DIGEST

OF

ALL POINTS OF PRACTICE

EMBRACED IN

THE STANDARD NEW YORK REPORTS,

Issued during the period covered by this Volume:

Viz-23 NEW YORK (9 Smith) R.; 33 and 34 Barbour; 6 BoswORTH; 13 ABBOTTS' PR. R.; 21 and 22 HOWARD'S PR. R.; with references to the AMENDMENTS of the CODE OF PROCEDURE, Contained in the Laws of 1862.

ABATEMENT.

1. If, on the death of the party, the cause of action survives to or against some other of the parties, so that a perfect decree or judgment as to every part of the litigation can be made between the surviving parties, the suit does not abate as to the survivors. N. Y. Com. Pl., Sp. T., 1861, Lachiaise a. Libby, Ante, 6.

2. An action cannot be regarded as having abated by reason of the death

of one or more of the several parties to it, when the proper parties still remain before the court, enabling it to make a final judgment respecting the subject-matter of the controversy. Ib.

3. In order to a revivor of an action, which has abated by the plaintiff's death, there must be a privity between him and the proposed new party. If, after the plaintiff's death, an executor is appointed, who does not revive the suit, but there is a transfer of the right and subject of action, the assignee cannot revive the suit. N. Y. Superior Ct., Sp. T., 1861, Rogers a. Adriance, 22 How. Pr., 97. 4. In an action for the conversion of personal property, brought by tenants in common, if one of the plaintiffs dies pending suit, the action should be continued by the survivors, without joining the executor of the deceased plaintiff. This was the rule at common law, and it has not been repealed by the Revised Statutes nor by the Code. Supreme Ct., 1861, Bucknam a. Brett, Ante, 119.

ACCOUNTING.

5. Where pending an action of a legal nature,—e. g., for damages for a conversion,-brought against several defendants, one of them died before trial, the plaintiff obtained an order allowing the action to proceed against the survivors and the personal representatives of the deceased. Held, that this course was improper, and that it was proper to require the plaintiff at the trial to elect whether he would proceed against the survivors alone or the personal representatives alone. Supreme Ct., Sp. T., 1861, Gardner a. Walker, 22 How. Pr., 405. 6. Plaintiff having elected, in pursuance of such requirement, to proceed against the personal representatives, a judgment for costs in favor of the surviving defendants is proper, while the action proceeds against the personal representatives. Ib.

7. It seems, that the proper course would have been to sever the action, and allow plaintiff to proceed against each class of defendants separately. Ib.

8. It seems, that chapter 295 of the Laws of 1850,-giving proceedings before the surrogate,-does not supersede the necessity of proceedings in the nature of a scire facias, before an execution can be issued after the death of the judgment-debtor. Supreme Ct., Sp. T., 1861, Frink a. Morrison, Ante, 80.

9. Where, on appeal to the general term, a notice of argument was served upon the attorney for the appellant, after the death of the appellant and notice of that fact to the respondent, and the respondent took an order by default for an affirmance of the judgment;-Held, irregular. Supreme Ct., Sp. T., 1861, Warren a. Eddy, Ante, 28. 10. In such case the only proper course to obtain an affirmance of the judgment is to have an administrator appointed, and the action revived in the name of such administrator. Ib.

11. When the court may order action to be deemed abated. Code of Pro., § 121; as amended, Act of April 23, 1862.

ARREST, 2; PARTIES, 26, 27.

ACCOUNTING.

1. Though in an action for an accounting the defendant may be required to account for moneys received after the commencement of the action, yet the plaintiff is not bound to obtain such an accounting, but may make such items the subject of a new action. Especially is this the case where the defendant procured an order in the former action which substantially precluded the plaintiff from giving evidence of such items therein. Supreme Ct., 1861, Tyler a. Willis, Ante, 369.

2. In an action to compel an agent to account and pay over moneys re

ACTION.

ceived, and to deliver up securities not then collected, if an accounting be directed, it is proper to include therein, and give judgment for, any moneys received by the agent (by collection of the securities), down to the time of stating the accounts, though collected after suit brought. N. Y. Superior Ct., 1860, Crosbie a. Leary, 6 Bosw., 313.

FORECLOSURE, 1; JUDGMENT, 9, 10; REFERENCE, 2.

ACTION.

1. The defendants, who were tenants in common of a pew, mutually consented, in writing, that a new appraisal of the value of the pew should be made, and that the pew be subject to an assessment upon the amount at which it should be appraised; but the agreement contained no covenant or promise of any kind. Held, in an action to collect the assessment, that the charge and liability was several and not joint, and a joint action could not be maintained against the defendants. Supreme Ct., 1860, St. Paul's Church a. Ford, 34 Barb., 16.

2. Where an action is given by statute to certain officers to recover a penalty, with leave to any private person to bring an action in their name if they fail to do so upon notice that the penalty has been incurred, the defendants, in an action brought for such penalty, are not entitled to have the action dismissed upon the mere ground that it was brought without the authority of such officers, and without the requisite preliminary notice. Supreme Ct., 1862, Commissioners of Excise a. Purdy, Ante, 434.

3. But in a proper case security for costs may be ordered, with a stay of proceedings until it is given. Ib.

4. Upon the death of a judgment-creditor, his personal representatives may bring an action upon the judgment to obtain the same remedy which, before the Code, was had by scire facias, according to section 428 of the Code of Pro.,-which abolishes "the writ of scire facias," the writ of quo warranto, &c., and declares that "the remedies heretofore obtainable in those forms may be obtained by civil actions under the provisions of this chapter." The fact that the subsequent sections of that chapter do not contain any provision in respect to an action to revive a judgment, does not restrict the remedy by action under it to those cases alone which are specified in the special provisions found in that chapter. The phrase, "under the provisions of this chapter," is not a limitation of the natural and ordinary meaning of the words immediately preceding it. N. Y. Superior Ct., 1861, Ireland a. Litchfield, 22 How. Pr., 178.

5. An action to recover personal property may be maintained, notwith

ALIMONY.

standing the defendant has wrongfully parted with its possession before the suit was commenced. The Legislature did not intend by the Code to abridge the former action of replevin as they found it; and nothing therein prevents the present remedy, by an action to recover personal property, being as full, general, and complete as that action was under the Revised Statutes. Ct. of Appeals, 1861, Nichols a. Michael, 23 N. Y., 264.

ALIMONY.

1. The discretion conferred upon the court in respect to alimony, by 3 Rev. Stat., 5 ed., 239, § 72,-which provides that in every suit brought, either for a divorce or for a separation, the court may, in its discretion, require the husband to pay any sums necessary to enable the wife to carry on the suit during its pendency,-enables the court to require the wife, when plaintiff, to show that the action is brought in good faith, before compelling the husband to pay her money to enable her to prosecute the action. The court should do this to protect the husband against vexatious suits. The ad interim alimony and money to sustain the expenses are given, not as of strict right in the wife, but of sound judicial discretion in the court. [Bish. on Marr. and Div., 3 ed., § 581.] When the wife is plaintiff, the papers on which her motion for alimony and money, to enable her to carry on the suit, is founded, should allege facts sufficient, if proved, to entitle her to a divorce. Supreme Ct., Sp. T., 1861, Whitney a. Whitney, 22 How. Pr., 175. 2. Although the motion may be made upon affidavits, and before a copy of the complaint has been served, yet in such case the affidavits must allege, in substance, all the facts necessary to make a good complaint in the action. If the action is for adultery, and the affidavits do not show when or where the plaintiff alleges the defendant has committed adultery, such defect in the affidavits precludes the court from granting the order. Ib.

3. Where it does not appear that the laws of another State authorize the courts therein to grant a divorce to an innocent defendant, upon proof of adultery of the plaintiff, the pendency of an action in such State, against the plaintiff, for a divorce, is no obstacle to granting to the plaintiff allowances under the statute, to enable her to maintain an action for divorce brought by her in this State against her husband, who is plaintiff in the action abroad. Ib.

4. A wife's application for counsel fees and alimony, in an action against her for divorce for adultery, denied-it appearing that she abandoned her husband and child some four years previous, and was living noto

AMENDMENT.

riously with another. Supreme Ct., Sp. T., 1861, Griffin a. Griffin, 21 How. Pr., 364.

AMENDMENT.

1. On the argument and decision of a demurrer to the complaint, the court can make no order for an amendment in respect to the extent of the relief demanded in the complaint. Supreme Ct., Sp. T., 1861, Lord a. Vreeland, Ante, 195.

2. Leave to amend a pleading, for the purpose of raising a new issue, will not be granted, unless the applicant establishes, to the satisfaction of the court, that he was not aware of the facts at the time of pleading, and excuses laches in his application. Supreme Ct., Sp. T., 1861, Cocks a. Radford, Ante, 207.

3. An amendment of a complaint, adding a new claim, relates back to the commencement of the action, so as to save such claim from the Statute of Limitations, which has elapsed meanwhile. Supreme Ct., 1861, Ward a. Kalbfleish; 21 How. Pr., 283.

4. When a defendant has a right to amend his answer of course, he may amend by setting up a new and separate defence-even though such defence is of the class usually styled unconscionable. [Overruling 9 How. Pr., 140.] Supreme Ct., 1861, Macqueen a. Babcock, Ante, 268. 5. When a party is obliged to apply to the court for leave to amend his pleading, he will not be allowed to amend by setting up an unconscionable defence. Ib.

6. The fact that an amendment of the complaint defeats the Statute of Limitations as to the additional claim, or may affect defendant's remedies against third parties, forms no objection to allowing it to be made. N. Y. Superior Ct., Sp. T., 1860, Deane a. O'Brien, Ante, 11. 7. The prima-facie effect of the amendment of a pleading, is an acknowledgment of the pleader that he has been mistaken, and not that a party or pleader has wilfully or knowingly made a false statement in the pleading so amended. Supreme Ct., Sp. T, 1861, Elizabethport Manufacturing Co. a. Campbell, Ante, 86.

8. Where judgment has been entered in an action tried by the court, without the filing of any decision in writing, if there is no pretence of merits, and nothing to create suspicion that the action was not correctly decided, and upon competent and sufficient evidence, the omission to file a decision in writing should be disregarded, under section 176 of the Code, as not affecting the substantial rights of the adverse party. N. Y. Superior Ct., Chambers, 1862, Lewis a. Jones, Ante, 427.

VOL. XIII.-31