Walkenshaw agt. Perzel. defendant, and served a notice on the defendant's attorneys that so much of the first motion as sought to make the executors and guardian parties, was thereby withdrawn. IRA D. WARREN, for motion. J. L. JERNEGAN, opposed. JONES, J. It is settled in this court that a notice of motion cannot be withdrawn or countermanded, without payment of the costs of the motion. I see no reason for departing from this practice. The case, however, does not fall within such principle. The motion as originally noticed, was 1st. For leave to add parties defendant. 2d. For an injunction and receiver. These two motions are distinct. The first part of the original motion has been withdrawn, leaving the matter as to the second part still pending. This can be done without payment of costs of motion. It is undoubtedly true, that new parties cannot be added to the action without amending the summons, and equally true that the summons cannot be amended of course, under section 172; but leave of the court to amend it must be obtained under section 173. The defendant in opposing this motion, calls to his aid the above principles, and insists that leave to amend the summons cannot be given on this motion, because that relief is not specifically asked for by the notice. I think he is mistaken. The plaintiff can obtain leave to amend the summons under the general prayer "for such other order or relief as the court shall see fit to grant." (Martin agt. Kanouse, 2 Abb. P. R. 390; Hecker agt. Mitchell, 5 Id. 453.) But further, plaintiffs' order to show cause is "why the executors of Hermann A. Schlucher and the guardian of his infant children, should not be made parties to this action ?" This is the principal relief asked for; the amendment of the summons and complaint is but the mere incident to the relief asked for. Such amendment is but the formal way of bringing the new parties, after leave to bring them in is granted. Walkenshaw agt. Perzel. When a party asks leave of the court to bring in new parties, he necessarily includes in that request a further request for leave to make such amendment, and take such steps as shall be requisite to bring into court such new parties. It is urged that when new parties are added, the complaint, if its allegations do not already show a cause of action against them, must be amended so as to show such cause of action; and if amended, then the amended complaint must be served upon parties already in, and such parties must have the usual time to answer. It is also urged that the new parties must be brought in either by service of the amended summons or voluntary appearance; and that, therefore, either issue must be joined as to such new parties or their default taken, before the case is in a position to be brought to trial as to the parties already in. All this is very true. Provision may be made in the order allowing new parties to be brought in to meet the various matters, or the order may simply allow them to be brought in, and the necessary amendments to be made to the summons and complaint, leaving the plaintiff to thereafter conduct his proceedings regularly at his own peril. I am unable to perceive how, in any aspect of the case, the guardian of the infants is either a necessary or proper party. I therefore cannot grant leave to add him as a party. Motion granted, so far as to give plaintiff leave to add parties defendant the executors of A. Shclucher, and to make the necessary amendments to the summons and complaint for that purpose. No costs of motion. The order to be settled on one day's notice. McMahon agt. Allen. COURT OF APPEALS. DENNIS MCMAHON, assignee of CHARLES T. HARRISON, plaintiff and appellant agt. THOMAS E. ALLEN, defendant and respondent. 1. Where facts are found by a referee in his report, on which judgment in conformity with the report is entered, in case the judgment is reversed at general term and new trial granted, but the findings are not interfered with by the general term in their decision, on an appeal to the court of appeals from such order granting a new trial, the latter court are not at liberty under section 272 of the Code to weigh the evidence, and to determine whether or not they should have reached the same conclusion as the referee. 2. Where a transfer of property real and personal, is obtained fraudulently and inequitably, by false representations made by the transferee to the transfererby abuse of a fiduciary relationship-by practice on a reckless and improvident sailor-and where the transferer makes a subsequent conveyance of his property and causes of action to the plaintiff for the benefit of his creditors, by a voluntary assignment; such voluntary assignee may maintain in his own name a bill to set aside the first conveyance, as having been fraudulently and inequitably obtained. 3. The decision of the general term in New York, in this case (34 Barb. p. 56), on that point overruled. And the late case of Dickinson agt. Burrell (Law Rep. Equity Series, 1866, part 3, March, p. 337), approved of as a well considered case. 4. The case of Prosser agt. Edmonds (1 Young & Coll. Eq. Rep. 481), and Nicoll agt. The New York and Erie Railroad Co. 2 Kern. 121), explained and commented on. 5. The cases of Livingston agt. Peru Iron Co. (9 Wend. 511), and Yates agt. Williamson (1 Law Rep. Eq. Series, p. 528), approved of. 6. A person standing in a fiduciary relation to an heir or person entitled to property, cannot enter into any treaty for the purchase of that estate, without communicating to him every particle of information that he himself possessed with respect to its value. On appeal from the First Judicial District. THIS is an appeal from a decision of the general term of the first district, reversing a judgment entered on a report of the late William Kent, referee. The plaintiff, as assignee of Charles T. Harrison, for the general benefit of creditors, commenced a suit to set aside a conveyance to the defendant by said Harrison, of the latter's interest, derived under his mother's will, and to recover possession of the property, on the ground that it was obtained by fraud. The referee decided that the conveyance was obtained by McMahon agt. Allen. the defendant by fraud practiced by him on the said Harrison, to whom he stood in a fiduciary relation, and to whom he was indebted at the time of obtaining the conveyance, and who was a mariner in a distressed and needy condition, with reckless and improvident habits; and that the conveyance was therefore void, and should be set aside. The referee found certain facts, and arrived at the conclusions of law set forth in the opinion of this court. The general term reversed the judgment on a pure question of law, viz: that the assignment to the plaintiff by Charles T. Harrison, did not vest the plaintiff with the right to bring the action in his own name. The plaintiff below appealed from that reversal, under and pursuant to subdivision 2, of section 11 of the Code, and gave the stipulation therein provided. The decision of the general term is reported in 34 Barb. Rep., p. 561. This case has been before the supreme court several times on questions of practice. (See McMahon agt. Allen, 7 Abb. Pr. R. p. 1; 12 Id. p. 275; 14 Id. p. 220; 22 How. Pr. R. p. 193.) DENNIS MCMAHON, in person. I. The assignment to the plaintiff below was in form sufficient to convey to him any right which Charles T. Harrison could legally assign to avoid his prior conveyance to the plaintiff below. (a) It was general on its face, of all the property real and personal, and rights of property real and personal, and contained all the apt words required by law to pass real estate, viz: "grant, bargain, sell and assign," and was sealed, delivered and acknowledged. (McKee agt. Judd, 2 Kern. p. 622; Waldron agt. Willard, 17 N. Y. R. 466, S. P.) (b) It directed the assignee in the first place to collect in, sue for and recover, the said property of said Charles T. Harrison. The general term in their opinion, concede that the assign McMahon agt. Allen. ment in form would convey to the plaintiff the right of Charles T. Harrison, if it were assignable. II. Irrespective of the power to assign a right to impeach the prior conveyance, the assignment was a conveyance of the property of the assignor to the present appellant, as grantee or owner of the property, the plaintiff has a right to sustain this action. The objection to the assignment operating as a conveyance of the house in Houston street (which was the principal part of the property assigned), were— (a) That it was an assignment of interest in lands, void by the statutes, relative to champerty and maintenance (2 R. S. 691, O. P. § 6). (b) That it was a conveyance of lands held adversely, and, therefore, void by the statute (1 R. S. O. P. 739, § 147). (a) As to the first objection: the general term below quote with approbation the rule that rights of entry are not assignable; a brief reference to that rule and its reasons, and the decisions thereupon, will establish that this ground of objection is untenable in this case. (See Coke on Lit. 214 [§ b], $347.) "Here Littleton reciteth one of the maxims of the common law, and the reason hereof is for avoiding of maintenance, suppression of right and stirring up of suits; and, therefore, nothing in action entree or re-entree can be granted over, for so under color thereof, pretended titles might be granted to great men, whereby right might be trodden down, and the weak oppressed, which the common law forbiddeth, as men to grant before they be in possession." Nevertheless, Coke makes various diversities to this rule. The statute of 32 Henry VIII (chap. 34); 2 Revised Statutes, 505 ($30), however, extended the right of re-entry to assignees, grantees, &c., of the reversion, in cases of leases and of particular estates, as against the lessee, his heirs and assigns. And our statute of 1805, still further extended the assignability of leasehold estates, but now by our statute (1 R. S. 725, § 35), expectant estates are descendible, devisable and alienable, in the same manner as estates in possession. This rule of not assigning the right of re-entry, has been abroga |