Fisk v. Albany & Susquehanna R. R. Co.

After a preliminary injunction, the plaintiff applied to the court, ex-parte, for leave to file a supplemental complaint. The justice to whom the application was made suggested that notice should be given, which was accordingly done, and the application was now brought before the court on such notice.

Upon the hearing of the motion, plaintiff's counsel produced, besides the supplemental complaint, of which he had given notice, a second or amended supplemental complaint, containing additional allegations, and intended to take the place of the one previously drawn, and asked leave to file the same.

Field & Shearman, for the motion.

John H. McFarland, opposed.

CARDOZO, J.-Two applications are made to me for leave to file supplemental bills in this cause. The first upon notice upon, as stated before me, the suggestion of Judge BRADY, that according to chancery practice, that was necessary;-the other ex-parte. As the latter bill covers all of and more than that set up in the former, if the latter application be granted, it will su persede the former, for there can be no necessity for both.

The question then arises, is notice necessary? and I find that I correctly stated on the argument that it was a mistake to suppose that it was so, according to the practice in chancery.

The rule is accurately stated in 2 Barb. Ch., 73, 74, citing Eager v. Price, 2 Paige, 333, and Lawrence v. Bolton, 3 Paige, 294, from which it is extracted. The author says, "A supplemental bill cannot be filed without a previous order of the court giving permission. In ordinary cases, the defendant is not entitled to notice of the application for such order. Notice of the motion is necessary only where the complainant asks for a pre

Fisk v. Albany & Susquehanna R. R. Co.

liminary injunction, or some other special relief upon the matter of the supplemental bill, previous to the time for the appearance of the defendant thereto. Of course, the court can direct notice to be given, but such it is seen is not the usual practice where nothing but leave to file the supplemental bill is sought. On the exparte application, the court examines the question only so far as to see that the privilege is not abused for the purposes of delay and vexation to the defendant. It does not try the cause upon such an application, but leaves the defendant, as a general rule, to his remedy by plea, answer or demurrer, if the bill is filed without sufficient grounds."

It is only necessary to say that the Code has made no change in this respect. Every application to the court is a motion; but every motion is not necessarily to be made upon notice; and as there is no section of the Code which requires notice of this motion, the proper course is to govern the practice according to the rules. which prevailed under similar circumstances before the adoption of the Code.

Tested by the rule as I have shown it to be, leave shou d be granted as asked, leaving the defendants to their remedy by answer or demurrer, or such motion as they may be advised to make.

Leave to file the supplemental bill last presented to me is therefore granted.

Gaskin v. Meek.

GASKIN against MEEK.

Court of Appeals, April Term, 1870.

FORECLOSURE.-JUDICIAL SALE. SHERIFF'S FEES IN NEW YORK.-CONSTITUTIONAL LAW.-LOCAL ACT.

Section 1 of the act of 1869, entitled "An Act in relation to the fees of the sheriff of the city and county of New York, and to the fees of referees in sales in partition cases,"-which directs all sales of real estate in that city, except in partition, or where the sheriff is a party, to be made by the sheriff (2 Laws of 1869, p. 1377, ch. 569), is unconstitutional, because, although the act is local, the subject of the section is not expressed in the title.

The case of Gaskin v. Anderson, 7 Abb. Pr. N. S., 1, affirmned.

It seems, that, for the same reason, section 3 of the same act,-which requires certain commitments by police justices to be directed to the sheriff,—is also void.

Appeal from an order.

This action was brought to foreclose a mortgage on real property in the city of New York.

Judgment of foreclosure and sale was recovered subsequent to the enactment of chapter 569 of the Laws of 1869; but notwithstanding that act, the court appointed a referee to make the sale. After sale, the purchaser refused to take the title, assigning as an objection that the sale was not made by the sheriff, as required by that act.

The supreme court, in the first district, ordered the purchaser to complete his purchase; and he now appealed to the court of appeals.

The decision below is reported under the name of Gaskin v. Anderson, 7 Abb. Pr. N. S., 1. There were two cases precisely similar, and it was agreed that the

Gaskin v. Meek.

one should abide the event of the other in the court of appeals.

William Henry Arnoux, for the appellant.

John Henry Hull, for the respondent.

BY THE COURT.-HUNT, J.-Section 1 of the act of 1869 (2 Laws of 1869, p. 1377, ch. 569) provides as fol lows:-"All sales of real estate hereafter made in the city and county of New York, under the decree or judg ment of any court of record (except sales in cases of partition, and where the sheriff of said city and county is a party), shall be made by the sheriff of said city and county."

Section 2 prescribes in detail the fees of the sheriff on foreclosure sales. Section 3 provides that certain commitments by police justices shall be directed to the sheriff of said city, and prescribes his fees thereon. Section 4 prescribes the fees of referees on sales in partition.

The title of the act is as follows: "An Act in relation to the fees of the sheriff of the city and county of New York, and to the fees of referees in sales in partition cases.' ""

It is evident that the two subjects of the fees of the sheriff and the fees of referees, provided for in sections 2 and 4, are referred to in the title, while the subject of the exclusive power of the sheriff to make the sales in that city under judgments and decrees, and the power of police justices to issue commitments to the sheriff, are not referred to in the title. Before the passage of this act, as is now the case in other parts of the State, sales on mortgage foreclosure in the city of New York could legally be made by referees appointed under the order of the court. By this act this power is taken away, and if valid, any such sale in the city of New York must now be made by the sheriff.

Under the recent decisions of this court, this act

Real v People.

must be held to be a local act (People v. O'Brien, 38 N. Y., 193; People v. Hills, Id., 449; People ex rel. Bradley v. Stephens, decided December, 1869).

Under the same authorities, it must be held that the act embraces more than one subject, and that the subject of the exclusive power of the sheriff of the city of New York to conduct sales under the decrees of the courts of record, is not expressed in the title of said

act.

The act is therefore invalid, and the sale by a referee was valid. The order of the court below, directing that the purchaser complete his purchase, was correctly made, and should be affirmed.

Order affirmed with costs.

REAL against THE PEOPLE.

Supreme Court, First District; General Term, December, 1869.

COURT OF OYER AND TERMINER.-REMOVAL OF CAUSES. EVIDENCE.-OPINION OF WITNESS.IMPEACHING.-ERROR.-AMENDMENT.

The provision of 2 Rev. Stat., 209, §§ 6, 7, 5 ed., vol. 3, p. 303,-for the transfer of indictments from the courts of sessions to the court of oyer and terminer, does not peremptorily require that the trial shall take place at any particular term or session of the oyer and terminer, but leaves the control of the calendar with the presiding judge, who may postpone cases so transferred until another term.

The proof, by the prosecution, of admissions of guilt, made by the prisoner to an officer, on his arrest, does not entitle the defense to inquire what he said the next day to the officer.

A non-professional witness may be allowed to testify to his opinion that