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job was to be completed - that and another for the removal of the job was completed and ac- these stacks and for injunccepted by the defendant Septem- tion against their maintenance ber 9, 1874:

and continuance, are improperly Held, that the bringing of suit joined as against the successors in was sufficient demand and plain- interest of the original defendtiffs were entitled to interest from ant's, who are made parties by a that time at least. (Case agt. supplemental complaint reviving Osborn, ante, 187.)

the action. (Equitable Life Assur

ance Society agt. Schermerhorn, 3. On the above facts found was ante, 477.)

any demand necessary to entitle the plaintiffs to interest on the 4. As the newly made parties cannot amount of the recovery from the be charged in tort, the two causes time the job was completed and of action do not affect all the paraccepted by defendant? Quære. ties to the action, as required by (Id.)

section 484 of the Code. (Id.)



Price agt. Brown, ante, 411. 1. The provision of the Code of

Civil Procedure (sec. 820) for interpleader by order is a substitute for

JOINT AND SEVERAL the old action of interpleader, and

LIABILITY. is governed by the same principles. It appeals to the equitable discre- 1. Where in an action for damages tion of the court. (Pustet et al.

alleged to arise from the breach

of agt. Flannelly, ante, 67.)

a written contract to do advertis

ing, a joint liability is charged 2. Such an application ought not to

against numerous defendants, be granted where it clearly ap

among whom are C., A. and C., pears on the face of the papers

copartners, and the latter defendthat the claim of the third party ants answer jointly, admitting is frivolous and without validity.

that they had dealings with and (Id.)

did advertising for plaintiff, but

aver that all such dealings were JOINDER.

several as to them and not joint

with the other defendants, and 1. A joint action will not lie against thereupon such copartners set up

three successive county treasurers counter-claims in their answer, to to recover damages for alleged which counter-claims plaintiff demisinvestment and mismanage- murs on the ground that all the ment of trust funds. (Firth et al, defendants in this action are sued agt. Roe, ante, 432.)

on a joint liability, that the said

counter-claims are alleged in favor 2. They are not co-trustees. Each of said defendants separately, and

is a trustee successively, and has that as between the said defend. no control over the other, and is ants and the plaintiff a separate liable for his own acts only. judgment in this action cannot be There could be no contribution had: between them. (Id.)

Held, that a demurrer to such

an answer is ill, and that defend3. A cause of action for damages ants are entitled to judgment for

for malicious trespass by the origi- the amount due under their counnal defendants for the erection ter-claims. and continuance of brick stacks, Held, also, that plaintiff's posiUnderwood agt. Sutcliffe, 21 Hun, against the defendant Griswold, 357.) the mortgagor, and against the defendant Coe, upon an independ. 6. A judgment of the United States ent guaranty executed by him. circuit court, though docketed in Coe died on January 9, 1870. On a county clerk's office, still reJanuary 20, the court directed the mains a judgment of that court, usual judgment of foreclosure and and an action can be brought sale to be entered as of January


tion would have been well taken years after his death. (Grant agt. under the former common law Griswold, 21 Hun, 509.) rule; but that the Code of Proce. dure has radically changed the 2. That even if the court had power former rule, and that now under to make the order, it erred in ex the new Code, section 1204, judg- ercising it in this case as no exment may be given for or against cuse was given for the long delay one or more defendants; that the in making the application. (Id.) ultimate rights of parties on the same side, as between themselves, 3. What must be shown to authorize may be determined, and a defend

entry of judgment by default, in ant granted any affirmative relief

a case where summons has been to which he is entitled. (Clegg

served by publication-Code Civil agt. American Newspaper Union,

Procedure, sg 135, 1217. (See ante, 498.)

Clark agt. Boreel, 21 Hun, 594.)

4. For divorce - who cannot attack JUDGMENT.

it for fraud or collusion on the

part of the parties procuring it. 1. This action was commenced in (See Ruger agt. Heckel, 21 tun, November, 1869, to foreclose a

489.) mortgage, the plaintiff praying for a judgment for any deficiency 5. Power of a court to vacate. (See that might arise upon a sale,

thereon without first obtaining 6, 1870, nunc pro tunc. This

leave from the court so to do, as is judgment contained no provision

required by section 71 of the Code charging the defendant Coe with

when an action is to be brought any deficiency.

upon a judgment recovered in a Upon a sale, had in 1877, a large

court of this state. (Goodyear deficiency arose, the premises

Dental Vulcanite Co. agt. Frisselle, being purchased by one Wm. H.

22 Hun, 174.) Grant, who was, upon the death of the original plaintiff, in 1878, | 7. Where in a proceeding under the appointed his executor. There- general lien law (chap. 402, Laws after, and on December 24, 1879, of 1854, as amended by chap. 558, he, as such executor, moved to Laws of 1869, and chap. 489, Laus amend the said judgment, nunc of 1873), to foreclose an alleged pro tunc, as of January 6, 1870, mechanic's lien, it appears that no by inserting therein a provision lien ever existed, a personal judg. charging the said Coe with any ment cannot be rendered against deficiency that might arise upon the owner of the premises upon the sale:

an independent contract between Held, that the court had no him and the claimant. (Weyer agt. power to grant the motion, as the Beach, 79 N. Y., 409.) application, though in form one for leave to amend the judgment, 8. The proceeding being statutory, was in reality one for leave to can only be resorted to in a case enter an original judgment by falling within the statute, i. e., default, against Coe, some ten where a mechanic's lien exists.


fied sum,

The power to render a personal of Civil Procedure (secs. 191, 194), judgment is merely incidental to requiring a party, on appeal from the main purpose, and where it an order granting a new trial, to appears that no lien ever existed, stipulate for judgment against him the whole proceeding falls. (Id.) in case of affirmance, and direct

ing this court, in such case, to 9. As to whether, under said act, any render judgment absolute upon

personal judgment can be ren- the right of the appellants; also dered except for a deficiency, authorizing such proceedings in quære. (Id.)

the court below upon the remit

titur as are necessary to render 10. In an action for an accounting, the judgment effectual, the judg

brought by the executors of a de- ment must be absolute against the ceased partner against the surviv- appellant upon the whole matter ing partner of a firm, a judgment and right in controversy in the was rendered directing defendant action. (Hiscock agt. Harris, 80 to pay over to a receiver a speci- N. Y., 402.)

and to turn over to him the partnership assets remaining, 13. Where, therefore, an order, reout of which the receiver was di- versing a judgment in favor of rected to

pay the plaintiffs a sum plaintiff and granting a new trial, stated, and to divide the residue; is affirmed on appeal to this court, thereupon a judgment was dock- and judgment absolute ordered, eted in favor of plaintiffs, against in an action wherein the answer defendant, for the amount the lat- sets up a counter-claim, defendant ter was required to pay; on mo- is entitled to such judgment upon tion to vacate the docket in this the remittitur as the facts alleged particular:

by him in his answer entitle him Held, that it was not authorized to. (Id.) by the judgment, and was properly vacated; that the docket, if any was authorized, should have

JURISDICTION. been in favor of the receiver; that it was not sufficient that it ap-1. The law is well settled in this peared plaintiffs would be enti

country that courts of justice in tled to as large or a larger sum

one state will, out of comity, enwhen the judgment is fully carried force the laws of another state or out; there was no personal money

country when, by such enforcejudgment between the parties, the

ment, they will not violate their money required to be paid the re

own laws or inflict injury upon ceiver was partnership money, and

some one of their own citizens. the demand of plaintiffs was to

(Roblin agt. Long, ante, 200.). be paid by the receiver from firm assets. (Geery agt. Geery, 79 N. Y., 2. This court having acquired juris565.)

diction of the person of the de

fendant, it possesses full power to 11. To justify an appellate court in enforce the judgment and decree

rendering final judgment against of the chancery court of Canada, the respondent upon reversal of a to the extent of compelling dejudgment, it is not sufficient that fendant to convey the lands menit is improbable that the defeated tioned in the complaint, though party can succeed upon a new the same are situated in the Proy. trial; it must appear that he cer- ince of Canada and without the tainly cannot. (Guernsey agt. jurisdiction of this court. (Id.) Miller, 80 N. Y., 181.)

3. Supreme court has no jurisdic12. Under the provisions of the Code tion of an action to construe a

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will, containing no trusts. (See conferring power upon the houses

Wager agt. Wager, 21 Hun, 93.) of the legislature pointed out. (Id.) 4. The jurisdiction and power of 9. A general term of the supreme the courts was not affected

by the court has power to amend its recprovision of the Code of Proced- ord, after an appeal to this court, ure (sec. 428), abolishing the writ by inserting in an order of reof quo warranto and proceedings versal that its decision was made by information in the nature upon questions of fact. (Guerntñereof; it is only the form of the sey agt. Miller, 80 N. Y., 181.) proceedings that was done away with. The remedies theretofore 10. As an action of trespass quære had in those forms may now be

clausum fregit is local in its charobtained by civil action. (People

acter, it will not lie in this state ex rel. agt. Hal, 80 N. Y., 117.) where the land is located in an5. As to whether the jurisdiction

other state. (Am. Un. Te. Co.

agt. Middleton, 80 N. Y., 408.) of the courts in those matters can be affected by legislation, quære. 11. An order of arrest was issued in (Id.)

an action to recover damages for

wrongfully and maliciously cut6. The provision of the charter of

ting down and carrying away certhe city of New York of 1873 (sec.

tain telegraph poles, with the wires 6, chap. 335, Lars of 1873), mak

and insulators attached thereto, ing the board of aldermen "the

which were located in a higlway judge of the election, returns and

in the state of New Jersey, and qualifications of its own members,

formed part of a continuous telesubject, however, to the review of

graph line in operation in that any court of competent jurisdic

state. On motion to vacate the tion," did not oust the courts of

order of arrest, held, that the orjurisdiction, or prevent them from

der was not properly granted; that originating an inquiry as to the

as the poles were affixed to the right to that office (CHURCH, Ch.

soil they were part of the realty, J., dissenting). (Id.)

and the cutting down of the same

was a trespass, the damages for 7. The provision simply creates a which could only be recovered in

cumulative jurisdiction, by the an action quere clausum fregit; exercise of which the board is for

that the cutting down and removal the time constituted a legal body charged was one continuous transand its acts are made authorita- action, which constituted but one tive, leaving to courts of compe- cause of action, which could not tent jurisdiction the right to in- be divided, and which was local; quire in behalf of the people, into also, that the objection as to juristhe right of any person who, by diction could be taken on such a action of the board, holds a place motion; as, if the order of arrest in it (CHURCH, Ch. J., dissenting). was granted without authority, (Id.)

defendant was entitled to have it

vacated, and was not bound to 8. The distinction between the oc- raise the question by answer or

casions and the effect of the use of demurrer. (Id.) these phrases in a legislative en. actment conferring power upon 12. As to whether the lapse of the the councils of municipalities or thirty days limited for service of other inferior tribunals, and their summons, after the issuing of an use in the Constitution of the attachment, ousts the court of juUnited States (art. 1, sec. 5, sub. risdiction and abates the action or 1), and of this state (art. 3, sec. 10), merely avoids the attachment,


quære. (Mojarrieta agt. Saenz, 80 and thereby avoided the policy. N. Y., 547.)

When the case was brought on

for trial, several of the jurors 13. A plaintiff after having obtained stated, on being examined by the

one attachment and order of pub- defendant's counsel, that they lication, may abandon them and should consider the fact that a take out a new attachment and man had committed suicide as order, provided this is not done some evidence of insanity; some for the purpose of vexation. (Id.) stating that they should so con

sider it in some cases, and all stat14. It does not affect the jurisdiction ing that they should require other

of the court in granting the second and additional evidence to estabattachment, that the same affida- lish it: vit was used which was used in Held, that the jurors were comobtaining the first. (Id.)

petent, and that a challenge inter

posed by the defendant's counsel 15. It seems, that it is proper thus to was properly overruled. (Haga

use the affidavit a second time, but dorn agt. Conn. Mut. Life Ins. Co., if not it is a mere matter of prac- 22 Hun, 247.) tice, a departure from which by the court does not deprive it of jurisdiction. (Id.)

JUSTICE OF SUPREME COURT. 16. It seems, also, that the omission

upon the second application to 1. Cannot act as referee — Constitucomply with this rule (25) requir- tion, article 6, section 25. (See ing that the affidavit upon an ex Countryman agt. Norton, 21 Hun, parte application shall state 17.) whether a previous application has been made, does not affect the ju

LIEN. risdiction; it is a mere irregularity, and if not regarded by the court below will not be regarded here. 1. Semble, that under section 66 of (Id.)

the Code of Civil Procedure, as

amended in 1879, the attorney for 17. When jurisdiction of court of

a defendant, in whose favor a another state will be presumed.

judgment for costs has been en(See P. P. G. Co. agt. Wheelock, 80

tered upon the dismissal of the N. Y., 278.)

complaint, acquires a lien thereon

for his compensation, which is 18. General term of supreme court

superior to the right of the plainhas no power to vacate judgment

tiff to set off a prior judgment in as to costs, which has been

his favor, whether he seek to enaffirmed by this court, at least

force such right upon a motion or when no new facts are presented.

by an action. (Ennis agt. Curry, (See Sheridan agt. Andrews (Mem.),

Hun, 584.) 80 N. Y., 648.)


McCabe agt. Fogg, ante, 488.) JUROR.

1. In this action, brought by the

MANDAMUS. plaintiff upon a policy of insurance issued by the defendant to her upon the life of her husband, 1. In what cases the writ should not one of the defenses was that the issue. (See People ex rel. Coppers husband had committed suicide, agt. Trustees, 21 Hun, 184.)

VOL. LX 76

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