COUNTER-CLAIM. must be set aside. N. Y. Superior Ct., Sp. T., 1861, Mora a. Sun Mutual Ins. Co., Ante, 304. 16. Interlocutory, in law, means that which decides not the cause, but only settles some intervening matter relating to the cause. The matter thus settled is brought before the court by special motion. Ib. 17. Where the verdict is against the evidence, and a new trial is granted for the error of the jury, the party applying for the new trial must pay costs. Supreme Ct., 1861, North a. Sergeant, 33 Barb., 350; Sp. T., 1862, East River Bank a. Hoyt, 22 How. Pr., 478. 18. When a new trial, upon the ground that a verdict was against evidence, had been granted by the general term "upon payment of all costs, after notice of trial," and the respondent claimed, under the order, the costs of the appeal, which included five termn-fees,-Held, on appeal from an ofder of the special term disallowing the five term-fees, that the order at general term was informally entered, and that the five term-fees should not be included in the costs to be paid as a condition of granting a new trial. Supreme Ct., 1861, North a. Sargent, Ante, 259. 19. Where an appeal is dismissed in the Court of Appeals, with costs, general costs of an appeal follow, and not the mere costs of a motion; and this is so whether the appeal be from an order or from a judgAll appeals here stand on the same footing. Ct. of Appeals, 1861, White a. Anthony, 23 N. Y., 164. 20. Where several persons appeal from an order of commissioners of highways laying out a road, the referees appointed to decide upon the appeal, are entitled to the fees of a single appeal only. Supreme Ct., 1861, Disosway a. Winant, Ante, 216. 21. The liability of the appellants in such cases is joint and several, and the referees may recover their entire fees from any one of them. Ib. 22. Section 304, subd. 3, 4; § 307, subd. 3, 5, 7; §§ 308, 309, 311, 318, 371, of the Code of Pro.; amended by the Act of April 23, 1862. ABATEMENT, 6; CERTIORARI; DEFENCES, 5; PRECEPT FOR COSTS; REFERENCE, 4; SECURITY FOR COSTS. COUNTER-CLAIM. 1. A counter-claim, under the Code, may be either for liquidated or unliquidated damages, if they arise upon contract. Supreme Ct., 1861, Schubart a. Harteau, 34 Burb., 447. 2. Where plaintiff prosecutes a claim against defendant, who has a claim against plaintiff and others, on contract, defendant may set up the same as a counter-claim, and recover any balance against the plaintif COUNTER-CLAIM. over plaintiff's claim, unless the plaintiff replies to the counter-claim that there are others liable with him as partners. [20 Barb., 477.] In such case the counter-claim is good, so far as to be a set-off against plaintiff's claim to that amount. Ib. 3. Defendant purchased from plaintiff a lot of ground, and for part of the consideration-money, gave a mortgage thereon. In consequence of a house standing on the lot, and projecting over the adjoining lot, defendant purchased the adjoining lot,-Held, in an action by plaintiff to foreclose the mortgage, that defendant cannot set up by way of counter-claim these facts as a ground for damages for the portion of the house which stood on the adjoining lot. Supreme Ct., 1861, Burke a. Nichols, 34 Barb., 430; S. C., 21 How. Pr., 459. 4. A counter-claim is not allowable in an action of tort, for a cause arising out of the occurrence set forth in the complaint. Thus, in an action for an assault and battery, the defendant cannot set up as a defence an assault and battery committed upon him by the plaintiff, just before the time of the assault complained of. The word "transaction," in section 150 of the Code, is used in application to some commercial or business negotiation, not to a wrong caused by an act of violence or fraud. The transactions meant were those which, although not precisely contracts, yet, being dealings or business matters of some kind, would entitle a party to a remedy in an action ex contractu, and would entitle a defendant in such an action to recoup any damages for a cause arising out of such dealings or matters. Supreme Ct., 1861, Barhyte a. Hughes, 33 Barb., 320. 5. The bills of a bank, having been obtained by defendant after the bank had suspended and become insolvent, cannot be used as a set-off or counter-claim, in an action brought by the receiver of the bank, upon defendant's note held by the bank at the time of its failure. Supreme Ct., 1861, Diven a. Phelps, 34 Barb., 224. 6. In an action by the mortgagee of chattels, against a third person having possession of the chattels, to recover damages for a conversion, the claim of the defendant, set up in his answer, that he has a lien on the property for its keeping, under an agreement with the mortgagor, made before the execution of the mortgage, and his demand that the property be sold to satisfy such lien, though this may be a defence, is not a counter-claim, for it does not exist against the plaintiff nor arise out of the transaction set forth in the complaint, nor is it connected with the subject of the action. Hence the allegations of such matter in the answer are not admitted by not replying. Supreme Ct., 1861, Bissell a. Pearse, 21 How. Pr., 130. 7. In an action by a corporation, defendant set up as a counter-claim that COURT. he had been a member of a joint-stock association, and the other members of it, in violation of their by-laws, sold their shares to the corporation plaintiffs, and that they now constituted that body; and that by reason of such sale defendant's shares became worthless,-Held, that this did not constitute a counter-claim against plaintiffs. [3 Abbotts' Pr., 353.] N. Y. Superior Ct., 1861, N. Y. Ice Co. a. Parker, 21 How. Pr., 302. DEFENCES. COUNTIES. Where one having a claim against a county presents it to the supervisors, who audit it and allow a portion, the claimant cannot maintain an action to recover the part which was not allowed. Even in cases where no discretion is vested in the supervisors, and a clear legal duty rests upon them to cause the whole amount to be levied, collected, and paid as a county charge, which they refuse to perform, an action will not lie against the board. The only remedy of the creditor is by application to the court for a mandamus. [2 Sandf., 459; 10 N. Y., 260; 2 Barb., 294.] Supreme Ct., 1861, Chase a. County of Saratoga, 33 Barb., 603. MANDAMUS, 4, 5. COURT. Under the laws of 1842 (110, § 5), which provides that " no court shall be opened, or transact any business, in any city or town, on the day such election shall be held therein, unless it be for the purpose of receiving a verdict or discharging a jury, or the naturalization of foreigners; and every adjournment of a court in such city or town, on the day next preceding the day any such election shall be held therein, shall always be to some other day than the day of such election, except such adjournment as may be made after a cause has been committed to a jury. But this section shall not prevent the exercise of the jurisdiction of any single magistrate when it shall be necessary in criminal cases to preserve the peace or to arrest offenders,"-a justice of the peace is not prohibited by statute from lawfully rendering a judg ment, on the day a general election is held, in a cause that has been tried before and submitted to him on a previous day. The only motive of the statute was to close the courts on general election days, so that no elector should be hindered or kept from voting, by them, unless guilty of an offence, or of threatening to commit one. The object is accomplished when all courts are stopped from transacting any business CREDITOR'S ACTION. on such days, of a civil nature, that requires the attendance of any party, attorney, witness, officer, or other person. There was no necessity or reason for prohibiting courts from doing acts on those days, that judges or justices of the peace could quietly perform without interfering in the least with their own right or that of any other elector to go to the polls and deposit his ballot. Supreme Ct., 1862, Rice a. Mead, 22 How. Pr., 445. COURT OF APPEALS. 1. New rules relating to the calendar and preferences of causes, judgments by default, and submission of papers. 23 N. Y., 8. 2. Appeal to, from order refusing new trial. Code of Pro., § 11; as amended by Act of April 23, 1862. 3. Place of cause on calendar on second appeal or after dismissal. Ib., § 13. CREDITOR'S ACTION. 1. A creditor's action cannot be maintained upon a judgment taken against joint-debtors, of whom a part only have been served with the summons, and where no excuse for the want of such service appears. Supreme Ct., Sp. T., 1861, Field a. Chapman, Ante, 320. 2. Nor can it be maintained unless an execution has been issued against all the judgment-debtors, and that remedy pursued to every available extent. Ib. 3. It seems, that it cannot be commenced until sixty days after the execution was issued, even though the sheriff returns it unsatisfied at an earlier day. Ib. 4. Creditor's suit not maintainable until plaintiff has recovered judgment. Willetts a. Vandenburgh, 34 Barb., 424. 5. An action to set aside an assignment executed by a judgment-debtor, is not prematurely commenced when begun before the expiration of the sixty days in which the execution must be returned. Such an action may be commenced as soon as the execution is actually returned. Supreme Ct., 1861, Knauth a. Bassett, 34 Barb., 31. 6. Such an action is brought in time, if commenced while the assignee has yet in his hands, unappropriated, moneys belonging to the trust, where it is the object of the action to reach that money. Ib. 7. Where a party has issued execution, and his remedy thereby against property, which is the proper subject of levy and sale, is obstructed, he may, before return of execution, bring a creditor's action to enforce his remedy. Supreme Ct., Sp, T., 1861, Skinner a. Stuart, Ante, 442. CAUSE OF ACTION, 25. DEBTOR AND CREDITOR. CRIMINAL LAW. 1. Severing and taking away by one act, growing crops to an amount less than $25 in value, is not a criminal offence. Supreme Ct., 1861, Comfort a. Fulton, Ante, 276. 2. A conviction for setting fire to No. 33 G. street, under an indictment for setting fire to No. 35, sustained. Supreme Ct., 1861, Hennessey a. People, 21 How. Pr., 239. 3. When the facts may or may not constitute larceny, according to the intent of the prisoner, this felonious intent is a question which can only be found by the jury. Supreme Ct., 1861, Ellis a. People, 21 How. Pr., 356. ARREST, 15; JURISDICTION, 3. DAMAGES. 1. If the plaintiff, in an action for libel, has proved the existence of actual malice, that may be considered by the jury in aggravation of damages; and those of a punitive character may be given. Supreme Ct., Circuit, 1861, Littlejohn a. Greeley, Ante, 41. 2. This is the only case in which punitive damages can be had; otherwise only those which naturally flow from the utterance of a libel. Where a malicious character stamps the publication, the jury may go beyond the ordinary character of damages, and give those which are called "punitive." Ib. 3. The amount of the damages in an action for libel is in the sound discretion of the jury. They are intended to repair the injury done to the plaintiff; and the pain and mental suffering which he has undergone in consequence of the libel uttered against him, are fair considerations for the jury. And in estimating the damages upon the foregoing principles, the character, condition, position, and influence of the respective parties are to be taken into the account. Ib. 4. If the defendant has satisfied the jury that he was not actuated by malice, but published what he did without any malicious motive, and believing it to be true, that is to be considered by the jury, and should materially mitigate the damages. Ib. ASSESSMENT OF DAMAGES. DEBTOR AND CREDITOR. N. Y. Com. Pl., 1. An agreement by a creditor, not under seal, to accept less than the full amount due, in discharge of his claim, is void. 1861, Von Gerhard a. Lighte, Ante, 101. |
