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Digest.

MARRIED WOMAN.

purpose of evading the probibi.

tion contained in such decree, 1. Where the complaint alleged that went to the state of New Jersey

the defendants executed a bond and were there married, intending to the plaintiff for $7,500, guaran- to and in fact returning soon thereteeing the payment of all indebted- after to this state, where the deness that might be incurred by one fendant was at the time a domiH. L. Wilcox to the plaintiff, and ciled resident, and where the that defendant F. in said bond ex- plaintiff also resided. At the time pressly charged her separate estate this action (which was brought to with the payment; then set out declare the marriage void) was bebreaches of the bond and de- gun, the defendant was, and now manded judgment. F., the def- is, a British subject and a resident endant, set up by answer “that at of Canada, the summons being the time of the making of said served by publication. The debond she was, and still is, a mar- fendant appears and answers, but ried woman, and has had no sepa- in his answer denies the jurisdicrate estate and has carried on no tion of the court in the premises: separate trade or business: "

Held, that it is an open quesHeld, that the complaint should tion whether legislation upon the be dismissed as to defendant F. subject since the adjudications If she had no separate estate at holding such marriage to be void, the time of the execution of the has given such a legislative interbond, she was not competent to pretation to the old statute, that a enter into the contract which the prohibition against a subsequent bond contains. (Wilson Sering marriage was intended only as a Machine Company agt. Fuller, ante, punishment of the offending party.' 480.)

Held, also, that if the marriage

of the parties was illegal, the plain2. A married woman cannot give tiff is not in position to ask to be

herself a legal capacity to contract relieved from its bond. The facts by falsely representing that she as stated, being fully borne out by has such capacity. (Id.)

the proofs, render it extremely

improper for the courts to afford 3. In an action to foreclose a mort- the plaintiff any relief. The law

gage upon real property, the wife does not interfere between those of the owner of the equity of re- who are equally in the wrong. demption may, under section 450 (Id.) of the Code of Civil Procedure, appear and defend, by her own at- 3. The case of Marshall agt. Marshall torney, as though she were single. (2 Hun, 238) criticised and not (Janinski agt. Heidelbery, 21 Hun, followed. (Id.) 439.)

.

4. The right of a defendant in a diMARRIAGE.

vorce suit, the judgment in which

probibited him from marrying 1. In 1875, judgment of divorce was again, to make application under

obtained in this court against the section 49 of the Laws of 1879, for defendant by his wife Ellen for his a modification of such judgment, adultery, and by the terms of the is saved by the repealing act of judgment the defendant was pro- 1880; and section 1761 of the Code hibited from marrying again until of Civil Procedure, containing the Ellen should be actually dead. disqualification upon re-marriage (Kerrison agt. Kerrison, ante, 51.) never became operative law, ex

cept as modified by said repeal2. In 1875, Ellen being still living, ing act. (Peck agt. Peck, ante,

the parties to this action, for the 206.)

"

Digest.

5. Where a person from whom a 3. Appeal from an order of, grant

former wife obtained a decree of ing a new trial, to the common divorce in this state, in which de- pleas — the stipulation required cree he was forbidden to marry by chapter 545 of 1874 must be again during her lifetime, goes to given upon it - power of the another state for the purpose of appellate court when the stipulaevading the law, and there, the tion is not given. (See People exc first wife being still alive, con- rel. Salke agt. Talcott, 21 Hun, tracts a second marriage, immedi. 591.) ately thereafter returns to this state:

4. The provision of the act of 1874, Held, that although it be true in reference to the marine court that such marriage is to be judged of the city of New York (sec. 9, by the lex loci contractus, the pre- chap. 545, Laws of 1874), which liminary question of the capability requires that a notice of appeal of the party to contract a second from an order of the general term marriage is presented when such of said marine court to the court party appeals to a tribunal of this of common pleas, reversing a state, and that capability is to be judgment and granting a determined by the law, not of trial, shall “contain an assent, on Pennsylvania but of New York; the part of the appellant, that if and as by the laws of the latter the order be affirmed, judgment state he was absolutely forbidden absolute shall be entered against to contract it, such second mar- him,” etc., was not repealed or riage was void (see Kerrison agt. abrogated by the provision of the Kerrison, ante, 21). (Thorp agt. act of 1875 (chap. 479, Laws of Thorp, ante, 295.)

1875), in reference to said marine court, which regulates appeals from the general terms thereof.

(Gordon agt. Hartman, 79 N. Y., MARINE COURT.

221.)

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1. An attendant of the marine court 6. Where the common pleas affirms

of the city of New York holds an the order appealed from, and “office” within the meaning of gives judgment absolute on the that term, as used in section 3 of stipulation against the appellant, chapter 382 of 1870, prohibiting the judgment is final; and no apany increase in the salaries “of peal therefrom lies to this court. persons then in office, or their (Id.) successors. (Moser agt. Mayor, 21 Hun, 163.)

MASTER AND SERVANT. 2. Where, upon the trial of an ac

tion brought by one claiming to 1. Damages in an action for wronghave been appointed an attendant ful discharge from employment upon the marine court, under a are recoverable up to the time of particular act, to recover the trial (Limiting Toles agt. Hazen, salary attached to such office, his 57 Horo. Pr., 516). (Everson agt. attention is specifically called to Poroers, ante, 166.) the fact that he has failed to prove an appointment thereunder, he cannot, upon the hearing of an

MORTGAGE. appeal taken by the defendant, from a judgment rendered against | 1. The mortgage in suit, which conit, introduce documentary evi- tains no covenant to pay taxes, dence to prove that in fact he was was executed by defendant Doellappointed thereundor. (Id.) ner in 1872. He sold the premises The attorney who appeared on Rule 63, must be denied. (Jackson return of the attachment made afagt. Reon, ante, 103.)

Digest.

in 1873, to defendant Guggen- 767); if it disallows a pertinent heimer, who assumed payment of question, it affects a substantial the mortgage. In 1874, Guggen- right; and is therefore appealable heimer sold the property subject (Code, secs. 1347, 1348). (U line agt. to the mortgage. The judgment N. Y. O. and H. R. R. R. Co., 79 of foreclosure permitted the pur- N. Y., 175.) chaser to retain out of the purchase money the amount of all 2. An appeal does not lie from an taxes and assessments which, at

order annexing an improper questhe time of the sale, were a lien

tion to a commission; it affects on the premises, and $578 were

no substantial right, as the party deducted to discharge taxes due

may raise the objection on trial upon the premises for 1877 and

(Code, sec. 911). (Id.) 1878:

Held, that a motion by Guggen- 3. Under the Code of Civil Procedheimer to deduct the $578 from

ure, (sec. 1338), where an order of the judgment against him for

general term, reversing a judg. deficiency, comes too late after

ment entered upon the report of a sale under the decree; and that

referee, does not state that it was at any rate Guggenheimer was

made on questions of fact, it will liable for the deficiency after de- be deemed to have been made on ducting such taxes from the purchaser's bid. (Fleishhauer agt.

questions of law only: (Weyer agt.

Beach, 79 N. Y., 409.) Doellner, ante, 438.)

4. An order punishing for contempt, See PRINCIPAL AND AGENT.

in violating an injunction, can only Rich agt. Smith et al., ante, 13, 157.

be reviewed, upon the merits or for alleged legal error, on appeal

from the order. (Watrous agt. MORTGAGE FORECLOSURE.

Kearney, 79 N. Y., 496.) 1. Where, in a foreclosure suit, a 5. It is within the discretion of the motion was made by plaintiff for

court whether to open or vacate judgment based upon an affidavit

the order on motion, and the exerof regularity under Rule 63, where

cise of this discretion cannot be all the parties were in default ex

reviewed here. (ld.) cept an infant who had appeared and interposed an answer:

6. An order punishing defendants Held, that as the third defense

for contempt was granted by decontained in the answer of the fault. On motion to vacate the infant by his guardian ad litem

order, it was alleged in the more raises a material issue, namely,

ing papers that the attorneys who the amount unpaid on the mort

appeared for the defendants in the gage held by the plaintiff, the motion being based solely upon

proceedings had no authority.

fidavit that he was authorized;

the defendants were also personSee PARTIES.

ally present; the same attorney Hebron Society agt. Schoen, ante,

appeared before the referee, to 185.

whom it was referred to take

proofs. Notice of motion for final MOTIONS AND ORDERS. order was served on, and service

admitted by, attorneys who had 1. The decision of a judge in settling appeared for defendants in the

interrogatories to be attached to a action, and who had also admitted commission is an order (Code, sec. service of the referee's report

Digest.

Held, that as the attorneys thus two successive days. The referee undertook to represent defend- upon the first day informed the ants, the mere allegation of want attorney for the parties that the of authority so to do did not case would not be proceeded with invalidate the order. (Id.)

that day, but would be the next.

He was advised by defendant's at7. The provision of the Code of Civil torney that he could not attend the

Procedure (sec. 1342), in reference next day; he did not appear, and to appeals to the supreme court the case was proceeded with on the from orders of a county court,

second day. Several witnesses confines the appellate jurisdiction being examined for plaintiff with. to orders in actions originating in out any one appearing for defend. the county court. (Andreros agt. ant. A motion was made on beLong, 79 N. Y., 573.)

half of defendants at special term

to strike out the evidence so given, 8. Accordingly, held, that an order which was denied. A similar

of county court, dismissing an ap- motion was thereafter made before peal from a judgment of a justice the referee upon a subsequent of the peace, was not appealable hearing: to the supreme court. (ld.)

Held, that the motion was prop

erly denied. (Comins agt. Hetfield, 9. A supplemental complaint should 80 N. Y., 261.)

not be allowed upon an ex parte application. (Fleischmann agt. 13. Also, held, that the claim of a Bennet, 79 N. Y., 579.)

mistrial because of the proceeding

of the referee without an adjourn10. Notwithstanding the mandatory

ment was a question of irregulanguage of the Code of Civil Pro- larity disposed of on the motion, cedure (sec. 544), it is the duty of

and not reviewable on appeal from the court, upon the application, the judgment. (Id.) to consider all the circumstances, and to grant or refuse it, as may 14. Also, held, that an order of special be just and proper in the particu- term denying a motion to set aside lar case; such application, there- the referee's report and the judgfore, should be upon notice, so ment thereon, and to vacate the that both parties may be heard. order of reference because of ir(Id.)

regularity in the proceedings be

fore the referee, was not review11. Where an order of special term, able here; that it was a matter

vacating an assessment for a local addressed to the discretion of that improvement, is reversed by the court. (Id.) general term on the ground that the assessment should be reduced, 15. Where feigned issues in an acnot vacated, and the case is remit

tion are tried by a jury, and the ted to the special term, that the

judge presiding at the trial neither assessment may be modified in

entertains a motion for a new trial conformity with the principles laid

nor directs exceptions taken at down by the general term, the the trial to be heard at the general order of general term is not a final term, a motion for a new trial can order; and so is not reviewable

only be made under the Code of here. (In re Pet. Auchmuty, 79 Civil Procedure (sec. 1003) at the N. Y., 622.)

special term, where the motion

for final judgment is made, and 12. After plaintiff had been partially before such judgment. (Chapin

examined as a witness on trial be- agt. Thompson, 80 N. Y., 275.) fore a referee, the hearing was adjourned, and was set down for I 16. The provision of said Code (sec. Digest.

1005) providing for a motion for a was not the attorney of record of new trial after judgment, has ref- defendant, and who had not been erence to a new trial of the action substituted in place of the orig. itself, not to a new trial upon the inal attorney: The application was feigned issues which may have denied with leave to renew: been awarded therein. (Id.)

Held, that as it was at least very uncertain what were the facts, and

whether a case was made out NEGLIGENCE.

within the statute (2 R. 8., 309,

secs. 36, 37, as amended by chap. 485, 1. A parent is not liable for the Laws of 1862), and as the moving trespasses or negligence of an in

parties had not availed themselves fant child. (Schlossberg agt. Lahr,

of the permission given to supply ante, 450.)

the defects, the order should be
affirmed. (Sacia agt. O Connor, 79

N. Y., 260.)
NEW TRIAL.'

5. This court can only review judg

ments and grant new trials for 1. A motion for a new trial on the

errors of law, and such errors ground of surprise cannot be made

must be pointed out by exceptions upon the minutes of the justice

taken at a proper time. (Standard before whom the action was tried.

Oil Co. agt. Amazon Ins. Co., 79 (Argall agt. Jacobs, 21 Hun, 114.)

N. Y., 506.) 2. Appeal to the common pleas from

an order of the marine court 6. Where, therefore, it is alleged granting a new trial — the stipula

that a verdict is perverse, excestion required by chapter 545 of

sive in amount, and contrary to 1874, must be given upon it

the law and the evidence, the power of the appellate court when

judgment entered thereon cannot the stipulation is not given. (See

be reviewed here without an exPeople ex rel. Salke agt. Talcott,

ception. (Id.) 21 Hun, 591.)

7. This rule has not been changed 3. Code of Civil Procedure, section by the provision of the Code of

999 — upon what grounds a mo- Civil Procedure (sec. 999), in refertion for a new trial on the minutes ence to the granting of a new trial of the judge may be made. (See by the judge presiding at the trial. Robson agt. New York Central, &c., (řa.) R. R. Co., 21 Hun, 387.)

8. For such errors, it seems, the gen4. An application for a new trial, erad term has power to grant &

under the statute, in an action of new trial in its discretion, although ejectment, was made on behalf no exceptions were taken on the of defendant and one L., who trial. (Id.) claimed to have derived his interest from B., who, it was alleged. 9. Where feigned issues in an acwas the landlord under whom de- tion are tried by a jury, and the fendant was in possession. The judge presiding at the trial neither right of L. was expressly contro- entertains a motion for a new trial verted by the opposing affidavits, nor directs exceptions taken at the and it was also shown that when trial to be heard at the general the action was ready for trial de- term, a motion for a new trial can fendant withdrew his answer, and only be made under the Code of judgment was entered by his con- Civil Procedure (sec. 1003) at the sent in open court. The applica- special term, where the motion for tion was made by an attorney who final judgment is made, and be

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