aj0rn?ll Cam ^rlynnl Bbrara Cornell University Library KFN5995.R93 The practice in actions and special proc 3 1924 022 790 962 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022790962 THE PRACTICE IN it D aiifl ^m\ rroceeflmjs IN THE COURTS OF RECOED OF THE STATE OF NEW YORK, UNDEE THE CODE OF CIVIL PBOCEDUEE. BY ys^TTLJuXAJs^ EUIMISEY. JUSTICE OF THE SUPEEME COUET. YOLUME I. .1887. BANKS & BEOTHERS: New Yoke. Albany. COPYRIGHT 1887. BANKS & BROTHERS. PREFACE. Sir Henry Maine has said, in Ms 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 gen- erally 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 accomplished. 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 of practice. If I have succeeded in doing these things I will be satisfied. IV PEEFACE. In the arrangement of topics, the Code of Civil Peocedure has been followed as closely as vras consistent with conveni- ence. Only such departures have been made from the ar- rangement 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 efPort 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 de- cisions 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 dis- pute, 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 question. 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 re- garded 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 re- cent, and so good books of forms, that I thought the space which would be taken up by them in this work might be more usefully filled. PEEFACE. T In some cases recent decisions, made after tlie book was printed, have changed the rule laid down in it. As an in- stance 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 over-rules the ease of Carpenter v. Adams (34 Hun. 429), cited to the contrary proposition 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, be- cause where it speaks, the code is the rule, and it was thought safer to use the precise words, 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 referred 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 comp-e.jed in two more volumes. The second will complete the account of the progress of a civil action, and the third will treat of special proceedings, and will contain a complete index of the whole work. I have been much assisted in the preparation of the work by H. A. Oorell, Esq., who prepared the chapters on the complaint, on arrest and bail, and on receivers, and the table of cases. W. E. Bath, Nov. 1887. TABLE OF CONTENTS. CHAPTEE I. THE COUETS OF THE STATE OP NEW YORK. PAGE. Article I. The Courts, their Judges and Oflacers 1 Sec. 1. The Rules, and how made 1 3. The Courts of Record 3 3. When and how open 3 4. The Terms of the Courts, and their Appointment 5 The Court of Appeals 5 The Supreme Court 5 The Superior City Courts 8 The City Court of the City of New York 8 The County Courts 8 Adjournments 9 5. Judges 10 6. The Clerks of the Courts 13 7. Sheriffs 16 8. Coroners 20 9. Elisors 31 10. Attorneys and Counselors 22 Abticle II. The Jurisdiction of the Courts 34 Sec. 1. Their Jurisdiction generally 34 2. The Court of Appeals 37 3. The Supreme Court 39 4. The Circuit Court 42 5. The Superior City Courts 43 Special jurisdiction of the Court of Common Pleas of the City of New York 49 Superior Court of Buffalo 50 6. The City Court of New York 51 7. The County Courts 53 8. Power of Judges out of Court 57 VIU TABLE OF CONTENTS. CHAPTEE 11. ACTIONS AND THE TIME OF COMMENCING THEM. PAGE. Akticle I. Of Actions 60 Article II. The Limitation of Actions 63 Sec. 1. Actions for tlie Recovery of Real Property 03 3. Actions otlier than for the Recovery of Real Property 69 Snbd. 1. Within twenty years 6i> Subd. 3. Within six years 71 Subd. 3. Within three years "3 Subd. 4. Within two years 74 Subd. 5. Witliin one year 75 Subd. 6. Within ten years 76 Subd. 7. Actions by the People 77 3. Non-residence, or Absence from the State 78 4. What Prevents the Running of the Statute 79 5. What Actions are not "Within the Statute 83 6. Mode of Computing Time 83 7. Defense and Counterclaim ' 85 8. What takes a Case out of the Statute 86 9. How Objections taken 88 10. Cases not within the General Statute 88 11. When Action deemed begun 89 CHAPTEE III. LEAVE TO SUE. Article I. Judgments 91 Article II. Mortgages 93 Article III. Official bonds 94 Article IV. Actions to Dissolve a Corporation 96 Article V. Actions by and against Receivers 98 Sec. 1. Actions by Receivers 98 2. Actions against Receivers 99 Article VI. Actions by or against the Committee of Incompetent Person 99 Article VII. Partition by an Infant 100 Article VIII. Leave to sue as a Poor Person 101 CHAPTEE lY. THE PAETIES TO AN ACTION. Article I. General Rules as to Parties ' 104 AnrriCLE II. Agents and Principals 107 Article III. Assignees 107 Article IV. Unincorporated Associations 108 Article V. Corporations, directors and stockholders no Article VI. Estates of Deceased Persons 113 Article VII. Public OlHcers 114 Article VIII. Trustees of an Express Trust 119 TABLE OF CONTENTS. ix PAGE. Article IX. Where one may sue or be sued for all 120 Article X. Joint and Several Parties 133 Article XI. Proceedings against Defendants Severally Liable 12-1 Article XII. Parties in actions respecting Real Estate 135 Sec. 1. Actions of Ejectment 125 3. Actions for Partition 128 o. Actions for Dower 131 4. Actions to foreclose Mortgage 133 5. Actions to compel Determinations of Claim to Real Property. 134 6. Actions for Waste 135 7. Actions for Nuisance 136 Article XIII. Where the Defendant or his Name is unknown 136 Article XI Y. Infant Plaintiffs and Defendants 137 CHAPTEE V. I COMMENCEMENT OP THE ACTION. Article I. The Summons 144 Sec. 1. When Jurisdiction is acquired 144 3. Contents of the Summons 145 3. Service of Complaint, or Notice, with the Summons 147 Subd. 1. Actions on Contract 147 Subd. 3. Actions for a Penalty and Forfeiture 149 Subd. 3. Notice of no Personal Claim 150 Article II. Personal service of the Summons 151 Sec. 1. By whom made 151 2. How made upon a Natural Person 151 Subd. 1. Upon an Infant or Incompetent Person 151 Subd. 2. On the Sheriff 153 Subd. 3. On other Persons 153 3. Service on a Domestic Corporation 156 4. On a Foreign Corporation 157 5. Service of process to commence Special Proceedings 160 6. Proof of Personal Service 160 Subd. 1. Sheriff's Certificate of Service 160 Subd. 3. Affidavits of service 161 Subd. 3. Admission of service 161 Article III. Service other than Personal 163 Sec. 1. Substituted service 163 3. Service by publication 165 Subd. 1. When it may be made 165 Subd. 3. What must be shown to obtain the order 167 Subd. 3. Order, by whom made and what to contain .... 169 171 Subd. 4. Filing papers, Notice '■'^ Subd. 5. Publication and service 1'^''' Subd. 6. Proof of service ^"'^ Subd. 7. When Defendant allowed to defend 1'^* Article IV. General Appearance ^ ' _ Sec. 1. How and when made j] 2. Effect of General Appearance ^'*^ X TABLE OF CONTENTS. PAGE. Sfec. 3. When the Defendant may appear 179 4. When the Defendant must answer 180 CHAPTEE VI. NOTICE OF PENDENCY OF ACTION. Article I. When to be filed by Plaintifl 181 Abticle II. Contents of the Notice 183 Article III. Recording 184 Article IV. When filed by the Defendant 184 Article V. Eflect of Notice 184 Article VI. Amendments and Cancellation 186 Sec. 1. Amendment 186 2. Cancellation 186 CHAPTER VII. MOTIONS AND OEDEES. Article I. Motions 188 Sec. 1. Motions defined 188 2. When and where made 189 3. Motion Papers, how prepared 192 Article II. Affidavits and Petitions 193 Sec. 1. Form and Contents of Affidavit 193 2. Special requirements in certain Affidavits 195 3. Before whom Affidavits may be taken 197 Bubd. 1. Within the State 197 Subd. 2. Without the State to be used within it 198 4. Petitions 199 5. Depositions to- be used on motion 199 6. Opposing Affidavits 201 Article III. Notice of Motion 201 Article IV. Orders to show cause 203 Article V, Stay of Proceedings .- . 204 Article VI. Practice after the Notice 306 Sec. 1. Countermanding 206 2. Hearing 206 3. New Proofs 307 4. Default 207 5. Re-hearing 208 Subd. 1. Renewal of Contested Motions 208 Subd. 3. Renewal of ex parte Applications 309 6. Re-argument 210 Article VII. Orders 310 Sec. 1. What are Orders 310 3. How Drawn 311 3. Form and Contents 311 4. Filing and Entering 213 5. When the order takes Effect 214 6. Notice of Entry and Service 215 TABLE OF CONTENTS. xi PAGK. Sec. 7. Conditions 2]^5 8. Vacating and Modifying 216 Article VIII. Costa of Motion . . S16 CHAPTER VIII. MISCELLANEOUS PEACTICE EEGULATIONS. Article I. Notices and Papers 218 Article II. Service and Filing of Papers 330 Sec. 1. On whom Service to be made 230 3. Mode of Service 231 3. Proof of Service 328 4. Filing Papers 234 Article III. Regulations respecting Time 335 Sec. 1. Wlien Service must be made 335 3. How time computed 336 3. Extension of Time 337 Article IV. Bonds and Undertakings 239 Article V. Consolidation of Actions 334 Article VI. Interpleader 336 Article VII. Dismissal for Neglect to Proceed 340 Sec. 1. For Failure to serve the Summons 240 3. For unreasonable Neglect to Proceed 340 Article VIII. Publication and Notice 343 CHAPTER IX. GENERAL EEGULATIONS IN EEGAED TO PLEADING. Article I. General rules of Pleading 344 Sec. 1. Form 344 3. What to be Stated 346 3. What Facts to be Pleaded 347 4. How Facts to be Pleaded 349 Subd. 1. Certainty 349 Subd. 3. Time 349 Subd. 3. Place 350 Subd. 4. Positiveness 351 5. Exceptions to the General Bules 352 Subd. 1. Private Statutes 352 Subd. 3. Account 353 Subd. 3. Judgments 252 Subd. 4. Conditions Precedent 353 Subd. 5. Instruments for the payment of Money only. . . 354 Subd. 6. Slander and Libel 355 Article II. Formal Rules concerning Pleadings 356 Sec. 1. How to be Written and Endorsed 256 3. Statement of Facts 357 3. Subscription 258 4. Service and Filing 358 Subd. 1. Service Generally 358 Xll TABLE OP CONTENTS. PAGE. Subd. 2. Service on Co-defendant 359 Aeticle III. Verification of Pleadings 260 Sec. 1. When required 260 2. Wlien omitted 261 3. By whom made 263 Subd. 1. By a party 263 Suhd. 2. Where Party is a Domestic Corporation 264 Subd. 3. When the People or a Public Officer are a Party 364 Subd. 4. When Verification may be made by Agent or Attorney 264 4. Form of Verification , 266 5. Remedy for Defective Verification 268 AiiTiCLB IV. Construction of Pleadings 269 Sec. 1. Rules of Construction 269 2. What deemed admitted 272 Abticlb V. Copy of Account 273 Article VI. Bill of Particulars 376 Sec. 1. In what cases granted '. 376 3. Application for the Order 378 8. The order 279 4. What the Bill should contain 379 5. A further Bill 380 6. EfEectof the Bill 280 7. Penalty for Disobedience 381 * Abticle VII. Amendments of pleadings 383 Sec. 1. Amendments or course 282 2. Amendments by leave of the Court 284 Subd. 1. Before trial 384 Subd. 2. At the trial or hearing 387 Subd. 3. After trial 389 3. Supplemental pleadings 390 4. Terms of Amendment 292 Article VIII. Frivolous pleadings 294 Article IX. Sham pleadings 297 Article X. Irrelevant, Redundant and Scandalous Matter 299 Article XI. Indefinite and Uncertain Allegations 301 CHAPTEE X. THE COMPLAINT. Article I. What Complaint must contain 304 Sec. 1. In general 304 3. Caption, — Court and County , 305 3. Caption, — Names of Parties. 307 Article II. Statement of facts 309 Sec. 1. What facts to be stated 309 2. What should not be stated. 311 3. How facts to be stated 311 4. How facts to be stated in Certain Cases 312 Account stated 312 TABLE OF CONTENTS. xjii PAGE. Accounting _ 3^3 Assault a»d Battery 313 Assiijnee 323 Banks gj^^ Bills and Notes 314 y^ Bonds \ 815 Breach of Promise to Marry 3I6 Consideration 317 Contract gi7 Corporations 3^7 Demand 317 Divorce 3I8 Dower 313 Ejectment 319 Fraud 320 Injunction 320 Judgments 32x Malicious prosecution : ggl Notice 821 Ownership 32i Partition 322 Performance 323 Quantity and value 323 • Reformation of instrument 324 Representative character 324 Scienter 324 Speciflc performance 325 Special damages 325 Warranty v 326 "Work and services 326 Article III. Joinder of Causes of Action 327 Sec. 1. What is a Single Cause of Action ' 327 2. What Causes of Action may be Joined 330 , 3. What Causes of Action may not be Joined 338 Article IV. Demand of Judgment 340 Sec. 1. For Tinal Judgment 340 2. Interlocutory or Pinal Judgment 344 Article V. Service of the Complaint 345 Sec. 1. When and how to be Served 345 3. Consequence of Failure to Serve 346 CHAPTER XI. THE ANSWER. Article I. When required 347 Article II. Form, and what to Contain 347 Sec. 1. Form 347 3. What to contain 348 Article III. Denials 349 Sec. 1. Genera] denials 349 XIV ' TABLE or CONTENTS. PAGE. Sec. 2. Specific denials 350 3. Denials except as Admitted 351 4. What is not a Denial 353 6. What may be proved under a General Denial 353 Abticlb IV. New Matter 354 Sec. 1. What it is 354 3. Defenses 355 3. Partial Defenses 356 AjiTiciiE V. Counterclaim 358 Sec. 1. What it is 358 3. Rules for the Allowance of Counterclaims 364 Subd. 1. Against Assignees of Contracts 364 Subd. 2. Against Transferree of past due note 366 Subd. 3. Where a Party sues or defends in a Representa- tive Capacity 366 Subd. 4. In Actions for divorce or Separation 368 Subd. 5. In Actions by the People 368 3. When should be Pleaded 368 Subd. 1. When to be Pleaded 368 Subd. 3. How Pleaded 369 Subd. 3. Effect of Pleading Counterclaim 369 4. Judgments on the Counterclaim 369 Article VI. Demand of Relief .370 CHAPTEE XII. THE EEPLY. Article I. When to be Served 371 Article II. What to Contain 372 Article III. Judgment on Failure to Reply 373 CHAPTEE XIII. DEMUKEEE. Article I. When it lies 375 Article II. Form and Effect of the Demurrer 378 Sec. 1. Form 379 3. When Joined with Answer 379 3. Effect 379 Article III. Grounds of Demurrer to the Complaint 380 Sec. 1. That the Court has no Jurisdiction 380 3. That the Plaintiff has not Capacity to sue 381 3. Another Action pending 3S1 4. Misjoinder of Parties Plaintiff 333 '5. Defect of Parties 383 6. Misjoinder of causes of Action 384 7. No cause of Action 335 Article IV. Grounds of Demurrer to pleadings after Complaint . . . 387 Sec. 1. To the answer. , .' 387 TABLE OF CONTES.TS. XT PAGE. Sec. 2. To the counterclaim 388 'S. To the reply _ _ _ 389 Akticlb V. Amendments after Demurrer 389 Akticlb VI. When objection taken by Answer 391 Article VII. When objection is Waived 39I CHAPTEE XIV. ARREST AND BAIL. Abticle I. Cases where order of Arrest may be Granted 392 Sec. 1. Where right depends on Nature of Action 392 2. Where right depends partly upon Extrinsic Facts 404 Article II. Persons Liable to Arrest 406 Sec. 1. Who may be Arrested 406 2. Who are Privileged from Arrest 406 Article III. Order of Arrest 413 Sec. 1. Papers Necessary to obtain the Order 413 Subd. 1. The Affidavit. 418 Subd. 2. The Undertaking 416 2. When and by Whom granted 417 3. Contents of the Order 419 4. How order Vacated or Modified 420 Subd. 1. Time within which Defendant may apply .420 Subd. 2. How Application is made 422 Subd. 3. Where Defendant may apply 424 Subd. 4. Stipulation not to Sue 424 Subd. 5. Supersedeas 435 Article IV. Arrest, when and how made 427 Article V. Discharge on Bail or Deposit 439 Sec. 1. When Defendant may be Discharged 429 3. Defendant's Undertaking, and Justification 429 3. Deposit 432 4. Liability of Sheriff 434 Article VI. Charging and Discharging Bail 435 Sec. 1. When and how Defendant surrendered 435 3. Eights and liabilities of Bail 436 3. Defenses in Actions against Bail 43S CHAPTEE XV. INJUNCTIONS. Article I. Definition and Nature 441 Sec. 1. Definition 441 2. Nature and Object of the Remedy 442 Article II. When Injunction will be igranted 443 Sec. 1. General Principles 448 2. What Eight depends upon Nature of the Action 446 3. Where Eight depends upon Extrinsic Facts 447 4. Various Cases in which it will be Granted 448 Subd. 1. Contracts 449 XVI TABLE OF CONTENTS. PAGE. Subd. 2. Copyright 449 Subd. 3. Corporations 450 Subd. 4. Covenants 454 Subd. 5. Easements , 455 Subd. 6. Franchises 457 Subd. 7. Highways 457 Subd. 8. Judicial Proceedings .' 458 Subd. 9. Nuisances .463 Subd, 10. Office and Official Acts '. 465 Subd. 11. Personal Services. 469 Subd. 13. Publications 469 Subd. 13. Patents 471 Subd. 14. Taxes and Assessments 471 Subd, 15. Trade Marks 473 Subd. 16. Trespasses 474 Subd. 17. Torts 475 Subd. 18. Waste 475 Subd. 19. Water Rights 475 Article III. Proceedings to Obtain the Order 478 Sec. 1. When Application may be made 478 3. By whom granted 478 Subd. 1. General Rule 478 Subd. 3. Against State Officers 480 3. Notice of application 480 4.' Papers on which Granted 481 5. When an Injunction may be granted to Defendant 483 6. Filing papers 483 Abticlb IV. The order 483 Sec. 1. Contents of the Order 483 3. Service 485 3. Effect of the Order 485 4. Violation of the Order 486 5. Punishment for Violation 487 Aetiole V. Security 489 Sec. 1. On staying Proceedings in an Action 489 8. Security in other Cases 492 3. Security in special Cases 493 4. New Undertaking on Motion to Vacate 493 Aeticlb VI. Damages Sustained, by the Injunction 494 Sec. 1. Liability 494 2. When the right Accrues 495 8. How the Damages are Ascertained 496 4. What Damages allowed 497 5. Action on the Undertaking 499 AjRTioLE VII. Vacating or Modifying the Order 499 Sec. 1. Without notice 499 3. Upon notice 500 3. Vacating Injunction upon undertaking by Defendant 503 AETioiiB VIII. Effect of subsequent Proceedings in the Action 503 TABLE OF CONTENTS. Xvii CHAPTEE XVI. ATTACHMENT. PAGE. Articee I. When and by Whom it may be granted 505 Sec. 1. Who may Sue out an Attachment 505 8. In what Actions it may be granted 506 3. Against whom it may be Granted 509 Subd. 1. Against a Non-resident 509 Subd. 2. Against a Foreign Corporation 510 Subd. 3. Against Absconding or Concealed Debtors 510 Subd. 4. Against one Removing, Assigning, or Secreting Property 513 Subd. 5. Against Public Officers 513 4. When an Attachment will be Granted 514 5. By whom Granted 517 Ajiticm; II. Papers on which it may be Granted 517 Sec. 1. The Affidavit 517 2. Security on Obtaining Warrant 524 3. Contents of the Warrant 535 Aeticle III. Execution of the Warrant 526 Sec. 1. By whom, and how made 526 2. What property may be Attached 528 Subd. 1. Real property 528 Subd. 2. Personal property 528 3. How property to be Attached 532 Subd. 1. Real property 532 Subd. 2. Personal property capable of Manual Delivery. 532 Subd. 3. Other personal property 533 Subd. 4. Eflect of the Attachment 535 Subd. 5. Certificate and Examination 536 4. Rights of Master or Owner of Vessel ,539 5. Inventory 540 6. Action by Sheriff and Attaching Creditor 541 7. Care of the Property 543 8. Claim of Property 546 9. Proceedings'on claim of Vessel 546 Article IV. Vacating and Modifying Warrant 549 Sec. 1. Who may move and when 549 2. How motion may be made 552 3. New Proof 554 4. When more than one motion Allowed 556 5. Grounds upon which the Attachment will be Vacated 556 6. Effect of Vacating the Attachment 557 7. Application for Discharge of Property 558 Subd. 1. Who may make it 558 Subd. 2. Undertalcing 559 Subd. 3. Discharge of Vessel under the Attachment .... 561 Subd. 4. Application by Partners to Discharge Attach- ment 561 B XTIU TABLE OF CONTENTS. PAGE. Aetiole V. Regulations where there are two or more Warrants against the same Defendant 562 Sec. 1. Levy under a Junior Warrant 562 2. Attachment of Foreign Vessel under Junior Warrant 563 3. Rights of Junior PlaintifE as to Actions 564 4. Rights of third and other Attaching Creditors 565 Aktiole VI. Proceedings after Judgment 565^ Sec. 1. Execution 565 2. Judgment, how enforced 566 Aetici/E VII. Proceedings after Warrant has been vacated or Attach- ment Discharged 568^ CHAPTEE XVII. EECEIYEES, AND OTHER PEOVISIONAL EEMEDIES. Aktiole I. Receiver 570 Sec. 1 Who may be Receiver 570 2. Double Receiver 572 3. Appointment 573 Aktiole II. When and in what cases Appointed 575 Sec. 1. Before final Judgment 575 Subd. 1. In what cases 575^ Subd. 2. Application and notice 580 2. By or after final Judgment 582 Akticle III. Rights and liabilities of Receivers 583 Sec. 1. Security 583 2. What passes to Receiver 584 3. Powers of Receiver 586- 4. How controlled 589 5. Liabilities 590 6. Compensation. 591 7. How discharged or removed 592 Article IV. Receivers of Corporations 594 Sec. 1. In what cases Appointed 594 Subd. 1. Under the Code 594 Subd. 2. Under special Statute 597 Subd. 3. Application, where made 598 Subd. 4. Who may be Receiver of a Corporation 600 Subd. 5. Security 601 2. General powers and duties 601 3. Changing and discharging Receivers 609 4. Commissions 611 Akticle V. Deposit, Delivery or Conveyance 613 Akticle VI. General Provisions 614 Sec. 1. Electing between provisional Remedies 614 2. Time for deciding motions, limited 614 3. Defendant's right to provisional remedies 614 TABLE OF CONTENTS. XIX CHAPTEE XVIII. TENDERS APD OTHER OFPEES. PAGE. Aetiole I. Tender after Suit 616 Sec. 1. When it may be made 616 Sec. 2. How to be made 617 3. Effect of Tender 619 4. When to bededucted from Recovery 619 5. Payment into court 620 6. Care and disposition of money paid into Court 622 Aeticle II. Satisfaction of part of Plaintiff's Claim 623 Aktiole III. Offer to liquidate Damages 626 Sec. 1. When it may be made 626 2. Effect of acceptance or refusal 626 Article IV. Offer to compromise 626 Sec. 1. When made by Defendant 626 2. When made by Plaintiff 629 3. Acceptance 630 4. Effect of Refusal 630 CHAPTEE XIX. MISTAKES, OMISSIONS AND lEEEGULAKITIES. Aeticle I. Amendments 632 Sec. 1. What may be amended 632 Subd. 1. General Principles 632 Subd. 2. Amendment of Summons 635 Subd. 3. Processes other than Summons 636 Subd. 4. Judgments and Judgment rolls. 637 Subd. 5. Amendments of Miscellaneous Proceedings. . . 640 Acknowledgments 640 Affidavits 640 Attachment 641 Bonds and Undertakings 641 Cases 643 Commissions 643 Notices of appeal 644 Orders 644 Petitions 644 Returns 644 Sheriff's Certificates and deeds 645 Verdicts 645 2. Application for amendment 646 3. Mode of Amendment 646 4. Effect of amendment 647 Article II. Relief against Omissions and Mistakes 648 Aeticle III. Irregularities 650 Sec. 1. What are irregularities 650 2. Who may take advantage of Irregularity 651 XX TABLE OF CONTENTS. PAGE. Sec. 3. Remedy for Irregularity 652 4. Waiver of Irregularities 655 Aeticle IV. Defects cured by verdict or Judgment 656 CHAPTEE XX. ABATEMENT AND EEYIVAL. Aeticle I. When Actions Abate 658 Sec. 1. General Rule 658 2. Rules Appicable to particular Actions 659 Subd. 1. What does not abate 659 Subd. 2. What actions do abate 661 Abhole II. Continuance upon death of Party 663 Sec. 1. When sole party dies 663 2. Where one of several parties dies 666 Subd. 1. If the entire cause of action survives 666 Subd. 2. If part of the cause of action survives , . . . 668 Abticle III. Transfer of Interest, or Devolution of Liability 668 Sec. 1. Actions in General 668 2. Actions by and against public officers 670 3. Special cases 671 Article IV. How new parties brought in 673 Akticle V. When Court may order Action abated 674 Aeticle VI. Effect of verdict, report or decision 675 Sec. 1. Death of Party after verdict, etc 675 2. No verdict to be taken after Party's death 676 CHAPTER XXI. DISCOVERY OE BOOKS AND PAPERS. Aeticle I. When ordered 677 Sec. 1 What courts may make order 677 2. When granted 677 Subd. 1. Rules applicable to all cases 677 Subd. 2. Before issue 6<91 Subd. 3. After issue 683 Aeticle II. Petition and Order 684 Sec. 1. What petition shall contain 684 2. Order to show Cause 687 3. Order for Discovery, what to contain 687 4. When order may be Vacated * 688 5. Proceedings on return of the Order 689 6. Proceedings under the Order 690 7. Effect of Papers, etc., Produced 691 8. Penalty for Disobedience 691 TABLE OF CASES. A. Aaron V. Lee 146 A. & P. Tel. Co. V. B. & O. R. R. Co 153,484,486,487 Abbott Y. Am. Hard Rubber Co. 450 Abbott V. Curran 146 Abbott V. Jewett 635 Abeel v. Conhyser 180 Abeel v. Van Gelder 127 Abell V. N. Y. L. E. & W. R. R. Co 486 Acker v. Jackson 521, 523 Acker v. Leland 306 Ackerman v. Ackerman 33 Ackroyd v. Ackroyd 214 Adams v. Bissell 338 Adams v. Green 113 Adams v. Henry 144 Adams v. Mayor, etc 317 Adams v. McPartlin 296 Adams v. Nellis 30 Adams v. Roberts 372, 374 Adams v. Sherrill 254 Adams v. Speelman 533 Adrianoe v. Sanders 681 Agate y. Lowenbein 455 Agt. State Prison v. Rikeman. . 118 Aboyke v. Walcott 689 Aikins v. Colton 630, 621 Akin V. Alb. & Northern R.R.Co. 145 Alamango v. Superv's. Albany Co 373 Albany & K. R. R. Co. v. Brownell 468 Albany City Ins. Co. v. "Van Vranken 588 Albany City Sav. Bank v. Bur- dick 259 Alexander v. Bennett 40, 43 Alexander v. Myers 101 Alford V. Berkele 581 Allen V. Addington 645 Allen V. Allen 309 Allen V. Brown 108 Allen V. Fosgate 123 Allen V. Godfrey 4, 651 Allen V. Herschorn 513 Allen V. Hyde 405 Allen V. Malcolm 166 Allen V. Meyer. . . .200, 507, 533, 556 Allen V. Mille 85 Allen V. N. J. South. R. R. Co. 110 Allen V. Patterson 246, 247, 310 Allen V. Webster 86 Allis V. Leonard 351 Almy V. Thurber 537, 543 American D. & I. Co. v. Staley 869, 371 Am. Insulator Co. v. B. & M. Tel. Co 264 American U. Tel. Co. v. Mid- dleton 36 Amoskeag Mf 'g.Co. V. Spear. 472, 473 Amsinck v. Northrup 146 Anderson v. Doty 262, 444, 475 Anderson v. Hill o33 Anderson v. Hitchcock 94 Anderson v. Roberts 651 Anderson v. Speers 357 XXll TABLE OF CASES. Anderson v. Treadwell 577 Anderton v. Wolf 883, 384 Andrews v. Artisans' Bank 363 Andrews v. Astor 254 Andrews v. Cleveland 378 Andrews v. Harrington 149 Androvette v. Bowne 480 Annis v. Upton 370 Anon 303, 313, 333, 343 Anonymous 18, 33, 29, 102, 349 Anonymous (Roebling v. Dun- can) 404 Ansley v. Patterson 35 Anthony v. Day 383 Anthony v. Stype 513 Anthony v. Wood. .530, 531, 536, 543 Appleby v. Robinson 440 Archer v. English 631 Argall V. Bachrach 169 Argall V. Jacobs 373 Argotsinger v. Vines 835, 873 Armitage v. Hoyle 460 Armitage v. Pulver 343 Armstrong v. Hall 338 Arnal v. Rahlfl 341 Arnold v. Dimon 356 Arnold V. Downing 70 Arnold v. Keyes 669 Arnold v. Shapiro 403 Artaega v. Conner 430, 434 Arthur v. Brooks 388 Arthur v. Griswold 665 Arthur v. Homestead F. Ins. Co. 373 Ash V. Cook 665, 673 Astor V. Mayor, &c 48 Astor V. Pelache 627 Atkins V. Saxton 538 Atkinson v. Manks 388 Atlantic Dock Co. t. Leavitt... . 455 Attorney, Matter of 33, 34 Attorney, Matter of H 35, 34 Atty. Gen. v. Bk. of Columbia, , 571 Atty. Gen. v. Cohoes Co 463 Atty. Gen. v. Cont'l L. Ins. Co.. 317 Atty. Gen. v. Guardian Mut. L. Ins Co 176, 453, 595, 600 Atty. Gen. v. Life & P. Ins. Co.. 608 Atty. Gen. v. Mayor, etc 453 Atty. Gen. v. North America L. Ins. Co 99,591,618 Attrill Y. Rockaway 310 Auburn & CatoPl'k. R'd. Co. v. Douglas 457 Augrich v. McOwen 643 Austin V. Monroe 30 Austin V. Schluyter 319 Averill v. Williams 29 Avery v. Slack 150 Avery v. Willis 55 Ayers v. O'Parrel 373 Ayres v. Covill 357 Ayres v. Lawrence . .376, 454, 467, 473 Ayres v. Valentine 646 Ayres v. Western Rr'd. Corp . . . 176 B. B. & O. R. R. Co. V. Arthur . . 337, 338 Babbitt v. Crampton 678 Babcock v. Clark 59 Babcock v. Clarke 479 Bach V. Pacific Mail S. S. Co. . . 451 Bache v. Purcell 183 Bacon v. Cropsey 651 Bacon v. Kendall 403 Bacon v. Magee 300 Badger v. Benedict 337 Baere v. Armstrong 525 Bagaley v. Vanderbilt 444 Bailey v. Belmont 573 Bailey v. Inglee 106 Bailey v. Warden 17 Bain v. Globe Ins. Co 157 Baird v. Walker 85 Baker v. Bailey 349 Baker v. Burton 133 Baker v. Curtis 440 Baker v. Curtiss 241, 358, 346 Baker v. Hunt 630 Baker .v. Nussbaum 634 Baker v. Stephens 164 Baker v. Wales 153 Bakeman v. Pooler 617, 618 Baldwin v. Eazler 593 Baldwin v. Roberts 92 Balestier v. Metropolitan Nat. Bank 613 Ball V. Evening Post Pub.Co..276, 277 Ball V. Mander 236 Ballard v. Burrows 176 Ballard v. Fuller 438 Ballou V. Parsons 273 TABLE OF CASES. XXlll Balson v. Meggatt 17 Bangs V. Duckinfleld 596, 600 Bangs V. Selden 57, 190, 305 Bank of Com. v. R. & W. R. R. Co 159 Bank of Cumberland v. South- erland 631 Bank of Genesee v Spencer 204 Bank of Geneva v. Reynolds . . . 440 Bank of Havana v. Magee 308 Bank of Havana v. Moore 428 Bankof Kinderhook V. GifEord. 684 Bank of Lowville v. Edwards . . 296, 310, 381 Bank of Mut. Redemp. v. Stur- gis 537,573 Bank of Ogdensbm-gh v. Arnold 578 Bank of Rochester v. Emerson. 634 Bank of Sing Sing, Matter of. . . 71 Bank of U. S. v. Strong 235 Banks v. American Tract Soc'y . 503 Bannerman V. Quackenbusli... . 635 Bannister, Matter of 200 Barber v. Bennett 301 Barber v. Goodell 161 Barbour v. Boas 240 Barclay v. Brown 647 Barclay v. Quicksilver Min. Co . 588 Bard v. Poole 133 Barhyte v. Hughes 361 Barker v. Cook : . . .193, 428 Barker v. Cassidy 85 Barkley v. Rens. & Saratoga R. B. Co 274 Barkley v. Wilcox 477 Barnard v. Heydrick 142, 147, 170, 635, 644 Barnard v. Onderdonk.. . 70, 131 Barnes v. Gilmore 363 Barnes v. Henshaw 281 Barnes v. Mobile, etc., R. B. Co. 159 Barnes v. Ferine 308 Barnes v. Smith 340 Bamett v. Meyer 376, 634 Barnett v. Selling 399 Barnum, Matter of 187 Baron v. Biaren 516 Baron v. Cohen 30 Baron v. Martense 135 Barr v. N. Y. L. E. & W. R. R. Co Ill Barr v. Shaw 332 Barrett, Matter of 36 Barrett V. Third Ave. R. R. Co. 29 Barrington Appr't. Ass'n. v. Watson 454 Barry v. Fisher 531 Barry v. Mut. Life Ins. Co. of N. Y 219, 239,459 Bartlett V. Judd 77 Bartlett v. Spicer 37 Barton v. Fisk 497 Barton v. Hosner 113 Barton v. Salsich 483 Barton v. Speis 385 Bass V. Comstock 376, 384 Bassell v. Elmore 325 Bassett v. Bassett 79 Bate V. Felloews 294 Bate V. McDowell 624 Bates V. Jaines 206 Bates V. New Orleans R. R. Co.. 159 Bates V. Plonsky 542 Bates V. Rosenkrans 271 Bathgate v. Haskin 85, 330, 360, 627, 631 Batterman v. Finn 486 Bauer v. Schevitch 417 Bayard v. Smith 248 Bayley v. Onondaga Mut. Ins. Co 317 Baxter v. Arnold 176 Baxter v. Mo. Kan. & T. R.R. Co. 538 Baxter v. Seaman 193 Beach v. Bay State Co 272, 317 Beach v. Cooke 342 Beal V. Union Paper Box Co. . . 296 Bean v. Tonnelle 196, 416 Bear v. American Rapid Tel. Co. 384 Beards v. Wheeler 627 Beardsley v. Root 29 Beardsley V. Stover 286 Bebinger v. Sweet 329 Bech V. Ruggles 235 Beck V. Allison 286 Beck V. Stephani 237 Becker v. Boon 354, 619, 621 Becker v. Hager 220, 480 Becker v. Howard 185 Becker v. Van Valkenburgh. .64, 67 Bedell v. Powell 316 Bedell v. Shaw 67, 68 XXIV TABLE OF CASES. Beebe v. Robert 107 Beech v. South wort 232 Beecher v. Conradt 323 Beekman v. Platner 326 Beers v. Chelsea Bank 610 Beers V. Hendrickson 29 Beers v. Shannon 308 Belden v. Meeker 324 Bell V. Tilden 107 Bell V. Vernooy 11 Bell V. Yates 354 Bellamy v. Guhl 132 Bellinger v. Gardiner 417, 643 Belmont v. Cornen 168, 169 Belmont v. Erie R'y. Co 208, 209, 451, 597 Bender v. Sherwood 238, 625 Bendit v. Annesley 356 Benedict v. Benedict 495 Benedict v. Seymour 257 Benedict v. Stuart 31 Benedict, &c., Mfg. Co. v. Thayer 19,637 Benjamin v. E. J. & C. R. R. Co. 183 Bennett v. American Art. Un. . . 449 Bennett v. Brown 525 Bennett v. Chapin 592 Bennett v. Cook 79 Bennett v. Edwards 518, 522 Bennett v. Matthews 357 Bennett v. Pratt 193 Bennett v. Whitney 308 BenninghofE v. Oswell 412 Bensel v. Lynch 434 Benson v. Sayre 182 Bentley v. Smith 307 Benton v. Sheldon 15 Berdan v. Greenwood 621 Burden v. Berdell 126 Bergen v. Boerum 193 Bergen v. Wyckofl 137 Bernard v. Morrison 379 Berney v. Drexel 271, 382 Berrian v. Methodist Soc 157 Berrien v. Wright 81 Berry, Matter of 596 Best V. Palmer 638 Best V. Vedder 662 Bettis V. Goodwill 628 Betts V. Betts 635 Betzemann v. Brooks 515 Bewley v. Equitable Life Ins. Co ;..287, 633, 646- Bidwell V. Astor Mut. Ins. Co. . 310, 343 Bierce v. Smith 650 Bigelow V. Bush 133 Bildersee v. Aden 558, 559 Billings V. Baker 283 Billings V. Carver 486 Bills V. Nat. Park Bk 532, 536 Binney v. LeGal 628 Bird V, Hayden 36> Bishop V. Sullivan 28a Bissell V. N. Y. C. & H. R. R. R. Co 150,202,648 Black V. Rodger 557 Blackmore v. Glamorganshier, &c. Co 44a Blaisdell v. Raymond 262 Blake v. City of Brooklyn 454 Blake v. Eldred 301 Blake v. Griswold 658, 659 Blake v. Mich. So. R. R. Co. . . : 236 Blakelee v. Buchanan 395 Blanchard v. Strait 146 Blank v. Hartshorn. . . .257, 309, 327 Blatchford v. Ross 450 Bleakley, Matter of 29 Blewett V. Baker 617 Bliss V. Bliss 644 Bliss V. Molter 233, 559 Blodget V. Conklin 629 Bloodgood V. Ayres 477 Bloodgood V. Bruen 86 Bloomingdale v. Barnard 462 Blossom V. Barrett 331 Blossom v. Estes 507, 515 Board of Education v. King 682 Board of Supervisors v. Walter. 76 Boardman v. Lake Shore & M. S. R. R. Co 79 Bockover v. Harris 360 Bogardus v. N. Y. L. Ins. Co.. 272, 380 Bogart V, Dart 508, 511 Bogart V. Sweezy 515, 516 Bogert V. Vermilya 79 Boker v. Curtis 490 Bolles V. DufE 210 Bolton V. Shriver 65 Bomberger v. Turner 350 Bond V. Smith 660, 66* TABLE OF CASES. XXV Bonnell v. Griswold 111, 272, 336 Bonnell v. R. W. & O. R. R. Co. 663 Bonnell v. Wheeler 336 Bonner, Matter of 49 Bookhout, Matter of '42, 199 Boorman v. A. & P. R. R. Co. .. 679 Booth V. Clark 588 Borst V. Corey 72 Bort V. Snell 119 Boscher v. Roullier 557 Boston Loco. Wks. v. "Wright. .. 265 Boston Silk & W. Mills v. EuU. 358 Bostwick V. Dry Goods Bk 376 Bostwick V. Elton 482 Bostwick V. Menck 291 Bostwick V. Van Voorhis 315 Boucicault v. Boucicault 405, 418 Boughton V. Flint 84 Boutwell V. O'Keef e 317 Bowdoin v. Coleman S89 Bowe V. Arnold 542 Bowe V. Wilkins 558 Bowen v. First Nat'l. Bank 551 Bowen v. Stilwell 413 Bowers v. Durant 578 Bowery Bank, In Re. . .571, 572, 592 Boweiy Sav. Bk. v. Malher 239 Bowie V. Brahe 18 Bowles V. Van Home 343 Bowling Green Sav. Bk. v. Todd. 25 Bowman v. Bowe 431 Bowman v. Earl 280, 281 Bowman v. Gates 430 Bowman v. Sheldon . . . .194, 300, 641 Boyce v. Brown 346 Boyd V. Murray 577, 578 Boyd V. Vanderkemp 4, 636 Boyle V. City of Brooklyn 313 Boylen v. McAvoy 143 Boylston v. Wheeler 135 Brackett v. Griswold 662 Bradbury V. Winterbottom . .633, 635 Bradley v. Aldrich 341 Bradley v. Fisher 34 Bradley v. Parker 557 Bradley v. Sheehy 386 Bradner v. Holland 332, 385 Bradner, Matter of 229, 425 Bradstreet v. Bailey 689 Bradt v. Church 68 Brady v. Brundage 434 Brady v. Waldron 476 Brady v. Weeks 465 Brainard v. Jones 123, 383 Brainard v. White 183, 186 Brake, Matter of 216 Brandon v. Brandon 77 Brandon Mfg. Co. v. Pettingill. 145 Brandreth v. Lance 469 Brash v. Wielarsky 538, 557 Bray v. Parwell 109 Bray v. Poillon 497 Breiman v. Paasch 895 Brett V. First Universalist So- ciety 123 Bretz V. Mayor, etc 248 Breunich v. Weselman 855 Brewsterv. Hodges 448 Brewster v. Sackett 379 Brewster v. Stewart 335 Brewster, Matter of 23 Brewer v. Temple 333 Brewer v. Tucker 551, 553 Brick V. Fowler 320 Bridenbacker v. Hoard 109 Bridenbecker v. Mason 627, 628, 629, 652 Bridge v. Payson 355 Bridges v. WyckofE. 67 Brien v. Casey 161 Brigg V. Hilton 326 Briggs V. Preedman 297 Briggs V. Gaunt 234 Briggs V. Vick 469 Brinckerhoff v. Bostwick.. . . 121, 588 BrinkerhofE v. Perry 302 Brittan v. Peabody 197 Broadhead v. Broadhead 228 Brodie v. Cronley 484 Broiestedt v. South Side R. R. of Long Island 475 Brooklyn Bank v. DeGrauw. ... 617 Brooklyn Trust Co. v. Bulmer. . 173 Brooks V. Hanchett £01 Brooks V. N. Y. & Greenwood L. R. R. Co 177 Brooks V. Patterson 28 Brooks V. Schultz 200 Broome v. Taylor 254, 255 Brown v. Ashbourgh 898 Brown v. Babcock 114 Brown v. Brown 113, 175 :x;xvi TABLE OF CASES. Brown v. Buckingham 363 Brown v. Champlin 317 Brown v. Colie 317 Brown v. Cook 324 Brown v. Delafield 79 Brown v. Feeter 373 Brown v. Gallaudet 368 Brown v. Guthrie 543 Brown v. HaiE 405 Brown v. Harman 348 Brown v. Lee 283 Brown v. Marrigold 163 Brown v. Mayor 31, 34 Brown v. McCune 408 Brown v. Nichols 177, 577 Brown v. O'Brien 74 Brown v. Richardson 293 Brown v. Ryckman 347 Brown v. Stebbins 317 Brown v. Story 103 Brown v. Volkening 134 Brownell v. Akin 405 Brownell v. Marsh 197 Brownell v. Nat'l. Bk. of Glov- ersville 303, 303, 683 Browning v. Abrams 412 Brotherson v. Consalus 31 Bruce v. D. & H. Canal Co 445 Bruce v. Kelley 331, 396 Bruce v. Tilson 77 Brurickenhofi v. Bostwick 35 Brush V. Barrett 84 Brush V.Lee 36 Brumskill v. James 135 Buchan v. Sumner 36, 633 Buckbee v. Brown 107 Buckingham v. Sweezy 511, 557 Buckingham v. White 539 Buckley v. Buckley 155 Buckley v. Eckert 531 Bucklin v. Chapin 89 Bucknam v. Brett 667 Budd V. Bingham 319, 339 Bullock V. Bemis 286, 587, 589 Bullymore v. Seward 359 Buhlv. Ball 553 Buhl V. Bull 513, 530 Buhler v. Wentworth 955 Bunce v. Reed 227 Burbank v. Beach 130 Burbank v. Fay 63 Burch V. Canavaugh 345, 575 Burchard, Matter of 33, 33 Burd, Matter of 34 Burden v. Burdell 583 Burden v. Burden 679 Burger v. Baker 654 Burhans v. Casey. 401, 634 Burhans v. Tibbitts 645 Burke v. Ashley 354 Burkhardt v. McClellan 535 Burkhardt v. Sandford 535 Burlingame v. Parce 578 Burnet v. Bisco 316 Burnett v. Westfall 637 Burnham v. Acton 442 Burnham v. Brennan 645 Burns v. O'Neil 350 Burns v. Bobbins 433 Burrall v. Moore 284, 296 Burstall v. Horner 620, 621 Burtis V. Thompson 316, 333 Burton v. Sherman 178 Bush V. Hicks. 460 Bush V. Prosser 245, 357 Bush V. Shaw 72 Bush V. Stevens 316 Butchers' & Drov. Bk. v. Jacob- son 255 Butler V. Kelsey 4 Butler V. Mason 311 Butler V. Viele 320 Butterfield v. Macomber 314 Butts V. Scheiflelin 651 Butts V. Wood 121 Buzzard v. Knapp 316 Byard v. Holmes 320 Byrnes v. Dunn 285 c. C. & R. Plank Road Co. v. Parker 56 Cadwell v. Goodenough 280 Cafiero v. Dematrino 431 Cagger v. Lansing 319 Caldwell v. Raymond 325 Calkin v. Beattie 241 Calkins v. Isbell 87 Callanal v. Gilman 457 Calvo V. Davies 386 Camp V. Barney 590 Camp V. Niagara Bank 609 TABLE OF CASES. XXVll Campbell v. Carter 475 Campbell v. Conner 540 Campbell v. Grove 193 Campbell v. Hoge 678, 683 Campbell v. Seaman 464 Campbell v. Spencer 224 Compbell v. Spratt 592 Campbell v. Taylor 169 Campbell v. Wright 332 Canal «& Walker Sts., Matter of . 40 Candee v. Doying 275 Canfleld v. Ford 130 Carlton v. Carlton 168 Carman v. Newell 10 Carpenter v. Adams.. . .282, 295, 296 Carpenter v. Danf orth 502 Carpenter v. Keating 490 Carpenter y. Manhattan L. Ins. Co 363 Carpenter v. N. Y. & N. H. R. R. Co 450 Carpenter v. O'Dougherty 132 Carpenter v. Stillwell 17 Carpenter v. West 300 Carpenter v. Willett 484 Carr v. Carr 126 Carr v. Thompson 78 Carrier v. Dellay 398 Carter v. DeCamp 378, 384 Carter v. Koezley 353 Carter v. Youngs 163 Casper v. Wallace 531 Cass V. Higenbotam 617, 618 Cassidy v. Daly 888 Castree v. Kirby 898 Catholic Proct. Matter of 56 CatUn V. Doughty 93 Catlin V. Gunter 388, 289, 634 Catlin T. Ricketts 515 Caulkins v. Bolton 351 Cawley v. Costello 815 Cayuga Co. Bk. v. Warden 646 Cemetry B'd. v. Teller 149 Center v. Billinghurst 867 Central Cross T. R. R. Co. v. Bleeker St. &c. R. R. Co. .481, 501 Central Cross Town R. R. Co. v. Twenty-third St. R. R. Co. . . . 679 Central Nat. Bk. v. White 689 Cercle Francais de L'harmonie V.French 468 Chadbourne v. D. L. & W. R. R. Co 281 Chadwick v. Chase 154 Chadwick v. Spargur 463 Chaflee v. Jones 154 Chamberlain v. B. N. Y. & P. R. R. Co 494,508 Chamberlain v. Dempsey 345 Chamberlain v. Greenleaf 571 Chamberlain v. Roch. Seamless P.V. Co 596 Chambers v. Appleton 15 Chambers v. Clearwater 11, 651 Chambers v. Durand 433 Chambers v. Lewis 360 Chamboret v. Cagney 362 Champion v. Webster 341 Champlin v. Deitz 149 Chandler v. City of Pon du Lac 567 Chandler v. Stevens 375, 280 Chapin v. Foster 425 Chapin v. Seeley 428 Chapin v. Thompson 591 Chapmanv. City of Rochester.. 477 Chapman v. Douglas 596 Chapman v. Fonda 80 Chapman v. Palmer 350 Chapman v. Wilber 248 Chappell v. Potter. , 460 Chase v. Behrman 354 Chase v. County of Saratoga 118 Chase v. Edwards 195 Chase v. Lawson 168 Chase v. Lord 73, 660 Chase v. Vanderbilt 36, 110, 446 Chatham Nat'l. Bk. v.Merchants' Nat'l. Bk 193 Chauncey v. Lawrence 295 Chautauqua Co. Bk. v. Risley. . 585 Chautauqua Co. Bk. v. White. . 320, 578 Chawviteau v. Fay 373 Cheetham v. Tillotson 646 Chem. Nat'l. Bk. v. Carpen- tier 254,295 Chemung Bk. v. Judson 319 Chester, ex parte 94 Chillcott v. Waddingham 241 Chipman v. Montgomery 113 Christie v. Bogardus 490, 491 xxvm TABLE OF CASES. Christie v. Gage 64 Christie v. Herricli 133 Christiensen v. Eno 76 Christy v. Perkins 292 Chryslin, ex parte 641 Chubhuclc V. Morrison 418 Church V. Van Bruen 92 Church V. United Ins. Co 214 Churchill v. Onderdonlc 135 Cinsmore v. Board of Police 467 City of Buffalo, Matter of. . .648, 653 City of Rochester v. Bronson. . . 600 City Nat'l. B'k. v. Nat'l. Park B'k 364 Citizens' Nat'l. B'k. v. Vorhis. . 394 Clady V.Wood 180 Claflin V. Frenkel 398 Claflin V. Gordon 121, 123 Claflin V. Hamlin 459 Claflin V. Houseman 34 Clapp V. Graves 214, 633 Clapp V. Schutt 437 Clare v. National City Bank. ... 271 Clark V. Binninger 592 Clark V. Boreel 169 Clark V. Brooks 201 Clark V. Clark 298 Clark V. Dillon. . . .246, 270, 349, 351 Clark V. Goodridge 533 Clark V. Grant 154, 411 Clark V. Gray 621 Clark V.Hall 639 Clark V. Havens 186 Clark V. Lynch 536 Clark V. McFarland 223 Clark V. Titcomb 120 Clark V. Van Amburgh 86 Clark V. Van Deusen 379 Clark V. Village of Dunkirk . . . 471 Clark V. Warren 533 Clarke v. Coles 340 Clarke v. Gibbons 64 Clarke v. Miller 633, 637 Claud V. McKenzie 653 Clay V. Baker 263 Clegg V. Am. Newspaper Union. 278 Clerk's Pees, Matter of 15 Cleveland v. Barrows 334 Cleveland v. Hatch 273 Clews v. Rockford, R. I. & St. L. R. R. Co 159,508 Clickman v. Clickman 202, 641 Clifford v. Dam 355 Clifton V. Brown 283, 284 Clinch V. Southside R. R. Co. . . 595 Clinton v. Eddy 88, 358, 37'^ Clinton v. King 179 Clinton Liberal Inst. v. Fletcher 451 Close V. Gillespie 14, 634 Clough V. Hoffman 321 Clussman v. Markel 29 Clute v. Voris 125 Clyde V. Rogers 678, 688, 689 Coates V. Coates 498 Coates V. Goddard 631 Cockerill v. Loonam 369 Cockey v. Hurd 200 Coffin V. Lester 640 Coffin V. Pros. Park & C. I. R. R. Co 50O Coffin V. Stitt 555 Coit V. Beard 242 Colt V. Campbell 663 Coit V. Stewart 364 Cole V. Jessup 79 Cole V. McClellan 28, 411 Cole V. McGarvey 140 Cole V. Reynolds 106 Coleman v. Bean 525, 560 Coleman v. Phelps 334 Coleman v. Second Ave. R.R. Co. 72 Colis V. Soulsby 355 Collins V. Campfleld 163 Collins V. Coggill 297 Collins V. Collins 395 Collins, Matter of 93 Collins V. Ryan 164 Collis V. Alburtis 350 Colton V. Jones 333 Columbian Ins. Co. v. Stevens. . 591 Col. Ins. Co. V. Force 161, 421 Colwell V. Cudlam 275 Com'l. Bank v. PfeifEer 257 Com'l. Bk. of Albany v. Dun- ham 679 Com. Warehouse Co. v. Graber. 432 Comstock V. Hoeft 309 Comstock V. Smith 316 Conaughty v. Nichols 246 Conger v. Duryee 123 Conger v. Vanderwater 70 Conklin v. Dutcher 417 TABLE OF CASES. XXIX Conkling v. Gandall 255 Conn. Bank v. Smith 315 Connelly v. Krets 593 Consalus, Matter of 113 Considerant v, Brisbane 130 Continental Store S. Co. v. Clark 448, 471, 482 Cook V. Chase 381 Cook V. Dickerson 490, 491 Cook V. Litchfield 383 Cook V. Ritter 29 Cook V. Staats 194 Cook V. State Nat'l. Bank 35 Cook V. Warren 247, 271, 395 Cook V. Whipple 84, 35 Cooke V. Appleton 505 Cooley V. Lawrence 176 Coon V. Knapp 649 Cooney v. Whitfield 523 Cooper V. Bissell 645 Cooper V. Burr 307 Cooper V. First Pres. Ch 453 Cooper V. Jones 283 Cooper, Matter of 655 Cooper V. Newland 132 Corbet v. Brown 17 Cordier v. Thompson 308 Corey v. Long 576, 587, 589 Corkings v. State 78, 84 Cormier v. Hawkins 894 Cornell v. Dakin 854 Cornell v. Funk 531 Cornell v. King 445 Cornell v. Moulton 236 Cornell v. Woolsey 684 Coming V. McCullough 73 Corning v. Slosson 11 Corning v. Southland ,29 Corning v. Troy Iron & Nail Factory 477 Cornwall v. Cornwall 287 Corson v. Ball 508 Corwin v. Freeland 413 Cosgrove v. Bowe 434 Cossitt V. Winchell 179, 515 Coster V. Phoenix 646 Cothran v. Hanover Nat'l. Bk. . 293 Couch V. Mulhane 177 Coughlin V. N. Y. C. & H. R. R. R. Co 30,31 Coulter V. Murray 465 Coursen v. Hamlin 623, 624 Covell V. Hart 39 Cowdin V. Cram 405 Cowenhoven v. City of Brooklyn 342 Cowper V. Theall 461 Cox V. N. Y. C. & H. R. R. R. Co 29, 662 Cox V. Parry 021 Cozine v. Walter 438 Cragin v. Lovell 36, 257, 359, 388 Craig V. Roch. City & Brighton R. R. Co 456 Cram v. Moore 678 Crandall v. Beach 137 Crandall v. Bryan 398, 414 Crandall v. McKaye 523 Crane v. Crofoot 203 Crary v. Goodman 68 Crary, Matter of 538, 539 Crawford v. Castner 403 Creed v. Hartman 124 Cregin v. Brooklyn C. T. R. R. Co 10,660, 666 Cridler v. Curry 123 Crippin v. Culver 100 Crocker v. Baker 320, 483 Crogham v. Livingston 642 Cromwell v. Van Rensselaer. . . 197 Cronkhite v. Cronkhite 456 Crook V. Jewett 397 Crooke v. Anderson 136 Crosier v. Cornell St. Bt. Co. .. . 198 Croton Ins. Co., Matter of 608 Croty V. McKenzie 31 Crounse v. Syr. Chen. & N. Y. R. R. Co 498 Crouse v. Paddock 438 Cruger v. Hudson R. R. R. Co.. 270 Cuff V. Borland 669 Gumming v. Brown 75 Gumming v. Egerton 98, 587, 590 Cummings v. Morris 108 Gummings v. Wooley 414 Cummins v. Barkalow 120 Cunard S. S. Co. v. Voorhis 446 Cunningham v. Pell 110 Cunningham v. Widing 30 Currie v. Currie 358 Currie v. Reilly 524 Currey v. Bowker 653 Curtis V. Green 190 XXX TABLE OF CASES. Curtis V. Hitchcok 186 Cutler V. James Gould Co 528 Cutler V. Rathbone 636 Cutler V. Wright 379, 580, 591 Gutter V. Pool , 677 Cutter V. Rathbone 642 Cutting V. Damerel 588 D. Dainese v. Allen 459 Dakin v. Dunning 619, 621, 622 Dake v. Miller 177 Dalrymple v. Williams 646 Dalton V. Sandland 664 Daly V. Burchell 133 Daly V. Smith 469 Dambman v. Schulting 382 Danaher v. City of Brooklyn . . . 339 Danfortb v. Culver 86 Daniel v. Daniel 277 Dannenbaum v. Mandelbaum. . . 416 Darragh. v. McKim 189 Darrow v. Miller 296 Davies v. Davies 129 Davis V. American Soc. etc 475 Davis V. Ainsvrorth 545 Davis V. Brooks 522 Davis V. Duffle 155 Davis V. Dunham 679 Davis V. Hoppock 247, 349 Davis V. Mayor, etc 116, 485 Davis V. Rich 194 Davis V. Richards 673 Davis V. Stover 267 Davidson v. Alfaro 369 Davidson v. Chatham Nat. Bk. . .542 Davidson v. Seligman 303 Davison v. Baker 153 Davison v. Powell 306 Dauchy v. Miller 200, 201 Dawley V. Brown 382 Dawson v. American Surety Co. 462 Dawson v. Bogart 283 Day V. Bach 558 Day V. Mayor, etc 20 Day V. Stone 336 Dayton v. Connah 324 Dayton v. Wilkes 470 Dean v. Biggs 607 Dean V. Eldridge 93 Dean v. Hewitt 88 Dean v. Roseboom 113 DeBemer v. Drew 160 DeCaters v. DeChaumont 646' Decaumont v. Morgan 124 Decker v. Kitchen 213, 295, 391, 650, 654 Decker v. Mathews 247 Dederick v. Richley 653 DeForest v. Baker 299' DeFreest v. Warner 87 DeGroot v. Jay 99 Delafield v. Illinois 34, 35- Delafield v. Kinney 314- DeLancy v. Murphy 237 DeLavalette v. Wendt 84 DeLisle v. Hunt 661 DeMelt v. Leonard 218- Deming v. N. Y. Marble Co 585- Dempsey v. Lepp 395- Denman v. McGuire 536 Denike v. N. Y. & H. Lime Co. 573, 59T Dennison v. Dennison 349, 350 Dennison v. Plumb 75 Denniston v. Trimmer 364 Denny v. Smith 79' DeNobele v. Lee 253 Depeyster v. Warne 196, 654 DePuy V. Strong 123, 375 Derby v. Yale 313 Derham v. Lee 259, 85a DeRidder v. Schermerhorn. .... 123^ DeSilver v. Holden 334 Devlin v. Bevins 371 Devlin v. Hope 308, 574 Devoe v. Ithaca & Owego R. R. Co 600 DeWeerth v. Feldner 415 Dewey v. Hoag 370 DeWitt V. Chandler 110' DeWitt V. Nobles Mfg. Co 36 DeWitt V. Van Schoyk 458 Dezengremel v. Dezengremel . . 354 Diamond v. Williamsburgh Ins. Co 385,286 Diamond Match Co. v. Roeber. . 449 Dias V. Merle 690 Diblee v. Mason 148, 63& Dick V. Phillips 677, 685, 687 Dickinson v. Benham 551 TABLE OF CASES. XXXI Dickinson v. Mayor 74 Dickson v. McCoy. 324 Didier v. "Warner 348 Dietz V. Faxish 649 Dillon V. Sixth Ave. R. R. Co. . 371 Dimisk v. Cooley 32, 88 Dinan v. Allen 526 Dinsmore v. A. & P. R. Co Ill Dinsmore v. Adams 654 Dinsmore v. Neresheimer 459 Disbro v. Disbrb 478, 494 Dix V. Palmer 177 Dixon V. Beach 423 Dodge V. Colby. 36, 332, 389 Dodge V. Porter. 544 Dodge V. St. John 333 Dodge & Stevenson Mfg. Co., Matter of 10, 11 Doe V. Green 301 Doellner v. Tynan 465 Doherty v. Matsell 665 Dolan V. Petty 623, 624 DoUfus V. Frosch 208 Dominy v. Miller 66 Donadi v. N. T. S. Mut.Ins. Co. 157 Donnell v. Williams 515, 520 Doolittle V. Supervisors 453 Doolittle V. Tice. 67 Doolittle V. Ward. 323 Dorn V. Fox 337 Doty V. Mich. Cen. R. R. Co... . 157 Doty V. Russell 189 Douglas V. Haberstro 177, 437, 440, 636 Douglass V. Delano 679, 689 Douglass V. Rathbone 315 Douglass V. Wiggins 476 Douoy V. Hoyt 324 Dovan v. Dinsmore. 247, 800 Dowdney v. Volkening 274 Dows V. Green 386 Doyle V. O'Farrell 241 Drake v. Hud. R. R. R. Co 478 Draper v. Beers. 414 Draper v. Draper 319 Dteyfus v. Otis 413, 414 Drevert v. Appsert 365 Drown v. Ferguson 617 Dry Dock E. B'way. & Batt. R. R. Co. V. Cunningham 493 Dubois V. Beaver • 350 Dubois V. Oassidy 139' Dubois V. D. & H. C. Co 381 Dubois -". Hermance 854 Dubois V. Thompson 401 Dudley v. Mayhew 36 Duff V. Hutchinson. . . .680, 682, 684 Duffy V. Brady 267 Duffy V. Casey 588 Du% V. O'Donovan 617, 6ia Duke of Brunswick v. King of Hanover 36 Duncan v. Ainslie 635 Duncan v. Berlin 535 Duncan v. Guest 614 Duncan v. Katen 407 Duncan v. Ray 381 Dunford v. Weaver 153 Dunham v. Bower 369 Dunham v. Dodge 87 Dunlap v. Commercial Ins. Co . . 620 Dunlop V. Patterson P. Ins. Co. 528, 530, 587, 585 Dunn V. Dunn 153 Dunn V. Mason 335 Dunning v. Bank of Auburn. . . 336 Dunning v. Humphrey 617 Duprat V. Havemeyer 300- Durant v. Gardner 848 Dusenbury v. Dusenbury. . .341, 581 Dusenbury v. Keiley 85 Duty V. Russell 658 Duyokinck v. N. Y. Elev. R. R. Co 28* Dwight v. Germania L. Ins. Co. 376, 278, 279, 281 Dwindle v. Eddy 71 E. E. Matter of 23 Eagan v. Moore 629, 637 Eagle V. Underbill 93 Eagle Iron Works, In Re. . .571, 574 Eagleston v. Son 307 Earl V.David 93 Earle v. Chapman 153 Earle v. David 387 Earle v. Earle 113, 231, 232 Earle v. Scott 331, 384 Easterbrook v. Easterbrook 168 Eastman v. Starr 490 XXXll TABLE OP CASES. East River Bk. v. Cutting 105 East River Bk. v. Judah 314 Easton v. Cassidy 394 Easton v. Malavazi 511, 523 Eaton V. Alger 123 Eaton V. Balcam 383 Ebbinghousen v. Worth Club. .. 110 Eberhart v. Schuster 33 Eckert v. Belden 397 Eckstein v. Frank 408 Edick v. Green 518, 519 Edmonston v. McLoud 486 Edmunds v. Barton 17 Edwards v. Downs 259 Egan v. Walsh 577 Egert v. Wicker 288 Ehle V. Haller 258 Eighmie v. Taylor 285 Eitel v. Bracken 48 Elder v. Bogardus 114, 689 Eldred v. Markham 301 Eldridge v. Howell 642 Eldridge, Matter of 23, 24 Electrical Power Storage Co. v. Whiting 444 Eleventh Ward Sav. Bk. v. Hay. 235 Elliott V. Kennedy 227 Ellsworth V. Brown 241 Ellsworth V. Scott 559 Elwopd V. Dief endorf 85 Ely V. Mumford 415 Emerson v. A. & O. L. R. R. Co 156, 157 Emerson v. Auburn etc. R. R. Co .' 157 Emery v. Baltz 349 Emery v. Pease 313 Emigrant Ind. Sav. Bk. v. Gold- man ,.. 133 Emmons v. Campbell 504 Engel V. Fischer 79 Engel V. Kuche 449 English V. Furniss 289 Ennis v. Curry 32, 33 Enos V. Leach 383 Enos V. Thomas 331 Ensign v. Sherman 319 Equitable L. Ass. Soc. v, Cuy- ler 273,369,371, 372 Equitable L. Ins. Co. v. Stevens 03 Erickgon v. Poey 102 Erickson v. Quinn 73 Erie Ry. Co. v. Gould 200 Erie Ry. Co. v. Ramsey 458, 485 Erisman v. Pidcock 190 Ervin v. Oregon Ry. & Nav. Co 177,679 Ervin v. Oregon Steam Nav. Co. 159 Erwin v. Hurd 453, 455 Evans v. Backer 218, 219 Evans v. Holmes 422 Evansvllle Nat'l. Bk. v. Kauf- mann 108 Everson v. Gehrman 628 Ewart V. Schwartz 394 Ewing V. Johnson 486 F. Fairchild v. O. C. & R. Ry. Co. 348 Fairweather v. Satterly 142 Falconer v. TJcoppell 223 Fales V. Hicks 296 Fallon V. Durant 350, 373, 389 Fanning v. Osborne 456 Farcy v. Lee 327 Farish v. Austin 92 Farmer v. Robbins 155, 421 Farmers' Bank v. Blair 124 Farmers' L. & T. Co. v. Dick- son 160, 428,635 Farmers' Loan & T. Co. v. Reid. 142, 656 Farmers' Nat'l. Bk. v. Williams 137 Farmers' & Cts' Bk. v. Sherman 303 Far. & Mechs' Bk. v. Wads- worth 314 Farnsworth v. Wilson 303 Farnsworth v. Wood 112 Farrand v. Marshall 456 Farrington v. Birdsall 484, 486 Farrington v. Freeman 490 Fassett v. Tallmadge 593 Faulk V. Kamp 302 Fawcett v. Vary 633 Fellerman v. Dolan 361 Fellows V. Fellows 484 Fellows V. Heermans. ..443, 573, 582 Fenn v. BoUes 572 Fenner v. Robbins 412 Ferguson v. Crawford 178, 651 Fern v. Vanderbilt 309 TABLE OP CASES. XXXlll Ferner v. Williams 318, 323 Ferria v. Myrick H4 Ferriss v. N. A. F. Ins. Co 384 Fetridge v. Merchant 473 Fetrldge v. Wells 473 Fettretch v. McKay 295 Field V. Gibson 113 Field Y.Park 4 Field V. Van Cott 123 Fielden v. Carelli 391 Fielding v. Lucas 458 Fields V. Bland 397 Filer, Matter of 231 Filer v. N. Y. C. R. R. Co 829 Finch V. Carpenter 92 Finck V. Police Com'rs 445 Fincke v. Funke 585 Fink V. Jetter 277 Fink V. Justh 857 Finnegan v. Carraher 128 First Nat. Bk. v. Heaton G49 First Nat'l. Bk. of Utica v. Ballon 87 First Ref. Pr. Ch. v. Bowden. 122, 452 Fish V. Hose 877, 387 Fish V. Ferris 312 Fisher v. Charter Oak L. Ins. Co 381,386 Fisher v. Dougherty 553 Fisher v. Gould 212, 390 Fisher v. Lyon 141 Fisk V. Chicago etc., R. R. Co.300, 201 risk V. Spring 545, 546 Fiske V. Anderson 173 Fitch V. Bigelow 267 Fitzgerald v. Blake 184, 544 Flandrow, Matter of 530, 534 Fleischmann v. Bennett..256, 290, 377 Fleischmann v. Stern 273, 352 Fletcher v. Updyke 87 Florence v. Buckley 102 Florance v. Butler 198 Flynn v. Hudson R. R. R. Co. .. 157 Fogg V. Edwards 283 Foley, Matter of 529 Follett V. Jewett 390 Folsom V. Marsh 470 Foot V. Bronson 122 Foot V. JFarrington 73 Foot V. Harris 163 Foot V. Morgan 10, n Foote V. Lathrop 155 c Forbes v. Garfield 87 Forbes v. Whitloc-. HO Ford V. Belmont 135 Ford V. Ford ; 55 Ford V. Leche l"? Forrest v. Forrest 405^ 460 Forrest v. Mayor etc 324 Forstman v. Schulting 33 Forsyth v. Edmiston 333 Fort Plain B'dg. Co. v. Smith.133, 457 Forty-second St. R. R. Co. v. Thirty-fourth St. R. R. Co.. . . 434 Fosdick V. Grofl 353 Foster v. Townsend 98, 99 Foster v. Townshend 23, 588 Fosgate v. Herkimer Mfg. Co. . 128 Foster v. City of Buffalo 456 Foster v. Foster 139 Fowler v. Burns 483 Fowler v. Callan 26 Fowler v. Huber 209 Fowler v. Van Surdam 74 Fowler's petition 680 Fox V. Fitzsimons 474 Fox V. Fox 31 Francis v. Shoellkopf 136 Francis v. Sitts 324 Frankel v. Elias 74 Frankle v. Hays 519, 520 Frazer v. Phelps 687 Fredericks v. Mayer 469 Fredericks v. Taylor. . .263, 263, 269 French v. Board of Education. . 468 French v. Powers 2 French v. Salter 336 Freeman v. Dutcher 92, 887 Freeman v. Falconer 108 Freeman v. Frank 356 Freer v. Denton 257, 832 Frees v. Ford 310, 381 Frets V. Frets •. 310 Freund v. Washburn 139 Frick V. White 365 Friedsman, Matter of 25 Friend v. Michaelis 513 Frisbie v. Young 155, 410 Frothingham v. Broadway etc. R. R. Co. 679)683 Fry y: Bennett 245, 255, 273, 357, 348, 388 Fullan V. Hooper. 462 XXXIV TABLE OF CASES. Fuller V. Roosevelt 380 Fuller V. Scribner 185 Fuller V. Sweet 241 Furman v. Walter 50,7, 523 Fulton F. Ins. Co. v. Baldwin. . 378 G. Gadsden v. Woodward 262 Gaflney v. Bigelow 174, 222 Gailliard v. Smart 29 Gale, Matter of 23 Gale V. Vernon 216 Gallagher v. Karns 576 Gaillatin v. Oriental Bk 446 Gallie v. Eagle 139 Galloway. Matter of. 510 Gallt V. Finch 314, 226 Galusha v. Flower City Nat. Bk. 501 Galway v. U. S. Steam Sugar Ref. Co 460,597 Gansevoort v. Gilliland 645 Garbutt v. HanfE 551 Garden v. Sabey 544 Gardiner v. Gardiner 395 Gardinier v. Knox 277 Gardner v. Clark 355 Gardner v. Gardner 87, 503 Gardner v. Kraft 137, 307 Gardner v. Locke 302 Gardner v. Ogden 35 Gardner v. Walker 667 Garland, Ex parte 22, 99 Garner v. Harmony Mills 335 Garner v. Wright 121 Garr v. Bright 117 Garretson v. Weaver 578 Garrison v. Garrison 628 Garrison v. Marie 459 Garvey v. Fowler 321, 323 Garwood v. N. Y.. C. & H. R. R. R. Co 477 Gashrie v. Appel 512 Gasper v. Adams 246, 634 Gastline v. Stoddard 85 Gates V. Andrews 73 Gauntley v.' Wheeler 440 Gay V. Cary 279 Gedney v. Haas 421 Gee V. Chase Mfg. Co 276 Geery v. Webster 382 Geib V. Icard 196 Geisler v. Acosta 328 Gemp V. Pratt 48 Genin v. Thompkins 511, 512, 525, 641 Gentil v. Arnaud 475 Georgia Lumber Co. v. Bissell. . 179' Georgia Lumber Co. v. Strong.. 224 Gere v. Gundlach 652 Gere v. N. Y C. & H. R. R. R. Co 500 German Bk. of London V. Dash. 512 German Sav. Bk. t. MuUer 133 Getty V. Hud. River R. R. Co. 282, 331 Getty V. Spaulding 669 Gibbs V. Queen Ins. Co 15* Gibson v. Nat. Park Bk 530, 531, 535, 536 Gilbert v. Pritchard 380 Gilbert v. Rounds 349 Gilbert v. York 381 Gilchrist v. Gilchrist. . .286, 292, 634 Gildersleeve v. Landon 273 Giles V. Caines 652 Gillet V. Fairchild 606 Gillet V. Moody 596, 606 Gillett V. Borden 385 Gillette v. Smith 71 Gillilan v. Norton 455 Gillespie v. Forrest 122 Gilman v. Prentice 491 Gilmore v. Hempstead 268, 269^ Glacius V. Fogel 134 Glacken v. Brown 61, 125 Gladke v. Maschke 508 Glaubensklee v. H. & A. Packet Co 265 Gleason v. Bisby 404 Gleason v. Moen d59 Glen & Hall Mfg. Co. v. Hall , 363, 448, 615 Glen Cove Starch Mfg. Co. v. Gotthold 539 Glens Falls Paper Co. v. White. 394 Glover v. Manhattan Ry. Co 456 Godfrey v. Godfrey 553, 554 Godfrey v. Pell 217 Gold V. Bissell t . . 428 Gold & Stock Tel. Co. v. Todd. 449, 470 Golden Gate Con. Co. v. Jackson. 520' TABEK OF CASEa XXXT Goodard V. Trenhath 32 Gooddale v. Central Nat'l. Bk. . . 353 Gooding v. Richards 66 Gooding v. Mc Alister 331 Goodman v. Robb 377, 387 Goodrich v. James 279 Goodwin v. Conklin 360 Goodwin v. Wertheimer 330, 355 Goodyear v. Betts 576 Goodyear Dental Co. v. Friselle. 92 Gopsill V. Decker 232 Gormerly v. McGlynn 2 Gotendorf v. Goldschmidt 139 Gould V. Bennett 8 Gould V. City of Rochester 136 Gould V. Glass 270, 385 Gould V. Mortimer 651 Gould V. Root 205, 215 Gould V. Sherman 415 Goulding v. Bain 577 Gowdy V. Poullain 286, 633 Gowtry v. Doane 261 Graefle v. Currie 400 Grafton v. Weeks 154 Graham v. Dunnigan 389 Graham v. Harrower 355 Graham v. Livingston 64 Graham v. Martin 316 Graham v. People 643 Graham v. Pinckney 196 Graham v. Read 342 Graham v. Scripture 92 Grange v. Gilbert 359 Grant v. Birdsall 146 Grant v. Griswold 675 Grant v. Johnson 323 Graves v. Waite 271 Graves v. Spier 272 Gray v. Kendall 263, 678 Gray v. N. Y. & Va. Stp. Co... . Ill Gray v. Soils 538 Greaves v. Gouge 110 Green v. Lippencott 383 Green v. Martine 664, 665 Green v. Squires 170 Green v. U. S. Dealers' Pro. Ass'n 469 Green v. Waxren 222 Greenbaum v. Dwyer 168 Greenfield v. Mass. Mut. L. Ins. Co : 119 Greenleaf v. Mumf ord 525, 541 Greentree v. Rosenstock 585 Gregory v. Gregory 576, 581 Gregory v. Levy 439 Gregory v. Wright 824 Gribbon v. Freel 516 Gridley v. Gridley 278, 332 Griffin V. Griffin 75 Griffin v. Long I. R. R. Co. .351, 353 Griffin v. Winne 476 Griffiths V. DeForest 628 Griffiths V. Williams; 620 Grimes v. Davison 415 Grimm v. Grimm 488 Grissler v. Stuyvesant 463 Griswold, Matter of 550 Griswold v. Stoughton 655 Griswold v. Sweet 394, 414, 419 Groesbeeck v. Dunscomb 595 Groshon v. Lyon 382 Gross V. Clark. .• 315, 281 Gross V. Graves 401 Groth V. Washburn 74 Grover v. Morris 74, 338 Grussy v. Schneider 618 Guardian Mut. L. Ins. Co., Mat- ter of 607 Guardian Sav. Inst. v. Bowling Green Sav. Bank 589 Guilleman v. Rowe 29 Gunn V. Fellows 258 Gurnee v. Beach 247, 314 Gumey v. Sharp 644 Gurnsey v. Powers 576 Gutbrecht v. Prospect Park & C. I. R. R. Co 644 H. Haberstro v. Bedford.' 432, 437 Habicht v. Pemberton 120 Hackett v. Belden 667 Hackett v. Richards 349 Hackley v. Draper 99, 377, 878, 608, 643 Hackley v. Ogmun 356 Hadley v. Boehm 293 Hagadorn v. Raux 118 Haight V. Avery 87 Haight V. Brisbin 378 Haight V. Child 310 XXXVl TABLE OF CASES. Haight V. Hayt 660 Haight V. Moore 31, 223, 224 Haight V. Webster 332 Haines v. Herrick 351 Haines v. Hollister 383 Haines v. Jeroloman 396 Halben v. Reilly! 532 Halden V. Craft 85 Hale V. Omaha Nat'l. Bk 376, 378, 386 Hall V. Bartlett 36 Hall V. Brooks , 589, 543 Hall V. Conger 403, 413 Hall V. Fisher 340 Hall V. Hall 341, 344 Hall V. Huntley 306 Hall V. Ledlip 545 Hall V. Olney 291 Hall V. Spratt 185 Hallenbarten, Matter of 93 Hallett V. Hallett 690 Hallett V. narrower 30S Hallett V. Righters 633 Hallgarten v. Eckert 216 Halliday v. Noble 389 Hallock V. Scheyer 457 Hallock V. Smith 133 Halstead v. Black 252, 253 Halstead v. Cockroft 660, 667 Halstead v. Dodge Ill Hamburger v. Baker 179 Hamilton v. Penney 519 Hamilton v. Wright 28 Hammond v. Earle 301, 352 Hammond v. Terry 389 Hancock v. Hancock 667 Hand v. Burrows... 646 Handley v. Quick 169 Hanlon v. Supervisors of West- chester 471 Hanover F. Ins. Co. v. Germania F. Ins. Co 442, 571 Hanover F. Ins. Co. v. Tomlin- son 92 Harbinson v. Von Volkenburgh. 678, 683 Hardenbrook's Case 411 Harding v. Holden 17 Hargous v. Lahens 617, 618 Harold v. Heflerman 481 Harrington v. Slade 287 Harris v. Bennett 233 Harris v. Brown 209 Harris v. Clark 204 Harris v. Durkee 414, 641, 733 Harris v. Ensign 219 Harris v. Larkin 129 Harris v. Mulock. 617 Harris v. Norvell 113 Harris v. Warren 653 narrower v. Heath 289 Harrison v. Neher 209 Harrison v. Newton 464 Harrington v. Slade 633 Hart v. Hart 40 Hart V. Kennedy 411 Hartley v. James 263 Hartt V. Harvey 453, 466 Hartwell v. Armstrong 4C6 Hartwell v. White 175 Hasbrouck v. Bunce 126, 666, 667 Hassan v. City of Rochester. . . . 473 Haswell v Lincks 164 Hastings v. McKinley 2, 108 Hatch V. Baez 36, 412 Hatch V. Central Nat'I. Bk. .285, 649 Hatch V. Peet 333 Hatch V. Ransom 414 Hatch V. W. U. Tel. Co 504 Hatfield v. Secor 633 Hatheway v. Amer. Min. Stock Ex 157 Hathaway v. Howell 225 Hathaway v. Johnson 398, 406 Hathaway v. Scott 195 Hathorn v. Hall 433 Haulenbeck v. Heacock 584 Hauseman v. Sterling 679, 685 Hauseman V. Sterling 679 Havemeyer v. Fuller 325 Havemeyer v. Havemeyer 394 Hawkins v. Governor 467 Hawksley v. Bradshaw 621 Hawley v. Bates 643 Hawley v. Davis 637 Hawley v. Mancius 461 Hay V. Hay 333 Hay V. Star Ins. Co 334 Haynes v. Onderdonk 145, 185 Hays V. Berryman 357 Hays V. Hathorn 108 Hayward v. Hood 460 TABLE OF CASES. XXXVU Hajrward v. McDonald 339 Haywood v. Thayer 228 Hazard v. Caswell 473 Hazard v. Israel ig Healey, Matter of 154, 155 Health Dept. of N. Y. v. Pur- don 464,465 Health Dept. of N. Y. v. Police Dept 474,481 Hecht V. Levy 402 Hecker v. Mayor, etc 331, 483 Hecker v. Mitchell 395 Hees V. Nellis 133, 383 Hees V. Snell 641 Hegeman v. Wilson 490 Hegerich v.Keddie .. 658, 659, 660, 663 Heidelbach v. Kilpatrick 368 Heine v. Anderson 333 Heinmuller v. Gray 659, 668 Hell, Matter of - 580 Heller v. Heller 153 Heller, Matter of 100 Hemmingway v. Poucher. . .247, 344 Hempstead v. Hempstead 261 Hemson v. Decker 343 Henderson v. Jackson 312 Henderson v. Savage 649 Henry v. Bow 193 Henry v. Randall 639 Hentz V. L. I. R. R. Co 320, 447 Hepburn v. Archer. 684, 689 Herbert v. Smith 638 Hergman v. Dettlebach 529, 544 Hermon v. Lyons 627 Hermance, Matter of 56 Hermann v. Aaronson 432 Hernandez v. Stilwell 318 Herr v. Hays 303 Herron v. Stokes 154 Hersberg v. Murray 646 Hertz V. Stuart; 510, 512, 531 Hess V. Buff. & Niagara F. R. R. Co 385 Hetzel V. Tannehill Sil. Min. Co. 157 Heyman v. Mittlestaedt 424 Hibernia JSTat'l. Bk. v. Lacomb. . 505 Hickey v. Yvelin 163 Hickok V. Bliss 79 Hicks V. Charlick 690 Hicksville & C. R. R. Co. v. L. I. R. R. Co 358 Hier v. Abrahams 472, 473 Hier v. N. Y. West Sh. & Buf. RR.Co 458 .Higenbotam v. Green 276 Higgins V. Bishop 689 Higgins V. Crichton 331, 385 Higgins V. Freeman 179 Higgins V. Healy 560 Higgins V. Higgins 76 Hildreth v. Carpenter 624 Hill V. Burke 232 Hill V. Gibbs 122 Hill V. Northrop 030 Hill V. Thacter 358, 363, 307 Hiller v. B. & M. R. R. Co 159 Hills V. Miller 456 Hilsen v. Libby '. 351 Hilton V. Bender 67 Hilton V. Sinsheimer 639 Hinckley v. Miles 461 Hinman v. Borden 18 Hinman v. Brees 18 Hitchcock v. Peterson 414 Hitchings v. Van Brunt 31 Hitchman v. Baxter 150 Hoag V. Lamont ill Hobart v. Hobart 312 Hobart College v. Pitzhugh 119 Hochstetter v. Isaacs 289 Hodge V. Perine 475 Hoe V. Sanborn 326 HofE V. Pentz 375 Hoflenbruth v. Miller. 29 Hoffman v. Hoffman 287 Hoffman v. N. Y. L. E. & W. R. R. Co 352 Hoffmann v. Rowley 27 Hoffman v. Tredwell 316, 673 Hollenbeck v. Clow. 355 Hollenbeck v. Donnell 575, 578 Holliday v. Parker : 661 HoUister v. Hollister £53 Holmes v. Honie 674 Holmes v. McDowell 584 Holmes v. Williams 637 Holsman v. St. John 659, 663 Holstein v. Rice 314 Holtz v. Schmidt 685 Holyoke v. Adams 391, 393 Home Ins. Co. v. Penn. R. R. Co. 35 Hone V. Woolsey 651 xxxvm TABLE OF CASES. Hooker v. Martin 133 Hope V. Acker 503 Hopkins v. Flynn 644 Hopkins v. Hopkins 303, 661 Hopkins v. Lane 360, 374 Hopper. Matter of 11. 100 Hoppough V. Struble 61 Hopson, Matter of 36 Horner v. Wood 316 Hornfager v. Hornfager 669 Horton V. Hanna 275 Hotohkiss V. Crocker 190, 306 Hotchkiss V. Piatt 497, 498 Hotailing v. McKenzie 102 Houghtailing v. Osborn 4 Hovey v. Rubber Tip Pencil Co. 497 Howard v. Parley 316 Howard v. Howard 67 Howard v. Mich. Soutli. R. R. Co 383,379 Howard v. Park 495 Howard v. Raymond 357 Howard v. Taylor 669, 673 Howe V. Deuel 450 Howe V. Howe Mach. Co 473 Howe V. Peckham 337 Howe V. Roeliester Iron Mfg.Co. 474 Howe Machine Co. v. GifEord. . . 337 Howe Mach. Co. v. Pettibone. . . 168, 171 Howell V. Adams 84 Howell V. Denniston 196, 654 Howell V. Leavitt 69, 126 Howell V. Ripley 570, 573 Howell V. Shannon 71 Hewlett V, N. Y. West Sh. & Buf. R. R. Co 451 Hoyt V. American Exchange Ex. Bk 691 Hoyt V. Campbell 306, 308 Hoyt V. Carter 640 Hoyt V. Continental Ins. Co. . . . 609 Hoyt V. Godfrey 403 Hoyt V. McKenzie 469 Hoyt V. Mead 134 Hoyt V. Putnam 77 Hoyt V. Sheldon 292 Hoyt V. Ten Eyck 690 Hoyt V. Thompson 609 Hoyt V. Tuthill 76 Hubbard, Matter of 41 Hubbard v. Otis 279 Hubbell V. Lerch 126, 340 Hubbell V. Livingston 258 Hubbell V. Medbury 76, 85, 119 Hubbell V. Sibley 64, 70 Hulet V. Reyns 207 Hughes V. Chicago M. & St. P. R. R. Co 303 Hughes V. Rathbone 671 Hughes V. Wood 654 Hulce V. Thompson 447 Hull V. Ball 263,269 Hull V.Hart 424 Hull V. Thomas 486 Hultslander v. Thompson 89 Humbert V. Rector Trinity Ch. . 64 Humbert v. Trinity Ch 67, 68 Humphrey v. Hayes 417 Humphreys v. Hurtt 460 Humphry v. Cottleyou 279, 280 Hunt V. Bennett 248, 249 Hunt V. Brennan.; 178 Hunt V. Burrel 428 Hunt V. Chapman 364 Hunt V. Dutcher 253, 254 Hunt V. Grant 647 Hunt V. Wallis 211, 653 Hunter v. H. R. I. & M. Co 288 Hunter V. LeConte 195 Hunter v. Lester 151, 650 Huntington v. American Bk. . . 631 Hurd V. Davis 222 Hurd, Matter of 510 Hurlburt v. Banks 454 Hurst V. Litchfield 337 Husson V. Fox 686 Husson, Matter of 25 Hutchins v. Smith 120 Hutchinson v. N. Y. C. Mills.. . 490 Huttkoff V. Demorest 3 Hyatt V. Bates 468 Hyatt V. Dusenbury , 643 Hyatt V. Swivel 169 Hyman v. Kapp, 513 Hyde v. Lynde 606 Hyde v. Salg 268 I. I. P. & C. R. R. Co. V. Tyng. ... 107 India Rubber Co. v. Rubber Comb, &c., Co 474 TABLE OF CASES. XXXIX Ingersoll v. Bostwick 652 Ingersoll v. Mangam. . .139, 152, 177 Inslee v. Hampton 368, 369 Ireland v. Nichols 573 Irving Sav. Inst. v. Hardman. . . 166 Irwin V. Judd 641 Isaacs V. Beth Hamedash Soc. . . 4 Iselin V. Port Royal R. R. Co. . . 557 Iselin V. Rowland 107, 108 Isham V. Davison 666 Isnard v. Caseaux 101, 102 Ives v. Holden 553, 554 Ives V. Lockwood 538 J. J. & S. P. R. Co. V. Morley 246 Jack V. Martin 248 Jackling v. Edwards 686 Jackson v. Anderson 17 Jackson v. Andrews 324 Jackson v. Cains 69 Jackson v Chew 22 Jackson v. Collins 17 Jackson V. Giles 208 Jackson v. Howd 223 Jackson v. Johnson 64 Jackson v. Moore 69 Jackson v. Parker 63 Jackson v. Rathbone 23 Jackson v. Robins 69 Jackson v. Schanber 236 Jackson v. Schoonmaker 67 Jackson v. Sellick 64 Jackson v. Smith 654 Jackson v. Stiles 195 Jackson v. Virgil 195 Jackson v. Wilson 215 Jackson v. WoodrufE 65, 66 Jacobs V. Hogan 550 Jacobs V. Miller 198, 207 Jacquerson v. Van Erben 175 Jacques v. Greenwood 258 Jaifray v. Brown 184 Jaillard v. Tomes 265 James v. Bennett 661 James v. Richardson 518, 522 James v. Shea 242 Jarvis v. Palmer 379 Jarvis v. Pike 373 Jay's Case 590 Jeffras v. McKillop & Sprague Co 299,300 Jenkins v. Adams 33, 394 Jenkins v. Pahey 173 Jenkins v. Jenkins 580 Jenks V. Parsons 325 Jessurun v. Mackie 463 Jetter, Matter of 188 Jewett V. Crane 439, 440 Jewell V. Schouten 37, 331 Jewett V. Pickersgill 341 Jex V. Jacobs 648 John C. Way Mfg. Co. v. Corn. . 685 Johnson v. Casey 193, 493, 503 Johnson v. City of Rochester. . . 474 Johnson v. Con. Silyer Min. Co. 685 Johnson v. Elwood 495, 663 Johnson v. Mallory 374 Johnson v. Whitman 401 Johnston v. Catlin 631 Johnston v. Columbia Ins. Co. . . 631 Johnston Harvester Co. v. Mein- hardt 444,475 Johnston v. Stimmel 35 Johnston v. Winter 147 Jones V. Butler 342 Jones V. Cook 208 Jones V. Easton 217 Jones V. Ludlam 350 Jones V. McGee 369 Jones V. Palmer 310 Jones V. U. S. Slate Co 163 Jordan v. Garrison 197 Jordon v. Nat'l. Shoe & L. Bk 366,367, 374 Joyce V. Cooper 102 Judd V. Fulton 226 Judd V. Smith 255 Juliano Ware Co. v. Sands. .340, 382 Julio V. Ingalls 686, 688 K. Kabell v. Hudson 620 Kaiser v. Kaiser 75 Kain v. Dickel 297 Kamp V. Kamp 216, 653 Kane v. Prentice 93 Kane v. Vanderburgh 476 Kanouse v. Martin 41 Kapp V. Barthan 579 xl TABLE OF CASES. Karker v. Haverly 323 Kastner v. Durant 180 Kattenstroth v. Astor Bk 574 Kaufman v. Lee ..\ 127 Keeler v. Brooklyn Ele. E. R.Co. 610 Keeler v. Vanderpool 644 Keenan v. Dorflinger 32 Keep V. Goodricli 316 Keep V. Lord 366 Keifer v. Thomass 299 Kelley v. Barnett 295 Kelley v. McMahon 495 Kellogg V. Baker 250, 298, 301, 326, 355 Kellogg V. Paine.. .274, 275, 279, 280 Kelly V. Babcock 530 Kelly V. Countryman 516 Kelly V. Jeroloman 481, 486 Kelly V. McCormick 636 Kelly V. Roberts 530 Kelly V. Sh-eehan 218, 649 Kelly V. West 619 Kelsey v. Bradbury 124 Kelsey v. Griswold 85 Kelsey v. Jewett 675 Kelsey v. Sargent 276 Kendall v. Washburn. .167, 172, 633 Kennedy v. N. Y. Life Ins. & T. Co 168 Kennedy v. Simmons 419, 479 Kennedy v. Twenty-third St. R. R. Co 102 Kenyon v. N. Y. C. & H. R. R.. R.Co 640 Kern v. Rackow 421, 422 Kerr v. Blodgett 243 Kerr v. Dildine 481 Kerr v. McGuire 218 Kerr v. Mount 144, 557 Keteltas v. Meyers 254, 255, 315 Kibbe v. Wetmore 513, 553, 554, 555, 641 Kidd V. Dennison 476 Kidder v. Horrobin 35 Kiernan v. Manhattan Quo. Tel.. Co 470 Kilbourne v. St. John 472 Killmer v. Hobart 510 Kilts V. Seeber 627 Kincaid v. Archibald 86 Kincaid v. Richardson 70 Kindberg v. Freeman 185> Kingham v. Robbins 621 King V. Parmer 331 King V. King 578 King V. Utica Ins. Co 348 Kip V. N. Y. & Harlem R. R. Co 379 Kirkland v. Aikin 268 Kissam v. Marshall 525, 636, 643 Kissock V. Grant 523 Kittle V. Kittle , 4o» Kittle V. Van Dyck 133 Kline v, Daily i& Knapp V. City of Brooklyn 247 Knapp V. Roche 288, 353 Knapp, Matter of 25, 33 Knauer v. Knauer 670 Kneeland v. Martin 176, 646 Knickerbacker V. DeFreest . 138, 142 Knickerbocker Ice Co. v. Shultz. 456 Knickerbocker L. Ins. Co. v. Ecclesine 394, 395, 415 Knight V. Beach 619 Knox V. Baldwin 72 Knox V. McDonald 463 Koehler v. Adler 354 Kostar v. Board of Excise 468 Kreiss v. Seligman 218 Krower v. Reynolds 329 Kuhlman v. Orser 527 Kuaz V. Bachman 182 L. Lachenmeyer v. Lachenmeyer. . 418 Lacustrine &c., Co. v. Lake Guano Co 474 Lacy V. Wilkinson 261 Ladd V. Terre Haute C. & M. Co 167 Ladow V. Groome 195 LaFarge v. Mitchell 172 LaFarge v. Van Wagenen 211 LaForge v. Chilson 628. LaFrombois v. Jackson 67 Laimbeer v. Allen 195 Laing v. Morse 194 Lamkin v. Douglass 507, 520, 524 Lamkin v. Starkey 412 Lamont v. Cheshire 185 Landers v. Fisher 500 Landers v. Stat. I. R. R. Co. . . . 4a TABLE OF CASES. xli Lane v. Cary 218 Lane v. Hayward 647 Lang V. Brown 49 Langdon v. Brown 280 Langley v. Hawk 530 Langley v. Warner 642 Lansing v. Easton 488 Lansing v. Eddy 462 Lansing v. Hadsall 259 Lansing v. Lansing 637 Lansing v. McKillup 223 Lansingh v. Parker 855 Lapaugh v. Wilson 638 Lapeous v. Hart 419 Larkin v. Steele 58, 203 Lamed v. Hudson 319, 320, 333 Lasher v. Williamson 860 Latham v. Richards 291, 292 Lattin v. McCarthy 324, 329, 384 Latting v. Latting 340 Laurie v. Laurie 484 Lavalle v. Skelly 229, 633 Lavery v. Hannigan 457 Lawrence v. Bank of Republic. 529 Lawrence t. Hopkins 86 Lawrence v. Jones 189, 55a, 653 Lawrence v. Mayor, etc 453 Lawrence v. Miller 618 Lawrence v. Saratoga L. R. K. Co 449 Lawrence v. Wright 246, 610 Lawton v. Green 495, 496, 497, 499 Lawton V.Kiel 199,522,641 Lawton t. Shepherd 625 Lazier v. Westcott 249 Leach v. Cook 511 Learned v. Vandenburgh 536 Leavenworth v. Packer 859 Leavitt v. Dabney 496 Lee V. Anslie 314 Lee V. Hunter 628 Lee v.LaCompagnie Universelle, &c 522,538 Lee V. Valley Paper Mill 521 Lee V. Whallon 135 Leetch V.Atlantic Mut. Ins. Co. 643 Lefevre v. Laraway 143 Leflerts v. Brampton 686 Lefflngwell v. Chave 478,483,485,643 Leggett V. Dubois 674 Leggettv. Mut. L. Ins. Co 183 Lehigh Coal Co. v. Central E. R. of New Jersey 595 Lehman v. Williams 587 Lent V. McQueen 583 Leon V. Bernheimer 810 Leonard v. Columbia S. Nav. Co 34 Leonard v. Morris 184 Leonard v. Pitney 85 Leopold V. Poppenheimer 806 Lerche v. Brasher 362 LeRoy v. Bedell 284 LeRoy v. Mayor, etc 41, 466 Leroy v. Shaw 123 Leslie v. Leslie 371 Levey v. N. Y. C. & H. R. E. R. Co 681,685 Levy V. Salomon 899 Lewin v. Wright 635 Lewis V. Acker 350, 856 Lewis V. Day 32 Lewis V. Graham 203 Liddell v. Paton 401 Lightf oot V. Cameron 154 Lignat v. Redding 363 Linden v. Fritz 342 Linden v. Hepburn 443 Linder v. Graham 325 Lintz V. Howard 680 Lipman v, Shapiro 400 Lisher v. Parnelee 206 Lister v. Wright 35 Litchfield v. Burwell 142, 160, 162, 224 Littell V. Sayre 337, 387 Littlefleld v. Albany Co. Bk 365 Littlefleld v. Littlefleld 87 Littlefleld v. Murin 224, 346 Littlejohn v. Attrill. 475 Littlejohn v. Munn 2.58 Livermore v. Rhodes 512 Livermore v. Bainbridge... .647, 664 Livingston v. Bank of N. Y. . . . 482 Livingston v. Curtis 680 Livingston v. Hammer 295, 348 Livingston v. Harrison 356 Livingston v Livingston 474 Livingston v Mclntjnre 223 Livingston v. Peru Iron Co 67 xlii TABLE OF CASES. Livingston v. Reynolds 476 Livingston v. Van Ingen 457 Llorens v. Costa 578 Lloyd V. Burns 350 Lobb V. Hundson 428 Locke V. Covert 609 Lockmen v Reilly 134 Lockwood V. Brantly 168 Lockwood V. Thome 313 Loder v. Hatfield 71 Loew, Matter of 23 Londriggan v. N. Y. & N. H. R. R. Co 78 Long V. Greville 621 Long v. Mayor, etc 388 Looff V Lawton 35 Loomis T. Decker 86 Loomis V. Thirty-fourth St. R. R. Co 484 Lord V. Cheeshorough 255, 296 Lord V. Vandenburgh 223 Lord V. Vreeland 377 Lorillard v. Clyde 317, 380 Loving V. Binney 173 Losee v. Bullard 74, 85 Lottimer v. Lord 570, 572, 585, 589, 593 Love V. Deiskes 113 Love V. Humphrey 411 Lovell V Martin 421, 422 Lovett V. Pell 333 Low V. Graydon 652, 679, 686 Low V. Hart 473 Lowber v. Mayor, etc 206 Lowry v. Inman 390 Lucas V. Albee 412 Lucaa v. East Stroudsburgh Glass Co 365 Lucas V. Johnson 127 Lucas V. Trustees of Bap. Ch.. . . 653 Ludington v. Taft 313 Ludvigh V. Dusseldorf 443 Ludwig V. Gillispie 120 Lumbard v. S. B. & N. Y. R. R Co 631 Luuney v. Mayor 286, 633 Lusk V. Hastongs 30 Lutweller v. Linnell 318 Lyle V. Smith 651 Lynch v. Crary 527, 530 Lynch v. Livingston. ...,..,.., 14 Lynch v. Todd 262 Lynde v. Montgomery 511 Lyon V. Baxter 521 Lyon V. Blakesly 520 Lyon V. Botchford 488 Lyon V. Yates 557 Lyons v. Botchford 484 Lyons v. Murat 102, 365 M. Matter of. See name of party. . . McAlexander v. Wright 28 McAllen, Petition of 102 McAllister v. Pond 679 McBride v. Farmers' Bk 506, 544 McCafEery v. Smith 457 McCallum v. Barnard 435 McCarthy v. McCarthy 164 McCarthy v. Peake 145, 574, 592 McCaity v. O'Donnell 298 McCaulay v. Palmer 215 McClave v. Thompson Ill McCombs V. Allen 524 McCool V. Boiler 171 McCoun V. N. Y. C. & H. R. R. R. Co 148 McCrane v. Moulton 636 McCue V. Tribune Ass'n 200, 201 McCulloch V. Norwood 670 McCullough V. Carrigan 632 McCully V. Heller 167, 173 McDonald v. Brass Goods Mfg. Co 140 McDonald v. James 497 McDonald v. Davis 291, 372 McElvey v. Lewis 577 McElwain v. Corning 639 McEncroe v. Decker. . .352, 483, 501 McEwen v. Mont. Co. Mut. Ins. Co 218 McParland v. Delaney 485 McGarry v. Smith 589 McGinn v. Ross 534, 540 McGown T. Leavenworth. . .180, 228 McGuffln v. Dinsmore 678 McGuire v. N. Y. C. & H. R. R. R. Co 662 McHenry v. Jewett 443, 444^ 446, 447 McHugh V. B. H. & E. R. R. Co. 444 McIUhanneyv Magie 682 TABLE OF CASES. xliii Mcintosh V. Ensign 125 Mcintosh T. Mcintosh 395 Mclntyre v. Carrier 55 Mclntyre V. Trumbull le McKay v. Harrower 565 McKee v. Flaherty 214 McKeen v. Fish 661 McKenster v. Van Zandt 176 McKenzie v. Farrell 343 McKenzie v. L'Amoureaux 121 McKenzie v. Rhodes 33 McKenzie v. Smith 435 McKeon v. See 465 McKernan v. Robinson 93 McKiernan v. Robinson 93 McKinlay v. Fowler 510, 557 McKinney v. Collins 168, 651 McKinney v. McKinney 275 McKnight v. Baker 179 McKyring v. Bull 247, 353 McLachlin v. Brett 644, 664 McLaren v. McMartin 86 McLaughlin v. Crawford 141 McLaughlin v. Nichols 253 McLean v. Stewart 638, 640 McLoughlin v. Mayor 673 McMahon v. Allen 343 McMahon v. Brooklyn City R R. Co 216 McMahon y. Rauhr 52 McMaster v. Davidson 113 McMullen v. Raffierty 84, 87 McMurray v. McMurray 142 McNamee V. Tenny. 86 McParland v. Bain 606 McPherson v Cox 30 McRobert t. Harrison 463 McRobert v. Pooley 292 McTeague v. Coulter 76, 334 Mabie v. Adams 294 Macaulay, Matter of 266 Mackey v. Auer 376 Mackey v. Daniel 421 Mackey v. Lewis 40, 412 Mackinnon v. Barnes 249 Madison Av. Bap. Ch. v. Baptist Ch. in Olijfer Street 41 Magee v. Cutler 118, 123, 469 Magnin v. Dinsmore 630 Mahaney v. Penman 47 Malcolm v. Fullerton 620 Malcolm v. Miller 448 Malcomb v. Jennings 15 Mallory v. Norton 461 Malone v. Sherman 270 Maloney v. Dows 263 Manchester v. Herrington. . . 671, 676 Mandeville v. Reynolds 61 Mandeville v. Winne 180, 258 Mang, Matter of 138 Manhattan Iron Wks. v. French 467 Manice v. Gould 551 Manley v. Bonnel 680 Manley v. Rassiga 588 Man. & Mer. Bk. v. Cowden... 198 Mann v. Farchild 77 Mann v. Marsh 387 Mann v. Milne 377, 387 Mann v. Pentz 112, 607 Mann v. Tyler 43 Manneck Mfg. Co. v. Man- neck 444, 460 Manning v. Gould ' 233 Manning v. Pratt 663 Manning v. Stern 577 Manning v. Winter 354 Manton v. Poole 508, 519 Mapes v. Brown 147, 282 Mapes V. Snyder 661 Maples V. Mackey 162 Mapleson v. Del Puente 469 Marble v. Lewis 628 Marcele v. Satlzman 304 March v. Davison 683 Margraf v. Muir 334 Marie t. Garrison 251, 271, 325, 375, 379, 386 Mark v. City of BufEalo 29, 220 Market Nat'l. Bk. v. Pacific Nat'L Bk 173,227 Marks v. Townsend 332 Marquat v. Marquat 342 Marselis v. Seaman 150 Marsh v. Benson 41 Marsh v. Berry 639 Marsh v. Dodge 36 Marsh v. Falker 320 Marsh v. Hussy 591 Marsh v. McNair 298 Marsh V. Woolsey 217 Marshall v. Bresler 308, 376 Marshall t. Meech 31, 32, 207 xliv TABLE OF CASES. Marshall v. Peters 475 Marshall v. Rochester Print. Co. 4 Marshall v. Rockwood 355 Marten v. Van Schaick 578 Martin v. Kanouse 397, 324 Martin v. KunzmuUer 365 Martin v. Rector 137 Martin v. Spoflord 677 Martine v. Albro 630 Martine v. Lowenstein 176 Marvin v. Ellwood 338 Marvin v. Lewis 305 Marvin v. Marvin 326 Marvin Safe Co. v. Mayor, etc . . 454 Mason v. Bidleman 196 Mason v. Hand 149 Mason v. Libbey 155 Mason v. N. Y. Silk Mfg. Co. . . 009 Mason v. Ring 31 Masten v. Blackwell 667 Masterton v. Bolts 110 Mather v. Hannaur 420, 438, Mathez v. Neidig 112 Matter of, See name of party. . . Mattice v. Giflord 481 Mattison v. Demarest 123 Mattison v. Smith 303, 350 Matthews v. Cook 645 Matthews v. D. & H. C. Co.. 660, 661 Matthews v. Hubbard 376 Matthews v. Murchison 407, 498 Matthews v. Smith 367 Matthews v. Tufts 154 Mattlage v. K. Y. El. R. R. Co. 445 Maxfield v. Taylor 543 Maxwell v. Parnam 335, 343 May V. Cooper 214 Mayer v. Friedman 79 Mayer v. Gilligan 462 Mayer v. Mayor, etc 473 Mayor v. Coffin 235 Mayor, etc. v. Conover..215, 465, 466 Mayor, etc. v. Doody 254 Mayor, etc. v. Eisler 147, 149 Mayor, etc. v. Genet 521, 526 Mayor, etc. v. Ketcham 369 Mayor, etc. v. Longstreet 457 Mayor, etc. v. Lyons 656 Mayor, etc. v. N. Y. & S. I. Perry Co 450,484,487 Mayor of Albany v. CunlifE 372 Mayor of Rochester v. Curtiss. . 464 Mayne v. Griswold 110 M. E. Ch. in Pultney v. Stewart 106 M. E. Churches of N. Y. v. Earlier 497 Mead v. Jenkins 130 Meager v. Smith 631 Mechanics' Bk. v. Levy 351 Mechanics' Bk. v. Minthorne. . . 634 Mechanics' Bk. v. Straiten 314 Mechanics' & Tr. Bk. v. Dakin. 507, 529 Meech v. Calkins 197 Mehesy v. Kahn 683 Meneely v. Meneely 473 Mensac, In re 101 Merchant v. N. Y. Life In^. Co . 344 Merchants' Bk. of New Haven V. Bliss 74 Merguelle v. Continental Bank- Note Co 686 Merkee v. City of Rochester . . . 176' Merrick V. Van Santvoord 36 Merrill v. George 154 Merrill v. Grinnell 306 Merritt v. Baker 207 Merritt v. Bartholick 132 Merritt v. Carpenter 80, 396 Merritt v. Lyons 590 Merritt v. Thompson 212, 440, 443, 624, 625 Metcalf v. Clark 153 Met. El. R. R. Co. v. Manhat. El. R. R. Co 503 Met. Trust Co. v. T. V. & C. R. R. Co 589 Meyer v. Belden :396. 414 Meyer v. City of Louisville 640 Meyer v. Peigle 288 Meyer v. Phillips 474 Meyer v. Seebald 576 Meyer v. Van Collem 330 M'Hench v. M'Hench 591 Michigan V. Phosnix Bank 35 Mickles v. Hart 17 Middlebrook v, Bradbent 36 Middleton v. Dodswell 580 Middletown v. R. & O. R. R. Co 315,451 Milburn v. Fowler 456 Miles V. Brown 53& TABLE OF CASES. xlv Milhau V. Sharp'. 453, 463 Millbank v. Broadway Bk 643 Miller v. Brenham 78, IGl Miller v. Downing 67 Miller v. Freeborn 869 Miller v. Heatli 890 Miller v. Johnson 293 Miller v. Levy 139 Miller v. ijosee 873 Miller v. McClosky 351, 352 Miller v. Miller 349 Miller v. Ring 241 Miller v. Rogers 663 Miller v. Shall 222 Miller v. Stettiner 127 Miller v. "Van Voast 75 Milliken v. Dart 513 Millius V. Shafer 195 Millville Mfg. Co. v. Salter 351 Mills V. Bliss 182, 183, 186, 187 Mills V. Corbett 515 Mills V. Hildreth 435 Mills V. Thursby .'202, 643 Mills V. Van Voorhies 133 Mills V. Young 17 Miner v. Beekman 64, 70 Minier, ex parte 19 M'Intire v. Rowan 636 Minturn v. Main 107 Mitchell V. Allen 208, 387, 291, 293, 647 Mitchell V. Bettman 448 Mitchell V. Hyde 314 Mitchell V. Mitchell 318, 336 Mitchell V. Volgar 338 M'Konkey v. Glen 636 Moffltt V. McLaughlin 376 Mohawk Bridge Co. v. Utica & Schenectady R. R. Co 464 Mojarrieta v. Saenz 193, 516, 533, 533, 644 Maloney v. Dows 325 Moloughney v. Kavanagh 33, 241 Montegriflo v. Musti 148 Montgomery v. Montgomery. . . 73 Montrait v. Hutchins 202, 650 Moore v. Appleby 130 Moore v. Belloni 274, 275 Moore v. Board of Pilots 468 Moore v. Brink 114 Moore v. Calvert 414 Moore v. Cooley 102 Moore v. Deyo 126 Moore v. Hamilton 670 Moore v. McKinstry 660 Moore v. Smith 338 Moore v. Taylor 571 Mora V. JlcCredy 682 Mora V. Sun Mut. Ins. Co 344 Moran v. Lydecker 123 More V. Deyoe 125, 128 More V. Rand 360 More V. Thayer 145, 665 Moreland v. Sandford 653 Morey v. Safe Deposit Co 298 Morford v. Davis 354 Morgan v. Avery 510, 521 Morgan v. City of Binghamton. 454 Morgan v. Fillmore 238 Morgan v. Morgan 679 Morgan, Matter of 49, 479 Moriarty v. Bartlett 662 Morrell v. Kimball 160 Morris v. Crawford 340 Morris v. Morange 333 Morris v. Rexford 343 Morris v. Talcott 404 Morris v. Wheeler 133 Morris v. Whelan 465 Morrison v. Watson 508 Morrow v. Morrow 86. Morse v. Cloyes 459 Morse v. Morse 139 Mosher v. Campbell 55 Mosher v. Yost 125 Moseley v. Alb. & N. R. R. Co. 669 Moses v. McDivitt 26 Moser v. Polhamus 502 Moses V. Waterbury Button Co . 438, 561 Mott V. Burnett 355 Mott V. Consumers' Ice Co 681 Mott V. Union Bk. of N. Y 418 Moulton V. Beecher. . . .384, 307, 831 Moulton V. Carty 650 Mugrich v. McOwen 485 MuUer v. Earle 291 Muller V. Muller 287 Muller V. Perrin 415 Mulry V. Norton 474 Mumford v. Murray 30 Munger v. ShaDnoa 372, 295, 296 xlvi TABLE OF CASES. Munn V. Barnum 299, 379 Munroe v. Merchant 66 Murphy v. Baldwin 509 Murphy v. Hall 510, 641 Murray v. Bethune 620, 621 Murray v. Blatchf ord 640 Murray v. Hankin 520 Murray v. Hay 106 Murray v. Jibson 33 Murray v. N. Y. Life Ins. Co. . 352 Murray v. Vanderbilt 159 Murtha v. Curley 344 Muser v. Miller 407 Musgrave v. Sherwood 495 Musgrove v.. Nash 591 Mussina v. Stillman 299 Mut. Life Ins. Co. v. Bigler. . .2, 476 Mut. L. Ins. Co. V. Dake 133 Myer v. Lent 207 Myers v. Gerrits 265 Myers v. Machado 120 Myers v. Overton 151 Mygatt V. Wilcox 85 Mynderse v. Snook 360 N. Nagle V. Jonker 639 Nagle V. Taggert 155, 164 Nanetty v. Naylor 293 Nathans v. Hope 330 National Bk. of Auburn v. Lewis 364 Nat. Bk. of Port Jervis v. Han- see 217 Nat. City Bk. v. N. Y. Gold Ex. Bk 639 Nat. Mich. B'kg. Ass'n. v. Usher 92 Nat. Park Bk. v. Whitmore. . . . 513, 520 Nat. Shoe & Leather Bk. v. Me- chanics' Nat. Bk 550, 551 Nat. Shoe & L. Bk. v. Mechan- ics' Nat. 3k. of Newark 510 Nash V. McCauley 309 Nash V. White's Bk. of Buffalo. 364 Naylor v. Lane 33 Nazro V. McCalmont Oil Co. . . . 508 Neal V. Sachs 519, 521 Neale v. Osborne 486, 487 Nebenzahl v. Townsend 332 Neele v. Berryhill 14, 634 Negus V. City of Brooklyn.. 467, 589 Neilly v. Neilly 106 Neilly, Matter of 84 Nellis V. DeForest 312 Nellis V. Nellis 130 Nelson v. Luling 320 Nelson v. Nixon 107 Nelson v. Plimpton F. P. El. Co 617 Nemetty v. Naylor 369 , Neuberger v. Webb 265, 267, 297 Neudecker v. Kohlberg 270, 312 Neugent v. Swan , 495- Neustadt v. Joel 442, 443 Neville v. Neville 407 New V. Aland 287 Newberger v. Campbell 27 Newbury v. Furniyal 655 Newbury v. Newbury 192, 501 Newcomb v. Keed 190 Newell V. Doran 417 New England Iron Co. v. N. Y. Loan & Imp. Co 685 Newland v. Willett 642; Newman v. Goddard 35 Newman v. Newman 682 New-ton v. Russell 497, 498 Niagara Falls Int. B. Co. v. Gr't. Western R. R. Co 446. Nichols V. Drew 340, 385 Nichols V. Jones 352 Nichols V. Lumpkin 377, 387 Nichols V. Nichols 652 Nichols V. Voorhis 471 Nicoll v. Boyd 593 Nicoll V. Spowers 585 Niles V. Vanderzee 15a Niles, Matter of 23 Ninety Pl'fls. v. Vanderbilt 28 Ninth Ave. R. R. Co. v. N. Y. El. R. R. Co 445, 457, 464, 496: Niver v. Niver 396 Noble, ex parte 94 Noe V. Christie 120 Noe V. Gibson 587 Nones v. Hope Mut. L. Ins. Co. 156, 380 TABLE OF CASES. xlvii Noonan v. Grace 444 Northrop v. Hill 85 Northrup v. People 6 Northrop v. Van Deusen 202, 208 Norton v. Dowllng 48 Norton v. Dreyfuss 364 Norton v. Hayes 104 Norton v. Snyder 474 Nosser v. Corwin 145 Noumy v. Dubosty 255 Noyes v. Wernberg 121 N. Y. Att. Pulv. Co. V. Van Tuyl 490, 493 N. T. C. & H. R. R. R. Co. v. Pettit 676 N. Y. C. & H. R. R. R. Co. v. Shepherd 426 N. Y. Cab Co. v. Mooney 473 N. Y. Card Co. v. Union PI. Card Co 473 N. Y. Fire & M. Ins. Co. v. Burrell 617 N. Y. Ice Co. V. N. W. Ins. Co. 342, 639 N. Y. Infant Asylum v. Super- visors of Westchester Co 471 N. Y. Ins. Co. V. N. W. Ins. Co. of Oswego 61 N. Y. Juv. Guardian Soc. v. Roosevelt 469 N. Y. & Albany R. R. Co. v. N. Y. West Shore & Buf. R. R. Co 447 N. Y. & Harlem R. R. Co, v. Haws 461,462 N. Y. & Har. R. R. Co. v. Mayor, etc 203 N. Y. & W. U. Tel. Co. v. Jewett 610 N. Y. & W. U. Tel. Co. v. Jewett, Matter of 590, 593 N. Y. & N. H. R. R. Co. v. Schuyler 383, 458, 460, 480 N. Y. L. Ins. Co. v. Superv's. of N.Y 442 N. Y L. Ins. & T. Co. v. Rand. 11 N. Y. Mar. Iron Wks. v. Smith. 251 N. Y State Milk Pan Ass'n. v. Remington Ag'r. Works. .286, 636 N. Y. W. Shore & B. R. R. Co., Matter of 656 o. Oakes v. Howell 77 Oakley v. Aspinwall 10 Oakley v. Bend 107 Oakley v. Morton 254, 323 Oakley v. Tugwell 370 Obergon v. DeMeir 440 Oberlander v. Speiss 320 O'Beirne v. Lloyd 330 O'Brien v. Browning 132 O'Brien v. Carroll 556 O'Brien v. Mech. & Traders P. Ins. Co 534,535,538 O'Callaghan v. Fraser 588 O'Connor v. Garrigan 131 O'Connor, Matter of 36 O'Donnell v. McMurn 493 O 'Dougherty v. Remington P'pr. Co 859 Oechs v. Cook 348 Oertel v. Wood 450 Ogden V. Devlin 30 Ogden v. Prentice 119 Ogdensburgh Bk. v. Paige 379 O'Gorman v. Kamack 643 O'Keefe v. Shepard 30 Olcott V. Carroll 270, 801, 387 Olcott V. McLean 35, 176 Olcott V. Tioga R. R. Co 78, 79 Olery v. Brown 10^ Olssen V. Smith 447 O'Mahoney V. Belmont.. 573, 573, 579 Oneida Nat. Bk. v. Paldi 545- O'Neil V. Bender 170, 171 O'Neil V. Durkee 432 O'Niel V. Hoover 64& O'Neill, Matter of 33 Oothout V. Thompson 87 Opdyke v. Marble 683 Oregon S. S. Co. v. Otis 289 O'Reilly v. Freel 557 Orleans Co. Nat. Bk. v. Spencer. 654 Orr V. McEwan 165 Orser v. Glenville Woolen Co. . 671 Orvis V. Dana 277, 279 Orvis V. Goldschmidt 366, 515 Osbom V. McCloskey 146 Osborne V. U. S. Bank 28 Osgood V. Maguire 595, 607 Osgood V. Ogden 367 Osgood V. Whittelsey 390' xlviii TABLE OF CASES. Ostell V. Brough 400 Osterhoudt v. Superv's of Ul- ster Co 119 Ostrander v. Conkey 284 Ostrander v. Harper 101, 102 Ostromi V. Bixby 355 O'Snllivan v. Connors 642 Oswego Falls Br. Co. v. Fish. . . 466 Otis V. Gray 241 Otis V. Ross 355 Outtrin v. Graves 504 O. & L. C. R. R. Co. V. Vt. & Canada R. R. Co 156, 160, 177, 380 P. Pacific Mail S. S.Co. v. Toel. . . 495 Packard v. Wood 669 Paddock v. Wells 10 Paddock v. Buckbee 223 Pafe Exr. V. Kinney 70 Page V. Boyd 270 Page V. Willett 273 Paine v. Jones 324 Palen v. Johnson 683 Palmer v. Davis 391 Palmer v. DeWitt 449 Palmer v. Ensign 665 Palmer v. Foley 466, 492, 495 Palmer v. Hussey 413 Palmer v. Lawrence 640 Palmer v. Penn. R. R. Co 159 Palmer v. Smedley 321, 322 Palmer, Matter of 662 Pardee v. Leitch 534 Parke v. Heath 636 Parker v. Jackson 124 Parker v. Smith 535 Parker v. Stroud 84 Parkhurst v. Wolf 248 Parks V. Parks 142 Parmenter v. Roth 59, 214 Parshall v. Tillou 303, 351 Parsons v. Hayes 257, 388 Parsons v. Spraguo 551, 558 Parsoijs V. Travis 433 Partridge v. Haley 302 Partridge v. Menck 472 Patch v. Tribune Ass'n 387 Patten v. Access. Trans. Co. . . . 579 Patterson v. Bloomer 496 Patterson v. Copeland 680 Patterson v. McCunn 219,, 644 Patterson v, Patterson 865, 367 Patterson v. Perry 528 Pattison v. O'Conner 228 Paulsen v. Van Steenbergh 385 Payne v. Becker 129 Payne v. Gardner 318 Payne v. Smith 282 Payne v. Young 194 Peabody v. Washington Co. Mut. Ins. Co 378 Pearce v. Ferris 128 Pease v. D. &c., R. R. Co 47 Peck V. Brown 389 Peck V.Elder 465 Peck V. Hulburt 75 Peck V. Lombard 423 Peck V. N. Y. & N. J. R. R. Co. 341 Peck V. Randall 69 Peck V. Richardson 162 Peck V. Yorks 500 Pelo V. Clukey 420 Pendergast v. Greenfield 367 Penfield v. White 485 Pennoyer v. NefE 37, 568 People V. Albany Mayor's Ct. .. 636 People V. Alb. Med. College. . . 224 People V. Albany & S. R. R. Co. 117 People V. Ambrecht 37 People V. Ames 645 People V. Arnold 63 People V. B. H. T. & W. R. R. Co 97 People V. Bissell 467 People V. Booth 388 People «a; ?'e^ Boylston V. Tarbell 642 People V. Brower 486 People V. Brundage 12 People V. Campbell 409 People V. Canal Board.. 466, 467, 468 People V. Carr 12 People V. Central City Bank.. 214, 573 People V. Clark 63, 401 People V. Coffin 445 People V. Compton 488 People V. Conklin 451, 466 People V. Conner 94 People V. Cooper 209 People V. Crooks 383 People ex rd Davis v. Sturtevant 486 TABLE OP CASES. xlix People V. Deanison 36, 368 People V. Dikeman 435 People V. Donohue 49 People V. Draper 465 People V. Dunning 16 People V. Dwyer 453 People V. Edmunds 11 People V. Edson 49, 479 People V. Parley 465 People V. Faulkner 117 People V. Globe Mut. L. Ins. Co. 595 People V. Green 48 People V. Groat 117 People ex rel Ireland v. Donohue 59, 419, 479 People V. Knickerbocker L. Ins. Co 670 People V. Livingston 63 People ex rel Lust v. Grant 427 People V. Mann 12 People V. Mayor, etc 30, 116, 453, 482, 576 People ex rel v. Mayor, etc 583 People V. McCumber. . .295, 298, 309 People V. Met. Telephone C0..II6, 136 People V. Mut. Benefit Ass'ts. . . 613 People V. Mut. U. Tel. Co 97 People V. Nash 226 People V. National Trust Co..209, 216 People ex rel Negus v. Dwyer. . 480 People V. Nichols 40, 41, 204 People V. North Am. Bank 117 People V. Norton .41, 117, 576 People V. Nostraud 202 People V. N. Y. Juvenile Guar- dian Soc 302 People V. N. Y. Manhattan Beach Ry. Co 126 People V. Open Board of Stock Brokers Bd'g. Co 71 People V. Oswego Court of Ses . 671 People V. Palmer 32 People V. Phillips 402 People V. Rector Trinity Ch 63 People ex rel Roberts v. Bo we. . 421 People ex rel Roosevelt v. Edson 59,446 People V. Ryder. . .246, 248, 249, 301 People V. Sampson 465 People V. Schoonmaker 443 People V. Schuyler 546 D People V. Scott 431 People V. Security Mut. L. A. Co 608 People V. Smith 314 People V. Snyder 248 People V. Starkweather 660 People V. Stephens 319 People V. Sturtevant 457 People V. Stuy vesant 453, 485 People V. Superior Court 633 People V. Supervisors of Monroe 15 People V. Superv's. of Ulster. . . 56 People V. Sutherland 194 People V. Tweed 394, 402, 429 People V. Tioga C. P 194 People V. Trinity Ch 68 People V. Universal L. Ins. Co. . 670 People V. Vanderbilt 136 People V. Van Rensselaer 63 People ex rel Waring v. Monroe Com. Pleas 280^ People V. Wasson 445, 460 Peppoon V. Jenkins 636 Perault v. Rand 461 Percy, Matter of 22, 23 Perkins v. Warren 448 Perren v. Monmouthshire R. R. Co 621,622 Perrotean v. Johnson 333 Perry v. Dickerson 330 Perry v. Tynen 149 Perry v. Volkening 482 Person v. Civer 397 Person v. Grier 410 Peters v. Delaplaine 71, 77 Peterson v. Chemical Bk 113 Petree v. Lansing 121 Petrie v. Fitzgerald 228, 409 Petrie v. Petrie 335 Pettibone v. Drakeford 317 Pettigrew v. Foshay 458 Pettit V. Pettit 643 Peyser v. McCormack 265 Pfluger V. Lescke 395 Pfohl V. Sampson 443, 460 Pfohl V. Simpson 131 Phalen v. Dingee 123 Pharis v. Gere 390 Phelps V. Nowlen 477 Phelps V. Phelps. ..168,176, 177, 268 Phelps V. Piatt 679,687 1 TABLE OF CASES. Phillips v. Gorham 61, 125, 245 Phillips V. Peters 87 Phillips V. Stagg 34 Phillips V. Therrasson 72 Phillips V. Wheeler 190 Philips V. Wickham 466 Phinney v. Broschell 170, 212 Phipps V. Carman 189, 217 Phoenix v. Com'rs. of Emig'n. . . 464 Phoenix Bank v. Donnell 381 Phoenix Foundry Co. v. North R. Constr. Co 502 Phoenix Ins. Co. v. Continental Ins. Co 454,455 Phoenix Warehousing Co. v. Badger 608 Pickett T. Leonard 87 Pidgeon v. Oatman 482 Pierce v. Brown 288 Pierce v. Waters 80 Pierson v. Freeman 415 Pierson v. McCurdy 72 Pierson v. Morgan 664 Pierson v. SafEord 360 Pignolet V. Bushe 578 Pinckney v. Childs 627 Pinckney v. Hagerman 652 Pindar v. Black 137 Pinkerton v. Bailey 88 Pitney v. Glens Falls Ins. Co. .. 119 Pitrie v. Fitzgerald 412 Pitt V. Coombes 154 Place V. Minster 289 Place V. Riley 566 Platner v. Lehman 618, 621 Piatt V. Ashman 669 Piatt V. Crowford 248 Piatt V. Jones 35 Piatt V. Piatt 380 Piatt V. Townsend 228 Piatt, In re 99 Plimpton V. Bigelow 529, 557 Plumtree v. Dratt 118 Plympton v. Bigelow 199 Polley V. Wilkisson 331, 337' Pomeroy v. Hindmarsh 448 Pond V. Leman 16 Pope V. Hanmer 67 Pope V. Terre Haute Car Co.'. . 157, 158, 159 Popfinger v. Tutte 46, 47 Popham V. Cole 473 Porous Plaster Co. v. Seabury. . 487 Porter v. Lord 48 Porter v. McGrath 127 Porter v. Parmly 31, 33 Porter v. Viner 17 Porter v. Williams 585, 588 Potter V. Baker 642 Potter V. Carreras 299 Potter V. McPherson 450 Potter V. Merchants' Bank 163 Potter V. Smith 373 Potter & French, Matter of 409 Powell V. Clark 193 Powell V. Kane 194 Powell V. Waldron 574 Powelson v. Reeve 129 Power V. Alger 448 Power v. Hathaway 69, 78 Power V. Village of Athens. . . . 204, 445, 487, 488 Powers V. Hughes 276 Pratt V. Hud. River R. K. Co. . . 289 Pratt V. Ramsdell 617 Pratt V. Seeley 671 Pratt V. Stevens 195 Prentice v. Janssen 130, 334 Presbjrtery of N". Y., Matter of. . 48 Price V. Brown 335 Price V. Evers 639 Price V. McClave 251 Price V. Price 661 Priest V. H. R. R. R. Co 75 Prince v. Cujas 92. Prindle v. Carruthers 247, 250, 255, 314, 316, 348 Produce Bk. of N. Y. v. Morton.. 639 Prouty V. L. S. & M. S. R. R. Co.. 670. Prouty V. Mich. South. R. R. Co.. 121, 122 Prouty V. Whipple 270, 386 Prussia v. Guenther 149 Pruyn v. Black 134 Pugsley V. Aiken 336 Pugsley V. Van Allen 216 Pulling V. People 4 Pumpelly v. Village of Owego . 471 Purchase v. Matteson 321 Purdy V. Peters 14 Purdy V. Purdy 76 Purdy V. Sistare 85 TABLE or CASES. li Putnam v. Van Buren 661 Putnam Co. Cliem. Wks. v. Jochen 51g Q. Quick V. Keeler 92 Quigley v. Walter 123 Quimby v. Claflin 289 Quin V. Astor 281 Quinn v. Brittain 579 Quinn v. Lloyd 30 Quinn v. Tilton 268 Quinnan v. Clapp 34 Quintard v. Newton 336 Quintard v. Secor 633, 635 E. Radde v. Ruckgaber 354 Radway v. Mather 251, 267 RafEerty v. Williams 259, 682 RafEerty v. Palmer 684 Railway Age Pub. Co. v. Garnett 470 Ralph V. Husson 369 Ramsey v. Childs 642 Ramsey V. Gould 200 Randall v. Carpenter 498, 499 Randall v. Sackett 661 Randolph v. Mayor, etc 374 Rank v. Levinus 128, 333 Ranney v. Russell 627 Ransom v. Halcott 527 Rapp V. Williams 463 Rathbun v. Acker 331 Rathbun V. N. Y. C. R. R. Co.. 79 Raymond v. Hinman 636 Raymond, Matter of 56 Rea V. Washington Mut. Ins. Co. 296 Read v. French 29, 162 Ready v. Stewart 505, 507 Recetti v. Mapleson 531 Rector v. Ridgewood Ice Co . . . 284 Rector of Ch. of Holy Innocents V. Keech 444 Redfleld v. Middletown 480 Reed v. Butler 676 Reed v. Hayt 354 Reed v. Latson 395 Reed v. Mayor 386 Kef'd. Ch. of Gallupville v. Schoolcraft 64 Regina v. Bloxham 195 Reid V. Stenton 621 Reid V. The Evergreens 131 Reilly v. Sisson 521 Reiners v. Brandhorst 3.o7 Reis V. Rohde 458 Remington Paper Co. v. O'Dougherty 11, 509 Renard v. Hargous 506 Benwick, Matter of 589 Rep. of Mexico v. Arrangois. . 28, 35, 382 Rep. of Mexico v. Ockenhausen. 35 Republic of Peru v. Reeves. . . . 664 Requa v. Holmes 672 Reubens v. Joel 343, 446, 448 Reynolds v. Fisher 538 Rhoads v. Woods 544 Rice V. Ehele 2, 190 Rice V. Mead 5 Rice V. O'Conner 360 Rich V. Beekman 642 Richards v. Edick 386 Richards v. Porter 429 Richards v. Varnum 645 Richardson v. Wilton 350 Richters v. Littell 415 Richtmyer v. Richtmyer •. . 379 Rider v. Bagley 579 Rider, Matter of 56 Riggs V. Pursell 308, 209 Riggs V. Waydell 629, 637, 638 Riggs V. C. Y. & P. R. R. Co.. . 524 Rindge v. Baker 344 Rinn v. Astor F. Ins. Co. . . . 595, 597 Rinshey v. Stryker 539, 543 Ripley v. Burgess 224 Ripley v. McCann 150 Risley v. Brown 661 Rlsley V. Carll 373 Risley v. Wightman 87 Ritten v. Griffith 170, 171 Ritterman v. Ropes 396 Roache v. Kivlin 262 Robbins v. Palmer 299 Robert v. Sadler 458 Roberti v. Carlton 102 Roberts v. Baumgarten 66 Roberts V. Berdell 85 Roberts v. Bower 5 Roberts V. Doty 32 lii TABLE OF CASES. Roberts v. Law 634 Roberts v. Leslie 257, 309 Roberts v. Mayor, etc 454 Roberts v. O. & L. C. R. R, Co.. 618 Roberts v. Sykes 77 Roberts v. White 495, 497 Robertson v. Robertson.. 103, 138, 385 Robinson v. Brisbane 665 Robinson v. Flint 337 Robinson v. Frost 104 Robinson v. Moran 642 Robinson v. Nat. Bk. of ISTew- bern 34, 85,510 Robinson v. Phillips 67 Robinson t. Preswick 476, 576 Robinson v. Smith 110 Robie V. Sedgwick 64 Roby V. Hallock 397 Roche V. Ward 175 Rock River Bank v. Hoiiman. . 36 Rockwell V. Carpenter 638 Rockwell V. Merwin 99, 588 Rodgers v. Bonner 527, 532, 535 Rodgers v. Rodgers 491 Rodman v. Devlin 76 Rodman v. Hedden 85 Rogers v. Durant 200 Rogers v. McElhone 434 Rogers v. M'Lean 139, 644 Rogers v. M. S. & N. I. R. R. Co.. 448 Rogers v. Schmersahl 162 Rogers v. Vosburgh 399 Rogers Loco. Wks. v. Kelly 531 Rohman v. Blust 179 Rome, W.& O. R. R. Co. v. Smith 471 Roome v. Nicholson •. 398 Rooney v. Second Ave. R. R. Co.. 32 Roosevelt v. Bull's Head Bk. . . 617 Roosevelt v. Dean 306 Roosevelt v. Edson 481, 485 Roosevelt v. Fulton 304, 205 Roosevelt v. Gardinier 278 Roosevelt v. N. Y. & Har. R. R. Co 624 Root V. Foster. 299, 813 Root V. Price 308 Rorke v. Russell 486, 487 Rose V. Meyer 255 Resencrans v. Carr 53 Rosenwald v. Hammerstein. . . . 289 Ross V. Bridge 593, 637 Ross V. Longmuir 366 Ross V. Ross 86, 296 Ross V. Sadgbeer 316 Ross V. Wigg 198, 199, 414 Rossner v. N. Y. Museum Ass'n. 220, 687 Rossow V. Bank of Commerce 462, 491 Roth V. Schloss 637 Roup V. Bradner 72 Roussel V. St. Nicholas Ins. Co. 271, 376 Rowland v. Phalen 254 Royal Ins. Co. v. Noble 558 Royer Wheel Co. v. Fielding. .. 338 Rozell V. Andrews 457 Ruck V. Lange 182 Ruckman v. Pitcher 107 Ruggles V. Keeler 79 Ruppert V. Haug. .519, 520, 550, 553 Russel V. Somerville 33 Russell v. Clapp 246 Russell V. Meacham 633 Russell V. Popham 465 Rutherford v. Hewey 139 Rutter V. Boyd 539 Ryall V. Kennedy 395 Ryan v. Cochran 231 Ryan v. Mayor 891 Ryckman v. Coleman 493 Ryers, Matter of 10 Ryle V. Harrington 270 R. & C. R. R. Co., Matter of. . .* . 213 S. Sabin v. Johnson 215 Saddlesvene v. Arms 508 Safford v. Snedecker 389 Sage V. Quay 484 Sales V. Woodin 204 Salhinger v. Adler 154, 411 Salisbury v. Morse 76 Salmon v. Godney 40 Saltsman v. Shults 10& Sanders v. Village of Yonkers. . 383 Sanders v. Warren 182 Sandford v. Sinclair 574, 581 Sandford v. White 131 Sandland v. Adams 194 Sands v. Calkins 283 TABLE OF CASES. liii Sands v. Gelston 86 Sands v. Hughes 68 Sands V. St. John 372 811, S77 Sanford v. Chase 410, 411 Sandford v. Sanford 69 Sanger v. Seymour 678, 679 Sanquirico v. Benedetti 469 Sartos V. Merceques 434 Sartwell v. Field 507 Savage v. Allen. . . . ISO, 444, 445, 460 Savage v. Relyea 211, 213 Saxton V. Dodge 28 Schaefer v. Henkel 107 Schenck v. McKie 223 Schenke v. Rowell 233 Schermerhorn v. Van Voast. . . . 198 Sohieb v. Baldwin 537 Schlichter v. South Brooklyn SawM. Co 664 Schmalholz v. Polhaus 47 Schmidt v. Gunther 109 Schmidt v. Bellinger. 687 Schofield V. Doscher 93 Sohoonmaker v. Brooks 149, 150 Schoonmaker v. Spencer 511 Schreyer v. Mayor, etc 286 Schriver v. Schriver 189 Schroeder v. Gurney 135 Schroeder v. Lear 168, 170 Schuehle v. Reiman 243, 460 Schuhardt v. Roth 338 Schulhofl V. Co-operative Dress Association 275 Schulten v. Lord 502 Schaltz V. Cookingham 113 Schultz V. Depuy 315, 331 Schultz V. Schultz 395 Schultz V. Third Ave. R. R. Co. 290, 343 Schumaker v, Grossman 170 Schunemann v. Paradise 408 Schwab V. Wehrle 283 Schwartz v. Oppold 368 Schweizer v. Raymond 649 Scofleld V. Van Syckle 383 Scofleld V. Whitelegge 314, 322 Scott V. Beid 398 Scovill V. New 363 Scoville V. Canfleld 36 Scott V. Brown 660 Scribner v. Kelly. 324 Seaman v. Lee 477 Seaman v. Low 280 Sears v. Conover 323 Seaver v. Hodgldn 378 Seaver v. Robinson 154 Secor V. Sturgis 328, 330 Secor V. Weed 503 Segelken v. Meyer 401 Seiser v. Mali Ill Selby V. Hills 154 Selden v. Mann 476 Selden v. Vermilya 648 Sellick V. Heydrick 173 Seltman v. Jaschenorosky. .513, 533 Seward v. Miller 350 Seward v. Torrenoe 354 Sexaner v. Bowen 266, 367 Seymour v. Dunham 365 Seymour v. Lorillard 339 Seymour v. McDonald 455 Seymour v. Mercer 419 Shackelton v. Hart 31, 33 Shaffer v. Holm 278 Shale V. Schantz 660, 666 Shanks v. Rae 293 Shaver v. McGraw 127 Shaw V. Cock. 89, 286 Shaw V. Coster 238 Shaw V. Dwight 461 Shaw V. Lawrence 642 Shaw V. McMsh 183 Shaw V. Tobias 348 Shearman v. Hart 307 Shearman v. N. Y. C. Mills..350, 502 Sheehan v. Hamilton 135 Sheldon v. Adams 285, 683 Sheldon v. Lake 830 Sheldon v. Wood 108 Shepherd, Matter of 437 Sheridan v. Andrews 183 Sheridan v. Jackson 319, 582 Sheridan v. Mayor, etc 108 Sherman v. Felt 41 Sherman v. Gregory 124 Sherman v. Inman S. S. Co. . . . 385 Sherman v. Kane 64 Sherman v. McNitt. 236 Sherman v. Partridge 237 Sherman v. Wells 644 Sherwood v. Barton 106 Shoe & L. Rep. Ass'n. v. Bailey. 679 liv TABLE OJ? CASES. Shoemaker v. Benedict 87 Shook V. Daly 450 Short V. Barry 343 Short V. May 225 Shotwell V. Smith 578 Shriver v. Sliriver 64, 70 Shubart v. Hiirteau 363 Shults V. Andrews 154 Shultze V. Rodewald 297 Shute V. Hamilton 370 Sickles V. New Rochelle B'd. of Health 454,468 Sickles V. Richardson 531 Siefke v. Tappey 397 Siegrist v. Halloway 211 Simar v. Cassidy 383 Simmons v. Kayser 320, 369 Simmons v. Lyon 322 Simmons v. Lyons 317 Simmons v. Wood 593 Simons v. DeBare 381 Simonson v. Blake 342, 654 Simpson v. Burch 163, 515 Simpson v. McKay 654 Simpson, exparte 300 Sims V. N. Y. College Dentistry 142 Simson v. Satterlee 132 Sinclair v. Fitch 257 Siney v. N. Y. Con. Stage Co..574, 592 Sisson V. Lawrence 228 Sixth Ave. R. R. Co. v. Gilbert El. R. R. Co 203,504 Sixth Ave. Ry. Co. v. Kerr 474 Skidmore v. Post 85 Skinner t. Noyes 203 Skinnion v. Kelley. . . .• 533 Slack V. Bro^vu 617 Slack V. Heath 251 Slade V. Joseph 155 SlausoQ V. Conkey 625 Slendon v. Payne 17 Slocum V. Berry 120 Sluyter v. Smith 635, 647 Smadbeck v. Sisson 521 Smart v. Bement 132 Smart V. Haring 142 Smiley v. Fry 84 Smith V. American Coal Co. . . . 529 Smith V. Arnold 530, 523 Smith V. Bowers 631 Smith V. Button 92 Smith V. Countryman 301 Smith V. Danzig 599 Smith V. Davis 184, 519 Smith V. Douglass 810 Smith V. Geortner 840 Smith V. Gold & Stock Tel. Co. 451 Smith V. Hall 872 Smith V. Heermance 642 Smith V. Howard 342 Smith V. Hudson 645 Smith V. Joyce 675 Smith V. Kelley 579 Smith V. Lawrence 113 Smith V. Levlnus 808 Smith V. Long 126 Smith V. Lowry 462 Smith V. Meyers 412 Smith V. N. Y. Con. Stage Co. . 572 Smith V. Orser. . .' 335, 528 Smith V. Randall 367 Smith v.Rathbun. .110, 121, 288, 294 Smith V. Ryan 87 Smith V. Schulting 384 Smith V. TifEany 113, 132, 318 Smith V. Tracy 399 Smith V. Wells 174, 576 Smith V. Woodrufl 98, 590 Smith V. Zalinski 669, 673 Smoot V. Heim 385 Smyth V. Rowe 172 Snape v. Gilbert 368 Snedecker v. Bernard 296 Sniffin V. Parker 423 Snow V. Fourth Nat. Bk 390 Snyder v. Olmsted 194, 690 Snyder v. Snyder 108 Snyder v. White 283 Solman v. Schmidt 311 Sol Oman v. Belden . 235, 236 Somers v. Torrey 300 Somerset & W. Sav. Bk. v.Huyck 431 South In'l. Nav. & Imp. Co. v. Sherwin 394, 423, 635 Southwick V. First Nat. Bk 290 Soverhill v. Dickson 100 Spalding v. Vandercook. . . .619, 631 Spaulding v. Lyon 162 Spaulding v. Millard 315 Spawn V. Veeder 280 Spear v. Cutter 444, 476 Spear V. Downing 316 TABLE OP CASES. Iv Spears v. Matthews 478, 504 Spears v. Mayor 290 Spellman v. Weider 379 Spence v. Baldwin 401 Spencer v. Barber 205, 625 Spencer v. Rogers Loco. Works. 48, 315, 558 Spencer v. Tooker 356 Spencer v. Wait 70 Spencer v. Wieelock 123 Speyers v. Torstritcli 686 Spier y. Robinson 122 Spies V. Access. Trans. Co 302 Spooner v. Keeler 661, 675 Sprague v. Irwin 149, 177 Spratt V. Huntington 201 Spring V. Gourlay 423 Springer v. Dwyer 360 Syuj-ten Duyvil R. M. Co. v. Williams 284 Squire v. Gould 325 S. S. Circassin, Matter of 18 Staats, exparie 25 St. Amant v. De Beixcedon 518 St. Jolin V. American Mut. L. Ins. Co 119 St. John V. Beers 251 St. John Y. Croel 664, 668, 673 St. John V. Dennison 591 St. John V. Northrup 370 Staflord v. Ambs 213, 614 Stafford v. Bryan 86 Stage V. Stevens 398 Stage Horse Cases 474 Stamm v. Bostwick 474 Stanley v. Chappell 307 Stanton v. Swann 291 Staples V. Fairchild 194 Staples V. Parker 219 Star F. Ins. Co. v. Godet 314 Starks v. Starks 637 Starr v. Rathbone 577 State Bank v. Gill 197, 573 State Bk. v. Shaw 377 Staunton v. Swann 294 Stedeker v. Bernard 367, 387 Stedeker v. Taft 365 Steele v. Sturges 584 Steinberg v. Lasker 395 Steinert, Matter of 500 Steinle v. Bell 174 Stelle V. Palmer 207 Sterman v. Kennedy 468 Stern v. Knapp 287 Sternberger v. McGovern 61 Sterne v. Bentley 629 Sterne v. Herman 336 Steuben Co. Bank v. Alberger. . 309, 501, 519, 531, 550, 552, 553, 556 Stevenbergh v. Schoolcraft 100 Stevens v. Browning 637 Stevens v. Hauser 65 Stevens v. Lockwood 330 Stevens v. Mayor, etc 843 Stevens v. Middleton. . .518, 519, 520 Stevens v. Rodgers 313 Stevens v. Veriane 627 Stevenson v. Yorke 620, 621 Steward v. Winters 454 Stewart v. Berge 216 Stewart v. Howard 413, 415 Stewart v. Patrick 127 Stewart v. Stewart ,28 Stewart v. Wallis 373 Stichter v. Tillinghast 678, 683 Still V. Holbrook 76 Still well v. Melsore 27 Stilwell V. Carpenter 308 Stilwell V. Kelly 283 Stilwell v. Priest 682 Stoker v. Watters 86 Stokes V. Stickney 662 Story V. Elliott 4 Stowell V. Otis 353 Stow V. Betts 691 Stowits V. Bank of Troy 279 Strappman v. MuUer 129 Straus V. Tradesmen's Kat. Bk . . 383 Strong V. Blake 617 Strong V. City of Brooklyn 126 Strong V. Dickenson 154 Strong V. Eighme 55 Strong V. Jones 315 Strong V. Sproul 396 Strong V. Strong 292, 686 Strong V. Wheaton 123, 383 Stroub V. Henly 403 Strupman v. Muller 101 Struver v. Ocean Ins. Co 298, 379 Stryker v. N. Y. Exchange Bank. 282 Stryker, Matter of 77 Stubbs V. Ripley 307, 486, 487 Ivi TABLE OF CASES. Stubbs V. Stubbs 6i9 Stull V. Westfall. . .320, 447, 449, 482 Sturges V. Vanderbilt 670 Sturgess v. Parkhurst 67 Sturgis V. SpofEord 631 Stuyvesant v. Bowran 395 Sullivan v. Frazee 178 Sullivan v. Sullivan 128 Summerville v. Metcalf 334 Supreme Council of Chosen Friends v. Fairman 467 Superv's. of Saratoga Co. v. Deyoe 337 Superv's. of Tompliins Co. v. Bristol 118 Sussdorf V. Schmidt 31 Sutherland v. Bradner 553 Sutherland v. Carr 118 Sutton V. Sabey 424 Swart V. Boughton 344, 386 Swartwout v. Hoage. 197 Sweet V. Flannagan 53 Sweef V. Tuttle 355 Swezoy v. Bartlett 189, 552 Swift V. Smith 308 Swinnerton v. Columbian Ins. Co 248 Syckels v. Perry • 235 Symson v. Silheimer 638 Syracuse Sav. Bk. v. Porter 259 Syracuse Sav. Bk. v. S. C. & N. Y. E. R. Co 40 T. Taacks v. Schmidt 15, 497, 533 Taber v. Gardner 263 Tabor v. Hoffman 449 Taft V. Wiiglit 73 Talbot V. Chamberlin 476 Talcott V. Rosenberg 643 Talcott V. Van Vechten .' . . 312 Tallman v. Hinman 145 Talman v. Barnes 224 Tasker v. Wallace 638 Taylor v. Baldwin 99, 589 Taylor v. Bogert 647 Taylor v. Carpenter 472 Taylor v. Church 333, 666 Taylor v. Corbier 226 Taylor v. Crane 319 Taylor v. Guest 320 Taylor v. Hutton 502 Taylor v. Mayor, etc 365 Taylor v. Mayor of N. Y 219 Taylor v. Metropolitan Elev. R. R. Co 377 Taylor v. Richards 377 Taylor v. Root 364 Taylor v. Troncoso 516 Taylor v. Van Keuren 407 Taylor, Matter of 435. Teall V. City of Syracuse 859 Teall V. Felton ' 34 Tebo V. Robinson 86 Ten Eick v. Simpson 634 Terry v. Rubel 678 Thatcher v. Bancroft 566 Thatcher v. Morris. 317 Thalheimer v. Hays 556 Thaule v .Krekler 321 Thayer v. Roch. City & B. R. R. Co 464,494 Thayer v. Roch. Co. &c. R. R. Co 503 Third Ave. R. R. Co. v. Mayor, etc 460 Thomas v. Beebee 324 Thomas v. Bennett 120 Thomas v. Desmond 315 Thomas v. Jones 178 Thomas v. Loaners' Banli 373 Thomas v. Nelson 289 Thomas v. Utica &c. R. R. Co. . 389 Thomas v. Wilson 101 Thompkius v. Smith 424 Thompson v, Burhans 66, 67, 194 Thompson v. Clark 185 Thompson v. Erie Ry. Co 203, 208, 349, 683, 685 Thompson v. Friedberg. 416, 420 Thompson v. Gould 325 Thompson v. Halbert. 387 Thompson v. Hickey 474 Thompson v. Hodgkin 475 Thompson v. Sherrard 582 Thompson v. Smith 113 Thompson v. Tammany Society. 451 Thompson v. Whitmarsh. . . .114, 367 Thomson v. McGregor 583 Thorington v. Merrick .508, 520 Thorne v. Newby 134 TABLE OP CASES. Ivii Throop V. Hatch ... 248 Throop Grain Cleaner Co. v. Smith 543 Thursby v. Mills 473 Thwing V. Thwing 670 Tibbetts v. Blood no Tiffany v. Bowman 291 Tiffany v. Lord 29 Tiffany V. U. S. Illum'g. Co.. 456, 464 Tift V. Bloomberg 291 Tighe V. Pope 635 Tillspaugh v. Dick 644 Tilman v. Keane 631 Tilton V. Beecher 212, 277, 302 Tilton, Matter of 527 Tim V. Tim 326 Tioga R. R. Co. v. B. & C. R. R. Co 78 Titus V. Cortelyou 691 Tobin V. Cary 640 Toll V. Alvord 437 Toll V. Cromwell 307 Tom V. Methodist Bp. Ch 157 Tompkins v. Smith 397 Tooker v. Arnoux 254, 293 Toplitz V. Raymond 643 Towle V. Covert 48 Town of Essex v. N. Y. & Canada R. R. Co 300 Town of Gravesend v. Curtiss . . 468 Town of Guilford v. Cornell. ... 494 Town of Hancock v. First Nat. Bk 137 Town of Thompson v. ISTorris. . . 459 Town of Venice v. Breed 72 Townsend v. Coon 339 Townsend v. Nebenzahl 15 Townsend v. Norris 250, 325 Townsend v. Piatt 356 Townshend v. Townshend 131 Towsley v. McDonald 167, 171 Tracy V. Baker 352 Tracy v. First Nat. Bk. of Selma 550 Tracy v. Reynolds 179, 346 Tracy v. Veeder 420 Tradesmans' Nat. Bk. v. Mc- Feely 638 Traver v. Eighth Ave. R. R. Co . 271, 309 Travis v. Myers 121 Travis v. Tobias 240, 346 Treadwell v. Passett 267, 268 Treadwell v. Lawlor 144, 513 Tremper v. Wright 223 Tribune Ass'n. v. Sun Print. Ass'n 466 Trier v. Hermann 637 Trigg v.Hitz 238 Tripp V. Saunders 628 Trolan v. Pagan 162 Trowbridge v. Didier 258 Trow's Printing Co. v. Hart.. 550, 553 Troy & Boston R. R. Co. v. B. H. T. & W. R. R. C0...445, 446, 447, 475 Troy & B. R. R. Co. v. Tibbitts.. 293 Troxell v. Haynes 499 Trubee v. Alden 545 Trull V. Granger 319 Trunninger v. Busche 401 Truscott V. Dole 251 Trustees v. Cowen 456 Trustees of Columbia Col. v. Lynch 455 Trustees of Columbia Col. v. Thacher 455 Trustees of Delhi v. Youmans.. 477 Trustees of East Hampton v. Kirk 65 Trustees of Watertown v. Cowen 136 Tuers v. Tuers 329 Tuft v. Braisted 92 Tullis V. Runkle 32, 33 Tunstall v. Winton 403 Tuomy v. Dunn 640 Turner v. Davis 28 Turner v. Fire Ins. Co. of Phila. 158 Turner v. Honsinger 631 Turner v. Thompson 501 Tuttle v. Smith 309 Twomey v. Andrews 283 Tyack v. Bromley 466 Tylee v. M'Lean 122 Tynan v. Cadenas 237 T. & B. R. R. Co. v. Tibbits. . . . 286 u. Ulner V. Butterfleld 79 Underbill v. Dennis 11 Underbill v, Phillips 314, 316 Underwood v. Sutcliff 649 Iviii TABLE OF CASES. Union Mining Co. v. Ralit. .508, 557 Union Nat. Bank v. Bassett. . . 286 Union Paper Collar Co. v. Metro- politan Collar Co 686 United States v. Grafl 508, 527 United States v. Kirby 408 United States v. Reid 394 United States v. Keynes 249 United States v. Dodge 35 United States v. GrafiE 35 United States v. Lee 36, 37 United States t. Lotlirop 36 United States Trust Co. v. N. Y., West Sh. & Bufl. R. R. Co 597, 598, 599, 601, 606, 611 Utica Ins. Co. v. Lynch 591 Vaidreo v. Vaidreo 683 Vail V. Knapp 459 Vail V. Lane 223 Valentine v. McCue 639 Valentine v. Myers Sanitary Depot 177 Valerino v. Thompson 36 Van Aernam v. McCune 110 Van Allen v. Sampson 557 Van Alstyne v. Erwine 511, 533 Van Benschoten v. Yaple 357 Van Benthuysen v. Stevens 193 Van Buren v. Chenango Co. Mut. Ins. Co 612 Van Buskirk v. Roy 339 Vandenburgh v. Van Rensselaer 653 Vandorbilt v. Bleeker 384 Vanderbilt v. Schreyer 134, 649 Vanderheyden v. Gary.. 186, 527, 541 Vanderwerter v. People 5 Van Deusen v. Brower 637 Van Deusen v. Young 136 Van Dyok v. McQuade 608 Van Home v. Montgomery 267 Van Home, Matter of 580 Van Ingen v. Snyder 85 Van Kleek v. Nichols 424 Van Leuven v. Lyke 311 Van Liew v. Johnson 386 Van Moppes v. Leimbach 521 Van Name t. Van Name 131, 334 Van N amee v. People 305 Van Pelt v. Boyer 345 Van Eanst v. N. Y. College of Vet. Surgeons 445 Van Rensselaer v, Bonesteel .... 315 Van Rensselaer v. Brice 300 Van Rensselaer v. Chadwick. . . 224 Van Rensselaer v. Dunbar 166 Van Rensselaer v. Hopkins 440 Van Rensselaer v. Layman 343 Van Rensselaer v. Sheriff of Onondalga Co , 29 Van Sachs v. Keitz 81 Van Schaick v. Siegel 397 Van Slyke v. Schmeck 641 Van Valen v. Lapham 360 Van Vechten v. Paddock 4 Van Veghten V. Howland. . 442,445 Van Wagenen v. Botsford 135 Van Wagenen v. LaFarge 461 Van Wrsdale v. Drake 129 Van Wyck v. Hardy. 168, 644 Van Wyck v. Horowitz 473 Varick v. Edwards 77 Vassar v. Livingston 358, 359 Varian v. Stevens 48 Varick v. Smith 117 Veeder v. Baker 209 Vellerman v. King 629 Vermilyea v. Vermilyea 448 Vernon v. Palmer 150 Vemum v. Wheeler 477 Verplanck v. Kendall 217 Verplanck v. Mercantile Ins. Co. 587, 607 Versann v. McGregor 350 Victory v. Krauss 662 Vietor v. Henlein 513, 555 Viets V. Union Nat. Bank 84 Village of Brockport v. Johnson 454, 475 Vincent v. King 286 Vincent v. Parker 589 Vischer v. Bagg 354 Vogel V. Badcock 315 Volkening v. DeGraaf 289, 312 Von Rhade v. Von Rhade 174 Von Sohoening v. Buchanan. . . . 645 Vorhis V. Childs 114 Vosburgh v. Huntington -238 Vrooman v. Lawyer 324 Vrooman v. Stimson 113 TABLE OF CASES. lix W. Wade V. Delayer 649 Wade V. Kalbfleisch 661 Wadley, Matter of 8, 191 Waffle V. Gobble 168, 514 Waffle V. Vanderheyden 179 Wait V. Ferguson 387 Wager v. Troy. Union K. E. Co.. 127 Waggoner v. Brown 266 Wagner v. Hodge 133 Wakeman v. Sherman 86, 87 Walden v. Davison 16 Walker v. Devereaux 447 Walker v. Granite Bank. . ..686, 688 Walker v. Hubbard 146, 305 Walker v. Isaacs. 637 Walker v. Johnson 629 Walker v. Reifl 171 Walker v. Spencer 377 Walker v. Wainwright 462 Walkinshaw v. Perzel 282, 636 Wall V. Buffalo Water Wks..270, 271 Wall, ex parte 23, 24 Wallace v. American Lin. Thr'd. Co 631 Wallace v. Bennett 256 Wallace v. Castle 400, 509 Wallace v. Dimmick 146, 147, 635 Wallace v. Eaton 384 Wallace v. Morss 408 Wallace v. Murphy 398 Wallack v. Society for Belief of Juv. Delinquents 460 Waller v. Lyon 257 Wallis v. Lott 163 Walmsley v. Nelson. ...678, 683, 689 Walradt v. Maynard 29, 318 WalratJi v. Bailer 202 Walsh V. Washington Ins. Co. . . 120 Walter v. Bennett 312 Walter v. Lockwood 247, 319 Walton V. Daly 560 Walton V. James 133 Walts V. Nichols 212, 509, 550 Wandell v. Edwards 353, 357 Wannemacher v. Davis 414" Ward V. Arredondo 35 Ward V. Barber 647 Ward-v. Comegys 371 Ward V. Hogan 317 Ward V, Kalbfleisch 283 Ward V. Reynolds 664 Ward V. Koy 29 Ward V. Sands 146 Ward V.Smith 76 Ward V. Stringham , .306, 635 Ward V. Ward 376 Ward V. Whitney 547 Waring v. Indemnity F. Ins. Co. 120 Waring v. Waring 182, 186, 673 Waring v. Yale 204 Warren v. Sprague 587 Warren v. Tiffany 166 Waterbury v. Delafleld 236 Waterbury v. Merch. Un. Ex. Co. 582 Waterbury v. Mut. U. Ex. Co. . . 109 Waterbury v. Westervelt 16 Watson V. Cabot Bk 47 Watson V. Church 155 Watson V. Cowdrey 369 Watson V. McGuire 399 Watson V. Walker 321 Watt V. Healy 427 Watts V. Nichols 192, 519 Watts Admr. v. Kinney 36 Waverly Water Wks., Matter of.. 215 Way M'fg. Co. v. Corn 280 Wayland v. Tysen 297, 298 Weatherby v. Wood 476 Weaver v. Barden 358 Webb V. Bailey 419, 517 Webb V. Groom 210 Webb V. Overmann 582 Webb V. Vanderbilt 379, 386 Webb V. Van Zandt 576 Weber v. Boyer 154 Weber v. Fowler 183 Weed V. Calkins 94 Weed V. Hornby 132 Weed V. Saratoga & S. E. B. Co. 633 Weeks v. Keteltas 270 Weeks v. Love 112 Weeks v. Noxon 409 Weeks v. Tomes 182, 647 Wehle v. Bowery Sav. Bk 238 Wehle V. Conner 527, 528, 533 Weidschell v. Spear 215 Weil V. Martin 137, 146, 147, 170, 171, 173, 635 Weir V. Slocum 147, 635 Weitkamp v. Loehr 509 Welch V. Piatt 328 TABLE OF CASES. Welch V. Winterburn 396 Welford v. Oakley 655 "Wellington v. Claason 125, 179 Wells V. Chapman 454 Wells V. Henshaw 92 Wells V. Van Aken 274, 275 Wendell v. Van Eensselaer 106 Wendt V. Peyser 261 Wesley v. Bennett 297 West V. American Exch. Bk..349, 352 West V. Brewster 313 Westcott V. Fargo 109 West Point Iron Co. v. Keymert. 474 West Side Bank v. Pugsley 216 Western Bank v. Sherwood. ... 315 Western K. E. Co. v. Nolan 467, 469, 471 Westervelt v. Ackley 354 Westheimer v. Schultz 481 Wetmore v. Hegeman 31 Wetmore v. Jennys 281 Wetmore v. Porter 113, 313 Wetmore v. Scovell 469 Wetter v. Schlieper 574 Weyh V. Boylan 665 Wharton v. Barry 197 Wheaton v. Fay 489 Wheeler v. Brady 431 Wheeler v. Dixon 363 Wheeler v. Gillsey 487 Wheeler v.N.Y.&Har.K.K. Co. 163 Wheeler v. Spinola 67 Wheeler v. Warner 84 Wheelock v. Lee.. .178, 313, 391, 655 Wheelook v. Stewart 400 Whelan v. Whelan 103 Whelpley v. Van Epps 267 Whipple V. Williams 652 Whitcomb v. Salsman 399 White V. Brady 32 White v. Bogart 162, 628, 630 White V. Caxton Book Bd'g. Co. 459 White V. Coulter 185, 654 White V. Demilt 316 White V. Munroe 309 Whitehall & P. E. E. Co. v. Meyer 275 Whitehead v. Kennedy 31, 48 Whitelegge v. DeWitt 551 Whiteside v. Prendergast 593 White Wright v, Stimpson 577 ■Whitney v. Belden 211 Whitney v. Coapman 113 Whitney v. Denniston 524 Whitney v. Hirsch 508, 559 Whitney v. HofEstadt 416 Whitney v. Mayor, etc 390, 453 Whitney v. N. Y. & Atlantic E. E. Co 600 Whitney v. Townsend 339 Whittlesey v. Delaney 608 Whitworth v. Erie E. E. Co. 685, 686 Wicker v. Harmon 413 Widmer v. Greene 450 Wier V. Slocum 220 Wiggins V. Eichmond.' 147 Wilber V. Baker 33 Wilcox V. -Daggett 294 Wilcox V. Wilcox 41, 42 Wilder v. Guernsey 425 Wilder v. Seelye 617 Wiles V. Suydam 336, 337, 384 Wilkes V. Hotchkiss 197 Wilkie V. Eooh. & St. Line E. E, Co 503 Wilkin V. Eaplee 372 Wilkinson v. First Nat. F. Ins . . 81 Wilkinson v. Johnson 235 Wilkinson v. Parish 665 Willet T. Equitable Ins. Co 531 Willet T. Fayerweather 208 Willett V. Slinger 493 Williams v. Allen 281 Williams v. Aryault 459 Williams v. Davis 280 Williams v. Estate of Cameron. . 100 Williams v. Hayes 245, 311 Williams v. Healey 317 Williams v. Hogeboom 636 Williams v. Ingersoll 32 Williams v. Johnson 644 Williams v. Lakey 608 Williams v. Matthews 26 Williams v. Murray 211 Williams v. Eogers 636 Williams v. Shaw 280 Williams v. Van Valkenburgh . . 153 Williams v. Willis 88 Williams v. W. U. Tel. Co .200, 450 Williamson V. Williamson 168 Williamson v. Moore 666 Willink V. Eenwick 215 TABLE OP CASES. Ixi Willis V CMpp , 356 Willis V. Corlies ^Q^ Willover v. First Nat, Bk., Olean 367 Willson V. Betts 69 Wilmont v. Meserole 22, 25, 182 Wilmore v. Flack 388, 633, 644 Wilson V. Allen 584 Wilson V. Barney 601 Wilson V. Bennett 262, 268 Wilson V. Britton 512 Wilson V. Doran 619, 620, 622 Wilson V. Duncan 239 Wilson v. Harvey 508 Wilson V. KoBinson 388 Wiltsie V. Northam 368 Winchell v. Hicks 86 Winchell v. Martin 278 Winfleld v. Bacon 99, 588, 589 Wing V. Bull 384 Wing V. Ketcham 665, 673 Wing, Matter of 100 Winnebrenner v. Edgerton. . 653, 654 Winslow T. Boehm 297 Winslow V. Ferguson 298 Winter v. Baker 36 Winterton t. Winterton 87 Wireman v. Bemington 8. M. Co. 623, 625 Witherhead v. Allen 386 Witkowski v. Paramore 276 Witter V. Brewster 73 Wittner v. Von Minden 508 Woerishofler v. Korth Eiv. Con. Co - 595 Wolfe V. Burke 461, 474 Wolfe V. Goulard 472 Wolford V. Oakley 142, 634 Wood V. Holmes 220 Wood V. Kelly 49 Wood V. Martin 638 Wood V. Marvine 470 Wood V. Mayor 295 Wood V. Eaydure 350 Wood V. St. Louis B. & I. Co. .. 169 Wood V. Wood 77, 136 Woodbury v. Deloss 338 Wooden v. Strew 300 Woodhouse v. Woodhouse 368 Woodmansee v. Bogers 552 Woods V. DeFiganiere . .104, 686, 689 Woolsey v. Judd 35, 470 Woodward v. Frost 235, 460 Woodward v. Schatzell 540 Woodward v. Stearns 523 Wood worth v. Van Buskerk 462 Woolbridge v. Nelson 415 Wooster v. 42nd. St. R. E. Co. , . 81 Word V. Wordsworth 33 Wortman v. Wortman 171 Woven Tape Skirt Co., Matter of 612 Wright V. Field 322 Wright V. Hooker 309 Wright V. Jeffery 4 Wright V. Eowland 558 Wright V. Marshall 122 Wurtz V. Jenkins 113 WyckofE V. Anthony 618 Wyckofl V. Devlin 94 Wyckofl V. Scofleld. . . .579, 585, 588 Wygand v. De Jonge 277 Xenia Branch Bk. v. Lee. . .257, 361 T. Yate V. Willan 621 Yates V. Bilegow 275 Yates V. Blodgett 146, 398 Yates V. Burch 377 Yates V. North 554 Yenney v. Yenney 169 Younger v. Duffle 300 Young V. Campbell 443 Youngs V. Carter 41 Youngs V. Kent 296 Youngs V. Eansom 466 Youngs V. Seeley 263 z. Zabriskie v. N. Y. Sav. Bank. . . 239 Zabriskie v. Smith 247, 383, 391 ZellenkofE v. Collins 475 Zerega v. Benoist 518 Zinn V. Eitterman 397, 430 Zoellner v. Newberger 263 Zorkowski v. Zorkowski 326 Zorn V. Zorn 384 Ixii TABLE OF CASES. CODE OF CIVIL PEOCEDUEE. SBC. 2. 4. 5. 6. 14. 17. 18. 22. 27. 29. 34. 35. 36. 37. 46. 47. 48. 49. 59. 60. 61. 62. 63. PAGE. .. 2 .. 37 .. 3 ..4,5 .. 18 1 .. 2 .. 256 .. 13 .. 13 .. 9 .. 10 .. 6,7 .10, 11 . . 12 . . 12 .. 12 . . 23 . . 23 . . 15 . . 17 . . 27 65 37, 231 66 80,81,33 67 22 68 23 69 24 70 25 71 25 72 26 73 26 74 26 76 27 89 15 90 571 92 20 97 19 98 19 99 19 100 18 101 *. ... 18 102 18 104 17 111 427 116 139 119 411 158 153 SEC. 172. 173.. 174.. 175.. 176. 179.. 180.. 181. 190.. 191. 196. 197. 217. 218. 219. 225. 232. 234. 235. 236. 237. 238. 239. 240. 241. 242. 244. 263. 265. 266. 267. 268. 269. 270. 277., 278. 280. 281. 282.. 284. 286. 292. 293. 294. 296. 302. 311. 315. PAGE , . . . 20 . . . . 30 . . . . 20 ... 31 ... 31 ... 21 .21, 418 ... 21 ... 38 ... 39 ... 5 ... 5 ... 41 . . . . 42 . . . . 40 .... ft ...6, 42 ... & ... 57 ... 6,7 .... 7 .... 7" ... 6,7 ... 57 ... 57 .... 19 .... 625 ..45, 46 ..47, 48 . ... 310 . . . . 47 . . . . 57 , . . . 42 . . . . 66 . . . . 58 ... 49 .... 8 .... » .... 8 . . . . 15 . . . . 49 . . . . 50 . . . . 50 . . . . 50 19 19 15> TABLE OF CASES. kill ®^''- PAGE. SEC. PAGE. 316 317 52 318 52 319 42 324 8 328 15 340 , 54 341 55 343 42 347 , 65 348 55 349 57 419 350 56 354 58 355 9, 57 362 62 363 , 63 264 , 46 365 , 63 366 . . . . 47, 63 367 64 368 65 369 65 370 65, 66 371 66 372 67 373 68 374 68 375 69 376 69,70 377 70 378 70 379 70 381 71 382 70,72, 76,85 383 74 384 74 385 75 386 . . 83 387 76 388 71, 76 389 77 390 78 391 80 392 80 393.. 83 394 74 395 86 396 82 397 85 398 89 399 89 400 89 401 79 402 80 403 80 404 79 405 81 406 81 407 83 408 69, 82 409 82 410 84 411 82. 412 82 413 88, 373 414 88 415 ; 83 416 144, 514 417 145,176,305- 418 147 419 147 420 148 421 176 422 180 423 150 424 176 425 151 426 151, 153 427 152 428 152- 430 156 431 15& 432 158 433 160 434 160, 162, 435 163 436 164 437 165 438 166 439 167 440 170 441 173 442 172 443 172 444 174 445 175 446 105 447 105 448 105, lao- Ixiv TABLE OP CASES. SEC. PAGE. SEC. PAGE. 449 105, 119 508 356, 387 451.: 137 509 370 452 105 511 623 454 123 512... ■ 370 455 124 513 260 456 134 514 371, 372 457 135 515 .356, 374 458 101 516 371, 420 459 101 517 373 460 103 518 245 461 .■ 103 519 269 463 103 520 258 463..., 103 521 259,347,370 464 103 522 272 465 103 523 260, 261 466 103 524 251, 261 467 34, 103 525 261, 263, 264 469 137 526 261, 266 470 138 527 -. 261 471 137, 139 528 268 473 138, 140 529 262 473 141 530 252 474 141 531. . : 252, 264, 274, 275, 276 475 141 532 252, 331 477 143 533 253 478 304 534 254 479 345 535 255, 331, 355 480 346 536 357 481 246, 249, 304, 309, 311, 340 537 295 482 344 538 297 483 257, 309 539 287, 288 484. .312, 328, 330, 332, 333, 335, 339 540 288 487 347 542 282, 283 488 376, 380, 381, 382, 383, 384 543 284 490 378, 380, 381, 382, 385 544 290, 292 492 347,378, 379 545 299 493 376, 378,'389 546 .' 249, 301 494 376, 378, 387 548 393 495 376, 388 549 393, 397, 398, 399, 400 496 878, 389 550 395, 404 497 390 551 405, 417, 418 498 347, 391 552 406 499 331, 385, 391 553 397, 405, 407 500 246, 249, 348 554 407 501 (Throop's note) 358, 359 555 408 502 364, 366 556 59, 417, 418 503 370 557 413 505 866 558 218, 431 506 367 559 416 507 257, 355, 369 560 417 TABLE OF OASES. IxY SEC. PAGE. SBC. PAGE. 561 428 615 492 562 428 616 490 564 408, 423 617 498 563 437 618 491 565 28, 411 619 491 566 180, 421 630 493 567 415, 420 621 493 668 422 623 496 573 436, 437 624 499 573 429 625 499 574 429 626 500 575 430 627 500 576.: 430 638 501 577 430 639 494 578 431 630 5Q1 579 431 635 506 580 431 636 506, 609, 510, 513, 517 581 432 637 514 682 432 638 514,517 583...' 432 639 523 684 434 640 524 585 433 641 535 586 433 642 525 587 434 644 526 688 435 645 528 590 435 646 529 591 435 647 529 592 436 648 530 593 436 649 183, 533, 533 594 436 650 537 595 437 651 538 596 437 652 540 597 438 653 540 698 438 654 540 599 439 655 641 «00 439 656 545 601 440 657 546 603 441 658 546 603 321, 345, 446 659 546 604 447 660 546 605 : 480 661 547 606 478 663 547, 563 e07.... 481 663 547 608 478 664 547 609 59, 480 665 548 610 483, 485 666 548 611 489 667 548 6J2".! 489 668 548 613 490 6R9 548 614. 492 670. 548 Ixvi TABLE OF OASES. SBC. PAGE. SEC. PAGE. 671 549 734 648 673 549 735 645 673 549 737 646 674 543 728 194, 640 675 544 739 233, 641 676 545 730 234, 641 677 541 731.... 616, 618 678 542 r32 618, 619 679 542 733 619 680 542 734 620 681 541 736 636 682 550, 651 738 637, 638, 630 683 552, 554 739 629, 630 686 556 740 626, 629 687 558 743 613 688 ... 559 744 622 689 559, 560 745 619, 633 690 560 751 623 691 560 755 ; 658 692 561 756 669 693 561 757 663, 673 694 562, 563 758 660, 666 695 562 759 668 696 559, 562 760 , . .673, 674 697 563 761 675 698 563 762 671 699 559 763 675 701 563 764 675 702 564 765 676 703 564 766 589, 670 704 564 767 188, 211 705 565 769 190 706 565 770 58, 191, 418 707 668 771....: 192 708 567 772 58, 216 709 568 773 58 710 569 775 204, 228 711 187,569 776 209 713 569 777.' „ 210 713 573, 575, 580, 582 778 310 714 581 779 217 715. ., 583 780 203,226 716. 584, 585, 603 781 227, 228 717 613 782 228 718 613 783 238 719 614 784 339 720 483, 615 785 239 721 657 786 343 722 657 787 237 723 105, 147, 285, 388 788 226 TABLE OP CASES. Ixvii SEC. PAGE. BEC. PAGE. 796 320 1383 189, 653 797 222 1304 214 798 202, 226,227,258 1347 573 799 220 1351 215 800 221 1387 17 801..., 232 1497 334 802 220 1496 333 803 , 677 1498 136> 804 678 1499 136 805 684, 687 1500 133, 136 806 688, 689 1501 126 807 .....689, 690. 691 1503 126, 137 808 692 1503 127 809 691 1511 310 810 233 1512 28 811 230 1514 29 812 231 1521 661, 671 813 233 1522 661, 672 814 234 1523 661, 672 816 335, 333 1534 183, 185 815 233 1526 183, 185 817 234 1531 73 818... 234 1532 128 819 236 1534 101, 129 820. 337 1535 140 821... 240 15S6 141 824 224 1587 129 825 225 1538 130 826 242 1539 130 827 331, 574 1540 131 823 240 1541 131, 173 842 14, 198 1542 323 844 168, 198 1557 185 860 410 1588 :. 672 880 203 1590 56 885 200 1594. 117 886 201 1596 63, 83 927 223 1597 131 923 260 1598 133 976 43 1599 133 985 306 1606 318 989 307 1619 185 1018 ,.. 287 1637 134 1015 ■. 207 1638 ©S 1180 94 1631 181, 188 1201.. 344 1632 185 1207 341 1638 135 1213 13 1646 185 1360 29 1651 136 1263 586 1652 135 Ixviii TABLE or OASES. SBC. PAGB. SEC. PAGB. 1653 135 1886 95 1654 135 1887 95 1656 135 1888 96 1661 136 1890 96 1670 181, 188 1893 96 1671 184 1897 149 1673 184 1902 74,75, 114 1678 184 1909 107 1674 186 1913 93 1681 476, 493 1919 109 1686 125 1923 109 1689 335 1925 119 1693 145 1926 117 1720 322 1927 117 1722 335 1928 118 1736 661 1929 118 1752 75 1937 260 1756 262 1938 260 1764 313 1945 307 1770 368 1948 115 1774 172 1955 446 1775 317 1962 42,115 1776 261 1969 116, 660 1781 41,114, 115 1972 77 1782 114, 115 1977 116 1785 41, 97, 115 1982 116 1786 98,115 1990 493 1787 452, 479 1991 42 1788 695,600, 602 1994 116 1789 602 2008 48 1790 Ill 2015 5 1791 Ill 2017 42 1796 Ill 2067 42 1797 115 2068 48 1798 41, 97, 115 2091 42 1799 97 3092 48 1801 595 3108 43 1802 452 3104 43 1806 453, 479 2120 42 1809 451, 479, 480 3138 48 1810 594, 595, 599 2150 48, 56 1812 595 2153 587 1814 113 2188 49, 57 1817 113 3301 49, 57 1818 113 2319 48, 57 1869 580, 583, 584, 585, 588 3365 463 1876 446 3284 487 1877 577 3290 , 116 1880 94 2320 41 1882 95 2389 99 TABLE OF OASEa Ixix SEO. FAOE. 2340 100, 125 2345 41 2348 41 2410.. 49, 57 2419 41 2439 596, 600 2434 49 2507 13 2547 43 2588 43 2668 113 2672 113 2863 620 2953 50, 55 3045 57 3107 76 3160 167, 490 8229. 3336. 3246. 8363. 3365. 620 216 590 14 14 SEC. PAGE. 3280 14, 20 3281 14 3282 20 3300 14 83301 1 803 144 3803 14 3306 14 3307 20 3310 21 3330 592, 611 8333 60 8334 60 3335 60 3886 60 3887 60 3388 104 3339 60 3343 .... 8, 198, 305, 394, 396, 441, 483, 508, 518, 523. 8847 440 PENAL CODE. SKC. 268.. PAGE. .4, 155 GENEEAL BULES. BULE. PAGE. 2 13, 235 3 13,212,213 4 13, 225, 233, 483, 492 5 27,231, 232 7 13 8 16, 18 10 30 11 219 13 420 14 682 15 685,686 16 687 17 688 18 151, 161 19 192, 219, 256, 258 21 192, 202 23 197 24 196, 228 25 196 RULE. 27 30 31 36 PAGE. .212, 213 496 189 241 87. . = 58,202, 203, 205, 208 38 189, 191 46 306 47 189, 205 49 138, 140 60 138, 143 70 622, 633 78 98,586, 593 79 98 81 598, 610 83 587 84 2 85 2, 190 5tli Dept. Apr. 1887 633 Ixx TABLE OF CASES. SESSION LAWS. PAGE. PAGE. 1853 ch. 467 119 1882 ch. 410 § 619 493, 479, 480 1858 ch. 314 588 1882 ch. 410 § 637 136 1859 oh. 346 4 1882 ch. 410 § 646 465 1861 ch. 58 41 1882 ch. 410 § 1091 493 1868 ch. 720 14 1882 ch. 410 § 1723 14 1870 ch. 467 53 1882 ch. 410 § 1766 20 1871 ch. 379 14 1883 ch. 26 51 1875 ch. 79 452 1883 ch. 378 1875 ch. 379 14 597,598,599,606,610,611 1877 ch. 11 419 1883 ch. 409 §§ 131, 132 479 1877 ch. 417 63 1884 ch. 14 226 1877 ch. 466 585 1884 ch. 47 601 1878 ch. 354 5 1884 ch. 133 242 1879 ch. 449 592, 611 1884 ch. 285 603, 607 1880ch.245 596 1885 ch. 40 606 1880 ch. 269 41 1885 ch. 376 589 1880 ch. 344 50, 51 1885 ch. 380 4a 1880 ch. 423 41 1885 ch. 401 230 1880 ch. 460 41 1885 ch. 425 571, 583 1880 ch. 480 53 1886 ch. 310. . .598, 600, 601, 603, 612 1881 ch. 10 7 1886 ch. 275 611 1882ch. 409....109, 110, 239, 314, 1886 ch. 418 3 597, 601, 607, 608, 611, 612 1886 ch. 672 .. . 393, 401, 404, 426, 427 1882 ch. 410 § 275 411 1887 ch. 328 597 N. Y. REVISED STATUTES 2nd. EDITION. PAGE. PAGE. 1 R. S. 340 33 3 R. S. 336 476 1R.S.349 19 3R.S.889 , 20 1 R. S. 378 5, 155 3 R. S. 386 674 1R.S.961 15 3 R. S. 938 56 2 R. S. 308 661 3 R. S. 779 633 N. T. EEVISED STATUTES 7th. EDITION. PAGE. PAGE. IR. S. p. 378 409 3 R. 8. p. 1534 41 IR. S. p. 879 155 3R. S. p. 1661 41 1 R. S. p. 428 409 3 R. S. p. 1794 76 1 R. S. p. 511 118 3 R. S. p. 1844 228 1 R. S. p. 787 409 3 R. S. p. 1975 4, 155 1 R. S. p. 840 118 3 R. S. p. 2019 119 1 R. S. p. 837 118 3 R. S. p. 2117 334 2R.S.P.956 96 3 R. S. p. 2308 333 3R.S.P.1004 56 3R.S.p.3330 688 2R. S. p. 1083 186,465 3 R. S. p. 2353 76 3R.S.P.1511 613 3 R. S. pp. 3276, 3380 56 aR. S. p. 1530 lia 8 R. 8. p. 2281. 49 TABLE OF CASEa Ixii PAGE. PAGE. 3 R. S. pp. 2293, 2300.; 43 3 R. 8. p. 2394 114,659,660 3R. S. p. 2307 114 3R. 8. p. 2396 596,604 8 R. 8. p. 2308 114 3 R. 8. p. 2397 606 8R. 8. p. 2341 41 3 R. S. p. 2399 3 R. S. p. 2364 604 596, 601, 605, 607 8R. 8. 2374 §54 16 3 R. S. p. 2401 596,605,612 3R. 8. 2374 §55 19 3 R. 8. p. 2402 605,609 8R. 8. 2374 §66 19 S K 8. p. iiOi, et seq 42 8R.S.2374§57 19 3 R. 8. pp. 2412, 2439, 2442 56 8R. 8. p. 2376 42 3 R. S. pp. 2448, 2456 56 N. Y. CONSTITUTION. PAGE. PAGE. Art.VI.§3 37 Art. VI. § 13. 12 Art.VI.§6 40 Art.VI.§-20 12,13 Art.VI.§7 43 Art.VI.§21 12 Art. VI. §8 12 Art. VII. §17 77 Art. VI. §12 43 Art. X. §1 16 U. S. CONSTITUTION. PAGE. Art. I.§ 6 408 V. S. REVISED STATUTES. SEC. PAGE. 6EC PAGE. 1610 410 4063 410 1237 410- 4065 410 UNDER The Code of Civil Procedure. CHAPTEE I. THE COUETS OF THE STATE OF NEW YOBK. ARTICLE I. — The courts, their judges and officers. ARTICLE II.— The jurisdiction of the courts. AETICLE I. THE COUETS, THEIR JUDGES AND OFFICERS. SECTION. 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. 1. The Rules, and Ho-w Made. The practice treated of in this book will be that exclusively o£ 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 of judges. The members of this convention are the general term justices of the supreme court, and the chief judges of the superior city courts, and they are required to meet in convention, for the purpose of establishing rules of practice, at the capitol, in the city of Albany, on the first Wednesday of October, 1877, and every second year thereafter. (Code Civ. PBACTICE. Proc. § 17). The rules established by this conven- tion, are binding upon all the courts of record in the state, except the court for the trial of impeachments and the court of appeals. The rules thus made must be consistent with the provisions of the Code, and the convention is not empowered to alter, modify, or annul any rule established by the Code, but only to make such other rules as may be necessary and are in harmony with its provisions. (^Gormerly y. McGlynn, 84 N. T. 284). If a rule is inconsistent with a statute it is void. [Rice v. Ehele, 55 N. Y. 518 ; French v. Powers, 80 N. Y. 146). 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 a newspaper published at Albany, in which legal notices are required by law to be published. (Code Civ. Proc. § 18). Subject to the Code, and the general rules of practice, the different courts of record and the general terms are authorized to make such other, and further rules in regard to the transaction of business before them, as may be necessary. (General Pule 84). 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 Pule 85). In the court of appeals, where the statutes are- silent, the former practice in the court of errors will be followed. {Hastings v. McKinly, 8 How. Pr. 175 ; Mu. L. I. Co. v. Bigler, 79 N. Y. 568, 571). Sec. 2. The Courts of Record. The Ooubts of Eecoed in the State ake -. 1. The court for the trial of impeachments. 2. The court of appeals. 3. The supreme court. 4. A circuit court in each county. 5. A court of oyer and terminer in each county. 6. The court of common pleas for the city and county of New York. 7. The superior court of the city of New York. THE COURTS OF THE STATE OF NEW YOKE. 3 8. The court of general sessions of the peace in and for the city and connty of New York. 9. The superior court of Buffalo. 10. The city court of Brooklyn. 11. The city court of Yonkers. 12. A county court in each county except New York. 13. A court of sessions in each county except New York. 14. The city court of the city of New York. 15. The mayor's court of the city of Hudson. 16. The recorder's court of the city of Utica. 17. The recorder's court of the city of Oswego. 18. The justice's court of the city of Albany. 19. A surrogate's court in each county. (Co. Civ. Proc. §2). The court of common pleas for the city and county of New York, the superior court of the city of New York, the superior court of Buffalo, and the city court of Brooklyn, are ki^own as the superior city courts. (Code Civ. Proc. § 3343). It was provided by chapter 418 of the laws of 1886, that the city court, of the city of New York, was to be regarded as a superior city court, for the purposes of appeal to the court of appeals, but by a recent decision of the court of appeals, that provision of the law has been declared to be unconstitutional. [Hutkoff v. Demorest, 103 N. Y). The courts mentioned in section three of the code of civil pro- cedure, are not courts of record, and the practice in those courts will not be treated of in this work. Sec. 3. AVhen and hoiir 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. (Code 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 com- 4 ■ PEACTICE. plaining was injui-ed by such action. [Marshall v. Bochester Printing Company, 35 Hun 667.) No court shall be open or transact any business on Sunday, except to receive a verdict or discharge a jury. An adjournment of court on Saturday, unless made after a cause has been submitted to a jury, must be to some other day than Sunday. (Code Civ. Proc. § 6). Process in a civil case can neither issue, nor be returned, nor be served on Sunday ( Van Vechten v. Paddock, 12 Johns. 178; Penal Code § 268 ; 3 E. S. 1975); except process by which a defendant's body is ordered to be taken in any suit brought for a forfeiture or penalty, under the act concerning the Salt Springs. (Laws 1859, chap. 346, § 129. ) 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 [Houghialing 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. T. 483). A writ of inquiry to assess damages cannot be issued on Sunday, nor can a jury, summoned 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 John. 140). Process made returnable on Sunday is not void, but may be amended by the court. [Boyd y. Vander- kemp, 1 Barb. Ch. 273). 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 mid- night to mid-night. [Pulling y. People, 8 Barb. 384). A THE COURTS OF THE STATE OF NEW YORK. 5 writ of habeas corpus may be issued and served on Sunday, but it cannot be made returnable on that day. (Code 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 (Code Civ. Proc. § 6) ; and a cause may be continued from 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). No court shall be open or transact any business in any city, or town, on the day a general election, or town meeting, (laws of 1878, chap. 354), shall be held therein, unless it be for the purpose of receiving a verdict, or discharging a jury ; and every adjournment of the court in any such city or town, on the day next preceding the day on which any such election shall be held therein, shall always be to some other day than the day of such election, except such adjournment as may be made after a cause has been sub- mitted to a jury. (1. E. S. 378 § 5). This statute does not prevent the entry of judgment, or any other business of a civil nature which does not require the attendance of the parties, attorneys, witnesses or officers. {Rice v. Mead, 22 How. Pr. 445). 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 they must continue so long as the public interest requires. (Co. Civ. Proc. § 196). They may be appointed to be held in a building, other than that designated by law for hold- ing 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. General terms of the supreme court are held at such times as may be appointed by the justices of the judicial depart- ment, and at least one general term must be held each year in each judicial district. The justices of the general term PEACTICE. in each department are required to meet on or before the first day of December in every alternate year, commencing with the year 1878, and appoint the times and places for hold- ing general terms of the supreme court, in their department. (Co. Civ. Proc. § 225). On the first day of December 1877, and every two years thereafter, the justices of the supreme court for each judicial department must appoint the times and places for holding the special terms of the supreme court, and terms of the circuit courts, and courts of oyer and terminer, within their department, for two years from the first day of January, of the year next following. At least one special term of the supreme court, and two terms of the circuit court, and of the court of oyer and terminer, must be appointed to be held in each year, in each county separately organized. (Co. Civ. Proc. § 232). This sec- tion 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 the same has no authority to ad- journ such court, to be held at another place within the dis- trict [Northrup^. The People, 37 N. Y. 203), except as pro- vided by sections 37, and 239 of the code of civil procedure. The Governor may, when in his opinion the public interest requires, appoint one or more extraordinary general, or special terms of the supreme court, or terms of a circuit ' court, or court of oyer and terminer. He must designate the time and place for holding the same, and name the justice who shall hold or preside at such term, except a general term ; and he must give notice of the appointment, in such manner as in his judgment the public interest requires. (Co. Civ. Proc. § 234). The Governor may also, when in his opinion the public interest requires,, designate one or more judges of the superior court of the city of New York, or of the court of common pleas of the city and county of New York, to hold terms of the circuit court, and special terms of the supreme court in that city. (Co. Civ. Proc. § 236). He may also under the same circumstances, designate judges of the city court of Brooklyn, to hold circuits and special terms of the supreme court in the county of Kings. THE COURTS OF THE STATE OE NEW YOEK. 7 (Laws of 1881, chap. 10). Such designation must be in writing, and shall specify the term, and the judges designated to hold it, and in the county of Kings, it must specify the time and place of holding such circuit or special term. A ■case and exceptions in a cause tried at such term, must be settled before the judge who held the same, and the judge thus designated, may, after the expiration of the period of such designation, decide, finally determine, and dispose of any action, proceeding, or motion, that may have been heard or tried before him, and the same shall be reviewed in the same manner, and with the same effect, as if the court had been held by a justice of the supreme court. (Co. Civ. Proc. § 236). If any general or special term of the supreme court, or term of the circuit court, is in danger of failing, the Gov- ernor may designate one or more justices of the supreme court, as the case requires, to preside at such term, in the absence of the justice or justices appointed to preside at, or hold the same. (Co. Civ. Proc. § 237). Special terms of the supreme court, and terms of the circuit court must be held in the places designated by statute in each county for holding the county, and circuit courts (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 ofiice of the clerk, and the irial or hearing must be brought on, on the usual notice, un- less otherwise specified in the stipulation. (Co. Civ. Proc. ■§37). A special term of the supreme court may be adjourned 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 ad- journed to be held at chambers, by consent of both parties, but not otherwise. (Co. Civ. Proc. § 239). This, how- ever, does not authorize the transfer of the trial of a local » PRACTICE. 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 local action, triable in one county, is upon the calendar 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 can- not be heard there, unless by consent of jboth parties. [Mat- ter of Wadley, 29 Hun. 12). The Supeeioe City Courts. The judges of each superior city court must, from time to time, appoint the time for holding the general, special and trial terms of their courts, and assign the judges to hold each of the terms, and designate the trial terms at which issues of fact are triable by a jury. (Co. Civ. Proc. § 280). A general term of a superior city court must be held by at least two judges (Co. Civ. Proc. § 281) ; and a special term or a trial term must be held by one judge. (Co. Civ. Proc. § 282). At least four general terms, and six trial terms of the superior court of the city of Buffalo, must be held in each year. (Co. Civ. Proc. § 296). The City Cou.et oe 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 required 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 COURTS OF THE STATE OF NEW YOEK. 9 the adyerse 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, adjourn 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 county, for the same purpose. (Co. Civ. Proc. § 355). Adjouenments. Any term of a court of record may be adjourned from time to time, or to a specified future day, by an entry in the minutes. Jurors may be drawn for and notified to attend a term s6 adjourned, and causes may be noticed for trial thereat, as if the term was held by original appointment. Any judge of the court may so adjourn a term of it, in the absence of a sufficient number of judges to hold the court. (Co. Civ. Proc. § 34). If a judge, authorized to hold a term of a court of record, does not come to the place where the term is appointed 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 forthwith 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 accord- 10 PRACTICE. ingly, instead of adjourning it as prescribed in the last sec- tion, and the direction must be entered in the minutes as an order. (Co. Ciy. Proc. § 36). Sec. 5. Judges. A judge shall not sit as such, or take any part in the deci- sion 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 interested, 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. (Co. Civ. Proc. § 46). "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 exclu- sive 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 failure of remedy. [Matter of By ers, 72 N. Y. 1). Consanguinity 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 ttie 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 I)emo,25 ;Faddock 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 company, is dis- qualified to try an action against the company. ( Cregin v. The Brooklyn Cross Town Bail Boad Co. 8 Abb. Dig. 79). The disqualification exists, although the party to whom the judge is related is merely surety, and is fully indemnified. [Oakley v. Aspinwall, 3 N. Y. 547). If a judge is disqual- ified, he cannot act either by consent of the parties or at their THE COURTS OF THE STATE OF NEW YOEK. 11 request. (Ibid). 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 j Foot v. Morgan, 1 Hill,654). Taking an acknowledgment is not a judicial act within this statute. ( Tlie Remington Paper Co. v. C Dough- erty, 81 N. Y. 474). A judge is not disqualified in an action in which a corporation is a party, because he is a relative o£ one of the stock holders of the corporation. {Matter of the Dodge and Stevenson Co. 77 N. Y. 101). The disqualifica- 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 guardian of an infant. {Underhill \. 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 Go. V. Hand, 8 How. Pr. 35, 352). Although a judge is disqual- ified, an order appointing a referee, entered by consent of par- ties, 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 couit of appeals, 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. (Co. Oiv. Proc. § 46). This section does not, however, forbid a judge who has not heard the argument, from sitting with two judges who did hear it, to constitute a 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. (Cormngr V. iS'ZossoTC, 16 N. Y. 294). No judge shall, directly or indirectly, be 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 12 PRACTICE. or special proceeding to which he is a party, or in which he is interested. (Co. Oiv. Proc. § 47). A judge of a court of record is not disqualified from hearing or deciding an action, or special proceeding, or any matter, or question, by reason of his being a resident or taxpayer of a town, village, city, or county, interested therein. (Oo. 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 an attorney or counsel, in a court of which the judge, 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 interested 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 justice of the supreme court, or a judge of a court of record, in the cities of New Tork, Brooklyn or Buffalo, can practice as an attorney or counsel, in any court of record in this state, or act as refe- ree. (Constitution Ai-t. VI. § 21). No judge or justice of a court shall sit at a general term of any court, or in the court of appeals, in review of a decision made by him, or by any court of which he was at the time a sitting member. (Con. Art. VI. § 8). No person shall hold office as a judge or justice of any court, longer than until and includ- ing the last day of December, next after he shall be seventy years of age. (Con. Art. VI § 13). This provision of the constitution applies to county judges [People v. Brundage, 78 N. Y. 403), but not to justices of the peace [People 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 the judges of the court, and his office is at the Capitol. ( Con, Art. VI, § 20). The clerk of each of the superior city courts, and the clerk of the surrogate's court in each county. THE COURTS OF THE STATE OF NEW YORK. 13 are appointed by the judges of those courts, respectively. The county clerk o£ each county is the clerk of the supreme court (Oon. Art. VI §20), as well as of the circuit courts, and the county courts. Each court has a seal. (Co. Civ. Proc. § 27); The seal of the county is the seal of the supreme court, and of the circuit, and county courts. All these seals are in charge of the clerk, except the seal of the surrogate's court, of which the surrogate has charge. (Co. Civ. Proc. § 2507). The seal of each court may be affixed by making an impression directly upon the paper. (Co. Civ. Proc. § 29). The clerk of each court, except the surro- gate's 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 Eules, 2, 3, 4); He certifies all copies of such judgments, orders or papers. The clerk of each court is, in addition to the judgment book directed to be kept by the code of civU procedure, to keep the following: 1st. A book prop- erly indexed, in which shall be entered the title of all civil actions and special proceedings, with proper entries under each, denoting the papers filed, and the orders made, and the steps taken therein, with the dates of the several proceedings. 2nd. An index of all bonds and undertakings, filed in the office, stating in appropriate columns, the title of the cause or proceeding in which it is given, with a general statement of its condition, or a reference to the statute, under which it is given; the date when, and before whom, acknowledged or approved, by whom approved, and when filed, with a state- ment of any disposition or order made of, or concerning it. 3rd. Such other books, properly indexed, as may be neces- sary to enter the minutes of the court, docket judgments, enter orders, and all other necessary matters and proceedings, and such other books, as the several courts, at a general term may direct. (General Bule, 7). It is the duty of the clerk of the court to assess the amount due on the entry of judgments, which may be entered without application to the court, if an assessment is necessary. (Co. Civ. Proc. § 1213). He must tax all costs awarded to any party, either by statute, or by order of the court, unless the court directs otherwise 14 PEACTICE. (Co. CIt. Proc. §3262) ; but such taxation may be reviewed by the court. (Co. Civ. Proc. § 3265). 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. Living- ston, 6 N. Y. 422). Each clerk is entitled to fees for cer- tain services, which are fixed by statute. The fees of the clerk of the court of appeals are fixed by section 3300 of the code of civil procedure. The fees of clerks of courts of record for their services, in an action 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 jus- tice's 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 of 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. (Laws of 1882, chap. 410, § 1723, Laws of 1875, chap. 379, § 7) ; and to the county clerk in Kings county. (Laws of 1868, chap. 720, laws of 1871, chap. 379). The clerk must perform all services required of him, without fee, except as the law prescribes, and he cannot receive any greater fee or compensation 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 performing 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 sub-division one of section" THE COTJETS OF THE STATE OF NEW YOEK. 15 3301, is not payable until the cause is moved for trial. {Mal- comb V. Jennings, 1 Code E. 4). It is intended to pay the clerk for the ordinary 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. 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 refer- ence 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 th& cause, being on the circuit calendar, is referred, a trial fee to the clerk is not allowed. (Benton v. Sheldon, 1 0. E. 134). The trial fee is allowed, not only on the trial of an action at the circuit, or trial term, or special term, but also upon the argument, at general term, of an appeal from a judgment, or where a judgment is afl&rmed 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 cleric'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 Supe. 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. [Townsend v. Nebenzahl, 2 McO. Civ. Proc. Eep. 342, note). Each county clerk (IE. S. 961), and clerk of the superior court (Co. Civ. Proc. § 284), is required to appoint a deputy, and the clerk of the city court of the city of New Tork must appoint three deputy clerks. (Co. Civ. Proc. §328). The county clerk has power to appoint one or more special deputy clerks, to attend upon the terms or sittings of the courts of which he is clerk. (Co. Civ. Proc. § 89). No clerk, deputy clerk, or special deputy clerk shall, during his continuance in office, practice as attorney or counselor of the court of which he is clerk. (Co. Civ. Proc. § 61). The clerk of each court must keep his office open for the 16 PRACTICE. transaction of business, every day in the year, except Sundays and public holidays, from nine o'clock in the forenoon until four o'clock in the afternoon, in the county of New York, 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 forenoon to six o'clock in the afternoon, and be- tween the thirtieth day of September and the first day of April, from nine o'clock in the forenoon to five o'clock in the afternoon. (3 E. S. 2374, § 54). 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 busi- ness, and at no other time. (General Eule, 8). Sec 1. 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, and can hold no other office during his term, and he is not eligible for re- election until three years after the termination of his office. (Con. Art. 10, § 1). He must appoint an under sheriff and such deputies as may be necessary; all these persons constitute in law but one officer. [Pond v. Leman, 45 Barb. 152, 154). The sheriff is liable for the acts of each deputy done under color of office [Molntyre v. Trumbull, 7 Johns. 85; Waterbury v. Westervelt, 9 N. T. 598); although the deputy may be a trespasser (Hazard 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 errone- ous (People V. Dunning, 1 Wend. 16); or although the pro- cess 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). 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 THE COURTS OF THK STATE OE NEW YORK. 17 process. (Sheldon y. Payne, 7 K 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 ao-ent of the party, and the sheriff is not liable for his acts done under those iastructions {M Icicles v. Hart, 1 Denio, 548) ; but the sheriff does not cease to be liable as to acts for which no in- structions 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. T. 398). If the party issuing process request the appointment of a partictdar person as special deputy to execute it, the sheriff is not liable to the party for the acts of such person [Ford v. Leohe, 6 A. Sftftuerv. ilf c(xratu, 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. Lee, 106 U. S. 196). A parol claim of title is sufficient under section 1502. {Aheel v. Van Gelder, 36 N. Y. 513 ; Banyer v. Empire, 5 Hill, 48). In either of the cases speci- fied 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 ad- versely to the plaintiff, may be joined as defendant in an ac- tion therefor. (Co. Civ. Proc. § 1508). This section ha's changed the rule of the common law, that ejectment could only be maintained against the actual occupant, 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 pxirchasers in the foreclosure of their mortgage, were properly joined with their tenant in possession, as defendants in an action of ejectment, by one 128 PRACTICE. 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 plaintiff might recover against all in one action, if the object of misjoinder was not taken. {^Fosgate v. Herkimer Manfg. Co. 12 N. Y. 580). It was 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 defend- ants. [Pearce v. Ferris, 10 N. Y. 280). The landlord may waive the non-joinder of his tenant, and where, upon the ser- vice 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 possession of the premises. [Finnegan v. Carraher, 4:1 N. Y. 493). The lessor may be properly admitted to defend, where the action made was brought against the lessee, although the lease was informal. ( Conger v. Duryee, 90 N. Y. 596). One who is in wrongful possesssion under the other defendants, is a proper defendant. [^Rarik v. Levinus 5 Civ Proc. Eep. 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 common, 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 the property, according to the respective rights of the persons interested therein; and for a sale thereof , if it appears that a partition thereof cannot be made, without great prejudice to the owners. (Co. Civ. Proc. § 1532). 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 sur- rogate is satisfied, by affidavit or other competent evidence, that the interests of the infant wUl 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 THE PARTIES TO AN ACTION. 129 the interests of the infant will be promoted thereby, and that fact is expressly recited in the judgment. (Oo. 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 an action. (^Struppman r. Muller, .52 How. Pr. 211). A trustee of land to receive the rents and profits and apply them to the use and support 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 cestui que trust cannot maintain it. (^Har- ris v. LarJdn, 22 Hun, 428; Morse v. Morse, 85 N. Y. 53). An assignee in a bankruptcy of a tenant in common, may maintain partition {^Rutherford v. Heivey, 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 Weekly Dig. 375), that an action could be main- tained by a receiver in supplementary proceedings, 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 ques- tion. But in a later case of Payne v. Becker, it was conceded by counsel and by the court, that the receiver in supple- mentary proceedings 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 W. D. 118). A tenant in common may join his wife as a co-plaintiff. {Foster v. Foster, 38 Hun, 385). 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 possession of real property, may maintain an action for the partition thereof, whether he is in or out of possession, not- withstanding an apparent devise thereof to another by the descendant and possession under such a devise. But in such an action, the plaintiff must allege and establish that the ap- parent devise is void. (Co. Civ. Proc. § 1537). Every 9 130 PRACTICE. 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, remainder, or inheritance of an undivided share, after the determination of a particular estate therein ; every person who, by any con- tingency, contained in a devise, or grant, or otherwise, is or may become entitled to a beneficial interest in an undivided share thereof ; every person 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 admeasured, 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 plaintiff in the action. (Co. Civ. Proc. § 1538). Devisees who take a contingent fee, limited upon a prior devise in fee, are neces- sary defendants in the action, although the owners of the prior estate are living. {^Nellis v. Nellis, 99 N. Y. 505), Persons who are entitled to a remainder in fee in real prop- erty devised in trust with directions to convey to them, are necessary parties defendant. [Moore v. Appleby, 36 Hun, 368). An executor having the power of sale, which has become extinguished by the act of the beneficiaries, is not a necessary party defendant. (^Prentice v. Janssen, 79 N. Y. 478). The plaintiff may, at his election, make a tenant in dower, by the courtesy, for life, or for years, of the entire property, or a creditor, or other person, having a lien or in- terest, 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 may reserve and leave unaffected his or her right and interest, or any portion thereof. A person speci- fied in this section, who is not made a party, is not affected by the judgment in the action. (Co. Civ. Proc. § 1539). One having a claim by which he may become interested in real estate, is not proper party. [Savage y. Allen, 54N. Y. 458). A general lien upon land, or a title paramount to the tenants in common, is not cut off by the suit between the tenants in common, and such lienor or owner is not a necessary party. {Canfield v. Ford, 28 Barb. 336; Mead v. Jenldns, 29 Hun, THE PAETIES TO AN ACTION. 131 253). If creditors having paramount liens are made parties, the court may determine the amount and validity of the lien. [Barnard t. Onderdonk, 98 N. Y. 158; Townshendv. Tovm- shend, 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 Hen, and specify the share or interest 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 interest 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 prefer- ence to the lien. (Co. Civ. Proc. § 1540). Where a de- fendant 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 subjoined to the copy of the summons as published, or served therewith, must, in addition to the matters required in that article, state briefly the object of the action, and contain a brief description of the property. (Co. Civ. Proc. § 1541). This last section substantially annuls the law as laid doAvn in SandfordY. White, 56 N. Y. 359. Sec 3. Actions for Hower, 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 exercising acts of ownership thereupon, or claiming title thereto, or an interest therein, at the time of the commencement of the action. ( Co. Civ. Proc. § 1597). Where the action is brought against heirs to recover dower and for accoimt and payment of rents and profits, all the heirs are necessary parties. ( Van Name v. Van Name, 23 How. Pr. 247). Those who have no per- sonal interest in the land affected, are not necessary parties. [O^ Connor v. Garrigan, 17 W. D. 302). In either of the cases specified in section 1597, any . other person, claiming 132 PBACTICE. 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. (Co. Civ. Proc. § 1598). In an action to recover dower, in a distinct parcel or real property of which the plain- tiff's husband died seized, or in all the real property which he aliened by one conveyance, all the persons in possession of, or claiming title to, the property, or any part thereof, may be made defendants, although they possess or claim title to different portions thereof in severalty. (Co. Civ. Proc. § 1599.) Sec i. Actions to Foreclose Mortgage. A bona fide assignee of a mortgage given for a transfer of land may foreclose the mortgage, although the transfer has been adjudged void as against creditors. (^Smart v. Bement, 4 Abb. Ct. App. 253). The assignee of a foreign executor may sue to foreclose the mortgage. [Smith v. Tiffany, 16 Hun, 552). If there is no bond, the mortgage is the only security, and the only evidence of the debt, and the assignee of it can maintain the action to foreclose. ( Carpenter v. G' Dougherty, 67 Barb. 397 ) . But where a bond is given to ac- company the mortgage, the bond is the principal debt, and the one who is assignee of the mortgage but not of the debt cannot maintain an action for foreclosure of the mortgage. ( Cooper V. Newland, 17 Abb. Pr. 342; Merritty. Bartholick, 36 N. Y. 44). If the mortgage is assigned as collateral security, the assignor may sue, but the assignee must be a party, either plaintiff or defendant. [Simson v. Satterlee, 6 Hun, 305). A junior mortgagee may foreclose, although the foreclosure of the prior mortgage has proceeded to judgment. {^Bache v. Purcell, 6 Hun, 518). The heirs of a deceased mortgagee are not proper plaintiffs in an action to foreclose. [Shawv. Mc- Nish, 1 Barb. Ch. 326). Where the administrator of the wife of a mortgagee was entitled to the interest on the mort- gage, and the executor of the mortgagee refused to collect it, it was held that the administrator of the wife might bring ap 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 THE PABTIES TO AN ACTION. 133 {Emigrant Industrial Savings Bank v. Goldman, 75 N. Y. 127) ; but all parties who have liens on the equity of redemption subsequent to the mortgage, and junior mort- gagees and their personal representatives, are necessary parties within this rule. [Blorris v. Wheeler, 45 N. Y. 708; Benjamin v. E. J. & C. R. R. Co., 54 N. Y. 675 ; German Savings Bank v. Midler, 10 W. D. 67). If a junior mort- gage is recorded, the owner of it is a necessary party, although the mortgage is not indexed. [Mid. Life Ins. Co. v. Dake, 1 Abb. N. 0. 381, affirmed; 87 K Y. 257). A remainder man under the will of the mortgagor is a necessary party defendant. [Leggett v. Mui. Life Ins. Co., 64 Barb. 23). Where an assignee in bankruptcy of the mortgage acquired title, after the filing notice of pendency of action, he was held not to be necessary party defendant. ( Wagner v. Hodge, 34 Hun, 524). A municipal corporation which has takeii for public 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 party in an action to foreclose the mortgage [Bigelow v. Bush, 6 Paige,343) ; unless relief is sought against him. ( Walton v. James, 11 W. D. 508 ) . Nor are the heirs of the mortgagor necessary parties in such a case. [DalyY. Burchell, 13 Abb. Pr. N. S. 264). A mortgagor whose equity of redemption has been sold on execution, or whose time to redeem has not elapsed, is a neces- sary party to foreclose the mortgage. [Hallock v. Smith, 4 Johns. Chan. 649). The wife of mortgagor is a necessary party, if she has joined in the mortgage [Mills v VanVoorhies. 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. [Barkery. Burton, 67 Barb. 458). If the mortgage has been assigned as security, the assignor is a necesssary 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. [Bardr. Poole 12 N. Y. 495). An assignee of the mortgage for the benefit of creditors, may foreclose without making the mortgagee a party. [Christie v. Herrick, 1 Barb. Chan. 254). Where 134 PEACTICE. a mortgagee bequeathed the mortgage to his executor, with directions to invest the proceeds of it for certain persons, with remainders OTer, 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. (Lockmen y. Beilly, 9h 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 payment by him of the residue of the debt remaining unsat- isfied, after a sale of the mortgaged property, and the appli- cation of the proceeds, pursuant to the directions contained therein. (Co. Civ. Proc. § 1627) The guarantor of a mortgage debt, although only conditionally liable, may be made a party defendant ( VanderbiU v. Schreyer, 91 N. Y. 392) ; and so may the personal representatives of the mort- gagor, or of a guarantor of the mortgage [Glacius v. Fogel 88 N. Y. 434), but not the heirs or devisees. (^Leonard v. Morris, 9 Paige, 90). A prior mortgagee is a proper party, but is not a necessary party. [Smith v. Davis, 4 Civ. Pro. Eep. 158). But where one claiming a right under the mort- gagor prior to the mortgage is made a party defendant, the amount due to him, or the question of priority of his lien, may be settled in the action. [Brown v. Volkening, 64 N. Y. 76). If the bond is executed by the mortgagor and an- other, it is proper to make both obligors defendants, and to ask judgment for a deficiency against both. [Thome v. Newhy, 59 How. Pr. 120), Sec. 5. Actions to compel Detenninations to claim of Real Property. Where a person has been, or he and those whose estate he has, have been for three years, in the actual possession of real property, 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, except a person who is, when the action is commenced, an infant, an idiot, a lunatic, an habitual drunk- ard, or imprisoned on a criminal charge, or in execution upon conviction of a criminal offence, to compel the determination of any claim adverse to that of the plaintiff, which the de- THE PAKTIES TO AN ACTION. 135 fendant 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. 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 three years have been in actual pos- session or possession in fact. [Churchill v. Underdonk, 59 N. Y. 134). Constructive possession alone, although under a legal title, is not enough. [VanWagenen v. Bostford, 13 W. J) 381; Boylstony. Wheeler, 61 N. Y, 521). A remain- der man, to whom the life tenant has conveyed, may maintain this action. [Baron y. Martense, 4 Alb. Law Jour. 93). Sec. 6. Actions fop waste. An action for waste may be maintained by the owner of land, or by a remainder man, or reversioner, for damages to the inheritance. An heir or devisee may main- tain an action for waste, committed in the time of his ancestor or testator, as well as in his own time. The grantor of a reversion may maintain an action for waste, com- mitted before he aliened the same. (Co. Civ. Proc. § 1652). Such an action may also be maintained against a guardian 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. Proc. § 1656). An action for waste may also be maintained by one who has an equitable contingent interest in the lands. [Lee V. Whallon, 20 W. D. 366). • An action maybe main- tained against a tenant by the curtesy, in dower, for life, or for years, or the assignee of such a tenant, who, during his 136 PKACTICE. estate or term, commits waste upon tlie real property held by him, without a special 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 re- mainder man, the owner of the intervening life estate is not a necessary party. ( Van Deusen v. Young, 29 N. Y. 9). Sec. T. Action for a Nuisance. The people alone can maintain an action to abate a public nuisance. (PeopZe v. VanderbiU, 26 N. Y. 287; People v. Metropolitan Telephone Co., 31 Hun, 596). Boards of health of towns, cities, and villages, may maintain actions to abate nuisances within their respective localities. (2 E. S. 7th. Ed. 1083 §9; Gould y. City of Rochester, 39 Hun, 79). So may the board of health of the city of New York within that city. (Laws of 1882, chap. 410, §637). A municipal corporation, which has control or supervision of the streets, may maintain action to abate nuisances upon them. (2 Dil- lon on Mun. Corp. § 659; Trustees of Watertown v. Cowen, 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 otherwise. {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). AETICLE XIIL WHERE THE DEFENDANT OE HIS NAME IS UNKNOWN. Where the plaintiff is ignorant of the name or the part of the name of a defendant, he may designate that defendant, in the summons, and in any other process or proceeding in an action, by a fictitious name, or by as much of his name as is known, adding a description, identifying the person intended. Where 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 per- THE PARTIES TO AN ACTION. 137 son intended is thereupon regarded as a defendant in the action, and as sufficiently described therein, for all purposes, iacludiug service of the summons. When the name, or the remaiader 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 proceedings 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 person ; and that all subsequent proceedings be taken under the true name. (Co. Civ. Proc. § 451). This section applies to actions for partition. [Bergen v. Wyckoff, 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 flow. Pr. 499). There must be an allegation in the com- plaint that the fictitious name or description is so used be- cause 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. [Toion of Hancock v. First National Bank, 93 N. Y. 82). When the name of the defendant is unknown, a description is sufficient. [Pindar v. Black, 4 How. Pr. 95; Weil v. Martin, 24 Hun, 645). The true name may be substituted upon the hearing of a motion by the defendant to set aside the proceedings. [Miller v. Stettiner, 1 Bosw. 692). 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. E. 212). AETICLE XIV. INFANT PLAINTIFFS AND DEFENDANTS. Before a summons is issued, in the name of an infant plain- tiff, 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. (Co. Civ. Proc. § 469). An infant defendant must also appear by guardian. (Co. Civ. Proc. § 471). The guardian ad litem of an infant 138 PEACTICE. 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 ability to answer to the infant for any damages which may be sustained by his negligence or misconduct in the defence or prosecution of the suit. (Co. Giv. Proc. § 471. Bule 49). 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 aU his debts. ( Robert- son V. Bobertson, 3 Paige, 387). And in a recent case, it has been held that where a father petitioned to be 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 himself, who would assume the position; it was held that he was not a person of sufficient pecuniary ability to entitle him to be appointed. [Matter of Mang, 50 Super. 96). A person named by an adverse party will not be appointed guardian ad litem. (^Knicker- bocker y. DeFreest, 2 Paige,804). 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; Etde 50). No person, other than the clerk, shall be appointed, guardian ad litem, unless his written con- sent, duly acknowledged, is produced to the court or judge, making the appointment. (Co. Civ. Proc. § 472) . An applica- tion 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 tes- tamentary 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 personal service of the sum- THE PABTIES TO AN ACTION. 139 mens, or after the service by publication is complete ; or, if he is under that age, or neglects so to apply, the application may be made by another party to the action, or by a relative or friend of the infant. Where the application is made by a person, other than the infant, notice thereof must be given to his general or testamentary guardian, i£ he has one within the state, or, if he has none, to the infant himself, if he is of ihe 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 appli- cation may be made by the general guardian appointed for ■an infant in another state [Freund v. Washburn, 17 Hun, 543), or by the committee of a non-resident infant limatic. {Rogers v. M''Lean, 11 Abb. Pr. 440). The application for a guardian ad litem for an infant defendant, can not be made until the summons has been served. (Co. Civ. Proc. § 471; Ingersoll v. Mangam, 84 N. Y. 622), except in a case prescribed in section 473, where the infant defendant resides -within the state, but is temporarily absent therefrom. [Got- endorf v. Goldschmidt, 83 N. Y. 110). Sub. 2 of § 116 of the Code of Procedure contained a provision for the appointment of a guardian ad litem for a non-resident infant defendant, in actions for foreclosure or partition, but that provision has jnot 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 appointed by the court. Section 471 of the Code of Civil Procedure,which has been held to forbid the appointment of a guardian ad litem for an infant defendant, untU the ser- vice of summons upon him, now applies to all cases except those mentioned in section 473. Yet it has been held in jSchriver v. Schriver, (12 W. D. 328) that the appointment of the guardian ad litem for a non-resident infant defendant over fourteen years old, upon his petition with an appearance and answer by the 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 appoint- ment under sections 470 and 471, it must be eight days i£ served personally, or sixteen days if served by mail. In an 140 PBACTICE. 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 action is brought in the supreme court, to the county judge of the county where the action is tried. (Co. Civ. Proc. § 472). The applica- tion should state the age of the infant, whether or not he is a general or testamentary guardian, and who he is ; if not, with whom he resides : if made by, or in behalf of the plain- tiff, that he is about to bring an action, stating the court ia which he proposes to bring it, the name or names of the de- fendant 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 application 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 responsible person. (Mc- Donald y. The Brass Goods Manfg. Co., 2 Abb. N. C. 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 attor- ney or counsel for the adverse party. (Bide 49). It should be verified, and it should be accompanied by the consent of the party proposed to serve, unless the clerk is to be ap- pointed, and this consent should be in writing and duly acknowledged. If the consent is not so acknowledged, the appointment is irregular. ( Cole v. McGarvey, 6 Civ. Proc. Hep. 305). "Where an infant defendant resides within the state, and is temporarily absent therefrom, the court may, in its discretion, make an order designating a person to be his guardian ad litem, unless he, or some one in his behalf, pro- cures 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, respecting the service thereof, which may be upon the infant. The summons maybe served by delivering THE PARTIES TO AN ACTION. 141 a copy to the guardian so apppointed, with like effect as ■where summons is served without the state upon an adult defendant, pursuant to an order for that purpose, granted as prescribed in section four hundred and • thirty-eight of this act ; 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). 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. § 1536). It was held before 1884, that the bond under this section must be given to the county treasurer [McLaughlin V. Crawford, 18 W. T>. 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). Except in a case where it is otherwise specially pre- scribed by law, a guardian, appointed for an infant, shall not be permitted to receive money or property of the infant, other than costs, andexpenses 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 direction of the court. (Co. Civ. Proc. § 474). 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, direct- incr 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 coujrt has jurisdiction, a failure to appoint a guardian ad litem for an infant plaintiff, is an irregularity 142 PEACTICE. only, and it may be waived, ( Woldford v. Oakley, 1 SheL 261), and it is waived by pleading to the merits. [Parks V. Parks, 19 Abb. Pr. 161). The irregularity is also cured, i£ the plaintifp becomes of age before the trial. [Smart V. Having, 14 Hun, 276 , Sims v. N. Y. College Dentistry, 35 Hun, 344). If no guardian is appointed for an infant de- fendant, the judgment is voidable but not void. [MoMur- ray v. McMurray, 66 N. Y. 175). It may be set aside on motion or by action [id Boylen v. McAvoy, 29 How. Pr. 278 j Fairweather v. Satterly, 7 Eobt. 546). No act of the de- fendant before he becomes of age, will waive or cure the irre- gularity. [Fairweather v. Satterly, supra; McMurray 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. Peid, 3 Edw. Chan. 414), and do whatever is necessary to protect the rights of his wards. [Knickerbacker \. DeFreest , 2 Paige 304). If the interests of the infant are likely to suffer by the neg- lect of his guardian, or of his attorney, the court will remove him. [Litchfield v. Burwell, 5 How. Pr. 341; Lefevre v, Laraway, 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. Hey- drick, 49 Barb. 62). A person appointed guardian, as pre- scribed 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 misconduct. (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 except 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 who 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 PAKTIES TO AN ACTION. 143 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. (Eule 50). OHAPTEE V. THE SUMMONS AND ITS SERVICE. ARTICLE I.— The summons. ARTICLE II. — Personal service of the summons. ARTICLE Ill.^Service other than personal. ARTICLE IV. — General appearance. AETIOLE I. THE SUMMONS. SECTION. 1. "When jurisdiction is acquired. 3. Contents of the summons. 3. Service of complaint or notice mth the summons. Subd. 1. — Actions on contract. Subd. 3.— Actions for a penalty or forfeiture. Subd. 3. — Notice of no personal claim; Sec. 1. "Whan. Jurisdiction is Acquired. A civil action is commenced by the service of a summons. But from tlie time of the granting of a provisional remedy, the court acquires jurisdiction, and has control of all the subsequent proceedings. Nevertheless, jurisdiction thus ac- quired 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 provisional remedy. (Co. Civ. Proc. § 416). The issuing of the summons is not the commencement of an action, [Kerry. Mount, 28 N. Y. 659; Treadwellr. Lawlor, 15 How. Pr. 8). Provisional remedies, referred to in sec- tion 416, are those which may be granted before service of the summons, and the gi^anting of which requires some action of a judicial officer. [Adams y. Henry, 3 W. D. 22). They THE SUMMONS AND ITS SEBVIOE. 145 are the granting of an order of arrest; of an injunction, 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 equivalent to the granting of a provisional remedy, for the purpose of giving jurisdiction to the court, and enabling it to control the subsequent proceed- ings in the action ; and as equivalent to the commencement of the action, for the purpose of determining, whether the plain- tiff is entitled to maintain the action, or the defendant is liable thereto. (Co. Civ. Proc. § 1693). Filing the sum- mons, complaint, and notice of pendency, is not a provisional remedy in this section, {Haynes v. Onderdonk, 5 T. & C. 176; 2 Hun, 619) ; neither is an order for the examination of a party [Brandon Manfg. Co. v. Pettingill, 2 Abb. N. C. 162), nor the approval in an undertaking in an action of re- plevin. [Nosser v. Cor win, 36 How. Pr. 540). Under this section, the court has jurisdiction to revive an action against the personal representatives of a deceased defendant, after the issuing of a warrant of attachment, although the sum- mons has not been served. [More v. Thayer, 10 Barb. 258). An action can only be commenced against a party by the service of the summons, or by his voluntary appearance. [AkiiiY. Alb. Northern B. B. Co., 14 How. Pr. 337). Sec. 2. Contents of the Summons. The summons must contain the title of the action, specify- ing the court in which the action is brought, the names of the parties to the action, and, if it is brought 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 attor- ney, who must add to his signature his office address, speci- fying a place within the state where there is a post-office. If in a city, he must add the street, and street number, if any, or other suitable designation of the particular locality. (Co. Civ. Proc. § 417). A summons which does not specify the court is not void. [TallmanY. Hinman, 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 10 146 PEACTICE. advantage of the fact that the name of the court did not ap- pear in the summons. (^Yates v. Blodgeti, 8 How. Pr. 278). But the Code of Procedure did not require the name of the court to be in the summons. It' is now required, and it is mandatory,) (^Wallace v. Dimniick, 24 Hun, 635; Oshorn V. McClosUeu, 55 How. Pr. 345), and it is doubtful whetlier Yates V. Blodgett is now law. It is probable that the law is now as stated in Walker y. Hubbard, (4 How. Pr. 154), which holds that such, a defect is an irregularity, for which the summons would be set aside, but is amendable. 'X In an action outside of the city and county of New Yprk; the words "Sup. Ct." sufficiently state the name of the court in the summons. [Walker y. Hubbard, 4 How. Pr. 154). If the plaintifE is designated in the summons as executor, he can- not in the complaint subsequently served, sue in his own right, and the variance will be fatal. (^BlanchdrdY. Strait, 8 How. Pr. 88). If a party is sued by a fictitious name, under section 451, it must so appear in the summons. (J-oron V. Lee, 11 W. D. 527). Where, in an action for the foreclosure of a mortgage, even that part of the name of the wife of one of the defendants which was known to the plain- tiff was omitted, and only a description was inserted, it was held to be an irregularity, but amendable, and the defendants were not entitled to have the judgment vacated on account of it. {WeilY. Martin, 24 Hun, 645). Where the wife is sued, the word "Mrs." followed by the name of her husband, is a sufficient designation. ( Weil v. Martin, 1 Civ. Proc. Eep. 133). Designating the Christian names of the parties merely by initials, is an irregularity, and m^y be disregarded, if it does not appear that there is any question of identity of the parties. [Grant v. Birdsall, 48 Super. 427). If un- known owners are made defendants, and described in the summons, the addition of the words "if any," does not invali- date the process. (Abbott Y. Curran, 98 K Y. 665). An objection that no specific persons are named as parties in an action is waiveji by answering. [Amsinck v. Nortlirup, 12 W. D. 573). In an action in the supreme court, the words "city and county oi^New York," are a sufficient designation of the county where a trial is desired. ( Ward v. Sands, THE SUMMONS AND ITS SERVICE. 147 10 Abb. N. 0. 60). An omission to name the place of trial in tlie summons, is an irregularity merely, and may be amended. \ ( Wallace v. Dimmic\ 24 Hun, 635 ) . A printed subscription of the name of the plaintiff's attorney is suffi- cient {Barnard^. Heydrick, 49 Barb. 02; Mayor etc., v. JEisler, 2 Civ. Proc. Eep. 125). /The summons is invalid, if it is signed by one who is not an attorney. [Johnston v. Winter, 7 Alb. Law. Jour. 135 ; Wicr v. Slocum, 3 How. Pr. 397). The failiu-e to add the office and post office address of the attorney may be amended. ( Wiggins v. Bichmond, 58 How. Pr. 370). The summons, exclusive of the title of the action and the subscription, must be substantially in the fol- lowing form, the blanks being properly filled: "To the above named defendant: You are hereby summoned to answer the complaint in this action, and to serve a copy of your answer on the plaintiff's attorney within twenty days after the ser- vice of this summons, exclusive of the day of service ; and in case of your failure 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 sum- mons may be amended (Co. Civ. Proc. § 723; Weily. Mar- tin, 1 Civ. Proc. Er. 133) ; but only by the court. {^Mapes v. Broton, 14 Abb. N. C. 94). If, however, the summons is amended without an order of the court, the irregularity is waived by retaining the amended summons, or it may be amended nunc pro tunc on a motion to set aside. {^Mapes V. Brown, supra). Sec. 3. Service of Complaint or Notice irith the STunmons. Sub. 1 — Actions on Contract. A copy of the complaint may be served with the summons. If a copy of the complaint is not served with the summons, the plaintiff cannot take judgment by default, without appli- cation to the court,- unless either the defendant appears, or a notice is served with the summons, stating the sum of money for which judgment will be taken, and the case is one em- braced in the nest section. (Co. Civ. Proc. § 419). Judg- ment may be taken without application to the court, where 148 PRACTICE. the complaint sets forth one or more causes of action, each consisting of the breach of an express contract to pay, abso- lutely, or upon a contingency, a sum or sums of money, fixed by the terms of the contract, or capable of being ascertained therefrom, by computation only; or an express or implied con- tract 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 thereupon de- mands 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 the amount of the plaintiff's demand has been reduced by payment, counterclaim, or other credit. (Co. Civ. Proc. § 420). The enumeration 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 damages, and is a substitute for the phrase "an action arising on a contract for the recovery of money only", in sub-divi- sion first, section 129 of the Code of Procedure. The section refers only to cases where the action is brought upon a con- tract, express or implied, which is defined as being "a drawing together of minds until they 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 implication is but the result of the ordinary and uni- versal 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 ex- acted and made. An implied promise or contract is but an express promise, proved by circumstantial evidence. It is quite distinct from that fiction by which a statute liability has been deemed sufficient to sustain an action of assumpsit, upon the ground that a party subjecting himself to the pen- alty or other liability imposed by statute has promised to pay it. That feature does not suppose a contract, but simply a promise exparte". {McCoun v. N. Y. C. H. B. R. E. Co., 50 N. Y. 180). This enumeration includes actions on contract for goods sold {Diblee v. Mason, ICE. 37) ; an action against sureties on a replevin bond {Montegriffo v. THE SUMMONS AND ITS SEEVICE. 149 MusU, 1 Daly, 77) ; an action for board, brouglit on a quantum valehat [Mason v. Hand, 1 Lans. 66) ; an action on a quantum meruit [Champlin v. Deitz, 37 How. Pr. 214) ; and an action for liquidated damages expressed in a contract to convey lands. (Cemetery Bd. v. Teller. 8 How. Pr. 504). Sub. 2. — Actions fok a Penalty and Fobfeiture. 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 sum- mons so delivered, in the following form: "According to the provisions of", etc. ; adding such a description of the statute, as will identify it with convenient certainty, and also speci- fying the section, if penalties and forfeitures are given in dif- ferent sections thereof, for different acts or omissions. (Co. Civ. Proe. § 1897). This section applies to an action on a municipal ordinance [Mayor v. Eisler, 2 C. P. B. 125) ; but it does not apply to an action for a trespass where treble damages are recoverable. [Spragiie v. Irwin, 27 How. Pr. 51). A notice under this section is suiScient, 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. Gucnthcr, 16 Abb. N. 0. 230). The notice is not sufficient, if it is in the body of the summons. [Schoon- malcer 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 suffi- cient. [Prussia v. Guenther, supra). The following forms have been held to be sufficient: "accordiag to the provisions of title 9, part 1, chap. 20, of the statute of excise, and the regulation of taverns and groceries" (Perry v. Tynen, 22 Barb. 137) ; "issued according to the proceedings of title 9, chap. 20, part first of the re- vised statutes" [Andrcu-s v. Harrington, 19 Barb. 343) ; "this summons is issued to collect penalties for violations of sections 13 and 14 of the Code, to suppress intemper- 150 PBAOTICE. ance, 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 proyisions of the statute concerning the incorporation of Turnpike and Plank Eoad Companies, and the collection of penalties for demanding and recovering more than lawful toll in pass- ing through toll-gates on such roads". (^Mar sells v. Seaman 21 Barb. 319). The following endorsements have been held to be insafficient: "according to the act 'according to the internal police of the state' " [Avery^. 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 to run at large on a high- way, to his damage of two hundred 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 sum- mons is irregular [Bissell v. N. Y. C. H. R. R. R. Co., 67, Barb. 385) ; but the irregularity is waived by the defendant appearing and answering without objection, (id. Vernon y. Palmer, 48 Super. 231). Sub. 3. — Notice op no Personal Claim. Where a personal claim is not made against a defendant, a notice, subscribed by the plaintiff's attorney, setting forth the general object of the action, a brief description of the property affected by it, if it affects specific, real or personal property, and that a personal claim 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). THE SUMMONS AND ITS SEBVICE. 151 AETICLE II. PERSONAL SEEVICE OF THE SUMMONS. SECTION. 1. By whom made. 3. How made upon a natural person. Subd. 1. — Upon an infant or incompetent person. Subd. 3.— On the sherifE. Subd. 3. — 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. Sec. 1. By -whoin made. The summons may be served by any person, other than a party tO the action, except where it is otherwise specially prescribed by law. The plaintiff's attorney may, by an in- dorsement on the summons, fix a time within which the ser- Tice thereof must be made ; in that case, the service cannot be made afterwards. Where a summons 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. Civ. Proc. § 425). Although service is made by the plaintiff personally, it is good after judgment. {Myers v. Overton, 2 Abb. Pr. 344; Hunter v. Lester, 10 Abb. Pr. 260). Sec. 2. Ho-nr 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 prescribed in the fol- lowing sub-divisions. (Co. Civ. Proc. § 426). The copy of the summons must also be left with the defendant as well as delivered to him. (General Eule 18). Sub. 1. — Upon an Ineant or Incompetent Peeson. If the defendant is an infant, under the age of fourteen 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. 152 PEACTICE. If the defendant is a person judicially declared to be in- competent 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 defend- ant 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, 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 defendant's interest, make an order, requiring a copy of the summons to be also delivered, in behaK of the defendant, to a person designated in the order, and that ser- vice of the summons shall not be deemed complete, until it is so delivered. (Co. Civ. Proc. § 427). In a case specified in sub-division first or second, of section 426, of the Code of Civil Procedure, where the court has, in its opinion, reason- able 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 sub-division 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 defense 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 sub-division first, is not sufficient to give jurisdiction. {^Ingersoll v. Mangam, 84 1^. Y. 622; Bellamy v. Guhl, 62 How. Pr. 460). 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). the summons and its sebtioe. 153 Sub. 2. — On the Shebiff, I£ the action is against a sheriff, for a cause specified in section 158 of the Code, by delivering it to the defendant in person, or to his under-sheriff in person, or 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 the office. (Co. GIt. 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, although he has not filed with the county clerk a notice of the place where his office is held. [Dunford V. Weaver, 84 N. T. 445). Sub. 3. — On Other Peesons. 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 Valkenburgh, 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. [Niles v. Vanderzee, 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. Baker, 24 How. Pr. 39). If the summons, after delivery, is taken back to serve upon an- other person, the service upon the first defendant is not good [Earler. Chapman, 3 E. D. Smith,216). Service must be made within the state, and no jurisdiction is acquired by ser- vice in any other state, but the irregularity is waived by a gen- . eral appearance. [Dunn v. Dunn, 4 Paige, 425). If one is induced to come within the jurisdiction by fraud or false pretenses, the service of a process upon him will be set aside. (Meicalfy. Clarh, 41 Barb. 45; Baker y. Wales, 35 Super. 403). But this rule will not apply where the party volun- tarily comes within the state, and is not induced to do so by any fraud or trick of the other party. (A. P. Tel. Co. v. B. & A. B. E. Co., 46 Super. 377). Service upon a non- 154 PEACTIGE. I resident attending court in tMs state as a witness or party ^ will be set aside {Matthews v. Tufts, 87 N. Y. 568), although he comes voluntarily into the state without any subpoena {Seaver v. Robinson, 3 Duer, 622; Merrill v. George, 23 How. Pr. 331), or conies within the state to attend a term of the court of the United States held here. t (Orafton v. Weeks, 7 Daly, 523). The rule is extended to a non-resident creditor attending proceedings in bankruptcy. {Matthews 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 reasonable time afterwards as is necessary for him to return home {Matter of Healey, 53 Vt. 694; 38 Am. Eep. 713) ; but it has been held that a party has lost his privilege by going off Ms 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 {ShuUs v. Andrews, 54 How. Pr. 380) ; or by going some half mile out of liis way home on his way to a lawyers office to attend to other busi- ness {Herron 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). On the contrary, it has been held that the privilege was not lost by merely stopping to announce to the counsel of the opposite party that no steps would be taken in the action {Salhinger V. Adler, 2 Eobt. 704) ; by stopping over one train ( Weber V. Boyer, 1 W. N. C. 154) ; going to several places in the direction opposite to his residence, and within two hours after leaving coTirt {Selby v. Hills, 8 Bing. 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 wit- nesses in the afternoon, the case having gone off early in the day. {Lightfoot v. Cameron, 2 W. Bl. 1113). The privi- lege is waived by putting in a general appearance in the action {Chadwiok v. Chase, 5^ W. T>. 589); or by failing to THE SUMMONS AND ITS SERVICE. 155 claim the privilege at the time of arrest and delaying twenty- two days before moving to set it aside. [Farmer v. Bobbins, 47 How. Pr. 415 ; see upon this subject note to Matter of Healey, 38 Am. Eep. 717). A resident witness is not exempt from service of summons while in attendance upon the court. [Frisbie v. Young, 11 Hun, 474). Where 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 her notice after she had got out to sea, the service was set aside. {^Bulldey v. BuTkley, 6 Abb. Pr. 307). Service made by a private person illegally^ entering the house of defendant, will be set aside. (^Mason V. Libbey, 1 Abb. N. 0. 354). The summons cannot be served on Sunday (3 E. S. 7th. Ed. 1975; Penal Co. § 268), nor upon election days (IB. S. 378), nor upon any elector of a town on town meeting days. (1 E. S. 7th. Ed. 379). In an action to foreclose a mortgage, it is a suiScient service upon the wife of the mortgagor, if the summons is delivered to her husband for her [^Watson v. Church, 3 Hun, 80), unless relief is sought against her separate property. (Foote V. Lathrop, 53 Barb. 183; Nagle v. Taggart, 4 Abb. N. C. 144). Service of the summons upon one in prison is good, either before or after conviction. (Davis v. Buffie, 1 Abb. Ct. ofApp. 486; Slade x. Joseph, 5 Daly, 187). A resident of the state, of fuU age, may execute under his hand, and acknowledge, in the manner required by law to entitle a deed to be recorded, a written designation of another resident of the state, as a person upon whom to serve a summons, or any process or any paper for the commencement of a civil special proceeding, in any court or before any officer, during the absence from the United States 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 designation must specify the occupation or other proper addition, and the residence of the person making it, and also of the person designated, and it remains i^ force during the period specified therein, if any, or, if no period is speci- 156 PEACTICE. fied 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 revoca- tion 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 designation, the filing and recording of a revocation. While the designation remains in force, as prescribed in this section, a summons, or any process or other paper for the commencement of a civil special pro- ceeding, 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 was served per- sonally upon the person making the designation, notwith- standing the return of the latter to the United States. (Co. Civ. Proc. § 430). The remedy for a defective service of the summons, is a motion to set it aside. [Nones v. Hope, Mid. Life Ins. Co., 8 Barb. 541). Appearance and answer, or demurrer, waives the objection. ( O. & L. C. R. B. Co. V. F. & C. E. R. Co. 63 N. T. 176, 181). Sec. 3. Service ou a Domestic CorporatioiV 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 mayor, aldermen and com- monality of the city of New York, to the mayor, comptroller, 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 officers, to the officer performing corres- ponding functions, under another name. 8. In any other case, to the president or other head of the corporation, the secretary or clerk to the corporation, the cashier, the treasurer, or a director, or managing agent. (Co. Civ. Proc. § 431) . The managing agent referred to in sub-divi- sion third of this section, must be a person engaged in the gen- eral management of a corporation, as distinguished from one who is engaged in the management in a particular branch of itsbusiuess. [EmersonY. A. & 0. L. R. R. Co., 13 Hun, 150). THE SUMMONS AND ITS SEBVIGE. 157 It lias been held, however, that the agent oi an insurance ■company authorized to effect insurance, to receive premiums, and to issue policies, at a place other than where the princi- pal office of the company is located, is a managing agent. {Bain v. Globe Ins. Co., 9 How. Pr. 448). A baggage mas- ter is not a managing agent within this section [Flynn v. H. Eio. R. B. Co., 6 How. Pr. 308) ; nor a general ticket and passenger agent {Doty y. Michigan Cen. R. E. Co., 8 Abb. Pr. 427) ; nor one employed by a steam railroad com- pany, to superintend the running of horse-cars on an uncom- pleted part of its road. {Emerson^. A. & O. L. B. B. Co., 13 Hun, 150). Where a corporation 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 bur- den of proof is upon the corporation, to show that the person Avho was served, was not within the Code. {Donadi v. N. Y. S. Mid. Ins. Co., 2 E. D. Smith, 519). The trustees of areligious corporation acting as such, are the proper officers to serve. (BerrianY. 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). Service on an officer of a . corporation is good, although not made while he is acting offi- cially. {Pope V. Terre Haute Car & Man. Co., 87 N. Y. 137) . After judgment dissolving the corporation, and the appoint- ment of a receiver, process against the corporation cannot be served on one of its officers. {Hetzel v. Tannehill Sil. Min. Co., 4 Abb. N. 0. 40). The proper remedy for irregular ser- Tdce of summons under this section, is by a motion to set it aside. {EmersonY. Aub. etc. B. B. Co., 13 Hun, 150). In actions brought under section 1919 of the Code Civil Pro- cedure, service on the chairman of the society is good, if he is presiding officer. {Hatheway v. Amer. Min. Stock Ex., 31 Hun, 575). See. 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 : 158 PBACTICE. 1. To the president, treasurer, or secretary ; or, if the cor- poration lacks either of those of&cers, to the officer perform- ing corresponding functions, under another name. 2. To a person designated fpr the purpose by a writ- ing, under the seal of the corporation, and the signa- ture of its president, vice-president, or other acting head, accompanied with the written consent of the person designated, 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 revo- cation 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 execu- tion of any instrument, specified in this section, to be authen- ticated as he deems proper, and he may refuse to file it without such an authentication. An exemplified copy of a designation 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 diligence, and the corporation has property within the state, or the cause of action arose therein ; to the cashier, a direc- tor, 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 revocation of the first designation. {Turner v. Fire Ins. Co. of Pliil, 17 W. D. 212). Service upon the president of a foreign corporation is good, although, he is not within the state upon official business. {Pope v. TerraHaute Car Co., 87 N. T. 137). The court acquires juris- THE SUMMONS AND ITS SEBVICE. 159 > diction by service under sub-diyision first or second of section 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. Terra Haute Co. , sujjra; Gibbs v. Queen Ins. Co., 63 N. Y. 114, 131). Service on one who was president of a foreign corporation, after he has resigned, does not give jurisdiction. {Ervin v. Oregon Sleam Nav. Co., 22 Hun, 598). The property intended under sub-division third of section 432, is property liable to attach- ment {Bates V. New Orleans B. 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. E E. Co., 12 Hun, 126). Where one entered into the service of a foreign corporation, to procure emigrants to purchase and settle on defendant's lands in another state, but with the agreement 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. {Hiller v. B. & M. E. E. Co., 70 N. Y. 223). Under this subdivision, service on a gen- eral solicitor of a foreign corporation was held to be good {Clews V. Eockford etc. E. E. Co., 49 How. Pr. 117); and it was also held that service on the superintendent, and general managing agent of a railroad company was good. (Bank of Commerce v. E. & W. E. E. Co., 10 How. Pr. 1). It is not necessary that an officer who is served under this sub-division, should have the general charge of the whole business of the corporation, but if he be of sufficient character and rank in the corporation, to make it reasonably certain that the corporation will be appraised of the service, it will be held a sufficient service. {Palmer v. Penn E. E. Co., 35 Hun, 369; Hiller v. B. & M. E. E. Co., 70 K Y. 224). 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 ser- vice, will take title to property in this state. {Murray, v^j. VanderUlt, 39 Barb. 140). Appearance by the attorney^ of ■ a foreign corporation, is sufficient to give( jurisdiction 160 PUACTICE. DeBehier v. Drew, 57 Barb. 438), and such appearance in beliali; of the corporation waives any irregularity in the manner of making service. 0. & L. C. B. B. Co. v. Vt. & a B. B. Co., 63 N. Y., 176, 181). Sec. 5. Service of Process to Commence Special Proceedings. The provisions of this article, relating to the mode of service of a summons, apply likewise to the service of any process, 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 special 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 accom- panied with the affidavit of a person, other than the plaintiff, showing that the signature is genuine. A certificate, admis- sion, or affidavit of service of a summons, must state the time and place of service. A written admission of the service of a summons, 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 admission. (Co. Civ. Proc. §434). Sub. 1. — Shbbipf's Oebtificate op Service. The certificate or proof of service must show the title of the action in which the service was made. ' (^Intchfleld v. Biunwell 5 How. Pr. 841). If the service is made by the sheriff of another county^ or of another state, his certificate is not suffi- cient proof, but the service must be proved by affidavit. (^Morrell v. Kimball, 4 Abb. Pr. 352 ; Farmers'' Loan and Trust Co. V. Dickson, 9 Abb. Pr. 61). A clerical error in THE SUMMONS AND ITS SERVICE. 161 the sheriff's certificate of service, is not material where it sufficiently appears that the service was made upon the de- fendant. {Miller V. Brenham, 68 N. Y. 83). If the sheriff lias verbally daputized a person to make service of a sum- mons in a particular action, the sheriff's certificate of that service is conclusive in that action. {Col. Ins. Co. v. Force, 8 How. Pr. 353). "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 ser- vice. {Barber v. Qoodell, 56 How. Pr. 364). If the judg- ment 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. {Brien Y. Casey, 2 Abb. Pr. 416). Sub. 2. — Affidavits of Service. Where personal service of the summons, and of the com- plaint 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 de- fendant such copy, as well as delivered it to him. No such service shall be made by any person who is less than eigh- teen years of age. Sin actions for divorce, or to annul a ) marriage, or for separate maintenance, the affidavit, in addi- tion 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 know- ledge. The court may require the affiant to appear in court, or before the referee if a reference be ordered, and be ex- amined in respect thereto, and when service has been made by the sheriff, may require the officer who made the same to be summoned and examined in like manner. (General rule 18 ) . Where the affidavit stated that the summons was served "on or about" a certain day, it was held not a sufficient proof of 11 162 PEACTICE. servico. [Hickey v. Yvelin, 4 Law. Bui. 70). An affidavit oJ; service made by an attorney, founded on information from his clerk, and not stating either that the clerk knew the de- fendant, or the place and manner of service, is not sufficient proof. [Spaulding v. Lyon, 2 Abb. N. C. 203). A certi- ficate, or affidavit of service, is not conclusive ; the defendant may disprove it, on motion to set aside the proceedings. ( Wheeler y. N. Y. & Har E. B. Co., 24 Barb. 414; Wallis V. Lott, 15 How. Pr. 567). Sub. 3. — Admission of Service. The admission of service must be shown to be genuine. (^Litchfield y. Burwell, 5 How. Pr. 341). Its genuineness cannot be proved by the affidavit of the plaintiff. (Co. Civ. Proc. § 434). The want of proof of the genuineness 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 per- sonal [Bead v. French, 28 N. Y. 285), and also the place of service ( Trolan v. Fag an, 48 How. Pr. 240 ; Brown v. Marrigold, 50 How. Pr. 248 ) , or the clerk has no authority to enter judgment upon it [Bead v. French, supra) ; but the defect is not jurisdictional, and the judgment is only irregular, and not void. [Maples v. Maclcey, 15 Hun, 533). An admission 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 con- clusive. [Bogers v. Schmersahl, 2 T. & C. 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. [Beck V. Bichardson, 9 Hun, 567). Any defect in the proof of service may be cured by amendment, at the hearing of a motion to vacate the judgment. ( White v. Bogart, 73 N. T. 257, 259; Maples y. Mackey, 89 N. T. 146). 'A recital that the summons was personally served, contained in the judgment is sufficient to show jurisdiction of a court of gen- eral jurisdiction. [Maples v. Mackey, supra; F otter y. Merchants' Bank, 28 N. T. 651, 653). THE SUMMONS AND ITS SERVICE. 163 ARTICLE III. SERYICE OTHER THAN PERSONAL. SECTION. 1. Substituted service. 2. Service by publication. Subd. 1. — When it may be made. Subd. 2. — Wiat must be shovra to obtain the order. Subd. 3. — Order, by wliom 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. Sniistituted Service. Where a summons is issued in any court of record, an order for the service thereof, upon a defendant residing 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 the return of the sheriff of the county where the defendant resides, that proper and diligent effort has been made to serve the summons upon the de- fendant, and that the place of his sojourn cannot be ascer- tained, or, if he is within the state, that he avoids service, bo that personal service cannot be made. (Co. Civ. 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. Campfield, 9 How. Pr. 519; Foot v. Harris, 2 Abb. Pr. 454). In a case where the defendant was coniined 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 section. ( 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. (Simpsons. BurcTi, 4 Hun, 315). So where the officer called frequently at the residence of the defendant, and asked to see her, but was denied, 164 PEACTICE. although the defendant had been on the street the day before, it was held sufficient to permit substituted service to be made under this section. {McCarthy v. McCarthy, 55 How. Pr. 418; 16 Hun, 546). An affidavit was held sufficient to pro- cure substituted service, where it appeared that the officer had used proper and diligent means, and had called repeat- edly 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 be at home, and he could not be found within or without the state. [Nagle V. Taggart, 4 Abb. N. C. 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 [CoUinsY. Ryan, 32 Barb. 647), or to vacate an attachment based upon it. {Baker v. Stephens, 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 fraudulent conveyance by the debtor, if the judgment is attacked for want of jur- isdiction in that action, it is only requisite for the plaintiff to show that the defendant resides in this state. It is suffi- cient if the other facts specified in section 435, appear to the satisfaction of the judge granting the order for substi- tuted service. {Hasivell x. Lincks, 87 N. Y. 637). The order may be attacked by a motion to vacate it, or by appeal. { Baker Y. Stephens, 10 Abb. Pr. N. S. 30). 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 receive 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 post- paid wrapper, addressed to him, at his place of residence, in the post-office at the place where he resides. (Co. Civ. Proc. § 436) . The order and the papers upon which it was granted, must be filed, and the service must be made, within ten days THE SUMMONS AND ITS SERVICE. 165 after the orden is granted ; otherwise the order becomes in- operative. On filing an affidavit, showing service according 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 substi- tuted service was actually made, within which to answer. (Or J- V. McEu-en, 16 Hun, 625). Sec. 2. Service by Publication. Sub. 1. — When it may be Made. An order, directing the service of a summons upon a de- fendant, 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 corpo- ration, 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 ascer- tain 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 tha defendant, being an adult, and a resident of the state, has been continuously without the United States more than six months next before the granting of the order, and has not made a designation of a 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 effort. (4.) Where the complaint demands judgment annulling 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 interest in, or lien upon, specific real or personal property within 166 PKACTICE. the state ; or that such an interest or lien in favor of hereit party be enforced, regulated, defended or limited; or other wise affecting thetitle to such property. (6.) Where the defendant is a resident of the state, or a domestic corporation ; and an attempt was made to commence the action against the defendant, as required in chapter fourth of this act, before the expiration of the limitation applicable thereto, 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 sub-division first or sub-division second of section four hundred and twenty-six, or by section four hundred and twonty-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 four hundred and forty to four hundred and forty-four, both inclusive, apply to the pro- ceedings 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. 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 him- self concealed, the case is not within sub-division second, sec- tion 438. ( Van Rensselaer Y. Dunbar, 4 How. Pr. 151). Sub- division second, of section 438, furnishes the only case where servic^. by publication can be made-' upon a resident of the state, who is within the state {Irving Sav. Inst. v. Hardman, THE SUMMONS AND ITS SERVICE. 167 17 Abb. Pr. 67, note), except in the case provided for in sub- division fourth. To authorize service by publication under sub- division second, it must appear that the departure or conceal- ment of the defendant is with intent to defraud creditors, or to avoid service of a summons; to establish that it is with in- tent 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 be lieve, 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. Prpc. § 3160). Sub. 2. — ^What Must be Shown to Obtain the Oedee. 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 application is made upon the ground that the de- fendant is a foreign corporation, or not a resident of the state, or in a case specified in sub-division 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). In the case oiLadd v. Terre Hauie C. & M. Co. (18 W. D. 209) , it was held that a verified complaint spoken of in this section, must be actually presented to the judge at the time of the application for the order; but the case oiMcCully v. Heller, (66 How. Pr. 468), held that if the verified complaint actually existed and was on file, and these facts appeared by the affidavits presented, it was not necessary that the complaint itself should be pre- sented to the judge. That case, however, was the decision of the special term, whereas the case of Ladd v. Terre Haute C. & M. Co., was decided by the general term. It is believed that the case last mentioned contains a true state- ment of the law. It is absolutely necessary that there should 168 PBACTICE. 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. ( Williamson v. Williamson, 3 Civ. Proc. E.ep. 69 ; Fhelps V. Phelps, 6 C. P. K 117). The proof required by section 439 must be made by affidavit ( Waffle v. Goble, 53 Barb. 517; Easierhrook 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 W. D. 131; Houe Mach. Co. v. Pettibone, 12 Hun, 657; 74 N. Y. 68; Greenbaum v. Dwyer, 4 C. P. E. 276 ; Easterbrook v. Eas- terbrook, 64 Barb. 421 ; Van Wyck v. Hardy, 39 How. Pr. 392). 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 affidavit on information and belief, that defendant was a non-resident, and was not within the state. [Howe Mach. Co'. V. Pettibone, 74 N. Y. 68; Schroeder Y.Lear, 17 W. D. 574). The facts which tend to show that the plaintiff has been or wiU be unable, with due diligence, to make personal service, must be stated. It is not enough to use the words of the statute. [Carlton v. Carlton, 85 N. T. 315; Belmont v. Cornen, 82 N. Y. 256). "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. [Lockwood V. Brantly, 31 Hun, 155 ; Chase v. Latoson, 36 Hun, 221 ; Kennedy v. N. Y. Life Ins. & Trust Co., 101 N. Y. 487). "Where it appears that the defendant is a non-resident, and a summons has been issued, and efforts made to find him THE SUMMONS AND ITS SERVICE. 169 "within the state, aud that he was not there, that is sufficient to empower the judge to pass upon the question of due dili- gence. {Belmont v. Cornen, 82 K Y. 256). But an order granted without any proof that due diligence has been made to find the defendant within the state, is a nullity, [Camp- hell V. Taylor, 9 W. D. 1-t; Argall v. Bachrach, 18 W. D. 267 ) ; and so is an order which is based only on proof that the defendant is a non-resident. {Hyatt v. .Swivel, 52 Super. 1). When the affidavit contains evidence calling for the exercise of the judgment of the officer, he must pass upon the sufficiency of the proof, aud his decision cannot be im- peached collaterally {^elmont v. Cornen supra) ; nor should an order, made upon such proof, be set aside, if there is noth^ ing in the motion papers to disprove the facts set out in the affidavit on which the order was granted. {Ha.ndley 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 v. St. Louis B & I. Co., 1 Civ. Proc. Kep. 220). When an order for publication is sought in an action for divorce under sub-division fourth of section 438, it must appear that the plaintiff is an actual inhabitant o£ the state. {Yenney v. Yenney, 1 Civ. Pro. Rep. 146, note). Sub. 3. — Oedee, 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 publication thereof in two 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 successive 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, if he is of full age, or an infant of the age of fourteen years or upwards ; or, if the defendant is a corporation, upon an officer thereof, specified in section four hundred and thirty-one or four hundred and thirty-two of the Code. It must also con- 170 PEAOTICE. tain, either a direction that, on or before the day of the first publication, the plaintiff deposit in a specified post-office, one or more sets of copies of the summons, complaint, and order, each contained in a securely closed post-paid wrapper, directed to the defendant, at a place specified in the order ; or a statement that the judge, being satisfied, 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 it is made by the court, it is a nullity [Schumaker v. Crossman, 12 W. D. 99; Phinney v. Broschell, 19 Hun, 116 affirmed; 80 K Y. 544) ; but if 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). 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. Heydrich, 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 "W. D. 574; Oreen v. Squires, 20 Hun, 15). Nor where the order refers to the affidavits, and dispenses with the deposit of the papers in the post-office, 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 Bitten v. Griffith, (16 Hun, 454), that an order for publication was void, unless it was in the alternative, and required either publication in two news- papers, or personal service without the state. This case was followed at a special term of the supreme court for the fijrst district, and in the special term of the superior court in the city of New York. (1 Civ. Proc. Eep. 144, 145; 5 Law Bull. 31). In the later cases of Weil v. Martin (24 Hun, 645), and O'Neil ^.Bender (30 Hun, 204), the case oi Bit- ten V. Griffith was disapproved, and it was held that the order was valid, if it directed service to be made by publication THE SUMMONS AND ITS SERVICE. 171 only and by depositing the necessary copies in the post- office, and it was further stated in the case of Weil v. Martin, that the order for personal service without the state, need only be made, when the party desired to avail himself of that mode of service ; and in each of the last cases, it was said to be doubtful, whether a separate order was necessary or proper for that purpose, although the judge delivering the opinion in O'Neil v. Bender seemed to indicate that it was. The order will be void, unless it directs the mailing of copies of the summons and complaint ( Towsley v. Mc- Donald, 32 Barb. 604; Ritleny. Griffith, 16 Hun, 454), and a copy of the order of publication {IfcCool v. Boiler, 14 Hun, 73), unless it is dispensed with by the judge, pursuant to the last clause of section 440. {Wcdker v. Eeiff, 13 AY. D. 331). The order must specify the postoffice to which the papers are to be addressed. (Supra). The validity of the order of publication is to be decided by the papers on which it was granted, and if they are insufficient, 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. [Hoive Much. Co. v. Pettibone, 12 Hun, 657 ; affirmed 74 N. Y. 68 ) . A motion to vacate the order for irregidarity must specify the irregularity relied upon. {O'Neil V. Bender, 30 Hun, 204, 207). Sub. 4. — Filing Papees. — 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, substantially in the following form, the blanks being properly filled up, must be subjoined to, and published with the summons: — "To : — The fore- going summons is served upon you, by publication, pursuant to an order of " (naming the judge and his official 172 PRACTICE. title), "dated the day of , 18 , and filed •with, the complaint, in the office of the clerk of , at ." (Co. Civ. Proc. §442). "Vyhere service is made with- out the state, the papers specified in the last section must be previously filed ; and a notice must be served with the sum- mons, in all respects like the noticfe 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 sum- mons is served by publication upon unknown owners, or upon defendants 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 section 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 fol- lowing 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 complaint 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 pub- lished omits to state the place of filing, the judgment will be void, and the defect is not one which can be amended [Ken- dall V. Washburn, 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 proceedings. {SillecJcY. Heydrick, 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 ser- vice without the state. [LaFarge 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 sec- tion 443, and not the one specified in section 442, that defect THE SUMMONS AND ITS SEETIOE. 173 is not an irregularity which. wUl prevent the court from ac- q^uiring jurisdiction. {Loring v. Binney,- B8 Hun, 152). Neither is it such a defect, if the notice is directed to all the defendants, 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 irregularity. (ilfc- Cully V. Heller, 66 How. Pr. 468). Sub. 5.- — Publication and Seetice. The first pubKcation 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 de- fendant must appear or answer, service by publication is com- plete 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 publication. (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 successive 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 y. Pacific National Bank, 89 N. T. 397). Personal service out of the state, is a mere substitute for service by publication, and has no greater effect {Fiskey. 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 publica- tion is completed, to appear and answer, and a judgment by default cannot be entered until that time has elapsed, (id. Brooklyn Trust Co. v. Bulmer, 49 K T. 84). If personal service is made outside of the state, pursuant to section 443, ihe summons need not be published. (Jenkins v. Fahey, 78 K Y. 355). Weily. Martin (24 Hun, 645), which holds that the order must in all cases contain a direction for publication, is not in conflict with the case of Jenkins v. Fahey, last cited. Section 440 requires that the papers should be mailed, 174 PBACTICE. ■whether the order is published, or whether it is personally served without the state, uuless the mailing is dispensed with by the judge, and the court does not acquire jvu-isdiction un- less the papers have been mailed, as directed in the order ; and if the papers so mailed are addressed to the defendant at a different place than that directed by the order, there is no service, and the court acauires no jurisdiction. [Smith V. Wells. 69 N. Y. 600). Sub. 6. — Pboof 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 post- office, 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 de- posited the papers duly directed to the defendant at Bell- ville, N. J., and paid the postage thereon, there being regular communication between the city of New York and Bellville, was held sufficient to show the deposit in the post-office at New York city. {Steinle v. Bell, 12 Abb. Pr. N. S. 171). Where the order directed the papers to be mailed to the de- fendant 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 Bhade v. Von Ehade, 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 ser- vice 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. {Gaffney v. Bigelow, 2 Abb. N. 0. 311). Sub. 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 application and suffi- cient cause shown, at any time before final judgment, must THE SUMMONS AND ITS SERVICE. 175 be allowed to defend the action, and, except in an action for divorce, or wherein the contrary is expressly prescribed by law, the defendant, 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 of written notice thereof; or, if such a notice has not been served, within seven years after the filing of the judgment roll. If the defence is successful, and the judgment, or any part thereof, has been collected or other- wise enforced, such restitution may thereupon be compelled, as the court directs, but the title to property, sold to a pur- chaser 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 de- fault in a divorce case, where the summons is served by publication. (^Brown y. Brown, 58 N. T. 609). To entitle the defendant to come in and defend under this section, he must show that there has been some irregularity in the pro- ceedings [Boche V. Ward, 7 How. Pr. 416) ; or if he fails to do this, he may be let in to defend on the merits, if he has been misled [Jacquerson v. Van Erhen, 2 Abb. Pr. 315; Hartwell v. White, 9 Paige, 368) ; but upon an application for that relief, he must swear to a defence on the merits, or he will be required to pay the costs already accrued, and give security for the subsequent costs of the action. {^Hart- well v. White, supra). If however he swears to a defence upon the merits, he will be let in without costs, (id). AETICLE IV. GENEKAL APPEARANCE. SECTION. 1. How and when made. 2. EfEect of a general appearance. 3. When defendant may appear. 4. When defendant must answer. Sec. !• Ho-nr and -nr^en 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 ap- pearance, or a copy of a demurrer or of an answer. A notice 176 PKACTICE. 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). The following acts have been held to be equivalent to a general appearance by the defendant: procuring an extension of time to answer, and stating the name of the attorney as defendant's attorney, in the affidavit and order {^Ayres v. Western Railroad Corp. 48 Barb. 132; Kneeland v. Martin, 2 Law Bull. 56); serv- ing a notice of motion, signed by one as attorney for defend- ant {McKenster v. Van Zandt, 1 Wend. 13 ; Phelps v. Phelps, 6 Civ. Proc. Bep. 117 ; Martine v. Loewenstein, 6 Hun, 225) ; unless the notice of motion is signed as attorney for the purposes of the motion only. {^Baxter v. Arnold, 9 How. Pr. 445). Appearance before a referee and being heard on behalf of the parties in court, in support of excep- tions which have been filed to his report, operates as a gen- eral appearance, and the attorney cannot limit it. {^Ballard V. Burrows 2 Bobt. 206). Appearing by counsel and apposing a motion for an injunction, and reading affidavits in opposition to the motion, and filing them with the names of the attorneys indorsed on them, is equivalent to a general appearance. [Cooley r. Lawrence, 5 Duer, 605). A general appearance after the time mentioned in section 421, entitles the party to notice of subsequent proceedings. [Martine v. Lowenstein, 68 N. T. 456). Sec. 2. Effect of a General Appearance. A voluntary general appearance of the defendant is equiva- lent 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. [Merkeey. City of Rochester, 13 Hun, 157). A voluntary appearance of a non-resident, confers jurisdiction over his person ( Olcott v. Maclean, 73 N. y. 223), and an appearance of a corporation by an attor- ney has the same effect [Attorney -General v. Guard. Mut. Life Ins. Co., 77 N. T. 272) ; but a voluntary appearance of a foreign corporation by attorney, does not necessarily give jur- THE SUMMONS AND ITS SERVICE. 177 isdiction of the subject matter of the action , although it gives jurisdiction of the person of the corporation, and where after such an appearance, 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 IS' y. & Nav. Co., 62 How. Pr. 490). 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. (Jn- gersoll v. Mangam, 84 N. Y. 622). A general appearance is not sufficient to entitle the defendant to notice of subse- quent proceedings in an action, unless it is made in the manner prescribed by section 421 {Couch v. Mulhane, 63 How. Pr. 79; Douglas v. Hdbersiro, 8 Abb. N. C. 230; Valentine v. Myers' Sanitary Depot, 36 Hun, 201) ; but an act which has been held equivalent to a general appearance, although made in a different way from that pre- scribed in section 421, and although not su£6.oient to entitle the party appearing to notice of subsequent proceedings, is still held to be sufficient to operate as a waiver of irregularity in the service of the process {Douglas v. Hahersiro, supra; Phelps V. Phelps, 6 Civ. Pro. Eep. 117) ; or in the process itself. {Dix v. Palmer, 5 How. Pr. 233; Sprague v. Irwin, 27 How. Pr. 51). An appearance and answer by a foreign corporation, waives any objection to an irregularity, or in- sufficient service of the summons. (0. & L. C. S. It. Co. V. V. & a B. B. Co., 63 N. T. 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 B. B. 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). An appearance in the action by an attorney, is good, although the attorney is not authorized to appear [Brown v. Nichols 12 178 PBACTICE. 42 N. T. 26), and the judgment entered after such an appear- ance, cannot be attacked in a collateral proceeding (id) ; but it may be attacked on a motion to set it aside. [Burton v. Sherman, 20 W. D. 419). 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 impeaching the judgment collaterally, or to set aside the appearance. (^Fer- guson y. Oraiuford, 70 N. Y. 253). "Where an. attorney appears for the defendant by mistake, supposing the sum- mons had been personally served on his client, he will be allowed to withdraw his appearance. [Hunt v. Brennan, 1 Hun, 213). Every voluntary appearance in an action does not operate to waive irregularities, and to give the court jur- isdiction 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 jurisdiction. Obtaining an extension of time, for the purpose of a proceeding in which the defend- ant refuses to appear generally in the action, was held not to be a general appearance, which was operative to waive any irregularity. [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 complaint) 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 defence 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 jurisdiction 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. ( Wheeloclc v. Lee 74 K Y. 495). "Where a suminons is served without the state, the service of an answer verified by the defendant, and subscribed by the per- son as "attorney for the defendant," cannot be regarded as a general appearance in the action, so as to confer jurisdiction of a defendant, where the answer sets up the fact that the THE SUMMONS AND ITS SERVICE. 179 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 adds to that plea other defences, upon the merits of the cause of action, set forth in the complaint. [Sam- hurger v. Baker, 35 Hun, 455). The failure of the plaintiff to serve the summons upon the defendant personally, or to commence its service by publication, within thirty days from the time at which the attachment against the defendant's property has been issued, is a jurisdictional omission, and the validity of a warrant will not be restored, or in any way affected, by the fact that the defendant, after the expiration of the thirty days, appeared and defended the action. ( Cos- siU V. Winchell, 39 Hun, 439). 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. [Bohman v. Blust, Daily Reg. October 5th, 1884; Higgins v. Freeman, 2 Diier, 650). In an action against partners on a joint liability, one partner although not served, may appear and answer. ( Wellington v. Claason, 9 Abb. Pr. 175; 18 How. Pr. 10). 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 Y. 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 iMmher Co. v. Bissell, 9 Paige, 225) ; but if the defendant 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. Beynolds, 7 How. Pr. 327). 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 ap- pear, and if upon appearing, he is informed of the facts and 180 PKACTICE. requested to witlidra-w, 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. Pn 252). Sec. 4. Vnien the Defendant Must Ausnrer. A defendant, upon wham 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 summons 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 sub- sequent proceedings, unless within the same time he de- mands 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. [MandeYille v. Winne, 5 How. Pr. 461 ; McGown V. Leavenworth, 2E. D. Smith, 24). An infant defendant is entitled to twenty days after the appointment of a guar- dian ad litem to demand a copy of the complaint,- and his time to answer does not begin to run until a guardian ad Zi/em is appointed. [Kastner y. Durant, 1 Law Bull. 11). A defendant who is arrested before answering, but more than twenty days after the service of summons and com- plaint upon him, has twenty days after he has been arrested to answer. (Co. Civ. Proc. § 566; Clady v. Wood, 66 How. Pr. 1). CHAPTEE VL 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.— ESect of the notice. ARTICLE VI. — Amendment and cancellation. AKTICLE I. WHEN TO BE FILED BY PLAINTIFF. Jn 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 descrip- tion 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 de- fendant, 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 with- out the state, pursuant to on order obtained therefor, as pre- scribed 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). 182 PBACTICE. A notice of pendency of action is not operative until the com- plaint has been filed. [Weeks v. Tomes, 16 Hun, 349; affirmed 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, 1 Abb. Pr. 472). If the notice has been filed before the complaint, a subsequent filing of the complaint makes the notice opera- tive from the time of such a filing. [Benson v. Say re, 7 Abb. Pr. 472; note). The phrase " real property," as used in this section, 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 involv- ing the title to, or the possession, use, or enjoyment of, any of these estates. {WilmontY. 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 railroad bonds, fraudulently transferred to the plaintiff, and to make the recovery a lien oh 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. [Kimz v. Bachman, 61 How. Pr. 519; 12 W. D. 522). It was held that the notice of pendency was properly filed in an action to avoid and can- cel a lease of lands, and also in an action to enforce specific enforcement of a contract to sell lease-hold interests in lands. ( Wilmont v. Meserole, 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 \. Warren, 2'VV. D. 507; Brainerdy. White, 48 Super. 399). 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 NOTICE OF PENDENCY OF ACTION. 183 Procedure {Sheridan v. Andrews, 49 K Y. 478, 482) ; but the reason of hhat was, that under the Code of Procedure the judgment in ejectment bound not only the parties to the ac- tion, 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 ac- tion is filed as prescribed in section 1670. (Co. Civ. Proc. § § 1524, 1526). Por these reasons, it is believed that it is necessary to file the notice of pendency in Bvery 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). 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, as a notice of the pendency of an action. (Co. Civ. Proc. § 649 Sub. 1). AETICLE II. CONTENTS OF THE NOTICE. The notice must state the names of the parties, the object of the action, and must contain a brief description of the property in the county affected by the action. (Co. Civ. Proc. § 1670). In foreclosure cases, in addition to the par- ticulars 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. [Fitz- 184 PRACTICE. gerald v. Blake, 42 Barb. 513). It should be sufficiently certain to enable the land to be located. " All the real prop- erty of the defendant Brown, or in which she has an interest, in Chenango county," is void for indefiniteness, [Jaffrai/ V. Brown, 17 Hun, 575). AETICLE III. EECOBDING. 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, speci- fied in a direction, appended at the foot of the notice, and subscribed by the attorney for the plaintiff. (Co. Civ. Proc. § 1672). AETICLE IV. WHEN FILED BY THE DEFENDANT. Where a defendant sets up in his answer a counterclaim, upon which he demands an affirmative judgment affecting the title to, or the possession, use, or enjoyment of, real prop- erty, he may, at the time of filing his answer, or at any time afterwards before final judgment, file a like notice. The pro- visions 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 plaintiff, and the plaintiff is regarded as a defendant. (Co. Civ. Proc. § 1673). AETICLE V. EFFECT OF 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 sub- sequently executed, or subsequently recorded, is bound by all proceedings 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 NOTICE OF PENDENCY OF ACTION. 185 judgment is binding upon each party against whom it is ren- dered, and every person claiming from, througli, 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 whose title to the real estate involved accrues after the filing of the notice of pendency pursuant 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 con- structive notice to the parties. [Haynes v. Onderdonk, 2 Hun, 619). A subsequent judgment creditor of the defend- ant after filing of the notice, is bound by the judgment, although he is not a party to the action. [Fuller v. Scrib- ner, 76 N. Y. 190; Hull v. Spratt, 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. (^Kindherg v Freeman, 39 Hun, 466 ) . The notice only relates to and effects incumbrances, liens or alienations by the defendant or subordinate to his right, and it does not affect a title independent and adverse to his, nor one prior to that on which 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. Howard, 4 Hun, 359; 66 N. Y. 5). The notice has only the same effect upon the holder of an unrecorded prior in- cumbrance or conveyance, that making him a party would have. If the plaintiff has notice of the prior deed or in- cumbrance, the judgment does not affect the rights of the prior holder. [Lamont v. Cheshire, 65 N. Y. 30). In an action of ejectment, the filing of a notice o£ pendency of ac- tion 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 fore- closure, except when he is affected by it. ( White v. Coulter, 1 Hun, 857). 186 PEACTICE. AETICLE 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 mistake. ( Vander- heyden y. 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 must be filed to bar all claims under the new parties, or to enable the plaintiff to take judg- ment in an action of foreclosure. ( Clark v. Havens, Clarke Chan. 560; Curtis \. 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 the plaintiff filing the notice unreasonably neglects to pro- ceed in the action, the court may, in its discretion, upon the application of any person aggrieyed, 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 sections 1670- 1673, be cancelled of record by a particular clerk, or by all the clerks, with whom it is filed and recorded. The cancella- tion must be made by a note to that effect, on the margin of the record, referring to the order. Unless the order is enter- ed in the same clerk's office, a certified copy thereof must be filed therein, before the notice is cancelled. (Co. Civ. Proc. § 1674) . The notice of pendency cannot be cancelled while the action is pending, {Mills v. Bliss, 55 N. T. 139). It cannot be cancelled because the complaint does not state facts sufficient to constitute a cause of action, (id. ; Brainerd v. White, 48 Super. 399) Whether it could be cancelled if the action was one in which it was not proper to file a notice of NOTICE OF PENDENCY OF ACTION. 187 pendency, was left undecided in Mills v. Bliss, supra. The notice can only be cancelled by the court in which the action is pending. {Matter of Bar iium,T>ai\.j'Beg.'M.aj 29th. 1884). At any time after a warrant of attachment has been vacated or annulled, or the attachment has been discharged as to real property attached, the court may, in its discretion, upon the application 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 can- celled 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 entered 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 VIL MOTIONS AND OEDEES. ARTICLE I.— Motions. ARTICLE II.— Affidavits and petitions. ARTICLE [II.— Notice of motion. ARTICLE IV.— Orders to sliow cause. ARTICLE v.— Stay of proceedings. ARTICLE VL— Practice after tlie 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 con- tained in a judgment, is an order. An application for an order is a motion. (Co. CIt. Proc. § 767). 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 principal remedy. It is to furnish relief in the progress of the action or proceeding in which it is made, and gen- erally relates to matters of procedure, although it may be used to secure some right in consequence of the determina- tion of the principal remedy. [Matter of Jetter, 78 N. Y. 601, 605). "With reference to the requirement of notice, motions are diyided into ex parte and contested. There are two kinds of contested motions, enumerated and non-enumer- MOTICfNS AND ORDERS. 189 ated motions. Enumerated motions are motions arising on special verdict; issues of law; cases; exceptions; 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 Eule 38). Only non-enumerated motions will be considered in this chapter. In addition to motions which are made in the first instance at special term, non-enumerated motions in- clude all appeals to the general term from orders. {Phipps V. Carman, 26 Hun, 518)."" Sec. 2. Wlien and where made. 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. [Sivezey v. Bartlett, 8 Abb. Pr. N. S. 444; Doty v. Russell, 5 Wend, 129). A motion to set aside a final judgment, for irregu- larity, 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 may be re-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. Proc. § 1282). Motions to change the place of trial must be heard at the earliest practicable day after issue is joined. (General Eule 47 ; Darragh v. MoKim, 2 Hun, 337). In actions where the trial of issues of fact is not provided for by the Code of Civil Procedure, if either party shall de- sire 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 3 1 ) . A motion to make a pleading more definite 190 PBACTICE. and certain, or to strike out of it matter alleged to be irrelevant, redundant, or scandalous, must be noticed before answering or demurring to the pleading, and within twenty days from its serrice. 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 n9tice, cannot be made in that district 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 per- son to be affected 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 prac- tice is preserved under rule 85. {^Phillips v. Wheeler, % Han, 603). The motions referred to in this section are those which are made in the action while it is pending, or such as relate in some way to its pendency or procedure. (^Phillips V. Wheeler, 67 K T. 104; Curiis 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. Seldon, 13 How. Pr. 163). Where no county i& named in the summons or complaint, the motion may be made in any district in which the action is properly triable. [Hotchkiss V. Crocker, 15 How. Pr. 336). It need not be stated in the papers that the motion is made in the proper comity ; if the county in which the motion is made, is not the proper county, the objection may be taken in opposition. [Newcomb v. Heed, 14 How. Pr. 100). 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. [Bicey. Ehle, 65 Barb. 185). The section applies only to motions upon notice. {^Erisman v. Pidcock, 62 How. Pr. 327). All non-enumerated motions must be heard at a special term, unless when otherwise provided by law. Contested motions shall not be noticed or brought to a hearing at any special term held at the same time and place- MOTIONS AUD OEDEBS. 191 with a circuit, except as otherwise provided by the justices o£ the district, and except in actions on the calendar for trial at such circuit, and in which the hearing of the motion is necessary to the disposal of the cause ; and except, also, that in counties in which no special term distinct from a circuit is appointed to be held, motions in actions triable in any such county may be noticed and brought on at the time of hold- ing the circuit and special term in the county in which such actions are triable. (General Eule 38). 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. {Matter of Wadley, 29 Hun, 12). In the seventh judicial district, contested motions in actions triable in any county, except Monroe, may be noticfed 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 circuit, except in actions upon the calendar for trial at such circuit, and in which the hearing of the motion is necessary to the disposal of the cause. Motions for certain purposes may be made before, and the orders therein granted by, judge out of court. Those motions will be mentioned later in this chapter. 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 be- fore a judge out of 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 be made in such ad- joining county. 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 the motion, is or will be absent, or 192 PEACTICE. 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 an- other judge, before whom it might have been originally made. (Co. Civ. Proc. § 771). Sec. 3. Motion Papers, How Prepared. The papers upon which any motion is based, if they ex- ceed 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 indorsed, the clerk shall not file the same, nor will the court hear any motion or application founded upon them. Service of letter press copies is not deemed a compliance with this rule, and no such copies shall be filed or delivered to the court. A party upon whom papers have been served shall be deemed to have waived any objection for non-compliance with this rule, unless within twenty-four houi's after the receipt of them, he returns them to the party serving the same, with the statement of the par- ticular objection to their receipt ; but the waiver does not apply to papers to be filed, or delivered to the court. (General Rule 19). 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; Johnsony. 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 W. D. 165). Copies of the affidavits and papers on which the motion is based, must be served on the adverse party with the notice of motion (General E.ule 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 re- ferred to in the notice of motion, and it must be stated that the motion will be made upon them. [Newbury v. Newbury, MOTIONS AND OKDEES. 193 6 How. Pr. 182; Van Benthiiysen y. 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). Papers which have not been served cannot be read, unless ihey have been in the possession of the adverse party before or at the time the notice of motion was served. {^Campbell T. Grove, 2 John. Cases, 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 supplemen- tary affidavits, and postpone the hearing. ( Bergen v. Boerum, 2 Caines, 256). If the moving party is surprised by the statements in the opposing affidavits, the court will some- times allow the motion to stand over, that he may serve new affidavits [Schermerhorn v. Van Voast, 5 How. Pr. 458, 459) ; but this wiU not usually be allowed, unless the opposing affidavits contain new matter in avoidance of, and not merely in answer to, the plaintiff's claim. {Powell y. Clark, 5 Abb. Pr. 70; Jacobs v. Miller, 10 Hun, 230). If the originals of the motion papers are sworn to and signed, and contain 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, «0 N. Y. 547, 551). ARTICLE n. AFETDAVITS AND PETITIONS. €ECTION. 1. Form and contents of affidavit. 2. Special requirements of certain affidavits. 3. Before whom affidavits may be talcen. 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. Sec. 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 13 194 PRACTICE. affidavit should not be entitled. {People v. Tioga C. P. 1 Wend. 291). The title to the action includes 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. Bur- hans, 61 N. Y. 52, 63). The omission to state it is a fatal defect. [Laing v. Morse, 6 How. Pr. 394 ; Cook v. Staais, 18 Barb. 407). If it appears up(5n thaface of the affidavit that it is taken outside of the''county/in which the officer was authorized to take it, the court wilTnot permit it to be read. {Davis v. Rich, 2 How. Pr. 86; Sandland\. Adams^ 2 How. Pr. 127; Snyder 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 judi- cial proceedings, indicates the proceeding in which it is made, has a proper venue, is subscribed by the deponent, 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 eflfectual as an affidavit. [People v. Sutherland, 81 N. T. 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 " ; aU before that is mere recital and is not deemed to be any part of the facts sworn to in the affidavit. (Staples y. Fairchild, 3 N. Y. ^1; Payne v. Young, 8 N. Y. 158). Facts only are to be stated in an affidavit and not inference, or arguments, or conclusions. Powells. 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. 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. MOTIONS AND OKDEBS. 195 It is also better that the affidavit should be drawn up in the first person ; this is required by rule o£ 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, 2 Sand. 648). In the early case ot Jackson V. Virgil, (3 John. 539), it was held that i£ 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 Millius 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 ease of Jackson v. Virgil, is overruled by the two cases cited above. The affidavit must be sworn to; it is in- dispensable that the oath should be taken, and that it should be taken before a proper officer. [Ladow v. Oroome, 1 Den. 429). If the date of the jurat is essential, it should appear, y (Chase v Edwards, 2 Wend. 283). The official title of the person before whom the affidavit is taken should always be given (Jackson v. Stiles, 3 Oaines,128) ; but if it is omitted, the affidavit may still be prima facie good, and the burden 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 appear in the jurat, and their omission ha's been held to be fatal. (Regina v. Bloxham, 6 Q. B. 528). It will not invalidate the affidavit, if there is added to the jurat the words "to the best of depo- nent's knowledge, information and belief, " as the general rule 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 K Y. 387), 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 iaade, to what court or judge, and what order or decision was made thereon, and what new fact^. 196 ' PKACTICE. if any; are claimed to be shown. And for the omission to comply with this rule, any order made upon such appli- cation may be revoked or set aside. (General Rule 25). The omission 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. [Bean v. Tonnelle, 24 Hun, 353). No order extending a defendant's time to answer or demur shall be granted, unless the party applying for sach 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 attorney or counsel retained to defend the action, that, from the state- ment of the case in the action made to him by the defendant, he verily believes that the defendant has a good and sub- stantial defense, upon the merits, to the cause of action set forth in the complaint, or to some part thereof. And the affidavit shall state whether any and what extension or exten- sions of time to answer or demur have been granted, by stip- ulation or order, and where any extension has been had, the ■date of issue shall be twenty days after the service of the complaint. (General Bule 24). The order extending the time to answer, made upon an affidavit which fails to contain the facts required by this rule, is irregular. ( Graham v. Pinckney, 7 Kobt. 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 necessary that he make an affidavit of merits. It is advisable that the defendant should swear to merits in every motion, but in motions to set aside proceedings for irregularity, an affidavit of merits is not required. [Depeyster v. Warne, 2 Oaines, 45 ; Howell v. Dennision, 3 Cain6S,97). _- The rules and custom have pre- scribed 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 r. Bidleman, 1 How. Pr. 62; Geiby. Icard, 11 John. 82). Whenever it shall be neces- sary to make an affidavit of merits, the deponent must swear MOTIONS AND OBDERS. 197 "that lie has fully and fairly stated the case to his counsel," giving the name and place of residence of such counsel. (General Eule 23). He must also swear " that he has a good and substantial .defence on the merits, as he is advised by his said counsel and verily believes." {Meech v. Calkins, 4 Hill, 534; State Bank v. Gill, 23 Hun, 406; Swartwout v. Hoage,. 16 John. 3; BrittanY. Peabody, 4Hil],61; Wharton y. Barry, 1 How. Pr. 62). If the affidavit is made by counsel, he need not swear to advice. {Cromwell y. Van Rensselaer, ^ Cow. 346). When the defendant sets out in his affidavit of merits the facts which constitute his defence, so that the court can see that he has a good defence 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 necessary to refer to any of the large number of cases, in which a particular form of words has been held insufficient 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 BrittanY. Peabody, (14 Hill,64, 65). Where an affidavit of merits has once been filed and served, no other is necessary. But on any subsequent motion where an affidaivit of merits is needed, such service and filing must be shown by affidavit. (General Eule 23). Sec 3. Before -whom Affidavits may be Tahen. Sub. 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 198 PRACTICE. be used in any court, or before any officer or other person. (Co. Civ. Proc. § 842). The word "judge" used in this section is defined to include a justice, surrogate, recorder, justice of the peace, or other judicial officei. (Co. Civ. Proc. § 3343 Sub. 3). The affidavit taken before a notary public is presumptively good, although he omits to add to his title the county in which he is appointed. It will be pre- sumed that the affidavit was taken in the county where he had jurisdiction to take it. ( Crosier v. Cornell Steam Boat Co. 27 Hun, 215). Sub. 2. — Without the State to be Used "Within it. An oath or affidavit required, or which may be received, in an action, special proceeding, or other matter, may be taken without the state, except where it is otherwise specially pre- scribed 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 certificates, as to his official character and the genuine- ness of his signature, as are required to entitle a deed acknowledged 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 [Boss v. Wigg, 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 the ease of Florance v. Butler, (9 Abb. Pr. N. S. 63). An affidavit taken in any other country under this section is sufficient, 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. [Boss V. Wigg, supra). The authentication to an affidavit thus taken is sufficient, if it coniplies substantially with the re- quirements of the statutes, although it is not a literal com- pliance with it. [Man. & Mer. Bank v. Cowden, 3 Hill, MOTIONS AND OEDEES. 199 461; Bossy. Wigg, supra). The omission of the certificate required, is not necessarily a fatal defect, but it may be amended. [Lawton Y.Keil, 51 Barb. 30). The objection that the affidavit is not properly authenticated, is waived, if not taken at the hearing. [Plympton v. Bigelow, 11 Abb. N. 0. 180, affirmed 13 Abb. N. C. 173). Sec. 4. Petitions. In cases where the moving party is the affiant, the facts are sometimes brought before the court by petition. In ac- tions which are pendiag, this course is not advisable, but it is better to use an affidavit. Where, however, the facts are presented to the court for the purpose 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 ad- dressed to the court or judge to whom the application is to be made. [Matter 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 the state 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 refer- ence may be made. Sec. 5. Deposition to le Used on Motion. Where a party intends to make or oppose a motion in a court of record, other than a court specified in sub-division 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 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 affidavit or deposition is necessary thereon, and that such person has refused to make an affidavit of the 200 PRACTICE. facts, whicli the applicant verily believes are within his knowl- edge. The order may be made upon or without notice. Th& person to be examined may be subpoenaed, and compelled to attend, as upon the trial. The deposition, when taken, must be delivered to the attorney for the party who procured the order, unless the order provides for a different deposition thereof. (Co. Civ. Proc. § 885). It will be noticed that this section does not authorize taking the deposition of a party. The power of the court to compel a deposition for the purposes of the motion is derived entirely from the statute. i^Bacon v. Magee, 7 Cow. 515). An application for an attachment is a motion within this section. {Allen v. Meyer, 73 N. Y. 1). 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 [McGue V. Tribune Association, 1 Hun. 469) ; unless it appears that the order is irregular, and that the irregularity has resulted in injury to the opposite party. [Ramsey v. Gould, 57 Barb. 398; Brooks v. Schultz, 3 Abb. N. S. 124). The affidavit must state the subject on which the deposition is desired, and it must show the facts which are claimed to be within the knowledge of the witness [Dauchy v. Miller 1& Abb. Pr. N. S. 100 ; Williams v. Western Union Tele. Co. 3 Civ. Proc. Eep. 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 necessary on the motion. The proper and usual course, before making the application 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 [Fish 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. ; Urie Railway 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). Where a person to be examined. MOTIONS AND OBDBES. 201 as prescribed 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 hafe 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 subpceena, unless, for special reasons stated in the affidavit, the order otherwise directs.^ (Oo. Civ. Proc. § 886). A witness who is irregularly ordered to be summoned, 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. [McCue v. Tribune Association, 1 Hun, 469). An examination 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 Ify. Co. 3^ Abb. N. S. 430). A fishing examination is not allowed, nor will an examination of books and papers be permitted under this section, (id), nor can the witness be examined on the general raerits of the action. (^Dauchy y. Miller, 16 Abb. Pr. N. S. 100). If the witness refuses to answer a proper ques- tion, he may be punished for contempt. ( Clark v. Brooks, 26 How. Pr. 254). Sec 6. Opposing AfiSdavits. If the facts stated in the moving papers are not admitted as stated, it will be necessary for the opposing party to pre- pare affidavits to oppose the motion, showing 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. ARTICLE III. NOTICE OF MOTION. The notice of motion must be for the first day of the term, and shall not be for a later day, unless sufficient cause be 202 PBACTIOE. filiowii for not giving notice on the first day, and the reasons must be given ia the affidavits. (General Bule 21). A notice for a day later than the first is good, if sufficiently excused. {Walrath \. Killer, 2 Code Eep. 129). The notice of motion must be entitled in the action. ( Clickman V. Clickman, 1 N. Y. 611). It must be accompanied with copies of the affidavits and papers on which the motion is to be made, or if they have previously been served, it should refer them (General Eule 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 certain should be stated. {Crane v. Crofoot, 1 How. Pr. 191), Instating the time the words " or as soon thereafter as counsel can be heard, " are not necessary to be inserted. [Anon. 1 John. 143). If the motion is for irregularity, the notice must specify the irrregularity complained of. (General Bule 87) It is not sufficient to state it in the affidavits. [Montr ait v. Hutchins, 49 How. Pr. 105). A non-compliance with this requirement is a good ground for the denial of the motion. {Lewis Y. Graham, 16 Abb. Pr. 126). All objections must be made in one motion. [Mills v. Thursby, 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 alter- native, 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. Nostrand, 46 N. T. 875 ; Bissell v. N. Y. a & H. B. B. B. Co. 67 Barb. 885). However, costs will not be given upon a default, under a prayer for general relief. [Northrop v. Van Deusen, 5 How. Pr. 184). The notice must be served eight days before the hearing, if served personally. (Co. Civ. Proc. § 880). If served by mail, it must be served sixteen days before the hearing. (Co. Civ. Proc. § 798). MOTIONS AND OBDEES. 203 ABTICLE IV. OBDEES TO SHOW CAUSE. n it is not practicable to giye eight days notice of the motion, the court will sometimes ia its discretion [Sixth Ave. B. B. Co. V. Gilbert Elevated B. B. Co. 71 N. Y. 430), for good cause shown, make an order to show cause why the relief which is sought should not be granted; and, in the order, will direct that service thereof, less than eight days, 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 appointed for holding the next trial term or circuit where the action is triable. The order shall also, except in the first judicial district, be returnable only before the judge who grants it, or at a special term appointed to be held in the district in which the action is triable. Orders to show cause shall not be granted except -where a notice of eight days cannot be given, and every such order must fix a day for showing cause, less than eight days after the same is made. Unless this provision is complied with, the order shall be a nullity and may be treated as such. (General Kule 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 B'y. Co. 9 Abb. Pr. N. S. 233). The requirements of the notice of motion as to the service of papers, and the reference to the papers to be used upon the motion, must be complied with in the order to show cause ; and where the motion is for irregularity, the irregularity must be specified in the order. (General Eule 37; Skinner v. Noyes, 7 Eobt. 228). The order can only be made by the court in which the action is triable, or a judge of that court. (Co. Civ. Proc. § 780; LarJcin v. Steele, 25 Hun, 254). The order is dis- cretionary. Ordinarily, where an order to show cause has been granted, the court before which it is returnable will not ex- 204 PBACTICE. amine into tlie grounds of it, or the propriety of granting it j but it may be vacated, or set aside, or reviewed by the ap- pellate court. {People v. Nichols, 79 N. Y. 583). It must be made returnable on the first day of the term, tmless 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 sufficient, 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. [MarceleY. Saltzman, 66 How. Pr. 205), AETICLE V. STA¥ OP PEOCBEDINGS. 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 proceedings in the- action can only be granted until some application for relief can be made. {Bank of Genesee v. Spencer, 15 How. Pr. 14; Waring v. Yale, 1 Hun. 492). It must be accom- panied with the notice of motion, or it will not be operative, and will be vacated. {Roosevelt v. 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 proceedinga 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 stav will amount to more than twenty days. {Sales v. Woodin, 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, stay- ing proceedings in the action for more than twenty days. MOTIONS AND ORDERS. 205 either by one order or by successive orders, his action would be beyond his jurisdiction, and be void and might be disre- garded, 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 until vacated, although it may be erroneous or irregular Roosevelt v. Fulton, 5 Cow. 438 ; Gould v. Boot, 4 Hill, 554) ; tut 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 o£ the motion; and if the order is obtained from the court, that will be sufficient. And so it will be sufficient, if the motion is noticed to be heard within twenty days from the time of the making of the order. IBut 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 proceedings should not be stayed until the hearing and deci- sion of the motion, and staying proceedings in the action "until the return of the order to show cause. No order, ■except in the first judicial district, served after the action shall have been noticed for trial, if served within ten days of the circuit or trial term, shall have the effect to stay proceed- ings in the action, unless made at the circuit where such action is to be tried, or by the judge who is appointed, or is "to hold such circuit or trial term, or unless such stay is con- iained in an order to show cause returnable on the first day of such circuit, in which case it shall not operate to prevent ihe subpoenaing of witnesses, or placing the case on the calendar. (General Eule 37). No order to stay proceed- ings for the purpose of moving to change the place of trial shall be granted, unless it shall appear from the papers that ■fche defendant has used due diligence in preparing the motion for the earliest practicable 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 Eule 47). 206 PBACTICE. AETIOLE VI. PKACTICE APTEB THE NOTICE. SECTION 1. Countermanding. 2. Hearing. 3. New proofs. 4. Default. 5. Re-hearing. Subd. 1. — Renewal of contested motions, Subd. 3. — Renewal of ex-parte applications. 6. Re-argument. Sec. li Coiuitermandiiig. If, after the notice has been given, the object for which it is given is attained so that the party giving it becomes enti- tled to the relief, the notice may be countermanded without costs [Lishery. Parnelee, 1 Wend. 22) ; otherwise, 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. Janies, 1 Duer. 668). Sec. 2. Hearing. Usually the order of hearing is that the moving party first reads his papers, and if the opposing party has affidavits upon his side of the case, he reads them immediately after- wards. Each party should become acquainted with the con- tents 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 pre- sented by his opponent, he must take them before the papera are read, or before the motion is entertained upon the merits, or he will be deemed to waive them [Boosevelt v. Dean, 3 Gaines, 105) ; but the preliminary objections may be reserved to be decided with the motion. [Lowber 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, Coleman's Cases, 129). But one counsel will be heard upon each side, upon the argument of motions, and not more than half an hour each, unless the court shall otherwise order. (General Rule 46). MOTIONS AND OEDEES. 207 Seo 3. New Proofs. If justice requires it, the court may allow tlie motion to stand over, for either party to present new affidavits (Shear- man V. Hart, 14 Abb. Pr. 358) ; but that will not be allowed, to corroborate the affidavits served by the moving party. It is only done, when the affidavits read upon the hearing con- tained 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. (Mer- rittY. Baker, 11 How. Pr. 456). "When it is deemed ad- visable to permit 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 discretionary with the court. The court may, of its own motion, or upon the application of either 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 reference upon a motion, how- ever, 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 affidavits presented. [Huelet v. Reyns, 1 Abb. Pr. N. S. 27; Sielle v. Palmer, 7 Abb. Pr. 181). 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 Hun, 620). The court cannot, upon the hearing of the motion, compel the adverse party to appear and be examined orally. (Myer V. Lent, 7 Abb. Pr. 225). Sec. 4. Default. When a motion is reached in its order, if there is no oppo- sition, 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 dii-ect. (Gen- 208 PKACTICE. eral Rule 37). Where the rules prescribe a special order in which motions shall be heard, defaults can only be taken at the close o£ 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. [Hoyt v. Campbell, Coleman's Cases, 129). If the proof of service is insufficient, the motion will not be granted. [Jackson y. Giles, 3 Caines, 88). Upon a default, only the relief specially asked for in the notice of motion can be granted. (General Kule 37; Jones v. CboA;, 11 Hun, 231). No other relief, except that specially asked for, can be granted under the prayer for general relief. [Northrup v. Van Deiisen, 5 How. Pr. 134). If the moving party does not appear, his adversary is entitled to an order denying the motion with costs. A default taken on a motion is usually ■opened, as a matter of course, on excuse shown. ( Thompson V. ErieE'y Co. (No. 8) 9 Abb. Pr. N. S. 233). The terms of opening the default are always discretionary with the court. Sec. 5. Re-hearing. Sub. 1. — ^Eenewal op 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. [Belmont v. Erie B''y. Co., 52 Barb. 639; WilletY. Fayerweather, 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. [Biggs T. Pnrsell, 74 N. Y. 370). The court wUl not usually grant leave to renew, 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 granted. , [Mitchell v. Allen, 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 MOTIONS AND OEDEES. 209 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. 650). The motion to renew should be made to the same judge, or to a court held by the same judge. [People T. National Trust Co., 81 Hun. 20, 25). It 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 V. Huber, 1 Eobt. 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 light; and no motion for leave to renew it, is necessary. ( Veeder v. Baker, 83 N. Y. 156 ; Steuben Co. Bank v. Alberger, 61 How. Pr. 228). 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 Rhj Co., 52 Barb. 639; Biggs v. Pursell, 74 N. Y. 370) ; but a motion to renew is a waiver of an appeal from the first order. (Harris v. Brown, 93 N. T. 390). And if it is made pending the appeal, the appeal will be dismissed. [Harrison v. Neher, 9 Hun, 127). Sub. 2. — Eenewal 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 application, in reference to the same matter, and in the same stage of the 3)roceedings, 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 otherwise unable to hear the appli- cation, by any judge of the court, upon proof by affidavit, of the facts. (Co. Civ. Proc. § 776). This section refers only to ex parte applications made to a judge out of court, but is no limitation on the powers of the court. [People v. Cooper, 57 How. Pr. 463). Where an application is made to the court for judgment, it cannot be withdrawn, without the ex- press permission of the court ; and a subsequent application 14 210 PEACTICE. for judgment shall not be made, at a term held by another judge, except where the first application is so withdrawn;, or where the directions, given thereupon, require an act to b& done before judgment can be rendered; or where the fact of the former application is stated, and the proceedings there- upon 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 sec- tions 776 and 777 with knowledge of the previous application, shall be punished by the court for a contempt. (Co. Civ. Proc. § 778). Sec. 6. Re-argument. Strictly speaking, when a re-hearing is asked upon th& same papers on which the first motion was made, it is said, to be a motion for re-argument. When the re-hearing 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 re-argument are not encouraged by the court, and are rarely, if ever, granted, when the party moving has a remedy by appeal from the order. [BoUes\. Duff, 56 Barb. 567). To obtain a re-argument, it- must clearly appear that some material fact or principle of law which would have required the motion to be decided th& other way, was overlooked, mistaken, or misapprehended by the court. [Bolles v. D.uff, supra ; Webb v. Groom, 6 Bobt. 532). ARTICLE VIL OEDBBS. SECTION. 1. What are orders. 2. How drawn. 3. Form and contents. 4. Filing and entering. 5. Wlien the order takes eflect. 6. Kotice 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 th& Code of Civil Procedure, in an action or special proceeding, must be in writing, unless otherwise specified in a particular MOTIONS AND OBDEKS. 211 case. Such a direction, unless it is contained in a judgment, is an order. (Co. Civ. Proc. § 767). 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 Sravji. The orders should be drawn by the party who obtaias them. It is the duty of the attorney to draw the order {Savage v. Belyea, 3 How. Pr. 276), and to see that the order complies with the decision ia 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 made upon a contested motion, the party drawing it should, before pre- senting it to the judge, submit it to the opposing party for examination. If there is any disagreement as to its terms, it shoidd be settled by the judge, either at once, or after- wards, upon notice to the opposing party. If the order is special or complicated in its terms, a draft of the proposed order should be submitted to the opposing party, with notice of the settlement. ( Whitney v. Belden, 4 Paige, 140). 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 mo- tion 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. Eep. 58). In drawing the order, it is necessary to comply 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 212 PEACTICE. the action. An irregularity in this respect does not vitiate the order. [Phinney v. Broschell, 19 Hun, 116; af&rmed 80 N. Y. 544). All papers used or read on the motion on either side, shall be recited in the order. (General Eule 3). This rule is not satisfied hj the recital that the order was made upon " all the papers and proceedings in the action." {Hobart v. Hobart, 85 N. Y. 637). As an appeal, if taiken from the order, can only be heard upon the papers used when the order was made (^ 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. Orders granted on petitions, or relating thereto, shall refer to such petitions by the names and descriptions of the peti- tioners, and the date of the petitions, if the same be dated, without reciting or setting forth the tenor or substance thereof unnecessarily. (General Eule 27). If any pre- liminary 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 follow the recitals, and should be clearly and concisely expressed, 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 ; 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 depend 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 motion is denied by the court for the want of power [Tilton v. JBeecher, 59 N. Y. 176) ; or where, for some other reason, 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 ordinary cases, to present it to the MOTIONS AND OBDEBS. 213 couft for allowance, before having it certified by tlie clerk; but if it is drawn or made out of court, it must, before being certified by the clerk, be presented 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 grant- ing the ord^r, 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 irre- gular. (General Eule 3). An order or judgment directing the payment of money, or affecting the title to property, if founded on petition, where no complaint is filed, may, at the request of any party interested, be enrolled and docketed, as other judgments. (General Eule 27). It is the duty of each attorney reading the afiidavits, upon making or oppos- ing a motion, to cause them to be delivered to the clerk to be filed ; and he will be compelled to do so, upon a mere sug- gestion, and he cannot object that the papers used will criminate a party. {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 B. & C. E. B. Co., 8 Hun, 34) . Where the order is for the benefit of both par- ties, either party may enter it (Stafford y. Ambs, 8 Abb. N. 0. 237) ; otherwise, the defeated party has no right to enter the order before the expiration of the twenty -four hours, and if he does so, the order entered by him will not be recognized. (Decker v. Kitchen, 8 W. D. 537). An order made on notice by a judge out of court, must be entered and the affidavits filed. (Savage v. Belyea, 3 How. Pr. 276). An ex parte order of a judge need not be entered; but it may be disregarded, unless a copy of the 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 214 PRACTICE. 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 court, in or to which an appeal therefrom maybe taken, must, upon the application of a party or other person, en- titled 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 affi- davit, that a copy of the latter order has been served, and that the omission has not been 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 ap- peal can be taken from any order, until it has been entered. {Star Fire Ins. Co. v. Godet, 34 Super. 359 ; Gallt v. Finch, 34 How. Pr. 193). Sec 5. IVhen 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. {McKee v. Flaherty, 1 Law Bull. 14; May v. Cooper, 24 Hun, 7). 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 indorsed upon the papers and handed to the clerk. {People v. Smith, 13 Hun, 414). Where proceedings in an action are stayed un- til the decision of the motion, the decision vacates the stay, although the order has not been entered {Parmenter v. Both, 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. Ackroyd, 3 Daly, 38). Where an MOTIONS AND OKDEBS. 215 injxiiiction is made with, an order to show cause why it should not be continued, the injunction ceases on the return day of the order, unless it is continued by the court at the hearing. {Midletown v. E. & O. E. E. Co. 12 Abb. Pr. N. S. 276). IE very order which a judge or the court has power to make, must be obeyed so long as it stands, although it is erroneous or irregular. [Oould v. Eoot, 4 HiU, 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 order is made by a judge, and it is desired to bring a party into con- tempt 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 [McCaulay v. Palmer, 9 Civ. Proc. Kep. 390) ; •except for this purpose, however, showing the original order is not necessary in making service. ( Gross v. Clark, 1 Civ. Proc. Eep. 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. Conover, 5 Abb. Pr. 244). Until the order is served, the successful party can take no advan- tage by it. [Jackson v. Wilson, 9 John. 265). Sec. 1. Conditions. Wbenever 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, 819) ; nor can he appeal from it, or move to vacate it. ( Weidchsell v. Spear, 47 Super. 223). 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. {Willinky. Eenwick, 22 Wend. 609). The party to whom a favor is granted on terms must comply with them at his perU. If the terms are payment of costs, he must seek out the other party and tender them, if the amount is 216 PEACTICE. fixed, or offer to pay them when they are taxed. {^Hoffman T. Tredwell, 5 Paige, 83; Pugsley v. Van Allen, 8 John. 352). If, as a condition, a party is required to enter into* any stipulation, he should give the stipulation, and if he can- not 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 y. Vernon, 4: Sand. 709). If the condition is not performed, the other party should show that fact by affidavit, and may obtain ex parte an absolute order, such as he would be entitled to, upon failure to perform the condition. {^Stewart r. 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. (Co. Civ. Proc. § 772; McMahon v. Brooklyn City E'y. Co. 20 W. D. 404). If the order is wholly without jurisdiction, 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. 829). One judge at special term, cannot vacate or modify an order made by any other judge at special term. (^Hallgarten v. Eckert, 1 Hun, 117; People v. National Trust Co., 31 Hun, 20). An order made by a judge out of court upon notice, may be vacated or modified by the court at special term on motion. ( West Side Bank \. Pugsley, 47 N. Y. 368). AETICLE Vm. COSTS OF MOTION. Costs of the motion are in the discretion of the judge or court. (Co. Civ. Proc. § 3236). When granted, they are ten dollars besides the reference fees and printing disburse- ments. Where costs of a motion, or any other sum of money, required by an order to be paid, are not paid within the time fixed for that purpose by the order, or if no time is fixed, within ten days after the service of a copy of the order,, all proceedings on the part of the party required to pay the same, except to review or vacate the order, are stayed with- MOTIONS AND OEDEES. 217 out furtlier direction of tlie court until the payment thereof. But the adverse party may, at his election, waive the stay of proceedings. (Co. Civ. Proc. § 779). The costs and dis- bursements on appeal from an order of the general term are costs of the motion, within this section. [Phipps\. Carman^ 26 Hun, 518). So are costs of a interlocutory reference under section 1015. {Jones v. Easion, 11 Abb. N. C. 114). The stay granted by this section is an absolute and peremp- tory stay of all proceedings. {National Bank of Port Jervis V. Hansee, 15 Abb. N. C. 488). It does not, however, forbid a motion to vacate an order imposing costs. {Marsh v. Woolsey, 14 Hun, 1). The stay does not begin until de- fault 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. {Pettibone v. Drakeford, 1 How. Pr. N. S. 141). In the first department, the objection that proceedings are stayed for non-payment of any costs will not be heard, when the cause or motion is called on the cal- endar, unless at least twenty -four hours notice in writing that such objection will be made, has been given to the opposite party. (Eule of Mch. 1880; Hun's Eules 264). The party entitled to insist upon the stay, waives it by giving or re- ceiving notice of trial {Verplanck v. Kendall, 4:1 Super. 513), or by appealing from a subsequent order made in tlie= action. {Attorney General v. Contl. Life Ins. Co., 38 Hun, 521). 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). Where the order directs that the costs of th& motion abide the event of the action, or where costs of a. motion, awarded by an order, have not been collected 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). OHAPTEE Vm. MISCELLANEOUS PEACTICE BEGULATIONa 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. AETICLE I. NOTICES AND PAPEES. All notices given in the action must be in writing (Lane -V. Gary, 19 Barb. 537; McEweny. Mont. Co. Mut. Ins. Co., 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. McGuire, 28 N. Y. 446). All papers served or filed in an action must be indorsed or subscribed with the name of the attorney or attorneys, and his or their post-office 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 entry of judgment is served upon the party, a failure to indorse the name and address of the attor- ney will prevent 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 Y. Backer, 101 N. Y. 289) ; but the paper so defective MISCELLANEOUS PRACTICE BEGULATIONS. 219 may be returned, or a motion may be made to set it aside. {Evans v. Backer, supra). If a paper is returned 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 numbered or marked in the margin, so as to con- iorm 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; and if not so written, and iolioed, and indorsed, the clerk shall not file them, nor will -the court hear any motion or application founded upon them. (General Eule 19). For a non-compliance of this order, the party receiYing the paper may, within twenty-four hours after the receipt of it, return it to the party who serves it, ■with the statement of the particular objection indorsed upon it. (ibid). The objection must state explicitly the defect in the paper. (ibid.j Chemung Bank v. Judson, 10 How. Pr. 133). The objection is waived by an admission of due and proper service of the paper thus defective. {^Patterson V. McCunn, 38 Hun, 531). All stipulations must be in writing. No private agreement or consent between the par- ties or their attorneys, in respect to the proceedings in a •cause, shall be binding, unless the same shall have been re- •duced 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. (General Eule 11). A stipulation made in open court is not within this rule. {Staples v. Barker, 41 Barb. 648 ) . The time for the performance of ihe stipulation may be extended by parol. {Harris v. 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, because it is • not in writing. (^People v. Stephens, 52 N. T. 306, 310). The court may at any time relieve a party from his stipula'- tion in its discretion, for good cause shown [Barry v. Mut. Life Ins. Co. of N. Y. 53 N. Y. 536) ; but it will not do so 220 ■ PEACTICE. where neither fraud nor collusion has been shown, and the stipulation has been acted upon (Mark v. City of Buffalo^ 87 N. Y. 184). ARTICLE II. SERVICE AND FILING OP PAPERS. SECTIOK. 1. On whom service to be made. 2. Mode of service. 3. Proof of service. 4. Piling papers. This article does not apply to the service of a summons,, or other process; or of a paper to bring a party into con- tempt; 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 wno nas not appeared, it must be made. upon him personally. Where a party has appeared by attorney, a notice or other paper re- quired to be served in an action, must be served upon his attorney. If a defendant has not appeared, 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 {Rossner v. jV. Y. Museum Association, 20 Hun, 182) ; but provisional remedies are not. [Becker v. Hager 8 How. Pr. 68). The word " attorney" in the action means the attorney at law of the party, and not an attorney in fact. ( Wier v. Slocum, S- How. Pr. 398). W.here an agreement has been made to sub- stitute an attorney, but the order for substitution has not been entered, service on the new attorney is not good. ( Wood v. Holmes, 19 W. D. 121), Unless some other mode is pre- scribed, the word " service " always means personal service. [Eathbun v. Acker, 18 Bi^rb. 393). Where a party to' an action, who has appeared in person, resides without the state, or his residence cannot, with reasonable diligence, be ascertained, and he has not designated an address, within the state, upon the preceding papers, service of a paper upon MISCELLANEOUS PEACTICE BEGULATIONS. 221 him may be made by serving it on the clerk. (Co. Civ. Proc. § 800). If an attorney dies, is removed, or suspended, or otberwise 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 appeared, unti thirty days after notice to appoint another attorney, has been given to that party, either personally, or in such other man- ner 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 person- ally, or in the manner prescribed in the next section. (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-office, by depositing the paper, properly inclosed in a post-paid wrap- per, in the post-office of the party or the attorney serving it, 3. £zteusion 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 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 attorney or counsel retained to defend the action, that, from the state- ment of the case in the action made to him by the defendant, he verily believes that the defendant has a good and sub- stantial defense, upon the merits, to the cause of action set forth in the complaint, or to some part thereof. And the affidavit shall state whether any and what extension or ex- tensions of time to answer or demur have been granted, by 228 PRACTICE. stipulation or order, and where any extension has been had, the date of issue shall be twenty days after the service of the complaint. (General Eule 24). The general require- ments 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 section 781, the affidavit upon which the order was granted, or a copy thereof, must be served with a copy of the order; otherwise the order may be dis- regarded. (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 proceedings within section 775. [Sisson v. Lawrence, 25 How. Pr. 435). The extension of the time to plead should always be for the shortest possible time, and if necessary, acceptance of short notice of trial should be made a condi- tion of the extension. (^Haywood v. Thayer, 10 Wend. 571). An extension of the time to answer allows a defendant to demur. [Brodhead v. Broadhead, 4 How. Pr. 308). The extension of time begins to run from the expiration of the former time. [Pattisqn v. 0^ Conner, 23 Hun, 307). Where service of a paper may be made by mail, a deposit of the order extending time in the post-office 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. Leav- enworth, 2 E. D. Smith, 24) ; neither does an order for a bill of particulars, with a stay of plaintiff's proceedings {Piatt V. Townsend, 3 Abb. Pr. 9) ; nor does an order stay- ing 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 commence- ment, 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 ; except 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 r. Volgar, 1 Law Bull. 9). If terms MISCELLANEOUS PEACTICE BEGULATIONS. 229 are imposed, they must be imposed when the order is made, and not subsequently. [Matter of Bradner, 87 N. Y. 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 appeal cannot be indirectly extended by vacating the judgment, or ordering it entered anew [Whitney v. Townsend, 1 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 the heir, devisee, or personal repre- sentative, 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 the Code requires a bond or under- taking, 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 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 undertaking by any fidelity or surety company, authorized by the laws of this state to transact business, shall be equivalent to the 230 PEACTICE. execution of said bond or undertaking by two sureties, pro- vided the same is approved by a judge in wHch such bond or undertaking is given; and such company if excepted to, shall justify through its officers or attorney in the manner required by law. Any such company may execute any such bond or undertaking 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 the company shall be filed with each bond or under- taking. (Go. Civ. Proc. § 811). It is provided by section one of chapter 401 of the laws of 1885, that whenever a bond or undertaking, required in judicial proceedings, shall be guaranteed by a company duly organized or authorized to do business under the laws of this state, and authorized to guar- antee the fidelity of persons holding positions of public or private trust, any judge, sheriff, or other officer, who is called upon to approve the sufficiency of the bond or undertaking, may, in his discretion, accept the bond or undertaking so guaranteed or executed, and all such corporations are by said statute, given the power and authority to execute and guarantee such bonds and undertakings. It is further pro- vided that the supreme court, in the judicial department in which the place of business of such company shall be located, may, whenever it sees fit, require such company to file with the clerk, a sworn statement of its condition, and may also require it to submit to an examination as to its solvency by a referee to be appointed by the court; and that such examina- tion and statement, when filed with the clerk, or a certified copy thereof, when filed with any clerk of the supreme court, or in any other court, shall be received and considered as given in justification upon any and all bonds and undertak- ings guaranteed by said company, which shall thereafter be presented to any of the said officers for approval ; and that any judge may, in his discretion, if he deems such justifica- tion sufficient, approve and accept such bond or undertaking without further justification, or he may direct such further justification through the officers of such company as he shall deem requisite, either limited to any matters relating to the condition of such company, or generally, as required by law MISCELLANEOUS PKACTICE EEGULATIONS. 231 of other sureties. (Laws 1885, chap. 401). Under this sec- tion, 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. 0. 107 ; Byan v. Cochran, 11 Abb. N. C. Ill note). A judge is not bound to approve an undertaking guaranteed by such a cor- poration, although it possesses all the qualifications pre- scribed by the act, but he should exercise his discretion in each particular case. [Earle v. Earle, 49 Super. 57). In no case, shall an attorney or counsellor be surety on any undertaking required by law, or by the general rules -of practice, or by any order of a court or judge, in any ■action or proceeding, or on appeal in any civil or criminal miction or proceeding. (General Rule 5). A bond or under- taking, executed by a surety or sureties, as prescribed in the Code, must, where two or more persons execute it, be joint and several in form ; and, except as otherwise expressly pre- scribed by law, it must be accompanied with the affidavit of •each surety subjoined thereto, to the effect, that he is a resi- dent of, and a householder or freeholder within, the state, and is worth the penalty of the bond, or twice the sum speci- fied in the undertaking, over all the debts and liabilities, which he owes or has incurred, and exclusive of property ex- empt by law from levy and sale under an execution. A bond or undertaking given by a party without a surety, must be accompanied 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 pro- ceeding is taken, or a judge thereof, or the judge before whom the proceeding is taken. The approval must be in- dorsed upon the bond or undertaking. (Co. Civ. Proc. -§ 812). Whenever a court is authorized to approve an -Tindertaking 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 jus- "tice or other officer approves of the security to be given in any case, or reports upon its sufficiency, it shall- be his duty -to require personal sureties to justify, or, if the security 232 ' PBACTICE. offered is by way of mortgage on real estate, to require proof of the value of such real estate. (General Eule 5). The requirement of section 812, that a surety must be worth- double the amount of the bond, over and above all existing- and contingent liabilities, does not apply to the corporations mentioned in the statute of 1885, before referred to. (^Earle V. JEarle, 49 Super. 57). Wherever the approval of the judge is required, it is essential to the sufficiency of the undertaking. (^Beecli v. Souihwori, 1 Code Kep. 99). In an action brought by a foreign republic, an undertaking on arrest of the defendant, executed by the minister of the plaintiff in his official name, is si^fficient. {Republic of Mexico V. DeArangoiz, 5 Duer, 634). It is necessary that an undertaking should in terms be binding upon the heirs, executors, and administrators of the parties giving it. [Schenke v. Bowell, 1 Abb. N. C. 295). Whenever the sureties are required to justify in an amount, double that o£ the judgment appealed from, the amount of the judgment, should be stated in the undertaking. {Harris v. Bennett ^ 3 Co. Hep. 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. {Hilly. Burke, 62 N. Y. 111). If the sureties upon an appeal to the general term from the final judgment, fail to justify after they are excepted to, or justi- fication is not waived by the respondent, the sureties are- discharged 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 indors- ment of the approval of the surety is necessary, and the^ undertaking is good without it. {Gopsill v. Decker, 6T 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 man- ner 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 required in this section. (General Kule 5). The acknowledgment cannot be takent before an attorney in the action or whose name appears oit MISCELLANEOUS PEACTICE BEGULATIONS. 233 the undertaking as attorney. (Bliss v. Molter, 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 dis- cretion, allow the sum in which a surety is required to jus- tify, to be made up by the justification of two or more sureties, each in a smaller sum. But in that case, a surety cannot justify in a sum less than five thousand dollars ; and, where 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. (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 disposition 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 it with the proper clerk, all bonds and undertaking re- quired by this section; and in case such bonds and under- takings shall not be so filed, the opposite party shall be at Kberty to move the court to vacate the proceedings, as if no bond or undertaking had been given. (General Rule 4). A bond or undertaking, given in an action or special pro- ceeding, 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 thereafter 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 sufficient, if it conforms substantially to the form therefor, prescribed by the statute, and does not vary therefrom, to the prejudice of the rights of the party, to whom, or for whose benefit it is given. (Co. Civ. Proc. § 729). The omission 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. St. 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 it was perfect, may,.. "234 PBACTICE. •on the application, of the persons who executed it, amend to accordingly ; and it shall thereupon be Talid, 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 special proceeding, to the people or to a public 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 inter- ested, may maintain an action in his own name, for a breach of the condition of the bond, or of the terms of the under- taking ; 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; or by a superior city court, the city court of the city of New York, or a county court, if the bond or undertaking was given in a special proceeding, pending before a judge of that court; or, in any other case, by the supreme court. Notice of the application therefor must be ^iven, as directed by the court, or judge, to the persons in- terested in the disposition of the proceeds. (Co. Cir. Proc. § 814). AETICLE V. CONSOLIDATION OF ACTIONS. Where two or more actions, in favor of the same plaintiff 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). Where one of the ac- tions is pending in the supreme court, and another is pend- ing in another court, the supreme 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 plain- tiff 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 should not be ordered, until the time to answer the amended complaint lias expired. {LeBoy v. Bedell, 1 Code Eep. N. S, 201). MISCELLANEOUS PKACTICE REGULATIONS. 235 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 ques- tions 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 y. Johnson, 4 Hill, 46). It is not enough to swear that the defense is substan- tially the same ; it must appear that the questions to be tried are the same. {Dunn y. Mason, 1 Hill, 154). An affida- vit of merits is not required on the motion. [Brewster v. Stewart, 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. [Soloman v. Belden, 12 Abb. N. 0. 58). The question of consolidation is always in the discretion of the -court. [Woodward v. Frost, 19 W. D. 125). If one action involves many questions which are not at issue in the other, the consolidation vsdll be refused, (id). If the motion is 3iot made until the actions are moved for trial, it will be de- 3iied for laches. (Eleventh Ward Sav. Bank v. Hay, 8 Daly, 328). Equitable actions cannot be consolidated. (Bech V. Buggies, 6 Abb. N. C. 69). The court has no power to consolidate two actions for partition of land sit- uated in different counties, where one or more of the parties io one action, are not parties to, or interested in, the subject of the other action. (Mayor v. Coffin, 90 N. T. 312). Where one suit only should have been brought, or where more than one action is commenced, under circumstances which evince a disposition to make the proceedings unneces- sarily burdensome to the defendant ; or, where the plaintiff Tefuses to consolidate in a proper case, upon request, he will te charged with costs of the motion for consolidation i^Bank of U. S. v. Strong, 9 Wend. 451 ; Dunning v. Bank 236 PKACTICE. of Auburn, 19 Wend. 23); but where the second cause of action did not accrue until after the first suit was brought, the plaintiff is not in fault for bringing two actions, and. will not be charged with costs upon consolidation. [Dun ning v. Bank of Auburn, supra). If the consolidation is prejudicial to the plaintiff, costs may be imposed upon the defendant, as a condition. [Soloman v. Belden, 12 Abb. N. C. 58). 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. Mich. So. B. B. Co. 17 How. Pr. 228). Where separate actions are commenced against two or more joint and several debtors, in the sam& court, and for the same cause of action, the plaintiff may, in. any stage of the proceedings, consolidate them into one ac- tion. (Co. Civ. Proc. § 819). Where a commission ha» 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. ( Waterbury v. Delafield, 1 Caines, 513). 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. Schav- ber, 4 Cow. 78). But the rule which allows the plaintiff to- try only one of several causes where the questions and evdence are the same in all, applies only to questions of property, and does not apply to actions for a tort. [Sher- man V. McNiit, 4 Cow. 85). AETICLE VI. INTEBPLEADER. 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. MISCELLANEOUS PEACTICE BEGULATIONS. 237 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 substi- tute that person in his place, and to discharge him from liability to either, on his paying into the court the amount of the debt, or delivering the possession of the property, or its value, to such person as the court directs. The court may, in its discretion make such an order. (Co. Civ. froc. ■§ 820). The Code has not introduced any new cases of in- terpleader; the object of this section was only to provide a summary way by which one who is entitled to interplead, might do so whenever it would have been proper before the €ode. {DeLancy v. Murphy, 24 Hun, 503). It can be ordered only when it is certain that the sole question is, whether the plaintiff, or the 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, and is pre- cluded from setting up the title of the third party, as a •defense, he is not entitled to interplead. [Shermans. Part- ridge, 4 Duer, 646 ; Tynan v. Cadenas, 7 Civ. Proc. Eep. 305). An action must be pending before the motion can lie made under this section; if there is no action pending, the remedy is by an action of interpleader. (^Beck v. Step- hani, 9 How. Pr. 193). The proceeding can only be had by a defendant, and upon motion. {^B. & 0. B. B. Co. v. Arthur, 90 N. T. 234). If the answer has been served, and been returned, the motion may be made, if the time to answer has not expired. {^Howe Machine Co. v. Gifford, 66 Barb. 597). The moving party must show that the plaintiff in the action and another person have preferred a claim against him for the same thing, whether it be a debt, or a duty; he must have no beneficial interest in the thing claimed; and it must appear that he cannot, without hazard to himself, determine to which of the defendants, the thing of right belongs ; he must also offer to bring the money or -thing into court. {Dorn v. Fox, 61 N. Y. 264, 268). The •defendant must admit his liability to some one, by reason of & claim made in the complaint. {^B. & O. B. B. Co. v. Arthur, 90 N. TT. 234). He must be indifferent between 238 PBAOTIOE. the adverse claimants. [Marvin v. Ellwood, 11 Paige, 365), He must affirmatively deny any collusion {^Atkinson v, Manks, 1 Cow. 691) ; but a simultaneous offer to both, tof pay to the one who will indemnify the defendant, will not be collusive, if both decline the offer. [Marvin v. Elwood, 11 Paige, 365). Collusion between other parties in re- gard to the matter, is no ground for denying the motion, as- long as the moving party himself is free from collusion. ( Wehle V. Bowery Sav. Bank, 40 Super. 97). He must not be a wrong doer towards 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 claim- ants. [Trigg v. Hitz, 17 Abb. Pr. 436). It will not lie where he appears to be advised as to the grounds of the dif- ferent 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 sufficient answer to a motion for interpleader, that the defen- dant cannot deposit the amount, or property with the court. [Vosburgh y. 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. Sherwood, 15 How. Pr. 258) ; nor where the amount admitted to be due is not the same as that alleged in the complaint^ or is in dispute [B. & 0. E. B. Co. v. Arthur, 90 N. Y. 234) ; nor where the claim of the third party is clearly frivo- lous [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 indemoity from either party. [Mar- vinY. Elwood, 11 Paige, 365). In actions against any sav- ings bank to recover for moneys on deposit with it, if there be any person or persons, whether husband, or wife, or otherwise, 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 day* notice to the plaintiffs and such claimants, make an order,,. MISCELLANEOUS PEACTICE BEGULATIONS. 239 amending the proceedings in said action, by making suck 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. (Laws of 1882, chap. 409 § 259). A motion may be made under this section, after answer. [Zabriskie v. iV. Y. Sav. Bank, Daily Reg. Apr. 30th 1881). The proceeding for inter- pleader under this section is a motion, and not a special pro- ceeding. {Bowery Sav. Bank v. Mallier, 45 Super. 619). 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 com- plaint upon him, appear and defend, the deposit shall be paid to the plaintiff. ( Van Buskirk v. Boy, 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 will usually be a charge upon, or deducted from, the fund in his hands. The order is appealable to the general term ( Wilson v. Duncan, 11 Abb. Pr. 3), but not to the court of appeals. {Barry v- Mut. Life Ins. Co. 53 N. Y. 536. :240 PEACTICE. AETIOLE Vn. DISMISSAL rOE NEGLECT TO PBOCEED. BECTION. 1. For failure to serve the summons. 3. For unreasonable neglect to proceed. Sec. !• For Failui-e to Serve the Sumnions. 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 application of a defendant who has appeared in the action, dismiss the complaint as against him and render judgment 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. {^Mor- ris V. Crawford, 16 Abb. Pr. 124). One who has been served cannot move to dismiss the complaint under this sec- tion, 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 defendant. {Barbour v. Boas, 4 Law. Bull. 26). SeCi Z, For XJnrnasonable 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 application of the defendant or defendants, or any of them, against whom he so neglects to proceed, dismiss the complaint as against the moving party or parties, and render judgment accordingly. (Co. Civ. Proc. § 822). Whenever an issue of fact triable by a jury, in an action pending in any of the courts in the first district, has been joined, and the plaintiff therein has failed to bring the same to trial, according to the course and practice of the court, the defendant, at any time after younger issues shall have been tried in their regular 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 MISCELLANEOUS PEACTICE EEGULATIONS. 241 to bring the action to trial has not been unreasonable, the court may permit the plaintiff, on such terms as may be just, to bring the said action to trial at a future term or cir- cuit. (General Rule 36). Section eight hundred and twenty-two applies to all actions both, at law and in equity, and whether there are one or more defendants in the action. {Jeweit V. Pickersgill, 14 W. D. 200; Calkin v. Beattie, 4 Law. Bull. 42). 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 pro- ceed. {Ellsworth V. Brown, 16 Hun, 1). If the plaintiff does not serve the complaint within twenty days after the defendant 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, 1 How. Pr. 478). If the defendant puts his cause on the calendar, and neglects to move it when reached, he waives his right to move under section eight hundred and twenty-two {Mil- ler v. Eing, 18 Abb. Pr. 244) ; otherwise, if he merely notices the case without putting it on the calendar. {Chill- coU V. Waddingham, 1 Law. Bull. 50). If by agreement of parties the case is set down for a day certain, and the court adjourns before that day, setting it down, is a waiver of the defendant's right to move for a dismissal, for a failui-e to try at that term. {Fuller v. Sioeet, 9 How. Pr. 74). If the motion is not made promptly after the default in moving the case, the defendant waives his right to move. {Chamj)ion T. Webster, 15 Abb. Pr. 4). If the delay to move the case, has been caused by repeated promises of the defendant to set- tle, the complaint will not be dismissed. {Doyle v. 0''Far- rell, 5 Eobt. 640). The defendant cannot move to dismiss the case, if he has setup a counterclaim. {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. 48) ; although he may be unable to pay the costs of the motion. {Otis v. Gray, 3 Law. Bull. 11). Judgment of dismissal under this section is a mere judgment of non-suit, 16 242 PRACTICE. 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). If an appeal is taken after judgment o£ dismissal, the appeal must be from the order, and not from the judgment entered upon it. [James v. Shea, 28 Hun,, 74). AETICLE YIII. 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 published therein, the pub- lication may be made in a newspaper of an adjoining county, except where special provision is otherwise made by Ibw. (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 per- son or persons to exhibit their demands, or otherwise 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 such newspaper published in the county where the place of trial is designated, as shall be designated by the court; and in a newspaper published in the county where the act is required to be done. (Co. Civ. Proc. § 786; Chap. 183, Laws 1884, § 2). If there is no newspaper pub- lished in the county, or not a sufficient number for the requisite publications, or the newspapers published therein decline to publish the notices, at the rates allowed by law, the publication may be made in such newspaper published elsewhere, as may be designated by the court. (Chap. 133, Laws of 1884, § 4). This section of the Code only author- izes publication of notice, when an action is brought for the MISCELLANEOUS PBACTICE REGULATIONS. 243 collective benefit of creditors. [Schuehk v. Beiman, 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). CHAPTEE IX. GENEBAL REGULATIONS IN EEGAKD 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 XL — Indefinite or uncertain allegations ARTICLE I. GENEKAL RULES OF 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 consid- ered 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 pleadings in civil actions should be only those pre- scribed by that act. (Co. Proc. § 140). The precise wording of the rule thus established has not been retained in the Code of Civil Procedure, but the rule itself has been GENEEAL EEGULATIONS IN REGARD TO PLEADING. 245 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 this is the first section. It is now well established that this provision 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 Imown as legal or equitable. {Williams V. Hayes, 5 How. Pr. 470; Phillips v. Gorham, 17 N. Y. 270). But the provisions of the code apply only to rules of pleading. It has not been attempted to alter the rules of law which determine the validity of a cause of action or defence ; 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, 70, 71). Two objects were made prominent in the changes affected by the code; one was the introduction 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 com- munications with each other ; that they should not willingly, and certainly not by compulsion, spread a falsehood upon the record. Another was, that the pleadings should inform the court and the adverse party of the facts alleged in sup- port 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 objection 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. [Basil v. Prosser, 11 N. Y. 352). It is not necessary to discuss here whether these objects have been attained, but it is believed that a careful obser- vance of the rules contained in the code, will enable the pleader to ascertain the questions in dispute in any action, 246 PRACTICE. and to present them for trial with complete success and ac- curacy. 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 hare been used before the code. [Pomeroy on Remedies, § 542; Allen \. Patterson, 7 N. Y. 476). Sec. 2. "What to be Stated. Facts alone should be stated. (Co. Civ. Proc. § 481, Bubd. 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. [Lawrence v. Wright, 2 Duer, 673). Facts should be stated truly, as they exist. (Russell v. Clapp, 7 Barb. 482; J. & S. P. R. Co. v. Morley, 23 N. Y. 553). It is said in many cases, that facts must be set forth in a plead- ing 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 according 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. (Gasper v. Adams, 28 Barb. 441). Evidence of the facts is never to be stated in a plead- ing. {People V. Ryder, 12 N. Y. 437). It is not good pleading to state a fact by argument or inference. (Boyce V. Brown, 7 Barb. 80). It should always be stated clearly and unequivocally {Clark -v. Dillon, 97 N. Y. 370, 374), and not hypothetically or in the alternative. {Boyce v. Broum, 7 Barb. 80). But although a hypothetical pleading is rarely a good pleading, 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 GENERAL EEGULATIONS IN REGARD TO PLEADING. 247 information and belief [Brown \. Byckman, 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 conclu- sion 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. [Cook v. Warren, 88 N. Y. 37, 40). A, mere conclusion of law is bad upon demurrer. (^Knapp V. City of Brooklyn, 97 N. Y. 520). When the pleader has stated the facts on which he relies, he is never required to state the theory of the law upon which his claim or defence is based. [Hemmingway 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 cer- tain sum is due [Allen v. Batterson, 7 N. Y. 476) ; or that the party was the owner of land ( Walter v. Lockwood, 23 JBarb. 228); or that he is the owner of chattels [Davis v. Hoppock, 6 Duer, 254) ; or that the plaintiff became owner of a claim by purchase. [Brindle v. Caruthers, 15 N. Y. 425). While such allegations are not fatal upon demurrer, the court upon motion will require them to be corrected. (Id). Sec. 3. Wliat Facts to be Pleaded. Every fact which a party must prove to establish his cause of action or defence, 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 com- plaint deficient in technical language. [Zdbriskie v. Smth, 13 N. Y. 330). The general rule is that only the facts necessary to establish a cause of action or defence need be set forth, and the party should only allege what he is re- quired to prove. (Moak's Van Santvoord's Pldgs. 238; Decker v. Mathews, 12 N. Y. 313, 320). But this rule is not to be construed as requiring the pleader to state only facts 248 PRACTICE. which entitle him to some relief. In many actions, es- pecially 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 en- titled, 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 influence 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 comprehen- sive principle of the reformed procedure embraces and con- trols both classes of suits. (Pomeroy on Remedies, § 527). A fact which the law implies, or a presumption of law need not be alleged. (Huni v. Bennett, 19 N. Y. 173, 176). But the allegation of a necessary fact is not dispensed with be- cause it may be inferred from another fact which is alleged. {Parkhursty. Wolf, 47 Super. 320). The public statutes of the state, or of the United States need not be pleaded [Brown v. Harman, 21 Barb. 508; Piatt v. Craicford, 8 Abb. Pr. N. S. 297); but private or local statutes [Breiz V. Mayor etc., 6 Robt. 325), or a municipal ordinance [Har- Icer Y. 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 pro- visions 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 [Shaw v. Tobias, 3 N. Y. 188) ; such as public statutes of this state [Bayard v. Smith, 17 Wend. 88) ; or of the United States [Jacky. Mar- tin, 12 Wend. 311, 329) ; or the civil divisions of this state [Chapman v. Wilber, 6 Hill. 475) ; or matters of public his- tory 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 GENERAL EEGULATIONS IN EEGABD TO PLEADING. 249 or proclamations [United States v. Eeynes, 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. T. 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 busi- ness has been transacted legally ; and if these facts are to' be put in issue, the contrary averment must come from the other side. (1 Chitty PI. 226, marg). See. 4. Ho-nr Facts to be Pleaded. Sub-division. 1. — Certainty. The code requires that each pleading should contain a plain and concise statement of the facts, constituting the cause of action or defence, without unnecessary repetition. (Co. Civ. Proc. § 481, subd. 2; § 500, subd. 2). The material facts ought to be plainly yet concisely alleged, 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). Sub-division 2. — Time. Under the former practice it was necessary to state the time whenever any material or traversable fact happened, 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 defence, it must be stated, and the fact without the time, would be insufficient to constitute the cause of action or defence, 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 250 PEACTICE. committed on several days, it may be described as having been committed on such a day, and divers other days and times, be- tween 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. (^Dubois v. Beaver, 25 N. T. 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 pleading, allegations in the present tense relate to the date of verification. (^Prindle v. Caruth- ers, 15 N. Y. 425). If a pleading is not verified, all allega- tions 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; Towtishend y. Norris, 7 Hun, 239). Sub-division 3. — Place. At common law it was necessary to allege a place, in refer- ence to every traversable fact, and that place, wherever the fact occurred, was always charged as being within the county Tvhere 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 gen- erally are made to conform to local actions at common law. Thus, actions in regard to real property, that may affect its title or possession, 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). Where- ever an allegation of the place is material to the cause of action and the jurisdiction of the court, or whenever it is matter of description, the place shoald be stated in the pleading, but whenever it is immaterial, no allegation need be made about it. (Bliss on Code Pleadings, § 296). general kegulati0n8 in kegaed to pleading. 251 Sub-division 4. — Positiveness. Every fact which is stated in the pleading should be posi- tively averred ( Truscott v. Dole, 1 How. Pr. 221 ; Hilsen v. Xiibby, -ll Super., 12, 15) ; and as we have seen, not by ar- gument, 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 Daer, 544), or facts recited in a docu- ment 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 matters which can be implied by fair and reasonable intendment from facts which are alleged {Marie T. Garrison, 83 N. Y. 14, 23), will be deemed to be properly alleged. 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 in- formation. {Radway v. Mather, 5 Sandf. 654). The allega- tions 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 upon the information and belief of the party, tney must be regarded for all purposes, including a criminal prosecution, 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). 252 PRACTICE. Sec. 5. Exceptions to the General Rules. Sub-division 1. — Peivate Statutes. In pleading a private statute, or a rigM derived therefrom, it is sufficient to designate the statute by its chapter, year of passage, and title, or in some other manner with con- venient certainty, without setting forth any of the contents thereof. (Co. Civ. Proc. § 530). This section of the staiute does not relieve the pleader from the necessity of pleading the statute, but it is not now necessary 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). Sub-division 2. — Account. It is not necessary for a party to set forth in a pleading, 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 account, 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 making 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). Sub-division 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 judgment or de- termination 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 conferring jurisdiction. (Co. Civ. Proc. § 532). It is doubtful whether this section ap- plies to judgments of foreign states. In Halstead v. Black (17 Abb. Pr. 227), the plaintiff set out a judgment of a GENERAL REGULATIONS IN REGARD TO PLEADING. 253 foreign state in the manner directed by tMs section, and upon demurrer, the supreme court at special term, held that the pleading was good, and that this section applied to for- eign judgments. The case of Hollister v. HoHister (10 How. Pr. 532), was cited in Halstead y. 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 McLaughlin Y. 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 subject matter, and either that the court which rendered the judg- ment was a court of general jurisdiction, or if not so, that it bad 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 provision of the statute was not before the court. In the case of DeNobele v. Lee, (47 Super. 372), it was said that the question whether this sec- tion applied to foreign judgments, 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, the officer by whom the judg- ment was rendered must be designated. (^Carter v. Koez- ley, 9 Bosw. 583). The precise language of the section must be followed; it is not sufficient to allege that the officer had full jurisdiction over both person and subject matter and " that judgment was entered." {^Hunt v. Dutcher, 13 How. Pr. 538). SuB-DivisioN 4. — Conditions Precedent. In pleading the performance of a condition precedent in a contract, it is not necessary to state the facts constituting performance ; but the party may state, generally, that he, or "the person whom he represents, duly performed all the con- ditions on his part. If that allegation is controverted, he must, on the trial, establish performance. (Co. Civ. Proc. ■§ 533). Compliance with this section is optional. {Mayor 254 PRACTICE. etc. V. Doody, 4 Abb. Pr. 127). This section does not apply solely to a contract in which the conditions precedent are expressly stated, but to all contracts where such condi- tions are implied by law. [Adams v. Sherrill,' 14: How. Pr. 297; Chem. Nat. Bk. v. Carpentier, 9 Abb. N. C. 301). In pleading under this section, a strict compliance with its re- quirements is insisted upon, and the use of the word " duly " is advisable. [Hunt v. Dutcher, 13 How. Pr. 538). But it is not necessary to follow literally the language of the statute. An allegation that the conditions were fully and faithfully performed is sufficient. [Rowland \. Fhalen, 1 Bosw. 44). If a party intends to rely upon an excuse for non-performance of the conditions, he must set out the ex- cuse, and he cannot prove it under an allegation of perform- ance, under this section. (Oakley v. Morton, 11 N. Y. 25). Sub-division 5.— Instruments for the Payment of Money Only. Where a cause of action, defence, or counterclaim, is found- ed 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 adverse party, a speci- fied 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 section does not apply. [Broome v. Taylor, 76 N. T. 564; Tooker v. Arnoux, 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 promise to pay, it is sufficient. [Burke v. Ashley, 12 Hun, 637). The section has been held to apply to promis- sory notes [Keteltas v. Myers, 19 N. Y. 231), although pay- able by installments and expressing consideration [Chase y. Behrman, 10 Daly, 844) ; and a bill of exchange accepted by a corporation [Andrews v. Astor Bk. 2 Duer, 629) ; and GENERAL REGULATIONS IN REGARD TO PLEADING. 255 a bond for the payment of money [Broome v. Taylor, 76 N. Y. 564) ; but not to a mortgage [Eose v. Meyer, 7 Civ. Proc. Eep. 219) ; nor to a check in an action against the drawer [Judd v. Smith, 3 Hun, 190) ; nor to an action against the endorser of a promissory note. {Conkling v. Gandall, 1 Abb. Ct. of App. 423; 1 Keyes 228). An in- strument in a foreign language may be pleaded upon under this section. [Nourny v. Duhosty, 12 Abb. Pr. 128). In an action by the payee of a note, against the maker;^ a com- plaint, setting forth a copy of the note, and that there is due from defendant to plaintiff a certain sum is good. [Butchers' & Drovers' Bank 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 plaintiff (Id. ; Marshall y. Mock- wood, 12 How. Pr. 452) ; or that the plaintiff was the owner of the note {Keteltas v. Myers, 19 N. T. 231) ; but the complaint must show the connection between the plaintiff and the instrument sued on, or that it was endorsed and transferred to him, or that he is the owner and holder of it. [Lord V. Oheseborough, 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. [PrindleY. Caruthers, 15 N. Y. 425). Sub-division 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 defamatory 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 necessary, for the applica- tion 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 neces- sity of stating these facts by an explicit averment is pre- cisely the same as it always was. (Fry v. Bennett, 5 Sandf. 256 PBACTICE. 66; Wallace Y. Bennett, 1 Abb. N. 0. 478). An averment under this section of the code, that the words were spoken of and concerning the plaintiff, is not sufficient, where it is contradicted by other allegations in the complaint. (^Fleisch- mann t. Bennett, 87 N. Y. 231). AETIOLE II. POEMA.L RULES CONCERNING PLEADINGS. SECTION. 1. How to be written and endorsed. 3. Statement of facts. 3. Subscription. 4. Service and filing. Subd. 1. — Service generally. Subd. 2. — Service on co-defendant. Sec. 1. How to be AVritten and Endorsed. Every pleading must be in the 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 express- ed 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 plead- ings must be fairly and legibly written. 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 conform to the original draft, and shall be endorsed with the title of the cause. If not so written and folioed and endorsed as afore- said, 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). GENERAL REGULATIONS IN REGARD TO PLEADING. 257 Soo. 2. Statement of Facts. The facts in a pleading should be simply and plainly stated. Each cause of action (Co. Civ. Proc. § 483), or de- fence, or counter-claim (Id. § 507), must be separately stated and numbered. If the pleading is properly drawn, the com- mencement of each cause of action or defence should be distinguished by the phrase, "and for a further cause of action," or "for a further defence" [Benedict \. 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). Each cause of action and defence 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 defence, is not aided by the same statement contained in another one, unless the one refers in terms to the other. {Sinclair v. Fitch, 3 E. D. Smith, 677 ; Atjres v. Covill, 18 Barb. 260). To avoid unnecessary repetition, the pleader may refer in one cause of action or defence, to the allegations which have been previously 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 ; Ander- son V. Speers, 8 Abb. N. 0. 382, 455). A failure to state the causes of action separately is not a ground for demurrer {Freer _Y. Denton, 61 N. Y. 492); but advantage must be taken of it by motion. {Coml. Bank v. Pfeiffer, 22 Hun, 327). The code does not permit the same cause of action or defence 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 Avill be required to elect before the trial, upon which of them he will rely ( Waller v. Lyon, 17 Week. Dig. 305) ; but where it can be seen that the state- ment in several ways, is probably needful to prevent the failure of justice, in consequence of a variance between the pleading and the proof, such a statement is not regarded as unnecessary repetition within the meaning of the code, and it will be permitted. {Blank v. Hartshorn, 37 Hun, 101). 17 258 PKACTICE. The remedy for an omission to separately state and number the separate causes of action or defences, is by motion, and not by demurrer. [Gunn v.- Fellows, 41 Hun, 257). See. 3. Subseription. The pleading must be subscribed by the attorney. ( Co. Ciy. Proc. § 520). If the defendant appear in person, his signature to the verification is a sufficient subscription to the pleading. (Hubbell v. Livingston, ICE. 63). In cases where an infant sues or defends by a guardian ad litem, the attorney for the guardian may subscribe the pleading. [Hill T. Thacter, 3 How. Pr. 407). If a pleading is not properly subscribed, it must be returned 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. See. 4. Service and Filing Sub-division 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 Eule 19). It is very necessary that the copy served should be a correct copy of the original, for a party has a right to pre- sume that it is correct, and may rely on such being the case. [Littlejohn v. Munn, 8 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 irregular, although before judgment has been en- tered. [Mandeville Y. Winne, 5 How. Pr. 461; Baker v. Curtiss, 7 How. Pr. 478). Where the action is against two 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 regu- lar. {Jacques y. Greenwood, 1 Abb. Pr. 230). As to the GENERAL EEGULATIONS IN EEGAED TO PLEADING. 259 extension of the time to serve a pleading, see Chap. VIII Art. Ill, Sec. 3, and as to the manner of service, see Chap. VIII, Art. II, Sec. 2. Sub-division 2. — See vice on Oo-defendant. Where the judgment may determine the ultimate rights of two or more defendants, as between themselves, a defen- dant, 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 attorney for each of the defendants to be affected by the determination, and person- ally, 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. Bw- dick, 81 N. Y. 40). It is not limited to actions of a purely equitable character. [Derham v. Lee, 47 Super. 174). The section only applies where the controversy 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 allega- tion, and it does not permit a new and distinct cause of action, not connected with that allegation, to be brought 'into the case. (Lansing v. Hadsall, 26 Hun, 619; Rafferty v. Williams, 34 Hun, 544). Where the relief demanded in an answer is substantially the same as that sought in the com- plaint, the answer need not be served on the co-defendant {Edwards v. Downs, 13 Week. Dig. 57) ; nor where the defendant asks only that the plaintiff's lien be declared to be subsequent to his. {Bullymore v. Seward, 15 Week. Dig. 283). A failure to serve the answer on the co-defend- ant, will be disregarded upon appeal, if the controversy was tried without objection. [Syracuse Savings Bank v. Porter, 36 Hun, 168). 260 PEACTICE. ARTICLE III. VERIFICATION OF PLEADINGS. SECTION. 1. When required. 3. When omitted. 3. By whom made. Subd. 1. — By a party. Subd. 3. — Where party is a domestic corporation. Subd. 3. — Where the people or a public oiBcer 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. Vnieu Required. Where a pleading is verified, each subsequent pleading, except a demurrer or the general answer of an infant by his guardian ad litem, must also be verified. (Co. Civ. Proc. § 523). As a general rule, the complaint need not be veri- fied, except in an action brought under, section 1937 of the Code of CivU Procedure, for the purpose of charging de- fendants not personally summoned. (Co. Civ. Proc. § 1938 ) . Any defence, however, which does not involve the merits of the action, shall not be pleaded, unless it is verified as pre- scribed in this article. (Co. Civ. Proc. § 513). ' The certi- ficate 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-payment, 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 post-ofiice 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 non- payment of the note or bill. A verified answer is not suffi- cient as an affidavit, within the meaning of this section. (Co. Civ. Proc. § 923). The affidavit required by this sec- tion is not sufficient, if made on information and belief, but it must be made of the positive knowledge of the defendant. GENEBAL REGULATIONS IN EEGAED TO PLEADING. 2^1 {Gowtry v. Doane, 51 N. Y. 84), 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 cor- poration, (Co. Civ. Proc. § 1776). "Where the complaint is not verified, and the answer sets up a counterclaim, and also a defence by way of denial or avoidnnco, 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 applicable to the- verifica- tion and counterclaim, as if the latter was a separate plead- ing. (Co. Civ. Proc. § 527). 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 com- plaint which is unverified. {Hempstead v. Hempstead, 7 How, Pr, 8). If the action is brought against three, and a verified complaint is served on two, aiid 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. ( Wendi v. P&yser, 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. 104). Sec. 2. 'When Omitted. The verification may be omitted, in a case where it is not otherwise specially prescribed by law, where the party plead- ing would be privileged from testifying as a witness, con- cerning an allegation or denial contained in the pleading, (Co. Civ. Proc, § 523), A defendant is not excused from verifying his answer to a complaint, charging him with hav- ing confessed or suffered a judgment, or executed a convey- ance, assignment, or other instrument, or transferred or delivered money, or personal property, with intent to hinder, delay, or defraud his creditors; or with being a party or 262 PKACTICE. privy to sucli a transaction by another person, with like in- tent 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 contained in a pleading to be answered. They do not ex- tend 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 conver- Bation 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 v. Kivlin, 25 Hun, 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 affidavit. [Anderson v. Doty, 33 Hun, 238). 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 y. Raymond, 6 Abb. Pr. 148). In an action brought by a creditor of a manufacturing corporation, against the trustees, to enforce a liability incurred by reason of a failure to file the annual report, the defendant is entitled to serve an un- verified answer. {Gadsden v. Woodward, 103 N. Y. 242). A husband sued for divorce on the ground of adultery, need not verify his answer. (Co. Civ. Proc. § 1756). Nor need the defendant in an action for libel serve a verified answer. {Wilson Y. Bennett, 2 Civ. Proc. Eep. 34). In an action for money received, contrary to thei statute of betting and gaming, in which the plaintiff does not show whether the defendant received the money as a stake-holder, or winner, the defendant was not permitted to serve an unverified an- swer, unless he made it appear that he received the money as winner. [Lynch v. Todd, 13 How. Pr. 546).' To avail himself of the privilege, the defendant must deny the allega- GENERAL REGULATIONS IN REGARD TO PLEADING. 263 tions 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 prosecu- tion, 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. Daws, 2 Hilt. 247). Where the right to serve an unverified pleading is disputed, it should be decided either by a motion 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 verified. [Moloney v. Bows, 2 Hilt. 247). Sec. 3. By 'Whom Made- Sub-division 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 interest, 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 prose- cuted or defended, although not a party to the record, may verify the pleading under'this section. ( Taber v. Gardner, 6 Abb. Pr. N. S. 147). A guardian ad litem may verify as a party, but not as agent or attorney [Clay v. Baker, 41 Hun, 58) ; but he cannot do so until he has been actually appointed. [Hilly. Thader, 3 How. Pr. 407). If the de- fendants are united in interest, any one of them can verify a joint pleading [Zoellner v. Newherger, 1 Law Bull. 29), but if the interests of the parties are several, each must verify the pleading. [Gray v. Kendall, 5 Bosw. 666). It has been so held in an action against the maker and endorser of a note [HuUy. Ball, 14 How. Pr. 305); and in an action against a husband and wife, to set aside a fraudulent con- veyance 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. James, 18 Abb. Pr. 299). 264 PEACTICE. SuB-DiTisioN 2. — Wheee Pakty is a Domestic Cobpoeation. Where the party is a domestic corporation, the verification must be made by an officer thereof. (Co. Civ. Proc. § 525, subd. 1). A verification by an officer of a domestic cor- poration under this sub-division, is deemed a verification 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. 1 Civ. Proc. Eep. 443). Sub-division 3. — "When the People oe a Public Officee AEE A Pakty. When the people of the state are, or a puolic 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). Sub-division 4. — When Veeipication May be Made by Agent ok Attoeney. 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 affidavit; or if there are two or more parties united in interest, 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 defence is founded upon a written instrument for the payment of money only, which is in the possession of the agent or the attorney ; or where all the material allegations of the pleading are within the per- sonal knowledge of the agent or the attorney; in either case, the verification 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 section foUr 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 GENERAL KEGULATIONS IN REGARD TO PLEADING. 265 by tlie agent or attorney, although it is made upon in- formation and belief, and although it allege that the party have no knowledge or information sufficient to form a belief. {Neuberger v. Webb, 24 Hun, 347). The agent or attor- ney 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. Gerrits, 13 Abb. Pr. 106). A mortgage is not such an instrument. [Peyser v. McCormack, 7 Hun, 800). 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. [Drevert 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 principal. The character of an agency, that will qualify one to verify a pleading in an action, not f oui^ded upon an instrument for the payment of money, must be such as would ordinarily bring all the material allega- tions of the pleading within his personal knowledge, and he must have acted as substitute for his principal, in the tran- sactions 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. (^Boston Loco. Works V. Wright, 15 How. Pr. 253). The fact that the attorney cannot find his client within the city where he lives, will not authorize him to make the verification. [Lyons v. Murat, 54' How. Pr. 23 ), Where 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. [Stedeker v. Taft, 4 Law. Bull. 88). If the verification of an answer by the attorney is inconsistent with the allegations of the plead- ing, 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. [Glaubensklee v. The H. & A. Packet Co. 9 Abb. Pr. 104). 266 PRACTICE. Sec. 4. Form of Verification. The aifidavit 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, lie must set forth, in the affidavit, the grouuds 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 sec- tion 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 informa- tion and belief of the party, they must be regarded, for all purposes, as having been made upon the personal knowledge of the party verifying the pleading, and that an allegation that the party has not sufficient knowledge or information to form a belief, with respect to a matter, must, for the same purpose, be regarded as an allegation that the person veri- fying the pleading has not such knowledge or information. It is not necessary that the form of verification given in section five hundred and twenty-six should be literally followed; a sufficient compliance with it is all that is absolutely essential. ( Waggoner v. Brown, 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. {Sexaner v. Bowen, 10 Abb. 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 Macaulay, 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." (i?oss v. Longmuir, 15 Abb. Pr. 326). If all the allegations of the pleading are stated to be made upon information and belief, a verification is sufficient, which states that the pleading is true, as the affiant is informed and believes [Orvis v. Goldschmidt, 2 GENERAL REGULATIONS IN REGARD TO PLEADING. 267 CiT. Proc. Eep. 314) ; or tliat the material facts are true as he believes. {Bad-way v. Mather, 5 Sandf. 654). The fol- lowing 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 know- ledge and belief" {Van Home v. Montgomery, 5 How. Pr. 238) ; that the pleading " is true except as to the mat- ters therein stated upon information and belief " &c. {8ex- auer v. Bowen, 10 Abb. Pr. N. S. 335). A verification which substituted the word " facts" for the word " matters " was held to be good ( Whelpley 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 informa- tion and belief. {Duffy v. Brady, 4 Abb. Pr. 432). If the verification 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. Bige- low, 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. {Treadwell v. Fassett, 10 How. Pr. 184). 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 be- lief, statements made to him by his client, was held suffi- cient 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 sufficient 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 allega- tions which were thus denied. {Stedaker v. Bernard, 12 Daly, 212). 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 Civ. Proc. 268 PEACTICE. Eep. 165), and it is also a sufficient statement of the grounds of his belief. {^Hyde t. Salg 27 Hun, 369). In such an action, the attorney for the plaintiff may properly verify the reply, but he should state, in verifying 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 for the pay- ment 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 person authorized to take affidavits. It may be sworn to before the clejk 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 verifi- cation is irregular. [Gilmore v. Hempstead, 4. How. Pr. 153). Where a pleading is sworn to without the state, and the verification was not certified in the manner required to entitle a deed to be recorded in this state, it was treated as unverified. [Phelps v. Phelps, 6 Civ. Proc. Bep. 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 sufficient 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 attorney of the ad- verse party, that he elects so to do. (Co. Civ. Proc. Sec. 528). A delay in taking advantage of a defective verifica- tion is a waiver of the right to object to it. ( Wilson v. Bennett, 2 Civ. Proc. Eep. 34). The objection that the pleading is not properly verified cannot 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 re- turned ; it is not sufficient to say simply, that the pleading is not properly verified. {Snape v. Gilbert, 13 Hun, 494). If the verification of the complaint is defective, the party may treat it as unverified, and need not verify his answer. {Qiiinn v. Tilton, 2 Duer, 648 ; Treadivell, v. Fassett, 10 How. Pr. 184). Where several defendants, not united in GENERAL EEGULATIONS IN EEGAED TO PLEADING. 269 interest, join in an answer, and one only verifies it, the plead- ing 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 defendants. {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; 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 subse- quent to the complaint is not properly verified, the party may move for judgment on account of the defective verifica- tion, or he may present the question for determination by a motion to strike put the pleading, in case it has been served, or to compel its acceptance, in case of a refusal to receive it. [Fredericks \. Taylor, 52 N. Y. 596). These decisions were made under the code of procedure, but no reason is seen why they are not applicable under section five hundred and twenty-eight. Although the pleading is not properly verified, or the verification is defective, a motion to compel a party to verify the pleading will be denied. [Balph v. Husson, 51 Super. 515.) ARTICLE IV. CONSTKUCTION OF PLEADINGS. SECTION 1. Eules of construction. 3. What deemed admitted. Sec. 1. Rnles of Construction. The allegations of a pleading must be liberally construed, with a view to substantial justice between the parties. (Co. Civ. Proc. § 519). It was formerly the settled rule, to con- strue 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 liberally construed, with a view to sub- stantial 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 ac- tion. The construction of doubtful or uncertain allegations 270 PBACTICE. in a pleading, wliicli enables a party by thus pleading, to throw upon his adversary the hazard of correctly interpret- ing 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 to the pleader. {Clark V. Dillon, 97 N. Y. 370). As to matters of form, however, that construction is to be taken which is most fav- orable to the pleader. [Proidy v. Whipple, 10 Week. 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. [MaloneY. Sherman, 49 Super. 530). If the pleader omits to allege a fact material to his cause of action or defence, the fact thus omitted is presumed not to exist. ( Cruger v. The Hudson River Bailroad Co., 12 N. Y. 190, 201). The meaning of a pleading must be found within the pleading itself [Weeks v. Keteltas, 1 N. Y. St. Eep. 96), and it can- not be inferred from the intention of the pleader sought in facts outside of the paper. [Gould v. Glass, 19 Barb. 179). If the pleading is susceptible of two meanings, that con- struction must be taken which will support the pleading, if the words are susceptible of it. [Olcott v. Carroll, 39 N. Y. 436). A verified pleading must be construed if pos- sible, so that all parts of it will harmonize. [Ryle v. Har- rington, 4 Abb. Pr. 421). Any general statements in a pleading, which are intended to be qualified, must be taken with such qualification. [Page v. Boyd, 11 How. Pr. 415). Notwithstanding the rule laid down in section four hundred and ninteen, the judgment must still be secundum allegata et probata. The party setting up a cause of action in tort, can- not at the trial, convert it into a cause of action on contract. [Neudecker v. Kohlberg, 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 [St. John v. Northrup, 23 Barb. 25 ); or by motion. ( Wall v. Buffalo Water Works, 18 N. Y. 119). Even on demurrer, a pleading will not be deemed insufficient, for the reason that the facts are imper- fectly, or informally averred, or that the pleading lacks GENERAL EEGULATIONS IN EEGAED TO PLEADING. 271 definiteness and precision, or that the material facts are only argumentatively alleged. The complaint is deemed to allege whatever can be implied from the allegations therein, by fair and reasonable intendment, 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, averments 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). A liberal interpretation must always be given to the pleading, to sustain verdicts and judgments, when the par- ties have not been misled or injustice done. (Graves y. Waite, 59 N. T. 156, 162). AVhere 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 averments, or the whole tenor of the pleading, that such was the sense in which it was employed. [Cook v. Warren, 88 N. T. 37), A restricted meaning will never be given to words susceptible of a more liberal construc- tion, unless the whole tenor of the pleading shows that the language was used in a restricted sense, when such restrict- ed sense would exclude a defence on the merits. ( Clare 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. (Eoussel v. St. Nicholas Ins. Co., 41 Super. 279; Traver v. Mghth Av. R. B. 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. T. 119). If it is doubtful on the wording of an answer, whether it sets up a counterclaim or payment, it will be construed as alleging payment, and not as a coun- terclaim. {Bates V. Eosekrans, 23 How. Pr. 98). Con- clusions of law will not be regarded. (Art. 1, Sec. 2, ante). If the place where a thing occurred is material, an am- biguous allegation regarding it, will be construed most 272 PBACTIOE. strongly against the pleader. [Beach v. Bay State Co., 30 Barb. 433). To determine whether the facts disclose a de- fence, the complaint and the answer will be construed to- gether. {Munger v. Shannon, 61 N. Y. 251). If the nature of the action is doubtful, the prayer for relief may be consulted 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 alter- native relief, to which the plaintiff is not entitled. [Graves V, Spier, 58 Barb. 349.) See. 2. 'What Seemed Admitted. Each material allegation of the complaint, not controverted 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 trav- erse 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 legitimate deduction from the facts [Alamango y. Supervisors of Albany Co., 25 Hun, 551); nor the cor- rectness of inferences drawn from the facts stated; but only the truth of such facts as are alleged in the pleading. {BogardusY. 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). 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 contro- verted. [3fayor of Albany v. Cnnliff, 2 N. Y. 165, 170). Where there is no denial of the allegations of the complaint, but only allegations of new matter inconsistent with it, all GENEEAL REGULATIONS IN EEGAKD TO PLEADING. 273 the facts alleged in the complaint are deemed to be admitted. [Fleischman7i Y, Slern, 90 N. Y. 110, 114). In an action 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 unlaw- fully placed thereon, and concluded by denying the allega- tions oi the complaint, except as heretofore answered. Under this pleading, it was held that the ownership and possession in the plaintiff, of the locus in quo, were admitted by the pleading. {Potter y. 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 y. Feeier, 7 Wend, 301; Fry v. Bennett, 8 Bosw. 200). When- ever a defence is intended as a counterclaim, it shoidd 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 defence, and it is uncertain whether a counterclaim is in- tended, he is not in a position to insist that he has set up a counterclaim, and that the plaintiff has admitted it by -a failure to serve a reply. {Equitable Life Ass. Soc. v. Cuy- ler, 75 N. Y. 511, 514). Where an admission in a plead- ing is alone relied upon by the opposite party to establish a fact, any statement made, in connection with the admission, of another fact, which would nullify the effect of the admis- sion, 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. {Qil- dersleeve v. Landm, 78 N. Y. 609). Whatever is admitted by a pleading cannot be contradicted in a subsequent plead- ing, 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 ad- missions in the pleading, will be set aside. {Ballou v. Parsons, 11 Hun, 602. 18 274 PBACTICE. AETICLE V. COPT OF ACCOUNT. It is not necessary for a party to set forth, in a pleading, 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 account, 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 making 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. (Code 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 Eobt. 681). But in the later case of Barlcley v. Mens, dr Saratoga R. It. 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 Barkley v. The Bens. & Sara- toga R. R. Co., was an action to recover a balance due for a large quantity of wood delivered by the plaintiff 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). The party seeking it must demand a copy of the ac- count, but an order for it is not necessary in the first in- stance. (Dowdney v. Volkening, 87 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, containing the items of services sued for, but not placing a value on any separata GENERAL REGULATIONS IN REGARD TO PLEADING. 275 item, it was held not to be sufficient. [Colivell v. Ludlam, 1 Law Bull. 42). Where a bill of items of payments showed the payments to various persons, and the aggregate amount, but not the separate amount of each payment, 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 ac- count, all the items of the account on each side, both debit and credit, should be given in the copy of the account. [Ca7idee v. Doying, 5 Civ. Pro. Bep. 92). If the account served is not sufficiently definite, the party must move for a further account (^McKinney v. McKinney, 12 How. Pr. 22) ; which he may do at any time before trial, even after a reply has been served. {Yates v. Bigeloio, 9 How. Pr. 186). An order for a further account should contain the points in re- spect to which the further specifications are required. [Kellogg v. Paine, 8 How. Pr. 329). The court may order a more particular statement, in the specification of any item of the account. [Wells v. VanAhen, 39 Hun, 315). The case of Hoff v. Pentz (1 Abb. K C. 228), so far as it holds to the contrary, is overruled. The penalty for a failure to serve an account upon de- mand, is that the party shall be precluded from giving evi- dence of the account. (Code Civ. Proc. § 531). The order that he should be so precluded should be obtained at special term. ( Whitehall & P. B. B. Co. v. Meyer, 16 Abb. Pr. N. S. 34; Moore v. Belloni, 42 Super. 184). These cases hold that it is better practice that a motion should be made at special term, that the party be precluded from giving evi- dence of his account ; but it would seem that it is not abso- lutely necessary, and if the application is, not made there, whether or not evidence shall be excluded, is within the dis- cretion of the judge at the trial. [Horton v. Hanna, 3 Wk. Dig. 192). A party will not be precluded from giving evidence, unless there is a total failure to serve an account. (Schulhoff V. Co-operative Dress Assn., 3 Civ. Proc. Kep 412). 276 PEACTICB. AETIOLE VI. BILL OF PAETICULAES. SECTION. 1. la what cases granted. 3. Application for tlie 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. (Code Civ. Proc. § 531). The power of a court of original jurisdiction, under this section extends to all descrip- tions 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 particularity, than is required by the rules of pleading. [Dwight v. Qermania 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 defence, as well as matters set up as a counter-claim. [Kelsey v. Sargent, 100 N. Y. 602). "Whether or not a bill of particulars shall be granted is always in the discretion of the court. ( Witkowski v. Paramore, 93 N. Y. 467). The action of the court can- not be reviewed in the court of appeals, (id). A bill of particulars can only be obtained by order of the court. [Powers V. Hughes, 39 Super. 482). Its office is to amplify the pleadings, so as to indicate specifically the claim set up, and limit the generality of the pleading, and thus prevent surprise in the trial [Higenbotam v. Green, 25. Hun, 214 ; Gee 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 re- spect to any material issuable fact in the case. [Ball v. Evening Post Pub. 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. Hubbard, 47 N. Y. 428). It is not intended to disclose the evidence GENERAL REGULATIONS IN REGARD TO PLEADING. 277 which is relied upon by the party. [Ball v. Evening Post Pub. Co., 38 Hun, 11). 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 par- ticulars. ( TiUon V. Beecher, 59 N. Y. 176, 183 ; Ball v. EveJi- ing Post Pub. Co., 38 Hun, 11). It will never 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 t. DeJonge, 18 Hun, 405). In ac- tions on money demands consisting of various items, a bill of particulars of the dates and description of the transac- tions, out of which the indebtedness 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 demands arising upon contracts. They are ap- propriate in all descriptions of actions, where the circum- stances are such that justice demands that a party should be apprised 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, be- cause the nature of those actions requires,, that the allega- tions contained in the pleadings should give the party suffi- cient information of the facts, which he is required to meet. But, as we have seen, they will be ordered in such actions whenever necessary. It was held in Or vis v, Dana (1 Abb. N. C. 268), that a bill of particulars would not be granted in an action for libel ; but that case has been over- ruled by the case of Ball t. Evening Post Pub. Co. (38 Hun, 11) ; and it is now held that bills of particulars will be granted in such cases [Gardinier v. Knox,^21 Hun, 509) ; not only as matters of defence, but also as to matters alleged in mitigation. [Daniel v. Daniel, 2 Civ. Pro. Eep. 238). 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. 278 PRACTICE. Sec. 2. Application for the Order. The application must be made by a motion to the court, on notice. {Clegg t. American Newspaper Union, 7 Abb. N. C. 59). It may be had by the defendant before ap- pearance. [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 suspicious circum- stance, and the court would requii'e an excuse for his delay {A^idrews v. Cleveland, 3 Wend. 437) ; but it is question- able whether that rule would now be enforced. In Winchell V. Mariin (14 Wk. Dig. 458), the fact that the defend- ant had delayed to ask for a bill of particulars until the day set for trial, was not held a sufficient 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 particulars 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 made 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. [Gridley v. Gridley, 7 Civ. Proc. Eep. 215); The affidavit should state that the party is ignorant of the matters alleged in the pleading, 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. Germania Ins. Co., 22 Hun, 167). 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 offence or offences charged in the com- plaint, 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. Eep. 215). 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 tho defendants propose to establish the GENEEAL BEGULATIONS IN BEGABD TO PLEADING. 279 material averments in the answer," is wholly insufficient to sustain an order granting a bill of particulars. [Orvis v. Dana, 1 Abb. N. C. 268). See. 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. [Brewster v. Sackett, 1 Cow. 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 peremptory 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 information 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 neces- sary. It should require 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. In an action for con- spiracy, 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. (Hubbard v. Otis, 17 Wkly. Dig. 348). The penalty for disobedience may be inserted in the order. [Dwight v. Germania Ins. Co., 84 K Y. 493, 505). Sec. 4. "Wliat 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. (Stowits v. Bank of Troy, 21 "Wend. 186). The bill need not specify the names of the parties to the action. (Gay v, Cary, 9 Cow. 44). In stat- ing items, it should give their dates, stating the day, if •known, and if not known, the date should be given as par- ticularly as practicable. (Humphry v. Coitleyou, 4 Cow. 54). The amount and general character of each item should also be stated. (Kellogg v. Paine, 8 How. Pr. 329). If an account has been delivered with the pleading, the bill may refer to it without restating it. ( Goodrich ads. 280 PRACTICE, James, 1 Wend. 289). Where an action was brought to recover upon a promissory note, and also upon an account, a,nd 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 of his own claim ; he need not give any offsets or payments in the bill of particulars. ( Williams V. Shaw, 4 Abb. Pr. 209 ; Way Maufg. Co. v. Corn, 5 Law Bull. 81). The bill of particulars 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. {^Chandler v. Stevens, 2 Law Bull, 5). Sec. 5. A Fnrtlier Bill. If the first bill is not sufficient, or does not comply with the order, the court will order a further bill if necessary ; and the order for a further bill of particulars should state the points in which the first was defective. {Kellogg v. Paine, How. Pr. 329). If the party has voluntarily fur- nished a bill of particulars, it is doubtful whether a further bill should be ordered. {Langdon v. Brown, 51 Super. 367). Whether or not a further bill will be ordered is, in every case, discretionary. (^Humphry v. Cottleyou, 4 Cow. 54). It will not be ordered, after the trial of an action is begun before a referee. [Cadwell -v. Goodenough, 2 Eobt. 706). The bill of particulars may be amended after the case is at issue (^Fuller v. Roosevelt, 4 Cow. 144) ; or after a new trial has.been ordered in the action. [Spawn v. Veeder, 4 Cow. 503). A referee may allow a bill of particulars, an- nexed to the pleading, to be amended at the trial. ( Wil- liams 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. Low, 4 Bosw. 337). It is only an am- plification of the pleading, and to be construed as a part of it. [Bowman v. Earl, 8 Duer, 691). It forms no part of the record, however, and the party cannot plead to it. GENERAL REGULATIONS IN REGARD TO PLEADING. 281 {Kreiss v. Seligman, 8 Barb. 489). The evidence in the case, and the recovery of the party, must be limited to the matters set forth in the bill of particulars. [Bowman v. Earl, 3 Duer, 691). If, however, other items are proved without objection, they may be allowed. [Dubois v. D. & H. a Co., 12 Wend. 334; Chadbourney. Del. Lack. & W. R. B. Co., 6 Daly, 215). So, if the defendant prove items of the plaintiff's account, which are not in the bill of partic- ulars, the plaintiff may recover the amount of such items. [Williams v. Allen, 1 Cow. 316). A party will beheld more strictly to allegations in the bill of particulars, 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. Ray, 19 Wend. 530). A party cannot object at the trial, that the bill of particulars is not sufficiently definite. [Barnes v. Henshaw, 21 Wend. 426). A bill furnished voluntarily is equally binding with one fur- nished pursuant to an order of the court. ( Payne v. Sm.Hh, 19 Wend. 122). Sec. Ti Penalty for Disoliedieuce. 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 ap- ply 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 mat- ters 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. Clarke, 87 N. Y. 272). 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. 53 282 PBACTICB. AETICLE Vn. AMENDMENTS OF PLEADINGS. SECTION. 1. Amendments of course. 2. Amendments by leave of the comrt. Subd. 1. — Before trial. Subd. 3. — 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 or de- murrer thereto, is served, or at any time before 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 summons is not amendable of course, under this section. ( Walkenshaw v. Perzel, 1 Eobt. 606 ; Mapes v. Brown, 14 Abb. N. 0. 94). The right to amend once under this sec- tion is absolute. [Cooper v. Jones, 6 Sandf. 699). In the ■exercise of it, the plaintiff is authorized to amend his com- plaint 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 complaint, one or more causes of action of a dif- ferent class, subject only to the restriction that they all be- long 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. Y. Exchange Bank, 42 Barb. 511) ; or may substitute a demurrer for an answer, or vice versa [Carpenter v. Adams, 34 Hun, 429) ; but he cannot set up matter occiirring after the action was begun; that can only be done by supplemental pleading. [Anthony v. Day, 5 GENERAL EEGULATIONS IN EEGAKD TO PLEADING 283 Wkly. Dig. 240). But one amendment of course, is allowed under this section. {Sands v. Calkins, 30 How. Pr. 1). 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). An order extending the time to reply, does not extend the time to serve an amended complaint. {Dawson v. Bogart, 10 Civ. Pro. Rep. 56). Noticing the action for trial, is not a waiver of the right to amend of course. ( Clifton v. Brown, 27 Hun, 231; Duyckinck v. 'iV. Y. Elevated B. B. Co., 49 Super. 244). But it is 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 com- plaint. {Stilwell 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 Wkly, Dig. 529). Adding a verification, is not an amendment under this section {Bishop v. Sullivan, 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). If a party serve a demurrer and answer to the whole complaint on the same paper, a subsequent service of the same answer, omitting the demurrer, is not an amend- ment of the answer. {Hoioard v. Michigan South. B. B. Co. 5 How. Pr. 206). An amended complaint supercedes the original. {Sands v. Calkins, 30 How. Pr. 1) . But the original pleading is still admissible in evidence. {Fogg v. Edwards, 20 Hun, 90). The amendment of the complaint relates to the beginning of the action, and prevents the running of the statute of limitations against a cause of action not in the orig inal complaint. {Ward y., 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 284 PEACTICE. 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. (Code of Civ. Proc. § 543). An amendment of the pleading defeats a motion to make it definite and certain [Spuyten Duyvil B,. M. Co. v Wil- liams, 1 Civ. Proc. Kep. 280) ; and an amendment of the answer defeats a motion for judgment on account of the frivolousness of it [Burrall v. Moore, 5 Duer, 654") ; but where an action 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 changing the place of trial to the county in which the plaintiff 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. Bidgwood Ice Co., 38 Hun, 293). It was held however in the case ot Moulton v. Beecher, (1 Abb. N. C. 193), that where the defendant had moved to change the place of trial, upon the ground that an impartial trial could not be had in the county where the venue was laid, an amendment of the pleadings, changing the place of trial to another county, defeated such motion. An amendment of course, supercedes a notice of trial. {Osirander v. Conkey, 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. Broicn, 27 Hun, 231). If a party refuse to re- ceive an amended pleading, and proceed as though it had not been served, he does so at his peril, if he fail to estab- lish that the pleading was served in bad faith and for pur- poses of delay. [Vanderbilt v. BleeJcer, 4 Abb. Pr. 289). . Seo. 2. Amendments by Iieave of the Gonrt. Sub-division 1. — Befoee Trial. The court may, at any stage of the action, in furtherance of justice, and on such terms as it deems just, amend any pleading, by adding or striking out the name of a person as GENERAL REGULATIONS IN REGARD TO PLEADING. 285 a party, or by correcting a mistake in the name o£ a party, or a mistake in any other respect, or by inserting an allega- tion material to the case. (Code Civ. Proc. § 723). The power given to the court by the code, is exceedingly broad and comprehensive, and includes the right to make almost any amendment which may be reqiiired in furtherance of justice. It was held by two judges in the case of Eobertson 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, except such as was given by the statute. In that case, and the case of Diamond v. Williams- burgh Ins. Co. (4 Daly, 494), it was held that it was not within the power of the coui't, to direct an amend- ment of the complaint, which should set up a new cause of action. The same thing was also held in the case of Van Syckels v. Perry (3 Bobt. 621), at a special term of the superior court. But in Byrnes v. Dunn (6 Wkly. Dig. 140) , it was held, that at the special term there was no limit ■to the power of amendment, if a sound discretion was exer- cised. 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),' 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. It is believed that the cases have established the power of the court to allow amendments 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 performance of a contract, to an action for damages for the failure to perform 286 PRACTICE. it [Beck V. Allison, 56 N. Y. 366, 373) ; or from an action o£ conversion to an action of replevin [Dows v. Green, 3 How. Pr. 377) ; or from an action for an injunction to one to re- cover 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 negli- gence. {Beed v. Mayor, etc., 97 N. Y. 620). But the court has not power to allow an amendment by bringing in new parties, against whom the statute of limitations has. run [Shaw v. Cock, 12 Hun, 173; 78 N. Y. 194); nor by striking out the name of one party as defendant, and insert- ing the names of others. (iV. T. 8. M. Milkpan Ass'n v. Bemington Agricultural Works, 89 N. Y. 22). It is set- tled also that the court has power to allow an amendment of an answer by setting up anew defence {^Union Nafl Bk. V. Bassett, 3 Abb. Pr. N. S. 359; Diamond v. Williams- burgh Ins. Co., 4 Daly, 494) ; or a counterclaim. (Beards- ley 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. B. B. Co. v. Tibbits, 11 How. Pr. 168) ; although after a new trial has been ordered. (Schreyer v. Mayor, etc., 39 Super. 277). The allowance of amendments is almost a matter of course. (Gilchrist v. Gilchrist, 44 How. Pr. 317). No discrimina- tion will be made against unconscionable defenses, so called, such as usury, or the statute of limitations. (Barnett v. Meyer, 10 Hun, 109). The power 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 diligence. (Gowdy V. Poullain, 2 Hun, 218). 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. Sheehy, 2 Wkly. Dig. 589). A public corporation will not be held to as strict diligeence upon such application, as an individual. (Lunney v. Mayor, 14 Wkly. 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 ex- GENEKAL REGULATIONS IN EEGAED TO PLEADING. 287 cnsed. {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 Wkly. Dig. 191) ; and some excuse must be given for the existence of the defect. {Har- rington V. Slade, 22 Barb. 161). After appearance, the ap- plication 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 con- fined 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). Ordir narily the court will not examine to see whether the plead- ing is good, if it is not clearly frivolous {Mitchell v. Allen, 25 Hun, 543) ; or whether it can be established by the proof. {Muller v. Muller, 21 Wkly. Dig. 287). But if with the amendment, the pleading would be clearly demur- rable {Hoffman v, Hoffman, 35 How. Pr. 384)-; or if it is- made clear that it will not be sustained by the proof, the amendment will not be allowed. {Muller v. Muller, 21 Wkly. Dig. 287). Sub-division 2. — At the Tkial oe Heaeing. 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. §1081; Bullock v. Bemis 4:0 Hun, 623). The directions for exercising this power are found in sections five hundred and thirty-nine and five hundred and forty of the Code of Civil Procedure, 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 maintaining his action or defence upon the merits. If a party insists that he has 288 PRACTICE. " been misled, tlie fact, and tlie particulars, in which he has- been misled, must be proved to the satisfaction of the court. Thereupon the court may, in its discretion, order the plead- ing to be amended, upon such terms as it deems just. § 540: Where the variance is not material, as prescribed in the last section, the court may direct the fact to be found according to the evidence, or may order an immediate amendment without costs. These sections contemplate only a variance at the trial, between the proof and the allegations set out in the com- plaint [Egert v. Wicker, 10 How. Pr. 193) ; and they pro- vide a complete system for the guidance of the court in all such cases. {Catliny. Gunter, 11 K Y. 368, 374). The power is given to the court at the trial by section five hundred and thirty-nine allow 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). Subject to this limitation, the pleading may be amended at the trial by inserting new allegations (Code of Civ. Proc. § 723), not only so as to conform it to the proof, but by inserting material allegations as to which no proof has been given (Smith v. Bathbun, 75 N. Y. 122) ; by striking out immateral 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. 493) ; or by increasing the amount of damages claimed in the com- plaint. {Knapp V, Roche, 62 N. Y. 614). Although there may be a variance between the proof and the complaint, if it is immaterial, the court is required by section five hun- dred and forty of the Code of Civil Procedure, to disregard it, or order an immediate amendment. A vari- ance is always immaterial unless it has actually misled the adverse party to his prejudices in maintaining his action or defence upon the merits. (Code Civ. Proc. § 539). It is not left to the judgment of the court whether in a given in- stance the variance was calculated to mislead, and from this to hold that it did mislead ; but whenever it is alleged that a party has been misled, that fact must be proved to the sat- GENEEAL KEGULATIONS IH EEGAED TO PLEADING. 289 isfaction of the court, and the proof must show in what res- pect he has been misled, and thereupon the court may order the pleading to be amended upon such terms as may be just. {Catlin V. Gunter, 11 N. Y. 374; Code Civ. Proc. § 539; Place V. Minster, 65 N. Y. 89, 99). The granting or re- fusing the application to amend upon the trial, is entirely discretionary with the tribunal to which it is made, and no appeal lies, if it is within the power of the court or referee {Rosenwald v. Hammerstein, 12 Daly, 377) ; unless his re- fusal is based on the want of power, in which case it is re- viewable on appeal. ( Oregon S. S. Co. v. Otis, 27 Hun, 452). But an order of the court or referee, amending a pleading at the trial, can not be reviewed by motion. {Quimby 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 application may be made to the court at special term, without leave of the referee, during an ad- journment of the trial. {Bullock Y. Bemis, 40 Hun, 623). Sub-division 3. — Aftee Teial. No amendments of pleading will be allowed after trial, ex- cept 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; Volkening 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; narrower v. Heath, 19 Barb. 331). The general term may, upon appeal, amend the pleading, to conform to the facts proved {Harris V. Tumbridge, 88 N. Y. 92) ; and so may the court of ap- peals, in order to sustain the judgment. {Pratt v. Hudson River B. B. Co., 21 N. Y. 305). 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 defence, as alleged, or the nature of the 19 290 PRACTICE. cause of action. [Southwick v. First National Bank, 84 N. Y. 420, 428). Tiie court, after verdict, cannot allow an amend- ment of the complaint by increasing the amount of damages demanded, without ordering a new trial {^Pharis v. Gere, 31 Hun, 443) ; but in Schiiltz v. Third Avenue E. R. Co. (89 N. T. 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 recov- ery 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. Sapplemental 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, alleg- ing 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 competent 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 supplemental pleading, either in addition to, or in place of, the former pleading. In the former event, if the application is granted, a provisional remedy, or other proceeding already taken in the action, is not affected by the supplemental 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. (Code Civ. Proc. § 544). Supplemental pleadings can never be served without leave of the court. (^Spears v» Mayor, 72 N. T. 442). The application for leave must be upon notice. (^Fleischmann v. Bennett, 79 N. T. 579). Notwithstanding the mandatory language of sec- tion five hundred and forty-four of the code, it is the duty of the court upon the application, to consider all the circumstances, and to grant or refuse it, as may GENEEAL REGULATIONS IN KEGAED TO PLEADING. 291 be just or proper in the particular case, (id.) The exer- cise of this discretion is reviewable by the general term, but not by the court of appeals, (id). 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, 287). Laches is always a good ground for denying the application. {McDonald v. Davis, 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. 238, 237). In passing upon an application, the court will not usually examine whether the facts constitute a cause of action, or defence, unless the pleading is clearly bad. [Latham v. Richards, 15 Hun, 129; 'Mitchell v. Allen, 25 Hun, 548; Tift v. Bloomberg, 49 Super. 323). The ob- ject of the supplemental pleading is to set up facts consist- ent with and in aid of the original pleading ( Tiffany v. Bowman, 2 Hun, 648) ; 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). Facts occurring since the commencement of the action cannot be proved, unless so set up. (Hall v. Olney, 65 Barb. 27). If the original complaint 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. Richards, 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 sub- sequently occurring [Stanton v. Swann, 10 Civ. Pro. Eep. 12) ; or shift the ground of his action to such subsequently occurring facts [Muller 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. [Bostwick v. Menck, 4 Daly 68; Tiffany v. Bowman, 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. 292 PEACTICE. [Miller v. Johnson, 10 0. P. E. 205.) It is, however, no an8wer, to the application that the new facts furnish 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. Bichards, 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 defence to the cause of action {Hoyt V. Sheldon, 4 Abb. Pr. 59), or which tend to mitigate the plaintiff's damages. [Cothran v. Hanover National Blc, 40 Super. 401). For instance, the defendant has been permitted to set up his discharge in bankruptcy [Hadley V. Boehm, 1 Hun, 304) ; or an accord and satisfaction [Christy v. Perkins, 6 Daly 237) ; or a release of the cause of action [Mitchell v. Allen, 25 Hun, 543) ; or a payment by one joint debtor [Brown v. Richardson, 7 Kobt. 57) ; if such defences 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. [Strong v. Strong, 28 How. Pr. 432). But a supplemental answer will never be allowed, to enable the defendant to set up a technical defence, in order to defeat a just claim. [Holyoke v. Adams, 59 N. Y. 233). A supplemental reply may be allowed whenever a proper case is made. [Ormsbee v. Brown, 50 Barb. 436). The supplemental pleading may be in addition to, or in place of, the original pleading. (Code Civ. Pro. § 544). If it is in addition to the original pleading, the first pleading is stUl a part of the record, and the two are to be read together, and are to be regarded as one pleading. [McBobert v. Pooly, 1 N. Y. State Eep. 725). Sec. 4. Terms of Amendmeiit. 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 ex- penses 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 GENERAL REGULATIONS IN REGARD TO PLEADING. 293 rule furnislied by the adjudications, whidi excludes the cir- cumstances o£ each particular case from consideration on such an application. The general rule is, that in the allow- ance of amendments which change 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. [Tooker v. Arnoux, 1 Law Bull. 54). 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), where 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 Nanetty v. Naylor. (2 Law BuU, 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 & Bos- ion B. R. Co. V. TibhUts, 11 How. Pr. 168). 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, plaintiff was allowed to amend on payment of the defendant's costs, from and including the second trial. [Marsh v. McNair, 40 Hun, 216). 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 de- sires to discontinue his action, it is proper to require from the defendant a waiver of all costs accruing after the orig- inal answer was served. [Shanks v. Bae, 19 How. Pr. 540). The usual terms of granting amendments at the trial. 294 PEACTICE. or after the trial is begun, are the payment of costs of the term, and trial fee, and the witness fees. In Smith v. Eath- hurn, (75 N. Y. 122), the referee, upon permitting an amendment of the complaint inserting material allegations, imposed as a condition, that the defendant be permitted to answer or demur to it; and the court held that such condi- tion 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. Havemeyer, 44 Super. 170). If the party applying for the amendment, avails himself of it, he cannot complain of the terms imposed. (^Smith v. Bathbun, 75 N. Y. 122). A party cannot appeal from that part of the order imposing the conditions. If he appeal at all, it must be from the whole order. (^Havemeyer v. Havemeyer, 4:4: Super. 170) . The terms upon which supplemental pleadings are granted are always in the discretion of the court. (Code Civ. Proc. § 544). They must always be imposed by the court. [Stauntonx. Swann, 10 Civ. Pro. Eep. 12). In the imposition of terms, the rules herein stated as applying to ordinary amendments, are applied to applications to serve supplemental pleadings. The court may require as a con- dition of serving a supplemental answer, that the defendant shall waive all other defences than that set out in his answer. [Bate v. Fellowes, 4 Bosw. 638). In the case of Wilcox V. Daggett (15 Wkly. Dig. 208), the imposition of a trial fee was held proper. In Mahie'x. Adams (1 Law Bull. 65), where the trial had been concluded, and the de- cision of the referee had been made, it was held proper to impose, as a condition of filing a supplemental answer, the payment of an additional allowance ; but if the trial was still pending, it was held that the court had no power to im- pose such terms. [Jenkins y. Adams, 1 Law Bull. 65). AKTICLE YIII. FEIVOLOUS PLEADINGS. If a demurrer, answer, or reply is frivolous, the party pre- judiced thereby, upon a previous notice to the adverse party, GENERAL EEGULATIONS IN BEGAED TO PLEADING. 295 of not less than fiye days, may apply to the court, or to a judge of the court, for judgment thereupon, and judgment may be given accordingly. If the application is denied, an appeal can not be taken from the determination, and the denial of the application does not prejudice any of the sub- sequent proceedings of either party. Costs, as upon a motion, may be awarded upon an application pursuant to this section. (Code 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). Judgment can not be given upon a counterclaim under this section [JFettretch v. MeKay, 41 N. Y. 426) ; nor upon a reply denying a coun- terclaim. {Wood V. May 07% 8 Abb. Pr. N. S. 467). It is no objection to the granting of the motion under this section, that the pleading is verified. {Heed 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 frivolous answer is one, which, although it may be true, controverts no material allegation of the complaint, and is so clearly bad that the defect ap- pears upon a mere inspection, and indicates that it was in- terposed in bad faith. {Cook v. Warren, 88 N. Y. 37; Carpenter r. Adams, 34 Hun, 429). If there is a decision in point against the pleading, it will be held to be frivolous {People V. McCumber, 27 Barb. 632, 638) ; but not when the question is doubtful. {Chauncey v. Lawrence, 15 Abb. Pr. 106 ; Chemical National Bank v. Carpentier, 9 Abb. N. C. 301). The motive with which the pleading is interposed is not important. The only question is whether it is clearly bad upon its face. {Hecker v. Mitchell, 6 Duer, 687). To sustain an answer, it is not necessary that the defence be pleaded in proper form; if a defence is even shadowed forth in the pleading, the answer is not frivolous. {Kelly V. Barnett, 16 How. Pr. 135). The pleading will be sus- tained, if a material issue is presented, although there may be allegations in the pleading which are immaterial {Mun- ger v. Shannon, 61 N. Y. 251) ; or if a fact necessary to enable the plaintiff to recover is denied, even if that fact is 296 PEACTICE. not alleged in the complaint (Lord v. Cheesborough, 4 Sand. 696) ; altliougli 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 can not order judgment under this section. [Strong v. Sproul, 53 N. Y. 497). Judgment can never be granted because of the friv- olousness 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. Miller, 5 How. Pr. 247 ; Beal V. Union Paper Box Co., 4 Civ. Proc. Eep. 18) ; ex- cept 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. [Darrow v. Miller, supra). A notice of motion must ask for judgment because of the f rivolousness of the pleading. If it asks sim- ply to strike out the pleading because it is frivolous, no other relief can be given. [Rea v. Washington Mutual Ins. Co. 6 How. Pr. 21). It may be made, although twenty days have not expired since the service of the defective pleading. [Ross V. Boss, 25 Hun, 642). If it is so made, and an amended pleading is served, the motion must be denied. [Burrall v. Moore, 5 Duer, 654). A motion to strike out part of a pleading as sham, and for judgment upon the re- mainder as frivolous, may be joined. [Adams v. McPartlin, 11 Abb. N. 0. 369). On granting the motion, the court may give leave to amend on terms [Snedecker v. Bernard, 4 Law. Bull. 31; Fales v. Hicks, 12 How. Pr. 153), if an affi- davit of merits is presented by the defendant, but not other- wise. [Bank of Lowville v. Edwards, 11 How. Pr. 216). When judgment is ordered on account of the frivolousness of the pleading, the pleading itself is not struck out, but re- mains 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 , y. ^ dams, 34 Hun, 429). Where a motion has been granted, and judgment has been orderedj and an appeal is taken, the order should be affirmed if the pleading is demurrable, although the court may be of the GENERAL REGULATIONS IN REGARD TO PLEADING. 297 opinion that it is not frivolous. {Wesley v. Bennett, 5 Abb. Pr. 498; Martin t. Kanouse, 2 Abb. Pr. 327). ARTICLE IX. SHAM PLEADINGS. A sham answer, or a sham defence may be stricken out by the court, upon motion, and upon such terms as the court deems just. (Code Civ. Pro. § 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 K Y. 281). Part of an answer, or part of a defence cannot be stricken out, under this section. [Collins y. Cog gill, 7 Eobt. 81; Winslow v. Ferguson, 1 Lans. 436). But, in the case of Sherman v. Boehm (15 Abb. K 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 addressed to the same cause of action, might be stricken out as sham. A counterclaim can not be stricken out under this section. [Briggs v. Freedman, 9 Civ. Pro. Eep. 73). Nor can a demurrer. (Kainy. Dickel, 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 only of knowledge or information sufficient to form a belief [Boby v. Hallock, 5 Abb. N. C. 86) ; and although the defendant on examination before trial has admitted that it is false. [Shulize v. Bodewald, 1 Abb. N. C. 365 ; Neuber- gery. Webb, 24 Hun, 347). But in Sherman v. Boehm (15 Abb. N. 0. 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 constituting the plaintiff's first cause of ac- tion," might be stricken out as sham. It is donbtful, how- ever, whether this decision can be sustained in view of the cases above cited. A defence 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 char- acteristic of a sham defence is its undoubted falsity; a mere 298 PRACTICE. formal defence is sometimes designated as a false defence. The words "sham" and "false" applied to such a defence signify the same thing. Neither term necessarily includes the idea of an artful construction of the plea, or doubt as to the legal character of the defence upon its face. The de- fence may be entirely clear in form, but nevertheless sham for the sole reason that it is. false. {^People v. McCumber, 18 N. Y. 315, 320, 321). The essential element of the sham defence is its falsity. ( Winslow v. Ferguson, 1 Lans. 436). The power to strike out such a defence extends only to' such affirmative defences, as are not verified by the oath of the defendant, or other equivalent evidence. ( Waylcmd V. Tysen, 45 N. T. 281). 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 McCarty v. O^Donnell (7 Eobt. 431), it "was held that the answer should not be stricken out unless the defen- dant 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 pos- sessing knowledge ; or the answer denies knowledge, informa- tion, or belief of facts, presumptively within the defendant's knowledge, and the motion is made on papers tending to show that he has knowledge, and he files no opposing papers. Wher- ever the falsity clearly appears, the answer may be stricken out for that reason alone, (id). Where from circumstances occurring after the answer has been served, it becomes false it may be stricken out as sham; as where the answer pleaded another action pending, which was afterwards dis- continued. (Clark V. Clark, 7 Eobt. 276). A verified complaint alone is not sufficient proof of the falsity of the answer upon such a motion. {Kellogg v. Baker, 15 Abb. Pr. 286). The fact that the defendant believes the answer to bfe true, is not an answer to the application. (Roome v. Nicholson, 8 Abb. Pr. N. S. 348). The answer will not be struck out because it is not properly framed, if it states facts which, properly pleaded, might be a defence (Struver v. Ocean Ins. Co. 2 Hilt. 475) ; nor if there is upon the plead- GENERAL REGULATIONS IN REGARD TO PLEADING. 299 ing a slight chance of the defendant's success. {Keifer v. Thomass, 6 Abb. Pr. N. S. 42). In an action upon a promis- sory note, where the answer admitted the making of the note, but averred that after its deliYery it was 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. Vosburgh, 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 affi- davit of merits. [Munn 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 afterwards be stricken out as sham. {Mussina v. Stillman, 13 Abb. Pr. 93). The order should simply strike out the answer {Potter v. Carreras, 4 Eobt. 629) ; and the plaintiff may then enter judgment as upon failure to answer. {DeForest v. Baker, 1 Abb. Pr. N. S. 34) AETICLE X. IRRELEVANT, REDUNDANT AND SCANDALOUS MATTER. Irrelevant, redundant or scandalous matter contained in a pleading, may be stricken out, upon the motion of a per- son aggrieved thereby. Where scandalous matter is thus stricken out, the attorney whose name is subscribed to the pleading may be directed to pay the costs of the motion, and his failure to pay them may be punished as a contempt of the court. (Code Civ. Proc. § 545). This section does not afford a substitute for a demurrer. {Bobbins v. Palmer, 5 Wkly. Dig. 537). The pleading is irrelevant, when the matter which it sets forth has no bear- ing 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. {Jeffras v. McKillop & Sprague 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 miti- 300 PRACTICE. gation of the amount of damages, in an action for libel {Jeffras v. McKillop & Sprague Co., 2 Hun, 351) ; or if it is material upon the question of costs ( Van Rensselaer V. Brice, 4 Paige 174) ; it is not irrelevant. The true test of relevancy is to inquire whether the averments tend to constitute a cause of action or defence ; if they do, they are not irrelevant. [Dovan y. Dinsmore, 33 Barb. 86). "Ke- dundant " and " irrelevant " are not equivalent terms. Matter which is irrelevant is also redundant; but the con- verse is not true. A needless repetition of material aver- ments is redundancy, although the facts averred, so far from being irrelevant, may constitute the whole cause of action. (^Bowman v. Sheldon, 5 Sandf. 657). When matter is at- tacked 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. Jewett, 11 N. Y. Leg. Obs. 193). Statements of evidence in the pleading are redundant. ( Wooden v. Strew, 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. ( Town of Essex v. N. Y. & Canada R. R. Co., 8 Hun, 361). Although mat- ter may be clearly redundant, if it does not tend seriously to prejudice the opposite party, 6r encumber the record, it will not be stricken out. The opposite party is not aggrieved by it. (^Younger v. Duffie, 26 Hun, 442). If there may be a remote probability that the matter may, in any way be pertinent, it will be permitted to stand. [Duprai v. Have- meyer, 18 Wkly. Dig. 439). Scandalous matter is that which contains charges of a criminal nature against a party, prejudicial to the character 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 motion, or of its own motion. (Somers v. Torrey, 5 Paige, 54 ; Carpenter v. West, 5 How. Pr. 53). The attorney whose name is put to a pleading containing scandalous matter, is personally liable to the adverse party for the costs of the GENERAL REGULATIONS IN REGARD TO PLEADING. 301 proceeding to expunge it. [Doe v. Greene, 2 Paige, 347). Motions to strike out of any pleading, matter alleged to be irrelevant, redundant or scandalous, and motions to cor- rect a pleading, on the ground of its being so indefinite or uncertain, that the precise meaning or application is not ap- parent, must be noticed, before demurring or answering the pleading, and within twenty days from the service thereof. (General Rule 22). The motion must be made before noticing the case for trial. [Kellogg v. Baker, 15 Abb. Pr. 286). The objec- tion that matter in a pleading is irrelevant or redundant, <5annot be made at the trial. [Smith v. Countryman, 30 N. Y. 655). If time "to plead or otherwise move " has been extended, the motion may be made before the expiration of the extension. [Hammond v. Earle, 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 ihe right. [Brooks v. Hanchett, 36 Hun, 70). If the notice of the motion is not served in time under Kule 22 the opposite party must show it. [Barber v. Bennett, 4 Sandf. 705). The irrelevant and redundant matter should be specified in the notice. [Blake v. Eldred, 18 How. Pr. 240; Baihbun v. Markham, 43 How. Pr. 271). ARTICLE XL INDEFINITE AND UNCERTAIN ALLEGATIONS. Where one or more denials or allegations, contained in a pleading, are so indefinite or uncertain that the precise meaning or application thereof is not apparent, the court may require the pleading to be made definite and certain, by amendment. (Code Civ. Proc. § 546). The motion provided for by this section takes the place of a demurrer for want of form, under the, former practice. [Bathbun v. Markham, 43 How. Pr. 271). The object of the motion is simply to correct the form of the pleading. {People V. Ryder, 12 N. Y. 433). If the statement is so indefinite that the precise nature of the charge is not appar- ent the remedy of the other party to the action is an appli- cation under this section. [Olcott v. Carroll, 39 N. Y. 436). 302 PEACTICE. The motion may also be made under this section, where a party has a right to be informed by the pleading, of the par- ticular facts with regard to matters which are alleged in it. [Spies V. Access Trans. Co. 5 Duer, 662). 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 defence intended to be set up by them, it is not objectionable under this section. (TiUon V. Beecher, 59 N. Y. 176; Brownell v. National Bank of Gloversville, 13 Wkly. Dig. 371). The indefinite- ness must appear upon the face of the pleading, and not by extrinsic facts. [Hoplcins 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 recision, he was compelled to make it definite and certain, under this section. [Faulk v. Kamp, 40 Super. 70). 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. [Brinkerhoff y. Perry, 59 How. Pr. 156, note). "Where the plaintiff alleged that the defendaot guaranteed or promised to pay for goods sold to a third person; he was required to make the complaint definite and certain by alleging which of the two contracts defendant made, the two forms of the obligation being entirely different. [Partridge V. Haley, 20 Wkly. Dig. 320). Where in an action for work, labor and services, the plaintiff alleged that the ser- vices 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. [Gardner v. Locke, 2 Civ. Pro. 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 particular allegations made definite and certain. [People v. N. Y. Juvenile Guardian^ S«oy. 6 Wkly. Dig. 136). If the causes of action or de- GENERAL REGULATIONS IN REGARD TO PLEADING. 303 fences are not stated separately, the remedy is by motion under this section. [Kerr v. Hays, 35 N. Y. 331). Denials can not be amended under this section. (^Hughes v. Chi. M. and St. P. R. E. Co. 45 Super. 114, 122). But where the answer denied each and every allegation in the complaint not herein before 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. {Farnsworth v. Wilson, 5 Civ. Pro. Rep. 179, note). So, where the answer denied each and every material allegation, the defendant was required to make it definite and certain. {Maiiison v. Smith, 1 Eobt. 706). If the allegations sought to be corrected are mere surplusage, the motion should be denied {Davidson y. Sehgman, 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 y. Tillou, 13 How. Pr. 7). The objection that matter in a pleading is indefinite and uncertain under this section, can not be first taken at the trial. {Farmers' & CitsJ' Bank v. Sherman, 33 N. T. 69). 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 IX (ante). The order made upon this motion is appealable to the general term. {Brovmell v. National Bank of Qloversville, 13 Wkly. Dig. 371). CHAPTER X. THE COMPLAINT. ARTICLE I. — What complaint must contain. ARTICLE II.— Statement of facts. ARTICLE III. — Joinder of causes of action. ARTICLE IV.— 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 com- plaint (Code 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 supreme 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, constituting each cause of action, without necessary repetition. 3. A demand of the judgment to which the plaintiff sup- poses himself entitled. (Code 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 substance, on the same THE COMPLAINT. 305 principles as those regulating these 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. (Code Civ. Proc. § 3339). The form and fiction of the old practice is replaced by the substance and truth of the new. The oifice of the complaint is to apprise the adverse party of the exact cause for which be is sued, where and by whom he is sued, and the judg- ment demanded; 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 Proce- dure read " The complaint shall contain " &c. ; and it was held that if the name of the court was inserted in the sum- mons, its omission in the complaint would be disregarded [Van Namee v. Peohle, 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 pro- vided 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 (Code Civ. Proc. § 417), or which the plaintiff designates as the place of trial. (Code 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, that the name of the court sufiiciently appeared. ( Walker v. Hubbard, 4 How. Pr. 154). In actions brought in a local court, such as the New York common pleas, or superior 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 20 306 PEACTICE. in the N. Y. common pleas sufficiently indicates the place of trial. [Leopold Y. Foppenhiemer, 1 C. E. 39). It has been held that an omission of the name of the coui-t, from both summons and complaint, is a fatal objection to the pleading, and that it is a nullity ( Ward v. Stringham, 1 C. R. 118) ; still if it is only omitted from one, and contained in the other, such a defect may be cured by amendment. {Davison v. Powell, 13 How. 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. Grinnell, 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. [Hoichkiss V. Crocker, 15 How. Pr. 336). So the omission of the name of the county from the complaint, is a defect which cannot be cured by being included in the summons, (id). Advan- tage is to be taken of a defect in this respect by motion to set aside the complaint as irregular. [Hall v. Huntley, 1 C. E. N. S. 21, note). Such a defect is not waived by omitting to raise the objection until after the time to answer has expired, or by obtaining orders extending the time to answer. [Merrill v. Grinnell, 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 resides. [Hoichkiss v. Crocker, 15 How. Pr. 336). If an action be in fact local, by reason of affecting real property, 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. [Acker 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 ; un- less the place of trial is changed to the proper county, upon ■ the demand of the defendant, followed by the consent of the plaintiff, or the order of the court. (Code Civ. Proc. § 985.) But the plaintiff may amend his complaint, within the time allowed by section five hundred and forty-two of THE COMPLAINT. 307 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 desig- nated by the amendment, and may be determined as if no change had been made [Moulton y. Beecher, 1 Abb. N. C. 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. (Code. Civ. Proc. § 989.) Sec. 3. Caption— Names of Parties. Under the former Code, it was held that though properly 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 defendant. 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 aftei'wards be designated "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 partnership doing business as common carrier, objection cannot be taken by a person jwoperly made a de- fendant, on the ground that the plaintiff had failed to join with him a person jointly engaged with him in that busi- ness, unless the persons so engaged shall, at least thirty days before the commencement 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. (Code Civ. Proc. § 1945). If the defendant is known by two names, he may be sued by either [Eaglesion v. Son, 5 Eobt. 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 Civil Procedure, a defendant has been designated by a fictitious name, there must be an allegation in the complaint that the real name is unknown. [Gardner v. Kraft, 52 308 PRACTICE. 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 character, this fact should be clearly indicated, either in the caption or the body of the complaint [Smith y. 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. Thompson, 8 Daly 172). The represent- ative character of the party suing or sued is designated by the use of the word "as" or its equivalent. [Stilwell v. Carpenter, 62 N. T. 639). If the words denoting such representative capacity are added directly to the name of the party, they will be regarded as mere descriptio personae. [Hallett V. Harrower, 33 Barb 537.) If the representative 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. Shannon, 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 in- serted before the word administrator; but in the late case of Bennett M. 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 dis- closes 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 re- fuses to join as plaintiff, and how he is interested in the action, the remedy of defendants is not by demurrer for mis- joinder, but by motion to set aside or strike out the com- plaint. [Swift V. Smith, 4 Law. Bull. 87). A mere mis- nomer is a formal error which may be amended before or at the trial, or afterwards [Barnes v. Ferine, 12 N. Y. 18) ; and will be disregarded on appeal [Bank of Havana v. Magee, 20 N. Y. 355) ; and a defendant sued by a wrong name can not move to set aside the proceedings, but advan- THE COMPLAINT. 309 tage of such error must be taken by answer. {Traver v. EigMh Ave. R. B. Co., 6 Abb. Pr. N. S. 46). If the com- plaint differs from the summons as to the parties, it is the complaint which is irregular ( Tutile v. Smith, 14 How. Pr. 395) ; and not the summons. [Allen v. Allen, id. 248). AETICLE II. STATEMENT OF FACTS. SECTION. 1. What facts to be stated. 2. What should not be stated. 3. How facts to be stated. 4. How 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 unneces- sary repetition. Where a complaint sets forth two or more causes of action, the statement of facts constituting each cause of action must be separate and numbered. (Code Civ. Proc. § 483). The very object of the new system of plead- ing, 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 conclusions adopted by the pleader. ( Wright V. Hooker, 10 N. Y. 51). All pleadings should now be literally and absolutely true {People v. McCumher, 18 N. Y. 815, 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. McCaiiley, 9 Abb. Px\ 159), and where jt is so set forth, a motion to compel the plaintiff to elect on which one he will rely, should be granted [Roberts v. Leslie, 46 Super. 76; Fern v. Vanderbilt, 13 Abb. Pr. -72); unless it can be seen that, in consequence of a possible variance between the pleading and the proof, it is necessary to permit the state- ment of one cause of action in several counts. [Blank V. Hartshorn, 37 Hun. 101). It is not a case for de- murrer. [Comstock Y. Hoeft, 1 Law. Bull. 43). But the court will not compel the plaintiff to elect between several causes of action properly pleaded, although it may be prob- 310 PEACTICE. able that on the trial but one cause of action will be pre- sented. [Smith V. Douglass, 15 Abb. Pr. 266; Jones t. Palmer, 1 Abb. Pr. 442). The complaint should state every fact which plaintiff must prove to enable him to maintain his suit, and which defendant has a right to controvert or answer [Allen v. Patterson, 1 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 defense is a conclu- sion 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. Bernheimer, 10 Wkly. Dig. 288 ) . Thus an allegation of revocation of authority to make an award, was held good without alleging notice of the revo- cation, 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 aver- ment 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 conferring jurisdiction [Frees v. Ford, 6 N. Y. 176) ; but the jurisdic- tion of a superior city court in an action or a special proceed- ing brought therein, must always be presumed ; and it is not necessary to state the jurisdictional facts in the complaint; and the want of jurisdiction is matter of defence. (Co. Civ. Proc. § 266). So where no question is raised at the trial, it will be presumed on appeal from such a court, that the court had jurisdiction, unless it appear from the record to have been legally impossible. [Bidwellv. Astor Mut. Ins. Co. 16 N. Y. 263). Whatever may be necessary to prevent sur- prise at the trial, or to protect the parties from injustice or fraud, should be stated. But pleadings are not required to give all the details of the transactions to which they relate; THE COMPLAINT. 311 if they clearly apprise the parties of the precise nature and extent of the charge, and enable them to prepare for trial, Jiothing more can be required. {Sloman v. Schmidt, 8 Abb. Pr. 5). See. 2. "Wliat Should not be Stated. None but material and issuable facts should be pleaded ( Williams \. 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 defence. The fundamental provision of the code, that the complaint must state the facts that constitute the cause of action, involves this rule ; it is therefore sufficient if the plaintiff state those facts only which constitute his <;ause of action, and not anticipate or negative a possible -defense of the adversary (Sands v. St. John, 23 How. Pr. 140), as by alleging facts or circumstances to avoid the statute of limitations, (id; Butler v. Mason, 5 Abb. Pr. 40). Where by statute, or by the code, it is expressly de- clared what shall be a sufficient pleading of any particular cause of action or fact, it is unnecessary to plead any fur- ther or additional facts. (See ante. Chap. IX, Art. 1, sec- tion 5, where this subject is treated in reference to all pleadings). Sec. 3. Ho-nr Facts to be Stated. Sub-division 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 constituting each cause of action without unnecessary repetition. It would seem that this alone would be sufficient 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 constitute this or that cause of action, may determine the right to recover. [Van Leuven v. Lyke, 1 N. Y. 515). Thus, when an infant hired a horse to go a fixed distance, and wrongfully went further, in an action of tort, infancy 312 PRACTICE. would be no defense. {Fish v. Ferris, 5 Duer, 49). In WaUer 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 com- plaint states a cause of action for tort, it cannot, on the trial, be converted into one on contract. [Neudecker v. Kohlberg, 81 N. Y., 296). Where the complaint states two causes of action, one good and one bad, the latter doen not invalidate the complaint, but may be treated as surplusage. [Boy/e v. City of Brooklyn, 71 N. Y. 1). Allegations in a complaint should be consistent with each other ; and so it is the estab- lished 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 , Code 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 recovery, may BO be framed as to meet the contingency of the trial. [Ta/cott r. Van Vechten, 25 Hun, 565)., Where a party appears 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 objection thereto is specific- ally raised. ( Wetmore v. Porter, 92 N. Y. 76). No greater particularity is required than the nature of the thing pleaded will conveniently admit ; and less particularity is required, when the facts lie more in the knowledge of the opposite party than of the party pleading. {Nellis v. DeForest, 16 Barb. 61). Thiis a policy of insurance in the possession of the opposite party, may be described in a general way. (Id). Sec 4. How Facts to be Stated in Certain Cases. Account Stated. If a party sue upon an account stated, he must allege that the account has been balanced and ren- dered, with the assent on the part of the defendant, either express or implied, to the balance. ( Volkening v. DeGraff, THB COMPLAINT. 813 81 N. T. 268). The material allegations are: 1, that the plaintiff and defendant came to an accounting together ; 2, on such accounting defendant found indebted to the plaintiff ; 3, which defendant promised to pay ; 4, and has not paid. What constitutes an account stated, is a question of law. {Lockwood V. Thome, 11 N. Y. 170). An averment that one party made a statement of account, which he delivered to the other party, who made no objections to it, is not an aver- ment that an account was stated, but at most is only evidence tending to show one. [Emery v. Please, 20 N. Y. 62. ) It is not necessary for a party to set forth the items of the account alleged in his complaint (Code Civ. Proc. § 531) ; but if he does not, the adverse party has a right to demand a copy of the account. (See Copy of Account, Chap. IX ante. ) Accounting. In an action for an accounting between partners, a complaint which sets up a partnership, a dissolu- tion, the existence of unsettled accounts, and a balance in favor of the plaintiff, and demands an accounting and judg- ment for the balance, is good. (Ludington v. Taft, 10 Barb. 447). In an action against an attorney for an accounting of moneys collected, the relation of the parties may be alleged, and the collection of divers sums from divers par- ties. [West y. Breioster, 1 Duer. 647). A prior account to be an effectual bar to an action for an accounting, must be pleaded. [Derby v. Yale, 13 Hun. 273). Assault and Battery. The material allegation is that the defendant assaulted and beat plaintiff. The complaint may state the business and employment of the parties, and the object and intent of the assault, together with a statement that it caused plaintiff to be ridiculed ; and although these allegations are not necessary to sustain his action, they are material on the question of damages, and may be proved. [Boot V. Foster, 9 How. Pr. 37). A special injury must be alleged. [Stevens v. Rodgers, 25 Hun, 54). Assignee. A general averment that plaintiff was ap- pointed assignee in bankruptcy is a suflficient allegation of the character in which the plaintiff maintains the action ( Wheelock v. Lee, 15 Abb. Pr. N. S. 24) ; but in an action 314 PRACTICE. where the plaintiff described himself as " Butterfield, assignee of D. & Co." it was held that the action was brought in his individual capacity. [Butterfield t. Macomber, 22 How. Pr. 150). Banks. A banking association organized under the gen- eral act may sue or be sued in the name of its president, or in its corporate name [East River Bank v. Judah, 10 How, Pr. 135; chap. 409, laws of 1882, § § 59, 60) ; but if in the name of the president, the allegations must be that the cor- poration — not the plaintiff or defendant — did this or that, {Belafleld v. Kinney, 24 Wend. 345). Bills and Notes. A description of the bill or note sued upon is sufficient, without an averment of the consideration, [Underhill Y. Phillips, 10 Hun, 591), It is sufficient for the plaintiff to allege that he is the holder and owner of the note sued upon, and a complaint thus worded, will imply that he owns the instrument, in some legal manner of deriv- ing title [Mechanics' Bank v. Straiton, 36 How. Pr. 190) ; and an allegation that the plaintiff became the owner of the note set out, by purchase, was held sufficient on de- murrer. [Prindle v. Caruthers, 15 N, T. 425). An omis- sion to allege the facts, which show a right of property and possession in the plaintiff, is not cured by an averment in the answer denying ownership in the plaintiff. [Sco field v. Whitelegge, 49 N. Y. 259). An allegation that a note "for value received, lawfully came to the possession of these plaintiffs," is a sufficient allegation of title in plaintiffs [Lee V. Anslie, 4 Abb. Pr. 463) ; and an allegation that the plaintiff is now the " bona fide holder and owner," without showing how he acquired such ownership, is sufficient [Holstein v, Rice, 15 How, Pr, 1) ; so an allegation that the instrument was delivered, endorsed, transferred, or assigned to the plaintiff, implies that he is the owner and holder [Mitchell y. Hyde, 12 How. Pr, 460; Farmers'' & Mechanics' Bank v. Wadsworth, 24 N. T. 547) ; but an allegation that ihe note was endorsed by the payees, without alleging that it was delivered to the plaintiffs, is not sufficient upon de- murrer [Gurnee v. Beach, 40 Hun, 108) ; and where owner- ship is once shown in the plaintiff, its continuance is THE COMPLAINT. ' 315 presumed and need not be alleged [Van Rensselaer v. Bonesteel, 24 Barb. 365 ) ; so, where a note is alleged to have been made to plaintiff, an allegation that he is the owner and holder is unnecessary- [Keieltas v. Meyers, 19 N. Y. 231) ; so also, if an endorsement to plaintiff is alleged. [Conn. Bank r. Smith, 9 Abb. Pr. 168; 17 How. Pr. 487). If however, it is alleged that the cause of action accrued to some other persoBi than the plaintiff, the complaint must show how the plaintiff became the owner, whether by pur- chase, operation of law, or how otherwise, and the facts should be stated [Thomas v. Desmond, 12 How. Pr. 321), if by assignment, the complaint should state that fact; but need not state whether there was any consideration, nor whether it was in writing, or by parol. [Horner v. Wood, 15 Barb. 371; Vogel v. Badcock, 1 Abb. Pr. 176). A complaint on a non-negotiable note, to charge one who ias written his name on the back of it, must allege that he did so with the intent to become liable as maker or guar- antor (Cawletf V. Costello, 15 Hun, 303); and where the ■complaint does not allege that it was made payable to bearer or order, it will on demurrer, be deemed non-negotiable, (id). As against an endorser, an averment that the note was presented to the maker at maturity for payment, and payment thereof demanded, but the same was not paid, of all of which due notice was given to the endorser, is a suffi- cient averment of presentment, refusal and notice. [Spencer V. Roger's Loco. Works, 17 Abb. Pr. 110). Facts excus- ing notice must be alleged, or evidence of such facts will not be received. [Schultz v. Depuy, 3 Abb. Pr. 252). Bonds. In actions on bonds, for a breach of any condition other than for a demand of money, or for any penal sum, for the non-performance of any covenant or written agree- ment, the complaint must state the specific breach for which the action is brought [Bostwick v. Van Voorhis, 91 N. T. 353) ; as in an action on an official bond ( Western Bank v. Sherwood, 29 Barb. 383) ; but in an action on a bond for the payment of a sum of money, and even where the money is payable by installments, it is not necessary to assign breaches in the complaint. [Spaulding v. Millard, 17 316 PRACTICE. Wend. 331). But if the condition of the bond is to pay on demand, the demand must be averred. [Douglass v. Baih- bone, 5 Hill, 143). And where a bond gives a right on failure to pay interest, to elect that the principal shall be- come due, such election must be averred, or only interest can be recovered. [Howard v. Farley, 3 Robt. 599). Breach of Promise to Marry. The complaint must allege that the promise was mutual [Buzzard v. Knapp, 12 How. Pr. 504) ; and there must be an allegation that the plaintiff is ready to fulfill the marriage promise. [Grxiham v. Mariin, 64 Ind. 567). If the defendant has renounced his promise to marry the plaintiff, she is not obliged to request him to fulfil it before bringing suit, although the time fixed for performance has not passed. [Buriis v. Thompson, 42 N. Y. 246). If special damages are claimed, they should be alleged [Bedell v. Powell, 13 Barb. 183) ; as that the plaintiff lost her health, (id). Consideration. Where a consideration is not implied, it is the very gist of an action founded upon contract, and must be specially averred [Spear v. Downing, 34 Barb. 522) ; whether the promise be in ■writing, or by parol. [Burnet V. Bisco, 4 Johns, 235). The complaint should disclose the facts, from which it must appear that there was a legal consideration to support the agreement relied upon [Boss v. Sadgbeer, 21 Wend. 166) ; and where the consideration is a past act, it must ordinarily be alleged to have been done at the request of the defendant. ( Comstock v. Smith, 7 Johns. 87). The consideration is sufficiently alleged, if the instru- ment sued upon purports to be " for value received" and is. set out in the complaint. [Prindle v. Caruthers, 15 N. Y. 425). In an action upon an instrument under seal, no con- sideration need be alleged [Bush v. Stevens, 24 Wend. 256) ; so, also, in a promissory note or bill of exchange. [Underhill \. Phillips, 10 Hun, 591). It is not necessary to aver what is implied by law. (id). In an action on mutual promises, it should be alleged that they were made at the same time (-Keep v. Goodrich, 12 Johns. 397) ; and an averment that one promise was the consideration for the other is sufficient. [White v. Demilt, 2 Hall. 405). THE COMPLAINT. 317 Contract. In an action upon a contract, either the sub- stance of the contract must be correctly stated, or the con- tract itself must be set forth in its precise words. (^Adams T. Mayor etc. 4 Duer, 295). If the contract contains several distinct agreements, that portion only need be set forth "which is complained of as being broken. ( Williams v. Healey, 3 Denio, 363). The complaint need not set forth the circumstances attending a transaction, contract, or instru- ment in writing. (^Broiun v. Champlin, 66 N. Y. 214). A complaint on a special contract, should set out its provisions either in form or legal effect, and allege performance, or ex- cuse for the non -performance (^Brown v. Colie, IE. D. Smith 265) ; but where the meaning of the contract is doubtful, it is better to plead it in haec verba, in order that the court may construe it. {Bayley v. Onondaga Co. Mid. Ins. Co. 6 Hill, 476). In pleading a breach of contract, the facts con- stituting the breach must be set forth ( Ward v. JSogan, 11 Abb. N. C. 478) ; and it is sufficient to allege the breach in the words of the contract, or words having equivalent import. (Brown v. Stebbins, 4 Hill, 154). If the action is on a con- tract, void by the laws of this state, it is material to allege that it was made in a state where such contracts are by law valid. {Thatcher v. Morris, 11 N. T. 437). In suing under a statute applicable only to this state, the complaint must not leave it doubtful whether the transaction occurred •within this state or not. {Beach v. Bay State Co. 10 Abb. Pr. 71). Corporations. A complaint by or against a corporation must plead the incorporation. (Code Civ. Proc. § 1775). But the precise steps taken to accomplish the organization, need not be alleged. [Lorillard y. Clyde, 86 N. Y. 384). Demand. In cases where a demand is necessary before bringing suit, a demand must be alleged in the coniplaint {Boutwell V. CKeefe, 32 Barb. 434) ; thus, in an action for property which came lawfully into defendant's possession, a demand before suit brought, is necessary, and must be alleged. {Simmons v. Lyons, 55 N. Y. 671) Where a •demand is required to be made in a particular manner or formj the complaint must allege that it was made in the 818 PEACTICE. form required. [Lutweller v. Linnell, 12 Barb. 512). A demand must be averred, on a note payable at a particular place, as against the endorser, but not as against the maker. (^Fernery. Williams, 14: Ahh. Pr. 215). Where one guar- antees the performance of an act by another, a demand upon the principal must be alleged {^Hernandez y. Stilwell, 7 Daly, 360) ; and also where an act is to be performed on request, the request must be alleged. (Smith v. Tiffany, 36 Barb. 23). In an action to recover money deposited, a de- mand for its payment must be alleged. [Payne v. Gardi- ner, 29 N. T. 146). A demand must be alleged in an action to recover moneys, collected by an attorney. ( Walradt v. Maynard, 3 Barb. 584). A demand of one of two joint debtors is a demand on both. [Geisler v. Acosta, 9 N. Y. 227). Divorce. In an action for a divorce, the complaint should contain allegations of every fact, the existence of which is made necessary by statute, in order to the granting of the divorce. 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. (Code Civ. Proc. § 1764). Where the complaint alleged that the acts of adultery were committed with a person whose name is unknown to the plaintiff, between certain dates, and in a specified city, and further alleges that the plaintiff is unable to state the times and places with more particularity; this is sufficient to authorize proof of the offense. (^Mitchell v. Mitchell, 61 N. Y. 398). Dower. The complaint in an action for dower, must describe the property; and must set forth the name of the plaintiff's husband. (Co. Civ. Proc. § 1606). A complaint alleging that T>. was at his death, and for many years be- fore, the plaintiff's husband; that he died at a time stated; that at his death and for many years before he had been seized in fee of the premises described in the complaint; that plaintiff was entitled to an undivided one-third thereof for life, as her reasonable dower ; and that the defendant was in the actual possession of the land, and wrongfully with- THE COMPLAINT. Sl^ held the same from her ; sets up a good cause of action to recover dower. {Draper v. Draper, 11 Hun, 616). Ejectment. The complaint must show that the plaintiff is out of possession, and that the possession is unlawfully withheld from him [Taylors. Crane, 15 How. Pr. 358), and that he has a right to possession in presenti. ( TruU V. Granger, 8 N. Y. 115). In actions of ejectment, it has- been held sufficient for the plaintiff to state his title ; as, that he is the owner in fee simple, and that defendant is in possession and unlawfully withholds, etc. [Ensign v. Sher- man, 14 How. Pr. 439; Walter v. Lockwood, 23 Barb. 228). The premises should be sufficiently described in the com- plaint that they may be identified, and possession delivered from the description given. (Co. Civ. Proc. § 1511; Budd V. Bingham, 18 Barb. 494). The allegation that plaintiff is entitled to the possession of land, and to its rents and profits, is a mere allegation of a conclusion of law, and is insufficient to show a cause of action. The facts on which the conclu- sion is based should be stated. [Sheridan v. Jackson, 72; N. Y. 170). But the interest claimed in ejectment may be pleaded in general form. [Austin v. Schluyter, 7 Hun, 275). A complaint stating that the plaintiff has lawful title, as owner in fee simple, to the premises described, that the defendant is in possession thereof, and unlawfully withholds possession thereof from the plaintiff, and demands that de- fendant be adjudged to surrender possession of said real estate to the plaintiff, is a good complaint in ejectment. [Walter v. Lockwood, 28 Barb. 228). Evidence of the value of the use and occupation of premises, is not admissible in behalf of the plaintiff, in a suit for the recovery of real property and for damages for the withholding of the same from the owner, where the plaintiff does not claim the rents and profits. [Earned v. Hudson, 57 N. Y. 151). In the case last cited, there was no allegation in the complaint show- ing that there was to be a claim made for rents and profits, and the only mention of damages was in the demand for judgment; but in the later case of Cagger v. Lansing (64 N. Y. 417, 431 )» where the complaint set forth the value of the use and occupation and claimed the same as damages; 320 PEACTICE. it was held that the allegation in the complaint was a suffi- cient claim for mesne profits. Sections fourteen hundred and ninety-seven and fifteen hundred and thirty-one of the Code of Civil Procedure define what damages are recov- erable in actions for ejectment, and since the enactment of those sections the reasoning of the case of Lamed v. Hudson [supra), is no longer applicable. Fraud. Where a party seeks to maintain a cause of action on the ground of fraud, the facts constituting the fraud must be alleged. ( Chautauqua Co. Bank v. White, 6 N. Y. 236). A mere general charge of fraud is not sufficient, being a legal conclusion only. [Butler v. Viele, 44 Barb. 166). The complaint should show the connection of the fraud with the alleged damage, so that it may appear to the court that the fraud and the damage sustain to each other the relation of cause and effect; or at least that one might have resulted directly from the other. [Byard v. Holmes, 34 N. J. L. 296). In actions founded on the deceit of the defendant in making false representations, it must be alleged that the representations were false [Nelson v. Luling, 36 Super. 544) ; that the defendant knew them to be false [Oherlander v. Spiess, 45 N. Y. 175); or that the defend- ant made them as of his own knowledge, although knowing that he had no such knowledge [Marsh v. Falker, 40 N. Y. 662) ; that they were with intent to deceive [Brick v. Fowler, 12 Wkly. Dig. 310) ; that the plaintiff believed them to be true [Taylor -v. Guest, 58 N. Y. 262) ; and that he was de- ceived by them to his damage. [Simmons v. Kayser, 43 Super. 131). Injunction. The complaint must show a sufficient cause of action before an injunction will be granted; and where the complaint does not disclose such a cause of action, it can not be helped out by affidavits. [Hentz v. L. I. R. R. Co. 13 Barb. 646). The affidavits are only considered as evidence of the facts alleged in the complaint. [Stull v. Westfall, 25 Hun, 1). An injunction, as a general rule, will not be allowed upon allegations on mere information and be- lief. [Crocker v. Baker, 3 Abb. Pr. 182). To entitle plaintiff to an injunction, his complaint must show that he THE COMPLAINT. 321 win be entitled to final relief, and all the facts necessary to entitle plaintiff to an injunction must be sworn to positively, (id). If the complaint is made unequivocally, and not on information and belief, and the plaintiff swears that it is true, the injunction will be granted without further affidavits. {Hecker v. Mayor etc. 28 How. Pr. 211). To authorize an injunction, the complaint must contain a demand for it, as a part of the relief sought. (Code Civ. Proc. § 603). Judgments. In actions on judgments, and for libel and slander, the code provides what the complaint may contain, as a sufficient allegation of the facts constituting the cause of action. (Code Civ. Proc. § § 532, 535). Malicious Prosecution. The elements of an action for malicious prosecution are: 1, a prosecution by defendant; 2, the termination of the prosecution in plaintiff's favor; 3, malice; 4, and absence of any reasonable or probable cause ; all of these facts must be affirmatively established by the plaintiff. {Moulton v. Beecher, 1 Abb. N. C. 193; Thaule v. Krekler, 81 N. Y. 428). Notice. If notice is necessary either by the terms or nature of the contract, it is of the gist of the action, and must be specially averred, and without such averment no complete right of action can appear. ( Watson v. Walker, 23 N. H. 471). If the plaintiff relies upon facts which excuse notice, he must state such facts in his complaint. {Schultz v. De- puy, 3 Abb. Pr. 252). It is held that evidence of facts excusing notice is not admissible under a bare averment of due notice. [Garvey v. Fowler, 4 Sand. 665; Purchase v. Matteson, 25 N. T. 211). It is a general rule, that where matter does not lie more properly in the knowledge of the plaintiff than of the defendant, notice need not be averred. {Clough v. Hoffman, 5 Wend. 499). Ownership. Every action must be prosecuted in the name of the real party in interest, except that an executor or ad- ministrator, 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. (Code Civ. Proc. § 449). The plaintiff's ownership of, or title to the claim in suit, must in general be alleged {Palmer v. 21 322 PEACTICE. Smedley, 28 Barb. 468 ) ; and the complaint should distinctly disclose the plaintiff's interest in the subject matter. [Wright Y. Field, 64 How. Pr. 117). A general allegation that the plaintiff is the owner is sufficient. [Heine v. Ander- son, 2 Duer, 318). Thus, where it appears in the complaint that, though the note is in the possession of plaintiff, it is the property of another, the complaint does not state a cause of action in the plaintiff. [Palmer v. Smedley, 28 Barb. 468 ) . The plaintiff must state facts which show a right to recover in himself, and not in another, (id). In an action to recover a chattel, an allegation that the party was, at the time when the action was commenced, the owner of the chattel, or that it was then his property, is a sufficient state- ment of title, unless the right of action or defense rests upon a right of possession by virtue of a special property ; in which case the party must set forth the facts on which the special property depends, so as to show that he was entitled to the possession of the chattel. (Code Civ. Proc. § 1720). Under this section it was held that an allegation that defendant has become possessed of and wrongfully de- tains from plaintiff, the following goods of the plaintiff, suffi- ciently avers the latter's ownership [Simmons v. Lyon, 55 N. Y. 671) ; but an allegation simply of wrongful detention, without showing aright of property or possession in plaintiff, is not sufficient; but the facts must be pleaded. [Scliofield V. Whitelegge, 49 N. Y. 259). There are some exceptions to the general rule that title in the plaintiff must be shown or alleged ; and especially is this true in actions brought upon a lease for rent, in which case the landlord's title can not be questioned, and therefore need not be alleged; also in trespass quare clausum, possession being all that is neces- sary to authorize the action, it is sufficient to describe the premises as the property of the plaintiff, or to say that he was lawfully in possession, provided a wrongful entry is charged. Pariition. In an action for partition the complaint must describe 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 plaintiff. If THE COMPLAINT. 323 a party, or tlie share, right, or interest of a party is un- known to the plaintiff; or if a share, right, or interest is un- certain or contingent, or if the ownership of the inheritance depends upon an executory devise ; or if the remainder is a . contingent remainder, so that the party can not be named ; that fact must also be stated in the complaint. ( Code Civ. Proc. § 1542). Performance. The plaintiff is bound to aver a perform- ance, or some excuse for non-performance, of the condition precedent, when his right of action depends upon such per- formance. [Oakley v. Morion, 11 N. Y. 26). If an excuse for non-performance is relied upon, lie should aver his readiness to perforin, and the particular circumstances cour stituting such excuse should be set forth ; as evidence of excuse is not admissible under an averment of performance, (id). An excuse or a waiver must be averred. [GarveyY. Fowler, 4 Sand. 665). AVhere a party absolutely refuses to perform, that fact may be averred; and in such case, it is unnecessary to allege a tender of performance [Sears v. Conover, 33 How. Pr. 324), even though the full time for performance had not elapsed [Buriis v. Thompson, 42 N. Y. 246) ; but if a party undertakes to make a specific alle- gation of performance, he must make it with the particu- larity and strictness required by the rules of the common law. [Hatch y. Peei, 23 Barb. 575). In case of mutual conditions, it is not sufficient for a party to aver readiness to perform ; he must aver either actual performance, or a tender of performance on his part. [Beecher v. Conradt, 13 N. Y. 108). Where each party has in part performed, it seems that no allegation of readiness to complete performance is necessary. (Grant v. Johnson, 5 N. Y. 247). It is unnec- essary to allege a tender of performance, if such tender would be wholly nugatory. [Karker v. Haverly, 50 Barb. 79), In pleading performance of an act, required to be done at a particular place, the place of performance must be alleged. [Fernery. Williams, 14 Abb. Pr. 215). : Quantity and Value. Statements of quantity and value, where those facts are material, should be correctly alleged; as in an action for goods sold, or for services, the allegation 824 PRACTICE. of value thereof in a complaint, is held to be material, {Gregory v. Wright, 11 Abb. Pr. 417). But extreme ex- actness is not required in allegations of quantity or value. {Martin v. Kanouse, 2 Abb. Pr. 330). Reformation of Instrument. To maintain an action tore- form an instrument, a mutual mistake, or a mistake by one and fraud by the other, must be averred. {Jackson v. Andrews, 59 N. Y. 244; Paine v. Jones, 75 N. Y. 598). To reform a contract, there must be shown either such a mutual mistake that the intentions of neither party are expressed by it, or the mistake must have been that of one party, and there must have been fraud in the other in taking advantage of it. {Hay v. Star Ins. Co. 11 N. Y. 235). Representative Character. Where a party sues or is sued in a representative character, that fact must be alleged in the body of the pleadings in an issuable form. {Forrest v. Mayor etc. 13 Abb. Pr. 350). The date, place and court by whom letters of administration were granted should be stated. {Dayton v. Connah, 18 How. Pr. 326). But where the com- plaint alleges the death of the intestate, and the due and legal appointment of the plaintiff as administrator of the estate, and the answer contains only a general denial, the letters of administration in due form, produced in evidence, are suffi- cient prima facie to establish the plaintiff's representative capacity. {Belden v. Meeker, 47 N. Y. 307). Scienter. In cases where knowledge on the part of the defendant constitutes the gist of the action, it must be a,verred. {Vroomanv. Lawyer, 13 Johns 339). Thus for keeping niischevious animals (id) ; but by statute (3 R. S. 7 Ed. p. 2117), it is not necessary to allege or prove scienter of the owner or possessor of a dog that shall kill or wound any sheep or lamb ; nor of the owner or possessor of wild animals {Scribner v. Kelley, 38 Barb. 14) ; nor where an animal commits an injury while trespassing. {Dickson v. McCoy, 39 N. Y. 400). In actions for deceit, an allegation that the defendant "falsely and fraudulently represented" is held to sufficiently import a scienter ; and in such actions the intent to deceive must be averred. ( Thomas v. Beebe, 25 N. Y. 244). THE COMPLAINT. 325 Specific Performance. The complaint in an action for specific performance of a contract to convey land, should allege not only a legal contract, but allege facts entitling the grantee to a deed under it ; such as performance, or a readi- ness and willingness to perform its conditions. (^Jenks v. Parsons, 2 Hun, 667). If one seeks specific performance of an oral agreement; he must allege in his complaint the requisite equitable facts and circumstances, relied upon to avoid the bar of the statute of frauds, and to give the court jurisdiction. [Marie v. Garrison, 13 Abb. N. C. 215, 821). Special Damages. Where special damages are sought to be recovered, they must be fully and accurately stated. {^Havemeyer v. Fuller, 60 How. Pr. 316). Facts must be set forth in the complaint from which the court can see that the plaintiff has sustained damage ; a mere conclusion assert- ing damage is not sufficient. ( Thompson v. Gould, 16 Abb. Pr. N. S. 424). Damages such as naturally and necessarily result from the injury complained of, need not be specially averred in order to authorize a recovery for them. [Argot- singer V. Vines, 82 N. Y. 308). Such damages as are not the immediate and natural consequence of the act, or which the law would not presume necessarily to flow from it, must be specially stated. {Moloney v. Doios, 15 How. Pr. 261). In an action for libel or slander, for words not on their face libellous, the complaint must allege special damages. ( Cald- well V. Raymond, 2 Abb. Pr. 193 ; Bassell v. Elmore, 48 N. Y. 561). In actions of slander of title, the complaint must allege special damage, {hinder v. Graham, 1 Duer, 670). Matters merely in aggravation of the damages, should not be pleaded. [Moloney v. Dows, 15 How. Pr. 261). In an action for injuries to land, damages for loss of rent can not be recovered, unless specially alleged. [Squire v. Gould, 14 Wend, 159). Many cases illustrating this principle might be given ; but the above sufficiently show the necessity of alleging special damages, where it is sought to recover them. Time and Place. It is only in cases where time and place are material issues that precision is required; as where one seeks to charge an endorser of a bill or note, it becomes 326 PRACTICE. material to show, not only the demand and notice, but the precise day when made and given, in order to charge the defendant. In an action for divorce on the ground of adultery, times, names and places must be stated in the com- plaint {Tim -v. Tim, 47 How. Pr. 253); although where a complaint alleged the commission of the adultery with a person whose name is unknown to the plaintiff, at times be- tween specified dates, and in a town or city named, with an allegation that the plaintiff was unable to state more parti- cularly the times and places, it was held sufiBcient. [Mit- chell V. Mitchell, 61 N. Y. 398). If the only materiality of the question of time, is to show that a particular fact occurred before or after some other event, it is sufficient to allege that such fact so occurred, without giving the precise date. [Kellogg v. Baker, 15 Abb. Pr. 286). Dates are flexible, and variances may be disregarded, except perhaps in divorce. [Zorkowski y. Zorkoiosld, 3 'Roht. 613). Allega- tions of time relate to the commencement of the action, whether in form in the present or past tense. ( Townshend V. Norris, 1 Hun, 289). Warranty. In an action for breach of warranty the plaintiff must allege the warranty; a sale on the faith of it; the existence of the defect warranted against, or the breach ; and the damage thereby. [Quintard v. Newton, 5 Kobt. 72, 80). Defendant's knowledge of the defect, or his omis- sion to disclose it, or the intent with which the warranty was made is immaterial, (id). The plaintiff need not allege an offer to rescind the sale, or to return the property. [Brigg V. Hilton, 99 N. T. 517). And generally, an averment that the defendants warranted the article, is sufficient to allow proof of either an implied, or an express warranty. [Hoe V. Sanborn, 21 N. Y. 552, 555). Work and Services. Allegations in. the complaint that the defendant was, on the day named, indebted to the plain- tiff in a certain sum of money, for work and labor before that time performed for him at his request, states a good cause of action. [Beekmany. Platner, 15 Barb. 550). A com- plaint for work and materials, should state the kind of work and materials, and the time when done and supplied. THE COMPLAINT. 327 {Farcy v. Lee, 10 Abb. Pr. 143). Where work and labor have been performed under a contract that is completed, it may be recovered for under the common counts, on a quantum meruit. [Hurst v. Litchfield, 39 N. Y. 377). In an action for labor and services, alleged to have been performed under a special contract, at an agreed price, if it appears {hat, from the circumstances of the case, it is doubtful whether the alleged contract can be satisfactorily established, the spirit of the code does not prevent the adding of a count for the same labor and service, upon a quantum meruit. If it can be seen that a separate statement of each cause of action is probably needful to prevent a failure of justice, in conse- quence of a variance between the pleadings and the proof, svich statement, provided it be plain and concise, should not be I'egarded as unnecessary repetition within the meaning of the code. [Blank v. Hartshorn, 37 Hun, 101). The above illustrations in this section will indicate, in a general way, how facts should be stated in certain cases. Only a few illustrations have been given, as this work is not intended to be a treatise on the subject of pleading; but the intent in this section has been to call to the attention of the pleader, the fact that almost every kind of action has its peculiar facts, which must be alleged in a particular man- ner, in order to constitute a good legal cause of action, which will stand the test of litigation; and the pleader who does not conform his complaint to the requiremsnts of the particular cause of action, must expect to be turned out of court, unless by permission of the court and on terms he is allowed to correct it. AETICLE III. JOINDER OF CAUSES OF ACTION. SECTION. 1. What is a single cause of action. 2. What causes of action may be joined. 3. Wliat causes of action may not be joined. 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: 328 PBACTICE. 1. Upon contract, express or implied. 2. For personal injuries, except libel, slander, criminal conversation, or seduction. 3. For libel or slander. 4. For injuries to real property. 5. Real property in ejectment, with or without damages 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 contract, 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. But it must appear, upon the face of the complaint, that all the causes of action so united, belong to one of the fore- going 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. (Code Civ. Proc. § 484). This section 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 remove ob- scurities of expression in the original. It will first be necessary to determine what constitutes a single cause of action. The distinction usually made be- tween demands or rights of action, which are single and entire, and those which are several and distinct, is that the former immediately arise out of one and the same act or contract, and the latter out of different acts or contracts. (Secor V. Sturgis, 16 N. Y. 548). In the case of Welch v. Piatt (5 Civ. Pro. Kep. 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 THE COMPLAINT. 329 void on that ground, and asked that it be surrendered and cancelled; 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 plain- tiff's daraage; it was held that it presented but one cause of action; viz: for the taking and conversion of the property;, that the statements regai-ding the loan and the chattel mort- gage 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 differ- ent 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 Laiiin v, McCarly (41 N. Y. 107), where the plaintiff prayed for, 1, Possession ; and 2, A conveyance of the defendant's apparent title by quit-claim, or otherwise &c., and that the defendant 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 fraudulently ob- tained possession. It is quite true that while the purpose of the complaint is single, it seeks to 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 Kroiuer v. Beynolds (99 N. Y. 245) ; Tuers v. Tuers (100 N. Y. 196) ; Bebingery. Sweet, (1 Abb. N. 0. 263). In the case of torts, each trespass, or conversion, or fraud gives a right of action, and but a single one, how- ever numerous the items of wrong or damage may be. ( W- T. Filer v. N. Y. C. B. B. Co. 49 N. Y. 42). So, where the plaintiff alleged that the defendant assaulted the plaintiff, dragged him violently through the public streets, imprisoned him in the custody of the sheriff, and restrains him of his liberty without probable or reasonable cause, whereby he was 330 PBACTICE. -wounded and injured in credit and in other business ; it con- stitutes but one cause of action. [Sheldon v. Lake, 9 Abb. Pr. JN. 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, Jaowever many steps are necessary to enforce such rights, or to redress such wrong. [Meyer v. Van Collem, 7 Abb. Pr. 222). A complaint which alleges an assault upon the plain- tiff and a trespass upon his premises at the same time sets- up but one cause of action. ( Gilbert v. Priicliard, 41 Hun, 46). The same rule is true also, of actions on contracts. [Secorv. Slurgis, 16 N. Y. 548). So, in a running account it is held that all of the items due at the time of the action constitutes but a single cause of action ; and that the recov- ery in one action for a part of the items, is a bar to a subse- quent action for the residue. [Stevens v. Lockwood, 13 Wend. 644). But where several notes have been given in settlement of such running account, a separate action may be brought 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. Haskin, 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, of course, then the reason for the rule ceases. [Oi'Bierne v. Lloyd, 43 N. Y. 248). A party can not be compelled to join in one action several dis- tinct causes of action. [Secor v. Sturgis, 16 N. Y. 548). 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 incon- sistent grounds. [Goodwin Y. Wertheimer, 99 N. Y. 149). The section also requires, that it must appear on the face of the complaint, that all the causes united belong to one of the THE COMPLAINT. 331 subdivisions of the section; tliat tliey 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, be- longing to different subdivisions of the section, may be united in the same complaint, if they arise out of the same trans- action; and that subdivision 9 was broad enough to em- brace more than one cause of action, and also causes of action belonghig to diffiarent subdivisions of that section. {Polley V. Willdsson, 5 Civ. Pro. E. 135). Where different causes of action are of the same character, and between the same parties, and the joinder thereof is convenient to them, the court will usually refuse to entertain an objection to the joinder. {King v. Farmer, 88 N. 0. 22). And where a misjoinder of causes of action is apparent on the face of the complaint, such defect must be taken advantage of by de- murrer, or it is waived. (Code Civ. Proc. § 499; Blossom V. Barrett, 37 N. Y. 434). 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. {JEarle v. Scott, 50 How. Pr. 506). Demand for legal and equitable relief when consistent, may be joined ( Getty v. Hudson Eiv. a. 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 transaction, or connected with the subject of the action. {Bruce v. Kelly, 5 Hun, 229). Where a judgment creditor, in an action against other creditors of his judgment debtor, de- mands judgment in his complaint that the liens of certain of the defendants be set aside as fraudulent, and also demands 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. K. 317). 332 PRACTICE. 1. A cause of action arising out of a contract, express or implied, and affecting all the parties may clearly be joined. (Co. Civ. Proc. § 484, subd. 1; Gridley v. Qridley, 24 N. Y. 180). So, it was held, on demurrer for misjoinder of causes of action, that the creditor holding 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 t. Holland, 33 Hun, 288). "Where one account was for money loaned, another for ser- vices, and a third alleged fraud in inducing the payment of the money and the rende^-ing of the services; it was held that there was no misjoinder ; the allegations of fraud merely showed the right to rescind. [Campbell v. Wright, 21 How. Pr. 9). An action to recover money paid on a contract repudiated by the plaintiff for fraud, and one for money 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 imprisonment and one for malicious prosecution, both arising out of the sam& transaction, may be alleged in the same complaint in dif- ferent counts. [Barr v. Shaw, 10 Hun, 580; Marks v. Townsend, 97 N. Y. 590). In the case of Nebenzahl v. Townsend (61 How. Pr. 353), it was held, that where these two causes of action are joined in a complaint, the plaintiff should be compelled to elect upon which cause of action he will proceed; but in the case of Haight v. Webster (18 Wkly. Dig. 108), it was decided that an action for false imprisonment, and one for malicious prosecution may be united in the same complaint, and tried together. Criminal conversation or seduction can not be joined under subdivi- sion two, with other causes of action for personal injuries, nor can injuries to the person be joined with inju:des to prop- erty. {Dodge v. Colby, 37 Hun, 515). 3. Actions for libel or slander may be united in the same complaint; but a cause of action for libel or slander can not be united with a cause of action for personal injuries. THE COMPLAINT. 333 {Perrotean v. Johnson, 4 Law. Bull. 25). Where the plain- tiff alleged facts which would, if established, have sustained an action iov assault and battery, and also facts which would have sustained an action of slander ; on demurrer, it was held that two causes of action were improperly united in the com- plaint (^Anderson v. Hill, 53 Barb. 238) ; and the case of Brewer v. Temple (15 How. Pr. 286), to the contrary, was overruled. In libel, all who concur in its publication may be sued together ; but in slander every speaker must be sued separately. {ForsTfthy. Edmiston, 2 Ahh.'Pv. 4,30). 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 de bonis asportatis could always, as a separate cause of action, be joined with trespass quare clausum f regit [Loveit V. Pell, 22 Wend. 369) ; and are joined under the code system of pleading. {Colion y. Jones, 7 Kobt. 164). An action for defacing real property, or for wanton injuries to it, may be joined with one for affixing advertisements upon it to its damage. (3 K. S., 7th. Ed., 2208). 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 defendants are in possession, and also states, in a distinct allegation, that one of the defendants is in possession of a part of the property, under the other defendants ; the complaint is not demurrable for misjoinder of causes of action. {Bank v. Levinus, 5 Civ. Pro. E. 368). In an action to recover real property, or the possession thereof, the plaintiff may demand in his complaint, and in a proper case recover damages, for withholding the property. (Code Civ. Proc. § 1496). It was formerly held that rents and profits were distinct from damages for withholding {Lamed v. Hudson, 57 N. Y. 151) ; but the code provides that the damacres in ejectment include the rents and profits, or the value of the use and occupation of the property, where either 334 PRACTICE. can legally be recovered by the plaintiff. (Code Civ. Proc. § 1497). So, an action for recovery of dower, and one for damages for the withholding, may be joined. ( Van Name v. Van Name, 28 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. (^LaUin v. McCariy, 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. [McTeague 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 con- tract, if for any reason it cannot be performed; and if it turns out that the equitable relief can not be granted, he may recover his damages, if he is entitled to any. (Margraf v. Muir, 57 N. Y. 155). In an action to set aside a convey- ance, a claim for rents received by the grantee may be joined. [Coleman v. Phelps, 57 How. Pr. 893). A joinder of actions for a partition of real and personal property is per- missable. [Prentice v. Janssen, 7 Hun, 86). 6. The plaintiff may unite two or more causes of action 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. ^[Sum- merville v. Metcalf, 15 "VVkly. 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. Holden, 50 Super. 236). Causes of action for deceit in the sale of a canal boat and horses, and for wrong- fully taking property from the boat, being both for injuries to the right of property, may be joined. ( Cleveland v. Bar- rows, 59 Barb. 364). THE COMPLAINT. SSS 7. Causes of action to recover chattels, with or without damages for the taking or detention thereof, may be joined in one complaint. (Co. Civ. Proc. § 484, subd. 7). Noth- ing in title II, of chapter XIV of the Code of Civil Proce- dure, in regard to actions relating to chattels, is to be so construed as to prevent the plaintiff 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) ; but a plaintiff can not so frame his complaint as that, if he fails to recover possession of the property, he can recover damages for its conversion. {Maxwell v. Far- nam, 7 How. Pr. 236). Counts for detention, 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. (Code 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 execu- tor, for the collection of assets which had come to his hands, can not be joined with one for an accounting and a construc- tion of the will. {Petrie 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 contributed 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 allecred 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. Harmony Mills, 6 Abb. N. C. 212). A cause of action against a trustee of an 336 PRACTICE. insolvent bank for making improper investments can not be united with a cause of action on the bond given by him to assist in making up a deficiency in the assets of the bank. {^French v. Salter, 7 Hun, 546). An action against de- fendants individually, because as trustees they failed to make the return required by law, and for 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 can not 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. Suydam, 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. Griswold, 68 N. Y. 294). Tor 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 representative 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). A complaint against an adminis- trator of plaintiff's agent, for accounting as to money in agent's hands at his death, and payment of the amount, and recovery of money and property taken by the administrator, and refused to be given up, does not improperly join causes of action against the administrator individually, and in his representative capacity. {Day v. Stone, 15 Abb. Pr. N. S. 137). 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. THE COMPLAINT. 337 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 are 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). Where different persons are interested in an account, although not in the same right, they may and in most cases should all be pined. (LiUell v. Say re, 7 Hun, 485). An action for trespass upon land may be joined with an action for conversion of personal property, where they both arise out of the same transaction. [Polley v. Wilkis- son, 5 Civ. Pro. E. 135), Separate causes of action, arising out of a breach of contract and injuries to property, 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) ; and where injuries have resulted both to the person and to the property, from an act of negligence on the part of the defend- ant, both causes of action may be united in the same com- plaint. {Howe V. Peckham, 10 Barb. 656). It was held in Robinson Y. 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 pro- ceedings, commencing with the negotiations, and ending with the performance of the contract, where the matter in contro- versy^arises out of a contract. If the causes of action do not arise out of the same traijsaction, or transactions connected with the same subject of action, then causes of action ex contractu can not in general be united with causes of action ex delicto. In the case of the Supervisors of Saratoga Co. T. Deyoe {11 N. Y. 219), where fifty-three persons held notes against the county, given, as it was supposed under and by authority of the same resolution of the Board of Supervisors, but amounting in the aggregate to a much larger sum than the amount authorized to be raised; it was held that the claims were of the same general character, that the several causes of action might be joined, for the purpose 22 338 PEACTICE. of preventing a multiplicity of suits, and to protect the county against the hazard of a double recovery. A claim for damages, 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. Bissell, 28 Barb. 382). An action based on the ownership of money, lost by another in gaming, and one based on an assignment from the loser of his statu- tory cause of action, may be united. {^Cassidy v. Daly, 11 Wkly. 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. [Royer Wheel Co. v. Fielding, 61 How. Pr. 437). 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 plaintiff'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 disherision of the plaintiff. {Hay v. Hay, 13 Hun, 315). It was held proper to join the officer and his sureties, in an action alleging that the officer took sufficient goods on plaintiff'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. {Grover v. Morris, 73 N. Y. 473). A cause of action as executrix may be joined with one as devisee, where both ac- crued under a contract made by the testator with defendant, growing out of the same matters. {Armstrong v. Hall, 17 How. Pr. 76). 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 THE COMPLAINT. 339 causes require different places of trial, they can not 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. The plaintiff can not unite in one action, ejectment and trespass qicare clausum fregit {Budd v. Bingham, 18 Barb. 494) ; nor an action to recover damages for flooding plaintiff's land, caused by defendant's railroad embankment, with one for breach of duty in neglecting to erect a farm crossing ; the latter being for breach of implied contract. ( Thomas v. Utica &c. B. B. Co. 97 N. Y. 245). A complaint which stated three causes of action, one for breach of contract, one for personal in- juries, and one for injuries to personal property, is subject to demurrer for misjoinder, although they are blended in a single count.' {Townsendy. Coon, 1 Civ. Proc. E. 56). So, a complaint containing a cause of action upon a warranty of a chattel sold, and also a cause of action for false represen- tations in respect to such chattel, is demurrable for misjoin- der ; as the two causes of action do not arise out of the same transaction. {Seymour v. Lorillard, 8 Civ. Proc. R. 90). A cause of action for trespass on lands can not be joined with a cause of action for slander of title of such lands [Dodge v. Colby, 37 Hun, 515) ; 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 action under the statute, against the heirs and their grantees upon a contract of the decedent. {Hayivard v. McDonald, 1 How. Pr. N. S. 229). A cause of action for converting property, and a cause of action for the proceeds of real estate on sales of the property, can not be united in the same complaint; the recovery in tort would bar the action on contract, and vice versa. ( Teall v. CUy of Syracuse, 32 Hun, 332). A plaintiff can not 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 default of another person, of whose estate he is also the administrator. [Danaher v. CUy oj Brooldyn, 4 Civ. Proc. Eep. 286). Two separate and dis- 340 PRACTICE. tinct causes of action, arising upon two separate and distinct contracts, in which the plaintiffs are not jointly interested, can not be united in the same complaint. [Juliano Ware Co. V. Sands, N. Y. Daily Reg., Feb. 4th. 1881). The plaintiff can not join a cause of action in tort, with one on contract. [Nichols v. Drew, 25 Hun, 315). Two persons, each claiming the whole of a piece of land, can not unite in an action against a third person in possession, setting forth the title of each plaintiff in a separate count. (Hubbell v. Lerch, 58 N. T, 237). A claim which accrued to the plain- tiff personally, and one which accrued to a deceased person whom plaintiff represents, can not 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 individu- ally, with other causes against him as trustee, and separate demands against other defendants [Smith v. Qeortner, 40 How. Pr. 185) ; nor demands against a defendant as admin- istrator, trustee, or executor, and against him individually [hatting v.. Lotting, 4 Sand. Ch. 31) ; nor against an execu- trix as such, and individually, to compel her to apply to the payment of taxes, income accrued or to accrue. ( Clarke v. Coles, 50 How. Pr. 178). ARTICLE IV. DEMAND OF JUDGMENT SECTION. 1. For final judgment. 3. interlocutory and final judgment. Sec. 1. For Final Judgment. The complaint must contain a demand of the judgment to which the plaintiff supposes himself entitled. (Code Civ. Proc. § 481, subd. 3). In the Code of Procedure the de- mand was for the relief to which the plaintiff supposed himself entitled ; and the commissioners state that the sub- stitution 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 THE COMPLAINT. 341 and twelve hundred and seven of the code, it seems that, strictly speaking, the use of the term relief j 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 confusion, especially with respect to prayers for provisional remedies; and that while the material portions of the original sections have been preserved intact, the word judg- ment has been substituted in place of relief, in accordance with the plan followed throughout the act. (See 2 McCarty Civ. Proc. Kep. 91, note). The plaintiff may demand any kind of relief to which he supposes himself entitled, and is not confined to one kind of relief. {Hall v. Hall 38 How. Pr. 97). A party should ask that relief (judgment) to which he supposes himself en- titled ; but by so doing he is not precluded from declining to take any part of such relief, or from demanding additional relief, warranted by the facts. Judgment is given by the court in accordance with the facts, and not the requests of smtors. The demand 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. [Dusenbury v. Dusenbury, 2 McOarty's Civ. Proc. Eep. 91). Where there is no answer, the judgment shall not be more favorable to the plaintiff, than that demanded in the com- plaint. Where there is an answer, the court may permit the plaintiff to take any judgment, consistent with the case made by the complaint, and embraced within the issue. (Code Civ. Proc. § 1207). The provisions of this section were intended to protect defendants who suffered default {Peck V. N. Y. & N. J. Ry. Co. 85 N. T. 246), and also 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 ; but the relief to be granted must still be consistent with the case made by the complaint. {Brad- ley V. Aldrich, 40 N. Y. 504). It is held not to be error to allow a plaintiff any judgment, to which upon the 34:2 PEACTICE. allegations and proof he is entitled, either in law or equity {Armitage v. Pulver, 37 N. Y. 494) ; but if a party bring an equitable action, he must show himself entitled to equit- able relief; and eyen though he may prove on the trial a good legal cause of action, he will not be entitled to judg- ment, because the relief to which he shows himself entitled is not consistent with the case made by the complaint, and embraced within the issues. [Beach v. Cooke, 28 N. Y. 508). In the case of Graham v. Bead (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 war- ranting legal relief are established, plaintiff can not have equitable relief. {Stevens v. Mayor etc., 84 N. Y. 296). But where there is no answer, the plaintiff can not have any relief, not demanded. {Simonsonr. Blake, 12 Abb. Pr. 331; 20 How. Pr. 484). Thus, where in a foreclosure, the plaintiff in his complaint only prays for a sale, he can not have a judg- ment for the payment of any deficiency, in the absence of an answer, (id). Where the judgment in such case, gives relief not demanded, it is not a mere irregularity, but it is voidable as unauthorized, and the defendant may move to vacate it ; and is not limited to one year in which to make such motion, (id). 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 r. Butler, 20 How. Pr. 189); provided the relief is consistent with the case made by the complaint, and em- braced within the issue ( Cowenhoven v. City 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 pleadings, though the proof may show the plaintiff entitled to a differ- ent 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. 296), provided they are not inconsistent with each other. {Linden THE COMPLAINT. 343 V. Fritz, 9 Leg. Obs. 80; Reubens v. Joel, 13 N. Y. 488). In some cases alternative relief may be prayed {Linden t. Friiz, supra) ; but not against a defendant individually, and in his capacity as executor. [McMahon v. Allen, 1 Hilt. 103). 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 judgment as he proved just; was held, proper. ( Van Rens- selaer y. 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 che demand was for equitable relief, viz., an accounting, it was held that the demand for an accounting was merely nuga- tory, as it was not only wholly unsupported by any allega- tion 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. Objec- tions to the prayer for relief should be taken by motion. {Durant v. Gardner, 19 How. Pr. 94). A complaint may demand the reformation of a deed, and also judgment upon it as reformed. {Bidwellv. Astor Miit. Ins. Co. 16 N. Y. 263). But a claim for the possession of a chattel, can not be united with a claim for its value as converted {Maxwell v. Farnam, 7 How. Pr. 236) ; nor with a claim for its price, as upon a sale. {Morris v. Rexford, 18 N. Y. 552). '^The complaint must specify the relief demanded, and the demand must not be vague or hypothetical.^ {Durant v. Gardner, 19 How. Pr. 94). A prayer for general relief will not be struck out. {Hemson v. Decker, 29 How. Pr. 885). But in Durant v. Gardner {supra), it was held that where a demand was for a specified "amount, the additional demand for general 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 damages therein alleged, although he recovers only upon one of three counts for the same in- jury, each of which alleged his damages at a smaller sum. {Schultz v. Third Ave. R. R. Co. 89 N. Y. 242). A plaintiff should not be turned out of court, when an answer has been 344 PRACTICE. interposed, because lie has prayed for too much, or too little, or for wrong relief.. {Murtha v. Curley, 90 N. T. 372). 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 mis-statement in the original complaint. {^Merchant y. N. Y. Life Ins. Co., 2 Code E.. 66). The relief demanded in the complaint does not necessarily characterize the action, or limit the plaintiff's remedy. [Bindge 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) ; as the demand for relief forms no part of the issues in the case (^Hall V. Hall, 88 How. Pr. 97 ) ; yet the character and nature of the relief demanded may properly be considered by the court, when passing upon a demurrer interposed to the com- plaint upon the ground that it does not state facta sufficient to constitute a cause of action. [Sivari t. Boughton, 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. Section 2. Interlocntory 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. (Code Civ. Proc. § 482). Before the amendatory act of 1877, the code (§ 1201) contained the following defin- ition of an interlocutory judgment : " A judgment is inter- locutory, where it is a determination of the action, or of an issue presented by the pleadings; but either leaves to be determined by the final judgment, the extent of the recovery, or other relief, to which the successful party fe entitled ; or reserves a question which must be determined, before final judgment can be awarded. " But the section was expunged from the code, so that there now is no statutory definition 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 THE COMPLAINT. 3-1:5 is in aid of the final judgment. {Chamberlain v. Dempsey, 36 N. Y. 144). A temporary injunction order, which fre- quently operates as a decision of the whole question may be granted in a proper case, where the complaint contains a de- mand for it as a part of the relief sought ; and where the complaint shows that the plaintiff is entitled to it (Code 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. Cavanaugh, 12 Abb. Pr. N. S. 410). AETICLE V. SERVICE OF THE COMPLAINT. SECTION. 1. When and how to be served. 2. Consequence of failure to serve. Sec. 1. Vnien and Ho-nr to lie Served. If a copy of the complaint is not delivered to a defendant, 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 withm twenty days after, the service of the summons is complete, serve upon the plaintiff's attorney a written de- mand of a copy of the complaint, which must be served within twenty days thereafter. 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 defend- ant, he appear for another defendant, the last defendant must answer the complaint within twenty days after he appears in the action. (Code Civ. Proc. §479). The plain- tiff may sevve his complaint at the same time that the sum- mons is served ; and 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. Boyer, 7 How. Pr. 325). If the defendant's attorney, within twenty days after the service of the sum- mons, demands a copy of the complaint, it must be served within twenty days after such demand, and if served after that time it is a nullity ; unless there has been an order ex- 346 PRACTICE. tending the time for such service. [Baker v. Curtiss, 7 How. Pr. 478). Plaintiff may upon an affidavit showing grounds therefor, obtain an order extending the time for serving a copy of the complaint. {^LUtlefield v. Murin, 4 How. Pr. 306. Sec. 2. Conseqnence of Failure to Serve. If the plaintiff's attorney fails to serve a copy of the com- plaint, as prescribed in section four hundred and seventy- nine, the defendant may apply to the court for a dismissal of the complaint. (Code Civ. Proe. § 480). The code of procedure did not expressly provide any penalty for an omis- sion to serve a copy of the complaint, when demanded. But section four hundred and eighty above cited, is a new sec- tion, and it prescribes the penalty to be that the defendant may apply to the court for a dismissal of the complaint. If the motion to dismiss the complaint is granted, the action will be dismissed. [Baker v. Curiiss, 7 How. Pr. 478). This right is confined to those defendants who are served with summons. One of several defendants, who has not been served with a summons or complaint, can not 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 sixch 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 complaint can not ask the court to dismiss the complaint, in favor of the other defend- ants. [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 defend- ant need not receive it ; and he may safely disregard it. He should not retain it, however, but must promptly return it to the plaintiff, or he will be held to have waived the irregularity in such service. [Baker v. Curtiss, 7 How. 478). In the case last cited, it was held that the defendant was under no obligation to return a complaint, served after he had served a notice of motion to dismiss the complaint. CHAPTER XI. THE ANSWER. ARTICLE I.— When required. ARTICLE II.— Form and what to contain. ARTICLE III.— Denials. ARTICLE IV.— New matter. ARTICLE v.— Counterclaim. ARTICLE VI.— Demand of relief. ARTICLE I. WHEN REQUIRED. The only pleading on tlie part of the defendant is either a demurrer, or an answer. (Code Civ. Proc. § 487.) As a demurrer may be interposed, not only to the complaint, but to the answer or reply, it will be considered later. Any objection to any of the causes of action, set out in the complaint, which does not appear on the face of the com- plaint, or requires proof of extrinsic facts, must be taken by answer. (Code Civ. Proc. § 498). If one defendant re- quires affirmative relief as against a co-defendant, he must state the facts, which entitle him to such relief, in the answer. (Code Civ. Proc. § 521). The defendant may answer one or more of the causes of action in the complaint, and may demur to others. (Code Civ. Proc. § 492) ARTICLE IL FORM AND WHAT TO CONTAIN. SECTION. 1. Form. 3. What to contain. Sec. !• Form. Usually the answer should commence with a caption, show- ing the court in which the action is brought, and the title of ihe action. The usual beginning of the answer is "the de- 348 PBACTICE. fendant 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 Code Eep. 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 y. Warner, supra.) Sec. 2. 'What to Contain. The answer of the defendant must contain : 1. A general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof, suflScient to form a belief. 2. A statement of any new matter constituting a defence or counterclaim, in ordinary and concise language, without repetition. (Code Civ. Proc. § 500). It will be noticed, that the denial authorized by the section, is only of the mate- rial allegations of the complaint, which are sought to be con- troverted ; 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. {^Prin- dle v. Caruthers, 15 N .Y. 425). Immaterial allegations in the complaint need not be denied, and if the issue which is made by the answer is upon an immaterial allegation only, it will be stricken out as frivolous. [Fairchild y. O. a & B. By. 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 a,bsence 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 publishing a libel, is not material. {Fry y. Bennett, 5 Sand. 54). Nor are allegations of time or place material, unless time or place is of the substance of the action. {Livingston y. Hammer, 1 'Bosw.QlO). Allegations of value, in an action for conversion, or replevin, are immate- rial, and should not be denied. [McKenzie v. Farrell, 4 THE ANSWER. 349 Bosw. 192, 202). Circumstances of aggravation in an ac- tion for a tort {^Gilbert t. Bounds, 14 How. Pr. 46), or allegations of damage in an action for xiuliquidated damages {Hacketi v. Richards,- 3 E. D. Smith, 13, 31), are imma- terial allegations, and should not be denied in the answer The answer should not deny conclusions of law, as that the defendant is indebted [Emery v. Baltz, 94 N. T, 408) ; but if the complaint alleges no fact, and only that the defendant is indebted to the plaintiff, an answer that he is not indebted is good. {^Anonymous, 2 Code Rep. 67). Mixed allega- tions of law and fact may be denied. {Davis v. Hoppock, 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 Abb. N. C. 30). It is not sufficient, that the answer merely implies that the allegation is controverted, or justifies an inference that such is its effect. {West y. American Exchange Bank, supra^ AETICLE HL DENIALS. SECTION. 1. General denials. 2. Specific denials. 8. Denials except as admitted. 4. What is not a denial. 5. What may be proved under a general denial. " See. 1. General Denials. The general denial, as the term implies, is a denial in gross of all of the allegations of the complaint. ( Dennison v. Denni- son, 9 How. Pr. 246). But it has been held that a denial of several, though not of all, the allegations 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 in- tended 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 350 PEACTICE. must be a denial ; an averment that tlie defendants do not admit, is not sufficient [Bomberger v. Turner, 13 Ohio St. 263) ; nor is it sufficient to aver, of the allegations of the complaint, that they are not true. (^Versann v. McGregor, 23 Cal. 339). A denial of each and every material allega- tion of the complaint, is not good on a motion to make definite and certain. {Mattison v. Smith, 1 Eobt. 706; Seward v. Miller, 6 How. Pr. 312). A statement in the answer, that the defendant " says he denies etc." is good. {Jones v. Ludlam, 74 N. Y. 61). After much diversity of opinion, it is now settled that a general denial on informa- tion and belief is good in form. ( Wood v. Baydure, 39 Hun, 144). 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). Such a denial as to matters, presumably within the knowledge of defendant, is frivolous. {Fallon v. Durant, 60 How. Pr. 178 j Lewis v. Acher, 11 How. Pr. 163). As to such matters it is not permitted, nor will it be permitted in regard to acts done by the agent of the defendant {Shear- many. N. Y. Central Mills, 1 Abb. Pr. 187) ; nor as to acts alleged to have been done by his partner. {Chapman v. Palmer, 12 How. Pr. 37). In an action for assault and battery, a denial in this form was held to be frivolous. {Richardson v. Wilton, 4 Sand. 708). "Where an answer admitted the execution of a paper, which was set out in the complaint, but alleged that the defendant had no knowledge or information, sufficient to form a belief as to its contents, it was held that such an answer was frivolous. ( Collis v. Alhurtis, 9 Civ. Pr. Rep. 80). Sec. 2. Specific Denials. A specific denial is a denial of one of the allegations 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 par- THE ANSWEH. 351 ticular portion of the complaint to whicli it is intended to be directed. {3Iiller v. McClosJaj, 1 Civ. Pro. Eep. 252, 259). It is not infrequent for pleaders to deny certain of the alle- gations of the complaint, by referring to them as that por- tion of the complaint at, or between certain folios, or as certain paragraphs of the complaint, without setting forth the facts which are intended to be denied; such a mode of denial is not sufficient on a motion to make the answer definite and certain; and it has been condemned by high authority. [Cmdkins v. Bolton, 98 K. Y. 511, 514). It is in violation of the rule, that the pleader must state clearly ■what allegations are intended to be denied, and the defen- dant is responsible for any failure to express his meaning clearly and unmistakably; and neither the court, nor the c^jposite party is bound to search throiigh the answer for the purpose of spelling out a denial, which it is the duty of the defendant to express clearly and unequivocally; and while the plaintiff may move to make the answer definite and certain, he is not compelled to do so, but may take ad- vantage upon the trial, of any failure to meet and controvert the allegations of the complaint. {^Olark v. Dillon, 97 N. Y. 370). Sec. 3. S^iials Except as Admitted. It is not unusual for the answer, after certain allegations, to allege that the defendant denies each and every allega- tion of the complaint, not hereinbefore admitted. Strictly speaking that is neither a general nor a specific denial [Mill- ville Manufacturing Co. v. Salter, 15 Abb. N. C. 305) ; but in practice it has been allowed, as making the pleading brief and simple. [Parshallv. Tillou, 13 How. Pr. 7; Allis v. Leonard, 46 N. Y. G88; 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 allegation 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 jjlain that there can be no mistake in ascertaining what is put in issue [Haines v. Herrick, 9 Abb. N. C. 379), and the defendant is only permitted to use this form, when the excepted denials are so specific, as to clearly point out the 352 PEACTICE. 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. C. 105). So, it has been held that a denial of each and every allega- tion, not hereinbefore admitted, or avoided, was not a suffi- cient denial to form an issue. {Miller v. McClosky, 1 Civ, Proc. Bep. 252). It was held that a denial, except as admitted, qualified, or explained, would be stricken out as frivolous. {Hoffman v. N. Y. Lake Erie & W. R. E. Co. 50 Super. 403). An answer, alleging that it denies each and every allegation in the complaint contained, not herein- before specifically admitted or denied, or not hereinbefore specifically admitted 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 specifying 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. Sec. 4, AVhat is not a Denial. Allegations of fact, inconsistent with the complaint, but not otherwise denying the allegations of the complaint, do not put them in issue. ( West v. American Exchange Bank, 44 Barb. 175; Fleischmann v. Ster7i, 90 N. Y. 110). In an action for goods sold, an allegation that the defendant has no recollection 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 origi- nal is required, it does not amount to a denial of the instrument. {Murray v. N. Y. Life Ins. Co. 85 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 THE ANSWER. 353 action, does not put the assignment in issue, unless the answer contains a general denial. [Fosdick v. Groff, 22 How. Pr. 158). See, 5. Mrhat 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 dis- proved under a general denial. ( Weaver v. Barden, 49 N. y. 286). But a defense founded on new matter, or one "which confesses and avoids the cause of action, can not be proved unless it is set up in the answer. [McKyring v. Bull, K) N. Y. 297). It will be seen that the application of this rule depends largely on the form of the complaint. 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 \. Otis, 71 N. T. 36). But if non-payment is a necessary part of the plaintiff's case, the defendant may dis- prove it, although he has not set up payment in the answer [Knapp v. Roche, 94 N. Y. 329) ; or if plaintiff, to entitle bim 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. {^Griffin v. Long Island R. R. 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 ( Wan- dell V. Edwards, 25 Hun, 498) ; although as will be seen hereafter, he can not 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 plaintiff, and placed to his credit. ( Gooddale v. Central Nat. Bank, 16 Wkly. Dig. 864). In an action to recover a loan made by a check, it was held that the defendant, under a general 23 354 PEACTICE. denial, may show facts tending to disprove the allegation o£ a personal loan by the plaintiff. [Koehler v. Adler, 91 N. Y. 657) ARTICLE IV. NEW MATTEB. SECTION. 1. What it is. 3. Defences. 3. Partial defences. Sec. 1. AVhat it isa 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. [Bell v. Yates, 33 Barb. 627; Manning v. Winter, 7 Hun, 482). Matter, which merely denies the allegations of the complaint, or states circum- stances which disprove them, is not new matter. {Madde V. Buckgaber, 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 counterclaim. Within this definition of new i^atter are included the statute of lim- itations (Code Civ. Ptoc. § 413; Dezengremel v. Dezen- gremel, 24 Hun, 457) ; usury {Morford v. Davis, 28 N. Y. 481) ; nonjoinder of parties, not appearing on the face of th© complaint [Reed v. Hayt, 51 Super. 121) ; that there- is another action pending for the same cause [Remington v. Walker, 21 Hun, 322) ; the statute of frauds {Myers v. Dorman, 34 Hun, 115) ; that the contract sued on is invalid for fraud [Dubois v. Hermance, 56 N. Y. 673, 674) ; or duress ; or because of the coverture or infancy of the de- fendant ( Westervelt v. Ackley, 62 N. Y. 505) ; or as against public policy (Vischer v. Bagg, 21 Wkly. Dig. 399; Schreyer v. Mayor, etc., 39 Super. 1) ; or 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 [Seward v. Torrence, 3 Hun, 220) ; or tender [Becker v. Boon, 61 N. Y. 317) ; or accord THE ANSWER. 355 and satisfaction {Colis v. Soulsby, 21 Cal. 47-50) ; or, in an action for wrongs, anything which justifies the act of the defendant, either by showing that he acted by authority {Graham v. Harrower, 18 How. Pr. 144); or with license [Clifford V. Dam, 81 N. Y. 52); or in self-defense; or a justification in slander. Sec. 2. Defenses. Defendant may interpose as many defenses as he has (Code Civ. Proc. § 507), and they all constitute but one answer. [Gardner v. Clark, 21 N. Y. 399). 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 commence- ment is required, to mark each separate defense. [Bridge v. Payson, 5 Sand. 210). The defendant may put his defense upon distinct, and even upon inconsistent grounds [Good- win V. Weriheimer, 99 N. Y. 149) ; but the court may re- quire 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 impossi- ble that the defendant should have two such defenses. [Hol- lenbeck v. Clow, 9 How. Pr. 289). The following defenses may be pleaded together, and the defendant will not be re- quired to elect between them; the statute'of limitations, and a general denial [Ostrom v. Bixby, 9 How. Pr. 57); a plea in abatement, and in bar [Sweet v. Tuitle, 14 N. Y. 465) ; a general denial, and infancy [MoU v. Burnett, 2 E. D. Smith 50) ; a general denial, and a release [Kellogg v. Baker, 15 Abb. Pr. 286) ; in an action for an assault, a general denial, son assault demesne, and molliter manus imposuit [Lansingh V. Parker, 9 How. Pr. 288) ; and in an action for false repre- sentation, a general denial, and that the representations were true. [Otis v. Boss, 8 How. Pr. 193). In an action for slander, the defendant may prove mitigating circumstances, notwithstanding he has pleaded, or attempted to prove a jus- tification. (Code Civ. Proc. § 535). He may also deny speaking the words, and allege that they were true. [Buhler V. Wentworth, 17 Barb. 649). In an action of replevin, he may set up a denial of the taking, and a justification of it 356 PBACTICE. {Hackley v. Ogmun, 10 How. Pr. 44) ; and he may also unite a denial of any knowledge or information sufficient to form a belief as to the plaintiff's title, with a claim of lien on the property. {Townsend v. Plait, 3 Abb. Pr. 325). But an answer that the defendant is civilly dead, is held to be in- consistent with the fact of answering; and is bad on de- murrer. [Freeman Y. Frank, 10 Abb. Pr. 370). A carrier by water can not answer that he was not the owner of the vessel, and 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. [Lewis v. Acker, 11 How. Pr. 163). So a general denial, and a plea of tender, have been held to be inconsistent. [Livingston 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 answer, although it arose after the commencement of the action. ( Willis v. Chipp, 9 How. Pr. 568 ; Bendit v. Annesley, 42 Barb. 192). A dilatory defense can not be pleaded, unless it is verified. (Code 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 Civil Procedure, but it must be expressly stated to be a partial defense to the entire complaint, or to one or more separate causes of action, therein set forth. Upon a demurrer thereto, the question is, whether it is sufficient 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 injury, or an injury to property, is a partial defense, within the meaning of this section. (Code 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 de- THE ANSWER. 357 fenses to the entire cause o£ action. (Code Civ. Proc. § 536). Anything which goes to a partial extinction of the plaintiff's claim, is a partial defence. [Bush y. Prosser, 11 N. Y. 347, 352, 353). Section five hundred and thirty-six, above cited, only requires the defendant to plead facts in mitigation of damages, when 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 y. 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 ascertain the damages. ( Code 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 damages, must be stated to be pleaded for that purpose, or the plaintiff may assume that they are pleaded as a de- fense, and may demur to them {Fry v. Bennett, 5 Sand. 54) ; or he may move to have them stricken out on motion {Van Benschoten Y. Yaple, 13 How. Pr. 97); or he may move to state separately what is stated in mitigation, and what in justification. {Fink v. Justh, 14 Abb. Pr. N. S. 107). In pleading such matters, however, 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 pleE^ded, by a statement that the defendant Avill on the trial, rely in mitigation, on facts set up as a justification. {Howard v. Raymond, 11 Abb. Pr. 155). He may plead in mitigation the same matter, which he has alleged as a jus- tification. {Bennett v. Matthews, 64 Barb. 410). 358 TRACTICE. AKTICLE V. COUNTERCLAIM, SECTION 1. What it is. 2. Rules for the allowance of a counterclaim. 3. When it should be jileaded. Sec. 1. "What it is. The counterclaim, 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 fol- lowing causes of action against the plaintiff, or, in a proper case, against the person whom he represents, and in favor of the defendant, 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 or trans- action, set forth in the complaint, as the foundation of the plaintiff's claim, or connected with the subject of the action. 2. In an action on contract, any other cause of action on contract, existing at the commencement of the action. (Code Civ. Proc. § 501). The term counterclaim, as used in the Code of Civil Pro- cedure, is more comprehensive than either recoupment or set off, but it includes both. ( Vassar v. Livingston, 13 N. Y. 248, 257 ; Clinton v. Eddy, 1 Lans. 61). A set off is a money demand, by the defendant against the plaintiff, and refers to a debt or demand independent of, and unconnected with, the plaintiff's cause of action; it may exceed the plaintiff's claim, or fall short of it; recoupment, however, always im- plies that the plaintiff had a cause of action. The doctrine of recoupment was, before the Code, confined to damages for non-performance of the very contract sued upon, and a balance could not be certified in favor of the defendant. {Boston Silk & Woolen Mills v. Eull, 1 Swe. 359, 363). The counterclaim may be of a legal or equitable nature. [Hicksville & C. R. R. Co. v. Long Island R. R. Co. 48 Barb. 355; Currie y. Carrie, 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 secured him, THE ANSWEB. 359 on the same state of facts. [Gleason v. Moen, 2 Duer, 642; Leavenworth v. Packer, 52 Barb. 132, 137). The words " must tend to dimmish 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 counterclaim a demand on his part, for the foreclosure of a mortgage on a different piece of property. [Throop^s Code § 501 note). 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 defendant owned the mortgage, and it was due, was held to set up a proper counterclaim, because it tended to diminish the plaintiff's recovery. ( 0^ Dougherty V. Bemington Paper Co., 1 N. Y. State Eep. 524). In an action to restrain the diversion of water from the plaintiff's mill, an answer setting up that the water claimed by plain- tiff did not belong to him, but was wrongfully diverted by plaintiff from defendant, and asking that the plaintiff be re- strained from such diversion, is a good counterclaim, as tend- ing 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 asking an injunction to restrain such storing, is not good, because it does not affect the plaintiff's right to recover. [Grange v. Gilbert, 6 N. Y. S. Eep. 423). A coun- terclaim must always contain a cause of action ( Vassar v. Livingston, 13 N. Y. 248), upon 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 can not avail himself of a counterclaim, which the court, before which the action is pending, has no juris- diction to try and determine. A counterclaim must be a complete cause of action, existing in favor of the defendant where he asserts it; otherwise, he has no counterclaim there. (Cragin v. Lovell, 88 N. Y. 258). In an action of eject- 360 PEACTICE. ment, an answer setting up that tlie defendant liad paid taxes, and put permanent improvements and repairs upon the premises, the amount of which he sought to set off in extin- guishment or reduction of the plaintiff's claim for damages, was held not to constitute a counterclaim. [Pier son v. Safford, 30 Hun, 521). The counterclaim must be against all the plaintiffs in the action. [Goodwin v Conklin, 6 Wkly. Dig. 131). If others than the plaintiff are liable tO' the defendant upon it, it is not available [Mynderse v. Snook, 1 Lans. 488), unless the plaintiff might have been sued separately. [Morey. Rand, 60 N. Y. 208). It must belong to the defendant. If owned by him and another person, who is not a party to the action, he can not 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 de- fendants jointly, unless the action is one in which a separate judgment might be rendered against any defendant; in which case, that defendant may interpose any counterclaim that he has. [Bockover v. Harris, 43 Super. 548). Any defendant may set up a counterclaim, if a separate judgment; may be rendered against him, although a joint judgment would also be proper. [Bathgate v. Haskin, 59 N. Y. 533). If a principal and surety are sued together, a successful re- coupment by the principal will avail to the benefit of the surety [Springer v. Dwyer, 50 N. Y. 19), although the surety can not set up as a counterclaim, an independent cause of action belonging to the principal. [Lasher v. Williamson, 55 N. Y. 619). The counterclaim must belong to the defendant, at the commencement of the action. [Chambers v. Lewis, 11 Abb. Pr. 210; 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 re- pealed by the Code of Civil Procedure. One provision of that statute was, that the set off must have existed at the time of the commencement of the suit, and must then have belonged to the defendant. The Code of Civil Procedure contains no precise equivalent of this requirement, and it has been suggested that, since the repeal of the revised THE ANSWER. 361 statutes, it is not necessary that the counterclaim must belong to the defendant at the commencement o£ the action. The cases above cited, however, were decided upon the pro- visions of the Code of Procedure, which were substantially- like those of the Code of Civil Procedure, and did not refer at all to the revised statutes, and, for that reason, it is sup- posed that the law is still as stated in those cases. The word transaction, used in the first sub-division of section five hundred 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). It is. broader and more comprehensive 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, circum- stances 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 action; as these twO' opposing rights can not be exactly the same, it follows that there may be, and generally must 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). So it was held in the case last cited, that the first sub-division of the corres- ponding section of the Code of Procedure applied to the three following classes of cases: 1. Actions in which a contract is stated as the foundationi of the plaintiff's claim. 2. Actions in which some transaction, not being a con- tract, is set forth as the foundation of the plaintiff's claim. 3. In actions in which either a contract, or a transaction, which is not a contract, is set forth as the foundation of the plaintiff's claim, counterclaims which neither arise out of the same contract, nor out of the same transaction, but are con- nected 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 endorsed notes or bills of exchange, brought to recover the value thereof from a defendant, in whose possession they are, and who claims title 362 PRACTICE. thereto, through the plaintiff's endorsement, it was compe- tent 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 endorser. Such a claim was held to be a proper subject of counterclaim in such an action, both as arising out of the contract which formed the foundation of the plaintiff's claim ; as arising out of the same transaction, as his cause of action ; and as imme- diately connected with the subject of the action. In another case, it was held that in an action for the conversion of cer- tain property, an allegation in the answer, that the property was mortgaged 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 ; thatit was subsequently discovered; that the plaintiff had no title to a part of the property taken by the defendant, and which was included 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 counterclaim within subdivsion one. {Chamboret v. Cagney, 2 Swe. 378). In an action to recover for personal property, delivered to the defendant under contract, he was permitted to set up as a counterclaim, a lien in liis favor by virtue of the same con- tract. [Brown v. Buckingham, 11 Abb. Pr. 387). In an action to recover for services, rendered as attorney for the defandant's intestate, it was held that the defendant may set up as a counterclaim, that the plaintiff under his employment, became possessed of personal property, which after the death of the intestate, he transferred in fraud of the estate. [Lerche v. Brasher, 37 Hun, 385). The two cases last cited, were put upon the ground, that the counterclaim set up in the answer, was a part of the same transaction set forth in the complaint, as the plaintiff's cause of action. The term " subject of the action," used in the same subdivision THE ANSWEE. 363 has been held to mean, either the property which is sought to be recovered, or in regard to which damages are asked, or the right which has been violated. {Glenn & Hall Manfg. Go. v. Hall, 61 N. Y. 226). Mr. Pomeroy defines it, as denoting the plaintiff's principal primary right, to en- force or maintain which the action is brought. {Pomeroy 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 counterclaim, under subdivision one. {Barnes v. Gilmore, 6 Giv. Proc. Eep. 286) In an action to restrain the unauthorized use by the defendant, of a name claimed to be a trade-mark, the defendant was permitted to set up as a counterclaim, 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 coun- terclaim was held to be connected with the subject of the action, under this subdivision. {Glenn & 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 insufficient security; that the obligor was insolvent; that the plaintiff was the second mortgagee in possession of the land; and that with intent to defraud the defendant, that he cut the wood in suit, on said land, thereby wasting it; and that on foreclosure of the defendant's mort- gage, there was a large deficiency; this was held to be a good counterclaim, under subdivision one of section five hun- dred and one of the Code of Civil Procedure, as connected with the subject of action. ( Carpenter v. Manhattan Life Ins. Co. 98 N. Y. 552). A counterclaim under subdivision two of this section, may be upon a contract, either express or implied {Andrews v. The Artisans Bank, 26 N. Y. 298), and for liquidated or unliquidated damages. {Shubart v. Harteau, 34 Barb. 447 ; Lignat v. Bedding, 4 E. D. Smith, 285). In an action for goods sold, the defendant may set up, under this section, as a counterclaim, damages sustained 364 PEACTICE. by him for breach of warranty of the goods. (^Norton y. Drey fuss, 51 Super. 491). In an action to foreclose a mort- gage, where a judgment for deficiency was asked against an obligor on the bond, he may set up as a counterclaim, a cause of action on a contract, which he had against the plain- tiff when the action was begun. {^Hunt v. Chapman, 51 N. Y. 555). In an action on contract, 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 counterclaim can be set up. (^Nash V. White's Bank of Buffalo, 13 Wkly. 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, can not be set up as a counterclaim. {^National Bank of Auburn Y. Lewis, 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. Stewart, 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 counterclaim, a demand for money fraudulently ob- tained 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 implied contract to repay; and that contract is held to be joint and severalj like the tort. {City National Bank v. National Park Bank, 32 Hun, 105). Sec. 2. Rules for the Allo-wance of Counterclaims. Sub-division 1. — Against Assignees of Conteacts. If the action is founded upon a contract, which has been assigned by the party thereto, other than a negotiable promis- sory 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 belonging to the defendant, in good faith, before notice of the assignment, must be allowed as a counterclaim, 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. (Code Civ. Proo. § 502, subd. 1). Both debts must have been due and THE ANSWER. 365 payable at the same time, and before the change in owner- ship 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 credi- tor, which prevents him from then bringing suit upon the demand, or requires something as a prerequisite ; it is not therefore, necessary that the action could have been main- tained at the time upon the debts. ( Taylor v. Mayor etc., 82 N. Y. 10). Where a banker held an overdue note of the de f endant, when the defendant made a deposit with him, taking a certificate of deposit, which was payable upon demand, and subsequently the banker made an assignment for the benefit of creditors, 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 payment of the deposit had been made. {^Seymour v. Dunham, 24 Hun, 93). The demand sought to be set off must have been due before the assignment. (^Martin v. Kunsmuller, 37 N. Y. 396). In an action by an assignee, for damages for breach of contract to sell goods to the assignor, the defendant can not set up as a counterclaim, a judgment against the assignor, for the purchase price of goods recovered after the assign- ment, although the action was brought before the assignment. (Lucas v. East Stroudsburg Glass Co. 38 Hun, 581). Where the defendant executed a bond to the plaintiff's testa- tor, conditioned to pay a certain sum to the executor after the testator's death, it was held that the debt due from the defendant to the testator in his life-time, could not be set up as a counterclaim in an action to foreclose the mortgage given to secure the bond, and for a deficiency, 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 can not 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 unliquid- ated, if, because of the insolvency of either party, satisfaction could not otherwise be obtained. {Littlefield v. Albany Co. Bank, 97 N. Y. 581). It is otherwise, however, if the de- 366 PRACTICE. mands are not connected. [Keep y. Lord, 2 Duer, 78). If a set off is not allowable at law, but there are equitable cir- cumstances whicb 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 & Leather Bank, 74 N. Y. 467). Sub-division 2. — Against Teansfekkee of Past Due Note. If the action is upon a negotiable promissory note, or bill of exchange, which has been assigned to the plaintiff after it became due, a demand, existing against a person who as- signed or transferred it, after it became due, must be allowed. as a counterclaim, to the amount of the plaintiff's demand, if it might have been so allowed against the assignor, while the note or bill belonged to him. (Code Civ. Proc. § 502, subd. 2) Sub-division 3. — Wheke a Paety Sues ob Depends in a Eepeesentative Capacity. If the plaintiff is a trustee for another, or if the action is in the name of a plaintiff, who has no actual interest in the contract upon which it is founded, a demand against the plaintiff shall not be allowed as a counterclaim ; 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 plaintiff's demand, must be allowed as a counterclaim, if it might have been so allowed, in an action by the person bene- ficially interested. (Code 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 counterclaim, a demand belonging to the dece- dent, or other person whom he represents, where the person so represented would have been entitled to set forth the same in an action against him. (Code Civ. Proc. § 505). In an action brought by an executor or administrator in his repre- sentative capacity, a demand against the decedent, belong- ing, at the time of his death to the defendant, may be set forth by the defendant as a counterclaim, as if the action had been brought by the decedent in his life time ; and, if a balance is found to be due to the defendant, judgment must THE ANSWER. 367 be rendered therefor against the plaintiff in his representa- tive capacity. Execution can be issued upon such a judg- ment, only in a case where it could be issued upon a judgment, in an action against the executor or administrator. (Code Civ. Proc. § 506). In an action by the receiver of a bank, to recover money due to the bank, the defendant may counterclaim a debt due from the bank to him {Pendergast v. Greenfield, 40 Hun, 494) ; unless the receiver represents only the creditors 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 counterclaim the value of services rendered by him for the benefit of the estate, on the employment of the receiver. {Davis V. Stover, 58 N. Y. 473). An allegation that the assignment to the plaintiff was merely nominal and without consideration, and was made and accepted with the fraudu- lent purpose of enabling the assignor to take the proceeds, exempt from the claims of his creditors, is not sufficient to make the plaintifif 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 action against an executor on a contract, he can counterclaim 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 counterclaim a debt from the testator to him ( Thompson v. Whiimarsh, 100 N. Y. 35 ) ; but he may set up a claim against the executor for the funeral expenses of the testator. {Patterson y. Patterson, 59 N. Y. 574). In an action by an administrator, to recover from a bank a deposit due to the decedent in his life time, the defendant can not counterclaim a claim against the decedent, which did not become due until after his death. {Jordan v. Nafl Shoe & Leather Bank, 74 N. Y. 467). That case was de- cided 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 eifected a change in the law. It is believed that the law has not been changed. 368 PRACTICE. because if the action had been brought by the decedent in bis life time, the executor or administrator, instead of being the original plaintiff, would have become the plaintiff bj 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 interposed as a counterclaim, [ffeidelbach v. Kilpatrick, 3 Civ. Proc. Rep. 209, note on page 226). In an action by the administratrix to recover a debt due the estate, the de- fendant can not set up as a counterclaim, his distributive share of the estate as next of kin. ( Woodhouse v. Wood- house, 11 Wkly. Dig. 241). Sub-division 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 two or three of Chapter XV, of the Code of Civil Procedure, a cause of action against the plaintiff and in favor of the de- fendant, arising under either of said articles, may be inter- posed, in connection with a denial of the material allegations of the complaint, as a counterclaim. (Code Civ. Proc. § 1770). Sub-division 5. — In Actions by the People. The 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 Shonld be Pleaded. Sub-division 1. — When to be Pleaded. The defendant is not bound to set up a counterclaim, con- sisting of a cause of action, independent of that contained 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 coun- terclaim and afterwards sues on it, he will be required to elect in which action he will insist upon it. ( Wiltsie v. Nor- tham, 3 Bosw. 162). If the matter relied on as a counter- claim, is directly involved in the plaintiff's action, so that the THE ANSWER. 369 recovery there is decisive of it, it must be set up, and a sep- arate action can not be brought upon it. [Nemeiiy v. Naylor, 63 How. Pr. 387; Dunham v. Bower, 77 N. Y. 76). Sub-division 2. — How Pleaded. It must be pleaded as a counterclaim, if it is relied upon as such. [Equitable Life Assu. Soc. v. Cuyler, 75 N. Y. 511; Simmons v. Kayser, 43 Super. 131). An answer will not be regarded as a counterclaim, 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 plain- tiff 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). The defendant may inter- pose as many counterclaims as he has, whether they are legal or equitable. (Code Civ. Proc. § 507). — Sub-division 3. — Effect of Pleading Counteeclaim. A counterclaim, which is pleaded and passed upon, is a bar to another action for the same cause [Jozies v. McOee, 7 Wkly. Dig. 97) ; although no affirmative relief was ren- dered on it. {Davidson v. Alfaro, Wkly. Dig. 455; Inslee V. Hampton, 11 Hun, 156). If the counterclaim is with- drawn before or at the trial, a subsequent action may be brought on it. {Watson v. Cowdrey, 23 Hun, 1G9). If the defendant after pleading a counterclaim, obtains a non- suit as to the plaintiff's cause of action, he in effect submits to a nonsuit as to the counterclaim, unless it was a claim which he was bound to present and litigate in the action {Mayor etc. v. Ketchum, 67 How. Pr. 161); but if the de- fendant moves for a nonsuit, the plaintiff may still insist that the issues raised by the counterclaim, shall be submitted to the jury. {Miller v. Freeborn, 4 Eobt. 608). Sec. 4. Judgments on the Counterclaim. In an action upon contract, where the complaint demands judgment for a sum of money only, if the defendant, by his answer does not deny the plaintiff's claim, but sets up a 24 ' 370 PRACTICE. counterclaim amounting to less than the "plaintiff's claim, the plaintiff, upon filing with the clerk an admission of the counterclaim, 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. (Code Civ, Proc. § 512). Where a counterclaim is established, which 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 judgment 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 defendant's right to recover, from another person, so much thereof as the judgment does not cancel. (Code Civ. Proc. § 503). AETICLE VI. DEMAND OF BELIEF. 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 counterclaim interposed by him, he must demand the judg- ment in his answer. (Code Civ. Proc. § 509). 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. ( Code Civ. Proc. § 521). The defendant can have no affirmative relief, if he does not ask for it in the answer. (Shide v. Hamilton, 3 Daly, 462). In an action of ejectment if the defendant alleges an equitable title and right to a convey- ance, 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 demands in his answer. [Annis v. Upton, 66 Barb. 370). CHAPTER XII. THE EEPLY. 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 counterclaim, the plaintiff, if he does not demur, may reply to it. (Code Civ. Proc. § 514). Where an answer contains new matter, constituting a defense by way of avoidance, the court may, in its discre- tion, 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 counterclaim. (Code Civ. Proc § 516). Where the answer contains no counterclaim, a reply can not be served, unless it is ordered pursuant to section five hundred and sixteen of the code, and it will be stricken out on motion. [Devlin v. Bevins, 22 How. Pr. 290; Dillon v. Sixth Ave. R. E. Co., 46 Super. 21). 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 counterclaim, and requires a reply. {Leslie v. Leslie, 11 Abb. Pr. N. S. 311). New matter does not require a reply, unless it is set up as a coun- terclaim. (Equitable Life Assu. Sob. v. Cuyler, 75 N. Y. 511; Ward v. Comegys, 2 How. Pr. N. S. 428). The fol- lowing defenses have been held not to require a reply: set off [American D. & I. Co. v. Staley, 40 Super. 539) ; dis- 372 PRACTICE. .charge of the defendant in bankruptcy {Argall v. Jacobs, 87 N. Y. 110) ; in an action of trespass, an answer that the de- fendant 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 mortgage was usurious, and praying that it be delivered up and cancelled. [Equitable Life Assu. Soc. V. Cuyler, supra). A defense made by way of new matter, not constituting a counterclaim, 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). When a counterclaim has not been interposed, a reply can not be ordered nor the defendant required to re- ceive it on the plaintiff's application. [McDonald v. Davis, 1 Law Bull. 20). Where a counterclaim has been inter- posed, the court has no authority to order a reply to be served. [Adams v. Roberts, 1 Civ. Proc. Rep. 204). By replying to an answer containing a counterclaim, the plaintiff waives any objection to the form of the pleading, or to the introduction of evidence to prove the counterclaim [Ayers V. O'Farrel, 10 Bosw. 143; Thomas v. Loaners'' Bank, 38 Super, 4C6); but he does not waive the objection that the counterclaim is not allowable in that action. [Smith v. Hall, 67 N. Y. 48). If the reply is served without an order, to an answer not setting up a counterclaim, the irregularity is waived by its acceptance, without a motion to strike it out. [Wilkin V. Baplee 5 Wkly. Dig. 560). ARTICLE II. WHAT TO CONTAIN. The reply must contain a general or specific denial of each material allegation of the counterclaim, controverted by the plaintiff, or of any knowledge or information thereof, sufficient to form a belief; and it may set forth in ordinary and concise language, without repetition, new matter not inconsistent with the complaint, constituting a defense to the counterclaim. (Code Civ. Proc. § 514). A reply may THE EEPLY. 373 contain two or more distinct avoidances of tlie same defense or counterclaim; but tliey must be separately stated and numbered. (Code Civ. Proc. § 517). The reply is sub- stantially an answer to the counterclaim, 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 sufi&cient. [Chawviieau 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 required by law, or whether the running of the statute was suspended. An allegation that the action was commenced within six years, is not sufficient. {Jarvis v. Pike, 11 Abb. Pr. N. S. 398). A denial in a reply, on information and belief, of an allegation of a coun- terclaim, is insufficient, if it appears by the complaint, that Buch allegations are within the plaintiff's knowledge. [Fal- lon v. Durant, 60 How. Pr. 178 ) . A new assignment is not admissible in a reply. (Steivart v. Wallis, 30 Barb. 344). It was held in Miller v. Losee (9 How. Pr. 356), that a reply could set up a counterclaim to the counterclaim alleged in the answer ; but it will be noticed that section five hun- dred and fourteen above cited, does not in terms permit a counterclaim to be set up. The theory of the Code of Civil Procedure, however, is that all litigations between the par- ties shall be settled in one action so far as practicable ; and for that reason, it is believed that the case of Miller v. Losee properly states the law. An objection that the coun- terclaim is barred by the statute of limitations is waived, if not set np in the reply. (Code Civil Proc. § 413). APvTICLE III. JUDGMENT ON FAILURE TO KEPLY. If the plaintiff fails to reply or demur to the counterclaim, the defendant may apply, upon notice, for judgment there- upon; 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 plaintiff applies for judg- 374 PRACTICE. ment. (Code Civ. Proc. § 515). If not replied to, a coun- terclaim is taken as true. [Clinton v. Eddy, 1 Lans. 61). The plaintiff by not replying, admits that the matters set up in the counterclaim are due and owing; but, if defendant does not take advantage of that admission, and attempts to make proof of the facts alleged in his counterclaim, he waives it; and, if the facts proved fail to show that the coun- terclaim 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 he goes to trial without raising the point that no reply was served. (^Hopkins v. Lane, 2 Hun, 38; Jordan v. Nafl 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. Eep. 204). Although the plaintiff does not reply, he may still insist that the facts set up in the answer do not constitute a set off. [Jordan v. Nafl Shoe & Leather Banlc supra). CHAPTEE XIII. DEMURRER. ARTICLE I.— When it lies. ARTICLE II.— Form and effect of the demurrer. AliTICLE III. — Grounds of demurrer to the complaint. ARTICLE IV. — Grouods of demurrer to pleadings after complaint. ARTICLE V. — Amendments after demurrer. ARTICLE VI. — When objections taken by answer. ARTICLE VII.— When objection is waived. AKTICLE 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 appar- ent 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 subject to one or more of the objec- tions, specified in the section defining the grounds of de- murrer. {Marie v. Oarrison, 83 N. T. 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. T. 872). The defendant may demur to the complaint, where one or more of the following objections thereto appear upon the face thereof: 376 PRACTICE. 1. That the court has not jurisdiction of the person of the defendant. 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 anotlaer 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 defendant. 7. That causes of action have been improperly united. 8. That the complaint docs not state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 488). The defendant may also demur to the reply, or to a sep- arate traverse to, or avoidance of, a defense or counterclaim, contained in the reply, on the ground that it is insufficient in law, upon the face therof. (Code Civ. Proc. § 493). The plaintiff may demur to a counterclaim or a defense consisting of new matter, contained in the answer, on the ground that it is insufficient in law upon the face thereof. (Code Civ. Proc. § 494). The plaintiff may also demur to a counterclaim, upon which the defendant demands an affirmative judgment, where the objections thereto, which are enumerated in article four, section two, appear upon the face of the counterclaim. ( Co. Civ. Proc. § 495). A demurrer can only be interposed upon one or more of the grounds specified in these sections, and for a defect which affects a substantial right. [Ayers v. Lawretice, 59 N. Y. 192). It will not lie for merely formal defects; as for irrelevancy {Bostwick v. Dry Goods B'k, 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 Nafl B'k., 49 N. Y. 626; Moffitt v. McLaughlin, 13 Hun, 449) ; nor because causes of action are not sep- arately stated or numbered {Bass v. Comstock, 38 N. Y. 21 ) ; nor will it lie for a mere clerical error ( Roussel v. SL Nicholas Ins. Co., 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 DEMDRBEB. 377 ■which appears only by an examination of the jurat {State B'h. V. Shaw, 5 Hun, 114) ; nor can a demurrer be inter- posed on the ground that the plaintiff has an adequate remedy at law. ( Walker v. Spencer, 45 Super, 71). 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 can not 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. {Sands v. St. John, 36 Barb. 628). It 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 demurrer; and that view seems to be sustained by the case of Goodman v. Robh. (41 Hun, 605). The question whether a denial on knowledge and information is sufficient, can not be raised by demurrer. {Nichols v. Lumpkini 51 Super. 88). A supplemental complaint can not be de- murred to {Fleischmann v Bennett, 1 Law. Bull. 43), un- less it has been pleaded in place of the original complaint; but a demurrer may be interposed to the original and sup- plemental complaint taken together. ( Taylor v. Metropol- itan Elevated R. R. Co., 52 Super, 299-562). A demurrer will only lie to the whole of the cause of action or defense ; and not to a separate paragraph of a pleading. {Lord v. Vreeland, 15 Abb. Pr. 122; Hackley v. Draper, 4 T. & C, 614). 378 PEACTICE. ' AETICLE II. FOEM AND EFFECT OF THE DEMUEEEE. SECTION 1. Form. 2. When joined with answer. 3. Effect. Sec. 1. Form. The demurrer must distinctly specify the objections to the complaint; otherwise it may be disregarded. An objec- tion taken under subdivision first, second, fourth or eighth of section four hundred and eighty-eight ( Code Civ. Proc. ) maybe stated in the language of the subdivision; an objec- tion, taken under either of the other subdivisions, must point out specifically the particular defect relied on. ( Code Civ. Proc. § 490). A demurrer, taken to a counterclaim, must distinctly specify the objections, othervrise it may be disre- garded. The mode of specifying the objections is the same, as where a demurrer is taken to a complaint. (Code Civ. Proc. § 496). The demurrer may be interposed to the whole pleading, or to one or more separate causes of action or defenses. (Code Civ. Proc. §§ 492, 493, 494). But it must be to the whole pleading, or to the whole of one or more causes of action or defenses. {Hnckley v. Draper, 4 T. & G. 614). The grounds upon which the demurrer is taken, must all be distinctly specified, and it can not be sus- tained upon a ground not clearly stated. [Carter v. De- Camp, 40 Hun, 258). Any objection, appearing upon the face of the pleading, and not specified in the demurrer, is deemed to be waived. [Fulton 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 NaVl. B'k, 49 N. Y. 626; HaigU v. Brisbin, 7 Civ. Proc. E. 152) ; although the causes af action or de- fenses are not separately stated or numbered. [Seaver v. jH'odg'/cm, 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. [Peabody v. Washington Co. DEMURREK. 379 Mid. Ins. Co., 20 Barb. 339). So, if several defendants unite in a joint demurrer, it can not be sustained, if the com- plaint states a good cause of action as to one. [Oakley v. Tugwell, 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, [liicht- myer v. Bichtmyer, 50 Barb. 55). A demurrer to part of a pleading, should specify the part demurred to. {Jarvis v. Palmer, 11 Paige 650). Separate demurrers may be inter- posed to several causes of action or defenses. (^Ogdens- burgh Bank v. Paige, 2 C. E. 75). 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. (Code Civ. Proc. § 492). If there are several defendants, some may demur and others may answer. [Webb v. Vanderbilt, 39 Super. 4). A demurrer and answer to the same matter is not allowed. [Munn v. Barnum, 12 How. Pr. 563). The defendant will be com- pelled to elect upon which he will rely. [Spellman v. Welder, 5 How. Pr. 5 ; Bernard 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 v. Mich. South. R. R. 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 C. R. 219 ; Struver v. Ocean Ins. Co., 16 How. Pr. 422). Sec. 3. Effect A demurrer admits the facts stated in the pleading de- murred to. {Cutler V. Wright, 22 N. Y. 472) Upon de- murrer, 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 directly averred. [Marie ■y. Garrison, 83 N. Y. 14, 23). A demurrer does not admit conclusions of law. [Kip y. N. Y. & Harlem R. R. Co., 380 PRACTICE. 67 N. T. 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. iV. ¥. Life Ins. Co., 101 N. T. 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. {Cutter v, Wright, 22 N. T. 472). Upon the argument of the demurrer, all reasonable intendments are indulged, in support of the pleading demurred to. {LoriU lard v. Clyde, 86 N. Y. 384). AETICLE III. GKOUNDS OP DEMUKEEK TO THE COMPLAINT. SECTION. 1. That the court has no jurisdiction. 2. That plaintifiE has not capacity to sue. 3. Another action pending. 4. Misjoinder of parties plaintiff. 5. Defect of parties. 6. Misjoinder of causes of action. 7. No cause of action. Sec. 1. That the Court has no JnTisdiction. The want of jurisdiction is the basis of the first two grounds upon which a demurrer can be taken. (Code Civ. Proc. § 488, subd's 1 and 2). As we have seen, the objec- tion may be taken in the words of the statute. (Code Civ. Proc. § 490). The objection that the court has no jurisdic- tion of tbe person of the defendant, can be taken only to the complaint, and not to any subsequent pleading. The mean- ing of that objection is, that it appears by the complaint, that the person of the defendant is not subject to the jurisdiction of the court. The objection can not be taken simply because of the irregularity of the service of process. {Nones v. Hope Mid. Life Ins. Co. 8 Barb. 541). The objection does not raise any such question. (O. & L. C. E. R. Co. v. .Vermont & Canada R. R. Co. 16 Abb. Pr. N. S. 249). DEMURRER. 381 "Where several causes of action are properly joined, except that the court has no jurisdiction of one of them, the objec- tion must be limited to that one ; and must be for want 9f jurisdiction to the cause of action set out in that count, or it will be disregarded. {Cook v. Chase, 3 Duer, 643). In 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 jurisdiction, the complaint must show affirmatively that the court has jurisdiction of the sub- ject of the action, and the person of the defendant, or a de- murrer upon that ground will be sustained. {Frees v. Ford, 6 N. Y. 176; Simons y. DeSore, 4 Bosw. 547; Gilbert V. York, 41 Hun, 594). Sec. 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 Proce- dure. It can not be taken by using the words of the statute simply. (Code 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 asssociation, without alleging his authority to do so ; or as receiver, or executor, or in some other representative capacity, without alleging his appointment. This objection is independent of the objec- tion that the complaint does not state facts sufficient to con- stitute a cause of action; as the facts showing the existence of the capacity to sue, are not necessarily the facts which show the cause of action. {Bank of Lowville v. Edwards, 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. {Phoenix Bank v. Donnell, 40 N. T. 410). See. 3. Another Action Pending. This ground of demurrer is, that there is another action pending between the same parties for the same cause. (Code Civ. Proc. § 488, subd. 4). It may be stated in the 382 PBACTICK. words of the section. (Code Civ. Proc. § 490). To sustain a demurrer within this subdivision, 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 plain- tiff would be fully protected, although it is a special pro- ceeding, or a proceeding before another court of the state, the demurrer will be sustained {Groshon v. Lyon, 16 Barb. 461) ; although it is one which was begun by the defendant 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. ) ; and for the same cause ; it is not suffi- cient that the same property is in controversy. (^Dawley v. Brown, 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 r. Litchfield, 5 Sand. 330). . 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. (^Damhman v. Scliulting, 4 Hun, 50). Sec- 4. Mi^oinder of Parties Plaintiff. The fifth ground of demurrer to the complaint is that there is a misjoinder of parties plaintiff. (Code Civ. Proc. § 488, subd. 5). Under the Code of Procedure, a demurrer could not be taken upon this ground. {^People v. Crooks, 53 N. T. 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 misjoinder 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 plaintiff has no interest with the others in the cause of action [Berney v. Drexel, 83 Hun, 419, 421) ; or where the plaintiffs seek relief upon two separate or distinct contracts, in which they are not jointly interested [Juliano Ware Co. v. Sands, Daily Eeg., Feb. 4 1881) ; or where it appears that the DEMDRUER. 383 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. [Simar v. Cassady, 53 N. Y. 298; Enos y. Leach, 18 Hun, 139). Sec. 5. Defect of Parties. A demurrer may be taken to the complaint upon the ground that there is a defect of parties plaintiff, or defendant. (Code Civ. Proc. § 488, subd. 6). A demurrer upoa this ground must specify the names of the parties who should be joined. [Anderton x. Wolf, il Unn, oil, ol2). The defect must appear upon the face of the pleading. {Haines v. Hollister, 64 N. T, 1). Where it is apparent, the objection mast be takea by demurrer [Straus v. Tradesmens^ NaVl Bank, 36 Hun, 431); although the names of the absentees are not stated in the pleading. {Hees v. Nellis, 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 ap- pears affirmatively upon the face of the complaint that the party absent is living. In Strong v. Wheaion (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 sub- ject [Brainard v. Jones, 11 How. Pr. 569; Scofield v. Van Syclde, 23 How. Pr. 97). But later cases seem to have settled the rule the other way, and it may now be stated that an objection upon this ground may be taken, unless it ap- pears upon the face of the pleading that the absent parties are not living. [Eaton \. Balcom, 33 How Pr. 80; Sanders V. Village of Yonkers, 63 N. Y. 489, 493; Zabriskie v. Smith, 13 N. Y. 322; Green v. Lippincott, 53 How. Pr. 33). A demurrer under this subdivision, will not lie for an excess of parties defendant, but only for a deficiency. [N. Y. & N. Haven R. B. Co. v. Schuyler, 17 N. Y, 592). One defen- dant cannot demur for a defect of parties defendant, unless he has an interest in having the absentee made a defendant. [Anderlon v. Wolf, 41 Hun, 571). A demurrer for this ground will not lie, unless the parties omitted are not only 384 PEACTICE. proper, but necessary parties. ( Wing v. Bull, 38 Hun, 291). Nor will it lie, if tlie court can determine the con- troversy 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 con- tract with a firm, composed of the defendants and others whose names are unknown, but whom when discovered, the plaintiff ask leave to join as defendants, a demurrer will not lie for a defect of parties defendant. [Earle v. ScoU, 50 How. Pr. 506). If it appears upon appeal from a judgment, that the presence of other parties than those joined is neces- sary 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). Sec 6. Misjoinder of Causes of Action. The seventh ground of demuiTer to the complaint, is that causes of action have been improperly united. (Code Civ. Proo. § 488, subd. 7). The right to demur for misjoinder is not lost, because the several causes of action are not sep- arately stated. ( Wiles v. Suydam, 64 N. T. 173 ; Zorn v. Zorn, 38 Hun, 67). If they might have properly been joined, the remedy for the failure to separately state them is by a motion, and not by demurrer. [Bass v. Comstock, 38 N. T. 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. [Anderton 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 action, because in addition to the prayer that the release be set aside, they ask judgment separately for the amounts due to each. (Smith v. Schulting, 14 Hun, 52). Where the complaint alleges a cause of action at law, and one in equity, it is not therefore a misjoinder. (Lattin v. MoCarty, 41 N. T. 107; CaHer v. DeCamp, 40 Hun, 258). The fact that two kinds of relief are asked, does not necessarily make two causes of action. {Lattin v. McCariy, supra). In an action DEMUEEEE. 385 in the nature of a creditor's bill against seTeral judgment debtors, to reach property owned by them in severalty, a demurrer for this ground will not lie. (^Bradner v. Holland, 33 Huu, 288). Where two causes of action on contract are joined in the complaint, but all the defendants are not affected by both, a demurrer for misjoinder lies at the in- stance of the defendant who is so affected. [Nichols v. Drew, 94 N. 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 de- murrable for misjoinder. [Paulsen v. Van SteeiibergJi, 65 How. Pr. 342). Where the complaint shows a separate cause of action against each defendant, but not a joint cause of action, a joint demurrer upon this ground is proper. [Hess T. Buff. & Niagara Falls E. E. 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 mis- joinder of causes of action is proper. [Barton v. Speis, 5 Hun, 60). If there is an attempt to join causes of action which can not 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). The objection is waived if not taken by demurrer; and de- fendant cannot ask at the trial that the plaintiff elect on which cause of action he will seek to recover. [Gillett v. Borden, 6 Lans. 219; Sherman v. Inman 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 suffi- cient to constitute a cause of action. This objection may be taken in the words of the code. (Code Civ. Proc. § 490). It is optional whether the defendant will take this objection by demurrer; it is good at any stage of the action. (Code Civ. Proc. § 499; Oould v. Glass, 19 Barb. 179). An objection to the complaint, upon this ground, will not be sus- tained for mere formal defects which were the subject of 25 386 PRACTICE. 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 preci- sion, 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 na 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 unneces- sary matter appears in it [Prouty v. Whipple, 10 Wkly. Dig. 887). 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 ( WUherhead v. Allen, 4 Abb. Ct. App. Dec. 628), provided the cause of action set out is one which will entitle the plaintiff to the kind of relief prayed for. {Swart v. BougMon, 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 complaint omits to state any one of the facts necessary to constitute the cause of action {Van Lieiv v. Johnson, 6 T. & C. 648), or where no connection is shown between the cause of action and the party demurring. {Webb v. Vanderbilt, 39 Super. 4). If the complaint discloses a good defense to the cause of action set out in it, a demurrer upon this ground will be sustained. {Calvo V. Bavies, 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 demurrer will be sustained although he may be entitled to some other kind of relief: for instance, if he ask money relief, and is entitled to equit- able relief ; or if he asks for equitable relief, and is entitled to a judgment at law. {Fisher v. Charter Oak L. Ins. Co., 52 Super. 179; Swart r. BougMon, 35 Hun, 281). In an action against several defendants, a complaint will not be held bad on joint demurrer, if a good cause of action against DEM DEE ER. 387 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 over- ruled, although the complaint is susceptible of a construc- tion, excluding such cause of action. [OlcoH v. Carroll, 39 N. Y. 436; Patch v. Tribune Ass\ 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 defendant can not demur, because the complaint is insuffi- cient against another, [Littell v. Sayre, 7 Hun, 485), A demurrer for insufficiency lies where the plaintiff has failed to obtain leave to sue, when that is requisite. {^Earle v. David, 86 N. T. 634; Freeman v. Butcher, 15 Abb. N. C. 431). AETICLE IV. GEOUNDS OF DEMUEEEE TO PLEADINGS AFTER COMPLAINT. SECTION. 1. To the answer. 3. To counterclaim. 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 that it is insufficient in law, upon the face thereof. (Code Civ. Proc. § 494). A demurrer will not lie to an answer consisting simply of denials, but only to one containing a counterclaim, or a de- ■ fense consisting of new matter. [Nichols v. Lumpkin, 51 Super, 88), It will not lie to a part of an entire defense; but it will lie to what is pleaded as a partial defense, on the ground that it is not sufficient for that purpose ( Code Civ. Proc, § 508), and no other ground. {Thompson v. Halbert, 40 Hun, 536, 537). It will not lie for mere formal defects. {Wait V. Ferguson, 14 Abb. Pr. 379), It seems, however, that the answer may be demurred to, because it is hypothet- ical [Maun V. Milne, 21 Hun, 408 ; Goodman v, Eobb, 41 Hun, 605) ; but not because of irrelevancy or surplusage. 388 PEACTICE. {Fry V. Bennett, 5 Sand. 54). If an answer which denies nothing, but sets up new matter, is demurred to, all the alle- gations 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 referred to in the answer, is to be considered as incorporated in it, for the purposes of the demurrer. {Cragin v. Lovell, 88 N. Y. 258). Upon de- murrer 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 sufficiency of the complaint may be raised ( Wilmore v. Flaclc, 16 Wkly. 'Dig. 236 ; 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) Sec. 2> To the Counterclaim. The plaintiff may also demur to a counterclaim, \,pon which the defendant demands an affirmative judgment, where one or more of the following objections thereto, appear on the face of the counterclaim: 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 counterclaim is not one of the character speci- fied in section five hundred and one of the Code of Civil Procedure. 5. That the counterclaim does not state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 495). A demurrer taken under section four hundred and ninety- five of the Code of Civil Procedure must distinctly specify the objections to the counterclaim ; otherwise it may be disregard- ed. The mode of specifying the objections is the same, as DEMURRER. 389 •where a demurrer is taken to a complaint. ( Code Civ. Proc. § 496). A demurrer to a counterclaim must specify the parti- cular objections sought to be raised, or it will be disregarded. {Safford v. Snedeker, 67 How. Pr. 264). Upon the de- murrer to the counterclaim, facts alleged in the complaint, not inconsistent with the averments of the counterclaim, are to be taken as true. (Graham y. Dunnigan, 6 Duer. 629, 631). Where the demurrer to the counterclaim is taken for insufficiency", the objection cannot be raised that the counterclaim does not set up a cause of action arising out of the contract set forth in the complaint. [Safford v. Snedeker, 67 How. Pr. 264). If the plaintiff fails to demur to the counterclaim, he cannot upon the trial object to the admission of evidence to sustain it. [Hammond v. Terry, 3 Lans. 186). Upon demurrer to the counterclaim, the defendant cannot attack the complaint. [Graham v. Du7i- nigan, 6 Duer. 629; Peck v. Brown, 2 Robt. 119). See. 3. To the Reply. The sole ground of demurrer to the reply, or to a separate traverse to, or avoidance of, a defense or counterclaim con- tained in the reply, is that it is insufficient in law, upon the face thereof. (Code 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 information and belief, the allegations of the answer, which are clearly within his knowledge, as appears by the complaint, the reply is demurrable for in- sufficiency. [Fallon V. Durant, 3 Law Bull. 13). Upon a demurrer to the reply, the plaintiff may attack the counter- claim or answer for insufficiency ; and if it is radically de- fective, judgment will be given for the plaintiff, notwith- standing the defects in the reply. [Halliday v. Noble, 1 Barb. 137). 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 390 PEACTICE. amend, upon such terms as are just. If a demurrer to a complaint is allowed, because two or more causes of action have been improperly united, the court may, in its discre- tion, 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. (Code Civ. Proc. § 497). Section one hundred and seventy- two of the Code of Procedure, 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. WhitteUey, 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 interposed in good faith. {^Miller v. Heath, 7 Cowen, 101). Mr. Throop says that the amend- ments proposed by section fonr hundred and ninety-seven to section one hundred and seventy -two of the Code of Proce- dure are merely verbal; and it is supposed that they do not change the rule which forbade the allowance of an amend- ment, if it appeared that the demurrer was not made or in- terposed in good faith. Whether or not the amendment will be allowed, is in the discretion of the court. [Fisher V. Gould, 81 N. Y, 228). That discretion can not be re- viewed in the court of appeals. (Id). After a demurrer 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 affirmance of the judgment. ( Whiting v. Mayor etc., 37 N. Y. 600; Fisher v. Gould, 9 Daly^ 144; aff'd. 87 N. Y. 228). If a demurrer is sustained with' leave to amend, and an amended complaint has been served, and a demurrer to that has also been sustained, leave to amend the second time should not be granted. [Lowry v. Inman, 6 Abb. Pr. N. S. 394). If it appears that the action cannot be maintained under any circumstances, leave to amend will be refused. [Snow v. Fourth JSfafl. B'k. 1 Kobt. 479). If a part only of the pleading is demurred to, DEMURRER. 391 and leave has been given to amend that part, the pleader can only amend the portion demurred to. [Fielden v. Carelli, 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. . {Byan 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. ( Whee- lock v. Lee, 74 N. Y. 495). It is not then available to either party for any purpose ; 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 demurred to. ( Cutler v. Wright, 22 N. T. 472). AETICLE YI. ■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 com- plaint, the objection may be taken by answer. (Code Civ. Proc. § 498). AETICLE VII. 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 objec- tion that the complaint does not state facts sufficient to con- stitute a cause of action. (Code 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. [Zab- riskie v. Smith, 13 N. Y. 322, 326; Palmer v. Davis, 28 K y. 242) CHAPTER XIV. ARREST AND BAIL. ARTICLE I.— Cases where|^xder of arrest may be granted. ARTICLE II.— Persons liable to arrest. ARTICLE III.— Order ot arrest. ARTICLE IV.— Arrest, when and how made. ARTICLE v.— Discharge on bail or deposit. ARTICLE VI. — Charging and discharging bail. AETICLE I. CASES WHERE ORDER OF ARREST MAY BE GRANTED. SECTION. 1. Where right depends on nature of action. 2. Where right depends partly on extrinsic facts. Sec. !• AVliere Right Depends on Nature of Action. A defendant may be arrested iu an action, as prescribed in. title I of Chapter VII, (Code of Civil Procedure), 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 injury to property, including the wrongful taking, detention or con- version of personal property ; breach of a promise to marry ; misconduct or neglect in office, or in a professional employ- ment; 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 can not 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 complaint ARREST AND BAIL. 393 that the money was received, or the property was embezzled,. or fraudulently misapplied by a public officer, or by an attorney, solicitor or counselor, or by an officer 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. Where such allegation is made, the plaintiff can not 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 otherwise for, or in behalf of a public, or governmental interest, by a munici- pal or other 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 disposed of; or to recover damages for so ob- taining; receiving, paying, converting, or disposing of tha same. 4. In ah action upon contract, express or implied, other than a promise to marry, where it is alleged in the complaint that the defendant was guilty of a fraud in contracting or incurring the liability, or that he has since the making of th3 contract, or in contemplation of making the same, removed or dis- posed of his property with intent to defraud his creditors, or is about to remove or dispose of the same with like intent: but where such allegation is made, the plaintiff can not 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. (Code Civ. Proc. § 549). The section of the code above quoted is section five hun- dred and forty-nine, as amended by Chapter 672 of the laws of 1886, and contains all of the cases where the defendant may be arrested, excepting 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. (Code Civ. Proc. § 548). An 394 PEACTICE. order of arrest should not be granted, where its propriety depends upon a doubtful or important question of law (^Cormier v. Hawkins, 69 N. Y. 188) ; nor where it is not warranted by a strict construction of the provisions of the code. [South. Inl. ' Nav. & Imp. Co. v. Sherwin, 1 Civ. Proc. E. 44). The provisions of the code authorizing arrest in civil actions, do not give the plaintiff a 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. T. Ecclesine, 34 Super, 76, 82). The language of the sec- tion is permissive. [Griswold v. Sweet, 49 How. Pr. 171). The defendant can not be arrested in a suit, in which are joined causes of action, upon one of which he was not liable to arrest (Easion v. Cassidy, 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. Schwartz, 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 vexatious, an order of arrest may be granted [People v. Tweed, 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 harrassing the defendant, a third order of arrest should not be vacated. 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 something of a penal character. [Glens Falls Paper Co. v. White, 58 How. Pr. 172; U. S. V. Beid, 4 Civ. Proc. E. 1). Under subdivision two of section five hundred and forty- nine, the defendant may be arrested in an action to recover damages for a personal injury. The " personal injury " is defined as including libel, slander, criminal conversation, seduction, malicious prosecution, and also assault, battery, false imprisonment, or other actionable injury to the person, either of the plaintiff, or of another (Code Civ. Proc. § 3343, subd. 9) ; for either of which the defendant may be arrested, upon the proper proof being made. For libel ARllEST AND BAIL. 395 '{Blakelee v. Buchanan, 44 How. Pr. 97) , for criminal con- versation {Stuyvesant V. Bowran, 3 Abb. Pr. N. S. 270); for seduction {Steinberg v. Lasker, 50 How. Pr. 432) ; for malicious prosecution [Dempsey v. -Lepp, 52 How. Pr. 11) ; for assault and battery [Schultz v. Schultz, 2 Civ. Proc. E. 282) ; in the case last cited it was held that a wife could cause the arrest of her husband for assault and battery. In an action by the wife for a limited divorce, on the ground of cruel treatment, an order of arrest may be granted {Gar- diner V. Gardiner, 3 Abb. N. C. 1) ; but an action for an absolute divorce is not an action for a personal injury so that an order of arrest could be granted on it. [Mcintosh T. 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 ne exeat had not been abolished. {Collins V. Collins, 80 K T. 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 main- tain an action against any one for enticing her husband from her, and may cause the defendant to be arrested. {Breiman v. Paasch, 1 Abb. N. C. 249). The courts are reluctant, to grant orders of arrest in actions for personal injuries, except in extreme or outrageous cases {Knickerbocker L. Ins. Co. v. Ecclesine, 34 Super. 76), or where it is satisfactorily shown that there is danger of de- fendant leaving the state {Pfluger v. Lescke, 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 the enactment of the Code of Civil Procedure, it was held that the right to arrest the defendant was a personal right for injuries received 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 iiundred and forty-three, of the Code of Civil Procedure, which 396 PRACTICE. defines a personal injury, as an actionable injury to the per- son 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 defendant (^Haines v. Jeroloman, '2 McO. Civ. Proc. R. 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 ta its enforcement that existed in favor of the assignor; and as such may enforce his claim by arrest. [Meyer v. Belden, 8 Wkly. Dig. 344). The defendant may be arrested in an action to recover for injary to property, including the wrongful taking, detention or conversion of personal property. An injury to personal property is defined to be an actionable act, whereby the estate of another is lessened, other than a personal injury, or breach of contract. (Code 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. Wirderhurn (14 Hun, 518), it was held that the words, injury to property include real as well as personal prop- erty; and the words immediately following, "including the wrongful taking, detention or conversion of personal prop- erty " did not have the effect to restrict the meaning of the words, but rather confirm the impression that the intention was to embrace real property. In an action brought to re- cover property, which had been taken 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 injnry done to the plaintiff's property by the defendant, an order of arrest may be granted. [Niver v. Niver, 29 How. Pr. 6). Where th» defendant received goods of the plaintiff, and agreed to return them or their value, and he afterwards refused to re- AEKEST AND BAIL. 397 turn them or to pay for the same, an order of arrest was held proper [Person r. Cluer, 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 plaiijtifE credit therefor, instead of paying it as specified, an order of arrest was held proper. {^Eckerl v. Belden, 1 Law. Bull. 61). A suit for the recovery of money lost at play, is a statutory action, and there is no authority given by statute for the arrest of the defendant, and liis arrest is not proper. {Tompkins ^. Smith, 1 Civ. Proc. E. 398). Where, after the conversion of the plaintiff's property by the ddfendant, the plaintiff treats the transaction as a contract of sale, and takes a confession of judgment for goods sold and deliv- ered, he thereby waives his right to arrest the defendant. [Fields V. Bland, 81 N. Y. 239). Unliquidated damages arising out of a tortious act, is not regarded as a debt, and a party is liable to arresb on such a claim. [Zinn v. Hitter- ma7i, 2 Abb. Pr. N. S. 261). A defendant may be arrested for a breach of promise to marry (Code 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 can- not be arrested. (Code Civ. Proc. § 553; Siefke v. Tappey, 3 0. El. 23). For misconduct or neglect in office, or in a professional employment, the defendant may be arrested. (Code Civ. Proc. § 549, subd. 2). Thus, the directors of a corporation may be arrested for fraudulent and illegal acts, in disposing of the property of the corporation, in an action brought by the stockholders. [Crook v. Jewett, 12 How. Pr. 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 himself make the search or per- sonally certify to it. ( Van Schaick v. Sige^, 9 Daly, 383). An attorney may be arrested in an action brought to 398 PBACTICE. recover money collected by him for his client, whicli he ha® 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 actioit brought to recover such money ( Yates v. Blodgett, 8 How. Pr. 278) ; for it is held that our remedy by arrest is appli- cable 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 con- version of money received in a fiduciary capacity, although some of the money was received in another state ( Casiree v. Kirby, 2 Civ. Proc. K. 334) ; and in a case where the de- fendants, doing business in another state, bought goods in this state, and subsequently disposed of their 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 state. [Clafiin v. Frenkel, 3 Civ. Proc. E. 109). A defendant may be arrested in an action brought to recover damages for fraud or deceit. (Code Civ. Pioc. § 549, subd. 2). Deceit or fraudulent representations, accompanied by damages, constitute a good ground of action in respect to real as well as personal property, and an order of arrest is proper in such a case. [Crandall v. Bryan, 15 How. Pr. 48). The purchase of goods with the intent to convert them into property, which can not be reached by ex- ecution, is such a fraud as will make the defendant liable to arrest. [Wallace y. Murphy, 22 How. Pr. 414). To ren- der defendant liable to arrest, he must have actually partici- pated in the fraud, and it must be his actual personal 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 property to his wife, without consideration, an order of arrest can not be granted, against the partner who withdrew his money, without proof that he had either disposed, or intended to dispose, of some of this money to defraud his creditors. [Scott v. Reid, 2 How. Pr. N. S. AUEEST AND BAIL. 399 521). 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). Where a debtor makes false representations in fact, he will be held to have intended the legitimate consequences of his act, and he will not be permitted to say that he did not intend to defraud the plaintiff. ( Whitcomh t. Salsman, 16 How. Pr.. 533). In an action to recover a chattel, where it is alleged in the complaint that the chattel, or a part thereof has been con- cealed, removed or disposed of, so that it can not 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. (Code Civ. Proc. § 549, subd. 2). To authorize an order of arrest under this provision of the code, it must appear that the property has been removed, after suit brought, with intent to prevent its being found by the sheriff, or with intent to deprive the plaintiff of the benefit thereof {Watson v. McGuire, 2 Daly, 219) ; or, if disposed of before suit brought, with a view of defeating expected process (id) , but in the later case of Barnett v. Selling (3 Abb. N. C. 8'3), it was held that it was not necessary that the defendant should have disposed of his goods, in contemplation of an action to recover them. An order of arrest may be granted in an action to recover pos- session 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, (id). Where it appears that the acquisition of the property was fraudulent, and under circumstances justifying a reclamation of it by the owner, and the fraudulent purchaser has sold it, with intent to perfect the fraud, and put it beyond the reach of the owner, the case is not only within the direct letter of the statute, but is also within its spirit, (id; Levy v. Salomon, 1 N. Y. State E. 207). So, where the plaintiff had been induced, by the false and wrongful representations of the defendant,, to sell him goods, and the defendant soon there- after, made an assignment for the benefit of creditors, and the sheriff was unable to find the chattels, an order of arrest 400 PKACTICE. is justified. [Lippman v. Shapiro, 50 Super. 367). To authorize an order of arrest in such a case, the facts consti- tuting the fraud must be alleged in the complaint; and if they are so alleged, they must be proven on the trial, or else the plaintiff can not recover. (Code Civ. Proc. § 549, subd. 2). In an action to recover money received, or to recover property, or damages for the conversion or misapplication of property, where it is alleged in the complaint, that the money was received, or the property was embezzled, or fraudulently misapplied by a public officer, or by an attorney, solicitor or counselor, or by an officer or agent of a corporation, or bank- ing association, in the course of his employment, or by a factor, agent, broker, or other person, in a fiduciary capacity, the defendant may be arrested. (Code Civ. Proc. § 549, subd. 2). Thus, in an action to recover moneys received by a factor and converted by him, a defendant may be arrested [Wallace v. Castle, 14 Hun, 106), even though 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 pro- ceeds, and is sued upon his guaranty, he is not liable to arrest. [Wallace v. Castle, supra). 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, the plaintiff can not bring his cause of action within subdivision four, of section five hundred and forty-nine of the Code, by allegations of fraud in the complaint, in relation to subsequent transactions, which it is claimed, resulted in a loss to the plaintiff. {Oraeffe \. Currie, 52 Super. 554). A guardian, who takes possession 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 the 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 . ARREST AND BAIL. 401 Tight to use them. [Liddell v. Paion, 1 Hun, 195). Where the defendant has embezzled money collected, but gives the plaintiff notes, falsely representing that they are secured, the plaintiff can repudiate the settlement for fraud, and have an order of arrest {Spence v Baldwin, 59 How. Pr. 375) ; but not where a person has received the notes of a third party, and collected part of them, and has not offered to return the others. [Trimninger y. Busch, 7 Daly 124). Where a broker has received money of another for a speci- fied 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. 707). A banker who received a remittance from a correspondent, with instruc- tions to send a draft for the amount to a third person, is liable to arrest if he appropriates it to his own use. {John- son V Whitman, 10 Abb. Pr. N. S. 111). A county treas- urer is a public officer, 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 interposed some claim to the moneys. [Gross v. Graves, 19 Abb Pp. 95). In the case of Segelken v. Meijer (94 N. Y. 473, 488), the court say that the grounds of arrest specified in subdivisions one and two of section five hundred and fifty of the Code of Civil Procedure (now embraced in subdivisions 2 and 4 of § 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 subdivisions two and four thereof, that the com- plaint should contain -those grounds in order to authorize an arrest; and where such allegation is made, the plaintiff can not recover in the action, unless he proves the same on the trial of the action. Under subdivision three of section five hundred and forty- 2a 402 PKACTICE. 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 ta the state, by reason of the defendant's having offered the same for sale or distribution, in violation of the provisions of the statutes against lotteries. (^People v. Phillips, 30 Hun, 553). Where the defendant and other persons had acted together to fraudulently obtain and divide among themselves a large amount of public money; it was held that the law imposed upon the defendant individually a liability, coex- tensive with the money wrongfully abstracted, although a portion of it may have been received by other persons acting with him. {People v. Tweed, 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 action, upon contract express or implied to arrest for fraud in creating or incurring the liability, sought to be enforced, the facts show- ing such fraud on his part, must now be alleged in the com- plaint. (Hecht V. Levy, 20 Hun, 53). Although it is not necessary, as a condition to the granting of the order of arrest, under this subdivision, that the complaint should be submitted to the court or justice granting such an order, nor that the contents of the complaint should be stated in the affidavit; nor that any complaint should be in existence at the time that such order is granted ; yet, there must be an affidavit, setting forth facts, showing that such a cause of action exists against the defendant; but the order must be vacated immediately upon the filing or service of the com- plaint, if a cause of action under the same subdivision is not therein set forth. Sections five hundred and forty -nine and five hundred and fifty do not attempt to prescribe the papers upon which the order may be made ; as that matter is dealt with in section five hundred and fifty-seven, which provides that an order of arrest may be granted in a case specified in section -five hundred and forty-nine, where it AKKEST AND BAIL. 403 appears by the affidavit of the plaintiff or other person, that a sufficient cause of action exists against the defendant as prescribed in that section. {Hall v. Conger, 1 How. Pr. No S. 88; 7 0. P. K,. 53). A verified complaint will be con- sidered as an affidavit for the purpose of procuring the order (Code Civ. Proc. § 3343, subd. 11). To constitute a disposition 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 con- tract against partners, to justify the arrest of any defendant, it is necessary to prove that he actually and individually participated in tho fraud, which is alleged to be connected with the contracting of the liability. {Bacon v. Kendall, 49 Super 123). A fraudulent disposition of his property by a debtor with intent to defraud his creditors, avoids a credit upon which goods were previously or subsequently sold to him, and is a proper case for an ordar of arrest. {Arnold v. Shapiro, 29 Hun, 478). Formerly under this subdivision, where a husband without cause abandoned his wife, and fraudulently disposed of his property, so that it could not be appropriated 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 was overruled by the Court of Appeals without opinion, all the judges concurring. (90 N. Y. 653). An intent to defraud must be shown in order to warrant the arrest of defendant; and the fact that the defendant said that he would not pay the plaintiff, and that he could not get the money, and that he was going away to Europe, and further, that the plaintiff was of the opinion that the defendant was about to take away all his money and property, is not sufficient to establish a valid ground of arrest {Stroub v. Henly, 1 How. Pr. N. S. 400) ; nor may an intent to defraud be imputed to a purchaser on credit, merely from the fact that he was to Ms own knowl- edge insolvent, at the time of the purchase, and that he omitted to disclose such condition to his vendor; this must 404 PEACTICE. be accompanied by facts disclosing an intent to acquire the property without paying for it. (Morris v. Talcott, 96 N. Y. 100). In the case of bankers greater confidence is asked, and required, and a more rigid responsibility for good faith; so a banker who is to his own knowledge hopelessly insolvent, will be held to have intended the inevitable con- sequences of his act, i. e., to cheat and defraud all persons whose money he receives. (Anonymous, [Boebling v. Duncan] 67 N. Y. 498). Sec. 2. VHiere 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 be punish- able by the court as a contempt, where the defendant is not a resident of the state, or being a resident, is about to de- part therefrom, by reason of which non-residence or depar- ture, there is danger that a judgment or an order requiring the performance of the act will be rendered ineffectual. (Code Civ. Proc. § 550). By Chapter 672, Laws of 1886 the 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 section five hundred and forty-eight of the Code of Civil Procedure, putting an end to the much mooted question whether the section one hundred and sev- enty-eight of the Code of Procedure abolished 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 res- pond to it. If the person of the defendant cannot be made to respond to the decree, it is worse than idle to keep him. [Qleasbn v. Bisby, Clarke's Ch. 551). To warrant the issu- ing 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 by an equitable debt. (id). It is always in the discretion of the court whether the order shall be granted ARREST AND BAIL. 405 or not (Code Civ. Proc. § 551) ; and if there is any doubt as to tlie liability of the defendant, the order of arrast 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 or arrest may issue against a foreigner, or against a citizen of another state, and on demands arising abroad. {Woodward v. Schatzell, 3 John Ch. 412). A woman may be arrested under this section, where a proper case is made out against her. (Code Civ. Proc. § 553). The real neces- sity for the writ of ne exeat, or for its substitute, is when the judgment may require the defendant to do some personal act, such as to execute a deed, or the like, that he may be present to obey. {Brownell v. Akin, 6 Hun, 378). Where it is perfectly clear that specific performance will be decreed, an order will be granted. {Brown v. Haff, 5 Paige 235). In the case last cited, it was further 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. Formerly the writ of ne exeat would not issue unless the case involved a monied demand {Cowdin v. Cram, 3 Edw. Ch. 231); but it would seem from the language of section five hundred and fifty of the Code of Civil Procedure taken with subdivision three of section fourteen that, in any case, if the judgment de- manded requires the performance of an act, such as the payment of a sum of money, where by law execution could not be awarded, or any other lawful mandate of the court, the court in its discretion may grant the order of arrest. A defendant may be arrested in an action for divorce and alimony. (Forrest v. Forrest, 5 How. Pr. 125; Boucicault V. Boucicault, 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 allow- ance 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 re- quirement would be a lawful mandate, and the refusal of 406 PEACTICE. the defendant to obey would be a contempt, and he may properly be arrested. AETICLE II. PERSONS LIABLE TO AEEEST. SECTION. 1. Who may be arrested. 2. Who are privileged from arrest. Sec. 1 . AVho may be Arrested. The provisions of the code in relation to arrest, should be construed strictly in favor of the liberty of the citizen. {^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 plaintiff to arrest the defendant, as prescribed in title 1 of Chapter VII of the code. (Code Civ. Proc. § 552). 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 I, of this chapter, which treats of the causes for which a defendant may bs 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 Procedure, 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 becomes more important to know who may not be arrested, even though coming within those sections of the code authorizing the arrest of the defendant, and that subject will be treated in the next section, as fol- lows: Sec. 2. Who are Privileg'ed from Arrest. A woman can not be arrested as prescribed in title I. of chapter VII. of the Code of Civil Procedure except in a case where the order can be granted only by the court ; or where AEKEST AND BAIL. 407 it appears that the action is to recover damages for a wilful injury to person, character, or property. (Code 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 <30urt, 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-three above cited, is to exempt women from arrest in all cases, except where the injuries specified in the Code are affirmatively shown to be wilful; and to make them subject to arrest, when the injury is attended with that element. {Duncan v. Kaien, 6 Hun, 1). 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, pro- ceeding 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 issued against any woman, whether married or sin- gle, in aj3. 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 on the ground that she is married. {Mnser v. Miller, 12 Abb. N. C. 305). A lunatic, an idiot, or an infant under the age of fourteen years, if arrested, may be discharged from arrest as a priv- ileged person, in the discretion of the court. The applica- tion 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. ( Code Civ. Proc. § 5'54). In the case of an infant, who makes false statements as to his property, when buying goods other than necessaries, he can not be made liable to arrest by changing the form of action from one on contract, and bringing it in fraud ( Tay- lor V. Van Keuren, 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 statements wrought no injury to the plaintiff; and in order to warrant an arrest the statement must injure, (id). As to the question' whether an infant is liable, who obtains goods by falsely and 408 PRACTICE. fraudulently representing himself to be of full age, there is some conflict of decisions. The case of Brown v. McCune (5 Sand. 224), 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 Schunemann v. Paradise (46 How. Pr 426). The entire weight of author- ity 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, as- signee, or trustee, can not be arrested, as prescribed in title I, Chapter VII. of the Code of Civil Procedure except for his personal act. (Code Civ. Proc. § 555). Title I of Chapter VII, 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 provision is not made therefor by law, by the court or a judge thereof ; or by the county judge of the county, or a .judge of a superior city court of the city 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 with - out notice, or may require notice to be given to the sheriff, or to the plaintiff, or to both. (Code Civ. Proc. § 564). Under this section the following persons may be specifically mentioned as privileged from arrest, or entitled to be dis- charged if arrested: Members of either branch of congress are privileged from arrest, during their attendance at the session of their respec- tive 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 States v. Kirby, 7 Wall. 482). ARREST AND BAIL. 409 Every member of the legislature shall be privileged from arrest on civil process, during his attendance at the session of the house to which he shall belong, except on process issued in any suit, brought against him for any forfeiture, misdemeanor, or breach of trust in any office or place of public trust held by him (i Eev. Stat. 7th. Ed. 428) ; and he shall, enjoy the like privilege for fourteen days previous to any such session, and for fourteen days, while going to or returning from such session; and during any adjournment not exceeding fourteen days; and while absent with leave of the house to which he belongs, (id). For an extensive discussion of the question of the privilege of members of the legislature, see Matter of Potter & French (55 Barb. 625). No officer of either house, whilst in actual attendance upon the house, shall be liable to arrest on civil process. (1 Rev. Stat. 7th. Ed. 428). At any general election in any city or town of this state, no civil process, or proceeding in the nature of a civil process, shall be served on any elector, entitled to vote in such city or town, on the day on which such election shall be held. {1 Rev. Stat. 7th. Ed. 378). This privilege is confined to the town or ward where he resides or has a right to vote ; although it is held that the service of a summons on an elector, with or without an order of arrest, on an election day, and all proceedings under it are void. ( Weeks v. Noxon, 11 How. Pr. 189). Where a defendant, who was an elector, was arrested on the day of a general election, and was afterwards released, it was held that he could be rearrested another day on the same process. [Petrie v. Fitzgerald, 1 Daly, 401) No person belonging to the military forcq shall be arrested on any civil process while going to, remaining at, or return- ino- from any place at which he may be required to attend for military duty. (/ Rev. Stat. 7th. Ed. 787). Although this statute applies in terms only to the militia of this state, it has been held to apply to a member of a regiment of the state militia, which has been mustered into the service of the United States. {People y. Campbell, 40 N. Y. 133). 410 PEACTICE. 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. [Rev. Stat, of the U. 8. §1237). Marines shall be exempt, while enlisted in said service, from all personal arrest for debt contract. [Bev. Stat, of the U. S § 1610). Foreign ministers and their domestics are privileged from arrest. {Eev. 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 inhabitant of the United States, in the service of a public minister, and the process is founded upon debt contracted before he entered such service ; nor to any case, where the person against whom the process is issued is a domestic servant of a public min- ister, 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 attachment, or by commitment, is privileged from arrest in a civil action or special proceeding while going to, remaining at, or return- ing from the place where he is required to attend. (Code Civ. Proc. § 860). A non-resident witness attending as a witness in this state, is exempt, from the service of process. [Person v. Grier, 66 N. T. 124). To the same effect see the case of Frisbie 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 affidavit as required by section eight hundred and sixty-four of the Code of Civil Procedure. This privilege of witnesses from arrest extends to hearings before arbitra- tors and referees. [Sanford v. Chase, 3 Cow, 381). Where a witness is in voluntary attendance, he is not so privileged, ARREST AND BAIL. 411 unless he is a non-resident, or a party. [Hardenbrook^s Case, 8 Abb. Pr. 416). Parties to actions are exempt from arrest in civil actions ■while going to, remaining at, or returning from, the court or place where the trial or the judicial proceeding is being conducted {Salhinger v. Adler, 2 Eobt. 704; Mackay v. Lewis, 7 Hun, 83) ; or before any lawful tribunal, as an arbitration [Sanford 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. (Chap. 410, Laws 1882, § 275). Under this provision, it is held that the exemption is only intended to prevent the ar- rest of an officer, while actually discharging 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. (Code 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 exempted 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 proceeding, while passing through another county. (Code Civ. Proc. •§ 119). A person jinder arrest on a justice's warrant, who has been arrested in one county on a criminal warrant, and who is being conveyed through another county, to the place -where he is to be taken according to the command of the process, is privileged from arrest in civil process, in the county through which he passes. {Love v. Humphrey, 9 "Wend. 204). Where a defendant was arrested on a pre- 412 PRACTICE. tended criminal claarge, 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 t. Oswell, 37 How. Pr. 235). A person acquitted of a criminal charge has a reasonable time to reach home, before he can be arrested in a civil action. (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 subterfuge, scheme, or pretence, which is not warranted by law, for the purpose of arresting him, is privileged from such arrest. (Smith V. Meyers, 1 T. & 0. 665). In a later case, where a defendant -was extradited from another state on an indict- ment for grand larceny, and had been tried here and acquit- ted, 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 causing the extradition. (Browing v. Abrams, 51 How. Pr. 172). The exemption 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 general ap- pearance in the action. (Stewart v. Howard, 15 Barb. 26; Petire v. Fitzgerald, 1 Daly. 401 ; Fanner v. Bobbins, 47 How. Pr. 415) ; but giving bail is not a waiver of his right to be discharged. (Mackay v. Lewis, 7 Hun, 83). The court has power, independent of the statute, to protect its officers, suitors and witnesses from molestation by means of process of the court. (Lamkin v. Starkey, 7 Hun, 479). AETIOLE III. OEBEE OF ABEEST. SECTION. 1. Papers necessary to obtain the order. 3. When and by whom granted. 3. Contents of the order. 4. How vacated or modified. ARREST' AND BAIL. 413 Sec 1. Papers Necessary to Obtain the Order. Sub-division 1. — The Affidavit. The order may be granted, in a case specified in section five hundred and forty-nine of the Code of Civil Procedure, Tvhere it appears by the affidavit of the plaintiff or any other person, that a sufficient cause of action exists against the de- fendant, as prescribed in that section. It may be granted, in a case specified in section five hundred and fifty of the Code of Civil Procedure, 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. (Code Civ. Proc. § 557). It was formerly held that an order could not be procured on the pleadings, and that an affidavit was necessary [Corwin v. Freeland, 6 N. Y. 560) ; but by the Code of Civil Proce- dure (§ 3343, subd. 11) the word affidavit includes a verified pleading in an action, or a verified petition or answer in a special proceeding. So, a sworn complaint may be con- sidered as an affidavit; and if the complaint and affidavit together are sufficient to warrant the order, although the affidavit alone would not be sufficient, the order will be sus- tained. [Palmer v. Hussey, 59 N. Y. 647). To give the court jurisdiction to issue an order of arrest against a per- son, the facts relied upon must be presented by the affidavit of the plaintiff, or some other person, and the affidavit re- quired is a statement or declaration, reduced to writing, and verified before an officer, having authority to administer an oath of affirmation. [Bowen v. Siilwell, 9 Civ. Proc. E. 277). Where a sufficient cause of action is shown by affi- davit to exist against the defendant, the order may be granted, whether there has been a complaint drawn or not. {Hall V. Conger, 7 Civ. Proc. E. 53). 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. OUs, 54 How. Pr. 405). The complaint may be used in furtherance of the affidavit, in a case where the affidavit 414 PEACTICE. alone, would not be sufficient to warrant the order of arrest, [Hatch Y. Ransom, 4 Law. Bull. 5). The affidavit, how- ever, 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. {^Harris v. Durkee, 5 Civ. Proc. E-. 376 ) . 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 Beers, 17 Abb. Pr. 163) . The affidavit must generally be pos- itive, and make out a prima facie case against the defendant, before the order should be granted. [Griswold v. Sweet, 49 How. Pr. 171). The 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 affi- davit 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). The affidavit should state correctly what is alleged on information, and what on deponent's own knowledge. {Moore v. Calvert, 9 How. Pr. 474). 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 Wkly. 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 misrepresentation should be specifically stated, and the respects wherein it is false, particularized. {Cummings v. Wooley, 16 Abb. Pr. 297, note). An order of arrest for false and fraudulent repre- AREEST AND BAIL. 415 sentations, should not be granted upon an affidayit on infor- mation derived from a person named, when it does not appear that an affidavit could not be obtained from that person. {Bichters v. Littell, 21 WMy. Dig. 133). 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- {DeWecrth 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 affidavit, that the complaint in such former action was immediately dismissed by the magistrate, he shows a prima facie case. [Gould 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. (-EZ?/ v. Mumford, 47 Barb. 629). Where the facts authorizing the arrest are stated positively, and not denied after the defendant had an oppor- tunity 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. [Muller V. Perrin, 14 Abb. Pr. N. S. 95). If the facts are such in an action for conversion that if they remain uncontradicted 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. ( Woodhridge v. Nelson, 13 Hun, 390). For- merly, putting in and perfecting bail waived all defects in the affidavit [Stewart v. Howard, 15 Barb. 26); but per- fecting bail is no longer a waiver of such defects. [Knickd'r- bocker L. Ins. Co. v. Ecclesine, 34 Super. 76). The defend- ant has until final judgment to move to vacate the order; and in any case he has twenty days after the arrest to make such application. (Code Civ. Proc. § 567). A failure to 416 PBACTICE. state that no previous application for the order has been made, as required 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 practice 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. Hoffstadt, 21 Wkly. Dig. 197). Sub-division 2 — The Undertaking. Except where the action is brought for a cause specified in subdivision three of section five hundred and forty-nine -of the Code 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 re- covers judgment, or if it is finally decided that the plaintiff was not entitled to the order of arrest, the plaintiff will pay all costs which may be awarded to the defendant, and all damages which he may sustain by reason of the arrest, not exceeding the sum specified in the undertaking, which must be at least equal to one-tenth of the amount of bail required by the orde^, and not less than two hundred and fifty dollars. (Code Civ. Proc. § 559). The mere fact that the under- taking 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. [Danenbaum V. Mandelbaum, 16 Wkly. Dig. 502). The sureties must make affidavit to the undertaking, in the form required by section 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. Friedherg, 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 AEKEST AND BAIL. 417 without it the order is void. {Newell v. Doran, 21 How. Pr. 427). Any informality in the execution of the under- iaking may be cured by amendment nunc pro tunc in the discretion of the court {Bellinger v. Gardiner, 12 How. Pr. 381) ; the omission of the acknowledgement, if the under- ■taking be otherwise sufficient, may be amended by leave of the court {Conklin v. Butcher, 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. Schevitch, 11 C. P. E. 433). Where the order can be granted only by the court, an un- dertaking 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. (Code 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 andby "Wlioiii Granted. An order for the arrest of the defendant, except as other- wise prescribed in section five hundred and fifty-one of the Code of Civil Procedure, must be obtained from a judge of the court in which the action is brought, or from any county judge. (Code 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 before 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 can not be served after final judgment; but it may be granted where a proper case therefor is presented, at any time before final judgment. (Code Civ. Proc. § 551). "Where an order of arrest was not applied for until after the trial and the de- cision of the court, but it was mkde and served before final judgment, it was held in time. {Humphrey v. Hayes, 94 27 418 PRACTICE. N. Y. 594, 604). A judgment by default is a final judg- ment; 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 Bank of N. Y., 38 N. T. 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 commence- ment 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 complaint, so as to conform to the allegations required in subdivisions two and four, of section five hundred and forty- nine of the code. (Code Civ. Proc. § 558). In a case specified in section five hundred and fifty, the order of arrest can be granted only by the court (Code Civ. Proc. § 551) ; but this general rule is subject to the excep- tion that in the first judicial district, a motion, which else- where must be made in court, may be made to a judge out of court, except for a new trial on the merits. (Code Civ. Proc. § 770). Section seven hundred and seventy of the code is applicable to a case specified 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 Y. Boucicault, 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. Lachenmeyer, 26 Hun, 542). The order may be granted by any county judge. (Code Civ. Proc. § 556). The language of the Code of Procedure was " a county judge." (Code Civ. Proc. § 180). Under that section it was held that " county judge " meant the judge of the county where the action is triable, {Chubbuck 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 ARBEST AND BAIL. 419 • a disputed question; and is in accordance with the case of Kcnncdi/ v. Siiiimons (1 Hun, 603) whicli holds that an order of arrest may be granted by a county judge, in an action in the siipreme court, although it is not triable in his county, and though the attorney for the moving party does not reside therein. ( Webb v. Bailey, 5i N. Y. 164). The county judge possesses the same powers 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 special proceeding, instituted before him in like manner. (Code Civ. Proo. § 319). The acting county judge may grant the order. [Scijinoiir v. Mercer, 13 How. Pr. 56-1). A judge of the court of common pleas of the city and county of New York, is a county judge within this sec- tion. (^Feople ex rel Ireland v. Donohue, 15 Hun, 446). The county judge can not grant tlie order of arrest, specified in section five hundred and fifty, in the nature of ne exeat. Any county judge, during the period that he is in a county other than his own, for the purpose of holding coui'ts 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 re- viewed upon a motion to vacate the order [Lapeous v. Hart, 9 How. Pr. 541) ; but in a later case, the court held, that this discretion may be reviewed on such a motion. {Griswold V. Siceet, 49 How. Pr. 171). Seo. 3. Contents of the Order. The order must be subscribed by the plaintiff's attorney, 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 sheriif of any county. It must requu-e the sheriff forthwith to ai-rest the defendant, if he is found within his county ; to hold him to bail in a specified sum ; and to retui-n the order, with his proceedings there- under, as prescribed by law. The plaintiff's attorney may, at his option, by an endorsement 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 420 PBACTICE. arrested; in tliat case he can not be arrested afterwards, under the same order. (Code Civ. Proc. § 561). Every order of arrest shall briefly state the grounds on which it is granted. (General Eule 13). It is a sufficient statement under Eule 13, in the order of arrest, that it is for the ap- propriation of money received in a fiduciary capacity. {Bowman v. Gates, 11 Reporter 744). It should contain a recital of the section and subdivision of the code, under which it is issued ; an omission however) in this respect is not fatal. (TVac?/ v. Feeder, 35 How Pr. 209). The re- quirement that the order shall be subscribed by the plain- tiff's attorney is imperative. {Thompson v. Friedberg, 54 How. Pr. 519). An irregularity in that respect may be amended. [Mather v. Hannaur, 55 How. Pr. 1). Sec. 4. Ho-nr Order Vacated or Modified. SuB-Di VISION 1. — Time within which Defendant mat 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 judgment, at any time within 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 relief, 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, m-ay be made at any time before final judgment. (Code 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. (Go. Proc. § 188). 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. Clukey, ARREST AND BAIL. ' 421 36 How. Pr. 179) , although the two sections last cited were both in force at the same time. [Farmer v. Rohhins, Al How. Pr. 415). The code remained in that condition until 1877 when the two sections were consolidated into section five hundred and sixty-seven of the Code of Civil Procedure, as given above ; which section, 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 the plain- tiff has no cause of action, and that the bail is excessive, is premature. [Gedney y. Haas, 50 How. Pr, 310). Such a motion can not be made, until the order is served. [Kern V. Rackow, 44 How. Pr. 443). 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 not waived, by obtaining an extension of time to answer {Col. Ins. Co. V. Force, 8 How. Pr. 353) ; nor by perfecting bail. [Mackey v. Daniel, 7 Hun, 83) When a motion to vacate- an order is denied, with leave to renew, the time within which to make the second motion 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 ( Bow- man v. Bowe, 40 Hun, 489 ; People ex rel, Roberts v. Bowe, 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 sufficient cause of action, as required by section five hundred and forty-nine of the code. (Code Civ. Proc. § 558). 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 ac- cordingly. (Code Civ. Proc. § 566). 422 PRACTICE. Sub-division 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 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 order was granted by a judge out of court, to any judge of the court, upon notice ; and it may be op- posed by new proof, by affidavit, 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. (Code Civ. Proc. § 568). The defendant may elect whether he will informally demur to the plaintiff's case, set forth in the original affidavit, as insufficient, 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). If he moves on the plaintiff's papers, he admits them to be true. {Haihorn v. Hall, 4 Abb. Pr. 227 ; Lovell v. Martin, 21 How. Pr. 238). On such a motion, the order of ar- rest 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. {Kern v. Rackow, 44 How. Pr. 443). 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. Nav. & Imp. Co. v. Sherwin, 1 Civ. Proc. K. 44). If it shows a different cause of action, from that on which the' order was obtained, the order can not be upheld. [Cham- bers V. Durand, 33 Super. 494). The order must stand or fall upon the original cause of arrest, with such corrobora- tive proof as may be furnished on the motion to vacate. ARREST AND BAIL. 423 (id). A mere technical defect in the motion papers as omitting to state that there had been no previous application, as required by supreme court rule twenty-five, may be cor- rected. [Spring v. Gourlay, 1 Law. Bull. 49). In cases in which the cause o£ action, and the grounds upon which the arrest is obtained, are the same, the merits of the con- troversy should not be determined upon affidavits; but should be allowed to await the trial of the action. [Peck v. Lombard, 22 Hun, 63). In a late case it was held, that where the ground of arrest and the cause of action are iden- tical, the order will not be set aside upon motion on con- flicting affidavits, unless the evidence is of such a character, as would require the justice presiding at the trial to direct a verdict for the defendant. [Sniffin v. Parker, 21 Wkly. Dig. 444). 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 Law. Bull. 38). If the defendant moves on new affidavits, plaintiff 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 mo- tion 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 hear- ing 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 priv- ileged from arrest, he must be discharged from, arrest, upon proof by affidavit, of the facts entitling him to the discharge ; 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. (Code Civ, Proc. § 564). Section five hundred and sixty-eight of the Code of Civil Procedure, provides to whom the application to vacate an order of arrest must be made. That section should be construed with sec- tions seven hundred and seventy, seven hundred and seventy- two and seven hundred and seventy-three of the Code of 424: PRACTICE. 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 motions 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. Mitilestaedt, 2 N. Y. S. Rep. 645). Sub-division 3. — Wheke 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 x.Sabey, 22 Hun, 557). Section seven hundred and sixty-nine only applies, to motions made on notice. [Hull v. Hart, 14 Wkly. 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, without notice, to vacate such an order. ( Van Kleek v. Nichols, 63 How. Pr. 403). Sub-division 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 ba issued, the court has no power to compel the defendant to stipulate that he will not sue for false impris- onment. [Tompkins v. Smith, 1 Civ, Proc. E. 398; Affd. 48 Super. 113). This seems to have been the rule uniformly AKREST AND BAIL. 425 adopted by the courts, in cases where the defendant had an absolute right to the relief sought. The court of appeals say, 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 eases where the process is void, and an absolute nullity from the beginning; and a merely erro- neous, process stands valid or good, until it is reversed ; the. right to sue for false imprisonment in the latter case, only accrues upon the exercise of the authority of the court, and the court may sometimes impose a condition on the defen- dant not to sue. {Matter of Bradner, 87 N. Y. 171). Where the order is vacated for favor, or because it is erro- neous, but not void, or upon conflicting affidavits, and the- court is satisfied that the arrest was without malice, ai;d upon probable cause, it will, in its discretion, impose the condition that the defendant stipulate that he will not bring an ac- tion for the arrest. ( Wilder v. Guernsey, 19 Alb. Law J. 401). The same rule is applied to a case where the de- fendant has been arrested on execution. ( Chapin v. Fos- ter, 101 N. T. 1). Sub-division 5. — Supeksedeas. 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 judgment therein, within ten days after it is his power to do so, or neglects to issue execution against the person of the defendant, within ten days after the return of the execution against the 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, delays the enforcement of his remedies therein by collusion, or for the purpose of allowing the debtor to remain 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 impris- onment, by virtue of the separate mandates in the different 426 pnACTicE. actions, the defendant must upon his application, 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 released from imprisonment by virtue of such mandate, by the court in which the action was commenced, unless reas- onable cause is shown why the application should not be granted. A defendant, discharged as prescribed in this sec- tion, shall not be arrested upon an execution, issued upon the judgment in the action. (Code 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 the judgment creditor, by delaying the en- forcement of his remedies and thereby producing a con- tinued and extended imprisonment; and to give the defend- ant the power, upon notice to the plaintiff, to obtain his dis- charge, and to have an order or arrest before judgment, or an execution, superseded. 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 execu- tion, 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 action ; to fur- ther carry out the idea of preventing an imprisonment for ' debt beyond a very limited term, and to interpose a legal obstacle in the way of a revengful plaintiff's keeping a de- fendant locked up an indefinite length of time, or so long as iis spite should last. Section one hundred and eleven of the Code of Civi Pro- cedure was enacted by chapter 672, laws 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. & H. R. R. Co. v. Shep- ARREST AND BAIL. , 427 herd, 10 Civ. Proc. R. 153; Sfatter of Shepherd, 43 Hun, 287). By > its own terms, it does not apply to a case of commitment for contempt of court, except in the single case of contempt in the non-payment of alimony or counsel fees, in a divorce case. Both section, one hundred and eleven and five hundred and seventy-two of the Code of Civil Pro- cedure, as amended by chapter six hundred and seventy -two of the laws of 1886, were made to apply to all imprisoned debtors who were actually in confinement, or within the jail liberties, under any mandate against the person, theretofore issued ; and it was made the duty of the sheriff of each county within the state to discharge, within five days from the pas- sage of the act, all persons in their custody who are entitled to such discharge by the provisions of section one hundred and eleven of the Code. (Laws 1886, Chap. 672, § 7). In the case of People ex rel Lust v. Grant ( 10 Civ. Proc. Kep. 158), it was held that sections five, six and seven of the chapter last cited, are to be taken together, as defining the length of time, during which a defendant may be con- fined by the plaintiff; and that at the expiration of that time, the plaintiff no longer is to have the absolute right to im- prison the defendant in a civil action, and that they applied to persons imprisoned upon orders of arrest. But that case was not followed, and was overruled in Matter of Shepard, [supra). Formerly the supersedeas would not be issued, ex- cept where the defendant was in actual confinement, and was held to afford relief, to persons undergoing close confinement only. {WattY. Healy, 22 Hun, 491). The statute, how- ever, gives the relief not only to those in actual confinement, but to those within the jail liberties, on bail. (Code Civ. Proc. §§ 111, 572; laws 1886 Chap. 672 § 7). ARTICLE IV. AEEEST, WHEN AND HOW MADE. The sheriff must execute the order, by arresting the de- fendant, if. he is found within his county, and keeping him in custody, until discharged by law. (Code Civ. Proc. § 668) The arrest must be made within the county, within 428 PRACTICE. 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. [Hunt t. Burrel, 5 Johns. 137). The arrest must be made by an actual assumption of control over the person of the defendant, and the conse- quent restraint of his personal liberty ; but it need not be a manual touching of the body, or actual force. [Gold 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 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 (Code Civ. Proc. § 561) The order of arrest, or where it was granted by the court, a cer- tified 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 was granted, with the undertaking, if any, must be filed, with the order of arrest, or a certified copy thereof, at the time prescribed for filing the same, in section five hundred and ninety of the Code of Civil Procedure. ( Code Civ. Proc. § 562). Under the former practice, a failure to serve defen- dant 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 do not harm ( Bank of Havana v. Moore, 5 Hun, 624) ; and a failure to serve an undertaking upon a defendant, was only an irregularity, and did not entitle defendant to his discharge [Mather v. Han- naur, 55 How. Pr. 1) ; but where no undertaking was filed or copy served, the arrest was vacated. [Lobb v. Hundson, 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 comply, a ground for vacating the order. AEEEST AND BAIL. 429 AETICLE V. DISCHAEGE ON BAIL OR DEPOSIT. SECTION. 1. When and how defendant surrendered. 2. Rights and liabilities of bail. 8. Defenses in action iigainst bail. Sec. 1. WTieu Defendant may be Discliarged. 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 executioa against his per- son, 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 opportunity to seek for and to procui-e bail, before being committed to jail. (Code. 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 \&w, 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 can not 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; Tweed, 63 N. Y, 202). The question of the amount of bail is one of discretion for the court below, and its decision is not ap- pealable, (id). Where the defendant is actually confined in the jail, by virtue of an order of arrest, and final or inter- locutory judgment 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 prescribed in this article. (Code 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: 430 PRACTICE. 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 specified in the order; or, in default of his so doing, that he will, at all times, render himself amenable to proceedings to punish him for the omis- sion. 2. If the action is to recover a chattel, that the defendant will deliver it to the plaintiff, if delivery thereof is adjudged in the action, and will pay any sum recovered against him in the action. 3. In any other case, that the defendant will, at all times, render himself amenable to any mandate, which may be issued to enforce a final judgment against him in the action. (Code Civ. Proc. § 575). 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. [Arleaga V. Conner, 47 Super. 494). It is not necessary that the un- dertaking should be approved, or accompanied with an afiS- davit of justification of the bail, but the officer taking the acknowledgement of the undertaking, must, if the sheriff so requires, examine under oath, to a reasonable extent, the persons offering to become bail, concerning their property and their circumstances. The examination must be reduced to writing, subscribed by the bail, and annexed to the under- taking. (Code Civ. Proc. § 576). Within three days after bail is given, the sheriff must deliver to the plaintiff's attor- ney, copies, certified by him, of the order of arrest, return and nndertaking 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.' (Code 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. Hitterman, 5 Robt. 618). Within ten days after the receipt of the notice, the sheriff, or the defendant, may serve upon the plaintiff's attorney. AEEEST AND BAIL. 431 notice of the justification of tlie same or other bail, specify- ing 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 executed, as prescribed in section five hundred and seventy-five of the code. (Code Civ. 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 the undertaking, does not apply to the undertaking; of bail. (Cafiero v. Dematrino, 6 "Wkly. Dig. 55). The qualifications of bail are as follows: 1. Each of them must be a resident of, and a householder oi 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 justification is equivalent to that of two sufficient bail. (Code 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. [Som- erset & W. Sav. Bank v. Huyck, 33 How. Pr. 323). One^ who has a title to real estate, is a freeholder, irrespective of the amount in value of his interest therein. (^People v Scott, 8 Hun, 566). For the purpose 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 par- ties. If required by the plaintiff's attorney, the examination must be reduced to writing, and subscribed by the bail. (Code Civ. Proc. § 580). If the bail do not justify at the time mentioned in the notice, further time may be allowed. 432 PKACTICE. io justify on good cause shown, and a new notice must be given. {Burns v. Eobbins, 1 C. E. 62). If they fail to justify, and the sheriff thereupon becomes liable as bail, the sureties cease to have any rights, or privileges as bail. (Haberstro v. Bedford, 43 Hun, 201). If the judge finds the bail sufficient, he must annex the examination to the undertaking, endorse his allowance thereon, and cause them -to be filed with the clerk. The sheriff is thereupon exon- erated from liability. (Code Civ. Proc. § 581). The justi- fication 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 tiiiie 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. (Code 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 payment of the judgment {Hermann y. Aaronson, 8 Abb. Pr. N. S. 155) ; but if the money deposited by a third per- son was as a security that the sureties would justify, and was not in lieu of bail, the plaintiff cannot have the money ap- plied 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. (Code 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 AEEEST AND BAIL. 433 a return thereof, but without expressing any other contin- gency. The direction must be acknowledged on proved and certified, in like manner as a deed to be recorded; and ihe sheriff must deliver it to the officer who receives the de- posit, who must note the substance thereof, with the entries of the deposit, in his books, and upon the two certificates 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 defrauding creditors. The money, or the residue thereof, must be paid to the third person, where, by the provisions 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. (Code Civ. Proc. § 586). If money deposited is not refunded, as prescribed in section five hun- dred 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 re- quires, 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 <;ourt, in satisfaction of the judgment; and the surplus, if any, must be refunded to the defendant, or his representative. 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 defendant or his repre- sentative. (Code 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 contri- buting thereto, it is the depositor's loss. {Far sons v. Travis, 5 Duer, 650). If money is deposited, as prescribed in sections five hundred 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 expiration of the right to be discharged on baU. Thereupon the judge, before whom the justification is had, must direct in the order of allowance, that the money deposited be re- 28 434 PEACTICB. funded to tlie defendant or his representative, and it must be refunded accordingly. (Code Civ. Proc. § 584). Sec. 4. liiabiUty of SherifF. If, after tlie 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 inta court as required by section five hundred and eighty-three of the Code of Civil Procedure, the sherifp is liable as bail. But the sheriff may, except in an action to recover a chattel, discharge himself from liability, by the giving and justifica- tion 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. (Code Civ. Proc. § 587). The sheriff is not liable for an escape, where the process is void. {Carpenter v. Willett, 31 Ni T. 90). After the de- fendant has once given bail, the sheriff has no right to res- train him. It is only the failure of bail to justify, that makes the sheriff liable as bail, with the right to arrest his principal and detain him. [Arteaga v. Conner, 88 N. Y. 408). If the defendant escapes before bail is given, or if the sheriff permits the defendant to go at large, without giv- ing bail, or making a deposit, he becomes liable as bail him- self. {Bensel v. Lynch, 44 N. T. 162). The sheriff may as bail re-arrest the defendant without process. [Sarios v. Merceques, 9 How. Pr. 188). He is entitled to discharge his liability as baU, in the same manner as other bail, by sur- rendering the prisoner to custody. {Brady v. Brundage,. 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. Bowe, 4 Law. Bull. 7). If judgment is recovered against the sheriff, upon his liability as bail, and an execution thereon is returned whoUy or AEEEST AND BAIL. 435 partly unsatisfied, the official bond of tlie sheriff may be prosecuted, as in any other case of delinquency. (Code 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. Dikeman, 4 Key^s, 93). "Within ten days after the defendant is arrested, if he does not give bail, or if he gives bail, within ten days after the justification of the bail, the sheriff must file with the clerk the order of arrest, or, where it was granted by the court, a certified copy thereof, delivered to him, with his return there- upon indorsed, the papers upom 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. (Code Civ. Proc. § 590). AETICLE VI. CHABGING AND DISCHAEGING BAIL. Sec. 1. When and hois- Defendant Surrendered. Except in an action to recover a chattel, the bail may sur- render the defendant in their own exoneration, or the defen- dant may surrender himself, in exoneration of the bail, before the expiration of the time to answer, in an action against them. The surrender must be made to the sheriff of the county, where the defendant was arrested. (Code 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 affirmatively shown that the wife is irresponsible. (Mills V. midreth, 7 Hun, 298; S. C. 81 N. Y. 91). The defen- dant, after being surrendered by his bail, is entitled to be discharged, upon tendering a new bond, similar in form to the one first given. (McCallum v. Barnard, 58 How. Pr. 169). After the bail has become charged, it is too late to apply for an exoneration of the bail. (McKenzie v. Smith, 48 N. Y. 143). 436 PRACTICE. Where tlie bail suxrender the defendant, the surrender must be made in the following manner: 1. They must take the defendant to the sheriff, and re- quire 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 original 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 production of the sheriff's certi- ficate 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 accordingly. (Code Civ. Proc. § 592). FoT the purpose of surrendering the defen- dant, the bail, at any place or at any time before they are finally charged, may themselves arrest him, or by a written .authority, endorsed on a certified copy of the undertaking, may empower another person to do so, and one or more of the bail may thus arrest and surrender the defendant, although the others do not join with him or them for that purpose. (Code Civ. Proc. § 593). Where the defendant surrenders 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 sub- division 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, acknowledge the surrender. An order for the exoneration of the bail may be procured, as prescribed in section five hundred and ninety-two. (Code Civ. Proc. §594). Sec. 2. Rights and Iiiabilities 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 ARREST AND BAIL. 437 in the action. But this section 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 omis- sion of the sheriff. (Code Civ. Proo. § 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. Haberstro, 88 K 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. (Code 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 indemnitors to the sheriff for the damages he may sustain in consequence of the relation of bail, thrust upon him. {Haberstro v. Bedford, 43 Hun, 201). The sheriff has no right of action, under this section, until he has sustained damages by reason of the liability as bail, which the law imposes upon him, as a consequence of a failure to justify or to put in other bail. The action is not upon the undertaking, but for damages sustained by the sheriff as bail. {Clapp V. Schutt, 4:4c 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. (Code Civ. Proc. § 596). 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 there- upon, at any time after the return, wholly or partly unsatis- fied, 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, an action can not be brought, until the following requisites have been complied with: 438 PRACTICE. 1. An execution against the property of the defendant, 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 defendant, must have been issued to the same sheriff, and by him re- turned, not less than fifteen days after its receipt, 'to the effect that the defendant could not be found within his county. (Code Civ. Proc. § 597). The complaint in such action must allege a recovery of a judgment, 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. Waterbury Button Co. 37 N. Y. Super. 393). The return, by a sheriff, to an execution against the person, of " not found " subjects the 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. [Cozine v. Walter, 55 N. Y. 304). The cause of action is assignable, and the assignee may maintain the action in his own name. [Moses v. Waterbury Button Co., supra). Though one of two defendants has been imprisoned under execution, if the other is "not found," the plaintiff may pro- ceed against the bail of the one not found; the imprison- ment of one, is no satisfaction as to the other. [Grouse v. Paddock, 8 Hun, 630). The sheriff must diligently endeavor to enforce an execu- tion issued and delivered to him, as prescribed in section five hundred and ninety-seven of the Code of Civil Proce- dure, notwithstanding any direction he may receive from the plaintiff or his attorney. (Code Civ. Proc. § 598). Sec. 3. Defenses in Action Against Bail. In an action against bail, it is a defense, that an execution against the property, or against the person of the defendant in the original action, was not issued, as prescribed in sec- tion five hundred and ninety-seven of the Code of Civil Pro- cedure ; or that it was not issued in sufficient time to enable the sheriff to enforce it; or that a direction was given, or AKEEST AND BAIL. 439 other fraudulent or collusive means were used, by the plain- tiff or his attorney, to prevent the service thereof. (Code 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. (^Gregory v. Levy, 12 JBarb. 610). They can not defend on the ground of irregu- larity of the judgment; they should apply to set aside the judgment, and be allowed to defend. {Jewett v. Crane, 35 Barb. 208). In the absence of fraud, the sureties can not avoid the effect of the bond, on the ground that they were induced to sign it by a mistake as to its contents. ( Wheaton V. Fay, 62 N. T. 275). If the defendant in the original action, after his discharge from bail, is imprisoned, either within or without the state, upon a criminal charge, or a conviction of a criminal offence, the court, in which an action against the bail is pending, may before the expiration 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. (Code Civ. Proc. § 600). Except in an action to recover a chattel, the bail must be exonerated where either of the following events occurs, be- fore 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 him- self amenable to the process, direction, or proceedings, with respect to which the undertaking of the bail was made. 3. His surrender to the sheriff of the county where he Tvas arrested, as prescribed in sections 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, im- pose the payment of the plaintiff's costs and expenses, in- curred 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 sur- 440 PEACTIOE. render, within the time so granted has the same effect, as if it had been made before answer. (Code Oiy. 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. ( Ober- gon V. DeMier, 54 How. Pr. 390). On the death of the principal, bail will be exonerated on motion. {^Merriit v. Thompson, 1 Hilt. 550). But where the principal died sixty-six days after seiTice of summons on the bail, but be- fore complaint, it can not be pleaded in bar. [Gauntley v. Wheeler, 4 Lans. 491). The bail may be permitted to de- fend the original action, for their own protection. (Jewetf 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. (^A'pplehy v. Robinson, 44 Barb. 316). On an application for further time to surrender the defendant, it is necessary to show that the bail are not in- demnified. {Bank of Geneva v. Reynolds, 12 Abb. Pr. 81). In the case last cited, the application was 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 sherifE applies to surrender the defendant, after the time to answer has expired, in a case against himself, he must show a substantial and sufficient excuse for permitting de- fendant to be at large. [Douglass v. Haberstro, 21 Hun, 320). Sickness 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, ap- plies only to an action in the supreme court, a superior city court, the city court of the city of New York, or a county court. (Code Civ. Proc. § 3847). CHAPTEE XV. INJUNCTIONS. ARTICLE I.— Definition and nature. ARTICLE II. — WJien 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 NATUEK SECTION. 1. Definition. 3. Nature and object of the remedy. Sec. 1. Definition. An injunction is a judicial process, operating in personam 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 injunction may be granted by order. (Code Civ. Proc. § 602). An injunc- tion thus granted is a mandate of the court. (Code Civ. Proc. § 3343, subd. 2). With reference to their duration, injunctions are divided into final or perpetual, and prelimi- nary or interlocutory, or, as they are styled in the Code of 442 • PKACTICE. Civil Procedure, temporary injunctions. Perpetual injunc- tions are granted only by the final judgment. [Burnham T. Adon, 7 Eobt. 395; 1 Barb. Ch. Pr. 614). The distinc- iion between a perpetual and temporary injunction is that ihe 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. Supervisors of N. Y. 4 Duer, 192; Neustadt v. Joel, 2 Duer, 530). The rules of the code, -which will be discussed in this chapter, apply only to injunc- tions which are granted before final judgment, and which are «alled in that work, temporary injunctions. Injunctions are also known as mandatory and preventive, according as they command the defendant to do, or to refrain from doing a particular thing. It is not usual to award a mandatory in- junction, until final judgment in a case. But the court may, by process mandatory in effect, do what is necessary to pre- sent a defendant from defeating the rights of other parties, during the pendency of the action. [Hanover Fire Ins. Co. V. Germania 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 &s a remedial process. [High on Injunctions, § 1.) The principal object of a temporary injunction is the preservation of the subject in controversy in its then condition, and, with- out finally determining any questions of right, to prevent the further perpetuation of wrong, or the doing of any act, whereby the right in controversy may be materially injured or endangered. {High on Injunctions, § 4; Van Veghten V. Howland, 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 further injury, and to keep things ■where they are for the present. [BlakemoreY. Glamorgan- INJUNCTIONS. 443 shire &c. Co. 1 Myl. & K. 154). In granting relief by temporary injunctions, courts of equity in no manner antici- pate tlie ultimate determination of the questions of right involved; they merely recognize that a sufficient case has been made out to warrant the preservation of the property, or rights in. issue, in statu quo, until a hearing upon the merits; without expressing, and indeed without having the means of forming an opinion as to such rights. (^High on Injunctions § 5). AETICLE II. WHEN INJUNCTION WILL BE GKANTED. SECTION. 1. General principles. 2. When right depends upon nature of the action. 8. When right depends upon extrinsic facts. 4. Various cases in which it will he 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. [Neustadt v. Joel, 2 Duer, 530; Merritt v. Thompson, 3 E. D. Smith, 283). Temporary injunctions can only be granted in cases pre- scribed 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 jur- isdictiono {People v. Schoonmaker, 50 N. Y. 499; Pfohlv. Sampson, 59 N. T. 174). No rule can be prescribed which will absolutely control every case. {Ludvigh v. Dusseldorf, 8 Wkly. Dig. 490). The fact that the refusal of the injunc- tion 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. Campbell, 75 N. T. 625). Though it is usually discretionary with the court whether or not to grant a temporary injunction, yet where the complaint prays an injunction as part of the relief, the granting of it is error of law, reviewable in the court of ap- peals, if the complaint does not show that the plaintiff is en- titled to the relief demanded. [McHenry v. Jewett, 90 N. Y. 58). A temporary injunction can only be granted in an 444 PBAOTICB. action, and not in a proceeding commenced by petition, [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 Power Storage Co. v. Whiting, 17 Wkly. Dig. 263) ; but a probable and prima facie case is sufficient. {^McHenry v. Jewett, 90 N. T. 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 substantial damages to the plaintiff, and the injury residting to the defendant from a temporary in- junction, 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. [Hector of the Church of Holy Innocents v. Keech, 5 Bosw. 691 ; Spear v. Cutter, 5 Barb. 486). It should always appear that the injunction is necessary to protect the plaintiff's rights during the litiga- tion. (Bagaley v. Vanderbilt, 16 Abb. N. C. 359; McHugli V. B. H. & E. R. R. Co. 66 Barb. 612). It must also ap- pear that the act complained of is illegal as to the plaintiff, and it must be a violation of his private rights. The mere fact the act is in violation 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 Harvester Co. v. Meinhardt, 9 Abb. N. C. 393). It must be irreparable,, that is, not susceptible of being adequately compensated in damages ; or such as from its continuance, must occasion a constantly occurring grievance, or permanent mischief, which 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 wrongfid acts, or where an easement or servitude is annexed by grant, cove- nant or otherwise to a private estate. (^Hilliard on Injunc- tions, § 31). INJUNCTIONS. 445 The incompleteness and inadequacy of the legal remedy is the criterion of the right to an injunction. (3 Pomeroy's Eq. Juris. § 1338). This rule does not, however, 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 plaixitiff has an adequate remedy by damages, or by instituting criminal pro- cedings, or by appeal or mandamus, or filing a notice of lis pendens, an -injunction will be refused. {Savage v. Allen, 54 N. T. 458; Fincke v. Police Commr's, 66 How. Pr. 318; People V. Coffin 7 Hun. 608 ; People v. Wasson 64 K T. 167 ; Gregory v. Gregory, 33 Super 1). The fact that a lis pen- dens has been filed in the action, is not necessarily an objec- tion to granting an injunction, if it is doubtful whether the lis pendens will protect the interest of the plaintiff. ( Cornell V. King, 13 Wkly. Dig. 327). If the plaintiff is guilty of laches in moving to protect his rights, the temporary in- junction will be refused. ( Van Ranst v. N. Y. College of Vet. Surgeons, 4 Hun, 620). It will also be refused, where the plaintiff stands by and permits the defendant to incur large expense without objection. {Ninth Ave. R. R. Go. v. N. Y. Elevated R. R. Co., 3 Abb. N. C. 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., 67 How. Pr. 232). A temporary injunction will not be granted, simply because the plaintiff will proba,bly recover in the action ( Troy & Boston R. R. Co. V. B. H. T. & W. R. R. Co. 13 Hun, 60), unless it is proba- lale that without it, the court can not on final judgment do justice between the parties. ( Van Vegliten v. Howland, 12 Abb. Pr. N. S. 461). Before granting a temporary injunc- tion, 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. & H. Canal Co., 19 Barb 371; Power v. Village of Athens, 19 Hun, 165). It will be refused where it will it will create a greater wrong to the defendant to grant it, than to the plain- 446 PEACTICE. tifE to refuse it. [Gallatin v. Oriental Bank, 16 How. Piv 253). A temporary injunction never will be granted, where it appears inequitable, or contrary to the real justice of the case. ( Troy & Boston E. B. Co. v. B. H. T. & W. E. 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. OrH Western E. E. Co., 39 Barb. 212, 223). An injunction can not be granted on the submission of a controversy without action (Code Civ. Proc. § 1281); although the question submitted is whether or not the plaintiff is entitled to an in- junction. [Cunard Sfp Co. v. Voorhis, 104 N. Y. 525). Sec 2> 'Wben Right Depends upon Nature of the Action. Where it appears, from the complaint, that the plaintiff demands and is entitled to a judgment against the defen- dant, restraining the commission or continuance of an act, the commission or continuance of which, during the pend- ency 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. (Code Civ. Proc. § 603). This section applies only to suits in equity. [Reubens v. Joel, 13 N. Y. 488). In a judgment creditor's action, a temporary injunction, restraining the transfer to any person,, or the payment or delivery, to the judgment debtor, of any money, thing in action or other property or interest, which might be applied to the satisfaction of the sum due to the plaintiff, is deemed to be one of those specified in section sir hundred and three. (Code Civ. Proc. § 1876). A tem- porary injunction granted in an action by the people, against the usurper of an office or franchise, pursuant to section nineteen hundred and forty-eight of the Code of Civil Pro- cedure, is also deemed one of those prescribed in section six hundred and three. (Code Civ. Proc. § 1955). An injunc- tion under this section can only be granted on the complaint. [People ex rel. Eoosevelt v. Edson, 51 Super. 227). It must show a cause of action entitling the plaintiff to reKef in. equity. [Chase v. Vanderhilt, 37 Super. 334; McHenry v- INJUNCTIONS. 447 Jewett, 90 N. Y. 58). The allegations in the complaint can- not be helped out by affidavits. [Hentz v. Lcnig Island E. B. Co. 13 Barb. 646; Stullr. Westfall, 25 Hun, 1). 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. Devereaux, 4 Paige. 229)' A temporary injunction can not 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 injunc- tion, it must appear from the complaint, that the plaintiff is entitled to it under the rules of equitable jurisprudence. {Troy & Boston B. B. Co. v. B. H. T. & W. B. B. Co. 86 N. Y. 107; McHenry v. Jewett, 90 N. Y. 58). "Where a . temporary injunction is of the same nature as that sought by the final judgment, it should not be granted, unless some im- mediate and irreparable injury is probable which can not be remedied by a final judgment (iV. Y. & Albany B. B. Co. V. N. Y. West Shore & Buf. B. B. Co. 11 Abb. N. C. 386) ; 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 threat- ened, is not euoiigh. {McHenry v. Jewett, 90 N. Y. 58). Seo. 3. AVhere Right Depends upon Extrinsio Facts. In either of the following cases, an injunction ord6r may also be granted in an action: 1. Where it appears, by affidavit, that the defendant, dur- ing the pendency of the action, is doing, or procuring, or suffering to be done, or threatens, or is about to do, or to procure, or suffer to be done, an act in violation of the plain- tiff's rights, respecting the subject of the action, and tending to render the judgment ineffectual, an injunction order may be granted to restrain him therefi-om. 2. Where it appears by affidavit, that the defendant, dur- ing the pendency of the action, threatens, or is about to re- move, or to dispose of his property, within intent to defraud the plaintiff, an injunction order may be granted, to restrain the removal or disposition. (Code Civ. Proc. § 604). An injunction can be granted under this section, only for 448 PBACTICE. acts done, or threatened, during the litigation. [Perkins v. Warren, 6 How. Pr. 341; Malcolm v. Miller, 6 How. Pr. 456). 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 en- forced. [Pomeroy on Remedies, § 475 ; Glenn & Hall Mfg. Co. V. Hall, 61 N. Y. 226, 233). A temporary injunction, under this section, may be granted on affidavits, before service of the complaint. (^Continental Store Service Co. v. Clark, 7 Civ. Proc. B. 183). Where an injunction is sought under subdivision two of this section, it may be granted at the suit of any creditor, although he has not recovered a judgment. {^Mitchell V. Bettman, 25 Barb. 408). It is granted in such cases, however, only to prevent an intended fraudulent dis- posal of property, and not where the removal or transfer has been completed. (^Reubens v. Joel, 13 N. T. 488). Such an injunction will not be granted to restrain all removal or disposition of property; but only a removal with intent to defraud the plaintiff. {^Brewster 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. [Pom- eroy v. Hindmarsh, 5 How. Pr. 437). It will never be issued, to prevent the disposition 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 assigned to another, to defraud the seller, and both are in- solvent, 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 separation, where the husband had disposed of his property, and was about to remove from the state, without providing for the plaintiff, a temporary in- junction was granted. ( Vermilyea v. Vermilyea, 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 Gases in Vniicli it irill be Grranted. It is not intended to go into a comprehensive examination, with reference to the various purposes, to which an injunc- INJUNCTIONS. 449 "tion may be applied. To do this, would require not a cliap- ter, but a complete treatise. It may be useful, however, to call attention to a few of the particular cases in which injunctions have been granted ; not exhaustively, but merely by way of illustration of the general subject. Sub-division 1. — Contracts. Usually, a temporary injunction will not be granted to Testrain violations of a contract, but this rule will not be applied, where an injury can not be fully compensated for in ■damages. Thus, a violation of a contract not to carry on business in a particular locality, has been restrained, although the Agreement provides for liquidated damages for its viola- tion. (Diamond Match Co. v. Boeber, 35 Hun, 421). One who has made such a contract, will be restrained from carry- ing 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 plaintiff. [Stull V. West/all, 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. [Lawrence v. Saratoga Lake R. B. 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). 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). Sub-division 2. — Copyright. Before publication, an author has by common law, the ex- clusive title to his property, and the right to determine whether it shall be published at all, and if published, when, where, by whom, and in what form. (Palmer v. DeWitt, 47 N. Y. 532). The publication by another will be re- 29 450 PRACTICE. strained, although it is a play, which the author has repre- sented upon the stage, (id). The assignee of an author- may have an injunction, to restrain the publication of a man- uscript, or the production of a play. [Shook v. Daly, 49 How. Pr. 366; Wldmer V. Greene, 56 How. Pr. 91). Where an artist has painted a picture, and assigned ta another the excliisive right to reproduce copies, th& 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). 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). Sub-division 3. — Ooepoeations. (A). In General. Corporations may be restrained by in- junction, in the same manner, and to the same extent, as in- dividuals. [Mayor, etc,, v. JSf. Y. & Stolen Island Ferry^ Co., 64 N. Y. 622). An injunction will issue to restrain a corporation, from completing an unlawful sale of all the property of the company. [Abbott v. Am. Hard Rubber Co., 33 Barb. 578). A corporation will be restrained from, the payment of an unearned dividend [Carpenter v. N. Y. & N. Haven E. E. Co., 5 Abb. Pr. 277); but if a div- idend has been earned, it will not be restrained by injunc- tion from paying it in cash, or in stock. ( Williams v. West- ern Union Tel. Co., 93 N. T. 162). The directors of a cor- poration may be restrained from committing fraudulent acts, which they are charged to intend, or any particular wrong, affecting the private rights of the stockholders ; but they will not be restrained from performing the general and ordi- nary business of the corporation. [Howe v. Deuel, 43 Barb. 504). One corporation may, by injunction, be restrained from consolidating with another. [Blatchford v. Eoss, 54 Barb. 42). A corporation 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- INJUNCTIONS. 451 sons with notice. [Belmont v. Erie Railway Co., 52 Barb, 637). A corporation, engaged in supplying commercial in- telligence, 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 v. Gold & Stock Tel. Co. 42 Hun, 454). An injunction, sus- pending the general and ordinary business of the corporation, can only be granted by the court, upon notice. (Code Civ. Proc. § 1809). Such an injunction will not be granted, un- less there is a plain violation of law, or a departure from the powers of the corporation. [Bach v. Pacific Mail S. S. Co., 12 Abb. Pr, N. S. 373). An injunction, which forbids a railroad company, from leasing or selling any part of the property of the company, or restrains it from making a par- ticular contract for building or equipping its road, is of this nature, and cannot be granted without notice [Town of Middletown v. B. & O. R. B. Co., 12 Abb. Pr. N. S. 276) ; but one which forbids a railroad company, from making an intersection with another company, is not within this section, and may be granted ex parte. [Howlett v. N. Y. West Shore & Buffalo B. B. 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 directors ( 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. Conklin, 5 Hun, 452). In an action by a judg- ment creditor, for sequestration of the property of a corpo- ration, 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, direc- tors, managers, and other officers from collecting or receiv- ing any debt or demand, and from paying out, or in any way transferring, or delivering to any person any money, prop- erty, or effects of the corporatioji, during the pendency of the action, except by express permission of the court. Where 452 PRACTICE. an action is brought, to procure the dissolution of the corpo- ration, the injunction may also restrain the corporation, and its trustees, directors, managers, and other officers from ex- ercising any of its corporate rights, privileges, or franchises, during the pendency of the action ; except by express per- mission of the court. (Code Civ. Proc. § 1787). In an action brought by the attorney general, to procure a judg- ment vacating or annulling the act of incorporation, 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 corporation, and any and all of its directors, trustees, or other officers from exercising any of its corporate rights, privileges, or franchises, or from ex- ercising certain of them ; or from exercising any franchise, liberty, or privilege, or transacting any business, not allowed by law. (Code Civ. Proc. § 1802). In actions brought pursuant to Articles II, III or IV of title II, Chapter XY, of the Code of Civil Procedure, the court may, on the appli- cation 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 bringing actions against the defendants, or any of them for the recovery of a sum of money, or from taking any fur- ther proceeding in such actions, theretofore commenced. (Code Civ. Proc. § 1806). 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 corpora- tion. {Attorney General v. Guardian Mut Ins. Co., 77 N. Y. 272). In special proceedings to wind up a corpo- ration, actions against the receiver will be enjoined, if such actions will hamper the receiver, 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, a religious corporation will be enjoined, at the suit of a minority of the trustees, to prevent a diversion of its property to the use of another denomination. (First Ref. Pres. Ch. v. Bowden, 10 Abb. N. C. 1). Trustees of INJUNCTIONS. 453 a religious corporation will not be restrained, in an action by a pew owner, from making alterations in the pews (^Cooper V. First Pres. Ch. 32 Barb. 222) ; or from seUiag 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 action brought to try the title to the office of trustee of a re- ligious corporation. [Hartt v. Harvey, 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 possession, until the legal right is settled at law. [Beis v. Rohde, 34 Hun, 161). (C). Municipal Corporations. A municipal corporation, or its officers, may be restrained from illegal, corrupt, fraud- ulent, or oppressive exercise of discretionary, or legislative powers. [Feoplex. Sturtevant, 9 N. Y. 263). While equity will not ordinarily interfere with matters resting largely in the discretion of municipal authorities, yet, where a threat- ened 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 fraud- ulent and corrupt, and an abuse of trust, such interference will be made. {People v. Dwyer, 90 N. Y. 402, 410). A private person can only maintain an action for that purpose, when the illegal act causes some special injury to his prop- erty rights. [Milhau V. Sharp, 27 K Y. 611; Doolittle v. Supervisors, 18 N-. Y. 155). In other cases, the action must be in the name of the people, or of the attorney general. {People-^. Mayor, 32 Barb. 35; Atty. Gen. v. Mayor, etc., 3 Duer, 119). An injunction will not issue to prevent the passage of an illegal ordinance ( Whitney 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 ; Laivrence v. Mayor, etc., 2 Barb. 577). An injunction will not be granted to restrain the en- forcement 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. 454 PEACTICE. [Marvin Safe Co. v. Mayor, etc., 38 Hun, liQ; Sickles v. New Bochelle Board of Health, 41 Hun, 408). An injunction will not lie, by the village authorities, to restrain the viola- tion of a penal ordinance. ( Village of Brockport v. Johns- Ion, 13 Abb. N. C. 468). An injunction will not lie, to re- strain the execution of a plan of improvement, adopted by a municipal corporation, unless material and actual injury is the necessary or probable result. [Morgan v. City of Bing- hamton, 102 N. T. 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). 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 Brooklyn, 26 Barb. 301). In actions brought under section nineteen hundred and twenty-five of the Code of Civil Procedure, to obtain a judgment, preventing waste or injury to the estate, funds, or other property of a county, town, city, or incorporated vil- lage, a temporary injunction may be issued. [Hurlhurt v. Banks, 1 Abb. N. C. 157, 172; Ayres v. Lawrence, 59 N. Y. 192). Sub-division 4. — Covenants. An injunction will be granted to restrain a violation by the lessee, of a covenant not to sub-let, or assign the de- mised premises [Barrington ApprH Ass^n v. Watson, 38 Hun, 545) ; or where a building is let for use for a speci- fied 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 purchaser 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 specified part of the premises conveyed [Phcenixins. Co. v. Continental Ins. Co., 87 N. T. 400) ; or INJUNCTIONS. 455 to restrain the grantee, from doing any act which by a deed poll he had agreed not to do. [AUmitic Dock Company v. Leavitt, 54 N. Y. 35). It will restrain a Tiolation of mutual covenants 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. T. 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 par- ticular 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-performance, to be accepted by the covenantee in lieu thereof. But, if the primary in- dent was, that the covenant should be performed, the penalty is regarded merely as a security, and not as a substitute for it. [Phoenix Ins .Co. v. Continental Ins. Co., 87 N. T. 400). Such an injunction, however, is in the discretion of ihe court; and although the contract may be a fair and just one when made, the interference of the court shoiild be denied, if the subsequent events have made the performance by the defendant so onerous, that its enforcement would in- flict great hardships upon him, and cause little or no ben- -efit 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, which would in- -crease the hazard or rates of insurance, the court will, by in- junction, restrain a violation of his covenant. [Gillilan v. Norton, 6 Eobt. 546). But the contrary was held, in an earlier case, although later reported, decided by the general term of the court of common pleas. {Agate v. Lowenbein, 4 Daly, 62). An injunction will not be granted to restrain -the breach of a condition subsequent. [Erwin v. Hurd, IB Abb. N. C. 91). Sub-division 5. — Easements. Where an easement or servitude is annexed, or pertains, to & private estate, either by grant, covenant, or prescription, any encroachment upon its quiet enjoyment and exercise, will be prevented by injunction. [Seymour v. McDonald, 456 PEACTICB. 4 Sand. Ch. 502; Hills y. Miller, 3 Paige, 254; Trustees v. Cowen, 4 Paige, 510). To warrant an interference in that class of cases, the easement should be certain, and capable of being clearly ascertained; and there should be a clear and palpable violation of the right. And the contract must be a complete and sufficient contract, founded upon a valu- ble consideration, and its terms defined by satisfactory proof, accompanied by acts of part performance, unequivocally refer- able to the supposed agreement. [High on Injunctions, § 849 ; Cronkhite v. Cronkhite, 94 N. Y. 323) . The owner of land, abutting on the highway, may restrain 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 re- moval of soil by a adjoining owner, if such removal will cause the subsidence of the plaintiff's land, by reason of the withdrawal of lateral support [Farrand v. Marshall, 21 Barb. 409) ; or where it will cause subsidence of the high- way, to an extent that will inter-fere with access by the plaintiff to his premises. [Milburn v. Fowler, 27 Hun, 568). One who owns to the center of the street, subject- only to the easement for a highway, may restrain the con- struction of a street railway, or a steam railway, along the highway. [Craig y. Boch. City & Brighton B. B. Co., 39^ N. Y. 404; Fanning v. Osborne, 34 Hun, 121). One may- restrain 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. ( Tiffany v. U. S. lUuminatinff Co., 51 Super. 280). Plaintiff cannot restrain interference with an easement, unless he has a right to it, which is some- thing more than a mere license. [Knickerbocker Ice Co. v. Shultz, 41 Hun, 458; Cronkhite v. Cronkhiie, 94 N. Y. 323). But the fact that his interest is trivial, is not a rea- son for refusing an injunction. [Foster y.City of Buff alb, 64 How. Pr. 127). injunctions. 457 Sub-division 6. — Feanchises. 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. Vcm Ingen, 9 Johns. 507). Un- less the grant to the plaintiff is exclusive in terms, a tem- porary injunction will not issue to restrain others, claiming the right to exercise a similar franchise, or legal rights which interfere with it. [Auburn & Cato Pile. R''d. Co. v. Douglas, 9 N. Y. 444; Fort Plain Bridge Co. v. Smith, 30 N. Y. 44). The grounds of restraining an interference with a franchise, are the inadequacy of the remedy at law, and the necessity of avoiding multiplicity of suits. [High on Injunctions § 908). The city of New York has anexcjlu- sive right to grant a ferry franchise 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. Longsireet, 64 How. Pr. 30). The court has power to prohibit a municipal corporation from granting- franchises. [People v. Sturtevant, 9 N. Y. 263). Sub-division 7. — Highways. A commissioner of highways cannot, by injunction, compel a removal of, or restrain an obstruction in, a highway. [Rozell V. Andrews, 103 N. Y. 150). A private person cannot restrain, by injunction, an obstruction in a highway, unless he shows a substantial injury, which is special to- himself. [Ninth Ave. B. B. 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 [Callanany. Gilman, 52 Super. 112) ; or the use of the sidewalk to show goods, to such an extent as to deprive him of light, air and access. [Hallock v. Scheyer, 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 re- 458 PRACTICE. placing 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, 35 Hun, 103). The shutting up of a highway, which is one of several approaches 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. E. Co., 40 Hun, 310). After proceedings have been taken to lay out a highway, and the apprisal of damages has been confirmed, the commis- sioners of highways will be restrained from taking out of the land, to grade other portions of the highway, more gravel than the process of construction or repair requires and necessarily compels to be removed, where he takes it by dig- ging pits in the highway. [Robert v. Sadler, 104 N. Y. 229). Other matters in regard to highways may be found Tinder the head of easements and nuisances. Sub-division, 8. — Judicial Peoceedings. This section refers only to the cases in which proceedings may be stayed; and it will not treat of the requirements 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 exercise of this jurisdiction is essential to the complete administration 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 jurisdictions of law and equity, in a single tribunal. {Fielding v. Lucas, 87 N. T. 197, 199). One judge of the supreme court, sitting at special term, has authority to enjoin the prosecution of an action, before an- other judge, or in another court [Erie Railway Co. v. Ramsey, 45 N. T. 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 seri- ous consequences would result from a refusal. [Erie Rail- way Co. V. Ramsey, supra). The court may also enjoin parties from proceeding before a surrogate's court, in a case where the defendant is estopped from prosecuting in that court. [Pettigrew v. Foshay, 12 Hun, 483). The juris- INJUNCTIONS. 459 ■diction in such matters depends upon the necessity for the interference of the court, to prevent the failure of justice. {Morse v. Cloyes, Seld. 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 ( Wil- liams V. Aryault, 31 Barb. 364) ; but it may do so, if a special case is shown for it. {Vail v. Knapp, 49 Barb. 299; Kittle v. Kittle, 8 Daly, 72). 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 ac- tion {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 v. Hamlin, 62 How. Pr. 284), but the facts showing that purpose must be alleged ( White v. Caxton Book Binding Co. 10 Civ. Proc. R. 146) ; or where a party is seeking, in another state, a remedy totally incon- sistent with the rights he has asserted in the courts of this state {Garrison v. Marie, 7 Civ. Proc. E.. 113); or where it appears that the defendant had commenced, in the ■court of another 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, according 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. {Dinsmore v. Neresheimer, 32 Hun, 204). Proceedings 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 Thompsons. Norris, 11 Abb. N. C. 163). A non-resident will not be restrained from suing in the courts ■of his own forum. {Barry v. Mut. Life Ins. Co. 2 T. & C. 15). The ground upon which proceedings at law are en- joined is to restrain a multiplicity of suits. ( Third Ave. R. 460 PRACTICE. E. Co. V. Mayor etc., 54 N. Y. 159). But, whether or not it will be done, is always discretionary with the court. {Pfohl V. Sampson, 59 N. Y. 174). Proceedings at law have been enjoined in the following cases: in an action to set aside a lease, a subsequent action by the defendant, to recover rent upon it [Manneck Mfg. Co. V. Manneck, 15 Wkly. 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 eject- ment 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 insolvent corporation, to obtain a pre- ference, with the connivance of officers of the corporation {Galway v. U. S. Sugar Bef. Co. 21 How. Pr. 313; 13 Abb. Pr. 211) ; to restrain an action, enforcing a forfeiture under a contract, during the pendency of an action to correct a mistake 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. Bei- man, 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 proceed- ings in the action. [Ghappell v. Potter, 11 Hun, 365). The stay of proceedings operates on the parties, and not upon the court. [N. Y. <& New Haven B. B. Co. v. Schuyler, 17 How. Pr. 464). "Wherever it is necessary, an injunction may run not only against the party, but also against the attorney, counsellor, 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 ( Wallack v. Society for Belief 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. Was- son, 64 N. Y. 167, 170); nor where the party, moving for the stay, may intervene in the s\iit, and protect his interest,. [Woodxcard v. Frost, 19 Wkly. Dig. 125). It will not be INJUNCTIONS. 461 granted, to restrain a defendant from instituting legal pro- ceedings against the plaintifif. ( Cowper v. Theall, 40 Hun, 520). Trial by court-martial will not be stayed, because the plaintiff has been once tried and fears an unfair trial. [Per- ault V. Band, 10 Hun, 222). A party cannot obtain an in- junction, to restrain the commencement of an action, because of the serious injury which will result to him from it. {Wolfe V. Burke, 56 N. T. 115). (B). Judgments. An injunction will issue to restrain proceedings upon a verdict, or the collection of a judgment, where it is made to appear, by facts of which the party could not avail himself as a defense, that the enforcement thereof woidd 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 ao- iion in which it occurred. (iV. Y. & Harlem S. R. Co. v. Saws, 56 N. Y. 175). "Where a defendant obtained a judg- ment, by falsely stating the causes of action, and thus inducing ihe plaintiff not to appear, he was restrained from enforcing ihe judgment. (^iwcfcZe?/ v. -MtZes, 15 Hun, 170). Where- «ver itjis attempted to use fraudulently or inequitably, a judg- ment obtained in good faith [Hawley v. Mancius, 7 John. Ch. 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 [Malhry v. Norton, 21 Barb. 424) ; or where the holder of a senior judgment, which has been paid, fraud- ulently keeps it alive, and is threatening to sell the debtor's real estate to coUect it, to the prejudice of a junior judgment creditor {Shaw v. Dwight, 16 Barb. 536) ; the collection of the judgment will be restrained by injunction. Where, after the recovery of a judgment, the parties have raade a new contract, which will supersede the judgment, the plaintiff wUl be restrained from carrying the j adgment 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 against the admin- istrator, when it appears that the claim is unfounded, in whole or in part, and that the administrator was guilty of fraud or collusion, in permitting it to be recovered. {Mayer v. 462 PRACTICE. Gilligan, 2 N. Y. St. Eep. 702). Where land was sold on. foreclosure, subject to a judgment, and primarily liable for its payment, and the purchaser had 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. (Bossow V. Bank of Commerce, 22 Wkly. Dig. 448). An injunction will not lie to restrain the collection of a judg- ment, 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. {Fullanv. Hooper, 66 How. Pr. 75; 19 Wkly. 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. Lowry^ 1 John. Oh. 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. ( Woodworth V. VanBuskerk, 1 John. Oh. 432). Where a judgment had been satisfied, an inj auction was refused to stay the sale under an execution issued upon it [Lansing v. Eddy, 1 John. Ch. 49) ; so, where the sheriff, upon a judgment against the prop- erty of an assignor, levies an execution on goods in the hands- of the assignee. [Dawson v. American Surety Co., 22 Wkly. 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 execution of the sentence of an ecclesiastical court, where there was- jurisdiction to make it. ( Walker v. Wainwright, 16 Barb. 486). The holder of a subsequent mortgage is not entitled to a stay of the judgment of foreclosure of a prior mort- gage. [Bloomingdale v. Barnard, 1 Hun, 459). Where it is sought to restrain the collection of a judgment or pro- ceedings upon a verdict, the party is not bound to seek his- relief by motion in the original action ; but he may insti- tute an action for the purpose. (JV. Y. & Harlem B. R, Co. V. Haws, 56 N. Y. 175). INJUNCTIONS. 465 (C). Summary 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 proceed- ing, except in a case where an injunction would be granted to stay the proceedings in an action of ejectment, brought by the petitioner, and upon the lite terms; or, after the final order, except in a case where an injunction would be granted to stay the execution of the final judgment, in such an action, and upon the like terms. (Code Civ. Proc. § 2265). These proceedings are only stayed where it appears that the magistrate has no jurisdiction ; or the proceeding is fraudulent or collusive ; or when the plaintiff is making an oppressive use of the judgment ; or when the plaintiff's title to the premises has terminated ; or where the defendant 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 ; McRohert v. Harrison^ 20 "Wkly. Dig. 228 ; Chadwick v. Spargur, 1 Civ. Proc. E. 422; Crawford v. Kastner, 26 Hun, 440). It will not be granted where there is a legal defense to the proceedings {Bapp V. Williams, 4 T. & 0. 174) ; or where there is a remedy by appeal. [Jessurun v. Mackie, 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 successful termination of either can be pleaded in bar of the other. [Grissler v. Stuyvesant, 67 Barb. 77). Sub-division 9. — Nuisances. A public nuisance will be restrained at the suit of the attorney-general, if it injuriously affects or injures the public interests {AUy. Gen. v. Cohoes Co., 6 Paige, 133) ; or an individual may maintain an action to restrain it, if he sus- tains 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. S) 464 PRACTICE. 611; Forty-second St. B. B. Co. v. Thirty-fourth St B. B. Co., 52 Super. 252). If the thing complained of is in itself a nuisance, and the plaintiff's right is not doubtful, ah in- junction will issue to restrain imminent danger to property, or irreparable injury. {Mayor of Bochester v. Curtiss, Clarke Ch. 336; Phoenix y. Comm'rs of Emigration, 1 Abb. Pr. 466; 12 How. Pr. 1; Health Dept of N. Y. v. Fur- don, 99 N. Y. 237). To warrant a preliminary injunction to restrain a nuisance, the injury caused by it must be sub- stantial (Ninth Ave. B. B. Co. v. N. Y. Elevated B. B. Co., 3 Abb. N. 0. 347; 7 Daly, 174; Forty-second St. B. B. Co. V. Thirty-fourth St. B. B. Co., 52 Super. 252), and not trivial or merely nominal or temporary. [1 High on In- junctions, § 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 imperi- ous necessity, or the right infringed has been previously established at law, or long enjoyed without interruption, [High on Injunctions, § 742; Health Dept. of N. Y. v. Purdon, 99 N. Y. 237, 241 ; Mohawk Bridge Co. v. Utica & Schenectady B. B. 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. Seaman, 63 N. Y. 568). But if the erection of the nuisance was encouraged by the plain- tiff, a temporary 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 injunc- tion has been allowed to one who owns land to the center of ihe street, to restrain the illegal construction of a street rail- road, on the highway in front of his premises ( Thayer v. Bochester City & B. B. B. Co., 15 Abb. N. C. 52) ; by 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. B. B. Co. v. Thirty-fourth St. B. B. Co., 52 Super. 252) ; to restrain the erection of poles by an electric light company, in front of the plaintiff's premises [Tiffany v. TJ. S. Illum,inating Co., INJUNCTIONS. 465 67 How. Pr. 73) ; to restrain the use of a building for a slaughter-liouse {Brady v. Weeks, 3 Barb. 157), or for a melting house. {Peck v. Elder, 8 Sand. 126). 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 v. 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 Eobt. 449 ; aff'd 51 N. T. 300). A preliminary injunction was refused, to prevent the use of defendant's premises for a blacksmith shop {Doellner v. Tynan, 88 How. Pr. 176) ; or for a coal yard. {Russell y. Popham, Zl^.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). By statute, the board of 'health of cities, towns and villages, may maintain actions to restrain by injunction, violations of their orders and regulations. {2 Rev. Stat. 7th Ed. 1083). The board of health of New York may also have a preliminary injunction to restrain nuisances ; but this will be granted only when it is needed to prevent an illegal trade or business, or serious injury to human life, or serious detriment to health, or great public inconvenience. (Laws of 1882, Chap. 410, § 646; Health DepH v. Purdon, S9 N. T. 237). Sub-division 10. — Office and Official Acts. A preliminary injunction is rarely granted in an action of quo warranto {People v. Draper, 24 Barb. 265), either to restrain the defendant from exercising the office {People v. Earley, 1 How. Pr. N. S. 71), or to restrain a claimant from taking possession of it, under cover of title. (^Mayor etc., v. Conover, 5 AbTs. Pr. 171; Morris y. Whelan, 11 Abb. N. 0. 64; Coulter Y. Murray, 4 Daly, 506). The question of title to the office must be determined in the plaintiff's favor, before he can have an injunction, to restrain the de- fendant from exercising its duties. {People v. Sampson, 25 30 466 PRACTICE. Barb, 254). Where the defendant, under and by appoint- ment by the city controller, to be a deputy chamberlain, undertook by threats and violence, to oust the deputy in possession and doing the the duties under a proper appoint- ment, an injunction will issue to prevent it. (Palmer v. Foley, 36 Super. 14). An injunction will not lie in an action by the people, for the removal from an office of a corporation, of a person who has unlawfully entered into it, and is acting de facto [People v. ConJclin, 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 action has been brought to eject a clergyman 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 exercising its duties. (FoMwgrs v. J?ansom, 81 Barb. 49) Where one, under an imlawful claim of title, threatens to seize books of a municipal corporation, the value of which cannot be esti- mated 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 re- strain it. [Mayor etc., v. Conover, 5 Abb. Pr. 171). The officers of a municipal corporation in peaceable possession, will be protected by injunction from an unauthorized usurp- ation. ( Tyack v. Bromley, 4 Edw. Ch. 258 ; 1 Barb. Oh. 519). Where officers have discretion to act, they will not be re- strained [LeRoy v. Mayor, etc., 4 John. Ch. 352) ; except where their proceedings are shown to be illegal, or corrupt, or in bad faith, or it appears that the proposed act will be a mere arbitrary exercise of power. [Philips v. Wickham, 1 Paige, 590; Oswego Falls Br. Co. v. Fish, 1 Barb. Ch. 547 ; Hartwell v, Armstrong, 19 Barb. 166 ; Tribune Ass'n V. Sun Print. Ass'n, 7 Hun, 175). The legislature cannot in any case be restrained by injunction, directly or indirect- ly. {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 INJUNCTIONS. 467 entirely independent of the judiciary. Whether or not he can be restrained by injunction in the exercise of minis- terial 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. [Hawkins v. Governor, 33 Am. Dec. 346, note; People v. Bissell, 19 Illinois, 220; High on Ex- tra. Leg. Bern. § 120). All the cases on the subject will be found collected in the note to the case first cited. As to all other administrative offices, there is no doubt of the juris- diction 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. T. 390; Western R. R. Co. V. Nolan, 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. [Peoples. Canal Board, supra). An injunction may issue against the officers of a municipal corporation, in a taxpayers' action, brought under section nineteen hundred and twenty-five of the Code of Civil Pro- cedure. [Ayres v. Lawrence, 59 N. Y. 192). ItwiUbe granted against the common council of a city, to prevent an illegal act, or the abuse or illegal exercise of a discretion, to the injury of the public, or of private rights. [Negus v. City of Brooklyn, 10 Abb. N. C. 180. ) Highway commis- sioners will be restrained by injunction, from opening a high- way through lands acquired by a railroad company for rail- road purposes. [Prospect Park R. R. Co. v. Williamson, 91 N. Y. 552; S. C. 18 Wkly Dig. 257). 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 [Dinsmore V. The Board of Police, 12 Abb. N. C. 436) ; and to restrain them from interference with the business and property of a manufacturer, engaged in the manufacture of iron, working on Sunday, where such interference would destroy his busi- ness and property. [Manhattan Iron Works v. French, 12 Abb. N. 0. 446). In the case last cited, it was held that, although the courts had no power to restrain an illegal arrest 468 PRACTICE. solely because of its illegality, yet where an arrest was illegal, aud 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 private 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 warrant, to persons not members of the club. {Cercle Francais de Uharmonie v. French, 35 A. L. J. 347). Injunctions have also been issued to the quaran- tine commissioners, restraining them from acquiring land not necessary for their purposes ( Town of Gravesend v. Cur- tiss, 34 How. Pr. 261) ; and to commissioners of excise, re- straining them from revoking a license, when the law gave them no power to do so. {^Kostar v. The Board of Excise, Daily Reg. March 19th, 1886). But an injunction wUl 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 supervision over citizens, where the remedy for the unlawful acft 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 B. B. Co. v. Brownell, 24 N. T. 345) ; nor to restrain him from removing a fence, certified to be an en- croachment on the highway [Hyatt v. Bates 40 N. T. 164) ; nor to restrain a board of education from procuring fuel for a school house, at the suit of one who claims to have a con- tract to furnish it ; for in such a case, he has an adequate remedy at law. [French v. Board of Education, 18 Wkly. Dig. 149). The commissioners of pilots cannot be res- trained by injunction, from removing an obstacle to navi- gation. [Moore v. Board of Pilots„32 How. Pr. 184). An injunction was refused to restrain the board of health from suppressing a nuisance. [Sickles v. New Bochelle Board of Health, 41 Hun, 408). The court has no power to res- train assessors from exercising the duties of their office. INJUNCTIONS. 469 [Western E. B. Co. v. Nolan, 48 N. T. 513). Where the officer is sued in his individual name, an injunction restrain- ing him from acting, will not bind his successor in office. {Magee v. Cutler, 43 Barb. 239). Sub-division 11. — Peesonal Seevices. Usually, an injunction will not lie to enforce a contract to render personal services, or to restrain its violation; 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. Bene- detti, 1 Barb. 315 ; Mapleson v. Del Puente, 13 Abb. N. C. 144). But in Daly v. Smith (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 sustained by the plaintiff ; and in that case, where a theatrical 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 damages, and that, although the actress was pecuniarily responsible, and the violation was enjoined. Sub-division 12. — Publications. The publication of a libel cannot be restrained. [Bran- dreth v. Lance, 8 Paige, 24; N. T. Juv. Guard Soc. v. Roosevelt, 1 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. Vick, 65 N. Y. 569; Green v. U. S. Dealers Pro. Ass'n, 39 Hun, 300). In the cases of Wetmore v. Scovell (3 Edw. Ch. 515), and Hoyt 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 appeared that the letters possessed a certain value as literary possessions, and not where they were merely friendly letters on private or 470 PRACTICE. 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, pos- sesses 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 addressed, or by an- other. 2. That the receiver of the letters may, however, justify their publication, when it is showa 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 pre- vent the publication, by an injunction, as a breach of that exclusive property which the writer retains. 4. That as against a stranger, who has possessed himseK of the letters, or of copies thereof, unlawfully, the right to restrain the publication by an injunction is absolute; such persons not being justified in publishing the letters for any purpose whatever. ( Woolsey v. Judd, 4 Duer, 379). The same rules were substantially laid down by Judge Story. [Folsom v. Marsh, 2 Story, 100). The associated press has the right to news collected by it, until it is aban- doned 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 con- tract not to publish them, will be restrained from doing so. {Gold & Stock Tel. Co. v. Todd, 17 Hun, 548). An injunc- tion cannot be granted to restrain the publication of legal proceedings. [Wood v. Marvine, 3 Duer, 674). The pub- lication of a newspaper can only be restrained upon analogy to the law of trade marks. {Dayton v. Wilkes, 17 How. Pr. 510; Railway Age Pub. Co. v. Garnett, 17 Wkly. Dig. 250). (For further decisions on this subject, see title Copyright above). injunctions. 471 Sub-division 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 restrain their infringement. ( Continental Store Sen. Co. v. Clarke, 100 K T. 365). Sub-division 14. — Taxes and Assessments. An injunction will not lie to restrain an assessment of a tax ( Western E. B. Co. v. Nolan, 48 N. T. 513) ; nor to restrain its collection, except under circumstances of great necessity, to prevent irreparable damage. [Rome, Water- town & Og'dh. R. B. Co. v. Smith, 39 Hun, 882). Where the owner of land shows that the enforcement of a tax will work irreparable injury to him, and he has no remedy by certiorari, and the tax is illegal, he may restrain its collec- tion. [Hanlon v. SupvWs of Westchester, 8 Abb. N. S. 261; 57 Barb. 283). So, where a tax is void because the property is exempt from taxation. (iV. Y. Infant Asylum V. Sup's of Westchester, 31 Hun, 116). An allegation that the taxation is illegal, and that unless restrained, the village authorities intend to collect it, and to assess and collect other taxes of a similar nature, will not warrant an injunction. [Pumpellj V. Village of Owego, 45 How. Pr. 219). In assessment cases the following rules have been established: 1. That the equitable power of the court can not be en- voked 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, because his property has been illegally assessed, and such assess- ment 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 proceedings, and would not appear by the evidence necessary to be given to enforce the assessment. [Nichols r. Voorhis, 18 Hun, 33). But even where such things appear, the collection of a mere personal assessment will not be restrained. ( Clark v. Village of Dunkirk, 12 Hun, 181). The collection of an assessment 472 PEACTICE. for the improvement of a street, whicli is illegal because part of the property directed to be assessed 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 proceed- ings themselves, and cannot be corrected in collateral actions in equity. {Mayer v. Mayor, etc., 101 N. Y. 284). Ex- cept under the taxpayer's act, a taxpayer cannot restrain the application of the proceeds of taxes. {Kilhourne 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). SuB-DrvisioN 15. — Trade Maeks. 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 plaintiff has a valuable interest in the good will of the business, and that, having appropriated to himself a particular syllable or sign or trade mark, indicating that the article is manufac- tured or sold by him, or by his authority, or that he carries on his business at a particular place, he is entitled to pro- tection against any one who attempts to pirate on the good- will of his business, by sailing under his flag without hia authority or consent. [Partridge v. Menck, 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 in- junction, until the case is heard. ( Wolfe v. Goulard, 18 How. Pr. 64 ; Hoioe v. Howe Mach. Co. 50 Barb. 236). It is. not necessary, however, that the plaintiff should first estab- lish at law his right to a trade mark. {Hier v. Abrahams, 82 N. Y. 519). Whenever the defendant admits that he in- tentionally simulated the plaintiff's name and trade mark, a preliminary injunction should be granted, as of course. {Taylor -v. Carpenter, 11 Paige, 292; afiirmed, 2 Sand. Ch. 603). To entitle the plaintiff to an injunction, the resemb- INJUNCTIONS. 473 lance of a simulated to the genuine trade mark, should amount to a false representation as to the manufacture or ownership of the article. [Popham r. Cole, 66 N. Y. 69). The resemblance need not be perfect ; any imitation is color- able, if it is such as to justify the conclusion that purchas- ers will be deceived, and imposed upon by it. ( Tallcott v. Moore, 6 Hun, 106). But such resemblance must come from an imitation or adoption of that which the plaintifE had a right to appropriate. {Amoskeag Mfg. Co. v. Spear, supra; N. Y. Cab Co. y. Mooney, 15 Abb. N. C. 152). An actual intent to defraud need not be shown to entitle the plaintiff to an injunction. {^Hier v. Abrahams, 82 N. T. 519). An injunction will not be granted, where a plaintiff's trade mark is intended or calculated to deceive the public; as where the name of a compound was deceptive as to its ingredients, or the advertisement was deceptive as to its qualities, or where the trade mark contains a false state- ment. {Fetridge v. Wells, 4 Abb. Pr. 144; iV. 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 appellations employed by the plaintiff, sim- ply 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). 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 re- sort to any artifice to mislead. [Meneely v. Meneely, 62 N. Y. 427). On the dissolution of a partnership, either mem- ber 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 Wych v. Horowitz, 89 Hun, 237). A single sale of an article with a simulated trade mark, is sufficient to warrant an injunction. (Low v. Hart, 90 N. Y. 457). An injunction should not wholly forbid the use of the symbol, but only of the use of 474 PEACTICE. the imitation, colorable or otherwise, of the plaintiff's trade mark. [India Rubber Co. r. Rubber Comb &c. Co., 45 Super. 258, 272). An injunction will not be granted, at the suit of one charged with the infringement of a trade mark, to restrain the commencement of an action against him, and against buyers from him. ( Wolfe v. Burke, 56 N. Y. 115). SUB-DIYISION 16. TkESPASSES. An injunction is granted to restrain a trespass, only where the damage would be irreparable, or the value of an inherit- ance is put in jeopardy by it, or the aid of equity is neces- sary to quiet the possession, or prevent a multiplicity of suits. {Livingston v. Livingston, 6 John Ch. 497; Sixth Ave. Ry. Co. v. Kerr, 28 How. Pr. 382; Meyer v. Phillips, 97 N. Y. 485 ; Mulry v. Norton, 100 N. Y. 424). For these reasons, trespass upon mines, quarries, or timber is pre- vented by injunction. ( West Point Iron Co. v. Reymert, 45 N. Y. 703; Norton Y. Snyder, 2 Hun, 82). An injunction will be granted to restrain threatened acts that, if repeated, might become the foundation of an adverse possession [Johnson v. City of Rochester, 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 land marks. [Fox V. Fitzsimmons, 29 Hun, 574). It will be granted to restrain a forcible intrusion upon premises occupied by a public bureau [Health Depi. 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. Hickey, 8 Abb. N. C. 159) ; to restrain continued trespasses of a personal nature, which affect a corporate franchise [Stage Horse Cases, 15 Abb. Pr. N. S. 51) ; or where the defendant in an action to determine conflicting claims to real property, is interfering with the plaintiff's possession. [Stamm v. Bosiwick, 30 Hun, 70). To warrant the granting of an in- junction 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 Ac- Co. V. Lake Guano Co., 82 N. Y. 476; West Point Iron Co. V. Reymert, 45 N. Y. 703). The legal right may be estab- INJUNCTIONS. 475 lished, and the injunction obtained in the same action. {Broiestedt v. South Side B. B. of L. I. 55 N. T. 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); nor to aid the owner of land, who is out of possession ( Troy & Bos. B. B. Co. V. B. H. T. & W. B. B. Co., 13 Hun, 60) ; nor to aid a trespasser, to prevent the owner from retaining possession. {Littlejohn v. Attrill, 94 N. Y. 619). Sub-division 17. — Touts. An injunction will not lie to prevent a threatened illegal arrest [Davis v. American Soc. etc., 75 N. Y. 362; Kramer V. Police Dept. 53 Super. 492); although the person threat- ening the arrest is insolvent. {Burch v. Cavanaugh, 12 Abb. Pr. N. S. 410). It will not lie to prevent strikers en- ticing away workmen, unless it appears that violence, force, and intimidation, or coercion is intended against them. [Johnston' s Harvester Co. \. Meinhardt, 9 Abb. N. 0. 893). 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 conver- sion of property will not be restrained by injunction. [Thompson v. Hodgkin, 13 Wkly. Dig. 367). Nor will one be enjoined from keeping a bawdy house. [Anderson v. Doty, 33 Hun, 160). Nor will an injunction be issued to prevent a violation of a penal ordinance ( Village of Brock- port V. Johnston, 13 Abb. N. C. 468) ; nor to restrain its enforcement. [Hodges v. Perine, 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 regis- tered letter to another one, and the letters were in the post office, the defendant was enjoined from receiving them. (Zellenkoffy. Collins, 23 Hun, 156). Sub-division 18. — Waste. During the pendency of any action in relation to real property, specified in title I of chapter XIV, of the Code of Civil Procedure, if the defendant commits waste upon, or 476 PBACTICE. does any other damage to the property in controversy, an in- junction may be granted, restraining him from the commis- sion of any further waste upon, or damage to the property. (Code Giv. Proc. § 1681). 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 irreparable, or on account of defendant's irres- ponsibility, or otherwise, no relief at law can be granted. [Spear v. Cutter, 5 Barb. 486). The court will prevent th& removal of timber already cut. (id; Weaiherby v. Wood, 29 How. Pr. 404). An injunction will issue to restrain an alteration,' by a lessee, of a dwelling house into a ware house. [Douglass v. Wiggins, 1 John Ch. 435). The possessor of land, whose interest has been sold on execution, will be re- strained from committing waste upon it. ( Talbot v. Cham- berlin, 3 Paige, 219). A mortgagor, or his grantee will be restrained from waste which impairs the security. ( Brady v. Waldron, 2 John Ch. 148; Robinson v. Preswick, 3 Edw. Ch. 246; Selden v. Mann, 2 N. Y. Leg. Obs. 328). An in- junction for that purpose will be granted, at a suit of the purchaser, 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 suffi- cient to warrant an inference that they intend 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 John Ch. 11). In summary proceedings, where the defendant is in possession under a judgment, from which a certiorari is pending, the defendant being insolvent, and the waste being serious, an injunction will be granted to restrain it. [Spear V. Cutter, 5 Barb. 486). If the acts of waste are admitted, and an intention to repeat them is alleged, an injunction will not be refused, because the injury has thus far been in- considerable. [Livingston v. Reynolds, 26 Wend. 115). In a case where the defendant had as yet only threatened to commit waste, and was responsible, an injunction was refused. {Griffin V. Wi7ine, 10 Hun, 571). INJUNCTIONS. 477 SuB-DiYisioN 19. — Water Eights. A preliminary injunction will be granted to restrain a diversion of the waters of a stream, to the injury of the plain- tiff {Garwood v. The N. Y. C. & Hud. R. E. B. Co. 83 N. Y. 400) ; or to restrain interference with its natural flow {Corning v. Troy Iron & Nail Factory, 40 N. T. 191); or its obstruction, so as to cause it to overflow the plaintiff's lands {Vernumy. 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 Roches- ter, 23 Wkly. Dig. 424). A preliminary injunction will not be granted in such cases, however, unless the plaintiff shows a right to a perpetual injunction. {Corning v. Troy Iron & Nail Fac, 6 How. Pr. 89). The plaintiff need not first establish his title at law. {Corning v. Troy Iron & Nail Fac. 40 N. Y. 191). The grounds for equitable inter- position 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 accruing from the daily and continuous wrongful diversion of the stream. {Corning v. Troy Iron & Nail Fac. supra). The courts will not, by injunction, restrain interference with per- colation, or with under-ground currents, by which the plain- tiff's spring is supplied. ( Trustees of Delhi v. Youmans, 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. Ayers, 37 Hun, 356). 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 N. Y. 59). 478 PRACTICE. AKTICLE III. PEOCEEDINGS TO OBTAIN THE OBDEB. SECTION. 1 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. Wlien Application may be Made. The order may be granted, to accompany the summons, or at any time after the commencement of the action, and be- fore final judgment. (Code Civ. Proc. § 608). 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. [Leffingwell v. Chave, 5 Bosw. 703). Delay in making the application is prejudicial to it. [Thursby v. Mills, 11 How. Pr. 116). The application must be made before judgment; 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). Sec. 2. By "Whom Grranted. Sub-division 1. — The General Eule. 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 judge, it may be enforced as the order of the court. (Code Civ. Proc. § 606). The application for an injunction is a non-enumer- ated motion, and if made to the court, it should be made at special term. (General Eule 38). Amotion for an injunc- tion may be made at a general term, which has power to grant, revive, and continue a temporary injunction. {Drake V. Hud. Biv. B. B. Co. 2 Code E. 67; Disbro v. Disbro, 37 How: P. 147). In some cases, the statue provides that the application must be made to the general term ; but usually, that court will not hear an original application for an in- junction. In actions for the judicial supervision of a cor- poration, and of the officers and members thereof, brought INJUNCTIONS. 479' pursuant to section seventeen hundred and eiglity-one of the Code of Civil Procedure; and actions by a judgment creditor for sequestration, brought under section seventeen 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. (Code Civ. Proc. § § 1787, 1806). An in- junction order, suspending the general and ordinary business of a corporation, or of a joint stock association, consisting of seven or more persons, or suspending from oflB.ce, or restrain- ing from the performance of his duties, a director, trustee, or other ofl&cer thereof, can only be granted by the court. (Code Civ. Proc. § 1809). An injunction against the board of health of New York, can only be granted by the supreme^ court, at a special or general term thereof. (Laws of 1882, Chap. 410, § 619). An injunction against a banking com- pany, under the banking laws of the state of New York, can only be granted by a justice of the supreme court. (Laws of 1882, Chap. 409, § § 131, 132). The power of a judge to grant an injunction, is derived only from section six hun- dred and six of the Code of Civil Procedure. Sections two hundred and seventy-seven, and seven hundred and seventy- two do not apply. (People v. Edson, 52 Super. 58). 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 injunc- tion in the superior court, but the case is apparently adverse to the case of the People ex rel Ireland v. Donohue (15 Hun, 446), and Matter of Morgan (56 K 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. [Babcock y. Clarke, 23 Hun, 391). The special county judge has the same power in this regard, as is conferred upon a county judge, (id). An injunction order, made by a judge, is a mandate of the court, and has the same force and effect as if made by the court. (Pea- 480 PRACTICE. pie ex rel Negus v. Dwyer, 90 N. T. 402). A judge, dis- qualified by affinity to act, cannot make the order. (iV. Y. & New Haven B. R. Co. v. Schuyler, 28 How. Pr, 187). Sub-division 2. — Against State Officebs. 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 employed by him or them from the performance of that duty, or to prevent the execution of the statute, shall not be granted, except by the supreme court, at a general 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. (Code €iv. 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 defendant 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 applica- iion. (Code Civ. Proc. § 609). In the following cases, an injunction can only be granted upon notice: against a state officer, or a board of state officials (Code Civ. Proc. § 605) ; to suspend the general and ordinary business of a corpora- tion (Code Civ. Proc. § 1809) ; against the board of health of New York. (Laws 1882, Chap. 410, § 619). Notice of the application for an injunction, is required in all cases after answer; before answer, it is discretionary with the court, ex- cept 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. Hager, 8 How. Pr. 68 ) . An injunction should not be granted ex parte, unless a pressing necessity appears. [Androveiie v. Boimie, 15 How. Pr, 75; Redfield v. Middletown, 7 Bosw. 649). On an ap- INJUNCTIONS. 481 plication to restrain an official act, an ex parte injunction should not usually issue ; but an order to show cause should be made. ( Westheimer v. SchuUz, 33 How. Pr. 11, note). An order to show cause may be made returnable 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 irregularity, in giving the proper no- tice 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 con- tinuance is not necessary, for the court will not dissolve it, except on the defendant's motion. But it is otherwise, upon a return of an order to show cause, why an injunction should not be granted, and a restraining order, in the meantime. {Kelly V. Jeroloman, 7 Eobt. 158). Sec. 4. Papers on "Which Gtranted. The order may be granted, where it appears to the court, or judge, by the affidavit of the plaintifip, or any other person, that sufficient grounds exist therefor. (Co. Civ. Proc. § 607). 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. {Kerr v. Dildine, 6 N. T. S. Kep. 163; Roosevelt w. JEdson, 51 Super. 227). In the case of ilfa/fe'ce v. Gifford (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 complaint; but that suggestion was overruled by Judge Brady, in the case of the Central Cross Town B. B. Co. v. The Bleecker Street and Fulton, Ferry B. B. Co. (49 How. Pr. 233), in which Judge Brady characterized the suggestions in Mattice v. Gifford, as forced and unnatural, and the later case of Kerr V. Dildine, above cited, seems to settle 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. 31 482 PEACTICE. Where the application is made in such an action, the affida- vits 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 injunc- tion. [Stull V. Wesifall, 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 0. P. E. 183). A veri- fied pleading is considered as an affidavit, and this was tha rule before the Code of Civil Procedure was passed [Fowler V. Burns, 1 Bosw. 637) ; and it is now made the rule, by the code itself. (Code Civ. Proc. § 3343, subd. 11) Where, however, a verified complaint is used as the affidavit, on which the application is made, if it contains allegations on information and belief, an ordinary verification is not suffi- cient. [Hecker Y. Mayor &c., 18 Abb. Pr. 369; Bostwick V. Elton, 25 How. 362). Where the application is made upon affidavits, allegations upon information and belief alone, are not sufficient to sustain an order of injunction. {^Perry V. Volkening, 44 Super. 332). All the facts upon which the plaintiff relies to procure the injunction, must be estab- lished by positive affidavits [Crocker v. Baker, 3 Abb. 182) ; or if the allegations 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 facts which are alleged only upon information and belief, are denied by the defendant. [PidgeoriY. Oatman, 3 Eobt. 706; Living- ston y. Bank of New York, 5 Abb. Pr. 338). It is pro- vided 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 sec- tion has become a law, the rule that, where the equities of the complaint are positively denied by the answer, the in- INJUNCTIONS. 483 junction must be vacated, is abolished, and denials in the answer have no further effect than denials made in an affi- davit. [McEncroe y. Decker, 58 How. Pr. 250; Barton r. Salsich, Monroe Spl. Term, 1881). See. 5. "Wlien an Injunotiou may be Granted to Defendant. Where the defendant interposes a counterclaim, 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 counterclaim, and demanding the same judgment. And for the purpose 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 counterclaim, so set forth in the answer, is deemed the com- plaint. (Code Civ. Proc. § 720). Sec. 6. Filing Papers. The affidavits upon which the injunction is granted, must be filed forthwith, in the office 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 which 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 in- advertence, fails to file the affidavits upon which the injunc- tion is granted, the court may relieve him with or without terms. [Leffingwell v. Chave, 5 Bos. 703). ARTICLE IV. THE OKDEE. BBCTION. 1. Contents of the order. 3. Service. 3. Effect of the order. 4. Violation of the order. 5. Punishment of violation. See. 1. Contents of the Order. The injunction order must briefly recite the grounds for the injunction. (Co. Civ. Proc. § 610). An omission to 484 PRACTICE. state the grounds of the order, as required by this section of the code, is not a jurisdictional defect, but is only an irre- gularity, for which the injunction may be set aside, but if no substantial right of the defendant has been violated, it will be disregarded. {A. & P. Tel. Co. v. B. & O. E. R. Co. 46 Super. 377). 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, with- out 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 prohibited must be the doing of some tangible or distinct thing, or series of things, to be clearly pointed out and described. [Lyons v. Botchford, 25 Hun, 57; Laurie v. Laurie, 9 Paige, 234). The injunction should never go beyond the allegations of the complaint, or the prayer for relief, so as to give to 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 &c. v. N. Y. & S. I. Ferry Co.', 64 N. T. 622). The order should restrain only the parties to the action [Fellows v. Fellows, 4 John Ch. 25), and their servants and agents. [Farrington v. Birdsall, 5 Weekly 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 Brodie v. Cronley (3 Edw. Ch. 355), that the injunction should never be ante-dated, and if it was so, it would be set aside on motion, but imder the present practice, the ante-dating of the injunction would be a mere technical irregularity, if it is an irregularity at all, INJUNCTIONS. 485 and the injunction would probably not be set aside for it, unless it was made to appear that some right of the defen- dant was affected. 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 origi- nal order, and delivering a copy thereof. Service of the order upon a corporation, may be made as prescribed 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 with 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. {^Leffingwell v. Chave, 5 Bosw. 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 in- junction order itself. [Penfieldy. White, 8 How. Pr. 87). The undertaking must be served with the papers. [McFar- land V. Delaney, 3 Law Bull. 93). If the copy of the un- dertaking which is served, does not show that it was approved, although the original may have been properly approved, costs will be imposed as a condition 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 &c., 1 Duer, 451; affirmed, sub nom, People V. Sturtevant, 9 N. Y. 263). The only remedy of the de- fendant 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 jurisdiction to grant it. {Erie By. Co. v. Bamsey, 45 N. T. 637). If, however, the injunction was void, because granted without jurisdiction, it is otherwise. {People ex rel Boosevelt v. Edson, 52 Super. 53). The parties to the action are bound 486 PEACTICE. by the injunction {Neale v. Osborne, 15 How. Pr. 81) ; and so are their agents or servants, although not named in it. [Farringion v. Birdsall, 5 Weekly 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 \. Finn, 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 in- junction, are bound by it, although they are not served. {Peo- ple ex rel. Davis v. Sturtevant, 9 N. Y. 263; Rorke v. Russell, 2 Lans. 2^2; A. & P. Tel Co. v. B. & O. R. R. Co. 46 Super. 377). As to third parties, who are not agents of the per- sons restrained, the injunction only operates as a notice to such persons, and they are not liable for its violation. {Edmonston v. McLoud, 19 Barb. 356). 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; Ewing 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). He is also bound to obey the in- junction, although it is not served at all, if he has actual notice that the order has been granted, and sufficient infor- mation of its contents to enable him to obey it. {Abell v. N. Y. L. E. & W. R. R. Co., 18 Weekly Dig. 554; HuUy. 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. Jeroloman, 7 Eobt. 158; Siuhhs 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 aid- ing, countenancing and abetting others in violation thereof, INJUNCTIONS. 487 as well as doing it directly, and the courts will not look with indulgence upon schemes, however skillfully devised, de- signed to thwart its orders. [Mayor &c. v. N. Y. & S. 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. [Eorke v. Russell, 2 Lan. 242). If the party restrained, permit the act which is en- joined, to be done, by one over whom he has control, or if he assists or directs his servants or partners in doing such an act [Neale v. Osborne, 15 How. Pr. 81), or encourages it, he is guily of a violation of the order. ( Wheeler v. Gilsey, 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 Village of Athens, 19 Hun. 165). Seo. 5. Punishment for Violation. Violation of the injunction order is to be punished by proceeding "for contempt, to which reference is made. In these proceedings, the court is required to impose upon the 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 dam- ages he has sustained will be included in the fine ; he is not restricted to that mode of procedure. He may bring an ac- tion 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 as ubstitute for an action, but is a concur- rentremedy. [Porous Plaster Co. v. Seabury, 43 Hun, 611). A corporation may be fined for the violation of the injunction. [Mayor &c. 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 punishment. [A. & P. Tel. Co. v. B. & O. R. R. Co. 46 Super. 377). If the violation was done under advice of counsel, it will not protect the party from punishment for the 488 PRACTICE. contempt. {Stubbs v. Ripley, 39 Hun, 626, 630; People v. Comptcm, 1 Duer, 512). The fact that the act was done under advice of counsel, will, however, be considered in fix- ing the punishment, and in certain cases, where it is so done, the party thus acting will be allowed to remedy the evil by complying with the orAer, where that is possible ( Grimm \. Grimm, 1 E. 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 other- wise puijish him for the contempt (^Lansing v. Easton, 7 Paige, 364; Power v. The Village of Athens, 19 Hun, 165) ; 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. Compton, 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. Compton, 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 consid- ered in proceedings to punish for a violation of it. {Lyon V. Boichford, 25 Hun, 57). INJUNCTIONS. 48& AETICLE V. SECURITY. SRCTION. 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 joined therein, unless the 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 be recovered by him in the action stayed by the injunction, not exceeding a sum speci- fied in the undertaking ; and, also, all damage 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 proceed- ings in an action specified in the la»t section, after verdict, report, or decision, and before final judgment thereupon, un- less a sum of money sufficient to cover the sum awarded by the verdict, report, or decision, 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 proceed- ings upon a judgment for a sum of money, unless the fol- lowing requisities are complied with, by the party applying therefor: 1. The full amount of the judgment, including interest and costs, must be paid by him, into the court in which his action is commenced; or an undertaking, in lieu thereof, must be give'n, as prescribed in this article. 2. He must also give an undertaking, with sufficient sure- ties, to pay to the party enjoined, all damages and costs, which may be awarded to him by the court, in the action in 490 PBACTICE. 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 proceed- ings in an action of ejectment, or for dower, after verdict, report, or decision, unless the party, applying therefor, gives an undertaking, with sufficient sureties, to pay to the party enjoined, or his representatives, all damages and costs, not exceeding a sum specified in the undertaking, which may be awarded to him in the action wherein the injunction was granted. (Co. 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 {Carpetvter v. Keating, 10 Abb. Pr. N. S. 223), and on motion to vacate it. [Eastman v. Starr, 22 Hun, 465). Where the plaintiff, upon procuring his stay of proceedings, has failed to give an undertaking, he may be permitted to do so upon terms, after the order has been made. ( Cook v. Dick- erson, 2 Sandf. 691; N. Y, Ait. Pulv. Co. v. Van Tuyl, 2 Hun, 373). A judgment entered upon confession is within this section. [Farringtan\. Freeman, 2'Eidw. Ch. 512). Any order, which operates to stay the plaintiff from proceeding against his judgment debtor, is within its provisions ( Christie V. Bogardus, 1 Barb. Ch. 167) ; but an injunction which restrains the sale of the plaintiff's property, on a judgment and execution against third person, does not require security under this section. [Hegeman v. Wilson, 8 Paige, 29). It is not necessary for a judgment creditor of an insolvent corporation, who brings suits to restrain other creditors from proceeding 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. iV. Y. C. Mills, 2 Abb. Pr. 394). The act of the sheriff, in paying over money collected upon execution, is a proceed- ing at law under this section. [Boker v. Curtis, 2 Edw. Ch. 111). 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 INJUNCTIONS. 491 lands, untU the equities of the parties can be determined, he must give an undertaking, or pay the amount of the judg- ment into court, as required by this section. [Bossow v. The Bank of Commerce, 22 "Week. 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 positively, so the court can see how much is due on the judgment, to enable it to fix the amount of the bond or de- posit. [Christie v. Bogardus, 1 Barb. Ch. 167). An un- dertaking, 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 hundred and thirteen. [Qilman v. Prentice, 11 Civ. Proc. Bep. 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 with the payment, and may require the party to give, in lieu thereof, an undertaking, with two or more sureties, to pay the sum specified, with interest, as directed by the court. If an un- dertaking is required, in additiou to the deposit, both under- takings 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 insolvent; the fact that the defendant fears he will be insolvent, is not sufficient to warrant it. (^Bodgers v. Bodgers, 1 Paige, 426). The fore- going 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, re- port, 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 section. (Co. Oiv. Proc. § 619). The fraud, referred to in this sec- tion, is not merely a failure to perform the terms, or the con- ditions, upon which the judgment was rendered, but such fraud as a false representation, or other actual fraud. ( Cook V, Dickerson, 2 Sandf. 691). Money paid into court, as 4:92 PRACTICE. prescribed in the last two sections, may be paid over, by the direction of the court, to the party whose proceedings 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 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 can- celling the undertaking, given by the successful party ; mak- ing perpetual the injunction, staying collection of the judg- ment; 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 exceeding a sum specified in the undertak- ing, 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 execu- tion and approval of an undertaking given' under this section, see chapter VIII, article IV of this book. The undertak- ing 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 coui't to vacate the proceedings, as if the undertaking had not been given. (General Eule 4). The omission to file the undertaking is a ground for vacating the injunction [Johnson v. Casey, 28 How. Pr. 492; 3 Eobt. 710); but the court may in its discretion, allow the undertaking to be filed nunc pro, tunc, on terms, or vrithout terms ( G'Donnell \. McMurn, 3 Abb. Pr. 391) ; and it may also do this upon appeal from the order. [N. Y. Att. Pulv. Co. v. Van Tuyl, 2 Hun, 373). INJUNCTIONS. 493 If the security giyen is inadequate, it will be a ground for vacating the injunction, unless it is increased. (^Byckman v. Coleman, 21 How. Pr. 404). If the sureties become insol- vent, the court may order others to be substituted, in its dis- cretion. {Willett V. Stinger, 15 How. Pr. 310; 6 Duer, 686). The undertaking cannot be cancelled, without the knowledge and consent of the defendant. {Dry Dock, East Bdwy. & Bait. B. B. Co. v.' Cunningham, 45 How. Pr. 458). Sec 3. Seonrity in Special Cases. The foregoing provisions of this article do not effect 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 particular case is other- wise 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 injunction restraining him from the further commission upon, or damage to the property without security. (Co. Civ. Proc. § 1681). Security will riot be required, in an action brought by the people of the state, or by a domestic municipal corporation, or by a public officer, in behalf of the people, or in behalf of such corporation, ex- cept where the law, which permits an injunction to be granted in such an action, especially directs that security 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. (iV. Y. Consld. Act, § § 619, 1091). Sec. 4. Ne-nr Undertaking on Motion to Vacate. Upon the hearing of an application upon notice, to vacate or modify an injunction order, the coui-t or judge may re- quire a new undertaking, in the same, or in a different sum to be given by the plaintiff, with the like siireties, and to the like effect, as upon granting an original order. The persons executing the new undertaking, 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- 494 PRACTICE. proved, and no longer. Upon such hearing, the court or judge may, where the alleged wrong or injury is not irre- parable, and is capable of being adequately compensated 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, con- ditioned to indemnify the plaintiff against any loss sustained by reason of vacating such injunction order. (Co. Oiv. Proc. §629). If a stay of proceedings is granted, pending an ap- peal from an order dissolving the injunction, it is a new in- junction 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; Bisbro 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 will not vacate the injunction upon the giving of an undertaking, under this section. ( Thayer v. Roch. City & Bright. M. M. Co. 15 Abb. N. 0. 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 \. B. N. Y. & P. R. R. Co. 31 Hun, 339). AETICLE VI. DAMAGES SUSTAINED BY THE INJUNCTION. SECTION. 1. Liability. 3. 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 circumstances are such that the defendant can maintain an action against him for a malicious prosecution. In such case, as in all other INJUNCTIONS. 4;).> oases for malicious prosecution, the fact of want of prob- able cause, and the existence of malice, should be alleged and proved. [High on Injunctions, § 144:8). Unless these circumstances exist, the only liability of the plaintiff for the damages sustained by the injunction, arises from the giving of the undertaking. (Palmer v. Foley, 71 N. Y. 106). Sec. 2, When the Right Aoomes, The right to damages does not accrue, until a final deter- mination that the plaintiff is not entitled to the injunction. [Benedict v. Benedict, 76 N. Y. 600). Such a determina- tion is usually reached by final judgment for the defendant, after trial. {Lawton v. Q-reen, 64 N. Y. 326). Where the injunction has been vacated, and the action afterwards dis- continued by the voluntary action of the plaintiff, there is a final determination that the plaintiff is not entitled to the injunction, and the defendant is entitled to damages [Pacific Mail S. S. Co. V. Toel, 85 N. Y. 646) ; but not where the action was discontinued, by stipulation of the parties [Pal- mer y. Foley, 71 N. Y. 106), nor where the action abates by the death of the defendant. [Johnson v. Flwood, 82 N. Y^ 362). The mere fact, that the temporary injunction has been dissolved on motion, does not operate as a final decision that' the plaintiff was not entitled to the injunction. [Neu- gent -v. Swan, 61 How. Pr. 40). Although the complaint has been dismissed, yet if Ihe referee, upon dismissing the complaint, refused to decide that the plaintiff was not en- titled to the injunction, the defendant has no right to dam- ages by virtue of his undertaking. [Kelley v. McMahon, 32 Hun, 347). Any irregularity in preinaturely obtaining the order of reference as to damages, may be waived by the consent of the parties [Lawton v. Green, 64 N. Y. 326) ; or by permitting the referee to proceed without objection ; or, although the objection has been taken, if the party taking it does not withdraw from the reference. [Roberts v. White, 73 N. Y. 875). "Where an appeal from a judgment for the defendant has been taken, an order of reference to as- certain the damages should not be granted, until the final determination of the appeal. [Musgrave v. Sherwood, 76 N. Y. 194; Howard v. Park, 59 How. Pr. 844). Where an 496 PEAOTICE. appeal has been taken to the court of appeals, a final de- cision is deemed to be had, when the remittitur is sent down to the court below. (Ninth Av. B. B. Co. v. N. Y. Ele. B. B. Co., 3 Abb. N. 0. 22). Sec. 3. Hoiv the Damages are Ascertained. The damages, sustained by reason of an injunction, niay 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 there- upon, 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 re- versed 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. (Go. Civ. Proc. § 623). A proceeding under this section, is not a proceeding in the action, but it is a proceed- ing after judgment, and constitutes no part of the action. [Lawton v. Green, 64 N. Y. 826). An order of reference 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). An order of reference can be made only against those who sign the undertaking. (Patterson v. Bloomer, 9 Abb. Pr. N. S. 27). The plaintifE is not liable undSr it, unless he signs it. {Leavitt v. Dahney, 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, 532). The testimony of the witness should be signed, and the report of the referee should be filed with the testimony. (General Kule 30). Notice of filing the report should be given, and the report becomes absolute and stands as confirmed, unless exceptions are filed and served within eight days after the service of notice of filing. (General Eule 30). The plain- tiff in all cases should have notice of the filing. In pro- ceedings under the order of reference, great latitude is given to the court, as to the manner in which the referee shall proceed, or in which the testimony shall be taken ; the pro- INJUNCTIONS. 497 ceedings are not necessarily governed 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 T. White, 73 N. Y. 375, 379). The report will not be con- fii'med, unless the referee reports the damages, and not alone the facts from which the damages can be ascertained ( Taaks V. Schmidt, 19 How. Pr. 413) ; but the referee is not required io report findings of fact and conclusions of law separately. {Matthews v. Murchison, 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 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). The order confirming the report is appealable to the court of appeals. . (^Newton v. Russell, 87 N. Y. 527). Sec, 4. IVIiat Damages Allowed. The damages cannot, in any case, exceed the amount •specified in the undertaking. The referee's fees and the dis- bursements in ascertaining the damages may be allowed, but all the damages together cannot exceed the amount specified in the undertaking. {^Lawton v. Green, 64 N. Y. 326). "Within this amount, the defendant is entitled to have dam- ages to his business, or otherwise, which necessarily result from the injunction. [Hovey v. Rubber 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. Poillon, 2 Hun, 383; McDonald v. James, 38 Super. 76). "Where property went into the hands of a re- ceiver as a direct result of the injunction, the loss of the property, or decrease of profits, or the increased expenses of 32 498 PKACTICE. care, over what would have necessarily been incurred if na receiver had been appointed, will be allowed. [Hotchkiss V. Piatt, 8 Hun, 46). In actions of ejectment or dower, the damages to be paid upon vacating the injunction order, or upon the decision of the action against the party obtain- ing 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. Civ. Proc. § 617). General counsel fees on the trial are not allowed, unless they were incurred solely in consequence of the injunction. [Newton v. Hus- sell, 87 N. Y. 527). Counsel fees incurred in procuring the dissolution of the injunction are allowed, (id). But no counsel fees are allowed of an xmsuccessful attempt to dissolve it. {Randall v. Carpenter, 88 N. Y. 293). The fees of counsel on the reference to assess the damages may also be allowed as damages. [Newton 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. Murchison, 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 will be allowed, although they have not actually been paid, if they are reas- onable, and they have actually been incurred, so that the de- fendant is liable foV them. [Crounse v. Syr. Chen. & N. Y. R. R. Co., 32 Hun, 497). In a case where it was abso- lutely 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. R. R. Co., 32 Hun, 497). Where the defendant enjoined was an officer of a corporation, or joint stock association, or a bailee, agent, trustee, or other representative 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 as- certain and determine the damages, sustained by reason of. the injunction, by the corporation, association, or person. INJUNCTIONS. 499 whom the defendant represents, to an amount not exceeding the surplus of the sum specified in the undertaking; and those damages may be recoveried in separate action, brought as prescribed in the next section. (Code Civ. Proc. § 624). Sec 5. Action on the Undertaking. Where the damages have been ascertained by the decision of the court, or the confirmation of a referee's report, as pre- scribed in sections six hundred and twenty-three and six hundred and twenty-four, any person, entitled to the benefit of an undertaking, executed pursuant 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. 8. 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. {Randall v. Carpenter, 47 Super. 205) AETICLE VII. VACATING OB MODIFYING THE OEDEB. SECTION. 1, Without notice. 2, Upon notice. 3, Vacating injunction upon undertaking by defendant. Sec. 1. Withont Notice. Where the injunction order was granted without notice, the party enjoined may apply, upon the papers upon which it was granted, for an order vacating or modifying the in- junction order. Such an application may be made, Without notice, to the judge who granted the order, or who held the term of court where it was granted; or to the general term of the court. It cannot be made without notice, to any other judge or term, unless the applicant produces proof by affidavit, that, by reason of the ab.sence or other disability of the judge who granted the order, the application cannot be made to him ; and that the applicant wUl 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 in- junction order, must be served upon the plaintiff's attorney, 500 PRACTICE. 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 Steinert, 24 Hun, 246). The application under this section is to be made ex parte, and on the papers on which the notice is granted ; notice of the hearing is not contemplated. [Coffin v. Pros. Park & C. I. B. 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 caution. [Peck V. Yorks, 4:1 Barb. 547). The general term will only entertain an application, to vacate an injunction under this section, where some pressing necessity and special reason exists. 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 pecidiar circumstances which almost compel immediate action. [Gere v. iV. Y. C. & H. B. B. B. 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 INJUNCTIONS. 501 same papers on which the injunction was granted, no proof is required on the part of the party moving. {^Newbury v. Newbury, 6 How. Pr. 182). Where the motion is made on those papers only, the plaintiff cannot read new proof to sus- tain 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 application, made as prescribed in section six hundred and thirty-seven, founded only upon the papers upon which the injunction order was granted, does not prejudice a sub- sequent application, seasonably made, founded upon proof by affidavit, on the part of the defendant. And the grant- ing or denial of either application does not prejudice a sub- sequent 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, suf- ficient to entitle the plaintiff to the injunction order, upon one or more grounds, recited therein. (Co. Civ. Proc. § 628). Where the injunction 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 procedui-e, was that where all the equities of the complaint were denied by the answer, the injunction would be vacated upon motion; that rule has been changed by section six hundred and thirty of the code, and although the answer denies all the allegations of the complaint, the court is now at liberty to examine the whole case on the papers, and is not controlled by the allegations of the answer. (McEncroe v. Decker, 58 How. Pr. 250). Where all the material equities are disproved by the defendant the injunc- tion should be dissolved. ( Central Cross Town E. E. Co. V. The Blecker St. & Full. Ferry E. E. Co., 49 Ho>v. Pr. 502 PKACTICE. 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 can result to the defendants from its continuance. (Carpenter v. Danforth, 19 Abb. Pr. 225). The injunc- tion should be dissolved, if the court on all the evideace would not have granted it in the first instance. [Moser v. Polha- mus, 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 Bobt. 67). The court will sometimes dissolve the injunction for formal defects in the papers, although if the papers were in proper form, the injunction would be per- mitted to stand. In the case of Johnson v. Casey (28 How. Pr. 492), the injunction was dissolved, because the papers were so illegibly written that they could not be de- ciphered. Where the defendant makes a case for the disso- lution of the injunction, it will not be denied merely upon the ground of expediency. [Taylor v. HuUon, 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 Kiv. Constr. Co. 6 C. P. E. 106). That there is a defect of par- ties defendant is sometimes a ground for a dissokition of the injunction, but not necessarily, or usually. (Schulten V. Lord, 4 E. D. Smith, 206). If the action has been dis- continued 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 dam- ages. [Hope V. Acker, 7 Abb. Pr. 308). If the injunction is withdrawn, a motion to vacate it is unnecessary [Shear- man V. N. Y. C. Mills, 11 How. Pr. 269) ; but the defendant may enter an order dissolving the injunction as of course, upon the stipulation vacating it. An irregularity in obtain- ing the injunction is not waived by a motion to dissolve it upon any other ground. ( Wilkie v. Hoch. & St. Line B. E. Co., 5 Week. Dig. 352). INJUNCTIONS. 503 Sec. 3. Vacating Injunction upon Undertaking by Defendant. The proTisions of section six hundred and twenty-nine, that the court or judge may, where the alleged wrong or in- jury is not irreparable, and is capable of being adequately compensated for in money, vacate the injunction order upon -defendant's executing an undertaking, as it was first inserted in the code, was compulsory, and directed that the judge must vacate the injunction upon execution of the undertak- ing, but the word " must " was changed into 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 temporary injunction, leaves the plaintiff without protection 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 ^iven to it by this section. {Thayer v. Boch. Co. &c. B. B. Vo. 15 Abb. N. C. 52). Where the act which was restrained, was the withholding 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 undertaking under this sec- -tion. {Mel El. B. B. Co. v. Manhat. El. B. B. Co., 11 Daly. 367). In all cases the undertaking must be in strict compliance with the statutes, as we have have seen. ( Cham- berlain V. The B. & N. Y. & P. B. B. Co., 31 Hun, 339). ARTICLE VIII. , EFFECT OF SUBSEQUENT PROCEEDINGS IN THE ACTION. A dissolution of the temporary injunction does not neces- sarily prevent the plaintiff from obtaining a perpetual injunc- tion upon the trial of the action. {Banks v. American Tract Society, 4 Sandf. Ch. 438). An injunction untU the further order of the court, is merged in the final judgment. {^Gardner v. Gardner, 87 N. Y. 14). Where an appeal has S04 PEACTICE. been taken from an order denying an injunction, or from an judgment denying a permanent injunction, the court will not usually continue the injunction upon the appeal. [Outtrin V. Graves, 1 Barb. Ch. 49). The court has no power, after judgment against the plaintiff, to grant an injunction or to revive or continue, during the appeal, a temporary injunction previously obtained. (Spears r. Matthews, 66 N. T. 127; Emmons v. Campbell, 22 Hun, 582). A stay of proceed- ings upon an appeal from a judgment, does not annul the judgment, or affect in any way the injunction, and the de- fendant is not absolved from the duty of obedience, or per- mitted to do that which the judgment prohibits. [Sixth Av. B. B. Co. V. ailhert Me. B. B. Co., 71 N. Y. 430). 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 injunction, which has been dissolved by the judgment of the special term, but the court will reinstate it on motion as to everything which is still executory. (^Hatch v. West Un. Tel. Co., N. Y. Daily Eeg. Dec. 20, 1882). Where a cause, commenced in one of the courts of the state, has been re- moved to the circuit court of the United States, an injunc- tion, which has been granted before the removal, is not affected by it but still continues in force. ( U. S. Bev. Stats. § 446). CHAPTEE XVI. ATTACHMENT. ARTICLE I. — ^When and by whom, 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 attach- ment discharged. AETICLE I. WHEN AND BY WHOM IT MAT BE GBANTED. 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 Attachmenti Any person, who may come into the courts of this state ta 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 thel same right to sue out a warrant of attachment as is given to a citizen of this state. [Hibernia National Bank v. Lacombe, 84 K T. 367). Following 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 C. E., N. S. 297), even though his action may be brought against a non- resident defendant. (Cooke v. Appleton, 51 Super. 529 )_ 506 PBACTICli. A foreign corporation or a non-resident, however, can neither maintain an action nor have a warrant of attachment against a foreign corporation, except in the cases specified in section seventeen hundred and eighty of the Code of Civil Procedure ; but wherever a cause of action, in which an attach- ment 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. T. 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 attach- ment against a non-resident; it is sufficient if one of them is a resident. [Benard v. Hargous, 13 N. Y. 259). Sec. 2. In 'Wlia.t 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 ap- plication of the plaintifif, 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. Any other injury to personal property in consequence of negligence, fraud, or other wrongful act. (Code Civ. Proc.§635). W^^\ \t^L\ To entitle the plaintiff to an attachment, there must be an actual existing cause of action at the time the application is made. (Code Civ. Proc. § 686). 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 attach- ment, and that part of the non-imprisonment act which pro- vided for an attachment in certain cases, have been repealed, leaving the Code of Civil Procedure the only statute by which this remedy is given. There is no little difference between applications for at- tachments against non-resident debtors under the revised statutes, and under the non-imprisonment act of ISSlj and ATTACHMENT. 507 applications under the code. The attachments, issued under the two former laws, are special proceedings. They are the original processes by which the suits are 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 iacts 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, nor can a judgment be obtained upon it alone; but it is simply a provisional remedy, adopted, under certain circum- stances, in a suit which is already commenced, or which is about to be commenced, at the time of the granting of the Temedy; and the application for the remedy is regarded as a motion in the action [Allen v. Meyer, 73 N. T. 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 does not depend on the sufficiency of the affidavits, which are pre- sented to the court, on the application for the attachment. {Furman v. Waller, 13 How. Pr. 348; Skinner v. Stuart, 39 Barb. 206; Lamkin v. Douglass, 27 Hun, 517). The granting of an attachment under the code, operates for the sole benefit of the attaching creditor, and not for the whole body of creditors of the defendant, as was the case under the revised statutes. [Beady v. Stewart, 1 0. E., N. S. 297; Mechanics' & Traders' Bank v. Dalcin, 50 Barb. 587). The right to an attachment, 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 their proceedings conform to it. [Blossom v. Estes, 84 N^. T, 614). An attachment cannot be demanded as a mat- ter of right, even in the actions in which it is given by the code ; but it is, in all cases, digcietionaiy with the court. This discretion, however, is a judicial discretion, as it is called, and the exercise of it can be reviewed by the general term; but it is not reviewable by the court of appeals. (Sartwell v. Field, 68 N. T. 841). In actions for a breach 508 PRACTICE. 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. [Manton V. Poole, 67 Barb. 330; Clews v. Bockford B. I. & St. L. B. B. Co. 2 Hun, 379). 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 property, and for the money due upon it. ( Cor- son V. Ball, 4:1 Barb. 452). A foreign judgment is an im- plied contract under this section. (^Nazro v. McCalmont Oil Co., 36 Hun, 296 \ In an action for the price of goods sold, an attachment may be granted under the (nrstjsub- division of section six hundred and thirty-five, although it is alleged in the complaint, that the plaintiffs were induced to sell the goods by the fraudulent representations of the de- fendant. [Gladke v. Maschke, 35 Hun, 476; Morrison v. Watson, 23 Wkly. 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 by the cases above cited. An injury to property is any actionable act, whereby the estate of another is lessened, other than a personal in- jury or a breach of contract. (Code Civ. Proc. § 3343, subd. 10). One who has been induced to make advances on the faith of forged paper, has sustained an injury to per- sonal property, and is entitled to an attachment under the third subdivision of this section. [Bogart v. Dart, 25 Hun, 395). It has been decided that an attachment can not be granted in the following cases: in an action for equitable relief {Thorington v. Merrick, 101 JST. Y. 5) ; in an action for a personal injury [Saddlesvene v. Arms, 32 How. Pr. 280) ; nor can an attachment 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. Min. Co. V. Baht, 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 plain- ATTACHMENT. 509 iifp shows himself merely entitled to nominal damages, the court will not grant an attachment; 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). Where an action is brought under section thirty-two hundred and forty-seven of the code, to recover the costs of an action, prosecuted by the transferee of the cause of action in the name of another, the plaintiff is not entitled to an attachment, because the action is not on a contract express or implied. (^Remington Paper Co. v. O'Dougheriy, 32 Hun, 255). It will' bB 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 de- cisions made upon this subject, under the Code of Procedure, have therefore become obsolete. Sec. 3. Against AVIioin it may be Granted. Sub-division 1. — Against a Non-eesident. Where the defendant is a non-resident a warrant of attach- ment may be issued against him. (Code Civ. Proc. § 636, subd. 2). Actual cessation to dwell within the state for an uncertain period, without a definite intention 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 issuance of an attachment, under the Code of Civil Procedure. {Weitlcamp 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 attach- ment may be granted against him. ( Wallace v. Castle, 68 N. T. 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 v. Baldwin, 11 Abb. Pr. N. S. 407). An attachment may be granted against a foreign administrator, upon a contract 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 510 PKACTICE. T. Hall, 38 Hun, 528). An attacliinent will not issue against a foreign administrator or executor, for a demand against a. testator's estate, nor in any case, except where lie is per- sonally liable upon the cause of action. {Matter of Hurd, 9 Wend. 465; Matter of Galloway, 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 entitled to an attachment against the resident partner. {McKinlay v. Fowler, 1 How. Pr. N. S. 282). Sub-division 2. — Against a Foreign Cokpokation. The plaintiff in an action against a foreign corporation, is- entitled to an attachment. (Code Civ. Proc. § 636, subd. 2). The court has jurisdiction to issue a warrant of attach- ment in an action against a national bank {Robinson v. National Bank of Newhern,, 81 N. T. 885) ; but it must be vacated, if the bank afterwards becomes insolvent. {National Shoe and Leather Bank v. Mechanics' National Bank of Newark, 89 N. T. 467). Sub-division 3. — Against Absconding ob Concealed- Debtoks. The plaintiff is entitled to an attachment, where the. de- fendant is a natural person, and a resident of this state, wha has departed therefrom, with intent to defraud his creditors^ or to avoid the service of a summons, or keeps himself con- cealed therein, with the like intent. (Code Civ. Proc. § 636, subd. 2). It is not necessary, to entitle the plaintiff to this relief, that the departure 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 de- fraud his creditors, or to avoid service of process. {Morgan Y. Avery, 7 Barb. 656; Hertz v. Stuart, 3 Wkly. 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 ATTACHMENT. 511 of great importance, is not controlling. If a perfectly sol- vent man departs the state, with intent ^to defraud his credi- tors, or to avoid service of process upon him, his property may be attached. [Schoonmaker v. Spencer, 54 N. T. 366,. 372). But the facts must show that the defendant himself, against whom the process is sought, has done the act which i^ prescribed 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 part- ners have absconded with the intent specified in the statute. {Bogart v. Dari, 25 Hun, 395; Leach v. Cooli, 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). Where it appears that the defendant is absent from his usual residence and place of business during business hours, when he is about to fail, or soon after a dema;id has been made upoii him for a debt, and he refuses to reveal his place of resort, it sufficiently ap- pears that he keeps himself concealed with intent to avoid service of a summons. [Easton v. Malavazi, 1 Daly, 147 ; Genin v. Tompkins, 12 Barb. 265). To entitle the plaintiff to an attachment under this provision of the code, it need not appear whether the debtor has left the state, or is con- cealed 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 circum- stances 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 satisfied, and the plaintiff will be entitled to his attach- ment. It is not necessary that the creditor should state his case in either aspect, but he may state it in the alternative. ( Van Alsiyne v. Erwine, 11 N. T. 331, 339 ; Kneeland on Attachments, § § 215, 216). The length of time during 612 PRACTICE. which the defendant has kept concealed is not material, i£ the intent sufficiently appear. [Genin v. Tompkins. 12 Barb. 265). Sub-division 4 — Against one Eemoving, Assigning ob Secbeting Peopekty. An attachment may be granted, either against a natural person, or a domestic corporation, upon the ground that th« •defendant has remoTed, or is about to remove property from ihe state, or has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete property, with intent to defraud his creditors. (Code Civ. Proc. § 636, subd. 2). 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 Wkly. Dig. 332). The facts showing the intent must be stated. [Seltman v. Jaschenorosky, 3 Law. Bull. 9). The property which is removed or secreted must be the property of the defendant; the fact that the de- fendant has disposed of the property of the plaintiff, or of a third person, with intent to defraud that person, is not a reason for an attachment against him. {German Bank of London v. Dash, 60 How. Pr. 124). It has been held, that threatening to make an assignment with preferences, is not alone evidence of an intent to dispose of property with in- tent to defraud creditors ( Wilson v. Britton, 26 Barb. 562) ; but one cannot use the power of assigning property 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. Ap- ple, 14 Abb. Pr. 64). The case last cited has been approved in the later cases; and it has been held, that such a threat raises a suspicion of a fraudulent purpose, and if it is accom- panied with slight circumstances showing a fraudulent in- tent, 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 {Livermore v. Rhodes, 3 Eobt. 626) ; but the fact that the debtor has agreed to give a preference to an- other than the plaintiff, in case he becomes insolvent, does not raise a suspicion of fraudulent intent, so as to warrant ATTACHMENT. 513 the granting of an attachment against him. [National Park Bank v. Whitmore, 104 N. Y. 297, 302). The plain- tiff 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 be sufficient to en- title him to an attachment. ( Vietor v. Henlein, 34 Hun, 562; Buhl v. Ball, 41 Hun, 61; Friend v. Michaelis, 15 Abb. N. 0. 354). It is not necessary, to warrant an attach- ment under this subdivision, that the defendant has disposed, or is about to dispose of all of his property ; if he disposes of a part of his property [Hyman v. Kapp, 22 Wkly. Dig. 310) ; or of any property in his possession, or to which he claims the title, although his title is imperfect or bad [Treadivell v. Lawlor, 15 How. Pr. 8) ; or if he disposes of a portion of his property in another state [Kibhe v. Wei- more, 31 Hun, 424) ; it is sufficient to warrant the issuing of an attachment against him. But a plaintiff, applying for an attachment under this subdivision, is called upon to act with promptness ; and where the fraudulent disposition occurred 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). Sub-division 5. — Against Public Officebs. A warrant of attachment, against the property of one or more defendants in an action, may also be granted, upon tho application of the plaintiff, where the cojnplaint demands judgment for a sum of money only; and it appears by affi- davit, 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 pablic corporation, board, officer, custodian, agency or agent, of the state, or of a city, county, town, or other division, .33 514 PEACTICE. subdivision, department, or portion of the state, ■vrhioli the defendant has, without right, obtained, receiyed, converted, or disposed of; or in the obtaining, reception, payment, con- version or disposition of which, without right, he has aided or abetted; or to recover damages for so obtaining, receiv- ing, paying, converting, or disposing of the same; or the' aiding or abetting thereof. In order to entitle the plain- tiff to a warrant of attachment, in a case specified in this sec- tion, he must show by affidavit, to the satisfaction of the judge granting it, that a sufficient 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 authorized 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 dis- posed of. Sec. 4. When an Attaclunent ivill he Granted. The warrant may be granted to accompany the summons, or at any time after the commencement of the action, and be- fore final judgment therein. Personal service 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 ser- vice 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 commenc- ed, the service must be made complete by the continuance thereof. (Code Civ. Proc. § 638). The court acquires jur- isdiction by the granting of the warrant, accompanied by the summons; but such jurisdiction is conditional; and it is liable to be divested, if the summons is not served within the thirty days after the granting of the warrant. (Co. Civ. Proc. § 416; Waffle v. Goble, 53 Barb. 517). If the sum- mons 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 sum- ATTACHMENT. 515 mons. {Mills v. Corbett, 8 How. Pr. 500). If the sum- mons is not served -within thirty days after the granting of the warrant, the failure to do so is jurisdictional, and des- troys the warrant, and the proceedings must be vacated on motion [CossUt v. Winohell, 39 Hun, 439; Betzemann v. Brooks, 31 Hun, 271) ; but the proceedings which have been taken under the attachment, do not become void as to third persons. [Simpson y. Burch, 4: Tlmi, 315). A volun- tary general appearq,noe by the defendant, before the expira- tion of the thirty days within which the summons must be served, is equivalent to personal service upon him, within this section (Catlin v. Bicketts, 91 N. Y. 668); 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 Orvis v. Ooldschmidt (2 Civ. Pro. Eep. 314), it was held that where the action was brought against a firm, and sei-vice was made upon one, but not upon all; before the expiration of the' thirty days, the summons was sufficiently served, and that the court did not lose jurisdiction by a failure to serve all the defendants. But in Donnell v. Williams (21 Hun, 216), and Bogart v. Sweezy (3 Law. Bull. 41; affirmed, 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 be- fore the case of Orvis v. Goldschmidt, but they are general term decisions, and are not referred to in the case of Orvis V. Goldschmidt, and they must be deemed to properly 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 sum- mons were mailed, and the summons and notice were deliv- ered 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 re- 516 PRACTICE. quired by this section, and. tke attachment was vacated. {Taylor v. Troncoso, 76 K Y. 599). If the last of the thirty days falls on Sunday, service on the following day would be sufficient to sustain an attachment. {Gribbon v. Freel, 93 N. Y. 93). If the service of a summons by pub- lication has been commenced, before an attachment is granted, the requirements of the statute, as to service of the summons, are sufficiently complied with. {Baron v. Biaren, 3 Law. Bull. 49). Where a defendant was never actually served with process, but was sufficiently advised of the pro- ceedings to protect his rights, and the defendant had moved, after judgment had been entered and execution issued, for leave to set aside the execution and attachment, and to open the judgment and permit him to defend; it was held, that the service was sufficient to give the court jurisdiction, and the motion to vacate the attachment was denied. {Putnam Co. Chemical Works v. Jochen, 8 Civ. Pro. Eep. 424). In that case, however, it appeared that the summons, although not served upon the defendant, by the deputy who made the return, had actually come into the hands of the defendant within the thirty days, and had by him been put into the hands of an attorney. Where an attachment was issued, but the defendant died before the service of the summons, and his administrator was substituted as defendant, but the sum- mons was not served upon him within the thirty days after the granting of the warrant, the jurisdiction was lost, and the warrant was vacated. {Kelly v. Countryman, 15 Hun, 97). To sustain the warrant, the summons must be per- sonally served, or service by publication must be commenced, as directed in section six hundred and thirty-eight. Sub- stituted service of the summons, under section four hundred and thirty -five of the Code of Civil Procedure, is not suffi- cient to support the attachment. {Bogart v. Swezy, 26 Hun, 463). 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 defendant so as to prevent the setting aside of the attachment. {Mojarrieta v. Saenz, 80 N. Y. 547 ) . Where a plaintiff has obtained an ATTACHMENT. 517 attacliineiit and an order of publication, lie may, if lie sees fit, abandon them, and take out a new attachment and order, if it does not appear that it was done for the purpose of vexa- tion, (id). Seo. 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 attorney resides in that county. {Webh v. Bailey, 54 N. Y. 164). AETICLE II. PAPERS ON WHICH IT MAY BE GRANTED. BKCTION. 1. The affidavit. 2. Security on obtaining warrant. 3. Contents of tlie 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 grant- ing 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, ex- ists 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 counterclaims 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 person, or a resident of the state, that he has departed therefrom, 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. (Co. Civ. Proc. § 636). 518 PRACTICE. It is always necessary that the application should be founded upon an affidavit. [Zerega \. Benoist, 1 Eobt. 199). In this case as in others, a verified pleading is re- garded as an affidavit. (Code Civ. Proc. § 3343, subd. 11). When so used, however, it should comply with the require- ments of other affidavits as to the manner of stating the facts. The affidavit, however, need not be an affidavit of the plaintiff; it may be made either by the plaintiff, or by an- other person who is familiar with the facts. [Edick v. Green, 38 Hun, 202). If an action is brought by a firm> the affidavit of one of the plaintiffs is sufficient. {Stevens v. Middleton, 26 Hun, 470). The affidavit of an agent or an attorney, if it is made upon his knowledge, and sufficiently establishes the necessary fact, is all that is required. [James v. Bichardson, 39 Hun, 399). The personal know- ledge of the affiant of the facts which he testifies to is pre- sumed, (id). The affidavit must be upon the personal knowledge of the affiant, and must be positive in its state- ments. {^St. Amant v. De Beixcedon, 3 Sand. 703). The statement of the cause of action in affidavits, on an application for an attachment, should be clear, concise and explicit. 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 knowledge, the sources from which, and the persons from whom, the information is derived should be given, together with the reason why the affidavits of those having positive knowledge of the facts cannot be procured. [Bennett v. Edwards, 27 Hun, 352). If a person, having positive knowledge of facts sufficient to warrant the issuing of an attachment, refuses to make affi- davit 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 support the grounds upon. ATTACHMENT. 519 "which the application is based. "Where the facts are stated on information and belief, it should allege that affiant be- lieves such information, and that his informers are absent, or that their depositions cannot be obtained, and the sources of the information should also be stated as specified above. (iVeaZ V. Sachs, 15 "Wkly. Dig. 476). Allegations upon in- formation and belief only, do not give the court jurisdiction "to issue the attachment. [Steuben County Bank v. Alher- ger, 78 N. T. 252). The facts should be alleged positively, and not by way of recital. [Manion v. Poole, 67 Barb. 330). 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. Mid- dleton, 26 Hun, 470; Franhel v. Hays, 20 "VVkly. Dig. 417). The affidavits must show that a cause of action ex- ists, 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). If a verified com- plaint is relied on as an affidavit, and the allegations, or any portion of them, are made upon information and belief, a positive affidavit verifying its statements, makes it sufficient evidence of the existence of the cause of action. {Edick v. Green, 38 Hun, 202). The affi- davits need not state in terms that the cause of action is not for a breach of a promise of marriage, if that fact neces- sarily 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. [Hamilton v. Penney, 29 Hun, 265). In stat- ing the amount which the plaintiff is entitled to recover, as is made necessary by sub-division 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 {Buppert V. Haug, 87 N. Y. 141). Those words, or equiva- lent 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, 520 PBACTICE. it must contain something, from which the court can see how he could know the facts which enable him to make the state- ment; although the description of his relations to the tran- saction may be sufficient, yet some circumstances, showing his relation to the knowledge of his business, must be presented. {Buhl V. Ball, 41 Hun, 61; Smith v. Arnold, 33 Hun, 484). Where a corporation is plaintifE, an affidavit made by a cashier that the plaintiff was entitled to recover a sum therein stated and interest, over and above all counterclaims known to the plaintiff, was held to be sufficient. [National Park Bank v. Whitmore, 40 Hun, 499). 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. [Lamkin v. Douglass, 27 Hun, 517). The plaintiff must state that 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). Neither is it sufficient for the affidavit to state that the plain- tiff is entitled to recover " the sum of ten thousand dollars, or other larger sums, with interest," over and above all counter- claims etc. {Thorington Y. Merrick, 101 N. Y. 5). Where the affidavit is made by the plaintiff himself, he must state that he is entitled to recover the sum stated " over and above all counterclaims known to him," or equivalent words. {Lyon V. Blakesly, 19 Hun, 299; Donnell v. Williams, 21 Hun, 216). In Alford v. Smith (28 Hun, 22), it was held that an omission of the words "known to him" was not fatal ; but it is not safe to follow that case as an accurate statement of the law. {Murray v. Hankin, 30 Hun, 87; Buppert V. Hang, 87 N. Y. 141). Where an affidavit is made by an agent of the plaintiff, and he shows that he has a knowledge of the transac^tion, so that he is able to state the facts from his own knowledge, the omission of the words " known to him " is not a fatal defect. {Lamkin v. Douglass, 27 Hun, 517; Frankel v. Hays, 20 Wkly. Dig. 417). If one member of a firm makes the affidavit, it is not necessary that it should appear that there were no counterclaims, which were known to the other members of the firm. {Stevens v. Middleton, 4 Law Bull. 1; aff'd. 26 Hun, 470). Where a ATTACHMENT. 521 statement in tlae affidavit, that an amount is due, over and above all counterclaims known to the plaintiff, is made upon information and belief, the affidavit is not sufficient, and the attachment will be vacated. {Acker v. Jackson, 3 How. Pr. N. S. 160). 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 attachment is upon the ground that the defendant is a foreign corporation, an allegation of that fact gives the court jarisdiction to grant the warrant. [Lee v. Valle-if 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 affi- davit will be sufficient, if the conclusion of non-residence is one necessary to be drawn from the facts, which are stated in the affidavit. [Mayor etc. v. Genet, 4 Hun, 487). The plaintiff has the burden of showing that the fact exists. [Eicetti V. Mapleson, 22 "Wkly. Dig. 215). Where anorder 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 affidavit must state the facts, which show that the defendant has ab- sconded, or concealed himself, or disposed of his property {Neal V. Sachs, 15 Wkly. Dig. 476), and that it was with the intent of defrauding creditors, or to avoid the service of summons. (Hertz v. Stuart, 3 Wkly. Dig. 332). As we have seen, it is not necessary to allege that the departure is secret ; the intent with which it was made is the only mate- erial thing. {Morgan v. Avery, 7 Barb. 656). Mere con- jectures that the defendant has absconded, or concealed himself, or is about to dispose of his property, are not suffi- cient to sustain the attachment ( Vo7i Moppes v. Leimhach, 22 Wkly. Dig. 337 ) ; neither is a general allegation of the ,facts on information and belief. {Steuben Co. Bank v. Alberger, 78 N. Y. 252). Allegations of the deponent's be- lief, as to the intent of the defendant, are not sufficient ; the 522 PBACTTCE. facts must be stated, from which such intent can be reason- ably inferred. [Seltman v. Jaschenorosky, 3 Law Bull. 9). 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 de- fraud creditors, or to avoid service, the affidavit may charge «ach 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). Where an action is brought by a corporation, the affidavit need not state whether it is a domestic, or a foreign corporation, (iee v. La Com- pagnie Universelle &c., 2 N. Y. S. Eep. 612). The affida- vits need not state that the defendants have property within the state. [Lawton v. Kiel. 51 Barb. 30). It is not neces- sary 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). In the case of Mojar- rieta v. Saenz (80 N. Y. 547), the court of appeals 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 the court; and was not a question that was necessary to be considered in that court. Where the affidavit refers to another paper, as proof of the facts stated in it, the original must be produced if possible ; if not, and a copy is used, the reason why the original is not produced must be stated. [James v. Bichardson, 39 Hun, 399 ; Ben- neU V. Edwards, 27 Hun, 352). Where a copy of the complaint is annexed to the affidavit, which states that the cause of action is more particularly set forth in the complaint, it is a sufficient statement of it. [Cran- dall V. McKay e, 6 Hun, 483). Where an affidavit merely refers to other papers, without producing them, or copies of them, or stating their contents, it is of no avail as proof of the facts. [Smith v. Arnold, 33 Hun, 484). A party to an action cannot be compelled to make an affidavit, upon which to base an application for a warrant of attachment [James v. Bichardson, 39 Hun, 399) ; but an- ATTACHMENT. 523 other person than a party can be compelled to make a, de- position, under section eight hundred and eighty-five of the code. [Allen v. Meyer, 73 N. Y. 1). Where an attach- ment has been vacated for a defect in the affidavit, the same papers -with an additional affidavit supplying the defect, may he used to obtain another attachment. [Acker v. Jackson, 3 How. Pr. N. S. 160; Mojarrieta v. Saenz, 80 K Y. 547). Upon an application for a warrant of attachment, it is not necessary that the facts stated in the affidavit should be de- cisive of every fact, which is required to entitle the plaintiff to the attachment; if the affidavits tend to prove the neces- sary facts, and establish a prima facie case, the court will grant the attachment. ( Cooney v. Whitfield, 41 How. Pr. 6 ; Lee V. La Compagnie Universelle &c., 2 N. Y. S. Kep. 612). If the affidavit sets forth enongh to call upon the officer to exercise his judgment whether or not the necessary facts ex- ist, he has acquired jurisdiction to act [Skinnion v. Kelley, 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. Malavazi, 7 Daly, 147). In an action against a public officer for peculation, 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 requited in other actions; and the rifles 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. Oiv. 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 proceedings under it ; and it will not be vacated as a matter of course, because the affida- vits are not filed. [Brash v. Wielarsky, 36 How. Pr. 253; Woodward v, Stearns, 10 Abb. Pr. N, S. 395). 524 PRACTICE. Sec. 2. Security on Obtaining the AVarrant. The judge, before granting the warrant, must require a written undertaking, on the part of the plaintiff, with suffi- cient 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 Code of Civil Procedure, or where it is specially prescribed 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 VIII, ante. The section requiring security is imperative, and the court cannot dispense with the security, or accept a deposit of money in lieu of it. {^Bate v. Mc- Dowell, 48 Super. 219). If the undertaking given upon granting the warrant is defective, the court may order a new undertaking without vacating the warrant, in its discretion. [Lamlcin v. Douglass, 27 Huii, 517). The court or judge, granting the warrant, may fix the amount of the undertak- ing, and require an increase of it, or an additional under- taking, when it deems proper in its discretion. ( Whitney V. Deniston, 2 T. & C. 471; Eiggs v. C. Y. & P. R. E. Co, 21 Wkly. Dig. 45). The court will order an increase of the undertaking, when the amount of property levied upon by the sheriff is larger than was contemplated at the time of the granting of the warrant, (id). Such increase, how- ever, is in the discretion of the court at special term, or of the judge who granted the warrant. The bankruptcy of the principal and his discharge does not discharge the sureties upon the undertaking. [McCombs v. Allen, 18 Hun, 190). The liability of the sureties is absolute, and no demand of the principal debtor is necessary before bringing an action against them. {Currie v. Eeilly, 14 Wkly. Dig. 407). The sureties on an undertaking are liable for all expenses conse- ATTACHMENT. 525 quent upon efforts to haye an attacliment vacated, although no property has been taken under it (id) ; but they are en- titled 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. {^Baere v. Armstrong, 26 Hun, 19). The phrase " recover judgment," used in section six hundred and forty, refers to the final de- cision on appeal, if an appeal is taken. So that if the plain- tiff 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 undertaking, 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 un- dertaking, 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 af&davit. War- rants may be issued at the same time to sheriffs of different counties. (Co. Civ. Proc. § 641). The warrant does not require a formal teste, nor the signature of the clerk, nor a seal. {Genin v. Tompkins, 12 Barb. 265). If the original warrant is signed by the judge, the copy served is not irre- gular, although it has no copy of the judge's signature. {Qreenleafy. Mumford, 19 Abb. Pr. 469; 30 How. Pr. 30). The warrant may be amended upon a motion to vacate it for irreo-ularity. {Kissam v. Marshall, 10 Abb. Pr. 424). 526 PRACTICE. Upon an appeal, if the warrant does not appear in the papers, it will 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 re. cited in the warrant. [Mayor &c 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 required by the statute. ARTICLE III. EXECUTION OF THE WAKBANT. SECTION. 1. By whom, and how made. 3. What property may be attached. 3. How property to be attached. 4. Rights 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 VHioin, and Ho-w Made. The sheriff must immediately execute the warrant, by levy- ing upon so much of the personal and real property of the defendant, within his county, not exempt from levy and sale by virtue of an execution, as will satisfy the plaintiff's de- mand, with the costs and expenses. 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 III of chapter VII of the Code of Civil Procedure. The sheriff, to whom a warrant of attachment is delivered, 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, notwith- standing the expiration of his term of office. (Co. Civ. Proc. § 644). The sheriff to whom a warrant of attachment is ATTACHMENT. 527 directed, cannot act under it outside of his own county. ( Matter of TiUon, 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 being present, while he is so doing. {United States v. Graff, 67 Barb. 304). The sheriff has a reasonable discretion as to the amount of property he will levy upon ( Wehle v. Conner, 83 N. T. 231) ; and that discretion is not to be controlled by either party. If the defendant have sufficient property to satisfy the judgment, and the sheriff knowingly neglect to levy upon enough, he is liable for the deficiency. {Ransom v. Halcott, 18 Barb. 56). If a sheriff seizes, upon a warrant, goods of a wrong person, he is liable to that person. [Kuhlman v. Orser, 5 Duer, 242). The sheriff may require indemnity,, before executing the attachment upon goods which he finds in the possession of a third person. ( Chamberlin v. Seller, 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 attachment. ( Wehle v. Conner, 83 N. Y. 231). The statute requires the sheriff to return the inven- tory, which he makes pursuant to section six hundred and fifty-four of the code. But there is no provision for the re- turn 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 warrant, with a return of his proceed- ings thereon. Upon the application of either party, and proof of the sheriff's neglect, the court may direct him so to do forthwith, or within a specified time. 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, 55 Barb. 9). After the return has been made, it may be amended in any particular. {Vanderheyden v. Gary, 38 How. Pr. 367). 528 PBACTICE. Seoi 2> What Property may be Attaolied. Sub-division 1. — Eeal Peopebty. The real property, which may be levied upon by virtue of a warrant of attachment, includes any interest in real prop- erty, 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). Sub-division 2. — Pebsonal Pboperty. 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 property has a leviable interest in it, so long as the possessory 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. ( Cut- ler 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. [Hathaway v. Br ay man, 42 N. Y. 322). Money, which has been collected by the sheriff upon an execution in favor of the defendant, and which is in his hands, is liable to an attachment. ( Wehle v. Conner, 83 N. Y. 231). Property of a firm can be levied upon, on an attachment against one member of the firm; and the sheriff must take possession of the property attached [Smith v. Orser, 42 N. Y. 132) ; but only the interest of the indivi- dual member can be sold. [AtJcins v. Saxton, 6 Wkly. Dig. 210). 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 attach- ing creditor. [Dunlop v. Paterson F. Ins. Co., 12 Hun, 627). Property which the judgment debtor has fraudu- ATTACHMENT. 529 lently disposed of, with intent to defraud his creditors, may be seized under an attachment (ilfc>c//om"cs' and Traders'' Bank v. Dakin, 50 Barb. 587; Rinchey v. Stryker, 31 N. Y. 140; S.^ C. 26 How. Pr. 75) ; unless its identity has been changed. {Lawrence v. Bank of the Bepublic, 35 N. Y. 320). But an attachment cannot be levied on the proceeds of such property, if it has been sold. {Matter of Foley, 10 Daly, 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 per- sonal property attached, and all evidences of the defendant's title to the I'eal property attached, do 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. Dettlebach, 11 How. Pr. 46). Under a warrant of attachment against a foreign corpora- tion, other than a corporation created by or under the laws of the United States, the sheriff may levy upon the sum re- maining 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. Civ. Proo. § 646). The rights or shares which a defendant has in the stock of an association or corporation, together with the interests and profits thereof, may be levied upon ; and the sheriff's certificate of the sale thereof entitles the purchaser to the same rights and privi- leges, with respect thereto, which the defendant had when they were so attached. (Co. Civ. Proc. § 647). The stock of a foreign corporation, which has its principal office in this state, is not subject to attachment, where the defendant who owns the stock is a non-resident, 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. Bigelow, 93 N. Y. 592). Stock, which has been transferred by the defendant as collateral security, can- not be levied upon, on an attachment against him. {Smith V. American Coal Co., 7 Lans. 317). The attachment may also be levied upon a cause of action arising upon contract; 34 530 PEACTICE. 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, associa- tion, municipal or other corporation, or by a private person, either within or without the state ; which belongs to the de- fendant, 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 Flandrow, 84 N. Y. 1). Money deposited with the clerk, in lieu of an un- dertaking on appeal, is leviable under an attachment against the person 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 possossion of the clerk. {Dunlop v. Patter- son F. Ins. Co., 74 N. Y. 145). The unpaid purchase price for goods sold may be taken on an attachment against the seller. {Kelly v. Babcock, 49 N. Y. 318). Money in the hands of a depository, for the purpose of compromising with the defendant's creditors, may be levied upon by virtue of an attachment against him, until it is actually turned over pur- suant to the compromise. [Lynch v. Crary, 34 Super. 461). A debt due to the defendant may be attached, although the- debtor has promised the defendant to pay it to a third per- son, if such third person has had no notice of the agreement, and not acceded to it. [Kelly v. Boberts, 40 N. Y. 432). Choses in action, which have been transferred before the levy, belong to the assignee, and cannot be levied upon on an attachment against the assignor [Gibson v. Nafl Park Bank, 98 N. Y. 87) ; although they were transferred in fraud of creditors. [Anthony v. Wood, 96 N. Y. 180). The provision of the code that, where the property 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 char- acter of the property sought to be attached. If a note or ATTACHMENT. 531 toud has been transferred, 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 attachment 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 bona fide holder, or is outstanding in his hands. {Gibson v. National Parle Bank, 98 N. Y. 87). Where the makers of a check have torn ofE their signature from it, it ceases to be a chose in action and leviable upon on an attachment against the payee. {Casper 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, 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, which has no agency in this state, is not a subject of levy under an attachment. ( Willet v. Equit. Ins. Co., 10 Abb. Pr. 193). 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 de- posited with a trustee, in pursuance 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). ■ 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 officer of the government. {Buckley v. Eckert, 3 Penn. St. 268; Cornell v. Funk, 1 City Ct. Eep. 35, note). A debt which can be levied upon under this section, must be a legal debt, and not an equitable demand; and it must be payable abso- 532 PRACTICE. lutely, and not upon a contingency; a mere contingent in- terest is not the subject of levy. [Bills v. National Park Bank, 47 Super. 302). Wages -which are exempt from execution cannot be levied on by an attachment. [McCul- lough v. Carragan, 24 Hun, 157). Sec. 3. How Property to be Attached. Sub-division 1. — Eeal 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 description of the par- ticular 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 ihat 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 will constitute a seizure, and create a lien against the debtor, and all claiming under him. by title subsequently acquired, except bona fide purchasers and incumbrancers. The officer need not leave with the person in possession a certified copy of the warrant of attachment. [Rodger s v. Bonner, 45 N. Y. 379). Sub- DIVISION 2. — Peesonal Peopeety Capable op Manual Deliveey. 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 cus- tody. 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 levy upon property of this nature can be made only by the sheriff taking the property into his actual custody. [Halben v. ATTACHMENT. 533 Reilly, 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 failure to com- ply with it is an irregularity, which does not destroy the effect of the levy, if otherwise valid. [Adams v. Speelman, 39 Hun, 35). Where the property is already in the hands of the sheriff, no formal levy or notice is necessary to sub- ject it to the lien of the attachment. ( Wehle 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 destina- tion. {Taacks v. Schmidt, 18 Abb. Pr. 307). Sub-division 3. — Other Pebsonal Peopebty. 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 subdivision two of section six hun- dred and forty-nine, with the person against whom it exists; or, if it consists of a right or share in the stock of an asso- ciation or corporation, or interests or profits thereon, with the president, or other head of the association or corpora- tion, or the secretary, cashier, or managing agent thereof. (Co. Civ. Proc. § 649, subd. 3). Under this section is in- cluded 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 consign- ment, with advances made upon the property. {Clark v. Goodridge, 41 N. Y. 210, 214). A levy upon such property must be made in the precise mode directed by the statute ; 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 from a corporation, the war- rant and notice must be served on the managing agent; leaving the papers with a person, not the managing agent of 534 PRACTICE. 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 attach- ment, the warrant must be served on the judgment debtor; service on his attorney is not sufficient. [Matter of Flan- drow, 84 N. Y. 1). The notice under this subdivision, show- ing 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 judgment; and it answers the purpose that the law contemplates, if it notifies the individual that a warrant of attachment has been issued against his creditor, or an owner of property in his posses- sion, 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 in- tended to be reached; the individual served, necessarily knows better than the officer can know, the property and debts in his possession, or owing by him, subject to attach- ment. [O'Brien v. Mech & Traders' F. Ins. Co., supra). 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 attachment, that it was a true copy, and that all debts, credits and affects of the attachment debtor were liable thereto, and were attached, is good. [McGinn v. Ross, 33 Super. 346). "Where the notice describes, as levied upon, ATTACHMENT. 535 a debt due to a firm ; that does not operate to attach a debt due to one member of the firm. [Greentree v. Bosenstock, 61 N. Y. 583). Where a notice at the time of the levy, was not sufficient, a new notice after a suit has been brought upon a debt levied upon, does not cure the defect. ( O'Brien V. Mech. & Traders' F. Ins. Co. 36 Super. 110 ; reversed on another point, 56 N. T. 52). 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 levy 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 attachment of the debt; and he cannot escape liability, when by his own inaction he allows the attached fund to be Temoved from his possession. It is the duty of the debtor in such case, to take immediate steps to impound the funds in his hands, and to prevent their payment by any of his agents, except to a hona 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 Park Bank, 98 N. Y. 87). Sub-division 4. — Effect 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. [Burk- hardt v. McClellan, 15 Abb. Pr. 243, note; Badgers 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. [Parker v. Smith, 2 Livingston's Law Mag. 770, Sup. Ct). Where successive attachments were delivered to the sheriff, who, 536 PBACTICE. under an earlier one, returned that he had attached all th© personal property of the defendant, and the personal property only; and under the latter, returned that he had attached all the real and personal property ; the returns are conclu- sive, and give the latter process preference as to the former, over the real property. {Learned v. Vandenburgh, 7 How. Pr. 379; afE'd 8 How. Pr. 77). As we have seen in a previous section, the levy of an at- tachment 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 pro- ceedings 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. [Gibson 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 bona fide holder. {Bills v. National Park Bank, 89 N. Y. 343^ Gibson v. National Park Bank, 49 Super. 429). The exer- cise by the seller of goods of the right of stoppage in tran- situ, 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 affidavits upon which it was granted, by the grantee of th& defendant in a creditor's action to set aside the transfer of the attached property, {Denman v. McGuire, 17 Wkly. Dig. 504). Sub-division 5. — Ceetificate and Examination. Upon the application of a sheriff, holding a warrant of at- tachment, the president or other head of an association or corporation, or the secretary, cashier, or managing agent thereof, or a debtor of the defendant, or a person holding- ATTACHMENT. 537 property, including a bond, promissory note, or other instru- ment 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 decltired, or incumbrances thereon; or the amount, nature and description of the property, held for the ben.efit 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. (^Sohieb v. Baldiiin, IS 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., 14=. N. T. 145). One who has property in his possession as receiver, cannot be compelled to make the certificate required by this section; the sheriff must rely on notice to the re- ceiver of his lien. (^Lehman v. TFVZZiams, 1 LawBuU. 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 defendant in the action. [^Almy v. Thurber^ 99 N. T. 407 ; Bank of Mut Eedemp. v. Sturgis, 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 per- ■ son making the certificate, applied to pay their debts. {^Bank of Mut. Bedemp v. Sturgis, supra). If a person to whom application is made, as prescribed in section six hundred and fifty, refuses to give such a certifi- cate ; or if it is made to appear by affidavit, to the satisfac- tion of the court, or a judge thereof, or the 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 sub- mit to an examination under oath, concerning the same. 538 PEACTIOE. The order may, in the discretion of the court or judge, direct 3,11 appearance before a referee named therein. (Co. Oiv. 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 considered as part of the moving papers, on which the order for an examination is granted, [Matter of Crary, 9 Civ. Pro. E.ep. 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 cer- tificate 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 examination is based upon the ground that no certificate has been given, it will not be granted if a defec- tive certificate had been given. [Gray v. Solis, 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. T. 52). The examination under this section may be allowed after judgment. [Smoot v. Heim, 1 Civ. Proc. Bep. 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 cer- iificate. [Ives v. Lockwood, 65 How. Pr. 518). The order for examination will not be vacated, against a debtor himself, on affidavit that the funds are held in trust, and not applica- ble 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 manner in which he holds the debt. [Baxter v. Mo. Kan. & T. B. E. 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 fur- ATTACHMENT. 539 tlier examination to determine, as lie must at his peril, ■whether the party really has property of, or is indebted to, ihe defendant. [Matter of Crary, 9 Civ. Proc. Eep. 168). The party must show his title ; and if he has papers to prove it, they must be produced if they are demanded. [Butter V. Boyd, 3 Abb. N. C. 6). 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 Crary, 9 Civ. Pro. Eep. 168). If it is alleged that the debtor has assigned to the person examined, the consideration of the assignment 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. [Glen Cove Starch Mfg. Go. V. Gotthold, 1 Civ. Pro. Eep. 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 [Buck- ingham v. White, 25 Hun, 441) ; nor can the court after an examination, by an order, compel the delivery of the prop- erty to the sheriff. The only remedy of the sheriff is an action or proceeding to reduce such property to his posses- sion, 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 O-nmer 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 at- tachment 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 destination, notwithstanding the warrant ; unless the plaintiflf, his agent or attorney, executes to the owner or master of the vessel, a written undertaking with 540 PEACTICE. sufficient sureties, in a sum specified therein, to pay Mm 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 vessel for that purpose. The undertaking must be approved, with respect to its form, the sum specified therein, and the suffi- ciency 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 judge of a superior city court within that city and county. (Co. Oiv. Proc. § 652). If the sheriff takes goods fi"om a common-carrier without giving a bond, he is a trespasser, and he is liable for the full value of the goods. [Campbell v. Conner, 70 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 information of the granting of the warrant, or where he has in any wise, connived at, or been privy to, the ship- ment thereof, for the purpose of screening them from legal process, or of hindering, delaying, or defrauding creditors. (Co. Giv. Proc. § 653) Sec. 5. Inventory. The sheriff must, immediately after levying under a war- rant of attachment, make, with the assistance of two disin- terested free-holders, a description of the real property, 'and a just and true inventory of the personal property, upon which it was levied, and of the books, vouchers and other papers taken into his custody, stating therein the estimated value of each parcel of real property attached, or of the in- terest of the defendant therein, and of each article of per- sonal property, enumerating such of the latter as are perishable. The inventory 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. Boss, 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. ATTACHMENT. 541 Mumford, 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 mistake, or correct any other mistake. {^Vanderheyden v. Gary, 38 How. Pr. 867). Upon the application of either party, and proof of the neg- lect 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. 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. (Co. Civ. Proc. § 655). The plaintiff, by leave of the court or judge, procured as pre- scribed in the next section, may bring and maintain, 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 this title, may be brought by the sheriff, to recover prop- erty 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 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 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 de- fendant. And such terms, conditions, and regulations may be imposed, in the order granting leave, as the court or 542 PKACTICE. judge thinks proper, for the due protection of the rights and interests of all persons, interested in the disposition of the proceeds of the action. (Co. Civ. Proc. § 678). Leave 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 sheriif, in a case where he might have procured leave to bring the action as prescribed in sections 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 incurred 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 applica- tion 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 ta the application or disposition of the money or property re- covered 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 Him, 138). 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. Tay- lor, 20 Wkly. Dig. 121; JBowe v. Arnold, 31 Hun, 256) ; or to prevent the distribution of the proceeds of attached prop- erty, until the conflicting rights of different claimants can be settled by the courts. [Bates v. Plonsky, 28 Hun, 112; Boioe V. Arnold, 31 Hun, 256, 257). 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. [Bowe r. Arnold, supra) . If, however, the sheriff has taken into his possession under the attachment, property ATTACHMENT. 543 capable of manual delivery, and his seizure is attacked by- one claiming as vendee of the defendant, the sheriff may de- fend by showing that the title of the vendee is fraudulent as to creditors. (Einchey v. Stryker, 28 N.Y. 4:5). Inactions brought by the sheriff to collect a debt, a prior assignment. of it, although it was made to defraud creditors is a complete defense. {Anthony r. Wood, 96 N. Y. 180, 185; Throop Grain Cleaner Co. v. Smith, 3 How. Pr. N. S. 290). The sheriff may disprove the fact of the assignment (id.); although he cannot show that it was made with intent to de- fraud creditors. [Anthony v. Wood, supra; Thurber v. Blanck, 50 N. T. 80). By section two hundred and thirty- eight of the Code of Procedure, the plaintiff in the attach- ment might bring such actions as the sheriff was authorized to bring, upon the delivery by him to the sheriff, of an undertaking as therein directed ; but section six hundred and seventy-seven of the Code of Civil Procedure, and the twa following sections, are substituted for section two hundred and thirty-eight of the Code of Procedure; and the cases which have been decided as to the effect of section two hun- dred and thirty-eight are now obsolete, and no longer im- portant. The defendant, in an action brought under these sections, cannot attack the attachment because of the insuf- ficiency of the affidavits, where the court has obtained juris- diction of the judgment debtor. {Brown v. Guthrie, 89 Hun, 29). In such an action, the defendant is not estopped from showing the actual amount due, by the statement of it. made in the certificate which he has furnished. {Almyv. Thurber, 99 N. Y. 407). An action brought under these sec- tions, is the only remedy by the sheriff to collect the debts, or to reduce the property of the attachment defendant to his possession. {Hall 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 collected by him, to answer 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 544 PBACTICE. his term of office, to pay into court the proceeds of a demand collected, or property sold; or to deposit them in a desig- nated bank or trust company, to be drawn out only upon the order of the court. (Co. Civ. Proc. § 675). The last sec- tion changes the rtde which was laid doAvn 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 attachment is vacated, or until judgment is rendered in the action, and the property seized upon the attachment has been sold upon an execution. {^JRhoadsy. 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 incum- brances, it appearing that the security to the plaintiff by the levy was sufficient 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 ex- amine 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, io examine them at reasonable times. ( Garden v. Sabey, 10 Wkly. Dig. 33; Hergman \. Dettlebach, 11 How. Pr. 46). If money or property, which has been attached, is lost dur- ing the pendency of the action without fault of the plaintiff, it is not regarded as paid to be applied upon the plaintiff's judgment, but the defendant must bear the loss. [McBride V. Farmers' Bank of Salem, 28 Barb. 476; aff'd, 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 application of the defen- dant, or of an assignee of, or purchaser 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, make an order, directing the sheriff to ATTACHMENT. 545 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 attach- ment 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 attach- ment 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 prop- erty levied upon in this state ; and the plaintiff will be allowed 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. Alden, 6 Hun, 75). If property attached, other than a ves- sel, 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 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 de- cay. {Fislc v. Spring, 25 Hun, 367; 1 Civ. Pro. Eep. 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 per- ishable: potatoes {Davis V. Ainsworth, 14 How. Pr. 346); fruit, grain, fresh fish, liquors (1 Civ. Proc. Rep. 390, note) ; 35 546- PRACTICE. kid gloves. {Flsk v. S2:>ring, 1 CIt, Proc. Kep. 378, 383). The fact that property which has been attached, is likely lo 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) 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 behaK of an- other person, as his property, the sheriff may, in his discre- tion, empanel a jury to try the validity of the claim. (Co. Civ. Proc. § 657). The manner of trying a claim of prop- erty 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 full at this place. If, by their inquisi- tion, 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 forthwith deliver them to him or his agent; unless th& plaintiff gives an undertaking, with sufficient sureties, ta indemnify 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. (Co. Civ. Proc. § 658). If the sheriff detains the property attached after a finding for the claimant, he is liable on his official bond if judgment has been recovered against him. [People v. Schuyler, 4 N. Y. 173). If the property is found to be in the defendant, the finding does 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 subscribed by the appraisers; each of whom must take and subscribe an affidavit, annexed thereto ATTACHMENT. 547 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 valuation must be immediately returned to the court or judge ; and, after an undertaking is given, or after the ex- piration of the time to give an undertaking, as prescribed in section six hundred and sixty-two, it must be delivered to the sheriff. (Co. Civ. Proc. § 661). Within two days after the valuation is returned, the claimant or his agent, may ex- ecute 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 undertaking, the claimant will establish that he was the owner of the vessel, share, or interest, at the time of the leA'y 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 warrant is vacated or annulled, to the defendant, or liis per- sonal representative. (Co. Civ. Proc. §.662). The failure to procure more than one surety to an undertaking does not invalidate the bond given under this section. ( Ward v. Whitney, 8 N. Y. 442; Co. Civ. Proc. § 811). Upon such an undertaking being executed and delivered to the sheriff, the court or judge must make an order, directing the vessel or share to be discharged from the attachment. Thereupon the sheriff must discharge the same accordingly. (Co. Civ. Proc. § 663). The court or judge may, upon the applica- tion of either party, at any time before the warrant is vacated or annulled, direct the sheriff to commence an action upon the undertaking, upon such terms and conditions, and under such regulations, between him and the applicant, as it or he deems just. And if the warrant of attachment is vacated or annulled, the defendant in the attachment, his assignee or personal representative, 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 a recovery, that he was. the owner of the vessel, share, or interest, at the time when it was attached. If judg- 548 PBACTICE. ment passes against him, the plaintiff is entitled to recover the amount of the valuation, with interest from the date of the undertaking. (Oo. 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 interest 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 sureties, 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 recov- ered for seizing the vessel, share, or interest, in an action brought against the sheriff, or the plaintiff in the attach- ment, within three months from the approval of the under- taking, if it appears therein that the vessel, share, or interest belonged, at the time of attaching it, to the person in whose 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 annulled, 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 it has been sold, only upon his showing to the satisfaction of the court or judge, that the undertaking has been discharged; 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 in- demnify the plaintiff against all charges and expenses, in consequence of the undertaking. (Co. Civ. Proc. § 670). ATTACHMENT. 549 If the undertaking of the plaintiff is not discharged, or he is not indemnified, as prescribed in article 2, of title III, of chapter VII, within one month after the defendant becomes entitled to claim the vessel, share, or interest, as so pre- scribed, 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 within that time, by or in behalf of the owner of a foreign vessel, or of a share or interest therein; the vessel, share, or in- terest, 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 owner thereof, within thirty days thereafter, it may be sold by the sheriff, under an order of the court or judge, upon the application of a joint owner, or his agent. (Co. Civ. Proc. § 673). AETICLE IV. VACATING AND MODIFYING WARRANT. SBCTION. 1. Who may move and when. 3. How motion may he made. 3. New proof. 4. When more than one motion allowed. 5. Grounds upon which the attachment will be vacated. 6. EfEect of vacating attachment. 7. Application for discharge of property. Sec. 1. Who may Move and '^V]leIl. 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 prop- erty, or the proceeds thereof, to the payment of a judgment recovered in the action, apply to vacate or inodify the war- 550 PRACTICE. rant, 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 attachment is absolute ; and suggestions, which have been made in certain cases, decided under the provi- sions 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 attach- ment, for irregularity, unless he was a party to the action. {Tracy v. First Nafl Bank of Selma, 37 N. Y. 523; Matter of Griswold, 13 Barb. 412) The Code of Civil Proce- dure has changed this rule {Jacobs v. Hogan, 85 N. Y. 243). The defendant, or all of the defendants to the action, may in all cases move to vacate or modify the warrant. If there is more than one defendant, one of several defendants may move to the extent of his interest, and when the action 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 prop- erty, subsequent to the warrant of attachment, may now move to vacate it {Steuben Co. 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 attach- ment as to that part. {Trow's Printing Co. v. Hart, 85 N. Y. 500), 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. {Euppert v. Haug, 87 N. Y. 141). The interest 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 enti- tles "him to move to vacate the warrant. {National Shoe & Leather Bank v. Mechanics'' Nafl Bank, 89 N. Y. 440). A motion which is made by a lienor, may be based upon the insufficiency 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 ATTACHMENT. 551 to vacate the warrant. The defendant is not precluded from making a motion to Yacate, because a third person claims the attached property, and has given a bond of indemnity to the sheriff upon taking the property. ( Whitelegge v. De Will. 12 Daly, 319). A defendant may move to vacate the war- rant, 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. Benham, 12 Abb. Pr. 158; 20 How. Pr. 343; Brewer v. Tucker, 13 Abb. Pr. 76). It is not necessary for the de- fendant to put in a general appearance in the action before making the motion. [Manice 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 Shoe & Leather B'k v. Mechanics^ Nafl Bank, 89 N. Y, 440), A motion may be made by the defendant, although he has given an undertaking to obtain the release of the property, under section six hundred and eighty-eight of the Code of Civil Procedure (Garbutt v. Hanjf, 15 Abb. Pr. 189) ; or although judgment has been rendered in the action, and execution issued upon it. [Bowen v. First Nafl Bank, 34 How. Pr. 408 ; Parsons v. Sprague, 3 Civ. Pro. Hep. 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 Siundred and eighty-two means an actual and real applica- tion of the property or its proceeds, as distinguished from a -constructive one. While the property remains, before it has been actually transferred to the plaintiff, or in case ot 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 dis- charging 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 section was aimed; and it does not exist where there is 552 PEACTICE. merely a levy, under which neither the property, nor its pro- ceeds, have actually and in fact passed to the creditor. ( Woochnansee v. Rogers, 82 N. Y. 88). A naotion to vacate a warrant upon the ground of irregularity, 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 execution 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. Bartlett, 3 Abb. Pr. N. S. 444). Sec. 2. Ho'W 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 " de- fendant " used in this section, designates the party moving to vacate the warrant, whether he is a party or lienor. {Steuben Co. Bank v. Alberger, 75 K 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 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 section: 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 ATTACHMENT. 553 the application shall be heard ex parte, or upon notice. [Buppert V. Haug, 87 N. Y. 141, 144). 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. Tiwker, 13 Abb. Pr. 76; Trow's Printing Co. v. Hart, 85 N. Y. 500). "Where the motion is made solely upon the papers upon which the attachment 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). In a case, where a judge, after granting an attachment, made an ex-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 nunc pro tunc, it was held that the judge had no right to allow such 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. {Suther- land 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. (^i&6e v. TFe/raore, 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 ex- cuse his delay in moving, it is new proof, and the plaintiff will be permitted to support the warrant of attachment by new affidavits. {Godfrey v. Godfrey, 75 N. Y. 434; Ives v. Holden, 14 Hun, 402). Although, upon a motion made upon the papers, the plaintiff will not be permitted to intro- duce new proof, or to amend the affidavits upon which the 554 PEACTICE. attachment was issued, the court may, in its discretion, per- mit him to amend the warrant of attachment. [Kibbe v. Wetmore, 31 Hun, 424). The second class of motions, pro- vided 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 circumstances they ■ may be made to the court at special term. Sec. 3. 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 affi- davit, on the part of the plaintiff, tending to sustain any ground for the attachment recited in the warrant, and no other, unless the defendant relies upon a discharge in bank- ruptcy, or upon a discharge or exoneration, granted in insol- vent proceedings ; in which case the plaintiff may show any matter, in avoidance thereof, which he might show upon the trial. (Co. Civ. Proc. § 683). Any proof, however unim- portant, presented by the defendant for the purpose of attack- ing 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 con- tained 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. [Godfrey v. Godfrey, 75 N. Y. 434). Where the attachment was issued upon affi- davits 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 affidavits upon a motion, the objection that the de- fendant's affidavits are not new proof within this section, must be taken at- the hearing, or it is waived. [Godfrey v. Godfrey, 75 N. T. 434). It was held in Yates v. North (44 N. Y. 271), which was a case decided under the Code of Procedure, that the plaintiff in his new proof, was confined to answering the allegations of the defendant's affidavits ; but ATTACHMENT. 555 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 answering the affidavits of the defend- ant ; 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 warrant, and no other. This provision of section six hundred and eighty-three, has received a very broad construction. On such a motion, where the defend- ants 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 fraud- ulently contracted, and that he was therefore at liberty to bring his action, as though no credit had been given. [Vietor V. Henlein, 34 Hun, 562). Where an attachment was issued in an action to recover money loaned, and it did not appear what part of the loan was due at the commence- ment of the action, and the affidavits on which the defend- ant 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. {Coffiyi v. StUt, 5 Civ. Proc. Eep. 261). In the case of Kihhe v. Wetmore (31 Hun, 424), the attachment was issued upon the sole ground of the defendant's non- xesidence ; 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 opposing 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 affidavits 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 affidavits ; although no particular stress seems to have been laid upon that point by the judge in delivering the opinion. On the hearing of a motion to vacate a warrant of attach- ment, the plaintiff may produce affidavits in support of it. which had been made in another action by different plain- tiffs, against the same defendants, where it appears that such copies were used because of plaintiff's inability to 556 PKACTICE. obtain affidavits in such action from the person who had made them in the other action. ( Whitney v. Hirsch, 39 Hun, 325). Sec. 4. AVhen more than one Motion Allo'wed. 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 Oivil 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). A lienor, who has moved to vacate the attachment as to personal property, upon the ground that it was an obstruction to the enforcement of a judgment and execution, and has been defeated upon that motion, may afterwards make a second motion to vacate the same attach- ment, 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, although he might have moved on the second ground, when he made the first motion. {Sieuhen Co. Bank v. Alberger, 88 K Y. 274). Sec. 5. Grounds npon -which the Attachment -will he Vacated- An attachment is a provisional remedy of a very severe nature, and it 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 affidavits utterly fail to show some fact, which is essential to authorize the granting of the warrant. [Allen v. Meyer, 7 Daly, 146; 73 N. Y. 1; Steuben Co. Bank v, Alberger, 78 N. Y. 252). Upon such a motion, the warrant will be vacated on a com- plaint containing several causes of action, upon one of which an attachment cannot be granted, although there are joined ATTACHMENT. 557 ^ith it other causes of action, upon which it can be granted. {Union Min. Co. v. RaM, 9 Hun, 208). The court will not pass upon the merits of the action, on a motion to Tacate the attachment, if it is possible to avoid it {Iselin v. Port Royal R. R. Co., 6 Wkly. Dig. 130) ; but every allegation on which the attachment is granted, may be disproved upon a motion. {Boscher v. Roullier, 4 Abb. Pr. 396). When- ever any essential fact is successfully controverted, the attachment will be vacated. [Van Allen v. Sampson, 5 Wkly^ Dig 288). Where it appears by the affidavits sub- mitted on the motion, that the plaintiff could not have known the existence of certain facts which he swears to, the attach- ment will also be vacated. ( O'Reilly v. Freel, 37 How. Pr. 272). Where 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-resident, will not be vacated, because the property which has been attached under it belongs to a third person. {McKinlay v. Fowler, 67 How. Pr, 388). The objection that the cause of action is barred by the statute of limitations, cannot be taken by affi- davits, 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 part- nership is insolvent, and that for that reason the defendant had no interest in the property. {Black v. Rodger, 2 Law Bull. 12; Buckingham v. Swezy, 25 Hun, 84). Sec. 6. £ffect of Vacating the Attachment. Where the attachment has been vacated for irregularity, or for invalidity, and property has been levied upon and taken under it, the plaintiff is liable as a trespasser. {Lyon V. Yates, 52 Barb. 237; Kerr v. Mount, 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 •558 PEACTICE. 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 re- fuses to do so, the obligors on the undertaking given to indemnify him on making the levy are not liable for a judg- ment recovered against him for such refusal. [Bowe v. Wilkins, 11 East. Eep. 985). Vacating the attachment on affidavits, 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 attach- ment must have been vacated because the court had na jurisdiction to grant it, or the order should declare that th© undertaking is void. [Bildersee v. Aden, 8 Abb. Pr. N. S. 171; S. C. 12 Abb. Pr. N. S. 324). Sec T. Application for Discharge of Property. Sub-division 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 dis- charge the attachment, as to the whole or a part of the property attached. (Co. Civ. Proc. § 687). The defend- ant only can move for the relief provided for in this section. Where there is more than one defendant, and less than all desire to join in the application, 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 {Boyal Ins. Co. v. Noble, 5 Abb. Pr. N. S. 54) ; but this rule has been changed by the section above quoted. The motion cannot be made after final judgment [Spencer v. Rogers Loco. Works, 13 Abb. Pr. 180; Barsons v. Sprague, 3 Civ. Proc. Kep. 290) ; nor during the pendency of an appeal from the judgment. ( Wright v. Rowland, 4 Keyes, 165). Where an application is made as prescribed in sec- tion six hundred and eighty-nine, at least two day's notice of it, with a copy of the affidavit, must be served on the plain- ATTACHMENT. 559 tiff's attorney, who may oppose the application by proof, by affidavit, that one or mote of the other defendants own or have an interest in the property. (Co. Civ. Proo, § 689). Wliere the application 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 present 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, con- tain directions as to the manner of the re-delivery of the property. {Ellsworth v. Scoti, 3 Abb. N. C. 9). Sub-division 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 judgment 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 of the defendant, equal to the appraised value, according to the inventory, of the property attached; or, if the application is to discharge the attach- ment, as to a part only of the property attached, to the appraised value of that portion. (Co. Civ. Proc. § 688). An undertaking given under this section should not be ac- knowledged, nor should the sureties justify before the de- fendant's attorney; and if they do so, the undertaking wiU. not be approved. {Bliss v. Molter, 8 Abb. N. C. 241). No consideration is necessary to uphold the undertaking which is given under this section. {Bildersee v. Aden, 62 Barb. 175). One undertaking can not be given to discharge two 360 PRACTICE. attachments 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 judgment, which may be recovered against any of the defendants in the action, unless the applicant makes proof, by affidavit, to the satis- faction of the court or judge, that the property, with respect to which the application is made, belongs to him separately ; in which case, the undertaking must provide for the pay- naent of any jtidgment, which may be recovered in the action against the applicant, either alone or jointly with any other defendant. (Co. Civ. Proc. § 689). An undertaking 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. There- upon the sureties must justify, upon the like notice, and in like manner, as bail upon an arrest; or a new undertaking must be given, with new sureties, who must justify in like manner. 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 can not deny the issue of the warrant, or that the grounds of attachment which are recited in the attachment, actually ex- ist. [Higgins v. Healy, 47 Super. 207). The sheriff is responsible 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 prescribed in section six hundred and ninety, or they, or the new sure- ties, justify. (Co. Civ. Proc. § 691). It is the duty of the sheriff to retain possession of the property until the suffi- ATTACHMENT. 561 cienoy 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 Waterbury Button Co., 15 Abb. Pr. N. S. 205; 46 How. Pr. 528). Sub-division 3. — ^Discharge of Vessels Undee the At- tachment. Sections six hundred and eighty-seven to section six hun- dred and ninety-one both inclusive, are applicable where a vessel, or a share, or interest therein, is attached. If it is necessary to enable the defendant to discharge the attach- ment, the court or judge may, by order, stay any proceed- ings specified in article second of title III, chapter VII of the Code of Civil Procedure, relating to the execution of the warrant of attachment pending the action. (Co. Civ. Proc. § 692). Sub-division 4. — Application by Partners to Discharge Attachment. If a warrant of attachment is levied upon the interest of one or more partners, in goods or chattels of a partnership, the other partners who are not defendants in the action, or any of them, may at any time before final judgment, apply "to the judge who granted the warrant, or to the coiu't, upon an affidavit showing the facts, for an order to discharge the attachment, as to that iaterest. (Co. Civ. Proc. § 693). Upon such an application, the applicant must give an un- dertaking, with at least two sufficient sureties, to the effect "that they will pay to the sheriff, on demand, the amount of any judgment, 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 exceeding 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 36 562 PRACTICE. virtue of the attachment, as fixed by the court or judge ; i£ the value, in the opinion of the court or judge, is uncertain, the sum shall be such as the court or judge determines. (Go. 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 plain- tiff shall have notice of the application for discharge of property under this sabdivision, 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). ARTICLE V. BEGULATIONS WHEEE THEBE ARE TWO OR MORE WARRANTS AGAINST THE SAME DEFENDANT. SECTION. 1. Levy under a junior warrant. 3. Attachment of foreign vessel under junior warrant. 3. Rights of junior plaintifl as to actions. 4. Rights of third and other attaching creditors. Sec. 1. liBTy Under a Junior AVaxrant. Where a domestic vessel, or a share or interest therein, has been attached, and afterwards released, as prescribed in. title III of chapter YII of the Code of Civil Procedure, or where the personal property of a partnership, of which the defendant was a member, has been attached, and the attach- ment- afterwards discharged, upon the application of another partner, as prescribed in said title; another warrant against the same defendant, 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). ATTACHMENT. m^ Mr. Throop says in his notes to this section, that the ex- emption of a domestic vessel, and of partnership property from a second levy, rests upon the ground that the under- taking for their 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 preferences, 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 execu- tions, against the property of the same .defendant, are deliv- ered to the sheriff of the same county, to be executed. (Co. Civ. Proc. § 697). 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 second of title III, chapter VII of the Code of OivU Procedure, and the plaintiff, in the first warrant of attachment, 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 execution, an extension, of not more than three days thereafter, within which to furnish an un- dertaking in all respects like the one to be furnished by the first plaintiff. 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 proceedings relating thereto, as if his was the first warrant. (Co. Civ. Proc. § TOl). 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 reliaase, it shall not be again attached, under warrant against the same defendant, which had been delivered 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 attached, under a subsequent warrant against the same defendant; in 564 PEACTICE. 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 proceedings relating thereto, as if the war- rant, under which it was attached, was the first warrant. (Co. Civ. Proc. §702). Sec. 3. Rights of Junior Plaintiff as to Actions. Where the plaintiff in a warrant of attachment has com - menced an action, in the name of himself and the sheriff jointly, as prescribed in title III, chapter VII of the Code of Civil Procedure, a plaintiff in a junior warrant may apply to the court or judge, to direct as to the conduct, discontinu- ance or settlement of the same, or to impose terms, condi- tions, and regulations as to the continuance thereof, in the interest of the applicant; and such order may be made thereupon as justice requires. If the first warrant is vacated, ■or the attachment thereunder is released or discharged, with- out affecting the cause of action prosecuted by the plaintiff therein and the sheriff jointly, the plaintiff in the warrant, jiext 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 war- rant, 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 warrant neglects or refuses to be joined with the sheriff in such an action, or to comply with the terms, conditions and regula- tions 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 warrant, leave to bring and maintain such an action, in the name of himself and the sheriff jointly, with lite effect, as if his was the first warrant. (Co. Civ. Proc. § 704). ATTACHMENT. 565 Sec. 4. Rights of Third and Other Attaching Creditors. Where there are more than two warrants of attachment against the same defendant, the plaintiffs in the third and each subsequent warrant, have, according to their respective priorities, the same rights and privileges, as against the plaintiffs in all senior warrants, which the plaintiff in the second warrant has, as against the plaintiff in the first, and are subject to the same duties and liabilities ; except that a second extension of the time, within which to furnish an un- dertaking to prevent the release of a foreign vessel, or a share or interest therein, shall not be granted. And the plaintiffs in two or more junior warrants of attachment, may by agreement among themselves, take jointly, and for their common benefit, any proceeding permitted by title III, of chapter YII of the Code of Civil Procedure to be taken, by the plaintiff in a second or subsequent warrant of attach- ment ; provided that it does not interfere with the preferen- tial or other rights of an intermediate plaintiff. (Co. Civ. Proc. § 705). AETICLE VI. PEOCEEDINGS AFTER JUDGMENT. SECTION. 1. Execution. 2. Judgment, how enforced. Sec. I. £zecatio;a. Where a levy, under a warrant of attachment in an action, had been made, an execution against property, upon a final judgment in favor of the plaintiff therein, recovered after the expiration of the term of office of the sheriff who 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 shoidd be directed to him as, late sheriff. {McKay v. Harrower, 27 Barb. 463). The execution should recite the attachment and the proceedings under it, and should direct the sale of the prop- erty as provided in section thirteen hundred and seventy of 566 PKACTICE. the Code of- Civil Procedure, to which reference is made. The requirements of this section are peremptory, and a gen- eral execution issued to the sheriff, where a levy has been made under an attachment, is irregular and void. (Place V. Biley, 32 Hun, 17; aff'd 98 N. T. 1). If the defendant dies, after the allowance of the wairant, but before a judg- ment, the right to order an execution 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). See. 2. Judgment, Ho-w 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 attached by him, and all proceeds of all sales of perishable property, or of any vessel, or share, or interest therein, or animals, sold by him, or of any debts, or other things in action, col- lected 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 corpora- tion, which is in terms negotiable, 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 pro- ceeds of that property are insufficient to satisfy the judg- ment, and the execution 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, appli- cable to the execution, are insufficient to satisfy the judg- ment, 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 notice was filed, or ATTACHMENT. 567 at any time aiterwards, before resorting to any other real property. 3. If personal property attached belonging to the defen- dant, has passed out of the hands of the sheriff without having been sold or converted into money, and the attach- ment has not been discharged as to that property, he must, if practicable, regain possession thereof; and, for that pur- pose, he has all the authority which he had, to seize the same under the warrant. A person who willfully conceals or with- holds 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 prosecute any un- dertaking, which he has taken in the course of the proceed- ings, 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 affi- davit, 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, show- ing 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 manner, as it thinks proper. Notice of the application must "be given to the defendant's attorney, if the defendant ap- peared in the action. If the summons was not personally 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 application without notice. (Co. Civ. Proc. § 708). In ao action against a foreign corpora- iion which does not appear, 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 Fon-du-lac, 56 Jiow. Tr. 449). Where a defendant -who has not appeared, is ^ a non-resident of the state, or a foreign corporation, and the summons was served without 568 PEACTICE. the state, or by publication, pursuant to an order obtained for that purpose, as prescribed in chapter V of the Code o£ Civil Procedure, the judgment can be enforced only against the property which has b^ea levied upon, by virtue of the warrant of attachment, at the time when the judgment is en- tered. But this section does not declare the effect of such a judgment, with respect to the application of any statute of limitation. (Co. Civ. Proc. § 707). This section incor- porates into the statute, the same rule which has been estab- lished by the supreme court of the United States. {Pennoyer V. Neff, 95 U. S. 714). AETICLE VII. PROCEEDINGS AFTER WARRANT HAS BEEN VACATED, OR ATTACH- MENT DISCHARGED. Where a warrant of attachment is vacated or annulled, or an attachment is discharged, upon the application of the de- fendant, the sheriff must, except in a case where it is other- wise 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 ex- penses, legally chargeable by the sheriif, all the attached personal property remaining 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. § 709). Where the sheriff is required by title III of chapter VII of the Code of Civil Procedure, to deliver at- tached property, or the proceeds thereof, to the defendant, he must also deliver to him, unless othervrise specially- directed by the court or judge, all books of account, vouchers, evidences of debt, muniments of title or other papers, relat- ing to the property, either real or personal, or to its proceeds ; together with all undertakings relating thereto, which he has taken in the course of the proceedings, and which have not been fully satisfied ; except an undertaking given by the defendant, upon the discharge of property. He must also deliver a written assignment duly acknowledged, of each undertaking so delivered, and of each other instrument, to which the defendant is thus entitled, an assignment of which. ATTACHMENT. 569' is necessary to perfect or protect the defendant's title thereto. The defendant must also, upon his own appli- cation only, be substituted in place of the sheriff, or the sheriff and the plaintiff jointly, in an action brought as pre- scribed in title III of chapter VII 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 property attached and not disposed of, and an undertaking, or other instrument to which he is thus en- titled, are the same as those of the sheriff while the warrant was still in force, except where his rights are specially de- fined or regulated by law. (Co. Oir. Proc. § 710). At any time after the warrant of attachment has been vacated or annulled, or the attachment has been discharged as to real property attached, the court may, in its discretion, upon the application of any person aggrieved, and upon such notice as it deems just, direct that any notice, filed for the purpose of attaching the property, be cancelled of record by the clerk of the county where it is filed and recorded. The cancella- tion must be made by a note to that effect, on the margin of the record, referring to the order; and, unless the order i& entered in the same clerk's office, a certified copy thereof must, at the same time be filed therein. (Oo. Civ. Proc. § 711). Where a warrant of attachment has been vacated or annulled, the sheriff must forthwith file in the clerk's, office, the walrrant, with a return of his proceedings thereon. Upon the application of either party, and proof of the sheriff's neglect, the court may direct him so to do, forth- with, or within a specified time. (Co. Civ. Proc. § 712). CHAPTER Xyil. BECEIVEES AND OTHEB PROVISIONAL BEMEDIES. ARTICLE I.— Receiver. ARTICLE II. — When and in what cases appointed. ARTICLE III. — Rights and liabilities of receiver. ARTICLE IV. — Receivers of corporations. ARTICLE V. — Deposit, delivery, or conveyance. ARTICLE VI.— General provisions. AETICLE I. EECEITEE. 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 receivership. 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 view to the equitable rights of all parties interested, 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 parti- cular parties who procured his appointment, or of their counsel, he is bound in all cases of doubt, and especially of conflict of interest or 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 receiver is appointed in a suit, he is appointed for the benefit of such of the parties as it shall afterwards appear were entitled to ihe funds in controversy ; but not for the benefit of strangers io the suit. {Howell v. Ripley, 10 Paige, 43). It may be EECEIVERS AND OTHER PROVISIONAL REMEDIES. 571 stated as a general rule that any person of full age who pos- sesses the requisite ability, and can give the necessary security, may be appointed a receiver, unless he is in some way specially disqualified from acting in such capacity. By statute, trust companies may be appointed receivers by a court having jurisdiction, and they need not give security, xinless specially required to by the court. (Laws 1885, Ohap. 425). Where a general agent was specified in an agreement as the party to close up the business, unless ob- jected to by both parties ; he was held to be a proper re- ceiver, as against the objections of one of the parties. [Hanover F. Ins. Co. v. Oermania F. Ins. Co., 33 Hun, 539). On a voluntary dissolution, a stockholder may be appointed receiver (Jn 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 receiver; although there should be special reasons shown to warrant such an appointment. [In Re Bowery Bank, 16 How. Pr. 56). A creditor may be appointed a receiver of his debtor's property. (^Chamberlain v. Greenleaf, 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 co\irt within either of the coun- ties of New York or Kings, 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 proceeding, other ihan parties in default for failure to appear or to plead. (Co. Civ. Proo. § 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. Taylor, 40 Hun, 56). A non-resident, or a temporary resi- dent is not a competent person to be appointed receiver. [Chamberlain Y. Greenleaf, 4 Abb. N. 0. 92). An officer of an insolvent bank is not to be appointed its receiver. (Atty. Gen. v. Bank of Columbia, 1 Paige, 511; aff'd. 3 Wend. 588). The court will not appoint a party to the ac- 572 PRACTICE. tion as a receiver, except under special circumstances [Fenn V. Bolles, 1 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), ^here 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 respon- sibility. {O'Mahoney v. Belmont, 62 N. T. 133). Any person having an interest, and feeling that he would be in- jured, 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. (Jn Be Bowery Bank, 16 How. Pr. 56). Sec. 3. Soalile Receivers. In view of the fact, that the appointment of a receiver has for its main, if not its sole object, the preservation of the fund, the question whether he shall be appointed upon the motion, of one plaintiff or another, (each seeking to acom- plish the same result, the preservation of the fund and its ultimate distribution among the creditors) ceases to be of any importance. {Lottimer v. Lord, 4 E. D. Smith, 183). It is not the practice to appoint separate receivers of the same property, in different suits against the same defendants ; but the proper course is to extend the receivership in the first suit to the second, subject to the legal and equitable claims of all parties. The rights of the parties in each suit are substantially the same as if different persons had been appointed at the several times when such receivership was granted or extended. {Howell v. Eipley, 10 Paige, 43). The fact that a receiver of the judgment debtor's property has already been appointed in proceeding supplementary to execution, does not bar an application for a receiver in a judgment creditor's action ; and does not make it necessary that the same receiver should be appointed, in granting it. {State Bank v. QUI, 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 EECEIVEES AND OTHER PROVISIONAL REMEDIES. 573 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 i authority under which the funds in controversy are held. And when the prior receivorships have become /mwc/ms officio, such subsequent receiver takes the fund, or any remaining portion of it, or so much of it as is undisposed of by the court. {Bailey v. Belmont, 10 Abb. Pr. N. S. 270; O'Mah- oney v. Belmont, 62 N. Y. 133). Where there is a contro- versy among creditors regarding 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 re- ceiver, or the creditors he represents are made parties, and have an opportunity to be heard. {Bank of Mut. Bedemp. V. Sturgis, 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 Bank 53 Barb. 412). Sec 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 Eobt. 476). The appointment of a receiver, like other provisional remedies, is discretionary with the court, and should be governed by the circumstances of each case. [Fellows V. Heermans, 13 Abb. Pr. N. S. 1). An order appointing a receiver is not appealable to the court of ap- peals, if there was power in the court below to make the ap- pointment, (id; Denike v. iV". Y. & B. Lime etc. Co., 80 N. y 599). But an appeal may always be taken to the general term. (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 appointment, or to report the facts to the court, for its action there- 574 PRACTICE. upon. And where according to tlie practice of the court of chancery, on the thirty -first day of December, eighteen hun- dred and forty-six, a matter was referrable to the clerk, or to a master in chancery, a court having authority to act thereupon, may direct a reference to one or more persons designated in the order, with the powers which were pos- sessed 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. Schlieper, 7 Abb. Pr. 92). Where the reference is to report a proper person to be appointed, an appointment, by the court is necessary; but where the reference is to ap- point a receiver and take security, the appointment by the referee needs no confirmation. ( Jw Be Eagle Iron Works, 8 Paige, 385). A receiver is not usually appointed until after the service of the summons {^McCarthy v. Peake, 9' Abb. Pr. 164) ; and not while the summons is publishing, except under special circumstances [Sandford v. Sinclair, 3- Edw. 393) ; and an order to show cause why a receiver should not be appointed, served before the action is com- menced, 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 application will be- granted upon new evidence in support of the appKcation^ [Devlin Y. Hope, 16 Abb. Pr. 814). Consent to the appoint- ment of a receiver is a waiver of all irregularities in such, appointment. (Powell v. Waldron, 89 N. Y. 828). The court may, at any time before the appointment of a receiver, which has been directed, is consummated, revoke such ap- pointment, and appoint another. [Siney v. N. Y. Con. Stag& Co., 18 Abb. Pr. 435). EECEIVEES AND OTHEB PBOYISIONAL REMEDIES. 575 AETICLE II. ■WHEN AND IN WHAT OASES APPOINTED. SECTION. 1. Before final judgment. 3. By or after final judgment. Sec. 1. Before Final Judgment. SuB-DiTisiON 1. — ^In What Cases, In addition to the cases, where the appointment of a re- ceiver is specially provided for by law, a receiver of prop- erty, which is the subject of an action, in the supreme court, a superior city 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 adverse party, ftnd 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 exclusive, but it is per- missive and declaratory; and the courts still retain the gen- eral power of appointing receivers 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 exercise 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 construc- tion, it was held that the court has still the power to appoint a receiver of the rents and profits of mortgaged property, although such receiver was not provided for in the mortgage. (HoUmbeck v. Donnell, 94 K Y. 342). The word property as used in the section above quoted, includes the rents, pro- fits, or other income, and the increase of real, or personal property. (Co. Civ. Proc. § 713). The court will not in- terfere 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 ; and never where irreparable S76 PKACTICE. injustice might follow. The exercise of the power, there- fore, 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 person 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. {^Good- year V. Beits, 7 How. Pr. 187). Where a defendant has absconded to prerent 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 receiver may be appointed, under this sec- tion. {People V. Norton, 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 insol- vency, if the receiver is not appointed. {Gregory v.. Gregory, 33 Super. 1). 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 persons not within the jurisdiction of the courts of this state {Field v. JRipley, 20 How. Pr. 26) ; nor in actions to recover real property. Unless equitable grounds appear, entitling plain- tiff to rents and profits as such, or unless sequestration is necessary to his protection {People v. Mayor etc., 10 Abb. Pr. Ill) ; nor in an action to recover the possession of real estate, from one in possession under a contract of sale ( Gurn- sey V. Powers, 9 Hun, 78) ; nor in an action to stay waste. {Bohin'son v. Preswick, 3 Edw. 246). It was held in Wehh V. Van Zandt (16 Abb. 314, n.), that in an action to forclose a mechanic's lien, a receiver of the rents and profits might be appointed pendente lite; but in the case of Meyer v. Seebald (11 Abb. Pr. K S. 326, n.), such appointment was held to be improper ; while in the stiU later case of Gallag- her V. Karns (15 Wkly. Dig. 217), decided in the general tierm, it was held that under chapter four hundred and forty, laws of 1880, such an appointment is proper, and a receiver RECEIVERS AND OTHER PROVISIONAL REMEDIES. 577 pendente lite may be appointed in such an action. Before ■fche appointment of a receiver, there should appear some real necessity for it; and it is not sufficient, in the application for a receiver of the property of a partnership, to simply show that the partners quarreled between themselves. [McElvey V. Lewis, 76 N. Y. 373). Nor can one partner as plaintiff, have a receiver of the partnership property appointed, where his right does not clearly appear, and where the fund is not shown to be in danger. [Goulding v. Bain, 4 Sand. 716). The court may, by an order, or by the interlocutory or final judgment in the action, appoint a receiver of any or all of the property of the judgment debtor; and may direct the judg- ment 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 paper, 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 creditor's suit after the defendant's death where the • action was be- gun before defendant's death (^Brown v. Nichols, 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 un- til the remedy at law has been exhausted. i^Starr v. Rathhone, 1 Barb. 70). When a receiver has been ap- pointed in such an action, the assignment to him becomes void, as soon as the object of the suit is accomplished; and the property reverts to the grantor without a re -assignment. [Anderson v. Treadwell, 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, pending a pro- ceeding to remove the assignee [Manning v. Stern, 1 Abb. N. 0. 409) ; of the property in the hands of a trustee, where he is charged with violating his trust [Boyd v. Murray, B John. Oh. 48) ; 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 (Whitewright v. Stimpson, 2 Barb, 379) ; in an action to have dower set off [Egan v. WalsJi., 37 578 PEACTICE. 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 course to appoint a receiver upon the application of either partner [Marten v. Van Schaick, 4 Paige, 479) ; and in such action to dissolve a partnership, the appointment of a re- ceiver is proper, unless special circumstances are shown to the contrary. [Llorens v. Costa, 5 Wkly. Dig. 484). A re- ceiver will not be appointed of a subsisting partnership, 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. [Boydy. Murray, 3 John Oh. 48). In all cases of fraudu- lent trusts, the appointment will be made on the application of a judgment creditor. [Chautauqua Co. Bank v. White, 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 p;"operty from serious loss, the court will ap- point a receiver during the pendency of the action 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 com- mencement of the action. [Bowers v. Bur ant, 2 N. T. S. Bep. 127). Receivers in mortgage cases are allowed with great caution ; only where the security is actually inadequate, or where the rents are pledged for the debt [Shotwell v. Smith, 3 Edw. 588); and it must clearly appear that the premises are an inadequate security for the debt, and that the mortgagor or other person personally liable is insolveiit(^!(?-- lingame v. Parce, 12 Hun, 144) ; it must also appear that the debt is due, unless the rents and profits are specifically pledged. [Bank of Ogdenshurgh \. Arnold, 5 Paige, 38). So, where the whole amount of the mortgage debt is not due, but a portion thereof is due, and the property is so circum- stanced thait a parcel of sufficient value to satisfy the amount due can be separately sold, the receivership shoidd be ex- tended to such parcel only. [Hollenheck v. Donnell, 94 N. T. 342). A mortgagee has no claim as such to the receipts BECEIVEBS AND OTHER PEOTISIONAL REMEDIES. 579 of the rents and profits of the mortgaged property ; but in a proper case lie may have a receiyer of the rents etc., ap- pointed, who will be entitled to collect and apply them in reduction of the mortgage debt; and in such a case, the re- ceiver may be authorized to collect such rents as have there- tofore 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. ( Wyclcoff v. Scofield, 98 N. T. 475). The appoint- ment 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. {Eider y. Bagley, 84 N. Y. 461). In case of a mortgage on chattels, which chattels are held by the mortgagee, a re- ceiver on the application of the mortgagor will only be ap- pointed where there is a pressing necessity for it, as where the mortgagee is irresponsible, 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, {Quinn v. Brittain, 3 Edw. 314). In an action for the foreclosure of a contract for the sale of land, brought against the original purchaser and his grantee of a portion of the premises, who has made improvements thereon, a receiver is properly ap- pointed 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. {G'Mahoney 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 appointment 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 appointment of a receiver, and a sale of the partnership effects. {Kapp v. Barthan, 1 E. D. Smith, 622). Where the estate of a decedent has been brought under the jurisdiction of the supreme court, or of a superior city court, by an action for partition or distribution. 580 PEACTICE. or for the construction or establisliment 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 inter- ested, as the court directs. (Co. Civ. Proc. § 1869). In cases of trust, where the fund is in danger, a receiver may be demanded as a matter of right {^Jenldns v. Jenkins, 1 Paige, 243) ; as in the case of the fraud, misconduct or negligence of an executor, administrator or trustee (id. ; Middleion v. Dodswell, 13 Ves. 266), or of his insolvency; unless it clearly appears to have been the intention of a tes- tator 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 execu- tors upon slight grounds; but in the case of an administra- tor, who is a creation of the court, even slight grounds of apprehended danger will bo ground for the court's selecting a more suitable person to have charge of the fund. [Mid- dleion V. Dodswell, 13 Ves. 266). Where the property of infants, lunatics, or other persons wholly, or partially in- competent 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 ap- pointed; 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 appointed, until the question of lunacy is determined. [Matter of Heli, 3 Atk. 634). Sub-division 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 RECEIVERS AND OTHER PROVISIONAL REMEDIES. 581 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 re- quest for such an appointment. {Dusenbury v. Dusenbury, 2 McG. Civ. Pro. E. 91). The facts are what give the court the right to appoint, and these must be stated in the moving papers; and if the defendant's answer contains allegations which show that plaintiff 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 practice on such mo- tions is stated in a former chapter on Motions and Orders. Notice of an application for the appointment of a receiver, in an action before final judgment therein, must be given to the adverse party, unless he has failed to appear in the ac- tion, 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 discretion, appoint a tem- porary receiver, to receive and preserve the property, with- out notice, or upon a notice given by publication, or other- wise, as it thinks proper.' (Co. Civ. Proc. § 714}. Where an advertisement for defendant's appearance is running, a re- ceiver should not be appointed except under special circum- stances. [Sandford v. Sinclair, 3 Edw. 393). By the section above quoted, it is necessary to give notice of the application in every case, except the one specified in the sec- tion; hence the decisions in a number of cases before the code, that a receiver might under certain circumstances be appointed ex parte, are no longer useful as authority; ex- cepting that it has been held in a late case, 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 partner. {Alford v. Ber- kele, 29 Hun, 633). In an application to dissolve an express 582 PRACTICE. company, where the plaintiff moved on 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 be- yond the possibility of doubt, that in the final decision of the cause, the relief prayed for in the complaint must be granted. ( Waterhury v. Merch. Un. Ex. Co., 50 Barb. 157). See. 2. By or After Final Judgment. In addition to the cases, where the appointment of a re- ceiver is specially provided for by law, a receiver of prop- erty, which is the subject of an action in the supreme court, a superior city court, or a county coxirt, may be appointed by the court, by or after the final judgment, to carry the judgment into effect, or to dispose of the property, accord- ing 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 re- ceiver in supplementary proceedings; that subject will be treated in connection with those proceedings, in another volume. A receiver may be appointed pending an appeal from a judgment, on appellant's motion, although the property re- mains in his possession at the time of the application, but which by the judgment appealed from was awarded to the respondent. [Fellows 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. [LentY. McQueen, 15 How. Pr. 313; Webb 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. [Sheridan V. Jackson, 5 Wkly. Dig. 443). But pending the action of ejectment, the court will not appoint a receiver of the rents and profits {Thompson v. Sherrard, 35 Barb. 593); except where such appointment is necessary to protect the property, EECEIVEKS AND OTHER PROVISIONAL REMEDIES. 583 or its rents and profits, pendente lite {People ex rel v. Mayor etc., 10 Abb. Pr. Ill); such receiver cannot usually be appointed until after judgment. {Burdell v. Bur dell, 54 How. Pr. 91). AETICLE III. RIGHTS AND LIABILITIES OP RECEIVERS. eECTION. 1. Security. 2. What passes to receiyer. 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 proceeding, 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 court, or, where the order was made out of court, the judge making the order, by or pursuant to which the receiver was ap- pointed, 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 condition. But this section does not apply to a case where special provision is made by law, for the security to be given by a receiver, or for increasing the same, or for removing a receiver. (Co. Civ. Proc. § 715). The security required from receivers of corporations will be treated in article IV of this chapter, post. 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 directed by the court. (Laws 1885, Chap. 425). 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 theretofore removed. ( Thomson v. McGregor, 45 Super. 197). Where one of the sureties of 584 PRACTICE. the receiver became insolvent, but it appeared tliat the prop- erty in the receiver's hands is small, and that the remaining surety is responsible, a motion to compel new sureties was denied; and it was held, on appeal, to be a proper exercise of discretion. [Haulenbeck 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, aff'd 76 N. Y. 596). Sec. 2. What Passes to Receiver. A receiver, appointed pursuant to an order or a judgment, in an action in the supreme court, a superior city 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, res- pecting 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 appoint- ment of a receiver is followed by consummation, by giving the necessary security, the estate of the judgment debtor vests in the receiver, as of the date of the order '( Wilson v. Allen, 6 Barb. 542) ; 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) ; and 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 obtained, and meanwhile the defen- dants brought a suit against the same corporation, and had another receiver appointed ; and the order in the first action was subsequently affirmed, and the receiver thereunder was appointed; 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 RECEIVEES AND OTHER PROVISIONAL REMEDIES. 585 the assets to the exclusion of the other. [Deming t. 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 j the title of the receiver in such case does not relate back to the order of reference, but only to the actual appointment by the court. {Lottimer v. Lord, 4 E. D. Smith, 183). 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. [Fincke v. Funke, 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 receiver vest in him, without any assignment, as of the date, and by virtue of the order for his appointment {Porter v. Williams, 9 N. Y. 142) ; but, excepting he be- comes 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. Bisley, 19 N. Y. 369). A receiver's title is subject to any attachments levied before his appointment. {Dunlop v. Pat- terson 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 his appointment. [Nicoll v. Spowers, 6 N. Y. S. Eep. 457). A 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 appoiutment. ( Wyckoff v. Scofield. 98 N. Y. 475). A resident of the state, or a per- son having an office within the state for the regular transac- tion of business, who becomes the owner of a judgment by virtue of an appointment as a receiver, may file with the •586 PBACTICE. clerk, in whose office the judgment roll is filed, a notice of his appointment, and of his ownership of the judgment, sub- scribed by him, adding his place of residence, and if he re- sides 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. Oiv. Proc. § 1263). Sec. 3. Po-wers 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 authority to sue for and collect all the debts, demands and rents, belonging to such debtor, and "to compromise and settle such as are unsafe and of a doubt- ful character. He may also sue in the name of a debtor, where it is necessary or proper for him to do so; and he may apply for and obtain an order of course that the tenants of any real estate, belonging to the debtor, or of which he is entitled to the rents and profits, attorn to such receiver and pay their rents to him. He shall also be permitted to make leases from time to time, as may be necessary, for terms not exceeding one year. And it shall be his duty, without any unreasonable delay, to convert all the 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 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. But he may, by leave of the court, sell such desperate debts, and all other doubtful claims to personal property, at public auction, giving at least ten days' public notice of the time and place of such sale. (General Eule 78). No receiver shall have power to em- ploy more than one counsel, except under special circum- stances, 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 allow- RECEIVEKS AND OTHER PROVISIONAL REMEDIES. 587 ance shall be made to any receiver for expenses paid, or made, or incurred in violation of this rule. (General Eule 82). 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 [Cumming v. Egerton, 9 Bosw. 684; Corey v. Long, 12 Abb. Pr. N. S. 427) ; but a stranger cannot object that the receiver has employed an improper attorney. (^Warren v. Sprague, 11 Paige, 200). The re- ceiver, being the mere instrument or hand of the court, has the right at any time to apply to the court for instruc- tions as to his duties under the order of the coui't, and 1ihe 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 dispos- sessed by the act of a third party, not sanctioned by the court, an attachment may issue against such third party, and ie may not only be punished for the contempt, but com- pelled to restore the property. (Noe r. 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. (Verplanclc v. Mercantile Ins. Co., 2 Paige, 438, 452). 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 consent- ing creditor, under an order of a justice of the supreme court, in proceedings for an insolvent's discharge. (Co. Civ. Proc. ^ 2153). An order appointing a receiver has no extraterri- torial effect, and does not confer upon him authority to go into a foreign jurisdiction, and take possession of property by virtue of such order; but if the property be voluntarily surrendered to him, he acquires the right of possession, as against the party surrendering, but not as against the credi- 588 PKACTICE. tors in the otlier state, wlio still have the right to seize the property. {CCallaghan 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. 322). It has been held that a receiver of a foreign corporation may sue to recover property situate within this state ; subject to the qualification that the foreign law shall not divest the title of a citizen here which has been fairly acquired. {^Barclay 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). But the receiver has no bet- ter 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 gross negligence. {Brinckerhoff y, Bostwick, 88 N. T. 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. ( Wyc- koff V. Scofleld 103 N. Y. 630). A receiver should not bring suit without the authority of the court [Foster v. Townshend, 68 N. Y. 203) : but where authorized to brin^ an action., he may bring it in such court as he selects, unless directed by the court to bring it in a particular court. [Rockwell V. Merwin, 45 N. Y. 166). A receiver cannot make a payment without the authority of the court. (Duffy V. Casey, 7 Eobt. 79) A receiver has power to bring and maintain an action to set aside a fraudulent assignment made by the party of whose estate he is receiver and for damages caused by such acts to his estate (Laws of 1858, Ch. 314; 3 E. S„ 7th. Ed. 2330; Porter v. Williams, 9 N. Y. 142) ; or a fraudulent transfer (Manley v. Eassiga, 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 th© possession of premises, after a refusal to pay rent. (Matter EBCEIVEES AND OTHEIf PKOVISIONAL REMEDIES. 589 of Renwick, 1 Law Bull. 19). The death of the receiver does not abate an action, but it may be continued by his suc- cessor. (Co. Civ. Proc. § 766). Sec. 4. Ho-nr Controlled. A reeeiver is an officer of the court, and is controlled by it (Lottimer v. Lord, 4 E. D. Smith, 183); and he is entitled to its instructions as to his duty. {^Matter of Van Allen, 37 Barb. 223). The receiver should follow the direc- tions of the court, and not those of the person at whose instance he is appointed. [Lottimer v. Lord, supra). 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 sanc- tioned; 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. E. 471). He must act for the benefit of all parties interested 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 direc- tions 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 lie has a personal claim against such person. (McGarry v. Smith, 2 Law Bull. 7). The court may compel a receiver, appointed pursuant to the laws of 1885 (Laws 1885 c. 376), to pay the wages of employees in preference to other debts. (Met. Trust Co. v. T. V. & C. B. B. Co., 103 N. T. 245). The court may at any time, either with or without the con- sent of the receiver, in order to save litigation or expense, compel the settlement of claims, or order a reference to as- certain the same. [Guard. Sav. Inst. v. Bowling Green Sav. Bank, 65 Barb. 275). A receiver, who is authorized by the court to sue, is bound to proceed with the action ; and he should not be restrained by an injunction issued out of an- other court. [Winfield v. Bacon, 24 Barb. 154). Suing a receiver without leave of the court is a contempt ( Taylor v. Baldwin, 14 Abb. Pr. 166) ; but if the receiver when sued, fails to apply to the court for protection, the action may be continued, as though permission to bring the same had been 590 PEACTICE. obtained from tlie court. {Camp v. Barney, 4 Hun, 373), The proper course, in case a receiver is sued without the permission of the court, is for him to apply to the court for an injunction restraining the plaintiff from proceeding, (id). But where an action has been commenced, it should not be restrained simply on the ground that a prior judg- ment 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 petition, stating that such suit is in fraud of jus- tice, and that fact is not denied, the court will order the suit discontinued. {^Merritt v. Lyons, 16 "Wend. 405). Sec. 5. Iiiabilities. 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 [Smith v. Wood- ruff, 6 Abb. Pr. 65) ; and especially is this rule true when he brings the action, without having funds from which costs could be paid; that fact alone should be conclusive evidence of his bad faith, and should be deemed sufficient to charge him personally with the costs. [Cumming v. Egerton, 9 Bosw. 684). Where a receiver is guilty of mismanagement or bad faith in the prosecution 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 per- sonally. (Co. Civ. Proo. § 3246). The liabHity of a re- ceiver ceases immediately 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 ofN. Y. & W. U. Tel. Co. v. Jewett, 43 Hun, 565); but where irreparable damage will ensue by reason of such dis- charge, the court may, upon the petition of a creditor, vacate the order of discharge, and reinstate the petitioner 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 duties of his trust, he is liable only in his official capacity. [Camp v. Barney, 4 RECEITEES AND OTHER PBOYISIONAL REMEDIES. 591 Hun, 373). If lie contimies 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. 586) ; but if he brings an action in a mat- ter personal to himself, he is personally liable. [Chapm 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 pursuance of notice or stipulation. {St. John v. Denison, 9 How. Pr. 343). If the receiver sues without leave of the court, to re- cover 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. Hiissey, 4 Bosw. 614), If in a creditor's suit, the receiver sues in the debtor's name to recover property, the creditor at whose instance the suit is brought, is liable for the costs, as being the person bene- ficially interested. {WHench v. M' Bench. 7 Hill, 204). A receiver is not obliged, and cannot be compelled to ac- count 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 charging a receiver with interest beyond what he had actually received from an unauthorized invest- ment of the trust fund, on the ground that the receiver ap- peared to have acted in good faith, and without wrong intention, or personal benefit; and that the fund had been benefited and not harmed. {Atty. Gen'' I. v. North Am. L. Ins. Co., 89 N. T. 94). 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 592 PEACTICB. received and disbursed by him, as the court by -which, or the judge by -whom he is appointed, allows. (Co. Civ. Proc. § 3320). By chapter 442 of the laws of 1879, the compen- sation of a receiver of a moneyed institution is limited to ten thousand dollars per annum. The court has the authority to determine the compensation, and will fix the same at a reasonable sum. (^Baldwin v. Eazler, 34 Super. 274). 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 Eule 78). "Where a party to the suit has been appointed receiver, though not upon his own nomina- tion, he should not receive compensation for his services. [McCarthy v. Pealce, 9 Abb. Pr. 164). The court will pro- tect the rights of the receiver, and of his attorney or counsel to compensation out of the fund ( Clark v. Binninger, 1 Abb. N. C. 421) ; so held in a case where after the appointment of the receiver, an assignee in bankruptcy took control of the action, (id). If by consent, all property is ordered to be delivered over to the receiver, he is entitled to commis- sion on all the property, whether converted into money or not. [Bennett v. Chapin, 3 Sand. 673). Sec 7. Ho-w Discharged or Removedi 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 Be Bowery Bank, 16 How. Pr. 56) ; but no motion can be made, or other proceeding had for the removal of a re- ceiver, elsewhere than in the judicial district in which the order for his appointment was made (General Eule 81); and a receiver cannot be removed without notice, and an opportunity to be heard. [Campbell v. Spratt, 5 "Wkly. Dig. 25). The court may revoke an appointment before it is consummated, and such revocation is not appealable. [Sineyy.N. Y. Con. Stage Co., 18 Abb. Pr. 435). The court will revoke an appointment procured by fraud or col- lusion. Presumptively, such appointment endangers the rights of creditors, and when such appointment is so pro- EECEIVEKS AND OTHER l^EOVISIONAL REMEDIES. 593 cured, the court will not even stop to inquire whether such fraud and collusion had resulted m the selection of a suita- ble 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. [Nicoll 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 Wkly. Dig. 480); 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 ofN. Y. & W. U. Tel. Co. v. Jewett, 43 Hun, 565); but the court may direct such accounting and delivery to the second receiver, without removing the first. {Connelly v. Krets, supra). The employment by the receiver of the jiidgmerit debtor to collect a portion of the estate, is not in itself, ground for his removal. {Boss v. Bridge, 15 Abb. Pr- 150). "Where a motion is made to substitute one re- ceiver for another, the question of the regularity of the appointment of the first receiver is not a matter to be con- sidered on such motion {Fassett v. Tallmadge, 13 Abb. Pr. 12) ; nor will irregularities in the appointment of a receiver, be ground for his discharge, where a party entitled to move, neglects to do so for an unreasonable time. {Nicoll v. Boyd, 14 Wkly. Dig. 340). The fact that the action in which the receiver was appointed, is discontinued, does not therefore discharge the receiver; but he may thereafter on that ground apply for his. discharge. ( Whiteside v. Pren.der- gasi, 2 Barb. Ch. 471) 38 594 PRACTICE. AETICLE IV. EECEIVEES OF CORPOBATIONS. SECTION. 1. In what cases appointed. 3. General powers and duties. 3. Changing or discharging receivers. 4. Commissions. Sec. 1 ■ In Wliat Cases Appointed. Sub-division 1. — Under the Code. A receiver of the property of a corporation can be ap- pointed only by the court, and in one of the following cases : 1. An action brought as prescribed in sections seventeen hundred and eighty-one to eighteen hundred and three in- clusive. 2. An action brought for the foreclosxire of a mortgage, upon the property of which the receiver is appointed, where the mortgage debt or the interest thereon has remained un- paid, at least thirty days after it was payable, and after pay- ment thereof was duly 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 in- sufficient to pay the mortgage debt. 3. An action brought by the attorney-general, or by a stockholder to preserve the assets of a corporation, having 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 otherwise than by or pursuant to a final judgment, notice of the appli- cation 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 an- other state, government, or country, or a trustee, director, or other officer thereof, where the corporation or association does business within the state, or has, within the state, a busi- EECEIVEES AND OTHER PEOTISIONAL EEMEDIES. 595 ness 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 stock- holders. {Atty. GerCl 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 receiver of its property in this state, on the ground of its insolvency ( Woerishoffer v. North Riv. Con. Co., 99 N. T. 398) ; but it has no power to appoint a receiver of the property of an incor- poration, whether domestic or foreign, upon the commence- ment of an action by a creditor at large, on behalf of himself and of all others similarly situated. (^Lehigh Coal Co. v. Central E. B. of N. J., 43 Hun, 546). On the application of a stockholder, a receiver may be appointed of the property of an insolvent fire insurance company. (^Osgood v. Ma- guire, 61 N. Y. 524). A receiver of a religious corporation cannot be appointed in an action by one corporator, against individual corporators, to which action the corporation is not made a party. {Groesbeeck v. Dunscomb, 41 How. Pr. 302). Nor can a receiver be appointed, after the return of an execu- tion unsatisfied upon motion or petition; but such appoint- ment must be in an action, and by the supreme court on notice [Clinch v. Southside E. E. Co., 1 Hun, 636); but notice is not necessary, where 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. Globe Mut. L. Ins. Co., 60 How. Pr. 82). Where a receiver has been appointed in proceedings 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. {Einn 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 the property of the corporation. (Co. Civ. Proc. S 1788). In an action by the people to annul a corporation, the court by its final judgment must provide for the appoint- ment of a receiver. (Co. Civ. Proc. § 1801). By virtue of 596 PEACTICE. its general powers, the court may entertain proceedings against corporations, and appoint receivers of them. [Bangs V. Duckinfield, 18 N. Y. 592). In proceedings for the toI- untary dissolution of a corporation, if it appears to the court, upon the application for a final order therein, that the cor- poration is insolvent, or for any reason, a dissolution of the corporation will be beneficial to the interests of the stock- holders, and not injuries to the public interests, the court must make a final order dissolving the corporation, and ap- point one or more receivers of its property. (Co. Civ. Proc. §2429). All of the estate, real and personal of such cor- poration shall vest in such receiver, 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 (3 Rev. Stat, 7th. Ed., 2399) ; and such receivers may assert the rights of the creditors, or stockholders, when necessary. [Gillet V. Moody, 3 N. Y. 479). Section forty-two, and sec- tions sixty-six to eighty-nine inclusive of part three, chapter VIII, title IV, 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; 5 Eev. Stat., 7th. Ed., 2396, 2399, 2401). Pro- ceedings for the voluntary dissolution of a corporation must be strictly followed. [Chamberlain v. Hoch. 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 appointment; and if he was appointed pursuant to an order of reference, it relates back to the time of grant- ing 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 over-reach the statute in that regard, so as to vest his title by relation back to the date of the order. [Chamberlain v. Rochester Seamless R. V. Co., 1 Hun, 557). The title A'ests absolutely in him ; and a judgment creditor cannot take the property on execution. [Chapman v. Doug- las, 5 Daly, 244) . He takes the whole of the estate, although EECEIVEBS AND OTHEE PBOVISIONAL EEMEDIES. 597 only appointed at the instance, or on behalf of a single credi- tor. All the other creditors are given an opportunity to come in, before the distribution of the fund. [Rinn t. Astor F. Ins. Co., 59 N. Y. 143). Sub-division 2. — Undee Special Statute. Where by the judgment of a court, a banking corporation or association is declared insolvent, the court will imme- diately appoint a receiver of the property of such association or corporation, who shall take possession of the property, effects, etc., of such corporation. (Laws 1882, Chap. 409 § 135). A court has no authority, upon the application of a creditor at large, to appoint a receiver in an action to dis- solve a manufacturing corporation {Galwey v. U. S. Steam Sugar Bef. Co., 36 Barb. 256) ; nor where the effect would be to remove all the directors, where insolvency is not charged, nor a dissolution asked (^Belmont v. Erie By. Co., 52 Barb. 687) ; nor where the plaintiffs do not show themselves entitled to have a dissolution of the corporation [Denike v. X. Y. & B. Lime Co., 80 N. Y. 599) ; nor on a contest be- tween parties claiming to hold property as trustees of an association, unless there is a danger to the fund, or bad faith is shown ( Willis v. Corlies, 2 Edw. 281) ; nor of a life insurance company, if such company has actual funds in- vested according to law, of a net cash value equal to its out- standing liabilities, and the required reserve on policies and claims not matured. (Laws 1887, Chap 328). All orders appointing receivers of corporations, shall designate therein, one or more places of deposit, wherein all funds of the corporation, not needed for immediate disburse- ment, 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 attorney- general. (Laws 1883, Chap. 378, § 3). This refers only to receivers of insolvent corporations. ( U. S. Trust Co. v. N. Y. West Shore & B. B. B. Co., 101 N. Y. 478). Where an action is brought by the attorney-general 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 dis- 598 PBACTICE. solved by legislatire enactment, it is tlie duty of the special term of the supreme court in the county 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 legislature annulling and dissolving a corporation, and of the summons and complaint founded thereon, imme- diately 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). Sub-division 3.— Application, Where Made. All motions for the sequestration of the property of cor- porations, or for the appointment of receivers thereof, must be made in the judicial district in which the principal place , of business of said corporations, respectively, is situated, ex- cept that in actions brought by the attorney -general, in be- half 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 appointment of one may be made in any county within the judicial district in which such action is triable. And where a receiver has been appointed, his ap- pointment shall be extended to any subsequent suit or pro- ceeding relating to the same estate or property, in which a receiver is necessary. (General Eule 81). This rule has been limited by statute in cases of insolvent corporations, as follows: Every application made after April 11, 1883, for the appointment of a receiver of a corporation, shall be made at a special term of the court, held in and for the judicial district, in which the principal office of the corporation is located at the commencement of the action wherein such re- ceiver is appointed, or in and for a county adjoining such district; and any order appointing a receiver otherwise made, shall be void. (Laws 1883, Chap. 378 § 1). It has been held that the act of 1883, above cited, related exclusively to receivers of corporations appointed in proceedings in case of insolvency ; and does not apply to receivers of corporations in other cases. ( TJ. 8. Trust Co. v. N. Y. West Shore & B. R. EECEITERS AND OTHER PROVISIONAL REMEDIES. 599 B. Co., 101 N. Y. 478). General Eule eighty-one was also limited by the case of Smith y. Danzig (3 Civ. Pro. E. 127), ■which held that a receiver 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. But by statute, the venue of all actions or proceedings pending April 11, 1883, not in the judicial district where the principal office of an insolvent corporation was located, was changed and transferred to the county and judicial district, where such principal of&ce was located. (Laws 1883, Chap. 878 § 9). Ey the section last cited all applications to the court, contem- plated in that act, shall be made in the judicial district where the principal office of the insolvent corporation was located, (id). The necessary effect of that statute is that the venue of all actions or proceedings in such actions, shall be laid in "the county and district where the principal office of such ■corporation is • located. The case of Smith v. Danzig (^supra), correctly states the rule in cases other than of in- solvent corporations. So where an application is made for the appointment of a receiver of mortgaged property, pend- ing an action to forclose a mortgage upon railway, the appli- cation for such receivership may stUl be made in the district in which the venue is laid. ( U. 8. Trust Co. v. N. T. West Shore & B. B. B. Co., 85 Hun, 341). Notice of the appli- cation for the appointment 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 with- out such service, shall be void. (Laws 1883, Chap. 378 •§ 8 ) . Under this section, the service of the motion papers -etc., on the attorney-general, in a judgment creditor's action against a railroad company for the appointment of a receiver, the sequestration of its property, is jurisdictional; and an omission to do so, renders the appointment of the receiver 600 PEAOTICE. therein void ( Whitney v. N. Y. & Atlantic B. 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 property, although he has not been made a party to the creditor's action, (id). In an action to procure the dissolution of a corporation, a receiver may be oppointed 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 application of a creditor ; but an order to show cause, and a temporary injunction will be granted [Devoe v. Ithaca & Owego H. E. Co., 5 Paige, 521) ; but if the cor- poration voluntarily appear, the court obtains jurisdiction to dissolve it. [Atty. GenH v. Guardian Mut. L. Ins. Co., 11 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 appointment can only be corrected by appeal. [Bangs v. Duckinfield, 18 N. Y. 592). Sub-division 4. — Who may be Eeceivee op a Cobpoeation. 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 ap- pointed receiver of a corporation, unless for some particular reason he is disqualified from acting. In case of the volun- tary dissolution of a corporation, the court may in its discre- tion, appoint a director, trustee, or other officer, or a stock- holder of the corporation, a receiver 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 a corporation, which has been dis- solved and annulled by legislative enactment, no officer, director, or stockholder of such corporation shall be appointed receiver thereof (Laws 1886, Chap. 310) ; nor, can any per- son, designated as a bank examiner by the superintendent of BECEIVEBS AND OTHEE PROVISIONAL EEMEDIES. 601 the banking department, be appointed receiver of any bank, or banking association, individual banker, or corporation, whose books, papers and affairs he shall have examined pur- suant to the provisions of the banking law. (Laws 1884, Chap. 47). The appointment of a trustee of an insolvent corporation as receiver, will be set aside, when it appears to have been made in a collusive action, brought subsequent to an action seeking to charge the trustees. ( Wilson v. Bar- ney, 5 Hun, 257). For most, if not all purposes, a receiver takes the place, and stands as the representative of the cor- poration. He is as much bound by an act which the cor- poration has the power to do, as it is itself. He cannot impeach or disaffirm the lawful and authorized acts of the corporation. ( U. 8. Trust Co. v. N. Y. West Shore & B. E. B. Co., N. Y. Daily Eeg. Oct. 2, 1884). SxTB-DivisioN 5. — Secueity. Ordinarily the question of the security to be given by a. receiver of a corporation, is left entirely to the discretion of the court. In the case of a voluntary dissolution of a cor- poration, the receiver shall give such security to the people of the state, as the court shall direct. (5 Bev. Stat, 7th. Ed., 2399). The same is true of a receiver of a banking cor- poration appointed pursuant to the banking laws. (Laws 1882, Chap. 409). "Where a receiver is appointed in an action brought to wind up the affairs of a corporation, an- nulled 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). Sec. 2. General Powers and Duties. A receiver appointed in an action to dissolve a corporation, 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 property and proceeds of the debts and demands collected; and to sell, or otherwise dispose of the property, as directed by the court ; to collect, 602 PEACTICE. receive and preserve the proceeds thereof; and to maintain any action or special proceeding, for either of these purposes. He must qualify as prescribed by law for the qualification of a permanent receiver. Unless additional powers are con- ferred upon him, as prescribed in section seventeen hundred and eighty-nine of the Code of Civil Procedure, a temporary receiver has only the powers specified in this section, and those which are incidental to the exercise thereof. A re- ceiver, appointed by or pui'suant to a final judgment in the action, or a temporary receiver, who is continued by the final judgment, is a permanent receiver, and has all the powers aud authority conferred, and is subject to all the duties and liabilities imposed upon a receiver appointed upon the vol- untary dissolution of a corporation. (Co. Civ. Proc. § 1788). A temporary receiver, appointed as prescribed in the section just quoted, is in all respects subject to the con- trol of the court. In addition to the powers conferred upon him by the provisions 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 sub- ject him to the duties and liabilities of a permanent receiver, or so much thereof as he thinks proper; except that he shall not make any distribution among the creditors or stock- holders, before final judgment, unless he is specially directed to do so by the court. (Co. Civ. Proc. § 1789). A re- ceiver, appointed by or pursuant to an order or judgment, in an action. in the supreme court, a superior city court, or a county court, or in a special proceeding for the volimtary 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, res- pecting the disposition thereof. (Co. Civ. Proc. § 716). In all cases, where receivers have been or shall be ap- pointed for any corporation of this state, other than an in- surance company, on application by the attorney-general, all property real and personal, and all securities of every kind and nature belonging to such corporation, no matter where located, or by whom held, shall be transferred to and vested EECEITEES AND OTHER PROVISIONAL REMEDIES. 603 in and held by sucli receiver; provided however, that such transfer shall only be made, when directed 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 insurance company, or annuity company is dis- solved, and a receiver thereof appointed, all securities or funds, deposited by such company, prior to dissolution, with ihe superintendent of the insurance department, may be transferred to the receiver of such company, by an order of the supreme court at special term, held within the judicial district where the principal office of such company is located, upon the application of the attorney-general, and after ser- vice 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 imme- diately in such receiver; who shall convert such securities and funds into money, and distribute the proceeds thereof among the respective policy holders entitled thereto, ratably, according to the value of such policies, (id). A receiver, appointed in an action to wind up the affairs of a corporation, which has been annulled and dissolved by leg- islative 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 inven- tory of the property of such corporation, and for the purpose of ascertaining the extent, nature and location of such prop- erty, he has power to compel the attendance of witnesses ; and all evidence taken by him shall be filed in said clerk's office. He shall also immediately publish in two news- papers, a notice to the creditors of such corporation, to pre- sent their claims and demands to such receiver, at a time and place designated in such notice; and the receiver is author- ized 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, direct- ing a sale of the property specified in the inventory, at public auction. (Laws 1886, Chap. 310, § § 4, 5). A 604 PEACTICE. receiver appointed in such case, has full power and authority to administer oaths to all witnesses, and to any creditor o£ 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 re- ceiver, appointed in proceedings in equity against a corpora- tion, 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 corporation ; 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 re- ceived, and the amount he has a right to retain, and the dis- tributive 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 re- fuses 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. (5 Eev. Stat, 7th. Ed,. 2396). A receiver, appointed on the voluntary dissolution of a corporation, has all the power and authority, and is subject' to the same duties and obligations, so far as applicable, as are conferred by law upon trustees to whom an assignment of the estate of insolvent debtors may be made, pursuant to the Eevised Statutes (5 Eev. Stat, 7th. Ed., 2264); he should proceed immediately to collect all sums remaining unpaid 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 present 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 corporators, by reference, as is given to» KECEIVEES AND OTHER PEOTISIONAL EEMEDIES. 605 trustees of insolvent debtors. He shall call a meeting of the creditors of the corporation, withia four months after his appointment, at which time all accounts and demands shall be ascertained and adjusted, and the amount of moneys in his hands declared. And he may cancel and discharge any subsisting contract 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 ex- penses of pending suits, if there be any, or for the purpose of cancelling and discharging any open or subsisting engage- ment, he shall distribute the residue of the moneys accord- ing to law. (3 Rev. Stat, 7th. Ed., 2399, 2401). Wages of employees, operatives and laborers of such corporation are first entitled to payment. (Laws 1885, Chap. 376). If the whole of the estate be not distributed on the first divi- dend, the receiver shall within 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 be- fore 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 all times to the direction of the court, and he may be compelled to ac- count at any time ; and he may be removed ; 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 dividend, 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. (5 Bev. Stat, 7th. Ed., 2401, 2402). A receiver of a mutual insurance company has full power to make assess- ments on premium notes belonging to such corporation, as by charter the directors thereof had authority to make ; and notice of the assessment is given in the same manner; and he shall have the like rights and remedies in consequence of 606 PEACTICE. the non-payment thereof, as are given to the directors thereof by the charter of such corporation. He may receive a vol- untary surrender of all policies issued by the corporation, or cancel them, where by the charter, the directors would be authorized to do so. (5 Bev. Stat, 7th. Ed., 2397). It shall be the duty of every receiver of an insurance, banking, railroad corporation, or trust company to present, every six months after his appointment, to a special term of the supreme court, an account of all his proceedings ; and he must give eight day's notice to the attorney -general of his intention to present such account; and it is unlawful for a receiver to pay any attorney or counsel any costs or fees, until the amount shall have been approved by that court, and the order of the court duly entered; which order shall be subject to review by the general term and the court of appeals. He must also file a copy of such account with the attorney -general, and with the head of the department, hav- ing charge of the corporation of which he is receiver. (Laws 1885, Chap. 40). 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 re- late only to insolvent corporations ( U. S. Trust Co. v. N. Y. West Shore & B. R. B. Co., 101 N. Y. 478), therefore it must be construed also to relate exclusively to such corpora- tions. The receiver of an inriolvent corporation represents both its creditors and stockholders, and when necessary may exercise the rights possessed by them. [Gillet v. Moody, 8- N. Y. 479). And being such trustee for their benefit, if a fraudulent claim or demand is presented, it is his duty to sa administer the assets, that the fraudulent indebtedness shall have no share in the distribution. [McParland 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 ( Gillet v. Fairchild, 4 Denio, 80) ; but he cannot disaflirm the lawful acts of the corporation. {Hyde v. Lynde, 4 N. Y. 387, 392). A receiver, appointed under section seventeen hundred and eighty-eight of the Code of Civil Procedure, is vested with all the property and effects of the corporation, and has full KEOEIVEKS AND OTHEB PEOVISIONAL REMEDIES. 607 power to sell and dispose of the same, and to settle its affairs. [Verplanck v. Mercantile Ins. Co., 2 Paige, 438); but -where appointed on the application of a judgment creditor, simply to protect the property, 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). Where notes were made by a resident of another 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. Maguire, 61 N". T. 524). A re- ceiver of an insolvent insurance company has been held not to be entitled to the securities deposited by it with the in- surance department for the protection of the policy holders;, but the court may order their distribution to the policy holders (Matter of Guardian Mut. L. Ins. Co., 13 Hun, 115) ; but that would appear 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). A receiver of an insolvent banking corporation or associa- tion possesses all the powers of receivers of corporations under the revised statutes (5 Rev. Stat, 7th. Ed., 2399), in respect to the settlement of demands ; and such powers as are conferred on trustees of insolvent debtors, as may be ap- plicable, except as modified by the banking laws (Laws 1882, Chap. 409, § § 135, 159, et seq) ; and such receiver, under the direction of the superintendent of the banking de- partment, shall convert all the securities into cash, and within ninety days from his appointment, unless the time is enlarged, shall declare a dividend, after retaining enough to defray expenses; and he shall then distribute the assets as prescribed by law ; and if any debts remain unpaid, he shall render a verified account of the same to a justice of the supreme court, residing in the district where the principal office of 'the corporation is situated, together with a list of the stockholders, to be referred by such justice to a referee 608 PEACTICE. to take proof and hear the allegations of parties interested. The receiver may appeal from the order confirming the re- port of such referee ; and on such appeal he is not required to give security for costs. (Laws 1882, Chap. 409, § 133, et seq). Such receiver has power to compromise with the stockholders of the bank (id § 159) ; but he 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 re- ceiver, for that purpose. [VanDyck v. McQuade, 85 N. Y. 616). A receiver of a corporation :piay be invested by the court with a general authority and power to compromise dis- puted claims [Matter of Croton Ins. Co., 3 Barb. Ch. 642) ; and there can be no compromise without his consent. [Atty. Gen. V. Life & F. Ins. Co., 4 Paige, 224). If there is dan- ger that the fund will be unfairly distributed, the receiver may apply to the court for its protection. [People v. Secur- ity 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. [Atty. Gen. v. Life & F. Ins. Co., 4 Paige, 224). Where an action has been brought by the corporation, to compel the payment on a subscription of stock, the action may be continued by the receiver after his appointment, in the name of the original party [Pheonix Warehousing Co. v. Badger, 67 N. Y. 294) ; and one, who has acted as director in such corporation, is estopped fi-om denying the existence of the corporation, or the validity of his subscription, (id). Such an action, however, does not apply to mutual insurance companies, as they have no stock. [Williams v. Lakej, 15 How. Pr. 206). Where a receiver, appointed in an action against a corporation, fraudulently obtains an order 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. [Haclcley 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 without considera- tion. [Whittlesey v. Delaney, 73 N. Y. 571). The re- ceiver of a domestic corporation will be required to pay the EECEIYEES AND OTHER PROVISIONAL REMEDIES. 609 costs out of the fund, where plaintifE obtained a judgment against him, in an action brought against the corporation before his appointment; the expense of such action being in- curred for the benefit of the fund. [Locke v. Covert 42 Hun, 484). So, where the receiver of a bank elected to con- tinue 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 control of the suit. [Camp v. Niagara Bank, 2 Paige, 283). Where the stockholders or trustees of a corporation become personally liable for their debts, under the provisions of the acts relating to manufacturing corporations, the right to enforce the payment of such debts, is exclusively in the creditors, and not in the receiver. [Mason v. N. Y. Silk Mfg. Co., 14 Wkly. Dig. 451). A receiver of a foreign cor- poration, appointed in another state, may dispose of the property of such corporation within this state, and of the ■debts due such corporation in this state. {Hoyi v. Thomp- son, 5 N. Y. 320). A receiver should act, contract and con- vey in his own name, and not in that of the corporation of which he is the receiver, (id). Sec. 3. Changing or Siscliarging 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 ap- peared ; the court can act on its own motion. {Hoyt v. Continental Ins. Co., 21 Wkly. 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. (5 Bev. Stat., 7th. Ed., 2402). The attorney-general may, at any time he deems that the interests of the stock- holders, creditors, policy holders, depositors, or other bene- ficiaries, interested in the proper and speedy distribution of the assets of any 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 corporation, and appointing a receiver thereof in his stead; or to compel him to account, 39 610 PRACTICE. or for such other and additional order or orders as to hint may seem proper, to facilitate the closing up of the afEairs of such receivership; 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 is made. (Laws 1883, Chap. 378, § 7). Where the attor- ney-general intervenes to secure the removal of a receiver, all the parties to the action in which he was appointed, are entitled to notice of such application. [Attrill v. Roclcaway B. Imp. Co., 13 Wkly. 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 proceed- ing had for his removal, elsewhere than in the judicial dis- trict in which the order for his appointment was made. (General Eule, 81). And where a motion is made to discharge a receiver of an insolvent corporation, it shall be made in the district where the principal office of the insolvent corporation is located (Laws 1883, Chap. 378, § 9) ; except, that upon an application by the attorney- general, the motion may be made in any judicial district, for an order removing the receiver, and appointing another in his stead, (id. § 7). It is not a matter of course to change a receiver 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 mismanagement for which a suit had been begun, and with being improperly interested in contracts made by the company ; it was held, that he was not a proper person to exercise the powers of a receiver; and that his appointment should be revoked; and that the fact that the suit was instituted for his benefit, would not justify his being continued as receiver. [Keeler V. Brooklyn Elev. E. B. Co., 9 Abb. N. C. 166). The court loses its direct control of the receiver after his dis- charge; but where it appears 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. {Matter of N. Y. & W. U. Tel. Co. v. BEOEIVEBS AND OTHER PROVISIONAL REMEDIES. 611 Jewell, 43 Hun, 565). After a receiver has been dis- charged or removed, if he neglects to pay over all moneys remaining in his hands, to his successor, such successor may bring an action against him or his sureties therefor. (Laws 1882, Chap. 409, § 163). Seo. 4i CominlsslouD. The subject of the compensation or commissions to which a receiver of a coi'poration is entitled, is in a rather confused condition. The code does not distinguish between the com- pensation of a receiver of a corporation, and that of an in- dividual; simply providing that a receiver, except as otherwise specially prescribed by statute, is entitled to such a commission, in addition to his lawful expenses, not exceed- ing five per centum u[)im the sums received and disbursed by him, as tlio court by which, or the judge by whom he is appointed, allows. (Co. Civ. Proc. § 3320). By statute, the compensation of receivers of moneyed institutions is lim- ited to ten thousand dollars in any one year. (Laws 1879, Chap. 442). Every receiver shall be allowed to receive as compensation for his services as such receiver, five per cent for the first one hundred thousand dollars actually received and paid out, and two and one-half per cent on all sums re- ceived and paid out, in excess of the said one hundred thou- sand dollars. (Laws 18S3, Chap. 378, § 2). The section last quoted was amended in ISSO by limiting the amount that he shall be untitled to receive in any one year to twelve thousand dollars, and proportionately for any period less than a year; anil when there shall be more than one receiver, such compensation shall be divided between them. (Laws 1886, Chap. 275). The language of both the original sec- tion, and the same as amended, while being general in form, has been construed to refer exclusively to receivers appointed for insolvent corporations. (U. S. Trust Co, v. -^*;^- West Shore <& B. R. R. Co., 101 N. Y. 478). A receiver, ap- pointed under the banking laws, is entitled to compensation not exceeding five dollars for each day actually employed, and such necessary expenses and clerk hire as the court shall deem proper, which shall be dedu(^ted from the cash in the receiver's hands before making a dividend thereof. 612 PRACTICE. (Laws 1882, Chap. 409, § 146). A receiver, appointed on the voluntary dissolution of a corporation, is entitled to such commissions, in addition to his actual disbursements, as the court shall allow; not exceeding the sum allowed by law to executors. (3 Bev. Stat, 7th. Ed., 2401). A receiver, ap- pointed in an action brought to wind up the affairs of a corporation, which 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 property 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 188C, Chap. 310, § 6). In computing the commission of a receiver of a corporation, upon his resignation, only the actual amount of the money which has come into his hands should be the basis of com- pensation. (^People V. Mut Benefit Ass'ts. 39 Hun, 49). Where a receiver was appointed and qualified, but the busi- ness 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 Shirt Co., 85 N. T. 506). A receiver of a mutual insurance com- pany is entitled to his commissions on the value of premium notes, which have come into his hands, and which he has surrendered to the makers under order of the court. ( Van Buren v. Chenango Co. Mut. Ins. Co., 12 Barb. 671). By chapter nine hundred and two of the laws of eighteen hundred and sixty-nine, the superintendent of the insurance department is authorized to fix the compensation of the re- ceiver of an insolvent life insurance company, appointed under that act. {2 Bev. Stat, 7th. Ed., 1511, § 13). The provisions of that section do not make the decision of the superintendent conclusive with regard to the amount of com- pensation. Before he makes it, the parties interested in the fund are entitled to notice and an opportunity to be heard ; EECEIVEKS AND OTHER PEOVISIONAL REMEDIES. 61,3 and upon the presentation of the accounts of the receiver for final settlement, the jurisdiction of the superintendent, and the regularity of its exercise are before the court, and may be determined by it. [Atty. Genl. v. North American L. Ins. Co., 89 N. Y. 94). AETICLE 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 special 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 notice, that it be paid into, or deposited in court, or delivered to that party, with or without security, subject to the further direction of the court. (Co. Oiv. Proc. § 717). The court has no power to make an order under this section in an action for the recovery of money alleged to belong to the plaintiff and to be in the possession of the defendant, although it is claimed that the defendant, is insolvent. [Balestier v. Metropolitan Nat Bank, 43 Hun, 564). Where the court has directed a deposit or delivery, as prescribed in the above feection, or where a judg- ment directs a party to make a deposit or delivery, or to convey real property; if the direction is disobeyed, the court, besides punishing the disobedience as a contempt, may, by order, require the sheriff to take, and deposit, or de- liver the money or other personal property, or to convey the real property, in conformity with the direction of the court. (Co. Civ. Proc. § 718). Where a party brings money into court, pursuant to its direction, he is discharged thereby from all further liability, to the extent of the money so paid in. (Co. Civ. Proc. § 743). 614 PEACTICE. AETICLE yi. GENERAL PB0VI8I0NS. SECTION. 1. Electing between provisional remedies. 2. Time for deciding motions, limited. 3. Defendant's riglit to provisional remedies. Sec 1. Electing Betireen Provisional Remedies. Where an application for an order of arrest, an injunction and a warrant of attacliment, or two of them is made, in the same action, against the same defendant; and it satisfac- torily appears, that, under the particular circumstances of the case, two or aU of them are not necessary for the plain- tifiE's security, the court or judge may, in its or his discre- tion, 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 attachment, and the order of arrest. [Duncan v. Guest, 2 Civ. Pro. E. 275). Sec. 2. Time for Deciding Motions, Iiimited. Where an application has been made to obtain, vacate, modify, or set aside an order of arrest, injunction order, or warrant of attachment, the court or judge must finally de- cide the same, within twenty days after it is submitted for decision. (Co. Civ. Proc. § 719). But a plaintiff who has obtained a provisional remedy, cannot defeat a motion to vacate or modify it, by objecting that it has been held under consideration more than twenty days. [Stafford v. Ambs, 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). Sec. 3. Defendant's Right to Provisional Remedies. Where the defendant interposes a counterclaim, and there- upon 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 counterclaim, and demanding the same judg- EEOEIVEES AND OTHEB PBOVISIONAL BEMEDIES. 615 ment. And, for the purpose of applying to such a case the provisions of the Code of CiTil Procedure, the defendant is deemed the plaintiff, the plaintiff is deemed the defendant, and the counterclaim so set forth in the answer, is deemed the complaint. (Co. Civ. Proc. § 720). In an action to restrain the use of a trade mark, the defendant cannot set up as a counterclaim that it belongs to him, and enjoin the plaintiff, as that is the issue in the case. {^Glenn & Hall Mfg. Co. V. Hall, 6 Lans. 158). CHAPTEE XVni. TENDERS AND OTHEE 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. AETICLE 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 lie Made. Where the complaint demands judgment for a sum of money only ; and the action is brought to recover a sum cer- tain, or which may be reduced to certainty by calculation^ or to recover damages for a casual, or involuntary 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 con- ceives 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 ; it refers only to that class of tenders, which are considered as satisfying and discharging debts ; it has no application ta cases where a tender is made of purchase money on condi- tion of the delivery of a deed, or the tender of a debt on TENDERS AND OTHER OFFERS. 617 condition of the return of a pledge, and cases of a similar character. [Drown v. Ferguson, 2 Denio, 196; Cass v. Higenbotam, 100 N. Y. 248, 253). It may be made in an action on a bond, which has been given for the payment of damages, on account of the accidental collision with the plain- tiff's vessel. (Slack v. Brown, 13 Wend. 390). 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 action, brought to re- cover 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. [N. Y. Fire & Marine Ins. Co. v. Burrell, 9 How, Pr. 398; Pratt v. Eamsdell, 16 id. 59). Sec. 2. How to be Made. The money, which is to be tendered, must be actually produced or offered, without imposing, or asking for any con- dition [Brooklyn Bank v. DeGrauw, 23 Wend. 342; Boose- velt V. BulVs Head Bank, 45 Barb. 579) ; except, if the suit is brought upon an instrument for the payment of money, it may be required to be given up ( Wilder v. Seelye, 8 Barb. 408 ) ; unless there is a further liability of the defendant or others upon it. [Hargous v. Lahens, 3 Sand. 213). The tender must be made in actual legal 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. [Duffy v. 0' Donovan, 46 N. Y. '223). 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. [Bakeman v. Pooler, 15 Wend. 637; Strong V. Blake, 46 Barb. 227). A refusal to accept a formal ten- der if made, excuses one from making it [Blewett v. Baker, 58 N. Y. 611) ; where there is a willingness, and an ability to perform there need be no actual tender thereof, if per- formance has been waived or prevented [Nelson v. Plimp- €18 PBACTICE. ion F. P- El. Co., 55 N. T. 480) ; and it seems that it may be dispensed with by some positive act or declaration [Bakeman v. Pooler, 15 Wend. 637; Lawrence v. Miller, 86 N. Y. 131, 137) ; 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 defendant had the money in his possession, and peremptorily refused to receive it ; it is not safe to rely on a tender, without a pro- duction of the money; and the money should always be pro- duced, and actually tendered. If the tender is rejected on a particular ground, which is specified, no other objection which could have been obviated can be relied upon to defeat it. {Duffy V. 0' Donovan, 46 N. T. 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. [Grussy v. Schneider, 50 How. Pr. 134; Har- gous V. Lahens, 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 Procedure, does not avail the defendant, unless the money is accepted, or is paid into court, and notice thereof served in writing upon the plaintiff's attorney before the trial, and within ten days after the tender. If the plain- tiff takes out the amount paid in, he accepts the tender. ' (Co. Civ. Proc. § 732). A tender is 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. [Plainer v. Lehman, 26 Hun, 374). But where the action was brought upon a pro- missory note, which was secured by a pledge, and the defen- dant tendered the amount of the note and interest and costs, and demaded a return of the pledge, the tender was held to be good, although it was not paid into court and kept there. {Cass V. Higenhoiam, 100 N. Y. 248). To make a pay- ment 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. TENDERS AND OTHER OFFERS. 619 (Co. Civ. Proc. § § 745, 732). In his ans-wer, pleading a tender, the defendant may 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; but the plain- tiff will waive the insufficiency by going to trial, if no other defense is set up in the answer [Knight v. Beach, 7 Abb. Pr. N. S. 241) ; but not if the answer sets up other de- fenses. [Becker v. Boon, 61 N. Y. 317). Sec. 3. Effect of Tender. The tender is an admission that the plaintiff is entitled to recover the amount tendered, but no more. ( Wilson v. JDoran, 39 Hun, 88; Spalding v. Vandercook, 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 plain- tiff is entitled to take it, no matter what may be the event of the action [Kelly v. West, 36 Super. 304) ; and the de- fendant cannot in any event have the money back. ( Wilson V. Doran, 39 Hun, 88). If it appears upon the trial, that the sum so tendered was sufficient to pay the plaintiff's de- mand, or to make amends for the injury, and also to pay the <30sts 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 plain- tiff 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 defendant. [Dakin -v. Dunning, 7 Hill, 30; Wilson v. Doran, 39 Hun, 88). 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. [Kelly v. West, 36 Super. 304; Dakin v. Dunning, 7 Hill, 30). Sec. 4. WTien to be Deducted from Recovery. If the plaintiff proceeds in the action, after accepting the tender, the sum accepted must be deducted from the re- 620 PRACTICE. covery, 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 determined by the amount of the residue. (Co. Civ. Proc. § 734). The amount of the residue, after deducting the tenders 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 ac- tion is one of those in which a justice of the peace has no jurisdiction. (Co. Civ. Proc. § § 2863, 3229, subd. 3). 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 discussion in the late case of Wilson y. Doran (39 Hun, 88), in which Justice Bradley, delivering the opinion of the court, dis- cussed the subject fully; and the rest of th^s section is sub- stantially 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 defendant can- not in any event of the action, take it out. {^Murray v. Bethune, 1 Wend. 191 ; Malcolm v. Fullarton, 2 Durn. & E. 645, 648). The payment into court during the pendency of the action, without tender, required a rule to that effect, which jsvas as a matter of course, entered before plea, and after that special leave by order was required. [Griffiths V. Williams, 1 Durn. & E. 710 ; Dunlap v. Commercial Ins. Co., 1 John. 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 pro- ceeded 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 payment into court. (Stevenson v. Yorke, 4 Durn. & E. 10; Kabell v. Hudson, id. 11 ; Bursiall v. Horner, 7 id, 368 ; Aikins v. TENDERS AND OTHER OFFERS. 621 CoUon, 3 Wend, 326). Payment into court is an admission of liability upon the cause of action alleged, to tlie extent of the amount so paid in; and it is not important for that pur- pose, whether it follows and is pursuant to tender before suit, or paid in during its pendency, without previous tender, be- yond that his (defendant's) liability to pay may be con- tested. {Cox V. Parry, 1 Durn. & E. 464; Long v. Greville, 4 Dowl. & Ey. 632; Reid v. Stenion, 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. Bradshaw, 5 Q. B. Div. 302). And in either case (whether paid into court pursuant to such tender, or 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 entitled 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. CoUon, 3 Wend. 326; Murray v. Bethune, 1 id. 191; Dakin v. Dunning, 7 Hill, 30; Becker v. Boon, 61 N. T. 317, 322; Platner 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. Southerland, 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 payment into court is an admission of the cause of action alleged (Johnston v. Columbia Ins. Co., 7 JohiL 315) ; but that rule has its quali- fications. 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. (P err en v. Monmouthshire B. B. Co., 11 C. B. 855; Kingham v. Bobbins, 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, 6 622 PKACTICE. Pick, 340). Payment into court, upon a general count of indebitatus assumpsit, admits nothing more tlian liability for tlie amount so paid in. {^Perren v. Monmouthshire K. R. Co., 11 0. B. 855). * * * My attention 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, with- out any tender having been made. The revisors' note on the subject does not indicate such purpose (5 Bev. Stat, 2nd. Ed., 779), and the court has treated the common law rule in that respect as remaining, by the application of it since the statute. [Dakin v. Dunning, 7 Hill, 30)." [Wilson v. Dor an, 39 Hun, 88). While the plaintiff's right to make a tender remains as at common law, yet as a matter of practice, the provisions of the code for an offer of judgment, during the pendency of the action have superseded it ; and there are very few cases where it need now be resorted to. Sec.T6. Care and Disposition of Money Paid into Court. All money, which has been paid into court in any action, is to be kept by the county treasurer of the county, or in New York city, by the chamberlain of that city (Co. Civ. Proc. § 745) ; and is to be deposited by those officers, as directed in general rule sixty -eight. The general rules of practice may contain rules concerning the care and disposi- tion of such money. (Co. Civ. Proc. § 744). By those rules, it is prescribed that wherever an application is made by any party for the money which has been paid Into court in any pending action, it must be made upon regular notice, or order to show cause, duly served upon the attorneys of all the parties that have appeared in the action. (General Rule' 70). If such an application is made upon consent, the consents to the payment must be acknowledged before an officer, authorized to take the acknowledgement of deeds, and accompanied with proof of the identity of the applicant, from some person other than the applicant himself, before any order is granted upon the consent. The order for the pay- ment of money must, in all cases, be accompanied by a certi- fied copy of the order of the court, directing the payment, countersigned by the justice by whom such direction was TENDEES AND OTHEE OFFEES. 623' made. (Co. Civ. Proc. § 751; General Kule, 70). In the fifth department a rule has recently been adopted, requir- ing the party procuring the order for the payment of money, to procure two copies of the order to be countersigned by the justice, one of which copies must be delivered to the county treasurer, and the other to the bank or deposit company, upon whom the check or draft is drawn. (Gen. Term Eule, 5th- Dept., AprU, 1887). ARTICLE II. SATISFACTION OF PAET 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 proceedings, 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 plaintiff 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). Judgment may be ordered under this section, for a part of the entire claim, where the answer ad- mits a specific sum to be due upon it. (^Quiniard v. Secor, 3 E. D. Smith, 614; Wireman v. Eemington 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. Meacham, 16 How. Pr. 193 ; Bradbury v. WinterhoUom, 13 Hun, 536). 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; Coursen v. Hamlin, 2 Duer, 513). A judgment will not be ordered, where the answer denies the plaintiff's claim, and alleges that the plaintiff is not entitled to more 624 PRACTICE. tlian a sum named [Dolan v. Petty, supra) ; nor where it admits tliat he is entitled to a reasonable sum, without naming it [Hildreih v. Carpenter, 23 Wkly. Dig. 354) ; nor where, to ascertain whether a specific sum is due, a criti- cal examination of the pleadings, or of books and acccounts is necessary. [Coursen v. Hamlin, 2 Duer, 513). But where the defendant tenders a certain sum, and offers judg- ment for that sum, the court will order a judgment for it, nnder section five hundred and eleven. {^Roosevelt v. N. Y. & Harlem B. E. Co., 45 Barb. 554). Where a fund in liti- gation 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 sur- viving 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 partnership, judgment may be or- dered against him under that section, for such balance, less the claim against the decedent, upon the administrator's giv- ing security to pay the decedent's proportion of the claims against the firm, and of the costs and expenses. [Roberts v. Law, 4 Sand. 642). Where the answer stated that the de- fendant, who was surety for the payment by the plaintiff 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 ad- mission of a trust, and that it was proper to order a judgment for the amount admitted to have been received, under this section. [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 was ordered for the plaintiff for the residue of his claim, after deducting the amount claimed for damages. [Baker v. Nusshaum, 1 Hilt. 549). In an ac- tion for services, where the answer did not deny the plain- TENDEES AND OTHEE OFEEES. 625 tiff'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 plain- tiff under this section, where the whole claim is admitted. {Slauson v. Conkey, 10 How. Pr. 57; S. C. overruled, 1 Abb. Pr. 228). It is not enough to authorize a judgment, that the defendant admits that he has a fund which the plain- tiff seeks to recover, if he denies the plaintiff's right to the fund. [Bender v. Sherwood, 15 How. Pr. 258). Applica- tion for the order must be made to the court at special term, upon notice. It may be made at any stage of the action. It is discretionary with the court in all cases, whether or not to exdrcise the power granted by this section. [Laiuton v. Shep- herd, 5 Wkly. 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. Winterbottom, 13 Hun, 536 ; Wireman v. Bemington 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 defendant to imprisonment under a body execution, the court refused to make the order. [Slauson v. Conkey, supra). The provision of the Code of Procedure upon that subject (Co. Civ. Proc. § 244) only gave the court authority to make an order for the payment of the money ; but it pro- vided that the order might be enforced as a judgment. Under this section, however, it was held that a judgment might be ordered in the action for the amount which was admitted to be due to the plaintiff. [Duncan v. Ainslie, 26 Barb. 199). The Code of Civil Procedure, however, pro- vides 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 direc- tion made under this section. [Bradbury v. WinterboUom, 13 Hun, 536; Merritt v. Thompson, 3 E. D. Smith, 599). 40 626 PRACTICE. AETICLE III. OFFEE TO LIQUIDATE DAMAGES. SECTION. 1. When it may be made. 2. Effect of acceptance or refusal. Sec. 1 TVlieii it May be Made. In an action to recover damages for breach of a contract, 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 speci- fied 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. Effect 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 accord- ingly. (Co. Civ. Proc. §736). If the plaintiff does not ac- cept the offer, he cannot prove it upon the trial. But if the damages awarded to him, do not exceed the sum offered, the defendant is entitled to recover the expenses necessarily in- curred by him in preparing for the trial of the question of damages. The expenses must be ascertained, and the amount thereof determined, by the judge, or the referee, ij or before whom the cause is tried. (Co. Civ. Proc. § 737). The acceptance, if made by the attorney, must be subscribed and verified in the same manner as the offer. (Co. Civ. Proc. § 740). AETICLE IV. OFFEE 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 plain- tiff's attorney, a written offer, to allow judgment to be taken against him, for a sum, or property, or to the effect, therein TENDERS AND OTHEE OPPEKS. 627 specified, with costs. If there are two or more defendants, and the action can be seyered, a like offer may be made by one or more defendants, against whom a separate judgment maybe taken. (Co. Civ. Proc. § 738). An offer may be made in any action. (Bridenbecker v. Mason, 16 How. Pr. 203; Astor v. Pelache, 49 How. Pr. 231; Bathgate v. Has- kin, 63 N. T. 261). The case of Stevens v. Veriane (2 Lans. 90), which holds to the contrary, is overruled. The offer may be made, although 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 to confession of judgment, the court may set aside a judgment upon the offer. {Boss v. Bridge, 15 Abb. Pr. 150; 24 How. Pr. 163). But it will do so only for actual fraud {Beards v. Wheeler, 11 Hun, 539), and unless it plainly appears that the judgment, so entered, is collusive or fraud- ulent, it cannot be set aside, where it is recovered in this man- ner. ( Trier v. Hermann, 44 Hun, 489). 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 substantially a ntdlity [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. [Hawley v. Davis, 5 Hun, 642). 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. [Banney v. Russell, 3 Duer, 689). It is not necessary that the sum for which the offer is made shall be explicitly stated in terms, if by reference to the pleadings it can be readily ascertained. [Burnett v. Westfall, 15 How. Pr. 420, 425). The offer must be absolute, and not upon any condition whatever. [Pinckney v. Childs, 7 Bosw. 660). It must be so distinct and plain, as to leave no doubt as to the meaning or extent 628 PRACTICE. o£ it. {Bettis v. Goodwill, 32 How. Pr. 137), If it is ambiguous, it is ,to be construed most stx'ongly against the party making it. (id). In an action for foreclosure, where the whole amount was not due, the offer was held to be in- sufficient, 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. Lewis, 53 Barb. 432). A consent endorsed on the com- plaint, that judgment might be entered against the defen- dant for the amount claimed therein, is equivalent to an offer of judgment under this section. ( White v. Bogart, 73 N. T. 256). If there is more than one defendant, the offer may be made by any one, against whom a separate judgment could be taken. (Oo. Civ. Proe. § 738). If the action is against joint debtors, the offer must be made by all, or on behalf of all. [Griffiths v. DeForest, 16 Abb. Pr. 292; 25 How. Pr. 336). 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. Saun- ders, 59 How. Pr. 379) ; unless there is evidence of his authority to do so. [Binney 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. [Ever son v. Gehrman, 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. [Bridenbecher v. Mason, 16 How. Pr. 203). If several defendants 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 TENDERS AND OTHEB OFFERS. 629 firm, but only against the party actually signing the offer. {Bridenbecker v. Mason, 16 How. Pr. 203). If the offer is made by a party to an action, his signatnre should be proved or acknowledged; and if it is by his attorney in fact, his authority also should be proved, (id). If an offer is made by the attorney for the party in the action, he must sub- scribe it, and annex thereto his affidavit, to the effect that 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 he 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. {Biggs v. Way dell, 78 N. Y. 586). If the action is against several defendants, for whom one attorney has appeared, and any of theni 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; Sterne v. Bentley, 3 How. Pr. 331). Making the offer, operates substantially as a stipulation 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. ( Walker 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 at circuit. An offer may be amended by leave of the court, nunc pro tunc, even after the trial of the action. {Eagan v. Moore, 2 Civ. Pro. Kep. 300). But no amendment can be made without an order of the court. ( Vellerman v. King, 2 Edm. Sal. Cas. 371). Sec. 2. "Wlien made by Plaintiff. Where the defendant sets up a counterclaim, 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 judg- ment to be taken against him for a specified sum, with costs, or against the defendant 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 re- 630 PEACTICE. gard to it are the same as wlien it is made by the defendant, which have been stated in the previous section of this article. Sec. 3. Aoceptance. 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 summons, complaint, and offer, with proof of the acceptance, and thereupon the clerk must enter judgment accordingly. (Oo. Civ. Proc. § 738). If the defendant, within ten days after the plain- tiff's offer, serves upon the plaintiff's attorney, notice that he accepts the offer, either party may file the summons, com- plaint, 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 nunc pro tunc, by the court. ( White v. Bogart, 73 N. Y. 256). 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 favor- able 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 can not be given in evidence upon the trial; but if the recovery is not more favorable to the defendant, than that so offered, he will not be entitled to re- cover 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 competent evidence in the case. [Lintz V. Howard, 18 Hun, 424). The plaintiff is entitled to costs to the time of making the offer, whether the judg- ment is more favorable to him or not. [Magnin v. Dins- more, 4:Q How. Pr 297; 15 Abb. Pr. N. S. 331). The TENDEES AND OTHER OFFERS. 631 judgment is more favorable, whenever the amount of the recovery by the defendant, including the counterclaim extin- guished, if one is pleaded, is greater than the amount of the offer. (Turner v. Honsinger, 31 How. Pr. 66). In equity cases, the judgment which is finally entered in the case, and not the verdict of the jury on the issues, governs, in ascer- taining whether or not the judgment is more favorable. {Wallace v. American Linen Thread Co., 16 Hun, 404). "Where the damages are liquidated, interest is to be calcu- lated on the offer, from the time of making it to the time of entry of judgment, to ascertain 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 N. T. 652). The rule laid down in that case was applied by "the court of common pleas at special term, to a case where ihe damages were liquidated, and the court refused to per- mit 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. Bowers, 3 Civ. Pro. Eep. 72). This was contrary to the holding of Bathgate v. Haskin (supra), and for that reason it is not correct. Whenever interest may be properly calculated on the offer, and the amount of the offer with interest exceeds the recovery, the judgment is not more favorable to the plaintiff. ( Tilman v. Keane, 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 defendants were entitled to costs subsequent to the offer, including the costs of the appeal, so far as the same were not discretionary. (Sturgis v. Spofford, 58 K Y. 103; Lumbard v. S. B. & N. Y. E. R. Co., 62 K Y. 290). Although an offer of judgment has been made and accepted, the court has power to grant an extra allowance in the ac- tion, if it is otherwise a proper case. (Coates v. Goddard, 34 Super. 118). CHAPTEE XIX. MISTAKES, OMISSIONS AND lEEEGULAEITIES. AETICLE I.— Amendments. ARTICLE II. — Relief against omissions and mistakes. ARTICLE III.— Irregularities. ARTICLE IV. — Defects cured.by verdict or judgment. AETICLE I. AMENDMENTS. SECTION. 1. "Wliat may be amended. 2. Application for amendment. 3. Mode of amendment. 4. Eflect of amendment. Sec 1. Wliat may be Amended. Sub-division 1. — General Pbinciples. 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 mistake in any other respect, or by inserting an allegation material to the case; or, where the amendment does not change substantially the claim or de- fense, by conforming the pleading, or other proceeding to the facts proved. And, in every stage of the action, the cpurt must disregard an error, or defect in the pleadings, or other proceedings, which does not affect the substantial rights of the adverse party. (Co. Civ. Proc. § 723). The statute does not limit the power of the court, but it may still allow amendments on equitable grounds, in cases outside of MISTAKES, OMISSIONS AND IBEEGULAEITIES. 633 the provisions of the code. ( Weed v. Saratoga & Schenec- tady B. B. Co., 19 Wend. 534). A proceeding which is absolutely void cannot be amended. {Harris v. Durkee, 50 Super. 202; Kendall v. Washburn, 14 How. Pr. 380). If the proper proceeding is not taken to give the court jur- isdiction, it has no authority to act in the case, and cannot make an order amending any proceeding which has been had. {Hallett v. Righters, 13 How. Pr. 43; Kendall v. Washburn, supra). 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. [People v. Superior Court, 18 Wend. 675; Clarke v. Miller, 18 Barb. 269). One court cannot amend the record of another court. (JBuchan 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 jurisdiction, 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 in- clude a judgment or order not appealed from, when the time to appeal from it has expired. [Lavalle v. Skelly, 90 N. T. 546). The provisions of the code authorizing amend- ments 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. [Vaidero y. 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. 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. [Harrington v. Slade, 22 Barb. 161; Bewley V. Equitable L. Ins. Co., 10 Wkly. Dig. 191). Unneces- sary and inexcusable delay in making the application, is ground for refusing an amendment [Qoiody v. Poul- lain, 2 Hun, 218 ; Sheldon v. Adams, 41 Barb. 54) ; but this rule is not so strictly applied to public cor- porations. [Lunney v. Mayor, etc., 14 Wkly. Dig. 140). The coart will not permit a party to suffer by its own mis- takes or delays [Clapp'\. Graves, 2 Hilt. 317); nor by 634 PBACTICE. those of its officers. [Mechanics^ Bank v. Minthorne, 19 John, 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 ac- c[uired rights in good faith. {^Bank of Bochester v. Emer- son, 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 on it. [Close v Gillespey, 3 John. 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. (^Catlin v. Ounter, 11 N. T. 368). The court has no right to dis- criminate between actions and defenses not favored by law and other actions, except perhaps to hold the party, relying upon such causes of action or defenses, to somewhat stricter practice. ( Oilchrist v. Gilchrist, 44 How. Pr. 317 ; Barnett V. Meyer, 10 Hun, 109). In the case of Gasper v. Adams (24 Barb. 287), it was held that in actions of that nature, the court would only grant such amendments as it was re- quired 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 discrimina- tion as to amendments, on account of the nature of the cause of action or defense. [Bank of Kinderhook v. Gifford, 40 Barb. 659; Barnett v. Meyer, 10 Hun, 109). An amend- ment which is not necessary, or which would not secure or affect the rights of the party asking for it, will not be per- mitted. [Ten Eick v. Simpson, 11 Paige, 177). Where a motion has been made to set aside a proceeding for a tech- nical 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) ; but it is in the discretion of the court, MISTAKES, OMISSIONS AND IBEEGULAEITIES. 635 -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. Co. v. Shervnn, 1 Civ. Pro. E. 44). Sub-division 2. — Amendment op Summons. The summons may be amended by inserting the name of ihe county ( Wallace v. Dimmick, 24 Hun, 635) ; or of the court, where it appears in the complaint, which has been served ( Walker y. 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 C. E. 118). It 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, by changing an action from 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 defendant ( Weil V. Martin, 24 Hun, 645) ; or, where suit is brought against A. & Son as partners, by striking out the words ■" & Son" and inserting his name. [Bannerman v. Quack- enbush, 11 Daly, 529). On an application to amend by in- serting the true names of the defendants, which have been discovered, in place of fictitious names, which have been used Tinder section four hundred and fifty-one of the code, several real names may be substituted for a single fictitious name. {Beits V. Betts, 4 Abb. N. 0. 317, 323, note). The sum- mons 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. Jewett, 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. Slocum, 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 [Sluyter v. Smith, 2 Bosw. 673) ; or by substituting a written, for a printed subscription (Farmers^ Loan & T. Co. v. Dickson, 17 How. Pr. 477 ) ; although a printed subscription to the summons is good. [Barnard v. Heydrick, 49 Barb. 62). But the 636 PEACTICE. court cannot authorize the amendment of the summons, by striking out the name of a sole plaintiff or defendant, and in- serting the name of another persOn in his place. [N. Y, State Milk Pan Ass^n v. Remington Agr. Works, 89 N. T. 22). An amendment of the summons can only be made by leave of the court. [McCrane 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 {Diblee v. Mason, 1 C. E. 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, 7 Kobt. 606). Sub-division 3. — Peocesses Othee Than Summons. The following processes have been held amendable, and have been amended by the court, in proper cases: A writ tested on Sunday {^Williams v. Hogeboom, 22 Wend. 648); or returnable on that day [Boyd v. Vanderkemp, 1 Barb. Ch. 273) ; or otherwise wrongly tested as to time [Parke v. Heath, 15 "Wend. 301) ; or place [Raymond v. Hinman, 4 Cow. 41) ; or where the testatum clause is altogether omitted [M^Intire v. Rowan, 3 John. 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. Haberstro, 88 N. T. 611) ; or which states no place of return ( Cutler v. Rathbone, 1 Hill, 204) ; or the wrong .place [M^Konkey v. Glen, 1 Cow. 141) ; or gives no direction as to the return [Douglas v. Haberstro, 88 N. Y. 611); or which is made returnable "before us" instead of "before our justices" [WiUiams v. Rogers, 5 John. 163) ; or an attachment for contempt, returnable be- fore one of the judges of the court at chambers, instead of before the judge who granted it. [Kelly v. McCormick, 28 N. Y. 318). The omission of a clerk's signature to a writ, may be amended. [Peppoon v. Jenkins, 3 John. Cas., 2d. Ed., 420). The signature of an attorney, to a warrant of attachment which has been omitted, may be supplied. [Kis- sam V. Marshall, 10 Abb. Pr. 424). An execution, tested by mistake after the plaintiff's death, may be amended. MISTAKES, OMISSIONS AND IKKEGULAEITIES. 637 {^Center v. Billinghursi, 1 Cow. 33). An execution maj also be amended, by striking out the names of parties against whom it should not have issued ( Van Deusen v. Brower, 6 Cow. 50) ; by making it an execution against personal prop- erty only [Stevens v. Browning, 2 C. E. 123) ; or by mak- ing it an execution against both, where real property has been omitted [Lansing v. Lansing, 18 John. 502); or by correcting the amount, when the execution has been issued for too much, although after an action for false imprison- ment has been brought, because of the arrest upon it [Holmes t. Williams, 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) ; or by inserting a proper direction as to the return of the execution. [Benedict, &c.,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 direct- ing judgment to be docketed 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 amend- able. [Clarke v. Miller, 18 Barb. 269). SuB-DiTisioN 4— Judgments and Judgment Eolls. 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 an- nexed to it an affidavit of his authority to make it. In Biggs T. 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 was affirmed by the court of appeals [Biggs v. Waydell, 78 N. T. 586) ; but in affirming it, the court of appeals regard the question as Tinsettled, and say that it was properly decided without reference to that point. In Eagan v. Moore (2 Civ. Pro. E. 300), it was held, by the special term of the common pleas, that the court had power to amend such an offer of judgment, nunc pro tunc, by allow- ing the affidavit of the attorney's authority to be annexed. And in the case of Starks v. Starks (2 How. Pr. N. S. 638 PEACTICE. 360), the special term of the supreme court also held that it had the power to authorize such an amendment. In each of these cases, Riggs v. Waydell was distinguished for the reason that it was not necessary to decide the question of power. A statement, on which confession of judgment 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 im- pose as a condition of allowing the amendment, that the plaintiff consent to a postponement of the lien of his judg- ment, but it cannot, on granting the motion to amend, abso- lutely postpone the lien of the judgment. (^Symson v. SilJieimer, 40 Hun, 116; 105 N. Y. 620, 660). The court may also, in a proper case, compel the judgment debtor to make an additional statement 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 judg- ment, by adding the signature to the jurat {^FawceU v. Vary, 59 N. Y. 597) ; or by adding ihe affidavit itself. {Trades- mans' Nan Bank v. McFeely, 3 Hun, 699, aff'd 66 N. Y. 617). Proof of service may be amended, where the service had been regularly made, but the proof was insufficient {Herbert v. Smith, 6 Lans. 498) ; but there is no power to allow an amendment, by filing proof of the genuineness of the signature to an admission of ser- vice of the summons, on the application of an attorney who has no authority to appear for the plaintiff. {Lapaugh y. Wilson, 6 N. Y. S. Eep. 624). A judgment cannot be amended in a material matter as to the merits on motion, after the decision of the judge. {McLean v. Stewart, 14 Hun, 472; Rockwell v. Carpenter, 25 Hun, 529; Best v. Palmer, 22 Wkly. Dig. 482). 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) ; and where an action was brought against three partners, and two only were served, and judgment was en- tered by mistake against those two alone, it can allow an. amendment of the judgment, so that it will be against alL MISTAKES, OMISSIONS AND IKEEGULABITIES. 639' tliree. {Produce Bank of N. Y. v. Morton, 67 N. Y. 199). In the last case, the judgment was permitted to be amended nunc pro tunc, in the respect mentioned, 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). Where an action was brought by a receiver, and the complaint 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. Eandall, 15 Wkly. Dig. 106). "Where a defendant was designated by a fictitious name in the summons, the court of common pleas may amend all proceedings 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 transcript from a district court. {Hilton v. Sin- sheimer, 5 Oiv. Pro. B; 355). A clerical mistake in the name of a judgment creditor may be amended {Marsh v. Berry, 7 Cow. 344) ; a misdescription of the representative capacity in which the defendant is sued, may be corrected by amendment {McElwain v. Corning, 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. {Nagle v. Junker, 17 Wkly. Dig. 438). A judgment, dismissing the complaint without prejudice to a new action, may be amended on motion, before the time to appeal has expired, by giving leave to serve a new complaint in that action. {N. 7. Ice Co. V. N. W. Ins. Co., 23 N. Y. 357). A judg- ment, entered by mistake for less than the amount of the verdict, may be amended by the court. {Price v. Evers, Col. & C. Cas. 46). As to clerical errors or omissions, which would have been inserted at the hearing, as of course, the judgment may always be amended. {Clark v. Hall, 7 Paige, 382). After appeal to the court of appeals, the judg- ment may be amended by the supreme court, so as to stat§ that the reversal was upon facts, as well as upon the law. {JSFafl City Bank v. N. Y. Gold Exch. Bank, 97 N. Y. 645). The court of appeals cannot amend the record of the 640 PBACTICE. supreme court, by inserting an exception wMch does not ap- pear in the case. If the amendment is desired, it must be sought in the supreme court. [Kenyan t. N. Y. C. & H. R. R. R. Co., 76 N. T. 607). A judge, who has tried a case, and made and filed his 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. {^Coffirt v. Lesster, 36 Hun, 347). 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 distinguished, for the reason, that in that case, there was no mistake or omis- sion in the findings. An appellate court may amend their judgment on appeal, by inserting a direction for a new trial, instead of judgment absolute for the appellant (^Meyer v. City of Louisville, 7 Abb. Pr. 6); or by striking out a direction for costs, which has been inserted by mistake {^Mur- ray V. Blatchford, 2 Wend. 221) ; or by amending a mis- take in the order, so as to make it conform to the decision, although the remittitur has been filed in the court below. {^Palmer v. Lawrence, 5 N. Y. 455), Where, after a verdict for the plaintiff, exceptions 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 en- tered as of the date of the verdict. ( Tuomy v. Dunn, 11 N. T. 515). Sub-division 5. — Amendment of Miscellaneous Peoceed- INGS. Acknowledgements. Where a guardian ad litem has omitted to annex an acknowledgement of his consent to act, it may be supplied nunc pro tunc, after judgment. ( Tobin V. Cary, 34 Hun, 481). 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 MISTAKES, OMISSIONS AND lEBEGULABITIES. 641 error {Murphy v. Hall, 38 Hun, 528) ; or by permitting it to be sworn to anew, wlien tlie jurat has been omitted by mistake {Hees v. 8nell, 8 How. Pr. 185, note) ; or by pro- curing the certificate of the secretary of state, which had been accidentally left off. [Lawion v. Kiel, 51 Barb. 30). In the case of Cliokman v. Clickman, (IN. T. 611), it was suggested that an affidavit could not be amended ; but that case was seriously questioned by Bowman 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 fol- lowed. In Harris v. Durkee (50 Super. 202), where the jurat of an affidavit to procure 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 at- tachment, it may be amended by inserting new grounds for issuing the writ, which are warranted by the affidavits. [Kihhe v. Wetmore, 31 Hun, 424). The omission of an attorney to sign the warrant may be amended nunc pro tunc. [Genin v. Tompkins, 12 Barb. 265) Bonds and Undertakings. A bond or undertaking, re- quired 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 therefor, prescribed by the statute, and does not vary therefrom, 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 receive it, or to entertain a proceed- ing in consequence thereof, if it was perfect, may, on the application of the persons who executed it, amend it accord- ingly ; 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 de- parture from the statute. [Irwin v. Judd, 20 Hun, 562). But not where the bond is insufficient to give the court jur- isdiction ; in that case the court has no power to order an amendment. (Ex Parte Chryslin, 4 Cow. 80; Van Slyke 41 642 PKACTICE. V. Schmeck, 10 Paige, 301). An undertaking should not be amended witlaout the consent of the sureties and the obligor [Langley v. Warner, 1 N. Y. 606; Shaw v. Lawrence, 14 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'' Sullivan 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 dispense with the strict letter of the rule, and allow a new bond to be substituted for the insufficient one. [Eldridge v. Howell, 4l Paige, 457). The court may allow a bond to be amended by adding another surety. {^Potter V. Baker, 4 Paige, 290; Shaw v. Laiorence, 14 How. Pr, 94). The application to amend should be upon affidavity joined in, or consented to by the obligors, and should specify 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 amend- ment 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. Rathhone, 1 Hill, 204; Newland v. Willett, i Barb. 20). 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. [JSawley 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 ( Crog- han \. 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, 11 How. Pr. 129; Robinson v. Moran, 23 Wkly. Dig. 326). It may permit the affidavits of sureties to be filed nunc pro tunc [Rich V. Beekman, 2 C. E. 63) ; or the justification to be amended [People ex rel Boylston v. Tarbell, 17 How. Pr. MISTAKES, OMISSIONS AND IBBEGULAEITIES. 643 120) ; 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. Pro. R. 152). Where an action was begun without filing an undertaking which was a condition precedent to bringing the suit, the court allowed it to be done nunc pro tunc. (Millbank v. Broadway Bank, 3 Abb. Pr. N. S. 223). On motion to vacate an injunction for in- sufficiency of the undertaking, a proper undertaking was permitted to be filed (^Leffmgwell v. Chave, 5 Bosw. 703) ; and where a judge's approval was not endorsed upon the copy served, the court permitted it to be added. [Augrich V. McOwen, 4 Law Bull. 66). Where a motion was made to vacate an attachment because the undertaking was insuf- ficient, the court permitted a new undertaking to be served. [Kissam v. Marshall, 10 Abb. Pr. 424) ; and the same thing was done on an motion to vacate an order of arrest. {Bellinger v. Gardiner, 2 Abb. Pr. 441; 12 How. Pr. 381). Cases. The court will allow an amendment of the case even after argument and decision in the appellate court {0'' Gorman v. Kamak, 5 Daly, 517) ; but ordinarily it wiU not be done. {Hackley v. Draper, 2 Hun, 523). The judge before whom an action is tried, may amend the case so as to agree with his minutes on a motion for a new trial made before him; although no application has been made to amend by either party. [Toplitz v. Raymond, 10 Abb. Pr. 60). An application to amend a case, must ordinarily be made at special term. [Talcott v. Rosenberg, 3 Daly, 203, 213; Graham v. People, 63 Barb. 468, 474). The usual practice in such cases, is to apply to the special term before argument, to correct the case. But i£ the argument has been had at general term, the proper practice is to apply to the general term 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 tried has no power to amend it. [PettU v. Pettit, 20 Wkly. Dig. 154). Commissions. A commission to take testimony is a pro- cess, and amendable like any other process. [Leetch v. Atlantic Mut. Ins. Co., 4 Daly, 518). Where a commission 044: PEACTICE. wrongly stated the names of the witnesses, but the intended witnesses were examined, and the commission returned with the true names, leave was granted to send it back to have the witnesses re-examined, without issuing a new commis- sion. [Keeler v. Vanderpool, 1 0. E. N. S. 289). Notices of appeal. Defects or mistakes in a notice of ap- peal may be amended, as an error in the title of the action (^McLachlin y. Brett, 27 Hun, 18) ; or a failure to subscribe it. {GuthrecM v. Prospect Park & C. I. R. R. Co., 28 Hun, 497). Any act which constitutes a step in the pro- ceedings to appeal, may be amended, unless the defect in it is so gross that the court is not satisfied that the paper re- lied on was intended for an appeal in the action in question, (id; Sherman v. Wells, 14 How. Pr. 522). A notice of appeal cannot be amended, from which a jurisdictional re- quirement has been intentionally omitted ( Wilmore v. Flack, 96 N. T. 512) ; or so as to include in it a judgment or order, the time to appeal from which has expired. {^Patterson v. McCunn, 38 Hun, 531). Orders. Orders may be amended by striking out a cap- tion, erroneously inserted in a judge's order (^Mojarrieta V. Saenz, 80 N. T. 553) ; or by inserting leave to renew [Hopkins v. Flynn, 7 Cow. 526) ; or where costs had been given, by inserting the amount [Tillspaugh v. Dick, 8 How. Pr. 33) ; or by permitting the entry of the order nunc pro tunc [Gurney v. Sharp, 17 Abb. Pr. 410; Barnard v. Sey- d,rick, 49 Barb. 62) ; or by changing an order of reference to take testimony, into an order of reference to hear and de- termine, where the first order had been erroneously entered [Bliss Y. Bliss, 13 Daly, 489) ; or by modifying an injunc- tion order, so as to better protect the rights of the plaintiff. [Williams v. Johnson, 2 Bosw. 1). Petitions. Formal omissions in the body of a petition, or the omission of a verification may be supplied even after judgment. [Rogers v. McLean, 11 Abb. Pr. 444; Van Wyck V. Hardy, 11 Abb. Pr. 473; 20 How. Pr. 222). Returns. The court to which a return is made by a sheriff or other officer, or by a subordinate court, or other tribunal, may, in its discretion, direct the return to be MISTAKES, OMISSIONS AND IBEEGULAEITIES. 645 amended, in matter of form, either before or after judgment. (Co. Civ. Proc. § 725). A sheriff's return to an execution may be amended, by striking out the return of nulla bona [Burham v. Brennan, 42 Super. 49) ; although after an action has been brought against him for a false return. {People V. Ames, 35 N. Y. 482). Sheriff''s certificates and deeds. A sheriff's certificate of sale may be amended by inserting a parcel of land accident- ally omitted [Smith v. Hudson, 1 Cow. 430) ; or by striking out a parcel improperly included. {^Richards v. Varnum, 8 How. Pr, 79). An incorrect reference to the execution in the deed may be amended. {Gansevoort v. Gilliland, 1 Cow. 218). A variance between the recitals in his deed on execution, and the judgment and execution may be corrected on motion. {Matthews v. Cook, 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 John. 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. Tibbitts, 7 How. Pr. 21). Where a judge ordered a verdict for the defendant on one issue, and sent another issue to the jury, 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 apply- ing 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 omis- sion 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 circuit has power to correct it by making 646 PBACTICE. it conform to the Terdict actually found. [Dalrymple v. Williams, 63 N. 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 re- tire and reconsider it. (^Hersberg 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. Martin, 2 Law Bull. 56) ; and the application must be made to the court. (Oo. Civ. Proc. § 727). The affidavits must show an excuse for the defect. {^Bewley v. Equitable L. Ins. Co., 10 Wkly. Dig. 191). If an amendment of the pleadings is sought, a copy of the proposed amendment must be sub- mitted with the motion papers. The desired amendment should always be clearly stated, and if the amendment is allowed, it should be explicitly recited in the order. Per- sons entitled to notice, may appear and oppose the amend- ment, but no other person ; bail have no right to object to amendments of proceedings in the action, although it may affect their rights. [Coster v. Phoenix, 7 Oow. 524). A process, pleading, or record, shall not be altered by the clerk, or any other officer of the court, or by any other per- son, 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 plead- ing. (Co. Civ. Proc. § 727). On granting the amend- ments, 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. Burrows, 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), except costs of the motion. Sec. 3. Mode of Am.endment. An immaterial error need not be amended, but the court may direct that it be disregarded. [Cheetham v. Tillotson, 4 John. 499). Clerical errors may be amended by inter- lineation. [Ayres v. Valentine, 2 Edw. Ch. 451 ; DeCaters V. DeChaumont, 3 Paige, 178). Amending a judgment MISTAKES, OMISSIONS AND lEEEGULAEITIES. 647 lecord by obliteration or erasure, eyen wlieii it leaves the passage legible, is improper. It should be done by append- ing 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. (^Sluyter v. Smith, 2 Bosw. 673). On amending 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 trancsript has been filed, and a brief reference 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). Whenever 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 ficti- tious entry or filing. [Barclay v. Brown, 7 Paige, 245). A copy of the order allowing the amendment, should always be served on the adverse party; and where the amendment is of a paper which has been served upon him, a copy as amended should be served {Livermore v. Bainbridge, 14 Abb. Pr. N. 8. 282, 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 amend- ment to ascertain its effect, except to see that it is not frivolous or useless [Mitchell v. Allen, 25 Hun, 543) ; 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 amended pleading or paper is a substitute for the old one, and the xio-hts 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. [Weeks v. Tomes, 16 Hun, 349). If a pleading 648 PBACTICE. lias been amended, an injunction granted on the original pleading, does not thereby become inoperative. [Selden v, Vermilya, 4 Sand. Ch. 573). AETICLE II. BELIEF AGAINST OMISSIONS AND MISTAKES. The court may, in its discretion, and upon such terms as justice requires, and at any time within one year after notice thereof, relieve a party from a judgment, order, or other proceeding taken against him, through his mistake, inadver- tance, surprise, or excusable neglect; and may supply an omission in any proceeding. Where a proceeding taken by a party fails to conform to a provision of the Code of Civil Procedure, the court may, in like manner, and upon like terms, permit an amendment thereof, to conform it to the provision. (Co. Civ. Proc. § 724). To set running the period of one year mentioned in this section, the notice must be in vrriting. A mere verbal notice is not sufficient. (^Bis- sel V. N. Y. Cen. & H. B. B. B. Co., 67 Barb. 385). In case of a judgment, the notice must be given to the party personally ; notice to his attorney alone, is not sufficient, un- less it is brought to the notice ot the party. {^G'Neil v. Hoover, 17 Wkly. Dig. 354). The case of Jex v. Jacob (7 Abb. N. C. 452), decided by the special term of the com- mon pleas of the city of New York, holds that a notice to the attorney is sufficient; but this case must be deemed to be overruled by the case of ONeil v. Hoover, cited above. The section does not include applications to set aside pro- ceedings for irregularity, but only to those which have been taken because of mistake, inadvertence, surprise, or excusable neglect of the party. It does not apply to special proceed- ings. {Matter of City of Buffalo, 78 N. Y. 362). The power of the court of original jurisdiction to open defaults, or to set aside or vacate 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 independ- ently of that, and inheres in the very constitution of the court. It is exercised continually, and it grows out of the control which the court has over its own records and judg- MISTAKES, OMISSIONS AND IKREGULAEITIES. 649 ments, and the actions pending therein. There are so many occasions for its exercise, that it should not be curtailed. {Vanderbilt v. Schreyer, 81 N. Y. 646, 648). It is not limited in matters of substance by this section of the code. {Hatch V. Central Nafl 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. SutcUffe, 21 Hun, 357). It may be exercised in favor of a party as well as against him ; and one who has by mistake taken some proceeding in the action which is preju- dicial to him, may have relief under this section. [Dietz V Farish, 43 Super. 87; Montgomery v. Ellis, 6 How. Pr. 326). It does not apply to an application for a new trial on the ground of newly discovered evidence. (First Nafl Bank v. Heaton, 6 T. & 0. 37, 88, note). The power given by this section does not authorize 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 ap- peal in time. {Kelly v. Sheehan, 76 N. Y. 325, 326). But under the power given by this section, it has been held that the court might permit a petition of appeal, from a de- cree of a surrogate's court to be filed, after the time had ex- pired, if the preliminary proceedings to an appeal had been taken; where the omission to file the petition of appeal occurred through mistake. (Stubbs v. Stubbs, 11 Wkly. 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 appli- cation for this kind of relief at the earliest practicable mo- ment; and an unexplained delay is a good reason for refus- ing the relief, although the application is made within the year. {Henderson v. Savage, 46 Super. 221 ; Wade v. De- Ley er, 40 Super. 541). 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 general term on the appeal of the party who moves to set it aside. {Schweizer v. Baymond, 6 Abb. N. C. 378). In imposing terms upon granting motions made 650 PKACTICE, under this section, the court is governed by the same con- siderations that apply to granting amendments to relief from irregularities. AETICLE III. IKKEGULARITIES. SECTION. 1. What are irregularities. 2. Wlio 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 proceed- ing, 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 improper manner. (Graham's Prac. 1st. 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 rendering the proceedings defec- tive or voidable. As illustrations of what constitute irregu- larities, may be mentioned: the service of summons on election day (^Bierce v. Smith, 2 Abb. Pr. 411) ; service of summons by plaintiff himself (^Hunter v. Lesier, 10 Abb. Pr. 260; 18 How. Pr. 347) ; the issue of an execution after five years, without leave [Montrait v. Huichins, 49 How. Pr. 105) ; the entry of judgment, where there is a defect in the affidavit of the service of the summons. {^MouUon v. Carty, 6 Robt. 470). Such proceedings as these, while they are irregular, do not involve the merits, nor any sub- stantial right, and are said to be mere technical irregulari- ties. There is a distinction between irregularities of this kind which affect no substantial right, and those which are a matter of substance, although the court may have juris- diction. [Decker v. Kitchen, 21 Hun, 332). But where the court has jurisdiction, this distinction is of no particular importance, except with regard to the requirements of no- tice of motion, and the right to appeal from a refusal to vacate. There is a marked, and in many respects important MISTAKES, OMISSIONS AND IBEEGULABITIES. 651 and substantial distinction between irregularities of the nature mentioned above, which do not affect the jurisdiction 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 sub- sequent acts of the opposite party ; but where the proceed- ing itself is altogether unwarranted, and totally dissimilar to that which the law authorizes, and one which the court has no jurisdiction to take under any circumstances, then the proceeding is a nullity, and it cannot be made good. [4 Waifs Prac. 630; 2 T. & S. 1028). As an illustration of such irregularities as can not be amended, may be cited: a judgment without service of process on the defen- dant [Ferguson v. Crawford, 70 N.,Y. 253) ; or one ordered by a judge who is disqualified by consanguinity [Chambers Y. Clearwater, 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 a judgment rendered on Sunday. [Allen V. Godfrey, 44 N. Y. 433). Such proceedings are nitterly void, and they cannot be remedied in any way. [Hone V. Woolsey, 2 Edw. Ch. 289; Anderson v. Roberts, 18 John. 515). Sec. 2. AVIio 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 per- son 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). As for instance, one who has a lien upon attached property (Co. Civ. Proc. § 682) ; or a subsequent judgment creditor, to vacate a judgment for irregularity. [Butts v. Schieffelin, 5 Civ. Pro. E. 415). "Where a guardian ad litem for a plaintiff in partition had been improperly ap- pointed, and his proceedings were dilatory, 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. 652 PEACTICE. 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 substance of the proceeding, and affects a sub- stantial right, and injuriously operates upon their interests. They cannot move to vacate because of the mere technical irregularity. [Oere v. Gundlach, 57 Barb. 13; Briden- becker v. Mason, 16 How. Pr. 203). 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. (finger soil v. Bostwick, 22 N. Y. 425; Derham v. Lee, 4.1 Super. 174). 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. [Spencer v. Barber, 5 Hill, 568; Hunt v. Wallis, 6 Paige, 371; Kamp v. JSTamp, 59N. 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. (Pinckney v. Hagerman, 4 Lans. 374). 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; Low v. Gray don, 14 Abb. Pr. 443); or the delay must be excused. [Lawrence 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. Caines, 3 Cai. 107). It is also a suf- ficient excuse that the motion was noticed for the previous term, which adjourned before it could be heard, and it was noticed for the earliest practicable moment afterwards. [Whipple V. Williams, 4 How. Pr. 28). Ignorance of MISTAKES, OMISSIONS AND IRREGULARITIES. 653 law, or of the rules of the coiort, on the part of the attorney for the party is not, howeyer, an excuse. {^Moreland v. Sandford, 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. [Currey v. Bowker, 9 Dowl. P. C. 523; Claud v. McKenzie, 5 Man. & Gr. 251). But it is 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 irregularities, so called; and not to those which affect a substantial right. [Doty v. Russell, 5 Wend. 129; Lucas v. Trustees of Baptist Church, 4 How. Pr. 353). Notice from the opposite party that he intends to take an irregular 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- burgh 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 judg- ment 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 ierm 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. Proc. § 1282). It will be noticed that the fact that a party has not received notice of the entry of judgment is not important under this section. The section does not apply to special proceedings, but only to judgments. [Mat- ter of City of Buffalo, 78 K T. 362). The rule is enforced only with regard to mere technical irregularities (Dederick V. Richley, 19 Wend. 109) ; and it does not apply to a judg- ment entered without authority, against a party not before the court (id) ; nor to a judgment entered before the de- fendant's time to answer had expired [Harris v. Warren, 1 How. Pr. 139) ; nor to a judgment by confession, for de- fects in the statement ( Winnebrenner v. Edgerton, 30 Barb. 185) ; nor where an answer had been served and disregarded 654 PKACTICE. (Decker v. Kitchen, 21 Hun, 332) ; nor where there was no answer, and judgment had been entered for a relief not de- manded in the complaint ySimonson v. Blake, 12 Abb. Pr. 331); nor where the judgment entered was without jurisdic- tion, or where it is subversive of a substantial- right. [White V. Coulter, 59 N. Y. 629; Simpson v. McKay, 3 T. & C. 65). In all these cases, the court may set aside the judgment although one year has expired after its entry. [Dinsmore v. Adams, 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 mo- tion must be made promptly, or an excuse given for delay j and laches will defeat the motion. [Orleans Co. NaVl, Bank v. Spencer, 19 Hun, 569). As to the requirements of a notice of motion to set aside a proceeding for a techni- cal irregularity, see chapter VII, article III 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 irregularity, a moving party need not swear to merits. [Depeyster v. Warne, 2 Cai. 45; Howell v. Denniston, 3 Cai. 96). If the pro- ceeding 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 in- stance, where an inquest was taken regularly, but the judg- ment entered 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 MISTAKES, OMISSIONS AND IBKEGULAKITIES. 655 ■was entered upon it, the judgment was set aside, but the de- fault was permitted to stand, and the plaintiff was periiiitted to enter another judgment. (^Griswold v. Stoughton, 1 Cai. 6). Sec. 4. 'Waiver of Irregularities. An irregularity which goes to the jurisdiction of the court can not 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 jurisdiction, beyond the power of the parties to give jurisdiction to it, may be waived; and the distinction be- tween 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 con- stitutional privilege, which is made for his benefit, and having once waived it, he loses the right to object to it. (Matter 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). But he can not by failure to object, or by appear- ance, give the court power to do a thing which is not within its jurisdiction. 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 object to it. But there can be no waiver of an irregularity, unless the party knows the facts constituting the irregularity. {Newbery v. Furnival, 56 N. Y. 638; Welford v. Oakley, 1 Sheld. 261). If a party alleges his ignorance of an 656 PBACTICE. irregularity, to avoid what would otherwise be deemed a waiver of it, the burden 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 fi'om an omission to object to it, when an opportunity there- for is given. {Matter of N. Y. West Shore & B. R. B. 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 proceed- ing ; and of course, it is waived by consent, either verbal or written, or by a subsequent acquiescence in it. {Farmers^ Loan & T. Co. v. Beid, 3 Edw. Ch. 414). AETIOLE IV. DEFECTS CUBED BY VEEDICT OB JUDGMENT. In a court of record, where a verdict, report, or decision 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 imperfections, omissions, defects, matters, or things, in the process, plead- ings, or other proceedings: 1. For want of a summons, or other writ. 2. For any fault or defect in process ; or for misconceiv- ing 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 re- turn, actually made by him. 4. For a variance between the summons and the com- plaint. 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 favoi*. 8. For omitting to allege any matter, without proof of which, the verdict, report, or decision ought not to have been rendered. MISTAKES, OMISSIONS AND IBBEGtrLABITIES. 657 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 cor- rect 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 making Tip 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. (Oo. Civ. Proc. § 721). Each of the omissions, imperfections, defects and variances, 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. (Oo. Civ. Proc. § 722). 42 CHAPTEE XX. ABATEMENT AND EEVIVAL. ARTICLE I.— When actions abate. ARTICLE 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.— EfEect of verdict, report or decision. AETICLE I. WHEN ACTIONS ABATE. SECTION. 1. General rule. 2. Rules applicable to particular actions. Sec. 1. General Rule. An action does not abate by any eyent, if the cause of action survives or continues. (Co. Civ. Proc. § 755). The assignability and survivability of things in action have fre- quently been held to be convertible terms, and perhaps furnish as clear and intelligible a rule to determine what injuries to property rights or interests survive, as it is possi- ble 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. [Blake v. Griswold, 104 N. Y. 613, 616). The rules of the common law still determine the survivability of actions for torts, except where the law has been specially modified, or changed by statute. (^Hegerich v. Keddie, 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 ABATEMENT AND BETIVAL. 659 after his death, by his executors or administrators, in the same manner and with the like effect in all respects, as ac- tions founded upon contract. (5 Bev. Stat, 7 Ed., 2394, § 1). 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 plaiatiff, or to the person of the testator or in- testate of any executor or administrator, (id. § 2). On this subject the court of appeals have 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 admin- istrators, for wrongs done to the property rights, or interests of their intestate or testator are hereby authorized, but so far as such wrongs have heretofore been remediable 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 ad- ministrator, 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 executors and administrators acquired a derivative title alone. The whole scope and design of the statute is to ex- tend a remedy already accrued, to the representatives of a deceased party, and provide for the survival only of an ex^ isting cause of action. {^Hegerich v. Keddie, supra, pp. 261, 262). It is questionable whether sections nineteen hundred and niue 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 Iby them. {Blalce v. Griswold, 104 N. T. 613) Seo. 2. Rules Applicable to Particular Actions. Sub-division 1. — What does not Abate. The following actions do not abate: all actions arising on contract (Holsman v. St John, 90 N. Y. 461, 463) ; actions for taking and carrying away personal property [Heinmuller 660 PEACTICE. T. Gray, 35 Super. 196) ; actions for damages for trespass on real property (5 Bev. Stat, 7th. Ed., 2394; Matthews v. B. & H. a Co., 20 Hun, 427; Hegerich v. Keddie, 99 N. Y. 258, 261, 262; Bond v. Smith, 4 Hun, 48); an action by a husband against a carrier, to recorer for the loss of the services of his wife, and expenses paid by him in conse- quence of an injury to her (Cregin v. Brooklyn C. T. B. B. Co., 75 N. Y. 192) ; an action against a stockholder, to en- force the personal liability against him for debts of the cor- poration, until the capital has been paid in [Chase v. Lord, 77 N. Y. 1) ; a cause of action under the peculation act (Co. Civ. Proc. § 1969; People v. Starkweather, 40 Super. 458) ; 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 ex- pense in providing care and medical treatment for the plain- tiff's children, was held to abate by the plumber's death, in so far as the action was brought for damages to the plain- tiff's person, but to survive in respect to damages and ex- penses occasioned by the sickness of the children (^Scott v. Brown, 24 Hun, 620) ; an action to recover damages for fraudulent representations, made by the seller of property, or by one who conspires with the seller to defraud the plain- tiff, and gets some advantage from the sale [Haight v. Bayt, 19 N. Y. 464; Moore v. McKinstry, 37 Hun, 194) ; an action by members of a firm 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. Schantz, 35 Hun, 622) ; an action for specific performance brought against executors, does not abate by the death of one de- fendant [Patterson v. Copeland, 52 How. Pr. 460) ; an ac- tion 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. Cockcroft, 40 Super. 519). 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 matter. (Co. Civ. ABATEMENT AND BEVIVAL. 661 Proc. § 758). The rule laid down by tliat section, changes that which was said to be established in Bisley v. Brown (67 N. Y. 160), and analogous cases. The section applies only to contracts made after its passage. [Randall v. Sackett, 77 N. Y. 480). By the revised statutes, an action of ejectment did not abate by the death of the plaintiff. (5 Sev. 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. Civ. 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 re- cover damages for timber already cut. [Matthews v. D. & H. C. 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 continued in her new name, as a matter of course. [Mapes v. Snyder, 59 N. Y. 450). Sub-division 2. — What Actions do Abate. The following actions abate by death: an action for divorce [Hopkins v. Hopkins, 21 Wkly. Dig. 174) ; an ac- tion for dower, by the death of the plaintiff before interlocu- tory judgment [McKeen v. Fish, 33 Hun, 28) ; an action by a tenant for life, to recover real property; but his admin- istrators may after his death, revive the action to recover damages to his estate, by 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 [Spooner v. Keeler, 51 N. Y. 527) ; a cause of action to recover damages for knowingly letting an unhealthy tenement, and thus causing the death 662 PRACTICE. of plaintiff's child ( Victory v. Krauss, 41 Hun, 533) ; an ac- tion to restrain defendant from cutting timber on the lands of the plaintiff, abates by the death of the defendant (^John- son V. Elwood, 82 N. Y. 362) ; an arbitration abates by the death of either party {Manning v. Pratt, 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 {Hegerich 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 ( Cox v. N. Y. Cen. & H. B. B. B. Co., 63 N. Y. 414) ; an action brought under the civil damage act, abates by the death of the de- fendant [Moriorty v. Bartlett, 99 N. Y. 651) ; an action against a physician for mal-practice for causing injuries to plaintiff's person, abates by his death {Best v. Vedder, 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. {Stokes V. Stickney, 96 N. Y. 323; Brackett v. Oriswold, 103 N. Y. 425). In an action for a personal injury, if the de- fendant stipulate, as a condition of obtaining a postponement, that if the plaintiff die before verdict, the cause of action shall not abate, it will survive; and in such a case the plain- tiff's testator will be substituted as plaintiff. ( Cox v. N. Y. Cen. & H. B. B. B. Co., 63 N. Y. 414; McGuire v. Same, 6 Daly, 70). A special proceeding to vacate an assess- ment abates by the death of the petitioner, and cannot be revived by his executor. {Matter of Palmer, 43 Hun, 572). 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 ac- quire 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 general, he is subject to be proceeded against in aU the modes pre- scribed by law to enforce civil remedies, as if he were at ABATEMENT AND BEVIYAL. 663 large. {Bonnell y. E. W. & O. B. B. Co., 12 Hun, 218, 219, and cases cited)i AETICLE II. CONTINUANCE UPON DEATH OP PARTY. SECTION. 1. When sole party dies. 2. When one of several parties dies. Sec. 1. TVIieii Sole Party Dies. In case of the death of a sole plaintiff, or defendant, if the cause of action surviYes or continues, the court must, upon a jnotion, allow or compel the action to be continued by or against his representatiYe, or successor in interest. (Co. GIy. Proc. § 757). 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 y. 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. T. 461). The substitution in all cases is to be made by a motion, and not by a supplemental complaint, as was re- quired in some cases under the Code of Procedure. ( Coit Y. Campbell, supra; Holsman y. St. John, 90 N. Y. 461). An action can not be maintained to procure a substitution of ihe representatiYes of a party who is dead. (^Miller y. Bogers, 18 "Wkly. Dig. 119). Whether or not the repre- sentatiYes of a deceased party will be substituted, is not a matter of discretion, but of absolute right. (^Holsman y. St. John, 90 N. Y. 461). In actions at law, the lapse of time alone will not defeat the motion, (id). But the statute does not compel the granting of the motion in aU cases ; it simply requires that where a party has the right to -the reYivor or continuance, the relief shall be granted on motion. This right is to be determined in equitable actions according to the settled rules of equity, so far as established by precedent; and the court has discretion to refuse to re- YiYe a suit on the ground of delay, where the statute of limi- tations would haYe run against the cause of action, if it had accrued at the time of the death of the party. [Coit v. Campbell, 82 N. Y. 509). It has been held that whenever 664 PBACTICE. a sole party has died, the defendant cannot move to substi- tute the personal representatives of the deceased party, unless he has acquired some right in the litigation, as by pleading a counterclaim and that his remedy is under section seven hundred and sixty-one of the Code of Civil Procedure. (i?e- public of Peru v. Beeves, 40 Super. 316; Livermore v. Bain- bridge, 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 mad© by the personal representatives of a deceased defendant. [Pterson v. Morgan, 44 Hun, 517; Dalton v. Sandland, 4 Civ. Proc. Eep. 73). When a counterclaim had been in- terposed, and issue joined upon it, it was always held th& defendant has acquired such an interest in the action aa entitles him to move. [Livermore v. Bainhridge, supra). The successors in interest who are to be substituted, 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. Marline, 1 Civ. Pro B. 129). Where the plaiutiff dies, and he or his executors have assigned the cause of action, the assignee should be substituted as party plaintiff, although a counterclaim has been interposed by the defendant. [McLachlin v. Brett, 27 Hun, 18; Schlichter V. South Brooklyn Saw. M. Co., 35 Hun, 839). Where an assignee moves to be substituted as a party plaintiff, he must give prima facie proof of his title, and the court upon suck a motion, will not determine which of two applicants has title to the cause of action. [St. John v. Croel, 10 How. Pr. 253). 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. devisees may have the action revived. ( Ward v. Reynolds, 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 com- plaint and proceed de novo, as in a case where an answer o£ ABATEMENT AND EEYIYAL. 665 defect of parties plaintiff has been interposed. (^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 aa her dower has not been assigned. {^Ash v. Cooh, 3 Abb. Pr. 389). In an ac- tion for an accounting 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. Pro. E. 129). Where, in an action to foreclose a mortgage, a de- fendant has parted with his interest pendente lite, and died, the executors, and not the heirs, are the proper parties to be substituted as defendant. [Weyh v. Boylan, 14 Wkly. Dig. 247), An action may be revived against infant repre- sentatives. {Wilkinson v. Parish, 3 Paige, 653). From, the time of granting a provisional remedy, the court acquires sufficient jurisdiction of the action to substitute the repre- sentatives of a defendant, who dies before the summons is served. {More v. Thayer, 10 Barb. 258). And where a summons had been delivered to be served, to the sheriff of the county where the defendant resided, with intent that it should be served ; but the defendant died before service, it was held, that the action might be continued against hia personal representatives, where a new action would be barred by the statute of limitations. {Palmer v. Ensign, 19 Alb. Law. J. 399). The executor may be substituted as a party- plaintiff after judgment. {Robinson v Brisbane, 7 Hun, 180). Where a motion is made to substitute the personal representative, in the place of a deceased party, if the plead- ings show that the cause of action is one that survives, the court will not hear affidavits to the contrary. ( Wing v. Ketcham, 3 How. Pr. 385). If the defendant's representa-. tives have procured themselves to be substituted as parties, after his death, the court will not vacate the order because the action did not survive against them; but the objection may yet be taken at the trial. {Arthur v. Gviswold, 2 Hun, 606; S. C. 60 N. T. 143). An objection that the per- sonal representatives have not been brought in as parties. 666 PRACTICE. may be taken at the trial. {^Hasbrouch y. Bunce, 62 N. Y. 475). Where the court has substituted the executor of the plaintiff, an objection cannot be taken that there is no alle- gation oE the death of the party, or proof of it on the trial. [Isham T. Davison, 3 T. & C. 745). Where the action is reviyed, 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 it- self. [Cregin v. Brooklyn C. T. B. B. Co., 83 N. T. 595, 598). Sec. 2. 'When one of Several Parties Dies. SuB-DiTisioN 1. — If the Entiee Cause op Action Sub- 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 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 it 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 defendants. (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 substitute 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. (^Shale T. Schardz, 35 Hun, 622). If a judgment by default has ABATEMENT AND EEVITAL. 667 teen entered against the survivors, it can not be revived against the administrator of a deceased partner; but a new action must be brought against him, where it is sought to enforce the liability against his estate. [Masten v. Black- well, 8 Hun, 313). Where, in an action against two part- ners, judgment has been recovered and satisfied as to one, but not as to the other, and the latter one dies, his personal representatives may be substituted as plaintiffs, for he has become practically a sole plaintiff in the cause. (^Haokett V. Belden, 10 Abb. Pr. N. S. 123). 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, without substituting the execu- tor of the deceased plaintiff. [Bucknam v. Brett, 85 Barb. 596; 13 Abb. Pr. 119). Where an action of ejectment is brought by tenants in common, one of whom dies, his heirs- at-law must be substituted, or the remaining plaintiffs can only recover the interest which they have in the premises. {Hashrouck v. Bunce, 62 N. Y. 475). If the defendant who dies was not a necessary party, the action may proceed ■without regard to his death (^Hancock v. Hancock, 'll N. Y. 568) ; 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 ac- quired a right or interest against a co-defendant, as for ex- ample, after an interlocutory judgment on his counter claim has been entered, he may on the death of his co-defendant bring in his executors bymotion. [Halstead v. Cockroft, 40 Super. 519). The second sentence of Section seven hun- dred and lifty-eight, as above cited, changes, as we have seen, the rule which formerly obtained as to joint defendants ; and upon the death of one of several joint defendants, his personal representatives can now be substituted, and should be substituted in his place. 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 defendants [Gardner v. Walker, 22 How. Pr. 405); or if the action is for a tort which survives, continue it as a separate action against the representatives of the deceased 668 PKACTICE. defendant. (^Heinmuller y. Gray, 35 Super. 196). It is proper practice to revive against the representative of a de- ceased defendant, and to sever the action, and to continue it as two actions. i^Bond v. Smith, 4 Hun, 48). In such a case, if the action is partly tried, and the testimony of the plain- tiff has been taken, the order, reviving the action against the representatives 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 representa- tives of the deceased party, is appealable to the general term. {St. John v. Cro&l, 10 How. Pr. 253). Sub-division 2. — If Part of the Cause of Action Sub- 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 ac- tion, survives to or against the others, the action may pro- ceed, 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 appli- cation, or upon the application of a party to the action. (Co. Civ. Proc. § 759). AETICLE III. TBANSFEE OF INTEREST, OB DEVOLUTION OF LIABILITY. SECTION. 1. Actions in general. 3. Actions by or against public officers. 3. Special cases. Sec. 1. Actions iu 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 in- terest is transferred, or upon whom the liability is devolved,, to be substituted in the action, or joined with the original ABATEMENT AND REVIVAL. 669 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 con- tinue to prosecute the action in the plaintiff's name, as though no change had taken place. [Cuff v. Borland, 7 Abb. N. C. 194; Arnold v. Keyes, 37 Super. 135). It is optional with the court whether or not to allow the substitu- tion of the assignee. ((?e% v. Spaulding, 58 N. Y. 636). Ordinarily however, it will be granted upon a proper appli- cation, unless the court can see that it would prejudice some right of the defendant ; in which case the court will refuse it, or grant it on terms. [Howard v. Taylor, 5 Duer, 604). Where a cause of action has been assigned, the assignee will only be substituted upon his own application ; and the court will not compel him to be made a party plaintiff in the case. [Howard v. Taylor, 5 Duer, 604; Packard v. Wood, 17 Abb. Pr. 318). An assignee in bankruptcy may carry on a suit in the name of the bankrupt corporation; and it is not xiecessary that he should be substituted, or that he shoidd procure an order to carry it on. [Piatt v. Ashman, 32 Hun, 230). Where an application is made by an assignee to be substituted in the place 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 mo- tion. [Smith V. Zalinshi, 26 Hun, 225). In an action for partition, if one defendant transfers his interest after the oase has begun, the transferee may be substituted in his place [Hornfager v. Hornfager, 6 How. Pr. 13) ; but where the defendant in ejectment transfers his interest, if a notice of ' lis pendens has been filed, the suit may be con- tinued against the original party without 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 en- ters and claims to hold the possession adversely to the plain- tiff. [Moseley v. Alb. & Northern R. E. Co. 14 How. Pr. 17). Where a receiver of a corporation has been appointed. 670 PBACTICE. 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 [Knauer v. Knauer, 11 Keporter, 100) ; or the plaintiff in a proper case, may procure the receiver to be substituted as defendant. {People v. Universal L. Ins. Co., 17 Wkly. Dig. 563). A dissolation of a corporation termi- nates actions against it, and all subsequent proceedings are void, unless they are continued by the court, as prescribed by statute. (McCulloch v. Norwood, 58 N. Y. 562). 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. [Sturges v. Vanderbilt, 73 N. Y. 384). But 4f a receiver -without formal substitution, makes himself a party to the action, and conducts an appeal, the judgment will be effectual against him. [People v. Knickerbocker L. Ins. Co., 7 N. Y. S. Kep. 287). Where two railroad companies 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. [Prouty v. Lake Shore & M. S. E. E. 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. Thwing, 9 Abb. Pr. 323; 18 How. Pr. 458 ;- Moore v. Hamilton, 44 N. Y. 666). Sec. 2. Actions liy and Against Public Officers. Where an action or special proceeding is authorized or directed by 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. Proo. •§ 766). It is optional with parties whether to apply or not, and until they do, the suit- ABATEMENT AND EEVIVAL. 671 should proceed in the name of the original parties. {^Man- chester V. Herrington, 10 N. Y. 164). Where a sheriff dies after having brought an action under section six hun- dred and fifty-five of the code, to recover attached property, his successor in office, and not his personal representatives, should be substituted as parties. ( Orser v. Glenville Woolen Co., 11 Abb. Pr. N. S. 85; 6 Barb. 371). On the death of a public officer, pending an action brought by him, as such,. his successor in office, and not his personal representatives, should be substituted. [Pratt v. Seeley, 20 Wkly. 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 personal representatives should be substituted as defendants, if the action is one which survives. {Hughes v. Eathbone, 3 Alb. Law J. 71). The language of section seven hundred and sixty-six includes special pro- ceedings, and therefore 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. See. 3. Special Cases. The provisions of sections seven hundred and fifty-five to seven hundred and sixty-one of the Code of Civil Procedure, 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 par- tition. The rules for the substitution of parties in eject- ment are laid down in the following sections : The provisions of chapter VIII, title IV 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, different persons succeed to the decedent's title to, or in- terest 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 sue- 672 PEACTIOE. <3essor to the title or interest of tlie decedent, to or in eact ■distinct parcel, be substituted as plaintiff or defendant, as ihe case requires, in the action relating thereto. (Co. OIt. Proc. § 1522). Where the plaintiff seeks to recover damages for withholding the property, and upon the death of a party, different persons 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 io the persons to be affected, and upon such terms as justice xequires, direct the action to be divided into two actions, one io recover the possession of the property, with the rents and profits thereof, accruing after the decedent's death; the other to recover the damages accruing before his death; and that the successor in interest of the decedent, with respect to the cause of action in each action, be substituted as plain- tiff 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 mora plaintiffs, or one of two or more defendants, in an ac- tion 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 execu- tors, for the purpose of procuring an accounting of the rents received, when that has been asked for in the complaint. [Hoffman v. Tredwell, 6 Paige, 308). Where one defen- dant in an action of partition has died, without answer, or appearance in the action, and his heirs have not been sub- stituted, all proceedings subsequently taken in the action, are void against the heirs [Bequa v. Holmes, 16 N. T. 193) ; and the heirs are not estopped from insisting upon its invalidity, because they have appeared on certain motions which were made after the sale of the premises. (S. C, 26 N. T. 338). But where in such an action, certain of the defendants died, pending the action, and other parties sue- ABATEMENT AND BETIVAL. 673 ceeded to their interests, the judgment was held good as to all the interests. (Waring v. Waring, 7 Abb. Pr. 472). ARTICLE IV. HOW NEW PARTIES BEOUGHT 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 tho adve'rse party. [McLoughlin 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 parties, and to the execu- tors 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 representatives of a deceased party, notice of the motion must be given to the representatives whom it is sought to substitute. 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 suc- cessors in interest. {St. John v. Croel, 10 How. Pr. 253). And the title of the party asking to be. substituted must be contested, if at all, on the motion. (^Smith v. Zalinski, 26 Hun, 225). The pleadings should always be made a part of the motion papers, that the court may see from an inspec- tion of them, that the cause of action is one which survives. A motion for a substitution is a proceeding in the action, and the affidavits must be entitled in it. [Davis v. Richards, 2 Law Bull. 97). On the motion, the court will not look into the merits of the action, and will only look at the plead- ing 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 form- erly the case under the Code of Procedure ; but the court may direct a supplemental summons and complaint to be served, if it sees fit. (Co. Civ. Proc. § 760). An applica- tion under section seven hundred and fifty-seven, can be made by either party, as we have seen. (Article I, § 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 43 674 PEACTICE. to file a suggestion of the death of the party, and then th© 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 repealed. It is not proper, however, to con- tinue 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 survivors, is to move on notice to the other par- ties 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. Dubois, 2 Paige, 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 re- quires. 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 de- fendant 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 commenced, remove to itself the original action, with like effect, as if it had been brought therein. Unless the court otherwise directs, the original action, and the cross action must be tried, and judgment therein rendered, as if they were one action. (Co. Civ. Proc. § 760). AETICLE Y. WHEN COUET MAY OBDEE 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 ABATEMENT AND KEVIVAL. 675 party, the court may, in its discretion, upon notice to such persons as it directs, and upon the application of the adverse party, or of a person whose interest is affected, direct that the action abate, unless it is continued by the proper par- ties, 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). AETICLE VI. EFFECT OF VEKDICT, EEPOET, 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. If either of the parties to an action dies, after an accepted offer to allow judgment to be taken, or after a verdict, re- port, or decision, or an interlocutory judgment, but beifore final judgment is entered, the court must enter final judg- ment 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). 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 testi- mony, and to report to the court for information. [Smith V. Joyce, 11 Civ. Pro. E.. 257). The section does not in- clude a case where judgment is taken by defaidt. {Grant V. Griswold, 21 Hun, 509). 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 men- tioned in this section, is reversed, a new trial will not be granted, but the complaint will be dismissed. (Spooner v- Keeler, 51 N. Y. 527). If a new trial has been ordered, and the plaintiff then dies, the action will abate. [Kelsey T. Jewett, 34 Hun, 11). 676 PEACTICE. Sec. 2. No Verdict to Tie Taken After Party's Death. Title IV of chapter YIII of the Code of Civil Procedure, does not authorize the entry of a judgment against a party who dies before a verdict, report, or decision is actually ren- dered against him. In that case the verdict, report, or de- cision 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. (iV. Y. Cen. & H. R. R. R. Co. v. Pettit, 2 McC. Civ. Pro. E. 149). So, if he dies after argument of a motion which does not involve the merits, but before de- cision, the motion can not be decided until the substitution has been had. [Reed v. Butler, 11 Abb. Pr. 128). At common 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 section seven hundred and sixty-five, which forbids the entry of judgment against a party, who dies before the verdict is actually rendered against him. CHAPTEE XXI. DISCOVERT OF BOOKS AND PAPERS. ARTICLE I.— "When ordered. ARTICLE II.— Petition and order. AETICLE I. WHEN ORDERED. SECTION. 1. Wlat courts may malce tlie order. 2. Wlen granted. Sec 1. What Goarts may Make tbe Order. A coTirt 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 in- spection and copy, or permission to take a copy, of a book, document, or other paper in his possession, or under his control, relating to the merits of the action, or of the defense therein. (Co. Civ. Proc. § 803). Sec. 2. VHieii Granted. SUB-DIVISION 1. EULES APPLICABLE TO ALL CaSES. The provisions of the Eevised Statutes, and of the Code t)f Procedure, upon the subject of discovery and inspection, have been repealed. Now, all applications for that purpose must be made under section eight hundred and three, and the six following sections of the Code of Civil Procedure. {Cutter V. Pool, 3 Abb. N. C. 130; Dich v. Phillips, 41 Hun, 603). The object which is sought to be accomplished by discovery and inspection, cannot be obtained by an ex- amination of a party before trial under section eight hundred and seventy-three of the Code of Civil Procedure. [Martin 678 PEACTICE. ■V. Spofford, 3 Abb. N. C. 125). The two are different and distinct proceedings, and they may be pursued concurrently, or at different stages of the action. [McGuffin v. Dinsmore, 4 Abb. N. C. 241). 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 court has made, pursuant to this sec- tion, will be found stated in a subsequent subdivision. Those rules do not restrict the remedy, but they' enlarge it. [SticMer v. Tillinghast, 43 Hun, 95; Babbitt v. Crampton, 1 Civ. Pro. E. 169). "Whether discovery and inspection will be granted at any stage of the action, is, in all cases, discre- tionary with the court. {Clyde v. Rogers, 87 N. Y. 625; 94 N". T. 541). It will only be granted in extreme cases, where a refusal will involve the loss of a claim or defense. {Harbison v. Von Volkenburgh, 5 Hun, 454). It must be made to appear that it is necessary, and not merely a pre- cautionary measure. [Campbell v, Hoge, 2 Hun, 308). And it will only be granted in regard to matters as to which the party applying for it is entitled to relief. {Or ay v. Kendall, 10 Abb. Pr. 343, note). The application for dis- covery or inspection will be denied for laches. ( Walmsley V. Nelson, 3 Abb. N. C. 127). The power to order an in- spection of books and papers, includes the power to compel their deposit for purposes of inspection {Pindar v. Seaman, 33 Barb. 140; Terry y. Bubel, 12 N. T. Leg. Obs. 138); but the better practice is not to order a deposit of the papers of which an inspection is 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 neces- sary 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 evidence his ad- versary will produce upon the trial, or to disprove a fact DISCOVERY OP BOOKS AND PAPEBS. 679 which it is necessary that his adversary should prove upon the trial, the order will not be granted. {^Sanger v. Sey- mour, supra; Shoe and Leather Rep. Ass'n v. Bailey, 49 Super. 385; Douglas v. Delano, 20 Wkly. Dig. 85). Dis- covery should not be ordered of all of the books and papers of the opposite party, unless the necessity of a discovery 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 ob- taining the information for which he asks. [McAllister v. Pond, 15 How. Pr. 299). If the information can be ob- tained by the examination of the party, or by the production of the books and papers upon the trial, the order for the discovefy will be refused, unless some special reason is shown why it should be granted. [Com. Bank of Albany v. Dunham, 13 How. Pr. 541; Low v. Graydon, 14 Abb. Pr. 443; Central Cross Town R. R. Co. v. Twenty-Third Street R. R. Co., 53 How. Pr. 45). Production of books and papers cannot be ordered, in connection with the examina- tion of the party, under section eight hundred and seventy- three of the code. [Hauseman v. Sterling, 61 Barb. 347). Discovery and inspection may be ordered of the books and papers of a corporation. [Burden v. Burden, 23 Wkly. Dig. 289; Frothingham v. Broadway, etc., R. R. Co., 9 Civ. Pro. E.. 304). "When the order is made for the production of the books of a corporation, it will not be required to produce before a referee in New York state, books which are in ac- tual use in an office 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 matters in issue, at a time to be stated in the order. [Ervin v. O. R. & N. Co., 22 Hun, 5C6). 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 it- self. [Bom-man v. A. & P- R. R. Co., 78 N. T. 599). 680 PBACTICE. The books of a receiver may be produced; but where an order is made for that purpose, the receiver will only be re- quired to produce them at such times as will not interfere with the duties of his office, and only such books as are in the judicial district where the application is made. [Fow- ler^ s Petition, 9 Abb. N. 0. 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 ; 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 partner declared to be still subsisting, the plaintiff is not, before judgment, en- titled, 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 testator'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 de- ceased partner, alleging a conspiracy between F. and the executors, in pursuanee of which his father's interest in the firm was sold to T. at a sum far less than its value ; discov- ery 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, rests on different and stronger grounds, than the right of a party to the inspection of the books of his adversary. [Manley v. Bonnel, 11 Abb. N. C. 123). 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 transac- tion in the suit ; and an order for their inspection was held to be proper. [Duff v. Hutchinson, 19 Wkly. Dig. 20). A physician's account books, containing information which would be privileged to his patients, are held not subject to DISCOVERY OF BOOKS AND PAPERS. 681 inspection in an action between the physician and a third person. [MoU v. Consumers^ Ice Co., 2 Abb. N. 0- 14:3) In an action to recover damages for personal injuries, the court has no power to order the plaintiff to submit his per- son to inspection. [Roberts v. O. & L. C. H. B. Co., 29 Hun, 154). A grantor, in whose name ejectment was pro- secuted by the grantee, is not a party who may be compelled to produce books under this section. (^Adriance v. Sanders, 11 Abb. N. 0. 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 produce and discover such writings, and give the plaintiff an inspec- tion, or copy, or permission to copy the writings; it is sub- stantially an order for discovery of documents, 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 examination 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 plain- tiff as to the value of his services. [Mott v. Consumers^ Ice Co. 2 Abb. K 0. 148). Sub-division 2, — Before Issue. Application may be made, in the manner provided by law, to compel the production and discovery, or inspection 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. 682 PBACTICE. 2. The plaintifE may be compelled to make tlie like dis- covery of books, papers or documents, when the same shall be necessary to enable the defendant to answer any pleading of the plaintiff. (General Kule, 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 draw his pleading. 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 in- formation and belief, and not upon knowledge. [Eafferty V. Williams, 50 Super. 66 ; Mehesy v. Kahn, id. 209 ; Duff V. Huichinson, 5 Law Bull. 3 ; Mora v. McCredy, 2 Bosw. 669). An order for discovery will not be granted before issue, to enable the plaintiff to ascertain the names of per- sons who should be made parties to the action [Opdyke v. Marble, 18 Abb. Pr. 266 ; 44 Barb. 64) ; nor will it be granted to enable a party to serve a bill of particulars. {Mcllhanney v. Magie, 12 Civ. Pro. E. 27). An order for discovery has been held proper in the following 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 those who do not appear, under a contract in writing connected with the cause of the injuries, the joint liability under which, the appearing de- fendants deny (Siilwell 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 partnership 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 ex- istence of the partnership (^Newman v. Newman, 20 Wkly. Dig. 283) ; in an action for money received by the defen- dant, as plaintiff's agent (^Ruherry v. Binns, 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 in- spection, the assessment roll and warrant held by him, to enable the plaintiff to prepare the complaint [Board of JEducaiion v. King, 7 Civ. Pro. B. 64) ; in an action against DISCOVERY OF BOOKS AND PAPERS. 683 a corporation. (Frothingham t. Broadway, etc., R. B. Co., 9 Civ. Pro. El. 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 plaintiff might make a com- plaint. [Brownell v. Bank of Gloversville, 20 Hun, 517). If the complaint has been made, the plaintiff will not be en- titled to an order for discovery and inspection, until after the cause is at issue. [Thompson v. UJrie R''y. Co., 9 Abb. Pr. N. S. 230). 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. [Palen v. Johnson, 18 Abb. Pr. 304). Sub-division 3. — After Issue. An order for the discovery and inspection of books and documents, may be granted to enable the applicant .to prepare for trial. [Stichter v. Tillinghast, 43 Hun, 95). But where an application is made for this purpose, the rule ap- plies 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 application 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. Davi- son (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 re- gard to an application under the Code of Procedure, it is not now. The cases now hold unanimously that after issue, to enable a party to procure an inspection and discovery that he may prepare for trial, he must in all cases, allege that such discovery is absolutely necessary. ( Campbell v. Hoge, 2 Hun, 808; Harbison v. Von Volkenburgh, 5 Hun, 454; Walmsley v. Nelson, 3 Abb. N. C. 127). Wherever the ob- 684 PKACTICE. ject of the discovery can be attained by the examination of a party, or by a subpoena duces tecum, the petition will not be granted. Where a principal had brought an action against his agent for an accounting, he was held entitled to consult the books of the agent, for the purpose of enabling him to prepare for trial, where he made it appear that a subpoena duces 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 application. {Duff v. Hutchinson, 19 Wkly. Dig. 20). Where the issue was whether or not the con- tracts sued on were forged, the defendant was entitled to an inspection and an opportunity to take photographic copies {Cornell v. Woolsey, 7 Wkly. Dig. 555); although the plaintiff denied having the contracts in his possession ; but did not say where they were, or explain how they had passed out of his control. {Hepburn v. Archer, 20 Hun, 535). A motion by one defendant, to compel another defendant to produce documents, 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. {Rafferty v. Palmer, 34 Hun, 544). 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 entitled a party to procure such a discovery or inspec- tion, he must present a petition, praying therefor, and veri- fied by affidavit, to the court, or to a judge authorized to make an order in the action. (Co. Civ. Proc. § 805). The DISOOTERY OP BOOKS AND PAPEES. 685 application must be made by petition. (^Cutter v. Pool, 3 Abb. N. 0. 130; Levey v. N. Y. C. & H. E. E. E. 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. Sil- ver Mill. Co., 2 Abb. Pr. N. S. 413) ; but that case does not apply under the Code of Civil Procedure; for it expressly requires that, to obtain a discovery, the party must present a petition. [Dick v. Phillips, 41 Hun, 603; John S. Way Mfg. Co. V. Corn, 66 How. Pr. 152). The moving papers, upon the application for such discovery, or inspection with copy, shall state the facts and circumstances on which the same is claimed, and shall be verified by affidavit, stating that the books, papers and documents, whereof discovery or inspection with copy is sought, are not in the possession, nor under the control, of the party applying therefor. The party applying shall show to the satisfaction of the court or judge, the materiality and necessity of the discovery sought, the particular information which he requires, and that there are entries in the book or paper referred to, of the matter he seeks a discovery of, or inspection with copy. (General Kule, 15). The facts and circumstances required to be stated by this rule, are such as show the necessity for discovery, and that the evidence or information sought cannot be ob- tained from any other source; and that a subpoena duces tecum or an examination of the party, will not answer the purpose. [HoUz v. Schmidt, 34 Super. 28; Thompson v. ErieE'y. Co., (No. 1) 9 Abb. Pr. N. S. 212; Hauseman V. Sterling, 61 Barb. 347). While it may not be necessary to aver that the discovery sought is indispensibly necessary, and that the applicant has no means of establishing the same facts by other available proof ( Whitivorth v. Erie E. E. 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 thfey 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 de- sired [New England Iron Co. v. N. Y. Loan & Imp. Co., 686 PKACTICE. 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). Ab- solute proof of the facts stated in the petition, is not neces- sary ; but there should be sufficient to raise the presumption ; and that presumption will be enough to warrant the grant- ing of the order ( Union Paper Collar Co. v. Metropolitan Collar Co., 3 Daly, 171; Whitworth v. Erie R. B. Co., 37 Super. 437) ; especially if it is not denied. [Lefferts v. Brampton, 24 How. Pr. 257). A sufficient description 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. Gray don, 14 Abb. Pr. 443) ; and so that the court can see that the books and papers sought for, are competent evidence. (Speyers v. Torstritch, 5 Eobt. 606; Strong v. Strong, 8 Eobt. 675). A mere statement that they contain evidence, or that the applicant is advised by counsel and believes that they are evidence, cannot be substituted for the facts and circumstances, on which the court can form its own judg- ment. {Strong v. Strong, 3 Eobt. 675; Mer quelle v. Con- tinental Bank Note Co., 7 Eobt. 77). The motion will not be granted where the entries sought are not shown to be evi- dence, but only information by means of which evidence can be obtained. {Woods v. DeFiganiere, 1 Eobt. 681). The petition must state precisely what information is desired. (General Eule, 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 sufficient; it must also be stated positively, that the books and papers are not in the possession or under the control of the applicant. (General Eule, 15; Jackling v. Edmonds, 3 E. D. Smith, 539). 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 {Jack- DISCOVEEY OF BOOKS AND PAPERS. 687 ling V. Edmonds, supra) ; but that statement is not neces- sary, and it will not obviate tbe necessity of stating facts from which the court can judge. The petition must be veri- fied by the party ; or some reason should be stated why it is made by the attorney. [Phelps v. Platf, 54 Barb. 557). Where an application is made, pending a trial before a referee, his certificate that the production of the papers was necessary, is presumptively sufficient to warrant the making of the order, where the action is for an accounting. {^Frazer V. Phelps, 3 Sand. 741). Seo. 2. Order to Sho-nr 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 grated ; and, if necessary or proper, that his proceedings 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). 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, VHiat 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 in- spection 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 inspection is to be made; and when papers are required to be deposited, the order shall specify the time the deposit shall continue. (General Eule, 16). As section eight hundred and five requires that the order 688 PBACTICE. 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 prescribed 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 re- q^uired ; if it is too broad, it will either be vacated or re- versed on appeal ( Walker v. Granite Bank, 44 Barb. 39) ; or it will be modified on motion, so as to require the pro- duction only of such documents as are proper. [Clyde v. Bogeys, 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 showing," etc., is too broad. (^Julio v. Ingalls, 19 Abb. Pr. 448, note; Walker v. Granite Bank, supra). The court or judge may direct, that the order, directing the discovery or inspection of books, papers or documents, shall operate as a stay of all other proceedings in the cause, either in whole or in part, until such order shall have been complied with or vacated; and the party obtaining such order, after the same shall be complied with or vacated, shall have the like time to prepare his complaint, answer, reply or demurrer, to which he was entitled at the making of the order. (General Eide, 17). 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 per- mit 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 the return of the order to show cause, the authorities upon that subject will be referred to in the next section. DISCOVERY OP BOOKS AND PAPEES. 689 •Sec. 5. Proceedings on Return of tlie Order. Upon the return of an order to show cause, the court may make such an order, with respect to the discovery or inspec- tion 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) ; 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 af&davit 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, ( Walmsley 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 en- tries, 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 possession 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; Ahoyke 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 attorney ( Woods v. DeFiganiere, 1 Eobt. 681) ; or although he admits that a third person gave them to the attorney who now has them. {Douglas v. Delano, 20 Wkly. Dig. 85). But a bare denial of the pos- session 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) ; nor will an affidavit that the party has not possession of the 44 690 PBACTICE. books, be sufficiem;, if it is evasive, in showing how he parted with the possession of them. (^Hicks v. Charlick, 10 Abb. Pr, 129). 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 Under the Order. Where 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 presump- tive, 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 re- quired by the order, which should be strictly complied with, in every respect. (Snyder v. Olmstead, 1 How. Pr. 194). If the order is indefinite, as to' produce all books, etc., con- taining 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 the court has been complied with. {Hart v. Ten Eyck, 2 John. Ch., 513; Hallett v. Hallett, 2 Paige, 432). If the adverse party claims that other books should be pro- duced, or that the sealed portions of those which are pro- duced, 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 pro- ducing the books, refuses to comply, an application should DISCOVEEY OF BOOKS AND PAPERS. 691 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. Gortelyou, 1 Barb. 444). If no referee has been appointed, and the petitioner claims that the discovery- is insufiicient, and the order has not been complied with, he should apply to the court on motion, or by order to show cause, why the omissions should not be supplied. The mo- tion papers should show what books were presented, under the order for discovery, and what omissions, or defects, ol- 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 discov- ery, (id). A party who has made a discovery, may with- draw the books or papers, after they have remained such time as the court has prescribed. {Stow v. Betts, 1 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 hun- dred 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 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 inspec- tion; 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 de- fault, the court, in a proper case, may direct that his com- plaint be dismissed, or his answer, or reply be stricken out, and that judgment be rendered accordingly ; or it may make 692 PEACTICE. an order, striking out one or more causes of action, defenses, counterclaims, or replies, interposed by him ; or that he be debarred from maintaining 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). INDEX A. ABATEMENT OF ACTION: pagb none, if cause of action survives 658 test wlietlier cause of action survives 6i5y for wrongs to property rights and interests 608 what actions do not abate 659 what actions do abate 661 on death of party jointly liable 660 none, by marriage 661 if party imprisoned in State prison 663 against corporation, by dissolution of 670 when court may order action abated 674 none after verdict, etc. 675 when action for personal injury does not abate 675 ACCOUNT: limitation of action on 83 how alleged in pleading 252, 274 copy of, see Bill of Items. ACCOUNTING: allegations ia action for 313 ACCOUNT STATED: allegations in action for 313 ACKNOWLEDGMENT : what prevents running of statute of limitations 69 what sufficient to prevent running of statute 86 when must be in writing to prevent running of statute 86 by whom may be made 87 amendment, of 640 ACTION: may be tried elsewhere than at court house ... 7 pending in Supreme Court, when triable at chambers 7 may be noticed for trial at adjourned terms 9 when Supreme Court may remove to itself 43 when may be discontinued as to unnecessary parties 47 defined 60 forms of, abolished 60 limitation of, see Limitation oi" Action. to compel a determination of claim to real property, who may be parties to 134 parties to, see Pabtiks: commenced by service of summons 144 when jurisdiction acquired in 144 of replevin, when jurisdiction acquired in : 145 G94: INDEX ACTION— (Confe'nM«(?): page wlieu judgment in, may be taken without application to court .... 147 on bond or undertaking, before wliom brouglit 234 consolidation of, see Consolidation of Actions. when court may direct that one action abide event of another . 336 dismissal for neglect, see Dismissal. how far barred by counterclaim in previous action 369 in what, order of arrest granted, see Aekebt and Bail. when prosecution of, will be restrained by injunction 458 on undertaking, given on obtaining injunction 499 to foreclose mechanic's lien, receiver in 576 severence of, when part of claim admitted 623 abatement of, see Abatement of Action. continuance of, see Continuance of Action. substitution of party in, on transfer of interest 668 ADJOURNMENT: of courts of record 9 in absence of judge 9 ADMINISTRATOR: temporary, when may sue and be sued 113 See Executors and Administrators. ADMISSION: of service of papers 224 of service of summons, see Summons. what deemed admitted in construction of pleading 272 in pleading, how construed 273 in pleading, cannot be controverted 278 ADVERSE POSSESSION. See Limitation of Action. AFFIDAVIT: clerk may take 14 of service of summons, what must appear in 161 of substituted service of summons, what must show 163 of service of summons by publication, what must appear in 167 how to be entitled 193 venue must be stated in 194 name of deponent must be stated in 194 when more than one deponent 194 facts only, to be stated in 194 should be divided into paragraphs 195 must be signed by deponent 195 must be sworn to 195 what necessary in jurat 195 statement of no previous application in, when necessary 195 requisites of, on application to extend time 196, 227 before whom taken, within the state 197 before whom taken without the state - 198 how authenticated 198 when authentication sufficient 198 See, also. Deposition. to obtain order to show cause 303 INDEX 695 AFFIDAVIT— (CoTiforeiwd): page of service of papers, other than summons 323 when to be filed. 225 for extension of time, must be served with order 228 for bill of particulars, what should state 278 on procuring order of arrest 413, 414 on procuring warrant of attachment 517 amendment of 640 , OD motion for substitution, what must be shown by 640 AFFIDAVIT OF MERITS: when necessary 196 by whom made 196 what to be stated in 197 not required on motion to vacate for irregularity 654 AFFINITY OF JUDGE: when disqualifies 10 AGENT: limitation of action by principal, for neglect of 83 must sue in name of principal 107 when may sue in his own name 107 when verification of pleading may be made by 264 AMENDMENT : of notice of pendency of action 186 of notice of appeal, when not allowed 229 of defective undertaking, when allowed , 233 of pleading, when may be made of course 282 new causes of action may be set up by 283 what may be made of course 282 when must be made within twenty days 283 right to amend, how waived 283 what is amendment of course 283 effect of 283, 284 amended pleading must be served 283 "by leave of court before trial 284 what will be allowed 285 when application must be made for 286 reason for, must be shown 287 application for, must be upon notice 287 copy proposed pleading must be served 287, 646 order for, what should provide 287 at trial, who may grant 287 rules for 287 what will be allowed at trial 288 what is material variance 288 granting of application for, discretionary 289 of pleading after trial, when allowed 289 may be made by appellate court 289 what will be allowed 289 terms of allowing 292 after demurrer, see Dbmukrer. 696 INDEX. AMENDMENT— (COTifo'rtued): pagk of technical def cts on motion to vacate attachment 557 of olf er of compromise 629 wliat may be amended 633 void proceeding cannot be amended 633 excuse must be shown on application for 633 delay, ground for refusing 633 no distinction in granting, between kinds of action 634 when allowed on motion to vacate proceeding for irregularity 634 of summons 635 of processes other than summons 636 of judgment roll, on oSer of compromise 637 of statement, on confession of judgment 638 of judgment , 688 of judgment after appeal 639 of acknowledgments 640 of alHdavits 640 of warrant of attachment 641 of bonds and undertakings 641 of cases 643 of commission to take testimony 643 of notice of appeal 633, 644 of orders 644 of petitions 644 of returns 644 of sheriff's certificates and deeds 645 of verdicts 645' application for, to whom, and when made 646 terms of granting 64& what may be made by court only 646 mode of making 646 effect of 647 ANSWER : of title, within what time made 63 defense of statute of limitations, must be set up in 88 when must be served 180 amendment of, see Amendment. sham, may be stricken out 297 part of defense cannot be stricken out as sham 297 general denial in, cannot be stricken out as sham 297 what is sham defense in , 297 falsity may be shown 298 when may be stricken out as sham , 298 when required 347 no particular form of, necessary 347 what must contain 348 what may be denied , 348 denial In, should be direct 349 general denial, what is 849^ what may be proved under 853 denial or information and belief, when good in 350 INDEX. 697 ANSW:KTi—{GonHiiued): page specific denial, what is 350 liow parts of complaint denied, should be referred to in. 351 denials, " except as admitted," etc., when good 351 when allegations iu, are not a denial 353 new matter in, what is 354 may be pleaded either for complete or partial defease 354 when defense of, deemed controverted by plaintiff 273 defendant may interpose all defenses in one 355 defenses may be inconsistent in 355 when defendant will be required to elect 355 any defenses existing at time of, may be pleaded in 356 partial defenses may be pleaded in 356 what is partial defense 356 matters in mitigation of damages must be pleaded in 356 how such matters to be pleaded 357 when not regarded as counterclaim 369 what relief must be demanded in '370 when demurrer may be joined with 379' when objection to complaint must be taken by 391 when objection waived by 391 judgment for plaintiff, when part of claim admitted by 63& when discovery granted to enable party to frame 681 See Counterclaim — Demukrek — Satisfaction — Discovery op Books and Papers. APPEAL: from order, time for, limited 315 time to take, cannot be extended 229 how extended by death of party 239 amendment of notice of 633, 644 irregularity cannot be corrected by 653 APPEARANCE: equivalent to personal service in superior city court 47 when defendant may appear 179 within what time, must be made 175 how made 175 what constitutes general 176 equivalent to personal service of summons 176 gives jurisdiction of person 176 does not give jurisdiction of subject matter 177 when entitles defendant to notice of subsequent proceedings 177 what waived by 177, 178 by attorney, good 177 when does not restore attachment 179 when entitles only to notice of subsequent proceedings 180 what irregularity waived by general 655 ARBITRATION: when time to sue extended by 81 ARREST: attorney privileged from 3& 698 INDEX ARKEST— Continued): page time of defendant to answer after 180 who may be arrested 406 who are privileged from 406, 413 See, also, Abbbst and Bail. ARREST AND BAIL: where right to arrest depends upon nature of action 398 in action for fine or penalty 394 in action for personal injury, what included in 394 in action for separation 395 in action for injury to property 396 what are such actions 396 not granted in action for money lost at play 397 not granted where property converted and tort waived 397 when not granted for breach of promise 397 for misconduct or neglect in oflfice 397 against attorney for money collected 397 in action for money received in fiduciary capacity 398, 400 in action for damage for fraud or deceit 398 in action to recover chattel, fraudulently disposed of 399 in action for conversion of public property 401 in action on contract for fraud in incurring liability 403 only granted when authorized by statute 393 when should not be granted 394 where right depends partly upon extrinsic facts 404 substituted for writ of ne exeat 404 against whom it will be granted 405 for what purpose order will be granted .- 405 privilege from arrest 406 who may be arrested 406 when woman can be arrested 406 incompetent person, when to be discharged 407 when infant cannot be 407 one sued in representative capacity, when cannot be 408 members of congress, when 408 persons in public service 408 members of legislature 409 officers of legislature 409 elector, on election day 409 militia 409 soldiers of United States 410 foreign ministers 410 witnesses 410 parties to actions, when 411 police officers 411 ofiicers of court 411 prisoner in arrest 411 one brought within jurisdiction by fraud 412 privilege, how waived 413 papers necessary to obtain 403, 413 only to be granted on affidavit ". 413 iXDEX. 699 ARREST AND BAIL— {Gontiniiedy. page when affidavit upon information and belief sufficient 414 liow facts must be stated in affidavit for 414 papers must be filed 428 undertaking to be given in 416 when required 416 when may be dispensed with 417 order for, by whom granted 417 when granted only by court 417, 418 what county judge may grant 418 when may be granted 417 contents of order 419 may fix time within which defendant must be arrested 419 may state grounds on which granted 430 must be subscribed by attorney 420 how vacated or modified 420 when application must be made to 420 must be vacated, if no cause of action, in complaint 421 when made on papers on which order was granted 423 when founded upon proof by affidavit 422 when notice required 422 county judge may hear motion for, on notice 424 rules of decision, on motion 432, 423 when motion to, may be joined with motion to reduce bail. . . 434 to whom application must be made 423, 434 when court may require stipulation not to sue 424 how arrest made 437 must be made within county 437 where time fixed for, cannot be arrested afterwards 428 what papers must be served upon arrest 438 bail, how given 429, 430 sureties may be required to justify on 480 proceedings upon justification of sureties 430 where justification may be made 431 qualification of sureties on 431 deposit may be made instead of bail 433 deposit to be paid into court by sheriff 432 money deposited, how disposed of 438 -when defendant entitled to discharge for delay of plaintifE 425 liability of sheriff after arrest of defendant 434 rights and privileges of sheriff, when liable 436 when bail may surrender defendant 435 how surrender to be made by bail 436 how surrender to be made by defendant 436 liability of bail, on failure to justify 437 bail can only be proceeded against by action 437 when such action may be brought against bail 437, 438 what defenses may be interposed in action against bail 438 how discharged before expiration of time to answer 439 exoneration of, after action commenced 439 00 INDEX. ARREST AND BAIL—{OonUnued): page may be permitted to defend original action 440 See, also, Pkovisional Remedies. ASSAULT AND BATTERY: allegations in action for 313- ASSESSMENT: will not be restrained by injunction 471 ASSIGNEE; how appointment of, alleged in complaint 313 when counterclaim allowed against 864 when substituted as plaintiff in place of assignor 669 ATTACHMENT: when not restored by appearance 179 notice of pendency must be filed, after warrant of 183 cancellation of notice of pendency 187 when and by whom it may be granted 505 who may sue out 505 when non-resident may obtain 505 in what actions granted 506, 508 in what actions cannot be granted 508 cause of action must exist at time of application for 506 distinction between, under code, and under revised statutes 506 only granted in cases authorized by statute 507 granting of, discretionary with court 507 may be granted in action for unliquidated damages 507 against non-resident 509' what constitutes non-residence 509 when granted against foreign administrator 509- not granted against foreign receiver 510 not granted against resident member of non-resident firm 510 granted against foreign corporation 510- granted against national bank 510' against absconding or concealing debtors 510 against one removing, assigning, or secreting property 513 property removed must be that of defend mt 513 threatening to make preferential assignment, whether ground of . . 513 agreement to give preference, not ground of 513 assignment, fraudulent in law, not sufficient ground for 513 not necessary that defendant should dispose of all of his property to entitle plaintiff to 513 against public officer 513 may be granted to accompany summons 514 jurisdiction lost if summons not served in thirty days 514 when jurisdiction acquired by general appearance 515 service upon all partners necessary to retain jurisdiction 515 service by publication, what sufficient 516' what jurisdiction retained, without actual service 516 substituted service, not sufficient 516 by whom warrant granted 517 INDEX 701 ATTACHMENT— {Continued): page papers on which grsinted 517 application must l)e founded upon affidavit 518 wliat must be shown by affidavit 517, 519 by whom affidavit may be made 518 cause of action, how stated iii affida\ it for 518 when affidavit on information and belief sufficient 518 when allegations on information and belief do not give juris- diction 619 amount due must be stated in affidavit for 519 how statement of amount due to be made 519, 520 must appear that debt is due 531 how nou-residence must be stated in 521 facts showing defendant has absconded, etc., must be stated. . 521 intent must be shown 510, 613, 531 need not be stated, no previous application made 523 how other papers referred to in affidavit 533 deposition of party cannot be compelled 532 deposition of third party may be compelled 523 prima facie proof of fact sufficient 523 what must must appear in, in action against public officer. . . . 533 affidavits must be filed 523 security on obtaining warrant 524 undertaking must be given 534 if undertaking defective, new one may be ordered 534 when amount of undertaking will be increased 534 liability of sureties 524 sureties not exonerated by vacating for error. 558 warrant improperly granted, no defense to sureties 535 warrant must be subscribed by judge and attorney 535 must recite grounds of attachment 535 to what sheriff, warrant directed 525 form of warrant 535 several may be issued 535 may be amended 535 liability of sureties 534 sureties not exonerated by vacating attachment for error 558 warrant improperly granted, no defense to sureties 535 execution of warrant, must be by sheriff 536 how to be executed 526, 527 levy upon, not made after final judgment 537 sheriff may require indemnity 527 inventory to bj returned 527 return of the attachment 537 what properly may be attached 538 real property may be levied upon .■ 538 how levy made upon real property 533 lis pendens to be filed 532 pergonal property, what may be levied upon 528 mortgaged property, what may be levied upon 538 money collected by sheriff 538 702 INDEX ATTACHMENT— iCo7itimtMy. page property of a firm 528 property of foreign corporation 538, 539 property disposed of, with intent to defraud creditors 539 stock of defendant in corporation 539 stock of foreign corporation, when not leviable upon 539 may be levied upon chose in action 539, 530 choses in action transferred before levy, not levied upon against assignor 530 legal debt only can be levied upon 531 levy upon personal property capable of manual delivery, how. . . . 532 failure to deliver copy warrant, does not invalidate levy 533 levy on property not capable of manual delivery, how made 533 includes property pledged 533 judgment how levied upon 634 notice of property levied on, what sufficient 534 duty of debtor after levy 535 warrant of, lien from time of levy 535 levy does not relate to time of original demand of property 536 when certificate to be furnished by possessor of property. ... .... 536 order for examination, if certificate refused 537 when such order may be granted 538 what examination may be had under such order 538 remedy of sheriff after examination 539 master of vessel, when entitled to undertaking upon levy 539 form of undertaking 540 inventory to be made by sheriff 640 to be filed within five days 540 failure to make, does not invalidate levy 540 may be amended 541 return of, may be compelled 541 what suits may be brought by sheriff with regard to attached property 541, 643 when plaintiff in action may sue to collect attached property 541 when plaintiff may be joined with sheriff in action already brought 543 court may direct as to prosecution of such action . , 543 what application may be made as to, by plaintiff in second war- rant 564 when plaintiff in second warrant, substituted in action 564 when plaintiff in second warrant, allowed to bring action 564 rights of plaintiff in third and subsequent warrants 5(i5 how far sheriff may attack assignment as fraudulent 642 how property kept by sheriff 543 when sheriff may be compelled to pay money into court 643 lien of sheriff upon levy, nature of 544 duty of sheriff as to books taken 544 money lost, who liable for 644 when court may release property attached 544 when court may direct things in action to be sold 567 notice of application for such order 56T INDEX. 703 ATTACHMENT— (Con EXECUTORS AND ADMINISTRATORS: fage limitation of action against 80 Sy, when cause of action accrued in life of testator 80 only to sue or be sued in representative character 113 how judgment against, enforced 113 all considered as one person 113 separate answers by, when allowed 113 to whom letters testamentary not issued, not necessary party 113 foreign, cannot be sued within this State 113. what actions they may bring 113 of deceased partner, when not to be joined as defendant 114 to be sued personally on contracts made after testator's death 114 appointment must be alleged in action by 334 counterclaim in action by or against 366 upon death of sole surviving, receiver may be appointed 579 when action may be continued by and against C68, 659 in what action to be substituted 664, 665 EX PARTE: motion, what is 188 requisite of affidavit on 195 renewal of 309 order of judge need not be entered 313 when may be entered 313 how vacated 316 when injunction will be vacated 500 EXTENSION OP TIME: how and by whom made 196, 337 affidavit for, what must show 337 must be served with order 338 what does not operate as , 838 by whom made, after time has expired 338 in what cases time cannot be extended 339 to appeal, by death of party 339 EXTRA ALLOWANCE: after offer of judgment 631 EXTRAORDINARY TERMS: of Supreme Court & F. FEES: of clerk, how fixed 14 may be demanded in advance 14 trial, when payable 14 of sheriff 20 of coroner, when acting as sheriff 31 FIDELITY OR SURETY COMPANY: undertaking by 330 when statement of condition to be made 330 where to be filed 330 ■720' INDEX FILING OF PAPERS: page when order for filing will be granted 234 in special proceedings, where filed 324 undertaking when to be filed 224 in what office to be filed 235 in arrest and bail 438 on injunction, must be filed 493 in attachment must be filed 533 FIRST DISTRICT: where motions may be made in 190, 191 when proceedings may be stayed in, after notice of trial 305 FORECLOSURE: who must be plaintiffs in action for 133 who must be defendants in action for 133 one liable for payment of mortgage may be joined as 134 when notice of pendency must be filed in 181, 183 efEect of such notice 185 receiver in action for 578 FOREIGN CORPORATION: service of summons upon, how made 157 attachment against 510 See CoKPOBATioif. FRANCHISE: when interference with restrained 457 FRAUD: when action for, barred by limitation 73, 73 facts constituting, must be alleged in complaint 330 arrest in actions for, see Akeest and Bail. FRIVOLOUS PLEADING: judgment on 394 See Pleading G. GENERAL APPEARANCE. See Appearance. GENERAL RULES: by whom made 1 binding upon courts of record 3 must be consistent with code 3 when to take effect 3 where none made, what practice controls 2 See Rules. -GENERAL TERM: may make rules 2 of Supreme Court, when held 5 of superior city court 8 when will hear application to vacate injunction without notice. . . . 500 INDEX 721 GUARDIAN AD LITEM: page when court may appoint, for incompetent person 153 See Infant. H. HABEAS CORPUS: may be issued and served on Sunday 6 by United States soldier, jurisdiction of 86 HIGHWAY: action for animal seized in, ■when barred 76 when obstruction of restrained 457 I. INFANT: leave to sue, in action of partition by 100 when may bring action of partition 128 plaintiflE 137 guardian ad litem must be appointed for 137 who may be guardian for 138 when attorney or ofBcer of court must act 138 consent must be produced before appointment 138 application for appointment of guardian for, how made 138 by whom made 139 to whom made 140 to whom made in actions for partition 140 what must show 140 security by guardian for, in action of partition 141 clerk, when appointed guardian, must give security 141 guardian of, not to receive property without giving security. . 141 court may direct new bond to be given by guardian of 141 efEect of failure to appoint guardian ad litem for 141 compensation of guardian ad litem for 142 defendant 137 must appear by guardian ad litem 137 application for guardian ad litem for, how made 138 when to be made 139 notice of , . . . . 139 what must show 140 when absent from State, how guardian appointed 140 when summons may be served on such guirdian 141 effect of failure to appoint guardian ad litem for 143 duties of guardian ad litem of 143 such guardian not liable for costs 142 how summons served upon 151 when appearance must be made by 180 when may be arrested 407 receiver in action by or against 580 46 722 INDEX. INJUNCTION: PAGE witli order to show cause, when ceases 215 complaiat, in action for 3^0 defined 441 distinction between final and temporary 443, temporary, when granted by order 441 object of granting temporary 443 only granted in cases prescribed in Code 443- granting of, discretionary with the court 443- only granted in action 44:i plaintiff's rights must be clear 444 injury must be irreparable 444 when inadequacy of legal remedy must appear 44!> when will be refused for laches 445- only granted when necessary to protect plaintiff's rights 444, 445' where right to, depends upon nature of action 44(> applies only to suits in equity 44& can be granted only on complaint ■. . . 446, 481 must be asked for in prayer for judgment 345, 447 restrictions upon granting 447 where right depends partly upon extrinsic facts 447 meaning of phrase " subject of the action " 448 may be granted before service of complaint 448 various cases where injunction will be granted 449' violation of contract 449 violation of copyright 449 corporations 450 directors of corporations 450 in action for sequestration 451 to vacate incorporation 453 to annul corporation 452 creditors, when will be restrained from suing 453 religious corporations 453 municipal corporations . , 453 ordinances of municipal corporations 453, covenants 454 easements 455 franchises 457 highways 457 actions at law 458- actions in foreign courts 459 how application made for injunction 460 judgments 461 summary proceedings 463 nuisances 463 quo warranto 465 official acts 466 tax-payer's action 467 to restrain arrest 467 personal services 469 libel, publication of 46ft INDEX 723 INJUNCTION— (Co»«j«M«(2): page private letters 469 publications 470 patents 471 assessments 471 trade marks 473 trespass 474 torts 475 waste 475 water rights 477 proceedings to obtain order 478 application may be granted before service of summons 478 must be made before judgment 478 cannot be granted after judgment 478 by whom granted , 478 at what term made 478 when must be made at general term 480 when can only be granted by court 478, 479 power of judge to grant, where derived 479 in what cases county judge may grant 479 when may be made with or without nrtice 480 In what case notice must be given 480 not an ordinary proceeding in action 480 when continued after order to show cause 481 papers on which granted 481 when complaint must accompany application 481 affidavit only effective as proof of facts alleged 483 when complaint need not accompany application 483 verified complaint, when sufficient as affidavit 483 facts must be shown in, by positive affidavit 483 when allegations made on information and belief sufficient . . . 483 must be filed forthwith 483 undertaking to be given on application 493 must be, on granting, to stay proceedings 489 what required to stay proceedings on judgmeut for money. . . . 489 when bond may be given in lieu of payment into court 491 to stay proceedings in action for ejectment or dower 490 plaintiff may supply, after injunction, on terms 490 required to restrain summary proceedings 491 what, to restrain judgment obtained by fraud 491 when money paid into court, may be paid over to party 491 proceedings in such case, if injuction vacated 493 must be filed 493 in actions relating to real property 493 in what action security not required 493 order, should recite grpunds for 483 what should show 484 parties only to be restrained by 484 agent of defendant, may be restrained by 485 service of order for 485 papers on which granted must be served with 485 724 INDEX INJUNCTION— (Continued): page undertaking must be served with 485 order cannot be served before summons 485 effect of 485 must be obeyed, if court had jurisdiction, although irregular, 485 parties to action, bound by 485 ■who bound by as agent 486 third parties not restrained by 486 •when notice of, without service, sufficient to bind party 486 how must be obeyed 486 punishment for violation of 487 who will be punished for violation of 487 advice of counsel, how far protection in such case. . . 487, 488 damages sustained by, to what extent plaintiff liable for 494 when right to, accrues 495 how ascertained 496 proceeding for, not part of action 496 order of reference to ascertain 496 who entitled to notice of proceeding, under 496 proceedings upon reference 496 what allowed 497 what allowed, in action of ejectment or dower , 498 counsel fees, what allowed 498 allowed to corporation, etc., when defendant, officer, etc 498 action on undertaking 499 vacating or modifying, order 499 when motion for, may be made without notice.. 499 when general term will hear application without notice 500 when will be vacated ex parte 500 when notice of motion must be given 500 by whom motion to vacate may be made 500 when plaintiff may read papers in opposition to motion 500 proof required, when made on papers on which granted 500 in such case, plaintiff cannot make new proof to sustain 501 verified complaint, when referred to, to sustain 501 when second application may be made 501 effect of verified answer on hearing motion 482, 501 when injunction will be dissolved on motion 501, 502 not vacated for irregular service 502 not vacated for defect of parties 503 motion not heard where action discontinued 502 on giving undertaking by defendant 493, 503 when merged in final judgment 5U3 not dissolved or vacated where cause removed to Circuit Court of United States 504 effect of subsequent proceedings in the action 503 See, also, Pbovtsionai, Remedies. INJURY: when action for barred 71 INSPECTION WITH COPY. -See Discovery of Books and Papkks. INDEX 725 INSTRUMENT, FOR PAYMENT OF MONEY ONLY: page how alleged in pleading 254 verification in action upon 364 INTERPLEADER: TS-hen will be ordeted 336 what moving party must show 237 money or property must be brought into court 338 when motion for will be denied 338 in action against savings bank 388 order for, what may provide 239 how appealable 339 costs upon 339 IRREGULARITY: when motion made for relief on ground of 189 form of notice of such motion 203 notice, what must specify 303 when notice need not specify 654 aflSdavit of merits not required on such motion 654 what are 650 distinction between technical and- substantial 650 who may take advantage of 651 remedy for 652 motion to vacate must be made promptly 653 motion to vacate judgment for, when to be made within one year. . 653 only irregular proceeding set aside, on motion for 654 how waived 655 what, by general appearance 655 no waiver, without knowledge of facts 656 intention to waive, when inferred 656 what cured by verdict or judgment , 656 ISSUES: motion for settlement of, when made 189 formed by copy of pleading served 258 J. JEOFAIL: statute of 666 JOINT STOCK ASSOCIATION: actions by or against, in name of president or treasurer 108 to what bodies provision applies 109, 110 includes suits by or against members , . . . 109 officers cannot all be joined 109 JUDGE: of superior city court, powers of, when designated to hold circuit. 7 shall not sit where a party, or interested 10 when may act, although interested 10 • how disqualified by consanguinity or affinity 10 not to decide question argued, when not present 11 726 INDEX JUDG-E — (Continued): page not to be interested in costs 11 not disqualified, because resident of town interested in action 11 not to practice in his own court 13 law partner or clerk not to practice in his court 13 of court of appeals, not to practice 13 of certain courts of record not to practice 13 not to sit in review of his own decision 13 when disqualified by age 13 of superior city court, powers of 47 of court of common pleas, powers of 49 county judges in certain cases, powers of 49 powers of, out of court 57 when court is of limited jurisdiction 57 of superior city court, when has power of supreme court 57 who may make orders out of court 58 can not grant stay of proceedings for more than twenty days 304 when may vacate order 316 JUDGMENT: entered on Sunday, void 4 may be entered on election or town meeting day 5 when may be entered or docketed 16 attorney may satisfy within two years 89 limitation of action on 69, 73 when leave to sue necessary 91 from what court leave to be obtained 93 may be granted, nunc pro tunc 93 how entered against defendants severally liable 134 when may be taken without application to the court 147 motion to set aside, when made 189 how pleaded 353, 331 on account of frivolousness of answer 294 See also. Pleading. demand for, in complaint 340 demand for in answer 370 interlocutory may be demanded 844 on counter claim 369 on failure to reply 373 when proceedings upon will be restrained 461 undertaking required on injunction to stay proceedings upon 489 how levy made upon 534 after attachment, how to be satisfied 566 on service by publication, on what property enforced 567 when entered for part of claim admitted 633 See Satisfaction — Compbomise. confession of, may be amended 638 how may be amended 638 motion to vacate for iiTegularity to be made within one year 653 what defects cured by 656 action not abated after interlocutory 675 cannot be entered on verdict, etc., rendered after death of party.. . 676 INDEX. T27 JUDGMENT CREDITOR'S ACTION: page no limitation as to jurisdiction of superior city courts in 46 against executors or administrators, how enforced 113 receiver in , 577 JURISDICTION: of courts of record 34 cannot be exercised without the State 34 how restricted by constitution and laws of United States 34 intention to deprive courts of, never presumed 35 in suits against foreign corporations 35, 36 on causes of action arising outside of the State 35 for specific performance of contract to convey lands without the State 35 in patent cases 36 as to lands outside of the State . . 36 as to penal laws of another State 36 on habeas corpus by United States soldier 36 as to property of non-resident attached within the State 36 in ejectment, against person claiming as United States oflScer 37 among what courts divided 87 when acquired in an action 144 by substituted service of summons 164 of person, given by general appearance 176 of subject matter, not given by appearance 177 irregularity which goes to, when cannot be waived 655 of the various courts, see their respective titles. JURORS: may be drawn for adjourned term 9 JURY: may be discharged on Sunday 4 JUSTICES: of Supreme Coui-t, to appoint terms and circuits 6 not to practice 12 powers of 40 what may do, out of court 57 when may make orders in action in county court 58 JUSTICE'S COURT: limitation of actions, upon judgment of 70 L. LACHES: what excuses, on motion to vacate for irregularity 653 LANDLORD: when possession of tenant, not adverse to 68 LEAVE TO SLT;: when necessary 91 in action on judgment 91 728 INDEX LEAVE TO SVE—iContinioedy. page in action on mortgage 93 in action on official bond 94, 234- in action to dissolve a corporation 96 in action by receiver QH- in action against receiver 99 in action by or against committee of incompetent person 99 in action of partition by infant 100 as poor person 101 vrhen party may have leave to defend 103 receiver, must be obtained from court 58T LIBEL: rule for pleading in 255 ■when publication of, restrained by injunction 469 LIEN: of attorney for services 80, 31 of attorney, wlietlier notice of required 33^ right of parties to settle without regard to 32 how may be enforced 33 of one suing as a poor person 34 LIMITATION OF ACTION: includes special proceedings 88^ by people for the recovery of real property 63 what adverse possession bars people 63 by party other than people, for recovery of real property 63 for dower 63 . when limitation begins to run against real property 63 entry, when sufficient as a claim 64 presumption of title 64 occupation presumed to be under legal title 64 possession under written title, what included in 65 when deemed adverse 65 possession not founded on written instrument, what included in . . 66 when deemed adverse 66 possession without claim, not sufficient 67 when possession of tenant, not adverse to landlord 68 right not impaired by death of occupant 68 what disabilities prevent running of the statute 68, 83 actions other than for the recovery of real property 6!) judgment or decree or court of record 69 presumption as to payment of 69 how presumption overthrown 69 how presumption of payment pleaded 70' to redeem from mortgage, when barred 70 on sealed instrument 70 for specific performance 71 to enforce payment of legacy charged on land 71 forty years, what actions barred in 63 twenty years, what actions ba-red in 63, 69 six years, what actions barred in 71 INDEX 729 LIMITATION OF ACTION— (Cowiiraw^: page three years, wliat actions barred in 73 two years, what actions barred in 74 one year, what actions barred in 73 ten years, what actions barred in 76 on contract, when barred in six years 71 against coroner or constable 73, 75 for penalty or forfeiture 63 to the people 74 given to the prosecutor 76 against executor or trustee 73 for negligence 73 for personal injury 74 for death by negligence 75 to annul a marriage 75 for escape 75 to recover strays seized on the highway 76 to recover excess of interest paid 76 against trustee, for debt of corporation 76 for equitable relief 76 by the people for spoliation 77 applies to the people 77 for claims against the people 77 against non-resident 78 against foreign corporation 79 what prevents running of statute 79 where defendant dies without the State 79 between death, and granting of letters 80 where plaintiff dies before expiration of time 80 against executors or administrators 80 reversal of judgment, when extends time of 81 when extended, by submission to arbitration 81 discontinuance, effect of, where counterclaim pleaded 88 what actions not within the statute 83 computation of time under statute 83 in action on open account 83 by principal against agent for negligent act 83 where demand necessary 84 against trustee for detention of property 84 on deposits 84 on demand notes 84 on checks 84 by trustee against cestui que trust 84 by surety or endorser 85 by attorney for services 85 by factor 83 in conversion 83 fortort 85 against director for failure to report 83 cause of action barred, not a defense or counterclaim 85 30 INDEX LIMITATION OF ACTIO'R— {Continued): page acknowledgment, or new promise to prevent running of the statute, must be in writing 86 what is sufficient to prevent running of statute 86 by whom acknowledgment may be made 87 how statute must be pleaded to be available 88 when general statute does not apply 88 when action deemed begun 89 attempt to commence action, effect of 89 LIS PENDENS. See Notice of Pendency. LOAN COMMISSIONERS: action against, how brought 118 LUNATICS: how summons served upon 151 when court may appoint guardian ad litem for 153 receiver in action by or against 1 580 M. MALICIOUS PROSECUTION: what must be alleged in action for 321 MANDATE: sheriff must receipt for 18 amendment of 636 MARRIAGE: limitation of action to annul 75 of woman, does not abate action 661 MARRIED WOMAN: statute of limitations runs against 64 MERITS, AFFIDAVIT OF. See Affidavit of Merits MISTAKE: of officer of court, how corrected 14 of court, party not to suffer by 633 relief against, when 648 must be applied for within one year 648 notice required to set time running 648 power of court to relieve against, not given by statute 648 what will be relieved against ; 649 relief against, discretionary 649 relief will be denied for laches 649 MORTGAGE: when leave to sue upon necessary 93 who must be plaintiffs in action to foreclose 133 who must be defendants in action to foreclose 133 person liable for deficiency may be joined as defendant 134 when notice of pendency must be filed in action of 181, 183 MOTIONS; ' defined 188 INDEX 731 MOTIONS— {Gonfinued): page contested cannot be heard in chamtiers 8 when made out of court in first district 58 not a remedy 188 ennumerated, defined 189 non-ennumerated, defined 189 where made 190 before a judge out of court 191 in first district 190 when may be heard by another judge 191 must be made at special term 190 , when may be made at circuit 190 contested, cannot be made at chambers 191 in seventh judicial district .^ 191 for irregularity, when made 189 to set aside judgment, when made 189 to change place of trial, when made. 189 for settlement of issues, when made 189 to correct pleadings, when made • 189 requisites of papers, on 192 when defects in waived 193 copies of papers must be served with notice of 193 when copies need not he served 193 only papers served, or referred to in notice to be read, on 193 how new facts presented by moving party on 193 See, also. Affidavit. See, also. Petition. opposing affidavits on , 201 See, also. Notice of Motion. costs on, must be asked, if desired 303 See, also, Ordbk. to Show Cause. See, also. Stay op Proceedings. when notice of, may be countermanded 306 liearing, order of 306 objections how taken on 306 ' new proof, how may be presented 307 new proof, when allowed £07 reference, when ordered upon hearing of 307 mode of examination of witness on 307 adverse party not to be examined 307 default, how taken on 307 what relief may be grated on default 308 when default will be opened 308 contested motion can only be renewed by leave of court 308 when leave will be granted 308 how motion made 309 practice on motion to renew 309 renewal of ex parte motion 309 to whom application for to be made 209 when order for must be vacated 209 renewal without leave, contempt 310 732 INDEX MOTIONS— (Co»fo"«Me INDEX. 733 NOTICE: PAGB application for guardian ad litem 139 of no personal claim, -when may be served with summons 150 of service by publication, to be publisbed with summons 171 publication of, with summons, in matrimonial actions 172 in action of partition 173 of application for deposition 300 when must be in writing 218 to produce, when may be by parole 218 of entry of judgment, when does not limit time to appeal 318 publication of, see Publication. when alleged in complaint 331 when required in application for injunction 480 of application for discharge of property from attachment 558 of application for receiver of corporation, to whom given 599 to creditors, by receiver of corporation 603 of appeal, when amendment of 633, 644 NOTICE OF MOTION: must be for the first day of term 301 form and contents of 303 must be accompanied with copies of papers 303 for irregularity, form of 203, 654 relief, how stated in. 303 cost must be asked f of^ if desired 303 service of 303 when may be countermanded 306 for judgment on account of frivolous pleading 396 when must be given in vacating injunction 500 NOTICE OF PENDENCY: when may be filed 181 in action of foreclosure, when must be filed 181 when notice becomes operative 182 in what actions may be filed 182 in action of ejectment 183 where warrant of attachment has been issued 183 contents of 183 in foreclosure cases 183 description of lands in 183 recording of 184 when may be filed by defendant 184 effect of 184 in action of foreclosure 185 in action for determination of claim to real property 185 how far commencement of action 185 amendment of 186 when new notice required after amendment 186 when notice may be cancelled 186 upon warrant of attachment 532 cancellation of, after attachment vacated 569 734 INDEX. NOTICE OF TRIAL: page. may be given for adjourned term &■ NUISANCE: when will be restrained 463^ 0. OATH. See Affidavit. OCCUPATION: of real property under written instrument 65 when deemed adverse 65 of real property, not founded on written instrument 66 what included in 66 when deemed adverse 66 OFFER OF JUDGMENT. See Compromise. OFFER TO LIQUIDATE. See Damages. OFFICER: limitation of action against 73, 75 continuance of action by or against 670 OFFICIAL ACTS: when will be restrained 466 OFFICIAL BONDS: leave to sue on 94, 96 of public officers generally 96 who are such officers 9(> where action brought ., 96 when notice of application required 96 when people may sue upon 117 See, also. Name op Opficek, under its title. OMISSIONS. See Mistakes. ORDER: defined 310 when made out of court, in first district 58 what judge may make, out of court 58 how such order vacated 58 for substituted service of summons, contents of 164 must be filed, within ten days 164 for publication of summons, by whom made 169 must be made by judge 170 what must contain 1 69 by whom made 311 by whom should be drawn 311 when should be submitted to the court 311 how settled 311 remedy, where order does not comply with decision 211 form of 311 all papers used on motion should be recited in 312 how reference made to petition on which granted 312 INDEX. 735 ORDER — (^Gontinued): page when preliminary objections should appear 212 grounds of, when proper to be stated 212 how signed, or certified 212 entry of 213 how to be entered 213 ^ by whom entered 213 penalty for failure to enter 213 ex parte, need not be entered 313 when ex parte may be entered 313 when judge may require to be entered 314 papers used on, must be filed 313 when it takes effect 214 when decision deemed made 214 effect on stay of proceedings 214 must be obeyed, though erroneous. 315 copy of, when must be served 315 how service should be made 315 ex parte, how vacated 216 one judge cannot vacate order made by another 316 of interpleader 239 for bill of particulars, form of 279 for amendment of pleading, what should provide 287 for arrest, by whom granted 417 when may be granted 417 contents of order 419 See, also, Aebbst and Bail. for injunction, what should recite 483, 484 remedy for irregularity in 653 for discovery, see Discovjeky of Books and Papers. ORDER TO SHOW CAUSE: what judge may make 58 when county judge cannot make 58 when proper 203 in what cases will be made 303 what must be stated to obtain 303 in discretionary 203 requirements of the order 303 for appointment of receiver, see Recbivbk. i amendment of 644 OVERSEERS OF THE POOR: when may sUe or be sued 117 P. PAPERS: service of, see Service. on motion, requisites of 193 when defects in, waived 193 on which order granted, must be filed 313 how to be endorsed and subscribed 318 736 INDEX PAPERS — (Contin'ued): page must be folioed 319 to be legibly written 319 filing of, see Filing op Papers. when order for filing will be granted 324 in arrest and bail 403, 413 must be filed 428 on which injunction granted 481 See, also, Injunction. upon granting attachment 517 See, also, Attachment. discovery of, see Discovery of Books and Papers. PARTIES: who are 104 who may be joined as plaintiifs 105 who may be defendants 105 where one will not consent to join as plaintiff 105 where party in interest must sue as plaintiff 105 who are necessary 106 same person cannot be plaintiff and defendant 110 in action by agent or principal 107 by assignees 107 by or against incorporated associations 108 by or against corporations, directors or stockholders 110 by or against executors or administrators 112 in action against corporations 110 in action by or against directors or stockholders 110 against officers or agents of coi-porations, for malfeasance 110 in action against directors of corporation Ill in action against stockholders of corporation Ill in action against public officers 114 when people may sue, see People. in action against town officers 117 in action by or against county officers 117 in action by or against town 118 in action to prevent waste of property of municipal corpora- tion 118 in action to vacate audit of accounts 119 trustees of an express trust 119 when beneficiaries may sue 119 where one may sue or be sued for all 105, 120 wha;t pleading in such case must show 121 who may share in proceeds of judgment 121 plaintiff controls action 123 other creditors may come in after judgment 132 when other parties cannotcome in 133 united in interest m: st be joined 105, 122 tenants in common when may be joined 122 when may sue severally 122 defendants jointly and severally liable 123 defendant in action on written instrument 123 INDEX. 737 PARTIES— (C