Digest. law only. (Weyer et al. agt. Beach, 79 N. Y., 409.) 76. Sections 1340, 1342-When an action must be brought in a court of record, to render an order therein appealable to the general term. (See Fish agt. Thrasher, 21 Hun, 15.) 77. Section 1342-An appeal will not lie to the general term of the supreme court from an order of the county court made in an action commenced in a justice's court, and brought into the county court by appeal. (Roberts agt. Marson, 21 Hun, 363.) 78. Section 1342- The provision of this section of the Code of Civil Procedure, in reference to appeals to the supreme court from orders of a county court, confines the appellate jurisdiction to orders in actions originating in the county court. Accordingly, held, that an order of county court, dismissing an appeal from a judgment of a justice of the peace, was not appealable to the supreme court. (Andrews agt. Long, 79 N. Y., 573.) 79. Section 1736 of the Code of Civil Procedure, continuing an action of replevin, notwithstanding the death of either party, in favor of or against his executors or administrators, applies only to actions in which the sole defendant was living on September 1, 1880, and is not retroactive. (Burnham et al. agt. Brennan, ante, 310.) 80. Section 1761-The right of a defendant in a divorce suit, the judgment in which prohibited him from marrying again, to make application under section 49 of the Laws of 1879, for a modification of such judgment, is saved by the repealing act of 1880; and this section of the Code of Civil Procedure, containing the disqualification upon re-marriage never became operative law, except as modified by said repealing act. (Peck agt. Peck, ante, 206.) 81. Sections 1781, 1782, 1808, 1810The attorney-general, in behalf of the people of the state, may maintain an action "against one or more trustees, directors, managers or other officers of a corporation to procure a judgment * * compelling the defendants to account for their official conduct in the management and disposition of the funds and property committed to their charge," and "compelling them to pay the corporation which they represent, or its creditors, any money, and the value of any property which they have acquired to themselves, or transferred to others, or lost or wasted, by a violation of their duties," and "suspending a defendant from exercising his office when it appears that he has abused his trust' (Code of Civil Procedure, sections 1781, 1782). By section 1808 of the Code of Civil Procedure the attorney-general "must bring an action" for the purposes just enumerated, “if, in his opinion, the public interests require that an action should be brought;" and by section 1810, in an action brought for the objects specified, by the attorney-general, the court has power to appoint a receiver of the property of the corporation. When the president of a railroad company makes a contract with himself for the construction of a railway; when he obtains all the securities, stock and bonds under the pretense of paying the nominal contractor; when as chief engineer he makes to himself as contractor certificates of work done, and then as president pays himself many hundred thousand dollars in advance of what the nominal contractor was entitled to receive under the contract for construction, ample cause is shown for the appointment of a receiver, and the command of the statute to the attorney-general that he "must Digest. bring an action," becomes imperative. Although it is true that, under section 1782 of the Code of Civil Procedure, a creditor of the corporation, or a trustee, director, manager or other officer of the corporation could bring an action, not to suspend or remove a direc tor, but to recover for the corporation the assets and property which its officers had wasted, it is: Held, that an action which had been so brought by K., one of the directors and one of the defendants herein, in which P., one of the defendants herein was made receiver, is no bar to the action brought by the state through its attorney-general as required by section 1808 of the Code. (The People agt. Bruff, ante, 1.) 82. Sections 2125, 2126-Writ of certiorari-within what time an application therefor must be made. (See People ex rel. Smith agt. Cooper, 22 Hun, 515.) 83. Sections 2234, 2235, 2245, 2247— In proceedings for forcible entry and detainer under title 2 of chapter 17 of the Code of Civil Procedure, the main question for determination is whether the party charged entered by force upon one, having previously a peaceable possession, under claim of right, and whether the person whose possession was invaded has been held out by force. These provisions do not cast upon the magistrate the burden of examining and determining conflicting titles to real estate. (Kelly agt. Sheehy et al., ante, 430.) 84. Section 2264-By the provisions of this section of the Code of Civil Procedure a receiver cannot be appointed before an order or warrant, to be examined, is served upon the judgment debtor, without ten days' notice to the judgment debtor, unless he cannot, after due diligence, be found in the state. (Morgan agt. Von Kohnstamm, ante, 161.) 85. Section 3307-Under subdivision 4 of this section of the Code of Civil Procedure the sheriff is entitled to three term fees after that Code took effect, although he had previously received three term fees. (Little et al. agt. Coyle et al., ante, 76.) 86. Section 3232-It is proper to allow costs on the decision of a demurrer, though an issue of fact is left to be determined upon a trial. (Adams agt. Ward, ante, 288.) 87. Section 3267-Items for copies of documents cannot be allowed without an affidavit that it or they were actually and necessarily used or obtained for use. (Id.) 88. Section 3268-Before the additional chapters of the Code of Civil Procedure went into operation (i. e., September 1, 1880) it was necessary for a plaintiff residing in another county bringing an action in this court to file security for costs, but the Code, as amend ed has changed the law on this subject. An order made on the 13th day of April, 1880, directing a plaintiff, who was a resident of Brooklyn, to file security for costs, held to be correct as the law then was. (Wiley agt. Arnoux, ante, 137.) 89. Section 3271-A plaintiff suing executors will, under this section of the Code of Civil Procedure, be required to give security for costs where it is made to appear by affidavit that he is pecuniarily irresponsible and unable for that reason to pay costs, although the action is concededly brought in good faith. (Murphy agt. Travers, ante, 301.) Digest. COMMISSION (TO TAKE TES- 1. It seems, that while a judge, in settling interrogatories to be annexed to a commission to take testimony, is required to allow "any question pertinent to the issue" (Code of Civil Procedure, sec. 892), he has authority to disallow questions not pertinent, and hence to determine whether a question is pertinent or not. (Uline agt. N. Y. C. and H. R. R. R. Co., 79 N. Y., 175.) 2. The power to exclude questions, 3. The judge in such case has not 4. The decision of the judge in set- 5. As to whether the party has a remedy in such case by mandamus to compel the allowance of the question, quære. (Id.) 6. An appeal does not lie from an order annexing an improper question to a commission; it affects no substantial right, as the party may raise the objection on trial (Code, sec. 911). (Id.) · 7. In an action to recover damages for injuries alleged to have resulted from defendant's negligence, a release was set up as a defense; this the plaintiff claimed was a forgery. A commission was issued, on behalf of defendant, to take the testimony of the person COMPLAINT. In an action against a ministerial officer for executing a process valid upon its face, issued out of a court having jurisdiction of the action and of the parties, a general allegation that the process was unlawful and void can have no greater force than a previous recital of the facts, which shows that it was authorized and valid, and a demurrer to such pleading in a complaint must be sustained. (Clark agt. Bowe, ante, 98.) 2. Where the complaint was founded upon the alleged false and malicious statement that he, plaintiff, adulterated sugar, that he cheated the government, and that, being guilty of cheating the government, he swore that he did not do so: Held, that these three charges are neither singly nor collectively actionable per se, but may become actionable by reason of surrounding circumstances to be pleaded and proved, from which the fair inference can be drawn that the words used were spoken and understood in such a way as to presumptively work an injury. Held, further, that where these surrounding circumstances are not set forth, the meaning of the Digest. words cannot be enlarged by pleading an innuendo, for the office of an innuendo is by a reference to a preceding matter, to fix more precisely the meaning. (Havemeyer agt. Fuller, ante, 316.) 3. It may help to explain, but it cannot enlarge the meaning of words, unless it be connected with some matter of fact expressly averred. It cannot be used to establish a new charge, for it is not the nature of an innuend to beget an action. (Id.) 4. As an innuendo cannot perform the office of a colloquium, showing by extrinsic matter that the words charged are actionable cannot be supplied by an innuendo attributing to those words a meaning which render them actionable. (Id.) 5. Where the special damage is the foundation of the cause of action, it is a material allegation and must be fully and accurately stated. (Id.) 6. Where, as in this case, the complaint on its face shows that the only manner in which the plaintiff is engaged in business is as a member of a business firm, the name of the firm not being given nor the interest of the plaintiff. For all that appears, plaintiff's name may not appear in that firm name. It sufficiently appears, however, that the loss complained of is not a loss directly to the plaintiff, but to the firm: Held, that even if it be conceded, as a general proposition, that in case of slander against a member of a partnership individually, he is the proper party plaintiff, even though the firm be also injured by the speaking of the words, it is nevertheless necessary, especially where the words become actionable only by reason of their influence in plaintiff's calling, that the injury to plaintiff's inter est should be specially averred. (Id.) 7. A plaintiff who brings an action for slander, by which he lost his customers in trade, ought in his declaration to state the names of those customers, in order that the defendant may be enabled to meet the charge if it be false. The general allegation of the loss of customers is not sufficient to enable the plaintiff to show a particular injury. (Id.) 8. Where a complaint contains a statement of the facts necessary to constitute two distinct causes of action, the failure of the plaintiff to separately state and number them, cannot be urged as a ground for a nonsuit at the trial; if there be any doubt as to which cause of action the plaintiff intends to rely upon, the remedy of the defendant is by a motion to make the complaint more definite and certain. (Commercial Bank agt. Pfeiffer, 22 Hun, 327.) Digest. cannot be enforced. (Solinger agt. Earle, ante, 116.) 2. But if a negotiable note be given by a friend of the insolvent, not related to him by blood, the friend is a mere volunteer; and if the friend's note be transferred by the payee to an innocent holder, to whom the friend is obliged to-pay it, he cannot, under such circumstances, recover back the money paid. (Id.) COMPTROLLER OF STATE. ing for the length of the term of office of supervisors in four counties of the state, is a local bill within the meaning of section 18 of article 3 of the constitution, and is therefore void. (People ex rel. Hassell agt. Hoffman, ante, 324.) 3. Chapter 253 of the Laws of 1878 held unconstitutional. (Id.) See RAILROADS. 1. The relator, an appraiser duly appointed by the superintendent of the insurance department, hav- 1. ing presented an itemized bill for services as such appraiser, which bill was approved by said superintendent, the duties of the comptroller of the state, under the acts of 1873 and 1879 requiring him then to audit such bill were confined to an examination for the purpose of seeing whether the preliminary steps required by law had all been taken; and he had no power arbitrarily, and on his own sense of right and justice, either to increase, decrease or reject the bill altogether, because the charges as made did not meet his approval. (Matter of Murphy, ante, 258.) CONSTITUTIONAL LAW. 1. Chapter 604, Laws of 1874, entitled "An act to provide for the surveying, laying out and monumenting of certain portions of the city and county of New York, and to provide means therefor," is not unconstitutional for the reason that being a local act the subject of opening streets is not expressed in its title as required by section 16 of article 3 of the constitution. (Matter of One Hundred and Thirty-eighth street, ante, 290.) 2. An act of the legislature, providVOL. LX 71 2. 3. The People agt. Long Island Railroad Company, ante, 395. CONTEMPT. Where an order was made by a county judge declaring a judg ment debtor in contempt, the order being made on the return of an order to show cause, the same having been duly served on the debtor, but without his presence and without the appearance of anyone in his behalf: Held, that it being taken against the debtor by default it was competent for him to move to set it aside for irregularity. The moving party was bound to make a case for the granting of the order on the merits, at least, the same as if the debtor had appeared and objected to the proceeding; and if he failed to make his case the debtor might and should move to set the order aside rather than to appeal. (Tinkey agt. Langdon, ante, 180.) Can an appeal be taken from an order obtained by default for nonappearance? Quære. (Id.) Although a county judge may, under section 298 of the Code of Procedure, appoint a receiver in supplementary proceedings, it seems doubtful whether he is authorized by law to order a conveyance by the debtor of his property to a receiver or to direct its delivery and possession to that officer. (Id.) |