas at special term, to a case 
 where the damages were liquidated, and the court re- 
 fused to permit interest to be computed upon the amount 
 of the offer, to ascertain whether or not the judgment 
 was more favorable to the plaintiff. {Smith v. Boirers, 
 3 Civ. Proc. Rep. 72). This was contrary to the holding* 
 of Bathgate v. HasMn {supra) and for that reason it 
 is not correct. Whenever interest may be properly cal- 
 culated on the offer, and the amount of the offer with 
 interest exceeds the recovery, the judgment is not more 
 
TEXDEUS .A\D OTHER OFFERS. 775^^ 
 
 favorable to the plaintiff. {Tilinaii v. Kcunc, 1 Abb. 
 Pr. N. S. 23) . Where on the trial, the plaintiff recovered 
 a judgment for more than the offer, which was reduced 
 in the court of appeals to less than the offer, the defend- 
 ants were entitled to costs subsequent to the offer, in- 
 cluding the costs of the appeal, so far as the same were 
 not discretionary. (Sturgis v. 8pofford, 58 N. Y. 103;, 
 Lnmiard v. 8. B. & N. Y. R. R. Co., 62 N. Y. 290). 
 Where there is an unaccepted offer of judgment more 
 favorable to the plaintiff than that recovered, it is 
 within the power of the court to grant an additional 
 allowance to the defendant. {Landon v. Yan Etten, 57 
 Hun, 122). 
 
CHAPTER XIX. 
 
 MISTAKES, OMISSIONS AND IRREGULAKITIES. 
 
 ARTICLE I. . . .Amendments. 
 
 ARTICLE II . . , Relief against omissions and mistakes. 
 
 ARTICLE III. .Irregularities. 
 
 ARTICLE IV. .Defects cured by verdict or judgment. 
 
 AKTICLE I. 
 
 AMENDMENTS. 
 
 SECTION. 
 
 1. What may be amended. 
 
 2. Application for amendment. 
 
 3. Mode of amendment. 
 
 4. Effect of amendment. 
 
 Sec. 1. What May be Amended. 
 
 Subdivision 1. — General Principles. 
 
 The court may, upon the trial, or at any other stage 
 of the action, before or after judgment, in furtherance of 
 justice, and on such terms as it deems just, amend any 
 process, pleading, or other proceeding, by adding or 
 striking out the name of a person as a party, or by 
 correcting a mistake in the name of a party, or a mis- 
 take in any other respect, or by inserting an allegation 
 material to the case; or, where the amendment does 
 not change substantially the claim or defense, by con- 
 forming the pleading, or other proceeding to the facts 
 proved. And, in every stage of the action, the court 
 must disregard an error, or defect in the pleadings, or 
 other proceedings, which does not affect the substan- 
 tial rights of the adverse party. (Co. Civ. Proc. § 723). 
 The statute does not limit the power of the court, but 
 
MISTAKES, OMISSIONS AND lERECiULARITIES. 777 
 
 it may still allow amendments on equitable grounds, 
 in cases outside of the provisions of the code ( Weed y. 
 Saratoga & Schcnectadij R. R. Co., 19 Wend. 534) ; the 
 power to amend is inherent in the court as a part of its 
 ordinary jurisdiction. {Chrisial v. Kclhj, 88 N. Y. 
 285). A proceeding which is absolutely void cannot 
 be amended. (Harris v. Durl-cc, 50 Super. 202 ; Kendall 
 V. Washburn, 14 How. Pr. 380). If the proper proceed- 
 ing is not taken to give the court jurisdiction, it has 
 no authority to act in the case, and cannot make an 
 order amending any proceeding which has been had. 
 {Hallctt V. Righters, 13 How. Pr. 43; Kendall v. WasJi- 
 hiirn, supra; Ladenhurg v. Coin'l Bk., 87 Hun, 269; 
 affd. Avithout op., 146 N. Y. 406) . If a process has been 
 issued out of the wrong court, it cannot be amended 
 by the court from which it was intended to issue. ( Peo- 
 ple V. Superior Court, 18 Wend. 675; Clarke v. Miller, 
 18 Barb. 269). One court cannot amend the record of 
 another court. (Buchan v. Sumner, 2 Barb. Ch. 165). 
 Where a notice of appeal from one court to a superior 
 court, is not sufficient to give the appellate court juris- 
 diction, it cannot be amended after the time to appeal 
 has expired (Wilmore v. Flack, 96 N. Y. 512) ; nor can 
 a notice of appeal be so amended as to include a judg- 
 ment or order not appealed from, when the time to 
 appeal from it has expired (Lavalle v. Skelly, 90 N. Y. 
 546) ; nor can an invalid appeal be rendered good by a 
 nunc pro tunc order granting the requisite leave to 
 appeal. {Guarantee Trust, etc., Go. v. P- R. & N. E. 
 R. R. Co., 160 N. Y. 1). Where a notice of appeal has 
 been served instead of a notice of motion for a new trial, 
 which the proper practice required, an amendment has 
 been allowed so as to make the notice of appeal the 
 notice of motion. {Douglas v. Douglas, 5 Hun, 140). 
 The provisions of the code authorizing amendments 
 are as broad and comprehensive as language can make 
 them; and except as above stated, a court may amend 
 any paper or proceeding in any action, in which it 
 has acquired jurisdiction. ( Vaidcro v. Vaidero, 7 Hun, 
 313, 316). An amendment is not a matter of right, nor 
 of course, but is purely a matter of favor {Hatfield v. 
 
7 1 8 PRACTICE. 
 
 Secor, 1 Hilt. 535) ; and whenever an application for 
 an amendment has been made, some excuse, however 
 slight, must be shown for the mistake; and if none is 
 shown, the court will usually deny the motion. (Har- 
 rington V. Slade, 22 Barb. 161 ; Beioley v. Equitable L. 
 Ins. Co.,, 10 Wk. Dig. 191). The discretion of courts 
 granting leave to amend will not be reversed on appeal, 
 save for an abuse thereof. {Barton v. Barton, 21 Wk. 
 Dig. 219). Unnecessary and inexcusable delay in mak- 
 ing the application, is ground for refusing an amend- 
 ment [Gowdy V. Poullain, 2 Hun, 218; Sheldon v. 
 Adams, 41 Barb. 54; Jones v. Xewton, 47 N. Y. St. 
 Rep. 217) ; but this rule is not so strictly applied to 
 public corporations. {Lttnneij v. Mayor, etc., 14 Wk. Dig. 
 140; Stcinmler v. The Mayor, etc., 45 App. Div. 573). 
 The court will not permit a party to suffer by its own 
 mistakes or delays (Clapp v. Graves, 2 Hilt. 317) ; nor 
 by those of its officers. (Mechanics' Bank v. Minthorne, 
 19 Johns. 244). Attorneys are officers within this rule 
 (Neele v. Berryhill, 4 How. Pr. 16) ; but besides being 
 an officer of the court, an attorney is also the agent of his 
 client; and relief will not be given to his client against 
 the mistakes of the attorney, to the prejudice of third 
 persons, who have acquired rights in good faith. (Bank 
 of Rochester v. Emerson, 10 Paige, 359 ) . A mere 
 technical mistake, however, is not one which a third 
 person can take advantage of, if there is no doubt as 
 to what was intended ; and such mistake may be amended 
 although he has relied upon it. (Close v. GiUespey, 3 
 Johns. 526). The statute makes no distinction with 
 regard to the right of amendment, between the differ- 
 ent kinds of actions or defenses, whether they are such 
 as were formerly called unconscionable or not. (Catlln 
 V. Gunter, 11 N. Y. 368; Union Nat. Bk. of Troy v. 
 Bassett, 3 Abb. Pr. N. S. 359). The court has no right 
 to discriminate between actions and defenses not favored 
 by law and other actions, except perhaps to hold the 
 party, replying upon such causes of action or defenses, 
 to somewhat stricter practice. (Gilchrist v. Gilchrist, 
 44 How. Pr. 317; Barnett v. Meyer, 10 Hun, 109). In 
 the case of Gasper v. Adams (24 Barb. 287), it was 
 
MISTAKES, OMISSIONS AND lEREGULAEITIES. 779 
 
 held that in actions of that nature, the court would 
 only grant such amendments as it was required to do 
 by statute. This case, however, although it was rightly 
 decided, because of the rule that the court would not 
 allow an amendment, which would have the effect of 
 reversing a judgment, is not authority for any dis- 
 crimination as to amendments, on account of the nature 
 of the cause of action or defense. {Bank of Kinder- 
 hook v. Gifford, 40 Barb. 659; Barnett v. Meyer, IQ 
 Hun, 109). An amendment which is not necessary, or 
 which would not secure or affect the rights of the party 
 asking for it, will not be permitted. {Ten Eick v. 
 Simpson, 11 Paige, 177; Tharp v. Hey man, 16 Misc. 
 491; S. C, 38 N. Y. Supp. 742). Where a motion has 
 been made to set aside a proceeding for a technical 
 defect or irregularity, a party will be allowed to amend 
 the defect, or to cure the irregularity complained of,, 
 without a new motion, where the amendment is proper, 
 and no new facts are shown which ought to defeat it 
 {Wolford V. Oakley, 1 Sheld. 261; S. C, 43 How. Pr. 
 118) ; but it is in the discretion of the court, whether 
 it will do so or not; and such an amendment will be 
 refused where it would work injustice, or would not be 
 in furtherance of justice. {South Inl. N. & I. Go. v. 
 Sherwin, 1 Civ. Proc. Eep. 44). 
 
 Subdivision 2. — Amendment of Summons. 
 
 The summons may be amended by inserting the name 
 of the county {Wallace v. Dimmick, 24 Hun, 635) ; or 
 of the court, where it appears in the complaint, which 
 has been served {Walker v. Hubbard, 4 How. Pr. 154) ; 
 but not where the 'name of the court has been omitted 
 in both summons and complaint. {Ward v. Stringham, 
 1 Co. Kep. 118). Where the summons contains an error 
 as to the time in which the defendant must appear, 
 this may be corrected by amendment. ( Gribbon v. Freel, 
 93 N. Y. 93). The summons may also be amended by 
 adding new parties or striking them out {Lewin v. 
 Wright, 31 Hun, 327) ; or by changing the character 
 in which a party is sued, as by changing an action from 
 
780 PRACTICE. 
 
 one against defendant in a representative capacity, to 
 one against him personally {Tighe v. Pope, 16 Hun, 
 180 ) ; or by correcting a defect in the name of the defend- 
 ant (Weil V. Martin, 24 Hun, 645; Stuyvesant v. Weil, 
 167 N. Y. 421) ; or, where suit is brought against A. & 
 Son as partners, by striking out the words "& Son" and 
 inserting his name. {Banner man v. Qiiackenbush, 11 
 Daly, 529). On an application to amend by inserting 
 the true names of the defendants, which have been dis- 
 covered, in place of fictitious names, which have been 
 used under section four hundred and fifty-one of the 
 code, several real names may be substituted for a 
 single fictitious name. (Bctts v. Betts, 4 Abb. N. 
 C. 317, 323, note). The summons may also be amended 
 by striking out the name of a receiver, and inserting 
 the name of the corporation of which he is receiver. 
 {Abbott V. Jeuiett, 25 Hun, 603). An amendment may 
 be made, by substituting the name of the attorney, for 
 that of an agent who had signed the summons {Weir 
 V. SloGum, 3 How. Pr. 397) ; or by substituting the 
 name of one of a firm of attorneys, to the signature 
 of the summons, in place of the name of the firm 
 {Bluyter v. Bmith, 2 Bosw. 673) ; or by adding the 
 omitted office, or postoffice, address, or street number 
 of the plaintiff's attorney {Wiggins v. Richmond, 58 
 How. Pr. 376) ; or by substituting a written, for a 
 printed subscription {Farmers' Loan and T. Co. v. 
 Dichson, 17 How. Pr. 477) ; although a printed sub- 
 scription to the summons is good. {Barnard v. Hey- 
 drick, 49 Barb. 62). But the court cannot authorize 
 the amendment of the summons, by striking out the 
 name of a sole plaintiff or defendant, and inserting the 
 name of another person in his place (N. Y. State Milk 
 Pan Assn. v. Remington Agr. Works, 89 N. Y. 22) ; 
 but the doctrine of the last cited case has been limited 
 to cases where a different person is sought to be brought 
 in by amendment; thus, where the defendant was sued 
 as a domestic corporation, when in fact it was an 
 unincorporated association, the court upon the plain- 
 tiff's motion amended the summons and complaint by 
 making the action against the president pursuant to 
 
MISTAIiES, OJIISSIOXS AND IRREGULARITIES- 781 
 
 section 1919 of the code of civil procedure. {Mnnzinger 
 V. The Courier Co., 82 Hun, 575). An amendment of 
 the summons can only be made by leave of the court. 
 {McCraiie v. Moulton, 3 Sand. 736). The motion must 
 be for leave to amend the summons ; and the amendment 
 cannot be made on a motion for judgment {D'lblee v. 
 Mason, 1 Co. Kep. 37) ; but in a proper case, if the 
 notice of motion contains a prayer for general relief, 
 the summons may be amended. {Walkinshaw v. Perzel, 
 7Robt. 606). 
 
 Subdivision 3. — Processes Other Than Summons. 
 
 The following processes have been held amendable, 
 and have been amended by the court, in proper cases : 
 A writ tested on Sunday {WiUiams v. Hogeboom, 22 
 Wend. 648) ; or returnable on that day {Boyd v. Vander- 
 kemp, 1 Barb. Ch. 273) ; or otherwise wrongly tested 
 as to time (Parke v. Heath, 15 Wend. 301), or place 
 {Raymond v. Hininan, 4 Cow. 41) ; or where the testa- 
 tum clause is altogether omitted {M'lntire v. Rowan, 
 3 Johns. 144) ; or which omits the title of the judge 
 of the court {People v. Albany Mayor's Court, 9 Wend. 
 486), or the name of the judge of the court {Douglas 
 V. Eaberstro, 88 N. Y. 611) ; or which states no place 
 of return {Cutler v. Rathbone, 1 Hill, 204) , or the wrong 
 place {McKoney v. Glen, 1 Cow. 141; People ex rel N. 
 Y. C. & H.R. R. R. Co. V. Cook, 62 Hun, 303 ; People ex rel 
 Hasbroiick v. Bd. of Supervisors, 135 N. Y. 522) ; or which 
 gives no direction as to the return {Douglas v. Eaber- 
 stro, 88 N. Y. 611 ) ; or which is made returnable "before 
 us" instead of "before our justices" {Williams v. Rogers, 
 5 Johns. 163) ; or an attachment for contempt, return- 
 able before one of the judges of the court at chambers, 
 instead of before the judge who granted it. {Kelly v. J/c- 
 Cormick, 28 N. Y. 318). The omission of a clerk's sig- 
 nature to a writ, may be amended {Peppoon v. Jenkins, 
 3 Johns. Cas., 2 Ed., 420) ; or the proper seal of the 
 court affixed by amendment. {People ex rel Strait v. 
 Steuben Com. PI, 5 Wend. 103). The return to a writ 
 may be amended. {People ex rel Orogan v. York, 51 
 
782 PRACTICE. 
 
 App. Div. 502) . The signature of an attorney, to a war- 
 rant of attachment which has been omitted, may be sup- 
 plied. (Eissani v. Marshall, 10 Abb. Pr. 424). An exe- 
 cution, tested by mistake after the plaintiff's death, may 
 be amended. {Center v. Billingliurst, 1 Cow. 33). An 
 execution may also be amended, by striking out the 
 names of parties against whom is should not have is- 
 sued {Yan Deusen v. Broioer, 6 Cow. 50) ; by making it 
 an execution against personal property only {Stevens 
 V. Broicuiug, 2 Co. Eep. 123) : or by making it an execu- 
 tion against both, where real property has been omitted 
 {Lansing v. Lansing, 18 Johns. 502) ; or by correcting 
 the amount, when the execution has been issued for too 
 much, although after an action for false imprisonment 
 has been brought, because of the arrest upon it {Holmes 
 V. WiUiams, 3 Caines, 98) ; or by correcting the recitals 
 in an execution against the person, as to the issue of an 
 execution against property {Walker v. Isaacs, 36 Hun, 
 233; Eads v. Wynne, 79 Hun, 463) ; or by correcting the 
 amount for which the execution was issued by including 
 interest {Kokomo Strawboard Co. y. Inman, 21 N. Y. 
 Supp. 705 ) ; or by inserting a proper direction as to the 
 return of the execution. {Benedict, etc., Mfg. Co. v. 
 Thayer, 20 Hun, 547). Where an execution has been 
 issued and levied on property, in a county in which the 
 judgment had not been docketed, it was held that the 
 court would amend by directing judgment to be dock- 
 eted in that county, nunc pro tunc {Roth v. Schloss, 6 
 Barb. 308) ; but where an execution is issued out of the 
 wrong court, it is void, and it is not amendable. ( Clarke 
 Y. Miller, 18 Barb. 269). 
 
 Subdivision 4. — Judgments and Judgment Rolls. 
 
 The question has been much discussed, whether the 
 court has power to amend an offer of judgment, which 
 is defective, because it has been made by an attorney, 
 who has not annexed to it an affidavit of his authority 
 to make it. In Riggs v. Way dell (17 Hun, 515), the 
 court say that such an offer is a nullity, and that the 
 court has no power to direct its amendment. This case 
 
MISTAKES, OMISSIONS AND IRREGULARITIES. 783 
 
 was affirmed by the court of appeals {Riggs v. Waydell, 
 78 N. Y. 586) ; but in affirming it, the court of appeals 
 regard the question as unsettled, and say that the case 
 was properly decided without reference to that point. In 
 Eagan v. Moore (2 Civ. Proc. Rep. 300), it was held, 
 by the special term of the common pleas, that the court 
 had power to amend such an offer of judgmejit, nunc 
 fro tunc, by allowing the affidavit of the attorney's au- 
 thority to be annexed. And in the case of Starks v. 
 Starks (2 How. Pr. N. S. 360), the special term of the 
 supreme court also held that it had the power to author- 
 ize such an amendment. In each of these cases, Riggs 
 v. Wagdcll was distinguished for the reason that it was 
 not necessary to decide the question of power. The 
 reasoning and result of the case of Eagan v. Moore has 
 been approved by the appellate division in the second 
 department. (McVicka)- v. Keating, 19 App. Div. 581, 
 583). In the case of Citizen's Nat. Bk. v. Shaw (46 
 Hun, 589), it was held by the general term of the fifth 
 department, Mr. Justice Bradley writing a very com- 
 prehensive opinion on the subject, that such amendment 
 is within the power of the court; these decisions and 
 opinions seem to settle any doubt as to the existence of 
 such power. A statement, on which confession of judg- 
 ment is based, may be amended, and the court may give it 
 priority of lien over subsequent judgment creditors; but 
 whether or not it will do so, is entirely in its discretion ; 
 or it may impose as a condition of allowing the amend- 
 ment, that the plaintiff consent to a postponement of 
 the lien of his judgment, but it cannot, on granting the 
 motion to amend, absolutely postpone the lien of the 
 judgment. {Symson v. Silheimer, 40 Hun, 116; 105 N". 
 Y. 620, 660). The court may also, in a proper case, 
 compel the judgment debtor to make an additional state- 
 ment to conform to the facts, which may be annexed to 
 the confession. A defective affidavit of no answer, may 
 be amended nunc pro tunc, after the judgment, by add- 
 ing the signature to the jurat {Fawcett v. Vary, 59 K 
 Y. 597), or by adding the affidavit itself. {Trades- 
 man's Natl. Bank v. McFeely, 3 Hun, 699 ; affd. 66 N. 
 
 50 
 
784 
 
 PRACTICE. 
 
 Y. 617). Proof of service may be amended, where the 
 service had been regularly made, but the proof was in- 
 sufficient {Herbert v. Smith, 6 Lans. 493; White v. Bo- 
 gart, 73 N. Y. 256) ; but where there was no service in 
 fact, the defect is jurisdictional and irremediable. {Bel- 
 lamy V. Gtihl, 62 How. Pr. 460) ; so there is no power to 
 allow an amendment, by filing proof of the genuineness 
 of the signature to an admission of service of the sum- 
 mons, on the application of an attorney who has no au- 
 thority to appear for the plaintiff. ( Lapaugh v. WiJsou , 
 6 N. Y. St. Rep. 624). A judgment cannot be amended 
 in a material matter as to the merits on motion, after 
 the decision of the judge {McLean v. Stetcart, 14 Hun, 
 472; Rockioell v. Carpenter, 25 Hun, 529; Best v. Pal- 
 mer,. 22 Wk. Dig. 482 ; Heath v. N. Y. B. L. B. Co., 146 
 N. Y. 260). Where the error is the result of an incor- 
 rect finding on the part of the court, either as a question 
 of fact upon the evidence or an erroneous conclusion 
 from the facts, which was intended to be made, the error 
 can be corrected only upon appeal {Morrison v. Met. 
 El. R. Co., 60 App. Div. 180) ; but where the amendment 
 is sought simply to make the judgment conform to the 
 decision actually rendered, but which, when formulated, 
 failed, through mistake or inadvertence, to express the 
 intention of the court, the court is authorized at any 
 stage of the proceedings to order it. {Beitz v. Fuller, 
 92 Hun, 457 ) . A court has no power to have an entirely 
 new order, or ruling entered nunc pro tunc, thus bring- 
 ing into the record an element which did not previously 
 exist; the facts must exist, and then if the record of 
 them is imperfect or incomplete, it may be amended, but 
 if the record shows the actual facts no order can be 
 properly made changing them so as to take the place of 
 an act that was required to be previously performed. 
 {Guarantee Trust Co. v. P. R. & N. E. R. R. Co., 160 X. 
 Y. 1). But the court may order an amendment, by 
 correcting a mistake in the title {Tasker v. Wallace, 6 
 Daly, 364) ; or by correcting the description of lands in 
 a judgment of foreclosure {Wood v. Martin, 66 Barb. 
 241), or in the ordinary suit for an injunction and dam- 
 ages against an elevated railway {Morrison v. Met. El. 
 
MISTAKES, OMISSIONS AND IRREGULARITIES. 785 
 
 R. Co., stipra) ; and where an action was brought against 
 three partners, and two only were served, and judgment 
 was entered by mistake against those two alone, it can 
 allow an amendment of the judgment, so that it will be 
 against all three. {Produce Bunk of X. Y. v. Morton, 
 67 N. Y. 199). In the last case, the judgment was per- 
 mitted to be amended nunc pro tuiic. in the respect men- 
 tioned, after a creditor's suit had been brought on it. A 
 judgment of foreclosure may be corrected before sale, 
 by striking out a direction that the referee pay certain 
 liens, and inserting a direction that he sell subject to 
 those liens {Valentine v. McCue, 26 Hun, 456) ; or by 
 adding a direction that the premises be sold subject to 
 a life estate {Broirn \. Bccknicnui, 53 App. Div. 257). 
 Where an action was brought by a receiver, and the com- 
 plaint was dismissed, the court at the same term may 
 amend the judgment, by directing that the costs be paid 
 by the receiver out of the estate. [Henry v. Randall, 
 15 Wk. Dig. 106). Where a defendant was designated 
 by a fictitious name in the summons, the court of com- 
 mon pleas was held to have power to amend all proceed- 
 ings before and after judgment, by inserting the correct 
 name when it is ascertained, although the judgment was 
 a judgment of that court, only by virtue of filing a tran- 
 script from a district court. {Hilton v. Sinsheiiner. 5 
 Civ. Proc. Kep. 355). A clerical mistake in the name of 
 a judgment creditor may be amended {Marsh v. Berri/, 
 7 Cow. 344) ; a misdescription of the representative ca- 
 pacity in which the defendant is sued, may be corrected 
 by amendment {McEhcain v. Coming, 12 Abb. Pr. 16) ; 
 but a judgment should not be amended nunc pro tunc, 
 by changing the name of the debtor, without notice to 
 him. {Kagle v. Junker, 17 Wk. Dig. 438) . A judgment,, 
 dismissing the complaint without prejudice to a new 
 action, may be amended on motion, before the time ta 
 appeal has expired, by giving leave to serve a new com- 
 plaint in that action. {N. Y. Ice Co. v. N. W. Ins. Co., 
 23 N. Y. 357). Even after satisfaction of a judgment, 
 it is within the power of the court to vacate it, and to 
 amend the complaint by adding new causes of action, 
 although by so doing the statute of limitations is. 
 
786 PRACTICE. 
 
 avoided. (Hatch v. Central Kat. Bk. 78 Is. Y. 4:87). A 
 judgment, entered by mistake for less tlian the amount 
 of the verdict, may be amended by the court. {Price v. 
 Evers, Col. & C. Cas. 46). As to clerical errors or omis- 
 sions, which would have been inserted at the hearing, 
 as of course, the judgment may always be amended. 
 {Clurh V. Hall, 7 Paige, 3S2). After appeal to the court 
 of appeals, the judgment may be amended by the su- 
 preme court, so as to state that the reversal was upon 
 facts, as well as upon the law. (Xath City Bank v. X. Y. 
 Gold Exch. Bank, 97 N. Y. 645) ; or that tlie reversal 
 was upon a question of fact only [Health Dept. v. Das- 
 sori, 159 N. Y. 245), or upon questions of law only. (Jnd- 
 son V. Central 17. B. R. Co., 158 X. Y. 597) . It is doubt- 
 ful whether the court below has power to authorize an 
 amendment of the judgment or the record, in what may 
 be a material particular, after the final disposition or 
 determination of the case by the appellate court {Meldon 
 V. Devlin, 39 App. Div. 581) ; but if such power exists, 
 it will not be exercised except in an extraordinary case. 
 {Drake v. Y. Y. Iron Mine, 38 App. Div. 71) . The court 
 of appeals cannot amend the record of the supreme 
 ■court, by inserting an exception which does not appear 
 in the case; if the amendment is desired, it must be 
 sought in the supreme court {Ken yon v. Y. Y. C. & H. 
 R. R. R. Co., 76 N. Y. 607). It has been intimated in a 
 comparatively recent case that the application should 
 be made to the judge who tried the case {Ropes x. 
 Arnold, 66 N. Y. St. Rep. 306) ; but in Petit v. Petit (20 
 Wk. Dig. 154), it was distinctly held that the applica- 
 tion should be made to the special term. A judge who 
 has tried a case, and made and filed bis decision, cannot 
 alter it {Hoyt v. Carter, 7 How. Pr. 140) ; but if he has 
 inadvertently made erroneous findings of law, he may, 
 before the time to appeal has expired, by an order on 
 notice, vacate the judgment and re-settle the findings. 
 (Coffin V. LesHter, 36 Hun, 347; affd. Avithout op., 110 
 N. Y. 645). The decision in the case last cited, was put 
 upon the ground that the errors which were corrected, 
 had clearly been made inadvertently by the judge; and 
 the case of McLean v. Stewart (14 Hun, 472) was dis- 
 
MISTAKES, OMISSIONS AND IRREGULARITIES. 787 
 
 tinguislied, for the reason, that in that case, there was no 
 mistake or omission in the findings. An appellate court 
 maj amend their judgment on appeal, by inserting a 
 direction for a new trial, instead of judgment absolute 
 for the appellant {Meyer v. City of Louis oillc, 7 Abb. 
 Pr. 6) ; or by striking out a direction for costs, which 
 has been inserted by mistake {Murray v. Blatchford, 2 
 Wend. 221) ; or by amending a mistake in the order, so 
 as to make it conform to the decision {Alt man v. Hofel- 
 ler, 137 N. Y. 619), although the remittitur has been 
 filed in the court below. {Palmer v. Laivrencc, 5 N. Y. 
 455). Where, after a verdict for the plaintiff, excep- 
 tions were ordered to be heard at the general term, and 
 judgment suspended, and the defendant died after the 
 argument in the general term, and before the decision, 
 the general term cannot order judgment to be entered 
 as of the date of the verdict. {Tuomy v. Dunn., 77 N. 
 Y. 515). 
 
 Subdivision 5. — Amendment of Miscellaneous Pro- 
 ceedings. 
 
 Acknowledgments. Where a guardian ad litem has 
 omitted to annex an acknowledgment of his consent to 
 act, it may be supplied nunc pro tunc, after judgment. 
 
 ( ToUn V. CrtrT/, 34 Hun, 431 ) . 
 
 Affidavits. The want of title, or a defect in the title, 
 of an affidavit, does not impair it, if it intelligibly refers 
 to the action or special proceeding, in which it is made. 
 
 (Co. Civ. Proc. § 728). An affidavit may be amended as 
 to a clerical error {Murphy v. Hall, 38 Hun, 528; Bah- 
 cock V. Kuntssch, 85 Hun, 33; Yellow Pine Co. v. Atlan- 
 tic Lumber Co., 21 Misc. 164; affd. without op., 22 App. 
 Div. 629) ; or by permitting it to be sworn to anew, 
 when the jurat has been omitted by mistake {Bees v. 
 SnelL 8 How. Pr. 185, note) ; or by procuring the cer- 
 tificate of the secretary of state, which had been acci- 
 dentally left off. {Lawton v. Kiel, 51 Barb. 30; see, 
 however. Cream City Furniture Co. v. Sqnier, 2 Misc. 
 438). In the case of CUckman v. Clickman (1 N. Y. 
 611), it was suggested that an affidavit could not be 
 
'00 PRACTICE. 
 
 amended; but that case was seriously questioned by 
 Botoman v. Sheldon (5 Sand. 657), in which it was said 
 that Judge Bronson's statement in that regard was not 
 the opinion of the court, but his mere individual idea; 
 and the case has not been followed. In Harris v. Dilrkee 
 (50 Super. 202), where the jurat of an affidavit to pro- 
 cure an order of arrest was not in proper form, it was 
 held that the defect was jurisdictional, and could not 
 be amended. 
 
 Attachment. Upon a motion to vacate a warrant of 
 attachment, it may be amended by inserting new grounds 
 for issuing the writ, which are warranted by the affi- 
 davits. (Kibbe v. Wetinore, 31 Hun, 424) ; or by insert- 
 ing the grounds in a warrant which contained no state- 
 ment at all in that respect (King v. King, 59 Ajjp. Div. 
 128) ; or by reducing the amount. [Siilzbacher v. Cow 
 thra, 14 ilisc. 545; affd. on op. below, 148 N. Y. 755) 
 The omission of an attorney to sign the warrant may be 
 amended nunc pro tunc. ( Gcniii v. Tompkins, 12 Barb, 
 265). 
 
 Bonds and Undertakings. A bond or undertaking, 
 required by statute to be given by a person, to entitle 
 him to a right or privilege, or to take a proceeding, is 
 sufficient, if it conforms substantially to the form there- 
 for, prescribed by the statute, and does not vary there- 
 from, to the prejudice of the rights of the party, to whom, 
 or for whose benefit it is given. ( Co. Civ. Proc. § 729 ) . 
 Where such a bond or undertaking is defective, the 
 court, officer, or body, that would be authorized to re- 
 ceive it, or to entertain a proceeding in consequence 
 thereof, if it was perfect, may, on the application of the 
 persons who executed it, amend it accordingly; and it 
 shall thereupon be valid, from the time of its execution. 
 (Co. Civ. Proc. § 730). Leave may be given to amend 
 an undertaking, even in case of a substantial departure 
 from the statute. (Irtoin v. Jiidd, 20 Hun, 562). But 
 not where the bond is insufficient to give the court juris- 
 diction ; in that case the court has no power to order an 
 •amendment. {Eio Parte ChrysUn, 4 Cow. 80 ; Van Slyke 
 v. Schmeck, 10 Paige, 301 ; Spotts v. Dumesni;:, 12 Abb. 
 Pr., N. S. 128). An undertaking should not be amended 
 
MISTAKES, OMISSIONS AND lEBEGULAKITIBS. 789 
 
 without the consent of the sureties and the obligor 
 {Langley v. Warner, 1 N. Y. 606; Shaw v. Lawrence, 
 
 I Jr How. Pr. 94 ) ; such consent should be in writing, and 
 filed with the bond. {Potter v. Baker, 4 Paige, 290). 
 It may be amended on motion of the surety (O'Siillivan 
 V. Connors, 22 Hun, 137) ; but it is not error to refuse 
 to amend, although the surety joins in the offer and 
 -consents to it. {Ramsey v. Childs, 34 Hun, 329). If 
 the requirements of the bond are prescribed by a rule 
 of the court, and not by a statute, the court may dis- 
 pense with the strict letter of the rule, and allow a new 
 Tjond to be substituted for the insufficient one. 
 {Eldriclge v. Hoicell, 4 Paige, 457). The court may al- 
 low a bond to be amended by adding another surety. 
 {Potter V. Baker, 4 Paige, 290; Shaio v. Lawrence, 14 
 How. Pr. 94 ) . The application to amend should be upon 
 affidavit, joined in, or consented to by the obligors, and 
 should specifj^ the proposed amendment, and contain 
 an express consent to it on the part of the signers of 
 the bond, and an agreement to execute and acknowledge 
 a new bond when the amendment is ordered. {Shaw v. 
 Lawrence, 14 How. Pr. 94). The court may permit a 
 new bond to be filed in replevin, giving the defendant 
 the usual time to except to the sureties. {Cutler v. 
 Rathbone, 1 Hill, 204; Newlund v. Willett, 1 Barb. 20; 
 Dale V. Gilbert, 128 N. Y. 625). Where a replevin bond 
 was defective by reason of the mistake of the sheriff, 
 and the plaintiff had filed a new one without leave of 
 the court, the court allowed the proceedings to stand. 
 {Eawley v. Bates, 19 Wend. 632). A court may order 
 a bond filed nunc pro tunc whenever it has acquired 
 jurisdiction of the case ; as in the case of a guardian ad 
 litem of an infant defendant in partition {Croghan v. 
 Livingston, 17 N. Y. 218) ; or to stay proceedings on an 
 appeal from a judgment {Smith v. Heermance, 18 How. 
 Pr. 261) ; or to perfect an appeal where the bond filed 
 was insufficient for that purpose. {Mills v. Thursby, 
 
 II How. Pr. 129; Robinson v. Moran, 23 Wk. Dig. 326). 
 It may permit the affidavits of sureties to be filed nunc 
 pro tunc {Rich v. Beekman, 2 Oo. Kep. 63) ; or the justifi- 
 cation to be amended {People ex rel Boylston v. Tarbell, 
 
790 PRACTICE. 
 
 17 How. Pr. 120) ; or where the seals upon a receiver's' 
 bond were omitted, it was held that the court might 
 amend it. {Hyatt v. Dusenhury, 12 Civ. Proc. Kep. 152) . 
 Where an action was begun without filing an under- 
 taking which was a condition precedent to bringing the 
 suit, the court allowed it to be done nunc pro tune. 
 {Millhanli v. Broadway Bank, 3 Abb. Pr. N. S. 223). 
 On motion to vacate an injunction for insufficiency of 
 the undertaking, a proper undertaking was permitted 
 to be filed (Lefflngwell v. Ghave, 5 Bosw. 703) ; and 
 where a judge's approval was not indorsed upon the 
 copy served, the court permitted it to be added. (Aug- 
 rich V. McOwen, 4 Law Bull. 66). Where a motion was 
 made to vacate an attachment because the undertaking 
 was insufficient, the court permitted a new undertaking 
 to be served. (Kissam v. Marshall, 10 Abb. Pr. 424) ; 
 and the same thing was done on a motion to vacate an 
 order of arrest. {Bellinger v. Gardiner, 2 Abb. Pr. 441; 
 12 How. Pr. 381) . 
 
 Gases. It is doubtful if the court has power to au- 
 thorize an amendment of the case after the final deter- 
 mination of the case by the appellate court {Drake v. 
 N. Y. Iron Mine, 38 App. Div. 71 ; Meldon v. Devlin, 39 
 App. Div. 581) ; if it does exist it will not be exercised 
 except in an extraordinary case. {Drake v. ISf. Y. Iron 
 Mine, supra). The judge before whom an action is 
 tried, may amend the case so as to agree with his min- 
 utes on a motion for a new trial made before him; al- 
 though no application has been made to amend by either 
 party. {Toplitz v. Raymond, 10 Abb. Pr. 60). An ap- 
 plication to amend a case, must ordinarily be made to 
 the special term. {Talcott v. Rosenberg, 3 Daly, 203, 
 213; Graham v. People, 63 Barb. 468, 474; see, how- 
 ever, Ropes V. Arnold, 66 N. Y. St. Rep. 306). The 
 usual practice in such cases, is to apply to the special 
 term before argument, to correct the case. But if the 
 argument has been had at the appellate division, the 
 proper practice is to apply to the appellate division to 
 send it back, to enable an application to be made in the 
 special term. If an appeal has been taken, and a case 
 made and filed, the justice before whom the action was 
 
MISTAICES, OMISSIONS AND lEKEGULABITIES. 791 
 
 tried has no power to amend it. {Pettit v. Pettit, 20 Wk. 
 Dig. 154). 
 
 Voiasnissions. A commission to take testimony is a 
 process, and amendable like any other process. {LeetcJi 
 V. Atlantic Mut. Ins. Co., 4 Daly, 518). Where a com- 
 mission wrongly stated the names of the witnesses, but 
 the intended witnesses were examined, and the commis- 
 sion returned with the true names, leave was granted 
 to send it back to have the witnesses re-examined, with- 
 out issuing a ne^v commission. {Kci'Ier v. Vanderpool, 
 ICo. Kep. N. S. 289). 
 
 Notices of appeal. Defects or mistakes in a notice of 
 appeal may be amended, as an error in the title of the 
 action {McLacJtlin v. Brett, 27 Hun, 18) ; or a failure to 
 subscribe it. {Gutbrecht v. Prospect Park c(- ('. /. R. 
 R. Co., 28 Hun, 497). Kmj act which constitutes a step 
 in the proceedings to appeal, may be amended, unless the 
 defect in it is so gross that the court is not satisfied that 
 the paper relied on was intended for an appeal in the 
 action in question. (Id.; Shcrntaii v. Wells, 14 How. 
 Pr. 522 ) . A notice of appeal cannot be amended, from 
 which a jurisdictional requirement has been intention- 
 ally omitted (Wilniore v. Flack, 96 N. Y. 512) ; or so as 
 to include in it a judgment or order, the time to appeal 
 from which has expired. [Patterson v. McCiinn, 38 
 Hun, 531). 
 
 Orders. Orders may be amended by striking out a 
 caption, erroneously inserted in a judge's order [ilojar- 
 rieta v. Saeii.f, 80 N. Y. 553) ; or by inserting leave to 
 renew {Hopkins v. Flijan, 7 Cow. 526) ; or where costs 
 had been given, by inserting the amount (TiUspaugh 
 V. Dick, 8 How. Pr. 33) ; or by permitting the entry of 
 the order ntin.c pro tunc (Giirnei/ v. Sliarp, 17 Abb. Pr. 
 410; afied., 41 N. Y. 619; Barnard v. Hei/drick, 49 Barb. 
 62) ; or by changing an order of reference to take testi- 
 mony, into an order of reference to hear and determine, 
 where the first order had been erroneously entered 
 (Bliss V. Bliss, 13 Daly, 489) ; or by modifying an in- 
 junction order, so as to better protect the rights of the 
 plaintiff. (Williams Y.Johnson, 2 Bos^Y. 1). All amend- 
 ments of orders are, however, subject to the qualifica- 
 
792 PEACTICE. 
 
 tions heretofore noted in dealing with the subject of 
 amendments to judgments and judgment rolls, i. e., 
 while an order may be amended to conform to a decision, 
 it cannot be amended so as to make the court rule upon 
 a question that was never presented to it, or rule dif- 
 ferently than it actually did. {Whtgrovc v. German 
 8av. Bk., 2 App. Div. 479 ) . Orders may be amended after 
 an appeal therefrom has been taken. [DUikelspiel v. 
 Levy, 12 Hun, 130). 
 
 Petitions. Formal omissions in the body of a peti- 
 tion, or the omission of a verification may be supplied 
 even after judgment. {Rogers v. McLean. 11 Abb. Pr. 
 444; affd., 34 X. Y. 536; Van Wycl; v. Hardy, 11 Abb. 
 Pr. 473; 20 How. Pr. 222; affd., 39 How. Pr. 392). 
 
 Remittitur. The court of appeals has power to, and in 
 a proper case will, require the supreme court to return 
 the remittitur for the purpose of amendment, even 
 though it has been filed and an order entered thereon 
 by the supreme court. (Franlvlin Bank Xotc Co. v. 
 Maclcay. 158 N. Y. 683). The practice in the supreme 
 court upon such a request by the court of appeals is to 
 vacate the order and judgment (if any) entered on the 
 remittitur and return it in accordance with the request. 
 
 Returns. The court to which a return is made by a 
 sheriff or other ofdcer, or by a subordinate court, or 
 other tribunal, may, in its discretion, direct the return 
 to be amended, in matter of form, either before or after 
 judgment. (Co. Civ. Proc. § 725). A sheriff's return 
 to an execution may be amended, hj striking out the re- 
 turn of nulla- bona {Bnrham \. Brcnnan, 42 N. Y. 
 Super. Ct. Eep. 49 ; reversed on another point, 74 N. Y. 
 597) ; although after an action has been brought against 
 him for a false return. {People v. Ames, 35 K. Y''. 482). 
 An appellate court will not, however, amend a return 
 so as to make it different from the record. {Shultz v. 
 Hoagland, 11 Wk. Dig. 294). 
 
 Sheriff's certificates and deeds. A sheriff's certificate 
 of sale may be amended by inserting a parcel of land 
 accidentally omitted {8n)it]t v. Hudson, 1 Cow. 430); 
 or by striking out a parcel improperly included. {Rich- 
 ards V. Varnum, 8 How. Pr. 79). An incorrect reference 
 
MISTAKES, OMISSIONS AND IRREGULARITIES. 79S 
 
 to the execution in tlie deed may be amended. ( Ganse- 
 voort y. Gilliland, 1 Cow. 218) . A variance between the 
 recitals in his deed on execution, and the judgment and 
 execution may be corrected on motion. {Mattheivs v. 
 Coo/v, 13 Wend. 33). 
 
 Verdicts. The power to amend verdicts, is limited to 
 formal defects; and those can only be amended by the 
 court in which the trial was had. {Cooper v. Bissell, 
 15 Johns. 318). The court has no power to amend the 
 verdict, if there is the slightest doubt as to the facts in 
 the case {Burhans v. Tibhltts, 7 How. Pr. 21) ; but where 
 there is no doubt about the facts, the court may direct 
 an amendment making the verdict, conform to such 
 facts. {HodgJciii v. Mead, 119 N. Y. 166). So where 
 the jury were charged to bring in a verdict for a certain 
 amount if they found for the plaintiff, and their sealed 
 verdict was only "for the plaintiff" with no amount, 
 the court had the power to insert that amount by amend- 
 ment, the jury having dispersed. (Id.). Likewise the 
 court has power to change the answer "not proven" of 
 a jury, to a certain question submitted to them, to "no." 
 (Cruikshank v. Cruil-sliank, 38 App. Div. 580). Where 
 a judge ordered a verdict for the defendant on one issue, 
 and sent another issue to the jurj^, who found only a 
 general verdict for the plaintiff; the court may order 
 an amendment of the verdict by stating that it was for 
 the defendant on the first count, and for the plaintiff 
 on the second count. {Burhans v. Tibbitts, supra). So 
 where one count was good and the other was bad, a 
 general verdict may be amended by applying it to the 
 good count, if the judge certifies that all the evidence 
 applied, or might properly apply to that count, and both 
 counts were for the same cause of action. {Allen v. 
 Addington, 12 Wend. 215). In an action of replevin, 
 where the jury found for the plaintiff, but awarded no 
 damages for the detention of the goods, the court may 
 supply the omission by inserting nominal damages. 
 ( Von Schoening v. Buchanan, 14 Abb. Pr. 185, 468) . If 
 the foreman of a jury, by mistake, announces a verdict 
 different from that agreed upon, and the wrong verdict 
 has been recorded, the court at the same term has power 
 
794 PRACTICE. 
 
 to correct it by making it conform to the verdict actually 
 found. {Dalr!jmpIev.WilUa)ns,Q3 1^.Y.361). Where 
 a sealed verdict has been received, it cannot be amended 
 by the court, in matter of substance; but the jury, if 
 they have not separated, may retire and reconsider it. 
 {Hersherg v. Murray, 40 Super. 271). 
 
 Sec. 2. Application for Amendment. 
 
 An application to amend must be made on notice to 
 the. opposite party if he has appeared {Kneeland v. Mar- 
 tin, 2 Law Bull. 56) ; and the application must be made 
 to the court. (Co. Civ. Proc. § 727). The affidavits 
 must show an excuse for the defect. {Bewley v. Equita- 
 ble L. Ins. Co., 10 Wk. Dig. 191). If an amendment of 
 the pleadings is sought, a copy of the proposed amend- 
 ment must be submitted with the motion papers. ( Allen 
 V. Fowler & Wells Co., 45 App. Div. 506 ; Htern v. Knapp. 
 52 N. Y. Super. Ct. Rep. 14). The desired amendment 
 should always be clearly stated, and if the amendment 
 is allowed, it should be explicitly recited in the order. 
 Persons entitled to notice, may appear and oppose the 
 amendment, but no other person ; bail have no right to 
 object to amendments of proceedings in the action, al- 
 though it may affect their rights. {Coster v. Phoenix, 
 7 Cow. 524). 
 
 A process, pleading, or record, shall not be altered 
 by the clerk, or any other officer of the court, or by any 
 other person, without the direction of the court, or of 
 another court of competent authority; except in a case 
 where a party or his attorney is specially authorized by 
 law to amend a pleading. (Co. Civ. Proc. § 727). On 
 granting the amendments, the court can only impose 
 such terms as are just, and will fairly indemnify the 
 adverse party for all expenses to which he will be put 
 by reason of it. {Hand v. Burrowfi, 15 Hun, 481). If 
 he is not prejudiced by the amendment, no terms will be 
 imposed {Cayuga Co. Bank v. Warden, 6 N. Y. 19), ex- 
 cept costs of the motion. 
 
 Sec. 3. Mode of Amendment. 
 
 An immaterial error need not be amended, but the 
 court may direct that it be disregarded. {Cheetliam v. 
 
MISTAKES, OMISSIONS AND IRREGULARITIES. 795 
 
 TiUotson, i Johns. 499) . Clerical errors may be amended 
 by interlineation. {Ai/rcs v. Valentine, 2 Edw. Cb. 451; 
 DeGatcrs v. DeChantnont, 3 Paige, 178). Amending a 
 judgment record by obliteration or erasure, even when 
 it leaves the passage legible, is improper. It should be 
 done by appending the order of amendment to the roll, 
 and by entering it in the proper book, and referring in 
 the margin of the entry of judgment, to the amendment 
 by the order of such a date. The portions changed or 
 omitted can be designated by brackets, underscoring, or 
 otherwise; or the judgment may be entered anew as 
 amended. {Bluyter v. Hmith, 2 Bosw. 673). On amend- 
 ing the docket of a judgment as to the amount, a copy 
 of the order should be filed in each of the clerk's offices 
 in which a transcript has been filed, and a brief refer- 
 ence made to it in the several dockets. {Hunt v. Grant, 
 19 Wend. 90). An amendment to a defective jurat is 
 not complete until the paper as amended has been served. 
 
 {Taylor v. Bogert, 5 Paige, 33). "Vyhenever a judgment 
 is entered, or a paper is filed nunc pro tunc, the real date 
 of the filing or entry should appear, as well as the date 
 of the fictitious entry or filing. {Barclay v. Brown, 7 
 Paige 245). A copy of the order allowing the amend- 
 ment, should always be served on the adverse party; 
 and where the amendment is of a paper which has been 
 iserved upon him, a copy as amended should be served 
 
 {Livermore v. Bainbridge, 14 Abb. Pr. N. S. 232, note) ; 
 but where a pleading is amended at the trial, it need not 
 be served, unless the service is a condition of allowing 
 the amendment. {Lane v. Hayward, 28 Hun, 583). 
 
 Sec. 4. Effect of Amendment. 
 
 Usually the court will not examine any proposed 
 amendment to ascertain its effect, except to see that it is 
 not frivolous or useless {Mitchell v. Allen, 25 Hun, 543 ; 
 The Mayor, etc. v. East Bay L. & Imp. Co., 41 App. Div. 
 567 ; Bell Telephone Co. v. Home Tel. Co., 52 App. Div. 
 13) ; and leave to amend a proceeding, is not a sanction 
 of the new proceeding, nor does it operate as a ruling- 
 that such amended proceeding is not obnoxious to legal 
 objections. {Ward v. Barber, 1 E. D. Smith, 423). The 
 
796 
 
 PEACTICB. 
 
 amended pleading or paper is a substitute for the old 
 one, and the rights of the parties are controlled by the 
 amended paper, unless the court otherwise directs. But 
 such an amendment does not affect the rights of third 
 parties which have already vested. {^Veeks v. Tomes, 
 16 Hun, 349; affd., 76 N. Y. 601). If a pleading has 
 been amended, an injunction granted on the original 
 pleading, does not thereby become inoperative. {Sel- 
 den V. Yermilya, 4 Sand. Ch. 573 ) . 
 
 ARTICLE II. 
 
 RELIEF AGAINST OMMISSIONS AND MISTAKES. 
 
 The court may, in its discretion, and upon such terms 
 as justice requires, and at any time withii? one year after 
 notice thereof, relieve a party from a judgment, order, 
 or other proceeding taken against him, through his mis- 
 take, inadvertence, surprise, or excusable neglect; and 
 may supply an omission in any proceeding. Where a 
 proceeding taken by a party fails to conform to a pro- 
 vision of the code of civil procedure, the court may, 
 in like manner, and upon like terms, permit an amend- 
 ment thereof, to conform it to the provision. (Co. Civ. 
 Proc. § 724). The relief sought under this section is 
 sharply distinguishable from an application for a re- 
 hearing or a re-argument. [Matter of Blackivell, 48 
 App. Div. 230 ) . To set running the period of one year 
 mentioned in this section, the notice must be in writing. 
 A mere verbal notice is not sufficient. (Bissell v. W. Y. 
 Cen. & H. R. R. R. Co., 67 Barb. 385 ) . In case of a judg- 
 ment, the notice must be given to the party personally; 
 notice to his attorney alone, is not sufficient, unless it is 
 brought to the notice of the party. {O'Neil v. Hoover, 
 17 Wk. Dig. 354).' The case of Jeno v. Jacob (7 Abb. N. 
 C. 452) , decided by the special term of the common pleas 
 of the city of New York, holds that a notice to the attor- 
 ney is sufficient; but this case must be deemed to be 
 overruled by the case of O'Neil v. Hoover, cited above. 
 The section does not include applications to set aside 
 proceedings for irregularity, but only to those which 
 
MISTAKES, OMISSIONS AND IRREGULARITIES. 797 
 
 have been taken because of mistake, inadvertence, sur- 
 prise, or excusable neglect of the party. It does not 
 apply to special proceedings. {Matter of City of 
 Buffalo, 78 N. Y. 362) . The power of the court of orig- 
 inal jurisdiction to open defaults, or to set aside or va- 
 cate judgments, or to permit pleadings to be served in 
 furtherance of the ends of justice, does not depend upon 
 this section of the code; but it exists independently of 
 that, and inheres in the very constitution of the court. 
 {Ladd V. Stevenson, 112 N. Y. 325). It is exercised con- 
 tinually, and it grows out of the control which the court 
 has over its own records and judgments, and the actions 
 pending therein. There are so many occasions for its 
 exercise, that it should not be curtailed. {Vanderltilt 
 V. Schreyer, 81 N. Y. 646, 648 ) . It is not limited in mat- 
 ters of substance by this section of the code. {Hatch v. 
 Central Natl. Bank, 78 N. Y. 487) . The court has power 
 to open a judgment two years after its entry, to supply 
 an inadvertent omission of a finding of fact. {Under- 
 wood V. Sutcliffe, 21 Hun, 357). It may be exercised in 
 favor of a party as well as against him; and one who 
 has by mistake taken soine proceeding in the action 
 which is prejudicial to him, may have relief under this 
 section. {Dietz v. Parish, 43 Super. 87; Montgomery v. 
 Ellis, 6 How. Pr. 326) . It does not apply to an applica- 
 tion for a new trial on the ground of newly discovered 
 evidence. {First Natl. Bank v. Beaton, 6 T. & C. 37, 
 38, note). The power given by this section does not au- 
 thorize the court to permit any act to be done after the 
 time limited by statute. ( Coon v. Knapp, 13 How. Pr. 
 175 ) . The general rule is that a court cannot relieve a 
 party who fails to serve notice of appeal in time {Kelly 
 V. Sheehan, 76 N. Y. 325, 326), or who omits from a 
 notice of appeal a certain order or judgment he wishes 
 to appeal from. {Lavalle v. Skelhj, 90 N. Y^ 546). But 
 under the power given by this section, it has been held 
 that the court might permit a petition of appeal, from 
 a decree of a surrogate's court to be filed, after the time 
 had expired, if the preliminary proceedings to an appeal 
 had been taken ; where the omission to file the petition 
 of appeal occurred through mistake. {Stubhs v. Stubbs, 
 
798 PRACTICE. 
 
 11 Wk. Dig. 244). The court is not required by this 
 section to give relief to a party if the application is made 
 at any time within one year. The rule is that a party 
 must make application for this kind of relief at the ear- 
 liest practicable moment; and an unexplained delay is 
 a good reason for refusing the relief, although the appli- 
 cation is made within the year. {Henderson v. Savage, 
 46 Super. 221; Wade v. DeLeyer, 40 Super. 541; app. 
 dismissed, see 63 N. Y. 318). Although an application 
 is made within a year, yet it would be hardly proper for 
 the court at special term to set aside a judgment, after 
 it had been affirmed at the appellate division on the 
 appeal of the party who moves to set it aside. ( Schweizer 
 V. Raymond, 6 Abb. N. C. 378). In imposing terms upon 
 granting motions made under this section, the court is 
 governed by the same considerations that apply to grant- 
 ing amendments to relief from irregularities. 
 
 ARTICLE III. 
 
 IRREGULARITIES. 
 
 SECTION. 
 
 1. What are irregularities. 
 
 2. Who may take advantage of irregularity. 
 
 3. Remedy for irregularity. 
 
 4. Waiver of irregularities. 
 
 Sec. 1. What Are Irregularities. 
 
 An irregularity, as defined by Mr. Graham, is the 
 want of adherence to some prescribed rule, or mode of 
 proceeding, and it consists in omitting to do something 
 which is necessary for the due and orderly conducting 
 of the suit, or doing it in an unseasonable time or im- 
 proper manner. (Graham's Prac. 1 Ed. 566). The 
 word imports an objection or a fault; it is not applied 
 to departures from a rule which are wholly immaterial, 
 but only to those which carry ill consequences, in ren- 
 dering the proceedings defective or voidable. As illus- 
 trations of what constitute irregularities, may be men- 
 tioned: the service of summons on election day {Bierce 
 V. Smith, 2 Abb. Pr. 411) ; service of summons by plain- 
 
MISTAKES, OMISSIONS AND IRREGULARITIES. 799 
 
 tife himself {Hunter v. Lester, 10 Abb. Pr. 260; 
 18 How. Pr. -347) ; the issue of an execution 
 after five years, without leave {Montrait v. 
 Hutcliins, 49 How. Pr. 105) ; the entry of judg- 
 ment, where there is a defect in the affidavit of the 
 service of the summons {Monlton v. Carty, 6 Eobt. 470) ; 
 the entry of separate judgments against each of the de- 
 fendants in an action against partners upon a partner- 
 ship obligation, instead of a joint judgment against all. 
 {Jiidd Liuseed, etc. Co. v. Hiibbell, 76 N. Y. 543) ; an 
 error in the form of a judgment, whereby its scope has 
 been enlarged, or its amount increased beyond that au- 
 thorized by the verdict, report, or decision. [Corn 
 Exchange Blc. v. Bhje, 119 N. Y. 414) . Such proceedings 
 as these, while they are irregular, do not involve the 
 merits, nor any substantial right, and are said to be 
 mere technical irregularities. There is a distinction be- 
 tween irregularities of this kind which affect no sub- 
 stantial right, and those which are a matter of substance, 
 although the court may have jurisdiction. [Decker v. 
 Kitchen, 21 Hun, 332). But where the court has juris- 
 diction, this distinction is of no particular importance, 
 except with regard to the requirements of notice of mo- 
 tion, and the right to appeal from a refusal to vacate. 
 There is a marked, and in many respects important and 
 substantial distinction between irregularities of the na- 
 ture mentioned above, which do not affect the jurisdic- 
 tion of the court, and such as render the proceedings a 
 total nullity, and altogether void. Where the proceeding 
 adopted is that prescribed by the practice of the court, 
 and the error is merely in the manner of conducting it, 
 such an error is an irregularity and may be waived by 
 the laches or the subsequent acts of the opposite party; 
 but where the proceeding itself is altogether unwar- 
 ranted, and totally dissimilar to that which the law 
 authorizes, and one which the court has ilo jurisdiction 
 to take under any circumstances, then the proceeding is 
 a nullity, and it cannot be made good. (4 Wait's Pr. 
 630 ; 2 T. & S. 1028) . As an illustration of such irregu- 
 larities as cannot be amended, may be cited : a judgment 
 
 51 
 
800 PRACTICE. 
 
 without service of process on the defendant {Ferguson 
 V. Crawford, 70 N. Y. 253) ; or one ordered by a judge 
 who is disqualified by consanguinity ( Chambers v. Clear^ 
 water, 1 Abb. Ct. App. Dec. 341) ; or a sale on execution 
 of property not attached, where a money judgment was 
 rendered on service by publication only [McKinney v. 
 Collins, 88 N. Y. 216) ; or an attempted service by pub- 
 lication, where the papers were not filed on or before 
 the first day of publication, in accordance with section 
 442 of the code. (Whiton v. Morning Journal Assn., 
 23 Misc. 299) ; or a judgment rendered on Sunday. {Al- 
 len y. Godfrey, 44 N. Y. 433 ) . Such proceedings are 
 utterly void, and they cannot be remedied in any way. 
 {Hone V. Woolsey, 2 Edw. Oh. 289; Anderson v. Roberts, 
 18 Johns. 515). 
 
 Sec. 2. Who May Take Advantage of Irregularity. 
 
 A party to an action may always move to set aside an 
 irregularity. {Bacon v. Cropsey, 7 N. Y. 195). Any 
 person not a party, whose rights are injuriously affected 
 by irregular proceedings in court, may apply to set aside 
 or amend them. {Gould v. Mortimer, 26 How. Pr. 167; 
 16 Abb. Pr. 448 ; Kellogg v. Howell, 62 Barb. 280 ; affd. 
 on op. below, 53 N. Y. 609; Matter of Fuller, 35 Hun, 
 162 ) . As for instance, one who has a lien upon attached 
 property (Co. Civ. Proc. § 682) ; or a subsequent judg- 
 ment creditor, to vacate a judgment for irregularity. 
 {Butts V. Schieffelin, 5' Civ. Proc. Rep. 415). Where a 
 guardian ad litem for a plaintiff in partition had been 
 improperly appointed, and his proceedings were dila- 
 tory, they were vacated on the application of a person 
 who had been made a party defendant, but not served. 
 {Lyle V. Smith, 13 How. Pr. 104). But with regard to 
 persons who are not parties to the action, except where 
 a statute gives them leave to move, they can only move 
 to vacate for "some irregularity which goes to the sub- 
 stance of the proceeding, and affects a substantial right, 
 and injuriously operates upon their interests. They 
 cannot move to vacate because of the mere technical ir- 
 regularity. {Gere v. Gundlach, 57 Barb. 13; Briden- 
 becker v. Mason, 16 How, Pr. 203). 
 
MISTAKES, OMISSIONS AND IRREGULARITIES. 801 
 
 Sec. 3. Remedy for Irregularity. 
 
 If the irregularity is not a nullity, the only remedy 
 is by a motion to set it aside ; the question of irregularity 
 cannot be raised by appeal in the first instance. {Com 
 ExcJi. Blc. V. Blye, 119 N. Y. 414). But a proceeding 
 which is utterly void may be disregarded; or a party 
 may resist it, and assert its invalidity at all times when 
 it is set up against him. {Siiciiccr v. Barber, 5 Hill, 
 568; HkiU v. WuIUs, 6 Paige, 371; Eaiiip v. Kaiiip, 59 
 N. Y. 212). If, however, the court have jurisdiction to 
 make the order, or to take any proceeding, or make any 
 order, the order thus made is valid, however irregular 
 or erroneous it may be ; and it is good until it is vacated ; 
 and the party against whom it is made is bound by it. 
 {Pinckiiey v. Hugcnnan, 4 Lans. 374; affd., 53 N. Y. 31; 
 Perry v. Kent, 88 Hun, 407; affd. on op. below, 157 N. 
 Y. 710 ) . For this reason, it is safest in all cases to move 
 to vacate orders for irregularity, although there is strong 
 reason to believe that they are utterly void ; and a party 
 is always at liberty to make these motions in such cases. 
 {Kamp V. Kamp, 59 N. Y. 212, 217). A motion to set 
 aside a proceeding for a mere irregularity must be made 
 at the first opportunity, and before the moving party 
 takes any step in the case {Nichols v. Nichols, 10 Wend. 
 560; Loic v. Oraydon, 1^ Abb. Pr. 443; Green icood v. 
 Marvin, 29 Hun, 99) ; or the delay must be excused. 
 (Latcrence v. Jones, 15 Abb. Pr. 110) . If the party was 
 ignorant of the fact that the irregular proceeding was 
 had that fact is always a sufficient excuse. [Giles v. 
 Gaines, 3 Cai. 107). It is also a sufficient excuse that 
 the motion was noticed for the previous term, which ad- 
 journed before it could be heard, and it was noticed for 
 the earliest practicable moment afterwards. [Whipple 
 V. Williams, 4 How. Pr. 28.) Ignorance of law, or of 
 the rules of the court, on the part of the attorney for 
 the party is not, however, an excuse. [Moreland v. 
 Bandford, 1 Denio, 660). In England it has been held 
 that the fact that the party himself was ignorant of the 
 law, or that he was in prison and therefore unable to 
 move is no excuse. [Carrey v. Bowker, 9 Dowl. P. C. 
 523; Claud v. McKenzie, 5 Man. &. Gr. 251). But it is 
 
802 
 
 PRACTICE. 
 
 not believed that this rule would be applied in this 
 state. The rule requiring a party to move at the earliest 
 practicable moment, applies only to technical irregu- 
 larities, so called ; and not to those Avhich affect a sub- 
 stantial right. {Doty v. BiisseU, 5 Wend. 129 ; Lucas v. 
 Tni.stccs of Baptist Church, 4 How. Pr. 353). Notice 
 from the opposite party that he intends to take an irregu- 
 lar step in the action, requires no attention, and it does? 
 not make it necessary for his adversary to make any 
 application to the court upon the subject. (Vanden- 
 hurgh v. Van Rensselaer, 6 Paige, 147). A motion to 
 set aside a final judgment for irregularity, shall not be 
 heard after the expiration of one year since the filing of 
 the judgment roll ; unless notice thereof is given for a 
 day within the year, and either the hearing is adjourned, 
 hy one or more orders, until after the expiration of the 
 year or the term for which it is thus noticed is not 
 held. In the latter event, the motion can be noticed for, 
 and heard at the next term, at which it can be made, 
 held not less than ten' days after the day when the first 
 term was appointed to be held. (Co. Civ. Proe. § 1282). 
 It will be noticed that the fact that a party has not re- 
 ceived notice of the entry of judgment is not important 
 under this section, in which respect it differs from sec- 
 tion 724. The section does not apply to special proceed- 
 ings, but only to judgments. {Matter of Cittf of Buffalo, 
 78 N. Y. 362). The limit of time, \vithin which the 
 motion may be made, as fixed by this section, is con- 
 trolling only with reference to technical irregularities 
 {Corn E.rch. Bk. v. Blije, 119 X. Y. 414 ; and it does 
 not apply to a judgment entered without authority, 
 against a party not before the court {Diederick v. 
 Richlejj, 19 Wend. 109) ; nor to a judgment entered 
 before the defendant's time to answer had expired {Har- 
 ris V. Warren, 1 How. Pr. 139) ; nor to a judgment by 
 confession, for defects in the statement {Whinehrenner 
 V. Edf/erton, 30 Barb. 185) ; nor where an answer had 
 been served and disregarded {Decker y. Kitchen, 21 Hun, 
 332) ; nor where there was no answer, and jiidgment 
 had been entered for a relief not demanded in the com- 
 plaint {Simonson v. Blake, 12 Abb. Pr. 331) ; nor where 
 
MISTAKES, OMISSIONS AND IRREGULARITIES. 803 
 
 the judgment entered was without jurisdiction, or where 
 it is subversive of a substantial right. ( White v. Coulter, 
 59 N. Y. 629; Simpson v. McKay, 3 T. & 0. 65). In 
 all these cases, the court may set aside the judgment 
 although one year has expired after its entry. {Dins- 
 more V. Adams, 5 Hun, 149; S. C, 49 How. Pr. 238). 
 But, although a party is not precluded from moving to 
 vacate the judgment for a technical irregularity during 
 one year, the court is not bound to set it aside at any 
 time before the expiration of one year. In these cases 
 also, the rule obtains that the motion must be made 
 promptly, or an excuse given for delay; and laches will 
 defeat the motion. ( Orleans Co. Nat'l Bank v. Spencer, 
 19 Hun, 569). As to the requirements of a notice of 
 motion to set aside a proceeding for a technical irregu- 
 larity, see chapter seven, article three, ante. But where 
 the defect is not a mere technicality, but a substantial 
 or jurisdictional irregularity, such irregularity need not 
 be specified in the notice of motion. [Jackson v. Smith, 
 16 Abb. Pr. 201 ; 25 How. Pr. 476 ; Decker v. Kitchen, 
 21 Hun, 332; Winnebrenner v. Edgerton, 30 Barb. 185). 
 All objections to the proceeding which is attacked, must 
 be made in one motion. (Chapter VII, Article III, 
 ante ) . On a motion to set aside a proceeding for irregu- 
 larity, a moving party need not swear to merits. (De- 
 peyster v. Warne, 2 Cai. 45; Howell v. Denniston, 3 
 Cai. 96) . If the proceeding is irregular, and not within , 
 section seven hundred and twenty-three of the code, it 
 must be set aside on motion, whether the applicant has 
 merits or not. {Hughes v. Wood, 5 Duer, 603, note). 
 Upon such a motion, only the irregular proceeding will 
 be set aside, and no other one. For instance, where 
 an inquest was taken regularly, but the judgment en- 
 tered upon it was irregular, the court refused to set 
 aside the inquest, although certain proceedings which 
 were had before it was taken, were not strictly regular. 
 {Burger v. Baker, 4 Abb. Pr. 11). Where a plaintiff 
 had regularly taken the default of the defendant, but 
 an irregular judgment was entered upon it, the judg- 
 ment was set aside, but the default was permitted to 
 
804 PRACTICE. 
 
 Stand, and the plaintiff was permitted to enter another 
 judgment. [Griswold v. Stoughtoii, 1 Cai. 6). 
 
 Sec. 4. Waiver of Irregularities. 
 
 An irregularity which goes to the jurisdiction of the 
 court cannot be waived, for the court cannot get by 
 consent the right to do any act, which it has not the 
 jurisdiction to do. In other respects, the true rule 
 with regard to the waiver of irregularity, is that any 
 objection which does not deprive the court of jurisdic- 
 tion, beyond the power of the parties to give jurisdiction 
 to it, may be waived; and the distinction between 
 nullities, and mere irregularities is to be found in the 
 mode, rather than in the power of waiver. Thus, there 
 can be no question that an appeal, taken by service of 
 notice on the clerk alone, and not on the attorney, is 
 utterly void; and yet, there can also be no doubt that 
 the appeal could be made effectual and valid by express 
 consent; and so where any notice is entirely omitted. 
 (2 T. & S. 1033). A party is always at liberty to waive 
 any statutory, or even constitutional privilege, which 
 is made for his benefit, and having once waived it, he 
 loses the right to object to it. (Matte)- of Cooper, 93 
 N. Y. 507). A person making a general appearance in 
 an action, waives the objection that the process was 
 void, or irregularly served upon him, or that it was 
 not served upon him at all. {WheelocJc v. Lee, 15 Abb. 
 Pr. N. S. 24 ; reversed on other grounds, 64 N. Y. 242 ) . 
 The distinction between jurisdiction of the person, and 
 of the subject matter must be borne in mind (Weidinan 
 V. Sibley, 16 App. Div. 616) ; a defendant by a general 
 appearance, or by failure to object, cannot give the court 
 power to do a thing which is not within its jurisdiction. 
 (Wheeloch y. Lee, 74 N. Y. 495). If a proceeding 
 against him is a nullity, he may do nothing ; and he does 
 not thereby forfeit his right to object to it, whenever 
 it is used against him. But he may proceed in the action 
 as though the proceeding were regular, in which case, 
 if it was one which under any circumstances might 
 have been taken against him, he waives the right to 
 
MISTAKES, OMISSIONS AND IRREGULARITIES. 805 
 
 object to it. But there can be iio waiver of an irregu- 
 larity, unless the party knows the facts constituting the 
 irregularity. (Netcbery v. Furnival, 56 N. Y. 638; Wel- 
 ford V. OakJcij, 1 Sheld. 261 ; S. C, 43 How. Pr. 118) . If 
 a party alleges his ignorance of an irregularity, to avoid 
 what would otherAvise be deemed a waiver of it, tlie bur- 
 den of proof is upon him to show that he was ignorant of 
 it. If the proceeding was irregular, the presumption 
 would be that he knew it. If the irregularity is not a 
 nullity, the intention to waive it will be inferred from an 
 omission to object to it, when an opportunity thereafter 
 was given. {Matter of N. Y. West Shore cG B. R. R. Co., 
 35 Hun, 575 ) . A mere irregularity is waived by taking 
 any step in the action with a knowledge of it; or by 
 lying by and permitting the opposite party to take any 
 step in the action without objection {Mayor, etc. v. 
 Lyons, 1 Daly, 296) ; or by a failure to move promptly 
 to set aside the proceeding; and of course, it is waived 
 by consent, -either verbal or written, or by a subse- 
 quent acquiescence in it. {Farmers' Loan & T. Co. v. 
 Reid, 3 Edw. Oh. 414). 
 
 ARTICLE IV. 
 
 DEFECTS CURED BY VERDICT OR JUDGMENT. 
 
 In a court of record, where a verdict, report or deci- 
 sion has been rendered, the judgment shall not be stayed, 
 nor shall any judgment of a court of record be impaired, 
 or affected, by reason of either of the following imper- 
 fections, omissions, defects, matters, or things, in the 
 process, pleadings, or other proceedings : 
 
 1. For want of a summons, or other writ. 
 
 2. For any fault or defect in process; or for mis- 
 conceiving a process, or awarding it to a wrong officer. 
 
 3. For an imperfect or insufficient return of a sheriff, 
 or other officer; or because an officer has not subscribed 
 a return actually made by him. 
 
 4. For a variance between the summons and the 
 complaint. 
 
806 
 
 PRACTICE. 
 
 5. For a mispleading, insufficient pleading, or jeofail. 
 
 6. For want of a warrant of attorney by either party. 
 
 7. For the appearance by the attorney of an infant 
 party, if the verdict, report, or decision, is in his favor 
 
 8. For omitting to allege any matter, without proof 
 of which the verdict, report, or decision ought not to 
 have been rendered. 
 
 9. For a mistake in the name of a party, or other 
 person; or in a sum of money; or in the description of 
 property; or in reciting or stating a day, month, or 
 year; where the correct name, sum, description, or 
 date has been once rightly stated, in any of the pleadings 
 or other proceedings. 
 
 10. For a mistake in the name of a juror or officer. 
 
 11. For an informality in entering judgment, or mak- 
 ing up the judgment roll. 
 
 12. For an omission on the part of a referee to be 
 sworn; or for any other default or negligence of the 
 clerk, or any other officer of the court, or of a party, 
 his attorney or counsel, by which the adverse party has 
 not been prejudiced. (Co. Civ. Proc. § 721). 
 
 Each of the omissions, imperfections, defects and vari- 
 ances, specified in the last section, and any other of like 
 nature, not being against the right and justice of the 
 matter, and not altering the issue between the parties, 
 or the trial, must when necessary be supplied, and the 
 proceeding amended, by the court wherein the judgment 
 is rendered, or by an appellate court. (Co. Civ. Proc. 
 § 722). 
 
CHAPTER XX. 
 
 ABATEMENT AND REVIVAL. 
 
 ARTICLE I When actions abate. 
 
 ABTIOLE II.. .Continuance upon death of party. 
 ARTICLE III, .Transfer of interest or devolution of liability. 
 ARTICLE IV. .How new parties brought in. 
 ARTICLE V . . . When court may order action abated. 
 ARTICLE VI. . Effect of verdict, report or decision. 
 
 ARTICLE I. 
 
 WHEN ACTIONS ABATE. 
 
 SECTION. 
 
 1. General rule. 
 
 2. Rules applicable to particular actions. 
 
 Sec. 1. General Eule. 
 
 An action does not abate by any event, if the cause of 
 action survives or continues. A special proceeding does 
 not abate by any event, if the right to the relief sought 
 in such special proceeding survives or continues, but 
 this provision as to a special proceeding applies only 
 to cases where a party dies after 1891 [when the amend- 
 ment to this section took effect]. (Co. Civ. Proc. § 
 755). This amendment does not apply to proceedings 
 in the surrogate's courts. {Matter of Camp, 81 Hun, 
 387). The assignability and survivability of things in 
 action have frequently been held to be convertible terms, 
 and perhaps furnish as clear and intelligible a rule 
 to determine what injuries to property rights or in- 
 terests-survive, as it is possible to lay down. (Hegerich 
 V. Keddie, 99 N. Y. 258). The qualities of assignability 
 and survivability are tests of each other, and have been 
 declared by the court of appeals to be convertible terms. 
 
808 PRACTICE. 
 
 {BlaJce V. QriswoU, 104 N. Y. 613, 616). The rules of 
 the common law still determine the survivability of ac- 
 tions for torts, except where the law has been specially 
 modified, or changed by statute. {Hcfjerich v. Keddic, 
 supra). The revised statutes provide that for wrongs 
 done to the property rights or interests of another, 
 for which an action might be maintained against the 
 wrong doer, such action may be brought by the person 
 injured, or after his death, by his executors or adminis- 
 trators, in the same manner and with the like effect in 
 all respects, as actions founded upon contract. (R. S. 
 Pt. 3, Chap. 8, T. 3, § 1 [Banks & Bros., 9 Ed. Vol. 2, 
 p. 1907] ) . But the preceding section shall not extend 
 to actions for slander, for libel, or to actions of assault 
 and battery, or false imprisonment, nor to actions on 
 the case for injuries to the person of the plaintiff, or 
 to the person of the testator or intestate of any executor 
 or administrator. (Id. § 2). On this subject the court 
 of appeals has said: "If this language of the statute 
 be collocated and read according to its plain meaning 
 and intent, the following sentence would seem to be the 
 result : Actions by and against executors and adminis- 
 trators, for wrongs done to the property rights, or inter- 
 ests of their intestate or testator are hereby authorized, 
 but so far as such wrongs have heretofore been remedi- 
 able by actions on the case for injuries to the person of 
 the plaintiff, or to the person of the intestate or testator 
 of any executor or administrator, they shall not survive 
 the death of the person to whom, or by whom the wrong 
 is done." The court holds that the wrongs referred to in 
 these sections are such only as are committed "upon 
 the property rights, or interests" of the testator or 
 intestate, and to a cause of action for which the execu- 
 tors and administrators acquired a derivative title alone. 
 The whole scope and design of the statute is to extend 
 a remedy already accrued, to the representatives of a 
 deceased party, and provide for the survival only of an 
 existing cause of action. (Hegerieh v. Keddie, supra, 
 pp. 261, 262) . Sections 1902, 1903 and 1904 of the code 
 of civil procedure modify to some extent the provisions 
 of the revised statutes on this subject, by giving an 
 
ABATEMENT AND REVIVAL. 809 
 
 executor or administrator of a decedent a right of action 
 to recover damages against tlie wrong doer for the 
 pecuniary injury caused by the decedent's death. (Mat- 
 ter of MeeMit v. Bruoldyn Heights R. R. Co., 164 N. Y. 
 145). It is questionable whether sections nineteen hun- 
 dred and nine and nineteen hundred and ten of the code 
 of civil procedure extend the right of assignment of a 
 cause of action, but if they do have that effect, the law 
 as to the survival of causes of actions has not yet been 
 changed by them. (Blakc v. Orisioold, 104 N. Y. 613). 
 Section 755 declares the paramount rule, and, if the 
 cause of action survives or continues, the action does 
 not abate whether the particular case is mentioned in 
 sections 757, 758 and 759, or not; these last named 
 sections were enacted to provide for special cases and not 
 to limit to those cases only the power of the court to 
 continue an action. (Lyon v. Park, 111 N. Y. 351). 
 It has long been a prevalent conception, both upon the 
 bench and at the bar, that the dissolution of a corpora- 
 tion had the same effect so far as the question of abate- 
 ment is concerned as the death of an individual (Matter 
 of N. Y. Oxygen Co., 24 Civ. Proc. Rep. 398 ; Crafton v. 
 Union Ferry Co., 22 Civ. Proc. Rep. 402), unless there 
 was some statutory provision continuing the cause of 
 action (Marstaller v. Mills, 143 N. Y. 398) ; but a very 
 recent decision of the court of appeals has laid down a 
 decidedly different rule, and practically all actions 
 would seem to be continuable now against the former 
 directors of the defunct corporation to the extent of the 
 corporation's property in their hands. (8hayne y. 
 Evening Post Pnhlishing Co., 168 N. Y. 70). 
 
 Sec. 2. Rules Applicable to Particular Actions. 
 
 Subdivision 1. — What does not Abate. 
 
 The following actions do not abate : all actions arising 
 on contract (Holsman v. Ht. John, 90 N. Y. 461, 463) ; 
 actions for taking and carrying away personal property 
 (Heinmuller v. Oray, 35 Super. 196) ; actions for dam- 
 ages for trespass on real property (Matthews y. D & 
 H. C. Co., 20 Hun, 427; Hegerich v. Keddie, 99 N. Y. 
 
810 
 
 PRACTICE. 
 
 258, 261, 262; Bond v. Smith, 4 Hun, 48; Sullivan v. 
 N. Y. El. R. R. Co., 14 Misc. 426) ; a taxpayer's action 
 {Gordon v. Strong, 158 N. Y. 407) ; an action by a 
 husband against a carrier, to recover for the loss of 
 the services of his wife, and expenses paid by him in 
 consequence of an injury to her {Cregin v. Brooklyn 
 G. T. R. R. Go., 75 N. Y. 192) ; an action brought by an 
 administrator under section 1902 of the code of civil 
 procedure to recover damages for negligence causing the 
 decedent's death {Matter of Meehin v. Brooklyn Heights 
 R. R. Co., 1C4 N. Y. 145), but the substituted admin- 
 istrator, not the personal representative of the deceased 
 administrator, should continue it {Hodges v. Web- 
 ber, 65 App. Div. 170) ; an action against a stock- 
 holder, to enforce the personal liability against him 
 for debts of the corporation, until the capital has been 
 paid in {Chase v. Lord, 77 N. Y. 1) ; an action by the 
 receiver of a bank against a director thereof to recover 
 damages for losses sustained by the banli by reason of 
 the negligent conduct of its directors {O'Brien v. Blaut, 
 17 App. Div. 288 ) ; a cause of action under the peculation 
 act (Co. Civ. Proc. § 1969; People v. Starkweather, 40 
 Super. 453) ; a cause of action against a plumber, for 
 improperly repairing, owing to which the health of the 
 plaintiff and his family was injured by escaping gas,, 
 and for trouble and expense in providing care and 
 medical treatment for the plaintiff's children, was held 
 to abate by the plumber's death, in so far as the action 
 was brought for damages to the plaintiff's person, but 
 to survive in respect to damages and expenses occas- 
 ioned by the sickness of the children {Scott v. Broion, 
 24 Hun, 620) ; an action to recover damages for fraudu- 
 lent representations, made by the seller of property, 
 or by one who conspires with the seller to defraud the 
 plaintiff, and gets some advantage from the sale {Haight 
 V. Hayt, 19 N. Y. 464; Moore v. McKinstry, 37 Hun, 
 194) ; or an action by a former owner of a valuable 
 contract to recover damages for fraud and conspiracy, 
 by means of which the defendants induced the plaintiff 
 to transfer such contract to one of the defendants ( Lyoti 
 V. Park, 111 N. Y. 351) ; an action by members of a firm 
 
ABATEMENT AND REVIVAL. 811 
 
 for slander relating to the financial condition of the 
 firm, does not abate by the death of one partner but 
 vests in the survivors (Shale v. 8chantg, 35 Hun, 622) ; 
 an action for specific performance brought against ex- 
 ecutors, does not abate by the death of one defendant 
 (Patterson v. Copeland, 52 How. Pr. 460) ; an action 
 against several defendants, to compel an accounting by 
 them, does not abate by the death of one defendant ; but 
 his executor may be substituted. (Halstead v. Coclc- 
 croft, 40 Super. 519 ; Knunheck v. Clancy, 41 App. 
 Div. 397). The estate of a person or party, jointly 
 liable upon contract with others, shall not be discharged 
 by his death, and the court may make an order to bring in 
 the proper representative of the decedent, when it is 
 necessary to do so for the proper disposition of the mat- 
 ter. (Co. Civ. Proc. § 758). The rule laid down by this 
 portion of section 758 has changed, doubtless the rule 
 laid down in Risley v. Broicn (67 N. Y. 160), so far as 
 the ultimate liability of the estate of the deceased joint 
 debtor is concerned (Randall v. Sackett, 77 N.'Y. 480; 
 Matter of Rohiiison, 40 App. Div. 23, 25) ; but it is 
 not to be assumed that, because such estate may be 
 reached in some way, that result can be obtained by 
 joining the personal representatives of the deceased in 
 the action against the surviving joint debtors; such 
 joinder should not be ordered except upon the allega- 
 tion of the insolvency of the survivors. (First National 
 Bank of Jersey City v. Lenk, 10 N. Y. Supp. 261 ; affd. 
 without op., 123 N. Y. 638) . There may be an obligation 
 in equity where the joint obligors are principal debtors, 
 however, and in such cases it would seem the personal 
 representatives should be brought in. (Richardson v. 
 Draper, 87 N. Y. 337). What has been said on this 
 matter has no application, of course, to cases where 
 the liability is joint and several ; in such cases the per- 
 sonal representatives should be brought in. (Hein- 
 muller v. Gray, 35 N. Y. Super. Ct. Eep. 196). The 
 section applies only to contracts made after its passage. 
 (Randall v. Sackett, 77 N. Y. 480). A partition suit 
 does not abate upon the death of the sole party plaintiff. 
 (Cheney v. Rankin, 27 Misc. 609). By the revised 
 
812 
 
 PKACTICB. 
 
 statutes, and action of ejectment did not abate by the 
 death of the plaintifP. (2 Kev. Stat., 308, § 32; James 
 V. Bennett, 10 Wend. 540). Under that section of the 
 statute, it was held that the action abated by the death 
 of a sole defendant. {Putnam v. Van Buren, 7 How. 
 Pr. 31). That portion of the revised statutes has now 
 been repealed, however, and an action of ejectment does 
 not abate by the death of any of the parties. (Co. Oiv. 
 Proc. §§ 1521, 1522, 1523). Although an action to 
 restrain a defendant from cutting timber, abates by his 
 death, yet it may be continued by the executors of the 
 plaintiff, to recover damages for timber already cut. 
 {Matthews v. D. & H. G. Co., 20 Hun, 427). An action 
 of replevin does not abate by the death of either party. 
 (Co. Civ. Proc. § 1736). The marriage of a female 
 plaintiff does not abate the action, but it will be con- 
 tinued in her new name, as a matter of course. {Mapes 
 V. ^#^fZer, 59 N. Y. 450). 
 
 Subdivision 2. — What Actions do Abate. 
 
 The following actions abate by death : an action for 
 divorce {Hopkins v. Hopkins, 21 Wk. Dig. 174; Millady 
 V. Stein, 19 Misc. 652) ; an action for dower, by the death 
 of the plaintiff before interlocutory judgment {McKeen 
 T, Fish, 33 Hun, 28), unless the court has announced 
 its decision that the report of the referee granting the 
 plaintiff dower would be confirmed {Rohinson v. Govers, 
 138 N. Y. 425) ; an action by a tenant for life, to recover 
 real property; but his administrators may after his 
 death, revive the action to recover damages to his estate, 
 tj reason of the detention of the property {DeLisle v. 
 Hunt, 36 Hun, 620) ; an action for breach of promise 
 to marry {Wade v. Kalbfleisch, 58 N. Y. 282) ; for the 
 seduction of the plaintiff's daughter {Holliday v. 
 Parker, 23 Hun, 71) ; for inveigling the plaintiff by 
 false representations, into a void marriage {Price v. 
 Price, 75 N. Y. 244) ; libel or slander {Sjmoner v. 
 Keeler, 51 N. Y. 527) ; a cause of action to recover 
 damages for knowingly letting an unhealthy tenement, 
 and thus causing the death of plaintiff's child ( Victory 
 
ABATEMENT AND REVIVAL. 813 
 
 V. Krauss, 41 Hun, 533) ; an action to restrain defendant 
 from cutting timber on tlie lands of the plaintiff abates 
 by the death of the defendant [Johnson v. Elwood, 82 
 N. Y. 362) ; an arbitration abates by the death of either 
 party {Manning v. Piutt, 18 Abb. Pr. 344) ; an action to 
 recover damages for the negligent killing of plaintiff's 
 testator, abates by the death of the wrong doer (Hege- 
 rich V. Keddie, 99 N. Y. 258) ; an action to recover 
 damages for personal injuries to the plaintiff, abates by 
 death of the plaintiff, or of the wrong doer (Gox v. N. Y. 
 Gen. <& H. R. B. R. Co., 63 N. Y. 414) ; an action brought 
 under the civil damage act, abates by the death of the 
 defendant {Moriorty v. Bartlett, 99 N. Y. 651) ; an 
 action against a physician for malpractice for causing 
 injuries to plaintiff's person, abates by his death {Best 
 V. Tedder, 58 How. Pr. 187) ; an action against a trustee 
 of a corporation, to recover the penalty for failure to 
 make a report, or for making a false report, abates by 
 the death of either party. {Stohes v. Sticl-neij, 96 N. Y. 
 323; Brachett v. Gristoold, 103 N. Y. 425; Boijle v. 
 Thurher, 50 Hun, 259). In an action for a personal 
 injury, if the defendant stipulate, as a condition of 
 obtaining a postponement, that if the plaintiff die be- 
 fore verdict, the cause of action shall not abate, it will 
 survive; and in such a case the plaintiff's testator will 
 be substituted as plaintiff {Gox v. TV. Y. Gen. d H. R. 
 R. R. Go., 63 N. Y. 4:14.; McQuire v. Same, 6 Daly, 70) ; 
 but where a nonsuit was granted in an action to recover 
 damages for a personal injury, which was reversed by 
 the general term, the stipulation for judgment absolute, 
 given upon an appeal to the court of appeals, does not 
 prevent the abatement of the action. {Gorbett v. 23d. 
 8t. RiDtj. Go., 114 N. Y. 579). It was formerly held that 
 a special proceeding to vacate an assessment abated by 
 the death of the petitioner, and could not be revived by 
 his executor {Matter of Palmer, 115 N. Y. 493) ; but the 
 amendment of 1891 to section 755 has changed this rule. 
 The imprisonment of the person in state prison for life, 
 or for a term of years, deprives him of all rights as 
 a plaintiff in the action ; but does not free him from all 
 liability as a defendant. He does not thereby acquire 
 
814 
 
 PRACTICE. 
 
 immunity from the claims of private individuals, or the 
 necessities of public justice. The statute suspends his 
 rights alone, and not the rights of others against him; 
 although he cannot sue, he may be sued, and the suit 
 may be prosecuted to judgment against him. And in gen- 
 eral, he is subject to be proceeded against in all the 
 modes prescribed by law to enforce civil remedies, as 
 if he were at large. {Bonnell v. R. TF. & O. R. R. Co., 
 12 Hun, 218, 219, and cases cited). 
 
 ARTICLE II. 
 
 CONTINUANCE UPON DEATH OF PARTY. 
 
 SECTION. 
 
 1. Vi^hen sole party dies. 
 
 2. When one of several parties dies. 
 
 Sec. 1. When Sole Party Dies. 
 
 In case of the death of a sole plaintiff, or defendant, 
 if the cause of action survives or continues, the court 
 must, upon a motion, allow or compel the action to be 
 continued by or against his representative, or successor 
 in interest. In case of the death of a sole party to a 
 special proceeding after this act takes effect [1891], if 
 the right to the relief sought in such proceeding survives 
 or continues, the court must, upon a motion, allow or 
 compel such proceeding to be continued by or against 
 his representative, or successor in interest. This pro- 
 vision as to a special proceeding does not apply where 
 provision for such continuance has been otherwise made 
 by law. (Co. Civ. Proc. § 757) . Where a sole defendant 
 dies, it is usual to enter a suggestion of the fact on 
 the record, and thereupon all subsequent proceedings 
 are suspended until the representative is brought in. 
 {Wanisley v. Horton & Co., 87 Hun, 347) . If there were 
 originally more than one defendant in the action, and 
 all but one have died, that one is a sole defendant 
 within this section. {Coit v. Campbell, 82 N. Y. 509). 
 The section applies to a case where both parties to the 
 action are dead. {Holsman v. St. John, 90 N. Y. 461). 
 
ABATEMENT AND REVIVAL. 
 
 815 
 
 The substitution in all cases is to be made by a motion, 
 and not by a supplemental complaint, as was required 
 in some cases under the code of procedure. {Coit v. 
 Campbell, supra; Holsiiiaa v. St. John, 90 N. Y. 461). 
 An action cannot be maintained to procure a substitu- 
 tion of the representatives of a party who is dead. 
 {MiUcr V. Rogers, 18 Wk. Dig. 119). It was held, at 
 one stage of the development of the decisions on this 
 subject, that in actions at law this section gave the 
 court no discretion to deny, on account of laches or lapse 
 of time, the application for a continuance or a revival 
 {Holsman v. St. John, supra), though there was no 
 such absolute right given by this provision to the repre- 
 sentatives of a deceased sole plaintiff or defendant in 
 an equity suit {Coit v. Campbell, supra) ; there was early 
 shown a tendency on the part of the courts to escape 
 from the doctrine laid down in the former case with 
 reference to actions at law {Lyon v. Park, 111 N. Y. 
 351), and the recent case of Pringlc v. Long Island R. 
 R. Co. (157 N. Y. 100), after a review of the authorities 
 on the subject, overrules Holsman v. St. John {supra), 
 and lays down the same rule for both legal and equit- 
 able actions, i. e., laches on the part of plaintiff in 
 moving for a revivor may be an answer to such a motion. 
 If the personal representative has been guilty of no 
 laches, the motion should be granted, although im- 
 portant witnesses for the other side have died during 
 a delay occasioned by the decedent. {Markell v. 1^ ester, 
 29 App. Div. 59; app. dismissed, 157 N. Y. 700). It has 
 been held, at special term, that the continuance may be 
 granted conditionally upon the giving of security for 
 costs. {Enoch v. Fiinke, 22 Civ. Proc. Kep. 161). Of 
 course adequate reasons must be shown for the imposi- 
 tion of the condition. {Collins v. Jeicell, 3 Misc. 341). 
 It has been held that whenever a sole party has died, 
 the defendant cannot move to substitute the personal 
 representatives of the deceased party, unless he has ac- 
 quired some right in the litigation, as by pleading a 
 counter-claim and that his remedy is under section seven 
 hundred and sixty-one of the code of civil procedure. 
 
 63 
 
816 PRACTICE. 
 
 [Repiiblic of Peru v. Reeves, 40 Super. 316; Livcrmore 
 V. Bainbridge, 49 N. Y. 125). But since the amendment 
 of section seven hundred and fifty-seven of the code of 
 civil procedure which was made in 1879, it has been 
 held that the privilege of having the action revived is 
 given to the defendant as well as to the plaintiff, and 
 that the motion for revivor may be made by the per- 
 sonal representatives of a deceased defendant. ( Pierson 
 V. Morgan, 4,i Hun, 517; Dalton v. Sandland, 4 Civ. 
 Proc. Rep. 73). When a counter-claim had been inter- 
 posed, and issue joined upon it, it was always held that 
 the defendant has acquired such an interest in the action 
 as entitles him to move. {Livermore v. Bainbridge, 
 stipra). The successors in interest who are to be substi- 
 tuted, are the owners of the right which is the subject of 
 litigation; as the heirs-at-law, where the action is in 
 regard to real estate, or the executors or administrators, 
 if it is in regard to personal property. ( Green v. Mar- 
 tine, 1 Civ. Proc. Hep. 129; affd. 27 Hun, 346). The 
 administrator de bonis non should be substituted in 
 place of the administrator, in an action for damages for 
 decedent's death under section 1902 of the code {Mundt 
 V. Qlokner, 24 App. Div. 110; app. dismissed, 160 N. Y. 
 571), and not the personal representatives of the 
 deceased administrator. {Hodges v. Webber, 65 App. 
 Div. 170) . In an action to compel the determination of a 
 claim to real property, where the plaintiff died leaving 
 a will devising the subject matter- of the suit, the 
 devisee was held to be the proper "successor in interest" 
 to be substituted. {Higgins v. Mayor, etc., 136 N. Y. 
 214). Where the plaintiff dies, and he or his executors 
 have assigned the cause of action, the assignee should 
 be substituted as party plaintiff {McNuUa v. Hunting- 
 ton, 62 App. Div. 257 ; McLachlin v. Brett, 27 Hun, 18 ; 
 app. dismissed, 90 N. Y. 653), although a counter-claim 
 has been interposed by the defendant. (ScJilichter v. 
 South Brooklyn Saw M. Co., 35 Hun, 339). Where an 
 assignee moves to be substituted as a party plaintiff, he 
 must give prima facie proof of his title. (St. John v. 
 Croel, 10 How. Pr. 253). A dispute as to title must be 
 raised and decided upon the motion for substitution. 
 
ABATEMENT AND REVIVAL. 817 
 
 {Smith V. Zalinski, 94 N. Y. 519). Where an action of 
 ejectment is brought by the grantee in the name of his 
 grantor, pursuant to section fifteen hundred and one 
 of the code, and the grantee has died, his devises may 
 have the action revived. {Ward v. Rei/iioJds, 25 Hun, 
 385). But where such an action is brought by the 
 grantee in the name of several grantors, and part of 
 them died before trial, the proper practice is to amend 
 the complaint and proceed cle novo, as in a case where 
 an answer of defect of parties plaintiff has been inter- 
 posd. {Doherty v. Matsell, 53 Super. 73). If, in an 
 action to recover real estate, the plaintiff should die, 
 leaving a widow and heirs-at-law, she need not, as widow, 
 join with the heirs-at-law in an application to revive 
 the action, as long as her dower has not been assigned. 
 {Ash V. Cook, 3 Abb. Pr. 389). In an action for an ac- 
 counting and to recover a balance due, the devisees are 
 not proper persons to be substituted on the death of the 
 defendant, but the executors only succeed to the cause 
 of action. {Green v. Martine, 1 Civ. Proc. Eep. 129; 
 affd., 27 Hun, 246). Where, in an action to foreclose a 
 mortgage, a defendant has parted with his interest pen- 
 dente lite, and died, the executors, and not the heirs, 
 are the proper parties to be substituted as defendant. 
 {^yelJh V. Boylan, 14 Wk. Dig. 247). An action may 
 be revived against infant representatives. {yMll-inson 
 X. Parish, 3 Paige, 653 ) . It was formerly held that, from 
 the time of granting a provisional remedy, the court 
 acquires sufficient jurisdiction of the action to substi- 
 tute the representatives of a defendant, who dies before 
 the summons is served {More v. Thaijer, 10 Barb. 258) ; 
 but, since the addition in 1866, to section 227 of the code^ 
 of procedure, of the clause requiring service of the sum- 
 mons to be made, or publication to be commenced within 
 thirty days (which clause was continued in, and is now 
 in force, as, section 416 of the code of civil procedure),, 
 the rule has been that, by the provisional remedy the 
 court acquires no jurisdiction at all unless the sum- 
 mons is served personally, or by publication, upon the 
 original defendant within the required time; where the 
 original defendant dies, therefore, before service by pub- 
 
818 
 
 PRACTICE. 
 
 lication has been begun, or completed, the court cannot 
 continue the action against the deceased defendant's 
 personal representatives, or preserve against such rep- 
 resentative the vitality of the lien acquired by the pro- 
 visional remedy. {Barron v. So. Brooklyn Saw Mill 
 Co., 18 Abb. N. C. 352; Ludwig v. Bluin,'4.S N. Y. St. 
 Eep. 616). The executor may be substituted as a party 
 plaintiff after judgment. {Robinson v. Brisbane, 7 
 Hun, 180) ; app. dismissed on op. of court below, 67 N. 
 Y. 606). Where a motion is made to substitute tue per- 
 sonal representative, in the place of a deceased party, 
 if the pleadings show that the cause of action is one that 
 survives, the court will not hear aflfidavits to the con- 
 trary. {Wing V. Ketcham, 3 How. Pr. 385). If the 
 defendant's representatives have procured themselves 
 to be substituted as parties, after his death, the court 
 will not vacate the order because the action did not sur- 
 vive against them. {Arthur v. Griswold, 2 Hun, 606; 
 60 N. Y. 143). An objection that the personal repre- 
 sentatives have not been brought in as parties, may 
 be taken at the trial. {Hasbroudc v. Btince, 62 N. Y. 
 475). Where the court has substituted the executor of 
 the plaintiff, an objection cannot be taken that there is 
 no allegation of the death of the party, or proof of it on 
 the trial. {Isham v. Davison, 3 T. &. C. 745). Where 
 the action is revived, the issue and proceedings are taken 
 up at the point where the death of the party as to whom 
 the change is made, left them ; the new or substituted 
 party takes the place of the prior one, and the case is 
 revived, and proceeds in all respects, as if the new party 
 had been in the case from the beginning ; but this applies 
 solely to the proceedings to enforce a right of action, 
 and not to the right of action itself. {Cregin v. Brooh- 
 lyn C. T. R.. R. Co., 83 N. Y. 595, 598) . Where a cause of 
 action which survives is joined with one which does not, 
 the court may grant a continuance of the action which 
 survives, on condition that the defendant stipulates to 
 strike the other cause of action from the complaint. 
 (Forster v. Gantoni, 19 App. Div. 306). 
 
ABATEMENT AND REVIVAL. 819 
 
 Sec. 2. When One of Several Parties Dies. 
 
 Subdivision 1. — If the Entire Cause of Action Sur- 
 vives. 
 
 In case of the death of one of two or more plaintiffs, 
 or one of two or more defendants, if the entire cause of 
 action survives to or against the others, the action may 
 proceed in favor of or against the survivors. But the 
 estate of a person or party jointly liable, upon contract, 
 with others, shall not be discharged by his death. And 
 the. court may make an order to bring in the proper 
 representative of the decedent, when is is necessary to do 
 so for the proper disposition of the matter; and where 
 the liability is several as well as joint, may order a 
 severance of the action, so that it may proceed separately 
 against the representative of the decedent, and against 
 the surviving defendant or defedants. (Co. Civ. Proc. 
 § 758). If one of several plaintiffs dies, and the cause 
 of action continues to his survivors, such survivors have 
 a right to proceed, and they cannot be compelled to sub- 
 stitute the representatives of the deceased plaintiff. 
 {Williamson v. Moore, 5 Sand. 647). In an action by 
 partners, if one dies, the remaining members continue 
 the action in their names. {Taylor v. Church, 9 How. 
 Pr. 190). So in an action for slander against a firm. 
 {8hale v. Schantz, 35 Hun, 622). If a judgment by 
 default has been entered against the survivors, it cannot 
 be revived against the administrator of a deceased part- 
 ner; but a new action must be brought against him, 
 w^here it is sought to enforce the liability against his 
 estate. {Masteii y. BlacJcwell, 8 'Sun, 313). Where, in 
 an action brought by two partners, judgment has been 
 recovered and satisfied as to one, but not as to the other, 
 and the latter ones dies, his personal -representatives 
 may be substituted as plaintiffs, for he has become 
 practically a sole plaintiff in the cause. {Hacketi v. 
 Belden, 10 Abb. Pr. N. S. 123; affd., 47 N. Y. 624). 
 Where an action is brought by tenants in common for 
 conversion of property, if one of the plaintiffs dies, the 
 action should be continued in the name of the survivors, 
 
820 PRACTICE. 
 
 Avithout substituting the executor of the deceased plain- 
 tiff. (Bucl-iiam v. Brett, 35 Barb. 596; 13 Abb. Pr. 
 119). Where an action of ejectment is brought by ten- 
 ants in common, one of whom dies, his heirs-at-law must 
 be substituted, or the remaining plaintiffs can only re- 
 cover the interest which they have in the premises. 
 Eashrouck v. Bimce, 62 N. Y. 475). If the defendant 
 who dies was not a necessary party, the action may pro- 
 ceed without regard to his death {Hancock v. Hancock, 
 22 N. Y. 568), although he was a proper party {Lemon 
 V. Smith, 20 App. Div. 523) ; but an order should be 
 entered, reciting the fact of his death, and dropping him 
 out of the case. {Halstead v. Cockroft, 49 How. Pr. 
 342). But after a defendant has acquired a right or 
 interest against a co-defendant, as for example, after an 
 interlocutory judgment on his counter-claim has been 
 entered, he may on the death of his co-defendant bring 
 in his executors by motion. {Halstead v. Cockroft, 40 
 Super. 519 ) . The second sentence of section seven hun- 
 dred and fifty-eight, as above cited, does not change the 
 rule that, where one of two or more joint debtors die, 
 his personal representatives should not be joined- in the 
 action with his survivors, except upon the allegation of 
 the insolvency of the survivors, {First 'National Bank 
 of Jersey City v. Lenk, 10 N. Y. Supp. 261; affd. with- 
 out op., 123 N. Y. 638), though it, doubtless, does alter 
 the rule as to the ultimate liability, as we have seen. 
 There may be an obligation in equity where the joint 
 obligors are principal debtors, however, and in such 
 cases it would seem the personal representatives should 
 be brought in. {Richardson v. Draper, 87 N. Y. 337). 
 If the defendants are jointly and severally liable, and 
 one of them dies, the plaintiff may treat the action as 
 abated as to him, and proceed against the other defend- 
 ants {Gardner v. Walker, 22 How. Pr. 405) ; or if the 
 action is for a tort which survives, continue it as a sep- 
 arate action against the representatives of the deceased 
 defendant. {Heinmuller v. Gray, 35 N. Y. Super. Ct. 
 Hep. 196). It is proper practice to revive against the 
 representative of a deceased defendant, and to sever the 
 
ABATEMENT AND REVIVAL. 821 
 
 iiction, and to continue it as two actions. {Bond v. 
 Smith, 4: Hun, iS). In sucli a case, if the action is partly 
 tried, and the testimony .of the plaintiff has been taken, 
 the order, reviving tlie action against tlie representa- 
 tives of one defendant, should be without prejudice to 
 an application to strike out such part of the plaintiff's 
 testimony as is incompetent against the executors. 
 (Id.). An order substituting or refusing to substitute 
 representatives of the deceased party, is appealable to 
 the appellate division. {St. John v. Groel, 10 How. Pr. 
 253). 
 
 Subdivision 2. — If Part op the Cause of Action Sur- 
 vives. 
 
 In case of the death of one of two or more plaintiffs, 
 or one of two or more defendants, if part only of the 
 cause of action, or part or some of two or more distinct 
 causes of action, survives to or against the others, the 
 action may proceed, without bringing in the successor 
 to the rights or liabilities of the deceased party; and 
 the judgment shall not affect him or his interest in the 
 subject of the action. But where it appears proper so 
 to do, the court may require or compel the successor, or 
 a person who claims to be the successor, to be brought 
 in as a party, upon his own application, or upon the 
 application of a party to the action. (Co. Civ. Proc. § 
 759). This section seems to relate to equitable actions, 
 and was designed to put into statutory form the rule 
 laid down in Leggett v. Duhois (2 Paige, 211) ; White 
 V. Buloid (Id. 475) ; and Ho f man v. Tredivell (6 Paige, 
 308). {Lyon v. Park, 111 N. Y. 351, 356). 
 
 Subdivision 3. — In Other Cases. 
 
 As has been noted heretofore, the court has power to 
 continue an action, which does not abate, despite the 
 fact that the particular circumstances of the case do 
 not bring it within the provisions of sections 757, 758, 
 or 759. In all cases covered by section 755, the action 
 does not abate, but an application to the court is neces- 
 sary to authorize its revival or continuance, and such 
 
S22 PRACTICE. 
 
 application will be denied where the moving party has 
 been guilty of inexcusable laches, or where, otherwise, 
 irreparable injury will be suifered. {Lyon v. Park, 111 
 N. Y. 351). 
 
 ARTICLE III. 
 
 TRANSFER OF INTEREST, OR DEVOLUTION OF LIABILITY. 
 
 SECTION. 
 
 1. Actions in general. 
 
 2. Actions by or against public officers. 
 
 3. Special eases. 
 
 Sec. 1. Actions in General. 
 
 In cases of a transfer of interest, or devolution of 
 liability, the action may be continued by or against the 
 original party; unless the court directs the person to 
 whom the interest is transferred, or upon whom the lia- 
 bility is devolved, to be substituted in the action, or 
 joined with the original party, as the case requires. ( Co. 
 Civ. Proc. § 756). This section contemplates a transfer 
 other than by death of a party. A party succeeding to 
 the plaintiff's rights, may continue to prosecute the 
 action in the plaintiff's name, as though no change had 
 taken place. {Burton v. Burton, 57 App. Div. 113; 
 Arnold v. Keyes, 37 Super. 135). Though the action is 
 continued in the name of the original plaintiff, the 
 assignee controls the action, its course and disposition. 
 {Hirshfeld v. Fitzgerald, 157 N. Y. 166) ; and he is 
 bound by the judgment. {McGean v. Met. El. Riry. Co., 
 133 N. Y. 9 ) . It is optional with the court whether or 
 not to allow the substitution of the assignee. {Getty v. 
 Bpauld'mg, 58 N. Y. 636). Ordinarily, however, it will 
 be granted upon a proper application, unless the court 
 can see that it would prejudice some right of the defend- 
 ant; in which case the court will refuse it, or grant it 
 on terms. {Howard v. Taylor, 5 Duer, 604). It was 
 formerly held that, where a cause of action had been 
 assigned, the assignee would be substituted only upon 
 his own application. {Howard v. Taylor, supra; Pack- 
 ard V. Wood, 17 Abb. Pr. 318) ; but these cases have 
 
ABATEMENT AND REVIVAL. 823 
 
 been overruled and it has been settled by the cases of 
 more recent date that section 756 gives the court gen- 
 eral discretionary power to bring in such assignee, even 
 upon application of the opposite party. {De Bost v. 
 Albert Pahiicr Co., 1 How. Pr. N. S. 508). An assignee 
 in bankruptcy may Carry on a suit in the name of the 
 bankrupt corporation; and it is not necessary that he 
 should be substituted, or that he should procure an 
 order to carry it on. {Piatt v. Ashinun, 32 Hun, 230). 
 Where an application is made by an assignee to be sub- 
 stituted in the jjlace of his assignor as plaintiff, and 
 notice of such application is given to the defendant, the 
 title of the assignee must be tested, if at all, upon the 
 motion. [Smith v. ZaJin.^ki, 26 Hun, 225; affd., 94 N. 
 Y. 519). In an action for partition, if one defendant 
 transfers his interest after the case has begun, the trans- 
 feree may be substituted in his place (Honifager v. 
 Hornfager, 6 How. Pr. 13) ; but Avhere the defendant 
 in ejectment transfers his interest, if a notice of lis 
 pendens has been filed, the suit may be continued against 
 the original party Avithout notice to the grantee, and 
 upon the judgment and writ of possession, such grantee 
 may be dispossessed. The action is founded upon a tort, 
 that is, for the entry into the lands of another, and 
 unlawfully withholding possession from him ; and the 
 grantee does not become liable to the action, unless he 
 enters and claims to hold the possession adversely to 
 the plaintiff. [Moseleij v. Alh. & Northern R. R. Co., 
 14 How. Pr. 71). Where a receiver of a corporation has 
 been appointed, it is not necessary that the action 
 against the corporation should be continued against the 
 receiver, before a plaintiff can take judgment. But if 
 judgment is so taken, the court may open it, and allow 
 the receiver to defend, upon good cause shown (Knaner 
 V. Knaiier, 11 Reporter, 100) ; or the plaintiff in a proper 
 case, may procure the receiver to be substituted as de- 
 fendant. (People V. Universal L. Ins. Co., 17 Wk. Dig. 
 563 ) . A dissolution of a corporation terminates actions 
 against it, and all subsequent proceedings are void, 
 unless they are continued by the court, as prescribed 
 bylaw. (McCulloch Y. Nonvood, 58 :N. Y. 562). So,. 
 
824 PRACTICE. 
 
 where a receiver, by direction of the court but without 
 formal substitution, assumes control of an appeal taken 
 Ijy the corporation before his appointment and secures 
 a reversal of the judgment against the corporation, the 
 funds in his hands will not be affected by a judgment 
 on a new trial in which he took no part. {People v. 
 KnicJcerhocker Life Iiifi. Co., 106 X. Y. 619). Where an 
 action is pending against a foreign corporation, the 
 continuance of it is a matter of practice, and it must 
 be done as required by the laws of this state. (Stiirges 
 V. Yanderbilt, 73 X. Y. 384). Where two railroad com- 
 panies are consolidated, the consolidated company will 
 not be substituted in an action against one of the old 
 companies, unless with regard to some contract or lien 
 which the new company has assumed, or which devolved 
 upon it. {ProHtjj v. Lake Shore & 21. S. B. R. Co., 52 
 N. Y. 363). The substituted party is bound by the acts 
 of his predecessor in the progress of the case, and he is 
 entitled to the benefit of all the proceedings had. 
 {Thwing v. Thicing, 9 Abb. Pr. 323; 18 How. Pr. 458; 
 Moore v. IlamiUori. 44 N. Y. 666). 
 
 See. 2. Actions by and Against Public Officers. 
 
 Where an action or special proceeding is authorized 
 or directed "bj law, to be brought by or in the name of a 
 public officer, or by a receiver or other trustee, appointed 
 by virtue of a statute, his death or removal does not 
 abate the action or special proceeding ; but the same may 
 be continued by his successor, who must, upon his 
 application, or that of a party interested, be substituted 
 for that purpose by the order of the court, a copy of 
 which must be annexed to the judgment roll. (Co. Civ. 
 Proc. § 766). It is optional with parties whether to 
 apply or not, and until they do, the suit should proceed 
 in the name of the original parties. {Manchester v. 
 Herrin.fjton. 10 N. Y. 164). Where a sheriff dies after 
 having brought an action under section six hundred and 
 fifty-five of the code, to recover attached property, his 
 successor in office, and not his personal representatives, 
 should be siibstituted as parties. {Orser v. GlcnviUe 
 Woolen Co.. 11 Abb. Pr. N. S. 85; 60 Barb. 371). On 
 
ABATEMENT AND REVIVAL. 825 
 
 the cleatli of a public officer, pending an action brought 
 by liim, as such, his successor in office, and not his per- 
 sonal representatives, should be substituted. {Pratt v. 
 Sccleij, 20 Wk. Dig. 280). But where a suit has been 
 brought against him for his own tort, upon his death it 
 cannot be continued against his successors, but his per- 
 sonal representatives should be substituted as defend- 
 ants, if the action is one which survives. (Hughes v. 
 Rathhone, 3 Alb. Law. J. 71; Haiuilton x. Gorman, 14 
 Misc. 111). The language of section seven hundred 
 and sixty-six includes special proceedings, and there- 
 fore the case of the People v. Oswego Court of Sessions 
 (2 T. & 0. 431), which holds that a special proceeding 
 against a public officer cannot be continued against his 
 successor, is no longer law. The section refers to statu- 
 tory receivers only. (Hegetoisch v. Silver^ 140 N. Y. 
 414, 420). 
 
 Sec. 3. Special Cases. 
 
 The provisions of sections seven hundred and fifty-five 
 to seven hundred and sixty-one of the code of civil pro- 
 cedure, do not apply to a case where special provision is 
 otherwise made by law. (Co. Civ. Proc. § 762). The 
 special cases referred to in this section, are actions of 
 ejectment and partition. The rules for the substitution 
 of parties in ejectment are laid down in the following 
 sections : 
 
 The provisions of chapter eight, title four of the code 
 of civil procedure, as applied to an action relating to 
 real property, are subject to the qualification that the 
 court may, in its discretion, proceed either as prescribed 
 in that title, or in sections fifteen hundred and twenty- 
 two and fifteen hundred and twenty-three. (Co. Civ. 
 Proc. § 1521) . Where upon the death of a party, differ- 
 ent persons succeed to the decedent's title to, or interest 
 in, different distinct parcels of the property, sought to 
 be recovered, the court may upon motion, and upon such 
 terms as justice requires, direct that the action be 
 divided into as many different actions as are necessary ; 
 and that the successor to the title or interest of the 
 decedent, to or in each distinct parcel, be substituted as 
 
826 
 
 PRACTICE. 
 
 plaintiff or defendant, as the case requires, in tlie action 
 relating thereto. (Co. Civ. Proc. § 1522). Where the 
 plaintiff seeks to recover damages for withholding the 
 property, and upon the death of a party, different per- 
 sons succeed to the decedent's right to, or liability for, 
 those damages, and to his title to, or interest in, the 
 property, the court may upon motion made, upon notice 
 to the persons to be affected, and upon .such terms as 
 justice requires, direct the action to be divided into two 
 actions, one to recover the possession of the property, 
 with the rents and profits thereof, accruing after the 
 decedent's death; the other to recover the damages ac- 
 cruing before his death ; and that the successor in inter- 
 est of the decedent, with respect to the cause of action 
 in each action, be substituted as plaintiff or defendant 
 therein, as the case requires. (Co. Civ. Proc. § 1523). 
 In case of the death of the plaintiff, the widow need not 
 join as party plaintiff with his heirs. {Ash v. Cook, 3 
 Abb. Pr. 389) . If, upon the death of one of two or more 
 plaintiffs, or one of two or more defendants, in an action 
 for partition, the interest of the decedent in the prop- 
 erty passed to a person, not a party to the action, the 
 latter may be made defendant, by the order of the court ; 
 and a supplemental summons may be issued, to bring 
 him in accordingly. (Co. Civ. Proc. § 1588). In such 
 an action, upon the death of the party plaintiff, an heir 
 may procure himself to be substituted as to the real 
 estate; and the executors, for the purpose of procuring 
 an accounting of the rents received, when that has been 
 asked for in the complaint. {Hoffman v. TrcdtccU, 6 
 Paige, 308). Where one defendant in an action of par- 
 tition has died, without answer, or appearance in the 
 action, and his heirs have not been substituted, all pro- 
 ceedings subsequently taken in the action, are void 
 against the heirs {Requa v. Holmes, 16 N. Y. 193) ; and 
 the heirs are not estopped from insisting upon its in- 
 validity, because they have appeared on certain motions 
 Avhich Avere made after the sale of the premises. ( S. 0. 
 26 X. Y. 338). But where in such an action, certain of 
 the defendants died, pending the action, and other parties 
 
ABATEMENT AND REVIVAL. 827 
 
 succeeded to their interests, the judgment was held good 
 as to all the interests. {Wm'ing y. Waring, 7 Abb. Pr. 
 472). 
 
 AETIOLE IV. 
 
 HOW NEW PARTIES BROUGHT IN. 
 
 Where a sole party dies, the application to revive for 
 or against his representatives, must be by motion. (Co. 
 Civ. Proc. § 757). Notice of the motion must be given 
 to the adverse party. {McLoughliii v. Mayor, etc.; 8 
 Daly, 474). If the application is by an assignee of the 
 cause of action, he must give notice to the opposite par- 
 ties, and to the executors of the party whom he claims 
 to represent. {Howard v. Taylor, 5 Duer, 604). If the 
 application is made by a party, to bring in the repre- 
 sentatives of a deceased party, notice of the motion must 
 be given to the representatives whom it is sought to sub- 
 stitute. The motion should be made upon affidavits, 
 showing the death of the party, and that the parties 
 whom it is sought to substitute are the successors in 
 interest. {St. John v. Croel, 10 How. Pr. 253)., The 
 motion papers should show the consent of the personal 
 representative to be brought in if the papers do not show 
 that such representative has knowledge of the applica- 
 tion. {Wilson v. Barter, 57 App. Div. 484). And the 
 title of the party asking to be substituted must be con- 
 tested, if at all, on the motion. {Smith v. Zalinslci, 26 
 Hun, 225 ; affd., 94 N. Y. 519 ; Warner v. Schweitzer. 52 
 App. Div. 520). The pleadings should always be made 
 a part of the motion papers, that the court may see from 
 an inspection of them, that the cause of action is one 
 which survives. A motion for a substitution is a pro- 
 ceeding in the action, and the affidavits must be entitled 
 in it. {Davis v. Richards, 2 Law Bull. 97). On the mo- 
 tion, the court will not look into the merits of the action, 
 and will only look at the pleading to see whether the 
 cause of action is one in which the substitution is proper. 
 ( Wing V. Ketcham, 3 How. Pr. 385 ) . No supplemental 
 complaint is required, as was formerly the case under 
 
828 PRACTICE. 
 
 the code of procedure; but the court may direct a sup- 
 plemental summons and complaint to be served, if it 
 sees fit. (Co. Civ. Proc. § 760). An application under 
 section seven hundred and fifty-seven, can be made by 
 either party, as we have seen. (Article I, Section 2, 
 supra). Where there were several parties plaintiff or 
 defendant, and one of them has died, and the cause of 
 action continues to the survivors, the former practice 
 was to file a suggestion of the death of the party, and 
 then the action might proceed without further order; 
 but the fact of the death might be controverted by the 
 opposite party on the trial. (2 Rev. Stat., 386, et seq). 
 But this procedure has now been abrogated. It is not 
 proper, however, to continue the action, in the name 
 of the living and the dead parties. (Holmes v. Honie, 
 8 How. Pr. 383). The proper course for the party 
 desiring to continue the action in the name of the sur- 
 vivors, is to move on notice to the other parties and upon 
 proof of the death, and that the cause of action survives, 
 for an order that the action be continued in the names 
 of survivors, or against them. This seems to have been 
 the practice in the court of chancery. (Leggett v. Du- 
 bois, 2 Faige, 211). 
 
 In a case specified in section seven hundred and fifty- 
 six and the following sections, where a person applies in 
 his own behalf, the court may direct that he be made a 
 party, by amendment of the pleadings or otherwise, as 
 the case requires. Where an application is made by the 
 plaintiff, to bring in such a person as defendant, the 
 court may direct that a supplemental summons issue, 
 and that supplemental pleadings be made. Where an 
 application is made by a defendant to bring in such a 
 person, the court may, and where the protection of the 
 applicant's rights requires it, must, permit the defendant 
 to commence a cross action for that purpose. The cross 
 action must be brought in the same court, unless the 
 order otherwise specially directs. If it directs that the 
 action be commenced in another court, the latter court, 
 may by order at any time, after the cross action is com- 
 menced, remove to itself the original action, with like 
 effect, as if it had been brought therein. Unless the 
 
ABATEMENT AND REVIVAL. 829 
 
 court otherwise directs, the original action, and the 
 cross action must be tried, and judgment therein ren- 
 dered, as if they were one action. ( Co. Civ. Proc. § 760 ) . 
 
 ARTICLE V. 
 
 WHEN COURT MAY ORDER ACTION ABATED. 
 
 At any time after the death of the plaintiff, or after 
 the marriage of the plaintiff, where it affects the rights 
 of either party, the court may, in its discretion, upon 
 notice to such persons as it directs, and upon the appli- 
 cation of the adverse party, or of a person whose interest 
 is affected, direct that the action abate, unless it is con- 
 tinued by the proper parties, within a time specified in 
 the order, not less than six months, nor more than one 
 year, after the granting thereof. (Co. Civ. Proc. § 761). 
 
 ARTICLE VI. 
 
 EFFECT OF VERDICT, REPORT, OR DECISION. 
 
 SECTION. 
 
 1. Death of party after verdict, etc. 
 
 2. No verdict to be taken after party's death. 
 
 Sec. 1. Death of Party After Verdict, etc. 
 
 The original cause of action becomes merged in the 
 judgment, so that, after rendition of judgment and be- 
 fore it is reversed, there is no question possible concern- 
 ing the abatement of the cause of action upon which such 
 judgment was recovered. {Carr v. Rischcr, 119 N. Y. 
 117) . Of course, if the judgment upon a cause of action 
 that abates is reversed, there can be no new trial and 
 none will be ordered, for the original cause of action 
 then comes under consideration again, and, ex hypothesi, 
 it has abated. (Stringham, v. Hilton^ 22 Abb. N. C. 
 281) ; but where the plaintiff has a judgment on a cause 
 of action which abates, which is reversed by the inter- 
 mediate appellate court, the defendant's death will not 
 defeat the consideration of the case by the court of 
 
830 PBACTICE. 
 
 appeals, the controversy there being over the judgment, 
 and not over the original wrong. {Carr v. Bischer, 
 supra). If either of the parties to an action dies, after 
 an accepted offer to allow judgment to be taken, or after 
 a verdict, report, or decision, or an interlocutory judg- 
 ment, but before final judgment is entered, the court 
 must enter final judgment in the names of the original 
 parties, unless the offer, verdict, report, or decision, or 
 the interlocutory judgment is set aside. (Co. Civ. Proc. 
 § 763). This section applies only to causes of action 
 which survive. [Robinson v. Qovers, 65 Hun, 562; 67 
 Hun, 317; 138 N. Y. 425). The report, referred to in 
 this section, is the report of a referee who is appointed 
 to hear and determine an action; and not a referee who 
 is simply directed to compute the amount due, or to 
 take testimony, and to report to the court for informa- 
 tion. (Smith V. Joyce, 11 Civ. Proc. Kep. 257). The 
 section does not include a case where judgment is taken 
 by default. [Grant v. Oris wold, 21 Hun, 509). A dis- 
 missal of the complaint is not a "verdict, report, or 
 decision," within the meaning of this section. [Lutz v. 
 Third Ave. R. R. Co., U App. Div. 256) . There is a flat 
 disagreement of the only two authorities on the subject 
 over the question, whether an interlocutory judgment, 
 overruling a demurrer and granting leave to answer on 
 payment of costs within a certain time, is within the 
 meaning of this section; Surrogate Rollins held a 
 final judgment, entered on such an interlocutory judg- 
 ment by reason of the defendant's failure to answer 
 within the given time which failure was caused by his 
 death prior to the expiration of the time, to be a valid 
 claim against the decedent's estate [Matter of Clark, 5 
 Dem. 377) ; on the other hand, Mr. Justice Lawrence 
 vacated a final judgment entered under such circum- 
 stances. [Simmons v. Vanderhilt, N. Y. Daily Reg., 
 Feb. 6, 1883). After verdict, report, or decision, in an 
 action to recover damages for a personal injury, the 
 action does not abate by the death of a party, but the 
 subsequent proceedings are the same as in a case where 
 the cause of action survives. (Co. Civ. Proc. § 764). 
 If the judgment in the action mentioned in this section, 
 
ABATEMENT AND REVIVAL. 831 
 
 is reversed, a new trial will not be granted, but the com- 
 plaint will be dismissed. {Spooncr v. Keelcr, 51 N. Y. 
 527). If a new trial has been ordered, and the plaintiff 
 then dies, the action will abate. {Kclscy v. Jewett, 34 
 Hun, 11). 
 
 Sec. 2. No Verdict to be Taken After Party's Death. 
 
 Title four of chapter eight of the code of civil pro- 
 cedure, does not authorize the entry of a judgment 
 against a party who dies before a verdict, report, or 
 decision is actually rendered against him. In that case 
 the verdict, report, or decision is absolutely void. ( Co. 
 Civ. Proc. § 765). If the party dies after trial, but 
 before decision, no decision can be rendered until his 
 representatives have been substituted in the action. {N. 
 Y. Ceil. & H. R. R. R. Co. v. Peitit, 2 McC. Civ. Proc. 
 Eep. 149). So, if he dies after argument of a motion 
 which does not involve the merits, but before decision, 
 the motion cannot be decided until the substitution has 
 been had. {Reed v. Butler, 11 Ahh. Fr. 128). At com- 
 mon law, the whole period of the term or circuit was 
 looked upon as a single day ; and the rule that the death 
 of either party after verdict should not be alleged for 
 error, was applied to a case where the defendant had 
 died on the first day of the term and before the trial, in 
 fact, of the cause. {Manchester v. Herrington, 10 N. 
 Y. 164, 169). But this rule has been abrogated by sec- 
 tion seven hundred and sixty-five, which forbids the 
 entry of judgment against a party, who dies before the 
 verdict is actually rendered against him, 
 
 53 
 
CHAPTER XXI. 
 
 DISCOVERY OF BOOKS AND PAPERS. 
 
 ARTICLE I.. .When ordered. 
 ARTICLE II. .Petition and order. 
 
 ARTICLE I. 
 
 WHEN ORDERED. 
 
 SECTION. 
 
 1. What courts may make the order. 
 
 2. When granted. 
 
 Sec. 1. What Courts May Make the Order. 
 
 A court of record, other than a justices court in a city, 
 has power to compel a party to an action pending 
 therein, to produce and discover, or to give to the other 
 party, an inspection and copy, or permission to take a 
 copy, of a book, document, or other paper in his posses- 
 sion, or under his control, relating to the merits of the 
 action, or of the defense therein. (Co. Civ. Proc. § 803) . 
 
 See. 2. When Granted. 
 
 Subdivision 1. — Rules Applicable to all Cases. 
 
 An action cannot be maintained, to obtain a discov- 
 ery under oath, in aid of the prosecution or defense of 
 another action. (Co. Civ. Proc. § 1914) . The provisions 
 of the revised statutes, and of the code of procedure, 
 upon the subject of discovery and inspection, have been 
 repealed. Now, all applications for that purpose must 
 be made in the action itself under section eight hun- 
 dred and three, and the six following sections of the 
 code of civil procedure. {Cutter v. Pool, 3 Abb. N. C. 
 
DISCOVERY OF BOOKS AND I'ArERS. 
 
 833 
 
 130; Divk V. PhilUps, 41 Huu, 603; Bloodgood v. Slaij- 
 hack, 62 App. Div. 315) . It is to be noted that the appli- 
 cation must he in a pcndiiiy suit — it cannot be made 
 before the action is begun. The object which is sought 
 to be accomplished by discovery and inspection, cannot 
 be obtained by an examination of a party before trial 
 under section eight hundred and seventy-three of the 
 code of civil procedure. {Martin v. Hpof'ord, 3 Abb. N. 
 C. 125). The two are different and distinct proceed- 
 ings, and they may be pursued concurrently, or at dif- 
 ferent stages of the action. {McGnffin v. Dinsmore, 4 
 Abb. N. C. 2il ; Lcfferts v. Brampton, 24 How. Pr. 257; 
 Lord V. Spielman, 13 Misc. 48). 
 
 The general rules of practice must prescribe the cases,, 
 in which a discovery or inspection may be so compelled,, 
 and the proceedings for that purpose, where the same 
 are not prescribed in the code. (Co. Civ. Proc. § 804). 
 
 The rules which the couft has made, pursuant to this 
 section, will be found stated in a subsequent subdivision. 
 Those rules do not restrict the remedy, but they enlarge 
 it. {Stichter v. Tillinghast, 43 Hun, 95; Babbitt v. 
 Crampton, 1 Civ. Proc. Eep. 169). Whether discovery 
 and inspection will be granted at any stage of the action, 
 is, in all cases, discretionary with the court. [Clyde v. 
 Rogers, 87 N. Y. 625; 94 N.'y. 541; Flnlaij v. Chapman, 
 119 N. Y. 404). It will only be granted in extreme 
 cases, where a refusal will involve the loss of a claim or 
 defense. {Harbison v. Von Yolkenbiirgli, 5 Hun, 454). 
 It must be made to appear that it is necessary, and not 
 merely a precautionary measure. {Campbell v. Hoge, 
 2 Hun, 308). And it will onlj' be granted in regard to 
 matters as to which the party applying for it is entitled 
 to relief. {Orag v. Kendall, 10 Abb. Pr. 343, note). 
 The application for discovery or inspection will be de- 
 nied for laches. {Walmsley v. Xelson, 3 Abb. N. C. 127 ; 
 Moran v. Vreeland, 29 App. Div. 243). The remedy 
 extends to all evidence of a documentary nature relating 
 to the merits of an action, whether on the part of the 
 prosecution or defense {Tov-iiscnd v. Lawrence, 9 
 Wend. 458), such as letter press copies even. {N. Y. 
 Bank 'Note Co. v. Hamilton Bank Note, etc. Co., 5 App. 
 
834 
 
 PRACTICE. 
 
 Div. 126) ; but it does not extend, of course, to anything^ 
 but books and documents. {Cooke v. LaJatice Oi'ojean 
 Mfg. Co., 29 Hun, 641). Although Rule 14 in terms au- 
 thorizes a party to compel his adversary not only of 
 books and documents, but also of any "article or prop- 
 erty," such provision is invalid, as the convention of 
 justices had no power to make it. {Anerbach v. D. L. & 
 ^y. R. R. Co., 73 N. Y. Supp. 118) . As to whether a term- 
 inal line tree, on which certain marks and symbols have 
 been placed to tell the true line of a lot, is a "document" 
 within the meaning of these sections of the code, quaere. 
 (Hayden v. Tan Cortlaiidt, 84 Hun, 150). The power 
 to order an inspection of books and papers, includes the 
 power to compel their deposit for purposes of inspection 
 {Pindar v. .Seaman, 33 Barb. 140; Terry v. Ruhel, 12 
 N. Y. Leg. Obs. 138) ; but the better practice is not to 
 order a deposit of the papers of which an inspection 
 sought, but to direct that the party furnish sworn copies 
 of entries relating to the subject in controversy, to be 
 delivered to his opponent. {Cram v. Moore, 1 Sand. 
 662). An order for discovery will only be made to 
 enable a party to obtain information which is necessary 
 to establish his own case. {Sanger v. Seymour, 42 Hun, 
 641). Where the court has reason to believe, that the 
 application is made to enable the party to learn the 
 facts of his adversary's case, or to ascertain what evi- 
 dence his adversary will produce upon the trial, or to 
 disprove a fact which it is necessary that his adversary 
 should prove upon the trial, the order will not be 
 granted. {Sanger v. Seymour, supra; Shoe and Leather 
 Rep. Ass'n v. Bailey, 49 Super. 385; Douglas v. Delano, 
 20 Wk. Dig. 85). Discovery should not be ordered of 
 all of the books and papers of the opposite party, unless 
 the necessity of a discoverj^ of all is shown {Phelps v. 
 Piatt, 54 Barb. 557) ; and it is made to appear that they 
 contain evidence relating to the merits of the action. 
 {Davis V. Dunham, 13 How. Pr. 425). Before discovery 
 will be granted to a party, it must appear that he has 
 not in his possession any means of obtaining the infor- 
 mation for which he asks. {MeAllister v. Pond, 15 How. 
 Pr. 299 ) . If the information can be obtained by the ex- 
 
DISCOVERY OF BOOKS AND PAPERS. 835 
 
 amination of the party, or by the production of the books 
 and papers upon the trial, the order for the discovery 
 will be refused, unless some special reason is shown why 
 it should be granted. {Com. Bank of Albany v. Dun- 
 liam, 13 How. Pr. 541 ; Low v. Gray don, 14 Abb. Pr. 443 ; 
 Central Cross Town B. R. Go. v. Twenty-Third Street 
 R. R. Co., 53 How. Pr. 45 ) . Inspection and discovery of 
 books and papers cannot be ordered, in connection with 
 the examination of the party, under section eight hun- 
 dred and seventy- three of the code (Hauseman v. Ster- 
 ling, 61 Barb. 347; Bloom v. Pond's Extract Co., 27 Abb. 
 N. C. 366 and note; Bloodgood v. Slayhack, 62 App. 
 Div. 315) ; but in a proper case a witness may, under 
 sections 872 and 873, be required to produce books and 
 papers as an adjunct to his oral examination. {Drake 
 V. Weinman <& Co., 12 Misc. 65; Bloodgood v. Slayhack, 
 supra), upon the service of a subpoena duces tecum. 
 {Horst V. Yuengling Brewing Co., 1 App. Div. 629; 
 Savage v. 'Neely, 8 App. Div. 316). Discovery and in- 
 spection may be ordered of the books and papers of a 
 corporation. {Burden v. Burden, 23 Wk. Dig. 289; 
 Frothingham v. Broadway , etc., R. R. Co., 9 Civ. Proc. 
 Kep. 304 ; Central Natn Bk. v. White, 37 N. Y. Super. 
 Ct. Eep. 297). When the order is made for the produc- 
 tion of the books of a corporation, it will not be required 
 to produce before a referee in New York state, books 
 which are in actual use in an ofllce of the company in 
 a distant state; but the order will be, to deliver to the 
 petitioner sworn copies of so much as relates to the mat- 
 ters in issue, at a time to betstated in the order. (Ervin 
 V. 0. R. & N. Co., 22 Hun, 566) . Discovery of the books 
 of a corporation, however, cannot be ordered in an<action 
 to which the corporation is not a party. {Morgan v. 
 Morgan, 16 Abb. Pr. N. S. 291 ) . Nor can the directors 
 of a corporation be required to produce its books; the 
 order must be directed to the corporation itself. {Boor- 
 man V. A. S P. R. B. Co., 78 N. Y. 599) . The books of a 
 receiver may be produced; but where an order is made 
 for that purpose, the receiver will only be required to 
 produce them at such times as will not interfere with 
 the duties of his office, and only such books as are in 
 
836 PRACTICE. 
 
 the judicial district where the application is made.. 
 (Fotoler's Petition, 9 Abb. N. C. 268). In an action 
 between partners for an accounting, if the books of the 
 firm are in the possession of one of the partners, it will 
 be almost as a matter of course to direct him to produce 
 them, or to permit his adversary to inspect them. 
 ( Veiller v. Oi->penheini, 75 Hun, 21, 25) ; but in an action 
 to set aside the sale of partnership assets by one partner 
 to the other, and to have the plaintiff's rights as a part- 
 ner declared to be still subsisting, the plaintiff is not, 
 before judgment, entitled, as a partner, to a general 
 inspection of the books of the firm. {;Platt v. Piatt, 61 
 Barb. 52). Where a partner authorized his executors 
 to continue the firm business, and they sold the testa- 
 tor's interest to the surviving partner, who subsequently 
 took a partner and conducted the business under the 
 new name ; in an action by the son of the deceased part- 
 ner, alleging a conspiracy between F. and the executors,^ 
 in pursuance of which his father's interest in the firm 
 was sold to F. at a sum far less than its value ; discovery 
 and inspection of the books of the new firm was per- 
 mitted. {Martine v. Albro, 26 Hun, 559). Where an 
 executor of a deceased partner had brought an action to 
 settle the accounts of the estate, he was permitted to- 
 have a discovery of the partnership books. ( Livingston 
 V. Curtis, 12 Hun, 121) . The right of a principal, to the 
 discovery of the books and vouchers of his agent or vice 
 versa rests on different and stronger grounds, than the 
 right of a party to the inspection of the books of his 
 adversary. {Mauley v. Bonnel, 11 Abb. N. C. 123 ; Veiller 
 V. Oppenheim, 75 Hun, 21, 25; S. C. 31 Abb. N. C. 181 
 and note). In an action by a principal against his 
 brokers, for an accounting, the principal is entitled to 
 consult the books of the latter, being kept in the course 
 of the agency, as they contain the only reliable evidence 
 of the transactions in the suit; and an order for their 
 inspection was held to be proper. {Duf v. Hutchinson^ 
 19 Wk. Dig. 20). A physician's account books, con- 
 taining information which would be privileged to his 
 patients, are held not subject to inspection in an action 
 hetween the physician and a third person. (Mott v. 
 
DISCOVEET OF BOOKS AND PAPERS. 837 
 
 Consumers' Ice Co., 2 Abb. N. C. 143; affd. without op.; 
 52 How. Pr. 244). In an action to recover damages for 
 personal injuries it was formerly held that the court had 
 no power to order the plaintiff to submit his person to 
 inspection {Roberts v. 0. & L. C. R. R. Co., 29 Hun, 154; 
 McQiiigan v. D. L. d W. R. R. Co., 129 N. Y. 50) ; but 
 the amendment of 1894 to section 873 of the code of civil 
 procedure expressly gives such power. A grantor, in 
 whose name ejectment was prosecuted by the grantee, 
 is not a party who may be compelled to produce books 
 under this section. {Adriance v. Sanders, 11 Abb. N. 
 C. 422). Where an order required that an officer of the 
 defendant corporation should appear, and be examined 
 concerning certain writings, and should produce such 
 writings, and further required the corporation, and such 
 officer individually, and in his official capacity, to pro- 
 duce and discover such writings, and give the plaintiff 
 an inspection, or copy, or permission to copy the writ- 
 ings; it is substantially an order for discovery of docu- 
 ments, and must be applied for under this section of 
 the code of civil procedure, upon petition and order to 
 show cause. {Levey v. N. Y. C. & H. R. R. R. Co., 53 
 Super. 263). 
 
 An order of discovery will not be made to enable a 
 party to obtain information on which to base an exam- 
 ination of an expert witness {Miner v. Gardiner, 6 T. 
 & 0. 343) ; nor will it be made to enable a party to 
 examine the books of his adversary, in order to disprove 
 the evidence of the plaintiff as to the value of his serv- 
 ices. {Mott V. Consumers' Ice Co., 2 Abb. N. 0. 143; 
 affd. without op., 52 How. Pr. 244). 
 
 The discretionary power of the court in granting or 
 refusing a discovery is reviewable by the appellate di- 
 vision {Hart V. Ogdensburgh & Ijahe Glia^nplain R. R. 
 Co., 69 Hun, 497) ; but not by the court of appeals. 
 {Finlay v. Chapman, 119 N. Y. 404). 
 
 Subdivision 2. — Before Issue. 
 
 Applications may be made in the manner provided by 
 law to compel the production and discovery or inspec- 
 
838 PRACTICE. 
 
 tion with copy of books, papers and documents relating 
 to the merits of any civil action pending in court or of 
 any defense in such action, in the following cases : 
 
 1. By the plaintiff, to compel the discovery of books, 
 papers or documents in the possession, or under the 
 control, of the defendant, which may be necessary to 
 enable the plaintiff to frame his complaint, or to answer 
 any pleading of the defendant. 
 
 2. By the defendant, to compel the like discovery of 
 books, papers or documents in the possession, or under 
 the control, of the plaintiff, which may be necessary to 
 enable the defendant to answer any pleading of the plain- 
 tiff. (General Rule 14). 
 
 An order for discovery before a cause is at issue, will 
 only be granted when it is absolutely necessary to enable 
 the party to draAV his pleading. {Ward v. N. Y. Life 
 Ins. Co., 78 Hun, 363). Where it appears by the peti- 
 tion or otherwise, that he has information enough to 
 enable him to frame the pleading, it will be denied; 
 though the allegations of the pleading will have to be 
 made upon information and belief, and not upon knowl- 
 edge. [Rafferty v. Williams, 50 Super. 66; Mcliesy v. 
 Kahn, Id. 209 ; Duff v. Hutchinson, 5 Law Bull. 3 ; Mora 
 v. McCrcdji, 2 Bosw. 669). A discovery may be denied 
 when asked to frame the complaint, although it appears 
 that it will be necessary for the plaintiff to have such 
 discovery to prepare for trial. [Stanton v. Friedman, 
 47App. Div. 621). 
 
 An order for discovery will not be granted before 
 issue, to enable the plaintiff to ascertain the names of 
 persons who should be made parties to the action [Op- 
 dylce V. MarUe, 18 Abb. Pr. 266; 44 Barb. 64) ; nor to 
 make more accurate the nd damnum clause in his com- 
 plaint (Taylor v. Am. Rihhon Co., 38 App. Div. 146; 
 Brummer v. Cohen, 47 App. Div. 470) ; nor will it be 
 granted to enable a party to serve a bill of particulars. 
 (Mcllhanney v. Magie, 12 Civ. Proc. Rep. 27). An 
 order for discovery has been held proper in the follow- 
 ing cases : to enable the plaintiff to frame his complaint 
 in an action for injuries, where the petition shows that 
 the defendants who appear, are jointly interested with 
 
DISCOVERY OP BOOKS AND PAPERS. 839- 
 
 those who do not appear, under a contract in writing 
 connected with the cause of the injuries, the joint lia- 
 bility under which, the appearing defendants deny 
 (StUtccll V. Priest, 85 N. Y. 649) ; in an action by an 
 administrator of a deceased partner, for the purposes 
 of framing a complaint for an accounting of the part- 
 nership business, although there was a provision in the 
 articles of partnership that the survivor should carry 
 on the business until the expiration of the time limited 
 for the existence of the partnership (NeiLvucui v. New- 
 man, 20 Wk. Dig. 283) ; in an action by a plaintiff, who 
 has a direct interest in the profits and losses of the 
 defendant's business by reason of an agreement that he 
 should have a certain percentage upon the profits in lieu 
 of salary, to recover the amount due him under such 
 agreement {Yciller v. Oppenhciin, 75 Hun, 21) ; in an 
 action for money received by the defendant, as plaintiff's 
 agent {Ruberri/ v. Bin as, 5 Bosw. 685) ; in an action 
 upon the official bond of a tax collector, the court may 
 direct the latter to deposit for the plaintiff's inspection, 
 the assessment roll and warrant held by him, to enable 
 the plaintiff to prepare the complaint {Board of Edu- 
 cation v. King, 7 Civ. Proc. Eep. 64) ; in an action 
 against a corporation. (Frothingliam v. Broadicay, etc. 
 B. B. Co., 9 Civ. Proc. Kep. 304). Such an order will 
 not be granted where it appears that the object of the 
 application was to make a fishing excursion, to find out 
 whether there was a cause of action on which the plain- 
 tiff might make a complaint. {BrowneJl v. Bank of 
 Glooersuille, 20 Hun, 517). If the complaint has been 
 made, the plaintiff will not ordinarily be entitled to an 
 order for discovery and inspection, until after the 
 cause is at issue [Thompson v. Erie Bij. Co., 9 Abb. Pr. 
 N. S. 230) ; but where the plaintiff has been required 
 by order to amend his complaint and set forth certain 
 details and he shows to the court that he cannot obey 
 such order without an inspection, a discovery should 
 be granted. (Blumberg v. Lindeman, 19 App. Div. 
 370). A discovery will not be granted to the defendant 
 to enable him to answer where it appears that he can 
 answer sufficiently to raise an issue. (Earle v. Beman, 
 
840 
 
 PRACTICE. 
 
 1 App. Div. 136). A defendant lias the same right to 
 discovery to frame a counter-claim as the plaintiff has 
 to frame a complaint. {AJhuny Brass d- Iron Co. v. 
 Hoffman, 12 Jtlisc. 167; affd. on op. below, 86 Hun, 620). 
 After the defendant has demurred, and the demurrer 
 has been overruled and he has appealed from the order 
 overruling the demurrer, an application for discovery 
 to prepare for- trial, will be premature, until the appeal 
 has been decided. {Palcn v. Johnson, 18 Abb. Pr. 304). 
 
 Subdivision 3. — After Issue. 
 
 Either party may be compelled to make any discov- 
 ery of book, document, record, article or property in his 
 possession or under his control or in the possession of 
 his agent or attorney, upon its appearing to the satis- 
 faction of the court that such book, document, record, 
 article or property is material to the decision of the 
 action or special proceeding, or some motion or appli- 
 cation therein, or is competent evidence in the case, or 
 an inspection thereof is necessarj^ to enable a party to 
 prepare for trial. (General Eule 14). An order for 
 the discovery and inspection of books and documents, 
 may be granted to enable the applicant to prepare for 
 trial. {Stichtcr v. Tillinghast, 43 Hun, 95) . But where 
 an application is made for this purj)ose, the rule applies 
 that the applicant will only be entitled to the order, to 
 enable him to prove his own case, and not to enable him 
 to investigate the case of his adversary. It is necessary 
 that the same facts should appear whether the applica- 
 tion is made before issue to enable the party to frame his 
 pleading, or after issue, to enable him to prepare for 
 trial. It has been sometimes stated that a different rule 
 obtains in the two cases ; and it was held in the case of 
 March v. Darison (9 Paige, 580), that to sustain a 
 mere bill of discovery in aid of a defense at law, it was 
 only necessary to show that the discovery is material 
 to the defense, and not that it is absolutely necessary; 
 but if this ever was the rule, with regard to an applica- 
 tion under the code of civil procedure, it is not now. 
 The cases now hold unanimously that after issue, to 
 enable a party to procure an inspection and discovery 
 
DISCOVERY OF BOOKS AND PAPERS. 841 
 
 that he may prepare for trial, he must in all cases, 
 allege that such discovery is absolutely necessary. 
 {Campbell v. Hoge, 2 Hun, 308; Harbison v. Von Vol- 
 kenbargh, 5 Hun, 454; M'uJmslejj v. Nelson, 3 Abb. 
 N. C. 127). Where it does appear that the evidence 
 sought is the only evidence which can be produced by the 
 party seeking the discovery to enable such party to 
 prove an essential part of his case, the discovery will 
 be granted. {Cont. Nat. Bk. v. Myerle, 29 App. Div. 
 282). Wherever the object of the discovery can be 
 attained by the examination of a party, or by a subpoena 
 duces tecitin, the petition will not be granted. {Dahclt 
 V. Fahijs Watch Case Co., 5 Misc. 493; app. dismissed, 
 141 N. Y. 570). Where a principal had brought an 
 action against his agent for an accounting, he was held 
 entitled to conuslt the books of the agent, for the purpose 
 of enabling him to prepare for trial, where he made it 
 appear that a subpoena daces tecum would not give him 
 a sufficient opportunity to examine the books; and the 
 fact that the discovery might establish misconduct on 
 the part of the defendants, and might tend to convict 
 them of a crime, was held to be no answer to the applica- 
 tion. {Duff V. Hutchinson, 19 Wk. Dig. 20). Where 
 the issue was whether or not the contracts sued on 
 were forged, the defendant was held to be entitled to an 
 inspection and an opportunity to take photographic 
 copies {Cornell v. Woolsey, 7 Wk. Dig. 555) ; although 
 the plaintiff denied having the contracts in his posses- 
 sion; but did not say where they were, or explain how 
 they had passed out of his control. {Hepburn v. Archer, 
 20 Hun, 535). Where the plaintiff notices a motion for 
 discovery to prepare for trial after issue joined, and, 
 after the service of the notice of motion, an amended 
 complaint is served, the motion should be denied with 
 leaA'e to renew after the amended issue has been joined. 
 {Fleet V. Cronin, 5 App. Div. 48). A motion by one de- 
 fendant, to compel another defendant to produce docu- 
 ments, to establish a cause of action set up in his answer 
 against such other defendant, is not allowable, if the 
 cause of action is new and independent of the complaint. 
 {Raffertij v. Palmer, 34 Hun, 544). 
 
842 PKACTICB. 
 
 ARTICLE II. 
 
 PETITION AND ORDEE. 
 
 SECTION. 
 
 1. What petition shall contain. 
 
 2. Order to show cause. 
 
 3. Order for discovery, what to contain. 
 
 4. When order may be vacated. 
 
 5. Proceedings on the return of the order. 
 
 6. Proceedings under the order. 
 
 7. Effect of papers, etc., produced. 
 
 8. Penalty for disobedience. 
 
 Sec. 1. What Petition Shall Contain. 
 
 To entitle a party to procure such a discovery or 
 inspection, he must present a petition, praying therefor, 
 and veri^ed by affidavit, to the court, or to a judge 
 authorized to make an order in the action. (Co. Civ. 
 Proc. § 805). The application must be made by peti- 
 tion. {Cutter V. Pool, 3 Abb. N. C. 130; Levey v, 
 N. Y. C. & H. R. R. R. Co., 53 Super. 263) . It was held, 
 under the code of procedure, that the application would 
 not be denied because it was made by motion, and not 
 by petition {Johnson v. Con. Silver Min. Co., 2 Abb. Pr. 
 N. S. 413) ; but that case does not apply under the code 
 of civil procedure, which expressly requires that, to 
 obtain a discovery, the party must present a petition. 
 {Dick V. Phillips, 41 Hun, 603; John 8. Waij Mfg. Co. 
 V. Corn, 66 How. Pr. 152). The moving papers, upon 
 the application for such discovery or inspection shall 
 state the facts and circumstances on which the same 
 is claimed, and shall be verified by affidavit, stating that 
 the books, papers, articles, property and documents, 
 whereof discovery or inspection is sought are not in the 
 possession, nor under the control, of the party applying 
 therefor, but are in the possession or under the control of 
 the party against whom discovery is sought or his agent 
 or attorney. The party applying shall show to the 
 satisfaction of the court or judge the materiality and 
 necessity of the discovery or inspection sought, the 
 particular information which he requires, and in the 
 
DISCOVERY OF BOOKS AND PAPERS. 843 
 
 case of books aud papers, that there are entries therein 
 as to the matter of which he seeks a discovery or 
 inspection. ( General Rule 15 ) . The facts and circum- 
 stances required to be stated by this rule, are such 
 as show the necessity for discovery, and that the 
 evidence or information sought cannot be obtained 
 from any other source; and that a subpoena duces 
 tecum or an examination of the party, will not 
 answer the purpose. (Holtz v. Schmidt, 34 Super. 
 28; Thompson v. Erie Ry. Co., {No. 1), 9 Abb. Pr. 
 N. S. 212;Hausemaii v. Sterling, 61 Barb. 347). While 
 it may not be necessary, to aver that the discovery 
 sought is indispensibly necessary, and that the appli- 
 cant has no means of establishing the same facts by 
 other available proof {Whitworth v. Eric R. R. Co., 
 37 Super. 437) ; yet these facts must appear when the 
 propriety of the discovery is drawn in question by 
 opposing affidavits ; and it is, for that reason, much safer 
 that they should plainly appear by the moving papers. 
 It should also be made to appear that the books or 
 papers sought for, not merely may, but probably do, 
 contain the information desired {New England Iron Go. 
 V. N. Y. Loan & Imp. Co., 55 How. Pr. 351) ; and that 
 fact must be stated positively, or, if it is stated on 
 information and belief, the petitioner must give the 
 sources and grounds of such information and belief, that 
 the court can see that the grounds for the belief are 
 reasonable. {Walker v. Granite Bank, 19 Abb. Pr. Ill; 
 44 Barb. 39; Husson v. Fox, 15 Abb. Pr. 464). Facts 
 and circumstances must be stated sufficient to satisfy 
 the court that the books and papers sought to be exam- 
 ined do, in fact, contain material evidence for the party, 
 and it is hot enough that the party believes, or is 
 advised, that material evidence will be found. {Walsh 
 V. Press Go., 48 App. Div. 333; Keilty v. Traynor, 31 
 App. Div. 115). Absolute proof of the facts stated in 
 the petition is not necessary; but there should be suffi- 
 cient to raise the presumption; and that presumption 
 will be enough to warrant the granting of the order 
 {Union Paper Collar Go. v. Metropolitan Collar Co., 
 3 Daly, 171; Whitworth v. Erie R. R. Co., 37 Super. 
 
844 PRACTICE. 
 
 437) ; especially if it is not denied. {Lefferts v. Bramp- 
 ton, 24 How. Pr. 257). A sufficient desciption of 
 the books and papers of which discovery or inspection 
 are sought, should be given, so that the party who is 
 called on to produce them may know just what is 
 required {Low v. Graydon, 14 Abb. Pr. 443) ; and so 
 that the court can see that the books and papers sought 
 for, are competent evidence. {Speyers v. TorstritGli, 
 5 Eobt. 606; Strong v. mroiuj, 3 Robt. 675). A mere 
 statement that they contain evidence, or that the appli- 
 cant is advised by counsel and believes that they are 
 evidence, cannot be substituted for the facts and cir- 
 circumstances, on which the court can form its own 
 judgment. {Strong v. Strong, 3 Robt. 675; Merguelle 
 V. Continental Bank Note Co., 7 Robt. 77). The motion 
 will not be granted where the entries sought are not 
 shown to be evidence, but only information by means 
 of which evidence can be obtained. {Woods v. De- 
 Figaniere, 1 Robt. 681). The petition must state pre- 
 cisely what information is desired. (General Rule 15; 
 Julio V. Ingalls, 17 Abb. Pr. 448, note ; Walker v. Granite 
 Bank, 19 Abb. Pr. Ill; 44 Barb. 39). Facts must be 
 stated to enable the court to see that the evidence is 
 material; a mere allegation of materiality is not suffi- 
 cient; it must also be stated positively, that the books 
 and papers are not in the possession or under the con- 
 trol of the applicant. (General Rule 15; Jackling v. 
 Edmonds, 3 E. D. Smith, 539). A demand for the 
 inspection and refusal is not necessary to be shown. 
 {Albany Brass & Iron Co. v. Hoffman, 12 Misc. 167; 
 affd. on op. below, 86 Hun, 620). It is well in the 
 petition to state the advice of counsel, and belief, that 
 the discovery is necessary to enable the party to plead 
 and to prepare for trial {Jackling v. Edmonds, supra) ; 
 but that statement is not necessary, and it will not 
 obviate the necessity of stating facts from which the 
 court can judge. The petition must be verified by the 
 party; or some reason should be stated why it is made 
 by the attorney. {Phelps v. Piatt, 54 Barb. 557). The 
 statement that the party does not reside in the city and 
 county where the attorney resides is not sufficient; 
 
DISCOVERY OF BOOKS AXD PAPERS. 845 
 
 something must be shown to demonstrate the impossi- 
 bility of getting the affidavit of the client. {Fromine 
 V. Lisiier, 63 Hun, 290). Where an application is made 
 pending a trial before a referee, his certificate that the 
 production of the papers was necessary is presumptively 
 suflficient to warrant the making of the order, where 
 the action is for an accounting. {Frazer v. Phelps, 
 3 Sand. 741). 
 
 Sec. 2. Order to Show Cause. 
 
 Upon the petition, an order may be made directing 
 the party against whom the discovery or inspection is 
 sought, to allow it, or in default thereof, to show cause 
 before the court, at a time and place, and upon a notice, 
 therein specified, why the prayer of the petition should 
 not be granted ; and, if necessary or proper, that his pro- 
 ceedings be stayed until the hearing of the application, 
 although the stay exceeds twenty days. (Co. Civ. Proc. 
 § 805) . The order to show cause is in all cases required, 
 and a peremptory order for discovery cannot be made 
 in the first instance ex parte. {Dick v. Phillips, 41 
 Hun, 603). The proceeding is an ordinary proceeding 
 in the action, and the order to show cause should be 
 served on the attorney for the party. {Rossner v. N. 
 Y. Museum Ass'n, 20 Hun, 182; Union Trust Co. v. 
 Driggs, 49 App. Div. 406). If it is served only on the 
 party, it will be set aside on motion. [Schmidt v. Sel- 
 inger, 1 Law Bull. 61). 
 
 Sec. 3. Order for Discovery, What to Contain. 
 
 The order for granting the application, shall specify 
 the mode in which the discovery or inspection is to 
 be made, which may be either by requiring the party 
 to deliver sworn copies of the matters to be discovered, 
 or to allow an inspection with copy, or by requiring him 
 to produce and deposit the same with the clerk, unless 
 otherwise directed in the order. The order shall also 
 specify the time within which the discovery or inspec- 
 tion is to be made ; and when papers, articles or property 
 are required to be deposited, the order shall specify 
 the time the deposit or the opportunity for inspection 
 
816 PRACTICE. 
 
 shall continue. (General Rule 16). As section eight 
 hundred and five requires that the order shall be made 
 in the alternative, that the party shall either allow the 
 discovery or inspection, or show cause, it is well that the 
 alternative order should contain full instructions as pre- 
 scribed by rule sixteen. The order should comply 
 strictly with the rule, and should particularly specify 
 what books, papers or documents are to be produced, 
 so that the party to whom it is directed, may know 
 precisely what is required; if it is too broad, it will 
 either be vacated or reversed on appeal (Walker v. 
 Granite Bank, 4,4, Barb. 39) ; or it will be modified on 
 motion, so as to require the production only of such 
 documents as are proper. {Clyde v. Rogers, 24 Hun, 
 145). The order requiring the production of all the 
 account books of a party, or of certain books and "all 
 other books of defendant's, containing any entries show- 
 ing," etc., is too broad. {Julio v. Ingalls, 19 Abb. Pr. 
 448, note; Walker v. Granite Bank, supra). If the 
 order sufficiently specifies the books or documents to be 
 produced, too great a generalty in the application is 
 cured. {Hoffman v. 8eixas, 12 Misc. 3). The court or 
 judge may direct that the order directing the discovery 
 or inspection shall operate as a stay of all other pro- 
 ceedings in the cause, either in whole or in part, until 
 such order shall have been complied with or vacated. 
 (General Rule 16). 
 
 Sec. 4. When Order May be Vacated. 
 
 An order made as prescribed in section eight hundred 
 and five, may be vacated by the judge who granted it, 
 or by the court, upon satisfactory proof, by affidavit : 
 
 1. That it ought not to have been granted, or that 
 it has been complied with ; or, 
 
 2. That the party required to make the discovery, 
 or permit the inspection, has not the possession or 
 control of the book, document or other paper, directed 
 to be produced or inspected. (Co. Civ. Proc. § 806). 
 As the grounds stated in this section, why an order 
 may be vacated, may also be available to a party upon 
 
DISCOVERY OF BOOKS AND PAPERS. 847 
 
 the return of the order to show cause, the authorities 
 upon that subject will be referred to in the next section. 
 
 Sec. 5. Proceedings on Return of the Order. 
 
 Upon the return of an order to show cause, the court 
 may make such an order, with respect to the discovery 
 or inspection prayed for, as justice requires. (Co. Civ. 
 Proc. § 807). If the application is opposed, upon the 
 return of the order to show cause, the proceedings to 
 be had are the same as upon any other contested motion. 
 The order" will not be refused, because the opposing 
 party denies the materiality of the documents sought 
 {Clyde V. Rogers, 24 Hun, 145; app. dismissed, 87 N. 
 Y. 625) ; nor because he swears that the books contain 
 no entry relevant to the matters in controversy. Upon 
 those subjects the facts must be stated, and the court 
 will form its own judgment. {Elder v. Bogardus, 1 
 Edm. Sel. Cas. 110). But where the opposing affidavit 
 stated positively that a copy of the account already 
 served contained all the items in the books {Higgins 
 V. Bishop, 12 N. Y. Leg. Obs. 127) ; or where it appears 
 that the defendant had offered to produce, and permit 
 the plaintiff to examine, all the books which he would 
 have been entitled to examine {Walmsleg v. Nelson, 
 3 Abb. N. C. 127) ; discovery will not be granted. 
 Where, in the opposing affidavits, it was stated as a 
 reason why the order should not be granted, that the 
 books contained false and deceptive entries, the order 
 was still granted, and the party was required to produce 
 the papers. {Central National Bank v. White, 37 Super. 
 297). Proof by the defendant that he has not the pos- 
 session or control of the books sought, is a full answer 
 to the application, and the order must be vacated or 
 denied on the hearing (Co. Civ. Proc. § 806; Ahoylce v. 
 Wolcott, 4 Abb. Pr. 41 ; Bradstreet v. Bailey, 4 Abb. Pr. 
 233) ; although he may omit to deny an allegation, in 
 the moving papers, that he has given them to his attor- 
 ney {Woods V. DeFiganiere, 1 Robt. 681) ; or although 
 he admits that a third person gave them to the attorney 
 who now has them. {Douglas v. Delano, 20 Wk. Dig. 
 
 54 
 
848 PRACTICE. 
 
 85), But a bare denial of the possession of the papers^ 
 on which the party has brought a suit without any 
 explanation or further statement of the facts, is not 
 sufficient to require the court to vacate the order, or to 
 deny the application {Hepburn v. Archer, 20 Hun, 535; 
 McCreery v. Ghormley, 6 App. Div. 170) ; nor will an 
 affidavit that the party has not possession of the books, 
 be sufficient, if it is evasive, in showing how he parted 
 with the possession of them. {Hides v. GharUck, 10 
 Abb. Pr. 129; Holly Mfg. Co. v. Tenner, 86 Hun, 42 )! 
 A fixed sum, not exceeding twenty dollars, may be 
 added to the costs of the motion for the fees of the 
 referee. (Co. Civ. Proc. § 807). 
 
 Sec. 6. Proceedings Tinder the Order. 
 
 Where a discovery or inspection is directed, a referee 
 may be appointed by the order, to direct and superintend 
 it; whose certificate, unless set aside by the court, is 
 presumptive, and except, in proceedings for contempt, 
 conclusive, evidence of compliance or non-compliance 
 with the terms of the order. (Co. Civ. Proc. § 807). 
 The books or papers, specified in the order, should be 
 produced precisely as required by the order, which 
 should be strictly complied with, in every respect. {Sny- 
 der V. Olmsted, 1 HoAv. Pr. 194). If the order is indefi- 
 nite, as to produce all books, etc., containing entries on 
 such and such a subject, or a similar order; or if the 
 order specifies certain books and papers, and the party is 
 not able to produce them all, he should present, with 
 the books and papers which are produced, an affidavit 
 that the books and papers which he does produce, are all 
 that are mentioned in the order, or he should state a 
 reason why the others cannot be furnished. One who 
 is required to produce books, may seal up such parts 
 as do not relate to the subject of the examination ; and 
 those who wilfully pry into the sealed parts, are guilty 
 of contempt. {Dias v. Merle, 2 Paige, 494). If a 
 referee has been appointed under section eight hundred 
 and seven, the party ordered to make discovery, may be 
 examined on oath before the referee, to such extent 
 as the referee thinks proper, as to whether the order of 
 
DISCOVERY OF BOOKS AND PAPERS. 849 
 
 the court has been complied with. {Hart v. Ten Eyclc, 
 2 Johns. Ch. 513; Hallett v. Hallett, 2 Paige, 432). 
 If the adverse party claims that other books should be 
 produced, or that the sealed portions of those which 
 are produced, should be opened, he should apply in 
 the first instance to the referee to require it to be done ; 
 who may permit such examination under oath as he 
 deems proper; if upon such application, the referee 
 requires it, and then the party producing the books, 
 refuses to comply, an application should be made to the 
 court, on the certificate of the referee; and the court 
 will order it on that certificate. ( Co. Civ. Proc. § 807 ; 
 Titus V. Cortelyou, 1 Barb. 444). If no referee has 
 been appointed, and the petitioner claims that the dis- 
 covery is insufficient, and the order has not been com- 
 plied with, he should apply to the court on motion, 
 or by order to show cause, why the omissions should 
 not be supplied. The motion papers should show what 
 books were presented, under the order for discovery, and 
 what omissions, or defects, or failures to comply with the 
 order, there are claimed to be. [Hoyt v. American 
 Exchange Bank, 1 Duer, 652). The court upon such 
 an application may order a further discovery. (Id.). 
 A party who has made a discovery, may withdraw the 
 books or papers, after they have remained such time 
 as the court has prescribed. {Sfow v. Betts, 7 Wend. 
 536). 
 
 Sec. 7. Effect of Papers, etc.. Produced. 
 
 A book, document or other paper, produced under an 
 order, made as prescribed in this article, has the same 
 effect, when used by the party requiring it, as if it was 
 produced upon notice, according to the practice of the 
 court. (Co. Civ. Proc. § 809). 
 
 Sec. 8. Penalty for Disobedience. 
 
 Where an order, made as prescribed in section eight 
 himdred and seven, directs a discovery or inspection, 
 the party in whose behalf it was made, may, upon proof, 
 by affidavit, that the adverse party has failed to obey it, 
 and upon notice to him, apply to the court, for an order 
 
850 
 
 PRACTICE. 
 
 to punish him for the failure. Upon the hearing of the 
 application, the court may, upon the payment of such 
 a sum, for the expenses of the applicant as the court 
 fixes, and upon compliance with such other terms as 
 it deems just to impose, permit the party in default to 
 ■comply with the order for a discovery and inspection; 
 ■and, for that purpose, it may direct that the applica- 
 tion to punish him stand over to a future time. Upon 
 the final hearing of the application to punish the party 
 in default,, the court, in a proper case, may direct that 
 his complaint be dismissed, or his answer, or reply be 
 stricken out, and that judgment be rendered accord- 
 ingly ; or it may make an order, striking out one or more 
 causes of action, defenses, counter-claims, or replies, 
 interposed by him; or that he be debarred from main- 
 taining a particular claim or defense, in relation to 
 which the discovery or inspection was sought. Where 
 the party has failed to obey an order, allowing an 
 inspection by the adverse party, and requiring him to 
 furnish a copy or permit a copy to be taken, the court 
 may also direct that the book, document, or other paper, 
 be excluded from being given in evidence; or it may 
 punish the party for a contempt or both. (Co. Civ. 
 Proc. § 808). Service, upon the attorney for the adverse 
 party, of the order requiring discovery is sufficient as a 
 basis for an order of punishment under this section. 
 (Boss)ier v. N. T. Museum Asscn. 20 Hun, 182). 
 
INDEX. 
 
 A. 
 
 ABATEMENT OF ACTION OR SPECIAL PROCEEDING: page 
 
 none, if cause of. action or right to relief survives 807 
 
 test whether .cause of action survives 808 
 
 for wrongs to property rights and interests 808 
 
 what actions do not abate 809 
 
 what actions do abate 812 
 
 on death of party jointly liable 811 
 
 none, by marriage , 812 
 
 if party imprisoned in State prison. 813 
 
 against corporation, by dissolution of 809, 824 
 
 when court may order action abated .- 829 
 
 none after verdict, etc 829 
 
 when action for personal injury does not abate 830 
 
 ACCOUNT: 
 
 limitation of action on Ill 
 
 how alleged in pleading 326, 351 
 
 cQpy of, see Bill of Items. 
 
 ACKNOWLEDGMENT : 
 
 taking, not judicial act 14 
 
 what prevents running of statute of limitations 90 
 
 what sufficient to prevent running of statute 114 
 
 when must be in writing to prevent running of statute 114 
 
 by whom may be made 115 
 
 amendment, of 787 
 
 ACTION: 
 
 may be tried elsewhere than at court house, upon stipulation. . 9 
 
 pending in Supreme Court, when triable at chambers 9 
 
 may be noticed for trial at adjourned terms 11 
 
 when Supreme Court may remove to itself 67 
 
 defined 80 
 
 forms of, abolished 80 
 
 limitation of, see LiMlTATioiiT of Action. 
 to compel, a determination of claim to real property who may 
 
 be parties to 178 
 
 parties to, see Parties : 
 
 commenced by service of summons 189 
 
852 
 
 INDEX. 
 
 ACTION— ( Continued ) : ^^QE 
 
 when jurisdiction acquired in 189 
 
 of replevin, when jurisdiction acquired in 190 
 
 'when judgment in, may be taken without application to court. . 193 
 
 on bond or imdertaking, before whom brought 304 
 
 consolidation of, see Consolidation of Actions. 
 
 when court may direct that one action abide event of another . . 307 
 dismissal for neglect, see Dismissal. 
 
 how far barred by counterclaim in previous action 455 
 
 in what, order of arrest granted, see Arrest and Bail. 
 
 when prosecution of, will be restrained by injunction 558 
 
 on undertaking, given on obtaining injunction 605 
 
 to foreclose mechanic's lien, receiver in 705 
 
 severance of, when part of claim admitted 764 
 
 abatement of, see Abatement of Action. 
 continuance Of, see Continuance of Action. 
 
 substitution of party in, on transfer of interest 822 
 
 ADJOURNMENT: 
 
 of courts of record 4, 11 
 
 in absence of judge 11, 12 
 
 ADMINISTRATOR: 
 
 temporary, when may sue and be sued 150 
 
 See Executors and Administrators. 
 
 ADMISSION: 
 
 of service of papers 290 
 
 of service of summons, see Summons. 
 
 what deemed admitted in construction of pleading 349 
 
 in pleading, how construed 350 
 
 in pleading, cannot be controverted 350 
 
 ADVERSE POSSESSION. See Limitation of Action. 
 
 AFFIDAVIT: 
 
 clerk may take 19 
 
 of service of summons, what must appear in 212 
 
 for substituted service of summons, w'hat must show 215 
 
 for service of summons by publication, what must appear in. . . . 219 
 
 how to be entitled 252 
 
 venue must be stated in 252 
 
 name of deponent must be stated in 253 
 
 when more than one deponent 253 
 
 facts only, to be stated in 253 
 
 doctrine absolute statements in, not on personal knowledge. . . . 254 
 
 certain words necessary in 255 
 
 should be divided in paragraphs 254 
 
 must be signed by deponent 254 
 
 must be sworn to 255 
 
 what necessary in jurat : 255 
 
 statement of no previous application in, when necessary 256 
 
INDEX. 853 
 
 AFFIDAVIT— ( Continued ) : page 
 
 requisites of, on application to extended time. .258, 293 
 
 before whom taken, within the state 258 
 
 before whom taken, without the state 259 
 
 how authenticated 259 
 
 when authentication sufficient 259 
 
 replying and opposing 203 
 
 See, also. Deposition. 
 
 to obtain order to show cause 265 
 
 of service of papers, other than summons 289 
 
 when to be filed 291 
 
 for extension of time, must be served with order 295 
 
 requisites of, by surety on bond or undertaking 299 
 
 for bill of particulars, what should state 358 
 
 on procuring order of arrest 505 
 
 on procuring warrant of attachment , 630 
 
 amendment of 787 
 
 AFFIDAVIT OF MERITS: 
 
 when necessary 256 
 
 by whom made 256 
 
 what to be stated in 256 
 
 not required on motion to vacate for irregularity 803 
 
 AFFINITY OF JUDGE: 
 
 when disqualifies 12-14 
 
 See Judge. 
 
 AGENT: 
 
 limitation of action by principal, for neglect of 112 
 
 must sue in name of principal 143 
 
 when may sue in his own name 143 
 
 when verification of pleading may be made by 340 
 
 AMENDMENT: 
 
 of summons 193 
 
 of notice of pendency of action 242 
 
 of notice of appeal, when not allowed 297 
 
 of defective undertaking, when allowed 303 
 
 of pleading, when may be made of course 361 
 
 new causes of action may be set up by 361 
 
 what may be made of course 361 
 
 when must be made within twenty days 362 
 
 right to amend, how waived 362 
 
 what is amendment of course 362 
 
 effect of 363 
 
 amended pleading must be served 363 
 
 by leave of court before trial 364 
 
 what will be allowed 364 
 
 when application must be made for 367 
 
 reason for, must be shown 367 
 
854 
 
 INDEX. 
 
 AMENDMENT— (Continued): page 
 
 . . ' . . appliciitioii for, must be upon notice 367 
 
 - .copy, proposed pleading must be served 367, 794 
 
 . order, for, what. should provide 367 
 
 at trial, .wluD may grant 368 
 
 rules . for 368 
 
 . what wiU be allowed at .trial 369 
 
 what is material variance 370 
 
 . granting, of application for,, discretionary 371 
 
 terms of allowing 371 
 
 .of, pleading after trial, when allowed 371 
 
 may be made by appellate court 37 1 
 
 .what will be allowed '• 371 
 
 .after demurrer, see Demurrer. 
 
 of, technical defects on motion to vacate attachment 682 
 
 of offer of compromise 771 
 
 .what may be amended. 776 
 
 void proceedings cannot be amended • 11] 
 
 excuse must be shown on appliea.tion for 778 
 
 delay, ground for refusing 778 
 
 no distinction in granting, between kinds of action 778 
 
 when allowed on motion to vacate proceedings for irregularity. . 779 
 
 of summons 779 
 
 of process other than summons 781 
 
 of judgment roll, on offer of compromise 783 
 
 of statement, on confession of judgment . 783 
 
 of judgment 784 
 
 of judgment after appeal 786 
 
 of acknowledgments 787 
 
 of affidavits ' . . 787 
 
 of warrant of attachment 788 
 
 of bonds and undertakings 788 
 
 of cases . ;;;;.;:.;. : 790 
 
 of commission to take testimony ' 791 
 
 of notice of appeal 777, 791 
 
 of orders 791 
 
 of petitions 792 
 
 of remittiturs 792 
 
 •of returns 792 
 
 of sheriff's certificates and deeds 792 
 
 of verdicts 793 
 
 application for, to -whom, and when made 794 
 
 terms of gi-anting. ..; ....................... .• 794 
 
 what may be made by court only 794 
 
 mode of making 794 
 
 effect of 795 
 
INDEX. 855 
 
 ANSWER: pa.qe 
 
 of title; within what time made 83 
 
 defense of statute of limitations, must be set up in 117 
 
 when must be served 235 
 
 amendment of, see Asibndsient. 
 
 sham, maj' be. stricken out 381 
 
 part of defense cannot be stricken out as sham 382 
 
 general denial in, cannot be stricken out as sham 382 
 
 what is sham defense in 382 
 
 falsity may be shown 383 
 
 when may be stricken out as sham 383 
 
 when required 425 
 
 no particular form of, necessary 426 
 
 what must contain 426 
 
 what, may be denied 427 
 
 denial in, should be direct 427 
 
 general denial, what is 428 
 
 what may be proved under 432 
 
 denial on information and belief, when good in 429 
 
 specific denial, what is 430 
 
 how parts of complaint denied, should be referred to in 430 
 
 denials, "except as admitted," etc., when good 430 
 
 when allegations in, are not a denial 432 
 
 new matter in, what is 434 
 
 may be pleaded either for complete or partial defense 434 
 
 when defense of, deemed controverted by plaintiff 340 
 
 defendant may interpose all defenses in one 436 
 
 defenses may be inconsistent in 436 
 
 when defendant will be required to elect 437 
 
 any defenses existing at tinie of, may be pleaded in 437 
 
 partial defenses may be pleaded in 437 
 
 what is partial defense 438 
 
 matters in mitigation of damages must be pleaded in 433 
 
 how such matters to be pleaded 439 
 
 when not regarded as counterclaim 454 
 
 what relief must be demanded in 456 
 
 when demurrer may be Joined with 467 
 
 when objection to complaint must be taken by 481 
 
 when objection waived by 481 
 
 judgment for plaintiff, when part of claim admitted by 764 
 
 when discovery granted to enable party to frame 837 
 
 See Counterclaim — Demueber^Satisfaction — Discovery of 
 Books and Papers. 
 APPEAL: 
 
 from order, time for, how limited 279 
 
 time to take, cannot be extended 297 
 
856 INDEX. 
 
 AFFEAL— (Continued): ^^™ 
 
 how extended by death of party 297 
 
 amendment of notice of 778, 791 
 
 irregularity cannot be corrected by • ^01 
 
 APPEAEANCE: 
 
 when defendant may appear 230 
 
 within what time, must be made 230 
 
 how made 230 
 
 what constitutes general 230 
 
 equivalent to personal service of summons 231 
 
 gives jurisdiction of person 231 
 
 does not give jurisdiction of subject matter 232 
 
 when entitles defendant to notice of subsequent proceedings . . . 232 
 
 what waived by , 233 
 
 by attorney, good 232 
 
 what constitutes special 234 
 
 effect of special 234 
 
 what irregularity waived by general 804 
 
 APPELLATE DIVISION. See Supreme Court. 
 ARBITRATION: 
 
 when time to sue extended by 109 
 
 ARREST: 
 
 attorney privileged from 38 
 
 time of defendant to answer after 236 
 
 who may be arrested 498 
 
 who are privileged from 498, 504 
 
 See, also, Arrest and Bail. 
 ARREST AND BAIL: 
 
 , where right to arrest depends upon nature of action 482 
 
 in action for fine or penalty 484 
 
 in action for personal injury, what included in 484 
 
 in action for separation 485 
 
 in action for injury to property 486 
 
 what are such actions 480 
 
 not granted in action for money lost at play 487 
 
 not granted where property converted and tort waived .... 487 
 
 when not granted for breach of promise 487 
 
 for misconduct or neglect in office 487 
 
 against attorney for money collected 488 
 
 in action for money received in fiduciary capacity. . . .488, 490 
 
 in action for damage for fraud or deceit 488 
 
 in action to recover chattel, fraudulently disposed of 489 
 
 in action for conversion of public property 492 
 
 in action on contract for fraud in incurring liability 495 
 
 only granted when authorized by statute 483 
 
 when should not be granted 483 
 
INDEX. 857 
 
 ARREST AND BAIL— (Continued) : page 
 
 where right depends partly upon extrinsic facts 495 
 
 substituted for writ of ne exeat 496 
 
 against whom it will be granted 496 
 
 for what purpose order will be granted 496 
 
 privilege from arrest ^ 498 
 
 who may be arrested 498 
 
 when woman can be arrested 499 
 
 incompetent person, when to be discharged 499 
 
 when infant cannot be 499 
 
 one sued in representative capacity, when cannot be 500 
 
 members of congress, when 501 
 
 persons in public service • • • ■ 501 
 
 members. of legislature 501 
 
 officers of legislature 501 
 
 superintendent of public works, etc 501 
 
 militia 501 
 
 soldiers of United States 501 
 
 foreign ministers 502 
 
 witnesses 502 
 
 parties to actions, when 503 
 
 police officers 503 
 
 officers of court 503 
 
 prisoner in arrest 503 
 
 one brought within jurisdiction by fraud , 504 
 
 how discharged by reason of 519 
 
 privilege, how waived 504 
 
 papers necessary to obtain 496, 505 
 
 only to be granted on affidavit 505 
 
 when affidavit upon information and belief sufficient 507 
 
 how facts must be stated in affidavit for 507 
 
 papers must be filed , 524 
 
 undertaking to be given in 509 
 
 when required 509 
 
 when may be dispensed with 511 
 
 order for, by whom granted 511 
 
 when granted only by court 512 
 
 when county judge may grant 513 
 
 when may be granted 512 
 
 contents of order 514 
 
 may fix time within which defendant must be arrested. ... 514 
 
 must state grounds on which granted. .-. 514 
 
 must be subscribed by attorney 514 
 
 how vacated or modified 515 
 
 when application must be made to 515 
 
 must be vacated, if no cause of action, in complaint 517, 519 
 
 when made on papers on which order was granted 517 
 
 when founded upon proof by affidavit 518 
 
858 
 
 INDEX. 
 
 ARREST AND B All,— {Continued) : page 
 
 • when notice required 518 
 
 ■ - - county judge may hear motion for, on notice 520 
 
 rules of- d'Ceision, on motion 518 
 
 when motion to, may be joined with motion to reduce bail . . 520 
 
 to whom application must be made 520 
 
 when court may require stipulation not to sue^ 521 
 
 how arrest made 524 
 
 must be made within county 524 
 
 where time fixed for, cannot be arrested afterwards 524 
 
 what papers must be served upon arrest 524 
 
 bail, how given 525 
 
 sureties may be required to justify on 527 
 
 proceedings upon justification of sureties. . 527 
 
 where justification may be made 527 
 
 qualification of sureties on 528 
 
 deposit may be made instead of bail 529 
 
 deposit to be paid into court by sheriff 529 
 
 money deposited, how disposed of 530 
 
 when defenaant entitled to discharge for delay of plaintiff 521 
 
 liability of sheriff after arrest of defendant 531 
 
 rights and privileges of sheriff, when liable 531 
 
 when bail may surrender defendant 532 
 
 how surrender to be made by bail 533 
 
 how surrender to be made by defendant 534 
 
 liability of bail, on failure to justify 534 
 
 bail can only be proceeded against by action 535 
 
 when such action may be brought against bail ^ 535 
 
 what defenses may be interposed in action against bail 536 
 
 how discharged before expiration of time to answer 537 
 
 exoneration of, after action commenced 537 
 
 may be permitted to defend orig-inal action 537 
 
 See, also. Provisional Remedies. 
 ASSESSMENT: ' 
 
 will not be restrained by injunction 572 
 
 ASSIGNEE: 
 
 when counterclaim allowed against 449 
 
 when substituted as plaintiff in place of assignor 823 
 
 ATTACHMENT: . 
 
 notice of pendency must be filed, after warrant of 239 
 
 cancellation of notice of pendency 243 
 
 when and by whom it may be granted 612 
 
 who may sue out 612 
 
 when non-resident may obtain 613 
 
 in what actions granted 613 
 
 in what actions cannot be granted ." 617 
 
 cause of action must exist at time of application for 613 
 
INDEX. 859 
 
 ATTACHMENT— ( Continued ) : page 
 
 .distinction between, under code, and nnder revised statutes .... 614 
 
 only granted in cases authorized by statute 014 
 
 granting of, discretionary with court ' 015. 
 
 .may be granted in action for unliquidated damages 015 
 
 .against non-resident 618 
 
 .what constitutes non-residence OlS 
 
 .when granted against foreign administrator 618 
 
 JlQt granted against foreign receiver 018 
 
 Jiot granted against resident member of non-resident firm 018 
 
 granted against foreign corporation 619 
 
 not granted against national banli. ,-. 619 
 
 against, absconding or concealing debtors 019 
 
 against one removing, assigning, or secreting property 021 
 
 property removed must be that of defendant 021 
 
 threatening to malce preferential assignment, whether ground of 022 
 
 agreement to give preference, not ground of -. 022 
 
 assignment, fraudulent, in law, -not sufficient ground for 622 
 
 not necessary tluut. defendant .should dispose of all of his prop- 
 erty to entitle plaintiff, to ■ 623 
 
 Against one making false statement as to financial responsi- 
 bility 623 
 
 against resident absent from' state, etc 624 
 
 against public ofQcer 625 
 
 may, be granted to accompany summons 025 
 
 jurisdiction lost if summons not served in thirty days 626 
 
 when, jurisdiction, acquired by general appearance 627 
 
 service upon all pai'tners necessary to retain jurisdiction 627 
 
 service by .publication, what sufficient , 627 
 
 what jurisdiction retained,- without actual service 627 
 
 substituted service, held not sufficient 028 
 
 by. whom warrant granted ; 629 
 
 papers on which granted 630 
 
 . , application must be founded upon affidavit 631 
 
 what must be shown by affidavit 630 
 
 by whom affidavit may be made 631 
 
 cause of action, ho'" stated in affidavit for 634 
 
 when affidavit on information and belief sufficient 631 
 
 when allegations on information and belief do not give 
 
 jurisdiction 632 
 
 amount due must be stated in affidavit for 635 
 
 how statement of amount due to be made 635 
 
 must appear that debt is due 635 
 
 . . . how non-residence laust be stated in 637 
 
 how foreign incorporation must be shown 638, 639 
 
 , . facts showing defendant has absconded, etc., must be stated 637 
 
 . intent must be shown 619, 622, 637 
 
 need. not he stated, no previous application made 639 
 
860 
 
 INDEX. 
 
 A.TTACB.ME1JT— (Continued) : page 
 
 how other papers referred to in affidavit 639 
 
 deposition of party cannot be compelled 639 
 
 deposition of third party may be compelled 639 
 
 prima facie proof of fact sufficient 639 
 
 what must appear in, in action against public officer 640 
 
 affidavits must be filed 640 
 
 security on obtaining warrant 640 
 
 undertaking must be given 640 
 
 if undertaking defective, new one may be ordered 641 
 
 when amount of undertaking will be increased 641 
 
 liability of sureties 641 
 
 sureties not exonerated by vacating for error 683 
 
 warrant improperly granted, no defense to sureties 642 
 
 warrant must be subscribed by judge and attorney 642 
 
 must recite grounds of attachment 643 
 
 to what sheriff, warrant directed 642 
 
 form of warrant 642 
 
 several may be issued 642 
 
 may be amended 642 
 
 execution of warrant, must be by sheriff 644 
 
 how to be executed 644 
 
 levy upon, not made after final judgment 644 
 
 sheriff may require indemnity 645 
 
 inventory to be returned 645 
 
 return of the attachment 645 
 
 what property may be attached 646 
 
 real property may be levied upon 646 
 
 how levy made upon real property 650 
 
 Us pendens to be filed 650 
 
 personal property, what may be levied upon 646 
 
 mortgaged property, what may be levied upon 646 
 
 money collected by sheriff 646 
 
 property of a, firm 646 
 
 property of foreign corporation 647 
 
 property disposed of, with intent to defraud creditors 647 
 
 stock of defendant in corporation 647 
 
 stock of foreign corporation, when not leviable upon 648 
 
 may be levied upon chose in action 649 
 
 choses in action transferred before levy, not levied upon against 
 
 assignor 649 
 
 legal debt only can be levied upon 650 
 
 levy upon personal property capable of manual delivery, how. . 651 
 
 failure to deliver copy warrant, does not invalidate levy 651 
 
 levy on property not capable of manual delivery, how made 652 
 
 includes property pledged 652 
 
 judgment how levied upon 653 
 
 notice of property levied on, what sufficient 653 
 
INDEX. 861 
 
 ATTACHMENT— ( Continued ) : page 
 
 duty of debtor after levy 654 
 
 upon property discovered in action by sheriff 655 
 
 warrant of, lien from time of levy 655 
 
 levy does not relate to time of original demand of property 656 
 
 when certificate to be furnished by possessor of property 657 
 
 order for examination, if certificate refused 658 
 
 when such order may be granted 658 
 
 what examination may be had under such order 658 
 
 remedy of sheriff after examination 659 
 
 master of vessel, when entitled to undertaking upon levy 660 
 
 form of undertaking 660 
 
 inventory to be made by sheriff 660 
 
 to be filed within five days 661 
 
 failure to make, does not invalidate levy 661 
 
 may be amended 661 
 
 return of, may be compelled 661 
 
 what suits may be brought by sheriff with regard to attached 
 
 property 661 
 
 when plaintiff in action may sue to collect attached property. . . 662 
 when plaintiff may be joined with sheriff in action already 
 
 brought 663 
 
 court may direct as to prosecution of such action 663 
 
 what application may be made as to, by plaintiff in second 
 
 warrant 690 
 
 when plaintiff in second warrant, substituted in action 690 
 
 when plaintiff in second warrant, allowed to bring action 690 
 
 rights of plaintiff in third and subsequent warrants 690 
 
 how far sheriff may attack assignment as fraudulent 664 
 
 how property kept by sheriff 666 
 
 when sheriff may be compelled to pay money into court 666 
 
 lien of sheriff upon levy, nature of 666 
 
 duty of sheriff as to books taken 666 
 
 money lost, who liable for 666 
 
 when court may release property attached 667 
 
 when court may direct things in action to be sold 093 
 
 notice of application for such order 633 
 
 perishable property may be sold 067 
 
 adverse claim to property, how tried 008 
 
 proceedings on claim of vessel 070 
 
 proceedings on claim of foreign vessel 671 
 
 who may move to vacate or modify warrant 673 
 
 what lienor may move to vacate or modify 673 
 
 upon what grounds he may move 073 
 
 lienor need not become party to suit 674 
 
 defendant may move to vacate, although undertaking has been 
 
 given to release property 675 
 
 what is such application of property as bars right to move. . . 075 
 
°.^2 INDEX. 
 
 ATTACHMENT— ( Continued ) : page 
 
 motion to vacate ,iox irregularity, when must be made 07G 
 
 motion upon papers, to vacate, when made 676 
 
 what, papers may be used by lienor 677 
 
 when motion made on papers, no bpposmg affidavits to be read 677 
 
 what proof by moving party permits new affidavits- to be read. . G77 
 
 when motion may be founded on new proof by affidavit 678 
 
 what constitutes new proof 678 
 
 what plaintiflf may establish by new affidavits 078 
 
 when more than one motion to vacate may be made 680 
 
 motion to vacate on papers, when granted 680 
 
 court will not pass on merits on motion to vacate 681 
 
 effect of vacating for irregularity 682 
 
 effect of vacating, where erroneously issued 683 
 
 duty of sheriff, where vacated for irregularity 683 
 
 when sureties not discharged by vacating 683 
 
 application for discharge of property from, defendant only may 
 
 make 683 
 
 part of property may be discharged 683 
 
 what notice of application required 684 
 
 when court to direct notice to be given 684 
 
 undertaking required on such application 68.5 
 
 to be presented at time of application 68.5 
 
 form of, when application made by less than all defendants 685 
 
 must be filed with clerk 685 
 
 justification of sureties on 68,5 
 
 sheriflt responsible for sufficiency of sureties on 680 
 
 sheriff, when must retain possession of property 686 
 
 application for discharge of vessel from 686 
 
 application by partners to discharge property from 687 
 
 what undertaking to be given on 687 
 
 how amount of undertaking fixed 687 
 
 what notice of application to be given 687 
 
 duty of sheriff, where second warrant issued 688 
 
 how levy made under second warrant 688 
 
 when levy cannot be made under second warrant 688 
 
 preference, where two or more warrants issued 689 
 
 rights of plaintiff in second warrant against foreign vessel .... 689 
 
 when may be attached under subsequent warrant 689 
 
 when cannot be attached after release 689 
 
 judgment upon, how stayed 691 
 
 execution upon, see Execution. 
 
 unsold property levied upon, how disposed of 693 
 
 application for order of sale for 693 
 
 what notice of application to be given 693 
 
 when person having property of foreign corporation may be 
 
 required to pay on 693 
 
 after warrant annulled, to whom property delivered 694 
 
INDEX. 863 
 
 ATTACHMENT— ( Continued ) : P^eB 
 
 sheriff must deliver books, etc., to defendant 695 
 
 when assignment of undertakings must be delivered to defend- 
 
 ^°t 095 
 
 after vacating, defendant to be substituted as plaintiff in suit 
 
 . V sheriff ggg 
 
 lis pendens to be cancelled after vacating 696 
 
 return to be filed after vacating 096 
 
 warrant* of may be amended 783 
 
 Sec, also, PkovisiO'Nal Remedies. 
 ATTORNEY: 
 
 admission to practice, and. removal of 29 
 
 proceedings to punish 30 
 
 effect of suspension or removal 33 
 
 how controlled by the court 33 
 
 how punished for deceit or collusion 35 
 
 not to lend his name 35 
 
 not to buy choses in action with intent to bring suit 35 
 
 such intent, however, must be proved 36 
 
 what not forbidden 36 
 
 shall not pay to procure claims for suit 36, 46 
 
 for what purpose may receive thing in action 37 
 
 shall not be bail or surety 37, 298 
 
 only those admitted can practice in city of New York 37 
 
 . proceedings upon death, removal or disability of 37, 286 
 
 service of notice on surviving partner sufficient 38 
 
 when privileged from arrest 38 
 
 authority to practice presumed 39 
 
 when authority must be proved 39 
 
 when must disclose client's address 39 
 
 powers and limitations under retainer 39 
 
 and client, when relation ends 43 
 
 how substituted 44 
 
 lien of, upon papers for services 44 
 
 may agree with client for compensation 45 
 
 when court may set aside such agreement for compensation .... 45 
 
 extent of lien of 46 
 
 whether notice of lien required 50 
 
 right of parties to settle without regard to lien 48 
 
 lien of, how may be enforced 48 
 
 when compensation of, may be fixed by summary proceedings ... 50 
 
 for one suing as poor person, lien of 50 
 
 punished for including scandalous matter in pleading 52 
 
 not to disclose professional communications 52 
 
 must serve for poor person without compensation 135 
 
 when may act as guardian ad litem 182 
 
 summons must be signed by 192 
 
 effect of appearance by 232 
 
 65 
 
864 
 
 INDEX. 
 
 ATTORNEY— ( Continued ) : pask 
 
 when authority to appear may be disputed 232 
 
 papers must be signed by 283 
 
 service upon, how made 286 
 
 when to cause papers to be filed 291 
 
 when verification may be made by 340 
 
 will be charged with costs on motion to expunge scandalous 
 
 matter _. 300 
 
 AWARD: 
 
 cannot be made on Sunday 5 
 
 B. 
 
 BAIL: 
 
 sheriff cannot be 22 
 
 attorney cannot be 37 
 
 See, also, Aekest and Bail. 
 
 BANK BILLS: 
 
 not within statute of limitations 110 
 
 BANKING ASSOCIATION: 
 
 actions by or against may be in name of president 146 
 
 actions by or against stockholders of 148 
 
 receiver in, proceedings against 730 
 
 BILLS AND NOTES: 
 
 counterclaim against transferee of overdue 451 
 
 BILL OP ITEMS: 
 
 when party entitled to 351 
 
 demand must be made for 352 
 
 what must be stated in 352 
 
 when further account will be ordered 352 
 
 penalty for failure to serve 352 
 
 BILL OP PARTICULARS: 
 
 in what cases will be ordered to be delivered 353 
 
 discretionary with the court 353 
 
 obtained only by order 353 
 
 office of 353, 358 
 
 granted in actions for tort 354 
 
 application for, how made 355 
 
 affidavit for, what should state 356 
 
 order for, form of 357 
 
 What should be contained in 358 
 
 further bill, when granted 359 
 
 effect of 359 
 
 penalty for disobedience . .' 360 
 
 penalty for disobedience, may be inserted in order 360 
 
 BOARD OF SUPERVISORS: 
 
 when may sue or be sued 156 
 
INDEX. 865 
 
 BONDS: PAGE 
 
 when leave to sue upon necessary 125 
 
 Sec, also, Undertakings. 
 BOOKS AND PAPERS. See Discoveey of Books and Papers. 
 
 C. 
 CASE: 
 
 amendment of 790 
 
 OAUSE OP ACTION: 
 
 wliat constitutes a single 403 
 
 test of servivability of 808 
 
 what may be joined in complaint, see Complaint. 
 Sec, also, Action. 
 
 CHANCERY: 
 
 when proceedings had according to practice of 2 
 
 CHATTEL: 
 
 action for, when barred 93 
 
 CIRCUIT COURT: 
 
 abolished and jurisdiction vested in trial term 3, 4 
 
 CITY COURT OF THE CITY OF NEW YORK: 
 
 terms of 10 
 
 always open for transaction of ex parte business lO 
 
 how constituted 68 
 
 jurisdiction of 69 
 
 as to marine causes 70 
 
 cannot naturalize an alien 70' 
 
 no equitable jurisdiction 70 
 
 order or warrant granted by justice only 71 
 
 limitation of action on judgment of 91 
 
 CIVIL ACTION: 
 
 defined 80 
 
 CLAIMS: 
 
 attorney shall not pay to procure, for suits 339 
 
 against the people, when barred 103 
 
 CLERK : 
 
 to open and adjourn court in judge's absence 11, 12 
 
 of courts, how appointed 10 
 
 county clerk to be, of Supreme Court 16 
 
 duties and powers of 16-18 
 
 fees of, how fixed 18-19 
 
 fees may be required in advance 19 
 
 to receive fees only when allowed by law 19 
 
 must appoint deputy 20 
 
 shall not practice as attorney 20 
 
 deputy clerk i)ot to practice as attorney 20 
 
 office, when to be kept open 20 
 
 when papers may be served on 287 
 
866 
 
 INDEX. 
 
 CODE: PAGE 
 
 where no provision made hy, what practice controls 2 
 
 COMMEKCEMEXT OF ACTIOX: 
 
 ivhat is, under statute of liuiitatious 113 
 
 COiBIISSIOX: 
 
 how opened and filed 18 
 
 to take testimony may be amended 791 
 
 COMMISSIONERS OF HIGHWAYS: 
 
 when- may sue or be sued 1-55 
 
 committee': 
 
 of incompetent jjerson, leave to sue in actions by and against. . 132 
 
 cannot sue as poor person 136 
 
 how and when appointed 199 
 
 COMPENSATION: 
 
 attorney may agree with client for 45 
 
 when court may set aside such contract for 45 
 
 of attorney, wlien may be fixed by summary proceedings 50 
 
 of receiver 724, 749 
 
 COMPLAINT: 
 
 may be served with summons 193 
 
 when dismissed for failure to serve summons 314 
 
 when dismissed for failure to serve copy 423 
 
 when dismissed for unreasonable neglect of plaintiff to proceed 314 
 
 common counts in assumpsit, good under code pleading 320 
 
 causes of action to be separately stated in 332 
 
 amendment of, see Amendment. 
 
 what must contain 391 
 
 name of court must be stated in 392 
 
 in Supreme Court, name of county must be stated in 393 
 
 effect of omission of name of court from 393 
 
 remedy for failure to state county 393 
 
 efi'eet of failure to state proper county 393 
 
 names of parties must be stated in 394 
 
 what facts to be stated in 396 
 
 what facts need not be stated in 398 
 
 how facts to be stated in 398 
 
 where corporation, party, incorporation must be alleged 400 
 
 when allegations of demand necessary in 401 
 
 certain allegations necessary for certain actions 401 
 
 joinder of causes of action in 402 
 
 actions arising on contract 406 
 
 for libel or slander 407 
 
 for pei'sonal injury 407 
 
 for injuries to real property 408 
 
 for injuries to personal property 400 
 
 for ejectment 408 
 
 to recover chattels 409 
 
 upon claim against trustee 410 
 
INDEX. 867 
 
 COMPLAINT— (Cofiiuiued) : page 
 
 claims arising out of same transaction 405, 411' 
 
 for penalties under the fisheries, game and forest law. .402, 405 
 
 special instances 413 
 
 against same person individually and as executor 414 
 
 how objection of misjoinder taken 417 
 
 what causes may not be joined in 415 
 
 demand for judgment 417 
 
 what relief may be demanded 418 
 
 Avhere no answer, only judgment demanded to be granted 418 
 
 what judgment granted, where answer interposed 418 
 
 demand should not be vague or hypothetical 420 
 
 demand, does not necessarily characterize action 421 
 
 demurrer will not lie to demand in 421 
 
 costs need not be demanded 421 
 
 interlocutory and final judgment may be demanded 421 
 
 where injunction sought, it should be demanded in 422 
 
 when and how to be served 422 
 
 consequence of failure to serve 423 
 
 when discovery granted to enable party to frame 837 
 
 grounds of demurrer to, see Demurrer. 
 Sec Discovery of Books and Papers. 
 COMPROMISE: 
 
 when defendant may make offer of 768 
 
 may be made in any action 708 
 
 when judgment entered on, will be set aside 768 
 
 must be accepted within ten days 769 
 
 offer of 769 
 
 how made, when more than one defendant 770 
 
 signature of party to offer, how proved 770 
 
 how proved if made by attorney 771 
 
 offer of, operates as stay of proceedings 771 
 
 when plaintiff may make offer 772 
 
 acceptance of offer, how made 772 
 
 action does not abate after acceptance of 772 
 
 if offer refused, cannot be given in evidence 773 
 
 effect of, upon costs 773 
 
 judgment roll on offer, may be amended 771, 783 
 
 CONDITION PRECEDENT: 
 
 how alleged in pleading 328 
 
 CONSANGUINITY OP JUDGE: 
 
 disqualifies 12-14 
 
 See Judge. 
 
 CONSOLIDATION OF ACTIONS: 
 
 when it will be ordered 304 
 
 who may move for 304 
 
 when plaintiff may move ,..,... 304 
 
868 
 
 INDEX. 
 
 CONSOLIDATION OF ACTIO'NS— {Continued) : page 
 
 what defendant must show on moving 305 
 
 what actions will be consolidated 305 
 
 costs upon consolidation'. 30G 
 
 of separate actions against joint debtors 307 
 
 CONSTABLE: 
 
 limitation of action against 97, 100 
 
 CONSTRUCTION OP PLEADINGS. See Pleadings. 
 
 CONTINUANCE OP ACTION: 
 
 on death of sole party 814 
 
 onlj' made by motion 815 
 
 rule as to, in equitable and legal actions now the same 815 
 
 may be had on application of defendant 816 
 
 successors in interest to be substituted 816 
 
 court has only certain jurisdiction to direct 817 
 
 on motion for, pleading controls on question of survivability. . . 818 
 
 what objections may be taken at trial, after 818 
 
 on substitution, prior proceedings stand 818 
 
 on death of one of several parties, if entire cause of action 
 
 survives 819 
 
 where cause of action continues to surviving plaintiff 819 
 
 in action by tenants in common for conversion 819 
 
 in action of ejectment by tenants in common 820 
 
 after death of defendant, who is not a necessary party 820 
 
 when may bring in executors of co-defendant . 820 
 
 when executors of defendant jointly liable, to be substituted . . . 820 
 
 when defendants are jointly and severally liable 820 
 
 where part of cause of action survives 821 
 
 where interest has been transferred, etc 822 
 
 against foreign corporations 824 
 
 by and against public officers 824 
 
 rules for, in ejectment 825 
 
 rules for, in partition 826 
 
 application how made 827 
 
 notice of, to whom given 827 
 
 supplemental complaint, when may be ordered on 827 
 
 where actions survive, no suggestion of death necessary 828 
 
 proper proceedings, where action continues to survivors 828 
 
 when cross action may be ordered on application for 828 
 
 CONTEMPT: 
 
 how order served to bring party into 276 
 
 CONTRACT: 
 
 when action on barred 92 
 
 when injunction granted to restrain violation of 548 
 
 CONVENTION: 
 
 to make rules 1 
 
INDEX. 
 
 869 
 
 CONVEYANCE : page 
 
 of property, when may be ordered 751 
 
 COPYRIGHT: 
 
 when violation of, restrained by injunction 548 
 
 CORONERS: 
 
 power and duties of 26 
 
 fees of, when acting as sheriff 27 
 
 limitation of action against 97, 100 
 
 CORPORATION: 
 
 limitation of action against directors of domestic 98 
 
 of action against directors of moneyed 98 
 
 of action against foreign 103 
 
 of action, on evidence of debt of Ill 
 
 leave to sue in action to dissolve 128 
 
 in action against, directors not proper parties 147 
 
 action against agent of for malfeasance, by whom brought .... 148 
 
 action by creditor of 148 
 
 action against, when to be brought by people 153 
 
 how summons served upon 205 
 
 remedy for irregular service of summons upon 206 
 
 when verification of pleading necessary, to require party to 
 
 prove existence of 336 
 
 verification of pleading by domestic 339 
 
 injunction against, when granted 560 
 
 against municipal 563 
 
 against religious 562 
 
 corporate ordinance, when enforcement of restrained 563 
 
 receiver of, see Receiver of Corporation. 
 
 dissolution of, w'hen abates action 809, 823 
 
 when person having property of foreign, may be required to 
 
 pay on attachment 093 
 
 judgment against foreign, by publication, against what prop- 
 erty enforced 603 
 
 actions against foreign, how continued 824 
 
 COSTS : 
 
 to be taxed by clerk 18 
 
 when receiver will be charged with 130 
 
 of motion 271, 281 
 
 on order of interpleader 313 
 
 when need not be asked in complaint- 421 
 
 receiver, when liable for 722 
 
 where tender has been made 759 
 
 upon offer to liquidate damages 767 
 
 after offer to compromise 773 
 
 COUNTERCLAIM: 
 
 of title to real property, when made 83 
 
 effect of discontinuance of action on, under statute of limita- 
 tions 109 
 
870 
 
 INDEX. 
 
 COUNTERCLAIM— ( Continued ) : page 
 
 cause of action barred by statute, cannot be set up as 114 
 
 defense of statute of limitations, must be pleaded 117 
 
 each, to be separately stated in pleading 331 
 
 what is 439 
 
 distinction between set-off, recoupment, and 439 
 
 construction of phrase "must tend to diminish or defeat plain- 
 tiff's recovery" 440 
 
 must always contain cause of action 441 
 
 must be against all plaintiffs 442 
 
 when must belong to all defendants 442 
 
 must belong to defendant at commencement of action 443 
 
 meaning of phrase "transaction set forth in complaint" 443 
 
 meaning of phrase, "subject of action" 446 
 
 what may be set up as, in action on contract 448 
 
 against assignee of contract 449 
 
 against transferee of over-due paper 451 
 
 against one litigating in representative capacity 451 
 
 in matrimonial actions 453 
 
 not allowed against people 453 
 
 when defendant must plead 453 
 
 must be pleaded as such 454 
 
 how far bar to another action 455 
 
 judgment on 455 
 
 affirmative judgment on, must be demanded in answer 456 
 
 when plaintiff may reply to 457 
 
 grounds of demurrer to, see Demukrer. 
 
 right of defendant to provisional remedy on pleading 753 
 
 COUNTY: 
 
 how to sue and be sued 150 
 
 must be stated in complaint in action in Supreme Court 393 
 
 Sec, also, COMPLAIKT. 
 
 COUNTY COURT: 
 
 terms of 10 
 
 always open for the transaction of ex parte business 10, 77 
 
 county clerk to be clerk of 16 
 
 how constituted 71 
 
 jurisdiction of 71 
 
 no jurisdiction over two thousand dollars 71 
 
 jurisdiction of, how determined 72 
 
 where jurisdiction exists same as Supreme Court 73 
 
 mandates of, to be enforced as in Supreme Court 73 
 
 may send mandates into another county 73 
 
 court of limited, and not general jurisdiction 73 
 
 special cases of jurisdiction of 73 
 
 when justice of Supreme Court, may make orders in 78 
 
INDEX. 871 
 
 COUNTY JUDGE: page 
 
 power of, in action in county court 73 
 
 when has power of justice of Supreme Court 77 
 
 limitation of power to make order 78 
 
 when cannot make order to show cause 78 
 
 COUNTY TREASURER: 
 
 when leave granted to sue official bond of 126 
 
 ' when supervisors parties plaintiff in action on bond of 156 
 
 COUNSELLOR. See Attoenet. 
 
 COURT OF APPEALS: 
 
 where rules silent, practice in court of errors followed 2 
 
 terms of 6, 7 
 
 jurisdiction of 60 , 
 
 what judgments appealable to 61, 62 
 
 what orders appealable to 61, 62 
 
 jurisdiction of, not limited by amount 61, 63 
 
 COURT OF CLAIMS: 
 
 court of record 4 
 
 continuation of Board of Claims 4 
 
 terms of 11 
 
 COURTS OF RECORD: 
 
 enumerated 3 
 
 may make rules 3 
 
 sittings of, must be public 4 
 
 cannot be open to transact business on Sunday 4 
 
 formerly not open on election or town meeting day 6 
 
 may be open on holidays other than Sundays 6 
 
 must be held as appointed 8 
 
 extraordinary terms of, how appointed 8 
 
 actions in, may be tried elsewhere than at court house 9 
 
 how adjourned 11 
 
 how adjourned, in absence of judge 11 
 
 judges of, not to practice 15 
 
 seals of 16 
 
 duties of clerk of 16, 18 
 
 will correct mistakes of officer 18 
 
 extent of control over attorney 30, 33 
 
 jurisdiction of 55 
 
 only within the state 55 
 
 restricted by constitution and laws of United States 55 
 
 intention to deprive of, not presumed 56 
 
 m suits in which other governments are parties 56 
 
 in bankruptcy cases 56 
 
 in suits by and against foreign corporations 56, 59 
 
 on causes of action arising without the state 56 
 
 for specific performance of contract to convey lands without 
 the state 57 
 
872 
 
 INDEX. 
 
 COURTS OF 'KECOKD— {Continued) : page 
 
 in certain cases, limited 57 
 
 in patent eases 58 
 
 as to lands outside of the state 58 
 
 as to penal laws of another state 59 
 
 on habeas corpus by United States soldier 59 
 
 of property of non-resident, attached within the state 59 
 
 in ejectement, against person claiming as United States 
 
 officer 60 
 
 jurisdiction of Court of Appeals, see Court of Appeals. 
 jurisdiction of Supreme Court, see Supreme Couet. 
 power of judges out of, see Judges. 
 
 name of, must be specified in complaint 393 
 
 power of, to relieve against mistakes, not given by statute. .... 797 
 COURTS WHICH HAVE BEEN" ABOLISHED: 
 
 enumerated 3, 68 
 
 jurisdiction of, now in Supreme Court 3, 63, 68 
 
 judges o?, now Supreme Court justices 3, 63 
 
 described 68 
 
 leave to sue on judgments taken in 122 
 
 COVENANTS: 
 
 when violation of, will be restrained by injunction 554 
 
 CREDITOR: 
 
 when one may sue for all 159 
 
 CRIMINAL ACTION: 
 
 defined 80 
 
 D. 
 
 DAMAGES : 
 
 matters in mitigation of, how pleaded 438 
 
 sustained by injunction, to what extent plaintiff liable for 599 
 
 how such damages ascertained 601 
 
 when offer to liquidate may be made 767 
 
 eifect of acceptance or refusal of offer to liquidate 767 
 
 DEATH: 
 
 of occupant does not affect right to possession of real property. . 89 
 
 judgment may be rendered after, on verdict rendered before 830 
 
 when action for personal injury does not abate by 830 
 
 verdict, report or decision after, void 831 
 
 motion cannot be decided after 831 
 
 See, also. Continuance of Action. 
 
 DEFAULT: 
 
 when attorney may open 40 
 
 on contested motion 270 
 
 DEPENDANT: 
 
 when may defend as poor person 137 
 
 who may be joined as 139 
 
INDEX. 873 
 
 DEFENDANT— (CoretJimed) : page 
 
 in actions against stockholders or directors of corporations. . . . 147 
 
 against trustees for filing false report 149 
 
 in actions against stockholders of corporations 149 
 
 when people may be 155 
 
 jointly or severally liable, how to be sued 161, 164 
 
 in actions on written instruments 162, 164 
 
 in actions for tort, how joined 163, 165 
 
 severally liable, proceedings against 164 
 
 who must be, in ejectment 166 
 
 when person claiming title may be joined as, in ejectment 169 
 
 who should be, in partition 172 
 
 when creditor may be in partition 174 
 
 unknown, how served in partition 174 
 
 who must be in action for dower 174 
 
 in action for foreclosure 176 
 
 parties liable for payment of mortgage, may be joined, as 177 
 
 in action to compel determination of claim to real property. . . . 178 
 
 who may be, in action for waste , 179 
 
 who may be joined as, in action for a nuisance 180 
 
 where unknown, how to be designated 180 
 
 when true name may be inserted 181 
 
 must be allegation that name is unknown 181 
 
 when infant is, see Infant. 
 
 service of summons upon 198 
 
 See, also. Summons. 
 
 when allowed to defend, after service by publication 228 
 
 when may appear, though not served with summons 334 
 
 See, also. Appearance. 
 
 when must serve answer 235 
 
 time to answer of, when arrested 236 
 
 when may file notice of pendency of action 240 
 
 when may move to dismiss complaint for neglect. . .' 314 
 
 when must serve copy of answer on co-defendant 334 
 
 charged with fraud, when not excused from verifying pleading. 337 
 
 pleadings on part of 425 
 
 when must plead counterclaim 453 
 
 when may move to vacate warrant of attachment 673 
 
 when discharged from arrest, on giving bail, or deposit 525 
 
 undertaking on attachment, when delivered to 695 
 
 after attachment vacated, substituted as plaintiff in place of 
 
 sheriff ' 695 
 
 right of, to provisional remedy on pleading counterclaim. . .587, 753 
 
 See Satisfaction. 
 
 when may make offer to compromise 768 
 
 when assignee of, may be substituted in action 823 
 
 discovery by, see Discovery of Books and Papers. 
 
874 
 
 INDEX. 
 
 DEFENSE : PAGE 
 
 cause barred by statute of limitation cannot be set up as 114 
 
 of statute of limitation, must be pleaded to be available 117 
 
 each, to be separately stated in pleading 331 
 
 dilatory, must be verified 335 
 
 sham, what is 382 
 
 may be stricken out 381 
 
 when answer not stricken out as 382 
 
 defendant may interpose all in one answer 436 
 
 need not be consistent 436 
 
 when defendant required to elect between 437 
 
 any existing at time of answer may be pleaded 437 
 
 partial, may be pleaded 437 
 
 what is partial 433 
 
 what may be interposed, in action against bail 536 
 
 DELIVERY OF PROPERTY: 
 
 when may be ordered 751 
 
 DEMAND: 
 
 limitation of action, where demand necessary 112 
 
 DEMURRER: 
 
 cannot be interposed to demand for judgment 421 
 
 what it is 462 
 
 when it lies 462 
 
 grounds of, to complaint 461 
 
 that the court has no jurisdiction 468 
 
 that plaintiff has not capacity to sue 469 
 
 another action pending 469 
 
 misjoinder of parties plaintiff 470 
 
 defect of parties plaintiff or defendant 471 
 
 misjoinder of causes of action 472 
 
 failure to state cause of action 474 
 
 grounds of, to pleadings after complaint 463 
 
 to answer . 476 
 
 to counterclaim 477 
 
 to reply 478 
 
 for what will not lie 464 
 
 when may be interposed to supplemental pleading 465 
 
 only to be interposed to whole cause of action or defense 466 
 
 how objections must be taken by 465 
 
 what objections not taken by, deemed to be waived 466, 481 
 
 when may be joined with answer 467 
 
 what allegations admitted by 467 
 
 amendments after decision of 479 
 
 rule of allowance at common law 479 
 
 allowance of, in discretion of court 480 
 
 when leave to amend not granted 480 
 
 effect of amendment 486 
 
 when objection to pleading waived 481 
 
INDEX. 875 
 
 DENIALS. See Answer. page 
 
 DEPOSIT: 
 
 of money, when may be ordered 751 
 
 effect of 751 
 
 See Payment into Court. 
 
 DEPOSITION: 
 
 to be used on motion, when may be taken 260 
 
 application for 261 
 
 what must appear by 261 
 
 what notice required 261 
 
 of party cannot be taken 261 
 
 when opposite party cannot oppose 261 
 
 where person to be examined must attend 262 
 
 when may move to vacate order 262 
 
 of party cannot be compelled on attachment 639 
 
 of other than party, can be compelled on attachment 639 
 
 DESCENT CAST: 
 
 does not effect right of possession 88 
 
 DISABILITIES: 
 
 under statute of limitations 89, 110 
 
 must exist when right of action accrued 90, 110 
 
 in action for dower 110 
 
 DISCHARGE: 
 
 from arrest, must be given to defendant on giving bail, or 
 
 deposit 525 
 
 of bail, before expiration of time to answer 537 
 
 DISCONTINUANCE : 
 
 attorney may stipulate for 39 
 
 effect of, on limitation of action, where counterclaim interposed 109 
 
 DISCOVERY OF BOOKS AND PAPERS: 
 
 what courts may order 832 
 
 an action cannot be maintained to aid a discovery in another 
 
 action °32 
 
 application for must be made under code of civil procedure 832 
 
 must be by petition 842 
 
 distinction between, and examination before trial 833 
 
 granting of, discretionary 833 
 
 must be necessary 833, 834 
 
 includes power to compel deposit for inspection 834 
 
 only granted to enable party to obtain information necessary for 
 
 his own case ■ "''* 
 
 when not ordered of all books and papers 834 
 
 may be ordered of books and papers of corporation 835 
 
 may be ordered of books and papers of receiver 835 
 
 when ordered in actions between partners 836 
 
 by principal -of books of agent ^36 
 
876 
 
 INDEX. 
 
 DISCOVERY OF BOOKS AND TAPPERS— {Continued) : page 
 
 cases in which not ordered 836 
 
 application for, by whom made 837 
 
 when granted, before cause at issue 838 
 
 when granted after issue 840 
 
 petition for, what must contain 842 
 
 what facts and circumstances must be stated in 842 
 
 must be verified by affidavit 842 
 
 must be verified by party 844 
 
 when certificate of referee, sufficient proof for 845 
 
 order to show cause, what to contain 845 
 
 should contain directions as to manner of discovery 846 
 
 peremptory order cannot be made eac parte. . 845 
 
 proceedings upon return of 847 
 
 when order will be denied on hearing of 847 
 
 order for discovery, what to contain 845 
 
 when may operate as stay 846 
 
 by whom may be vacated 846 
 
 for what reasons will be vacated 846 
 
 proceedings under order 848 
 
 referee may be appointed to superintend 848 
 
 power of referee 849 
 
 order should be strictly obeyed 849 
 
 denied where party is not able to produce 847 
 
 party may be examined under oath before referee 849 
 
 when part of book may be sealed 849 
 
 how sealed portions procured to be opened 850 
 
 proceedings, if order not complied with 850 
 
 effect of papers produced as evidence 850 
 
 penalty for disobedience of order 850 
 
 DISMISSAL: 
 
 of complaint, for failure to serve summons 314 
 
 for unreasonable neglect to proceed. 314 
 
 for neglect, when defendant waives right to move for 315 
 
 defendant cannot move for, if counterclaim pleaded 316 
 
 for failure to serve copy, when granted 423 
 
 effect of judgment of 316 
 
 DIVORCE: 
 
 notice published with summons, in action of 226 
 
 counterclaim in action for 453 
 
 DOWER: 
 
 action for, when to be brought 84 
 
 disability, in action for , 110 
 
 what prevents running of statute c" limitations 110 
 
 who defendant, in action for 174 
 
 effect of notice of pendency in action for 241 
 
 undertaking required on injimction to stay proceedings in ... . 594 
 
INDEX. 877 
 
 E. 
 
 EASEMENTS: page 
 
 when encroachment upon, restrained 555 
 
 EJECTMENT: 
 
 proof of authority by attorney to bring 39 
 
 who may be plaintiffs in 166 
 
 by grantee under void conveyance 168 
 
 who must be defendant in 168 
 
 when person claiming title may be joined as defendant in 169 
 
 notice of pendency must be filed in action of 239 
 
 effect of such notice 241 
 
 undertaking required, on injunction to stay proceedings in ... . 594 
 
 does not abate by death 811 
 
 substitution of parties in action for, brought by grantee in name 
 
 of grantor 816 
 
 continuance of action for, by s\irviving tenants in common 820 
 
 when grantee of defendant in, need not be substituted 823 
 
 rules for substitution of parties in 825 
 
 ELISORS: 
 
 when and by whom appointed 29 
 
 ENTRY: 
 
 upon real estate, when sufficient as a claim 85 
 
 EQUITY: 
 
 jurisdiction of Supreme Court, what it includes 65 
 
 actions in, when barred 101 
 
 ESCAPE : 
 
 limitation of action for 100 
 
 ESCHEAT: 
 
 people plaintiff, in action to enforce 154 
 
 EXECUTION: 
 
 levy of, by sheriff 22, 24 
 
 when sheriff cannot purchase under 22 
 
 after warrant of attachment, form of 691 
 
 to what sheriff directed 691 
 
 by whom allowed after death of defendant before judgment. 692 
 
 in what order property sold under 692 
 
 sheriff must regain possession of personal property lost after 
 
 attachment 693 
 
 amendment of 781 
 
 EXECUTORS AND ADMINISTRATORS: 
 
 limitation of action against 97, 106 
 
 by, when cause of action accrued in life of testator 106 
 
 may sue without joining persons benefited 140 
 
 only to sue or be sued in representative character 149 
 
 how judgment against, enforced 149 
 
878 
 
 INDEX. 
 
 EXECUTORS AND ADMINISTRATORS— (OoM/ifiwed) : page 
 
 all considered as one person 149 
 
 separate answers bj-, when allowed 149 
 
 to whom letters testamentary not issued, not necessary party. . 149 
 
 foreign, cannot be sued within this State 149 
 
 what actions they may bring 150 
 
 of deceased partner, when not to be joined as defendant 152 
 
 to be sued personally on contracts made after testator's death . . 152 
 
 counterclaim in action by or against 451 
 
 upon death of sole surviving, r*«eiver may be appointed 709 
 
 when action may be continued by and against 807, 808 
 
 in what action to be substituted 81G-818 
 
 EX PARTE: 
 
 motion, what is 245 
 
 may be heard at special terms adjourned to chambers 9 
 
 requisite of aflidavit on 254 
 
 renewal of 272 
 
 order of judge need not be entered 277 
 
 when may be entered 278 
 
 how vacated 280 
 
 when injunction will be vacated 606 
 
 EXTENSION OF TIME: 
 
 how and by w*hom made 294 
 
 requirement of notice for, in certain cases 294 
 
 affidavit for, what must show 294 
 
 must be served with order 295 
 
 what does not operate as 295 
 
 by whom made, after time has expired 296 
 
 in what eases time cannot be extended 297 
 
 to appeal, by death of party 297 
 
 EXTRA ALLOWANCE: 
 
 after offer of judgment 774 
 
 EXTRAORDINARY TERMS: 
 
 of Supreme Court 8 
 
 F. 
 
 FEES: 
 
 of clerk, how fixed 18, 19 
 
 may be demanded in advance 19 
 
 trial, when payable 19 
 
 of sheriff 26 
 
 of coroner, when acting as sheriff 27 
 
 FIDELITY OR SURETY COMPANY: 
 
 undertaking by 298 
 
 when statement of condition to be made 300 
 
 where to be filed SOP 
 
INDEX. 879 
 
 PILING OF PAPERS: page 
 
 when order for filing will be granted 290 
 
 in special proceedings, where filed 291 
 
 undertaking when to be filed 291 
 
 in what office to be filed 291 
 
 in arrest and bail 524 
 
 on injunction, must be filed 597 
 
 in attachment must be filed C40 
 
 FIRST DISTRICT: 
 
 where motions may be made in 249 
 
 FORECLOSURE : 
 
 who must be plaintiffs in action for 175 
 
 who must be defendants in action for 176 
 
 one liable for payment of mortgage may be joined as 177 
 
 when notice of pendency must be filed in 237 
 
 effect of such notice 243 
 
 receiver in action for 707 
 
 FOREIGN CORPORATION: 
 
 service of summons upon, how made 207 
 
 attachment against 619 
 
 See COEPOEATION. 
 
 FRANCHISE: 
 
 when interference with restrained 556 
 
 FRAUD: 
 
 when action for, barred by limitation 93, 94 
 
 arrest in actions for, see Akrest and Bail. 
 FRIVOLOUS PLEADING: 
 
 judgment on 379 
 
 See Pleading. 
 
 G. 
 
 GENERAL APPEARANCE. See Appearance. 
 
 GENERAL RULES: 
 
 by whom made 2 
 
 binding upon courts of record 2 
 
 must be consistent with code 2 
 
 when to take effect 2 
 
 where none made, what practice controls 2 
 
 See Rules. 
 GUARDIAN AD LITEM: 
 
 not a party 12 
 
 when must be appointed 182 
 
 who may be, for infant 182 
 
 when court may appoint, for incompetent person 199 
 
 See Infant. 
 66 
 
880 INDEX. 
 
 H. 
 
 HABEAS CORPUS: I'^s^ 
 
 may be issued and served on Sunday ^ 
 
 by United States soldier, jurisdiction of ^" 
 
 HIGHWAY: 
 
 action for animal seized in, when barred 100 
 
 when obstruction of restrained ""' 
 
 HOLIDAYS : 
 
 noon to midnight of Saturday to be 6 
 
 to be considered as Sunday '5 
 
 service on, except Sunday, valid 6 
 
 court may be open on, except Sunday 6 
 
 I. 
 
 INFANT: 
 
 leave to sue, in action of partition by 133 
 
 may obtain leave to sue as poor person 135 
 
 when may bring action of partition 170 
 
 plaintiff 182 
 
 guardian ad litem must be appointed for 182 
 
 who may be guardian for 182 
 
 when attorney or officer of court must act 183 
 
 consent must be produced before appointment 183 
 
 application for appointment of guardian for, how made. . 183 
 
 by whom made 183 
 
 to whom made 185 
 
 to whom made in actions for partition .' 184, 185 
 
 what must show 185 
 
 security by guardian for, in action of partition 186 
 
 clerk, when appointed guardian, must give security 187 
 
 guardian of, not to receive property without giving security 187 
 
 court may direct new bond to be given by guardian of 187 
 
 effect of failure to appoint guardian ad litem for 187 
 
 compensation of guardian ad litem for 188 
 
 defendant 182 
 
 must appear by guardian ad litem 182 
 
 application for guardian ad litem for, how made 183 
 
 when to be made 183 
 
 notice of 184 
 
 what must show 185 
 
 when absent from State, how guardian appointed 180, 
 
 when summons may be served on such guardian 186 
 
 duties of guardian ad litem of 187 
 
 such guardian not liable for costs 188 
 
 how summons served upon 198 
 
 when appearance must be made by 235 
 
INDEX. 881 
 
 INFANT— (Coniinuef?) : pagk 
 
 when may be arrested 499 
 
 receiver in action by or against 709 
 
 INJUNCTION: 
 
 with order to show cause, when ceases 279 
 
 defined- 539 
 
 distinction between final and temporary 540 
 
 temporary, when granted by order 539 
 
 object of granting temporary 540 
 
 only granted in cases prescribed in code 541 
 
 granting of, discretionary with the court 541 
 
 only granted in action 542 
 
 plaintiff's rights must be clear 542 
 
 injury must be irreparable 543 
 
 when inadequacy of legal remedy miist appear 543 
 
 when will be refused for laches 543 
 
 only granted when necessary to protect plaintiff's rights 544 
 
 where right to, depends upon nature of action 544 
 
 applies only to suits in equity 544 
 
 can be granted only on complaint 545, 585 
 
 must be asked for in prayer for judgment 422, 545 
 
 restrictions upon granting 545 
 
 where right depends partly upon extrinsic facts 546 
 
 meaning of phrase "subject of the action" 546 
 
 may be granted before service of complaint 546 
 
 various cases w'here injunction will be granted 547 
 
 violation of contract 548 
 
 violation of copyright 548 
 
 corporations 549 
 
 directors of corporations 549 
 
 in action for sequestration 551 
 
 to vacate incorporation 551 
 
 to annul corporation 551 
 
 creditors, when will be restrained from suing 551 
 
 religious corporations 552 
 
 municipal corporations 552 
 
 ordinances of municipal corporations 553 
 
 covenants 554 
 
 easements 555 
 
 franchises 556 
 
 highways 557 
 
 actions at law 558 
 
 actions in foreign courts 559 
 
 application should be made in the action and not by new 
 
 suit 560 
 
 judgments 561 
 
 summary proceedings 563 
 
 nuisances 564 
 
882 
 
 INDEX. 
 
 INJUNCTION— ( Continued ) : page 
 
 quo timri-anto 500 
 
 official acts 567 
 
 ^ tax-payer's action 567 
 
 various miscellaneous ofScial actions 568 
 
 to restrain arrest 508 
 
 personal services 570 
 
 libel, publication of 571 
 
 private letters 571 
 
 publications 572 
 
 patents 572 
 
 taxes and assessments 572 
 
 trade marks, trade names, and unfair competition 573 
 
 trespass : 576 
 
 torts 577 
 
 waste • 578 
 
 water rights 579 
 
 proceedings to obtain order 581 
 
 application may be granted before service of summons 581 
 
 must be made before judgment 581 
 
 cannot be granted after judgment 581 
 
 by whom granted 581 
 
 at what term made 582 
 
 may be granted by appellate division 582 
 
 when can only be granted by court 582 
 
 power of judge to grant, where derived 582 
 
 in what cases county judge may grant 583 
 
 when may be made with or without notice 583 
 
 in what case notice must be given 584 
 
 not an ordinary proceeding in action 584 
 
 when continued after order to show cause 584 
 
 papers on which granted 585 
 
 when complaint must accompany application. . . 585 
 
 affidavit only effective as proof of facts alleged 585 
 
 when complaint need not accompany application 586 
 
 verified complaint, when sufficient as affidavit 586 
 
 facts must be shown in, by positive affidavit 580 
 
 when allegations made on information and belief sufficient 580 
 
 must be filed forthwith 587 
 
 answer containing counterclaim 587 
 
 undertaking to be given on application 594 
 
 mvist be, on granting, to stay proceedings 594 
 
 what required to stay proceedings on judgment for money. 59-1 
 when bond may be given in lieu of payment into court .... 590 
 
 to stay proceedings in action for ejectment or dower 594 
 
 ! plaintiff may supply, after injunction, on terms 597 
 
 required to restrain summary proceedings 596 
 
 wrhat, to restrain judgment obtained by fraud 596 
 
INDEX. 883 
 
 INJUXCTION— (C'oK<iH.«ed) : page 
 
 when money paid into court, may be paid over to party. . 590 
 
 proceedings in such case, if injunction vacated 597 
 
 must be filed 597 
 
 in actions relating to real property 59S 
 
 in what action security not required 59S 
 
 order should recite grounds for 588 
 
 what should show 588 
 
 parties only to be restrained by 589 
 
 agent of defendant, may be restrained by 589 
 
 service of order for 589 
 
 papers on which granted must be served with 589 
 
 imdertaking must be served with 590 
 
 order cannot be served before summons 589 
 
 effect of 590 
 
 must be obeyed, if court had jurisdiction, although irregu- 
 lar 590 
 
 parties to action, bound by 590 ■ 
 
 who bound by as agent 590 
 
 third parties not restrained by 590 
 
 when notice of, without service, sufficient to bind party. . . . 591 
 
 how must be obeyed 591 
 
 punishment for violation of 592 
 
 who will be punished for violation of 592 
 
 advice of counsel, how far protected in such case 592 
 
 damages sustained by, to what extent plaintiff liable for 599 
 
 when right to, accrues 600 
 
 how ascertained 601 
 
 proceeding for, hot part of action 001 
 
 order of reference to ascertain 602 
 
 who entitled to notice of proceeding, under 602 
 
 proceedings upon reference 602 
 
 what allowed 603 
 
 what allowed, in action of ejectment or dower 604 
 
 counsel fees, what allowed 604 
 
 allowed to corporation, etc., when defendant, officer, etc. . . . 605 
 
 action on undertaking 605 
 
 vacating or modifying, order 606 
 
 when motion for, may be made without notice 606 
 
 when appellate division will hear application without 
 
 notice 606, 607 
 
 when will be vacated ex parte 606 
 
 when notice of motion must be given 607 
 
 by whom motion to vacate may be made 607 
 
 when plaintiff may read papers in opposition to motion .... 607 
 proof required, when made on papers on which granted .... 607 
 in such case, plaintiff cannot make new proof to sustain. . . 607 
 verified complaint, when referred to, to sustain 007 
 
884 INDEX. 
 
 INJUNCTION— ( Continued ) : page 
 
 Avhen second application may be made 608 
 
 effect of verified answer on hearing motion 586, 608 
 
 when injunction will be dissolved on motion 608 
 
 not vacated for irregular service tJOO 
 
 not vacated for defect of parties 609 
 
 motion not heard where action discontinued 609 
 
 on giving undertaking by defendant 598, 610 
 
 when merged in final judgment 610 
 
 not dissolved or vacated where cause removed to Circuit 
 
 Court of United States 611 
 
 effect of subsequent proceedings in the action 611 
 
 Soe, also, Provisional Remedies. 
 INJURY: 
 
 when action for barred 93, 99 
 
 INSPECTION WITH COPY. Sec Discovert of Books and Papers. 
 
 INSTRUMENT, FOR PAYMENT OF MONEY ONLY: 
 
 how alleged in pleading 329 
 
 verification in action upon 340 
 
 INTERPLEADER: 
 
 when will be ordered 308 
 
 what moving party must show 309 
 
 money or property must be brought into court 308, 311 
 
 when motion for will be denied 311 
 
 in action against savings bank 312 
 
 order for, what may provide 313 
 
 how appealable 313 
 
 costs upon 313 
 
 IRREGULARITY: 
 
 when motion made for relief on ground of 246 
 
 form of notice of such motion 264 
 
 notice, what must specify 264 
 
 when notice need not specify. 803 
 
 affidavit of merits not required on such motion 803 
 
 what are 798 
 
 distinction between technical and substantial 799 
 
 who may take advantage of 800 
 
 remedy for 801 
 
 motion to vacate must be made promptly 801 
 
 motion to vacate judgment for, when to be made within one year 802 
 
 only irregular proceeding set aside, on motion for 803 
 
 how waived 804 
 
 what, bj' general appearance 804 
 
 no waiver, without knowledge of facts SOfi 
 
 intention to waive, when inferred 80.=) 
 
 what cured by verdict or judgment 80.5 
 
INDEX. 885 
 
 ISSUES : PASB 
 
 motion for settlement of, "when made 247 
 
 formed by copy of pleading served 334 
 
 J. 
 
 JOEFAIL: 
 
 statute of 805 
 
 JOINDER OF CAUSES OF ACTION. See Complaint. 
 
 JOINT STOCK ASSOCIATION: 
 
 actions by or against, in name of president or treasurer 146 
 
 to what bodies provision applies 146, 147 
 
 includes suits by or against members 146 
 
 officers cannot all be joined 146 
 
 JUDGE : 
 
 of certain abolished courts to be Supreme Court justices 3 
 
 adjournments in absence of 11, 12 
 
 shall not sit where a party, or interested 12, 13, 14 
 
 when may act, although interested 12, 13, 14 
 
 how disqualified by consanguinity or affinity 12, 13, 14 
 
 not to decide question argued, when not present 14 
 
 not to be interested in costs 14, 15 
 
 not disqualified, because resident of town interested in action. . . 15 
 
 not to practice in his own court 15 
 
 law partner or clerk not to practice in his court 15 
 
 of court of appeals, not to practice 15 
 
 of certain courts of record not to practice 15 
 
 not to sit in review of his own decision 15 
 
 when disqualified by age 17 
 
 power of, of Supreme Court 65 
 
 county judges in certain cases, powers of 73, 77 
 
 powers of, out of court 77 
 
 when court is of limited jurisdiction 77 
 
 who may make orders out of court 77 
 
 cannot grant stay of proceedings for more than twenty days .... 267 
 when may vacate order 78, 280 
 
 JUDGMENT: 
 
 entered on Sunday, void 5 
 
 may be entered on election or town meeting day 6 
 
 void by disqualification of judge. 13-14 
 
 when may be entered or docketed 20 
 
 attorney may satisfy within two years 40 
 
 upon unauthorized appearance, may be set aside 43 
 
 limitation of action on 90 
 
 when leave to sue necessary 121 
 
 from what court leave to be obtained 122 
 
 may be granted, nuno pro tunc 123 
 
 how entered against defendants severally liable 164 
 
886 
 
 INDEX. 
 
 JUDGMENT— (C'oH<J;i«cd) : page 
 
 when may be taken without application to the court 193 
 
 motion to set aside, when made 243 
 
 how pleaded 326 
 
 on account of frivolousness of answer 379 
 
 See, also, Pleading. 
 
 demand for, in complaint 417 
 
 demand for in answer 456 
 
 interlocutory may be demanded 421 
 
 on counterclaim 455 
 
 on failure to reply 460 
 
 when proceedings upon will be restrained 561 
 
 undertaking required on injunction to stay proceedings upon. . 594 
 
 how levy made upon 653 
 
 after attachment, how to be satisfied 692 
 
 on service by publication, on what property enforced 69-3 
 
 when entered for part of claim admitted 764 
 
 See Satisfaction — Compkomise. 
 
 confession of, may be amended 783 
 
 how may be amended '. 784 
 
 motion to vacate for irregularity to be made within one year . . 802 
 
 what defects cured by 805 
 
 action not abated after interlocutory 830 
 
 cannot be entered on verdict, etc., rendered after death of party. 831 
 
 JUDGMENT CREDITOR'S ACTION: 
 
 when barred by statute of limitations .'. 95 
 
 against executors or administrators, how enforced 149 
 
 receiver in 705 
 
 JURISDICTION: 
 
 of courts of record 55 
 
 cannot be exercised without the State 55 
 
 how restricted by constitution and laws of United States 53 
 
 intention to deprive courts of, never presumed 56 
 
 in suits bj' and against foreign corporations 56, 59 
 
 on causes of action arising outside of the State 56 
 
 for specific performance of contract to convey lands without the 
 
 - State • 57 
 
 in certain cases limited 57 
 
 in patent cases 58 
 
 as to lands outside of the State 58 
 
 as to penal laws of another State 59 
 
 on habeas corpus by United States soldier 59 
 
 as to property of non-resident attached within the State 59 
 
 in ejectment, against person claiming as United States officer. . 60 
 
 among what courts divided 60 
 
 when acquired in an action 189 
 
 by substituted service of summons 215 
 
INDEX. 
 
 887 
 
 JURISDICTION— ( Continued ) : page 
 
 of person, given by general appearance 231 
 
 of subject matter, not given by appearance 232 
 
 irregularity which goes to, when cannot be waived 804 
 
 of various courts, see their respective titles. 
 
 JURORS : 
 
 may be drawn for adjourned term 11 
 
 JURY: 
 
 may be discharged on Sunday 4 
 
 no instructions to be given to, on Sunday 6 
 
 cannot assess damages or deliver verdict on Sunday 5 
 
 JUSTICES: 
 
 of Supreme Court, to appoint special and trial terms in certain 
 
 cases 7, 8 
 
 judges of certain abolished courts to be 3 
 
 may sit in another department if duly designated 8 
 
 not to practice 15 
 
 powers of 65 
 
 what may do, out of court 77 
 
 when may make orders in action in county court 77 
 
 JUSTICE'S COURT: 
 
 limitation of actions, upon judgment of 91 
 
 L. 
 
 LACHES: 
 
 what excuses, on motion to vacate for irregularity 801 
 
 LANDLORD: 
 
 when possession of tenant, not adverse to 88 
 
 LEAVE TO SUE: 
 
 when necessary 121 
 
 in action on judgment 121 
 
 in action on mortgage 124 
 
 in action on official bond 125, 304 
 
 in action to dissolve a corporation 128 
 
 in action by receiver 130 
 
 in action against receiver 131 
 
 in action by or against committee of incompetent person 132 
 
 in action of partition by infant 133 
 
 as poor person 134 
 
 when party may have leave to defend 137 
 
 receiver, must be obtained from court 718 
 
 LIBEL: 
 
 rule for pleading in 330 
 
 when publication of, restrained by injunction 571 
 
 LIEN: 
 
 of attorney for services 44 
 
SS8 
 
 INDEX. 
 
 LIEN — {Continued): page 
 
 of attorney, whether notice of required 50 
 
 right of parties to settle without regard to '. 48 
 
 how may be enforced 48 
 
 of one suing as a poor person 51 
 
 LIMITATION OF ACTION: 
 
 includes special proceedings .• 118 
 
 by people for the recovery of real property 82 
 
 wliat adverse possession bars people 82 
 
 by party other than people, for recovery of real property 83 
 
 for dower • 84 
 
 when limitation begins to run against real property 84 
 
 entry, when sufficient as a claim 85 
 
 presumption of title 85 
 
 occupation presumed to be under legal title 85 
 
 possession under written title, what included in 85 
 
 when deemed adverse 85 
 
 possession not founded on written instrument, what included in 87 
 
 when deemed adverse 87 
 
 possession without claim, not sufficient 88 
 
 when possession of tenant, not adverse to landlord 88 
 
 right not impaired by death of occupant 89 
 
 what disabilities prevent running of the statute 89, 110 
 
 actions other than for the recovery of real property 90 
 
 Judgment or decree of court of record 90 
 
 presumption as to payment of 90 
 
 how presumption overthrown 90 
 
 how presumption of payment pleaded 91 
 
 to redeem from mortgage, when barred 92 
 
 on sealed instrument 92 
 
 for specific performance 92 
 
 to enforce payment of legacy charged on land 92 
 
 forty years, what actions barred in 82 
 
 twenty years, what actions barred in 83-90 
 
 six years, what actions barred in 93 
 
 five years, what actions barred in 96 
 
 three years, what actions barred in 97 
 
 two years, what actions barred in 99 
 
 one year, what actions barred in 100 
 
 ten years, wliat actions barred in 101 
 
 on contract, when barred in six years 92 
 
 against coroner or constable 97, 100 
 
 for jjenalty or forfeiture 99 
 
 to the people 99 
 
 given to the prosecutor 100 
 
 against executor or trustee 97 
 
 for negligence 98, 101 
 
 for personal injury 93, 99 
 
INDEX. S8U 
 
 LIMITATION OF ACTIONS— (Continued) : page 
 
 for death by negligence 99 
 
 to annul a marriage 96 
 
 for escape 100 
 
 to recover strays seized on the highway 100 
 
 to recover excess of interest paid 100 
 
 against trustee, for debt of corporation 100 
 
 for equitable relief 101 
 
 by the people for spoliation 102 
 
 applies to the people 102 
 
 for claims against the people 103 
 
 against non-resident 103 
 
 against foreign corporation 103 
 
 what prevents running of statute 105 
 
 where defendant dies without the State 105 
 
 between death, and granting of letters 105 
 
 where plaintiff dies before expiration of time 106 
 
 against executors or administrators 107 
 
 effect of non-suit granted 108 
 
 effect of an injunction on time limited lOS 
 
 reversal of judgment, when extends time of 108 
 
 when extended, by submission to arbitration 109 
 
 discontinuance, effect of, where counterclaim pleaded 109 
 
 what actions not within the statute 110 
 
 computation of time under statute Ill 
 
 in action on open account Ill 
 
 by principal against agent for negligent act Ill 
 
 where demand necessary 112 
 
 against trustee for detention of property 112 
 
 on deposits 112 
 
 on demand notes 112 
 
 on cheeks 112 
 
 by trustee against cestui que trust 113 
 
 by surety or endorser 113 
 
 by attorney for services 113 
 
 by factor 113 
 
 for false imprisonment 114 
 
 in conversion 113 
 
 for tort 114 
 
 against director for failure to report 114 
 
 cause of action barred, not a defense or counterclaim 114 
 
 acknowledgment, or new promise to prevent running of the 
 
 statute, must be in writing 114 
 
 what is sufficient to prevent running of statute 114 
 
 by whom acknowledgment maybemade 115 
 
 how statute must be pleaded to be available 117 
 
 when general statute does not apply 118 
 
890 
 
 INDEX. 
 
 LnilTATION" OF ACTION— (Continued) : page 
 
 when action deemed hegun 118 
 
 attempt to commence action, effect of 119 
 
 LIS PENDENS. See Notice of Pendekcy. 
 
 LOAN COMMISSIONERS : 
 
 action against, liow brought 156 
 
 LUNATICS: 
 
 how summons served upon 198 
 
 when court may appoint guardian ad litem for 199 
 
 receiver in action by or against 709 
 
 M. 
 
 MANDATE : 
 
 sheriff must receipt for 23 
 
 amendment of 781 
 
 MARRIAGE: 
 
 limitation of action to annul 96 
 
 of woman, does not abate action 812 
 
 MARRIED WOMAN: 
 
 statute of limitations runs against 112 
 
 MERITS, AFFIDAVIT OF. See Affidavit op Merits. 
 
 MISTAKE: 
 
 of officer of court, how corrected 18 
 
 of court, party not to suffer by 770 
 
 relief against, when 796 
 
 must be applied for within one year 796 
 
 notice required to set time running 796 
 
 power of court to relieve against, not given by statute 797 
 
 what will be relieved against 797 
 
 relief against, discretionary 797 
 
 relief will be denied for laches 798 
 
 MORTGAGE: 
 
 when leave to sue upon necessary ; 124 
 
 who must be plaintiffs in action to foreclose 175 
 
 who must be defendants in action to foreclose 176 
 
 person liable for deficiency may be joined as defendant 177 
 
 when notice of pendency must be filed in action of 237 
 
 MOTIONS: 
 
 defined 245 
 
 contested cannot be heard in chambers 9 
 
 when made out of court in first district 78 
 
 not a remedy 245 
 
 ex parte and contested 245 
 
 enumerated, defined 245 
 
 non-enumerated, defined ' 246 
 
 where made 240 
 
 before a judge out of court 246 
 
 in first district 249 
 
INDEX. 891 
 
 MOTIONS— ( Continued ) : pack 
 
 Avhen may be lu'arcl by another judge 250 
 
 must be made at special term, exceptions 248 
 
 contested cannot be made at chambers 249 
 
 in seventh judicial district 24!) 
 
 for irregularity, when made 24G 
 
 to set aside judgment, when made 24(3 
 
 to change place of trial, when made 247 
 
 for settlement of issues, when made 247 
 
 to correct pleadings, when made 247 
 
 requisites of papers, on 50 
 
 when defects iii waived 250 
 
 copies of papers must be served with notice of 251 
 
 when copies need not be served 251 
 
 only papers served, or referred to in notice to be read, on 251 
 
 how new facts presented by moving party on 251 
 
 Sec, also. Affidavit. 
 Sec, also, Petition. 
 
 opposing affidavits on 203 
 
 See, also. Notice of Motion. 
 
 costs on, must be asked if desired 264 
 
 See, also, Okdee to Snow Cause. 
 See, also, Stay op Pkoceedinos. 
 
 when notice of, may be countermanded . , 26S 
 
 hearing, order of 269 
 
 objections how taken on 269 
 
 new proof, how may be presented 269 
 
 new proof, when allowed 209 
 
 reference, when ordered upon hearing of '. . . . 269 
 
 mode of examination of witness on 270 
 
 adverse party not to be examined 270 
 
 default, how taken on 270 
 
 what relief may be granted on default 270 
 
 when default will be opened 271 
 
 contested motion can only be renewed by leave of court 271 
 
 when leave will be granted 271 
 
 how motion made 272 
 
 practice on motion to renew 272 
 
 renewal of ex parte motion 272 
 
 to whom application for to be made 272 
 
 when order for must be vacated 272 
 
 renewal without leave, contempt 273 
 
 re-argument, application for 273 
 
 conditions may be imposed, upon granting discretionary 270 
 
 acceptance of 279 
 
 when must be performed 279 
 
 how performed 280 
 
S''''^ INDEX. 
 
 UOTIO'SS— (Continued) : page 
 
 costs of 280 
 
 discretionary 281 
 
 amount of 281 
 
 when proceedings stayed, for non payment of 281 
 
 waiver of such stay 282 
 
 when stay may be insisted on in First Department 282, 
 
 costs of, when taxed in costs of action 282 
 
 for interpleader, see Inteepleader. 
 
 to make pleading definite and certain 388 
 
 to vacate or modify order of arrest 515 
 
 See, also. Arrest and Bail. 
 
 to vacate or modify injunction 606 
 
 See, also, Ih^junction. 
 
 to vacate attachment for irregularity 676 
 
 See, also, Attachment. 
 for appointment of receiver, see Receivee. 
 
 for provisional remedy, to be decided within twenty days 752 
 
 for amendment 794 
 
 to vacate for irregularity, should be made promptly 801 
 
 for substitution of parties, see Continuance of Action. 
 
 cannot be decided after death of party 831 
 
 for discovery, see Discovery of Books and Papers. 
 MUNICIPAL CORPORATION: 
 
 people may be plaintiff in action for conversion of funds of . . . . 154 
 
 people may be plaintiff in action to restrain 155 
 
 taxpayers may sue to prevent waste of property of 157 
 
 how summons served upon 205 
 
 N. 
 
 NE EXEAT: 
 
 writ of, abolished •. .483, 496 
 
 NEGLIGENCE: 
 
 action for, when barred 98, 101 
 
 after death by, when barred 99 
 
 NEGOTIABLE PAPER: 
 
 pleading upon 329 
 
 NON-RESIDENT: 
 
 action against, when barred 103 
 
 may obtain leave to sue as poor person 135 
 
 how served by publication 21S 
 
 attachment against 618 
 
 Judgment against, on service by publication, against what prop- 
 erty enforced 693 
 
 NOTARY: 
 
 certificate of protest of, when presumptive evidence 336 
 
INDEX. 893 
 
 NOTICE : TAGE 
 
 application for guardian ad litem 183 
 
 of no personal claim, when may be served with summons 107 
 
 of service by publication, to be published with summons 225 
 
 publication of, with summons, in matrimonial actions 226 
 
 in action of partition 226 
 
 of application for deposition 261 
 
 when must be in writing 283 
 
 to produce, when may be by parole 283 
 
 of entry of judgment, when does not limit time to appeal 283 
 
 publication of, see Publication. 
 
 when required in application for injunction 584 
 
 of application for discharge of property from attachment 684 
 
 of application for receiver of corporation, to whom given 735 
 
 to creditors, by receiver of corporation 740 
 
 of appeal, w'hen amendment of 777, 791 
 
 NOTICE OF MOTION: 
 
 cannot be served on Sunday 5 
 
 must be for the first day of term, exceptions 263 
 
 form and contents of 264 
 
 must be accompanied with copies of papers 264 
 
 for irregularity, form of 264, 803 
 
 relief, how stated in 264 
 
 costs must be asked for, if desired 264 
 
 service of 264 
 
 when may be countermanded 268 
 
 for judgment on account of frivolous pleading 380 
 
 when must be given in vacating injunction 606 
 
 NOTICE OF PENDENCY: 
 
 when may be filed 237 
 
 in action of foreclosure, when must be filed 237 
 
 when notice becomes operative '. 238 
 
 in what actions may be filed 238 
 
 in action of ejectment . 239 
 
 where warrant of attachment has been issued 239 
 
 contents of 24!) 
 
 in foreclosure cases 240 
 
 description of lands in 240 
 
 recording of 240 
 
 when may be filed by defendant 240 
 
 effect of 241 
 
 in action of foreclosure 241 
 
 in action for determination of claim to real property 241 
 
 how far commencement of action 241 
 
 amendment of 242 
 
 when new notice required after amendment 243 
 
 when notice may be cancelled 243 
 
894 INDEX. 
 
 NOTICE OF PENDENCY— (CoretmMed) : page 
 
 upon warrant of attachment ^^^ 
 
 cancellation of, after attachment vacated *596 
 
 NOTICE OF TRIAL: 
 
 may be given for adjourned term H 
 
 NUISANCE : 
 
 parties to action for a. ■'^°" 
 
 when will be restrained ^^^ 
 
 o. 
 
 OATH. iS'ee Affidavit. 
 
 OCCUPATION: 
 
 of real property under written instrument 85 
 
 when deemed adverse 85 
 
 of real property, not founded on written instrument 87 
 
 what included in 87 
 
 when deemed adverse 87 
 
 OFFER OF JUDGMENT. See Compromise. 
 OFFER TO LIQUIDATE. See Damages. 
 
 OFFICER: 
 
 limitation of action against 97, 100 
 
 continuance of action by or against 824 
 
 OFFICIAL ACTS: 
 
 when will be restrained 567 
 
 OFFICIAL BONDS: 
 
 leave to sue on 125 
 
 of public officers generally 125 
 
 who are such officers 127 
 
 where action brought 127 
 
 when notice of application required 127 
 
 when people may sue upon 155 
 
 See, also. Name of Officer, under its title. 
 
 OMISSIONS. See Mistakes. 
 
 ORDER: 
 
 defined 245, 274 
 
 when made out of court, in first district 77 
 
 what judge may make, out of court 77 
 
 how such order vacated 77 
 
 for substituted service of summons, contents of 216 
 
 must be filed, within ten days 217 
 
 for publication of summons, by whom made 22.3 
 
 must be made by judge 223 
 
 what must contain 223 
 
 by whom made 274 
 
 by whom should be drawn 274 ' 
 
INDEX. 895 
 
 ORDER — {Continued) : page 
 
 when slioukl be submitted to the court 274 
 
 how settled 275 
 
 remedy, where order does not comply with decision 275 
 
 form of 275 
 
 all papers used on motion should be recited in 275 
 
 how reference made to petition on which granted 276 
 
 when preliminary objections should appear 270 
 
 grounds of, when proper to be stated 270 
 
 how signed, or certified 276 
 
 entry of ' 277 
 
 how to be entered 277 
 
 by whom entered 277 
 
 penalty for failure to enter 277 
 
 ex parte, need not be entered 277 
 
 when ex parte may be entered 27S 
 
 when judge may require to be entered 278 
 
 papers used on, must be filed 278 
 
 when it takes effect 278 
 
 when decision deemed made .' 278 
 
 effect on stay of proceedings 279 
 
 must be obeyed, though erroneous 279 
 
 copj' of, when must be served 279 
 
 how service should be made 279 
 
 effect of conditions in 279 
 
 modification of 280 
 
 costs in 281 
 
 ex parte, how vacated 280 
 
 one judge cannot vacate order made by another 280 
 
 of interpleader 313 
 
 for bill of particulars, form of 357 
 
 for amendment of pleading, what should provide 368 
 
 for arrest, by whom granted 511 
 
 when may be granted 512 
 
 contents of order 514 
 
 See, also, Aeeest asd Bail. 
 
 for injunction, what should recite 587 
 
 remedy for irregularity in 801 
 
 for discovery, see Discovekt op Books and Papers. 
 ORDER TO SHOW CAUSE: 
 
 what judge may make 78 
 
 when county judge cannot make 78 
 
 when proper 265 
 
 in what cases will be made 265 
 
 what must be stated to obtain 265 
 
 is discretionary 265 
 
 requirements of the order 265 
 
 57 
 
8fl6 INDEX. 
 
 OKDER TO SHOW CAV8E—{ConUnued) : page 
 
 by whom made 206 
 
 how served 266 
 
 why proceedings should not be stayed 26 / 
 
 for appointment of receiver, see Receiver. 
 
 amendment of ''^'■ 
 
 OVERSEERS OF THE POOR: 
 
 when may sue or be sued 156 
 
 P. 
 
 PAPERS: 
 
 filing of, see Filing of Papers. 
 service of, see Service. 
 
 on motion, requisites of 250 
 
 when defects in, waived 250 
 
 on which order granted, must be filed 278 
 
 how to be endorsed and subscribed 283 
 
 must be f olioed 284 
 
 to be legibly written 284 
 
 when order for filing will be granted 290 
 
 in arrest and bail 496, 505 
 
 must be filed 524 
 
 on which injunction granted 585 
 
 See, also, Injunction. 
 
 upon granting attachment 630 
 
 See, also. Attachment. 
 discovery of, see Discovery of Books and Papers. 
 PARTIES : 
 
 guardians ad litem not 12 
 
 in partition when served with pleadings 12 
 
 who are 139 
 
 who may be joined as plaintiffs 139 
 
 who may be defendants 139 
 
 where one will not consent to join as plaintiff 140 
 
 where party in interest must sue as plaintiff 140 
 
 who are necessary 141 
 
 same person cannot be plaintiff and defendant 147 
 
 in action by agent or principal 143 
 
 by assignees 144 
 
 by 6r against an incorporated association 145 
 
 by or against corporations, directors or stockholders 147 
 
 by or against executors or administrators 149 
 
 in action against corporations 147 
 
 in action by or against directors or stockholders 148 
 
 against officers or agents of corporations, for malfeasance . . 148 
 
 in action against directors of corporation 148 
 
 in action against stockholders of corporation 149 
 
INDEX. 897 
 
 PARTIES — ( Coiit inued } : I'age 
 
 in action against public officers lo3 
 
 when people maj' sue, see People. 
 
 in action against town ofBcers 155 
 
 in action by ov against county officers 155 
 
 in action by or ag'-inst tov n 156 
 
 in action to prevent waste of property of municipal cor- 
 poration 157 
 
 in action to vacate audit of accounts 157 
 
 trustees of an express ti-ust 157 
 
 when beneficiaries may sue 158 
 
 where one may sue or be sued for all 140, 159 
 
 what pleading in such case must show 159 
 
 who may share in proceeds of judgment 160 
 
 plaintiff controls action 161 
 
 other creditors may come in after judgment 161 
 
 when other parties cannot come in 161 
 
 united in interest must be joined 140, 161 
 
 tenants in common when may be joined 162, 164 
 
 when may sue severally 162, 164 
 
 defendants jointly and severally liable 161, 164 
 
 defendant in action on written instrument 162, 164 
 
 who may be joined as defendants in action for tort 163 
 
 in ejectment, who may be plaintiffs 166 
 
 who must be defendants 168 
 
 when person claiming title may be joined as ' 169 
 
 who may be plaintiff's in partition 170 
 
 when partition may be brought by infant 170 
 
 who should be joined as defendants in partition 172 
 
 when creditor may be defendant in such action 174 
 
 who must be defendant in action for dower 174 
 
 in action to foreclose mortgage 175 
 
 in action to compel determination of claim to real property 178 
 
 in action for waste 179 
 
 in action for a nuisance 180 
 
 when the defendant or his name is unknown 180 
 
 infant plaintiffs and defendants 182 
 
 See, also. Infant. 
 guardian ad litem, sec Ijsjfant. 
 
 service of papers on, how made 286 
 
 when privileged from arrest 503 
 
 may take advantage of irregularity 800 
 
 substitution upon death of, see CoNTiifUANCE of Actiox. 
 
 substitution, on transfer of interest of 821 
 
 rules for substitution of in ejectment 825 
 
 in partition 826 
 
 where cross action may be ordered on motion to bring in new. . . 829 
 
«98 
 
 INDEX. 
 
 PARTITION": PAGE 
 
 by infant, leave to sue, in action of 133 
 
 when people, proper parties defendant 155 
 
 who may be plaintiffs in 1"0 
 
 when may be brought by infant I'O 
 
 who should be joined as defendants in 172 
 
 when creditor may be joined as 174 
 
 Iiow unknown defendant served in 174 
 
 guardian ad litem for infant in 184 
 
 See, also, Infant. 
 
 ■effect of filing notice of pendency of action in 241 
 
 receiver in 707 
 
 A^•hen grantee of defendant may be substituted in action of . . . . 822 
 
 rules for substitution of parties in 826 
 
 PAYMENT: 
 
 prevents running of statute of limitations 90 
 
 presumption of, how pleaded 91 
 
 PAYMENT INTO COURT: 
 
 when may be ordered 754 
 
 effect of 754 
 
 of money upon tender 755, 756 
 
 how made 758 
 
 when no tender has been made 760 
 
 order for, required 760 
 
 costs after 760 
 
 what admitted by 761 
 
 how money to be kept 762 
 
 application for payment out of court 762 
 
 order to be countersigned 763 
 
 PENALTY OR FORFEITURE: 
 
 action for, when barred 97, 99 
 
 when people to be plaintiff' in action icr 152 
 
 when summons to contain reference to statute in action for. . . 195 
 
 what reference sufficient 196 
 
 how such reference waived 196 
 
 PENDENCY OP ACTION. See Notice of Pendenct. 
 PEOPLE: 
 
 limitation of action by 82, 102 
 
 Avhai adverse possession bars 82 
 
 claims against, when barred 103 
 
 to be plaintiff, in action to suspend officer of corporation 152 
 
 to compel officer of corporation to account 152 
 
 to dissolve corporation 153 
 
 to annul corporation 153 
 
 of quo warranto • 154 
 
 for embezzlement, or conversion of property of municipal 
 corporation 154 
 
INDEX. 809 
 
 FEOFLE— {Continued) : page 
 
 to enforce penalty of forfeiture 154 
 
 to enforce escheat 154 
 
 to enforce forfeiture for treason 154 
 
 in State writ 134 
 
 upon undertalcing, in proceedings for contempt 154 
 
 to establisli charitable trust 155 
 
 to restrain municipal corporation 155 
 
 upon official bonds 155 
 
 to recover draft remitted for taxes 155 
 
 when may be party defendant 155 
 
 in partition action 155 
 
 when proper plaintiffs in action for nuisance 180 
 
 no counterclaim allowed in action by . . . 453 
 
 PETITIOX : 
 
 when motion may be made on 2G0 
 
 requisites of 260 
 
 amendment of 792 
 
 PLACE: 
 
 how pleaded 325 
 
 PLACE OP TRIAL: 
 
 when motion made to change 245 
 
 stay of proceedings on motion to change 268 
 
 PLAINTIFF: 
 
 who may be joined as 139 
 
 one who will not join as, to be made defendant 140 
 
 real party in interest must sue, as 140 
 
 who may be joined as 141 
 
 agent must sue in name of principal 143 ' 
 
 when agent may sue in his own name 143 
 
 assignee, when proper plaintiff 144 
 
 joint stock association, president or treasurer may sue as 146 
 
 when stockholders of corporation may join as 147 
 
 when executor or administrator may be 150 
 
 when people may be plaintiff, see People. 
 See, also, Trustee of Express Trust. 
 
 when beneficiaries may sue 140, 157 
 
 where one may sue or be sued for all 159 
 
 See, also. Parties. 
 
 persons jointly interested, must be joined as 1.61 
 
 in ejectment, who may be 166 
 
 who may be, in partition 172 
 
 in foreclosure, who may be 175 
 
 in action to compel determination of claim to real property. . . . 178 
 
 in action for waste 179 
 
 in action for nuisance 180 
 
 when private person may be in such action 180 
 
900 
 
 INDEX. 
 
 PLAINTIFF— ( Continued ) : page 
 
 when may sue to collect attached property 662 
 
 when may join with sheriff in suit brought to collect attached 
 
 property 663 
 
 judgment for, when part of claim admitted by answer 764 
 
 See, also. Satisfaction. 
 
 when may make offer of compromise 772 
 
 death of. See Continuance of Action. 
 discovery by. See Discovery of Books and Papers. 
 PLEADING: 
 
 presumption of payment, how pleaded 91 
 
 motion to correct, when made 245 
 
 when and where filed 290 
 
 forms of, abolished 318 
 
 facts only to be stated 320 
 
 how facts to be stated 320, 323 
 
 hypothetical pleading, when held good 321 
 
 legal conclusions not to be stated in 321 
 
 facts which must be proved, must be pleaded 322 
 
 facts necessary to show right to relief, should be stated in 322 
 
 what facts need not be pleaded 322 
 
 what certainty required in stating facts in 324 
 
 time, how stated in 324 
 
 place, how stated in 325 
 
 facts should be positively stated in 325 
 
 when may be stated on information and belief in 326 
 
 construction of allegation upon information and belief in 326 
 
 how to allege private statute in 326 
 
 account 326, 351 
 
 judgment 327 
 
 conditions precedent 328 
 
 instrument for payment of money only 329 
 
 slander and libel 330 
 
 how to be written and endorsed 331 
 
 separate statement of cause of action or defense in 331 
 
 form of such statement 331 
 
 remedy for failure to state separately 332 
 
 each count to be complete in itself 332 
 
 same cause of action or defense not to be pleaded in different 
 
 counts 332 
 
 subscription of 333 
 
 service of 333 
 
 service of answer on co-defendant 334 
 
 issue determined by copy of, served 334 
 
 verification of, see Verification. 
 
 allegations of, to be liberally construed 346 
 
 rule requiring liberal construction of, how applied 346 
 
INDEX. 901 
 
 PLEADING — {Continued): page 
 
 what will be assumed in construction of 347 
 
 construction of, upon demurrer 347 
 
 construction of, more liberal on trial than on demurrer 347 
 
 clerical errors, when disregarded in 348 
 
 when construed most strongly against pleader 348 
 
 where prayer for relief may be consulted in construction of . . . 349 
 
 what deemed admitted in construction of 349 
 
 facts admitted by, cannot be contradicted 350 
 
 amendments of, see Amendment. 
 supplemental, see Suppplemental Pleading. 
 
 application for judgment on account of frivolousness of 379 
 
 on what pleading such judgment may be granted 379 
 
 when granted 380 
 
 when not granted 380 
 
 what relief must be asked in notice of motion for 380 
 
 when leave to amend will be granted on motion for 381 
 
 order granting, appealable 381 
 
 sham pleading, see Answer. 
 
 irrelevant, redundant or scandalous matter may be stricken out 385 
 
 motion for, when to be made 387 
 
 waiver of right 387 
 
 what is irrelevant matter in 385 
 
 what is redundancy in 386 
 
 granting of motion to strike out, discretionary. 386 
 
 what is scandalous matter in 386 
 
 will not be permitted to remain on record 386 
 
 attorney will be charged with costs on motion to expunge. . 386 
 
 when made definite and certain 388 
 
 when motion for will be denied 389 
 
 when discovery granted to enable party to frame 838 
 
 See, also, Discovery of Books and Papers — Com- 
 plaint — Answer — Counterclaim — Reply — De- 
 murrer. 
 POOR PERSON: 
 
 leave to sue as 134 
 
 application how made 134 
 
 when application may be granted 135 
 
 who may apply 135 
 
 person admitted to sue as, need not pay fees 136 
 
 when order granting leave may be annulled 136 
 
 when party may defend as poor person 137 
 
 leave to sue as, does not authorize appeal by 137 
 
 when costs granted to, must be paid to attorney 138 
 
 PRACTICE : 
 
 where rules of found 1 
 
 where no statute or rule 2 
 
902 
 
 IXUIOX. 
 
 PRIVILEGE FROM ARREST. ,S'ee Arrest axd Bail. page 
 
 PROCEEDINGS: 
 
 when according to practice of chancery 2 
 
 to punish attorney, a summary proceeding 30 
 
 procedure upon 30 
 
 upon death or disability of attorney 37 
 
 stay of, by whom granted 266 
 
 stay of, for non-payinent of costs of motion 281 
 
 when void for irregularity 800 
 
 how irregularity in, corrected 801 
 
 PROCESS : 
 
 cannot be issued on Sunday ■ 4 
 
 made returnable on Sunday, not void 5 
 
 sheriff cannot execute in his own favor 23 
 
 service, and return of by sheriff 20 
 
 only to be amended by the court 794 
 
 PROOF OF SERVICE: 
 
 of summons. See Summotv'S. 
 
 of process, or papers other than summons 289 
 
 PROTEST: 
 
 notary's certificate of notice, when presumptive evidence 336 
 
 PROVISIONAL REMEDIES: 
 
 court acquires jurisdiction from time of granting 189 
 
 when party may be required to elect between 752 
 
 motion for to be decided within twenty daj's 752 
 
 right of defendant to, on counterclaim 753 
 
 See Arrest and Bail — Attachment — Injunction — 
 Receiver. 
 
 PUBLICATION: 
 
 of summons how made 227 
 
 of summons, when complete 227 
 
 of notice, time of, how computed 292 
 
 in what papers notice to be published 317 
 
 of notice for creditors to exhibit demands, in action for their 
 
 benefit 317 
 
 of notice, where no newspaper in county 317 
 
 Q. 
 
 QUO WARRANTO: 
 
 people, plaintiffs in 153 
 
 when injunction granted in action of 506 
 
 E. 
 
 REAL ESTATE: 
 
 limitation of action by people for 82 
 
 limitation of action by other than people for 83 
 
INDEX. 903 
 
 REAL ESTATE— (Continued) : page 
 
 parties in action to compel determination of claim to 17S 
 
 when notice of pendency filed in action concerning 237 
 
 undertaking in injunction relating to 593. 
 
 RE-ARGUMENT: 
 
 of motion 273: 
 
 RECEIVER : 
 
 leave to sue in action by or against 130 
 
 counterclaim in action by 451 
 
 purpose of appointment of 697 
 
 duty of 697 
 
 who may be appointed 698. 
 
 who should not be appointed 698 
 
 practice where appointed in more than one action 639' 
 
 rights of second receiver, when more than one 700- 
 
 what must be shown upon application for appointment of . . . . 710 
 
 application must be upon notice ■ 710' 
 
 by whom appointed 701 
 
 order appointing, how far appealable 702 
 
 reference to appoint 702 
 
 court may make order of reference 702 
 
 not usually appointed until after summons served 702 
 
 consent, waiver of irregularities in appointment 702 
 
 when appointed before final judgment 703 
 
 courts still have same power to appoint as before code 703 
 
 not appointed where remedy at law adequate 704 
 
 what must appear to authorize appointment of 704 
 
 in action to foreclose mechanic's lien 705 
 
 in action between partners 705 
 
 in creditor's action 705 
 
 in what cases appointed 706 
 
 in action for partition 707 
 
 in action to foreclose mortgage 707 
 
 in action on fraud of executor or administrator 700 
 
 in action against trustee 709 
 
 in action by or against incompetent person 709 
 
 when appointed by or after final judgment 710 
 
 security to be given by 713 
 
 security by trust company 713 
 
 court may require new bond 714 
 
 what passes to receiver 714 
 
 when title to vests 715 
 
 powers of 717 
 
 when may employ counsel 718 
 
 may apply to court for instructions 718 
 
 not to be sued without leave of court 718 
 
 must follow directions of court. 721 
 
904 INDEX. 
 
 R'ECEIVER— Continued) : page 
 
 duty of, when sued without leave 722 
 
 how far liable for costs 722 
 
 when liability ceases 723 
 
 when will be charged with interest 723 
 
 compensation of 724 
 
 how discharged or removed '25 
 
 court may remove '26 
 
 when may be substituted as defendant in action against cor- 
 poration 824 
 
 when bound by judgment without substitution 824 
 
 See, also, Pkovisional Remedies. 
 
 RECEIVER OF CORPORATION: 
 
 can only be appointed by court 727 
 
 in what cases appointed 727 
 
 in proceedings for voluntary dissolution of corporation 729 
 
 when title vests in such case 730 
 
 in proceedings against banking corporation 730 
 
 cases in which court cannot appoint 732 
 
 order upon, to designate places of deposit 733 
 
 in action against corporations annulled by law 734 
 
 application for appointment, where made. 734 
 
 notice of application, liow given, and to whom 735 
 
 when notice must be given to attorney general 735 
 
 who may be appointed 736 
 
 who cannot be appointed 737 
 
 security to be given by 737 
 
 powers of 738 
 
 what property vests in 739 
 
 to make and file inventory 740 
 
 to publish notice to creditors 740 
 
 duties of, in proceedings in equity against corporation 741 
 
 duties of, on voluntary dissolution of corporation 741 
 
 of insurance company, to make assessment 743 
 
 to present account to the court .' 743 
 
 powers of, of insolvent banking corporation 743 
 
 court may remove 747 
 
 when attorney general may apply for removal of 747 
 
 where motion to be made 747 
 
 compensation of 749 
 
 RECORDING: 
 
 of notice of pendency of action 240 
 
 REFERENCE: 
 
 attorney may consent to 39 
 
 on contested motion 269, 270 
 
 action does not abate, after report made 830 
 
 report on, void, if made after death of party 831 
 
INDEX. • 905 
 
 RELIGIOUS CORPORATION: page 
 
 when one member of, may sue for all 160 
 
 RENEWAL: 
 
 of contested motion 271 
 
 of ex parte motions and applications 272 
 
 REPLEVIN: 
 
 when jurisdiction acquired in action of 190 
 
 does not abate by death 812 
 
 REPLY: 
 
 defense of statute of limitation to counterclaim must be pleaded 
 
 ■ by 117 
 
 when plaintiff may 457 
 
 may be directed by the court 457 
 
 what defenses do not require 458 
 
 what waived by 458 
 
 what must contain 459 
 
 may contain counterclaim 460 
 
 judgment, on failure to 460 
 
 when waived by defendant 461 
 
 grounds of demurrer to. See Demurrer. 
 
 RESIDENT: 
 
 may designate person to receive service during absence 203 
 
 how such designation revoked 204 
 
 RETAINER: 
 
 of attorney, when must be in writing 39 
 
 authority of attorney under 39 
 
 RETURN: 
 
 of deputy, conclusive upon sheriff 21 
 
 by sheriff upon execution of process 23 
 
 how compelled 23 
 
 in special proceedings, where filed 290, 291 
 
 amendment of 792 
 
 REVIVAL OF ACTION. 8ee Abatement of Action. 
 
 RULES : 
 
 of practice where found 1 
 
 courts of record may make 2 
 
 s. 
 
 SATISFACTION: 
 
 of part of plaintiff's claim 764 
 
 when ordered 764 
 
 as to what causes of action 764 
 
 where application for to be made 766 
 
 what judgment entered 766 
 
 SATURDAY: 
 
 noon to midnight of, to be holiday 6 
 
906 INDEX. 
 
 SAVINGS BANK: page 
 
 interpleader ia action against 312 
 
 SCHOOL DISTRICT: 
 
 ■when trustee of, may sue or be sued 155 
 
 SEAL: 
 
 of courts 16 
 
 SEALED INSTRUMENT: 
 
 action on, when barred 92 
 
 SERVICE: 
 
 of papers cannot be made on Sunday 4, 5 
 
 of process may be made on holidays other than Sunday ' 6 
 
 of process by sheriff 20 
 
 on sheriff, how made 24 
 
 upon county treasurer, how made 126 
 
 on unknown defendant in partition 174 
 
 of summons on guardian ad litem of absent infant defendant. . . 186 
 of summons, see Summons. 
 
 of process to commence special proceedings, how made 211 
 
 of summons, voluntary general appearance, when equivalent to. 231 
 
 notice of motion 264 
 
 order to show cause provides short time for. 265 
 
 when and how to be made of copy of order 279 
 
 on whom to be made 285 
 
 when may be made on clerk 286 
 
 personal, how made, on party or attorney 286 
 
 by mail, how made on party or attorney 286 
 
 proof of, see Proof op Seevice. 
 
 of paper, personal, must be eight days 292 
 
 by mail sixteen days 202 
 
 time for service, how computed 292 
 
 when double time allowed 294 
 
 how completed 33.3 
 
 when complaint to be served 422 
 
 of order of injunction, and papers on which granted 589 
 
 SET OFF: 
 
 Avhat it is 430 
 
 distinguished from counterclaim 439 
 
 SEVERANCE: 
 
 of action, when part of claim admitted 764 
 
 SHAM PLEADINGS. See Answer. 
 
 SHERIFF: 
 
 to open and adjourn court in absence of judge 11, 12 
 
 an officer of the court 20 
 
 powers and duties of 20 
 
 liable for acts of deputy 21, 22 
 
 when not liable for acts of deputy 21, 22 
 
INDEX. 907 
 
 BTIEHIFF— (Continued): page 
 
 deputy's return conclusive upon 21 
 
 not to practice as attorney 22 
 
 cannot purchase at execution sale 22, 23 
 
 cannot execute process in his own favor 23 
 
 cannot be bail 23 
 
 must give receipt for mandate 23 
 
 how process to be executed by 23 
 
 return of execution of process 24 
 
 how service made upon 24 
 
 when punished by court 24 
 
 must attend courts 25 
 
 relation and duties of outgoing and incoming 25 
 
 fees of 26 
 
 limitation of action against 97, 100 
 
 when leave to sue bond of, necessary 125 
 
 what must appear before granting leave to sue 125 
 
 more than one order granting leave to sue may be made 120 
 
 how summons served upon 199 
 
 certificate of service of summons by 211 
 
 what certificate must show 211 
 
 liability of, in arrest and bail on failure of sureties to justify . . 529 
 rights and liabilities as to bail, see Arrest and Bail. 
 
 must execute warrant of attachment 644 
 
 may require indemnity on executing such warrant 645 
 
 See, also. Attachment. 
 responsibility for sufficiency of sureties in undertaking to dis- 
 charge attachment 689 
 
 must regain possession of personal property after attachment . . 693 
 
 after judgment, may collect whatever attached 693 
 
 when may sell property attached after levy 693 
 
 to whom property given after warrant of attachment vacated . . . 694 
 
 to deliver books, etc., to defendant after attachment vacated. . . 695 
 
 to file return after attachment vacated 696 
 
 amendment of certificates and deeds of 792 
 
 SLANDER: 
 
 rule for pleading in f 330 
 
 SPECIAL PROCEEDINGS: 
 
 attorney's lien in 46 
 
 statute of limitations applies to 118 
 
 service of process to commence, how made 211 
 
 papers in, where filed 291 
 
 SPECIAL TERM. See Supreme Court. 
 
 SPECIFIC PERFORMANCE : 
 
 action for, when barred 92 
 
 STATE : 
 
 when proper party defendant 155 
 
908 INDEX. 
 
 STATE PRISON: page 
 
 superintendent of, how named in action 156 
 
 STATE WRIT: 
 
 in whose name to be issued 154 
 
 STATUTE: 
 
 where no provision made by, what practice controls 2 
 
 private, how alleged in pleading 326 
 
 STATUTE OF LIMITATIONS. See Limitation of Action. 
 
 STATUTE LIABILITY: 
 
 when barred in six years 93 
 
 STAY OF PROCEEDINGS: 
 
 by whom granted 266 
 
 judge out of court can only grant for twenty days 267 
 
 practice, when longer, stay required 267 
 
 when granted on motion to change place of trial 268 
 
 effect of 268 
 
 when deemed vacated on decision 279 
 
 for non-payment of costs of motion 281 
 
 offer of compromise, operates as 771 
 
 STIPULATION: 
 
 when must be in writing 284 
 
 STOCKHOLDER: 
 
 when one may sue for all 160 
 
 SUBSTITUTION: 
 
 of attorney, how made 44 
 
 SUMMARY PROCEEDINGS: 
 
 to fix attorney's compensation 50 
 
 when restrained by injunction 563 
 
 SUMMONS: 
 
 how issued in name of infant 182 
 
 how served on unknown defendant in partition 174 
 
 when may be served on guardian ad litem of infant defendant . . 186 
 
 action commenced by service of 189 
 
 contents of 190 
 
 how names of jjarties may be stated in 191 
 
 how party designated, when name unknown 181 
 
 place of trial, how stated in 19^ 
 
 subscription of, what sufficient 192 
 
 form of 192 
 
 how amended 192 
 
 complaint may be served with 193 
 
 notice When copy of complaint not served with 193 
 
 how and when amended 193 
 
 when must contain reference to statute on which suit brought. . 195 
 
 what reference sufficient, in action for penalty 196 
 
 how such reference waived 196 
 
INDEX. 909 
 
 SUMMONS— {Coretinweci) : page 
 
 notice of, no personal claim with 197 
 
 by whom personal service may be made 197 
 
 service on natural person, how made 198, 200 
 
 upon infant defendant, how made 199 
 
 upon idiot or habitual drunkard, how made 199 
 
 when court may designate person to be served 199 
 
 how served upon sheriff 199 
 
 personal service, how must be made within the State 200 
 
 when service of, will be vacated 200 
 
 who privileged from personal service 201 
 
 on what days cannot be served 203 
 
 designation of person on whom service may be made 204 
 
 how designation revoked 204 
 
 service of, on domestic corporation 205 
 
 remedy for irregular service on corporation 206 
 
 service of, on foreign corporation 207 
 
 personal service, proof of, how made 211 
 
 when may be proved by admission 211 
 
 affidavit of service, what must appear in 212 
 
 genuineness of admission must be proven 213 
 
 what admission must show 213 
 
 substituted service, when it may be made 214 
 
 affidavit for what must show 215 
 
 order for substituted service, contents of 216 
 
 order must be filed witliin ten days 217 
 
 when service complete 217 
 
 service of by publication, in what cases made 217 
 
 when made on person other than defendant 218 
 
 when may be made upon resident 217 
 
 application for, what must appear in 219 
 
 order for publication of, by whom made 223 
 
 must be made by judge 223 
 
 what order must contain 223 
 
 service by publication, how made 224 
 
 notice to be published with summons 22,3 
 
 notice in action of partition to be published with 226 
 
 in matrimonial actions to be published with 226 
 
 papers must be filed 225 
 
 publication of, how made 227 
 
 when complete 227 
 
 service under order of publication 227 
 
 mailing, when may be dispensed with under such order 225 
 
 proof of service by publication how made 228 
 
 when defendant allowed to defend after service by publication . . 22S 
 
 service without the State 227 
 
 when voluntary general appearance, equivalent to personal ser- 
 vice of 231 
 
910 
 
 INDEX. 
 
 SUMMONS— ( Con tinned ) : page 
 
 when and where filed 290 
 
 when complaint dismissed for failure to serve 314 
 
 not amendable of course 301 
 
 how may be amended 779 
 
 when court may order supplemental, on substitution of 
 party 827 
 
 SUNDAY: 
 
 courts shall not be open on 4 
 
 extends from midnight to midnight 5 
 
 process cannot issue or be served on 5 
 
 process returnable on, not void 5 
 
 judgment entered on, void •"> 
 
 habeas corpus may be issued and served on 5 
 
 award cannot be made on 5 
 
 notice of motion cannot be served on 5 
 
 injunction may be issued and served on 4 
 
 verdict may be received on ■ 4, 5 
 
 no instructions to be given to jury on 
 
 holidays and half-holidays to be considered as C 
 
 SUPEEIXTEXDENT OF THE POOR: 
 
 when may sue or be sued 155 
 
 SUPERSEDEAS: 
 
 after order of arrest 521 
 
 SUPERVISOR : 
 
 when may sue or be sued 155 
 
 SUPPLEMENTAL PLEADING: 
 
 when court may allow 372 
 
 application for must be on notice 373 
 
 allowance of discretionary 373 
 
 on application for, court will not pass on pleading 373 
 
 object of supplemental pleading 374 
 
 what may be set up by 374 
 
 may be in addition to original pleading 376 
 
 terms of allowance, in discretion of the court 376 
 
 what terms may be imposed 372 
 
 when demurrer may be interppsed to 4C5 
 
 when may be ordered on substitution of parties 827 
 
 SUPPLEMENTARY PROCEEDINGS: 
 
 application of leave to sue by receiver in 130 
 
 special requirements of affidavit in 256 
 
 stayed by non-payment of costs 282 
 
 papers in, filed when and where 291 
 
 SUPREME COURT: 
 appellate division. 
 
 convention of justices of, to make general rules 2 
 
INDEX. 911 
 
 SUPREJIE COi:nT— {Continued) : page 
 
 in each department may make rules 2 
 
 terms of '/ 
 
 to designate times and places of special and trial terms. . 7 
 
 to assign justices to hold special and trial terms 7 
 
 may designate justice of same department to prevent term 
 
 failing 9 
 
 no judge of, to sit in review of his own decision 15 
 
 clerk of, how appointed and where to have office 16 
 
 seal of 16 
 
 duties of clerks of 17 
 
 power of, over attorneys and counsellors 35 
 
 appeals from, to Court of Appeals 62 
 
 appointments of 64 
 
 how constituted 64 
 
 powers of justices of 64 
 
 powers of 65 
 
 may hear any motion that a special term may entertain. . 248 
 
 appointment of terms 7, 8 
 
 terms of, must be held at times and places appointed 8 
 
 term held by justice of another department, duly designated, 
 
 valid 8 
 
 extraordinary terms 8 
 
 special terms. 
 
 to be held at times and places designated by appellate 
 
 division 7 
 
 designations valid though after time named in statute .... 8 
 
 one to be held in each county each year 8 
 
 place of holding to be that designated for county court .... 9 
 
 may be adjourned to chambers 
 
 motion to be made in, and where 248 
 
 held same time and place with trial term 249 
 
 order to show cause, when returnable at 265 
 
 trial terms. 
 
 jurisdiction of circuit courts vested in 3, 4 
 
 times and places of, designated by appellate division 7 
 
 designations valid though after time named in statute .... 8 
 
 two to be held in each county each year 8 
 
 two or more held at same time in any count}' 8 
 
 may be held in two or more parts 8 
 
 place of holding to be that designated for county court .... 9 
 
 may be adjourned to chambers 9 
 
 county clerk is clerk of 16 
 
 power to suspend or remove attorneys 30 
 
 original creation of , 63 
 
 how now constituted 63 
 
 appellate divisions, how constituted 64 
 
 58 
 
912 INDEX. 
 
 SUPREME COVRT—iConlinucd) : page 
 
 powers of justices of 65 
 
 has all the jurisdiction of certain abolished courts 3 
 
 has general jurisdiction in law and equity 65 
 
 given by the constitution 65 
 
 extent of 66 
 
 in equity, what it includes 66 
 
 in special cases 66 
 
 when it may remove .to itself, actions from other courts 67 
 
 for what equity business, it is always open 67 
 
 justices of, what they may do out of court 77 
 
 SURROGATE'S COURT: 
 
 limitation of action on judgments of 91 
 
 SURROGf ATE : 
 
 when disqualified 13 
 
 not to practice as attorney in certain counties 15 
 
 not disqualified by age - 16 
 
 clerk of, how appointed 16 
 
 leave to sue official bond of 126 
 
 leave of, for infant to bring action of partition 133 
 
 T. 
 
 TAXES: 
 
 assessment of, will not be restrained by injunction 572 
 
 TAXPAYER : 
 
 may sue to prevent waste 156 
 
 when injunction will be granted in action by 567 
 
 TENDER: 
 
 in what cases may be made 754 
 
 how to be made 755 
 
 kind of money in which made 755, 756 
 
 offer of money, when waived 756 
 
 to whom made 756 
 
 money must be paid into court 756 
 
 efTeet of ' 758 
 
 as admission of right of plaintiff to amount 758 
 
 as to costs 759 
 
 when to be deducted from recovery 759 
 
 TIME: 
 
 of limitation of action accrued between death and granting of 
 
 letters 105 
 
 how computed where plaintiff dies before expiration of limita- 
 tion 106 
 
 when reversal of judgment extends, to bring action 108 
 
 to bring action, when extended by stay of proceedings 108 
 
 when extended bv submission to arbitration 109 
 
INDEX. 913 
 
 TIME — {Continued) : page 
 
 how computed under statute of limitations Ill 
 
 See, also, Limitatiou" of Action. 
 
 within, which infant defendant may answer 235 
 
 for doing any act, how computed 2D2 
 
 extension, see Extension of Time. 
 
 how alleged in pleadings , 324 
 
 within which motion for provisional remedy to be decided 7.52 
 
 when offer of compromise to be accepted 7G9 
 
 to apply for relief against mistakes 796 
 
 for motion to vacate judgment for irregularity 802 
 
 TITLE : 
 
 to real property, presumption as to 85 
 
 TORT: 
 
 arrest in action for, see Arkest and Bail. 
 
 when restrained by injunction 577 
 
 TOWN: 
 
 actions by, when brought in name of 156 
 
 TOWN" OEPICERS: 
 
 when may sue or be sued 155 
 
 TRADEMARKS: 
 
 when violation of, will be restrained 573 
 
 TREASON: 
 
 who plaintiffs in action upon forfeiture for 154 
 
 TRESPASS: 
 
 when restrained by injunction 576 
 
 TRIAL: 
 
 when of one action, stayed to abide event of another 307 
 
 after substitution, objection that action does not survive may 
 
 be taken at 818 
 
 action does not abate after decision or verdict 829 
 
 decision upon, void, if made after death of party 831 
 
 when discovery granted to enable party to prepare for 840 
 
 See, also, Discovery of Books and Papers. 
 
 TRIAL FEE: 
 
 when payable 19 
 
 TRIAL TERM. See Supreme Court. 
 
 TRUSTEE: 
 
 action against for debt of corporation, when barred 100 
 
 counterclaim, in action by or against 451 
 
 receiver in action against 709 
 
 TRUSTEE OF EXPRESS TRUST: 
 
 when may sue as plaintiff 157 
 
 who is 158 
 
 assignees for creditor 158. 
 
914 INDEX. 
 
 TRUSTEE OF EXPRESS TRVST—iConUnued) : page 
 
 assignee of life insurance policy 1-53 
 
 commission merchants 158 
 
 general agent of incorporated association 158 
 
 trustees in subscription paper 158 
 
 general guardian of infant 159 
 
 other cases 159 
 
 u. 
 
 UNDERTAKING: 
 
 attorney shall not be surety upon 37, 298 
 
 in contempt proceedings, in whose name brought 154 
 
 requisites of 297, 299 
 
 substantial compliance with statute sufficient 303 
 
 when one surety sufficient '. 297 
 
 by fidelity or surety company, when permitted 298 
 
 when will be approved 298 
 
 approval of bond discretionary 299 
 
 justification of sureties on, how made 299 
 
 what proof sufficient on 299 
 
 where penalty is over five thousand dollars 302 
 
 court must require proof 301 
 
 court may appoint referee to take 301 
 
 must be approved 302 
 
 must be filed 291, 303 
 
 defective, may be amended 303 
 
 action on, by whom and when brought 304 
 
 on arrest and bail 509 
 
 on injunction to stay proceedings in action 594 
 
 to stay proceedings upon judgment 594 
 
 to stay proceedings in ejectment or dower 595 
 
 on attachment must be given 640 
 
 on motion to discharge property from attachment 685 
 
 on attachment, when delivery of property to defendant 695 
 
 by receiver of corporation 737 
 
 amendment of 788 
 
 UNKNOWN DEFENDANT. See Defendant. 
 
 USURY: 
 
 CO recover back, when action barred 100 
 
 V. 
 
 VARIANCE: 
 
 what is material 370 
 
 VERDICT: 
 
 may be received on Sunday 4, 5 
 
 reversed where received by a judge not sitting. 14 
 
 appellate division judge cannot receive 64 
 
INDEX. 915 
 
 VERDICT— { Contin ued ) : page 
 
 amendment of 793 
 
 what defects cured by 805 
 
 action does not abate after 829 
 
 void if taken after death of party 831 
 
 VERIFICATION^: 
 
 of pleading 335 
 
 when required 335 
 
 what is subsequent pleading, so as to require 335 
 
 dilatory defense must have 336 
 
 not sufficient affidavit to overthrow notary's certificate 336 
 
 when necessary to require party to prove existence of corpora- 
 tion 336 
 
 in answer, may refer exclusively to counterclaim 337 
 
 when may be omitted 337 
 
 defendant charged with fraud, when not excused from verify- 
 ing pleading 337 
 
 question of right to serve pleading without, how determined. . . 338 
 
 by whom to be made 339 
 
 how made by domestic corporation 339 
 
 in action where people are party 340 
 
 in action where public officer is party 340 
 
 when may be made by agent or attorney 340 
 
 when so made, omission to state reasons, fatal 344 
 
 in action on instrument for payment of money only 341 
 
 form of 342 
 
 remedy for defective 345 
 
 VESSEL: 
 
 attachment against, see Attachment. 
 
 VOID: 
 
 when proceedings are, for irregularity 800 
 
 w. 
 
 WAIVER: 
 
 of invalidity of process issued on Sunday, when made 5 
 
 what waived by general appearance 233 
 
 of defects in motion papers 250 
 
 of stay, for non-payment of motion costs 281 
 
 right to amend, how waived 362 
 
 of privilege from arrest 504 
 
 of irregularity 804 
 
 none, without knowledge of facts 805 
 
 when intention of, will be inferred 805 
 
 WASTE: 
 
 parties to action for 179 
 
 when restrained by injunction. ., 577 
 
916 INDEX. 
 
 WATER RIGHTS: ^^°^ 
 
 when interference with, restrained ^^^ 
 
 WILL: 
 
 action to establish, when barred ^^ 
 
 WITNESS: 
 
 non-resident, privileged from service of summons 201 
 
 resident, not so privileged 202 
 
 when privileged from arrest 502 
 
 WRIT: 
 
 amendment of 781 
 
i