mark in the absence of an agreement to that effect.-Hazard et al. v. Caswell et al., 29.
2. On the dissolution of a firm either partner may use the trademark unless he has in some way divested himself of the right to do so.-Id.
3. A compliance by the transferee with the act relating to the continued use of part- nership names does not affect or enlarge his rights as against his former partner.-Id.
4. In an action for a partnership accounting there was no direct proof of a partner- ship agreement or of the terms of the partnership, but proof was given of admis- sions by defendants' intestate that plaintiff was his partner on certain jobs; that they were seen together while the work was go- ing on, and that intestate had signed their names. There was also evidence that plain- tiff had admitted that intestate was not his partner, but this admission was denied by plaintiff. The court held that there was no partnership, and dismissed the complaint. Held, That there was a sufficient conflict of evidence to prevent a reversal on the facts. -Kelly v. Devlin et al., 337.
5. A former partner of a dissolved firm has the power in the name of the firm to assign a judgment which it holds; and if another partner subsequently assigns the same judgment in good faith (the first assignment not being of record), the second assignee will take no title, though he have no con- structive or actual notice of the first assign- ment.-Hemmingway v. Poucher, 371.
6. An action for a partnership accounting, where the articles are under seal, is not barred till the expiration of twenty years, though there be no express covenant to re- pay the amount of expenses paid by either partner in excess of his proportion as there- in provided.-Duinelle v. Edy, 383.
7. A person who, with his assent, is repre- sented to be a partner, will be liable as such as to persons dealing with the firm with a knowledge of or on the faith of such repre- sentations.-Dubois v. Lamson et al., 490.
8. Where it appears that money was loaned to persons ostensibly acting as a firm, and went into the so-called firm's bank account the persons holding themselves out as such firm will be liable therefor as partners for the amount of such loan at the suit of the lender.―ld.
9. The giving of a firm note cannot be said, in the absence of proof to the contrary, to be outside of the scope of the authority of per- sons transacting the real estate brokerage business ostensibly as partners. The legal presumptions are in favor of the validity of a promissory note.-Id.
10. In an action for a co-partnership account- ing between plaintiff and defendant, the referee found the existence of the co-part- nership and plaintiff's consequent right to the accounting, stated such account and di- rected further that certain bonds and stocks be delivered by defendant to several per- sons not mentioned in the complaint nor parties to the suit. Held, That the direc- tiors of the judgment with reference to those persons not parties to the suit were improper; that the referee should have di- rected, when he found outside parties had claims against the firm property, the ap- pointment of a receiver of the firm property who should ascertain the valid claims against the fund and the claimants and dis- tribute the balance according to the interest of plaintiff and defendant in the remaining partnership property, as adjudged by decree. -Mifflin v. Brooks, 531.
See ASSIGNMENT FOR CREDITORS, 2; FRAUD, 4; PLEADING, 14; PRACTICE, 16.
1. In an action on a note defendant pleaded payment and testified that the note was given on an agreement that the proceeds of a certain mine should be applied upon the note; that it was made to raise money to en- able him to go east and try to sell the mine and that he was informed that plaintiff was one of the owners of the mine, though hold- ing its interest in the name of H. H. tes- tified that he was the owner of the interest; that the note was made to procure funds to work the mine, and that the proceeds of the mine were to be first appropriated to reim- burse him for advances, and he was corrob- orated as to ownership and reimbursement by the other mine owners. There was enough money to II's. credit to pay the note. Held, That the defence of payment was not established.-The First Nail. Bk. of Helena v. Sherwood, 281.
2. As between the creditor and his debtor, unless the latter directs the application of a payment or requests the former to exercise his option, there can be no limit of time within which the creditor must make the application.-The Bank of California v. Webb et al., 295.
3. Evidence of the teller of a bank where a party keeps his account that such party made no deposit of a certain amount about the time a payment is claimed to have been made to such party is not competent to dis- prove the fact of such payment.-Carroll v. Deimel et al., 549.
See ASSESSMENTS; EVIDENCE, 16; LIMITA- TION, 4; MORTGAGE, 1, 13, 14.
See APPEAL, 23, 24; CRIMINAL LAW, 13, 14.
1. Pension money is exempt from seizure in legal proceedings.- Wildrick v. De Vinney, 355.
1. Every question in cross-examination which goes to the credibility of the witness is ma- terial to the issue, so as to come within the rule which requires that the evidence as- signed as perjury in an indictment must be material to the issue in the case in which it is given.-The People v. Courtney, 206. 2. Chap. 678, Laws of 1869, is permissive, not compulsory, and is not violative of § 6, Art. 1 of the Constitution.-The People v. Courtney, 286.
3. False swearing is perjury whenever the testimony is relevant to the case, although it may not directly bear on the issue, as where it affects the credibility of the wit- ness.-Id.
3. A complaint alleged that D., Y. & McL., being indebted to plaintiff, nominally fail- ed; that D. &. C. conspired to cheat plain- tiff out of his demand and that C., by means of false representations, induced plaintiff to assign his claim to him for 25 per cent., paid for it with D's money, and afterwards gave it up to D. The seeond count alleged that D. & Y. repre- sented there was money in the hands of one S. and assigned said money to plain- tiff to apply on his demand and requested him to sue for it, which he did and was defeated and compelled to pay costs. Held, That there was a misjoinder of causes of action; the first count alleged a fraud, and the loss of the debt as damages suffered and not its recovery on contract is the substance of the pleading, and as to the second count C. is a stranger.-ld.
4. Any unlawful act done with intent to in- jure another in his reputation, business or property is actionable if damage result therefrom; but the prosecution of suits at
law cannot be said to be unjustifiable so long as the result is undetermined.-The Buffalo Lubricating Oil Co. v. Everest, 116.
5. In a civil action conspiracy is necessary to be averred and proved only where a verdict is demanded against two or more defendants.-Id.
6. A complaint resting on the following al- legations that defendant became indebted, etc., in a certain sum, in that, between certain dates, he was employed as a clerk by the firm of A. & B., "at a stated salary and that between said dates he drew from said firm $721.36 more than was due him from said firm for his salary as clerk, aforesaid, or by reason of any other cause or thing whatever. That plaintiff succeed- ed to the business, accounts and property of said firm, and to the claim against de- fendant; that said succession and title was obtained by a written instrument on the part of plaintiff's then co-partner, and which instrument plaintiff will refer to on this trial, etc.," is demurrable, as stating only conclusions.-Bailey v. Richmond, 126.
7. The court will not strike out as irrele- vant on motion facts alleged that can in any form of relation be material to be proved on the trial.-Bradner v. Faulk- ner, 134.
8. The rules by which the sufficiency of a pleading is ordinarily determined cannot be applied in all their strictness to a partial defense by way of mitigating circumstan- ces.-Id.
9. Where the complaint alleges that plaintiff is a corporation created by and under an act of the legislature, a simple allegation in the answer that defendant has no know- ledge or information sufficient to form a belief as to whether plaintiff is a corpor- ation or not created by, &c., is not suffici- ent to put plaintiff upon proof of its cor- porate existence.-The Concordia Savings & Aid Assn. v. Reed, 169.
10. The defendant, by his answer, having denied the truthfulness of a concession in the complaint, cannot afterwards avail himself of such concession as an admiss- ion.-Hurd v. The Hannibal & St. Jo. RR. Co. 239.
11. Where the sufficiency of a proposed sup- plemental answer, setting up newly-discov- ered facts, is a matter of doubt, the court will not prejudice the validity of the de- fense on a motion, but will permit the defense to be set up, if the defendant be free from laches.-Tifft et al. v. Bloom- berg, 277.
12. In the absence of any allegation in the complaint that plaintiff is a non-resident of the State, and therefore disqualified to sue a foreign corporation by reason of
§ 1780 of the Code, such non-residency will not be assumed in support of a demurrer on the ground of want of plaintiff's capaci- ty to sue.-Leslie v. Lorillard et al., 288. 13. Where a complaint contains two counts, one upon an agreed price and the second upon a quantum meruil, both claims aris- ing out of one transaction, the pleading is not necessarily within the prohibition by the code of unnecessary repetition." Longprey et al. v. Yates, 355.
14. A referee to try the issues in an action has power at the trial to allow defendants to set up by an amendment to their an- swer that one of the defendants sued as a partner was not a partner, and that the claim sued on has been paid in part, the answer being substantially a general deni- al.-Frazer et al. v. Hunt et al., 390.
15. In an action to recover goods sold to de- fendants on the ground that the sale of such goods was induced by defendants' fraudulently concealing the fact that they were insolvent at the time of such sale, and fraudulently intending never to pay for such goods, but to fail and discon- tinue business, allegations in the complaint of the amount of defendants' liabilities and of their assets at the time of the sale, and of fraudulent representations as to their solvency made to other persons than plaintiffs will not be stricken out as being statements of evidence and not of facts constituting plaintiff's claim. The Daven- port Glucose Mfg. Co. v. Taussig et al., 408.
16. The fact that it might subject defendants to a criminal prosecution to answer cer- tain allegations in a complaint is no reason for striking them out, for, by § 523, Code Civ. Pro., the verification of defendants' answer may be omitted as to such allega- tions.-Id.
17. The complaint alleged that defendant was employed as attorney and counsel of Mrs. S. and her children, and while so em- ployed received in a fiduciary capacity money belonging to the estate of S., de- ceased, to which his widow and children were entitled: that on an accounting it was found that he was indebted to her as guardian and next of kin as before stated, and that the said moneys, of which plain- tiff's share was $750, were received and retained by said defendant as attorney of said widow and children; and they were received in the fiduciary capacity aforesaid, and that defendant had refused to pay the same and had converted it to his own use. Held, That these allegations merely disclose a cause of action ex contractu, and not one for tort.-Segelken v. Meyer, 425.
18. In all actions for damages the sum de- manded in the complaint must be sufficient to cover the real demand, and it cannot be enlarged after verdict without granting a new trial.-Pharis v. Gere, 430.
19. Even a remote probability that allegations contained in an answer may be pertinent upon the trial of the action by way of ex- planation, or as connected with the history of the subject matter of the litigation, is sufficient to protect such allegations from being stricken out as irrelevant on a motion for that purpose.-Duprat v. Havemeyer, 439.
20. Where irrelevant matter inserted in a pleading can in no manner prejudice or injure the other party in the enforcement of his rights it will not be stricken out on a motion for that purpose, but will be permit- ted to stand, for a certain extent of liberal. ity must be allowed to avoid the risk of striking out matter which may be pertinent to the proper trial of the action.-Id.
22. If the complaint is drawn in the latter form the plaintiff will be required to make it more definite and certain by declaring spe- cifically the particular officers or agents by whom he claims such representations were made.-Id.
23. In such a case the proper remedy is a mo- tion to make the complaint more definite and certain, and not for a bill of particu- lars.-Id.
24. In an action to reform a policy of life in- surance by conforming it to the agreement entered into between the parties, it is not necessary that the policy should be set forth in the complaint or annexed to it as an ex- hibit, it may be pleaded by stating its effect; but so much of the policy as is sought to be reformed must be set forth accurately, and also the particular reformation sought. -ld.
See APPEAL, 18; CORPORATIONS, 19; COSTS, 4; COUNTY COURT; EJECTMENT. 5; FALSE IMPRISONMENT, 1; GUARANTY, 3; INJUNC- TION, 7; LIMITATION, 6: MARRIED WO- MEN, 3; MORTGAGE, 5; MUNICIPAL COR- PORATIONS, 1; NEGLIGENCE, 16, 21, 24; NUISANCE, 3; PARTIES; PRACTICE, 6; REFERENCE, 2; REPLEVIN, 2; SURETY- SHIP, 1; TRESPASS, 1; VERIFICATION.
1. On the trial of a police officer before the police commissioners on charges preferred against him, when the case has been heard before less than three commissioners, judg- ment can be rendered at a meeting of the board at which three of the four com- missioners are present, and such a pro-
ceeding is not in violation of rule 131 of the rules and regulations of the police depart- ment of the city of New York, requiring that when the testimony in a case is taken before less than three commissioners it must be laid before and examined by the sev- eral commissioners before judgment ren- dered thereon.-The People ex rel. Swift v. Police Comrs., 21.
2. The original granting of a police pension under Chap. 127, Laws of 1871, and its af- ter payment both rest in the discretion of the trustees; the power of the trustees is not exhausted by the designation of a bene- ficiary and fixing of the amount of the pen- sion.-The People ex rel. Freligh v. Matsell et al., 162.
3. No pension, whether to meinbers of the force or dismissed officers, can at any time or in any manner be chargeable upon the fund as a matter of right.-Id.
4. An investigation upon charges made against a member of the police force was had, and the evidence taken under the rules of the department before one commissioner, who before the final action of the Board on the evidence ceased to be a member of the Board. Held, That the Board was not ousted of jurisdiction by the termination of the office of the Commissioner who took the evidence; that under their rules and the statute they could properly act upon such evidence taken before a former member of the Board, and that their removal of the
police officer thereon was proper.-The People ex rel. Tallon v. Police Comrs., 362.
5. The question of the right of the accused to counsel in investigations upon charges against the police force before the New York Board of Police Commissioners is one addressed to the discretion of that body.— Id.
6. The Board of Police have power, in the form prescribed by the statute, to examine into all offences committed by policemen, for the purpose of purifying or disciplin- ing the force, without restriction or limita- tion based upon the criminal character or other heinousness of the offense.-The People ex rel. Fitzpatrick v. French et al., 530.
7. The fact that a policeman is charged before the Board of Police with conduct unbecom- ing an officer, the specifications of which charge constitute a felony, does not, for that reason, oust the board of jurisdiction. -Id.
1. If the plaintiff in an action is to recover, it must be upon the case as it is substantially embodied in the complaint; and if the de- fendant can succeed in defeating what otherwise appears to be a legal and valid claim, it must be upon some denial or de- fense alleged in the answer; neither party can derive any advantage from evidence appearing upon the trial tending to establish the existence of a cause of action or defense not included in his pleadings.-Hall et al. v. The U. S. Reflector Co., 7.
2. It is error for the Court to submit to the jury a fact with respect to which there is no conflict made by the evidence.-Solomon v. The Manhattan R. Co., 9.
3. The Court cannot sanction what it sees to be an erroneous view of the evidence, any more than an improper ruling on the evi- dence, and an exception is not necessary to render it the duty of the Court to make an examination of the evidence, in order to ascertain whether a referee has taken an erroneous view of the evidence or not.- Baird v. The Mayor, &c., of N. Y., 39.
4. Under § 1023 of the Code of Civil Pro- cedure, where requests to find certain facts and conclusions of law have been duly pre- sented, it is the duty of the Court to pass upon such requests at or before the time when its decision of the case is rendered, and it is irregular for the Court to post- pone its action thereon until the settlement of the case on appeal.-Masterson v. Cra nitch, 41.
5. An exception to the refusal of a judge to charge as requested is unavailing where the judge has already substantially charged as requested; and a general exception to a charge containing several unexceptionable propositions is unavailing.-Pakalinsky v. The N. Y. C. & II. R. RR. Co., 44.
6. An omission to answer a written allega- tion, whether by affidavit or otherwise, can- not be regarded as an admission of the correctness thereof and that it is true in all respects. Talcott v. Harris et al., 81.
7. Parties may agree upon additional findings by a referee, even since the adoption of the present Code.- Welch v. Preston et al., 83. 8. Where one not a party to a pending action claims he is equitably entitled to conduct it, his remedy is by motion in that action; he cannot bring a new action asking such relief.-Miller v. Rogers et al., 119.
9. The Court will not decree the cancellation or surrender of an instrument at the suit of a party who can, if he choose, put himself in a position to contest its validity.-Id.
10. Except as provided in § 772 of the Code one judge cannot vacate or modify the or-
ders of another judge of the same court who had general jurisdiction of the subject matter of such orders. Except as by such section provided, the application for reset- tlement or modification must be made to the judge who, having general jurisdiction of the subject matter, granted the orders.- The People v. The National Trust Co., 207. 11. In an equitable action to remove a cloud upon title the defendants are not entitled as matter of right to a trial by jury. The Court may direct issues to be framed and tried by jury, but this rests in its discre tion.-Wright v. Nostrand et al., 248.
12. The judge presiding at a trial by jury cannot grant a new trial after dismissing the complaint.-Higgins v. The General Transatlantic Co., 259.
13. When, upon the call of a case for trial, defendant objects to its proceeding upon the ground that all proceedings upon the part of plaintiff are stayed, and the trial judge decides that no stay exists and orders the trial to proceed, the remedy of defend- ant is either by a motion for a new trial, under § 1002 of the Code of Civ. Pro., be- fore the same judge who presided at the trial, or by an appeal from the decision whereby plaintiff was allowed to proceed, and he cannot move, at a Special Term held by another judge, to vacate and set aside the verdict on the ground that it is null and void on account of the existence of such stay.-Tunstall v. Winton, 276.
14. The clerk's minutes, although incorpo- rated in the judgment roll, cannot be re- ferred to for the purpose of enlarging the grounds upon which a motion was predi- cated or to indicate the legal questions raised upon the trial.-Scott et al. v. Mor- gan, 413.
15. An admission which has come into the case without any challenge as to its admis- sibility or competency cannot be rejected or disregarded.-Whiting v. Edmunds et al.,
16. When defendants were sued as partners, and a witness calied by them testified that he was a member of the firm, Held, A proper case for an order made on the trial directing plaintiff to make the witness a party defendant.-Kearney v. Thompson et al., 433.
17. A new trial of an action for the recovery of the possession of goods, in which a judg ment was rendered for plaintiffs for the rea- son that the person from whom defendants purchased said goods, and who was the agent of plaintiffs, was not authorized to sell them, will not be ordered on the ground of newly discovered evidence which consists of the testimony of such agent on the question of his authority, such agent not having been examined upon that point upon the trial on account of his hav-
ing denied his ability, when previously questioned by defendant's attorney, to give any testimony concerning it.-Smith et al. v. Clews et al., 436.
18. In such a case the exercise of due diligence requires that the agent should be examined as a witness on the question of his au- thority, notwithstanding his previous denial of any knowledge on the subject; and, moreover, such new evidence would be the subject of so much suspicion as not to jus- tify the direction of a new trial, for, in order to justify such direction, the evidence must appear to be so far controlling as probably to produce a different result from that of the trial already had.—Id.
19. A general exception to each and every part of the finding and conclusion of the trial court is insufficient if any part of the conclusion is good.-Simms v. Vogt et al., 454.
20. Where the notice of appeal from a judg ment contains no notice of intention to re- view an interlocutory order made in the case, the order is to be taken as determin- ing the rights of the parties as far as it goes.-Reese v. Smyth et al, 497.
21. If an order contains a direction made without authority of law, an appeal from such order is not the only remedy of the party aggrieved; he may move to modify the order by striking out the unauthorized direction.-Hall et al. v. The U. S. Reflector Co., 504.
22. When an equitable action is tried by the Court and a jury, the Court may adopt the verdict of the jury or may entirely disre- gard it and make its own findings, and in such event the Appellate Court must re- view the case on such findings, as if there had been no submission to the jury.-Car- roll v. Deimel et al., 549.
23. The court has power in its discretion to refuse to postpone the trial of an action on the ground of the absence of counsel who were to aid plaintiff's attorneys.-Flannery v. James et al., 557.
24. It is not irregular for the court to adjourn the hearing of an unfinished cause and call up another case and proceed to dispose of it.-Id.
25. The terms to be imposed upon granting a favor are within the discretion of the court when the application is made and the exer- cise of such discretion will not be inter- fered with unless there was an abuse of the discretion or it was mistakenly exercised. -Id.
As to practice on appeal, see APPEAL, 4, 6, 8, 11, 15-17.
As to practice in contempt proceedings, see CORPORATIONS, 13.
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