Digest. Life Ins. Co. agt. Clark, 22 Hun, 506.) PLEADINGS. case; such application, therefore, should be upon notice, so that both parties may be heard. (Id.) 5. Where, upon the facts presented, the allowance of a supplemental pleading is in the discretion of the supreme court, the exercise of this discretion by the special term may be reviewed by the general term, but not by this court. (Id.) 1. The complaint in an action upon Held, that plaintiff was properly non-suited, because defendants were not sued officially as commissioners; that under the statute providing for actions upon such contracts (2 R. S., 473, sec. 92), it was necessary to specify "in the process, pleadings and proceedings their name of office;" that the statutory requirement was merely formal, but matter of substance, to the end that the amount collected might be allowed in the official account of the commissioners (2 R. S., 476, sec. 108); also as it affected the place of trial. (Boots agt. Washburn, 79 N. Y., 207.) not 2. 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.) 3. A supplemental complaint should not be allowed upon an ex parte application. (Fleischmann agt.Bennett, 79 N. Y., 579.) 4. Notwithstanding the mandatory language of the Code of Civil Procedure (sec. 544), it is the duty of the court, upon the application, to consider all the circumstances, and to grant or refuse it, as may be just and proper in the particular 7. 8. Where pleadings admit title to parties, this precludes objection that another has an interest, and should have been made a party. (See Prentice agt. Janssen, 79 N. Ÿ., 478.) Counter-claim not allowable in action for conversion. (See F. S. Instn. agt. Nat. Bk. 80 N. Y., 162.) Complaint alleged that plaintiff "is a corporation," the answer admitted this: Held, that the admission was not limited to time of answer. (See Legrand agt. M. M. Associa tion [Mem.], 80 N. Y., 638.) 9. Where action is brought to recover back moneys alleged to have been fraudulently obtained, under color of a contract with the state by means of fraudulent pretenses, and vouchers, and by collusion with state officers, on failure to prove fraud a recovery ex contractu cannot be had; also, as to ratification by legislature. (See People ex rel. agt. Denison [Mem.], 80 N. Y., 656.) POLICE. 1. The relator, a policeman, having been convicted by the police board upon a charge of receiving sums of money on several occasions from the keepers of houses of prostitution as an inducement for allowing certain privileges, was dismissed from the force: Held, that under the law of 1873, giving the board power to dismiss any member on his conviction of Digest. a legal offense or neglect of duty, or any conduct injurious to the public welfare, or immoral conduct or conduct unbecoming an officer, though the relator could have been convicted and punished for the offense, yet it was not necessary to await a conviction in a court of criminal jurisdiction before instituting the inquiry. (The People ex rel. Murphy agt. French et al., ante, 377.) 2. There being evidence to uphold the judgment of the board, and no rule of law having been violated, the judgment should not be disturbed. (Id.) PRACTICE. 3. 1. The attorney-general, in behalf 2. 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. (Id.) 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 con. tractor 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 bring an action," becomes imperative. (Id.) 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 director, 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. (Id.) 5. Where the defendant in an indictment moves to quash the indictment for irregularity, a grand jury may be examined and testify to facts showing the irregularity, if it do not arise out of misconduct by the grand jury. (The People agt. Briggs, ante, 17.) 6. If an indictment be improperly and irregularly found the defendant may, before plea, move upon Digest. affidavit to quash it for such irregularity. (Id.) 7. The moving affidavit may allege the facts constituting the alleged irregularity upon information and belief, if they should be within the knowledge of the district attorney; and if so alleged they may be sufficient to call upon him to dispute them if not correctly set forth in the moving affidavit. (Id.) 8. If an indictment be found or based wholly, or in part, upon evidence clearly incompetent and illegal it will be quashed and the defendant remanded, that his case may be passed upon by another grand jury upon competent and proper evidence. 9. Quare. Whether, if it be shown that an incompetent witness was sworn and gave testimony before the grand jury, the law does not presume that testimony to defendant's injury was given by such witness and cast the onus of showing the contrary upon the public prosecutor? (Id.) 10. Under section 2 of chapter 782 of the laws of 1876 a wife is not a competent witness against her husband, and cannot be called against him by the people without his consent. (Id.) 11. Right of defendant in an indictment to a list of the witnesses and copy of the testimony before the grand jury discussed by counsel but not determined by the court as the indictment was quashed. (Id.) 12. The plaintiff's attorney, when defendant's time to answer would have expired in. five days, gave a written stipulation extending the time to answer twenty days: Held, that the stipulation had the effect to give twenty days additional time to answer, and not fifteen days. Held, further, that where the stipulation was signed on the sixth day of April, a demurrer served on the thirtieth was in time. (Patterson et al. agt. O'Conner, ante, 141.) 13. It was entirely proper to make a motion requiring the demurrer to be received, instead of delaying until after judgment was entered, and then moving to open the judgment. (Id.) 14. The defendant's right to serve his demurrer within the twenty days' extended time, is clear and a substantial one, and the order denying its exercise is appealable. (Id.) 15. In a proceeding for the examination of a third party, a receiver cannot be appointed without notice to the judgment debtor. (Morgan agt. Von Kohnstamm, ante, 161.) 16. Where such judgment debtor is entitled to the income for life of a trust fund under a will, the executors of the trust cannot be restrained from applying the proceeds of the trust." (Id.) 17. There was no authority under the former Code for the appointment of a receiver in a proceeding for the examination of a third party, alleged to have property of, or to be indebted to the judgment debtor. A receiver could be appointed only in a proceeding instituted for the examination of a judgment debtor. (Id.) 18. By the provisions of the Code of Civil Procedure, section 2464, a receiver cannot be appointed before an order or warrant, to be examined, is served upon the judg ment debtor, without ten days' notice to the judgment debtor, unless he cannot, after due diligence, be found in the state. (Id.) 19. On a motion to set aside an or der made by a county judge ap Digest. pointing a receiver in supplementary proceedings where it ap peared that an appeal was taken to the general term of this court, which appeal is still pending: Held, that such appeal must be deemed to be a waiver of such irregularities if any there be, as are not brought up by it for review, and as to all such alleged irregularities and improper acts of the county judge as are covered by the appeal, they will be considered when the appeal shall be heard at general term. All action proper to be taken at special term, either to vacate it or correct it, should be taken before the bringing of the appeal from it to the general term. (Tinkey agt Langdon, ante, 180.) 20. Where an order was made by a county judge declaring a judgment 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 any one 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. (Id.) 21. Can an appeal be taken from an order obtained by default for nonappearance? Quære. (Id.) 22. Although a county judge may, under section 298 of the Code of Procedure, appoint a receiver in supplementary proceedings, seems doubtful whether he is authorized by law to order a conveyance by the debtor of his property it livery and possession to that officer. (Id.) 23. To punish as for a contempt for refusing to deliver property to a receiver, an order requiring such delivery is a necessary prerequisite. A simple demand of possession is not sufficient. (Id.) 24. Where the order appointing the receiver directed the debtor to assign and convey his lands and real estate, but contained no direction to the debtor to surrender its possession: Held, that he could not be held in contempt for omitting or refusing to do what had not been commanded or required of him. (Id.) 25. In contempt proceedings a fine cannot be properly imposed arbitrarily and capriciously; but it must have a basis upon proof of damages or injury. (Id.) 26. The plaintiff's intestate in his lifetime having recovered judgment by default against the defendant Lee, and then assigned said judgment to one Sunderland, and subsquently the default being opened, and upon death of plaintiff's intestate an order made reviving the action and directing Sunderland to be brought in as party defendant, and the trial having then proceeded before the referee theretofore appointed, by consent, and judgment given in favor of defendant Sunderland against his codefendant Lee: Held, that the trial having proceeded without objection until the merits of the controversy were determined, no question of irregularity can now be heard, as questions of regularity and practice should be raised by motion, and defendant's claim to a right of trial by jury not having been made before or at the trial, cannot now be listened to. (Derham agt. Lee, ante, 334.) to a receiver or to direct its de- 27. The referee did not exceed his Digest. power in giving to one defendant affirmative relief against his codefendant; sections 521 and 1204 of the Code being sufficient warrant for the decision and judgment. (Id.) 28. A copy of an account of defendant's firm as it appeared in the ledger of a foreign corporation, no objection being made for want of proper verification, was properly admitted as presumptive evidence, under sections 929, 930 and 931 of the Code, of the account of work done by the firm for the corporation. (Id.) See INSURANCE COMPANY. The People agt. Globe Mutual Life See ARREST. Jones agt. Platt, ante, 73. See INSURANCE COMPANY (LIFE.) The People agt. Globe Mutual Life Insurance Company, ante, 82. See STREET OPENINGS. Matter of One Hundred and 29. The defendant was tried and convicted of administering poison to the wife and children of one Taft, with intent to kill them. On the evening of January 26, 1879, a woman delivered at Taft's house a letter purporting to come from him, inclosing several small packages, of what purported to be medicine, but was in fact poison, and instructed her to administer the contents thereof to herself and children. The letter was delivered a few minutes before seven, of a dark evening, and the woman could only be identified by her voice, which was heard by Taft's eldest son, who opened the door, and by Taft's wife, who was in the house. Mrs. Taft having testified that she recognized the voice to be that of the accused, was asked, on her cross-examination, if she did not ask the son, when he came back into the room, who it was that brought the letter, and answered that she did. She was then asked by the prosecution, "what was said between Willie and you, about who it was that brought the medicine," and was allowed against the accused's objection and exception, to testify that Willie said it was Anna Cox, the accused: Held, that the declaration of the son to his mother was mere hearsay, and that, as there was nothing in the testimony which made his answer competent by way of qualification or explanation, the court erred in admitting it. (People agt. Cox, 21 Hun, 47.) 30. The mother of the accused was called by the defense, and gave evidence tending to show that Anna was at home at the time the letter was delivered. Having stated on cross-examination that she did not know that Anna wrote a letter on the. morning of the day the one in question was delivered, she was asked whether she did not tell certain persons named, that Anna had written a letter on the morning of that day, and replied that she did not. Subsequently, these persons were called, and allowed, against the accused's objection and exception, to testify that the mother had told them that Anna had written a letter on the morning of that day: Held, that the mother having made no reference to the writing of the letter on her direct examination, the people, by attempting to prove by her that the daughter had written one on the day in question, made her for that purpose their own witness, and could not thereafter discredit her testimony, in regard to it, by showing contradictory statements made to other persons when not under oath. The right to cross-examine a witness as to any fact for the purpose of discrediting him, by contradicting his testimony, by other |
