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Digest.

not

Life Ins. Co. agt. Clark, 22 Hun, case; such application, therefore, 506.)

should be upon notice, so that

both parties may be heard. (Id.) PLEADINGS.

5. Where, upon the facts presented, 1. The complaint in an action upon

the allowance of a supplemental a contract made by commissioners

pleading is in the discretion of the of highways set forth the contract,

supreme court, the exercise of this in which the defendants were de

discretion by the special term may scribed as commissioners, and that

be reviewed by the general term, they signed it as such; they were

but not by this court. (Id.) not described in the summons and complaint as commissioners, and 6. Where pleadings admit title to judgment was asked against them

parties, this precludes objection

that another has an interest, and personally: Held, that plaintiff was properly

should have been made a party. non-suited, because defendants

(See Prentice agt. Janssen, 79 N.Y., were not sued officially as com

478.) missioners; that under the statute providing for actions upon such | 7. Counter-claim not allowable in contracts (2 R. S., 473, sec. 92), it

action for conversion. (See F. S. was necessary to specify “ in the

Instn. agt. Nat. Bk. 80 N. Y., 162.) process, pleadings and proceedings their name of office;" that the 8. Complaint alleged that plaintiff statutory requirement was

" is a corporation," the answer merely formal, but matter of sub

admitted this: stance, to the end that the amount

Held, that the admission was

not limited to time of answer. collected might be allowed in the official account of the commission

(See Legrand agt. M. Y. Associaers (2 R. S., 476, sec. 108); also as it

tion (Mem.], 80 N. Y.,

638.) affected the place of trial. (Boots agt. Wushburn, 79 N. Y., 207.)

9. Where action is brought to re

cover back moneys alleged to have 2. It seems, that the provision of the

been fraudulently obtained, under Code of Civil Procedure (sec. 974),

color of a contract with the state in reference to the mode of trial

by means of fraudulent pretenses, when defendant interposes a coun

and vouchers, and by collusion ter-claim, and demands an affirma

with state officers, on failure to tive judgment, and an issue of

prove fraud a recovery ex contractu fact is joined thereon, applies only

cannot be had; also, as to ratificawhen the counter-claim sets up

tion by legislature. (See People matter for which a separate action

ex rel. agt. Denison (Mem.), 80 N. might be maintained. (Cook agt.

Y., 656.) Jenkins, 79 N. Y., 575.)

POLICE 3. A supplemental complaint should

not be allowed upon an ex parte 1. The relator, a policeman, having application. (Fleischmann agt.Ben- been convicted by the police board nett, 79 N. Y., 579.)

upon a charge of receiving sums

of money on several occasions 4. Notwithstanding the mandatory from the keepers of houses of

language of the Code of Civil Pro- prostitution as an inducement for cedure (sec. 544), it is the duty of allowing certain privileges, was the court, upon the application, to dismissed from the force: consider all the circumstances, and Held, that under the law of 1873, to grant or refuse it, as may be giving the board power to dismiss just and proper in the particular any member on his conviction of

Digest.

a legal offense or neglect of duty, the court has power to appoint or any conduct injurious to the receiver of the property of the public welfare, or immoral con- corporation. (Id.) duct or conduct unbecoming an officer, though the relator could 3. When the president of a railroad have been convicted and punished

company makes a contract with for the offense, yet it was not himself for the construction of a necessary to await a conviction

railway; when he obtains all the in a court of criminal jurisdiction

securities, stock and bonds under before instituting the inquiry.

the pretense of paying the nominal (The People ex rel. Murphy agt.

contractor; when as chief engiFrench et al., ante, 377.)

neer he makes to himself as con

tractor certificates of work done, 2. There being evidence to uphold and then as president pays himself

the judgment of the board, and many hundred thousand dollars in no rule of law having been vio- advance of what the nominal con. lated, the judgment should not be tractor was entitled to receive disturbed.” (Id.)

under the contract for construction, ample cause is shown for the appointment of a receiver, and

the command of the statute to the PRACTICE.

attorney-general that he must

bring an action,” becomes impera1. The attorney-general, in behalf

tive. (Id.) of the people of the state, may maintain an action." against one 4. Although it is true that, under or more trustees, directors, man

section 1782 of the Code of Civil agers or other officers of a corpora

Procedure, a creditor of the cortion to procure a judgment * * *

poration, or a trustee, director, compelling the defendants to ac

manager or other officer of the count for their official conduct in

corporation could bring an action, the management and disposition

not to suspend or remove a diof the funds and property commit

rector, but to recover for the corted to their charge,” and “com

poration the assets and property pelling them to pay the corpora- which its officers had wasted, it is: tion which they represent, or its Held, that an action which had creditors, any money, and the

been so brought by K., one of the value of any property which they directors and one of the defendhave acquired to themselves, or

ants herein, in which P., one of transferred to others, or lost or

the defendants herein was made wasted, by & violation of their

receiver, is no bar to the action duties," and "suspending a de

brought by the state through its fendant from exercising his office

attorney-general as required by when it appears that he has abused

section 1808 of the Code. (Id.) his trust” (Code of Civil Procedure, sections 1781, 1782). (The People 5. Where the defendant in an inagt. Bruff, ante, 1.)

dictment moves to quash the in

dictment for irregularity, a grand 2. By section 1808 of the Code of jury may be examined and testify

Civil Procedure the attorney-gen- to facts showing the irregularity, eral “must bring an action" for if it do not arise out of misconthe purposes just enumerated, “if, duct by the grand jury. (The in his opinion, the public interests People agt. Briggs, ante, 17.) require that an action should be brought;” and by section 1810, in 6. If an indictment be improperly an action brought for the objects and irregularly found the defendspecified, by the attorney-general, ant may, before plea, move upon Digest.

affidavit to quash it for such stipulation was signed on the sixth irregularity. (ld.)

day of April, a demurrer served

on the thirtieth was in time. (Pat7. The moving affidavit may allege terson et al. agt. O'Conner, ante,

the facts constituting the alleged 141.) irregularity upon information and belief, if they should be within 13. It was entirely proper to make the knowledge of the district at

a motion requiring the demurrer torney; and if so alleged they may to be received, instead of delaying be sufficient to call upon him to

until after judgment was entered, dispute them if not correctly set and then moving to open the judg. forth in the moving affidavit. (Id.)

ment. (Id.) 8. If an indictment be found or 14. The defendant's right to serve

based wholly, or in part, upon his demurrer within the twenty evidence clearly incompetent and days' extended time, is clear and illegal it will be quashed and the

a substantial one, and the order defendant remanded, that his case

denying its exercise is appealable. may be passed upon by another

(Id.) grand jury upon competent and proper evidence.

15. In a proceeding for the examin

ation of a third party, a receiver 9. Quære. Whether, if it be shown

cannot be appointed without nothat an incompetent witness was tice to the judgment debtor. sworn and gave testimony before

(Morgan agt. Von Kohnstamm, the grand jury, the law does not

ante, 161.) presume that testimony to defendant's injury was given by such 16. Where such judgment debtor is witness and cast the onus of show

entitled to the income for life of ing the contrary upon the public

a trust fund under a will, the exprosecutor? (Id.)

ecutors of the trust cannot be

restrained from applying the pro10. Under section 2 of chapter 782 of ceeds of the trust. (Id.)

the laws of 1876 a wife is not a competent witness against her hus- 17. There was no authority under band, and cannot be called against the former Code for the appointhim by the people without his ment of a receiver in a proceeding consent. (Id.)

for the examination of a third

party, alleged to have property of, 11. Right of defendant in an indict- or to be indebted to the judgment

ment to a list of the witnesses and debtor. A receiver could be apcopy of the testimony before the pointed only in a proceeding instigrand jury discussed by counsel tuted for the examination of a but not determined by the court judgment debtor. (Id.) as the indictment was quashed. (Id.)

18. By the provisions of the Code

of Civil Procedure, section 2464, 12. The plaintiff's attorney, when a receiver cannot be appointed

defendant's time to answer would before an order or warrant, to be have expired ir. five days, gave a examined, is served upon the judg. written stipulation extending the ment debtor, without ten days' time to answer twenty days: notice to the judgment debtor,

Held, that the stipulation had unless he cannot, after due dilithe effect to give twenty days ad- gence, be found in the state. (Id.) ditional time to answer, and not fifteen days.

19. On a motion to set aside an orHeld, further, that where the der made by a county judge apDigest.

pointing a receiver in supplemen- livery and possession to that tary proceedings where it ap officer. (Id.) peared that an appeal was taken to the general term of this court, 23. To punish as for a contempt for which appeal is still pending: refusing to deliver property to a

Held, that such appeal must be receiver, an order requiring such deemed to be a waiver of such delivery is a necessary prerequiirregularities if any there be, as site. Å simple demand of possesare not brought up by it for re- sion is not sufficient. (Id.) view, and as to all such alleged irregularities and improper acts 24. Where the order appointing the of the county judge as are covered receiver directed the debtor to asby the appeal, they will be consid- sign and convey his lands and ered when the appeal shall be real estate, but contained no diheard at general term. All ac- rection to the debtor to surrender tion proper to be taken at special its possession: term, either to vacate it or correct Held, that he could not be held it, should be taken before the in contempt for omitting or refusbringing of the appeal from it to ing to do what had not been comthe general term. (Tinkey agt manded or required of him. (Id.) Langdon, ante, 180.)

25. In contempt proceedings a fine 20. Where an order was made by a cannot be properly imposed arbi

county judge declaring a judg- trarily and capriciously; but it ment debtor in contempt, the order must have a basis upon proof of being made on the return of an damages or injury. (Id.) order to show cause, the same having been duly served on the 26. The plaintiff's intestate in his debtor, but without his presence lifetime having recovered judgand without the appearance of ment by default against the deany one in his behalf:

fendant Lee, and then assigned Held, that it being taken against said judgment to one Sunderland, the debtor by default it was com- and subsquently the default being petent for him to move to set it opened, and upon death of plainaside for irregularity. The mov. tiff's intestate an order made reing party was bound to make a viving the action and directing case for the granting of the order Sunderland to be brought in as on the merits, at least, the same party defendant, and the trial as if the debtor had appeared and having then proceeded before the objected to the proceeding; and if referee theretofore appointed, by he failed to make his case the consent, and judgment given in debtor might and should move to favor of defendant Sunderland set the order aside rather than to against his codefendant Lee: appeal. (Id.)

Held, that the trial having pro

ceeded without objection until the 21. Can an appeal be taken from an merits of the controversy were de

order obtained by default for non- termined, no question of irreguappearance ? Quære. (Id.)

larity can now be heard, as ques

tions of regularity and practice 22. Although a county judge may, should be raised by motion, and

under section 298 of the Code of defendant's claim to a right of Procedure, appoint a receiver in trial by jury not having been supplementary proceedings, it made before or at the trial, cannot seems doubtful whether he is au- now be listened to. (Derham agt. thorized by law to order a convey- Lee, ante, 334.) ance by the debtor of his property to a receiver or to direct its de- / 27. The referee did not exceed his Digest.

power in giving to one defendant ask the son, when he came back affirmative relief against his code- into the room, who it was that fendant; sections 521 and 1204 of brought the letter, and answered the Code being sufficient warrant that she did. She was then asked for the decision and judgment. by the prosecution, “what was (Id.)

said between Willie and you, about

who it was that brought the medi28. A copy of an account of defend- cine,” and was allowed against ant's firm as it appeared in the

the accused's objection and exledger of a foreign corporation,

ception, to testify that Willie said no objection being made for want

it was Anna Cox, the accused: of proper verification, was prop

Held, that the declaration of the erly admitted as presumptive evi

son to his mother was mere heardence, under sections 929, 930 and say, and that, as there was nothing 931 of the Code, of the account

in the testimony which made his of work done by the firm for the

answer competent by way of corporation. (Id.)

qualification or explanation, the

court erred in admitting it. (PeoSee INSURANCE COMPANY.

ple agt. Cox, 21 Hun, 47.) The People agt. Globe Mutual Life Insurance Company, ante, 57. 30. The mother of the accused was

called by the defense, and gave See ARREST.

evidence tending to show that Jones agt. Platt, ante, 73.

Anna was at home at the time the letter was delivered.

Having See INSURANCE COMPANY (LIFE.) stated on cross-examination that

The People agt. Globe Mutual Life she did not know that Anna wrote Insurance Company, ante, 82. a letter on the morning of the

day the one in question was deSee STREET OPENINGS.

livered, she was asked whether Matter of One Hundred and she did not tell certain persons Thirty-eighth Street, ante, 290. named, that Anna had written a

letter on the morning of that day, 29. The defendant was tried and and replied that she did not.

convicted of administering poison Subsequently, these persons were to the wife and children of one called, and allowed, against the Taft, with intent to kill them. accused's objection and exception, On the evening of January 26, to testify that the mother had told 1879, a woman delivered at Taft's the that Anna had written & house a letter purporting to come letter on the morning of that day: from him, inclosing several small Held, that the mother having packages, of what purported to be made no reference to the writing medicine, but was in fact poison, of the letter on her direct examinand instructed her to administer ation, the people, by attempting the contents thereof te herself and to prove by her that the daughter children. The letter was de- had written one on the day in livered a few minutes before question, made her for that purseven, of a dark evening, and the pose their own witness, and could woman could only be identified not thereafter discredit her testiby her voice, which was heard by mony, in regard to it, by showing Taft's eldest son, who opened the contradictory statements made to door, and by Taft's wife, who was other persons when not under in the house.

oath. Mrs. Taft having testified that The right to cross-examine a she recognized the voice to be that witness as to any fact for the purof the accused, was asked, on her pose of discrediting him, by concross-examination, if she did not tradicting his testimony, by other

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