with the county clerk, and an execution has been issued thereon to the sheriff and returned unsatisfied in whole or in part; but upon examination it will be seen that the judge, in making that decision, has failed to notice the distinction to which I have alluded respecting the kind of execution which may be issued upon a justice's judgment for less than $25, exclusive of costs, and the fact that the execution referred to in § 292, and the return of which unsatisfied forms the basis of supplementary proceedings, must be against property generally, and in the form prescribed by § 289.
See JUSTICE'S COURT PRACTICE, 7.
PARTNERSHIP, 3.
4. Where plaintiff sued as assignee of
a demand which originally accrued to
two partners, but the assignment proved
was executed by but one of the partners,
and purported to transfer only his "right,
title, and interest" in the claim, and
there was no proof that the partnership
had been dissolved, or that the claim was
ever vested in the partner making the
assignment, or that the other partner had
ever done any act which would estop him,
or would vest his interest in the assets of
the firm in his partner, held, that the
plaintiff could not maintain his action.
Mills v. Pearson,
5. M. left his horse and cart standing
upon a public pier or dock, within two
feet of the edge, at a time when the pier
was crowded, and there was room for
only one horse and cart to pass upon it.
The horse's bit was out, and he was feed-
ing. The defendants' cart, passing, came
in contact with M.'s cart, and threw it
and the horse into the river, where the demand sued for, and thereupon the
horse was drowned. Held, that M. could suit was discontinued. Subsequently the
not recover therefor. He was not only plaintiff brought an action against him
obstructing a public highway, but was upon a demand of the same general na-
guilty of gross negligence in leaving his ture, existing at the time the first suit
horse at the edge of a dock, after remov- was commenced. Held. I. That there
ing the bit, the only thing by which the was no recovery in the first action, which,
animal could, in case of accident or emer- in any case, would be a bar to another
gency, be controlled. Morris v. Phelps, 38 suit. II. The demands, having arisen out
of separate sales, at different dates, and
6. An action upon a judgment rendered upon specified credits, constituted inde-
in one of the district courts, may be pendent causes of action. Cashman v.
brought by a party to whom it has been Bean,
assigned, without leave of the court first
obtained. Such leave is only necessary 12. To constitute a "recovery" which
where the action is between the original would be available, by way of defence,
parties to the judgment. Kopper v. as a bar to another action for the same
Howe,
69 cause, it should be obtained by the judg
ment of a court or other competent tri-
7. An employer, having derived a ben-bunal.
efit by a servant's part performance of a
contract void by the statute of frauds, is 13. Where the right of the plaintiff to
liable in an action for the services actually maintain his action depends upon a judg-
rendered. And, in the absence of any ment docketed in his favor, but on his
evidence as to the value of the services, producing the judgment record to the
the rate of compensation fixed by the
agreement should be regarded as the
measure of damages. Nones v. Homer, 116
8. In an action for the price of ribbons,
where defendants relied on the fact that
the goods were of an unmerchantable
quality: Held, that it was not necessary
that defendants should have unrolled each
of the cartons on which the ribbons were
put up, to ascertain the character of every
yard; but it was sufficient that they un-
rolled a number of cartons, and that all
those examined were found to be unmer-
chantable. Renaud v. Peck,
137
court it appears that the judgment is void
by reason of having been entered by con-
fession, upon an insufficient statement of
indebtedness; the action will be dismissed.
Although a defendant will not be per-
mitted to avail himself of a defence not
stated in his answer, yet, if a plaintiff vol-
untarily shows that he has no cause of
action, the court will not assist him, or
grant him any relief. Ely v. Cook, 406
14. An action cannot be maintained by
a judgment creditor for the purpose of
setting aside an insolvent discharge grant-
ed to the debtor, upon the ground that
the officer granting the discharge never
acquired jurisdiction of the proceeding,
and that such want of jurisdiction appears
on the face of the record.
Ibid.
9. An action may be maintained against
the corporation of the city of New York
to enforce, by judgment and execution,
the payment of a legal obligation or lia-
bility imposed upon or incurred by it, al- 15. Where two demands, arising on
though no fund or property has been ap-contract, exist against a party, one of
propriated by law to meet such payment.
Green v. The Mayor, &c., of New York, 203
which has arisen in a fiduciary capacity,
and in respect to which his arrest is de-
sired; that would be a good reason for
bringing separate actions. Per HILTON, J.
Lambert v. Snow,
Seo AGREEMENT, 1.
ATTACHMENT, 2.
COMMISSIONS, 2.
EVIDENCE, 12.
INSOLVENTS, 1.
JURISDICTION, 1, 2.
LEASE, 7. 8.
1. The defendant, as a condition of the
purchase by him of all the property of a
mining company, of which he was treas-
urer, agreed to pay its liabilities, and to
pay the shareholders a specified amount 1. Where a verified complaint alleges
for each share. Held, in an action brought matter, to the truth of which the defend-
by the plaintiff, claiming under an as-ant, if a witness, would be privileged
signment of the interest of one of the from testifying, an answer denying such
shareholders, I. That the promise of the allegations, may be served without being
defendant enured to the benefit of every verified. Moloney v. Dows,
shareholder and creditor of the associa-
tion, and entitled any one of them to 2. An answer consisting of averments
maintain an action upon it. II. That the false in fact, is a sham pleading. A plead-
promise was not to pay the debt of aning is irrelevant which consists of inatter
other, but a promise to pay his own debt having no substantial relation to the sub-
incurred by the purchase of the property.ject of the controversy. A frivolous an-
Therasson v. McSpedon,
swer is one which, assuming its contents
to be true, presents no defence to the
action. Struver v. Ocean Ins. Co.,
2. F. applied to S. for certain rooms and
board. Negotiations were entered into
between them, which finally resulted in
3. In an action against husband and
F.'s taking the rooms and paying $10 to wife, where her interest is separate and
bind the bargain, S. giving a receipt there-distinct from her husband's, a joint an-
for in these words: "Received from swer must be verified by both. A joint
ten dollars, which amount secures answer of several defendants, who are not
him board for self and lady, and is to be united in interest, must be verified by all.
applied on the first week's board; to be Reed v. Butler,
forfeited if not taken" Prior to giving
this receipt, S. had made no agreement to
reserve the rooms for F. Held, I. That
the receipt constituted a contract in writ-
ing, merging all prior parol negotiations,
and was not liable to be varied by parol.
II. That any prior agreement, made by
F., to take the rooms, was void for want
of mutuality, under the familiar rule of
law that an agreement consisting of mu-
See ACTION, 13.
PLEADING, 1, 2, 3.
PRACTICE, 2.
PROMISSORY NOTES AND BILLS, 8.
tual promises must be bind ng upon both| 1. In an action commenced in the Ma
rine Court by a summons which required will never interfere, upon a question of
the defendants to answer "a complaint for fact, with the finding of the tribunal before
a money demand on contract," the plain- whom the witnesses were examined, and
tiffs, on the return of the summons, the whose appropriate and special duty it is
defendants having appeared, applied for to pass upon questions of fact that must
leave to amend it by substituting the be determined upon conflicting testimony.
words an injury to personal property "The only exceptions to this rule, are:
for "a money demand on contract." The I. That they will reverse for the want of
court permitted the amendment, and the evidence. IL Or when the verdict or
defendants excepted. Held, on appeal, finding is against evidence, in respect to
that permitting the amendment was an act which there is no contradiction nor con-
of discretion on the part of the court be- flict. III. And, in extreme cases, although
low, which was not properly the subject there may be some conflict or contradic-
of review. Cooper v. Kinney,
12 tion in the testimony, when, after full and
careful deliberation, they are convinced
2. A motion to open a default, and set that the verdict, finding, or report, must
aside an inquest, is addressed to the dis- have been induced by partiality, prejudice,
cretion of the court, and no appeal lies or corruption, or was the result of an ob-
from an order denying such motion. Mul-vious mistake. Cases in which the court
denor v. McDonogh,
46 will interfere, upon the latter ground, are
very rare. Pearson v. Fiske,
7. An objection to a question that it is
leading, is not available upon appeal, un
less that was specifically stated as the
ground of objection upon the trial. Ibid.
3. Au order vacating a judgment en-
tered by default, and letting the defend-
ants in to answer upon their showing a
defence and excusing their neglect, is not
appealable. Such an order can be re-
viewed only upon obtaining the certificate
required by rule of this court of March 8. Where the evidence is conflicting, the
22d, 1851, which is granted in all cases finding of the justice will not be disturbed
where the judge making the order deems on appeal from a district court, unless the
the question of such importance and doubt evidence against the finding so greatly
as to render a review proper. Churchill preponderates as to warrant the presump-
7. Mallison,
70 tion of corruption, bias, or partiality. It
is not enough to warrant a reversal of the
4. An application in supplementary judgment, that the court may be of opinion
proceedings for an order requiring the that, as the evidence appears on paper,
judgment debtor to apply property or they would have found differently. Men-
money, disclosed by his examination, to dell v. French,
the payment of the judgment, is addressed
to the discretion of the judge before whom i 9. Where the judgment of a justice is
the proceeding is pending. So also is an incomplete-e. g., where the return shows
application to commit for contempt for that the complaint was dismissed, but
disobedience of the order supplementary does not show that costs were awarded
to the execution. No appeal lies from an against the plaintiff,-it can neither be
order denying such applications. Joyce v. reversed nor affirmed, but the appeal
Holbrook,
94 therefrom will be dismissed. Haulenbeck
v. Gillies,
5. This court will not grant a rehearing
of an appeal, upon an affidavit which 10. Where the decision of this court,
merely shows, that on the first hearing, the upon a question presented on an appeai
counsel for the appellant was not duly from the judgment of an inferior court,
prepared to argue the cause, and there- is in direct conflict with a decision of
fore entertains the belief that the court the general term of the Supreme Court
did not fully understand the questions in- in this district, a proper case is shown for
volved in the case. Nor does such an granting leave to appeal to the Court of
affidavit show any ground for allowing an Appeals. Clapp v. Graves,
243
appeal to the Court of Appeals, in a cause
commenced in a district court. Drucker v.
Patterson,
11. Where an action is tried before a
justice of a district other than the one in
which the court is held, the return on
6. As a general rule, an appellate court appeal must show affirmatively that the
|