motion for a new trial before the judge who presided at the trial, or by appeal to the General Term❘ to correct the error of law by which plaintiff was enabled to proceed. Order affirmed. Opinion by Brady, J.; Davis, P. J., and Daniels, J., concur. PLEADING. N. Y. SUPERIOR COURT. GENERAL TERM. Erastus T. Tifft et al., respts., v. Aaron T. Bloomberg, applt. Decided Nov. 16, 1883. Where the sufficiency of a proposed supplemental answer, setting up newly-discovered facts, is a matter of doubt, the court will not prejudice the validity of the defense on a motion, but will permit the defense to be set up, if the defendant be free from laches. Action for alleged false repre sentations by defendant of the credit of third parties, viz.: the firm of D. W. Bloomberg & Co., through which plaintiff sustained damage. Defendant, at a special term, moved for leave to interpose a supplemental answer, setting out facts which he claimed transpired after the filing of the original answer. The motion was denied on the ground that the new matter did not constitute a defense. The proposed supplemental answer alleged that since the filing of the original answer the assignees of D. W. Bloomberg & Co. paid to plaintiffs $634.34 on account of plaintiffs' demand, and that plaintiffs consented to the assignment and Hall & Jenks, for applt. Held, That if the sufficiency of the proposed supplemental answer is a matter of doubt the court will not prejudge the matter on such a motion, but permit the defense to be made. 42 Hun, 155. That without expressing an opinion on the validity of the defense sought to be interposed, substantial justice will be better obtained if defendant is allowed to present his defense on the trial and have it passed on at that time. Order reversed, and motion for leave to serve supplemental answer granted, costs to abide the event. Opinion per curiam. CHATTEL MORTGAGE. REPLEVIN. N. Y. COURT OF APPEALS. Nichols, treasr., respt., v. Mase, applt. Decided Nov. 27, 1883. The law of the domicile of the owner of personal property determines the validity of a mortgage thereof made by him. A railway corporation in Connecticut defaulted the payment of its obligations, and under the terms of the security for the same, a mortgage, executed in Connecticut, on its road from Hartford to the State line, together with all of its equipments, etc., used on the same, surrendered said property to plaintiff, the mortgagee. In an action brought against the sheriff for levy under attachment on personal property in this State. Held, That the conditions prece dent to possession in the mortgage were for the benefit of the company, and were waived by the voluntary surrender; that the mortgage was properly executed by a deed executed by the president under the corporate seal; that it was not incumbent on the plaintiff in the first instance to show that the bonds were issued conformably to the charter; that the mortgage was not required to be filed or recorded in this State, and that the mortgage being valid in Connecticut the mortgagee should be protected in all his rights given him by the mortgage. Special statutes intended to govern particular transactions are not controlled by general statutes unless the legislative intent to that effect is clearly manifested. A lease is not of itself a subject of replevin. Modifying S. C., 13 W. Dig., 479. This action was brought by plaintiff as Treasurer of the State of Connecticut, and as trustee for the holders of certain mortgage bonds, to recover possession of certain personal property and a lease in possession of defendant as sheriff of the county of Dutchess. He claims possession under a mortgage executed to him, as treasurer, by the Conn. W. RR. Co., which covered all the lands, railways, etc., and all the personal property belonging to that company, and all its rights and franchises under its charter. Defendant was in possession under an attachment issued from the Supreme Court against the property of the company. The mortgage provided that if the interest remained unpaid for six months after presentation of the proper coupons, the principal should become due. It also provided that the company should remain in possession until default should be made in the payment of interest, and if the interest remained unpaid for six months, the mortgagee might, at the request of one-third in amount of the bondholders, take possession of the railroad and all its property, franchises, etc., and through agents appointed by him operate the road and receive the income and profits thereof. thereof. The sheriff levied on the property under an execution issued upon a judgment against the company, March 19, 1880, and on April 27, 1880, the property was formally surrendered to the trustee named in the mortgage in consequence of a failure to pay the interest due on the bonds. Homer A. Nelson, for applt. R. F. Wilkinson, for respt. Held, That if the mortgage was valid in this State, plaintiff, upon proof of a demand and refusal to deliver, could maintain this action. There was no proof on the trial that the bonds were not issued in accordance with the charter of the company or with regard to the amount expended and the sworn statement of the engineer. Held, That the bonds being valid on their face, plaintiff was not bound to prove that the provisions of the law were complied with. The burden was upon defendant, as the case stood, to show the invalidity of the bonds. The presumption is the comptroller performed his duty in issuing the bonds as required by the charter. It was objected that the mortgage was not attested by two witnesses according to the statute of Connecticut. A law of that State, entitled an act concerning communities and corporations, prescribes that mortgages executed by rail road corporations shall be authenticated by deed executed by the president under the corporate seal. This provision was complied with in the mortgage in suit. Held, That the general statute did not impair the effect of the special statute, as it did not appear that such was the intention of the Legislature. The conditions precedent which entitled plaintiff to take possession were for the benefit of the company, and it having surrendered the property voluntarily there was a waiver of them. Defendant, be ing a mere trespasser, is in no position to insist that the terms of the mortgage have not been fulfilled. The statute as to the filing and recording of mortgages in this State does not apply to the mortgage in suit, as it was properly executed and valid according to the laws of Connecticut. As it was not proved that the mortgaged property was in this State at the time of the execution of the mortgage it must be assumed to have been in Connecticut, and the contract is governed by the laws of that State. 26 N. Y., 96; 12 Barb., 631; 12 Cush., 109; 30 Vt., 42; 37 N. H., 86; 19 N. Y., 224. The law of the domicile of the owner of personal property, as a general rule, determines the validity of every transfer of it made by him. 81 N. Y., 203. By the rule of comity which prevails between the different States, the right of plaintiff to the property in question was entitled to protection. 81 N. Y., 199. The trial court allowed plaintiff to recover the lease in suit. Held, Error; that the lease, of itself, was not the subject of replevin. The Court directed the jury to assess the value of the property taken at $15,000, which included the value of the lease in question and an undivided half interest in some land in this State, amounting in all to $1,200. Held, Error. Judgment of General Term, affirming judgment for plaintiff, modified by deducting amount erroneously included in judgment, and as modified affirmed. Opinion by Miller, J. All con cur. APPEAL. N. Y. COURT OF APPEALS. Raynor, applt., v. Raynor et al., respts. Decided Dec. 14, 1883. A judgment appointing a referee to take account of rents and profits, admeasure dower and report the evidence and findings, reserving all other questions until the final hearing, is interlocutory and not final, and no appeal lies therefrom to the Court of Appeals. A party aggrieved by an interlocutory judg ment may move at General Term for a new trial, and if the motion is granted or denied may appeal to the Court of Appeals. If no appeal is taken from an order granting or denying a new trial the practice must conform to SS 1336 and 1350. Such motion for a new trial must be based on one or more exceptions. This was an action for dower. A judgment was entered at Special Term, appointing a referee to take an account of rents and profits and improvements upon land and ascertain the present value of dower and upon payment by plaintiff of a certain sum, to be ascertained by him in the mode specified in the judgment, he was to admeasure her dower. The referee was to report the evidence taken by him with his findings thereon to the court, and all other questions were reserved until the coming in of such report and the final hearing thereon. Plaintiff appealed to the General Term from this judgment and it was affirmed. She now ap peals to this court. Geo. F. Comstock, for applt. D. Pratt, for respts. Held, That the appeal is unauthorized; the judgment entered at the Special Term was not final but interlocutory and there is no provision of the Code authorizing appeals from such judgments to this court. If, upon an appeal from an interlocutory judgment to the General Term, the judgment is affirmed, the parties must go back to the Special Term and complete the further proceedings, and then final judgment may be entered upon the whole case. From the final judgment the party aggrieved thereby may, under section 1336 of the Code of Civ. Pro., appeal directly to the Court of Appeals, and the appeal will bring up for review only the determination of the General Term affirming the interlocutory judgment, or he may, under section 1350, appeal to the General Term, which appeal will bring up for review only the proceedings to take the final judgment, and if the General Term affirms the judgment, he may appeal to this court, and here present for review all the questions of law involved in the whole case and raised by exception taken at the proper time. If on an appeal from an interlo cutory judgment or from a final judgment the General Term grants a new trial then, under sections 190 and 191 of the Code, an appeal may be taken to this court. A party aggrieved by an interlocutory judgment may, after entry thereof, under section 1001, move at the General Term for a new trial upon one or more exceptions contained in a case to be settled as provided by section 997, and if the motion is granted or denied an appeal may be taken to this court under section 190. If no appeal is taken to this court from an order denying a new trial then the practice must conform to sections 1336 and 1350. The Code recognizes a difference between appeals and motions for new trials. $$ 190, 191, 999, 1001, 1002, 1003, 1004. 1336, 1350; 86 N. Y., 162. Under section 1001 of the Code an appeal from an interlocutory judgment differs from a motion for a new trial in that the latter must be based upon one or more exceptions and can present only questions of law, while the former brings up both questions of law and fact. 50 N. Y., 689; 57 id., 363; 59 id., 635; 74 id., 80, 452; 76 id., 516; 18 W. Dig., 245. Appeal dismissed. Opinion by Earl, J. cur. All con PAYMENT. N. Y. COURT OF APPEALS. The First Nat'l Bk. of Helena, respt., v. Sherwood, applt. Decided Nov. 27, 1883. In an action on a note defendant pleaded evidence was directly contradicted by H., who swore that he owned the interest in the mine standing in his name; that he and not the bank made the advances outside of the discounted paper; that the note was made and discounted to procure funds with which to work said mine and repair ditches and flumes; and that the proceeds of the mine were to be first appropriated to reimburse him for his advances. All of the remaining as sociates spoke of H. as the joint owner with them in his individual capacity. All agreed that he was the general financial agent of the mining company by whom disbursements were made and whom receipts were paid. It was clearly shown that by a general arrangement among the associates H. was to reimburse himself for advances out of the money of the company, and that he did not rep to there was deposited enough money. from the mining company to the credit of H. to pay the note. Alfred C. Chapin, for applt. Henry S. Van Duzer, for respt. Held, That the defense of payment was not established. Wheth This was an action upon a promissory note. The defense of pay ment was interposed, and defend-resent the bank. It appeared that ant testified upon the trial that he signed the note upon a special agreement with the plaintiff through H., as its official agent and president, that the moneys arising from the working of a certain mine, and due to the associate owners, should be paid to plain-er 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 holding its interest in his name. Defendant also swore that the note was made and discounted to furnish him with funds for his ex penses in a journey east and an endeavor to sell the mining property for the common benefit. This Vol. 18.-No. 12b. Order of General Term, reversing judgment for defendant, affirmed and judgment absolute on stipulation. Opinion by Finch, J. All con cur |