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Demurrer for non joinder of parties is well taken where it appears that

the court can not determine the controversy without prejudice to the
rights of others, nor by saving their rights. It seems that $ 122 is
the controlling section on demurrer for defect of parties, Wallace

agt. Eaton, 99.
A general allegation in a demurrer to an answer, that the facts therein

do not constitute a defence, is sufficient, Hyde agt. Conrad, 112.
see Answer, 206.

DISCOVERY, an order for discovery may be enforced before issues joined in


cause, Miller agt Mather, 160.
An application for discovery or inspection of books, papers, &c., must

be made upon petition, Dole agt. Fellows, 45).

DIVORCE, an issue in a divorce case may be referred by consent of parties,

Anonymous, 306.

EQUITABLE RELIEF, see Pleading, 188, 216,272.

see Answer, 192, 470, 476.

EVIDENCE, in proceedings for publication in case of a non resident defendant,

the fact of non residence is evidence that the defendant can not, after

due diligence be found within this state, Vernam agt. Holbrook, 3.
see Witness, Dodge agt. Averill, 8.
Consent to use as testimony what the law will not recognize as such,

can not avail, although it be incorporated in the report of a referee,

Litchfield agt. Burwell, 341.
In proceedings to perpetuate testimony, it must be made to appear that

the object is in good faith to perpetuate testimony, Paton agt. West-
ervelt, 399.

EXECUTION, where an execution contains all the requisites of $ 289, it is

sufficient. It need not be “in the name of the people," nor tested,"

nor on its face "returuable in sixty days," Park agt. Church, 381.
see Proceedings, Supplementary, fc.

EXECUTORS, it seems that foreign executors may foreclose a mortgage in

this state without taking out letters testamentary here, Averill agt.
Taylor, 476.

EXEMPTION, when a horse or team is exempted, Wheeler agt. Cropsey 288.

exemption generally, id,



EES, what fees a county clerk is entitled to under the Code, as clerk of

the Supreme Court, 11.
Attorneys and counsel fees are not recoverable in summary proceedings

to recover the possession of land, against the adverse party, Patridge

agt. Ford, 21.
Fees of justice must be paid on serving notice of appeal (see Appeal,)

Van Heusen agt. Kirkpatrick, 422.
see Surrogate, Gardner agt. Brown, 351.
It is no ground for a readjustment of costs that the clerk refuses to allow

50 cents for entering judgment. This fee is his and he has a right
to refuse it, Schermerhorn agt. Van Voast, 458.

FOREIGN CORPORATION. see Practice, 96, 183.

ent of pura

GUARDIAN, the facts upon which a plaintiff relies for judgment against in-

fant defendants must be established by legal proof, notwithstanding
the attorney for their guardian may have consented that judgment be
taken on the report of a referee, Litchfield agt. Burwell, 341.

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HUDSON RIVER R. R. COMPANY, their obligation by their charter to

pay laborers, Warner agt. The Hudson River Rail Road Co.,


to appear


facts constituting an equitable defence to a legal demand, will not be

struck out as irrelevant, Burget agt. Bissell, 192.

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INJUNCTION, a creditor of insolvent partners may have injunction to pro-
tect partnership property, Dillon agt. Horn,

An application to dissolve an injunction made on the pleadings, the answer

being verified, must be regarded as made on affidavits, and affidavits

may be read in opposition, Schoonmaker agt. Durch Church, 265.
Contra) also see Miliken agt. Cary, 272.
the complaint can not be treated as an affidavit, id.

4. Cryge


(Florence agt. Bates, 2 Sand. 675, Krom agt. Hogan, 4 How. 225.
Contra, Hartwell agt. Kingsley, 2 Sand, 674, and note.)
the only inquiry now on an application for injunction is whetber the act

complained of will produce injury to the plaintiff, Cure agt. Craw-
ford, 293.
Contra, see Wordsworth agt. Lyon, 463.
A mere refusal to pay a debt, whether debtor be solvent or not, is not

cause for issuing an injunction, Pomeroy agt. Hindmarsh, 437.
nor is it sufficient that defendant threatens to make an assignment for the

benefit of his creditors, id.
suspicion, belief and information are not sufficient, id.
It is not the province of the Supreme Court to interfere by injunction,

where a remedy is given by appeal, Woodworth agt. Lyon, 463.

to authorize an injunction it must appear that plaintiff is entitled to the

final relief demanded according to law, independent of the Code, id.
Cure agt. Crawford, ante 293, disapproved.

INTEREST, to recover annual interest upon the whole principal payable in

installments, words must be used clearly to express that intention,

Bander agt. Bander, 41.
ISSUE, see Pleading.


decision of a motion on a demurrer as frivolous, is a judg-
inent, King agt. Stafford, 30.
Where judgment is pronounced in open court, holden by eight judges,

without any dissent at the time, neither party can go behind such
public act to show that there was equal division of opinion among the

judges, Mason agt. Jones. 118 Court of Appeals).
It seems that the Court of Appeals can der an affirmance where there

is an equal division of the judges, id.
Where a complaint is on separate and distinct bills, or accounts, and the

answer denies one bill only, and the balance claimed specifically in
the language of the complaint the plaintiff may have judgment for

the accounts not denied by the answer, Tracy agt. Humphrey, 155.
but the answer can not be stricken out on tne ground of falsity where

it is verified, id.
see Appeal, 200, 201.
see Motion to dismiss complaint,
see Confession of judgment, 322, 38!.
A judgment in the hands of an assignee who purchased with notice and

with no new consideration, is liable to be set off against the assignor,
Noxon agt. Gregory, 339.


JURISDICTION, if motion be made and granted by default in the wrong

county, the order is not void for want of jurisdiction, Blackmar agt. Van Inwager, 367.

JUSTICE OF THE PEACE, a justice of the peace had no power to take

judgment by confession for more than $100, by Code of 1848, Dan

icls agt. Hinkston, 322, see Appeal, 323, 422.


DLORD AND TENANT, tenants from year to yeur may be removed

by summary proceedings, Prouty agt. Prouty, 81. such a tenant is included in the term “ tenants at will ” in the statutes

of '30 and '49, and may be removed upon one month's notice to quit,

terminating with the year, id. the affidavit should state that tenant þolds over without permission of

his landlord, id. Distinction between sub lease and assignment of the original terra,

Linden agt. Hepburn, 188, see also, Pleading, id. The provision of the Revised Statutes (2 R. S. 516, § 47) is inconsistent

with the Code, and therefore repealed, Cure agt. Crawford, 293. proceedings to remove tenant may be stayed if they would produce in

jury to plaintiff, id.
Contra, Woodworth agt. Lyon, 463.

LIEN OF ATTORNEY, the lien of an attorney for his costs is subordinate

to the equities existing between the parties, Noxon agt. Gregory, 339.

LIMITATION, see Appeal, Bank of Geneva agt. Hotchkiss, 478.

LUNATIC, an action can not be brought against a lunatic, judicially declared

such without application to the court. The old practice should be pursued by petition to the court for relief or application for leave to bring an action, Soverhill agt. Dickson, 109.


ANDAMUS, see Appeal, People ex rel. Cahoon agt. Dodge, 47.

MISNOMER, misnomer of the court-called “ General Sessions of the Peace

instead of “ Court of Sessions " as designated by the Code, immaterial, People agt, Hawkins, 1.


MOTION, costs of—see Notice, 134.

costs of motion in the regular progress of the suit need not be inserted

in the order, but follow of course to the prevailing party, Thomas

agt. Clark, 375.
see Jurisdiction, Blackmar agt. Van Inwager, 367.


MOTIONS, that part of $ 401 which enacts “motions must be made within

the district in which the action is triable, or in a county adjoining that in which it is triable, &c.,” applies exclusively to motions made

upon notice, Peebles agt. Rogers, 208. “The county where the action is triable” includes any county in which,

according to sections 123, 124, 125, the plaintiff is at liberty to have

the action tried, id.
Where notice of motion asked to strike out answer as frivolous,

such other relief, &c." held, that judgment, on account of its frivo

lousness, could not be given, Darrow agt Miller, 247. Motion to dismiss complaint, Cusson agt Whalon, 302. A motion for judgment for not serving the complaint must be made in

that district, or a county adjoining the county in which venue is laid in another district, Johnston agt Bryan, 355.

or for

EW TRIAL, on application and payment of damages and costs, as a matter

of riglit, a party is entitled to a new trial in ejectment, Rogers agt.
Wing: 50.

NE EXEAT, the writ of ne exeat is not abolished by the Code. To autborize

its issue, facts, not mere apprehensions, must be stated, Forrest agt. Forrest, 125.


NON RESIDENT, the statute does not expressly require the filing of the

affidavits on which an order is made for publication in case of a non

resident defendant, Vernam agt. Holbrook, 3. in such proceedings, the fact of non residence is evidence that the de

fendant can not, after due diligence be found within this state, see Publication, Evertson agt. Thomas, 45. see Foreign Corporation, Although the Code authorizes an attachment against a non resident in an

action for the recovery of money, whether for a wrong or on contract,
it is only in the latter case that a suit can be commenced unless de-
fendant can be served within this state: Hernstein agt. Matthewson,

see Executors, Averill agt. Taylor, 477.

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