MOTIONS AND ORDERS. well, and have perfectly answered the purpose of the defendants, if it had been laid down properly and in a workmanlike manner. Held, not sufficient. If there were any such distinction between the business of manufacturing and of laying drain-pipe that rendered two sets of witnesses necessary, it should be made affirmatively to appear. Supreme Ct., I. Dist., Sp. T., 1857, Price a. The Fort Edward Water Works Co., 16 How. Pr. R., 51. 5. The affidavit of the moving party stated that he had ten material witnesses that, &c., without naming them, and that he expected to prove "by some of them" such a fact, and "by some of them" such another fact. Held, insufficient. To show "how the witnesses are material,” within the meaning of rule 45, it should be shown in some sufficiently distinct manner what facts were to be proved by the several witnesses named, specifying them, so that the court may judge of the materiality of their testimony. Ib. 6. The denial of a motion to change the place of trial made by one defendant, does not prejudice the right of another defendant, subsequently served with summons, to make a similar motion. New Jersey Zinc Company a. Blood, Ante, 147. 7. By appealing from an order, the appellant waives leave reserved to him to renew the motion which the order denied. Supreme Ct., Gen. T., 1858, Peel a. Elliott, 16 How. Pr. R., 483. 8. Where a motion is denied with leave to renew, and the moving party elects to renew, and does so, on grounds not in question on the first motion, his right to appeal from the first order is gone. N. Y. Common Pleas, Gen. T., 1855, Noble a. Prescott, 4 E. D. Smith's C. P. R., 139. 9. The objection, that the complaint does not state facts sufficient to constitute a cause of action, though not waived by omitting to demur, is not available to resist an interlocutory motion in the cause,―e. g., an application for an order for the examination of the defendant, as upon a discovery. N. Y. Superior Ct., Gen. T., 1858, Draper a. Heningsen, 16 How. Pr. R., 281. 10. It seems, that matters going merely to reduce the amount of the indebtedness sworn to by the plaintiff's affidavits, are not to be considered on a motion to vacate an arrest. Noble a. Prescott, 4 E. D. Smith's C. P. R., 139. 11. The answer consisted of one sham defence and two frivolous defences. The plaintiff moved that the answer be struck out as sham, frivolous, and irrelevant, and for judgment, &c., and other relief, &c. The opinion of the court directed that the allegations and denials constituting the first defence be struck out as sham and irrelevant; MOTIONS AND ORDERS. that the remaining defences be overruled as frivolous, and that the plaintiff have judgment thereon. The order entered was "that the first defence be stricken out as sham and irrelevant; that the second and third defences be stricken out as frivolous, and that the plaintiff have judgment," &c., with leave to amend. Held, on appeal, that although entire defences cannot be struck out for frivolousness like sham and irrelevant defences, but must be reached by demurrer or motion for judgment, under section 247 of the Code, yet the error in the order had worked no prejudice, and that the order should be modified by allowing the second and third defences to remain in the answer, and that they be overruled as frivolous, and the order and judgment otherwise be affirmed. Ct. of Appeals, 1858, The People a. McCumber, 4 E. P. Smith's (18 N. Y.) R., 315. 12. On a motion to strike out as sham and irrelevant a defence consisting of denials, the falsity of the denials of material allegations of the complaint appeared by other parts of the answer, by the affidavit made on behalf of the moving party, and by the fact that no affidavit to sustain the truth of the denials was produced in opposition. Held, that the motion was properly granted. Ib. 13. But the power to strike out defences on motion as sham or irrelevant should be carefully exercised, and not extended beyond passing on the question, whether there is any true and substantial issue to be tried. When the defendant supports his defence by an affidavit, stating specially the grounds of it, he cannot generally be deprived of the benefit of a trial in the ordinary mode. Ib. 14. Motion for judgment on account of frivolousness of answer, denied because its insufficiency as a defence was not so glaring that the court could determine it upon a bare inspection without argument. [6 How. Pr. R., 358.] Supreme Ct., I. Dist., Sp. T., 1857, Kelly a. Barnett, 16 How. Pr. R., 135. 15. The plaintiff had ten days to reply on payment of $10 costs. Instead of so doing he noticed the cause for trial; and the defendant thereupon moved for judgment for want of a reply; but the plaintiff then drew and verified his reply. Held, that he should pay the costs of the circuit, the $10 before ordered, and the costs of the present motion, $10, and serve his reply in three days from notice of the order, and the adjustment of the costs. The cause may there remain on the calendar, but not to be tried at this circuit, without the consent of the defendant. Defendant to have leave to apply for further postponement. Supreme Ct., Montecarbole a. Mundel, Ib., 141. 16. One against whom a motion is made on too short notice must make VOL. VIII-35 NEW YORK CITY. objection on that ground on the day of the motion. If he suffers the motion to be made without objection, he cannot afterwards take advantage of it on another motion. Supreme Ct., Sp. T., 1858, Main a. Pope, 16 How. Pr. R., 271. 17. Where a demurrant to whom, on overruling his demurrer, the court gives leave to answer within a certain time, does not accept the leave but appeals to the general term, even if it be conceded that he has the same time to answer after affirmance of the order, as was given by the order, he must tender his answer within that time [Sands a. McClelan, 6 Cow., 582; Hoadley a. Cuyler, 10 Wend., 593]; and if he fails to do so, the court properly refuse leave to interpose it at the trial. N. Y. Superior Ct., Gen. T., 1857, Ford a. David, 1 Bosw., 569. 18. It seems, that it is no excuse for the delay that the leave was granted on payment of costs, and that the costs have not been taxed. Ib. 19. The application for judgment, which, by section 265 of the Code, is to be made at general term, in cases where a verdict has been taken, subject to the opinion of the general term, includes a motion for a dismissal of the complaint, as well as an application for judgment, according to the verdict for the plaintiff. [6 Wend., 546.] The cases of Astor a. L'Amoreaux (4 Seld., 109), and Marquat a. Marquat (2 Kern., 338), are not authorities to the contrary, for in these the judgments were reversed because the cases were not proper ones for taking a verdict subject to the opinion of the court, and the judgments were not founded merely on questions of law, but upon the exposition made by the general term of the evidence. Gen. T., 1856, Chittenden a. The Empire Stone Dressing Co., 6 Duer, 30. 20. A motion for a new trial, on the ground of the misbehavior of the jury, should be made before the judge who tried the cause, or if before another judge, it should be made upon a case actually settled. Nesmith a. The Clinton Fire Ins. Co., Ante, 141. 21. Orders out of court may be made by a county judge of the county, in which the attorney for the moving party resides, except to stay proceedings after verdict. Code, § 401, subdiv. 3, amended in 1859, Voorhies' 6th ed., 553. AFFIDAVIT, 2; ANSWER, 3; APPEAL, 17; ARREST, 3, 12; ATTORNEY AND CLIENT, 5, 6; COSTS, 25, 27; COURT, 6, 7; JUDICIAL SALE, 2; JURisDICTION, 11; TRIAL, tit. New Trial. NEW YORK CITY. 1. The provisions of the charters of 1830, 1849, and 1857, restricting the application of the funds of the Corporation to the purposes for NEW YORK COMMON PLEAS. which appropriations have first been duly made, are designed merely to prevent usurpations, improvidences, or dishonesties in the officers of the Corporation; but cannot have the effect to defeat the operation of a subsequent statute increasing certain expenses of the Corporation. Green a. The Mayor, &c., of N. Y., Ante, 25. 2. An action lies against the Corporation of the city of New York to compel them to pay an expense incurred pursuant to statute-e. g., the salary of a district-court justice-although they have no fund appropriated by law to that purpose, if they have funds, or means of raising funds, appropriated generally to "such expenses as they may be put to by law." Ib. MANDAMUS, 1, 6; OFFICER, 3. NEW YORK COMMON PLEAS. 1. To enable a non-resident plaintiff to maintain an action in the New York Common Pleas against a foreign corporation, it must appear either, 1. That the action is upon a contract made, executed, or delivered in this State; or, 2. That the cause of action arose in this State; or, 3. That the subject of the action is situated in this State. Harriott a. The New Jersey R. R. Co., Ante, 284. 2. The defendant does not, by appearing and answering, waive the objection that none of such grounds of jurisdiction exist. Ib. 3. In the New York Common Pleas, an order granting permission to amend the complaint upon condition that defendant be paid his costs, since the service of answer, cannot be appealed from as to the condition respecting costs, without a certificate of the judge, under rule of March 22, 1851. [Voorhies' Code, 6th ed., 658.] Smith a. Dodd, 4 E. D. Smith's C. P. R., 643. 4. That the New York Common Pleas treat as binding authority decisions of the Supreme Court made when that court was the appellate court of the former. Updike a. Campbell, 4 E. D. Smith's C. P. R., 570. NOTICE. 1. The mortgagee and his agent knew, at the time of the negotiation for the loan for which the mortgage was given, that the mortgagor was not then the owner of the property, but that he was about to purchase it from M. His agent knew that the house was worth $10,000, and that was the price for which it was to be sold. He knew that the mortgagor had no cash to pay for it, but the $1000 which he was to procure from the mortgagee, and that there was a prior mortgage for NOTARY PUBLIC. $5000. All parties were present at the time of the delivery of the deed by the vendor to the vendee, the mortgagor, and of the delivery by him of the purchase-money mortgage for a part of the consideration; and the payment of the $1000 lent by the mortgagee to the mortgagor was the only amount in cash paid on the transaction. Held, that the mortgagee, through his agent, must be deemed to have had notice of the purchase-money mortgage, and that the same, although recorded subsequently to his mortgage, had priority over it. Supreme Ct., I. Dist., Sp. T., 1858, Haywood a. Shaw, 16 How. Pr. R., 118. 2. Notice of trial to be given fourteen days before the court. Code, § 256, as amended in 1859; Voorhies' Code, 6th ed., 347. 3. Where an issue of fact is had by the court without a jury, and a decision rendered thereupon, notice of the decision, given by the prevailing party before the actual entry of judgment by the clerk, is not notice of judgment such as is necessary to limit the losing party's time to appeal. Leavy a. Roberts, Ante, 310. 4. Section 132 of the Code, as amended in 1858 (Laws of 1858, 491, ch. 306, § 4), providing that a notice of the pendency of an action affecting the title to real property, or an action in which an attachment affecting real property has been issued, shall be constructive notice to purchasers or incumbrancers; and that every person whose conveyance or incumbrance is subsequently executed or subsequently recorded, shall be deemed a subsequent purchaser or incumbrancer, and bound by subsequent proceedings, as if a party to the action-does not authorize the filing of a notice against prior purchasers or incumbrancers who are not parties to the action. The People on rel. Tremont Bank a. Connolly, Ante, 128. 5. "Any legal notice that shall be served upon the superintendent of the banking department, in relation to any mortgage of which he is the assignee, shall specify the name of the mortgagor, and the description. of the premises, as shown by the mortgage covering them, and the name of the party by whom it was assigned to him; and unless such notice shall contain the provisions herein before contained, a noncompliance with the terms of such notice on the part of the superintendent shall not invalidate or lessen the security conveyed by such mortgage, or in any manner affect his lien upon the mortgaged premises conveyed under it." Laws of 1859, 503, ch. 236. NOTARY PUBLIC. 1. "In addition to their present powers, notaries public of this State are hereby authorized to administer oaths and affirmations, and to take the |