« PředchozíPokračovat »
NOTICE, notice of trial served on the 11th for the 21st, is good, Dayton agt.
abide the event of the suit, will be set aside for irregularity, if no no-
agt. Van Deusen, 134. see Costs, Dix agt. Palmer, 233, see Motion, Darrow agt. Miller, 247. In partition-on sales of lands in the city of New York, the notice must
be for six weeks, Romaine agt. McMillen, 318.
Party,see Actions, Dodge agt. Averill
see Demurrer, Wallace agt. Eaton, 99.
suits commenced before the Code, and to transfers made before that
time is unconstitutional, Vrooman agt. Jones, 369. One of several plaintiffs having assigned to his coplaintiff after suit com
menced and cause referred and some testimony taken, plaintiffs were allowed to amend, Davis agt. Schermerhorn, 440.
PENDENCY of another suit, see Pleading, 51.
PERSONAL PROPERTY, see Claim, &c.
PLACE OF TRIAL, the trial of a cause for the convenience of witnesses,
should be had in the county where witnesses reside, though they may be required to travel a greater distance than to the court house of an
adjoining county, People agt. Wright, 23. supposed circumstances which render it doubtful whether a fair trial can
be had in the county to which it is moved to change the place of trial,
are no cause for refusing the motion, id. Motion to change the place of trial can not be made before the issues in
the cause are settled, Hartman agt. Spencer, 135. The venue in a complaint is to be fixed irrespective of convenience of
witnesses where some or one of the parties reside, is either reside in the state (sections 125 and 126 of the Code in connection with the
46th and 47th sections of the judiciary act), Moore agt. Gardner, 243. a change of the place of trial for the convenience of witnesses, is pro
perly made, when the venue has been fixed in the proper county, id,
PLEADING AND PLEADINGS, a party can nol demur and answer to the
same pleading, Spellman agt. Weider, 5. where this is done, the remedy is to move to strike out one of them or
to compel the defendant to elect by which he will abide, id. the plaintiff can not in such case, move for judg.nent on account of the
frivolousness of the demurrer, id. what facts should be stated in a complaint against the makers and en
dorsers of a promissory note, when they are all united in the same
action under ý 120 of the Code, id. An answer is bad, where it controverts no allegation of the complaint,
and sets up no new matter in bar, but merely denies a conclusion of
law, McMurray agt. Thoma an answer is bad, which merely alleges that the note sought to be re
covered was obtained by fraud, and omits to set out any facts showing
the existence of such fraud, id. Motion to strike out redundant matter must be made before giving bo
tice of trial, Esmond agt, Van Benschoten, 44. A plea of the pendency of a suit in another estate for the same cause of
action, is bad, Burrows agt. Miller, 51. Impertinent and scandalous matter struck out with costs, Carpenter agt.
West, 53. it seems any one affected thereby may move to strike out such scandalous
matter, even though not a party to the suit, id. impertinence includes irrelevancy, redundancy, and prolixity, id. The objection that summons was not properly served is not available by
answer or demurrer; but only by motion, Nones agt. Ins. Co., 96. Demurrer for non joinder of parties is well taken where it appears that
the court can not determine the controversy, without prejudice to
rights of others, nor by saving their rights, see Demurrer, 99. It is not necessary to charge an endorser, to aver a presentment and de
mand at the place specified in the note, in a complaint, Gay agt.
Paine, 107. see Demurrer, 112. see Answer, 146. see Judgment, 155. Several causes of action in slander can not be united in the same com
plaint unless they are separately stated, Pike agt. Van Wormer, 171. it seems, that the separate statement of a cause of action, is equiva
lent to a separate count, under the former rules of pleading, id. the words you have passed counterfeit money, &c." without any col
loquium, or allegation of guilty knowledge and intent to defraud, will not sustain an action. The words "you are a bogus pedler," without
averment, showing the meaning of the term, are not actionable, id. words imputing that plaintiff had had the pox, but without asserting the
present continuance of the disease, and without alleging special da-
mages, are not actionable, id.
also praying an injunction restraining defendant from making altera-
The Code has not changed the inherent difference between
which are not expressly abrogated, and which can properly be made
ter City Bank agt. Suydam, 216.
chancery pleading are to be applied; otherwise those of the common
law, id., Contra, 272.
which there is still a distinction, yet but one system of pleading is
or legal conclusions should be stated, Milliken agt. Cary, 272.
issue in the cause, notwithstanding the right to amend, Cusson agl.
remedies but also in proceedings, Williams agt. Hayes , 470.
can be made the subject of material issue, id.
removed, so that the record shall present nothing but issuable facts, id.
PRACTICE, 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.
agt. Weiter, 5.
the plaintiff can not in such case move for judgment on account of the
frivolousness of the demurrer, id.
appeal from such decision must be taken as from a judgment-not
from an order, King agt. Stafford, 30.
The provisions of the R. S. in relation thereto are still in force, id.
quently to strike out redundant matter from his adversary's pleading,
under ý 160 of the Code. Esmond agt. Van Benschoten, 44.
fore the Code, may be filed after twenty days, People ex rel. Cahoon
agt. Dodge, 47.
by answer or demurrer, but only by motion. The meaning of the
served, Nones agt. Hope Ins. Co., 96.
of appraisal of damages in taking land for a rail road, is the proper
and Erie Rail Road agt. Corey, 177.
aging agent, his agency must extend to all the transactions of the
company, Brewster agt. Michigan Rail Road Co., 183.
corpcration, the court have jurisdiction only to subject the property
a judgment in rem. id.
PROCEEDINGS SUPPLEMENTARY TO EXECUTION, where the judge
may, in his discretion, make an order to apply the property of the
debtor, or to appoint a receiver, Corning agt. Tooker, 16.
the duty of a referee on taking the examination, &c., id.
debtor. liable to execution, the remedy of the creditor is to levy on
the goods, under his execution, or to institute an action, in the nature
of a creditor's bill, Dorr agt. Noxon, 29. a receiver can only be appointed in such a case, on notice to the judg
ment debtor, id. A motion to vacate the order may be made to the court, without first ap
plying to the judge before whom the proceedings are pending, Lind
say agt. Sherman, 308. an appeal from an exparte order, made by a judge at chambers, will
not lie at the general term, under Ø 350 of the Code, id. Upon the return of an execution within the sixty days, proceedings sup
plementary may be commenced, Livingston agt. Cleaveland, 396. Where proceedings supplementary to execution are instituted under the
Code, the order for the debtor's examination under the 292d section gives the judgment creditor the same lien upon the debtor's equitable assets which he acquired under the former practice by the commencement of a suit by creditor's bill. And the orders authorized by the 297th and 298th sections themselves, and without an assignment by the debtor, divest his title in the personal property and vest it in the
receiver, Porter agt. Williams and Clark, 441. W., on the 5th of January, assigned to C. all his property for the benefit
of creditors, with power to sell either for cash or credit. This assignment is void (2 Comst. 365). On the 28th of March an order was made in proceedings supplementary to execution against W., and on the 4th of April P. was appointed a receiver of W.'s property. On the 30th of March W. executed a further instrument to C. declaring
that it was intended that C. should sell for cash only, id. Held that P., the plaintiff had acquired a lien on the 28th of March,
which rendered ineffectual the instrument of the 30th of March, even
if otherwise of any effect, id. Held, also, that W. could not at any time after the execution of the as
signment to C. revoke the authority therein contained to sell upon credit, and that the instrument subsequently executed was of no avail
to render the assignment valid, id. In proceedings supplementary to execution under $ 292 of the Code, a
county judge has no authority or jurisdiction to issue an order for the defendant to answer, &c., until after an execution has been issued against his properly. And this fact, and all others upon which jurisdiction rests, must be shown affirmatively; they are not to be deduced by inference or presumption, People ex rel. Williams agt. Hulburt,
County Judge, 4.16. where the creditor claims the application of a demand or debt due to
the debtor from a third person, and such demand or debt is denied, the judge can not proceed and try such disputed question of fact; he is only authorized to issue an order forbidding the transfer or other dis.