DRUNKARDS. N. Y. COURT OF APPEALS. he gave the directions for drawing the deed and all the requisite information, in the absence of B, and Van Wyck, applt., v. Brasher et expressed a desire to reward B. for al., respts. Decided June 1, 1880. A drunkard is not incompetent like an idiot or one generally insane. He is simply incompetent upon proof that at the time of the act his understanding was clouded or his reason dethroned by actual intoxication. his past kindness. Plaintiff executed the deed in a formal manner, and the lawyer who drew the deed and superintended its execution testified that he then appeared to be sober, intelligent and competent, and his evidence was confirmed by that of the grantee. Plaintiff was This action was brought to set sworn as a witness, and his eviaside a deed of real estate in Brook-dence tended to show that he exelyn, executed by plaintiff to defend-cuted the deed with a competent ant, B., who subsequently conveyed understanding of its purport and the same real estate to the defend- effect. The evidence as to this ant, O., on the ground that plaintiff fact was conflicting. There was no was incompetent to execute the proof of general unsoundness of deed. The deed was executed June mind or of general insanity, nor 21, 1877, for a consideration of that the grantee used any artifice, $100 and conveyed real estate worth undue influence or fraud to procure about $5,000. On July 5th, 1877, the conveyance. The case plaintiff was, upon a commission tried before a judge, without a jury, issued for that purpose, judicially and he found against plaintiff. declared to be an habitual drunkard Samuel Hand, for applt. and incompetent to manage his W. S. Cogswell, for respt. property, and that he had been so Held, No error. A drunkard is for two years, and W., who was not incompetent like an idiot or appointed his committee, brought one generally insane. He is simply this action. It also appeared that incompetent upon proof that at the plaintiff was a bachelor, about fifty time of the act challenged his unyears old. B., his grantee, was his derstanding was clouded or his reacousin, and he was greatly attached son dethroned by actual intoxicato him. Plaintiff was worth about tion. 27 N. Y., 9; 22 Wend., 526. $30,000 besides the house con- Judgment of General Term, afveyed and one other house. When firming judgment for defendants, informed that B., who was married, affirmed. was was by the death of his mother-in- Opinion by Earl, J. All concur. The EVIDENCE. PLEADING. Defendant, in an assignment of a mortgage to Held, That D.'s undertaking could plaintiff, guaranteed its payment. In an ac- not be varied by proof of an oral tion on the guarantee, defendant alleged in his answer that at the time of the assignment, agreement made contemporaneously plaintiff, in consideration of being permitted with the guaranty, but the facts alto retain part of the purchase price and of the leged in his answer were admissible, assignment of a policy of insurance to him, as they related to an agreement agreed to keep the premises insured until the which was an independent collateral mortgage became due; that plaintiff neglected so to do, and that the premises were engagement upon a new condition to destroyed by fire. Held, That while proof of keep the premises insured for D.'s these facts was inadmissible to vary defend-protection, and which, if established, ant's written undertaking, it was admissible would not qualify or change D.'s absolute undertaking of guaranty, and a breach of which would only to establish a counterclaim to the extent of the damages sustained. The facts showing the breach of the agreement and the loss therefrom were set up in the give a right of action which would answer, but not as a counterclaim Held, be available to D. as a counterThat the answer must be regarded as suffi- claim, to the extent of the damages cient to raise the question whether proof of sustained, in reduction or extinsuch facts could be rejected as in violation of the rule governing the admissibility of oral guishment of his liability on the guaranty. 3 Hill, 171; 58 N. Y., evidence to change a written agreement. 380; 74 id., 409. It was objected that the breach of plaintiff's agreement was not set up in the answer as a counterclaim. The facts showing the agreement and its breach, and that loss resulted to defendant therefrom were alleged. No objection to the proof offered was made so far as appeared upon the ground that the pleading was defective. This action was brought to foreclose a mortgage executed by one S. to defendant D., and assigned by the latter to plaintiff. The instrument of assignment contained a guarantee by D. to pay the mortgage in the event of a failure of payment by the mortgagors. D. alleged in his answer that at the time of the execution of the assignment and guaranty plaintiff, in consideration of being Held, That the objection was unpermitted to retain $300 out of the tenable; that under the statutory purchase money of the mortgage, rule that the allegations of a pleadand of the assignment to him by D. ing must be literally construed with of a policy of insurance upon the a view to substantial justice, Code, premises, agreed with D. to keep § 519, the answer must be regarded the premises insured until the mort- sufficient to raise the question gage should become due. This whether the proof offered could be plaintiff neglected to do, and the rejected as in violation of the rule premises were destroyed by fire. governing the admissibility of oral Upon the trial D. offered proof of evidence to change the written this agreement, and of the consider- agreement. 50 N. Y., 19; 52 id., ation therefor, which was rejected. 237. S. C. Conable, for applt. Judgment of General Term, affirming judgment for deficiency against ap defendant reversed, and new trial of this index the name of J. ordered. peared, also plaintiff's name and the Opinion by Andrews, J. All con- figures "103," and at page 103 of cur. EJECTMENT. JUDGMENT. N. Y. COURT OF APPEALS. the book there was the title of the cause, date of filing, names of attorneys, and an entry of the judgment, with all the recitals, statements and adjudications, and the signature of the clerk, with his offi Sheridan, applt., v. Linden et al., cial title. respts. Decided June 1, 1880. A judgment in ejectment by default is not conclusive against persons claiming under the the defendant therein, unless it has been docketed for three years in the office of the clerk of the court in which it was rendered. It is not sufficient that the judgment be entered in the Book of Judgments; unless entered in the Docket of Jndgments it is not docketed, as that word is used in the statutes. D. P. Barnard, for applt. Held, That the judgment was not docketed, and that none of the defendants in this action were affected by it. A judgment in ejectment by default is not conclusive against persons claiming under the defendant in it, unless it has been for three years docketed in the office of the This was an action of ejectment. clerk of the court in which it was Plaintiff, to prove title, made evi- rendered. It is not conclusive at dence by record that showed title common law, 49 N. Y., 478-480, nor in J. in severalty in 1853. He then by the Revised Statutes, or subseput in evidence a judgment roll in quent statutes. 2 R. S., 309, §§ 36, an action wherein he was plaintiff 38; Laws of 1862, chap. 485, § 1, and J. defendant, in the City Court p. 977. The docket of judgments of Brooklyn. Judgment by default the clerk of every court must keep, was had therein, and entered in the 2 R. S., 360, § 13, is another thing records of that court, Nov. 19, 1856. from the Book of Judgments, which The reception of the roll in evidence he must also keep, Code of Proc., was objected to on the ground that 279, 280, 282; Code of Civil Proc., it would not affect the defendants §§ 1236, 1245, 1246; the former is herein, as it showed a judgment by the one in which judgments are to default, which was not docketed in docketed. Unless entered in that the office of the clerk of the court they are not docketed, as that word in which it was recovered, or in the is used in the statutes. office of the clerk of the county in which the land lay. Plaintiff sought to meet this objection by putting in evidence, from the office of the Opinion by Folger, Ch. J. All clerk of that court, Judgment Book concur. No. 4, which had on some of its first pages an alphabetical index at all the letters except J. At letter I. Judgment of General Term, affirming judgment for defendants, affirmed. PLEADINGS. PRACTICE. N. Y. COURT OF APPEALS. Fisher, respt., v. Gould, applt. Decided June 1, 1880. Effect must be given to the order of the court according to its terms. When the order expresses the ground on which it is put, the opinion of the court may be referred to to explain it but the order cannot be qualified in its operation and effect by such reference. Where there has been judgment upon a demurrer, overruling it, without leave to answer, or with such leave not availed of, the demurrer cannot be withdrawn and leave to plead given, except when good faith in interposing the demurrer is shown and merits sworn to, and plaintiff has not lost a trial. See S. C., 9 W. Dig., 44. cannot be qualified in its operation and effect by reference to the opinion of the court. 67 N. Y., 394. The dictum to the contrary, in the opinion of Grover, J., in Tracy v. Altmeyer, 46 N. Y., 598, disapproved. As a general rule, where there has been judgment upon a demurrer, overruling it without leave to anSwer, or with leave to answer not availed of by the demurrant, the demurrer will not be withdrawn and leave to plead given. In some cases even when there has not been a judgment, yet the cause has been argued and the opinion of the court has become known, leave to withdraw a demurrer has been denied-Sayer, 11 -and when the court has given the application is too late. 2 Johns. Cas., 284; 3 id., 301; 2 Caines, *369; 3 Johns., 140. An exception has been made when good faith in interposing the demurrer has been shown and merits are sworn to, and plaintiff has not lost a trial. 7 Cow., 101. This was a motion to the court below to give leave to withdraw a demurrer and to put in an answer. judgment and ordered it entered, The demurrer was overruled, with leave to defendant to answer in twenty days; he did not avail himself of this privilege, and judgment was entered against him. He appealed to the General Term and from a judgment of affirmance to this court, where the judgment was affirmed. This motion was subsequently made. The motion was denied. The order does not state that the motion was denied for want of power to grant it. F. J. Fithian, for applt. F. N. Bangs, for respt. Atkinson v. Bayntun, Bing. N. C., 740, and Bell v. Wilkinson, 26 Wkly. Rep., 275, explained as holding it rests in the discretion of the court whether, after judgment on demurrer, to entertain and grant a Also held, that this case did not come within any of the exceptions, and that the court below was justified in the exercise of its discretion in denying the motion. Appeal dismissed. Held, That it could not be assum-motion for leave to withdraw it and ed that the application was denied put in an answer. for want of power, but that it was in the exercise of judicial discretion; that the court speaks by its order, and effect must be given to it according to its terms. 67 N. Y., 394. When the order expresses the ground upon which it was put, the opinion of the court may be refer- cur. red to to explain it, but the order Opinion by Folger, Ch. J. All con SUBORNATION OF PERJURY. tained a sufficient averment of the N. Y. COURT OF APPEALS. Stratton, plff. in error, v. The People, defts. in error. Decided June 1, 1880. An indictment under 2 R. S., 682, § 8, for subornation of perjury, averred that the prisoner by the offer of a sum of money attempted unlawfully and corruptly to procure one W. to commit wilful and corrupt perjury as to his sufficiency as surety on a bail bond. Held, sufficient. It is not necessary for the people to prove all the averments of the indictment. It is sufficient, if enongh of them are proven to make out the offence. any facts that make a complete offense under the statute. Also held, That it was not needed that the people should prove all the allegations of the indictment. If enough of them were proven to make out the offense there was no need of accumulating evidence. Judgment of General Term, affirming judgment of conviction, affirmed. Opinion by Folger, Ch. J. All concur, Miller, J., in result. APPEAL. PRACTICE. Decided June 1, 1880. An appeal to the Court of Appeals will not lie from an order granting a new trial in a proceeding to determine and enforce a claim against an estate. Such a proceeding can only be tried before a referee. The plaintiff in error was con- B. E. Valentine, for plff. in error. Plaintiff was assignee of a claim against the estate of McN., defendant's testator. He presented it to the executors and it was disputed by them and referred under the statute. The referee reported in favor of plaintiff and the judgment enterd thereon was reversed by the General Term, and a new trial ordered. A new referee was appointed at Special Term, who reported in favor of plaintiff. The judgment thereon was reversed by the General Term, and a new trial ordered at the Circuit. Plaintiff then appealed to this court from the order granting the new trial, and gave a |