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A return of a justice is held conclusive as to

facts therein stated. People ex rel Simmonds v.
Motion in arrest of judgment should be made Ryker.

on supposed defects in the record and not on
mere defects of evidence. Jacobowski v. The Peo A justice is liable for a false return. Io.


A reference cannot be ordered to take proof of
Remedy for defective proof is by way of ob- the facts stated in a return.

jection and exception.


A note given to obtain the signature of a
Improper entry of an order should be correct- creditor to a composition deed, the amount of
ed by a motion to resettle the order, Knight v. which is in excess of the amount paid other

40 creditors, is void. Slade, survivor, v. Wilson, 148
An order made upon unfounded allegations When a defendant, setting up such a defense,
of fact, which, had they been true, would have fails to establish it but is allowed, without ob-
sustained it, is not improvidently granted. jection, to prove, uncontradicted another, viz.:
Schlumpf v. Downes et al.

41 want of consideration, it is error to refuse to
direct a verdict for the defendant.

A refusal to strike out evidence received un-
der objection constitutes no ground for an ex The court can only order the exceptions taken
ception; if for any reason it should not be con. in a case to be heard in the first instance at the
sidered, the remedy is to ask for instructiong General Term. Benedict v. Phelps.

that it be disregarded. Marks v. King. 79

Whether or not an accident by which plain-
Where upon the return of an order to show tiff was injured could have been avoided by
cause why a mandamus should not issue, affida- proper care and diligence is a question for the
vits are presented on behalf of the defendant, jury. Haycroft v. L. S. & M. S. R. R. Co. 155
upon which the relator takes no issue, but pro-
ceeds to argument, he admits the truth of the The Special Term has no power to order a
defendant's averments. The People er rel.. motion for a new trial, upon exceptions, to be
Tenth National Bank v. Board of Apportion- heard in the first instance at the General Term.

pportioga after having entertained at motion for a new
ment of N. Y.

trial, upon the judge's minutes; and it makes
Courts should not set aside a verdict of a jury no difference that the latter motion was based
except upon clear and palpable evidence of upon questions of fact; the code allows no
fraud, bias, or prejudice. Hill admr. v. The N. separation of the application. The People v.
Y. C. & II. R. R. R. Co.
94 Tweed et al.

When the plaintiff has knowledge of the Upon a motion for a stay of proceedings, with-
transaction in controversy, which is the subject out security, pending an appeal, the court should
of the action, and is not called as a witness, it is be possessed of all the facts and circumstances
not error in the judge to submit to the jury the relating to the appellant's means and property;
plaintiff's absence for them to consider, and it is in considering such an application, the recovery
not error for the judge to instruct them that if had is presumed to be correct, and the possession
they find such absence to be of a suspicious thereof ought not to be jeopardized by tying
character, that it would throw suspicion upon appellee's hands.

plaintiff's case. Brooks v. Steen, imp'd., &c. 96

The difficulty of the legal questions involved,
Under Sec. 391 of the Code, the plaintiff may the length of the trial, the labor of preparing
examine the defendant before issue joined, and for trial, the amount of the verdict, the number
before the service of the complaint. Glenney v. of motions made in the course of the proceed-
Sieduell et al.

97 ings, are considered in determining whether a
Supreme Court rule 21, if intended to affect case is difficult or extraordinary" for the pur.
this right, is inoperative.

pose of fixing an allowance.

If the affidavit upon whieh the application is aside a judgment to enable a party co appeal

It is well settled that the court cannot set
based gives the judge power to act, his action is when the time to appeal has expired. There is
discretionary, and cannot be reviewed by the
Court of Appeals.


no power in the court directly or indirectly to

extend the time of appeal. Whitney et al v.
When more than three years have elapsed Townsend.

since the commencement of a suit, judgment by
default will not be granted without notice to

The court is justified in regarding technical
defendant. Phipps v. Cresson.


irregularities in the entry of judgment as waived

by lapse of time, when there is nothing in the
The court may correct an erroneous sentence papers to show that the advantages gained by
any time during the terın and before the sheriff the respondent by reason of gross laches of the
has proceeded to execute sentence. In the mat- appellants is inconsistent with equity and jus-
ter of Suan.

It is too late to raise an objection to the com The court has power in its discretion to allow
plaint for the first time on appeal, Iolt v. Des the discontinuance of an action without costs.
129 | Hilborne, assignee, v. Kolle et al,


114 tice,

It is error for the General Term on reversing upon exceptions filed after the decree, nor set
a judgment, to direct jndgment absolute unless aside a decree because it was obtained by fraud.
it clearly appears that no evidence, upon a new In such case the remedy is by bill of review.
trial, could change the result. Graves v. Water- Terry v. The Commercial Bank of Alabama. 279
inan, admr., et al.


An affirmative defense, alleged upon informa-
Circuit Courts are not required to hear oral tion and belief, unsustained by proof, may be
testimony in equity cases, but if they do it must stricken out as sham. Gaul v. Tho Knicker-
be reduced to writing and accompany the bocker Life Ins. Co.

record, and must include testimony objected
to and ruled out, subject to the objection. The The forty-ñrst ruls of the courts of record of
U. S. Supreme Court will not send the case back New York State does not entitle the party mak-
to have the rejected testimony taken. Blease v. ing a case, as a matter of absolute right, to the

189 use of the stenographer's notes. Bohnet v.

A party in whose behalf a witness is examined
under the provisions of the Revised Statutes al Any other statement showing what the evid-
lowing the examination of witnesses for the ence was may be used instead of those notes.
purpose of perpetuating their testimony, cannot

properly file the deposition until the examina
tion of the witness is completed, although the

The matter has been committed very much to
Judge may have subscribed and certified it. the judgment and discretion of the justice be.
II wlett v. Wood et al.

fore whom the trial may be had.

The Judge before whom the examination is judge to submit a specific question of fact to a

In order to take advantage of a refusal of the
had may limit the cross-examination in order to
prevent its unnccessary continuance for the pur: refusal. Moore et al v. Bristol es al.

jury, there must be a specific exception to such

pose of annoying the witness.


An exception generally to the direction of the
The General Term has no power to set aside a court to the jury to find a verdict for the defend-
verdict as against the weight of evidence upon ant, is not sufficient.

an app al from the judgment only. A motion
for that purpose can only be made at Special

In application for inspection of papers, facts
Term or Circuit, and must be brought up on an should be given which would enable the court
appeal from the order thereon. °Boos v. Tho to determine whether the evidence so sought is
World Mutual Ins. Co.

211 material. Brooklyn Life Ins. Co. v. Pierce et

Upon a proper showing the Court of Appeals
will order its remmttitur amended so as to state

The rule that if the charge does not mislead
that the order of affirmance is without prejudice the jury, a new trial should nöt be ordered, ap-

Sloane v. Elmore. 304
to an application by the appellant to the court plied to a peculiar case.
below to re-open the case. Petition of Ingra Where a general exception is taken to the re.

211 fusal of a judge to direct a verdict for defendants,

no request being made that the justice submit
The Court of Appeals will not reverse a judg to the jury any questions of fact, on appeal the
ment upon a fact which the judge below ex-party making the request is concluded by the
pressly refused to find, and which was not con- finding of the justice from raising the point that
clusively proved. The Standard Oil Co. v. The specific questions of fact should have been sub-
Triumph Ins. Co.


mitted to the jury—the justice having thereafter
In an action to recover unliquidated damages, The N. Y. Laundry Mfg. Jo.

directed a verdict for plaintiff. Strong, recr., v.

the jury may resort to means to arrive at a ver-
dict that are not allowed in actions where the

The defense of usury should be made out by
damages are liquidated. The St. Louis & South- a fair preponderance of evidence.

western R. R. Co. v. Myrtle.


On a motion to set aside a judgment of divorce
To make the improper conduct of an attorney, because of adultery, on the ground of fraud and
in going outside the evidence and making imo collusion, defendants affidavit is competent,
proper comments, available as error, the court though she might not testify as to her innocence

must be called upon and refuse to stop counsel. on the trial. Megarge v. Megarge.

1b. In such a case it is proper to apply by motion
instead of by action.

Application may be made in ejectment suit by
defeated party within three years after judgment The rule that an abuse of discretion is ground
entered to vacate judgment and for new trial. for reversal applied to a peculiar case. Smith et
Towle v. D.; Witt.
264 al. v. Neals.

Party having entered judgment in his own

The finding of a justice at Special Term of a
favor irregularly is not allowed to question its fact entirely outside of the issues raised by the
irregularity for the purpose of defeating a mo

pleadings, is error sufficient to reverse the judg.
tion to vacate judgment and for new trial. 16. ment, especially when such findings might have

influenced such justice in his finding of a subse.
The U. S. Supreme Court, upon an appeal quent conclusion of law. Dinkelspiel et al.
from a decree, cannot review a master's report v. Franklin et al.


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A verdict cannot be set aside as against evi The articles of incorporation of defendant are
dence where the defendant has not moved for competent for the consideration of the jury. Ib.
non-suit nor asked the court to direct a verdict
in his favor. Peake v. Bell,

423 In an action to recover damages for a injury

sustained by falling on a sidewalk, the question
The practice with refererce to the writ of whether the si tewalk was in an unsafe condition,
ne exeat requires the special allowance of the and whether the injury was caused solely there-
writ by an order of this court, and there should by, or whether negligence or want of care on
be an endorsement upon the writ by the clerk, the part of plaintiff contributed to it, should be
showing the amount in which the defendant submitted to the jury. Clemence v. City of Au-
should be held to bail. Viadero v. Via-


Tlie liberal provisions of Ss 173, 174 of the Where a party has been nonsuited, he may
Code, with reference to amendment, applies to insist, upon appeal, not only that the judge
the writ of ne exeat.

16. erred in his application of the law to the facts,

but that he erred in his conclusions of fact, or
If upon a reference certain facts are not found, that there were disputed questions of fact that
and no request made to find them, the appellate should have been submitted to the jury. lb.
court cau not assume they existed, nor can it
look into the evidence to ascertain whether facts It is proper for the court to direct a verdict
were proved which if found would require the whenever a verdict contrary to such directions
reversal of the judgment. Brett v. First Uni- would be set aside as being against evidence.
versal Society.
433 | Parker v. McClinn, exr. et al.

Where there is a plain conflict of evidence

A reargument will not be ordered to decide
upon one of the issues raised by the pleadings, questions which may arise in other pending ac-
it is error to take the qnestion from the jury: tions, when all the questions involved in the
Genet v. The Mayor &c. of N. Y.

appeal have been passed upon on the former

Referee's findings on questions of fact are

hearing. Becker v. Howard et al.
conclusive. Meeker v. Guylord et al. 441 The court is not in error in refusing to leave

Although the complaint may not have cov- to the jury the question of the value of the
ered case as proved, where the evidence is not services for which the note was given, where the
objected to, the court on appeal will dispose of same were to be determined by the intestate, as
case as though the pleadings were amended on

that would be, in effect, to deprive the intestate
trial. Tisdell v. Morgan.


of his power of determination. Earl v. Peck,

Where evidence is conflicting the court will
not review a question of fact. Berry v. Jack. For the reception of incompetent evidence

470 which could not by any possibility harm any
A non-suit should only be ordered where the Lyng v. Boyd.

one, the court will not reverse a judgment.

evidence on either side is so clear and undispu-
ted that a verdict in conflict with it could not When a party regnests certain specified ques-
sustained Hodgkins v. Van Amber et al. 473 tions, for which there is no valid ground, to be
On a motion for a non-suit all disputed facts submitted to the jury, it is to be assumed that

he intends to waive the submission of other
are to be decided in favor of plaintiff. 16.

questions. Dounce v. Duu et al.

An order directing service of summons by
publication against a non-resident corporation

An exception to the decision of a judge de-
will be sustained under $135 of the Code, when nying a motion for a new trial on the minutes,
the subject of the action is personal property, on the grouna that the verdict is against the
within the State, and the transactions in contro- weight of evidence, instead of its being on the
versy took place here, and the cause f action ground of insufficiency of evidence to support
arose here. Matter of the application of the At- it, is valid as to form, though the ground of the
lantic Giant Powder Co., &c.

475 motion does not come within the express terms

used in $264 of the Code. Sharkey v. Torrilhon.
Where the judgment is entered upon the re:

port of a referee and the General Term has a
right to review the facts, it is its duty to pass of the counsel for either party, cannot instruct

After a jury has retired, the court, in absence
upon them from the evidence.

483 the jury on any point material to the issue.
Burke v. Webb.

To order a non-suit on the opening of a case.
the court must be satisfied that the counsel It is the province of the jury to reconcile the
stated no cause of action in his opening, provi- conflict of proof, and determine from all the
ding same was fully proved. Shubert v. Shu- evidence whether the truth is on the side of the

484 complainant or of the defendant; and when this

has been done, free from passion and prejudice,
It was a proper question for a jury whether and the record contains evidence sufficient to
the President and Secretary of a company, in sustain or justify the result, the verdict must
purchasing goods, &c., acted individually or for be regarded as final. Berdel v. Berdel. 581
the company. Ingelhart et al. v. The Thousand
Island Hotel Co.

492 No appeal being taken from an order in be-


half of plaintiff amending the complaint upon deems most appropriate to the success of the
the trial, the defendant being successful, it business, has a sufficient interest to entitle him
stands intact as a part of the case, with all the to insure the property. Kline et al, cx'rs. v.
benefit to the plaintiff to be deprived therefrom. Queen Ins. Co.

Hauck v. Craighead et al., exrs., et al. 594
Where there is a conflict in the evidence upon property held in trust by the person to whom

And where such property has been insured as
a material issue in the case, the court must sub- the policy issued, such property will be regarded
mit the question to the jury.


as coming within the terms of the policy. Ib.
What constitutes intoxication is a question of
fact, to be determined by the jury upon the

The fact that an agent has authority to do a
whole evidence, in the light of their own obser- certain act, does not warrant an inference that
vation. Roth v. Eppy.


he has general authority. Express authority
should be shown. Gillett v. Hall.

As to decisions on matters of practice, on
topics which are treated under separate titles, A corporation is liable only for the actual
see those titles.

damages caused by the willful acts of its agent,

done in the course of his employment, unless it

shall have authorized such acts or ratify them
A principal who ratifies the act of a voluntary for all exemplary damages arising out of such

after they are done. The agent alone is liable
agent who receives money for his principal and act. McKinley v. Chicago & N. W. R. Co. 452
makes a loan in his behalf as a condition of
such receipt, is entitled to receive the money so A promissory note given for work done for
paid to the agent upon the repayment of the the principal by an agent having a power of at-
loan made by the agent. Fowler et ul. v. The torney, and signed “J. E., attorney for the estate
New York Gold Exchange Bank.

1 of L. Hayes,” does not bind the heirs of the
A voluntary agent is entitled to be reim- estate, (the principals). Merchants Bank v.

Hayes et al.

bursed for expenses incurred in behalf of his
principal, on the ratification by the principal of Where one employs a contractor to rebuild
the agent's acts.

1b. his house, under an agreement that the con-

tractor shall make good any damage to a neigh-
A principal can enforce all rights of action
acquired on his behalf by his agent, irrespective boring house, and the contractor uses insufficient
of any obligations or liabilities arising in the means to support said house, whereby it was
transaction between the principal and agent. Peate.

damaged, the employer is liable. Bower v.

Indi inapolis, P. & C. R. R. Co. v. Tyng. 80

It is the duty of a principal, when he termi.
A principal is bound by the knowledge of his nates the agency, to notify all parties who have
agent only so far as it was gained in the trans- been in the habit of dealing with the agent.
action in which he was employed. Houseman Claflin et al. v. Lenheim.

v. The Girard Mutual Bldg & Loan A88. 188

The fact that dealings between the parties had
Where a contract is signed by “the cashier,” been suspended for two years, and that on re.
and it is found that he so signed under the di- suming them the principal dealt directly with
rection of the president of the bank, and his act the parties, is not sufficient to constitute con-
purported to be on behalf of the bank, the bank structive notice of the revocation of the agency.
is bound. Merchants Bank v. The Meyers Steel

&c., Co.


The immediate employer of the agent or ser-
A party cannot avoid his agent's acts as to vant who causes the injury is alone responsible
part of a transaction and avail himself of them for such injury; to him alone the rule of rc-
as to the residue.

16. spondeat superior applies, and there cannot be

iwo superiors severally responsible. Wray v.
Commissioners appointed by and in pursuance Evans.

of an act of the legislature for a particular pur-

Insurance companies doing business by agen-
pose, viz.: to erect a court-house in one of the
judicial districts in the city of New York, and cies are responsible for the acts of an agent
havi g no corporate or continuous power, are

within the general scope of the business in his
agents of the city ; and the city is liable for ex:

charge, and no limitation of his authority will
penditures made by them in the prosecution or be binding on parties with whom he deals which
the work, Wood ét al. v. The Mayor, &c., of N. are not brought to his knowledge. Merserau

v. Phænix Mutual Life Ins. Co.

The remedy in such case is by action, and not

As to liability of principal who is unknown
by mandamus.


at time of making the contract, see CONTRACT.

As to right of agent of insurance company to
Where an attorney is employed by a collec-
tion agency to collect a claim, the attorney is waive conditions in policies, see WAIVER.
the agent of the collection agency, and not of

the creditor. Hoover, assignee v. Wise et al. 241
A general agent having the custody and con

Mere indulgence to the principal will not

trol of his principal's property with full power

a discharge of the surety; to have
to preserve and dispose of it in the way he sich an effect the act must be legally injurious,

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or inconsistent with the legal rights of the sure an assignee of the first recorded mortgage,
ty Clark, admr. v. Sickler, admr.

232 without notise of the mortgages being equal

liens, acquires no priority over those subsequent.
If the payee, where one party to a note signed by recorded, Green v. Deal.

as surety, takes a new note of the other makers,
extending the time of payment, and procures

A judgment creditor, whose judgment was a
the new note to be discounted, the surety on the lien against his debtor's real estate, prior to the
first note is discharged ; the raising of the money latter's being declared an habitual drunkard
on the new note is a sufficient consideration. cannot be postponed on a sale of the real estate
Hubbard v. Gurney.

335 in the payment of his claim till atter the costs

of the estate are paid. Malone v. Clinton. 158
Damages on breach of covenant in a lease can-
pot be taken advantage of by sureties, in an ac PRIVILEGED COMMUNICATIONS.
tion on the lease, without showing the principal
to be insolvent. Morgan v. Smith et al. 346

Where a surety is only induced to become

such by an agreement of the landlard to do cer-
tain things, and where there is a conflict of evi-
dence on such point, it should be submitted to dress of an endorser is not making that diligent

Looking in the directory merely for the ad-
the jury.

inquiry which the statute requires. Greenwich

A bona fide purchaser without notice, of real Bank v. De Groot.
estate, upon which there is lien by judgment,
although not technically surety for the judg.

ment debtor, occupies a similar position, and if
the judgment is stayed by an undertaking on

The interest on money deposited by the public
appeal, a release by the judgment creditor of the administrator in bank, subject to the joint order
sureties on the undertaking on appeal, will of himself and the Comptroller, and which is
operate to discharge the judgment lien upon the paid by the bank, belongs to the lawful owners
land, and support an action to restrain a sale of the fund, not to the City. Sullivan, pub. admr,

thereof upon execution. Barnes et al. v. Mott v. Henera et al.
impld.. dec


The law relieving the city from paying inter-
An intentional act which materially changes est after the money is deposited in the City
the contract without the surety's consent will Treasury, after the public administrator has set-
discharge him, whether it was for his benefit or

tled his account, does not change the rule. Ib.
not, and even though he might have sustained
only nominal damages. Polak v. Everett. 385

A surety is discharged by the creditor re The presumption is that a public officer per-
leasing a security in his hands for the princi- forins his duty. This presumption may be over-
pal debt, though it does not go to cover the come by evidence. burditt v. Barry, 113
whole of that debt, and the creditor allows the
surety the whole value of the security.

An officer to justify his acts must be an officer
de jure.

In order to discharge a surety on a bond for
the faithful performance of his duties and trusts Where the Commissioners of Public Works
by the principal, there must be proof that the are authorized to contract for deepening a sewer,
delinquency of his principal was caused by dis and after entering into a contract pursuant to
lionest conduct or a gross violation of the obli. such authority, for an open sewer, Held, that the
gations imposed by the bond. Atlantic and Pa Commissioners did not exceed their authority by
cific Tel. Co. v. Barnes et al.

413 entering into a subsequent contract with the
The discharge of a bankrupt judgment debtor of an open one without readvertising for bids.

same party to construct a tunnel sewer instead
from a judgment from which an appeal is pend. Lutes et al, v. Briggs et al.

ing, and before its affirmance upon such appeal,
does not discharge the sureties upon the under The Commissioners are not liable to parties
taking on appeal given to stay proceedings upon who have paid the assessment for any surplus
the judgment pending the appeal. Knapp et al. that may remain after the work is paid for; but
v. Anderson et al.

600 the parties must look to the Cominon Council
As to where sureties on undertaking may jus-
tify, see ATTACHMENTS.

The discretion of heads of departments in the

removal of subordinates by way of discipline, is
As to estoppel of surety from claiming a dis- limited to cases which are in violation of pre-
charge, see ESTOPPEL.

scribed regulations. People ex rel. McLaughlin
As to sureties on bond of insurance agent, see v. Fire Department.


As to appointment of public officers, see AP-

Where simultaneous purchase money mort-

As to liability of Commissioners of Highways
gages are given, but recorded at different times, see IIIGIWAYS

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