6. Some cause for the omission to make the
proposed amendments when the pleader had
a legal right so to do, however slight, should
be shown.-Id.

7. Denial of allegations in the complaint may
be made upon information and belief.-
Brotherton v. Downey, 221.

8. The facts showing the breach of the agree-
ment and the loss therefrom were set up in
the answer, but not as a counterclaim. Held,
That the answer must be regarded as suffi-
cient to raise the question whether proof of
such facts could be rejected as in violation of
the rule governing the admissibility of oral
evidence to change a written agreement.-
Van Brunt v. Day, 256.

9. Where there has been a 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the demurrer cannot be withdrawn and leave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 in-
terposing the demurrer is shown and merits
sworn to, and plaintiff has not lost a trial.-
Fisher v. Gould, 259.

10. Pleadings cannot be amended on appeal to
the Court of Appeals so as to reverse a judg
ment. Volkening v. De Graff et al., 286.

11. Where a complaint omits to state a ma-
terial fact to constitute a cause of action, and
the answer alleges such fact, the omission in
the complaint is cured in so far that the com-
plaint cannot be dismissed upon the trial for
insufficiency, as the court will regard the com-
plaint amended by inserting such omitted
allegation, same appearing on the record be-
fore it by the answer.-Leon v. Bernheimer,
288.

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.
--Id.

13. Where an answer containing several de-
fenses is demurred to, and demurrer sustained
with leave to amend the several defenses,
defendant may answer, setting up correctly
one of his previous defenses, and may serve
as such answer a pleading which has been
served before, and which was then properly
rejected and returned to him.— Decker v.
Kitchen, 354.

14. Where a pleading is thus served in due
time and form, the other party may not re-
ject and return it and enter judgment as upon
default in pleading, but must apply to the
court or a judge for his remedy, however
bad the pleading may be in fact.—Id.

15. A demurrer to a complaint for insufficiency
will not be sustained in case any cause of
action whatever appears therein, however
much it may be mingled with irrelevant and
unnecessary matter.—Prouty et al. v. Whip-
ple, 387.

was

16. If a cause of action be shown, the misjoinder
of parties plaintiff is not a ground of demurrer,
unless it was such when the issue
framed.-The First National Bank of Elmira
et al. v. Rathbun et al., 495.

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.

18. In an action brought to recover damages for
a tort, a tort committed by the plaintiff cannot
ordinarily be pleaded as a counterclaim.-
Id.

19. Plaintiff brought an action for the conversion
of certain fire wood. The defendants set up
a counterclaim on the ground of plaintiff's
waste, since plaintiff held a mortgage on the
property which was junior to their mortgage.
Held, That as the waste was inseparably con-
nected with the conversion it might be prop-
erly pleaded, as it was "connected with the
subject of the action" within the meaning of
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
subject of counterclaim, as it arose out of
the transaction set forth in the complaint
and was connected with the subject of the
action. Howard v. Johnston, 540.

See ARREST, 3; ATTORNEYS, 6; BAR, 1, 2, 4;
CHATTEL MORTGAGE, 3; COMMON CARRIERS, 1;
CONTRACT, 5, 12, 23; CREDITOR'S BILL, 3, 4;
GUARDIAN, 1; MARRIED WOMEN, 2; NATIONAL
BANKS, 7, 8; SHERIFFS, 11; STRAYS, 1; Usury,

it in passing upon the judgment.-Rogers et al. v. The R., H. & P. Č. RR. Co., 30.

4. In an action on a note made by husband and wife, charging the latter's separate estate, the wife defended, alleging that the note was obtained from her by duress, fraudulent representations, and without consideration; that the note was given to take up one made by her husband and her father. A verdict was directed for the plaintiff. Held, error; that it was for the jury to determine whether it was executed under duress; that if so, the

burden was on plaintiff to show affirmatively that he was a bona fide holder.-Ehle v. Roof, 48.

5. An exception in general terms to a judge's charge is good without specifying any grounds of exception.-Goldman v. Abrahams, 108.

6. When parties fix on an umpire, and agree to abide his decision, neither of them, without the consent of the other, can withdraw the question of performance from the common arbiter for the purpose of referring it to the decision of a jury. If the court is satisfied that upon the undisputed facts, irrespective of errors in the admission or exclusion of testimony, the disposition made of the case by the court below was right, and that a new trial could not change the result, a new trial will not be directed. Whiteman et al. v. The Mayor, 119.

7. An answer setting up an independent defense not a counterclaim, may be met on the trial with any matter tending to defeat or avoid it.-Argall v. Jacobs, 120.

8. After a verdict at Circuit a judge has no power then and there to entertain a motion to set aside the verdict on the ground of surprise. Such motion must be made at Special Term.-Id.

9. An exception to the reception of testimony which was immaterial and could not have affected the result may be disregarded, although technically correct.-Flannagan v. Madden, 198.

10. The defendant has a right, on the cross-examination of the plaintiff, to show that the plaintiff had been guilty of fraud, although in a case independent of the one before the court.-McNamara v. Tallman, 225.

11. But the exclusion of an offer on the part of the defendant to show on the cross-examina tion of the plaintiff that he had conveyed his property in fraud of his creditors, and that the conveyance had been set aside as fraudu lent, is within the discretion of the court at trial, and cannot be reviewed on appeal.-i Id.

12. A plaintiff will not be allowed to testify, if objected to, that what he swore to on another

trial was true.-Id.

18. Under sec. 770 of the Code, a motion which elsewhere must be made in court may be

made at any time to a judge out of court in the first judicial district, except for a new trial on the merits, and an application for an order is a motion.-Boucicault v. Boucicault, 247.

14. In a case where evidence had been admitted which turned out to be immaterial, and the judge had held the same immaterial when requested to strike it out, Held, That this was equivalent to striking out such evidence. Courtright v. The Village of Waverly, 253.

15. General equitable powers of the court cannot be exercised upon a motion, unless in the cases provided by statute.-Jex v. Jacob et al., 254.

16. 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.-Fisher v. Gould, 259.

17. Where a verdict is directed for the defend ant subject to exceptions to be heard in the first instance at the General Term, and the defendant neglects to except to such directions, the court, at General Term, can only order a new trial if the direction of the verdict was incorrect.- Westervelt v. Westervelt, 265.

18. The court should present to the jury all issues raised by the proceedings and sustained by the evidence.-Leichtweiss v. Treskow, 303.

19. It is doubtful whether the provision of section 999, Code of Civil Procedure, permitting a motion on minutes to set aside verdict because contrary to law," was intended to authorize a motion to set aside verdict on ground of error in the charge, to which no exception was taken, and which, if the attention of the trial judge had been directed to it by an exception, might have been corrected at the trial.-Robson v. The N. Y. C. & H. R. RR. Co., 324.

20. A motion to reduce a verdict may be granted upon the evidence when it appears excessive.-Nickerson et al. v. Ruger et al.,

329.

21. To enter judgment as upon default, when there is an issue joined in the action, is not an irregularity within Rule 37 of the Supreme Court, but an error, and is to be corrected as such.-Decker v. Kitchen, 354. 22. On proving a prima facie case, plaintiff may rest. He is not bound to anticipate the defense, even though he may know the line of proof the defendant intends to follow.Bancroft v. Sheehan, 381.

23. The complaint in an action alleged that plaintiff and defendant K. had been partners doing a successful business, and that K. and the other defendants entered into a conspir,

acy by which an action was commenced on
a fictitious claim against K., who served an
offer of judgment on which judgment was
entered, the assets of the firm levied on, and
the business broken up. Plaintiff, on the
trial, proved that there was a debt of K. to
his co-defendants for the full amount claimed,
but that it had not matured. Held, That the
complaint should have been dismissed; proof
that the debt was not due did not tend to
show that it did not exist.-Neudecker v.
Kohlberg et al., 406.

24. A debtor has the power and right to waive
the running of the credit given him, and per-
mit the debt to be treated as due and payable

at once. Id.

25. Under sec. 1023 of the New Code, a judge or
referee cannot be required or permitted to
make additional findings of law or fact, upon
the settlement of a case, after his report or
decision has been rendered.-Palmer v. The
Phoenix Ins. Co., 444.

motion was properly denied by the Special
Term.-Veeder v. Baker, 498.

32.. Where parties have executed an agreement
limiting, defining and establishing their
rights and relations 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-
sumed.-Berdell v. Berdell, 528.

As to practice on appeal, see APPEAL, 3, 6, 8–
12, 14, 17, 18, 20-24, 27, 29, 34.

As to practice in contempt proceedings, see
CONTEMPT, 6.

As to practice in criminal cases, see CRIMINAL
LAW, 2, 4, 5, 8; FALSE PRETENCES, 4, 5;
FORGERY, 2; INDICTMENT, 2; MURDER; PER-
JURY, 2.

-Id.

27. Upon the trial of a demurrer the court is
required to direct the final or interlocutory
judgment to be entered thereupon.-Liegeois
v. McCracken, 454.

28. A judgment which permits a party to plead
anew, or amend, is an interlocutory judg
ment. Where such a judgment is directed,
the latter must also direct the entry of a final
judgment in default of compliance with the
said interlocutory judgment by the party in
fault.--Id.

29. The entry of a judgment in these cases is
necessary to validate the terms or conditions
imposed by the determination.--Id.

30. Before the decision of an appeal in the mat-
ter of a lunatic, the lunatic died. Subse-
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.,
481.

31. Defendant demanded a change of place of
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
no appeal therefrom was taken. Thereafter
a demurrer to the complaint was sustained
on the ground that it did not contain facts
sufficient to constitute a cause of action.
Plaintiff amended; defendant served an
amended answer and a new demand based
solely upon the proper county. Held, That
a similar motion having been made and
denied, without leave to renew, this latter

those titles, as ASSIGNMENTS FOR CREDITORS,
2; ATTACHMENT, 4, 5, 7, 11-13; CONSPIR-
ACY, 1; CONVERSION, 1, 6, 9; DIVORCE, 1,
3, 4-6; FIRE INSURANCE. 2; LIBEL, 2; MALI-
CIOUS PROSECUTION, 1, 2, 6; MECHANICS' LIENS,
7, 8: NATIONAL BANKS, 3; NEGLIGENCE, 3, 7,
8, 10, 17-19, 21-25, 28, 30; NEGOTIABLE
PAPER, 8; TRESPASS, 1.

See also ARBITRATION, 1; ARREST, 9; BILL OF
PARTICULARS; COMMON CARRIERS, 2, 3; COR-
PORATIONS, 11; COUNTY COURT, 3; DEPOSI-
TIONS; DISCOVERY; DURESS; EQUITY; EM-
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
REMOVAL, 2, 3; SERVICE; STATUTE OF FRAUDS,
3; STAY; SURROGATES.

PUBLICATION.

See SERVICE.

PUBLIC OFFICE.

1. One C., having been declared elected an Assistant Alderman of the City of New York, and been sworn in, plaintiff brought an action of quo warranto against him, in which plaintiff obtained judgment before half the term expired, declaring that he was entitled to the office. He gave notice thereof to the Comptroller, and took the oath of office, but never performed any services, although ready to do so. In an action to recover salary of the office, Held, That plaintiff was entitled to the salary from the time he took the oath of office; that upon receiving the notice, it became the Comptroller's duty to refrain from paying any more of the salary to C.-Me Veany v. The Mayor, &c., of N. Y., 59.

2. The Board of Assistant Aldermen afterwards investigated the matter, and declared C entitled to the office. Held, That this decision did not countervail the one rendered by the Supreme Court.-Id.

3. A public office is not a grant, and the right to it does not depend upon or partake of the nature of a contract.-Long v. The Mayor, &c., of N. Y., 405.

See MANDAMUS, 1; SURETYSHIp, 4, 5, 8, 9.

RAILROAD COMPANIES.

1. It is the duty of all railroad companies, through their managers, to make proper provision for every one wishing to carry express matter over their respective roads. All are entitled to the same measure of accommodation who may offer to do the like business, and it is the duty of the courts, whenever applied to, to enforce this rule.-The Southern Ex. Co. v. The Nashville, C. & St. L. RR. Co., 210.

2. An equitable action may be maintained by one through whose farm a railroad runs

against the acting trustees of the road to compel the erection of fences and the building of a farm crossing.-Jones v. Seligman et al., 226.

3. The railroad corporation, in the exercise of its duty in providing farm crossings, is not vested with such absolute discretion or arbitary power that their decision is final and conclusive, and cannot be reviewed or disturbed.-Id.

4.

5.

6.

7.

8.

The fact that the damages awarded for condemnation of land have been paid does not necessarily preclude the party to whom the payment was made from maintaining an action to compel the corporation to provide suitable and proper crossings, if it has failed to do so.-Id.

Where the conductor on a car acts in the course of his employment as such, and with a view to defendant's interest, and on appearances upon which he has to exercise his judg ment, the RR. is responsible for the manner in which he acted and the consequences of his act, though he may have acted in excess of his authority.-Schultz v. The Third Ave. RR. Co., 267.

When a passenger on a railroad fails to produce his ticket on demand of conductor, not through wilfulness or with intent to defraud, but through having forgotten where he had placed it, so that, for the time, he is unable to find it, the conductor has no right to eject him from the car until he has stated the amount of the fare to him and demanded payment thereof.-Robson v. The N. Y. C. & H. R. RR. Co., 324.

The conductor is to be held to assume the risk of the correctness of his determination that the passenger's failure to produce the ticket was wilful.— Id.

The ticket having been once presented to the conductor and punched by him, he is bound to assume, when the passenger fails to produce it on a subsequent demand, that the passenger has mislaid it, and intends to produce it when found, till the contrary appears, and is bound also to give the passenger a reasonable time for the purpose.-Id.

9. Where defendant, a railway corporation, allows the use of its derricks, ropes, &c., partly for its own convenience, to enable consignees of a cargo to unload boats into defendant's cars, it is in duty bound to see to it that such instruments for unloading are fit and proper to be used for the purpose, and/ is liable for the damage occasioned by its failure so to do.-Derrenbacher v. The Lehigh Valley RR. Co., 347.

right to use the tracks so laid on a portion
of such route upon paying a fixed compensa-
tion. Held, That this was not such a user of
the franchise as was contemplated by the
statute, and did not preserve petitioner's cor-
porate existence.-In re The Brooklyn, W. &
N. RR. Co., 367.

11. A lease by a railroad company of all its
road, rolling stock and franchises, for which
there is no authority given in its charter is
ultra vires and void.-Thomas et al. v. The
West Jersey RR. Co., 373.

12. The ordinary clause in the charter author-
izing such corporations to contract with
other transportation companies for the mu
tual transfer of goods and passengers over
each other's roads is no authority to lease its
road and franchises.-Id.

13. The fact that the Legislature, after such a
lease is made, passes a statute forbidding the
directors of the company, its lessees or
agents, from collecting more than a fixed
amount of compensation for carrying passen-
gers and freight, is not a ratification of such
lease or an acknowledgment of its validity.-
Id.

14. Where, in a lease of this kind, for twenty
years, the lessors have resumed possession at
the 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-
tracts, which were originally ultra vires, shall
stand good for the protection of rights ac-
quired under a completed transaction.-Id.
15. Plaintiff, who was employed by defendant
to load dirt carts, was injured by a sudden
movement of the cars while he was getting
on the train. It appeared that the cars were
suitable for the purpose for which they were
used; that they had been recently inspected;
that only two of the five brakes were set at
the time of the injury, and that the train had
remained standing on a down grade for some
time previous without movement. Held,

That defendant was not liable on the theory
that it had neglected to furnish suitable ma-
chinery; that if the injury was caused by
the neglect of the brakemen to set the brakes,
it was the negligence of a co-servant, and de-
fendant was not liable.-Henry v. The S. I.
R. Co., 430.

16. The failure of the defendant to send a con-
ductor with the train did not render it liable,
unless his absence contributed to plaintiff's
injury.-Id.

17. A railroad and its franchises having been
purchased on foreclosure by a committee of
the bondholders, the stockholders disputed
the validity of the sale, and appointed a com-
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

the privilege of subscribing for stock of a
new company to be formed by, surrendering
their old stock and paying $10 per share in
instalments; the privilege to be exercised in
thirty days or be forfeited. Plaintiff claimed
that he had no knowledge or notice of the
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
based upon these facts, that all rights of the
old stockholders were destroyed by the fore-
closure sale; that plaintiff was not a party to
the agreement unless he elected to come in
and ratify it, and if he elected to do so he was
bound to adopt it as it was made and within
the specified time; that his right to attack
the sale was not impaired by the arrange-
ment entered into by the other stockholders
without his authority or knowledge.-Thorn-
ton v. The Wabash R. Co., 465.

See APPEAL, 32; EMINENT DOMAIN, 2; NEGLI-
GENCE, 11, 12, 16, 17, 26, 28-31; REFERENCE,
23.

1.

2

3.

RATIFICATION.

See AGENCY, 3; RAILROAD COMPANIES, 13.

RECEIVER.

A receiver pendente lite can only be appointed
when the claim of the plaintiff to share in
the distribution of the fund is conceded or
established, or the proceeding is expressly
sanctioned by statute.-Adee v. Bigler, 312.

Where a receiver in proceedings supplement-
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
pendente lite of the rents and profits of the
premises, the latter order will be reversed
on appeal by the defendants interested in the
partition suits.-Miller v. Levy et al., 326.

In an action to set aside transfers of property
on the ground that they were obtained from
plaintiff, a lunatic, by fraud and coercion,
and without consideration, the answer did
not deny want of consideration, or that the
grantor was of unsound mind or incapable
of managing her affairs. Held, a proper case
for the appointment of a receiver pendente
lite.-Mitchell v. Barnes, 552.

See CORPORATIONS, 18; LEASE, 9; MORTGAGE,
11; NEGLIGENCE, 13; REFERENCE, 10, 23;
SURETYSHIP, 7.

RECORD.

See MORTGAGE, 17-19, 21.