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Where the complaint is for a wrongful conversion of property, and the proof establishes another and different cause of action, viz., a mere breach of duty on the part of the defendant, it is not a case of variance which may be remedied by amendment, but is a failure of proofofthe cause of action alleged, and the plaintiff should be nonsuited. Supreme Ct., 1860, Moore a. McKibbin, 33 Barb., 246.
COMPLAINT, 5, 17, 22, 23, 33.
1. Affidavits to oppose a motion for a change of place of trial on the ground of convenience of witnesses, as well as the affidavits on which such a motion is made, should state what is expected to be proved by the witnesses, so that the court may judge of their materiality. Supreme Ct., Sp. T., 1861, American Exchange Bank a. Hill, 22 How. Pr., 29.
2. The court will not order the place of trial of an indictment to be changed where issue has not been legally joined. Thus where an indictment for murder had been removed from a Court of Sessions, at which defendant had pleaded not guilty, to the Oyer and Terminer,— Held, that as the former court had no power to arraign on such an indictment, the plea was a nullity, and there was no issue existing. Supreme Ct., Sp. T., 1861, People a. McCraney, 21 How. Pr., 149.
1. In a general verdict the jury pronounce generally upon all or any of the issues, either in favor of the plaintiff or defendant. [Code, § 260.] A special verdict is that by which the jury find the facts only, leaving the judgment to the court. [Ib.] This is also the definition of a special verdict at the common law. It must contain all the facts essential to the rendering of a judgment one way or the other. Where the answers of the jury embrace only a small portion of the facts necessary to a judgment, the verdict is not a general verdict. Ct. of Appeals, 1861, Manning a. Monaghan, 23 N. Y., 539,
2. The requisites of a special verdict are not other or different now than they were before the Code. A general verdict determines the entire issue in favor of the plaintiff or the defendant. A special verdict finds all the facts which are requisite to enable the court to say, upon the pleadings and verdict, which party is by law entitled to judgment,
without referring to the evidence. The pleadings and the special verdict together should show, when separated from all else that appeared on the trial, and as a complete record, that one or the other party is, as mere matter of law, entitled to judgment. For the purpose of determining what judgment shall be given, the court are therefore not warranted in examining the evidence given on the trial, and ascertaining what other facts were proved which were denied in the pleadings, however clear and satisfactory the evidence may be. [1 Cai., 60; 5 Johns., 502; 8 Cow., 409.] The Code (§ 260) imports that the special verdict must contain all the facts which are in issue by the pleadings, the determination of which is necessary to enable the court to give judgment, and it clearly excludes the idea that the court can look into the evidence itself to ascertain the facts, or any of them. N. Y. Su
perior Ct., 1860, Eisemann a. Swan, 6 Bosw., 671.
3. When a special verdict only is taken, and that verdict does not dispose of all the material issues, and such verdict is taken subject to the opinion of the court at general term, with liberty to the court to render judgment for the plaintiff or the defendant, according to the law and the facts found, the general term cannot consider the case upon the merits, nor pronounce any judgment, but will order a new trial. Ib. NEW TRIAL; TRIAL.
1. In an action upon an instrument for the payment of money only, the possession of the instrument is enough, under section 157 of the Code, to authorize an agent or attorney of the plaintiff to verify the complaint. N. Y. Com. Pl., 1861, Myers a. Gerrits, Ante, 106.
2. When, in an action upon two promissory notes, the verification of the complaint was made by a person other than the plaintiff, and it stated that the notes were in the possession of the deponent, and that the reason why the verification was not made by the plaintiff was his absence from the State; and the defendant disclosed no defence;—Held, a sufficient averment that the deponent was the agent of the plaintiff to put defendant to proof of the contrary. Ib.
Where a submission to arbitration operates as a discontinuance, it still is competent for the party to waive it, and he will be deemed to have waived it in case he proceeds voluntarily in the action. [1 Wend., 314 Supreme Ct., Sp. T., 1861, Buel a. Dewey, 22 How. Pr., 342.
A representation that a building is "good, strong, and substantial, and fit for hatters' business," is not a warranty that the building is not leaky. Supreme Ct., Sp. T., 1861, Schermerhorn a. Gouge, Ante, 315.
It is a sufficient acknowledgment of a testator's signature to a will, if he states to the subscribing witnesses, before they sign their names, that it is his will, and if they, at the same time, see his signature thereto. Supreme Ct., 1860, Robinson a. Smith, Ante, 359.
CAUSE OF ACTION, 22.
1. Under section 399 of the Code, as amended in 1857, one who sues for the conversion of personal property which he bought from a third person, is not to be deemed an assignee of such third person. N. Y. Superior Ct., 1860, Penny a. Black, 6 Bosw., 50. See, also, amendment of April 23, 1862.
2. A widow, cited, but who does not appear or contest the probate of her husband's will, is a competent witness for the contestants, as against the objection that she is a party to the proceeding; and no formal order, dismissing her as a party, or otherwise providing for her examination, is necessary; and even if she were to be deemed a party, she may be examined, unless she has some interest in the question to be determined. Ct. of Appeals, 1861, Talbot a. Talbot, 23 N. Y., 17.
3. Where, on the hearing before the surrogate, there is general evidence of the execution by the husband of a previous will, under which the widow would take the same provision as under the will offered for probate, the validity of the first will is to be assumed in support of the competency of the widow, as against the objection of interest. Ib.
4. Upon an indictment of the husband for perjury, after divorce, the wife is a competent witness to prove that she has had no sexual intercourse with any other person. [1 Hill, 63; 2 Ib., 186.] Ct. of Appeals, 1861, Chamberlain a. People, 23 N. Y., 85.
5. The question of the competency of husband and wife as witnesses against each other generally, in a suit between them,-considered. Ib. 6. In an action to set aside an assignment made for the benefit of creditors, on the ground of fraud, the assignor may be permitted to testify
as to his actual intent in executing the same. [14 N. Y., 567.] Supreme Ct., 1860, Matthews a. Poultney, 33 Barb., 127.
7. An agent,-Held, to have acted within his instructions, and that, therefore, not being personally liable upon the contract, he was not incompetent as a witness in respect to the transaction, by reason of any interest. Supreme Ct., 1848, Hoffman a. Delihanty, Ante, 388.
8. The same rule of law which excuses a witness from answering questions which may tend to convict him of a crime or misdemeanor, excuses him also from producing books or papers, the contents of which may be used against him, and tend to the same result; but it must be shown that the books in question would have such a tendency. Supreme Ct., Sp. T., 1860, Byass a. Sullivan, 21 How. Pr., 50.
9. Since the act of 1850 (Laws of 1850, 197, ch. 123, § 3),-providing that "every person who shall vend any goods, &c., having thereon any forged or counterfeited stamps or labels, imitating, resembling, or purporting to be the stamp or labels of any mechanic or manufacturer, knowing the same to be forged or counterfeited, and resembling or purporting to be imitations of the stamps or labels of such mechanic or manufacturer, without disclosing the fact to the purchaser, shall, upon conviction, be deemed guilty of a misdemeanor, and shall be punished," -the defendant, in an action for infringement of trade-mark, cannot be compelled to testify as to whether he has used labels like the plaintiff's, or whether there were on any of his bottles labels like those of the plaintiff, or whether he has put a different article from the plaintiff's into bottles and labelled them with labels like the plaintiff's; for affirmative answers to such questions might, in connection with other testimony, tend directly to convict him of vending bottles, &c., with counterfeit labels. Ib.
10. He is not, however, privileged from answering whether he has sold an article different from plaintiff's, as and for the plaintiff's, for so selling is not made a crime or misdemeanor. Ib.
11. Chapter 6 of title 12 of the Code,-regulating the cases in which parties may be compelled to testify,-in so far as it conflicts or is inconsistent with ch. 462 of the Laws of 1847, repeals the latter. (Code, §§ 468, 471.) If, by any construction of this act of 1847, one party could be compelled by the adverse party to make an affidavit or deposition before a judge, to be used on a motion pending elsewhere, then section 389 of the Code repeals it, quoad hoc, because, thus construed, it authorizes what the Code expressly prohibits. N. Y. Superior Ct., 1862, Palmer a. Adams, 22 How. Pr., 375.
12. Section 3 of the act in relation to the Superior Court and Court of Common Pleas of the city of New York (Laws of 1840, ch. 276, 222),
-which declares that "where there shall be a motion or proceeding in the said court, in which it shall be necessary for either party to have the deposition of any witness, who may be within the jurisdiction of said court, and who shall have refused to make his deposition voluntarily, the said court may issue a summons requiring such witness to attend before a judge thereof to make his said deposition; and obedience to such summons may be enforced as in case of a subpœna issued by said court," is not prospective in such sense that it will embrace as a witness, within the meaning of its provisions, a party to an action; parties being under disability at the time of its passage, but subsequently exempted from such disability. The section of the Code which was enacted to make parties competent as witnesses on a trial, does not compel a party to submit to make a deposition for the adverse party, under the act of 1840, to be used on a motion. Ib. Compare section 401 of the Code of Pro., as amended by Act of April 23, 1862. 13. The production of documents in the hands of counsel can be resisted
only when a controversy exists, or is anticipated between parties, in relation to the subject on which communications were made to counsel, on the documents intrusted to him. N. Y. Superior Ct., Sp. T., 1861, Peck a. Williams, Ante, 68.
14. An exception to the rule, as to privileged communications, exists only in cases of crimes strictly so called. Ib.