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Digest.

jurisdiction of the case either to quash the writ upon cause shown, to remand the case to the oyer and terminer, or to proceed to its disposition as in other cases pend

ing before it. (Id.) 8. Accordingly, held, that an order

of the supreme court refusing to quash such a writ was not review

able here. (Id.) 9. Costs of appeal in proceedings

by common-law certiorari are not allowable, whether the proceedings come here upon appeal from a judgment or from an order superseding the writ. (People ex rel. Smith agt. Village of Nelliston, 79 N. Y., 638.)

had delivered to plaintiff small quantities of butter and eggs at different times to be credited upon the account:

Held, that the action was“ upon a mutual, open and current account, where there have been reciprocal demands between the parties," within the meaning of the provisions of this section of the Code of Procedure, which declares that in such case the cause of action shall be deemed to have accrued from the time of the last item proved; and that as the last item was within six years the claim was not barred. (Green agt. Disbrou, 79 N. Y., 1.)

CODE OF PROCEDURE. 1. Section 71 - An action will lie

on a judgment of the United States circuit court, though it has been docketed, without first having obtained leave of the court.

(See Goodyear Dental Vulcanite Co. agt. Frisselle, 22 Hun, 174.)

2. Section 92—Under the provision

of this section of the Code of Procedure limiting the time for bringing an action to recover a penalty to three years, where an action is brought against a trustee of a manufacturing corporation, to charge him with a debt because of failure of the corporation to file an annual report, more than three years after January twentieth of the year when the alleged failure occurred, the action is barred; as upon that day, if at all, the cause of action accrued. (Knox et al. agt. Baldwin, 80 N. Y., 610.)

4. Sections 187, 211, 277, 288 – De

fendant H., having been arrested upon an order of arrest issued in an action to recover the possession of personal property, was discharged from arrest upon giving to the sheriff an undertaking, in and by which the sureties under took that H. should * at all times render himself amenable to the process of the court, and for the payment to the plaintiffs of such sum as may, for any cause, be recovered against the defendant," instead of an undertaking for the delivery of the property to the plaintiff, if delivery be adjudged, etc., as prescribed by the Code of Procedure (sece. 187, 211). In an action upon the undertaking, held, that the final clause therein, i, e., as to payment, was to be construed in connection with the provision of said Code (sec. 277), directing the form of judgment in such an action; and that, as so construed, it was not an absolute undertaking to pay the value of the property, but only to pay on condition that no delivery can be had; but that the undertaking was void as having been taken colore officii, within the meaning of the statute (2 R. 8., 286, sec. 59), for the reason that it bound the sureties for the amenability of H. to process, an obligation which could

3. Section 95 — In an action to re

cover a balance alleged to be due upon a store account, for goods sold and delivered, where the defense was the statute of limita. tions, it appeared that defendant

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not be required from H. as a con- appearance of the defendant does dition of his relief.

not revive an attachment, invaliIt was claimed that this provis- dated by a failure to serve the ion in the undertaking should be summons within thirty days. (See rejected as surplusage, for the Blossom agt. Estes, 22 Hun, 472.) reason that an execution against the body could not issue on the 7. Section 268 -- Under the provisjudgment in the action, and so ion of this section of the Code of that no liability could arise under Procedure, in reference to makthe clause in question:

ing a case for the purposes of Held, untenable, as an execution review, in an action tried by the against the body could have been court or a referee, the ten days issued (Code, sec. 288), after a re- allowed for that purpose did not turn unsatisfied of an execution begin to run until the entry of against the property of H. (Cook judgment, and notice thereof; the et al. agt. Freudenthal, 80 N. Y., alternative stated therein, or 202.)

within such time as may be pre

scribed by the rules of the court," 5. Section 207 — The provision of

meant such further time as might the charter of the city of Buffalo

be prescribed. of 1870 (sec. 22 chap. $19, Lars of

A service, therefore, of a copy 1870), declaring that goods and

of a referee's report, and notice chattels upon lands for which

of filing, did not operate to limit taxes are assessed shall be deemed

the time to serve a case or excepto belong to the person to whom

tions. the lands are assessed, does not

Accordingly, held, that the rule apply to property belonging to

of the supreme court (rule 34 of another person in no way liable

1858, rule 47 of 1871 and 1874, for the tax which is transiently

and rule 32 of 1871), requiring a upon lands assessed, but in the case to be served within ten days possession of the owner for his

after written notice of the decisown purposes; and the collector ion, or report was in conflict with cannot lawfully, by virtue of his

the Code, and consequently inopwarrant, take such property, for

erative. (French agt. Perwers, 80 the purpose of satisfying the tax.

N. Y., 146.) Where such property is so taken, an action by the owner to recover 8. Section 292 Supplementary the possession thereof, may be proceedings cannot be instituted maintained against the collector. on a justice's judgment for less

The property in such case can- than twenty-five dollars, exclusive not properly be said to be taken of costs. (See Wolf agt. Jordan, for a tax within the meaning of 22 Hun, 108.) the provision of this section of the Code of Procedure, requiring 9. Section 304 — costs in county an affidavit for the claim and de- court when the recovery is less livery of property to show that than fifty dollars—what the plain. the property has not been taken tiff must show to entitle himself for a tax, or of the provision of to them. (See Tompkins agt. the Revised Statutes (2 R. 8., 522, Greene, 21 Hun, 257.) sec. 4), which provides that replevin shall lie for any property 10. Section 309 – The act (chap. taken by virtue of any warrant 569, Lars of 1869, as amended by for the collection of any tax,' chap. 192, Laws of 1874), in rela. etc. (L. 8. and M. $. Ry Co. agt. tion to fees of sheriffs and ref. Roach et al., 80 N. Y., 339.) erees on foreclosure sales, in the

city, and county of New York, 6. Section 227 - Attachment the was not repealed by the amend

no

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was

ment of 1876 to this section of therefor a receipt signed by H. the Code of Procedure, which In an action upon the check, limits the sum to be allowed for parol evidence was given as to fees on such a sale. The amend. the contents of the receipt, it ment simply modified the act by having been lost, which was to fixing the maximum of fees, leav- the effect that it stated that the ing the scale of charges, up to

check was received on account of this limit, as fixed by said act. the exchange of said lands, speci(Schermerhorn et al., agt. Prouty fying them, and then stated the et al., 80 N. Y., 317.)

terms, i. e., the price of each

piece of property, the amount of 11. Section 311–Upon the dismissal

mortgages to be executed, etc.; of an appeal costs cannot be taxed

it did not appear that the terms by a judge under. (See Andrews

of credit were specified. Defendagt. Long, 22 Hun, 24.)

ant thereafter refused to enter

into a written contract, as 12. Section 399 — Where a party was

agreed, and stopped payment of called as a witness by the adverse

the check: party, and was examined as to a

Held, that the burden was upon transaction with a deceased par

defendant to show a failure of ty in reference to which he would

consideration; that as it did not have been precluded from testify

appear that the terms of credit ing in his own behalf under this

were not in the receipt, as every section of the Code of Procedure:

presumption was in favor of the Held, that the witness was enti

validity of the check, this was to tled, upon cross-examination, to

be presumed; that the receipt explain his testimony, and to state

taken in connection with the the whole transaction. (Merritt

check contained the material ele. agt. Campbell, 79 N. Y., 625.)

ments of a contract, sufficient and

valid under the statute of frauds, 13. Section 399 — After the plaintiff

and enforceable in equity against had given testimony on the trial

H.; and that, therefore, there was a as to transactions with C., one of

good consideration for the check.

Plaintiff held the check as asthe defendants, but before his examination was completed, C.

signee of H., who died prior to died:

the trial: Held, that the death of C. did

Held, that defendant was incomnot authorize the striking out of

petent, under section 399 of the

Code the testimony; that this section

Procedure, to testify to of the Code of Procedure had no

the personal transactions between

him and H. application, as the disqualification

(Raubitschek agt. under that section depended en

Blank, 80 N. Y., 479.) tirely upon the facts existing when the testimony was given, not upon 15. Section 428 — The jurisdiction any change subsequently occur- and power of the courts was not ring. (Comins agt. Hetfield, 80 N. affected by the provision of this Y., 261.)

section of the Code of Procedure,

abolishing the writ of quo uar. 14. Section 399 - Defendant and H. ranto and proceedings by infor

negotiated for the exchange of mation in the nature thereof; it certain real estate; the terms were is only the form of the proceedagreed upon verbally by them; ing that was done away with. defendant was to pay &

The remedies theretofore had in agreed upon as the difference in those forms may now be obtained the values of the lands to be ex- by civil action. (People et rel. changed; he gave to H. a check Hatzel et al. agt. Hall, 80 N. Y., for $500, as a payment, receiving 117.)

sum

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16. Section 430 of the Code of Pro- vacated, because based on his

cedure expressly declares it to be refusal to pay costs: the duty of the attorney-general, Held, untenable, as it was issued

on leave granted by the supreme for " disobedience to the lawful court or a judge thereof," to bring mandate of a court” (Code of Civil. an action

• for the purpose of Procedure, sec. 14, sub. 3); and vacating the charter, or annulling that the provision of the statute the existence of a corporation, of 1847 (sec. 2, chap. 390, Laws of other than a municipal," which 1847), prohibiting imprisonment has thus conducted itself.

for contempt in not paying costs, The power conferred, and duty had no application. (Park agt. imposed, upon the attorney-gen- Park, 80 N. Y., 156.) eral by this section of the Code of Procedure has not been in any wise 2. Section 66, as amended in 1879-. impaired or affected by the act of Lien of an attorney under, for 1853, or any other statute. (The costs — superior to right of setPeople agt. Globe Mutual Life In- off. (See Ennis agt. Curry, 22 surance Company, ante, 82.)

Hun, 584.)

3. Section 66, as amended in 1879 CODE OF CIVIL PROCEDURE.

When an attorney must have

given notice of the assignment of 1. Section 14— Upon the return

a part of the recovery to him in of an attachment against defend

order to justify his moving to set ant for an alleged contempt in

aside a settlement entered into bedisobeying the provision contained tween the parties. (See Jenkins in a judgment of divorce herein,

agt. Adams, 22 Hun, 300.) which required him to pay alimony and to give security for the 4. Section 66 — The amendment to payment thereof; and upon mo- this section of the Code of Civil tion to vacate the attachment the Procedure, passed in 1879, gives court adjudged him to be in con- to the attorney of record, from tempt, and ordered him to pay a the commencement of an action fine, to give security in a specified or the service of an answer conamount for future alimony, and taining a counter-claim, a lien to stand committed until compli- upon his client's cause of action ance with the order:

or counter-claim, which attaches Held, that the whole matter was to a verdict, report, decision or before the court and it had juris- judgment in his client's favor, and diction to grant such relief.

the proceeds thereof, in whosoever The attachment was issued upon hands they may come, and cannot proof of service of copying of the be affected by any settlement bejudgment, with demand of pay- tween the parties before or after ment of the alimony in arrear, the judgment. with the costs, and the giving But no new remedy is provided security as required by the judg- for the enforcement of the lien, ment, and proof of defendant's and, in order to make it available failure to comply therewith: in the case of a settlement before

Held, that the papers served judgment, the attorney, while he were sufficient to authorize the need no longer prove fraud or issuing of the writ (Code of Civil collusion, must still go on with the Procedure, sec. 14); that the judg- litigation until judgment, which ment contained all that was neces- is to be perfected for costs only. sary to advise defendant of the na- (McCabe agt. Fogg et al., ante, 488.) ture of the claim made against him.

Defendant claimed that the 5. Section 158 —What damages may attachment should have been be recovered against a sheriff in

VOL. LX 69

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an action for an escape - when to allege that the property in fact evidence of the insolvency of the did not belong to said defendant. debtor inadmissible. (See Dunford Yet, when upon motion to compel agt. Weaver, 21 Hun, 349.)

payment of surplus such defend

ant has put himself on record, un6. Section 191 — Sureties to an un

der oath, that the property taken dertaking given on an appeal to

belonged to his wife, and that he the court of appeals — when they

had no interest therein, his right are liable for all the costs of the

to recover the alleged surplus is action. (See Burdett agt. Love, 22

not so clear that the court should Hun, 588.)

enforce it on a summary applica

tion. 7. Sections 191, 194 - Under the

Such motion does not come under provisions of these sections of the the one year limitation prescribed Code of Civil Procedure, requir

by section 385 of the Code of Civil ing a party, on appeal from an

Procedure, but under the three order granting a new trial, to

year limitation, as prescribed by stipulate for judgment against

section 383. (Frankel agt. Elias, him in case of affirmance, and ante, 74.) directing this court, in such case, to render judgment absolute upon

10. Section 419 – Where the plainthe right of the appellants; also

tiff fails to make the indorsement authorizing such proceedings in

upon the summons as required by the court below upon the remit

this section of the Code of Civil titur as are necessary. to render

Procedure, he is only entitled to the judgment effectual, the judg

fifteen dollars costs before notice ment must be absolute against

of trial. (Adams agt. Ward, ante, the appellant upon the whole mat

288.) ter and right in controversy in the action.

11. Section 420- Where the case is Where, therefore, an order, re

one where no application is necesversing a judgment in favor of sary to the court for judgment plaintiff and granting a new trial,

upon the complaint if no answer is affirmed on appeal to this court,

had been served, the plaintiff, on and judgment absolute ordered,

decision of demurrer, is only enin an action wherein the answer

titled to fifteen dollars for costs sets up a counter-claim, defendant

before notice of trial. (Id.) is entitled to such judgment upon the remittitur as the facts alleged 12. Sections 432, 1780— Where plainby him in his answer entitle him tiffs, residents of this state, have to. (Hiscock et al. agt. Harris et a cause of action against defendal. 80 N. Y., 402.)

ants, a foreign corporation, arising

upon the sale and delivery of per8. Section 375 — When the statute sonal property made by their

of limitations is no defense in brokers, a service upon the presiproceedings instituted under, to dent of such corporation while charge a joint debtor not person- passing through this state was ally served. (See Maples agt. sufficient to commence a suit, Mackey, 22 Hun, 228.)

although his presence here had no

relation whatever to the corpora9. Sections 383, 385 — Though, as a tion or to his official duties, irre

general rule, a sheriff who under spective of the question whether execution has levied upon and sold or not the corporation has property certain property as belonging to within the state, or whether the the defendant in the execution, will cause of action arose therein. not be permitted, when called (Pope agt. Terre Haute Car Manuupon to account for the proceeds, facturing Company, ante, 419.)

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