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Digest.

13. Section 450 - In an action to by the original defendants for the

foreclose a mortgage upon real erection and continuance of brick property, the wife of the owner stacks, and another for the removal of the equity of redemption may,

of these stacks and for injunction under this section of the Code of against their maintenance and conCivil Procedure, appear and de- tinuance, are improperly joined fend, by her own attorney, as as against the successors in interest though she were single. (Janin- of the original defendants, who ski agt. Heidelberg, 21 Hun, 439.) are made parties by a supplemental

complaint reviving the action. 14. Section 484 -- The plaintiff, as

As the newly made parties cansurviving executor of George J.

not be charged in tort, the two Price, sues defendant individu

causes of action do not affect all ally, and as sole acting executor

the parties to the action, as reof his father (who with plaintiff

quired by this section of the Code. was co-executor of said Price), for

(Equitabie Life Assurance Society an accounting and damages and

agt. Schermerhorn, ante, 477.) other relief, alleging that defendant's testator, who, as such co. / 16. Section 501 — When a counter. executor, took the exclusive con

claim is not based upon a contract trol and management of Price's

as required by, and should be estate, committed various wrong

stricken out. (See Clapp agt. ful acts, set forth, in relation

Wright, 21 Hun, 240.) thereto, imperiling it; charging misconduct in relation to said 17. Section 501 — Counter-claim estate on the part of defendant what may be pleaded as such, as since the death of his father, the being “connected with the subject books and vouchers in relation to of the action.” (See Carpenter said estate having then come into agt. Manhattan Ins. Co., 22 Hun, his possession; and setting up that 49.) the widow and children of plaintiff's testator, to whom said testa- 18. Section 514 - A denial by plaintor devised the income of his tiff in his reply, upon information estate during his children's mi. and belief, of allegations in defendnority, the principal to be then ant's answer, is insufficient where paid to them, are still living and the facts set up in the answer are

clearly within the plaintiff's Held, overruling demurrer to knowledge as appears by the averthe complaint, that an executor ments in his complaint. (Fallon not only has the right to call his agt. Durant, ante, 178.) co-executor to account in a suit in equity, but a foreign executor 19. Sections 521, 1204 — The referee may be held amenable to like did not exceed his power in giving authority to prevent either a com- to one defendant affirmative relief plete or partial failure of justice, against his codefendant; these secand to maintain and enforce a tions of the Code being sufficient trust; defendant being account- warrant for the decision and judgable for his testator's misconduct ment. (Derham agt. Lee, ante, 334.) to the extent of the latter's assets in his hands.

20. Sections 524, 526 — Under the The complaint states a sufficient Code of Civil Procedure, a party cause of action under this section has no right to interpose an unof the Code. (Price agt. Brown, qualified denial in a verified ante, 511.)

answer, unless it be founded upon

personal knowledge: and where 15. Section 484 - A cause of action he has no positive knowledge,

for damages for malicious trespass but has knowledge or information

of full age:

Digest.

sufficient to form a belief, he is 24. Section 548 — As to whether the not only permitted, but bound, at writ of ne exeat was abolished by his peril, to deny upon informa- the Code of Procedure, quere. tion and belief. (Brotherton agt. Such a writ was issued herein Downey, 21 Hun, 436.)

in March, 1869. A motion was

made in May, on the part of 21. Section 537 Since the adoption defendant, to vacate the writ and

of the Code of Civil Procedure, the order for its issue, or to reduce the plaintiff can no longer treat the amount of bail, and that a an answer as a nullity, and enter

sum deposited with the sheriff be a judgment as upon a default; his

be restored, and for general relief. only remedy in such a case is to The motion appears to have been apply to the court or a judge founded on the merits; it did not thereof, upon notice, as prescribed

appear in the notice of motion, or in this section of the said Code.

in any of the papers, that the (Decker agt. Kitchen, 21 Hun, 332.)

ground of want of power was

taken. The order made upon the 22. Section 537 — Under section 247

motion simply directed a reducof the Code of Procedure, where

tion of the bail and a return of "a demurrer, answer or reply is rivolous, the party prejudiced

the money deposited in excess of

the amount fixed; no further disthereby, upon a previous notice

position of the motion to vacate of five days, may apply to a judge

was made. An appeal was taken of the court, either in or out of

in January, 1879. On appeal to court, for judgment thereon, and

this court, held, the presumption judgment may be given accordingly.”

was that all that was presented to This practice is not changed, but remains the same

or passed upon by the special term

was the right of defendant 10 under this section of the Code of Civil Procedure.

relief upon the facts, that under

the circumstances, as the quesIn an action brought in the

tion is not distinctly presented by courts of this state to enforce the

the order appealed from, and as judgment and decrees of the courts

this section of the Code of Civil of a foreign state or country, an

Procedure has declared in terms answer denying any knowledge or

that the writ is thereby abolished, information sufficient to form a belief as to all the material allega

thus rendering the question of no tions of the complaint will be

practical importance, so far at

least as future cases are constricken out as sham where the

cerned, the court would not redefendant appeared in the original action. (Roblin agt. Long, ante,

view the many decisions of the 200.)

supreme court, prior to the New

Code, holding the writ not abol. 23. Section 544 — A supplemental

ished. (Collins agt. Collins, 80 N. complaint should not be allowed

Y., 24.) upon an ex parte application.

Notwithstanding the mandato 25. Section 549, subdivision 4, as ry language of this section of the

amended in 1879 - what must be Code of Civil Procedure, it is the

shown to authorize the issuing of duty of the court, upon the appli

an order of arrest thereunder. (See cation, to consider all the circum- Easton agt. Cassidy, 21 Hun, 459.) stances, and to grant or refuse it, as may be just and proper in the 26. Section 552 — Under this section particular case; such application, of the Code of Civil Procedure, a therefore, should be upon notice, defendant may be arrested in an so that both parties may be heard. action brought in this state upon (Fleischmann agt. Bennett, 79 N. a judgment recovered in a circuit Y., 579.)

court of the United States, pro

Digest.

vided he might have been so ar- out security being given. (See rested had the original action been Eastman agt. Starr, 22 Hun, 465.) brought here. (Baxter agt. Drake, 22 Hun, 565.)

33. Section 618– Stay of proceed

ings after entry of judgment 27. Sections 568, 769—Motion to va- when it cannot be granted with

cate an order of arrest - where it out security being given. (See must be made. (See Sutton agt. Eastman agt. Starr, 22 Hun, Sabey, 22 Hun, 557.)

465.) 28. Section 572 – A motion under 34. Sections 635, 636, 683 — Where this section of the Code of Civil

the facts set forth in the affidavits, Procedure, to discharge a defend.

upon which the attachment was ant held in actual custody under

granted, were that the defendant an order of arrest, on the ground

purchased the goods in question that the plaintiff has neglected to

August 6, 1880, on a credit of enter judgment in the action

thirty days from September 15, within one month after it was in

1880; that the goods was obtained his power so to do, need not be

by false and fraudulent representamade in the judicial district or in

tions ; stating the negotiations the county adjoining the juuicial which entered into the sale, the district in which the action was

representations alleged to have triable, but may be made to a

been made, and that such statejudge of the court in which the

ments were false; shows in what action was commenced, within

respect it is claimed they were the county where the defendant

false, and points out the indebt. is held in custody.

edness existing at the time; then The right of the defendant to a

makes a general allegation that discharge depends upon the fact of

“the defendant has assigned and his being held in actual custody,

disposed of his property with inand not upon the fact that the

tent to defraud his creditors; that plaintiff or his attorney knew that

after purchasing said goods, the he had been surrendered by his

defendant shipped about one-half bail, and was so held. (Sumnor

of them to auction houses in other agt. Osborn, 22 Hun, 13.)

cities, and sold the same at auction.

After this allegation follows a 29. Section 572 - Supersedeas general charge that the defendant,

when a defendant is not in actual on October 12, 1880, made a genecustody so as to authorize an ap- ral assignment, with preferences: plication for it. (See Watt agt. Held, that there was sufficient in Healy, 22 Hun, 491.)

the papers to justify an order of

arrest, admitting the facts in the 30. Section 572 - How far the old

affidavits to be true, but there was practice relating tos upersedeas is

not sufficient to justify the attachaffected by. (See Watt agt. Healy,

ment. 22 Hun, 491.)

Where the party made an assignment in October, the goods being

bought in August, and there being 31. Sections 603, 604 — When action is not within, so as to entitle party

preferences to creditors whom he

owed, the court cannot assume to a temporary injunction. (See from that fact that there was a Buffalo Grape Sugar Co. agt. Al- fraudulent disposition of his propborger, 22 Hun, 349.)

erty:

Held, further, that the attach. 32. Section 613 — Stay of proceed- ment must be reversed, for the

ings after entry of judgment reason that there was no connecwhen it cannot be granted with- tion between the previous acts and Digest.

the assignment to prove the assign- and logical sequence from facts ment to have been made with a proved. fraudulent intent, or to warrant It is not enough that a witness that conclusion. (Achelis et al. is willing to testify to a fact agt. Kalman, ante, 491.)

positively; he will not be allowed

to so testify, when it is plain that 35. Section 636 - The defendants

he can have no actual knowledge had in store for plaintiff a quantity

on the subject. The sources of of coffee, to be held for it, with

information must be given, so that liberty to sell, and to pay the

the tribunal called upon to act can plaintiff, out of the proceeds, the

see that the facts sought to be amount due upon bills of exchange

proved are established by legitiwhich it had discounted on the mate testimony; (Ellison agt security of the property. The de

Bernstein, ante, 145.) fendants sold the coffee, using the proceeds, which were more than 37. Sections 636-682 A purchaser, sufficient to pay the drafts, in their

from a defendant in an action, of business:

certain prope rty against which an Held, upon a motion to vacate

attachment has been issued, may, an attachment granted upon these

under section 682 of the Code of facts, that the modified wording

Civil Procedure, move to vacate of this section of the Code of Civil

the attachment. Procedure has not changed the

The attachment was properly provision of section 227 of the vacated, on the ground that the former Code in this respect, and

affidavit did not show that the that the attachment cannot be

plaintiff was entitled to recover a sustained, because it has not been

sum stated therein over and above shown that the debtors either as

all counter-claims known to him signed, disposed of, or secreted, or

(Code of Civil Procedure, sec. 636).

Where the motion to vacate the were about to assign, dispose of, or secrete their property, with the

attachment is made upon the paintent to defraud their creditors.

person which the warrant is Held, that the provision as to

granted, the plaintiff cannot put attachments differs in this respect

in additional affidavits in support from that providing for the mak

of the attachment. (Trow's Printing of an order of arrest; so that

ing and Bookbinding Company agt. a debtor is liable to arrest, but not

Hart, ante, 190.) to seizure of his property by attachment, when he may have dis- 38. Section 636 – What an affidavit posed of plaintiff's property or for an attachment must state. (See that of any other person with in- Donnell agt. Williams, 21 Hun, 216.) tent to defraud its owner. (German Bank of London agt. Dash, 39. Sections 767, 1347, 1348 — The ante, 124.)

decision of the judge in set

tling the interrogatories is an 86. Section 636-It matters not order (Code, sec. 767); if it disal.

what a person believes or dis- lows a pertinent question, it af. believes, the applicant for an at- fects a substantial right; and is tachment under subdivision 2 of therefore appealable (Code, soc. this section of the Code of Civil 1347, 1348). (U line agt. N. Y. C. Procedure, must show by proof of and H. R. R. R. Co., 79 N. Y., facts known to the witnesses who 175.) testify to them, that the belief in the intent to defraud by a dispo- 40. Sections 769, 568 — Motion to sition of the property is well vacate an order of arrest - - where founded. In other words the in- it must be made. (See Sutton agt. tent so to defraud must be a fair Sabey, 22 Hun, 557.)

Digest

was

41. Section 757 — Under this section death of grantor, as to personal

of the Code of Civil procedure, as transactions had with him. (See amended in 1879, providing that, Moyer agt. Moyer, 21 Hun, 67.) “in case of the death of a sole plaintiff or defendant, if the cause 47. Section 829 - The provision of of action survives or continues, this section of the Code of Civil the court must, upon a motion, Procedure, prohibiting a party allow or compel the action to be from testifying, in certain cases, continued, by or against his repre- to a personal transaction with a sentative or successor in interest,'' deceased person, does not extend it is the duty of the court to con- to transactions with the agents of tinue the action, if it survives such person. (Pratt agt. Elkins, or continues, without regard to 80 N. Y., 198.) whether or not the applicant has been guilty of laches in making 48. Section 829 - F., the maker of the motion. (Greene agt. Martine, the note, for whom H. signed as 21 Hun, 136.)

surety, who was a party defend

ant, but who did not answer, as a 42 Section 770 — Any application,

witness for the defense, was perexcept for a new trial upon the

mitted to testify to personal transmerits, which elsewhere must be

actions between himself and the

intestate: made in court, may, in the first judicial district, be made at any

Held, error; that the witness time to a judge out of court.

a person interested in the (Boucicault agt. Boucicault, 21

event,'

," within the meaning of this Hun, 431.)

section of the Code of Civil Pro

cedure, and was, therefore, incom43. Section 820 — The provision of

petent; also, held, that the fact this section of the Code of Civil that plaintiff subsequently testiProcedure for interpleader by

fied as to the facts sworn to by F. order is a substitute for the old ac

did not cure the error. (Church tion of interpleader, and is gov

agt. Hovoard, 79 N. Y., 415.) erned by the same principles. It appeals to the equitable discretion 49. Section 834 - The prisoner was of the court.

accused of having caused the Such an application ought not death of W., the deceased, by poito be granted where it clearly ap

A physician who was called pears on the face of the papers to see W. when sick from the that the claim of the third party poison, and who examined and is frivolous and without validity. prescribed for him, as a witness (Pustet et al. agt. Flannelly, ante, for the prosecution was asked to 67.)

state the condition in which he

found W. at that time, both from 44. Section 829 — Does not apply to his own observation and what W.

an action against an executor in- told him; this was objected to on dividually. (See Hall agt. Rich- the ground that the evidence was ardson, 22 Hun, 444.)

prohibited by the statute (Code of

Civil Procedure, sec. 834). The 45. Section 829 - What not a per- court overruled the objection, and

sonal transaction or communica- the witness stated what he learned tion within - Inferences to be from his own examination of W., drawn from ambiguous facts shall made in the presence of W.'s be left to the jury. (See Hil agt. wife and the prisoner, and from Heermans, 22 Hun, 455.)

their statements. There was noth

ing of a confidential nature in any 46. Section 829 — When testimony thing he so learned:

of grantee is inadmissible after Held, that the evidence was

son.

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