« ForrigeFortsett »
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,
framed.- The First National Bank of Elmira
et al. v. Rathbun et al., 495.
be made upon information and belief. 17. A reply to a counterclaim does not operate
as a waiver of any objection that the same is
not allowable.- Carpenter v. The Manhattan
Life Ins. Co., 505.
of certain fire wood. The defendants set up
a counterclaim on the ground of plaintiff's
waste, since plaintiff held a mortgage on the
Held, That as the waste was inseparably con-
nected with the conversion it might be prop-
erly pleaded, as it was “connected with the
those words in the Code.- Id.
20. On the trial of an action on a promissory note
and contract defendant was permitted, with-
out objection, to amend his answer by claim-
ing overpayments, and demanding judgment
therefor. The last payment was made after
the action was commenced. Held, A proper
the transaction set forth in the complaint
and was connected with the subject of the
action.-Howard v. Johnston, 540.
CONTRACT, 5, 12, 23; CREDITOR's Bill, 3, 4;
Banks, 7, 8; SHERIFFS, 11; STRAYS, 1; USURY,
See Costs, 11; EXCISE, 3, 4.
fenses is demurred to, and demurrer sustained 1. Where a portion of a charge excepted to is
admitted to be correct, the exception will not
be sustained.— Doyle v. The N. Y. Eye and
Ear Infirmary, 3.
ment has expired, although good reason ap-
pears for allowing such motion for a new
trial on the ground of newly discovered evi.
a court upon an order continuing or vacating
will not be sustained case any cause of facts or the law, upon final hearing of the
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,
acy by which an action was commenced on motion was properly denied by the Special
limiting, defining and establishing their
rights and relatione in reference to their
claims against a third party, and an order is
subsequently obtained ex parte by one of the
parties which benefits the rights of one party
and injures those of the other, which rights
have been determined, &c., by said agree-
ment, the assent of the party whose rights
are injured to such order cannot be pre-
the running of the credit given him, and per-
12, 14, 17, 18, 20-24, 27, 29, 34,
referee cannot be required or permitted to CONTEMPT, 6.
LAW, 2, 4, 5, 8; FALSE PRETENCES, 4, 5;
FORGERY, 2; INDICTMENT, 2; MURDER; PER-
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-
required to direct the final or interlocutory 3, 4-6 ; FIRE INSURANCE, 2; LIBEL, 2; Mali-
7, 8: National BANKS, 3 ; NEGLIGENCE, 3, 7,
8, 10, 17-19, 21-25, 28, 30; NEGOTIABLE
PAPER, 8; TRESPASS, 1.
DENCE, 4, 6, 13, 15, 16; EXECUTION, 6; FRAUD,
2, 4, 6; GUARDIAN, 10, 11; JUDGMENT, 1, 2, 4,
6,7; JURISDICTION, 1; LEASE, 1; LEAVE TO
SUE; Mistake; PARTNERSHIP, 6 ; PLEADINGS,
1, 2, 9, 11-15; REFERENCE, 1-5, 8-16, 24
ter of a lunatic, the lunatic died. Subse- 3; Stay; SURROGATES.
PRINCIPAL AND AGENT.
PRINCIPAL AND SURETY.
See EVIDENCE, 8, 12, 20; LIFE INSURANCE,
2. The writ of prohibition is not designed to
correct those errors which may occur in the
progress of the trial and decision of causes,
may be corrected on appeal. — Id.
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,
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
arrangement until after the thirty days had
expired, but that before the time of payment
of the last instalment he tendered the assess-
ment on his shares with interest, offered to
surrender his old stock and demanded new
stock, which was refused. Held, That no
claim against the new company could be
izing such corporations to contract with old stockholders were destroyed by the fore-
bound to adopt it as it was made and within
the specified time; that his right to attack
lease is made, passes a statute forbidding the ment entered into by the other stockholders
ton v. The Wabash R. Co., 465.
See AGENCY, 3; RAILROAD COMPANIES, 13.
when the claim of the plaintiff to share in
the distribution of the fund is conceded or
established, or the proceeding is expressly
to load dirt carts, was injured by a sudden
ary to execution is appointed, and the judg-
ment debtor by direction of the writ exe-
cutes a conveyance of all his right, title and
interest in certain real estate to such receiver,
who commences an action for a partition of
the premises, and is appointed receiver
premises, the latter order will be reversed
partition suits.-Miller v. Levy et al., 326.
on the ground that they were obtained from
plaintiff, a lunatic, by fraud and coercion,
and without consideration, the answer did
ductor with the train did not render it liable, grantor was of unsound mind or incapable
for the appointment of receiver pendente
lite.- Mitchell v. Barnes, 652.
purchased on foreclosure by a committee of See CorPORATIONS, 18; LEASE, 9; MORTGAGE,
See MORTGAGE, 17-19, 21.