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mark in the absence of an agreement to
that effect. - Hazard et al. v. Caswell et al.,
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
3. A compliance by the transferee with the
act relating to the continued use of part-
nership names dors 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
There was also evidence that plain-
tiff had admitted that intestate was not his
partner, but this admission was denied by
plaintiff. The court lield 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.
10. In an action for a co-partnership account-
ing between plaintiff and defendant, tho
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. lleld, 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.
- Miflin 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
à 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. 11. 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.
enough money to HI'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., 519.
See ASSESSMENTS; EVIDENCE, 16; LIMITA-
TIOX, 4; MORTGAGE, 1, 13, 14.
7. A person who, with his assent, is repre-
senied 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
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.
see APPEAL, 23, 24; CRIMINAL LAW, 13, 14.
1. Pension money is exempt from seizure in
legal proceedings.– Wildrick v. De Vinney,
See POLICE, 2, 3.
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 ihe Constitution.— The People v.
3. False swearing is perjury whenever the
law cannot be said to be unjustifiable so
long as the result is undetermined. - The
Buff'ulo Lubricating Oil Co. v. Ererest, 116.
5. In a civil action conspiracy is necessary
to be averred and proved only where a
verdict is demanded against two or more
6. A complaint resting on the following al.
legations : that defendant became indebted,
etc., in a certain sum, in that, between
certain dates, le was cmployed as a clerk
by the firm of A. & B., "at a stated salary
and that between said dates he grew from
said firm $721.36 more than was due hiin
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-
8. The rules by which the sufficiency of a
pleading is ordinarily determined cavnot be
applied in all their strictness to a partial
defense by way of mitigating circunistan-
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 suttici.
ent to put plaintiff upon proof of its cor-
porate existence. The Concordia Sarings
& Aid Assn. v. Reed, 169.
10. The defendant, by his answer, having
denied the truthfuless of a concession in
the complaint, cannot afterwards avail
himself of such concession as an admiss.
ion.-lurd v. The Hannibal & St. Jo. RR.
11. Where the sufficiency of a proposed sup-
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. llaremeyer,
20. Where irrelevant matter inserted in a
pleading can in no manner prejudice or
injure ihe 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.
21. The proper form of allegation in a com-
plaint in an action against a corporation for
false representations, is that such represen.
tations were made by the defendant, and
not that they were made by the defendant
· by its officers and agents."-Schellen: v.
The Equitable Life Ass. Soc., 556.
$ 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 meruit, 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
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
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-
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 shoull 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.
See APPEAL, 18 ; CORPORATIONS, 19 ; Costs,
4; COUNTY COURT; EJECTMENT. 5; FALSE
IMPRISONMENT, 1 ; GUARANTY, 3 ; INJUXC-
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
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 1. If the plaintiff in an action is to recover, it
that when the testimony in a case is taken must be upon the case as it is substantially
before less than three commissioners it must embodied in the complaint; and if the de.
be laid before and examined by the sev- fendant can succeed in defeating what
eral commissioners before judgment ren. otherwise appears to be a legal and valid
dered thereon.— The People er rel. Swift v. claim, it must be upon some denial or de-
Police Comrs., 21.
fense alleged in the answer; neither party
can derive any advantage from evidence
2. The original granting of a police pension appearing upon the trial tending to establish
under Chap. 127, Laws of 1871, and its af- the existence of a cause of action or defense
ter payment both rest in the discretion of not included in his pleadings.- Hall et al. v.
the trustees ; the power of the trustees is The U. S. Reflector Co., 7.
not exhausted by the designation of a bene-
ficiary and fixing of the amount of the pen-
2. It is error for the Court to submit to the
sion. — The People ex rel. Freligh v. Matsell
jury a fact with respect to which there is no
et al., 162.
conflict made by the evidence.- Solomon v.
The Manhattan R. Co., 9.
3. No pension, whether to meinbers of the
3. The Court cannot sanction what it sees to
force or dismissed officers, can at any time
be an erroneous view of the evidence, any
or in any manner be chargeable upon the
fund as a matter of right.-Id.
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
4. An investigation upon charges made against examination of ihe evidence, in order to
a member of the police force was had, and ascertain whether a referee has taken an
the evidence taken under the rules of the
erroneous view of the evidence or not.-
department before one commissioner, who Baird v. The Mayor, &c., of N. Y., 39.
before the final action of the Board on the
evidence ceased to be a member of the 4. Under $ 1023 of the Code of Civil Pro-
Board. Held, That the Board was not cedure, where requests to find certain facts
ousted of jurisdiction by the termination of and conclusions of law have been duly pre-
the office of the Commissioner who took the sented, it is the duty of the Court to pass
evidence ; that under their rules and the upon such requests at or before the time
statute they could properly act upon such when its decision of the case is rendered,
evidence taken before a former member of and it is irregular for the Court to post-
the Board, and that their removal of the pone its action thereon until the settlement
police officer thereon was proper.— The of the case on appeal. - Masterson v. Cra
People ex rel. Tallon v. Police Comi8., 362. nitch, 41.
5. The question of the right of the accused
5. An exception to the refusal of a judge to
to counsel iu investigations upon charges
charge as requested is unavailing where
against the police force before the New
the judge has already substantially charged
York Board of Police Cominissioners is one
as requested; and a general exception to a
addressed to the discretion of that body.-
charge containing several unexceptionable
propositions is unavailing.–Pakulinsky v.
Tue N. Y, C. 4 II. R. . Co., 44.
6. The Board of Police have power, in the
6. An omission to answer a written allega-
form prescribed by the statute, to examine
into all offences committed by policemen,
tion, whether by affidavit or otherwise, can-
not be regarded as an admission of the
for the purpose of purifying or disciplin-
correctness thereof and that it is true in all
ing the force, without restriction or limita-
respects.—Talcott v. Harris et al., 81.
tion based upon the criminal character or
other leinousness of the offense.-The
7. Parties may agree upon additional findings
People er rel. Fitzpatrick v. French et al., by a referee, even since the adoption of the
present Code.- Welch v. Preston et al., 83.
7. The fact that a policeman is charged before 8. Where one not a party to a pending action
the Board of Police with conduct unbecom- claims he is equitably entitled to conduct
ing an officer, the specifications of which it, his remedy is by motion in that action;
charge constitute a felony, does not, for he cannot bring a new action asking such
that reason, oust the board of jurisdiction. relief.- Hiller v. Rogers et al., 119.
9. The Court will not decree the cancellation
See LIMITATION, 11.
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
See WILLS, 3.
one judge cannot vacate or modify the or-
ders of another judge of the same court ing denied his ability, when previously
who had general jurisdiction of the subject questioned by defendant's attorney, to give
matter of such 'orders. Except as by such any testimony concerning it.-Smith et al.
section provided, the application for reset- v. Cleros et al., 436.
tlement or modification must be made to
the judge who, liaving general jurisdiction 18. In such a case the exercise of due diligence
of the subject matter, gianted the orders.- requires that the agent should be examined
The People v. The National Trust Co., 207. as a witness on the question of his au.
thority, notwithstanding his previous denial
11. In an equitable action to remove a cloud of any knowledge on the subject; and,
upon title the defendants are not entitled as moreover, such new evidence would be the
matter of right to a trial by jury. The subject of so much suspicion as not to jus-
Court may direct issues to be framed and tify the direction of a new trial, for, in
tried by jury, but this rests in its discre order to justify such direction, the evidence
tion.- Wright v. l'ostrand et al., 248.
must appear to be so far controlling as
probably to produce a different result from
12. The judge presiding at a trial by jury ihat of the trial already had. — Id.
cannot grant a new trial after dismissing
the complaint. - Higgins v. The General 19. A general exception to each and every
Transatlantic Co., 259.
part of the finding and conclusion of the
trial court is insufficient if any part of the
13. When, upon the call of a case for trial,
defendant objects to its proceeding upon
conclusion is good.- Simms v. Vogt et al.,
the ground that all proceedings upon the
part of plaintiff are stayed, and the trial 20. Where the notice of appeal from a judg.
judye decides that no stily exists and orders ment contains no notice of intention to re.
the trial to proceed, the remedy of defend- view an interlocutory order made in the
ant is either by a motion for a new trial, case, the order is to be taken as determin-
under $ 1002 of the Code of Civ. Pro., be- ing the rights of the parties as far as it
fore the same judge who presided at the goes.—Reese v. Smyth et al , 497.
trial, or by an appeal from the decision
whereby plaintiff was allowed to proceed, 21. If an order contains a direction made
and he cannot move, at a Special Term held without authority of law, an appeal from
by another judge, to vacate and set aside such order is not the only remedy of the
the verdict on the ground that it is null and party aggrieved; he may move to modify
void on account of the existence of such the order by striking out the unauthorized
stay.- Tunstall v. Winton, 276.
direction. --Hall et al. v. The U. S. Reflector
14. The clerk's minutes, although incorpo.
rated in the judgment roll, cannot be re. 22. When an equitable action is tried by the
ferred to for the purpose of enlarging the Court and a jury, the Court may adopt the
grounds upon which a motion was predi- verdict of the jury or may entirely disre-
cated or to indicate the legal questions gard it and make its own tindings, and in
raised upon the trial.- Scott et al. v. Mor- such event the Appellate Court must re-
view the case on such findings, as if there
had been no submission to the jury.-Car.
15. An admission which has come into the
roll v. Deimel et al., 519.
case without any challenge as to its admis-
sibility or coinpetency cannot be rejected or 23. The court has power in its discretion to
disregarded. - Whiting v. Edmunds et al.,
refuse to postpone the trial of an action on
the ground of the absence of counsel who
16. When defendants were sued as partners,
were to aid plaintiff's attorneys.— Flannery
and a witness calied by them · testitied that
V. James et al., 557.
he was a member of the firm, Held, A
24. It is not irregular for the court to adjourn
proper case for an order made on the trial
directing plaintiff to make the witness a
the hearing of an unfinished cause and call
party defendant.-Kearney v. Thompson et
up another case and proceed to dispose of
25. The terms to be imposed upon granting a
17. A new trial of an action for the recovery
favor are within the discretion of the court
of the possession of goods, in which a judg-
when the application is made and the exer-
ment was rendered for plaintiffs for the rea-
cise of such discretion will not be inter-
son that the person from whom defendants
fered with unless there was an abuse of the
purchased said goods, and who was the
discretion or it was mistakenly exercised.
agent of plaintiffs, was not authorized to
sell them, will not be ordered on the
ground of newly discovered evidence which
As to practice on appeal, see APPEAL, 4, 6,
consists of the testimony of such agent on 8, 11, 15–17.
the question of his authority, such agent
not having been examined upon that point As to practice in contempt proceedings, see
upon the trial on account of his hav. CORPORATIONS, 13.