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MARRIED WOMAN.

Digest.

1. Where the complaint alleged that the defendants executed a bond to the plaintiff for $7,500, guaranteeing the payment of all indebtedness that might be incurred by one H. L. Wilcox to the plaintiff, and that defendant F. in said bond expressly charged her separate estate with the payment; then set out breaches of the bond and demanded judgment. F., the defendant, set up by answer "that at the time of the making of said bond she was, and still is, a married woman, and has had no separate estate and has carried on no separate trade or business:

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Held, that the complaint should be dismissed as to defendant F. If she had no separate estate at the time of the execution of the bond, she was not competent to enter into the contract which the bond contains. (Wilson Sewing Machine Company agt. Fuller, ante, 480.)

2. A married woman cannot give herself a legal capacity to contract by falsely representing that she has such capacity. (Id.)

3. In an action to foreclose a mortgage upon real property, the wife of the owner of the equity of redemption may, under section 450 of the Code of Civil Procedure, appear and defend, by her own attorney, as though she were single. (Janinski agt. Heidelbery, 21 Hun, 439.)

MARRIAGE.

1. In 1875, judgment of divorce was obtained in this court against the defendant by his wife Ellen for his adultery, and by the terms of the judgment the defendant was prohibited from marrying again until Ellen should be actually dead. (Kerrison agt. Kerrison, ante, 51.)

2. In 1875, Ellen being still living,

the parties to this action, for the

purpose of evading the prohibition contained in such decree, went to the state of New Jersey and were there married, intending to and in fact returning soon thereafter to this state, where the defendant was at the time a domiciled resident, and where the plaintiff also resided. At the time this action (which was brought to declare the marriage void) was begun, the defendant was, and now is, a British subject and a resident of Canada, the summons being served by publication. The defendant appears and answers, but in his answer denies the jurisdiction of the court in the premises:

Held, that it is an open question whether legislation upon the subject since the adjudications holding such marriage to be void, has given such a legislative interpretation to the old statute, that a prohibition against a subsequent marriage was intended only as a punishment of the offending party.

Held, also, that if the marriage of the parties was illegal, the plaintiff is not in position to ask to be relieved from its bond. The facts as stated, being fully borne out by the proofs, render it extremely improper for the courts to afford the plaintiff any relief. The law does not interfere between those who are equally in the wrong. (Id.)

3. The case of Marshall agt. Marshall (2 Hun, 238) criticised and not followed. (Id.)

4. The right of a defendant in a divorce suit, the judgment in which prohibited him from marrying again, to make application under section 49 of the Laws of 1879, for a modification of such judgment, is saved by the repealing act of 1880; and section 1761 of the Code of Civil Procedure, containing the disqualification upon re-marriage never became operative law, except as modified by said repealing act. (Peck agt. Peck, ante, 206.)

Digest.

5. Where a person from whom a former wife obtained a decree of divorce in this state, in which decree he was forbidden to marry again during her lifetime, goes to another state for the purpose of evading the law, and there, the first wife being still alive, contracts a second marriage, immediately thereafter returns to this state:

Held, that although it be true that such marriage is to be judged by the lex loci contractus, the preliminary question of the capability of the party to contract a second marriage is presented when such party appeals to a tribunal of this state, and that capability is to be determined by the law, not of Pennsylvania but of New York; and as by the laws of the latter state he was absolutely forbidden to contract it, such second marriage was void (see Kerrison agt. Kerrison, ante, 21). (Thorp agt. Thorp, ante, 295.)

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3. Appeal from an order of, granting a new trial, to the common pleas the stipulation required by chapter 545 of 1874 must be given upon it-power of the appellate court when the stipulation is not given. (See People ex rel. Salke agt. Talcott, 21 Hun, 591.)

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4. The provision of the act of 1874, in reference to the marine court of the city of New York (sec. 9, chap. 545, Laws of 1874), which requires that a notice of appeal from an order of the general term of said marine court to the court of common pleas, reversing a judgment and granting a new trial, shall contain an assent, on the part of the appellant, that if the order be affirmed, judgment absolute shall be entered against him," etc., was not repealed or abrogated by the provision of the act of 1875 (chap. 479, Laws of 1875), in reference to said marine court, which regulates appeals from the general terms thereof. (Gordon agt. Hartman, 79 N. Y., 221.)

5. Where the common pleas affirms the order appealed from, and gives judgment absolute on the stipulation against the appellant, the judgment is final; and no appeal therefrom lies to this court. (Id.)

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Digest.

in 1873, to defendant Guggenheimer, who assumed payment of the mortgage. In 1874, Guggenheimer sold the property subject to the mortgage. The judgment of foreclosure permitted the purchaser to retain out of the purchase money the amount of all taxes and assessments which, at the time of the sale, were a lien on the premises, and $578 were deducted to discharge taxes due upon the premises for 1877 and 1878:

2.

Held, that a motion by Guggen-3. heimer to deduct the $578 from the judgment against him for deficiency, comes too late after sale under the decree; and that at any rate Guggenheimer was liable for the deficiency after deducting such taxes from the purchaser's bid. (Fleishhauer agt. Doellner, ante, 438.)

See PRINCIPAL AND AGENT.

Rich agt. Smith et al., ante, 13, 157.

MORTGAGE FORECLOSURE.

1. Where, in a foreclosure suit, a motion was made by plaintiff for judgment based upon an affidavit of regularity under Rule 63, where all the parties were in default except an infant who had appeared and interposed an answer:

Held, that as the third defense contained in the answer of the infant by his guardian ad litem raises a material issue, namely, the amount unpaid on the mortgage held by the plaintiff, the motion being based solely upon Rule 63, must be denied. (Jackson agt. Reon, ante, 103.)

See PARTIES.

Hebron Society agt. Schoen, ante, 185.

MOTIONS AND ORDERS.

1. The decision of a judge in settling interrogatories to be attached to a commission 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). (Üline agt. N. Y. C. and H. R. R. R. Co., 79 N. Y., 175.)

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). (Ïd.)

Under the Code of Civil Procedure, (sec. 1338), where an order of general term, reversing a judgment entered upon the report of a referee, does not state that it was made on questions of fact, it will be deemed to have been made on questions of law only. (Weyer agt. Beach, 79 N. Y., 409.)

4. An order punishing for contempt, in violating an injunction, can only be reviewed, upon the merits or for alleged legal error, on appeal from the order. (Watrous agt. Kearney, 79 N. Y., 496.)

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6. An order punishing defendants for contempt was granted by default. On motion to vacate the order, it was alleged in the moving papers that the attorneys who appeared for the defendants in the proceedings had no authority. The attorney who appeared on return of the attachment made affidavit that he was authorized; the defendants were also personally present; the same attorney appeared before the referee, to whom it was referred to take proofs. Notice of motion for final order was served on, and service admitted by, attorneys who had appeared for defendants in the action, and who had also admitted service of the referee's report·

Digest.

Held, that as the attorneys thus undertook to represent defendants, the mere allegation of want of authority so to do did not invalidate the order. (Id.)

7. 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.)

8. 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. (ld.)

9. A supplemental complaint should not be allowed upon an ex parte application. (Fleischmann agt. Bennet, 79 N. Y., 579.)

10. 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 case; such application, therefore, should be upon notice, so that both parties may be heard. (Id.)

11. Where an order of special term, vacating an assessment for a local improvement, is reversed by the general term on the ground that the assessment should be reduced, not vacated, and the case is remitted to the special term, that the assessment may be modified in conformity with the principles laid down by the general term, the order of general term is not a final order; and so is not reviewable here. (In re Pet. Auchmuty, 79 N. Y., 622.)

two successive days. The referee upon the first day informed the attorney for the parties that the case would not be proceeded with that day, but would be the next. He was advised by defendant's attorney that he could not attend the next day; he did not appear, and the case was proceeded with on the second day. Several witnesses being examined for plaintiff without any one appearing for defendant. A motion was made on behalf of defendants at special term to strike out the evidence so given, which was denied. A similar motion was thereafter made before the referee upon a subsequent hearing:

Held, that the motion was properly denied. (Comins agt. Hetfield, 80 N. Y., 261.)

13. Also, held, that the claim of a mistrial because of the proceeding of the referee without an adjournment was a question of irregularity disposed of on the motion, and not reviewable on appeal from the judgment. (Id.)

14. Also, held, that an order of special term denying a motion to set aside the referee's report and the judgment thereon, and to vacate the order of reference because of irregularity in the proceedings before the referee, was not reviewable here; that it was a matter addressed to the discretion of that court. (Id.)

15. Where feigned issues in an action are tried by a jury, and the judge presiding at the trial neither entertains a motion for a new trial nor directs exceptions taken at the trial to be heard at the general term, a motion for a new trial can only be made under the Code of Civil Procedure (sec. 1003) at the special term, where the motion for final judgment is made, and before such judgment. (Chapin agt. Thompson, 80 N. Y., 275.)

12. After plaintiff had been partially examined as a witness on trial before a referee, the hearing was adjourned, and was set down for 16. The provision of said Code (sec.

Digest.

1005) providing for a motion for a new trial after judgment, has reference to a new trial of the action itself, not to a new trial upon the feigned issues which may have been awarded therein. (Id.)

NEGLIGENCE.

1. A parent is not liable for the trespasses or negligence of an infant child. (Schlossberg agt. Lahr, ante, 450.)

NEW TRIAL.

1. A motion for a new trial on the ground of surprise cannot be made upon the minutes of the justice before whom the action was tried. (Argall agt. Jacobs, 21 Hun, 114.)

was not the attorney of record of defendant, and who had not been substituted in place of the original attorney. The application was denied with leave to renew:

Held, that as it was at least very uncertain what were the facts, and whether a case was made out within the statute (2 R. S., 309, secs. 36, 37, as amended by chap. 485, Laws of 1862), and as the moving parties had not availed themselves of the permission given to supply the defects, the order should be affirmed. (Sacia agt. O'Connor, 79 N. Y., 260.)

5. This court can only review judg ments and grant new trials for errors of law, and such errors must be pointed out by exceptions taken at a proper time. (Standard Oil Co. agt. Amazon Ins. Co., 79 N. Y., 506.)

2. Appeal to the common pleas from an order of the marine court 6. granting a new trial- the stipulation required by chapter 545 of 1874, must be given upon itpower of the appellate court when the stipulation is not given. (See People ex rel. Salke agt. Talcott, 21 Hun, 591.)

3. Code of Civil Procedure, section 999-upon what grounds a motion for a new trial on the minutes of the judge may be made. (See Robson agt. New York Central, &c., R. R. Co., 21 Hun, 387.)

4. An application for a new trial, under the statute, in an action of ejectment, was made on behalf of defendant and one L., who claimed to have derived his interest from B., who, it was alleged, was the landlord under whom defendant was in possession. The right of L. was expressly controverted by the opposing affidavits, and it was also shown that when the action was ready for trial defendant withdrew his answer, and judgment was entered by his consent in open court. The application was made by an attorney who

Where, therefore, it is alleged that a verdict is perverse, excessive in amount, and contrary to the law and the evidence, the judgment entered thereon cannot be reviewed here without an exception. (Id.)

7. This rule has not been changed by the provision of the Code of Civil Procedure (sec. 999), in reference to the granting of a new trial by the judge presiding at the trial. (Id.)

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