Stebbins, 8 Paige, 565; Bank of Ogdensburg v. Arnold, 5 id. 38; Astor v. Turner, 2 Barb. 444; Warner v. Governeur's Exr. 1 Barb. 36; Quinn v. Brittain, 2 Edw. Ch. R. 314; Wall Street Fire Ins. Co. v. Loud, 20 How. 95). A receiver will not be appointed if the validity of the mortgage is impeached (Leahy v. Arthur, 1 Hogan, 92; Darcy v. Blake, 1 Molloy, 247).

a. A receiver of chattel property held by a mortgagee in possession, is to be directed only in cases of pressing necessity (Patten v. Accessory Transit Co. 4 Abb. 235; and see Thompson v. Van Vechten, 5 Duer, 618; 5 Abb. 458; Bayard v. Fellows, 28 Barb. 451).

b. Receiver of partnership.-Upon a bill filed by one of several partners, to close up a partnership, it is a matter of course to appoint a receiver upon the application of either partner (see Marten v. Van Schaick, 4 Paige, 480; Low v. Ford, 2 Paige, 310; Goulding v. Bain, 4 Sand. 717; Whitewright v. Stimpson, 2 Barb. 379; Dayton v. Wilkes, 17 How. 510; Jackson v. De Forest, 14 How. &1; Williamson v. Wilson, 1 Bland, 423; McCracken v. Ware, 3 Sand. 688; Henn v. Walsh, 2 Edw. Ch. R. 129; Roberts Adm. v. Law, 4 Sand. 644; Dillon v. Horn, 5 How. 35; Innes v. Lansing, 7 Paige, 583; Popper v. Scheider, 7 Abb. N. S. 56; 38 How. 34).

c. The principle on which the court interferes between partners by appointing a receiver is merely with a view to the relief by winding up and disposing of the concern, and dividing the produce, not to carry it on (Waters v. Taylor, 15 Ves. 10, 329; Goodman v. Whitcomb, 1 Jac. & W. 569). Therefore, as a general rule, a receiver will not be appointed of a subsisting and continuing partnership, unless it is evident a dissolution will be decreed (Garretson v. Weaver, 3 Edw. Ch. R. 385; Jackson v. De Forest, 14 How. 81). But, to preserve the good-will, the receiver may be directed to carry on the business until a sale can be effected (Marten v. Van Schaick, 4 Paige, 479). The court will not continue the publication of a political newspaper by a receiver, longer than is absolutely necessary to prevent a sacrifice of the property (id.); nor will it continue to run steamboats for an indefinite time Crane v. Ford, Hopk. 114).

d. There is no ground for a receiver where the partner applying to the court has the property in his own possession, and the other does not object to such possession (Smith v. Lowe, 1 Edw. Ch. R. 33). On a creditor's bill

against two partners, one of whom has assumed the debt, the other has a right to insist that the receivership shall be extended to the co-partnership effects, and to the individual property of the owner primarily liable (Henry v. Henry, 11 Paige, 314). The court will not determine what is partnership property (Higgins v. Bailey, 7 Rob. 613).

e. Where a limited co-partnership becomes insolvent, and the members thereof neglect to place their assets in the hands of a proper person to distribute ratably among the creditors, any creditor is entitled to have a receiver appointed (Whiteright v. Simpson, 2 Barb. 379; and see Levy v. Ley, 6 Abb. 89; Lachaise v. Marks, 4 E. D. Smith, 611; 1 Abb. 213; Wetter v. Schlieper, 6 Abb. 123; 7 Abb. 92; and see Geortner v. Trustees of Canajoharie, 2 Barb. 625).

f. The rights, powers, and duties of receivers of insolvent or dissolved corporations.-The receiver of an insolvent corporation represents both the creditors and stockholders, and may assert their rights when affected by the fraudulent or illegal acts of the institution (Gillett, Receiver, &c. v. Moody, 3 N. Y. 479; Talmadge v. Pell, 7 N. Y. 328; Brower v. Hill, 1 Sand. 629; see Conry v. Gray, 4 How. 166; Livingston v. B’k of N. Y. 5 Abb. 338; Sands v. Birch, 29 How. 305; Osgood v. Laytin, 48 Barb. 463; Laws 1858, ch. 314; Laws 1867, ch. 781). He is vested with all the rights of action which the company had when he was appointed, and he can sue for a tort committed before his appointment (Gillett v. Fairchild, 4 Denio, 80; Brower v. Hill, 1 Sand. 629). It is his duty to require the solvent stockholders to pay up the balance due from them on their stock (Pentz v. Hawley, 1 Barb. Ch. R. 122; and see Nathan v. Whitlock, 9 Paige, 152). He may allow every

claim against the corporation, which he is satisfied is justly due (Attorney General v. Life & Fire Ins. Co. 4 Paige, 224). He may discharge subsisting policies, but not reinsure (Re Croton Ins. Co. 3 Barb. Ch. R. 642). And he may apply for a warrant to bring up for examination any person who is indebted to the corporation, or who has property belonging to it in his custody (Noble v. Halliday, 1 N. Y. 330).

a. The provision of the revised statutes authorizing the receivers of insolvent corporations to sue for and recover any sum remaining due upon any share of its capital stock, is merely a cumulative remedy. And the rule is the same, whether the stock be held by any original stockholder or by an assignee (Mann v. Currie, 2 Barb. 294). The deposit notes of a mutual insurance company are its capital, and the receiver should collect them (Van Buren v. Chenango Mutual Ins. Co. 12 Barb. 671). He may be invested by the court with a general power to compromise disputed claims (Re Croton Ins. Co. 3 Barb. Ch. R. 642). There can be no compromise without his consent (Att'y Gen'l v. Life & Fire Ins. Co. 4 Paige, 224). He may, under the direction of the court, continue a suit commenced by the insolvent company in its own name (Talmadge v. Pell, 9 Paige, 410).

b. A receiver appointed under the 41st section of the revised statutes (2 R. S. 464), is absolutely vested with all the property and effects of the corporation, and has full power to sell and dispose of the same, and to settle its affairs (Verplank v. Mercantile Ins. Co. 2 Paige, 448). But a receiver appointed on the application of a judgment creditor under the 36th section (2 R. S. 463), is a mere common-law receiver, and has no authority except what is conferred upon him by the order of the court (id.; Mann v. Pentz, 3 N. Y. 415; Re Globe Ins. Co. 6 Paige, 102; Dambman v. Empire Mill, 12 Barb. 341; Re Van Allen, 37 Barb. 225; Bangs v. Duckinfield, 18 N. Y. 592).

c. A receiver appointed in proceedings under Laws of 1853, ch. 466, to close the business of a fire insurance company, should give security (Re Mechanics' Fire Ins. Co. 5 Abb. 444).

d. A receiver of an insolvent mutual insurance company is entitled to his commission on the whole amount of the premium notes (Van Buren v. Chenango Mut. Ins. Co. 12 Barb. 671).

e. A receiver of the effects of an insolvent corporation of another State, appointed under the laws of such State, may dispose of property of such corporation situate within this State, and of debts due such corporation from residents of this State (Hoyt v. Thompson, 5 N. Y. 320).

f. See laws of 1852, ch. 71, amended laws, 1860, ch. 403, to facilitate the collection of debts against corporations (Re Campbell, 13 How. 481).

g. Receiver in action against manufacturing corporation (Galway v. U. S. Steam Sugar Refining Co. 13 Abb. 211; 36 Barb. 256).

h. As to receivers in actions in the nature of creditors' bills and in proceedings supplementary to the execution, see supplementary proceedings, post; and see Lent v. McQueen, 15 How. 313; Rigney v. Tallmadge, 19 Abb. 16.

i. Order to pay amount admitted to be due.-The reported decisions on this subject do not apply to the present wording of the section. Since the last paragraph of this section was amended so as to read "enforces a judgment or provisional remedy," instead of " enforces a provisional remedy," no decisions have been reported. As the section formerly read the order could be enforced only by attachment, as for a contempt, and the court would order payment only under special circumstances. Now the practice is to order payment in almost every case of an admission of a part of the "claim to be just."

j. Appeal from order.—An order directing the defendant to pay the amount admitted due by the answer, is an appealable order (Merritt v. Thompson, 1 Abb. 223; 3 E. D. Smith, 600; 10 How. 428).

TITLE VIII.

Of the trial and Judgment in Civil Actions.

CHAPTER I. JUDGMENT UPON FAILURE TO ANSWER.

II. ISSUES AND THE MODE OF TRIAL.

III. TRIAL BY JURY.

IV. TRIAL BY THE COURT.

V. TRIAL BY REFEREES.

VI. THE MANNER OF ENTERING JUDGMENT.

CHAPTER I.

Judgment upon failure to answer.

SECTION 245. Judgment defined.

246. Judgment on failure of defendant to answer, or for excess over counter-claim.

247. Judgment on frivolous demurrer, answer, or reply.

$ 245. Judgment, what.

A judgment is the final determination of the rights of the parties in the action.

a. Judgment.-A discontinuance is a "final determination" of the rights of the parties in the action (Crockett v. Smith, 14 Abb. 62), and so an order after trial that a fund be paid into court to await a further order (Gray v. Cook, 24 How. 432). An order of the county court dismissing an appeal from a justice's judgment is a judgment (Pearson v. Lovejoy, 53 Barb. 407); a judgment for sale in an action of foreclosure is a final judgment (Morris v. Morange, 38 N. Y. 172).

b. A determination on a motion under § 247 is a judgment (Roberts v. Morrison, 7 How. 396; see however note to subd. 4 of § 307, post). As to what is a judgment, and the distinction between a judgment and an order, see note to § 400, post.

§ 246. (Am'd 1849, 1851, 1858.) Judgment on failure of defendant to answer; or for excess over counter-claim.

Judgment may be had if the defendant fail to answer the complaint, as follows:

1. In any action arising on contract for the recovery of money only, the plaintiff may file with the clerk proof of personal service of the summons and complaint, on one or more of the defendants, or of the summons according to the provisions of section 130, and

that no answer has been received. The clerk shall thereupon enter judgment for the amount mentioned in the summons, against the defendant or defendants, or against one or more of several defendants, in the cases provided for in section 136. But if the complaint be not sworn to, and such action is on an instrument for the payment of money only, the clerk, on its production to him, shall assess the amount due to the plaintiff thereon; and in other cases shall ascertain the amount which the plaintiff is entitled to recover in such action, from his examination under oath, or other proof, and enter the judgment for the amount so assessed or ascertained. In case the defendant give notice of appearance in the action, he shall be entitled to five days' notice of the time and place of such assessment.

Where the defendant by his answer in any such action shall not deny the plaintiff's claim, but shall set up a counter-claim amounting to less than the plaintiff's claim, judgment may be had by the plaintiff for the excess of said claim over the said counter-claim, in like manner in any such action, upon the plaintiff's filing with the clerk of the court a statement admitting such counter-claim, which statement shall be annexed to and be a part of the judgment-roll.

2. In other actions the plaintiff may, upon the like proof apply to the court after the expiration of the time for answering, for the relief demanded in the complaint. If the taking of an account or the proof of any fact be necessary to enable the court to give judgment, or to carry the judgment into effect the court may take the account or hear the proof, or may, in its discretion, order a reference for that purpose. And where the action is for the recovery of money only, or of specific real or personal property with damages for the withholding thereof, the court may order the damages to be assessed by a jury, or, if the examination of a long account be involved, by a reference as above provided. If the defendant give notice of appearance in the action before the expiration of the time for answering, he shall be entitled to eight days' notice of the time and place of application to the court for the relief demanded by the complaint.

3. In actions where the service of the summons was by publication, the plaintiff may in like manner apply for judgment, and the court must thereupon require proof to be made of the demand mentioned in the complaint, and if the defendant be not a resident of the State, must require the plaintiff or his agent to be ex

amined on oath respecting any payments that have been made to the plaintiff, or to any one for his use, on account of such demand, and may render judgment for the amount which he is entitled to recover. Before rendering judgment, the court may, in its discretion, require the plaintiff to cause to be filed satisfactory security, to abide the order of the court touching the restitution of any estate or effects which may be directed by such judgment to be transferred or delivered, or the restitution of any money that may be collected under, or by virtue of such judgment, in case the defendant or his representatives shall apply and be admitted to defend the action, and shall succeed in such defense.

a. As to judgment for want of an answer after service by publication, see Rule 25; in action for foreclosure, see Rule 71; for a divorce, Rule 86; for partition, see section 448, post; in ejectment, section 455, post.

b. Judgment. The plaintiff cannot take judgment if a demurrer has been served (Broadhead v. Broadhead, 4 How. 308). But if the defendant has demurred and the demurrer has been overruled, or there is a direction for judgment under section 247; there is in that case a failure to answer; and the like proceedings may be had as where neither answer nor demurrer is put in (King v. Stafford, 5 How. 30; Aymar v. Chase, 1 Code Rep. N. S. 141; Saltus v. Kip, 2 Abb. 332; 12 How. 342; 5 Duer, 646; Hoffnung v. Grove, 18 Abb. 14; 142).

c. Proof of no answer.-Proof of no answer is usually but not necessarily by affidavit (Phillips v. Prescott, 9 How. 430). Where the proof is by affidavit, the affidavit should state that neither answer nor demurrer has been received. The affidavit should be sworn, at or about the time of the "pplication for judgment (Brian v. Casey, 2 Ább. 416). Where two defendants were sued on a joint liability, and one answered and the other made default, on the trial the plaintiff took judgment against both defendants—held, that he was regular, and that in such a case no affidavit of no answer having been received was necessary (Catlin v Billings, 13 How. 511; S. C. 4 Abb. 248; and see Sluyter v. Smith, 2 Bosw. 673). Thus, in an action against the maker and indorsers of a promissory note, the indorsers (Fowler & Billings) being partners, and the indorsement being in their firm's name, all the defendants were served with the summons. Billings did not defend; the other defendants answered and defended separately. The cause was brought to trial on the issues raised by the defendants who answered. On the trial there was a verdict for the plaintiff, and the jury then and there assessed the damages against Billings. Judgment was entered against all the defendants, and without any affidavit that the defendant Billings had not answered. Subse quently Billings moved to set aside the judgment for irregularity, on the ground that the judgment roll contained no affidavit of no answer having been received from him. Motion was denied, it being held that in such a case no such affidavit was necessary. It was further held, that if such an affidavit was in fact necessary, the plaintiff might be permitted to supply the defect; (and see Ford v. David, 1 Bosw. 570; Jones v. U. S. Slate Co. 16 How. 129).

d. If a judgment is entered without an affidavit of no answer having been received, it is an irregularity in a matter of practice only, and furnishes no ground for an appeal from the judgment (Catlin v. Billings, 16 N. Y. 622). The proof of service should be inserted in the judgment-roll (Macomber v. Mayor of N. Y. 17 Abb. 36).

e. Judgment for want of an answer based on a service of the summons on an elector on an election day, is irregular (Bierce v. Smith, 2 Abb. 411). A