6. Some cause for the omission to make the 16. If a cause of action be shown, the misjoinder

proposed amendments when the pleader had of parties plaintiff is not a ground of demurrer,
a legal right so to do, however slight, should unless it was such when the issue was
be shown.-Id.

framed.- The First National Bank of Elmira

et al. v. Rathbun et al., 495.
7. Denial of allegations in the complaint may

be made upon information and belief. 17. A reply to a counterclaim does not operate
Brotherlon v. Downey, 221.

as a waiver of any objection that the same is
8. The facts showing the breach of the agree-

not allowable.- Carpenter v. The Manhattan
ment and the loss therefrom were set up in

Life Ins. Co., 505.
the answer, but not as a counterclaim. Held, 18. In an action brought to recover damages for
That the answer must be regarded as suffi- a tort, a tort committed by the plaintiff cannot
cient to raise the question whether proof of ordinarily be pleaded as a counterclaim. —
such facts could be rejected as in violation of Id.
the rule governing the admissibility of oral 19. Plaintiff brought an action for the conversion
evidence to change a written agreement.-

of certain fire wood. The defendants set up
Van Brunt v. Day, 256.

a counterclaim on the ground of plaintiff's
9. Where there has been a judgment upon a

waste, since plaintiff held a mortgage on the
demurrer, overruling it without leave to property which was junior to their mortgage.
answer, or with such leave not availed of,

Held, That as the waste was inseparably con-
the demurrer cannot be withdrawn and leave

nected with the conversion it might be prop-
to plead given, except when good faith in in-

erly pleaded, as it was “connected with the
terposing the demurrer is shown and merits subject of the action” within the meaning of
sworn to, and plaintiff has not lost a trial.-

those words in the Code.- Id.
Fisher v. Gould, 259.

20. On the trial of an action on a promissory note
10. Pleadings cannot be amended on appeal to

and contract defendant was permitted, with-
the Court of Appeals so as to reverse a judg-

out objection, to amend his answer by claim-
ment.-- Volkening v. De Graff et al., 286.

ing overpayments, and demanding judgment

therefor. The last payment was made after
11. Where a complaint omits to state a ma-

the action was commenced. Held, A proper
terial fact to constitute a cause of action, and subject of counterclaim, as it arose out of
the answer alleges such fact, the omission in

the transaction set forth in the complaint
the complaint is cured in so far that the com-

and was connected with the subject of the
plaint cannot be dismissed upon the trial for

action.-Howard v. Johnston, 540.
insufficiency, as the court will regard the com- See ARREST, 3; ATTORNEYS, 6; Bar, 1, 2, 4;
plaint amended by inserting such omitted CHATTEL MORTGAGE, 3; COMMON CARRIERS, 1;
allegation, same appearing on the record be-

CONTRACT, 5, 12, 23; CREDITOR's Bill, 3, 4;
fore it by the answer.—Leon v. Bernheimer, GUARDIAN, 1; MARRIED WOMEN, 2; NATIONAL

Banks, 7, 8; SHERIFFS, 11; STRAYS, 1; USURY,
12. Where, from facts stated in the complaint,

a material fact, not stated in the complaint,

is plainly inferable, the complaint ought not
to be dismissed at the trial for insufficiency.

See Costs, 11; EXCISE, 3, 4.

13. Where an answer containing several de-

fenses is demurred to, and demurrer sustained 1. Where a portion of a charge excepted to is
with leave to amend the several defenses,

admitted to be correct, the exception will not
defendant may answer, setting up correctly

be sustained.— Doyle v. The N. Y. Eye and
one of his previous defenses, and may serve

Ear Infirmary, 3.
as such answer a pleading which has been 2. It is very doubtful whether a motion for a
served before, and which was then properly new trial upon a case and exceptions can be
rejected and returned to him.- Decker v. made after the time to appeal from the judg-
Kitchen, 354.

ment has expired, although good reason ap-

pears for allowing such motion for a new
14. Where a pleading is thus served in due

trial on the ground of newly discovered evi.
time and form, the other party may not re- dence after the time for appeal from the
ject and return it and enter judgnient as upon judgment has expired.—Newman v. Goddard,
default in pleading, but must apply to the 7.
court or a judge for his remedy, however
bad the pleading may be in fact. Id. 3. Although, as a general rule, the decision of

a court upon an order continuing or vacating
15. A demurrer to a complaint for insufficiency an injunction is not decisive, either as to the

will not be sustained case any cause of facts or the law, upon final hearing of the
action whatever appears therein, however cause, still where the question passed upon
much it may be mingled with irrelevant and in each instance is the same, the General
unnecessary matter.-Prouty et al. v. Whip- Term will regard the decision of a preceding
ple, 387.

General Term on an order as conclusive upon


it in passing upon the judgment.-Rogers et made at any time to a judge out of court in al. v. The R., H. & P. O. RR. Co., 30.

the first judicial district, except for a new 4. In an action on a note made by husband and

trial on the merits, and an application for wife, charging the latter's separate estate,

an order is a motion.-Boucicault v. Boucithe wife defended, alleging that the note was

cault, 247. obtained from her by duress, fraudulent rep- 14. In a case where evidence had been adresentations, and without consideration; that mitted which turned out to be immaterial, the note was given to take up one made by and the judge had held the same immaterial her husband and her father. A verdict was when requested to strike it out, Held, That directed for the plaintiff. Held, error; that this was equivalent to striking out such eviit was for the jury to determine whether it dence.-Courtright v. The Village of Wawas executed under duress; that if so, the verly, 253. burden was on plaintiff to show affirmatively 16. General equitable powers of the court canthat he was a bona fide holder.-Ehle v. Roof, 48.

not be exercised upon a motion, unless in

the cases provided by statute.-Jex v. Jacob 6. An exception in general terms to a judge's et al., 254.

charge is good without specifying any 16. Effect must be given to the order of the grounds of exception.—Goldman v. Abraharns, 108.

court according to its terms. When the

order expresses the ground on which it is 6. When parties fix on an umpire, and agree to put, the opinion of the court may be referred

abide his decision, neither of them, without to to explain it, but the order cannot be the consent of the other, can withdraw the qualified in its operation and effect by such question of performance from the common reference.-Fisher v. Gould, 259. arbiter for the purpose of referring it to the decision of a jury. If the court is satisfied 17. Where a verdict is directed for the defendo that upon the undisputed facts, irrespective

ant subject to exceptions to be heard in the of errors in the admission or exclusion of

first instance at the General Term, and the testimony, the disposition made of the case

defendant neglects to except to such direcby the court below was right, and that a new

tions, the court, at General Term, can only

order a new trial if the direction of the ver. trial could not change the result, a new trial will not be directed. — Whiteman et al. v, The

dict was incorrect.- Westervelt v. Westervelt,

265. Mayor, 119.

18. The court should present to the jury all 7. An answer setting up an independent de issues raised by the proceedings and susfense not a counterclaim, may be met on the

tained by the evidence.—Leichtweiss v. Trestrial with any matter tending to defeat or

kow, 303. avoid it.- Argall v. Jacobs, 120.

19. It is doubtful whether the provision of sec8. After a verdict at Circuit a judge has no tion 999, Code of Civil Procedure, permitting power then and there to entertain a motion

a motion on minutes to set aside verdict beto set aside the verdict on the ground of sur

cause “contrary to law," was intended to prise. Such motion must be made at Special authorize a motion to set aside verdict on Term.-10.

ground of error in the charge, to which no 9. An exception to the reception of testimony

exception was taken, and which, if the attenwhich was immaterial and could not have tion of the trial judge had been directed to affected the result may be disregarded, it by an exception, might have been corrected although technically correct. Flannagan v.

at the trial.- Robson v. The N. Y. C. & H. Madden, 198.

R. RR. Co., 324. 10. The defendant has a right, on the cross-ex- | 20. A motion to reduce a verdict may be amination of the plaintiff, to show that the granted upon the evidence when it

appears plaintiff had been guilty of fraud, although

excessive. -Nickerson et al. v. Ruger et al., in a case independent of the one before the 329. court.—McNamara v. Tallman, 225.

21. To enter judgment as upon default, when 11. But the exclusion of an offer on the part of

there is an issue joined in the action, is not the defendant to show on the cross-examina

an irregularity within Rule 37 of the Su. tion of the plaintiff that he had conveyed his preme Court, but an error, and is to be corproperty in fraud of his creditors, and that rected as such.-Decker v, Kitchen, 354. the conveyance had been set aside as fraudu. 22. On proving a prima facie case, plaintiff lent, is within the discretion of the court at

He is not bound to anticipate the trial, and cannot be reviewed on appeal. — defense, even though he may know the line Id.

of proof the defendant intends to follow.12. A plaintiff will not be allowed to testify, if Bancroft v. Sheehan, 381.

objected to, that what he swore to on another 23. The complaint in an action alleged that trial was true.-Id.

plaintiff and defendant K. had been partners 18. Under sec. 770 of the Code, a motion which doing a successful business, and that K. and

elsewhere must be made in court may be the other defendants entered into a conspir,

may rest.

acy by which an action was commenced on motion was properly denied by the Special
a fictitious claim against K., who served an Term.-- Veeder v. Baker, 498.
offer of judgment on which judgment was
entered, the assets of the firm levied on, and 32. Where parties have executed an agreement
the business broken up Plaintiff, on the

limiting, defining and establishing their
trial, proved that there was a debt of K. to

rights and relatione in reference to their
his co-defendants for the full amount claimed,

claims against a third party, and an order is
but that it had not matured. Held, That the

subsequently obtained ex parte by one of the
complaint should have been dismissed; proof

parties which benefits the rights of one party
that the debt was not due did not tend to

and injures those of the other, which rights
show that it did not exist.--Neudecker v.

have been determined, &c., by said agree-
Kohlberg et al., 406.

ment, the assent of the party whose rights

are injured to such order cannot be pre-
24. A debtor has the power and right to waive sumed.-Berdell v. Berdell, 628.

the running of the credit given him, and per-
mit the debt to be treated as due and payable As to practice on appeal, see APPEAL, 3, 6, 8-
at once.-ld.

12, 14, 17, 18, 20-24, 27, 29, 34,
25. Under sec. 1023 of the New Code, a judge or As to practice in contempt proceedings, see

referee cannot be required or permitted to CONTEMPT, 6.
make additional findings of law or fact, upon As to practice in criminal cases, see CRIMINAL
the settlement of a case, after his report or
decision has been rendered.-Palmer v. The

LAW, 2, 4, 5, 8; FALSE PRETENCES, 4, 5;

Phoenix Ins. Co., 444.

JURY, 2.
26. So far as rule 32 of the Supreme Court con-

flicts with this section, it is inoperative. As to practice in different classes of cases, see

those titles, as AssiGNMENTS FOR CREDITORS,

2; ATTACHMENT, 4, 5, 7, 11-13; CONSPIR-
27. Upon the trial of a demurrer the court is ACY, 1; Conversion, 1, 6, 9; DIVORCE, 1,

required to direct the final or interlocutory 3, 4-6 ; FIRE INSURANCE, 2; LIBEL, 2; Mali-
judgment to be entered thereupon.---Liegeois cious PROSECUTION, 1, 2, 6; MECHANICS' Liens,
v. McCracken, 454.

7, 8: National BANKS, 3 ; NEGLIGENCE, 3, 7,

8, 10, 17-19, 21-25, 28, 30; NEGOTIABLE
28. A judgment which permits a party to plead

anew, or amend, is an interlocutory judg-
ment. Where such a judgment is directed, See also ARBITRATION, 1; Arrest, 9; BILL OF
.the latter must also direct the entry of a final PARTICULARS ; COMMON CARRIERS, 2, 3; Cor-
judgment in default of compliance with the PORATIONS, 11 ; COUNTY COURT, 3; DEPOSI-
said interlocutory judgment by the party in TIONS; DISCOVERY; DurEsS ; EQUITY ; Ev-

DENCE, 4, 6, 13, 15, 16; EXECUTION, 6; FRAUD,
29. The entry of a judgment in these cases is

2, 4, 6; GUARDIAN, 10, 11; JUDGMENT, 1, 2, 4,
necessary to validate the terms or conditions

imposed by the determination.--Id.


1, 2, 9, 11-15; REFERENCE, 1-5, 8-16, 24
30. Before the decision of an appeal in the mat- REMOVAL, 2, 3; SERVICE ; STATUTE OF FRAUDS,

ter of a lunatic, the lunatic died. Subse- 3; Stay; SURROGATES.
quently, the order of the Appellate Court was
amended so as to bear date as of a day prior

to the death of said lunatic. A further order

was afterwards granted fixing such date, and
directing the order as amended to be in-
serted in the printed case on appeal. Held,

That so far as the last order supplied the

date it was correct, but as to the balance it
was erroneous.--Carter V Beckwith et al., PRIVILEGED COMMUNICATIONS.

31. Defendant demanded a change of place of 13-15.
trial as not the proper county, and also for con-

venience of witnesses ; a motion being made
in the matter it was denied absolutely, and 1. The court should not by writ of probibition
no appeal therefrom was taken. Thereafter interfere where the relator has a simple and
a demurrer to the complaint was sustained adequate legal remedy.—The People ex rel.
on the ground that it did not contain facts Salke v. Talcott et al., 394.
bufficient to constitute a cause of action.
Plaint amended; defendant served an

2. The writ of prohibition is not designed to
amended answer and a new demand based

correct those errors which may occur in the
solely upon the proper county. Held, That

progress of the trial and decision of causes,
& similar motion having been made and


may be corrected on appeal. — Id.
denied, without leave to renew, this latter See REVIVOR, 6.



against the acting trustees of the road to See SERVICE.

compel the erection of fences and the build

ing of a farm crossing:--Jones v. Seligman et PUBLIC OFFICE,

al., 226.

3. The railroad corporation, in the exercise of 1. One C., having been declared elected an As

its duty in providing farm crossings, is not sistant Alderman of the City of New York, vested with such absolute discretion or arbi. and been sworn in, plaintiff brought an ac

tary power that their decision is final and tion of quo warranto against him, in which conclusive, and cannot be reviewed or displaintiff obtained judgment before half the

turbed.-Id. term expired, declaring that he was entitled to the office. He gave notice thereof to the 4. The fact that the damages awarded for con Comptroller, and took the oath of office, but demnation of land have been paid does not never performed any services, although ready necessarily preclude the party to whom the to do so. In an action to recover salary of payment was made from maintaining an acthe office, Held, That plaintiff was entitled to tion to compel the corporation to provide the salary from the time he took the oath of suitable and proper crossinge, if it has failed office; that upon receiving the notice, it be- to do so.-Id. came the Comptroller's duty to refrain from paying any more of the salary to C.-Mc K. Where the conductor on a car acts in the Veany v. The Mayor, &c., of N.Y., 69.

course of his employment as such, and with

A view to defendant's interest, and on appear2. The Board of Assistant Aldermen afterwards ances upon which he has to exercise his judg

investigated the matter, and declared C en- ment, the RR. is responsible for the manner titled to the office. Held, That this decision in which he acted and the consequences of did not countervail the one rendered by the his act, though he may have acted in excess Supreme Court.-Id.

of his authority.- Schultz v. The Third Ave.

RR. Co., 267. 3. A public office is not a grant, and the right

to it does not depend upon or partake of the 6. When a passenger on a railroad fails to nature of a contract.- Long v. The Mayor,

produce his ticket on demand of conductor, &c., of N. Y., 408.

not through wilfulness or with intent to deSee MANDAMUS, 1 ; SURETYSHIP, 4, 5, 8, 9.

fraud, but through having forgotten where

he had placed it, so that, for the time, he is QUO WARRANTO.

unable to find it, the conductor has no right

to eject him from the car until he has stated 1. The clause in the New York charter which the amount of the fare to him and demanded

provides that the Board of Aldermen “shall payment thereof.Robson v. The N. Y. C. & be the judge of the elections, returns H. R. RR. Co., 324. and qualifications of its own members" does not give exclusive power in the first instance 7. The conductor is to be held to assume the

risk of the correctness of his determination to the board, nor oust the courts of the state of jurisdiction, nor debar them from originat

that the passenger's failure to produce the

ticket was wilful.- Id. ing an inquiry as to the right to the office.

- The People ex rel. Hetzel v. Hall, 37. 8. The ticket having been once presented to 2. Where, however, a direct proceeding to test

the conductor and punched by him, he is title to the office has been passed upon by

bound to assume, when the passenger fails to the Board of Aldermen, its adjudication

produce it on a subsequent demand, that the therein is res adjudicata as to all who were

passenger has mislaid it, and intends to pro

duce it when found, till the contrary appears, parties to such proceeding; but the people,

and is bound also to give the passenger a not having been a party thereto, may still continue the inquiry.-Id.

reasonable time for the purpose.-Id. See MANDAMUS, 1; Public OFFICE, 2.

9. Where defendant, a railway corporation,

allows the use of its derricks, ropes, &c., RAILROAD COMPANIES.

partly for its own convenience, to enable

consignees of a cargo to unload boats into 1. It is the duty of all railroad companies, defendant's cars, it is in duty bound to see

through their managers, to make proper pro- to it that such instruments for unloading are vision for every one wishing to carry express fit and proper to be used for the purpose, and matter over their respective roads. All are is liable for the damage occasioned by its entitled to the same measure of accommoda- failure so to do.—Derrenbacher v. The Lehigh tion who may offer to do the like business, Valley RR. Co., 347. and it is the duty of the courts, whenever applied to, to enforce this rule.— The South. 10. The petitioner failed to begin the construcern Ex, Co. v. The Nashville, C. & St. L. RR.

tion of its road within the time limited in Co., 210.

its charter; but leased to another corporation

the right to maintain and operate a railroad 2. An equitable action may be maintained by on a portion of its route, the tracks to be

one through whose farm a railroad runs laid by the lessee, the lessor reserving the


right to use the tracks so laid on a portion the privilege of subscribing for stock of a
of such route upon paying a fixed compensa- new company to be formed by, surrendering
tion. Held. That this was not such a user of their old stock and paying $10 per share in
the franchise as was contemplated by the instalments; the privilege to be exercised in
statnte, and did not preserve petitioner's cor. thirty days or be forfeited. Plaintiff claimed
porate existence.--In re The Brooklyn, W. & that he had no knowledge or notice of the
N. RR. Co., 367.

arrangement until after the thirty days had
11. A lease by a railroad company of all its

expired, but that before the time of payment

of the last instalment he tendered the assess-
road, rolling stock and franchises, for which

ment on his shares with interest, offered to
there is no authority given in its charter is
ultra vires and void. - Thomas et al. v. The

surrender his old stock and demanded new

stock, which was refused. Held, That no
West Jersey RR. Co., 373.

claim against the new company could be
12. The ordinary clause in the charter author. based upon these facts, that all rights of the

izing such corporations to contract with old stockholders were destroyed by the fore-
other transportation companies for the mu- closure sale; that plaintiff was not a party to
tual transfer of goods and passengers over the agreement unless he elected to come in
each other's roads is no authority to lease its and ratify it, and if he elected to do so he was
road and franchises.-Id.

bound to adopt it as it was made and within

the specified time; that his right to attack
13. The fact that the Legislature, after such a the sale was not impaired by the arrange-

lease is made, passes a statute forbidding the ment entered into by the other stockholders
directors of ihe company, its lessees or without his authority or knowledge.—Thorn-
agents, from collecting more than a fixed

ton v. The Wabash R. Co., 465.
amount of compensation for carrying passen-
gers and freight, is not a ratification of such See Appeal, 32; Eminent Domain, 2; Negli-
lease or an acknowledgment of its validity.- GENCE, 11, 12, 16, 17, 26, 28-31; REFERENCE,

14. Where, in a lease of this kind, for twenty

years, the lessors have resumed possession at
ihe end of five years, and the accounts for

that period have been adjusted and paid, a
condition in the lease to pay the value of the

unexpired term is void, and the case does not
come within the principle that executed con: 1. A receiver pendente lite can only be appointed
tracts, which were originally ultra vires, shall
stand good for the protection of rights ac-

when the claim of the plaintiff to share in

the distribution of the fund is conceded or
quired under a completed transaction.-Id.

established, or the proceeding is expressly
15. Plaintiff, who was employed defendant sanctioned by statute.—Adee v. Bigler, 312.

to load dirt carts, was injured by a sudden
movement of the cars while he was getting 2 Where a receiver in proceedings supplement-
on the train. It appeared that the cars were

ary to execution is appointed, and the judg-
suitable for the purpose for which they were

ment debtor by direction of the writ exe-
used; that they had been recently inspected;

cutes a conveyance of all his right, title and
that only two of the five brakes were set at

interest in certain real estate to such receiver,
the time of the injury, and that the train had

who commences an action for a partition of
remained standing on a down grade for some

the premises, and is appointed receiver
time previous without movement. Held, pendente lite of the rents and profits of the
That defendant was not liable on the theory

premises, the latter order will be reversed
that it had neglected to furnish suitable ma- on appeal by the defendants interested in the
chinery; that if the injury was caused by

partition suits.-Miller v. Levy et al., 326.
the neglect of the brakemen to set the brakes, 3. In an action to set aside transfers of property
it was the negligence of a co-servant, and de-
fendant was not liable.Henry v. The s. I.

on the ground that they were obtained from

plaintiff, a lunatic, by fraud and coercion,
R. CO., 430.

and without consideration, the answer did
16. The failure of the defendant to send a con- not deny want of consideration, or that the

ductor with the train did not render it liable, grantor was of unsound mind or incapable
unless his absence contributed to plaintiff's of managing her affairs. Held, a proper case
injury.- Id.

for the appointment of receiver pendente

lite.- Mitchell v. Barnes, 652.
17. A railroad and its franchises having been

purchased on foreclosure by a committee of See CorPORATIONS, 18; LEASE, 9; MORTGAGE,
the bondholders, the stockholders disputed 11; NEGLIGENCE, 13; REFERENCE, 10, 23;
the validity of the sale, and appointed a com- SURETYSHIP, 7.
mittee to represent their interests. By an
arrangement between the two committees all

opposition was withdrawn, and in considera.
tion thereof, all the stockholders were given

See MORTGAGE, 17-19, 21.

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