claim. (See Grathney agt. Cheatham, 21 Hun, 576.)

3. In an action by the plaintiff to recover damages for an alleged conversion of certain wood by the defendant, the latter alleged, as a counter-claim, that the wood in controversy was the product of trees grown upon certain lands upon which it had a mortgage; that the plaintiff, being a junior mortgagee in possession, and knowing that the lands were an insufficient security for the payment of the defendant's mortgage, and that the mortgagor was insolvent, wrongfully and fraudulently, and with intent to cheat and defraud the defendant, and to impair the security of its mortgage, committed waste on the said premises, by cutting the said wood, to the defendant's damage of $500:

Held, that the cause of action set up in the counter-claim was "connected with the subject of the action," and that it might be pleaded as a counter-claim, though the action was for a tort. (Carpenter agt. Manhattan Life Ins. Co., 22 Hun, 49.)

4. Quare, as to whether or not a plaintiff, by replying to a counterclaim, waives his right to insist that the matters therein set up are not the proper subject of a counter-claim. (Id.)

5. The penalty of double the usurious interest paid, given by section 5198 of the U. S. Revised Statutes, to the person paying the same or to his legal representatives, cannot be set up as a counter-claim in an action brought upon the instrument or evidence of debt, but can only be recovered in a penal action brought specially for that purpose. (Farmers' and Mechanics Nat. Bank agt. Lang, 22 Hun, 375.)

6. When sureties cannot avail themselves of counter-claims existing

7.

in favor of their principal. (See Emery agt. Baltz, 22 Hun, 434.)

It seems, that the provision of the Code of Civil Procedure (sec. 974), in reference to the mode of trial when defendant interposes a counter-claim, and demands an affirmative judgment, and an issue of fact is joined thereon, applies only when the counter-claim sets up matter for which a separate action might be maintained, (Cook agt. Jenkins, 79 N. Y., 575.)

8. In an action for a dissolution of a copartnership, and for an accounting between the partners, the answer alleged a violation on the part of plaintiff of a provision in the articles of copartnership, providing for a sale of the good will of the business to such of the partners as should bid the highest price, by his appropriating to himself the good will, and that the same was worth as an asset $200,000, which he asked to counterclaim against any sum found due the plaintiff. As a further counter-claim, the answer alleged a fraudulent misappropriation by plaintiff of partnership funds:

Held, that the matters so set up did not present a counter-claim, of a separate and distinct cause of action, within the meaning of said section; that the matters set up were proper items to be proved upon an accounting; and that defendant was not entitled to a trial by jury thereon. (Id.)

9. As to whether a separate cause of action could be maintained to recover the value of the good will, or for damages, without an equitable accounting of the copartnership affairs, quære. (Id.)

10. The defendant, in an action in a court of record, is not bound to avail himself by way of counterclaim, of an independent cause of action, existing in his favor against plaintiff. The rule in this respect was not changed by the Code.

(Brown agt. Gallaudet, 80 N. Y., 413.)

COUNTY COURT.

2. No appeal lies from an order of 2. the county court denying a motion for a new trial where the action was brought in a court not of record, and subsequently came into the county court on appeal from a judgment of the court below. (Fish agt. Thrasher, 21 Hun, 15.)

3. When an order of, is not appealable to the general term - Code of Civil Procedure, section 1342. (See Roberts agt. Marson, 21 Hun, 363.)

4. The provision of the Code of Civil Procedure (sec. 1342), 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. (Andrews agt. Long, 79 N. Y., 573.)

5. 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. (Id.)

COUNTY JUDGE.

1. 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 this property to a receiver, or to direct its delivery and possession to that officer. (Tinkey agt. Langdon, ante, 180.)

COURT OF APPEALS.

This court does not lose jurisdiction of a cause brought here upon appeal until the remittitur has been filed in the court below, and that court has taken some action thereon. (People ex rel. Smith agt. Village of Nelliston, 79 N. Y., 638.)

Accordingly, held, that the court had jurisdiction to make an er parte order correcting a remittitur, which had been filed with the clerk of the court below, but upon which no action had been taken in that court. (Id.)

CROSS-EXAMINATION.

2.

What questions are proper to be put on cross-examination. (See Clark agt. St. James Church, 21 Hun, 95.)

bearing upon the father's right to take the children from their mother. (In the Matter of Pray, ante, 194.)

DAMAGES.

1. Damages in an action for wrongful discharge from employment are recoverable up to the time of trial (Limiting Toles agt. Hazen, 57 How. Pr., 516). (Everson agt. Powers, ante, 166.)

DEDICATION.

See STREET OPENINGS. Matter of opening Sixty-seventh street, ante, 264.

DEED OF SETTLEMENT.

1. Pascal B. Smith and his wife Harriet executed a deed of settlement whereby $15,000 (the proceeds of real estate conveyed by Mr. Smith, the dower right in which the wife released, and agreed to relinquish her like interest in all other real estate which her husband owned or might thereafter acquire) was transferred to a trustee to pay the income to the wife during the joint lives of husband and wife, and, upon the death of either, to pay the income to the survivor for life; and, after the death of both, to pay the principal sum, one-half to such persons as each respectively should direct by will, or in case of either or both dying intestate, then the share of such intestate to go to his or her personal representatives:

Held, sustaining a demurrer to the complaint as not stating a cause of action, in a suit to recover 'Mr. Smith's interest, after his death, under an assignment of such interest made by him in his lifetime, that the wife's release of her claims of dower was a good consideration to sustain the trust, and that the said assignment is a breach of the deed of settlement.

1. A bill in equity to dissolve a partnership and to adjudge void certain attachments issued by creditors of the firm, is demurrable by said creditors. As to such creditors the remedy at law against their enforcing said attachments is adequate. The parties can release the attached property by a bond. They can move to vacate the attachments. They can defend on the ground that the court issuing the attachments has no jurisdiction. If such creditors sue in the wrong court, it is not the province of a court of equity to bring them in as parties to answer an allega. tion to that effect and to have their suit arrested. (Fielding agt. Lucas et al., ante, 134.)

See COMPLAINT.

2.

Clark agt. Bowe, ante, 98.

Where, in an action brought to recover damages for a failure of the defendant to perform an agree ment as to the sale of a plantation, alleged in the complaint to be situated in the state of Louisiana, the defendant, in her answer, set up as a counter-claim that the plaintiff, while in possession of " Live Oaks," "the said plantation," unnecessarily injured, wasted and damaged it to the amount of not less than $10,000, it nowhere appearing from the said answer, except by reference to the complaint,

that the plantation was situated in another state, a demurrer to the counter-claim on the ground that the court had no jurisdiction of the subject thereof as being founded upon an injury to real property situated in another state

cannot be sustained. (Cragin agt. Quitman, 22 Hun, 101.)

3. Where a demurrer interposed to the complaint, on the ground that

it does not state facts sufficient to constitute a cause of action, is sustained, and leave is given to the plaintiff to amend his complaint within twenty days, on payment of the costs, an interlocutory judgment to that effect must be entered before the time, within which the plaintiff must amend his complaint, will commence to run. (Liegeois agt. McCracken, 22 Hun, 69)

4. Nor can a final judgment dismissing the complaint, with costs, be entered, until such an interlocutory judgment has been entered. (Id.)

5. Where leave to enter the final judgment on the failure of the plaintiff to comply with the terms of the interlocutory judgment is not given by the decision, appli

cation for leave to enter it must be made as upon a motion. (Id.)

DENIAL.

1. A denial by plaintiff in his reply, upon information and belief, of allegations in defendant's answer, is insufficient where the facts set up in the answer are clearly within the plaintiff's knowledge as appears by the averments in his complaint. (Fallon agt. Durant, ante, 178.)

DEPOSITIONS.

1. It seems, that while a judge, in settling interrogatories to be an

2.

3.

nexed 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.)

The power to exclude questions, however, should be sparingly exercised. (Id.)

The judge in such case has not

the discretion which the court has on trial as to the extent to which he will permit a cross-examination, for the purpose of merely testing the credit of the witness, and upon matters collateral to the main issue; he must insert all pertinent questions. (Id.)

4. The decision of the judge in settling the interrogatories is an order (Code, sec. 767); if it disallows a pertinent question, it affects a substantial right, and is therefore appealable (Code, secs. 1347, 1348). (Id.)

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 is sued, on behalf of defendant, to take the testimony of the person who plaintiff alleged forged the release, as to the alleged settle ment. Plaintiff, after a cross-interrogatory calling for the salary

paid to the witness, proposed others, asking the amount of the witness' expenses per annum, whether he left the place by day or night, by whom he was accompanied and where he stopped; also, as to the amount of the debts he left unpaid; whether before he left he purchased an India shawl, and at what price, and whether he borrowed money of certain persons specified. These cross-interrogatories were disallowed: Held, error. (Id.)

8. Where the deposition of a party, taken before trial, is read thereon without objection, he is not thereby precluded from being examined on trial. (Misland agt. Boynton, 79 N. Y., 630.)

DISCHARGE.

DISCOVERY.

1. An order for the inspection of the books and papers of a foreign corporation should not require it to produce books, kept and in constant use in its office in a distant state, before a referee in this state, but should direct it to produce and deliver to the plaintiff sworn copies of so much of their contents as relates to the subjectmatter mentioned in the order, within a reasonable time, to be designated by the order. (Ervin agt. Oregon R. and N. Co., 22 Hun, 566.)

DISTRIBUTION.

See WILL.

Freeman agt. Smith et al., ante, 311.

See ARREST.

Matter of Benson, ante, 314.

DISCONTINUANCE OF ACTION.

1. Where plaintiff had commenced an action and obtained an order of arrest against the defendant on the ground of fraudulent representations, which order of arrest had been vacated upon the ground that the alleged fraudulent representations did not apply to the whole cause of action, on motion by plaintiffs for leave to discontinue the action:

Held, that as plaintiff's object in discontinuing is to commence a new action and obtain a new order of arrest, the order of arrest in this action having been vacated, leave to discontinue should not be granted. (Livermore agt Burdell, ante, 308.)

2. The courts are opposed to arresting a defendant twice for the same cause of action. (Id.)

DISTRICT COURTS.

1. A district court justice has no jurisdiction in summary proceedings to remove a tenant where the premises, which are the subject of controversy, are not within the district in which he was elected. (The People ex rel. Hambrecht agt. Campbell, ante, 102.)

2.

In landlord and tenant proceedings, in the district courts, though the boundaries of the several judicial districts are within the supposed judicial knowledge of the courts, the locality of the streets and avenues and their terminii, and the number of houses situated thereon, are not matters of judicial notice; and unless the tenant appears and objects, the proceedings of the justice are not void for want of jurisdiction though the premises from which such tenant was removed be not within the justice's district. (People ex rel. Gilmore agt. Callahan, ante, 872.)