ACCOUNTING — By guardian — voucher required for each payment exceed-
ing twenty dollars.
See MATTER OF GILL.
ACCOUNT STATED -
trust not bound by.
·Between trustee and third party- when cestui que
ACTION- Upon choses in action levied on under attachment-by whom must
be brought.
Parties when not necessary to make all stockholders parties to an action
against foreign corporation.
See REDMOND v. HOGE.
Parties-judgment debtor proper party defendant in action by receiver to
set aside fraudulent conveyance.
When plaintiff's proceedings in, will not be stayed on application of
defendant, on ground that attorney was unauthorized to commence it.
See TOWN OF DELHI v. GRAHAM.
AMENDMENT — Right to amend pleading in Justice's Court — when absolute,
and not in discretion of justice.
ANSWER - When frivolous - Denial on information and belief-Code, § 149.]
1. This action was brought by the plaintiff to recover damages for injuries sus-
tained while traveling in defendant's cars. The defendant in its answer, after
making certain specific admissions, "upon its information and belief, says
that said plaintiff was not by reason of said collision at all bruised or
injured in the back and thigh or elsewhere, and that he has not by reason
of said alleged injury ever since or at any time been sick, sore and lame,"
etc. Held, that the answer did not contain a denial of the allegation of the
complaint as required by section 149 of the Code, and that judgment was
properly directed for the plaintiff on the ground that it was frivolous. A
denial upon information and belief" is not a good traverse.
POWERS. ROME, ETC., R. R. Co....
2. Alternative defenses — usury.] In this action, brought to recover
the amount due on a promissory note for $550, given by the defendant to the
plaintiff, the defendant set up in his answer that the note was, by mistake,
drawn for fifty dollars too much, or that, if there was not a mistake in draw-
ing it, it was usurious. The referee found that it was by mistake drawn for
fifty dollars too much, and deducted that amount from the recovery. Held,
that this result sustaining one branch of the defense, precluded the defendant
from insisting upon the other, as usury cannot be founded on a mistake.
3. Effect of not demurring to, or moving to strike out as frivolous.]
When the plaintiff does not demur to the answer, nor move to strike it out as
sham or frivolous, but suffers it to form an issue of fact which he brings on
for trial, evidence, tending to establish a legal or equitable defense, cannot be
excluded on account of informalities in the answer, or any defect that can
be cured by amendment; or when, the evidence being within the general
scope and object of the answer, the pleading can be made to conform to the
proof, under section 173 of the Code.
Whether the evidence is sufficient to accomplish the purpose of the
party, is a question upon which he is entitled to the deliberation of the court
or a jury. LATHROP v. GODFREY
Right of defendant to amend by setting up new matter, in Justice's Court —
not in discretion of justice.
See RYAN v. LEWIS
In action for construction of will—when allegations raising improper issues
will be stricken out of.
See MCLEAN v. MCLEAN...
Objection that action for penalty was not brought within time limited there-
for must be taken by.
See COTTON v. MAURER
When leave to serve new answer after substitution of parties plaintiff, not
See BOARD OF SUPERVISORS v. TWEED..
APPEAL-From surrogate's decree—what considered by court on.] 1. Upon
an appeal from an order of a surrogate, the whole case is to be examined by
the appellate court, as well upon the facts as upon the law; so far as those
questions are presented by the appeal. GILMAN v. GILMAN..
Decision after expiration of twenty-one years—not reversed for
technical errors-upon whom burden of showing error rests.] After the expira-
tion of twenty-one years from the making of a decision, the court will hesitate
to reverse it for technical errors.
In such case, where the party seeking a review of such decision, has first
alleged its making in his complaint and then, on affidavits stating that he
could prove the contrary of the facts therein found, obtains leave of the court
to strike such allegations out of his complaint, the burden rests upon him to
show it to be erroneous. (COUNTRYMAN, J., dissenting.)
3. Unconstitutionality of act-point cannot be made for first time
on appeal.] Upon the trial of this action, brought upon a bond given to
release a canal boat from a warrant of attachment issued under the said act,
the plaintiff was nonsuited on the ground that a canal boat was not a vessel
within the meaning of the act, and the exceptions were ordered to be heard
in the first instance at the General Term. On the hearing at General Term,
respondents insisted that the act was unconstitutional. Held, that, as the
point was not taken in the answer or at the circuit, and as it was not pre-
sented by any of the exceptions, it must be deemed waived.
4. What questions only passed upon, when case taken up on exceptions.]
Where a case comes before the General Term on exceptions taken at the
circuit, no questions can be passed upon, except those arising upon excep-
tions duly taken to some decision made by the circuit judge at the trial, or
in the final disposition of the case. Id.
5. In action brought before a justice, where another determination of facts
is sought.] If a defendant, in an action brought before a justice, desires
another determination upon the facts of the case, he must appeal to the County
Court for a new trial; otherwise, the appellate court will not be justified
in reversing a judgment for the insufficiency of the evidence.
6. Evidence as to efforts to produce witness — admission or rejection of, not
ground for reversal.] The admission or rejection of evidence to show fruitless
efforts (by attachment or otherwise) on the part of the plaintiff to procure
the attendance of a witness whom he might reasonably be expected to
produce, is not a ground for reversal. It could not affect the determination
of the issues. Id.
When case not reviewed upon the merits - Points not taken at trial
cannot be raised on appeal.] When, upon the trial of an action, certain
points are insisted upon by the defendant's counsel, the attention of the
court being called to no others, and an appeal is taken upon a record, not
assuming to contain all the evidence, the defendant's counsel cannot, upon
the hearing of the appeal, insist upon a new defense, viz., that the plaintiff's
case was not made out upon the merits, at the trial. GALLUP 0. BABSEN... 598
8. Assent to submission of issue to jury — informality.] A party assent-
ing to the submission of an issue to the jury cannot, on appeal, avail him-
self of any informality therein, if any exists.
ZIMMERMAN V. SCHOENFELDT.
When error in copy petition served, cannot be urged on appeal from order
vacating assessment.
See MATTER OF WILLIAMSON.
An order directing transfer of actions to Marine Court, in pursuance of
acts of 1872 and 1874, is appealable.
See DE HART 6. HATCH.....
When judgment will not be reversed for admission of improper evidence.
See MILLINER v. LUCAS...
When insufficiency of complaint, in not alleging demand in replevin, can-
not be urged on appeal.
APPEARANCE- When defendant bound by unauthorized appearance.
See POWERS v. TRENOR...
Unauthorized commencement of action in name of a town by attorney-
when plaintiff's proceedings not stayed on account of, on application of defendant.
See TOWN OF DELHI v. GRAHAM..
ARBITRATION-What constitutes common-law arbitration — when invalid
for informality] Defendant's account was, by agreement, left for adjustment
to the register in bankruptcy, who determined that $250 would be a proper
allowance for her, which sum was deducted by the referee from the purchase-
price of certain cattle. Held, that such agreement would constitute a common-
law arbitration, and would be binding; but, that as it appeared that the
arbitration was conducted in an informal manner, without hearing the claim-
ant, or appointing any time for such hearing, it was irregular and not binding
on the defendant, and that she was entitled to prove her claim anew.
MORAN v. BOGERT..
ARREST - Order of when not granted.] Where two separate causes of
action are joined in a complaint, an order of arrest will not lie unless there be
a right of arrest upon the entire claim of the complaint. An order of arrest
should not be granted in an action brought to recover a balance upon a running
account, made up in great part of items entirely untainted with fraud.
TOFFEY V. WILLIAMS
ARSON - Indictment - when burning of several buildings may be alleged as one
offense in same count - · Error for duplicity—when cured - Presence of human
being in house when sufficiently alleged - Evidence of prisoner's presence at
another fire admissible.
See WOODFORD v. PEOPLE.....
ASSAULT WITH INTENT TO KILL- Not necessary to allege in indict-
ment or prove that assault was "with a deadly weapon."
ASSESSMENTS- Motion to vacate must be made by owner· what proof insuffi-
cient to establish ownership.] 1. Upon this application to vacate an assessment,
the only proof as to the ownership of lots assessed was the following state-
ment contained in the affidavit of the petitioner: That, "at the time of the
confirmation of the above named assessment, on the 3d of May, 1870, she
was and still is held liable for the payment of the assessment imposed on lot
mentioned and described in said petition by ward number 5,402." Held, that
this proof was inadequate to show any right, on the part of the petitioner, to
institute the proceedings to vacate the assessment. MATTER OF LITTLE..... 215
2. When set aside on ground of fraud.] Upon the application of the
petitioner, an order was made at the Special Term vacating an assessment in
the city of New York, on the ground that two lots liable to assessment had
been excluded therefrom, and that such exclusion constituted “a fraud in
law." On appeal from this order, held (1), that fraud in fact must be shown
before an assessment could be set aside on that ground; (2), that in the present
case there was no direct proof of fraud, nor did the facts proved justify any
such legal inference. MATTER OF VOORHIS
3. · Lien of — effect of invalid sale on - Long lapse of time — when evidence
of acquiescence.] In 1837 an assessment was imposed upon certain premises
in the city of New York, in pursuance of chapter 86, Laws of 1813, and con-
stituted a lien thereon, for the enforcement of which the premises were
subsequently sold; but, the sale being invalid, the amount paid therefor by
the purchaser was subsequently refunded to his assignee. In 1862, the land
was taken for widening a street, and the amount of the damages awarded
therefor, less the amount of the assessment, with interest from 1837, was
paid into court, and, in the same year, demanded by and paid to the plain-
tiffs herein, the owners of the land. In 1869 this suit was commenced to
recover the amount so retained. Held (1), that the lien of the assessment was
not destroyed by the invalid sale; (2), that the lapse of time, between the
taking of the land and the commencement of this suit, was strong evidence
of acquiescence in the right of the defendant to discharge the lien by retain-
ing the amount of the old assessment, and that such assent would be a com-
plete defense to an action brought to recover the amount so retained.
4. When amount of, may be deducted from damages awarded for lands
taken for streets.] Where premises are taken for public streets, upon which,
at the time, there exists a valid lien for a previous assessment, lawfully
imposed, and which may be enforced as a mortgage, the amount thereof
may be deducted from such damages. Id.
5. When payment and not statute of limitations should be pleaded.]
Where a party desires to take advantage of the presumption of payment of
an assessment, arising from the lapse of more than twenty years from the
time it was imposed (prior to 1837), payment, and not the statute of limita-
tions should be pleaded. Id.
6. Objections to validity of — when cannot be raised by mayor, by refusing
to sign warrant for payment of money thereunder.] Objections to the validity
of an assessment cannot be raised by the mayor of a city, by refusing to sign
a warrant for payment of money thereunder, after the city authorities have
treated it as valid, and have authorized the levying of a tax to meet it; and
the money has been collected and is in the city treasury, and its payment to
the proper officers (park commissioners) has been ordered by the legislative
branch of the city government, and by the comptroller who has signed
the warrant therefor. PEOPLE v. CITY OF BROOKLYN..
7. Failure to comply with statute in making — when sale not vitiated by.]
Where a statute, regulating the imposing of assessments, directs that a certifi-
cate of the costs and expenses of the work be filed with a public officer,
and such officer does not lay the assessment, but the certificate is directed
to be given to him merely to enable him to act intelligently in matters not
connected with the assessment in question held, that the failure to give
such certificate does not vitiate a sale had under the assessment.
SORCHAN. CITY OF BROOKLYN..
8. Proceedings of assessors cannot be reviewed collaterally.] The manner
in which assessors, having jurisdiction of the subject-matter, perform their
duty, cannot be reviewed collaterally, but must be reviewed by direct
appeal from their determination. Id.
For sewers in New York City-application to vacate — Chap. 321, 1865 —
construction of-Chap. 580, 1872-" omission" within meaning of § 7.
See MATTER OF WILLIAMSON..
ASSESSORS - When they have jurisdiction of subject-matter, their proceedings
cannot be reviewed collaterally.
See SORCHAN v. CITY OF BROOKLYN..
ASSIGNMENT - Of debt — when burden is with assignee to show it was paid
after notice.] 1. When a debtor pays his debt to his creditor in person, the
presumption is in his favor that he paid it properly and lawfully.
The burden in such case is with the assignee of the debt to show that it
was unlawfully paid after notice. HEERMANS v. ELLSWORTH.
473
For benefit of creditors — Bond must be approved and filed before title
passes to assignee.] An assignee, under a general assignment for the benefit of
creditors, does not take title to the assignor's estate, unless the bond required
by section 3, of chapter 348, of the Laws of 1860, is approved and filed.
Chapter 600, of the Laws of 1874, does not affect this provision of the
act of 1860. HEDGES v. BUNGAY...
For benefit of creditors — Receiver of property of assignor - interest
of.] Where a debtor has made an assignment of all his property for the
benefit of creditors, and the assignee has died leaving the trust unexecuted,
a receiver-appointed in a suit in which the assignor is the sole defend-
ant of all the property and assets of such assignor which have not been
collected and distributed under the assignment, acquires no interest in the
property assigned, except a possible reversion in any surplus which may
remain after the payment of all the debts provided for therein.
By judgment debtor of a claim due to him — validity of, cannot be assailed
See BEEBE v. KENYON..
Of judgments and mortgages, may be made by parol.
See MACK v. MACK..
ASSUMPSIT- Implied assumpsit measure of damages.] 1. A party who
has performed a special contract, may sue upon an implied assumpsit, and,
upon the trial, give in evidence the contract-price as the measure of damages.
HIGGINS. NEWTOWN AND FLUSHING R. R. Co.
2. Implied assumpsit-measure of damages.] An executed contract
may be sued upon, on an implied assumpsit, and the contract-price will be
the measure of damages. RAYMOND . HANFORD
ATTACHMENT-Action upon choses in action levied on by whom must be
brought.] 1. An action brought to enforce choses in action, upon which
an attachment has been levied, must be brought in the name of the sheriff,
or of the debtor in the attachment. LUPTON v. SMITH.
Code, 238, does not authorize plaintiff to bring action in his own
name.] Section 238 of the Code, providing that actions may be prosecuted
by the plaintiff in the attachment, does not authorize the plaintiff to bring
an action in his own name, but only enables him to take the control of such
suit when brought by the sheriff, or to bring the same in the name of the
sheriff, upon executing to him the bond of indemnity required by the
statute. Id.
When fraudulent design sufficiently shown.
See BLAKE v. BERNHARD...
ATTORNEY-Lien of, on judgment for costs.] 1. Where a defendant recov-
ers a judgment for the costs of the action, his attorney has a lien thereon to
the amount of the recovery, and the record of the judgment is notice to all
the parties to the action of the existence of such lien. LESHER v. ROESSNER, 217
2. Costs and counsel fees of when due interest.] This action was
brought to recover moneys collected by the defendant, as the attorney for
the plaintiff. The referee charged the defendant with the amount received
by him, with interest thereon from the time of its receipt, and, after deduct-
ing therefrom the amount allowed to him for costs and counsel fees, directed
judgment to be entered for the balance. Held, that this was error. The de-
|