COURT OF APPEALS, MARCH TERM, 1849. SHERMAN & BATCHELDOR VS. JABEZ FELT and others. The Supreme Court, as now organized, has the same jurisdiction as the late Supreme Court possessed, with the addition of the equity jurisdiction of the late Court of Chancery. (Const. art. VI., § 3, 5, and Art. XIV., § 5, Stat. 1847, p. 323, § 16.) A motion to set aside a judgment or decree, either for irregularity or as a matter of favor, is a question of practice, and is not the subject of review in an appellate court. Such an order cannot be considered "a final order made upon a summary application after judgment," as provided by § 11 of the code. On the 19th March, 1847, an order was entered taking the bill as confessed. On an ex parte hearing before the chancellor a final decree was entered on the 25th May, 1847. On the 28th September, 1847, the Supreme Court, at special term, set aside the order taking the bill as confessed (19th March, 1847,) and all subsequent proceedings for irregularity. In March, 1848, the general term refused to rehear this last order. A motion was then made to the special term to set aside the said order of 28th September, 1847, among other grounds for want of jurisdiction; which motion was denied. Notice of a motion for a rehearing of this last order was then given for August general term, 1848, which motion was denied. From this last mentioned order, an appeal was taken to this court. N. HILL, Jr. moved to dismiss the appeal on the ground that the order appealed from did not involve the merits, &c. A. TABER, in opposition, insisted, among other grounds, 1st, that the Supreme Court had no jurisdiction to set aside a final decree of the chancellor. 2d. That this should be considered under the code, a final order upon a summary application in an action for judgment. following points were decided by the court: The 1. The Supreme Court, as now organized, has the same jurisdiction which was possessed by that court as organized prior to the first Monday of July, 1847, with the addition of the equity jurisdiction of the late Court of Chancery; and has the same power over decrees made by the late Court of Chancery which was possessed by that court while in existence. Of course the Supreme Court can now set aside for irregularity a decree made prior to July, 1847. (Const. Art. VI. § 3, 5, and Art. XIV. § 5; Stat. 1847, p. 323, § 16.) 2. The right of appeal given by the 11th section of the code, from a final order made upon a summary application after judgment, extends NEW YORK SUPREME COURT SPECIAL TERM REPORTS. 426 only in cases where the application is based upon or concedes the validity of the judgment; and not to cases where the application is to vacate or set aside the judgment. When the motion is to set aside, either for irregularity or as matter of favor, no appeal to this court will lie, whatever may be the decision. It is a mere question of practice, and it has been long settled that there can be no review in an appellate court in such cases. Appeal dismissed. COURT OF APPEALS, MARCH TERM, 1849. SHERMAN & BACHELDOR VS. DAGGETT & GREEN. The granting or withholding general costs of the cause, in equity cases, rests in the discretion of the court of original jurisdiction, (with very few exceptions.) Any appeal will not lie upon the mere question of costs. The Supreme Court, in August last, made a decree in favor of the complainants in a suit in equity, but without requiring the Defendants to pay the general costs in the cause. The complainants appealed from so much of the decree as denied costs. S. STEVENS, for the Respondent, moved to dismiss the appeal. A. TABER, for the Appellants. THE COURT held, that with very few exceptions, of which this case was not one, the granting or withholding of costs in equity causes rests in the discretion of the court of original jurisdiction, and that an appeal would not lie upon the mere question of costs. (Rogers v. Holly, 18 Wend. 350.) Appeal dismissed. The Court of Appeals at the last March term, (1849,) in pursuance of a number of decisions heretofore made, (Mayor, &c. of New York v. Schermerhorn and others, ante, page 334, and subsequent decisions on different pages,) dismissed several appeals, (upon motion,) in cases where they were brought under the code, from orders, decrees or judgments made and entered previous to the 1st July last. They should have been appealed under the old law. INDEX. - EXPLANATION. From the commencement of the volume, to page 51 inclusive-except From page 53 to page 264 inclusive, are decisions by the Supreme Court, and Court of From page 265 to the page closing the volume inclusive, are decisions of the last mention- ACTION, proceedings for partition of lands, an action under the code. Backus and wife agt. ADMISSION-see REFERENCE AND BILL OF PARTICULARS, 12. see EVIDENCE; People vs. Smith, 226.` AFFIDAVIT-see BAIL, 13. the common affidavit of the materiality of a witness, sufficient to put cause an affidavit to hold to bail, must show a cause of action. What is necessary arrest of defendant under § 156 of the code. Martin vs. Vanderlip, 265. an affidavit verifying an answer, not sufficient to prevent an inquest. Jones requisites of an affidavit to verify a complaint to be used on an application for an affidavit of merits for the purpose of being let in upon terms, must conform requisites of an affidavit for an order to publish a summons against an absent AGREEMENT, every agreement between parties to a suit, or their attorneys, must be in writing, in order to be binding. Leese vs. Schermerhorn, 63. an agreement in writing signed by the respective parties, to a chancery suit, agreeing that their respective counsel settle their suit; held, not such an agreement as submitted the cause to arbitration. Slocum vs. Mosher et al. (Court of Appeals, 198.) ALIMONY-see DIVORCE; Bissell vs. Bissell, 242. AMENDMENT, declaration cannot be amended, by adding special count against endorser in a joint suit, against makers and endorsers, where notice has been given that the note is the only cause of action. Frost et al. vs. Flint, 14. plaintiff may have leave to withdraw a joinder in demurrer after service, and amend his declaration (on terms) on special motion. Harp vs. Bull, 45. declaration may be amended from trespass to trover, after trial and verdict, on terms. Carrier vs. Dellay, 173. the power of the court to allow amendments will be liberally exercised. Wright et al. vs. Alden et al. 213. an application to amend a record for errors in making it up after writ of error brought, should be made to the court below, where the judgment was rendered. Luyster vs. Sniffen, 250. see COMPLAINT; Spalding vs. Spalding, 297; also Dows et al. vs. Green et al. 377. Amendment by striking out defendants, under § 149-comments upon that section with the statute of amendments, (2 R. S. 424, 5 and 6,) and the terms of amendment in connection therewith. Brown et al. vs. Babcock, adm'r, &c. 305. amendment by adding a party to a pleading may be made under § 149 of the code, if it does not change substantially the cause of action or defence. Dutcher vs. Slack, 322. section 115 of the code providing for amending the complaint of course by striking out the names of the defendants not served, applies to defendants severally not jointly liable. Sterne vs. Bentley and another, 331. motion papers entitled with the wrong court, are defective and cannot be amended under the 149th section of the code. That section cannot extend to an affidavit or notice. Clickman vs. Clickman, (Court of Appeals,) 365. ANSWER, under the code, must be verified by oath, otherwise it may be treated as a nullity. De Witt vs. Swift et al. 280. a plaintiff has no right to adjudge an answer frivolous, and treat it as a nullity when regularly put in and duly verified. Hartness et al. vs. Bennett, 289. new matter set up in the answer as a defence (presenting an issue of law) which is deemed insufficient, and frivolous, may be noticed for trial at the next circuit, and the answer may also be noticed as frivolous, 289. it seems, that the answer may be stricken out as frivolous on special motion, . 289. ANSWER-continued. an answer verified in pursuance of § 133 of the code is not sufficient to support a motion to dissolve an injunction. Roome and another vs. Webb, 327. if the defendant omits to serve his answer within the 20 days, he is not finally excluded from his defence, but may be let in on terms upon a sufficient excuse. The statute in such a case not to be construed peremptorily, but directorily, &c. Lynde vs. Verity and wife, 350. material allegations of new matter in the answer, &c. (§ 131 of the code) must be confined to allegations of fact. Barton vs. Sackett et al. 358. the requisites of an answer under the code, considered and discussed. Royce agt. Brown, 391. APPEAL, will not lie to the Court of Appeals from an order made at special term without first being reheard at general term. Gracie vs. Pierson et al. (Court of Appeals,) 218. will not lie on reversal of a judgment by Supreme Court of Common Pleas on bill of exceptions contained in the record, on an appeal (upon a bill of exceptions) under the act of Dec. 1847. Fargo vs. Brown, 294. an appeal cannot be substituted for rehearing, on a motion to amend. Wilson vs. Onderdonk and others, 319. the right to review, on appeal to the Court of Appeals, a final order, judgment or decree decided before the 1st of July, depends upon the old law. Where such orders or judgments are made and entered after the 1st of July, whether suit commenced before or after that day, the appeal must be under the code. Mayor, &c. of New York vs. Schermerhorn and others, (Court of Appeals,) 334. see Spalding vs. Kingsland and another, on the same question, 337; also, Selden vs. Vermilya and others, 338; also Rice vs. Floyd, 366. an appeal will not lie to the Court of Appeals from an order of the Chancellor an order at special term dissolving a temporary injunction, reheard and con- the Court of Appeals has jurisdiction of an appeal taken prior to 1st July an appeal from an order of the Supreme Court at general term denying a an appeal will not lie to the Court of Appeals in an action |