ALIMONY. son, had pursuant to the provisions of the Revised Statutes (2 Rev. Stat., 88, §§ 36, 37), by filing the stipulation and entering a rule to refer, is to be deemed an action, with the usual incidents thereof. Supreme Ct., 1860, Munson a. Howell, Ante, 77. 4. Action,-suit;-meaning of, discussed and distinguished. People a. Colborne, 20 How. Pr., 378. ADVERSE POSSESSION. In an action of ejectment, the plaintiff's remedy is barred by proof that the defendant has held the land in dispute in adverse possession, claiming title in himself, for over twenty years, although the defendant is an alien. There is nothing in our statutes to prevent aliens from occupying lands adversely to the titles of citizens. The owner of real estate can grant land to an alien so that the title will be good, except as against the State; and by his negligence he may permit him to acquire a title equally good as against himself. Supreme Ct., 1860, Overing a. Russell, 32 Barb., 263. AFFIDAVIT. ARREST; ATTACHMENT; MOTION; SERVICE (AND PROOF OF). AFFIRMATIVE RELIEF. 1. In an action to set aside an assignment for a fraudulent provision, the assignment cannot be reformed, in respect to such provision, upon the answers of the defendants, by way of affirmative relief; unless all the creditors of the assignors, provided for in the assignment, joint and individual, are parties to the action. Buffalo Superior Ct., Sp. T., 1859, Smith a. Howard, 20 How. Pr., 151. 2. The provision of section 274 of the Code,—that the judgment "may grant to the defendant any affirmative relief to which he may be entitled," does not apply to cases in which a complete determination of the controversy presented by the answer, and upon which the relief is demanded, cannot be had without the presence of other parties, who can only be properly brought in by the defendant by his cross-action. In such cases the defendant is not "entitled" to affirmative relief. Ib. REFORMATION OF CONTRACT. ALIMONY. 1. It seems, that the proper mode of reviewing a referee's report, fixing the amount of alimony, is on exceptions, without making a case. AMENDMENT. [Rule 32.] N. Y. Superior Ct., Sp. T., 1859, Forrest a. Forrest, 5 Bosw., 672. 2. The allowance of alimony pending suit may be increased, if necessary and proper. Ib. 3. The amount fixed by the referee, his report being excepted to, is not to be the rule for alimony pending the review of such report. Ib. 4. In determining the amount of alimony, the husband's estate is to be presumed to yield a reasonable income, unless the contrary be shown, with a sufficient reason for its unproductiveness. Ib. 5. That the reduction of the husband's estate by gifts cannot be allowed to diminish the wife's alimony. Ib. AMENDMENT. 1. Leave to amend, given by the court, should be deemed leave to amend in the present stage of the action, and does not preclude a right to amend of course, which may arise in a future stage of the action. Supreme Ct., Sp. T., 1860, Ross a. Dinsmore, Ante, 4. 2. Where new parties are brought in by amendment of the complaint, the summons must be amended accordingly. Supreme Ct., 1861, Follower a. Laughlin, Ante, 105. 3. The power to amend a pleading of course, after the adverse party has answered it, is a valuable right, which should not be cut off by mere implication. Supreme Ct., Sp. T., 1860, Ross a. Dinsmore, Ante, 4. 4. The fact that the plaintiff, after service of his summons, delayed for two years to serve a complaint, is not a fatal objection to his application for leave to amend his summons. Supreme Ct., 1860, McElwain a. Corning, Ante, 16. 5. But defendants should not be allowed to be prejudiced by such delay; and where they, being sued as administrators, had paid over the greater part of the moneys of the estate, supposing the claim barred by the statute, plaintiff was required, as a condition of leave to amend, to stipulate not to collect in the action more than remained in their hands. Ib. 6. The plaintiff upon whom an amended answer is served, is not at liberty to disregard it merely because he deems it inconsistent with the original answer, or considers that it sets up a new defence. Supreme Ct., Chambers, 1861, Spencer a. Tooker, Ante, 353. 7. On a judgment and execution against Freeman Hildreth, the property of Truman Hildreth was sold. Held, that although the latter might be the person intended, the sale was unauthorized, and absolutely void. It did not devest Truman APPEAL. Hildreth of his title, nor convey any title to the purchaser; and an order of the court made ex parte, subsequent to the sale, amending the judgment-record by substituting the name of Truman wherever the name of Freeman appeared, did not confirm his title. The court cannot thus, by order, summarily devest one person of his title, and, in effect, transfer it to another. Supreme Ct., 1860, Farnham a. Hildreth, 32 Barb., 277. 8. So long as a judgment is subject to an appeal, the court may correct or modify it in its discretion. Ct. of Appeals, 1861, N. Y. Ice Co. a. Northwestern Ins. Co., Ante, 414 SPECIFIC PERFORMANCE; SUMMONS. ANSWER. 1. Where in an original answer there is no express admission of a certain fact, but only an implied admission arising from silence, inserting the omitted denial by the service of an amended answer is not necessarily inconsistent. Supreme Ct., Chambers, 1861, Spencer a. Tooker, Ante, 353. 2. A denial of the full amount claimed, and admission of a certain amount to be due, and a tender of that amount, all properly go to constitute one defence. Ib. 3. Where, in an action for malicious prosecution and false imprisonment, the complaint alleged want of probable cause, and the answer in one paragraph denied this with other allegations, and, as a subsequent defence, alleged that the defendant had probable cause;—Held, that the latter should be stricken out on motion as redundant. N. Y. Superior Ct., Sp. T., 1861, Rost a. Harris, Ante, 446. AMENDMENT; PLEADING. APPEAL. 1. An appeal may be brought by the people of this State or any State officer or board of State officers, from any judgment or order against them in any court, without undertaking or security; and such appeals now pending, or hereafter brought, operate as a stay of proceedings. Laws of 1861, 661, ch. 288; amending Laws of 1858, ch. 37, § 2. 2. A judgment entered by the clerk upon the coming in of a verdict, is to be deemed as entered upon the direction of a single judge, within the meaning of section 348 of the Code, allowing appeals to the general term from the report of referees or the direction of a single judge. Supreme Ct., 1860, Morrison a. N. Y. & New Haven R. R. Co., 32 Barb., 568. APPEAL. 3. Such an appeal brings up the law of the case as presented by exceptions taken at the trial. To present a question of fact upon the evidence, or the right of an unsuccessful party to a new trial for the reason that the verdict is against evidence, or upon the ground of surprise or newly-discovered evidence or the like, a motion must be made at special term, and from the order made thereon, an appeal may be taken to the general term. Ib. 4. When a question of law only is raised at the circuit, which is decided by the justice there presiding, and disposes of the whole case, and the justice directs the verdict, and judgment is entered thereon, an appeal from such judgment may be immediately taken. No motion for a new trial is necessary. Supreme Ct., 1860, Morange a. Morris, Ante, 164. 5. Where an appeal is taken from a judgment, together with an appeal from an order denying new trial, the fact that the party had no right to move for a new trial, does not preclude his appeal from the judg ment. Supreme Ct., 1861, Jackson a. Fassitt, Ante, 281. 6. An order made on the application of the comptroller of the city of New York, under the act of 1859, to open a judgment against the Corporation, is an order made on summary application after judgment, and affecting a substantial right, and therefore an appeal will lie from it, under subdivision 5 of section 349 of the Code. N. Y. Com. Pl., 1861, Joyce a. Mayor, &c., of N. Y., Ante, 309. 7. The costs on an order made on such an application are within the discretion of the judge, and the court will not, on appeal, review the ⚫ decision of the judge in that respect. Ib. 8. An order made on the application of bail for leave to surrender their principal after the time allowed by law, is in the discretion of the court, and is not appealable. Supreme Ct., 1860, Bank of Geneva a. Reynolds, Ante, 81. 9. The granting or refusing of a motion to require the receiver of an insolvent corporation to give security for costs, is purely a matter of discretion. The order of the special term upon such a motion is not appealable. Ct. of Appeals, 1860, Briggs a. Vandenburgh, 22 N. Y. (8 Smith), 467. 10. An order made at special term allowing a pleading to be amended in furtherance of the justice of the case, is not appealable, even though such amendment may require a modification of the judgment rendered. Ct. of Appeals, 1861, N. Y. Ice Co. a. North Western Ins. Co., Ante, 414. 11. But where the general term has entertained an appeal from and reversed such order, the Court of Appeals has no power to entertain an appeal from the decision of the general term. Ib. APPEAL. 12. An appeal directly from an order of a county judge vacating an order of arrest granted by him, to the general term of the Supreme Court,-sustained. Supreme Ct., 1861, Lancaster a. Boorman, 20 How. Pr., 421. 13. A motion to amend a pleading, if within the jurisdiction of the referee to grant, is addressed to his discretion, and from his decision no appeal will lie. The denial of such a motion is not the subject of an exception. Supreme Ct., 1860, Woodruff a. Harson, 32 Barb., 557. 14. Although a motion to stay plaintiff's proceedings in an action until costs of a former action be paid, is addressed to the discretion of the court, if such motion is denied upon a point of law which involves a substantial right not founded on discretion or a mere matter of practice,-e. g., on the idea that the judgment for costs is void,—the order is appealable. Supreme Ct., 1860, McMahon a. Mutual Benefit Life Ins. Co., Ante, 28. 15. On reversing such an order, the appellate court should not determine the application, but leave the appellant to renew it to the court below. Ib. 16. An order refusing leave to amend, is appealable if the leave was refused, not in the exercise of discretion, but on the ground of want of power. Supreme Ct., 1860, McElwain a. Corning, Ante, 16. 17. An appeal does not lie from an order of reference made in a proceeding upon mandamus. An order of reference, even if it settles all the material questions, is not appealable. Supreme Ct., 1861, People a. Haws, Ante, 204. 18. An order of the general term for affirmance, on default, founded on the service of a notice of argument upon the attorney of the appellant, long after the death of the appellant, and after his attorney had been notified thereof, is irregular. Supreme Ct., 1860, Warren a. Eddy, 32 Barb., 664. 19. If his personal representative is a non-resident, the action cannot be revived in his name. But the respondent, after receiving notice of the appellant's death, and that the foreign administrator intends to abandon the appeal, can have an administrator appointed here, and apply to have the action revived in his name. Ib. 20. In an action of an equitable nature, the referee to whom the cause was referred reported that the parties were joint-tenants in the purchase of two lots of land, and that one party had advanced more than the other towards its purchase, and stated an account between the parties, made a decree for partition, and for the appointment of commissioners to make such partition. Held, that no appeal could be |