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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 Opinion by Barnard, P. J.; common carrier of passengers. Pratt and Dykman, JJ., conDefendant appeared in its own cur. name and admitted that “it was a common carrier of passengers, but "denies on its information and be

PRACTICE. INJUNCTION. lief that at the time mentioned in

UNDERTAKING. the complaint, or at any other | N. Y: SUPREME COURT. GENERAL time, the defendant was a foreign

TERM. FIRST DEPT. corporation as is alleged in the

The Fourth National Bank of complaint.Plaintiff did not prove the cor.

the City of New York, v. Geo. S.

Scott et al. porate existence of defendant. Judgment having been entered in

Decided Dec. 21, 1883. favor of plaintiff the question pre- When, in an action against several defendants, sented by this appeal is whether the damages sustained by one of them by under the pleadings plaintiff was

reason of an injunction therein have been

ascertained in the manner provided by bound to prove the corporate ex

$623 of the Code, a separate action may at istense of defendant.

once be brought by such defendant against J. E. Swanstrom, for respt.

the sureties in the undertaking to recover

such damages where it appears from the J. K. Hill, for applt.

undertaking that several as well as joint

interests were intended to be protected by Held, That there was no issue

it. made by the answer which re- Objection to defect of parties, when such quired plaintiff to prove the cor- defect appears upon the face of the com

plaint, is waived unless raised by demurrer. porate existence of the defendant. The denial, such as it is, is not Motion by defendants for new absolute but upon information trial on exceptions ordered to be and belief and especially fails to first heard at General Term.

it a corporation under the laws of an undertaking given to obtain an Denmark or any other corpora- injunction in a case wherein Dari- . tion? If Swedish, the allegation us Miller and others were plaintiffs in the complaint that it was Dan. and the plaintiff herein and others ish would be of no relevancy. The were defendants. denial is so framed that defendant

nt Upon the motion of plaintiff can be either a foreign or domestic herein an order was obtained in corporation formed in any country that action vacating with costs except Denmark. The only issue said injunction so far as said plainmade is one of nationality of the tiff was affected. corporation.

Therafter a reference was orderThe Code $ 1776, requires an ed upou motion of plaintiff to

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 This

action was thereupon by so suspending the matter conbrought. Objection is raised that fusion as to the rights of the plaintiff had no legal right to respective parties might be avoidmaintain this action without join- ed and in case the aggregate daming as parties the other defendants ages of all the parties should in the action in which the under exceed the amount for which th taking was given.

undertaking was given the Court David J. H. Willcox, for plff. could intelligently apportion the Henry S. Bennett, for defts.

amount secured among all the Held, That when the injunction parties entitled to indemnity. But was vacated as to this plaintiff the in this case the Court has exercised event had arisen upon which the its discretion to grant the order of sureties became bound to plaintiff reference and the order confirming for any damages sustained by it the referee's report, and those by reason of the injunction; that orders have remained in full force upon confirmation of the referee's and unquestioned. report, by the terms of $623 of the

Moreover, it appeared on the Code, the amount of such dam- face of the complaint that parties ages was conclusively fixed ; that other than the bank were entitled where it appears from the under to be protected by the undertaking, taking sued upon that several as and defendants not having demurwell as joint interests are intended red must be deemed to have waivto be protected by it the general ed the objection. rule that all the obligees or coven- Exceptions overruled and judgantees in a joint-bond or deed ment directed upon the verdict in must be joined in bringing an favor of plaintiff. action upon it does not necessarily

Opinion by Daniels J.; Davis, apply.

P. J., concurs. Section 625 of the Code provides that any person entitled to the benefit of an undertaking upon in- SHERIFFS. PRACTICE. junction may bring an action thereon when the damages have

N. Y. COURT OF APPEALS. been ascertained as provided by Scott et al., applts., v. Morgan, the two preceding sections.

respt. The case of Bennett v. Dixon, 47 Superior Ct., 447, does not apply,

Decided Jan. 29, 1884. because in that case the Court de

The remedy given to a judgment creditor by clined to make the order of refer- $ 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 with

1 Den., 578; 21 N. Y., 484; Story holding and concealment of property and arises only when the sheriff is unable to re

on Bail., 8th ed., § 129. The remgain possession and dispose of such prop. edy given by subdivision 3 of secerty.

tion 708 of the Code of Civil ProThe clerk's minutes, although incorporated cedure is not a general right of ac

in the judgment roll, cannot be referred to for the purpose of enlarging the grounds

tion for any and all injuries to such upon which a motion was predicated or to property, but given solely for the indicate the legal questions raised upon the injury occasioned by a wilful trial.

withholding and concealment of This action was brought by property from the sheriff. It explaintiffs, as judgment creditors of ists only where the property has one B., for damages arising out of been once taken in execution by an alleged wrongful taking and the sheriff and arises solely when detention of certain personal prop- he is unable to regain its posseserty, at the time in the custody of sion and dispose of it under the the sheriff under an execution. authority conferred by the execuThe complaint did not allege that tion. The language of the section the taking of the property by de- seems to contemplate only an in fendant was wilful. It affirma jury to the rights of the party tively appeared by the admission aggrieved by such an appropriaof plaintiffs' counsel that defend- tion of the property as deprives ant acted under a claim as a tax him altogether of the benefit of it. collector, and as having acquired Such an injury cannot be shown a right to the property superior to until by a return of the execution that of the sheriff by virtue of a unsatisfied it appears that the levy under a tax warrant. It also property taken from the sheriff appeared from plaintiffs' opening cannot be recovered by him and and the allegations of the com- its proceeds applied on the judg. plaint that after the alleged tres ment. pass by defendant the sheriff re- The complaint was dismissed gained possession of the property upon the trial on the ground that and sold and disposed of it under plaintiffs' only remedy was to sue the process held by him. The case the sheriff, and that no action does not show that plaintiffs have would lie in favor of a judgment not had the benefit of the fair creditor against a third person for value of the property levied upon. wrongful interference with prop

Henry P. Starback, for applts. erty previously attached and levied George J. Greenfield, for respt. on by the sheriff. Defendant's

Held, That plaintiffs are not en- counsel now seeks to avail himself, titled to maintain this action. 3 in support of the judgment, of the Barb., 519; 9 N. Y., 173; 74 id., recital in the clerk's minutes, 397; Story on Bail., § 93e and note; which were printed as a part of 25 N. Y., 304; 38 id., 259; 1 Den., the record, that said motion was 335; 2 N. Y., 451; 5 Den., 594; 2 made on the ground that the com

plaint did not state facts sufficient that the moneys alleged to have been loaned to constitute a cause of action.

by plaintiff were payments. Defendant

testified that he made the loan and took a This recital the Judge who pre- deed of land which he was to hold as secusided at the trial on settling the rity. Plaintiff testified that he sold the land case refused to incorporate in it.

to defendant. Plaintiff recovered and in Held, That the clerk's min

an action on the judgment defendant set up

as a counterclaim the same facts alleged as utes, although incorporated in the

a defense in the former action. Held, That judgment roll, could not be re- the judgment in the Nebraska action was ferred to to enlarge the grounds conclusive as to defendant's claim, and that upon which the motion to dismiss

he could not set it up as a counterclaim al

though it was only used as matter of dewas predicated. It is not the office

fense in the former action. of the clerk's minutes to indicate the legal questions raised upon

This action was brought to rethe trial. Defendant had a right cover the amount of a judgment in support of the judgment to rely obtained by plaintiff against deupon any sufficient ground appear. fendant in a court of general juing in the record which he might risdiction in the state of Nebraska. have raised in the court below, pro- Defendant's answer admitted the vided it is such an objection as recovery of the judgment and that could not have been obviated by no part thereof had been paid and plaintiffs upon the trial. 5 Lans., set up as a defense a counterclaim 377; 1 Den., 226; 16 Johns., 348; in which he alleged that he had 61 N. Y., 4; 32 Barb., 171; 53 N. | paid $12,500 to the use of plainY., 298.

tiff to be repaid on demand and Judgment of General Term, af- that he had demanded payment firming judgment disinissing com

and that no part thereof had been plaint, affirmed.

paid. Plaintiff served a reply in Opinion by Ruger, Ch. J. All which he set up an extract from concur.

defendant's answer in the Nebraska suit which shows that the

counterclaim pleaded in this action RES JUDICATA.

was interposed and constituted a N. Y. COURT OF APPEALS. defense to the Nebraska suit, and Patrick, respt., v. Shaffer,applt. it was claimed that the verdict in

that action was conclusive in the Decided Jan. 15, 1884.

present suit. The plaintiff's claim A judgment in an action is final and conclu in this action is substantially and sive upon the parties not only as to matters in fact the same as the demand for actually determined, but also as to any mat

which a recovery was had in the ters that might have been litigated and decided therein as incident to or essentially con

Nebraska suit. Plaintiff there nected with the subject matter of the liti- claimed to recover for moneys gation either as matter of claim or de

loaned by him to the defendant. fense.

Defendant denied that plaintiff had In an action in Nebraska for money loaned the defendant denied the loan and alleged

ever loaned him any money and that he had loaned money to plaintiff and claimed that he had loaned plaintiff $12,500 several years before | as a counterclaim. It is claimed the commencement of the New that there was another and separate braska suit, and that the mon defense in the Nebraska suit on eys plaintiff claimed to recover

to recover which the judgment may have were payments upon the loan of gone against defendant without $12,500. The record shows that on necessarily involving the truth of the trial of the Nebraska suit the facts pleaded as a second and defendant introduced evidence to separate defense. There was a prove that he had advanced to and denial in the second paragraph for plaintiff's use $12,000 to dis- of the answer of any loan by charge a debt due from plaintiff plaintiff to defendant. to one K. who had title to certain

Elihu Root and Willard Bartlett, lands in Nebraska as security for

for applt. such indebtedness; that an agree. ment was made between the par

Henry A. Root, for respt. ties, providing for a transfer of Held, That the evidence in the land by K. to defendant, who reference to the loans, as well as was to hold it as security for the that relating to the mortgage debt, sum advanced.

Plaintiff proved had a bearing upon plaintiff's that his family owned an undi- right to recover in the Nebraska vided half of 270 acres in Nebraska suit.

suit. Defendant's claim that no the legal title to which was held loans were made, but that the by K. with other collaterals to

moneys were paid upon the inortsecure $5,200 he owed the 0. gage debt, is not well founded, as Bank ; that plaintiff sold an un- it is manifest that these payments divided half of said land for $12,- were so inseparably connected 500 to one S. and S. took a deed with the loans that a discriminadirectly from K. Subsequently tion could not be made by the jury plaintiff loaned defendant in five which would separate one from sums about $7,000. The issue in the other.

the other. In view of the evidence the Nebraska suit was whether introduced showing that the loans the moneys received from plain had been made and the testimony tiff were loans or whether they which tended to establish that were payments of installments these loans were payments of inupon the mortgage alleged to stallments upon the alleged morthave been given by plaintiff gage debt, and the conflict in the to defendant for money plain- testimony in regard to the nature tiff had borrowed from defend of the transaction, it cannot be ant, or in other words whether urged that noissue was made on the the deed was absolute or a mort- trial in reference to the existence of gage. Defendant not only denied the mortgage debt, nor is it a reathat there was any loan, but set up sonable assumption, under the in the third paragraph of his an- circumstances, that

the jury swer in the Nebraska suit the might have found that, although same facts which are here pleaded the loans were made to the defend.

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