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Digest.

law only. (Weyer et al. agt. Beach, modified by said repealing act. 79 N. Y., 409.)

(Peck agt. Peck, ante, 206.) 76. Sections 1340, 1342 — When an 81. Sections 1781, 1782, 1808, 1810 action must be brought in a court

The attorney-general, in behalf of of record, to render an order

the people of the state, may maintherein appealable to the general tain an action “against one or term. (See Fish agt. Thrasher, 21 more trustees, directors, managers Hun, 15.)

or other officers of a corporation

to procure a judgment 77. Section 1342 — An appeal will

compelling the defendants to acnot lie to the general term of the

count for their official conduct in supreme court from an order of

the management and disposition the county court made in an action

of the funds and property comcommenced in a justice's court, mitted to their charge,” and “comand brought into the county court pelling them to pay the corporaby appeal. (Roberts agt. Marson, tion which they represent, or its 2i Hun, 363.)

creditors, any money, and the

value of any property which they 78. Section 1342 - The provision of

have acquired to themselves, or this section of the Code of Civil

transferred to others, or lost or Procedure, in reference to appeals

wasted, by a violation of their duto the supreme court from orders

ties,” and “suspending a defendof a county court, confines the

ant from exercising his office when appellate jurisdiction to orders in

it appears that he has abused his actions originating in the county

trust” (Code of Civil Procedure, court.

sections 1781, 1782). Accordingly, held, that an order

By section 1808 of the Code of of county court, dismissing an ap- Civil Procedure the attorney-genpeal from a judgment of a justice

eral “must bring an action" for of the peace, was not appealable

the purposes just enumerated, “if, to the supreme court. (Andrews

in his opinion, the public interests agt. Long, 79 N. Y., 573.)

require that an action should be

brought;" and by section 1810, in 79. Section 1736 of the Code of Civil an action brought for the objects

Procedure, continuing an action specified, by the attorney-general, of replevin, notwithstanding the the court has power to appoint a death of either party, in favor of receiver of the property of the or against his executors or admin- corporation. istrators, applies only to actions in When the president of a railroad which the sole defendant was liv. company makes a contract with ing on September 1, 1880, and is himself for the construction of a not retroactive. (Burnham et al. railway; when he obtains all the agt. Brennan, ante, 310.)

securities, stock and bonds under

the pretense of paying the nomi80. Section 1761 — The right of a nal contractor; when as chief en

defendant in a divorce suit, the gineer he makes to himself as conjudgment in which prohibited him tractor certificates of work done, from marrying again, to make and then as president pays himself application under section 49 of the many hundred thousand dollars in Laws of 1879, for a modification advance of what the nominal conof such judgment, is saved by the tractor was entitled to receive repealing act of 1880; and this sec- under the contract for construction of the Code of Civil Pro- tion, ample cause is shown for the cedure, containing the disquali. appointment of a receiver, and the fication upon re-marriage never command of the statute to the atbecame operative law, except as torney-general that he “must Digest.

bring an action," becomes impera- the state. (Morgan agt. Von tive.

Kohnstamm, ante, 161.)
Although it is true that, under
section 1782 of the Code of Civil
Procedure, a creditor of the cor-

85. Section 3307 — Under subdivi.

sion 4 of this section of the Code poration, or a trustee, director,

of Civil Procedure the sheriff is manager or other officer of the

entitled to three term fees after corporation could bring an action, not to suspend or remove a direc

that Code took effect, although he tor, but to recover for the corpora

had previously received three term tion the assets and property which

fees. (Little et al. agt. Coyle e al., its officers had wasted, it is:

ante, 76.) Held, that an action which had been so brought by K., one of the 86. Section 3232 — It is proper to directors and one of the defend- allow costs on the decision of a ants herein, in which P., one of demurrer, though an issue of fact the defendants herein was made is left to be determined upon a receiver, is no bar to the action trial. (Adams agt. Ward, ante, brought by the state through its at

288.) torney-general as required by section 1808 of the Code. (The People agt. Bruff, ante, 1.)

87. Section 3267 — Items for copies

of documents cannot be allowed

without an affidavit that it or they 82. Sections 2125, 2126— Writ of

were actually and necessarily used certiorari -- within what time an

or obtained for use. (Id.) application therefor must be made. (See People ex rel. Smith agt. Cooper, 22 Hun, 515.) 88. Section 3268 - Before the ad

ditional chapters of the Code of 83. Sections 2234, 2235, 2245, 2247 - Civil Procedure went into opera

In proceedings for forcible entry tion (i. e., September 1, 1880) it and detainer under title 2 of chap- was necessary for a plaintiff residter 17 of the Code of Civil Pro- ing in another county bringing an cedure, the main question for de

action in this court to file security termination is whether the party for costs, but the Code, as amend. charged entered by force upon ed has changed the law on this one, having previously a peaceable subject. possession, under claim of right,

An order made on the 13th and whether the person whose day of April, 1880, directing a possession was invaded has been plaintiff, who was a resident of held out by force.

Brooklyn, to file security for costs, These provisions do not cast

held to be correct as the law then upon the magistrate the burden of was. (Wiley agt. Arnout, ante, examining and determining con

137.) flicting titles to real estate. (Kelly agt. Sheehy et al., ante, 430.)

89. Section 3271 - A plaintiff suing

executors will, under this section 84. Section 2264 — By the provisions of the Code of Civil Procedure, be

of this section of the Code of Civil required to give security for costs Procedure a receiver cannot be where it is made to appear by appointed before an order or war- affidavit that he is pecuniarily rant, to be examined, is served irresponsible and unable for that upon the judgment debtor, with- reason to pay costs, although the out ten days' notice to the judg- action is concededly brought in ment debtor, unless he cannot, good faith. (Murphy agt. Traders, after due diligence, be found in ante, 301.)

Digest.

COMMISSION (TO TAKE TES- take the testimony of the person TIMONY).

who plaintiff alleged forged the

release, as to the alleged settle1. It seems, that while a judge, in ment. Plaintiff, after a cross-in

settling interrogatories to be an- terrogatory calling for the salary nexed to a commission to take tes- paid to the witness, proposed othtimony, is required to allow"

any. ers, asking the amount of the question pertinent to the issue witness' expenses per annum, (Code of Civil Procedure, sec. 892), whether he left the place by day he has authority to disallow ques- or night, by whom he was accomtions not pertinent, and hence to panied, and where he stopped; determine whether a question is also, as to the amount of the debts pertinent or not. (Uline agt. N. he left unpaid; whether before he Y. C. and H. R. R. R. Co., 79 left he purchases) an India shawl, N. Y., 175.)

and at what price, and whether

he borrowed money of certain per2. The power to exclude questions, sons specified. These cross-inter

however, should be sparingly ex- rogatories were disallowed: ercised. (Id.)

Held, error. (Id.) 3. The judge in such case has not the discretion which the court has

COMPLAINT. on trial as to the extent to which he will permit cross-examina- 1. In an action against a ministerial tion, for the purpose of merely officer for executing a process testing the credit of the witness,

valid upon its face, issued out of and upon matters collateral to the

a court having jurisdiction of the main issue; he must insert all per- action and of the parties, a general tinent questions. (Id.)

allegation that the process was

unlawful and void can have no 4. The decision of the judge in set

greater force than a previous retling the interrogatories is an or- cital of the facts, which shows der (Code of Civil Procedure, sec.

that it was authorized and valid, 767); if it disallows a pertinent and a demurrer to such pleading question, it affects a substantial

in a complaint must be sustained. right; and is therefore appealable

(Clark agt. Bove, ante, 99.) (Code, sec8. 1347, 1948). (Id.)

2. Where the complaint was founded 5. As to whether the party has a

upon the alleged false and maliremedy in such case by mandamus

cious statement that he, plaintiff, to compel the allowance of the

adulterated sugar, that he cheated question, quære. (Id.)

the government, and that, being

guilty of cheating the government, 6. An appeal does not lie from an he swore that he did not do so:

order annexing an improper ques- Held, that these three charges tion to a commission; it affects no are neither singly nor collectively substantial right, as the party may actionable per se, but may become raise the objection on trial (Code, actionable by reason of surroundsec. 911). (Id.)

ing circumstances to be pleaded

and proved, from which the fair 7. In an action to recover damages inference can be drawn that the

for injuries alleged to have re- words used were spoken and unsulted from defendant's negli- derstood in such a way as to pregence, a release was set up as a sumptively work an injury. defense; this the plaintiff claimed Held, further, that where these was a forgery. A commission was surrounding circumstances issued, on behalf of defendant, to not set forth, the meaning of the

are

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more

customers

words cannot be enlarged by est should be specially averred. pleading an innuendo, for the

(Id.) office of an innuendo is by a reference to a preceding matter, to fix 7. A plaintiff who brings an action

precisely the meaning. for slander, by which he lost his (Havemeyer agt. Fuller, ante, 316.) customers in trade, ought in bis

declaration to state the names of 3. It may help to explain, but it can

those customers, in order that the not enlarge the meaning of words,

defendant may be enabled to meet unless it be connected with some

the charge if it be false. The matter of fact expressly averred.

general allegation of the loss of

is not sufficient to It cannot be used to establish a new charge, for it is not the nature

enable the plaintiff to show a parof an innuendt to beget an action.

ticular injury. (Id.) (Id.)

8. Where a complaint contains &

statement of the facts necessary 4. As an innuendo cannot perform to constitute two distinct causes

the office of a colloquium, showing of action, the failure of the plainby extrinsic matter that the words

tiff to separately state and numcharged are actionable cannot be ber them, cannot be urged as a supplied by an innuendo attribut

ground for a nonsuit at the trial; ing to those words a meaning if there be any doubt as to which which render them actionable. cause of action the plaintiff in. (Id.)

tends to rely upon, the remedy of

the defendant is by a motion to 5. Where the special damage is the make the complaint more definite

foundation of the cause of action, and certain. (Commercial Bank it is a material allegation and must agt. Pfeiffer, 22 Hun, 327.) be fully and accurately stated. (Id.)

9. A complaint before a police mag.

istrate to the effect that the com6. Where, as in this case, the com:

plainant had heard and believed plaint on its face shows that the person to be a common prostitute, only manner in which the plaintiff

without stating the source of his is engaged in business is as a

information, or the grounds of his member of a business firm, the

belief, will not justify the magisname of the firm not being given

trate in proceeding with the trial nor the interest of the plaintiff.

of the person on such charge. For all that appears, plaintiff's

(People ex rel. Kingsley agt. Prutt, name may not appear in that firm

22 Hun, 300.) name. It sufficiently appears, however, that the loss complained of is not a loss directly to the COMPOSITION AGREEMENT. plaintiff, but to the firm:

Held, that even if it be conceded, 1. If a composition agreement pro as a general proposition, that in vides for a pro rata payment to case of slander against a member all the creditors of a debtor, & of a partnership individually, he secret agreement to pay one of the is the proper party plaintiff, even creditors more than his pro rata though the firm be also injured share to induce him to unite in the by the speaking of the words, it composition is a frand upon the is nevertheless necessary, especi- other creditors. It violates the ally where the words become ac- principles of equity and the mutionable only by reason of their tual confidence between creditors. influence in plaintiff's calling, A note or other security given that the injury to plaintiff's inter- under such a secret agreement

Digest.

cannot be enforced. (Solinger agt. ing for the length of the term of Earle, ante, 116.)

office of supervisors in four coun

ties of the state, is a local bill 2. But if a negotiable note be given within the meaning of section 18

by a friend of the insolvent, not of article 3 of the constitution, related to him by blood, the friend and is therefore void. (People ex is a mere volunteer; and if the rel. Hassell agt. Hoffman, ante, friend's note be transferred by the 324.) payee to an innocent holder, to whom the friend is obliged to pay 3. Chapter 253 of the Laws of 1878 it, he cannot, under such circum- held unconstitutional. (Id.) stances, recover back the money paid. (Id.)

See RAILROADS.

The People agt. Long Island Rail

road Company, ante, 395. COMPTROLLER OF STATE. 1. The relator, an appraiser duly

CONTEMPT. appointed by the superintendent of the insurance department, hav- 1. Where an order was made by a ing presented an itemized bill for

county judge declaring a judgservices as such appraiser, which

ment debtor in contempt, the order bill was approved by said super

being made on the return of an intendent, the duties of the comp- order to show cause, the same troller of the state, under the acts

having been duly served on the of 1873 and 1879 requiring him debtor, but without his presence then to audit such bill were con

and without the appearance

of fined to an examination for the

anyone in his behalf: purpose of seeing whether the pre

Held, that it being taken against liminary steps required by law

the debtor by default it was comhad all been taken; and he had no

petent for him to move to set it power arbitrarily, and on his own

aside for irregularity. The movsense of right and justice, either

ing party was bound to make a to increase, decrease or reject the

case for the granting of the order bill altogether, because the charges

on the merits, at least, the same as as made did not meet his approval.

if the debtor had appeared and (Matter of Murphy, ante, 258.)

objected to the proceeding; and if he failed to make his case the

debtor might and should move to CONSTITUTIONAL LAW. set the order aside rather than to

appeal. (Tinkey agt. Langdon, 1. Chapter 604, Laws of 1874, enti

ante, 180.) tled " An act to provide for the surveying, laying out and monu- 2. Can an appeal be taken from an menting of certain portions of the order obtained by default for noncity and county of New York, appearance? Quære. (Id.) and to provide means therefor, is not unconstitutional for the 3. Although a county judge may, reason that being a local act the under section 298 of the Code subject of opening streets is not of Procedure, appoint a receiver expressed in its title as required in supplementary proceedings, it by section 16 of article 3 of the seems doubtful whether he is auconstitution. (Matter of One Hun- thorized by law to order a condred and Thirty-eighth street, ante, veyance by the debtor of his pro290.)

perty to a receiver or to direct

its delivery and possession to that 2. An act of the legislature, provid- officer. (Id.)

Vol. LX

71

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