IRRELEVANT AND REDUNDANT MATTER-continued.
what rules necessary to be applied in striking out irrelevant and redundant
matter. Knowles agt. Gee, 317.
an order of a single justice, refusing to strike out matter as irrelevant and re-
dundant in a pleading, is not an appealable order to the general term. Be-
dell agt. Stickles, 432.
it seems, that the rule in relation to striking out irrelevant and redundant mat-
ter should be in analogy to that of the old Supreme Court in relation to
frivolous demurrers. Where there is some question or ground for argument
about it, the application should be refused, id.
JUDGMENT, judgment may be entered upon a report of referees upon the whole issue,
without the aid of a judge. Van Valkenburgh agt. Allendorph, 39.
see PRACTICE; Norbury agt. Seeley, 73.
judgment upon a report of referees, how reviewed. Leggett agt. Mott, 325.
a decision of the court upon a demurrer is not an order but a judgment.
Bentley agt. Jones, 335.
JURISDICTION, see ACTIONS; Hulbert agt. The Hope Mutual Ins. Co., 275.
the trial of a feigned issue in the Supreme Court on a question of fact, refusing
to admit a will to probate by a surrogate, does not give jurisdiction to the
Supreme Court, on appeal to the general term, from an order of a single
judge denying a motion to set aside the verdict on the feigned issue. The
surrogate has jurisdiction of the merits. Matter of Hicks' will, 316.
the court has no jurisdiction of a cause, to grant relief, &c. before the service of
the summons. There is no action pending. (§ 139.) Davis agt. Jones, 340.
a return to a certiorari, made by a judge who was out of office before the ser-
vice of the certiorari upon him, is a nullity. Otherwise with a justice of the
peace. Peck agt. Foot, 425.
when an inferior court may inquire into the jurisdiction of a superior court.
Doty agt. Brown, 429.
JURY, the verdict of a jury upon a question of fact, when final. Rice agt. Floyd, (in Court
of Appeals,) 27.
JUSTICE'S COURT, under the code of 1849, a reply to an answer in a justice's court is not
necessary in any case. The cause is at issue without it. McNamara agt.
Bitely, 44.
LEASES, see TAXES AND ASSESSMENTS; Van Rensselaer agt. Cottrell, 376.
Van Rensselaer agt. Witbeck, 381.
Van Rensselaer agt. Dennison, 390.
a sixth sale (or quarter sale) reservation, contained in a lease in fee, is void;
otherwise in a lease for years or for lives. Overbagh agt. Patrie, 394.
where the payment of such sixth sale is made a condition subsequent, the con-
dition is void, and the estate stands divested of such condition.
agt. Patrie, 394.
LUNATIC OR HABITUAL DRUNKARD, cannot make a valid will, where a commission
has been issued and remains unrevoked, without permission of court. In
the matter of Patterson, a drunkard, 34.
acts done by a lunatic or drunkard, before the issuing of a commission, and
which are overreached by the retrospective finding of the jury, the inquisi-
tion is only presumptive evidence of incapacity. But all gifts and contracts
made by him after the actual finding of the inquisition, and until he is per-
mitted to assume the control of his property, are utterly void, id.
an application to the court for an order to remove the commission, is addressed
to its discretion, and may be made ex parte or on notice, to the committee
and next of kin, as the court shall direct, id.
MISTAKES, the omissions or mistakes of a clerk, attorney, or other officer of the court, will
not be allowed to prejudice or injure a party. Neele agt. Berryhill, 16.
MORTGAGE FORECLOSURE, see PARTIES; Conde agt. Shepard, 75.
MOTION, may be noticed for a day in term, other than the first, on sufficient excuse.
Whipple agt. Williams, 28.
motion for costs at circuit (attendance, &c.) should be made the first opportu
nity after circuit, id.
the court, upon motion, will not determine the equitable rights of parties as
between themselves, in rendering judgment under § 274 of the code. Nor-
bury agt. Seeley, 73.
to change the place of trial, &c. See TRIAL, 81, 86.
motions are properly made in a cause, in the district (or an adjoining county)
in which the venue is laid, although the cause may have been tried in an-
other district by an order of the court, changing the place of trial. Gould
agt. Chapin, 185.
a motion to set aside a judgment upon matters of substance (not for mere
technical irregularity,) is not required to be made the first possible opportu-
nity. Lucas agt. The Baptist Church, 353.
NON-RESIDENT, see ATTACHMENT; Burrows agt. Miller, 349.
see TAXES AND ASSESSMENTS; Van Rensselaer agt. Cottrell and others, 376 to
390.
NOTICES, notice of argument for Court of Appeals calendar should be mailed or sent so as
to reach the clerk within the time prescribed by the rules (8 days.) Wilkin
agt. Pearce, 26.
notice of commissioners' proceedings in partition, is not required by statute to
be given to the parties. Row agt. Row, 133.
ORDERS, see PRACTICE; Schenck agt. McKie, 246.
see PRACTICE; Brodhead agt. Brodhead, 308.
what orders involve the merits, and are appealable from the special to the ge-
neral term. St. Johns agt. West, 329.
PARTIES, the husband and wife, who execute a bond and mortgage to secure a part of
the purchase-money, for premises conveyed to the wife in fee, subsequent to
the act of April 7, 1848, are necessary and proper parties to an action for
the foreclosure of a mortgage. Conde agt. Shepard, 75.
it seems a person, not a party to the judgment, may be made a party to sup-
plementary proceedings. (Code, § 295, 300.) Davis agt. Turner, 190.
PARTITION, the old suit in equity for the "partition of lands" is now merged in the "civil
actions" under the code, and as such may be prosecuted by summons and
complaint. Myers agt. Rasback, 83.
proceedings for partition by petition under the Revised Statutes are saved by
the code; and such proceedings may also be instituted now as before the
code, id.
see PLEAS AND PLEADING; Reed agt. Child, 125.
notice of commissioners' proceedings in partition, is not required by statute to
be given to the parties. Row agt. Row, 133.
PARTY IN INTEREST, every action must now be prosecuted by the real party in interest.
The Camden Bank agt. Rogers, 63.
action by a bank upon a draft payable to the order of W. B. S., their cashier,
and the complaint alleged that it was delivered to the said W. B. S., cashier
“for the said bank." Held, on demurrer to the complaint, that the action
was well brought in the name of the bank, id.
PAYMENT, the amount of a verdict rendered in an action of assault and battery, cannot be
paid to the sheriff on an execution against the party who recovered the ver-
dict under § 293 of the code. A verdict in tort must be consummated by
judgment before it can be treated as an indebtedness under that section. Da-
venport agt. Ludlow, 337.
PER CENT., ten per cent. was allowed on the amount of the verdict at the circuit in a suit
upon a promissory note, where the defendant put in a false answer, by
which the plaintiff was thrown over a circuit. Willard ag Andrews, 65.
in the allowance of a per cent. under § 308 of the code, each case must depend
upon its own peculiar features and circumstances, &c. Sackett agt. Ball, 71.
where it appeared one bill of costs might have been saved to the defendant,
by joining two suits in one, a per cent. was denied to the plaintiff. Sackett
agt. Ball, 71.
it seems, that the allowance of a per cent. should be denied in all doubtful cases*
and granted only in those which, on account of their peculiarities or difficul-
ties, plainly distinguish them from the great mass of litigated suits. Gould
agt. Chapin, 185.
a referee's certificate is not such evidence as will authorize the court to allow a
per cent. under § 308. The court must know the facts, id.
the court, and not the referee, must make the order for an extra allowance
under § 308 of the code. The application cannot be made ex parte. Howe
agt. Muir, 252.
a trial of a case which occupies four or five days, and in which it is necessary
to procure scientific witnesses to disputed questions, comes within the
meaning of § 308 of the code, as extraordinary, and entitled to an extra al-
lowance. Howard agt. The Rome and Turin Plank Road Co., 416.
it seems, that any trial, which necessarily occupies four or five days, and which
comes under that section, is entitled to an extra allowance, id.
a defendant who is entitled to costs in consequence of judgment against him
for less amount than he offered in writing, under § 385, is not entitled to an
extra allowance, under § 308 and 309, M'Lees agt. Avery, 441.
PLEAS AND PLEADING, title set up by answer in a justice's court, by which the same
action is commenced in the Supreme Court, and the same answer interposed.
A reply interposed in such a case will be stricken out as unnecessary.
McNamara agt. Bitely, 44.
under the code (1848,) a reply to an answer in a justice's court is not neces-
sary in any case, id.
held, no cause of demurrer to a complaint, because the plaintiff claimed a sum
certain an account of the defendant's breach without setting out an account
current with the defendants. The requisites of a complaint in such a case
stated. Enos agt. Thomas, 48.
see IRRELEVANT AND REDUNDANT MATTER. White agt. Kidd, and Hynds agt.
Griswold, 68 and 69.
a demurrer under the code must distinctly specify the grounds of objection;
unless it do so, it may be disregarded, § 145. Glenny agt. Hitchins, 98.
a complaint should contain a statement of the facts constituting the cause of
action in ordinary language, &c.; that is, all the facts which upon a general
denial, the plaintiff would be bound to prove, to entitle him to a judgment,
id.
although it is a general rule that a pleading will not be stricken out on motion
as false, where it is verified by the oath of the party: yet, where a new and
equivocal formula and unaccustomed words are averred, by which a real
issue is not produced nor probably intended; such a pleading does not come
within the rule. Mier agt. Ferguson, 115.
a pleading cannot aver the evidence or the circumstances of the case in detail
under the code any more than under the old system. Shaw agt. Jayne, 119.
where a complaint, in an action for false imprisonment, stated at great length
all the circumstances in detail, held, that it should all be stricken out, id.
in proceedings by petition for partition under 2 R. S. 316. The pleadings are
PLEAS AND PLEADING-continued.
intended to be like those in a personal action, in which the petition shall
stand for a declaration, and anything may be pleaded which will abate the
action or bar the petitioner's right to a judgment, Reed agt. Child, 125.
under the 157th section of the code, any pleading verified by oath requires all
subsequent pleadings to be likewise verified, whether the complaint is
verified or not. Levi agt. Jakeways, 126.
it seems, that a pleading served which may be treated as a nullity, should be
immediately returned, id.
see DEMURRER; Millard agt. Shaw, 137.
see ANSWER; Davis agt. Potter, 155.
an amended pleading takes the place of, and supersedes the original. An
amended complaint may be served of course, at any time within twenty days
after an amended answer is served. Seneca County Bank agt. Garlinghouse,
an allegation in a pleading that a party to an action is not the real party in
interest, is bad upon demurrer, for the reason that the allegation does not
involve a traversable fact, but merely a conclusion of law. Bentley agt.
Jones, 202.
where a defendant is allowed to answer on payment of costs, the court will
not impose the further condition that the defendant shall not set up the
defence of usury. Grant agt. Mc Caughin, 216.
see COMPLAINT; Durkee agt. The Saratoga and Washington R. R. Co., 226.
when facts material to the defence occur, after the joining of issue, leave will
be given, on motion, to set them forth in a supplemental answer; and the
plaintiff will have twenty days to reply to such supplemental answer.
Radley agt. Houghtaling, 251.
the question of pleading under the code, in reference to striking out irrelevant
and redundant matter, reviewed. Knowles agt. Gee, 317.
see ANSWER; Kellogg agt. Church, 339, and Russell agt. Clapp, 347.
a defendant cannot both demur to, and answer at the same time, a single
cause of action alleged in the complaint. Slocum agt. Wheeler, 373.
a claim for money, had and received, cannot be joined in a complaint, with a
claim founded on a refusal to deliver up promissory notes, alleged to have
been paid and satisfied. Cahoon agt. The Bank of Utica, 423.
POWER, the power of the court to relieve against a default, is derived from the common
the court has power under the 149th section of the code (original) to allow a
complaint to be verified by oath, after service, upon motion. Bragg agt.
Bickford, 21.
the court has, as one of its incidental powers, the right to control the legal
acts, and compel a performance of legal duty of all its inferior officers; con-
sequently has a right to review the adjustment and settlement of costs by a
clerk. Whipple agt. Williams, 28.
the court has power under the 388th section of the code, (1849,) in any case
to compel the discovery of books and papers bearing upon the merits of the
action, where either party have them in their possession, &c. Powers agt.
Elmendorf, 60.
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