Opinion by Barnard, P. J.; Pratt and Dykman, JJ., con The complaint avers that defen- | affirmative denial of the fact that dant was a foreign corporation in- defendant is a corporation. corporated under the laws of the Judgment affirmed. Kingdom of Denmark and was a common carrier of passengers. Defendant appeared in its own name and admitted that "it was a common carrier of passengers, but "denies on its information and belief that at the time mentioned in cur. PRACTICE. INJUNCTION. UNDERTAKING. TERM. FIRST DEPT. the complaint, or at any other N. Y: SUPREME COURT. GENERAL time, the defendant was a foreign corporation as is alleged in the complaint." Plaintiff did not prove the corporate existence of defendant. Judgment having been entered in favor of plaintiff the question presented by this appeal is whether under the pleadings plaintiff was bound to prove the corporate existense of defendant. J. E. Swanstrom, for respt. Held, That there was no issue made by the answer which required plaintiff to prove the corporate existence of the defendant. The denial, such as it is, is not absolute but upon information and belief and especially fails to meet the real allegation, Was it a corporation under the laws of Denmark or any other corporation? If Swedish, the allegation in the complaint that it was Danish would be of no relevancy. The denial is so framed that defendant can be either a foreign or domestic corporation formed in any country except Denmark. The only issue made is one of nationality of the corporation. The Fourth National Bank of the City of New York, v. Geo. S. Scott et al. Decided Dec. 21, 1883. When, in an action against several defendants, the damages sustained by one of them by reason of an injunction therein have been ascertained in the manner provided by $623 of the Code, a separate action may at once be brought by such defendant against the sureties in the undertaking to recover such damages where it appears from the undertaking that several as well as joint interests were intended to be protected by it. Objection to defect of parties, when such defect appears upon the face of the complaint, is waived unless raised by demurrer. Motion by defendants for new trial on exceptions ordered to be first heard at General Term. This action was brought upon an undertaking given to obtain an injunction in a case wherein Darius Miller and others were plaintiffs and the plaintiff herein and others. were defendants. Upon the motion of plaintiff herein an order was obtained in that action vacating with costs said injunction so far as said plaintiff was affected. Therafter a reference was orderThe Code § 1776, requires an ed upon motion of plaintiff to This action was thereupon brought. Objection is raised that plaintiff had no legal right to maintain this action without joining as parties the other defendants in the action in which the undertaking was given. ascertain the amount of the dam- | ence in favor of one of the defenages which it had sustained by dants so long as the action had not reason of said injunction and said been concluded against the others. damages were reported at the sum In this case the discretion of the of 557.50 and the report was con- Court might very well have been firmed after hearing the sureties. exercised in the same manner; for by so suspending the matter confusion as to the rights of the respective parties might be avoided and in case the aggregate damages of all the parties should exceed the amount for which the undertaking was given the Court could intelligently apportion the amount secured among all the parties entitled to indemnity. But in this case the Court has exercised its discretion to grant the order of reference and the order confirming the referee's report, and those orders have remained in full force and unquestioned. David J. H. Willcox, for plff. Henry S. Bennett, for defts. Held, That when the injunction was vacated as to this plaintiff the event had arisen upon which the sureties became bound to plaintiff for any damages sustained by it by reason of the injunction; that upon confirmation of the referee's report, by the terms of $623 of the Code, the amount of such damages was conclusively fixed; that where it appears from the undertaking sued upon that several as well as joint interests are intended to be protected by it the general rule that all the obligees or covenantees in a joint-bond or deed must be joined in bringing an action upon it does not necessarily apply. Section 625 of the Code provides that any person entitled to the benefit of an undertaking upon injunction may bring an action thereon when the damages have been ascertained as provided by the two preceding sections. The case of Bennett v. Dixon, 47 Superior Ct., 447, does not apply, because in that case the Court declined to make the order of refer Moreover, it appeared on the face of the complaint that parties other than the bank were entitled to be protected by the undertaking, and defendants not having demurred must be deemed to have waived the objection. Exceptions overruled and judgment directed upon the verdict in favor of plaintiff. Opinion by Daniels J.; Davis, P. J., concurs. SHERIFFS. PRACTICE. N. Y. COURT OF APPEALS. Scott et al., applts., v. Morgan, respt. Decided Jan. 29, 1884. The remedy given to a judgment creditor by 708, Sub. 3 of the Code, in case of inter ference with the sheriff, is given solely for | Hil. on Torts, 254; 50 N. Y., 85; the injury occasioned by a wilful withholding and concealment of property and arises only when the sheriff is unable to regain possession and dispose of such prop This action was brought by plaintiffs, as judgment creditors of one B., for damages arising out of an alleged wrongful taking and detention of certain personal property, at the time in the custody of the sheriff under an execution. The complaint did not allege that the taking of the property by defendant was wilful. It affirmatively appeared by the admission of plaintiffs' counsel that defendant acted under a claim as a tax collector, and as having acquired a right to the property superior to that of the sheriff by virtue of a levy under a tax warrant. It also appeared from plaintiffs' opening and the allegations of the complaint that after the alleged trespass by defendant the sheriff regained possession of the property and sold and disposed of it under the process held by him. The case does not show that plaintiffs have not had the benefit of the fair value of the property levied upon. Henry P. Starback, for applts. George J. Greenfield, for respt. Held, That plaintiffs are not entitled to maintain this action. 3 Barb., 519; 9 N. Y., 173; 74 id., 397; Story on Bail., § 93e and note; 25 N. Y., 304; 38 id., 259; 1 Den., 335; 2 N. Y., 451; 5 Den., 594; 2 1 Den., 578; 21 N. Y., 484; Story on Bail., 8th ed., § 129. The remedy given by subdivision 3 of section 708 of the Code of Civil Procedure is not a general right of action for any and all injuries to such property, but given solely for the injury occasioned by a wilful withholding and concealment of property from the sheriff. It exists only where the property has been once taken in execution by the sheriff and arises solely when he is unable to regain its possession and dispose of it under the authority conferred by the execution. The language of the section seems to contemplate only an in jury to the rights of the party aggrieved by such an appropriation of the property as deprives him altogether of the benefit of it. Such an injury cannot be shown until by a return of the execution unsatisfied it appears that the property taken from the sheriff cannot be recovered by him and its proceeds applied on the judg ment. The complaint was dismissed upon the trial on the ground that plaintiffs' only remedy was to sue the sheriff, and that no action would lie in favor of a judgment creditor against a third person for wrongful interference with property previously attached and levied on by the sheriff. Defendant's counsel now seeks to avail himself, in support of the judgment, of the recital in the clerk's minutes, which were printed as a part of the record, that said motion was made on the ground that the com plaint did not state facts sufficient to constitute a cause of action. This recital the Judge who presided at the trial on settling the case refused to incorporate in it. Held, That the clerk's minutes, although incorporated in the judgment roll, could not be referred to to enlarge the grounds upon which the motion to dismiss was predicated. It is not the office of the clerk's minutes to indicate the legal questions raised upon the trial. Defendant had a right in support of the judgment to rely upon any sufficient ground appearing in the record which he might have raised in the court below, provided it is such an objection as could not have been obviated by plaintiffs upon the trial. 5 Lans., 377; 1 Den., 226; 16 Johns., 348; 61 N. Y., 4; 32 Barb., 171; 53 N. Y.. 298. Judgment of General Term, affirming judgment dismissing complaint, affirmed. Opinion by Ruger, Ch. J. All concur. RES JUDICATA. N. Y. COURT OF APPEALS. that the moneys alleged to have been loaned This action was brought to recover the amount of a judgment obtained by plaintiff against defendant in a court of general jurisdiction in the state of Nebraska. Defendant's answer admitted the recovery of the judgment and that no part thereof had been paid and set up as a defense a counterclaim in which he alleged that he had paid $12,500 to the use of plaintiff to be repaid on demand and that he had demanded payment and that no part thereof had been paid. Plaintiff served a reply in which he set up an extract from defendant's answer in the Nebraska suit which shows that the counterclaim pleaded in this action was interposed and constituted a defense to the Nebraska suit, and Patrick, respt., v. Shaffer, applt. it was claimed that the verdict in that action was conclusive in the present suit. The plaintiff's claim in this action is substantially and in fact the same as the demand for which a recovery was had in the Nebraska suit. Plaintiff there claimed to recover for moneys loaned by him to the defendant. Defendant denied that plaintiff had ever loaned him any money and claimed that he had loaned plain tiff $12,500 several years before the commencement of the Nebraska suit, and that the mon eys plaintiff claimed to recover were payments upon the loan of $12,500. The record shows that on the trial of the Nebraska suit defendant introduced evidence to prove that he had advanced to and for plaintiff's use $12,000 to discharge a debt due from plaintiff to one K. who had title to certain lands in Nebraska as security for such indebtedness; that an agreement was made between the parties, providing for a transfer of the land by K. to defendant, who was to hold it as security for the sum advanced. Plaintiff proved that his family owned an undivided half of 270 acres in Nebraska the legal title to which was held by K. with other collaterals to secure $5,200 he owed the O. Bank; that plaintiff sold an undivided half of said land for $12,500 to one S. and S. took a deed directly from K. Subsequently plaintiff loaned defendant in five sums about $7,000. The issue in the Nebraska suit was whether the moneys received from plaintiff were loans or whether they were payments of installments upon the mortgage alleged to have been given by plaintiff to defendant for money plaintiff had borrowed from defendant, or in other words whether the deed was absolute or a mortgage. Defendant not only denied that there was any loan, but set up in the third paragraph of his answer in the Nebraska suit the same facts which are here pleaded as a counterclaim. It is claimed that there was another and separate defense in the Nebraska suit on which the judgment may have gone against defendant without necessarily involving the truth of the facts pleaded as a second and separate defense. There was a denial in the second paragraph of the answer of any loan by plaintiff to defendant. Elihu Root and Willard Bartlett, for applt. Henry A. Root, for respt. Held, That the evidence in reference to the loans, as well as that relating to the mortgage debt, had a bearing upon plaintiff's right to recover in the Nebraska suit. Defendant's claim that no loans were made, but that the moneys were paid upon the mortgage debt, is not well founded, as it is manifest that these payments were so inseparably connected with the loans that a discrimination could not be made by the jury which would separate one from the other. In view of the evidence introduced showing that the loans had been made and the testimony which tended to establish that these loans were payments of installments upon the alleged mortgage debt, and the conflict in the testimony in regard to the nature of the transaction, it cannot be urged that no issue was made on the trial in reference to the existence of the mortgage debt, nor is it a reasonable assumption, under the circumstances, that the jury might have found that, although the loans were made to the defend |