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.

PAYMENT.

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.

PENAL CODE.

See APPEAL, 23, 24; CRIMINAL LAW, 13, 14.

PENSIONS.

1. Pension money is exempt from seizure in
legal proceedings.- Wildrick v. De Vinney,
355.

See POLICE, 2, 3.

PERJURY.

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.

POLICE.

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.

See LIMITATION, 11.

POWERS.

See WILLS, 3.

PRACTICE.

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.

1

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.,

417.

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.