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CIVIL

PROCEDURE REPORTS.

CONTAINING CASES UNDER THE

CODE OF CIVIL PROCEDURE

AND

THE GENERAL CIVIL PRACTICE

OF THE

STATE OF NEW YORK.

REPORTED WITH NOTES

BY

HENRY H. BROWNE

OF THE NEW YORK BAR.

WITH A REFERENCE TO THE SECTIONS OF THE CODE CONSTRUED OR
CITED IN THE REPORTS ISSUED BETWEEN JULY 1, 1882,

AND DECEMBER 31, 1882.

VOLUME II.

NEW YORK:
S. S. PELOUBET & CO.,
LAW PUBLISHERS AND BOOKSELLERS,

80 NASSAU STREET.

1883.

COPYRIGHT.
8. 8. PELOUBET,

1883.

rec? feb. 12, 1883

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Sections of the

Code of Civil Procedure.

}

523, 528 WILSON 0. BENNETT...

Answer to verified complaint in action for libel need

not be verified; laches waives failure to verify

pleading.

1211, 1306, MCINTYRE 0. STRONG....

36

1326 Withdrawing or changing deposit made in lieu of

undertaking on appeal.

1464, 1466 NEHRBOSS 0. Bliss..

39

Redemption by judgment debtor of real property

of his debtor sold under execution.

542 CLIFTON O. BROWN.....

44

Serving notice of trial does not waive right to

amend pleading

755, 760 HOLSMAN v. ST. JOHN.....

48

Action cannot be revived where both parties dead.

1778 BRADLEY 0. ALBEMARLE FERTILIZING Co......... 50

By joining cause of action on note with one for

goods sold and delivered, in an action against a

corporation, a plaintiff waives his right to an order

directing that the issues be tried.

2091 PEOPLE ex rel. BROWN 0. MCADAM

52

Summary proceedings; writ of prohibition will

not lie where justice has jurisdiction.

438, 439
SMITH 0. MAHON...

55

Service by publication: absence of proof of dili-

gence in effort to serve, where it may be inferred,

does not deprive court of jurisdiction.

155, 587
CosGROVE 0. Bowe.....

61

In action for escape, complaint must show prisoner

went beyond jail liberties; may be maintained where

prisoner is held under mesne process. Sheriff may

avail himself of every defense prisoner would have

had.

3047 SHERWOOD 0. THE TRAVELERS' IN8. Co....... 67

Clerk of district court not to pay costs on appeal

to respondent until judgment is affirmed.

3271 SULLIVAN 0. REMINGTON MFG Co ......

68

No security for costs required in action revived by

administrator.

803
MARTINE 0. ALBRO........

70

Discovery of books of copartnership in action

against one partner.

2514, 2014 Proceedings in surrogate's court to compel executor

will to probate.

3278 In re LEVY,...

108

Denial of motion for security for costs does not

affect liability of attorney; mode of enforcing at-

torney's liability for costs.

1946 DECKER 0. KITCHEN ...

111

i

When judgment against one joint debtor does not

extinguish cause of action against the other.

v. ....

115

2718, 2819

to pay legacy; petition should be dismissed if veri-

fied answer shows petitioner's claim to be doubtful;

duties of executor and testamentery trustee sepa-

rable.

15 MACK 0. Coux....

122

Attorney cannot be imprisoned for non-payment of

costs of appeal from order unless they were awarded

in a proceeding prosecuted by him with improper

motives.

417, 1897 THE MAYOR v. EISLER......

125

Summons in action for penalty given by city ordi-

nance must have a general reference to ordinance

indorsed upon it, if complaint is not served with it;

attorney's signature to summons may be printed.

1

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