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motion for a new trial before the agreed to accept their proportion judge who presided at the trial, of the estate of the debtors and or by appeal to the General Term would relieve and discharge thein to correct the error of law by from their claim. which plaintiff was enabled to Hall & Jenks, for applt. proceed.

Adolph Ascher, for respts. Order affirmed.

Held, That if the sufficiency of Opinion by Brady, J.; Davis, the proposed supplemental answer P. J., and Daniels, J., concur. is a matter of doubt the court will

not prejudge the matter on such a

motion, but permit the defense to PLEADING,

be made. 42 Hun, 155. That withV. Y. SUPERIOR COURT. GENERAL

out expressing an opinion on the TERM.

validity of the defense sought to

be interposed, substantial justice Erastus T. Tifft et al., respts., will be better obtained if defendv. Aaron T. Bloomberg, applt. ant is allowed to present his deDecided Nov. 16, 1883.

fense on the trial and have it

passed on at that time. Where the sufficiency of a proposed supple

Order reversed, and motion for mental answer, setting up newly-discovered facts, is a matter of doubt, the court will leave to serve supplemental annot prejudice the validity of the defense on swer granted, costs to abide the a motion, but will permit the defense to be

event. set up, if the defendant be free from

Opinion per curiam. . laches.

Action for alleged false repre sentations by defendant of the CHATTEL MORTGAGE. . REcredit of third parties, viz.: the

PLEVIN. firm of D. W. Bloomberg & Co.,

N. Y. COURT OF APPEALS. through which plaintiff sustained damage. Defendant, at a special Nichols, treasr., respt., v. Mase, term, moved for leave to interpose applt. a supplemental answer, setting out Decided Nov. 27, 1883. facts which he claimed transpired

The law of the domicile of the owner of after the filing of the original an


sonal property determines the validity of a swer. The motion was denied on

mortgage thereof made by him. the ground that the new matter A railway corporation in Connecticut defaultdid not constitute a defense. The ed the payment of its obligations, and un

der the terms of the security for the same, proposed supplemental answer al

a mortgage, executed in Connecticut, on its leged that since the filing of the

road from Hartford to the State line, to. original answer the assignees of D. gether with all of its equipments, etc., W. Bloomberg & Co. paid to plain- used on the same, surrendered said proptiffs $634.34 on account of plain

erty to plaintiff, the mortgagee. In an ac

tion brought against the sheriff for levy tiffs' demand, and that plaintiffs

under attachment on personal property in consented to the assignment and this State. lleld, That the conditions prece

dent to possession in the mortgage were for mortgagee might, at the request of the benefit of the company, and were waiv- one-third in amount of the bonded by the voluntary surrender ; that the mortgage was properly executed by a deed holders, take possession of the executed by the president under the corpo

railroad and all its property, franrate seal ; that it was not incumbent on the chises, etc., and through agents plaintiff in the first instance to show that appointed by him operate the road the boods were issued conformably to the and receive the income and profits charter ; that the mortgage was not required to be filed or recorded in this State, and

thereof. The sheriff levied on the that the mortgage being valid in Connecti- property under an execution iscut the mortgagee should be protected in all sued upon a judgment against

his rights given him by the mortgage. Special statutes intended to govern particular the company, March 19, 1880, and transactions are not controlled by general

on April 27, 1880, the property statutes unless the legislative intent to that was formally surrendered to the effect is clearly manifested.

trustee named in the mortgage in A lease is not of itself a subject of replevin.

consequence of a failure to pay Modifying S. C., 13 W. Dig., 479.

the interest due on the bonds. This action was brought by Homer A. Nelson, for applt. plaintiff as Treasurer of the State R. F. Wilkinson, for respt. of Connecticut, and as trustee for Held, That if the mortgage was the holders of certain mortgage valid in this State, plaintiff, upon bonds, to recover possession of cer- proof of a demand and refusal to tain personal property and a lease deliver,could maintain this action. in possession of defendant as sher

There was no proof on the trial iff of the county of Dutchess. He that the bonds were not issued in claims possession under a mort. accordance with the charter of the gage execnted to him, as treasurer, coinpany or with regard to the by the Conn. W. RR. Co., which amount expended and the sworn covered all the lands, railways, statement of the engineer. etc., and all the personal property Held, That the bonds being belonging to that company, and valid on their face, plaintiff was all its rights and franchises under not bound to prove that the proits charter. Defendant was in pos- visions of the law were complied session under an attachment issued with. The burden was upon defrom the Supreme Court against fendant, as the case stood, to show the property of the company. The the invalidity of the bonds. The mortgage provided that if the in presumption is the comptroller terest remained unpaid for six performed his duty in issuing the months after presentation of the bonds as required by the charter. proper coupons, the principal It was objected that the mortshould become due. It also pro- gage was not attested by two witvided that the company should re- nesses according to the statute of main in possession until default Connecticut. A law of that State, should be made in the payment of entitled an act concerning commuinterest, and if the interest remain- nities and corporations, prescribes ed unpaid for six months, the that mortgages executed by rail


road corporations shall be authen- The trial court allowed plaintiff ticated by deed executed by the to recover the lease in suit. president under the corporate seal. Held, Error; that the lease, of This provision complied itself, was not the subject of rewith in the mortgage in suit.

plevin. Held, That the general statute The Court directed the jary to did not impair the effect of the assess the value of the property special statute, as it did not ap- | taken at $15,000, which included pear that such was the intention the value of the lease in question of the Legislature.

and an individed half interest in The conditions precedent which some land in this State, amountentitled plaintiff to take posses- ing in all to $1,200. sion were for the benefit of the com- Held, Error. pany, and it having surrendered Judgment of General Term, the property voluntarily there was affirming judgment for plaintiff, a waiver of them. Defendant, be. | modified

Defendant, be modified by deducting amount ing a mere trespasser, is in no erroneously included in judgment, position to insist that the terms of and as modified affirmed. the mortgage have not been ful- Opinion by Miller, J. All con. filled.

cur. The statute as to the filing and recording of mortgages in this

APPEAL. State does not apply to the mort

N. Y. COURT OF APPEALS. gage in suit, as it was properly executed and valid according to Raynor, applt., v. Raynor et al., the laws of Connecticut.

As it respts. was not proved that the mort

Decided Dec. 14, 1883. gaged property was in this State at the time of the execution of the

A judgment appointing a referee to take ac

count of rents and profits, admeasure dower mortgage it must be assumed to

and report the evidence and findings, rehave been in Connecticut, and the

serving all other questions until the final contract is governed by the laws hearing, is interlocutory and not final, and of that State. 26 N. Y., 96 ; 12

no appeal lies therefrom to the Court of

Appeals. Barb., 631; 12 Cush., 109 ; 30 Vt.,

A party aggrieved by an interlocutory judg. 42; 37 N. H., 86 ; 19 N. Y., 224.

ment may move at General Term for a new The law of the domicile of the trial, and if the motion is granted or denied owner of personal property, as a

may appeal to the Court of Appeals. If

no appeal is taken from an order granting general rule, determines the valid

or denying a new trial the practice must ity of every transfer of it made by

conform to SS 1336 and 1350. him. 81 N. Y., 203.

Such motion for a new trial must be based By the rule of comity which on one or more exceptions. prevails between the

between the different This was an action for dower. States, the right of plaintiff to the A judgment was entered at Specproperty in question was entitled ial Term, appointing a referee to to protection. 81 N. Y., 199. take an account of rents and profits and improvements upon land and the judgment, he may appeal to ascertain the present value of dower this court, and here present for and upon payment by plaintiff of review all the questions of law ina certain sum, to be ascertained by volved in the whole case and raised him in the mode specified in the by exception taken at the proper judgment, he was to admeasure time. her dower. The referee was to If on an appeal from an interlo. report the evidence taken by him cutory judgment or from a final with his findings thereon to the judgment the General Term grants court, and all other questions were a new trial then, under sections reserved until the coming in of 190 and 191 of the Code, an appeal such report and the final hearing may be taken to this court. thereon. Plaintiff appealed to the A party aggrieved by an interGeneral Term from this judgment locutory judgment may, after enand it was affirmed. She now ap try thereof, under section 1001, peals to this court.

move at the General Term for a Geo. F. Comstock, for applt. new trial upon one or more exD. Pratt, for respts.

ceptions contained in a case to be Held, That the appeal is unan settled as provided by section 997, thorized ; the judgment entered at and if the motion is granted or the Special Term was not final but denied an appeal may be taken to interlocutory and there is no pro- this court under section 190. If vision of the Code authorizing ap- no appeal is taken to this court peals from such judgments to this from an order denying a new trial court. if, upon an appeal from then the practice must conform to an interlocutory judgment to the sections 1336 and 1350. General Term, the judgment is The Code recognizes a difference affirmed, the parties must go back between appeals and motions for to the Special Term and complete new trials. SS 190, 191, 999, 1001, the further proceedings, and then 1002, 1003, 1004, 1336, 1350 ; 86 final judgment may be entered N. Y., 162. upon the whole case. From the Under section 1001 of the Code final judgment the party aggrieved an appeal from an interlocutory thereby may, under section 1336 judgment differs from a motion of the Code of Civ. Pro., appeal for a new trial in that the latter directly to the Court of Appeals, must be based upon one or more and the appeal will bring up for exceptions and can present only review only the determination of questions of law, while the former the General Term affirming the brings up both questions of law interlocutory judginent, or he may, and fact. 50 N. Y., 689; 57 id., under section 1350, appeal to the 363 ; 59 id., 635 ; 74 id., 80, 452 ; General Term, which appeal will | 76 id., 516 ; 18 W. Dig., 245. bring up for review only the pro- Appeal dismissed. ceedings to take the final judgment, Opinion by Earl, J.

All conand if the General Term affirms cur.


evidence was directly contradicted

by H., who swore that he owned N. Y. COURT OF APPEALS.

the interest in the mine standing The First Nat'l Bk. of Helena, in his name; that he and not the respt., v. Sherwood, applt.

bank made the advances outside Decided Nov. 27, 1883.

of the discounted paper; that the

note was made and discounted to In an action on a note defendant pleaded payment and testified that the note was

procure funds with which to work given on an agreement that the proceeds of said mine and repair ditches and a certain mine should be applied upou the flumes; and that the proceeds of note ; that it was made to raise money to

the mine were to be first approprienable him to go east and try to sell the mine and that he was informed that plain ated to reimburse him for his adtiff was one of the owners of the mine, vances. All of the remaining as. though holding its interest in the name of sociates spoke of H. as the joint H. H. testified that he was the owner of

owner with them in his individual the interest ; that the note was made to procure funds to work the mine, and that capacity. All agreed that he was the proceeds of the mine were to be first the general financial agent of the appropriated to reimburse him for ad mining company by whom disvances, and he was corroborated as to own

bursements were made and to ership and reimbursement by the other mine owners. There was enough money

whom receipts were paid. It was to H's credit to pay the note. Held, That clearly shown that by a general the defense of payment was not estab- arrangement among the associates lished.

H. was to reimburse himself for This was an action upon a prom-advances out of the money of the issory note. The defense of pay. company, and that he did not repment was interposed, and defend resent the bank. It appeared that ant testified upon the trial that he there was deposited enough money signed the note upon a special from the mining company to the agreement with the plaintiff credit of H. to pay the note. through H., as its official agent Alfred C. Chapin, for applt. and president, that the moneys Henry S. Van Duzer, for respt. arising from the working of a cer- Held, That the defense of paytain mine, and due to the associate ment was not established. Whethowners, should be paid to plainer H. did his duty or not as retiff and be applied by it upon the gards the application of the money note, and he added that he was received from the mining company told by H. that plaintiff was one is immaterial. of the associate owners, though

Order of General Term, reversholding its interest in his name. ing judgment for defendant, afDefendant also swore that the note tirmed and judginent absolute on was made and discounted to fur- stipulation. nish him with funds for his ex- Opinion by Finch, J. All conpenses in a journey east and an endeavor to sell the mining property for the common benefit. This

Vol. 18.-No. 12b.


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