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description, 9 Hun, 587; and that ed whether the plaintiff intends to dery the party although he may not

such new matter or expected to avoid its

effect in some other way, and that without appear before the referee still has

a reply the defendant might very well be the right to insist from the evi subjected to surprise entitling him to avoid dence taken and filed that the a determination of the action which the report was not authorized by it, facts of the case would require to be other

wise disposed of, the plaintiff will be and the regular mode for doing

ordered to reply to such new matter. that is by filing exceptions after service of notice of the filing of Appeal from an order denying the l'eport and evidence. That motion to strike out parts of the the attorney had no opportunity defendant's answer as irrelevant to file such exceptions, before the and redundant and from an order application for the confirmation of requiring the plaintiff to reply to the report was made, and that in new matter set up in the answer the proceedings taken for that by way of affirmative defense. purpose the plaintiffs were irregu This action was bronght to relar and the order unauthorized. cover the possession of certain real Order reversed.

estate. The title of the plaintiff Opinion by Daniels, J.; Davis, was derived from a deceased owner P. J., and Brady, J., concurred. as one of his heirs at law. The

answer, as new matter constituting PLEADING. REPLY. an affirmative defense, set forth

and alleged that said deceased N. Y. SUPREME COURT. GENERAL

owner in his life time had executed TERM. FIRST DEPT.

a will and codicil by which he Mary Maud Watson, by guard - devised and disposed of the propian, &c., applt., v. John D. Phyfe erty in controversy in such a and ano., respt.

manner as to deprive plaintiff of Decided Oct. 31, 1884.

any title to it. The answer also

stated the additional facts that the In an action to recover possession of real

estate where the title relied upon by the said will and codicil had been plaintiff is derived from a deceased owner presented to the proper surrogate as heir at law, and the defense set up is for probate and had been admitted that such owner made a will devising and

to probate by him, with a detailed disposing of the property in question, a further allegation ihat the said will had

statement of the proceeding before been presented to the Surrogate for probate him for that purpose, and annexed

to detailed statement of the proceedings be said will and codicil and the papers fore him for that purpose, with copies of used in the probate proceedings. the will and papers used in the probate proceedings annexed as exhibits, will not The plaintiff moved to strike out be stricken out on motion as irrelevant and these statements as to the proceedredundant.

ings for probate and the defendant When an answer sets up new matter by way

moved that the plaintiff be requirof affirmative defense of such a character that the intelligent trial of the action re.

ed to reply to the new, matter set quires that the defendant should be inform- ' up in the answer. Both motions

V.

were decided against the plaintiff,

APPEAL. and from the orders entered there.

N. Y. COURT OF APPEALS. on she appealed.

George M. Curtis, for applt. Crosby, respt., Stephan,
William H. Arnoux, for respt. impl’d, applt.
Held, That while the answer was

Decided Jan. 20, 1885. much more detailed than it was necessary it should be, still it con An order of General Term, reversing an order tained only the detailed averment

denying motion to punish a contempt of

court, and remitting the case for further of facts which would be admissible

proceedings, is not a final order, and is not as proof upon the trial hy way of appealable to the Court of Appeals. See answer to the plaintiff's alleged S. C., 19 W. Dig., 172. title to the property, and as such

This was an appeal from an their special detail could be of no

order of General Term, reversing possible injury to the plaintiff in an order of a county judge, made the proceedings required to be in a special proceeding instituted taken by her to present her case at

to punish the appellant for an the trial, and accordingly they alleged contempt in violating an were not irrelevant or redundant, injunction order issued by him in and the order denying her motion supplementary proceedings, and to strike them out was correct.

denied the relief asked for by the That the intelligent trial of the motion to punish for contempt. action required that the defend- The General Term reversed this ants should be informed whether order, with ten dollars costs and the plaintiff denied the execution printing disbursements, and remitof the will and codicil or the valid- | ted the matters involved in the. ity of the proceedings by which motion to the county judge to proprobate of them was accorded or ceed against the defendant, expected to avoid their effect in some other manner. That without

A. T. Clearwater, for applt.

Howard Chipp, Jr., for respt. a reply the defendants would be left to conjecture upon what possi Held, That the determination of ble ground the plaintiff might ex

the. General Term was not final, pect to succeed, and might very and is therefore not only unappealwell be subjected to surprise en able to this court upon any questitling them to avoid a determina- tion affecting the merits, but the tion of the action which the facts Code expressly denies jurisdiction of the case would require to be to this court to review the subject otherwise disposed of. That the matter of the order. Code, $ 190, case was a proper one for the sub. 3; 81 N. Y., 305. direction of a reply and the order The matter of costs is, in most should be affirmed.

cases, and especially in those reOrder affirmed.

lating to motions and orders, a Opinion by Daniels, J.; Davis, mere incident of the controversy, P.J., and Brady, J., concur. and in such a case it is improper

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to make the incidental attendant This was an appeal from a of the subject matter a pretext for order of General Term, reversing exercising a jurisdiction which the an order of Special Term, denying legislature has refused to give a motion to set aside an execution when legislating directly upon this and vacate the sale of certain real subject.

estate under it, on the ground that When the question of costs is the execution was void. It apmatter of strict right, or the prin-peared that an attachment had cipal object of the controversy an | been issued and levied by the appeal, if properly taken, froni sheriff against the property of desuch part of the order as awards fendant, who, it was proved, was costs, may be reviewed in this a resident of this State, and bad court. 94 N. Y., 293. In order departed therefrom with intent to to entitle a party to such review, defraud his creditors, or to avoid the notice of appeal should state the service of a'summons, or kept that it is specifically taken from himself concealed therein with like such part of the order. Code, intent. The summons was served $ 1300.

by publication. The execution Questions of costs may be re- described the judgment and comviewed in this court when they manded the sheriff to collect the arise in connection with other judgment oct of the attached perquestions in the case properly be sonal property of the judgment fore us.

debtor, and if that was insufficient, Bergen v. Carman, 79 N. Y., out of his attached real property. 146, limited.

The attachment recited the grounds Appeal dismissed.

upon which it was issued. Opinion by Ruger, Ch. J. All Josiah T. Mareau, for applt. concur.

George J. Billings, for respt.

Held, That the execution being EXECUTION.

one under Subd. 2 of § 1370 of N. Y. COURT OF APPEALS.

the Code, by which the execution

must go first against the attached Place, respt., v. Riley, applt.

personal property; second, against Decided Jan. 20, 1885.

the other personal property of the An attachment was granted against defendant judgment debtor; and lastly, as a resident who had departed from the against the attached real property State with intent to defraud creditors. The was void. execution directed its collection out of the Under a void process, no title attached personal property, and if that was

can be acquired, and the position insufficient, then out of the attached real estate. Held, that the execution was not in

for a bona fide purchaser under a conformity with Subd. 2 of $ 1370, and was void process is no better as against void; that no title could be acquired there. the real owner of the property under even by a bona fide purchaser, and than that of one who purchased that the fact that the debtor had no other

with full knowledge of its invalidpersonal property out of which the execution could be collected was immaterial. ity. 2 Hill, 566.

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Also held, That as an examina. | favor of the defendant and the tion of the records would have dis- report of the referee upon which closed the fact that the execution the same was entered, upon the did not conform to the statute, the ground that the referee had failed purchaser and his grantees were

to deliver or file his report as reput upon inquiry as to its valid- quired by $ 1019 of the Code of ity.

Civ. Pro., within 60 days after the It was claimed that there was, final submission of the case to him in fact, no personal property be- and that the reference had been longing to the judgment debtor terminated under said section beout of which the execution could fore the filing of saill report. It be collected. This claim is contro- appeared that before the expiraverted.

tion of the statutory time the Held untenable; as if the claim referee had made his report in had been established, it was imma- favor of the defendant and had terial. The invalidity of the pro- offered to deliver it to the defendcess cannot depend upon the fact ant's attorney upon the payment whether the execution could have of his fees. been collected out of personal Abram Kling, for applt. property.

W. T. B. Milliken, for respt.
Order of General Term, revers Held, That such an offer was
ing order of Special Term, affirmed. held to be equivalent to an actual
Opinion by Andrews, J. All delivery of the report under $ 273,

of the Code of Procedure, which
provided, as the present code in

effect does, that the referee should REFERENCE. PRACTICE.

make and deliver his report within N. Y. SUPREME Court. GENERAL sixty days from the time the acTERM. FIRST DEPT.

tion should be finally submitted,

&c. 14 Hun, 223. Robert F. Little, as receiver,

That the additional liberty given respt. v. Theresa Lynch, applt.

to the referee by $ 1019 of the preDecided Jan. 9th, 1885.

sent code, of filing his report with

the clerk within 60 days does not When a referee makes his report within the statutory time and notifies the attorneys prevent the other provision from that it is ready and at their disposal and being complied with by such an also of the amount of his fees, it is a suffi offer as was made in this case for, cient delivery of such report to prevent the since the enactment is precisely forfeiture of his fees by the termination of the same concerning the delivery the Civil Procedure, and in such a case, it is of the report to the attorney in not necessary for the referee to file his the Code of Civ. Pro. as it was in report with the clerk in order to have it the Code of Pro., what would conpreserve its validity.

stitute a compliance with the latAppeal from an order vacating ter should be held to be equally and setting aside a judgment in effective under the former for the

concur.

additional privilege secured to the specific performance of an agree referee, of filing his report with ment for the sale of land situated the clerk, in no manner indicated in the city of New York. The what might be necessary to con- agreement was made on the 23d of stitute a delivery to the attorney. June, 1882, and the purchase was That each proceeding was separate to be completed on the 1st day of and distinct. 83 N. Y., 46; 66 July. At the time mentioned for How. B., 119; 12 N. Y. W. its performance the parties met at Dig., 216 ; 84 N. Y., 650, distin- the place appointed for that parguished.

pose and the defendant was presOrder reversed.

ent with a deed which he was Opinion by Brady and Dan- ready to deliver to the plaintiff, iels, JJ.; Davis, P. J., concurred. but the plaintiff had been pre

viously endeavoring to obtain a

search of the title to the property SPECIFIC PERFORMANCE. and had been unable to procure it, N. Y. SUPREME COURT. GENERAL and for that reason requested an TERM. First DEPT.

adjournment. This was declined

by the defendant and performance Charles F. Willis, applt., v. demanded at that time. The Benjamin F. Dawson, respt.

plaintiff was then unwilling to reDecided Jan. 9, 1885.

ceive the deed and pay the residue

of the purchase money and the When a person who has contracted to pur parties thereupon separated. Sub

chase real estate is unable, after making proper efforts, to obtain a search of the sequently the plaintiff, after obtitle to such property before the time fixed taining the desired search of the by the contract for the completion of the title and in the latter part of July, purchase, he is entitled to a reasonable ad brought this action, alleging that journment to enable him to procure such search; and, if such adjourpment is re

he was then ready and desirous of fused by the other party without a proper carrying out the contract but that reason, the first party may refuse to accept the defendant was unwilling to the deed at that time; but after a reason

perform it. It appeared that no able delay spent in searching the title he change had taken place in the inmay demand the completion of the contract, and if it is refused by the other party

terim either in the situation of the he may maintain an action, if commenced defendant's affairs or of the propwithout delay, to enforce its specific per-erty. formance, provided that he compensates

William Settle, for applt. the other party for the delay and no circumstances have intervened affecting either

William D. Leonard, for respt. the situation of the defendant or of the Held, That while the contract property, rendering it inequitable to afford contained no agreement concerning such relief.

the procurement of the search, it Appeal from a judgment dis was a reasonable precaution on missing the plaintiff's complaint the part of the plaintiff to obtain on trial before the court.

one before completing his purThis action was brought for the chase and he could not be charged

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