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money judgment until the security required by Code of Civil Procedure, section 474, and rule 51 have been given.......80 App. Div. 53 CONDE V. ROGERS. Misjoinder of causes of action-A cause of action to foreclose a lien and one to recover for services cannot be

488

joined........74 App. Div. 147

TEW v. WOLFSOHN. Agency-Several liability subd. 6 of agent and of undisclosed principal when disclosed-Demurrer for misjoinder of de

488

fendants unauthorized.

DAVIS V. CITY OF NEW YORK. Form of a desubd. 7 murrer alleging a misjoinder of causes of

action..

......75 App. Div. 518

488

VLASTO V. VARELOPOULOS. When a pleading subd. 8 may be declared frivolous-A demurrer to a

499

500

500 subd. 2

501 subd.

1

complaint.......73 App. Div. 145 STEINBACH v. PRUDENTIAL INS. Co. Insurance -Action to reform life insurance policy and for judgment thereon-Parties defendant,

172 Ν. Υ. 471

LYTLE v. CRAWFORD. A judgment in another
action in favor of the defendant must, to con-
stitute a counterclaim, be pleaded-When it
must be set up by supplemental answer,

69 App. Div. 273

KRAUS v. AGNEW. Action for services rendered
at plaintiff's request-An answer alleging that
they were rendered at the request of a third
person presents a defense-It is not demurra-
ble-Motion to strike out such defense,

O'BRIEN v. DWYER.

80 App. Div. 1

Counterclaim-When allowed in an action of tort-Action for the conversion of money-Counterclaim of a margin deposited to secure a purchase of stock ordered but not purchased.

........76 App. Div. 516

.......

501 subd.

1

501 subd. 1

508

516

519

531

533

535

535

GALBRAITH

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υ. DAILY. Pleading-Admissions
need not be pleaded-Denial of knowledge or
information sufficient to form a belief-Deni-
als not assailable by a demurrer but only on
motion
..........37 Misc. 156

SOPER V. ST. REGIS PAPER Co. Vendor and pur-
chaser-Unless the vendee rescinds and offers
to reconvey land he must pay the purchase
price-Allegations in an answer merely incon-
sistent with the complaint do not amount to a
denial.

..38 Misc. 294

GABAY v. DOANE. Occurrences since an action
was begun may be set up as a partial defense
in mitigation of damages-Such defense is not
limited to actions to recover damages for
breach of promise to marry, or for personal
injury, or injury to property.....77 App. Div. 413

TOPLITZ V. GARRIGUES. Reply to new matter in
the answer-The right to require it rests in the
discretion of the Court..........71 App. Div. 37
NATIONAL CONTRACTING CO. v. HUDSON R. W. P.
Co. Pleading-Demurrer-Sufficiency of de-
fense of plaintiff's non-compliance with condi-
tion precedent.

..170 N. Y. 439

KEYES v. FLINT CO. Accounting-Bill of particulars of an amount stated ......69 App. Div. 141 CLEMENS v. AMERICAN FIRE INS. CO. A plea of performance must use the word "duly,"

70 App. Div. 435

STOKES V. MORNING JOURNAL ASS'N. An allega-
gation that a publication alleged to be libelous
was of and concerning the plaintiff is sufficient,

72 App. Div. 184

PETERS v. MORNING JOURNAL Ass'n. Libel-
What charges that the article was understood
to refer to the plaintiff. 74 App. Div. 305

.....

535

542

545

545

549

550

568

575 subd. 1,3

603

Page.

LEHMANN v. TRIBUNE Ass'N. Libel-Charge
that the person of a lawyer arriving from
abroad was searched by Custom House officers
-Complaint connecting the plaintiff with the
libel-Admissions by a demurrer .....37 Misc. 506

NAYLOR v. LOOMIS. Motion to strike out an
amended answer served as alleged for delay
-A proposition to compromise and a threat
to delay the action may be shown in support
thereof.

...79 App. Div. 21

UGGLA v. BROKAW. Redundant matter merely
is not demurrable-A motion to strike out an
entire count as redundant is proper,

77 App. Div. 310 BROWN v. FISH. Ejectment-Complaint-Irrelevant and redundant matter stricken out,

37 Misc. 367

BRITTON V. FERRIN. When refusal to pay over
proceeds of sales constitutes conversion-
When principal's debt to third person cannot
be counterclaimed in action therefor,

171 N. Y. 235

LICHSTRAHL v. LICHSTRAHL. Order of arrest-
Not granted in divorce on an affidavit where
there is no complaint in existence.....38 Misc. 331
SKINNER MAN. CO. v. FAGENSON. Order of
arrest-Motion to vacate on original papers,
how made in the First Judicial District,

38 Misc. 121

BRISTOL V. GRAFF. Undertaking on arrest-
When, in a case within subdivision 3 of sec-
tion 575 of the Code of Civil Procedure, it is
drawn in the form required by subdivision 1,
it is not enforceable-Proof of the intent does
not cure the defect.......79 App. Div. 426
BOSTON BASE-BALL ASS'N v. BROOKLYN BASE-
BALL CLUB. Injunction dependent on the

636

638

638

649

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subject of the action-Right of members of an unincorporated association to restrain other members from violating the agreement of organization-Demurrers-Parties....37 Misc. 521 STEELE v. GILMOUR MANUFACTURING CO. Attachment-Sufficiency of an affidavit of an agent-Allegation as to counterclaims,

BELMONT v. SIGNA IRON CO.

77 App. Div. 199

Motion to vacate

an attachment-When made on papers on which it was granted and on the judgment in the action-The facts recited in the judgment may be used to support the attachment-They are presumed to be true-Proof as to the attached property having been applied on the judgment-Proof that the summons has issued.........80 App. Div. 537 MARTIN v. SMITH. Attachment-Necessity for serving the summons within thirty days,

37 Misc. 425

WEIL v. GALLUN. Attachment-A failure to
serve a certified copy is a jurisdictional defect
-Not an irregularity, which must be specified
in a notice of motion......75 App. Div. 439

656

BEYER V. SIGEL. Sale of perishable property lev-
ied upon under an attachment-The one-year
Statute of Limitations is applicable to a claim
against the sheriff for a loss resulting from his
taking back a note and chattel mortgage to
secure the purchase money....75 App. Div. 83

709

713

TREADWELL & CO. v. MEAD MFG. Co. Sheriff's
poundage under an attachment-Payment
thereof...
...75 App. Div. 478

MACK v. STANLEY. Receiver-Not appointed
in an action for damages arising out of a stock-
broker's false representation that he had pur-

appeal operates as a stay of a further applica-
tion for such order-What are "costs of a
motion".

Page.

..79 App. Div. 119

MATTER OF FERRIS. Order to show cause-
When returnable.

780

.37 Misc. 606

791

..

BAZURO v. JOHNSON. Notice of motion for a
preference served with the notice of trial-
Duty of the moving party where, by mistake,
it does not appear on the motion calendar-
The case cannot be subsequently noticed for
preference. .................71 App. Div. 225

791

SHEELIN v. CITY OF NEW YORK. Preference on

subd. 1, the calendar of New York City cases, 2, 5, 11

791

subd.

5

11

74 App. Div. 308

DAVIS v. WESTERVELT. Calendar-Preference
of an action by a trustee in bankruptcy,
in the First Department.............38 Misc. 13

791 MORSE V. PRESS PUBLISHING CO. Preference on
subd.
the trial calendar in New York, Kings, Queens
and Erie Counties and in the Seventh Judicial
District-An application therefor is addressed
to the discretion of the Court-When the exer-
cise of such discretion will not be disturbed on
appeal-Meaning of the word "may,"

791 subd. 11

71 App. Div. 351

EISING v. YOUNG. Calendar-Preference of an
action for libel in the First Department,

38 Misc. 12 793 MORSE V. PRESS PUBLISHING CO. Preference on the trial calendar in New York, Kings, Queens and Erie Counties and in the Seventh Judicial District-An application therefor is addressed to the discretion of the Court-When the exercise of such discretion will not be disturbed on appeal-Meaning of the word "may,"

71 App. Div. 351

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